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Exhibit 10.2
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OPTION AGREEMENT
between
NDA CLINICAL TRIAL SERVICES, INC.
a Delaware Corporation,
and
UNIHOLDING CORP.
a Delaware Corporation.
Dated as of September 27, 1995
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OPTION AGREEMENT
OPTION AGREEMENT (this "OPTION AGREEMENT"), dated as of September 27,
1995, by and between NDA CLINICAL TRIAL SERVICES, INC., a corporation formed
under the laws of the State of Delaware with its principal address at 000 Xxxxx
Xxxxxx, Xxxxxxxxxxx, Xxx Xxxx, 00000 ("NDA"), and UNIHOLDING CORP., a
corporation formed under the laws of the State of Delaware, with its principal
address at 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 ("UNIHOLDING").
W I T N E S S E T H
WHEREAS, NDA and UniHolding have entered into a Stock Purchase
Agreement, dated as of September 27, 1995 (the "STOCK PURCHASE AGREEMENT"),
providing, inter alia, for the purchase by UniHolding of 8,932 shares of NDA's
Class A Voting Common Stock, (the "CLASS A STOCK"); and
WHEREAS, the parties hereto desire to set forth in this Option
Agreement certain terms and conditions concerning the option of UniHolding to
purchase additional shares of Class A Stock from NDA; and
WHEREAS, it is a condition precedent to the closing under the Stock
Purchase Agreement that this Option Agreement be executed and delivered
simultaneously with the closing thereunder; and
WHEREAS, each of the parties desires to enter into this Option
Agreement to satisfy the condition described in the preceding paragraph and for
the further purposes herein set forth.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto, intending to be legally bound, hereby agree as follows:
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ARTICLE I
OPTION
SECTION 1.01. GRANT OF OPTION TO PURCHASE NDA COMMON STOCK. Subject to
Section 1.03, NDA hereby irrevocably grants to UniHolding the option to purchase
at any time after UniHolding's receipt of NDA's audited income statement and
balance sheet for the fiscal year ended December 31, 1996 until the Expiration
Date (as defined below), the Determined Number (as defined below) of shares of
Class A Stock, in the manner set forth below, at a price per share of Class A
Stock in cash equal to the Established Price Per Share (as defined below),
subject to the other terms and conditions set forth herein (such right is
sometimes referred to herein as the "OPTION").
SECTION 1.02. MANNER OF EXERCISE BY UNIHOLDING. (a) From and after
UniHolding's receipt of the financial statements referred to in subparagraph
(a) above and at any time prior to 5:00 P.M., New York City time on the
Expiration Date, UniHolding may exercise this Option in whole and not in part
for all of the Determined Number of shares of Class A Stock purchasable
hereunder. In order to exercise this Option, UniHolding shall send to NDA at
its address set forth in or provided pursuant to Section 5.02 an irrevocable
written notice of exercise (the "EXERCISE NOTICE"). For all purposes of this
Option Agreement the "EXPIRATION DATE" shall be thirty business days after NDA
has furnished to UniHolding its audited income statement and balance sheet for
the fiscal year ended December 31, 1996.
(b) The Exercise Notice shall be irrevocable and specify a date not
less than fifteen (15) nor more than thirty (30) business days after the date
of the Exercise Notice for the closing of the exercise of the Option (the
"CLOSING DATE"). Upon giving of the Exercise Notice, UniHolding shall be
entitled to receive at the Closing upon delivery of the funds referred to in
paragraph (c) of this Section the number of shares of NDA Class A Stock equal
to the Determined Number.
(c) In order to receive the Determined Number of shares of Class A
Stock upon exercise of the Option, UniHolding shall be required at or prior to
the Closing to pay to NDA an amount equal to the product of the Established
Price Per Share on the date of the Exercise Notice multiplied by the Determined
Number of shares of Class A Stock issuable upon exercise of the Option.
SECTION 1.03. CONDITION PRECEDENT TO GRANT OF OPTION. The obligation
of NDA to grant the Option to UniHolding hereunder is subject to the condition
precedent that a Closing shall have occurred under and as defined in the Stock
Purchase Agreement with respect to the sale of all of the Shares defined
therein.
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ARTICLE II
CLOSING OF EXERCISE OF OPTION; ETC.
SECTION 2.01. WHEN EXERCISE EFFECTIVE. The exercise of the Option
pursuant to Section 1.02 shall be deemed to have been effected immediately
prior to the close of business on the Closing Date and at such time UniHolding
shall be deemed to have become the holder of record of Class A Stock issued
pursuant to the Option on such date. Until such time, except as specifically
provided hereunder, UniHolding shall have no rights relating to the shares of
Class A Stock issuable pursuant to the Option, including but not limited to
voting rights in relation to such shares.
SECTION 2.02. CLOSING OF THE EXERCISE OF THE OPTION. The closing of
the exercise of the Option and purchase of the Determined Number of shares of
Class A Stock (the "CLOSING") shall be held at 10:00 A.M., New York time on the
Closing Date at the offices of Meltzer, Lippe, Goldstein, Wolf, Xxxxxxxxx &
Sazer, P.C., 190 Xxxxxx Avenue, Mineola, New York, or during such other time or
at such other place as may be agreed upon in writing by NDA and UniHolding. At
the Closing, NDA shall deliver to UniHolding a duly executed certificate or
certificates representing the Determined Number of shares of Class A Stock.
The stock certificate or certificates so delivered shall be registered in the
name of UniHolding and shall contain such legends as NDA and its counsel shall
deem appropriate. At Closing, UniHolding will make payment to NDA for the
Determined Number of shares of Class A Stock in immediately available funds to
a designated account of NDA, in an amount equal to the product of the
Established Price Per Share, multiplied by the Determined Number of shares of
Class A Stock issuable upon exercise of the Option.
ARTICLE III
ESTABLISHED PRICE PER SHARE AND DETERMINED NUMBER
SECTION 3.01. DETERMINED NUMBER OF SHARES. The Determined Number of
shares of NDA Class A Stock issuable upon exercise of this Option shall be
defined as the number of shares of Class A Stock that, when added to all other
shares of Class A Stock beneficially owned by UniHolding and its affiliates
(as such term is defined in Rule 144 promulgated under the Securities Act of
1933) would result in UniHolding and its affiliates (as so defined) beneficially
owning 30% of all shares of NDA capital stock (including but not limited to
Class A Stock and Class B Non-Voting Common Stock ("CLASS B STOCK")) on a fully
diluted basis upon exercise of the Option.
SECTION 3.02. ESTABLISHED PRICE PER SHARE. The Established Price Per
Share shall be determined as follows:
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The value of the Company shall be equal to 2.8 times the
consolidated revenues of NDA and its subsidiaries as set forth in NDA's
audited, consolidated financial statements for the fiscal year ended
December 31, 1996, less any indebtedness for borrowed funds (excluding
trade debts and capitalized leases) of NDA and its subsidiaries. This
value shall then be divided by the total outstanding shares of NDA's
Class A Stock, Class B Stock and any other shares of NDA's capital
stock outstanding prior to the exercise of the Option. The quotient
shall be defined as the "ESTABLISHED PRICE PER SHARE"; provided
however, in no event shall the Established Price Per Share be less
than $240 per share, as adjusted for stock splits, dividends,
recapitalizations, reclassifications, combinations or similar events.
For sake of clarity, the parties make reference to point 2 of
the Memorandum annexed to the Letter of Intent dated June 16, 1995
executed between the parties, for an application of the above formula.
ARTICLE IV
CERTAIN COVENANTS AND WARRANTIES
SECTION 4.01. RESERVATION OF NDA COMMON STOCK. NDA will at all times
after the date of the Exercise Notice reserve and keep available, solely for
issuance pursuant to the exercise of the Option, the number of shares of NDA
Class A Stock from time to time issuable to UniHolding upon the exercise of the
Option.
SECTION 4.02. REQUIRED WAIVERS AND CONSENTS. NDA represents and
warrants that it has secured any required waivers and consents from its
stockholders in connection with the execution and delivery by NDA of this
Option Agreement and the performance by NDA of its obligations hereunder,
including, but not limited to the delivery of all shares of NDA Common Stock
issuable to UniHolding hereunder.
SECTION 4.03. UNIHOLDING REPRESENTATIONS. At the execution of this
Agreement and at the Closing Date, UniHolding represents and warrants to NDA
that:
(a) it is an "accredited investor" within the meaning of Rule 501
under the Securities Act and was not organized for the specific purpose of
acquiring the Option and the shares of Class A Stock issuable thereunder;
(b) it has sufficient knowledge and experience in investing in
companies similar to NDA in terms of NDA's stage of development so as to be
able to evaluate the risks and merits of its investment in NDA and it is able
financially to bear the risks thereof;
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(c) it has had an opportunity to discuss NDA's business, management
and financial affairs with NDA's management;
(d) the Option being purchased by it, and upon exercise the shares
of Class A Stock issuable thereunder, are being acquired for its own account
for the purpose of investment and not with a view to or for sale in connection
with any distribution thereof;
(e) it understands that (i) the Option, and upon exercise the shares
of Class A Stock issuable thereunder, has not been registered under the
Securities Act by reason of its issuance in a transaction exempt from the
registration requirements of the Securities Act, (ii) the Option and shares of
Class A Stock issuable thereunder must be held indefinitely unless a subsequent
disposition thereof is registered under the Securities Act or is exempt from
such registration, (iii) the Option will bear a legend to such effect and
(iv) NDA will make a notation on its transfer books to such effect.
(f) it has made its own decision to purchase the Option and has not
relied on the decision of any other stockholder of the Company in deciding to
make its investment in NDA.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. COMPLETE AGREEMENT; AMENDMENT. This Option
Agreement contains the complete understanding of the parties with respect to
the subject matter hereof and supersedes any prior written or oral communication
or understanding concerning the subject matter hereof. This Option Agreement
may be amended only by a written instrument signed by the parties hereto.
SECTION 5.02. NOTICES. Any notice pursuant to this Option Agreement
to be given by either party shall be sufficiently given for purposes of this
Option Agreement if sent by first-class mail, postage prepaid, delivered by hand
or overnight internationally recognized courier or sent by facsimile with
confirmation of sending, addressed as follows:
(i) if to NDA, addressed to:
000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile Number: (000) 000-0000
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with a copy to:
Xxxxx X. Xxxxxxxx, Esq.
Xxxxxxx, Lippe, Goldstein, Wolf
Xxxxxxxxx & Sazer, P.C.
000 Xxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
Facsimile Number: (000) 000-0000
(ii) if to UniHolding, addressed to:
Xx. Xxxx Hoekfelt, Chief Operating Officer
UniHolding Corp.
00 xxxxx xx Xxxxxxxx
XX 0000 Xxxxxx
Xxxxxxxxxxx
or at such other address as shall be furnished in writing to the other parties
as set forth herein. All notices, opinions and other communications provided
for in this Agreement shall, unless submitted in the English language, be
accompanied by a certified English language translation thereof.
SECTION 5.03. ASSIGNMENT; SUCCESSORS. Neither party may assign its
rights under this Option Agreement without the prior written consent of the
other party. This Option Agreement shall be binding upon and shall inure to
the benefit of the successors and permitted assigns of the parties hereto. It
is understood and agreed that, unless prior thereto NDA otherwise consents in
writing, this Option shall not be valid if a majority of either voting control
or economic interest pertaining to the outstanding shares of UniHolding shall
have been transferred to a competitor of NDA. It is further understood and
agreed that, unless prior thereto NDA otherwise consents in writing, under no
circumstances may the shares of NDA issuable pursuant to this Option be
assigned or transferred to a competitor of NDA, and NDA shall not be obligated
to register such a transfer.
SECTION 5.05. HEADINGS. The Section headings herein are for
convenience only, are not part of this Option Agreement and shall not affect
the interpretation hereof.
SECTION 5.06. COUNTERPARTS. This Option Agreement may be executed in
any number of counterparts, each of which shall for all purposes be deemed to
be an original and all of which together shall constitute but one and the same
instrument.
SECTION 5.07. SEVERABILITY. If any provision of this Option Agreement
is found to be illegal or invalid for any reason, the
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remaining provisions of this Option Agreement shall remain in full force and
effect.
SECTION 5.08. ENFORCEMENT OF AGREEMENT. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Option Agreement were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent breach of this Option
Agreement and to enforce specifically the terms and provisions hereof in any
Federal or State court located in Nassau County, New York, this being in
addition to any other remedy to which they are entitled at law or in equity.
SECTION 5.09. GOVERNING LAW. This Agreement shall be construed and
enforced in accordance with, and governed by, the laws of the State of New
York, except where by its terms the General Corporation Law of Delaware
applies, regardless of the jurisdiction of creation or domicile of NDA or its
successors or of UniHolding or its successors (without giving effect to the
choice of laws principles of such States). Each party hereby consents to the
exclusive jurisdiction of the courts of the State of New York in Nassau County
and the United States District Court for the Eastern District of New York in
connection with any action arising out of the matters covered hereby and any
litigation commenced by any party arising from the transactions provided for
hereby or relating hereto shall only be commenced in such courts.
Notwithstanding the foregoing, NDA agrees that if UniHolding brings suit, and
its principal place of business has moved to another location in the United
States, NDA will consent to jurisdiction in the Federal and State Courts of the
location in that state that is then UniHolding's principal place of business.
Each party hereby irrevocably submits to the personal jurisdiction of the above
courts, irrevocably agrees not to interpose any defenses based on lack of
personal jurisdiction or forum non conveniens, and irrevocably agrees to
service of any process in connection with this agreement by certified or
registered mail, in addition to any other service permitted by law.
SECTION 5.10 TIME OF THE ESSENCE. It is understood that with respect
to the period during which UniHolding may exercise the Option, time shall be of
the essence.
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IN WITNESS WHEREOF, the parties hereto have caused this Option
Agreement to be duly executed, all as of the day and year first written above.
NDA CLINICAL TRIAL SERVICES, INC.
By: /s/ Xxxxx Xxxxxxx
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UNIHOLDING CORP.
By: /s/ Xxxxxxx Xxxxx
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