STOCK PURCHASE AGREEMENT
BY AND BETWEEN
UNIHOLDING CORPORATION
AND
UNILABS HOLDINGS SA
AGREEMENT made this day of August, 1996, by and between UniHolding
Corporation, a Delaware corporation ("UniHolding"), with its principal place of
business at 00 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000 and Unilabs Holdings
SA, a Panama corporation ("Holdings"), with its principal place of business
located 00xx Xxxxxx, Xxxxxxxxxxxx Xxxxxxx Xxxxx, Xxxxx Bank, 16th Floor, Panama.
WITNESSETH:
WHEREAS, Holdings owes to UniHolding an amount which as of August 31, 1995
was $2,938,439;
WHEREAS, such amount was primarily lent to Holdings in stages for the
purpose of providing interim financing;
WHEREAS, Holdings wishes to retain its cash resources and has offered
shares of UniHolding common stock in repayment of its loan;
WHEREAS, UniHolding has agreed to such repayment in the form of UniHolding
common stock;
NOW, THEREFORE, in consideration of the mutual covenants, representations
and warranties, and upon terms and subject to the conditions hereinafter set
forth, the parties do intend to be bound and hereby agree as follows:
ARTICLE 1. TERMS OF PURCHASE
1.1 Share Purchase. Subject to the terms and conditions set forth herein, at the
Closing (hereinafter defined) UniHolding, in reliance upon the representations
and warranties of Holdings, will acquire from Holdings, and Holdings, will
transfer, convey, and deliver to UniHolding, all of Holdings's right, title and
interest in 620,000 shares of UniHolding common stock, par value $0.01 per share
("Purchase Shares") as of the Closing.
1.2 The Closing. The closing of the transactions contemplated hereby (the
"Closing") shall take place at the offices of UniHolding, at its principal
offices in New York, or at such other time and/or place as the parties may
mutually agree, on the 31st day of August, 1995 (the "Closing Date").
1.3 Purchase Price. Immediately after the execution of this Agreement, Holdings
shall transfer or hold on behalf of UniHolding the Purchase Shares at a price of
$4.75 per share, totaling $2,945,000 in payment of the outstanding loan balance
between the parties. UniHolding and Holdings acknowledge that the price of $4.75
is the current bid market price, that it has been such since August 8, 1995, and
therefore it represents the best available valuation for such shares.
1.4 Instruments of Transfer. On the Closing Date, both the Holdings and the
UniHolding shall deliver duly executed instruments of transfer for the Purchase
Shares sufficient to vest the interests in the Purchase Shares being conveyed in
accordance with the terms of this Agreement. The transfer of such shares will be
made upon the request of UniHolding. Pending such request, which may be made in
one or more occurences, the Purchase Shares will remain under the custody of
Holdings, for the account and at the risk of UniHolding. While in the custody of
Holdings, the
Purchase Shares shall remain in Holdings' name if they are materialized by
physical certificates, or on Holdings' account if they are held in Depository
Trust Company.
ARTICLE 2. REPRESENTATIONS AND WARRANTIES OF HOLDINGS. Holdings represents and
warrants to the UniHolding as follows:
2.1 Corporate Organization. Holdings is a corporation duly organized, validly
existing and in good standing under the laws of Panama, and has the requisite
corporate power and authority to execute, deliver and perform this Agreement and
to consummate the transactions contemplated hereby.
2.2 Consents. Holdings will use its best efforts, and will cooperate with
UniHolding, to secure all necessary consents, approvals, authorizations, and
exemptions as shall be required in order to enable Holdings to effect the
transactions contemplated hereby and will otherwise use its best efforts to
cause the consummation of such transaction in accordance with the terms and
conditions hereof.
2.3 Compliance with Laws. To Holdings's knowledge, it is in compliance with all
laws, rules, regulations and orders applicable to its business except where the
failure to comply therewith does not have a material adverse effect on the
business or financial condition Holdings.
2.4 Compliance with Securities Laws. To the best of Holding's knowledge, neither
Holdings nor any officer, director, affiliate, or controlling person has
committed any violation, or been in any way in contravention, of any law, rule
or regulation governing transactions in securities, in connection with the
transactions herein.
2.5 Corporate Power and Authority; Effect of Agreement. The execution, delivery
and performance by Holdings of this Agreement and the consummation by Holdings
of the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Holdings. This Agreement has been duly
and validly executed and delivered by Holdings and constitutes a valid and
binding obligation of Holdings, enforceable in accordance with its terms. The
execution, delivery and performance by Holdings of this Agreement and the
consummation by Holdings of the transactions contemplated hereby will not, with
or without giving of notice or the lapse of time, or both, subject to obtaining
any required consents, approvals, authorizations, exemptions or waivers, (c)
violated any order, judgment or decree applicable to Holdings, or (d) conflict
with, or result in a breach or default under, any term or condition of the
Certificate of Incorporation or the By-laws of Holdings or any agreement or
other instrument to which Holdings is a party or by which Holdings may be bound;
except in each case, for violations, conflicts, breaches or defaults which in
the aggregate would not materially hinder or impair the consummation of the
transactions contemplated hereby.
2.6 Representation and Warranties. No representation or warranty by Holdings in
this Agreement or any documents provided hereunder contains or will contain any
untrue statement or omits or will omit to state any material fact necessary to
make the statements contained herein not misleading. All representations and
warranties made by Holdings in this Agreement and all documents provided
hereunder shall be true and correct as of the Closing Date with the same force
and effect as if they had been made on and as of such date.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF UNIHOLDING.
3.1 Corporate Organization. UniHolding is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
the requisite corporate power
and authority to carry on its business as it is now being conducted, and to
execute, deliver and perform this Agreement and to consummate the transactions
contemplated hereby.
3.2 Corporate Power and Authority; Effect of Agreement. The execution, delivery
and performance by UniHolding of this Agreement and the consummation by
UniHolding of the transactions contemplated hereby have been duly authorized by
all necessary corporate action on the part of UniHolding. This Agreement has
been duly and validly executed and delivered by UniHolding and constitutes the
valid and binding obligation of UniHolding, enforceable in accordance with its
terms. The execution, delivery and performance by UniHolding of this Agreement
and the consummation by UniHolding of the transactions contemplated hereby will
not, with or without the giving of notice or the lapse of time, or both, subject
to obtaining any required consents, approvals, authorizations, exemptions or
waivers, (c) violate any order, judgment or decree applicable to UniHolding or
(d) conflict with, or result in a breach or default under, any term or condition
of the Certificate of Incorporation, the By-laws or other similar charter
documents of UniHolding, or any agreement or other instrument to which
UniHolding or any of its subsidiaries is a party or by which any of them may be
bound; except, in each case, for violations, conflicts, breaches or defaults
which in the aggregate would not materially hinder or impair the consummation of
the transactions contemplated hereby.
3.3 Compliance with Laws. To UniHolding's knowledge, the UniHolding is in
compliance with all laws, rules, regulations and orders applicable to its
business except where the failure to comply therewith does not have a material
adverse effect on the business or financial condition of the UniHolding.
3.4 Consents. No consent, approval or authorization of, or exemption by, or
filing with, any governmental or regulatory authority is required in connection
with the execution, delivery and performance by UniHolding of this Agreement or
the taking of any other action contemplated hereby, excluding, however,
consents, approvals authorizations, exemptions, waivers and filing, if any,
which Holdings is required to make.
3.5 Compliance with Securities Laws. To the best of UniHolding's knowledge,
neither UniHolding nor any officer, director, affiliate, or controlling person
has committed any violation, or been in any way in contravention, of any law,
rule or regulation governing transactions in securities, in connection with the
transactions herein.
3.6 Representation and Warranties. No representation or warranty by UniHolding
in this Agreement or any documents provided hereunder contains or will contain
any untrue statement or omits or will omit to state any material fact necessary
to make the statements contained herein not misleading. All representations and
warranties made by UniHolding in this Agreement and all documents provided
hereunder shall be true and correct as of the Closing Date with the same force
and effect as if they had been made on and as of such date.
ARTICLE 4. MUTUAL COVENANTS OF HOLDINGS AND UNIHOLDING. Both parties hereby
covenants and agrees as follows:
4.1 Cooperation. Holdings and UniHolding will use their best efforts, and will
cooperate with each other, to secure all necessary consents, approvals,
authorization and exemptions as shall be required in order to enable Holdings to
effect the transactions contemplated hereby and will otherwise use their best
efforts to cause the consummation of such transactions in accordance with the
terms and conditions hereof.
4.2 Conduct of Business. Holdings covenants with UniHolding that pending the
Closing, Holdings will not sell or in any way impair the Purchase Shares.
4.3 Additional documents. Holdings and UniHolding shall, at any one or more
times after the Closing Date, upon request, execute, acknowledge, and deliver
all further instruments, transfers, conveyances, doucments, and assurances that
are required for the better assigning, transferring, granting, conveying,
assuring, and confirming to UniHolding, or to its successors and assigns, or for
aiding and assisting in collecting and reducing to possession the Purchase
Shares, to UniHolding.
ARTICLE 5. MISCELLANEOUS.
5.1 No Survival. The representations and warranties made in this Agreement or in
any certificate or other document delivered pursuant hereto or in connection
therewith and the covenants and agreements contained herein to be performed or
complied with at or prior to the Closing shall not survive the Closing. The
covenants and agreements contained herein to be performed or complied with after
the Closing shall survive without limitation as to time, unless the covenant or
agreement specifies a term, in which case such covenant or agreement shall
survive for a period of one year following the expiration of such specified term
and shall thereupon expire.
5.2 Entire Agreement. This Agreement supersedes all prior agreements and
constitutes the sole understanding of the parties with respect to the subject
matter hereof. Matters disclosed by Holdings or UniHolding pursuant to any
paragraph of this Agreement shall be deemed to be disclosed with respect to all
paragraphs of this Agreement.
5.3 Successors and Assigns. The terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective successors of the
parties hereto; provided, however, that this Agreement may not be assigned by
any party without prior written consent of the other party hereto.
5.4 Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall for all purposes be deemed to be an original and all of
which shall constitute the same instrument.
5.5 Headings. The headings of the Articles and paragraphs of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction hereof.
5.6 Modifications and Waivers. No amendment, modification or alteration of the
terms or provisions of this Agreement shall be binding unless the same shall be
in writing and duly executed by the parties hereto, except that any of the terms
or provisions of this Agreement may be waived in writing at any time by the
party which is entitled to the benefits of such waived terms or provisions. No
waiver of any of the provisions of this Agreement shall be deemed to or shall
constitute a waiver of any other provision hereof (whether or not similar). No
delay on the part of any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof.
5.7 Expenses. Holdings and UniHolding shall each pay all costs and expenses
incurred by it or on its behalf in connection with this Agreement and the
transaction contemplated hereby, including, without limiting the generality of
the foregoing, fees and expenses of its own financial consultants, accountants
and counsel.
5.8 Notices. Any notice, request, instruction or other document to be given
hereunder by either party hereto to the other party shall be in writing and
delivered personally or sent by registered or certified mail (or air mail when
applicable), postage prepaid,
if to UniHoldings to : UniHolding Corporation
00 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxx
with a copy to: UniHolding Corporation
c/o Unilabs SA
12, place de Xxxxxxxx
XX 0000 Xxxxxx 0
Xxxxxxxxxxx
Attn: Xxxxx Xxxx
if to Holdings:
with a copy to:
or at such other address for a party as shall be specified by like notice. Any
notice which is delivered personally in the manner provided herein shall be
deemed to have been duly given to the party to whom it is directed upon actual
receipt by such party. Any notice which is addressed and mailed in the manner
herein provided shall be conclusively presumed to have been duly given to the
party to which it is addressed at the close of business, local time of the
recipient, on the third day after the day it is so placed in the mail.
5.9 Governing Law. This Agreement shall be construed in accordance with and
governed by the laws of the state of Delaware. Each of the parties agrees to (i)
the irrevocable designation of the Secretary of State of Delaware as its agent
upon whom process against it may be served and (ii) personal jurisdiction in
any, action brought in any court, Federal or State, within Delaware having
subject matter jurisdiction arising under this Agreement.
5.10 Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective legal representatives,
successors and assigns.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed on its behalf as of the date first above written.
UNIHOLDING CORPORATION
By:/s/ Xxxxxx Xxxxx
Title: CEO and President
Attest:
By: /s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
UNILABS HOLDINGS SA, Panama
By:/s/ Xxxxx Xxxx
Title: Treasurer
Attest:
By:/s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
