EXHIBIT (2-1)
SHARE PURCHASE AGREEMENT
BETWEEN
Unilabs Management Co. Ltd., Gibraltar
as Seller
AND
Unilabs SA, Geneva
as Guarantor
AND
EIBA "Eidgenossische Bank" Beteiligungs- und Finanzge-
sellschaft, Zurich
as Purchaser
Relating to 5% of the Shares in Unilabs ▇▇
▇▇▇▇ & Staehelin
Zurich
4
This Share Purchase Agreement was entered into on January 17, 1997 between the
following parties:
1. Unilabs Management Co. Ltd., Gibraltar
(hereinafter referred to as "Seller")
2. Unilabs SA, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇▇ 11
(hereinafter referred to as the "Company")
of the first part
and
3. "EIBA Eidgenossische Bank" Beteiligungs - und Finanzge-
sellschaft, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇▇
(hereinafter referred to as "Purchaser")
of the other part
Introduction
The Seller is a wholly-owned subsidiary of the Company currently
5
holding 10% 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
Company is restructuring its debt and equity financings and the Purchaser is
prepared to buy an equity interest in the Company.
Based on the foregoing, the Parties agree as follows:
1. Sale and Purchase of Shares
The Seller agrees to sell to the Purchaser and the Purchaser agrees to
buy from the Seller 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 (hereinafter referred to
as the "Shares").
2. Purchase Price
The purchase price for the Shares shall be 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 the Seller and against
delivery of the Shares.
3. Closing
6
3.1 Closing Date of Transaction
The sale and purchase of the Shares shall be consummated at the offices
of Union Bank of Switzerland or at such other place as the Parties may
agree, no later than 10 days after the conditions precedent set forth
in Section 3.2 below have been met.
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 January 31,
1997:
a) Due Diligence: The Purchaser has conducted a due
-------------
diligence audit of the business of the Company prior to the
Closing. The results of such due diligence audit shall be
satisfactory to the Purchaser. In particular, such due
diligence audit shall not reveal any material problems
regarding the Company's subsidiaries in the United Kingdom.
Furthermore, the Company's new auditors, ATAG ▇▇▇▇▇▇ & Young,
shall have confirmed to the Purchaser in writing that the
Company's investments in the subsidiaries in Spain and Italy
do not need to be written down and that any write-offs that
may be necessary with respect to the Company's investments in
its subsidiaries in the United Kingdom will not exceed
7
the amount of Sfrs. 33,3 million.
b) Group Restructuring: The Purchaser shall have obtained a
legal opinion regarding the valid legal transfer of the
following companies from UniHolding Corporation,
Delaware, to the Company:
- United Laboratories Espana SA (93%)
- Istituto Medico Torino S.p.A. (100%)
- Medil Srl (50%)
In addition, the Purchaser shall have obtained a tax opinion
regarding the tax consequences of such transfer the
conclusions of which shall be satisfactory to the Purchaser.
c) Credit Facility Agreement: Delivery of executed credit
facility agreement between the Company and Union Bank of
Switzerland relating to a term loan of Sfrs. 12.5
million.
d) Shareholders Agreement: Execution and delivery of a
shareholders agreement (the "Shareholders Agreement")
between Unilabs Group Ltd. and the Purchaser at terms
satisfactory to the Purchaser.
e) Board Approval: Approval of the purchase of the
8
Shares by the board of directors of the Purchaser.
f) Election of Board Member: Resolution of Unilabs Group
Ltd. as majority shareholder of the Company electing a
representative of the Purchaser to the Company's board of
directors.
4. Representations and Warranties of Seller and Company
Each of the Seller and the Company hereby represents and warrants 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
9
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. A proposal for the
Company's new dual capital structure is shown in Exhibit 1a.
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.
d) Annual Accounts: The latest annual accounts and
consolidated annual accounts as per May 31, 1996 of the
Company and of each Subsidiary (as delivered to the
Purchaser in the course of the financial due diligence
audit) fairly represent the financial situation of the
Company (consolidated and non-consolidated) and of the
Subsidiaries as per the balance sheet date and have been
10
prepared in compliance with generally accepted accounting
principles as applied in the United States (US GAAP) or in the
country where the relevant Subsidiary is incorporated.
e) Assets: Except as disclosed in Exhibit 2, 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: None of the Company and the
Subsidiaries have any liabilities or obligations of any
nature (absolute, accrued, contingent or otherwise),
11
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
12
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
13
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 4 contains a complete list of
information technology rights (licenses, source codes,
etc.) currently used by the Company and the Subsidiaries.
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 resect to vivagen
diagnostics AG and SQ-Lab Aerztelabor AG, the share
14
capital of each group company is fully paid-in.
r) Intercompany Dealings: Except as disclosed to the
Purchaser in Exhibit 5, 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. Covenant
Each of the Seller and the company hereby covenants that any agreements
concluded with KK Trust AG or any other equity investor involving a put
option of the equity investor with respect to the shares of the
Company, or any contractual provisions equivalent to a put option, have
to adequately
15
protect the rights of the Purchaser under the Shareholders Agreement.
Without limiting the generality of the foregoing, any put option or
other preferential sales rights of KK Trust AG or any other equity
investor are to be subordinated in all respects to the put option
granted to the Purchaser under the Shareholders Agreement.
6. Remedies
6.1 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.
6.2 Remedies
In case of a breach of a representation and warranty or
covenant by the Seller or the Company, the Seller and the
16
Company 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 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. With respect to a breach of covenant, the losses are
calculated based on the actual damage incurred by the Purchaser as a
result of such breach.
In addition, if the indemnity claim made by the Purchaser in accordance
with the preceding paragraph exceeds an amount of Sfrs. 2 million, the
Purchaser shall have the right at any time during the term of the
representations and warranties pursuant to Section 6.1 above to
exercise its put option pursuant to Section 6.2 of the Shareholders
Agreement. Notwithstanding the exercise of the put option by the
Purchaser, the Purchaser shall be entitled to claim losses and damages
as a result of a misrepresentation or breach of warranty or covenant.
6.3 Limitation
No claims may be raised by the Purchaser under Section 4 of this
Agreement, unless such claims in each single case of
17
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 from the Seller and or the Company the entire amount and
not only the amount in excess of Sfrs. 100'000.--.
7. Joint and Several Liability
The Company agrees to be jointly and severally liable to the Purchaser
for the performance of any and all obligations of the Seller under this
Agreement.
8. Miscellaneous
8.1 Costs and Expenses
All reasonable costs and expenses incurred by the Purchaser in
connection with the preparation, negotiation, execution and performance
of this Agreement shall be borne by the Seller, including legal fees.
The Seller and the Company shall bear their own costs and expenses.
8.2 Arranging Fee
EIBA shall be entitled to an arranging fee of 1.75% of the
Purchase Price. Provided the Company enters into a credit
18
facility agreement with Union Bank of Switzerland, EIBA's arranging fee
will be paid-out of, and will be an integral part of, the arranging fee
payable to Union Bank of Switzerland in accordance with the terms of
the credit facility agreement.
8.3 Taxes
Any taxes or other charges which become due in connection with the
execution or performance of this Agreement, such as securities transfer
tax, shall be shared equally between the Seller and the Purchaser.
8.4 Notices
Communications under this Agreement shall be made in writing by letter,
telex or telefax and addressed as follows:
if to the Purchaser:
EIBA "Eidgenossische Bank"
Beteiligungs- und Finanzgesellschaft
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇
Tel.: +41-1-281 10 81
Fax : +41-1-281 10 87
if to the Seller or the company:
Unilabs SA
Mr. ▇▇▇▇ ▇▇▇▇▇
▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
Tel.: ▇▇▇-▇▇-▇▇▇-▇▇▇▇
Fax : ▇▇▇-▇▇-▇▇▇-▇▇▇▇
19
8.5 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.
8.6 Confidentiality
The parties shall keep the terms of this Agreement confidential and
shall not disclose it to any third parties, except that the Purchaser
may disclose this Agreement to Union Bank of Switzerland.
8.7 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 the Canton of Zurich, venue
being Zurich. The Purchaser reserves the right to take legal action
against the Seller or the Company at their respective registered
offices or at any other competent lace of jurisdiction.
20
Place and Date: Zurich, 17-1-97
Unilabs SA Unilabs Management Co. Ltd.
EIBA "Eidgenossische Bank"
Beteiligungs- und Finanzgesellschaft
LIST OF EXHIBITS:
Exhibit 1: Ownership Structure of Unilabs SA and its
operating subsidiaries (Section 4 (a) )
UL
Exhibit 1a: Proposal for Capital Restructuring of Unilabs SA
(Section 4(b) )
UL
Exhibit 2: List of assets not owned by the company or by its
subsidiaries or assets which are not free and clear
of liens, charges, security interests and other
encumbrances (section 4 (e) )
UL
Exhibit 3: List of material adverse changes since the last
balance sheet date of May 31, 1996 (Section 4 (j))
UL
Exhibit 4: List of information technology rights currently
used by Unilabs SA and its subsidiaries (Section 4
(o) )
UL
Exhibit 5: List of all intercompany transactions and of
transactions between Group companies and related
parties (Section 4 (r) )
UL
UL: Unilabs
L&S: ▇▇▇▇ & Staehelin
21
