RECIPROCAL GUARANTY
EXHIBIT 10.10
THIS RECIPROCAL GUARANTY (this “Guaranty”), dated as of April 29, 2010, is executed by
CareFusion Corporation, a Delaware corporation (the “Seller Guarantor”), in favor of Blitz
F10-acht-drei-fünf GmbH & Co. KG, a limited partnership organized under the laws of the Federal
Republic of Germany (“Purchaser”), and by eResearchTechnology, Inc., a Delaware corporation (the
“Purchaser Guarantor” and together with the Seller Guarantor, the “Guarantors”) in favor of
CareFusion Germany 234 GmbH, a limited liability company organized under the laws of the Federal
Republic of Germany (“Seller”).
WHEREAS, in order to induce Purchaser and Seller to enter into that certain Agreement relating
to the sale, purchase and transfer of all shares in Research Services Germany 234 GmbH, dated as of
April 29, 2010 (the “Agreement”), between Purchaser and Seller, the Guarantors have agreed, subject
to the terms and conditions contained in this Guaranty, to the following: (a) the Seller Guarantor
shall guarantee the payment and performance of all obligations, liabilities and indemnities of
Seller now existing or hereafter arising under the Agreement and following Completion the documents
executed in connection therewith and Section 5 of the Hive Out Agreement (whether or not Seller at
any time in question then exists) (collectively, the “Seller Obligations”) and to execute and
deliver this Guaranty; and (b) the Purchaser Guarantor shall guarantee the payment and performance
of all obligations, liabilities and indemnities of Purchaser now existing or hereafter arising
under the Agreement and following Completion (x) the documents executed in connection therewith and
(y) all obligations, liabilities and indemnities of the Company now existing or hereafter arising
under Section 5 of the Hive Out Agreement (whether or not Purchaser at any time in question then
exists) (collectively, the “Purchaser Obligations”) and to execute and deliver this Guaranty;
WHEREAS, the Guarantors 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,
Guarantors agree as follows:
Section 1. Unconditional Guarantee.
(a) Seller Guarantor fully and irrevocably guarantees the prompt and punctual payment and
performance of the Seller Obligations as and when due. This Guaranty shall be a full,
unconditional, irrevocable, absolute and continuing guarantee of payment and performance and not a
guarantee of collection, and Seller Guarantor shall remain liable on the Seller Obligations
hereunder until the payment or performance in full of the Seller Obligations.
(b) Purchaser Guarantor fully and irrevocably guarantees the prompt and punctual payment and
performance of the Purchaser Obligations as and when due. This Guaranty shall be a full,
unconditional, irrevocable, absolute and continuing guarantee of payment and performance and not a
guarantee of collection, and Purchaser Guarantor shall remain liable on the Purchaser Obligations
hereunder until the payment or performance in full of the Purchaser Obligations.
(c) Except as provided in Section 1(g) below, Seller Guarantor’s guarantee and responsibility
shall not be discharged, released, diminished, or impaired in whole or in part by any setoff,
counterclaim, defense, act or occurrence which Seller Guarantor may have against Purchaser as a
result of or arising out of the Agreement or the documents executed in connection therewith.
Except as provided in Section 1(g) below, Purchaser Guarantor’s guarantee and responsibility shall
not be discharged, released, diminished, or impaired in whole or in part by any setoff,
counterclaim, defense, act or occurrence which the Purchaser Guarantor may have against the Seller
as a result of or arising out of the Agreement or the documents executed in connection therewith.
(d) (1) The Seller Obligations of Seller Guarantor hereunder shall not be released,
discharged, diminished or impaired by (i) the renewal, extension, modification or alteration by
Purchaser and Seller, with or without the knowledge or consent of Seller Guarantor, of the
Agreement or the documents executed in connection therewith or of any liability or obligation of
Seller thereunder or of any document or instrument under which the Seller Obligations arise, (ii)
any forbearance or compromise granted to Seller by Purchaser when dealing with Seller except to the
extent of such forbearance or compromise, (iii) any change in corporate structure or ownership of
Seller or the bankruptcy, insolvency, liquidation, receivership, dissolution, winding-up or
termination of Seller or the fact that at any xxxx Xxxxxx does not exist, (iv) the inaccuracy of
any of the representations and warranties of Seller under the Agreement or the documents executed
in connection therewith, (v) any neglect, delay, omission, failure or refusal of Seller to take or
prosecute any action in connection with the Agreement or documents executed in connection
therewith, (vi) the full or partial release of Seller on any liability or obligation, except that
Seller Guarantor shall be released pro tanto to the extent Purchaser expressly releases Seller from
liability with respect to the Seller Obligations, or (vii) any other circumstance relating to the
Seller Obligations that might otherwise constitute a legal or equitable discharge of or defense to
the Seller Guarantor not available to Seller who is liable for such Seller Obligations.
(2) The Purchaser Obligations of Purchaser Guarantor hereunder shall not be released,
discharged, diminished or impaired by (i) the renewal, extension, modification or alteration by
Purchaser and Seller, with or without the knowledge or consent of Purchaser Guarantor, of the
Agreement or the documents executed in connection therewith or of any liability or obligation of
Seller thereunder or of any document or instrument under which the Purchaser Obligations arise,
(ii) any forbearance or compromise granted to Purchaser by Seller when dealing with Purchaser
except to the extent of such forbearance or compromise, (iii) any change in corporate structure or
ownership of Purchaser or the bankruptcy, insolvency, liquidation, receivership, dissolution,
winding-up or termination of Purchaser or the fact that at any time Purchaser does not exist, (iv)
the inaccuracy of any of the representations and
warranties of Purchaser under the Agreement or the documents executed in connection therewith, (v)
any neglect, delay, omission, failure or refusal of Purchaser to take or prosecute any action in
connection with the Agreement or documents executed in connection therewith, (vi) the full or
partial release of Purchaser on any liability or obligation, except that Purchaser Guarantor shall
be released pro tanto to the extent Seller expressly releases Purchaser from liability with respect
to the Purchaser Obligations, or (vii) any other circumstance relating to the Purchaser Obligations
that might otherwise constitute a legal or equitable discharge of or defense to the Purchaser
Guarantor not available to Purchaser who is liable for such Purchaser Obligations.
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(e) Seller Guarantor waives notice of (i) acceptance of this Guaranty, (ii) the creation,
renewal, extension, modification, alteration or existence of any liability or obligation of Seller
constituting part of the Seller Obligations, and (iii) any breach of or default in the performance
of the Seller Obligations. Purchaser Guarantor waives notice of (i) acceptance of this Guaranty,
(ii) the creation, renewal, extension, modification, alteration or existence of any liability or
obligation of Purchaser constituting part of the Purchaser Obligations, and (iii) any breach of or
default in the performance of the Purchaser Obligations.
(f) (1) If Seller fails to perform Seller Obligations requiring payment, in whole or in part,
when such Seller Obligations are due, Seller Guarantor shall promptly pay such Seller Obligations
in lawful money of the United States. Seller Guarantor shall pay such amount within 5 Business
Days after receipt of demand for payment from Purchaser. Purchaser may enforce Seller Guarantor’s
obligations under this Guaranty without first suing Seller or joining Seller in any suit against
Seller Guarantor, or enforcing any rights and remedies against Seller, or otherwise pursuing or
asserting any claims or rights against Seller 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 Seller Guarantor is liable
under this Section 1.
(2) If Purchaser fails to perform Purchaser Obligations requiring payment, in whole or in
part, when such Purchaser Obligations are due, Purchaser Guarantor shall promptly pay such
Purchaser Obligations in lawful money of the United States. Purchaser Guarantor shall pay such
amount within 5 Business Days after receipt of demand for payment from Seller. Seller may enforce
Purchaser Guarantor’s obligations under this Guaranty without first suing Purchaser or joining
Purchaser in any suit against Purchaser Guarantor, or enforcing any rights and remedies against
Purchaser, or otherwise pursuing or asserting any claims or rights against Purchaser 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 Purchaser Guarantor is liable under this Section 1.
(g) Seller Guarantor reserves the right to assert defenses which Seller may have to payment or
performance of any Seller Obligation, other than defenses that Seller may possess relating to (i)
lack of validity or enforceability of the Agreement or the documents executed in connection
therewith against Seller arising from Seller’s defective incorporation or formation or lack of
qualification to do business in any applicable jurisdiction, (ii) Seller’s lack of corporate
authority to enter into or perform the Agreement or documents executed in connection therewith or
the due execution and delivery thereof, or (iii) the termination of existence, dissolution,
liquidation, insolvency, bankruptcy, receivership, or other reorganization of Seller. Likewise,
Purchaser Guarantor reserves the right to assert defenses which Purchaser may have to payment or
performance of any Purchaser Obligation, other than defenses that Purchaser may possess relating to
(i) lack of validity or enforceability of the Agreement or the documents executed in connection
therewith against Purchaser arising from Purchaser’s defective incorporation or formation or lack
of qualification to do business in any applicable jurisdiction, (ii) Purchaser’s lack of corporate
authority to enter into or perform the Agreement or documents executed in connection therewith or
the due execution and delivery thereof, or (iii) the termination of existence, dissolution,
liquidation, insolvency, bankruptcy, receivership, or other reorganization of Purchaser.
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Section 2. Refund of Payments. If under applicable bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or other similar laws of general application with
respect to creditors, Purchaser is required to refund part or all of any payment hereunder to
Seller or Seller Guarantor, such payment shall not constitute a release from any liability
hereunder, and Seller Guarantor’s liability hereunder shall be reinstated to such extent.
Likewise, 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 hereunder to Purchaser or Purchaser Guarantor, such
payment shall not constitute a release from any liability hereunder, and Purchaser Guarantor’s
liability hereunder shall be reinstated to such extent.
Section 3. 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 Seller Obligations is
rescinded or must otherwise be restored or returned by Purchaser, this Guaranty shall continue to
be effective, or be reinstated, as the case may be, all as though such payment had not been made.
Likewise, 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 Purchaser Obligations is rescinded or must otherwise be restored or
returned by Seller, this Guaranty shall continue to be effective, or be reinstated, as the case may
be, all as though such payment had not been made.
Section 4. Representation as to Benefit. Each of the Guarantors warrants and
represents for and as to itself that it has received, or will receive, direct or indirect benefit
from the making of this Guaranty.
Section 5. Representations and Warranties of Seller Guarantor. Seller Guarantor
hereby represents and warrants to Purchaser as follows:
(a) Organization. Seller Guarantor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and has the requisite organizational
power to carry on its business as it is now being conducted.
(b) Authority Relative to this Guaranty. Seller Guarantor has full corporate power
and authority to execute and deliver this Guaranty and to consummate the transactions contemplated
hereby. The execution and delivery by Seller Guarantor of this Guaranty and the
consummation by Seller Guarantor of the transactions and performance of the terms and conditions
contemplated hereby have been duly and validly authorized, and no other organizational proceedings
on the part of Seller Guarantor are necessary to authorize this Guaranty or consummate the
transactions so contemplated. This Guaranty has been duly and validly executed and delivered by
Seller Guarantor, and this Guaranty constitutes a valid and binding agreement of Seller Guarantor,
enforceable against Seller 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).
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(c) Consents and Approvals; No Violation. Neither the execution and delivery by
Seller Guarantor of this Guaranty nor the performance of its obligations under the 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 Seller 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
Seller Guarantor is a party or by which Seller 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 or consents have been obtained or will be obtained prior to the Effective Date or that are
not material, or (iv) violate any order, writ, injunction, decree, statute, rule or regulation
applicable to Seller Guarantor, or any of its assets.
(d) Litigation; Claims. There is no claim, action, proceeding or investigation pending
or, to the knowledge of Seller Guarantor, threatened against Seller Guarantor before any court or
governmental or regulatory authority or body that would prevent or delay in any material respect
the performance by Seller Guarantor of the guarantee contemplated hereby. Seller Guarantor is not
subject to any judgment or outstanding order, writ, injunction or decree that would have a material
adverse effect on its ability to perform its obligations under the guarantee contemplated hereby
and that would prevent or delay in any material respect the performance by Seller Guarantor of the
guarantee.
Section 6. Representations and Warranties of Purchaser Guarantor. Purchaser Guarantor
hereby represents and warrants to Seller as follows:
(a) Organization. Purchaser Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has the requisite
organizational power to carry on its business as it is now being conducted.
(b) Authority Relative to this Guaranty. Purchaser Guarantor has full corporate power
and authority to execute and deliver this Guaranty and to consummate the transactions contemplated
hereby. The execution and delivery by Purchaser Guarantor of this Guaranty and
the consummation by Purchaser Guarantor of the transactions and performance of the terms and
conditions contemplated hereby have been duly and validly authorized, and no other organizational
proceedings on the part of Purchaser Guarantor are necessary to authorize this Guaranty or
consummate the transactions so contemplated. This Guaranty has been duly and validly executed and
delivered by Purchaser Guarantor, and this Guaranty constitutes a valid and binding agreement of
Purchaser Guarantor, enforceable against Purchaser 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).
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(c) Consents and Approvals; No Violation. Neither the execution and delivery by
Purchaser Guarantor of this Guaranty nor the performance of its obligations under the 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 Purchaser 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
Purchaser Guarantor is a party or by which Purchaser 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 or consents have been obtained or will be obtained prior to the Effective Date or
that are not material, or (iv) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to Purchaser Guarantor, or any of its assets.
(d) Litigation; Claims. There is no claim, action, proceeding or investigation pending
or, to the knowledge of Purchaser Guarantor, threatened against Purchaser Guarantor before any
court or governmental or regulatory authority or body that would prevent or delay in any material
respect the performance by Purchaser Guarantor of the guarantee contemplated hereby. Purchaser
Guarantor is not subject to any judgment or outstanding order, writ, injunction or decree that
would have a material adverse effect on its ability to perform its obligations under the guarantee
contemplated hereby and that would prevent or delay in any material respect the performance by
Purchaser Guarantor of the guarantee.
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 Guaranty.
Section 8. Governing Law. THIS GUARANTY SHALL BE DEEMED TO BE A CONTRACT MADE UNDER
AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
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Section 9. Benefit. This Guaranty shall inure to the benefit of Purchaser, Seller and
their respective successors and assigns, and shall be binding upon each of the Guarantors and its
successors and assigns; provided, however, that (i) neither (a) Purchaser nor
Seller Guarantor shall assign its rights or obligations under this Guaranty without the prior
written consent of the other except by operation of law, and except that Purchaser may assign its
rights under this Guaranty to an affiliate, and (b) Seller nor Purchaser Guarantor shall assign its
rights or obligations under this Guaranty without the prior written consent of the other except by
operation of law, and except that Seller may assign its rights under this Guaranty to an affiliate,
(ii)(a) no assignment or other transfer by, through or under Purchaser shall operate to increase
Seller Guarantor’s obligations hereunder, and (b) no assignment or other transfer by, through or
under Seller shall operate to increase Purchaser Guarantor’s obligations hereunder, and (iii)(a)
Seller Guarantor shall be fully protected in making and shall receive full credit for any payments
or other performance made by it to Purchaser or its successors and assigns with respect to the
Seller Obligations prior to the xxxx Xxxxxx Guarantor receives written notice of such assignment or
succession, and (b) Purchaser Guarantor shall be fully protected in making and shall receive full
credit for any payments or other performance made by it to the Seller or its successors and assigns
with respect to the Purchaser Obligations prior to the time Purchaser Guarantor receives written
notice of such assignment or succession.
Section 10. Continuing Guarantee. Subject to the terms, conditions and limitations
hereof, this Guaranty is a continuing guarantee and shall remain in full force and effect and be
binding upon (a) Seller Guarantor until the Seller Obligations have been satisfied in full, and (b)
Purchaser Guarantor until the Purchaser Obligations have been satisfied in full.
Section 11. Notices. Any notice, demand or other communication required or permitted
under this 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 effective when actually
received by the party being notified. The addresses of the parties for purposes of notice are as
follows:
If to Seller Guarantor or Seller, to:
CareFusion Corporation
Xxxxxxxx Xxxxxxx
Vice President and Associate General Counsel — Mergers and Acquisitions
0000 Xxxxxx Xxxx Xx.
Xxx Xxxxx, XX 00000
XXX
Facsimile:
Xxxxxxxx Xxxxxxx
Vice President and Associate General Counsel — Mergers and Acquisitions
0000 Xxxxxx Xxxx Xx.
Xxx Xxxxx, XX 00000
XXX
Facsimile:
If to Purchaser Guarantor or Purchaser, to:
eResearch Technology, Inc.
Xxxx Xxxx
Senior Vice President, Healthcare Solutions
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
XXX
Facsimile:
Xxxx Xxxx
Senior Vice President, Healthcare Solutions
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
XXX
Facsimile:
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with a copy to:
eResearch Technology, Inc.
Xxxxx Xxxxxxx
Executive Vice President & Chief Financial Officer
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
XXX
Facsimile:
Xxxxx Xxxxxxx
Executive Vice President & Chief Financial Officer
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
XXX
Facsimile:
Either party may change its address by giving two (2) days’ advance written notice to the other
party.
Section 12. Subrogation. Upon payment of all of the Seller Obligations owing to
Purchaser, Seller Guarantor shall be subrogated to the rights of Purchaser against Seller, and
Purchaser agrees to take, at Seller Guarantor’s expense, such steps as Seller Guarantor may
reasonably request to implement such subrogation. Likewise, upon payment of all of the Purchaser
Obligations owing to Seller, Purchaser Guarantor shall be subrogated to the rights of the Seller
against Purchaser, and Seller agrees to take, at Purchaser Guarantor’s expense, such steps as
Purchaser Guarantor may reasonably request to implement such subrogation.
Section 13. Counterparts. This Guaranty may be executed in two or more counterparts,
and with counterpart signature pages, each of which shall be an original, but all of which together
shall constitute one and the same Guaranty, binding on all the parties hereto notwithstanding that
all such parties have not signed the same counterpart. Counterpart signature pages to this
Guaranty transmitted by facsimile transmission, by electronic mail in “portable document format”
(“.pdf”) form, or by any other electronic means intended to preserve the original graphic and
pictorial appearance of a document, will have the same effect as physical delivery of the paper
document bearing an original signature.
Section 14. Waiver of Jury Trial; Arbitration. THE GUARANTORS AND THE BENEFICIARIES
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
GUARANTY OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR
ACTIONS OF THE BENEFICIARIES OR THE GUARANTORS. All disputes, controversies or differences arising
out of or in connection with this Guaranty, including any question regarding its existence,
validity or termination, shall be settled in accordance with Sections 20.2 through 20.6 of the
Agreement. Any arbitration brought under this Guaranty may be brought concurrently and in the same
proceeding as any arbitration of any obligation guaranteed hereunder.
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IN WITNESS WHEREOF, the undersigned has executed this Guaranty as of the date first above
written.
| SELLER GUARANTOR: | ||||||
| CareFusion Corporation | ||||||
| By: | /s/ Xxxxx Xxxx
|
|||||
| Title: President, Medical Technologies and Services | ||||||
| PURCHASER GUARANTOR: | ||||||
| eResearchTechnology, Inc. | ||||||
| By: | /s/ Xxxxxxx XxXxxxxx
|
|||||
| Title: President and Chief Executive Officer | ||||||
| ACKNOWLEDGED AND AGREED: | ||||||
| SELLER: | ||||||
| CareFusion Germany 234 GmbH | ||||||
| By: | /s/ Xxxxx X. Xxxxxxx
|
|||||
| Title: Managing Director | ||||||
| PURCHASER: | ||||||
| Blitz F10-acht-drei-fünf GmbH & Co. KG | ||||||
| By: | /s/ Xxxx Xxxxx
|
|||||
| Title: Attorney, Noerr LLP | ||||||
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