EXHIBIT (2-3)
SHARE PURCHASE AGREEMENT
BETWEEN
Unilabs Group Limited, British Virgin Islands
Uniholding Corporation, United States of America
Unilabs S.A., Switzerland
AND
KK Trust AG, Switzerland
Relating to 5% of the Shares of Unilabs SA
35
This Share Purchase Agreement was entered into on February 17, 1997 between the
following parties:
1. Unilabs Group Limited, Road Town, Pasea Estate, P.O. Box
3149, Tortola, British Virgin Islands
(hereinafter referred to as "UGL")
of the first part
2. UniHolding Corporation, Delaware with its principal business
address at 96 Spring Street, New
York, N.Y. 10012, United States of
America
(hereinafter referred to as "UHLD")
of the second part
3. Unilabs SA, 53, Avenue Blanc, 1202 Geneva,
Switzerland
(hereinafter referred to as "the Company")
of the third part
and
4. KK Trust AG, Switzerland Grabenstrasse 32, 6301 Zug,
Switzerland
(hereinafter referred to as "Purchaser")
of the fourth 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.
UHLD is the sole shareholder of UGL.
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.
36
Based on the foregoing, the Parties agree as follows:
1. Sale and Purchase of Shares
UGL agrees to sell to the Purchaser and the Purchaser agrees to buy
from UGL 800 bearer shares of the Company with a nominal value of Sfrs.
500.-- each, representing 5% 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 UGL and against delivery of the Shares.
3. Closing
3.1 Closing
The sale and purchase of the Shares shall be consummated at the offices
of Bar und Karrer, Seefeldstrasse 19, in Zurich, or at such other place
as the Parties may agree, no later than 3 days after the conditions
precedent set forth in Section 3.2 below have been met (the "Closing
Date"). At the Closing the Purchaser shall execute by wire transfer to
the account to be designated by UGL the Purchase Price against delivery
of the Shares.
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
17th, 1997:
a) Sale to EIBA: Confirmation by UGL to the Purchaser that
Eidgenossische Bank Beteiligungs- und Finanzgesellschaft
(hereinafter "EIB") has on January 17, 1997 signed a Share
Purchase Agreement pursuant to which EIBA has acquired 5% of
the share capital of the Company.
b) Board Approval: Approval of the purchase of the Shares by
the board of directors of the Purchaser.
c) Board Approvals: Approval of the purchase of the Shares
37
by the boards of directors of UGL, the Company and UHLD.
d) EIBA Approval: Approval of EIBA of this Agreement.
4. Representations and Warranties of Seller and Company
UGL, the Company and UHLD hereby represent and warrant jointly and
severally 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. 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:
38
% of capital
Unilabs Group Ltd.: 74.0%
Unilabs Holding SA, Panama: 10.0%
EIBA: 5.0%
KK Trust AG: 5.0%
Banque Cantonale de Geneve.: 5.0%
Third Party 1.0%
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
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 interest and other encumbrances. 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.
39
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
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 (licenses, source codes,
etc.) currently used by the Company and the Subsidiaries.
40
p) No Litigation: No litigation, arbitration,
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
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 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 February 1st, 2000.
Notice of claims may be given by the Purchaser in writing until and
including February 1st, 2000.
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 UGL, the Company
and UHLD shall be jointly and severally 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
41
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.
Recession of this agreement and unwinding of the transaction in
accordance with "Article 208 du Code des Obligations" are excluded.
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
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 the entire amount and not only the amount in excess of
Sfrs. 100'000.--.
6. Sale in and after IPO
The Purchaser shall have the right to sell any or all of its shares to
the public in the event of an IPO as from the first day of trading on
the Swiss Exchange. 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 January 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 20% per annum, compounded annually and
calculated for the
42
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 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, the exercise notice shall reach the Purchaser by 12.00 noon on
the last business day of 2001. The sale shall be completed within 10
business 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.
Notwithstanding the above, UGL hereby commits not to exercise its call
option as long as EIBA's put option against UGL, pursuant to its
Shareholders Agreement dated January 17, 1997, has not expired.
7.2 Put Option for the Purchaser
For the period of February 1st, 2000 until December 31st, 2001, or
immediately if UGL breaches Sec. 8.4, the Purchaser shall have the
right to sell its shares in the Company to one of the following parties
(in that order of priority): first, to UGL, second, if UGL fails to
fulfill its purchase obligation under this Sec. 7.2, within twenty days
of notification by the Purchaser, to the Company, and third, if the
company fails to fulfill its purchase obligation under this Sec. 7.2
within twenty days of notification by the purchaser, to UHLD.
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 the
party concerned 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 the party concerned 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.
7.3 Subordination of Put
The Purchaser hereby expressly acknowledges that any claim it may have
against UGL and/or the Company pursuant to section
43
7.2 above will be subordinated to any claim made by EIBA against UGL
and/or the Company in connection with EIBA's put option pursuant to its
Shareholders Agreement dated January 17, 1997, so that UGL, or the
Company, as the case may be, shall first perform the put option of EIBA
before performing the put option of the Purchaser.
Notwithstanding the foregoing, if EIBA, does not exercise its put
option within ten days after having received notice of the Purchaser
that the Purchaser exercises its put option, UGL or the Company can
perform the put option of the Purchaser.
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 at the first
day of trading on the Swiss Exchange, provided that at least 35% of the
Company's shares have been placed with the public.
8. Miscellaneous
8.1 Cost and Expenses
Each Party shall pay its own legal fees, costs, traveling expenses and
other expenses in connection with this transaction.
8.2 Taxes
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.
8.3 Access to Information
The company grants 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
unless required to do so by law, a recognized stock exchange or
pursuant to an order of a competent governmental authority or court.
8.4 Transfer Restrictions
For the term of this Agreement, UGL shall not be permitted to sell,
assign or otherwise transfer its controlling
44
shareholding interest in the Company without the prior written consent
of the Purchaser. In the event the transfer of UGL's controlling
interest in the Company is to be made to another company within the
same group of companies, the Purchaser will not unreasonably withhold
such consent, provided the transferee agrees to be bound by the terms
of this Agreement.
8.5 Representation on Company's Board
In the event EIBA ceases to be represented on the board of the Company,
the Purchaser shall have the right to be represented on the board of
directors of the Company. For this purpose, the Purchaser shall
nominate a person who shall be elected by the Company's general
shareholders' meeting to the Company's board of directors. UGL
undertakes to cast its vote at such general shareholders' meeting in
support of the election of the person nominated by the Purchaser.
8.6 Notices
Communications under this Agreement shall be made in writing by letter,
telex or telefax and addressed as follows:
if to the Purchaser:
K K Trust AG
Grabenstrasse 32
6301 Zug
Tel.: +41-711 4161
Fax : +41-711 4281
if to UGL, the Company or UHLD:
Unilabs SA
Mr. Eric Wavre
12, place Cornavin
1 2 01 Geneva
Tel: +41-22-909-7777
Fax: +41-22-909-7707
8.7 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.
8.8 Confidentiality
The Parties hereto agree and undertake to keep the terms and contents
of this Agreement strictly confidential and not to
45
disclose any related information to any third party without a written
consent of the other Parties, unless required to do so by law, a
recognized stock exchange or pursuant to an order of a competent
governmental authority of court. In such an event the Party concerned
shall inform the other Parties of such disclosure.
8.9 Governing Law and Jurisdiction
This Agreement 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 Canton of Zug, venue being Zug.
The Purchaser reserves the right to take legal action against UGL, the
Company or UHLD at their registered offices or at any other competent
place of jurisdiction.
46
Place and Date:
---------------------- ------------------------
UNILABS GROUP LTD. K K TRUST AG
----------------------
UNILABS SA
-----------------------
UNIHOLDING CORPORATION
47
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