EXHIBIT (2-2)
SHARE PURCHASE AGREEMENT
BETWEEN
Unilabs Group Limited, British Virgin Islands
and
Unilabs Management Company Limited, Gibraltar
as Sellers
AND
Cantonal Bank of Geneva, Switzerland
as Purchaser
Relating to 5% of the Shares in Unilabs SA
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This Share Purchase Agreement was entered into on February 6, 1997 between the
following parties:
1. Unilabs Group Limited, British Virgin Islands
(hereinafter referred to as "UGL")
and
Unilabs Management Company Limited, Gibraltar
(hereinafter referred to as "UMC")
of the first part
and
2. Cantonal Bank of Geneva, Switzerland
(hereinafter referred to as "Purchaser")
of the other part
Introduction
UGL is the majority shareholder of Unilabs SA, a Swiss corporation (the
"Company"), currently holding 79% of the Company's issued and outstanding share
capital.
UMC is a wholly-owned subsidiary of the Company currently holding 5% of the
Company's issued and outstanding share capital.
The Company intends to do an initial public offering ("IPO") by listing its
shares on the Swiss Stock Exchange. For purposes of preparing the IPO, the
Purchaser is prepared to buy an equity interest in the Company.
The Company accepts that the Purchaser will have the right but not the
obligation to act as co-lead manager in the IPO, subject to agreement of Union
Bank of Switzerland, the designated leadmanager.
Based on the foregoing, the Parties agree as follows:
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1. Sale and Purchase of Shares
UMC agrees to sell to the Purchaser and the Purchaser agrees to buy
from UMC 800 bearer shares of the Company with a nominal value of Sfrs.
500.-- each, representing 5.0% of the total of the issued and
outstanding share capital of the Company.
The 800 shares to be sold to the Purchaser are hereinafter
referred to as the "Shares."
2. Purchase Price
The purchase price for the Shares shall be Sfrs. [Confidential Portion]
per share, representing Sfrs. [Confidential Portion] in the aggregate
(the "Purchase Price"). The Purchase Price shall be payable at the
Closing (as defined under Section 3.1 below) by wire transfer to the
account to be designated by UMC and against delivery of the Shares.
3. Closing
3.1 Closing Date of Transaction
The sale and purchase of the Shares shall be consummated at the offices
of the Purchaser or at such other place as the Parties may agree, on
February 6, 1997 (the "Closing Date").
3.2 Conditions Precedent
The sale and purchase of the Shares contemplated herein shall be
subject to the following conditions being met on or before February 6,
1997:
a) Approval: Approval of the purchase of the Shares by the
General Management of the Purchaser.
b) Board Approvals: Approval of the purchase of the Shares
by the boards of directors of UGL and UMC.
4. Representations and Warranties of Seller and Company
UGL and UMC hereby represent and warrant to the Purchaser, such
representations and warranties to be true as of the signing of this
Agreement and at Closing, the following:
a) Legal Existence: The Company and each of its
subsidiaries listed in Exhibit 1 (the "Subsidiaries") is
a corporation duly incorporated and validly existing
under the laws of the jurisdiction in which it is
incorporated, capable of being sued in its own right.
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The Company has the power to own its property and assets and
the authority to carry on its business as currently conducted.
b) Ownership Structure: The Company has a share capital of
Sfrs. 8'000'000.--, divided into 16'000 shares with a
nominal value of Sfrs. 500.-- each. No further capital,
non-voting stock, convertible securities or similar
rights in the Company have been or will by the Closing be
created or issued or agreed to be issued. The Shares
have been validly issued and fully paid-up.
Notwithstanding the foregoing, a restructuring of the
Company's share capital is currently contemplated in view of
the IPO which will result in (i) a split of the nominal value
of the bearer shares from Sfrs. 500.-- to Sfrs. 40.-- and (ii)
the creation of a new class of registered shares of Sfrs.
20.-- nominal value which will represent 30% of the capital
and approximately 47% of the voting rights. The registered
shares will be reserved to UGL, and the Purchaser will receive
only bearer shares after the restructuring. This proposal for
the Company's new dual capital structure is shown in Exhibit
2.
c) Ownership: The Seller is the sole legal and beneficial
owner of the Shares, free and clear of all liens,
encumbrances, options, charges and other claims arising
from any privilege, pledge or security arrangement. The
Seller has full right and capacity to transfer and sell
the Shares.
Upon delivery of the Shares, the Purchaser will receive good
and valid title to the Shares, free and clear of all liens,
encumbrances or other rights of third parties.
On the Closing date, the ownership structure of the Company
will be as follows:
% of capital
Unilabs Group Ltd.: 79.0%
Unilabs Holding SA, Panama: 10.0%
EIBA: 5.0%
Cantonal Bank of Geneva: 5.0%
Unilabs Management Company Ltd.: -
Third Party: 1.0%
The Purchaser is aware that UGL is negotiating with KK Trust
AG the sale to KK Trust AG of another 5% of shares of Unilabs
SA, which it expects to complete by the end of February 1997.
d) Annual Accounts: The latest consolidated annual accounts
as per May 31, 1996 of the Company (as delivered to the
Purchaser) fairly represent the consolidated financial
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situation of the Company as per the balance sheet date and
have been prepared in compliance with generally accepted
accounting principles as applied in the United States (US
GAAP).
e) Assets: Except as disclosed in Exhibit 3, the Company
------ ---------
and each of the Subsidiaries owns all real property, personal
property and other assets, tangible and intangible, reflected
in the latest annual balance sheet of the Company or the
relevant Subsidiary, free and clear of all liens, charges,
security interests and other incumbrances. There are no assets
which are used in the conduct of the business of the Company
or any of its Subsidiaries which are not reflected in the
latest annual balance sheet of the Company or the relevant
Subsidiary.
f) Accounts Receivable: The accounts receivable reflected in the
latest annual accounts of the Company and of each Subsidiary
are fully collectible within 90 days and, to the extent they
are not fully collectible, whether or not within a period of
90 days, the Company or the relevant Subsidiary has created
provisions sufficient to cover any shortfall.
g) No Undisclosed Liabilities: Except as disclosed in
Exhibit 4, none of the Company and the Subsidiaries have
any liabilities or obligations of any nature (absolute,
accrued, contingent or otherwise), which are not fully
reflected or reserved against in the latest annual
accounts of the Company or the relevant Subsidiary.
h) Books and Records: The Company and each Subsidiary is in
possession and has accurately kept all accounts, books,
letters, financial and other records as required by
applicable law.
i) Taxes: The Company and each Subsidiary has timely filed
all tax returns for income tax, withholding taxes, stamp
taxes, sales taxes, social security taxes and all other
taxes of every kind whatsoever required by law to be
filed and all such tax returns are complete and accurate.
The Company and each Subsidiary has paid all taxes which have
become due and there is no further liability for any taxes and
no interests or penalties accrued or accruing with respect
thereto which would exceed the provisions created in the last
balance sheet of the Company or the relevant Subsidiary
specifically for such liabilities, interests or penalties.
j) No Material Adverse Change: Except as disclosed in
Exhibit 5 attached hereto, since the last balance sheet
date of May 31, 1996, the financial situation
(consolidated and non-consolidated) of the Company or its
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business has not been affected by any material adverse
change.
k) Permits and Authorizations: The Company and each
Subsidiary has all the permits and authorizations which
are necessary to carry on its business and neither the
execution of this Agreement nor the consummation of the
transaction contemplated herein will affect the
effectiveness of such permits and authorizations.
l) Compliance with Applicable Laws: In conducting its
-------------------------------
business as currently conducted, the Company and each
Subsidiary is in compliance with all applicable laws,
statutes, orders, rules and regulations of any governmental
authority. Without limiting the generality of the foregoing,
the Company and each Subsidiary is in compliance with all
environmental laws, regulations, orders and decrees applicable
to it.
m) Insurance: The insurance policies of the Company and of
each Subsidiary adequately cover the risks associated
with the business of the Company and the relevant
Subsidiary.
n) Intellectual Property Rights: The Company and each
----------------------------
Subsidiary owns all the knowhow, patents, trademarks,
copyrights and other intellectual property rights, if any,
which are necessary for or used in the conduct of its business
as it is now being conducted or has adequate license to such
rights. None of such patents, trademarks, copyrights or other
intellectual property rights violate the rights of any third
party.
o) Information Technology: The Company and each Subsidiary
has the rights to the information technology necessary to
conduct the business as currently conducted and such
rights will continue to be effective at least until
December 31, 1998. Exhibit 6 contains a complete list of
information technology rights (licences, source codes,
etc.) currently used by the Company and the Subsidiaries.
p) No Litigation: No litigation, arbitration,
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administrative proceedings (including tax proceedings) or
governmental or regulatory investigations are pending or, to
the best of the Company's or Seller's knowledge, threatened
against the Company or any Subsidiary and there are no
judgments or decisions which could jeopardize the conclusion,
performance or enforceability of this Agreement or which could
otherwise adversely affect this Agreement.
q) Group Structure: The group structure shown in Exhibit 1
is complete and accurate; except with respect to Vivagen
Diagnostics AG and SQ-Lab Aerztelabor AG, the share
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capital of each group company is fully paid-in.
r) Intercompany Dealings: Except as disclosed to the
Purchaser in Exhibit 7, all intercompany dealings between
companies of the group shown in Exhibit 1 or between
group companies and related parties have been made at
market conditions (arm's length).
s) Full Disclosure: The information and material provided
---------------
by the Company to the Purchaser for purposes of the due
diligence audit (legal, financial and business) is complete
and accurate in every material respect and no information has
been withheld from the Purchaser which would have affected its
decision to enter into this Agreement. Without limiting the
generality of the foregoing, there are no oral or written
agreements that have not been disclosed to the Purchaser and
which could affect the present or future ownership structure
of the Company.
5. Remedies
5.1 Term of Representations and Warranties
The representations and warranties set forth in Section 4 of this
Agreement shall continue to be in effect until December 31, 1997.
Notice of claims may be given by the Purchaser in writing until and
including December 31, 1997.
The Purchaser is not bound by any examination or notice requirements
otherwise applicable under Swiss law, except that upon discovery of a
claim notice shall be given by the Purchaser to the Seller as soon as
reasonably practicable, subject to the overall limitation provided for
in the preceding paragraph.
5.2 Remedies
In case of a breach of a representation and warranty by UGL, UGL shall
be liable to indemnify the Purchaser against all losses suffered by the
Purchaser as a result of any such misrepresentations or breach of
warranty or covenant. In case of a breach of representations and
warranties, the losses are calculated based on the difference between
the actual net asset value of the Company, on a consolidated basis, and
the consolidated net asset value of the Company had the relevant
representation and warranty been accurate.
5.3 Limitation
No claims may be raised by the Purchaser under Section 5 of this
Agreement, unless such claims in each single case of breach of warranty
exceed Sfrs. 50'000.-- and, in the
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aggregate, reach an amount of Sfrs. 100'000.--. For the
avoidance of doubt, if the claim of the Purchaser exceeds in
the aggregate Sfrs. 100'000.--, the Purchaser is entitled to
claim from UGL the entire amount and not only the amount in
excess of Sfrs. 100'000.--.
6. Sale in IPO
The Purchaser shall have the right to sell its shares to the public in
the event of an IPO. The sale of the shares in an IPO shall take place
at the terms and conditions set by all the parties involved in the IPO.
Such right shall be subordinated to a preference right granted to EIBA
pursuant to a Shareholders Agreement dated January 17, 1997 by and
between EIBA, UGL and the Company.
To enable the Purchaser to exercise its right to sell in an IPO, UGL
shall promptly indicate to the Purchaser in writing the terms and
conditions at which the IPO is to take place. Within five business days
of receipt of such information, the Purchaser shall notify UGL whether
or not it wishes to exercise its right at the terms indicated. If so,
the Purchaser shall deliver its shares in the Company to the Company,
or a party designated by the Company, against payment of the IPO
placement price.
7. Puts and Calls
7.1 Call Option of the Seller
For the period of August 1, 1998 to December 31, 2001 UGL, or a party
designated by UGL, shall have the right to purchase the Company's
shares then held by the Purchaser. The exercise price shall be equal to
the purchase price paid by the Purchaser pursuant to the Share Purchase
Agreement increased by 15% per annum, compounded annually and
calculated for the period between payment of the purchase price by the
Purchaser and exercise of the call option by UGL.
If UGL wishes to exercise its call option, it shall notify the
Purchaser in writing between August 1, 1998 and no later than by 12.00
noon on December 31, 2001. If such date is not a date on which banks
are open for business in Zurich and Geneva, the exercise notice shall
reach the Purchaser by 12.00 noon on the last business day of 2001. The
sale shall be completd within 10 busines days of receipt of the
exercise notice by the Purchaser and shall take place by the Purchaser
delivering its shares in the Company to UGL or its designee against
receipt of the exercise price. Each party shall bear its own costs and
expenses incurred in connection with the exercise of the call option,
except that UGL will pay all stamp duties related to the exercise of
the call option.
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7.2 Put Option for the Purchaser
For the period of February 1, 2000 until December 31, 2001 the
Purchaser shall have the right to sell its shares in the Company to
UGL.
The exercise price for the put option shall be equal to the purchase
price paid by the Purchaser pursuant to the Share Purchase Agreement,
increased by 12% per annum, compounded annually and calculated for the
period between the date of purchase by the Purchaser and the date of
exercise of the put option by the Purchaser.
If the Purchaser wishes to exercise its put option it shall notify UGL
in writing, indicating that it exercises its put option and the
exercise price. The sale shall be completed within 10 business days of
receipt of the exercise notice by UGL and shall take place by the
Purchaser delivering its shares in the Company against receipt of the
exercise price. Each party shall bear its own costs and expenses
incurred in connection with the exercise of the call option, except
that UGL will pay all stamp duties related to the exercise of the put
option.
7.3 Subordination of Put
The Purchaser hereby expressly acknowledges that any claim it may have
against UGL pursuant to Section 7.2 above will be subordinated to any
claim made by EIBA against UGL in connection with EIBA's put option
pursuant to its Shareholders Agreement dated January 17, 1997.
7.4 Expiration of Puts and Calls
It is agreed that both the call option of UGL pursuant to Section 7.1
above and the put option of the Purchaser pursuant to Section 7.2 above
shall cease to be valid if an IPO of the Company occurs.
8. Miscellaneous
8.1 Costs and Expenses
All costs and expenses incurred by the Purchaser in connection with the
preparation, negotiation, execution and performance of this Agreement
shall be borne by the Purchaser, including legal fees. UGL and UMC
shall bear their own costs and expenses.
8.2 Taxes
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Each party shall bear all taxes or other charges which become due by
itself in connection with the execution or performance of this
Agreement, such as securities transfer tax, except with respect to
stamp duties to the extent provided under Sections 7.1 and 7.2.
8.3 Access to Information
UGL will procure that the Company grant the Purchaser full access to,
and provide it with, all information and material regarding the
ownership structure and the business of the Company and its
subsidiaries which the Purchaser may reasonably request. In particular,
the Seller shall keep the Purchaser duly informed of the IPO process.
This right of information is in addition to the statutory right of
information of the Purchaser as a shareholder of the Company. The
Purchaser undertakes to keep such information confidential and not to
disclose it to any third party.
8.4. Transfer Restrictions
For the term of this Agreement, UGL shall not be permitted to sell,
assign or otherwise transfer its controlling shareholding interest in
the Company without the prior written consent of the Purchaser. In the
event the transfer to UGL's controlling interest in the Company is to
be made to another company within the same group of companies, the
Purchaser and its affiliated and related companies (including
investment funds managed by the Purchaser) will not unreasonably
withhold such consent, provided the transferee agrees to be bound by
the terms of this Agreement.
8.5 Notices
Communications under this Agreement shall be made in writing by letter,
telex or telefax and addressed as follows:
if to the Purchaser:
Banque Cantonale de Geneve
Mr. Jean Buhler
Quai de I'lle 17
1204 Geneva
Tel.: 41-22-317.27.27
Fax: 41-22-311.81.71
if to UGL and/or UMC:
Unilabs SA
Mr. Eric Wavre
12, place Cornavin
1201 Geneva
Tel.: +41-22-909-7777
Fax: +41-22-909-7707
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8.6 Entire Agreement
This Agreement embodies the entire agreement between the parties hereto
with respect to the transaction contemplated herein and there have been
and are no agreements or warranties between the parties other than
those set forth or provided for herein. This Agreement may be amended
only in writing through an instrument signed by all the parties hereto.
8.7 Confidentiality
The parties shall keep the terms of this Agreement confidential and
shall not disclose it to any third parties.
8.8 Governing Law and Jurisdiction
This Agrement shall be governed by Swiss law. Disputes arising out of
or in connection with this Agreement shall be submitted to the
jurisdiction of the ordinary courts of the Canton of Geneva, venue
being Geneva. The Purchaser reserves the right to take legal action
against UGL or UMC at their registered offices or at any other
competent place of jurisdiction.
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Place and Date:
Geneva, February 6, 1997
- ------------------------------- ------------------------------
Unilabs Management Company Unilabs Group Limited
- -------------------------------
Cantonal Bank of Geneva
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List of Exhibits
Exhibit 1: Structure of the Unilabs SA group
Exhibit 2: Proposal for Unilabs SA's new dual capital structure
Exhibit 3: List of assets not owned or not free and clear
Exhibit 4: List of interest bearing debts and contingent
liabilities
Exhibit 5: Material adverse change
Exhibit 6: List of information technology rights
Exhibit 7: List of intercompany transactions and transactions
with related parties
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