SHARE EXCHANGE AGREEMENT
BY AND BETWEEN
UNIHOLDING CORPORATION
AND
GLOBAL UNILABS CLINICAL TRIALS LIMITED
AGREEMENT made this 23rd day of July, 1996, by and between UniHolding
Corporation, a Delaware corporation ("Seller" or "UniHolding"), with its
principal place of business at 96 Spring Street, 8th Floor, New York, NY 10012
and Global Unilabs Clinical Trials Limited, a British Virgin Islands corporation
("Buyer" or "GUCT"), with its principal place of business located at 207-208
Neptune House, Marina Bay, Gibraltar.
WITNESSETH:
WHEREAS, Seller is engaged in the business of providing clinical trials
testing to the pharmaceutical industry through its wholly-owned subsidiaries
Unilabs Clinical Trials Limited ("UCT") and Pharmasoft SA ("Pharmasoft") in
cooperation with NDA Clinical Trial Services, Inc., a Delaware corporation
("NDA") of which the Seller owns a 17% minority interest, in addition to an
option to purchase an additional 13% thereof pursuant to the Stock Purchase
Agreement and Option Agreement between NDA and UniHolding dated October 16, 1995
(the "NDA Interest") (together known as the "Clinical Trials Business"
hereinafter).
WHEREAS, the parties have reached an understanding with respect to the sale
and purchase of all the outstanding assets of the Clinical Trials Business
(hereinafter defined) of UniHolding in exchange for all the outstanding stock of
GUCT;
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
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 SALE AND PURCHASE OF BUSINESS ASSETS
1.1 Purchase and Sale. Subject to the terms and conditions of this
Agreement, Buyer, in reliance upon the representations and warranties of Seller
made herein, will at the Closing (hereinafter defined), acquire from Seller, and
Seller, in reliance upon the representations and warranties of Buyer made
herein, will at the Closing transfer, convey, assign and deliver to Buyer, all
of Seller's right, title and interest in and to the assets, properties and
business of Seller, whether tangible or intangible, wherever located, including
claims and rights under contracts, all books and records relating to the assets
and property being conveyed, transferred and assigned hereunder, which are used
exclusively in connection with the conduct of the Clinical Trials Business
(collectively, the "Assets"), including without limitation, the following:
(a) all the Seller's rights, title and interests in Unilabs Clinical Trials
Ltd., a United Kingdom corporation and wholly-owned subsidiary of the
Seller ("UCT"), including all the outstanding stock of UCT, 500,000
ordinary registered shares par value (pound)1 per share fully paid and
non-assessable duly endorsed.
(b) all the Seller's rights, title and interests in Pharmasoft Limited, a
Switzerland corporation and wholly-owned subsidiary of the Seller
("Pharmasoft"), including all the outstanding stock of the Pharmasoft, 250
bearer shares par value Swiss Franc 1,000 per share fully paid and
non-assessable duly endorsed.
(c) all rights, title and interests under the agreements and contracts of
whatever nature and all other property and rights of every kind and nature
owned or held by Seller in relation to its present 17% interest in NDA.
in exchange for capital stock of Buyer, as more fully described in paragraphs
1.3 and 3.6.
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, commencing at 10 a.m. on the 23rd day of July, 1996 or at
such other time and/or place as the parties may mutually agree (the "Closing
Date").
1.3 Purchase Price. Immediately after the execution of this Agreement,
Buyer shall issue to Seller or its nominees, 217,000 shares of $0.64 par value,
fully paid, and non-assessable voting shares of the Buyer (the "GUCT Shares") in
exchange for the Assets. If Buyer effects a stock split, stock dividend, reverse
stock split, spin-off, or similar change in its capital structure between the
date of this Agreement and the Closing Date, there shall be an equitable
adjustment to the number of shares to be issued in accordance with the terms of
this paragraph to reflect such change or changes.
1.4 Instruments of Transfer. On the Closing Date, both the Seller and the
Buyer shall deliver duly executed instruments of transfer and assignment of the
Assets and the GUCT Shares sufficient to vest in each respective party the
interests in the Assets and the GUCT Shares being conveyed in accordance with
the terms of this Agreement.
1.5 Payment of Taxes and Other Charges. Buyer shall pay, at the Closing or,
if due thereafter promptly when due, all transfer taxes, sales taxes, stamp
taxes, and any other taxes (other than income taxes payable by Seller) payable
in connection with the transactions contemplated hereby.
1.6 Assumption. Buyer understands and agrees that, from and after the
Closing, except as specifically provided in paragraphs 1.6 and 1.7 hereof to the
contrary, neither Seller or any of its affiliates shall have any liability or
responsibility for any liability or obligation of or arising out of or relating
to the Assets or the Clinical Trials Business of whatever kind or nature,
whether contingent or absolute, whether arising prior to or on or after, and
whether determined or indeterminable on, the Closing Date, and whether or not
specifically referred to in this Agreement (such liabilities and obligations,
except as set forth in paragraphs 1.4 and 1.7 hereof, being collectively
referred to as the "Liabilities"). Accordingly, Buyer agrees that, effective
upon the Closing, Buyer shall assume and shall thereafter pay, perform, and
discharge and, effective as of the Closing, Buyer does hereby assume the
Liabilities, and further agrees that it shall indemnify Seller and its
affiliates and hold each of them harmless against any liability, loss, damage,
claim, cost or expense (collectively a "Loss") incurred or suffered by any of
them arising out of (i) any of the Liabilities or (ii) any breach by Buyer or,
or failure by Buyer to comply with, any of the provisions of this Agreement.
1.7 Exceptions. The following are excluded from the assumptions of
liabilities provided for in the preceding paragraph:
(i) Income and Franchise Tax. Any liability for the payment of accrued and
unpaid federal income taxes or franchise taxes of Seller for the period
from May 31, 1995 to the Closing Date, except any tax whatsoever which
could be imputed in relation to the present Agreement;
(ii) Undisclosed Liabilities. Buyer is not acquiring, directly or
indirectly, any liability which is not fully disclosed to it. For purposes
of this Agreement, the liabilities disclosed to Buyer shall be those which
are reflected in or reserved against Seller's balance sheets, books of
accounts, and records, as well as contingent liabilities and pending claims
as more fully set forth on a Disclosure Schedule attached hereto and
incorporated herein by reference.
(iii) Assurance. Seller warrants and represents that Buyer will not at any
time suffer any liability in respect of the foregoing liabilities not
assumed by Buyer.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to the Buyer as follows:
2.1 Corporate Organization. Seller 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 execute, deliver and perform this
Agreement and to consummate the transactions contemplated hereby.
2.2 Financial Statements. Seller has delivered to Buyer unaudited balance
sheet information and a statement of operations for UCT and Pharmasoft for the
year ended May 31, 1995 and unaudited balance sheet and operating information
for the quarters ended August 31, 1995, November 30, 1995 and February 29, 1996
(collectively, the "Financial Statements"). The Financial Statements fairly
present the net assets and results of operations of UCT and Pharmasoft as of
such corresponding dates in accordance with United States generally accepted
accounting principles. Further, Seller has delivered to Buyer unaudited balance
sheet information and a statement of operations of NDA as of December 31, 1995.
Seller does not take any responsibility for the contents or representations made
within the financial statements of NDA.
2.3 Absence of Certain Changes or Events. Except as set forth in the
attached Disclosure Schedule, since the date of the Financial Statements,
neither the Clinical Trials Business nor Seller on behalf of the Clinical Trials
Business has (a) suffered any damage, destruction or casualty loss to its
physical properties materially and adversely affecting the business or financial
condition of the Clinical Trials Business; (b) incurred or discharged any
obligation or liability except in the ordinary course of business and except
obligations or liabilities that are not individually or in the aggregate
material to the business or financial condition of the Clinical Trials Business;
or (c) entered into any transaction not in the ordinary course of its business
except as permitted in or contemplated by other sections of this Agreement.
2.4 Contracts. The Disclosure Schedule, attached hereto and incorporated
herein by reference, contains a list of each contract, agreement or
understanding (including each governmental license, permit or other governmental
authorization) whether written or oral (including any and all amendments
thereto) to which Seller or the Clinical Trials Business is a party, or to which
either of them may be bound, which relates to the ownership of the Assets or the
conduct of the business of the Clinical Trials Business (collectively, the
"Contracts") and which is material to the business or financial condition of the
Clinical Trials Business. Except as disclosed in the Disclosure Schedule, to
Seller's knowledge, Seller is not in default under any of the Contracts, which
default would have a material adverse effect on the business or financial
condition of the Clinical Trials Business.
2.5 Consents. Seller will use its best efforts, and will cooperate with
Buyer, to secure all necessary consents, approvals, authorizations, exemptions
and waivers from third parties as shall be required in order to enable Seller 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.
2.6 Litigation. No suit, action, or legal, administrative, arbitration, or
other proceeding or governmental investigation is pending, or to Seller's
knowledge is threatened against Seller or Seller's Assets, which might
materially or adversely affect Seller's financial condition or the conduct of
Seller's business. There is no outstanding judgment, decree, or order against
Seller which affects Seller in any way.
2.7 Compliance with Laws. Except as set forth in the Disclosure Schedule,
to Seller's knowledge, the Clinical Trials Business, or Seller on behalf of the
Clinical Trials Business, is in compliance with all laws, rules, regulations and
orders applicable to its business (including without limitation, those relating
to occupational safety and health and equal opportunity employment practices)
except where the failure to comply therewith does not have a material adverse
effect on the business or financial condition of the Clinical Trials Business.
2.8 Corporate Power and Authority; Effect of Agreement. The execution,
delivery and performance by Seller of this Agreement and the consummation by
Seller of the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Seller. This Agreement has been duly
and validly executed and delivered by Seller and constitutes a valid and binding
obligation of Seller, enforceable in accordance with its terms, subject to (a)
applicable bankruptcy, insolvency or other similar laws relating to creditors'
rights generally, and (b) general principles of equity. The execution, delivery
and performance by Seller of this Agreement and the consummation by Seller 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 Seller, 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 Seller or any agreement or other instrument to
which Seller is a party or by which Seller 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.
2.9 Representation and Warranties. No representation or warranty by Seller
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 Seller 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.
2.10 Registration under the Exchange Act. After execution of this
Agreement, should the Seller desire to register the GUCT Shares under the
Securities Act of 1933, as amended (the "Securities Act") and the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), Buyer shall cooperate
with Seller in furnishing all information necessary and relevant to the
preparation and filing of such documentation.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BUYER
3.1 Corporate Organization. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the British Virgin Islands 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 Buyer of this Agreement and the consummation by
Buyer of the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of
Buyer. This Agreement has been duly and validly executed and delivered by Buyer
and constitutes the valid and binding obligation of Buyer, enforceable in
accordance with its terms, subject to (a) applicable bankruptcy, insolvency or
other similar laws relating to creditors' rights generally, and (b) general
principles of equity. The execution, delivery and performance by Buyer of this
Agreement and the consummation by Buyer 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
Buyer 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 Buyer, or any agreement or other instrument to which Buyer
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 Buyer's knowledge, the Buyer is in compliance
with all laws, rules, regulations and orders applicable to its business
(including without limitation, those relating to occupational safety and health
and equal opportunity employment practices) except where the failure to comply
therewith does not have a material adverse effect on the business or financial
condition of the Buyer.
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 Buyer of this Agreement or the
taking of any other action contemplated hereby, excluding, however, consents,
approvals authorizations, exemptions, waivers and filing, if any, which Seller
is required to make.
3.5 Litigation. No suit, action, or legal, administrative, arbitration, or
other proceeding or governmental investigation is pending, or to Buyer's
knowledge is threatened against Buyer, which might materially or adversely
affect Buyer's financial condition or the conduct of Buyer's business. There is
no outstanding judgment, decree, or order against Buyer which affects Buyer in
any way.
3.6 Stock. The aggregate number of Buyer's shares consists of 250,000
ordinary registered shares, par value $0.64 each (the "GUCT Common Stock"), of
which 2 registered shares were issued and outstanding prior to the Closing of
this Agreement. There are no outstanding options, rights, or warrants entitling
the holder thereof to purchase shares of Buyer or any securities which are
convertible into or exchangeable for such shares. In accordance with paragraph
1.3, Buyer shall issue and deliver 217,000 ordinary registered shares to the
Seller or its nominee per its instructions at the Closing Date or at a date
thereafter mutually agreeable to the parties.
3.7 Registration under the Securities Act. If Buyer shall forthwith file
with the Securities and Exchange Commission and appropriate state agencies a
registration statement under the Securities Act, Buyer shall register the shares
issued hereunder, and take all other necessary action to validate the
registration of such shares. The Buyer shall pay all fees and expenses incurred
by its counsel and accountants, printing and blue sky costs, filing and
registration fees, and expenses and commissions of underwriters, if applicable.
3.8 Registration under the Exchange Act. In accordance with paragraph 2.10,
if Seller elects to register the GUCT Shares, Buyer recognizes it will have a
duty to file corporate updates to its registration as a issuer with the
Securities and Exchange Commission pursuant to the rules and regulations of the
Exchange Act, specifically Section 12(g).
3.9 Compliance with Securities Laws. To the best of Buyer's knowledge,
neither Buyer nor any officer, director, affiliate, or controlling person of
Seller 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.
3.10 Inspection and Value. Buyer has formed its own opinion as to the value
of Seller's Assets being purchased hereunder. The parties agree that Seller's
warranties include only the express written warranties that are contained in
this Agreement. Seller hereby disclaims all implied warranties. The parties
acknowledge that Buyer has inspected such Assets to the full extent of Buyer's
desire, and Seller has given Buyer ample opportunity to conduct such
inspections. Buyer recognizes that the success of the business in which Seller's
Assets will be utilized is dependent upon Buyer's skills and ability in the
industry.
3.11 Assumption of Business Contracts. Buyer shall assume the
responsibility for the performance of any contract, agreement or commitment
involving Seller as disclosed in the Disclosure Schedule. However, Buyer shall
have no responsibility to perform any such activities to the extent contracted
for by Seller between the date of this Agreement and the Closing without Buyer's
consent. Buyer shall indemnify and hold Seller harmless from all claims, loss,
or liability arising out of Buyer's performance or failure to perform under any
such contract, agreement or commitment.
3.12 Representation and Warranties. No representation or warranty by Buyer
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 Buyer 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
COVENANTS OF SELLER
Seller hereby covenants and agrees with Buyer as follows:
4.1 Seller's Cooperation. Seller will use its best efforts, and will
cooperate with Buyer, to secure all necessary consents, approvals,
authorization, exemptions and waivers from third parties as shall be required in
order to enable Seller to effect the transactions contemplated hereby and will
otherwise use its best efforts to cause the consummation of such transactions in
accordance with the terms and conditions hereof.
Further Seller shall furnish correct and complete information, including
financial statements, data and other documents Buyer shall reasonably request.
4.2 Conduct of Business. Seller covenants with Buyer that pending the
Closing:
(a) The Clinical Trials Business will be conducted its business only in the
ordinary course and use its best efforts to preserve the business
organization of the Clinical Trials Business intact.
(b) No dividend or other distribution or payment will be declared or paid
with respect to UCT or Pharmasoft's outstanding shares, and it will not
redeem, purchase, or otherwise acquire such shares.
(c) The Clinical Trials Business will make no changes in any of its
contracts or commitments, except those that occur in the ordinary course of
business.
(d) The Clinical Trials Business will make no new contracts or commitments,
except contracts in the ordinary course of business for the purchase of
merchandise, materials, and supplies.
(e) The Seller will use its best efforts to preserve the Clinical Trials
Business's relationships with its material lenders, suppliers, customers,
licensors and licensees and others having material business dealings with
it such that its business will not be substantially impaired.
4.3 Additional documents. Seller shall, at any one or more times after the
Closing Date, upon Buyer's request, execute, acknowledge, and deliver all
further deeds, assignments, transfers, conveyances, powers of attorney, and
assurances that are required for the better assigning, transferring, granting,
conveying, assuring, and confirming to Buyer, or to its successors and assigns,
or for aiding and assisting in collecting and reducing to possession, any of or
all the assets and properties to be conveyed, to Buyer, and any of or all the
obligations of Seller to be assigned to, and assumed, paid, performed and
discharged by, Buyer.
ARTICLE 5
COVENANTS OF BUYER
Buyer hereby covenants and agrees with Seller as follows:
5.1 Buyer's Cooperation. Buyer will furnish Seller correct and complete
information, including financial statements, data and other documents Seller
shall reasonably request for inclusion as required in certain filings with the
Securities and Exchange Commission and the National Association of Securities
Dealers in order to fully effect the distribution to its shareholders of the
GUCT Common Stock.
Further, Buyer will use its best efforts, and will cooperate with Seller,
to secure all necessary consents, approvals, authorizations, exemptions and
waivers from third parties as shall be required in order to enable Buyer to
effect the transactions contemplated hereby, and will otherwise use its best
efforts to cause the consummation of such transactions in accordance with the
terms and conditions hereof.
5.2 Buyer's Knowledge of Business; Seller's Representations Modified by
Buyer's Knowledge. To the knowledge of Buyer, Seller's representations and
warranties made in this Agreement are true and correct. Buyer hereby agrees
that, to the extent any representation or warranty of Seller made herein is, to
the knowledge of Buyer acquired prior to the Closing, untrue or incorrect, if
Buyer elects to close, (i) Buyer shall have no rights under this Agreement by
reason of such untruth or inaccuracy, and (ii) any such representation or
warranty by Seller shall be deemed to be amended to the extent necessary to
render it consistent with such knowledge of Buyer.
Further, Buyer acknowledges that the success of the business in which
Seller's Assets will be utilized is solely dependent upon Buyer's skills and
ability in the industry.
5.3 Contracts. Buyer shall undertake the responsibility for the performance
of any contract, agreement or commitment involving Seller as disclosed in the
Disclosure Schedule. However, Buyer shall have no responsibility to perform any
such activities to the extent contracted for by Seller between the date of this
Agreement and the Closing without Buyer's consent. Buyer shall indemnify and
hold Seller harmless from all claims, loss, or liability arising out of Buyer's
performance or failure to perform under any such contract, agreement or
commitment.
5.4 Additional documents. Buyer shall, at any one or more times after the
Closing Date, upon Seller's request, execute, acknowledge, and deliver all
further instruments or documents and
take all such further action as Seller may reasonably request in order to
evidence the consummation of the transactions contemplated hereby.
ARTICLE 6
MUTUAL COVENANTS OF BUYER AND SELLER
6.1 Confidentiality. Buyer and Seller mutually acknowledge that, pursuant
to their respective rights to inspect the other's books, accounts and records,
they may become privy to the other's confidential information, and that
communication of such confidential information to third parties could damage the
other's business after the transaction is completed. Buyer and Seller therefore
mutually agree to take reasonable steps to insure that such information about
the other, obtained by Buyer or Seller respectively, or any of their respective
employees, officers, agents, attorneys, or other accredited representatives,
shall remain confidential and not be disclosed or revealed to outside sources.
"Confidential information" includes information not ordinarily known by non
company personnel, including customer lists, supplier lists, trade secrets,
pricing policy and records, and all other information normally understood to be
confidential or otherwise designated as such by Seller or Buyer respectively.
6.2 Taxes.
(a) In accordance with paragraph 1.6 and 1.7 herein above, Seller shall be
liable for all income and franchise taxes payable as a result of the
operations of the Clinical Trials Business prior to Closing. Buyer shall be
liable for all income and franchise taxes payable as a result of the
operations of the Clinical Trials Business from and after the Closing.
(b) After the Closing Date, Buyer and Seller shall make available to the
other, as reasonably requested, and to any taxing authority, all
information, records or documents relating to tax liabilities or potential
tax liabilities of or relating to the Clinical Trials Business for all
periods prior to or including the Closing Date and shall preserve all such
information, records and documents until the expiration of any applicable
statute of limitations or extensions thereof. Buyer shall prepare and
provide to Seller any federal, state, local or foreign tax information
package requested by Seller for Seller's use in preparing its tax returns.
Such tax information packages shall be completed by Buyer and provided to
Seller within a reasonable time upon request after the Closing. Each party
shall bear its own expense in complying with the foregoing provisions.
(c) Buyer shall promptly notify Seller in writing upon receipt by Buyer,
any affiliate of Buyer or the Clinical Trials Business of notice of any
pending or threatened federal, state, or local or foreign income or
franchise tax audits or assessments of or relating to the Clinical Trials
Business for taxable periods ending prior to or including the Closing Date.
Seller shall have the sole right to represent the Clinical Trials
Business's interests in any tax audit or administrative or court proceeding
relating to taxable periods for which Seller is responsible for the payment
of taxes, and to employ counsel of its choice at its expense. Buyer agrees
that it will cooperate fully with Seller and its counsel in the defense
against or compromise of any claim in any said proceeding.
6.3 Access to records. Before the Closing Date, the parties' officers and
accredited representatives shall each have full access to the properties, books,
accounts, and records of every kind, and each will furnish the other with all
additional financial and operating data and other information as to its business
and properties that is from time to time reasonably requested. Each party shall
authorize and direct its respective independent auditors to make available to
the other party any information, including access to work papers, requested by
such party.
ARTICLE 7
CONDITIONS TO SELLER'S OBLIGATIONS
The obligations of Seller to sell the Assets shall be subject to the
satisfaction (or waiver) on or prior to the Closing Date of all the following
conditions:
7.1 Representations and Warranties. All Buyer's representations and
warranties contained in this Agreement shall be true in all material respects as
of and at the Closing. Seller shall have received a certificate of Buyer, from
an authorized officer thereof, certifying the following as to the Buyer and its
operations:
(i) Buyer is a corporation duly organized and existing in good standing
under the laws of the British Virgin Islands and is duly qualified to do
business in that country.
(ii) Buyer has full power and authority to make, execute, deliver, and
perform this Agreement; all corporate and other proceedings required to be
taken by Buyer, its directors and shareholders to authorize Buyer to enter
into and carry out this Agreement and the transaction contemplated hereby
have been duly and properly taken; this Agreement constitutes a valid
obligation binding upon Buyer in accordance with its terms, and Buyer is
and has the corporate power to conduct the type of business presently
conducted by Seller.
(iii) The execution, delivery, and consummation of this Agreement do not
conflict with result in breach of, or constitute a default under, Buyer's
Articles of Incorporation or By-laws, or other similar charter documents of
Buyer, or any material agreement or instrument of which such counsel has
knowledge and to which Buyer is a party or by which it is bound.
(iv) The authorized officer does not know of any litigation proceeding or
governmental investigation pending or threatened against or relating to
Buyer which would adversely affect in any way the business of Buyer.
(v) At the Closing, Seller or its nominees shall be issued capital stock of
the Buyer, GUCT, in the amount of 217,000 shares, par value $0.64 in
denominations, amounts and names requested by Seller. Subsequent to the
Closing, Buyer shall cooperate with Seller upon Seller's request, to
execute all further transfers and conveyances that are required for better
transferring, granting, conveying assuring and confirming to Seller, or to
its successors and assigns, or for aiding and assisting in collecting and
reducing to possession, any or all the shares to be conveyed to Seller or
its nominees.
(vi) Buyer has complied with all applicable statutes, the provisions of its
Certificate of Incorporation and By-laws, or other similar charter
documents, and all other laws and regulations in all jurisdictions
applicable to the transaction contemplated to be performed by it hereunder,
including, but not limited to the federal securities laws in the United
States. Buyer acknowledges and agrees that it shall file with the SEC all
corporate updates to any registration under the Exchange Act filed by the
Seller on behalf of the Buyer as set out in paragraph 2.10.
7.2 Performance and Consent. Buyer shall have performed and complied with
all its agreements, terms and conditions under this Agreement on or before the
Closing, including, but not limited to, the execution of all necessary consents,
approvals, authorizations, exemptions or waivers in regard to the issuance of
new securities of GUCT, the assumption of contracts and liabilities and the
compliance with federal securities laws in relation to mandatory filings.
7.3 Bankruptcy or Similar. Buyer shall not be in bankruptcy or similar
proceedings.
ARTICLE 8
CONDITIONS TO BUYER'S OBLIGATIONS
The obligations of Buyer to purchaser the Assets and assume the Liabilities
of Seller shall be subject to the satisfaction (or waiver) on or prior to the
Closing Date of all the following conditions.
8.1 Representations and Warranties. All Seller's representations and
warranties contained in this Agreement shall be true in all material respects as
of and at the Closing Date with the same effect as if they had been made on and
as of Closing, except as otherwise contemplated or specifically permitted by the
terms hereof. Buyer shall have received a certificate of Seller, from an
authorized officer thereof, certifying as to the following as to the Seller and
its operations:
(i) Seller is a corporation duly organized and existing in good standing
under the laws of the State of Delaware, has full corporate power to own or
sell its assets and to conduct its business, and is duly qualified to do
business in that state.
(ii) Seller has full power and authority to make, execute, deliver, and
perform this Agreement; all corporate and other proceedings required to be
taken by Seller, its directors and shareholders to authorize Seller to
enter into and carry out this Agreement and the transaction contemplated
hereby have been duly and properly taken; this Agreement constitutes a
valid obligation binding upon Seller in accordance with its terms, and
Seller is and has the corporate power to conduct the type of business
presently conducted by Buyer.
(iii) The execution, delivery, and consummation of this Agreement do not
conflict with result in breach of, or constitute a default under, Seller's
Articles of Incorporation or By-laws, or any material agreement or
instrument of which such counsel has knowledge and to which Seller is a
party or by which it is bound.
(iv) At the Closing, Buyer shall receive good and marketable title to the
Assets being sold and transferred hereunder, free and clear of any
interests, encumbrances, subject only to matters expressly set forth herein
or in the Disclosure Schedule annexed hereto.
(v) The authorized officer does not know of any litigation proceeding or
governmental investigation pending or threatened against or relating to
Seller or the Assets which would adversely affect in any way the business
or Assets.
(vi) All corporate and other proceedings and actions and filings required
by this Agreement or by law or any rules or regulations promulgated
thereunder, to be taken by or on the part of the Seller, its board of
Directors or shareholders to authorize Seller to execute, deliver, and
perform its duties and obligations hereunder have been duly and validly
taken.
(vii) Seller has complied with all applicable statutes, the provisions of
its Certificate of Incorporation and By-laws, and all other laws and
regulations applicable to the transaction contemplated to be performed by
it hereunder, more specifically, the federal securities laws of the United
States.
8.2 Performance and Consent. Seller shall have performed and complied with
all its agreements, terms and conditions under this Agreement on or before the
Closing Date, including, but not limited to, the execution of all necessary
consents, approvals, authorizations, exemptions or waivers especially in regard
to the spin-off and subsequent registration of the Buyer, GUCT, under the
Exchange Act.
8.3 Bankruptcy or Similar. Seller shall not be in bankruptcy or similar
proceedings.
ARTICLE 9
MISCELLANEOUS
9.1 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.
9.2 Entire Agreement. This Agreement (including the Disclosure Schedule)
and those other documents annexed hereto, supersedes all prior agreements and
constitutes the sole understanding of the parties with respect to the subject
matter hereof. Matters disclosed by Seller or Buyer pursuant to any paragraph of
this Agreement shall be deemed to be disclosed with respect to all paragraphs of
this Agreement.
9.3 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, except
that Buyer may, at its election, assign this Agreement to any direct or indirect
wholly-owned subsidiary so long as the representations and warranties of Buyer
made herein are equally true of such assignee. Such assignee shall execute a
counterpart of this Agreement agreeing to be bound by the provision hereof as
"Buyer" and, if there is more than one assignee, agreeing to be jointly and
severally liable for all of the obligations of the assignor hereunder. If this
Agreement is assigned with such consent or pursuant to such exception, the terms
and conditions hereof shall be binding upon and shall inure to the benefit of
the parties hereto and their respective assigns; provided, however, that no
assignment of this Agreement or any of the rights or obligations hereof shall
relieve the assignor of its obligations under this Agreement.
9.4 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.
9.5 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.
9.6 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.
9.7 Expenses. Seller and Buyer 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.
9.8 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 Seller to : UniHolding Corporation
96 Spring Street, 8th Floor
New York, New York 10012
Attn: Melanie Stapp
with a copy to: UniHolding Corporation
c/o Unilabs SA
12, place de Cornavin
CH 1211 Geneva 1
Switzerland
Attn: Bruno Adam
if to Buyer to: Global Unilabs Clinical Trials Ltd.
207-208 Neptune House
Marina Bay
Gibraltar
Attn: Helen Beards
with a copy to: Unilabs Group Limited
207-208 Neptune House
Marina Bay
Gibraltar
Attn: Helen Beards
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.
9.9 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.
9.10 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, Seller
By: /s/ Edgard Zwirn
Title: Chairman
By: /s/ Bruno Adam
Title: Director
Attest:
By:/s/ Melanie Stapp
Name: Melanie Stapp
GLOBAL UNILABS CLINICAL TRIALS, Buyer
By: /s/ Alessandra Van Gemerden
Title: Director
By: /s/ Paul Hokfelt
Title: Director
Attest:
By:/s/ Melanie Stapp
Name: Melanie Stapp