EXHIBIT 7.12
CONFORMED COPY
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GUARANTY
SECTION 1. The Guaranty. Roche Holding Ltd, a Swiss
corporation ("Guarantor"), hereby unconditionally and irrevocably guarantees
to Genentech, Inc., a Delaware corporation (the "Company"), the prompt and
full discharge by Roche Holdings, Inc., a Delaware corporation ("Roche"), of
all of Roche's covenants, agreements, obligations and liabilities under
Section 2.03 of the Amended and Restated Governance Agreement between Roche
and the Company (the "Amended and Restated Governance Agreement")
(collectively, the "Obligations"), in accordance with the terms hereof and
thereof. Guarantor hereby so guarantees full and complete performance by Roche
of each and all of the Obligations, including, without limitation, the due and
punctual payment of all amounts which may become due and payable to the
Company and/or to the holders of Callable Putable Common Stock, par value $.02
per share (the "Special Common Stock"), of the Company. Guarantor acknowledges
and agrees that, with respect to all obligations to pay money, such guaranty
shall be a guaranty of payment and not of collection. If Roche shall default
in the due and punctual performance of any of the Obligations or in the full
and timely payment of any amounts owed pursuant to the Obligations, Guarantor
will forthwith perform or cause to be performed such Obligations and will
forthwith make full payment of any amount due with respect thereto at its sole
cost and expense.
SECTION 2. Guaranty Unconditional. The liabilities and
obligations of Guarantor to the Company pursuant to this Guaranty shall be
unconditional and irrevocable and shall not be conditioned or contingent upon
the pursuit of any remedies against Roche or any other person.
SECTION 3. Waivers of Guarantor. (a) Guarantor hereby waives
any right, whether legal or equitable, statutory or non-statutory, to require
the Company to proceed against or take any action against or pursue any remedy
with respect to Roche or any other person or make presentment or demand for
performance or give any notice of nonperformance before the Company may
enforce rights against Guarantor hereunder. The unconditional obligation of
Guarantor hereunder will not be affected, impaired or released by any
extension, waiver, amendment or thing whatsoever which would release a
guarantor (other than performance).
(b) Guarantor hereby waives irrevocably any defense based upon
or arising by reason of any disability or incapacity of Roche or lack of
authority of any officer or director of Roche, and any immunity (whether on
the basis of sovereignty or otherwise) from the jurisdiction, attachment or
execution to which it or its property might otherwise be entitled in any
action arising out of or based upon this Guaranty which may be instituted
in the courts of the State of Delaware, the State of New York, the United
States of America, or any other domestic or foreign jurisdiction.
SECTION 4. Definitions. Terms used herein that are defined in
the Amended and Restated Governance Agreement are, unless otherwise defined,
used herein as therein defined.
SECTION 5. Representations and Warranties. (a) Corporate
Existence and Power. The Guarantor is a corporation duly incorporated,
validly existing and in good standing under the laws of Switzerland, and has
all corporate powers required to carry on its business as now conducted. The
Guarantor is duly qualified to do business as a foreign corporation and is in
good standing in each jurisdiction where the character of the property owned
or leased by it or the nature of its activities makes such qualification
necessary, except for those jurisdictions where the failure to be so qualified
would not, individually or in the aggregate, have a material adverse effect on
the financial condition, business or results of operations of the Guarantor.
(b) Corporate Authorization. The execution, delivery and
performance by the Guarantor of this Guaranty and the consummation by the
Guarantor of the transactions contemplated hereby are within the Guarantor's
corporate powers. This Guaranty is a valid and binding obligation of the
Guarantor, enforceable in accordance with its terms, except as (i) the
enforceability hereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (ii) the availability of equitable
remedies may be limited by equitable principles of general applicability.
(c) Governmental Authorization. The execution, delivery and
performance by the Guarantor of this Guaranty require no action by or in
respect of, or filing with, any governmental body, agency, official or
authority other than such filings or registrations with, or authorizations,
consents or approvals of, governmental bodies, agencies, officials or
authorities, (i) as may be required by applicable Federal and state securities
laws or as may be required in connection with a tender offer or (ii) the
failure of which to make or obtain would not reasonably be expected to prevent
performance hereof or have a material adverse effect on the financial
condition, business or results of operations of Guarantor.
(d) Non-Contravention. The execution, delivery and performance
by the Guarantor of this Guaranty and the consummation by the Guarantor of the
transactions contemplated hereby do not and will not (i) contravene or
conflict with the certificate of incorporation or bylaws of the Guarantor,
(ii) assuming compliance with the matters referred to in Section 5(c),
contravene or conflict with or constitute a violation of any provision of any
law, regulation, judgment, injunction, order or decree binding upon or
applicable to the Guarantor or any of its Subsidiaries or (iii) constitute a
default under or give rise to a right of termination, cancellation or
acceleration of any right or obligation of the Guarantor or to a loss of any
benefit to which the Guarantor is entitled under any provision of any
agreement, contract or other instrument binding upon the Guarantor or any
license, franchise, permit or other similar authorization held by the
Guarantor, except such as would not prevent performance hereof or have a
material adverse effect on the business, financial condition or results of
operations of the Guarantor and its subsidiaries, taken as a whole.
SECTION 6. Covenants of Guarantor. Guarantor, for itself and
its affiliates (as such term is defined in Rule 12b-2 promulgated under the
Securities Exchange Act of 1934, as amended), agrees to be bound by the
provisions of the Amended and Restated Governance Agreement and abide, and to
cause its affiliates to abide, by the obligations and limitations set forth
therein as if it were Roche, and agrees and acknowledges that any
limitation or restriction on Roche set forth therein shall be deemed to be,
and shall be construed as, a limitation or restriction on Guarantor and its
affiliates taken as a whole.
SECTION 7. Notice. All notices, requests and other
communications to any party hereunder shall be in writing (including telecopy
or similar writing) and shall be given,
if to Guarantor:
Roche Holdings, Inc.
c/o Roche Holding Ltd
Xxxxxxxxxxxxxxxxx 000
XX-0000 Xxxxx
Xxxxxxxxxxx
Attn.: Xx. Xxxxx Xxxxxx
Telecopy: 011-41-61-688-1396
with a copy to:
Xxxxx X. Xxxxxxx, Esq.
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: 000-000-0000
If to the Company to:
Genentech, Inc.
000 Xxxxx Xxx Xxxxx Xxxxxxxxx
Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxx X. XxXxxxxxxx
Telecopy: 000-000-0000
with a copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: 212-403-2000
or such other address or telecopier number as such party may hereafter specify
in writing. Each such notice, request or other communication shall be
effective (i) if given by telecopier, when such telecopy is transmitted to the
telecopier number specified in this Section or (ii) if given by any other
means, when delivered at the address specified in this Section.
SECTION 8. Authorized Agent. The Guarantor hereby appoints
Xxxxx Xxxx & Xxxxxxxx as its authorized agent upon whom process may be served
in any action or proceeding arising out of or based upon this Guaranty. The
Guarantor hereby expressly submits to the jurisdiction of any State or Federal
court in New York City or the State of Delaware.
SECTION 9. Successors and Assigns. The provisions of this
Guaranty shall be binding upon and inure to the benefit of the Company and
Guarantor and their respective successors and assigns.
SECTION 10. Governing Law. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
DELAWARE.
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be
duly executed as of this 25th day of October, 1995.
ROCHE HOLDING LTD
By /s/ X. X. Xxxxxx
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Title: Authorized Signatory
By /s/ X. Xxxxxx
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Title: Authorized Signatory
Agreed and Accepted:
GENENTECH, INC.
By /s/ Xxxx X. XxXxxxxxxx
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Title: Senior Vice President
