STOCK PURCHASE AGREEMENT
dated as of
July 23, 1996
between
XXXXXX XXXXXXX & CO. INCORPORATED
and
UNIHOLDING CORPORATION
relating to the purchase and sale
of
333,333 shares (5.16%) of the Common Stock
of
UNIHOLDING CORPORATION
STOCK PURCHASE AGREEMENT
Stock Purchase Agreement dated as of July 23, 1996 between UNIHOLDING
CORPORATION, a Delaware corporation (the "Company"), and XXXXXX XXXXXXX & CO.
INCORPORATED, a Delaware corporation ("Xxxxxx Xxxxxxx").
WHEREAS, the Company proposes to issue to Xxxxxx Xxxxxxx 333,333 shares
(the "Initial Shares") of its voting common stock, par value $0.01 per share
(the "Common Stock") at a price of $15.00 per share and Xxxxxx Xxxxxxx desires
to purchase the Initial Shares from the Company, upon the terms and subject to
the conditions hereinafter set forth; and
WHEREAS, in consideration of Xxxxxx Xxxxxxx'x agreement to purchase the
Initial Shares, the Company proposes to grant certain antidilutive and
preemptive rights to Xxxxxx Xxxxxxx as further described herein, whereby, under
certain circumstances, Xxxxxx Xxxxxxx will have the right to receive additional
shares of Common Stock (in each case, the "Additional Shares" and, with the
Initial Shares, the "Shares");
NOW, THEREFORE, in consideration of the mutual covenants and agreements and
other considerations set forth herein, the parties hereto agree as follows:
1. Representations and Warranties. (a) The Company hereby represents and
warrants to and agrees with Xxxxxx Xxxxxxx as of the date hereof and as of the
date of the issuance and delivery of any Additional Shares:
(i) The Company has been duly incorporated, and is validly existing as
a corporation in good standing under the laws of the State of Delaware.
(ii) The Company has the corporate power and authority to own its
property and conduct its business as currently conducted and as proposed to
be conducted, and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries, taken
as a whole.
(iii) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in
good standing under the laws of the jurisdiction of its incorporation, has
the corporate power and authority to own its property and to conduct its
business as currently conducted and as proposed to be conducted and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(iv) The Shares have been duly authorized and when delivered in
accordance with the terms of this Stock Purchase Agreement, will be validly
issued, fully paid and non-assessable, and the-issuance of such Shares will
not be subject to any preemptive or similar rights, except as specified
herein.
(v) The Company has all requisite power and authority (corporate and
other), and has taken all necessary corporate action (i) to authorize,
execute, deliver and perform this Stock Purchase Agreement and the
Registration Rights Agreement dated July 23, 1996 between Xxxxxx Xxxxxxx
and the Company (the "Registration Rights Agreement"), (ii) to execute,
issue, sell, and deliver the Shares and (iii) to perform all of its
obligations under this Stock Purchase Agreement and the Registration Rights
Agreement.
(vi) Each of this Stock Purchase Agreement and the Registration Rights
Agreement has been duly executed and delivered by the Company and is a
legal, valid and binding agreement of the Company enforceable in accordance
with its terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) the availability of equitable remedies may be limited by
equitable principles of general applicability.
(vii) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Stock Purchase
Agreement and the Registration Rights Agreement will not contravene any
provision of applicable law or the certificate of incorporation or by-laws
of the Company or any agreement or other instrument binding upon the
Company or any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or any
judgment, order or decree of any government body, agency or court having
jurisdiction over the Company or any subsidiary, and no consent, approval,
authorization or order of or qualification with any governmental body or
agency is required for the performance by the Company of its obligations
under this Stock Purchase Agreement or the Registration Rights Agreement,
except such as may be required by the Securities Act, the securities or
Blue Sky laws of the various states or the rules and regulations applicable
to the listing of securities on NASDAQ (as defined below) in connection
with the reoffer and resale of the Shares by Xxxxxx Xxxxxxx.
(viii) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended.
(ix) The Company's Annual Report on Form 10-K for the fiscal year
ended May 31, 1995, Quarterly Reports on Form 10-Q for the periods ended
August 31, 1995, November 30, 1995 and February 29, 1996 (as furnished to
Xxxxxx Xxxxxxx) and any additional reports on Form 10-K or 10-Q, or Current
Reports on Form 8-K, furnished to Xxxxxx Xxxxxxx on or prior to the
delivery of any of the Shares (collectively, the "1934 Act Reports"), at
the time they were filed did not, and as of the date hereof (or of delivery
of Additional Shares) do not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(x) There has not occurred any material adverse change in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the 1934 Act Reports.
(xi) Neither the Company nor any affiliate (as defined in Rule 501(b)
of Regulation D under the Securities Act ("Regulation D")) of the Company
has directly, or through any agent, sold, offered for sale, solicited
offers to buy or otherwise negotiated in respect of any security (as
defined in the Securities Act) that is or will be integrated with the sale
of the Shares in a manner that would require the registration under the
Securities Act of the offering contemplated by this Stock Purchase
Agreement. The Company also agrees not to sell, offer for sale or solicit
offers to
buy or otherwise negotiate in respect of any security (as defined in the
Securities Act) that would be integrated with the sale of the Shares in a
manner that would require the registration under the Securities Act of the
offering contemplated by this Stock Purchase Agreement.
(xii) No form of general solicitation or general advertising (as those
terms are defined in Regulation D under the Securities Act) was used by the
Company or any of its representatives in connection with the offer and sale
of the Shares.
(xiii) There are no material legal or governmental proceedings pending
or threatened to which the Company or any of its subsidiaries is a party or
to which any of the properties of the Company or any of its subsidiaries is
subject that are required to be described by Item 103 of Regulation S-K
under the Securities Act and are not described as required in the 1934 Act
Reports.
(xiv) The Company acknowledges and understands that from time to time
Xxxxxx Xxxxxxx or one or more affiliates of Xxxxxx Xxxxxxx may hedge Xxxxxx
Xxxxxxx'x position in the Shares through short sales of shares of Common
Stock and by purchasing and selling any other instruments that it may wish
to use in connection with such hedging and from time to time may adjust
such hedge through the purchase and sale of Common Stock and by purchasing
and selling any other instruments that it may wish to use in connection
with such hedging.
(b) Xxxxxx Xxxxxxx agrees that it will not sell any of the Shares
except in compliance with the registration requirements of Section 5 of the
Securities Act, or in a transaction that is exempt from registration under
the Securities Act.
2. Purchase and Sale of the Initial Shares. Upon the terms and subject to
the conditions of this Stock Purchase Agreement, the Company agrees to sell to
Xxxxxx Xxxxxxx and Xxxxxx Xxxxxxx agrees to purchase from the Company, the
Initial Shares on the date hereof. The aggregate purchase price for the Initial
Shares (the "Purchase Price") is U.S.$5,000,000. Payment for the Initial Shares
sold to Xxxxxx Xxxxxxx pursuant to this Stock Purchase Agreement shall be made
by wire transfer to the account of the Company in immediately available funds
upon delivery of the Initial Shares at the office of Xxxxxx Xxxxxxx & Co.
Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx, at 10:00 A.M., New York City time, on July 23, 1996. The time and date of
such payment is hereinafter referred to as the Closing Date.
3. Conditions to Closing. The obligations of the Company and Xxxxxx Xxxxxxx
hereunder are subject to the following conditions:
(a) Xxxxxx Xxxxxxx shall have received on the Closing Date a
certificate dated the Closing Date and signed by an executive officer of the
Company, to the effect that the representations and warranties of the Company
contained in this Stock Purchase Agreement are true and correct as of the
Closing Date and that the Company has complied in all material respects with all
of the agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder and under the Registration Rights Agreement on
or before the Closing Date.
(b) Xxxxxx Xxxxxxx shall have received on the Closing Date (i) the
opinion of Dolgenos Xxxxxx & Xxxxxx LLP, counsel for the Company, dated the
Closing Date, set forth in Exhibit A attached hereto, (ii) an opinion of counsel
for Unilabs Holdings SA, a Panama corporation (the "Parent"), dated the Closing
Date, set forth in Exhibit B attached hereto and (iii) an opinion of counsel for
Unilabs Holdings SA, a Switzerland corporation (the "Grandparent"), dated the
Closing Date, set forth in Exhibit C attached hereto.
(c) Xxxxxx Xxxxxxx shall have received on the Closing Date (i) a copy
of the Registration Rights Agreement duly executed and delivered by the Company
and (ii) a copy of the side letter (the "Side Letter Agreement") among Xxxxxx
Xxxxxxx, the Parent, the Grandparent and Xxxxxx Xxxxx of Xxxxxx Xxxxxxxxxxxxx,
0000 Xxxxxxx, Xxxxxxxxxxx (the "Controlling Shareholder"), duly executed and
delivered by the Parent, Grandparent and such Controlling Shareholder, relating
to certain tag-along rights of Xxxxxx Xxxxxxx.
4. Indemnification by the Company. The Company agrees to indemnify and hold
harmless Xxxxxx Xxxxxxx, its officers, directors and agents, and each person, if
any, who controls Xxxxxx Xxxxxxx within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a
material fact contained in the 1934 Act Reports, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading.
5. Conduct of Indemnification Proceedings. In case any proceeding
(including any governmental investigation) shall be instituted involving any
person in respect of which indemnity may be sought pursuant to Section 4 such
person (the "Indemnified Party") shall promptly notify the person against whom
such indemnity may be sought (the "Indemnifying Party") in writing and the
Indemnifying Party, upon request of the Indemnified Party, shall retain counsel
reasonably satisfactory to the Indemnified Party to represent the Indemnified
Party and any others the Indemnifying Party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any Indemnified Party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the Indemnified Party and the Indemnifying Party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the Indemnifying Party
shall not, in respect of the legal expenses of any Indemnified Party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) at any time for the Indemnified Party, and that all such
fees and expenses shall be reimbursed as they are incurred. In the case of any
such separate firm for the Indemnified Party, such firm shall be designated in
writing by the Indemnified Party. The Indemnifying Party shall not be liable for
any settlement of any proceeding effected without its written consent, but if
settled with such consent, or if there be a final judgment for the plaintiff,
the Indemnifying Party agrees to indemnify the Indemnfied Party from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an Indemnified Party shall have requested
an Indemnifying Party to reimburse the Indemnified Party for fees and expenses
of counsel as contemplated by the second and third sentences of this Section 5,
the Indemnifying Party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 90 business days after receipt by such Indemnifying Party
of the aforesaid request and (ii) such Indemnifying Party shall not have
reimbursed the Indemnified Party in accordance with such request prior to the
date of such settlement. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Party is or could have
been a party and indemnity could have been sought hereunder by such Indemnified
Party, unless such settlement includes an unconditional release of such
Indemnified Party from all liability on claims that are the subject matter of
such proceeding.
6. Contribution. To the extent the indemnification provided for in Sections
4 and 5 of this Stock Purchase Agreement is unavailable to an Indemnified Party
or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each such Indemnifying Party under such Section, in
lieu of indemnifying such Indemnified Party thereunder, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such losses,
claims, damages or liabilities in such proportion as is appropriate to reflect
the relative fault of the Indemnifying Party on the one hand and the Indemnified
Party on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the Company on the one
hand and of Xxxxxx Xxxxxxx on the other shall be determined by reference to,
among other things, the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and Xxxxxx Xxxxxxx agree that it would not be just or equitable
if contribution pursuant to this Section 6 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Party as a result of the losses,
claims, damages or liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such Indemnified Party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, Xxxxxx Xxxxxxx shall not be
required to contribute any amount in excess of the amount by which the proceeds
to Xxxxxx Xxxxxxx
of a sale of Shares exceeds the amount of any damages which Xxxxxx Xxxxxxx has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
7. Rule 144. The Company covenants that it will file any reports required
to be filed by it under the Securities Act and the Exchange Act to the extent
required from time to time to enable Xxxxxx Xxxxxxx to sell Shares, as the case
may be, without registration under the Securities Act within the limitation of
the exemptions provided by (a) Rule 144 under the Securities Act, as such Rule
may be amended from time to time, or (b) any similar rule or regulation
hereafter adopted by the SEC (as so amended and along with any such similar rule
or regulation, "Rule 144"). Upon the request of Xxxxxx Xxxxxxx, the Company will
deliver to Xxxxxx Xxxxxxx a written statement as to whether it has complied with
such requirements.
8. Antidilution Right. The Company covenants that if it elects to repay all
or a portion of the $15,000,000 promissory note made on June 30, 1995 and owed
to Unilab Corporation ("UL") (the "Note") with Common Stock, it shall, as of the
date of any such repayment (each a "Note Repayment Date") compensate Xxxxxx
Xxxxxxx for the dilutive effect of such repayment by transferring to Xxxxxx
Xxxxxxx additional shares of Common Stock, for which transfer for the Purchase
Price paid pursuant to Section 2 hereof shall be deemed full consideration, such
that 0.0516 (or, if prior to the Note Repayment Date, Xxxxxx Xxxxxxx has sold
any Shares, a number representing the quotient of the number of Shares held by
Xxxxxx Xxxxxxx immediately prior to such Note Repayment Date divided by the
total number of outstanding shares of Common Stock immediately prior to such
Note Repayment Date) (the "Investment Percentage") shall equal the quotient of:
(a) the sum of (i) the number of Shares held by Xxxxxx Xxxxxxx prior to such
Note Repayment Date and (ii) the number of Additional Shares received by Xxxxxx
Xxxxxxx pursuant to this section, divided by (b) the sum of (i) the total number
of outstanding shares of Common Stock immediately prior to such Note Repayment
Date, (ii) the number of shares of Common Stock issued on such Note Repayment
Date as full or partial repayment of the Note and (iii) the number of Additional
Shares received by Xxxxxx Xxxxxxx pursuant to this section.
9. Preemptive Right. (a) The Company will not, and will not permit any of
its Affiliates (as defined below) to, sell, pledge, encumber or otherwise
transfer any shares of Common Stock at a Cash Price (as defined below) below the
then Current Market Value (as defined below) (the "Offer Price") of the Common
Stock as of any date (the "Offer Date") without first giving Xxxxxx Xxxxxxx
prior notice thereof (an "Offer Notice") and the opportunity to purchase a
number of Additional Shares (the "Offered Additional Shares") at such Offer
Price such that the Investment Percentage shall equal the quotient of: (i) the
sum of (A) the number of Shares held by Xxxxxx Xxxxxxx immediately prior to the
Offer Date and (B) the Offered Additional Shares, divided by (ii) the sum of
(without duplication) (X) the total number of outstanding shares of Common Stock
immediately prior to the Offer Date, (Y) the number of shares of Common Stock so
sold, pledged, encumbered or otherwise transferred and (Z) the Offered
Additional Shares. The Offer Notice shall constitute an offer (the "Offer") by
the Company to sell the Offered Securities to Xxxxxx Xxxxxxx at the Offer Price.
(b) The Offer may be accepted within 60 days of receipt by Xxxxxx
Xxxxxxx of the Offer Notice and, if accepted, the Offered Additional Shares
shall be purchased within 60 days after such acceptance. If the Offer is not
accepted or the Offered Additional Shares are not purchased as contemplated
above, the Company may sell the Offered Additional Shares to such prospective
purchaser or transferee at a price not less than the Offer Price. If the sale to
such prospective purchaser or transferee is not consummated as contemplated
above within 45 days after the expiration of the 60-day period or earlier
irrevocable rejection of such Offer or failure to purchase the Offered
Securities after acceptance of the Offer, no sale may be made by the Company
without again complying with this Section 9. Payment for any Additional Shares
sold to Xxxxxx Xxxxxxx pursuant to this Section 9 shall be made by wire transfer
to the account of the Company in immediately available funds upon delivery of
the Additional Shares at the office of Xxxxxx Xxxxxxx & Co. Incorporated, 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, at such time on such date as shall be agreed to by
the parties hereto.
(c) If the consideration offered by the prospective purchaser or
transferee includes non-cash consideration, the Company and Xxxxxx Xxxxxxx shall
in good faith seek to agree upon the value of such non-cash consideration. If
Xxxxxx Xxxxxxx and the Company fail to agree on such value within 30 days
following receipt by
Xxxxxx Xxxxxxx of the Offer Notice, then the items in dispute shall be referred
to a nationally recognized investment banking firm selected jointly by Xxxxxx
Xxxxxxx and the Company. Xxxxxx Xxxxxxx and the Company shall share all expenses
of such investment banking firm. The value of any securities offered as
consideration shall be the then current market value of such securities
determined on a fully diluted basis, and the value of any property other than
securities shall be the then current market value of such property. If a
determination under this paragraph (c) is required, any date for acceptance of
an Offer provided for in paragraph (b) of this Section 9 shall be postponed
until the second business day after the date of such determination. All
determinations made pursuant to this paragraph (c) shall be final and binding on
Xxxxxx Xxxxxxx and the Company.
(d) For purposes of this section:
(i) "Affiliate" means with respect to any specified person, (A) any
other person directly or indirectly controlling or controlled by, or under
direct or indirect common control with, such specified person or (B) any
officer or director of such other person. For purposes of this definition,
the term "control" (including the terms "controlling", "controlled by" and
"under common control with") of a person means the possession, direct or
indirect, of the power (whether or not exercised) to direct or cause the
direction of the management and policies of a person, whether through the
ownership of voting securities, by contract, or otherwise.
(ii) "Cash Price" means the sum of the amount of any cash plus the
fair market value (determined pursuant to paragraph (c) above) of any other
consideration offered by the prospective purchaser or other transferee.
(iii) "Current Market Value" with respect to the Common Stock means
the average closing price for such Common Stock on the last five trading
days immediately prior to (and including) the Offer Date on which a closing
trading price for the Common Stock was reported, on the NASDAQ Stock
Market/NASDAQ Small Caps ("NASDAQ") (or any successor market).
10. Company Call Right. (a) On any Business Day prior to January 15, 1997
(the "Call Date"), the Company shall have the right (the "Call Right") to
purchase, in
whole or in part, the Shares, if any, then held by Xxxxxx Xxxxxxx for cash, at a
price of $18.00 per share; provided, however, the Company may not exercise the
Call Right while a Change of Control Event exists, without the prior written
consent of Xxxxxx Xxxxxxx.
(b) In order to exercise the Call Right on any Call Date, the Company
shall give irrevocable written notice (the "Exercise Notice") to Xxxxxx Xxxxxxx
15 Business Days prior to such Call Date stating that the Company desires to
purchase the Shares then held by Xxxxxx Xxxxxxx for cash at a price of $18.00
per share.
(c) Notwithstanding the Call Right, Xxxxxx Xxxxxxx may sell any or all
of the Shares, without notice to the Company (except as provided in the
Registration Rights Agreement), at any time prior to Xxxxxx Xxxxxxx'x receipt of
the Exercise Notice. Once Xxxxxx Xxxxxxx has agreed in writing to sell any
Shares as contemplated by the preceding sentence, such Shares shall no longer be
subject to the Call Right.
(d) Payment for the Shares sold to the Company pursuant to the Call
Right shall be made by wire transfer to the account of Xxxxxx Xxxxxxx in
immediately available funds at the office of Xxxxxx Xxxxxxx & Co. Incorporated,
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, at 10:00 A.M., New York City time, on the
Call Date or on such other date as shall be agreed to by the parties hereto.
Delivery of the Shares from Xxxxxx Xxxxxxx to the Company shall occur
simultaneously with payment for such Shares.
(e) For purposes of this Section:
(i) "Change of Control Event" means that either (A) the Company (or
the Parent or Grandparent, as applicable) is considering, has agreed to or
is aware of a third party's proposal to effect a Change of Control or (B)
there has been a public announcement by the Company (or the Parent or
Grandparent, as applicable) or a third party of its intent to effect a
Change of Control.
(ii) Change of Control" means any of the following: (A) the sale,
lease, conveyance or other disposition of all or substantially all of the
Company's, the Parent's or the Grandparent's assets as an entirety or
substantially as an entirety to any Person or group of Persons (within the
meaning of Section 13(d)(3) of the Exchange Act) in one or a series
of transactions, (B) the acquisition by the Company and/or any of its
Subsidiaries, by the Parent and/or any of its Subsidiaries or by the
Grandparent and/or any of its Subsidiaries of 50 percent or more of the
aggregate voting power of all classes of Common Equity of, respectively,
the Company, the Parent or the Grandparent in one transaction or a series
of related transactions, (C) the liquidation or dissolution of the Company,
the Parent or the Grandparent or (D) any transaction or a series of related
transactions (as a result of a tender offer, merger, consolidation or
otherwise) that results in, or that is in connection with, (I) any Person
(excluding the Parent, the Grandparent or the Controlling Shareholder),
including, a "group" (within the meaning of Section 13(d)(3) of the
Exchange Act) acquiring beneficial ownership (as determined in accordance
with Rule 13d-3 under the Exchange Act), directly or indirectly, of 50
percent or more of the aggregate voting power of all classes of Common
Equity of the Company, the Parent or the Grandparent or of any Person that
possesses beneficial ownership (as determined in accordance with Rule 13d-3
under the Exchange Act), directly or indirectly, of 50 percent or more of
the aggregate voting power of all classes of Common Equity of the
Grandparent or (II) less than 50 percent (measured by the aggregate voting
power of all classes) of the Common Equity of the Company being registered
under Section 12(b) or 12(g) of the Exchange Act.
(iii) "Common Equity" of any Person means all Capital Stock of such
Person that is generally entitled (i) to vote in the election of directors
of such Person, or (ii) if such Person is not a corporation, to vote or
otherwise participate in the election of the governing body, partners,
managers or others that will control the management and policies of such
Person.
11. Miscellaneous. (a) No Inconsistent Agreements. The Company will not
hereafter enter into any agreement with respect to its securities that is
inconsistent with the rights granted to Xxxxxx Xxxxxxx in this Stock Purchase
Agreement.
(b) Additional Rights of Xxxxxx Xxxxxxx. The Company acknowledges
that, in addition to the rights specified herein and with respect to the Shares,
Xxxxxx Xxxxxxx will retain all other rights of a holder of Common Stock.
(c) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Stock Purchase Agreement may not be amended, modified or
supplemented, and waivers or consents to or departures from the provisions
hereof may not be given unless consented to in writing by each party.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing and shall be deemed given (x) when
made, if made by hand delivery, (y) upon confirmation, if made by telex or
telecopy or (z) one (1) business Day after being deposited with a reputable
next-day courier, postage prepaid, to the parties as follows:
(i) if to Xxxxxx Xxxxxxx: Xxxxxx Xxxxxxx & Co. Incorporated, 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxx and Xxxxxx
Xxxxxx;
(ii) if to the Company: Unilabs SA, 00, Xxxxx xx Xxxxxxxx, XX 0000
Xxxxxx, Xxxxxxxxxxx, Attention: Chairman, UniHolding Corporation; copy to
UniHolding Corporation, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000,
Attention: Secretary.
(e) Successors and Assigns. This Stock Purchase Agreement shall inure
to the benefit of and be binding upon the successors and assigns of each of the
parties.
(f) Counterparts. This Stock Purchase Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(g) Headings. The headings to this Stock Purchase Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) Governing Law. This Stock Purchase Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
(i) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained
herein shall not be in any way impaired thereby.
(j) Survival. The indemnity and contribution provisions contained in
Sections 4 through 6 and the representations, warranties and agreements of the
Company contained in this Stock Purchase Agreement shall remain operative and in
full force and effect regardless of (i) any termination of this Stock Purchase
Agreement and (ii) any investigation made by or on behalf of Xxxxxx Xxxxxxx or
any person controlling Xxxxxx Xxxxxxx, or the Company, its officers or directors
or any person controlling the Company.
IN WITNESS WHEREOF, the parties have executed this Stock Purchase Agreement as
of the date first written above.
UNIHOLDING CORPORATION
By: /s/ Xxxxxx Xxxxx
------------------------------
Name: Xxxxxx Xxxxx
Title: Chairman
XXXXXX XXXXXXX & CO. INCORPORATED,
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Name : Xxxxxx X. Xxxxx
Title: Managing Director
