EXHIBIT B
EXECUTION COPY
LIMITED GUARANTY
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This LIMITED GUARANTY (this "Limited Guaranty"), dated as of
December 14, 2009, is executed by Xxxxxx Laboratories, an Illinois corporation
(the "Guarantor"), in favor of Starlims Technologies Ltd., an Israeli
corporation ("Seller").
WHEREAS, in order to induce Seller to enter into the Agreement
and Plan of Merger (the "Agreement"), dated as of the date hereof by and among
Xxxxxx Investments Luxembourg SARL, a company organized under the laws of
Luxembourg ("Parent"), Scorpio Designated Corporation Ltd., an Israeli
corporation and a wholly owned Subsidiary of Parent ("Merger Sub") and Seller,
Guarantor has agreed, subject to the terms and conditions contained in this
Limited Guaranty, to guarantee the payment and performance of all obligations of
Parent now existing or hereafter arising under the Agreement (together with the
costs of enforcement of this Limited Guaranty, collectively, the "Obligations")
and to execute and deliver this Limited Guaranty;
WHEREAS, Guarantor will benefit, directly or indirectly, from
the consummation of the transactions contemplated by the Agreement;
WHEREAS, each capitalized term defined in the Agreement and
not otherwise defined herein shall have the meaning ascribed thereto in the
Agreement when used herein;
NOW, THEREFORE, in consideration of the foregoing, and
intending to be legally bound hereby, Guarantor agrees as follows:
Section 1. UNCONDITIONAL LIMITED GUARANTY.
(a) Guarantor fully and irrevocably guarantees the payment and
performance of the Obligations when due. Guarantor is hereby made fully
responsible for the acts and omissions of Parent that constitute a breach of the
Agreement. This Limited Guaranty shall be a full, unconditional, irrevocable,
absolute and continuing guarantee of payment and performance and not a guarantee
of collection, and Guarantor shall remain liable on the Obligations hereunder
until the payment in full of the Obligations. Guarantor shall be liable as a
co-obligor and not merely as a surety.
(b) The Obligations of Guarantor hereunder shall not be released,
discharged, diminished or impaired by (i) the renewal, extension, modification
or alteration by Parent and Seller, with or without the knowledge or consent of
Guarantor, of the Agreement or of any liability or obligation of Seller
thereunder or of any document or instrument under which the Obligations arise,
(ii) any forbearance or compromise granted to Parent by Seller when dealing with
Parent except to the extent of such forbearance or compromise, (iii) any change
in corporate structure or ownership of Parent or the bankruptcy, insolvency,
liquidation, receivership, dissolution, winding-up or termination of Parent,
(iv) the inaccuracy of any of the representations and warranties of Parent under
the Agreement, (v) any neglect, delay, omission, failure or refusal of Parent to
take or prosecute any action in connection with the Agreement, (vi) the full or
partial
release of Parent on any liability or obligation, except that Guarantor shall be
released pro tanto to the extent Seller expressly releases Parent from liability
with respect to the Obligations, or (vii) any other circumstance relating to the
Obligations that might otherwise constitute a legal or equitable discharge of or
defense to the Guarantor not available to Parent who is liable for such
Obligations.
(c) Notwithstanding anything herein to the contrary, the obligations of
Guarantor hereunder are limited and shall in no way require the payment by
Guarantor in excess of the Merger Consideration, RSU Consideration and Option
Consideration.
(d) Guarantor waives notice of (i) acceptance of this Limited Guaranty,
(ii) the creation, renewal, extension, modification, alteration or existence of
any liability or obligation of Parent constituting part of the Obligations, and
(iii) any breach of or default in the performance of the Obligations.
(e) If Parent fails to perform Obligations requiring payment, in whole
or in part, when such Obligations are due, Guarantor shall promptly pay such
Obligations in lawful money of the United States. Guarantor shall pay such
amount within five business days of receipt of demand for payment from Seller.
Seller may enforce Guarantor's obligations under this Limited Guaranty without
first suing Parent or joining Parent in any suit against Guarantor, or enforcing
any rights and remedies against Parent, or otherwise pursuing or asserting any
claims or rights against Parent or any other person or entity or any of its or
their property which may also be liable with respect to the matters for which
Guarantor is liable under this Section 1. Guarantor shall also pay the Seller's
reasonable costs of enforcement of this Limited Guaranty including reasonable
attorneys' and experts' fees and expenses.
(f) Guarantor reserves the right to assert defenses which Parent may
have to payment or performance of any Obligation, other than defenses that
Parent may possess relating to (i) lack of validity or enforceability of the
Agreement against Parent arising from Parent's defective incorporation or lack
of qualification to do business in any applicable jurisdiction, (ii) Parent's
lack of corporate authority to enter into or perform the Agreement or the due
execution and delivery thereof, or (iii) the termination of existence,
dissolution, liquidation, insolvency, bankruptcy, receivership, or other
reorganization of Parent.
Section 2. EXCLUSIVE REMEDY. Seller's remedies against Guarantor
hereunder shall be, and are intended to be, the sole and exclusive direct or
indirect remedies available to Seller against Guarantor and any former, current
or future director, officer, employee, agent, shareholder or affiliate (other
than Parent or Merger Sub) of Guarantor in respect of any liabilities or
obligations arising under, related to or in connection with, the Agreement or
the transactions contemplated thereby, including in the event Parent breaches
its obligations under the Agreement or in the event Guarantor breaches a
covenant, representation or warranty hereunder.
Section 3. REFUND OF PAYMENTS BY SELLER. If under applicable
bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other
similar laws of general application with respect to creditors, Seller is
required to refund part or all of any payment
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hereunder to Guarantor, such payment shall not constitute a release from any
liability hereunder, and Guarantor's liability hereunder shall be reinstated to
such extent.
Section 4. RESCISSION OF OBLIGATIONS. If under applicable bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium or other similar
laws of general application with respect to creditors, any payment, or any part
thereof, of any of the Obligations is rescinded or must otherwise be restored or
returned by Seller, this Limited Guaranty shall continue to be effective, or be
reinstated, as the case may be, all as though such payment had not been made.
Section 5. REPRESENTATION AS TO BENEFIT. Guarantor warrants and
represents for and as to itself that it has received, or will receive, direct or
indirect benefit from the making of this Limited Guaranty.
Section 6. REPRESENTATIONS AND WARRANTIES OF GUARANTOR. Guarantor
hereby represents and warrants to Seller as follows:
(a) ORGANIZATION. Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Illinois and has
the requisite corporate power to carry on its business as it is now being
conducted.
(b) AUTHORITY RELATIVE TO THIS LIMITED GUARANTY. Guarantor has full
corporate power and authority to execute and deliver this Limited Guaranty and
to consummate the transactions contemplated hereby. The execution and delivery
by Guarantor of this Limited Guaranty and the consummation by Guarantor of the
transactions and performance of the terms and conditions contemplated hereby
have been duly and validly authorized, and no other corporate proceedings on the
part of Guarantor are necessary to authorize this Limited Guaranty or consummate
the transactions so contemplated. This Limited Guaranty has been duly and
validly executed and delivered by Guarantor, and this Limited Guaranty
constitutes a valid and binding agreement of Guarantor, enforceable against
Guarantor in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally, and subject, as to enforceability, to general
principles of equity, including principles of commercial reasonableness, good
faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).
(c) CONSENTS AND APPROVALS; NO VIOLATION. Neither the execution and
delivery by Guarantor of this Limited Guaranty nor the performance of its
obligations under the Limited Guaranty contemplated hereby do or will (i)
conflict with or result in any breach of any provision of the articles of
incorporation or bylaws (or other similar governing documents) of Guarantor,
(ii) require any consent, approval, authorization or permit of, or filing with
or notification to, any governmental or regulatory authority, except where it is
reasonably expected that the failure to obtain such consent, approval,
authorization or permit, or to make such filing or notification, would not
prevent or delay in any material respect such performance, (iii) result in a
default (or give rise to any right of termination, cancellation or acceleration)
under any of the terms, conditions or provisions of any note, license, agreement
or other instrument or obligation to which Guarantor is a party or by which
Guarantor or any of its assets may be bound, except for such defaults (or rights
of termination, cancellation or acceleration) as to which requisite waivers
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or consents have been obtained or will be obtained prior to the Closing Date, or
(iv) violate any order, writ, injunction, decree, statute, rule or regulation
applicable to Guarantor, or any of its assets.
Section 7. COSTS AND EXPENSES. Each party agrees to pay to the
prevailing party, upon demand, all reasonable costs and expenses, including
reasonable attorneys' fees, that may be incurred by the prevailing party in
enforcing or defending its rights under this Limited Guaranty.
Section 8. GOVERNING LAW AND CONSENT TO JURISDICTION. This Guaranty
shall be governed by and construed in accordance with the laws of the State of
Delaware applicable to contracts made and performed in such State. The Guarantor
hereby irrevocably submits to the non-exclusive jurisdiction of any state or
federal court sitting in Wilmington, Delaware in any action or proceeding
arising out of or relating to the Agreement or this Limited Guaranty, and the
Guarantor hereby irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined in such state or federal court. The
Guarantor hereby irrevocably waives, to the fullest extent that they may legally
do so, the defense of an inconvenient forum to the maintenance of such action or
proceeding. The Guarantor irrevocably consents to the service of any and all
process in any action of proceeding c/o the Corporation Trust Company at 0000
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000. The Guarantor agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.
Section 9. BENEFIT. This Limited Guaranty shall inure to the benefit of
Seller and its successors and assigns, and shall be binding upon Guarantor and
its successors and assigns; provided, however, that (i) neither Seller nor
Guarantor shall assign its rights or obligations under this Limited Guaranty
without the prior written consent of the other except by operation of law, ,
(ii) no assignment or other transfer by, through or under Seller shall operate
to increase Guarantor's obligations hereunder, and (iii) Guarantor shall be
fully protected in making and shall receive full credit for any payments or
other performance made by it to Seller or its successors and assigns with
respect to the Obligations prior to the time Guarantor receives written notice
of such assignment or succession.
Section 10. CONTINUING LIMITED GUARANTY. Subject to the terms,
conditions and limitations hereof, this Limited Guaranty is a continuing
guarantee and shall remain in full force and effect and be binding upon
Guarantor until the Obligations have been satisfied in full. Notwithstanding the
foregoing, this Limited Guaranty shall terminate and the Guarantor shall have no
further obligation under this Limited Guaranty as of the earlier of (a) the
occurrence of the Effective Time and payment of the Merger Consideration by
Parent under the Agreement at such time, or (b) the one-year anniversary of the
date of termination of the Agreement, unless a claim hereunder has been made
prior to such date.
Section 11. NOTICES. Any notice, demand or other communication required
or permitted under this Limited Guaranty shall be in writing and given by hand
delivery, facsimile, overnight courier, or United States mail. All notices shall
be properly addressed to the recipient, with all postage and other charges being
paid by the party giving notice. Notices shall be
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effective when actually received by the party being notified. The addresses of
the parties for purposes of notice are as follows:
If to Guarantor, to:
Xxxxxx Laboratories
000 Xxxxxx Xxxx Xxxx
0XXX Xxxx. XX0X-0
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Executive Vice President, Diagnostics
Facsimile: (000) 000-0000
with a copy to
Xxxxxx Laboratories
000 Xxxxxx Xxxx Xxxx
Xxxx. 0000, Xxxx. XX0X
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with copies (which shall not constitute notice) to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
and
Xxxxxx, Xxx & Xxxxxx
Xxxx Xxxxx
0 Xxxxxxxx Xxxxxx
Xxx Xxxx, 00000, Xxxxxx
Attention: Xxxx Xxxxx
Facsimile: x000-0-000-0000
If to Seller, to:
Starlims Technologies Ltd.
00X Xxxxxxxx Xxxxxx
Xxx-Xxxx 00000
Xxxxxx
Attention: Xxxxx Xxxxxxxx
Facsimile: x000-0-000-0000
with copies (which shall not constitute notice) to:
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Xxxxxx Xxxxxxx & Xxxxxxx LLP
0 Xxxx Xxxxxx, Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
and
Lahav, Xxxxxx-Xxxxx & Co.
52 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx 00000, Xxxxxx
Attention: Xxxx Xxxxx, Adv.
Facsimile: x000-0-000-0000
Either party may change its address by giving two days' advance written notice
to the other party.
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IN WITNESS WHEREOF, the undersigned has executed this Limited
Guaranty as of the date first above written.
XXXXXX LABORATORIES
By:___________________
Name:
Title:
AGREED AND ACCEPTED
as of the date first written above
STARLIMS TECHNOLOGIES LTD.
By: _____________________
Name:
Title:
[Signature Page to Limited Guarantee]
