Exhibit 2.2
GUARANTY
This Guaranty (this "Guaranty") is made as of October 29, 2007 by Nycomed
S.C.A., SICAR, 0-00 xxx Xxxxxxx Xxxxx, X 0000 Xxxxxxxxxx, Grand Duchy of
Luxembourg (the "Guarantor"), in favor of Xxxxxxx Pharmaceuticals, Inc., a
Delaware corporation (the "Company"). Unless otherwise defined herein, all
capitalized terms used herein shall have the meaning ascribed to them in the
Agreement (as defined below).
WHEREAS, as an inducement to the Company's willingness to enter into the
Agreement and Plan of Merger (as amended or otherwise supplemented from time to
time, the "Agreement"), dated as of October 29, 2007, by and among Nycomed US
Inc., a New York corporation ("Parent"), Phase Merger Sub Inc., a Delaware
corporation and a wholly-owned subsidiary of Parent ("Merger Sub"), and the
Company, the Guarantor has agreed to guarantee the payment and performance by
Parent and Merger Sub, respectively, of their Obligations (as defined below)
under the Agreement.
NOW, THEREFORE, the Guarantor hereby agrees with the Company as follows:
Section 1. Guaranty of Obligations. The Guarantor hereby irrevocably,
absolutely and unconditionally guarantees to the Company the payment when due,
and the performance, of all liabilities, agreements and other obligations of
Parent and Merger Sub to the Company, whether direct or indirect, absolute or
contingent, due or to become due, secured or unsecured, now existing or
hereafter arising under the Agreement (the "Obligations"). This Guaranty is an
absolute, unconditional and continuing guarantee of the full and punctual
payment and performance of the Obligations, and not a guarantee of collection.
Section 2. Representations and Warranties. The Guarantor represents and
warrants that:
(a) Organization and Good Standing. The Guarantor is a
partnership limited by shares (societe en commandite par actions) duly organized
and validly existing in good standing under the laws of the Grand Duchy of
Luxembourg and has full power and authority to own its properties and to conduct
its business as such properties are presently owned and such business is
presently conducted.
(b) Power and Authority; Due Authorization. The Guarantor has
all necessary corporate power and authority to execute and deliver this Guaranty
and to perform all its obligations hereunder. The execution, delivery and
performance of this Guaranty has been duly authorized by all necessary corporate
action.
(c) Binding Obligations. This Guaranty constitutes the legal,
valid and binding obligation of the Guarantor, enforceable against the Guarantor
in accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors rights generally and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
Section 3. Guarantor's Acknowledgment. The Guarantor hereby acknowledges
that the Company entered into the transactions contemplated by the Agreement in
reliance upon the execution of this Guaranty.
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Section 4. Termination of Guaranty. The Guarantor's obligations hereunder
shall continue in full force and effect until the closing of the transactions
contemplated by the Agreement or the termination thereof as provided therein
(except that Sections 1, 3 and 5 through 12 hereof shall survive such
termination).
Section 5. Successors and Assigns. This Guaranty shall be binding upon the
Guarantor and its successors and assigns, and shall inure to the benefit of and
be enforceable by the Company and its respective successors, transferees and
assigns. The Guarantor may not assign or transfer any of its obligations
hereunder without the prior written consent of the Company.
Section 6. Amendments and Waivers. No amendment or waiver of any provision
of this Guaranty nor consent to any departure by the Guarantor therefrom shall
be effective unless the same shall be in writing and signed by the Company. No
failure on the part of the Company to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any right hereunder preclude any other or further exercise
thereof or the exercise of any other right.
Section 7. Notices. All notices and other communications called for
hereunder shall be made in writing and, unless otherwise specifically provided
herein, shall be deemed to have been duly made or given when delivered by hand
or mailed first class, postage prepaid, or, in the case of telecopied or telexed
notice, when transmitted, answer back received, addressed as follows: (i) if to
the Guarantor, to it at Nycomed S.C.A., SICAR, c/o Nycomed Germany Holding GmbH,
Xxx-Xxxxxx-Xxx. 0, 00000 Xxxxxxxx, Xxxxxxx, Attention: General Counsel NYCOMED
GROUP, Facsimile: x00 (0) 0000 00-00000 and (ii) if to the Company, at its
address for notices set forth in the Agreement.
Section 8. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York (without giving
effect to choice of law principles thereof that would result in the application
of the laws of another jurisdiction).
Section 9. Submission to Jurisdiction. The Guarantor hereby (a) consents
to submit itself to the personal jurisdiction of any New York state or federal
court located in the City of New York in the event any dispute arises out of
this Agreement or any transaction contemplated by this Guaranty, (b) agrees that
it will not attempt to deny or defeat such personal jurisdiction by motion or
other request for leave from any such court, and (c) agrees that it will not
bring any action relating to this Guaranty or any transaction contemplated by
this Guaranty in any court other than any such court. The Guarantor hereby
irrevocably and unconditionally waives any objection to the laying of venue of
any action, suit or proceeding arising out of this Guaranty or the transactions
contemplated hereby in New York state or federal courts located in the City of
New York, and hereby further irrevocably and unconditionally waives and agree
not to plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum.
Section 10. WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY WAIVES ANY RIGHT TO
A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS
UNDER OR RELATING TO THIS GUARANTY, OR ANY AMENDMENT, INSTRUMENT, DOCUMENT OR
AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION
HEREWITH OR THEREWITH OR ARISING FROM ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN), ACTIONS OF EITHER THE GUARANTOR OR THE
COMPANY OR ANY OTHER RELATIONSHIP EXISTING IN CONNECTION WITH THIS GUARANTY, AND
AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY.
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Section 11. Counterparts. This Guaranty may be executed in counterparts,
each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same agreement.
Section 12. Miscellaneous. This Guaranty constitutes the entire agreement
of the Guarantor with respect to the matters set forth herein. No failure on the
part of the Company to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right hereunder preclude any other or further exercise thereof or the
exercise of any other right. The rights and remedies herein provided are
cumulative and not exclusive of any remedies provided by law or any other
agreement. The provisions of this Guaranty are severable, and in any action or
proceeding involving any state corporate law, or any state, federal or foreign
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of the Guarantor hereunder would
otherwise be held or determined to be avoidable, invalid or unenforceable on
account of the amount of the guaranty, the amount of such liability shall,
without any further action by the Guarantor be automatically limited and reduced
to the highest amount that is valid and enforceable as determined in such action
or proceeding. The invalidity or unenforceability of any one or more sections of
this Guaranty shall not affect the validity or enforceability of its remaining
provisions. Captions are for ease of reference only and shall not affect the
meaning of the relevant provisions.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed
and delivered as of the date first above written.
Signed on behalf of NYCOMED S.C.A., SICAR
By: Nycomed LuxCo S.A., acting in its capacity as general partner of Nycomed
S.C.A., SICAR
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Member of the Board of Directors
By: /s/ Xxxxxxxxxx Xxxxxxxx
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Name: Xxxxxxxxxx Xxxxxxxx
Title: Member of the Board of Directors
[Signature Page to Guaranty]
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