Exhibit 10.3
Lock-Up Agreement between
Xxxxxx Xxxxx, Unilabs Holdings SA, UniHolding Corp.,
Unilabs Group Ltd., Unilabs SA and Union Bank of Switzerland,
dated April 14, 1997
LOCK-UP- AGREEMENT
between
1. Xx. Xxxxxx Xxxxx
and
2. Unilabs Holdings SA
and
3. UniHolding-Corp.
and
4. Unilabs Group Ltd.
and
5. Unilabs SA
and
6. Union Bank of Switzerland
regarding
Restriction on Sale of Bearer of Shares
and Listing of Registered Shares in Unilabs SA
and Maintenance of Control of Unilabs SA
This Agreement is made on April 14, 1997 by and between the following parties:
1. Xx. Xxxxxx Xxxxx, 00 Xxxxxx Xxxxxx, Xxxxxx XX 0XX, Xxxxxxx
and
2. Unilabs Holding SA , 55 Boulevard de Perolles, X.X. Xxx 000 0000 Xxxxxxxx
0, Xxxxxxxxxxx
and
3. UniHolding Corp., 00 Xxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000, X.X.X.
(hereinafter together with the parties
named under 1 and 2 collectively
referred to as the "Controlling Shareholders")
and
4. Unilabs Group Ltd., Road Town, Tortola, British Virgin Islands
(hereinafter referred to as "UGL")
and
3. Unilabs SA, Xxxxxx Xxxxx 00, 0000 Xxxxxx, Xxxxxxxxxxx
(hereinafter referred to as the "Company")
and
6. Union Bank of Switzerland, Xxxxxxxxxxxxxx 00, 0000 Xxxxxx, Xxxxxxxxxxx,
acting for itself and as agent for Banque Cantonale de Geneve, Bank Xxxxxx
Xxxx & Co. Ltd., Bank Xxxxxxx & Cie. and Pictet & Cie.
(hereinafter referred to as "UBS")
1
Introduction
a) Existing Capital Structure of Unilabs SA
As a result of the extraordinary general shareholders' meetings of the Company
held on February 24 and on April 10, 1997, the Company's share capital has been
restructured as follows.
(i) Split of the bearer shares of CHF 500 each in proportion of 1:12.5
The existing 16'000 bearer shares of a nominal value of CHF 500 each have
been split in the proportion 1:12-5 into 200'000 bearer shares of a nominal
value of CHF 40 each.
(ii) Creation of registered shares of a nominal value of CHF 20 each
Out of the 200'000 newly created bearer shares 60'000 bearer shares of a
nominal value of CHF 40 each have been converted into registered shares of
a nominal value of CHF 40 each. Subsequently, the 60'000 newly created
registered shares of a nominal value of CHF 40 each have been split in
proportion of 1:2 into 120'000 registered shares of a nominal value of CHF
20 each.
(iii) Ordinary share capital increase at the exclusion of subscription
rights of existing shareholders
The existing share capital of CHF 8 million has been increased by way of an
ordinary share increase through the issue of 40'000 new bearer shares of a
nominal value of CHF 40 each, resulting in a share capital increase of CHF
1.6 million to a nominal share capital of CHF 9.6 million. The newly issued
bearer shares have been paid for in their nominal amount of CHF 40 each,
i.e. CHF 1.6 million in the aggregate, by Frincana AG, Zurich, and they are
entitled to dividends as from June 1, 1996.
(iv) Creation of conditional share capital
A conditional share capital in the amount of CHF 480'000 has been
created for the purpose of implementing a management share option
plan.
b) Public Placement of Bearer Shares of Nominal Value of CHF 40 each
The board of directors of the Company has resolved to offer to the public
(i) the 40'000 newly issued bearer shares of a nominal value of CHF 40 each
resulting from the share capital increase, and (ii) 44'000 bearer shares of
a nominal value of CHF 40 each which are currently held by Unilabs Group
Ltd. and other shareholders of the Company. The public share offering will
be made by a banking syndicate consisting of Union Bank of Switzerland
2
("UBS"), Banque Cantonale de Geneve, Bank Xxxxxx Xxxx & Co. AG, Bank
Xxxxxxx & Cie. and Pictet & Cie. and lead managed by UBS on terms set in
the underwriting agreement between the Company and UBS (the "Underwriting
Agreement"). The offering price will be determined on April 24, 1997.
For purposes of (i) stabilizing the market for the Company's listed bearer
shares after the Company's public offering and (ii) maintaining the existing
shareholder control of the Company for a certain period of time, the parties
agree as follows:
1. Restriction on Transfer of Shares
Each of UGL and the Company agrees that for a period of 24 months from
April 25, 1997 it will not, directly or indirectly, offer, sell or contract
to sell or otherwise transfer the ownership of, or enter into any
transaction (including a derivative transaction) having an economic effect
similar to that of a sale of, or announce the offering of, any registered
shares and/or bearer shares of the Company as they are deposited with UBS
according to Section 4 or any securities which are convertible into or
exchangeable for, or otherwise represent a right to acquire, registered
shares and/or bearer shares of the Company without the prior written
consent of UBS.
2. Undertaking to Maintain Control
The Controlling Shareholders undertake to maintain for a period of two
years from April 25, 1997 their effective existing indirect control of the
Company, substantially as of the date of signing of this Agreement. In
particular, the Controlling Shareholders agree to maintain their
involvement in the corporate governance of the Company at the current
level, by representation on the Company's board of directors and in the
Company's management.
3. Undertaking not to List Registered Shares
UGL undertakes for a term of five years from the date of the initial listing of
the Company's bearer shares on the Swiss Exchange on April 25, 1997 not to list
or have listed the registered shares, or any bearer shares resulting from the
conversion of registered shares, of the Company on the Swiss Exchange or on any
other securities exchange in Switzerland and abroad. In the event UGL after
April 25, 1999 sells all or part of its registered shares to a third party
purchaser, UGL shall cause such purchaser to agree not to list or have listed
the registered shares of the Company until April 25, 2002 on the Swiss Exchange
or on any other securities exchange in Switzerland and abroad.
3
4. Deposit of Shares
To assure compliance of UGL with its obligations under Sections 1 to 3
above, UGL agrees to deposit by April 30, 1997 all of its shares, whether
in bearer or in registered form, held in the Company on a separate
securities deposit account with UBS. Such shares shall remain deposited on
such account for a period of two years from the date of the initial listing
of the Company's bearer shares on the Swiss Stock Exchange on April 25,
1997.
The obligations under this Section do not prevent UGL to pledge the
deposited shares in favor of third parties provided that they accept to
commit themselves according to Section 1.
The custody fees of UBS for the deposit of the bearer and registered shares
mentioned above shall not exceed CHF 4'000.- per year.
5. Condition Precedent
This Lock-up Agreement shall be subject to the Company and UBS having
executed the Underwriting Agreement.
6. Liquidated Damages
If any of the Controlling Shareholders or UGL violates in any material way
any of its obligations under Sections 1, 2 and 3 hereunder, and if the
occurrence of such violation has been confirmed by a special ad hoc
arbitration tribunal, as described below, UGL and UniHolding Corp. shall
each be jointly and severally liable to pay immediately to TIBS liquidated
damages in the amount of CHF 1 million. The payment of this penalty shall
not release UGL or UniHolding Corp. from their obligations hereunder and
UBS reserves the right to claim additional damages.
For the purpose of determining whether a material violation of any of the
terms of Section 1, 2 or 3 of this Agreement by the Controlling
Shareholders or UGL has occurred, the parties shall set-up an ad hoc
arbitration tribunal consisting of three arbitrators. Each of UGL and UBS
shall appoint one arbitrator who shall then agree on a chairman. If the
arbitrators fail to agree on a chairman, such chairman shall be appointed
by the Chamber of Commerce and Industry of Geneva. The arbitration tribunal
shall render its decision within three months from the date of its valid
constitution. The arbitration tribunal shall determine its own rules. The
seat of the arbitration tribunal shall be in Geneva and the proceedings
shall be conducted in the English language. The decision of the arbitration
tribunal shall be final and the parties waive all challenge of the decision
in accordance with Art. 192 of the Swiss Private International Law Statute.
4
7. Miscellaneous
7.1 Notices to be given under this Agreement shall be given in writing and sent
by mail, telefax or courier to the following addresses:
To Xxxxxx Xxxxx:
Xx. Xxxxxx Xxxxx
00 Xxxxxx Xxxxxx
Xxxxxx XX 0XX, Xxxxxxx
To UniHolding Corp.:
UniHolding Corp.
00 Xxxxxx Xxxxxx
Xxx Xxxx, X.X. 00000, XXX
To Unilabs Holdings SA, Unilabs Group Ltd. and Unilabs SA:
Unilabs SA
attn. Xx. Xxxxx Xxxxx/Mr. Xxxx Xxxxx
00, xxxxx Xxxxxxxx
0000 Xxxxxx, Xxxxxxxxxxx
Tel.: x00-00-000 77 77
Fax: x00-00-000 77 33
+41-22-909 77 07
To UBS :
Union Bank of Switzerland attn. Xx. Xxxxxxx Xxxxxxxxx/Xx. Xxxxxxxxxx Xxxxxx
Xxxxxxxxxxxxxx 00 0000 Xxxxxx, Xxxxxxxxxxx
Tel.: +41-1-234 88 48
Fax: +41-1-234 59 24
7.2 This Agreement shall be executed in six counterparts. Each party hereto
shall receive one original.
7.3 This Agreement shall be governed by Swiss law- Subject to the provision in
Section 7, all disputes arising out of or in connection with this Agreement
shall be submitted to the non-
5
exclusive jurisdiction of the ordinary courts of the Canton of Zurich,
venue being Zurich 1.
----------------------------------
Xxxxxx Xxxxx
----------------------------------
Unilabs Holdings SA
----------------------------------
UniHolding Corp.
----------------------------------
Unilabs Group Ltd.
----------------------------------
Unilabs SA
----------------------------------
Union Bank of Switzerland
6
