Exhibit 2.6
Underwriting Agreement between
Unilabs SA and Union Bank of Switzerland
dated April 24, 1997
Unilabs SA
INITIAL SHARE OFFERING - APRIL 1997
UNDERWRITING AGREEMENT
Between
UNILABS -SA, Xxxxxx Xxxxx 00, 0000 Xxxxxx, Xxxxxxxxxxx
hereinafter called the 'Company'
and
UNION-BANK OF SWITZERLAND, Xxxxxxxxxxxxxx 00, 0000 Xxxxxx, Xxxxxxxxxxx
hereinafter called 'UBS' acting for itself and as agent of a banking consortium
comprising the following banks:
Union Bank of Switzerland, Zurich
Banque Cantonale de Geneve, Geneva
Bank Xxxxxx Xxxx & Co. Ltd., Zurich
Bank Xxxxxxx & Cie, Basle
Pictet & Cie, Geneva
hereinafter collectively called the 'Banks'
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Preamble
a) Existing Capital Structure of the Company
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 capital 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 an aggregate 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 and
they are entitled to dividends as from June 1, 1996.
(vi) 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.
Accordingly, the Company's issued share capital amounts to CHF 9.6 million
and is composed of 120'000 registered shares of a nominal value of CHF 20
each and 180'000 bearer shares of a nominal value of CHF 40 each, and its
conditional share capital amounts to CHF 480'000.
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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
(1) 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 Unilabs SA. The public share offering will
be made by the Banks and lead managed by UBS. The offering price will be
determined on the basis of a "book-building" process.
The bearer shares with a par value of CHF 40 each shall be listed on the
Swiss Exchange, whereas the registered shares with a par value of CHF 20
each shall not be listed. In this connection, the Company and its current
direct and indirect major shareholders have, subject to certain
limitations, agreed in a separate lock-up agreement (i) not to sell or
otherwise transfer for a period of two years from the settlement date of
the public offering their registered shares and/or bearer shares which have
not been placed in the public offering, (ii) not to list the Company's
registered shares for a period of five years from the settlement date of
the public offering and (iii) to maintain for a period of two years from
the settlement date of the public offering their existing direct or
indirect effective control in the Company.
In accordance with a separate purchase agreement, the Company's 40'000
newly issued bearer shares have been sold to the Company at their nominal
value.
The sale of the 44'000 bearer shares of a nominal value of CHF 40 each by
existing shareholders to the Company is governed by separate purchase
agreements between existing shareholders and the Company.
In addition, for purposes of covering any difference between the number of
shares underwritten by the Banks and the number of shares allotted to
investors (over-allotment), UBS will have the right, subject to the terms
of this Agreement, to purchase from the Company up to 8'400 additional
bearer shares of the Company of a nominal value of CHF 40 each. To supply
the necessary number of bearer shares to UBS, the Company has entered into
a separate "green shoe option" agreement with its major shareholder,
Unilabs Group Ltd. Pursuant to the terms of such agreement, Unilabs Group
Ltd. has pledged and deposited 8'400 bearer shares of the Company of a
nominal value of CHF 40 each on a separate securities deposit account with
UBS.
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Article 1
Following a book-building; process pursuant to which the Banks from April 16
until April 24. 1997, 12.00 hours, have offered the bearer shares of the Company
to the public at a price ranging from CHF 625 to CHF 675, the Banks hereby
underwrite the following bearer shares of the Company (the "Shares"):
(i) 40'000 bearer shares of a nominal value of CHF 40 each, with dividend
entitlement as from June 1, 1996, resulting from the share capital
increase referred to under Clause a (iii) of the Preamble above; and
(ii) 44'000 bearer shares of a nominal value of CHF 40 each, with dividend
entitlement as from June 1, 1996, resulting from the sale by existing
shareholders to the Company.
The price at which the Banks underwrite the Shares shall amount to CHF 675 per
Share.
Article 2
The Banks undertake to sell the Shares to the public at a placement price of CHF
675 per Share.
The allocation of the Shares shall be made on April 24, 1997 jointly by the
Company and UBS, at their complete discretion, and shall be communicated to
investors on April 25, 1997. Payment of the shares shall be made by investors on
April 30, 1997, against delivery of the relevant shares (the "Settlement Date").
Article 3
In connection with the underwriting and placement of the Shares with the public
pursuant to Article 1 and 2 above, UBS shall do the following:
(i) On the Settlement Date of the public offering (as defined in Article 3
below) transfer the proceeds resulting from the issue and sale of the
40'000 new bearer shares of a nominal value of CHF 40 each in
accordance with Article 1 (1) above, reduced by the duties and fees
pursuant to Article 8 below, to a separate account of the Company to
be opened with UBS (the "Transaction Account");
(ii) On the Settlement Date of the public offering transfer the proceeds
resulting from the sale of 44'000 bearer shares of a nominal value of
CHF 40 each in accordance with Article 1 (ii), reduced by the duties
and fees pursuant to Article 8 below, to the Transaction Account; and
(iii) On the Settlement Date of the public offering transfer the proceeds
of the sale of any additional shares by UBS to the public in
accordance with Article 4 below (green shoe option), reduced by any
duties and fees in accordance with Article 8 below, to the
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Transaction Account.
Article 4
In connection with the public offering of the Shares, UBS as lead manager of the
Banks shall hove the right until May 23, 1997 to underwrite up to a maximum of
8'400 additional bearer shares of a nominal value of CHF 40 each, with dividend
entitlement as from June 1, 1996, at the placement price of CHF 675 per Share
for the purpose of covering any difference between the number of shares
underwritten by the Banks and the number of shares allotted to investors
(over-allotment).
To exercise its purchase right pursuant to this Article 4, UBS shall notify the
Company in writing of the number of shares it wishes to purchase as well as of
the aggregate purchase price to be paid. The purchase right is deemed to be
exercised on the day UBS dispatches the written notification to the Company. The
Company shall promptly upon exercise of the purchase right deliver the relevant
number of shares to UBS against payment of the purchase price. The 8'400
additional bearer shares have been pledged to UBS and are deposited on a
separate securities deposit account with UBS.
In the event that UBS until May 23, 1997 fails to exercise its purchase right
with respect to all of the bearer shares of a nominal value of CHF 40 each
subject to the option pursuant to this Article 4, the remaining shares shall be
released from the pledge and delivered to the Company according to separate
instructions.
Article 5
The Company shall prepare the listing prospectus (the "Prospectus") in
compliance with the prospectus requirements of Swiss law and the listing
regulations of the Swiss Exchange. The Prospectus shall be prepared in English.
A short form version of the Prospectus shall be prepared in German and French.
The Company shall furnish UBS with four signed copies of the Prospectus in
English as well as of the short form version of the Prospectus in German and
French.
UBS shall assist the Company in the preparation of the Prospectus. For this
purpose, the Company agrees to provide UBS with all the information necessary
or, in the opinion of UBS, appropriate to be included In the Prospectus. The
Company undertakes to fully comply with the regulations of the Swiss Exchange
applicable to the listing and the maintaining of the listing of its bearer
shares. In particular, the Company undertakes to publish on a timely basis all
information required to be published under the listing provisions regarding ad
hoc publicity.
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Article 6
The Company undertakes to place the Shares at UBS' disposal with SEGA
Schweizerische Effekten-Giro AG, Olten.
Article 7
The Company shall apply for the listing of all 180'000 bearer shares of a
nominal value of CHF 40 each on the Swiss Exchange and gives herewith the
mandate to UBS to prepare the necessary listing application. For this purpose,
the Company agrees to assist UBS in the preparation and the filing of the
listing application.
Article 8
The Company shall bear the following costs of this transaction:
(i) overall fee of 5% for the placing of the Shares, calculated on the
placement price of CHF 675 per Share;
(ii) Swiss Federal Capital Issue Tax of 2% on the proceeds of the sale of
the 40'000 newly issued bearer shares of a nominal value of CHF 40
each in accordance with Article l(i) above;
(iii) Swiss Federal Securities Transfer Tax. Cantonal Tax and the Stock
Exchange Duty, which in the aggregate presently amount to 0.18%,
levied on the placement price of CHF 675 per Share in accordance with
Article I hereinbefore; such taxes and duties will be deducted from
the net proceeds and UBS will effect the payment thereof to the
relevant authorities;
(iv) the costs incurred for the printing and the shipping of the share
certificates to SEGA Schweizerische Effekten-Giro AG in connection
with the public offering;
(v) all external costs incurred in connection with the production and
dispatch to the Banks of the necessary printed materials (excluding
translations) and the publication of notices, advertisements, etc. in
connection with the public offering;
(vi) the costs of translations incurred in connection with the printed
materials and publications mentioned in (v);
(vii) the costs incurred in connection with the listing of the Company's
bearer shares on the SWISS Exchange;
(viii) the costs of the presentations (road shows, etc.) regarding the
public offering in Zurich, Geneva, Base[, Frankfurt, London, Edinburgh
and other cities and of re-
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lated preparatory work and
(ix) all costs and fees relating to the underwriting by UBS to additional
bearer shares of a nominal value of CHF 40 each in accordance with
Art. 4 above, i.e.
- overall fee of 5% for the placing of the Shares, calculated on
the placement price of CHF 675 per Share;
- Swiss Federal Securities Transfer Tax, Cantonal Tax and Stock
Exchange Duty, which in the aggregate presently amount to 0.18%,
levied on the placement price of CHF 675 per Share. UBS will
deduct such costs directly from the placement proceeds and will
deliver the relevant amounts to the relevant tax authorities.
In addition, the Company will bear any further Taxes which could arise in
connection with the consummation of the transactions stipulated in this
Agreement. In such an event, payment to the relevant authorities will be
effected directly by the Company.
The Company will pay the overall fee to USS in accordance with Clause (I) above
with value date April 30, 1997 according to instructions given to the Company by
UBS. The taxes payable in accordance with Clauses (ii) and C(iii) above shall be
deducted by UBS from the proceeds of the issue and sale of the Company's bearer
shares value date April 3C, 1997. The costs specified in Clauses (iv) to (viii)
are payable on receipt of invoice.
The overall fee pursuant to Clause (ix) above shall be payable with value date
May 23, 1997 according to instructions given to the Company by UBS.
Article 9
The Company shall appoint UBS cs principal paying agent and the other Banks as
official paying agents in Switzerland (hereinafter called 'Paying Agents') for
the payment of dividends on its bearer shores with c par value of CHF 40 each.
The Company shall pay a paying agency commission in accordance with Convention
IX of the Swiss Bankers' Association.
With regard To the Company, the Paying Agents and banks responsible for
Implementing and executing paying agent services will be represented by USS. The
Company shall not appoint any other paying agents In Switzerland without prior
consultation with UBS.
All notices in connection with paying agent services for dividends shall be
issued by the Company and published at its expense.
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Article 10
Sales restrictions: U.S.A./U.S. persons
The Shares have not been and will not be registered under the United States
Securities Act of 1933 (the 'Securities Act') and may not be offered, sold or
delivered within the United States of America (the 'United States') or to U.S.
persons. Each of the syndicate members has agreed that it will not offer, sell
or deliver Shares within the United States or to U.S. persons. In addition), an
offer or sale of Shares Within the United States by any dealer (whether or not
participating in the offering) may violate the registration requirements of the
Securities Act.
The offering is not being made in the United States and offering materials with
respect to the offering may not be distributed or sent into the United States.
The rights described herein may be exercised only outside the United States.
The Shares may not be offered or sold in any country other than Switzerland or
to residents of any country other than Switzerland except in accordance with the
relevant applicable laws.
Article 11
For purposes of this Agreement, USS shall act as agent of the Banks in relation
to the Company.
The Banks shall participate in the rights and obligations arising from this
Agreement in the maximum percentages listed below. The Banks' liability shall be
individual and not joint and several.
Union Bank of Switzerland 60%
Banque Cantonale de Geneve 10%
Bank Xxxxxx Xxxx & Co. Ltd. 10%
Bank Scrosin & Cie 10%
Pictet & Cie 10%
----
Total 100%
Article 12
The Banks, jointly but not severally, reserve the right to withdraw from this
Agreement, it prior to the Settlement Date, events should occur in Switzerland
or elsewhere in the world, of a political, economic, financial, monetary or
other character which, in the opinion of the Banks,
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would be such as to jeopardize the success of the public share offering. Any
such decision of withdrawal by the Banks shall be final and binding upon the
Company. Should the Banks decide to withdraw from this Agreement, USS on behalf
of the Banks shall notify the Company forthwith by telex or fax, followed by
registered letter. In the event of such withdrawal, each party hereto shall pay
the expenses incurred by it in connection with this public share offering and no
party shall have any claim against the others with respect of such withdrawal.
Article 13
Notices to be given under this Agreement shall be given in writing and sent by
mail, telefax or courier to the following addresses:
To the Company
Unilabs SA
attn. Xx. Xxxxxx Xxxxx/Mr. Xxxx Xxxxx
00, xxxxx Xxxxxxxx
0000 Xxxxxx
Tel.: x00-00-000 77 35
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
Article 14
This Agreement is governed by Swiss law. The place of jurisdiction is Zurich 1.
This Agreement shall be executed in two counterparts and the contracting parties
shall each receive one original.
Each of the Banks shall receive a copy of this Agreement for its records.
Geneva, April 24,1997
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Unilabs SA
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Zurich, April 24, 1997
Union Bank of Switzerland
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