GUARANTEE
Exhibit
(d)(2)
GUARANTEE
dated as of January 21, 2008 by Roche Holding Ltd, a joint stock company
organized under the laws of Switzerland (the “Guarantor”), for
the benefit of Ventana Medical Systems, Inc. (the
“Beneficiary”).
W
I T N E S S E T H :
WHEREAS,
Roche Holdings, Inc., a Delaware corporation (the “Obligor”) is
an indirect wholly-owned subsidiary of Guarantor; and
WHEREAS,
the Obligor has entered into an Agreement and Plan of Merger (the
“Merger Agreement”) dated as of January 21, 2008 among
Beneficiary, Obligor and Rocket Acquisition Corporation (the “Merger
Subsidiary”);
NOW,
THEREFORE, in consideration of the promises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
Guarantor agrees as follows:
1. The
Guarantee, etc. The Guarantor hereby unconditionally and
irrevocably guarantees the full and punctual performance and discharge of
Obligor’s payment and performance obligations, including the obligation to cause
the Merger Subsidiary to perform its obligations, under the Merger Agreement
(each a “Guaranteed Obligation”). The Guaranteed
Obligations include, without limitation, an unconditional guarantee of payment
and not of collectability.
2. Guarantee
Unconditional. The obligations of the Guarantor hereunder shall
be unconditional and absolute and, without limiting the generality of the
foregoing, shall not be released, discharged or otherwise affected
by:
(a) any
extension, renewal, settlement, compromise, waiver or release in respect of
any
obligation of the Obligor under the Merger Agreement, by operation of law or
otherwise;
(b) any
modification or amendment of or supplement to the Merger Agreement;
(c) the
existence of any claim, set-off or other rights which the Guarantor may have
at
any time against the Obligor;
(d) any
change
in the corporate existence, structure or ownership of the Obligor, or any
insolvency, bankruptcy, reorganization
or
other
similar proceeding affecting the Obligor or its assets or any resulting release
or discharge of any obligation of the Obligor contained in the Merger Agreement;
or
(e) any
other
act or omission to act or delay of any kind by the Obligor, the Beneficiary
or
any other person or any other circumstance whatsoever which might, but for
the
provisions of this paragraph, constitute a legal or equitable discharge of
or
defense to the Guarantor’s obligations hereunder.
3. Discharge
Only Upon Satisfaction in Full. The Guarantor’s obligations
hereunder shall remain in full force and effect until all Guaranteed Obligations
shall have been performed in full. In the event that any payment to
the Beneficiary in respect of any Guaranteed Obligation is rescinded or must
otherwise be returned for any reason whatsoever, the Guarantor shall remain
liable hereunder with respect to such Guaranteed Obligation as if such payment
had not been made. The Guarantor hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have or hereafter
acquire against Obligor or any other Person primarily or secondarily liable
with
respect to any of the Guaranteed Obligations that arise from the existence,
payment, performance or enforcement of the Guarantor’s obligations hereunder
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate in
any
claim or remedy of the Beneficiary against any other Person primarily or
secondarily liable with respect to any of the Guaranteed Obligations, whether
such claim, remedy or right arises in equity or under contract, statute or
common law, including, without limitation, the right to take or receive from
Obligor or any other Person primarily or secondarily liable with respect to
any
of the Guaranteed Obligations, directly or indirectly, in cash or other property
or by set-off or in any other manner, payment or security on account of such
claim, remedy or right, in each case unless and until all of the Guaranteed
Obligations and all other amounts payable under this Guarantee shall have been
paid in full in cash. If any amount shall be paid to the Guarantor in
violation of the immediately preceding sentence, such amount shall be received
and held in trust for the benefit of the Beneficiary, and shall forthwith be
paid or delivered to the Beneficiary in the same form as so received (with
any
necessary endorsement or assignment) to be credited and applied to the amounts
payable under this Guarantee.
4. Waivers
by the Guarantor. The Guarantor irrevocably waives all defenses,
including, without limitation, suretyship defenses, and any requirement that
at
any time any action be taken by any person or entity against the Obligor, the
Guarantor or any other person or entity.
5. Representations
and Warranties. The Guarantor represents and warrants to the
Beneficiary that:
(a) the
Guarantor is duly organized and validly existing under the laws of the
jurisdiction of its organization;
(b) the
execution, delivery and performance by the Guarantor of this Guarantee are
within the Guarantor’s corporate powers and have been duly authorized by all
necessary corporate action;
(c) this
Guarantee has been duly executed and delivered by the Guarantor and constitutes
a legal, valid and binding obligation of the Guarantor, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws affecting creditors’ rights generally
and subject to general principles of equity, regardless of whether considered
in
a proceeding in equity or at law;
(d) the
execution, delivery and performance of this Guarantee (i) do not require any
consent or approval of, registration or filing with, or other action by, any
governmental authority, except such as have been obtained and are in full force
and effect, (ii) will not violate any applicable law or regulation or the
charter, by-laws or other organizational documents of the Guarantor or any
order
of any court or governmental authority, and (iii) will not violate or result
in
a default under any indenture, agreement or other instrument binding upon the
Guarantor or any of its properties or give rise to a right thereunder to require
the Guarantor to make any payment;
(e) there
are
no actions, suits or proceedings by or before any arbitrator or court or other
governmental authority pending against or, to the knowledge of the Guarantor,
threatened against or affecting the Guarantor as to which there is a reasonable
possibility of adverse determinations that, in the aggregate, could reasonably
be expected to result in a material adverse effect on the assets, operations
or
condition, financial or otherwise, of the Guarantor or the ability of the
Guarantor to perform its obligations under this Guarantee; and
(f) the
audited consolidated balance sheet of the Obligor as of December 31, 2006 and
the related statements of income, cash flows, recognized income and expense
and
changes in equity for the fiscal year then ended, together with the notes
thereto, fairly present in all material respects the consolidated financial
position, results of operations and cash flows of the Obligor as of December
31,
2006 and for the year then ended.
6. Notices. All
notices, requests and other communications to any party hereunder shall be
in
writing (including, without limitation, facsimile transmission) and shall be
given, as
follows:
(i)
if to
the Guarantor, to it at:
Xxxxxxxxxxxxxxxxx
000
XX-0000
Xxxxx
Xxxxxxxxxxx
Attention:
General Counsel
Facsimile
No.: x00 00 000 0000
with
a copy to:
Xxxxx
Xxxx & Xxxxxxxx
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxxx
Xxxxx
Xxxx
X. Xxxxxxxx
Facsimile
No.: (000) 000-0000
(ii)
if to the Obligor, to it at:
Roche
Holdings, Inc.
0000
X.
Xxxxxx Xx., Xxxxx #000
Xxxxxxxxxx,
XX 00000-0000
Attention: Xxxxx
Xxxxxxxxxx, Secretary
Facsimile
No.: (000) 000 0000
with
a copy to:
Xxxxx
Xxxx & Xxxxxxxx
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxxx
Xxxxx
Xxxx
X. Xxxxxxxx
Facsimile
No.: (000) 000-0000
(iii)
if to the Beneficiary, to it at:
Ventana
Medical Systems, Inc.
0000
X.
Xxxxxxxxxx Xxxx Xxxxx
Xxxxxx,
Xxxxxxx 00000
Attention:
Chief Executive Officer
General
Counsel
Facsimile
No.: (000) 000-0000
with
a
copy to:
Sidley
Austin LLP
Xxx
Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attention: Xxxxxx
X. Xxxx
Xxxxxxxxx
X. Xxxxxxxx
Xxxxxxx
X. Xxxxxx
Xxxxxx
X. Xxxxxxx
Facsimile
No.: (000) 000-0000
and
with a
copy to:
Xxxxx
& Xxxxxx LLP
One
Arizona Center
000
Xxxx Xxx Xxxxx
Xxxxxxx,
Xxxxxxx 00000
Attention: Xxxxxx
X. Xxxxxxx
Facsimile
No.: (000) 000-0000
or
to such
other address or facsimile number as such party may hereafter specify for the
purpose by notice to the other parties hereto. All such notices,
requests and other communications shall be deemed received on the date of
receipt by the recipient thereof if received prior to 5 p.m. on a business
day
in the place of receipt. Otherwise, any such notice, request or
communication shall be deemed to have been received on the next succeeding
business day in the place of receipt.
7. Defined
Terms. Capitalized terms used but not defined herein shall have
the meanings assigned to them in the Merger Agreement.
8. No
Waiver. No failure or delay by the Beneficiary in exercising any
right, power or privilege under this Guarantee or the Merger Agreement shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege.
9. Amendments
and Waivers. Any provision of this Guarantee may be amended or
waived if, but only if, such amendment or waiver is in writing and is signed
by
the Beneficiary and the Guarantor.
10. Successors
and Assigns. This Guarantee shall be binding upon the Guarantor
and its successors and permitted assigns, for the benefit of the Beneficiary
and
its successors and assigns. The Guarantor may not assign its rights,
duties or obligations hereunder to any other Person (except by operation of
law)
without the prior written consent of the Beneficiary.
11. Governing
Law. This Guarantee shall be governed by and construed in
accordance with the law of the State of Delaware, without regard to the
conflicts of law rules of such state.
12. Jurisdiction. The
parties hereto agree that any suit, action or proceeding seeking to enforce
any
provision of, or based on any matter arising out of or in connection with,
this
Guarantee or the transactions contemplated hereby shall be brought in the Court
of Chancery of the State of Delaware in and for New Castle County, Delaware
or,
if such court shall not have jurisdiction, in any federal court located in
the
State of Delaware or other Delaware state court, and each of the parties hereby
irrevocably consents to the jurisdiction of such courts (and of the appropriate
appellate courts therefrom) in any such suit, action or proceeding and
irrevocably waives, to the fullest extent permitted by law, any objection that
it may now or hereafter have to the laying of the venue of any such suit, action
or proceeding in any such court or that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient
forum. Process in any such suit, action or proceeding against any
party other than a party having its registered office in Switzerland may be
served anywhere in the world, whether within or without the jurisdiction of
any
such court. Process in any such suit, action or proceeding against
any party having its registered office in Switzerland shall be made in
accordance with the provisions of the Hague Convention of 15 November 1965
on
the Service Abroad of Judicial and Extrajudicial Documents in Civil or
Commercial Matters. Without limiting the foregoing, each party agrees that
service of process as provided in Section 6 on a party not having its registered
office in Switzerland shall be deemed effective service of process on such
party.
13. WAIVER
OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED
TO THIS GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY.
14. Expenses. The
Guarantor agrees to pay all reasonable out-of-pocket expenses (including,
without limitation, the reasonable fees and expenses of the Beneficiary’s
counsel) incurred by the Beneficiary in connection with the successful
enforcement of the rights of the Beneficiary hereunder.
*
* * *
*
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By:
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/s/
Xxxxx Xxxxxxx
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Name:
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Xxxxx
Xxxxxxx
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Title:
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Authorized
Signatory
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By:
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/s/
Beat Kraehenmann
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Name:
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Beat
Kraehenmann
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Title:
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Authorized
Signatory
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Agreed
to and accepted by:
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VENTANA
MEDICAL SYSTEMS, INC.
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By:
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/s/
Xxxxxxxxxxx X. Xxxxxxx
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Name:
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Xxxxxxxxxxx
X. Xxxxxxx
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Title:
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President
and
Chief
Executive Officer
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