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EXHIBIT 2.1
SHARE PURCHASE AGREEMENT
(the "AGREEMENT")
between
Xxxxx Systems Corporation
00000 Xxxx Xxxxxxx Xxxxx
Xxxxxx, XX 00000
XXX
hereinafter the "SELLER"
and
UBS Capital B.V.
Xxxxxxx 0
0000 XX Xxx Xxxxx
Xxx Xxxxxxxxxxx
hereinafter the "PURCHASER"
regarding
Systor AG
hereinafter the "COMPANY"
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TABLE OF CONTENTS
Article I - Purchase and Sale of Shares........................................................................
I.1 PURCHASE AND SALE............................................................................
I.2 PURCHASE PRICE...............................................................................
I.3 PURCHASE PRICE PAYMENT.......................................................................
Article II - Closing...........................................................................................
II.1 PLACE AND DATE...............................................................................
II.2 CLOSING DOCUMENTS............................................................................
Article III - Representations and Warranties...................................................................
III.1 REPRESENTATIONS AND WARRANTIES OF PURCHASER..................................................
(a) Organization of Purchaser...............................................................
(b) Authority...............................................................................
III.2 REPRESENTATIONS AND WARRANTIES OF SELLER.....................................................
(a) Organization............................................................................
(b) Authority...............................................................................
(c) Ownership of Sale Shares................................................................
Article IV - Covenant..........................................................................................
IV.1 RELEASE FROM DIRECTORS LIABILITY.............................................................
Article V - Miscellaneous......................................................................................
V.1 NOTICES......................................................................................
V.2 ENTIRE AGREEMENT.............................................................................
V.3 EXCLUSIVE REMEDY.............................................................................
V.4 SEVERABILITY OF PROVISIONS...................................................................
V.5 BINDING EFFECT, BENEFIT......................................................................
V.6 ASSIGNABILITY................................................................................
V.7 AMENDMENT AND MODIFICATION; WAIVER...........................................................
V.8 ANNOUNCEMENTS................................................................................
V.9 CONFIDENTIALITY..............................................................................
V.10 ADVISER'S FEES; EXPENSES.....................................................................
V.11 APPLICABLE LAW...............................................................................
V.12 ARBITRATION..................................................................................
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WHEREAS the Company is a company incorporated in Switzerland, having its
registered office at Xxxxxxxxxxxxx 00, 0000 Xxxxxx, Xxxxxxxxxxx; and
WHEREAS the Company has a fully paid-up share capital of CHF 5'000'000.- (Swiss
francs five million), divided into 500'000 registered shares with a par value of
CHF 10.- (Swiss francs ten) each; and
WHEREAS the Seller is currently the owner of 200'000 registered shares of the
Company (hereinafter the "SALE SHARES"); and
WHEREAS the Seller desires to sell the Sale Shares and in reliance upon the
representations, warranties and undertakings set out in this Agreement, the
Purchaser desires to purchase the Sale Shares on the terms and conditions set
out in this Agreement;
NOW THEREFORE, the parties hereto agree as follows:
ARTICLE I - PURCHASE AND SALE OF SHARES
I.1 PURCHASE AND SALE
Subject to the terms and conditions of this Agreement, Seller agrees to sell to
Purchaser and Purchaser agrees to purchase from Seller good and valid title to
the Sale Shares, all free and clear of all liens, charges and encumbrances.
I.2 PURCHASE PRICE
The purchase price for the Sale Shares is USD 55'485'798.--(United States Dollar
fifty five million four hundred eighty five thousand seven hundred ninety eight)
plus accrued interest at an interest rate of 8% p.a., calculated on the basis of
a 360 days year since December 23, 1999 until and including the Closing Date
(hereinafter the "PURCHASE PRICE").
I.3 PURCHASE PRICE PAYMENT
At Closing, Purchaser shall pay to the Seller by wire transfer of immediately
available funds to account No 9102-783595, in the name of Xxxxxxx Relationship
Funds, sub-account No 405610, in the name of the Seller, with Chase Manhattan
Bank, New York, NY, USA (ABA: 000000000) an amount equal to the Purchase Price.
ARTICLE II - CLOSING
II.1 PLACE AND DATE
The closing of the transaction contemplated herein (hereinafter the "CLOSING")
takes place simultaneously with the execution of this Agreement at the offices
of Xxxx & Staehelin, Zurich, on the date written on the signatory page of this
Agreement (hereinafter the "CLOSING DATE").
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II.2 CLOSING DOCUMENTS
II.2.1 Upon Closing, Seller shall deliver to Purchaser:
(a) the certificates representing the Sale Shares duly endorsed in blank;
(b) letters of resignation from all Seller's representatives on the board
of directors of the Company, each effective as of the Closing Date
containing a statement of the resigning director that he has been fully
compensated for his services rendered to the Company and a mutual
statement of both the Company and the resigning director that, as of
the date and subject to the provision of Article IV.1 hereof, none of
them has a claim of whatever nature against the other.
II.2.2 Upon Closing, Purchaser shall deliver to Seller:
(a) evidence of payment of the Purchase Price.
ARTICLE III - REPRESENTATIONS AND WARRANTIES
Each party hereby makes the representations and warranties contained in this
Article III to the other party, each of which is true and correct as of the
Closing Date.
The parties do not make any representations nor give any warranties other than
the representations and warranties contained in this Article III. The parties
exclude any and all other representations and warranties.
III.1 REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller as follows:
Organization of Purchaser
The Purchaser is duly organized and validly existing under the laws of
The Netherlands.
Authority
This Agreement has been duly authorized and validly executed and
delivered by the Purchaser, and is valid and enforceable against the
Purchaser in accordance with its terms; the Purchaser has full power
and authority to enter into this Agreement and to carry out the
transactions contemplated by this Agreement.
The execution of this Agreement by the Purchaser does not violate the
Purchaser's articles of association or internal regulations, any
agreement to which it is a signatory or any governmental law,
regulation, order or judgement to which it is subject.
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III.2 REPRESENTATIONS AND WARRANTIES OF SELLER
The Seller makes the following representations and warranties to Purchaser:
(a) Organization
The Seller is duly organized and validly existing under the laws of
Delaware, USA.
(b) Authority
This Agreement has been duly authorized and validly executed and
delivered by the Seller, and is valid and enforceable against the
Seller in accordance with its terms; the Seller has full power and
authority to enter into this Agreement and to carry out the
transactions contemplated by this Agreement.
The execution of this Agreement by the Seller does not violate the
Seller's certificate of incorporation or by-laws, any agreement to
which it is a signatory or any governmental law, regulation, order or
judgement to which it is subject.
(c) Ownership of Sale Shares
Seller holds, and upon Closing Purchaser receives, good and valid title
to the Sale Shares. The Sale Shares are free and clear of all
encumbrances, mortgages, charges, liens, security interests or any
other right of any third party.
ARTICLE IV - COVENANT
IV.1 RELEASE FROM DIRECTORS LIABILITY
The Purchaser and UBS AG hereby undertake in their capacity as shareholders of
the Company to release the Seller's representatives on the board of directors of
the Company from their directors' liability ("Erteilen der Decharge") at the
next ordinary shareholders' meeting of the Company.
ARTICLE V - MISCELLANEOUS
V.1 NOTICES
All notices, requests, demands, waivers and other communications (together
"NOTICES"), required or permitted to be given under this Agreement shall be in
writing and shall be deemed to have been duly given if sent by registered mail
or by telefax with a confirmation by registered mail, as follows:
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a. if to the Seller, to:
Xxxxx X. Xxxxxx
Xxxxx System Corporation
000 Xxxx Xxxxxx, 00xx xxxxx
Xxxxxxxxx, XX 00000
XXX
Tel. 000 000 000 0000
Fax 000 000 000 0000
with a copy to:
Xxxxx X. Xxxxxxx
Xxxxx Systems Corporation
00000 Xxxx Xxxxxxx Xxxxx
Xxxxxx, XX 00000
XXX
Tel. 000 000 000 0000
Fax 000 000 000 0000
b. if to the Purchaser, to:
Xxxxxxx Xxxxx
UBS Capital B.V.
Parkweg 2
2585 JJ The Hague
Tel. 0000 00 000 0000
Fax 0000 00 000 0000
c. if to UBS AG, to:
Xxxxx Xxxxx
UBS AG
Xxxxxxxxxxxxxx 00
0000 Xxxxxx
Tel. 0000 0 000 00 00
Fax 0000 0 000 00 00
in the event of a notice to b. or c. above,
with a copy to:
Xxxxxx Xxxx
UBS Capital
000 Xxxxxxxxx Xxxxxx Xxxxxx, XX0 X0XX
Tel. 0000 000 000 0000
Fax 0000 000 000 0000
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or to such other substitute person or address as any party shall from time to
time specify by notice in writing to the other parties.
Notices and communications made by fax shall be deemed to be received on the
date of dispatch provided that an answer-back confirmation is available,
irrespective of the date of receipt of the confirmation by registered mail.
Notices given by registered mail only are deemed to be received upon delivery to
the addressee.
V.2 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties hereto and
supersedes all prior agreements and undertakings, oral or written, between the
parties hereto with respect to the subject matter hereof. In particular, the
parties hereto, by signing this Agreement, explicitly agree that the stock
purchase agreement between the UBS AG and the Seller, dated January 1, 1996, and
the amendment agreement between the Seller and UBS AG, dated April 24, 1997
(hereinafter the "AGREEMENTS"), are hereby terminated as of the Closing Date and
that the parties hereto shall have no claim of whatever nature against each
other on the basis of the Agreements.
V.3 EXCLUSIVE REMEDY
The sole and exclusive remedy of any party for any misrepresentation or any
breach of a warranty or covenant set forth in or made pursuant to this Agreement
shall be a claim for indemnification. Other legal remedies, in particular the
right to rescind the Agreement pursuant to Art. 205 of the Swiss Code of
Obligations, are expressly excluded.
V.4 SEVERABILITY OF PROVISIONS
If any term or provision of this Agreement or the application thereof to any
person or circumstance shall, to any extent, be invalid or unenforceable, the
remainder of this Agreement and the application of such term or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Agreement shall be valid and be enforceable to the fullest extent permitted
by law.
V.5 BINDING EFFECT, BENEFIT
This Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors, heirs and assigns. Nothing in this
Agreement, express or implied, is intended to confer on any person other than
the parties hereto or their respective successors and assigns, any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
V.6 ASSIGNABILITY
This Agreement shall not be assigned by any party hereto without the prior
written consent of the other parties hereto, provided, however, that the parties
may assign,
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without the other party's prior consent, all its rights under the Agreement to
any corporate entity of their respective group to which they belong.
V.7 AMENDMENT AND MODIFICATION; WAIVER
This Agreement may be amended or modified by a written instrument duly executed
by the Purchaser and the Seller at any time with respect to any of the terms
contained herein. No waiver by any party of any provision hereof shall be
effective unless explicitly set forth in writing and executed by the party so
waiving. Except as provided in the preceding sentence, no action taken pursuant
to this Agreement, including, without limitation, any investigation by or on
behalf of any party, shall be deemed to constitute a waiver by the party taking
such action of compliance with any representations, warranties, covenants, or
agreements contained herein, and in any documents delivered or to be delivered
pursuant to this Agreement and in connection with the Closing hereunder. The
waiver by any party hereto of a breach of any provision of this Agreement shall
not operate or be construed as a waiver of any other or subsequent breach or a
waiver of any other provision of this Agreement.
V.8 ANNOUNCEMENTS
No announcement concerning this sale and purchase will be made on or after
Closing by any party to this Agreement except as appropriate under applicable
law or with respect to any competent regulatory authority or with the written
approval of the other party hereto (such approval not to be unreasonably
withheld or delayed).
V.9 CONFIDENTIALITY
The parties agree to keep the terms of this Agreement and any information
acquired during the course of the negotiations having led to this Agreement
strictly confidential, except as required by applicable law.
V.10 ADVISER'S FEES; EXPENSES
Except as otherwise specifically provided in this Agreement, each of the parties
shall bear its own fees and costs incident to this Agreement and the
transactions contemplated hereby, including those of its financial, technical,
legal and other advisers.
V.11 APPLICABLE LAW
This Agreement and the legal relations between the parties hereto shall be
governed by and construed in accordance with the laws of Switzerland.
V.12 ARBITRATION
(a) All disputes arising out of or in connection with the present Agreement
that cannot be settled by mutual agreement shall be finally settled by
arbitration to the exclusion of the ordinary courts, by a three-person
arbitral tribunal (the "ARBITRAL TRIBUNAL").
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(b) In the event of such dispute, the Seller shall jointly appoint one
arbitrator and the Purchaser, jointly with UBS AG, as the case may be,
one arbitrator, and the so-appointed arbitrators shall jointly appoint
a third arbitrator who shall act as the president of the Arbitral
Tribunal (the "PRESIDENT"). Should either party fail to appoint its
arbitrator within thirty days from the date of appointment of the other
party's arbitrator, or, if the two appointed arbitrators cannot agree
on the President within fifteen days from the date of appointment of
the second arbitrator, the necessary appointment shall be made by the
President of the Zurich Chamber of Commerce at the request of one or
both parties. Such appointment shall be final and binding on the
parties hereto. The Arbitral Tribunal shall have its seat in Zurich and
the arbitration proceedings, including arguments and briefs, shall be
conducted in English. The rules of arbitration of the Zurich Chamber of
Commerce shall be applicable.
(c) The parties hereby waive the filing of the award with the competent
judicial authority. The award shall be delivered to the parties by the
Arbitral Tribunal.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date written below.
Xxxxx Systems Corporation
/s/ Xxxxx X. Xxxxxx
---------------------------
Date: 1/14/2000
Name: Xxxxx X. Xxxxxx
Title: Vice President
UBS CAPITAL B.V.
/s/ A. Rotheli
------------------------------ ---------------------------------------
Date: 19/1/00 Date:
Name: A. Rotheli Name:
Title: Attorney Title:
For purposes of Articles IV.1 and V only:
UBS AG
/s/ X.X. Xxxxx /s/ Xxxxx Xxxxx
------------------------------ ---------------------------------------
Date: 16/1/2000 Date: 14-1-2000
Name: X.X. Xxxxx Name: Xxxxx Xxxxx
Title: Executive Director Title: Director
