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EXHIBIT 2.2
GUARANTY
THIS GUARANTY, is made effective as of December 20, 1997, by Tyco
International Ltd., a Bermuda company with a principal place of business at The
Xxxxxxx Bldg., 00 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx XX 00 Bermuda ("Tyco"), to
American Cyanamid Company, a Maine corporation ("Cyanamid"), American Home
Products Corporation, a Delaware corporation ("AHP"), AHP Subsidiary Holding
Corporation, a Delaware corporation ("AHP Sub" and, together with AHP and
Cyanamid, "Sellers") with a principal place of business at 0 Xxxxxxx Xxxxx,
Xxxxxxx, Xxx Xxxxxx 00000, with respect to the obligations of Tyco International
(US) Inc., a Massachusetts corporation and an indirect wholly-owned subsidiary
of Tyco, with a principal place of business at Xxx Xxxx Xxxx, Xxxxxx, Xxx
Xxxxxxxxx 00000 ("Buyer").
W I T N E S S E T H; That
WHEREAS, Sellers and Buyer are parties to a certain Purchase Agreement of
even date herewith (the "Purchase Agreement"); and
WHEREAS, it is a condition to the obligations of Sellers to enter into the
Purchase Agreement that Tyco guarantee all obligations of Buyer which arise out
of the Purchase Agreement and Tyco is willing to guarantee all such obligations.
NOW, THEREFORE, in consideration of the foregoing matters, and for other
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Tyco hereby agrees as follows:
ARTICLE I
1. Tyco hereby irrevocably guarantees the payment and performance of all
debts, obligations and liabilities of Buyer to Sellers arising pursuant to the
Purchase Agreement and any document executed incident thereto, now due or
hereafter falling due if Buyer fails to perform, pay or discharge such debts,
obligations and liabilities, together with all costs of collection, compromise
or enforcement, including, without limitation, reasonable attorneys' fees
incurred with respect to any such debts, obligations or liabilities or with
respect to this or any other guaranty of any of them, or with respect to a
proceeding under the United States Bankruptcy Code or any other state or federal
bankruptcy, reorganization, receivership, insolvency or other similar law
affecting the rights of creditors generally, or a trust mortgage, composition or
assignment for the benefit of creditors concerning Buyer or Tyco, together with
interest on all such costs of collection, compromise or enforcement from the
date arising (all of the foregoing, collectively, the "Obligations").
2. Tyco hereby agrees:
(a) that this Guaranty is irrevocable and shall not be impaired by any
modification, supplement, extension or amendment of the Purchase Agreement
or any of the Obligations, nor by any modification release or other
alteration of any of the Obligations hereby guaranteed or of any security
therefore, nor by any agreements or arrangements whatever with Buyer or
anyone else;
(b) that the liability of Tyco hereunder is primary, direct and
unconditional and not of collection only and may be enforced without
requiring Sellers first to resort to any other right, remedy or security,
and does not require Sellers to proceed against the Buyer or any of its
affiliates or any other person or pursue any other remedy whatever;
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(c) that Tyco shall not have any right of subrogation, reimbursement
or indemnity whatsoever, nor any right of recourse to security for any of
the Obligations, unless and until all of the Obligations have been fully
paid and performed;
(d) that if Buyer or Tyco should at any time become insolvent or make
a composition, trust mortgage or general assignment for the benefit of
creditors, or if a proceeding under the United States Bankruptcy Code or
any other state or federal bankruptcy, reorganization, receivership,
insolvency or other similar law affecting the rights of creditors generally
shall be filed or commenced by, against or in respect of Buyer or Tyco, any
and all obligations of Tyco shall, at Sellers' option, immediately become
due and payable without notice which is expressly waived;
(e) that, if any payment or transfer to Sellers which has been
credited against any Obligation under the Purchase Agreement, is voided or
rescinded or required to be returned by Sellers, whether or not in
connection with any event or proceeding described in Section 2(d), this
Guaranty shall continue in effect or be reinstated as though such payment,
transfer or recovery had not been made;
(f) that Sellers' books and records showing the account between
Sellers and Buyer shall be admissable in any action or proceeding;
(g) that this Guaranty shall be construed as an absolute and
independent, unconditional, present and continuing and unlimited obligation
of Tyco without regard to the regularity, validity or enforceability of any
of the Obligations, and without regard to whether any Obligation is
limited, modified, voided, released or discharged in any proceeding under
the United States Bankruptcy Code or any other state or federal bankruptcy,
reorganization, receivership, insolvency or other similar law affecting the
rights of creditors generally;
(h) that this Guaranty shall be terminated by Tyco with Sellers' prior
written consent, which shall not be unreasonably withheld, only as of the
date on which Buyer has fully paid and completely performed and
indefeasibly paid in full all of the Obligations;
(i) that any termination of this Guaranty shall be applicable only to
transactions having their inception after the effective date of such
termination and shall not affect rights and obligations arising out of
transactions having their inception prior to such date; and
(j) that nothing shall discharge or satisfy the liability of Tyco
hereunder except the full payment and performance of all of the
Obligations, and shall be reinstated, if at any time any payment of any of
the Obligations is rescinded or otherwise returned by Sellers or upon the
insolvency, bankruptcy or reorganization of Buyer or any of its affiliates,
all as though such payment had not been made.
3. Tyco waives to the greatest extent permitted by the internal laws of the
State of New York without regard to the conflicts of laws of such State: notice
of acceptance hereof; presentment and protest or demand of any instrument, and
notice thereof ; notice of default or dishonor; notice of foreclosure; notice of
any modification, any requirement for promptness, diligence and notice of
acceptance, release or other alteration of any of the Obligations or of any
security therefor and all other notices to which Tyco might otherwise be
entitled.
4. This Guaranty, all acts and transactions hereunder, and the rights and
obligations of the parties hereto shall be governed, construed and interpreted
according to the internal laws of the State of New York without regard to the
conflicts of laws of such State, shall be binding upon the successors and
assigns of Tyco, and shall inure to the benefit of Sellers' successors and
assigns; provided, however, that the obligations hereunder are personal to Tyco
and may not be assigned without Sellers' prior written consent.
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5. Notwithstanding anything to the contrary contained herein, Tyco shall
have the right to rely on any defense available to Buyer under the Purchase
Agreement or otherwise in satisfaction of this Guaranty; provided, however, that
Tyco will not exercise any rights which it may acquire by way of subrogation
under this Guaranty by any payment made hereunder or otherwise, until all
Obligations have been performed or paid in full.
ARTICLE II
Tyco represents and warrants to Sellers as follows:
A. CORPORATE ORGANIZATION. Tyco is a corporation duly organized, validly
existing and in good standing under the laws of Bermuda. Tyco has the requisite
corporate power and authority to own, operate or lease the properties that it
purports to own, operate or lease and to carry on its business as it is now
being conducted and is duly licensed or qualified as a foreign corporation in
each domestic or foreign jurisdiction in which the nature of the business
conducted by it or the character or location of the properties owned or leased
by it makes such licensing or qualification necessary, except where the failure
to be so licensed or qualified would not reasonably be expected to have a
material adverse effect on the business, operations or financial condition of
Tyco and its subsidiaries, taken as a whole, or on the ability of Tyco to
guarantee all of the Obligations contemplated herein.
B. AUTHORITY RELATIVE TO THIS AGREEMENT. Tyco has the requisite corporate
power and authority to execute and deliver this Guaranty and to guarantee all of
the Obligations contemplated herein. The execution and delivery by Tyco of this
Guaranty and the guarantee by Tyco of all of the Obligations contemplated herein
have been duly authorized by all necessary corporate action on the part of Tyco,
and no other corporate proceeding is necessary for the execution and delivery of
this Guaranty, the performance by Tyco of its obligations hereunder, and the
obligations of Tyco to guarantee all of the Obligations contemplated herein.
This Guaranty has been duly executed and delivered by Tyco and constitutes a
legal, valid and binding obligation of Tyco, enforceable against Tyco in
accordance with its terms, except as the same may be limited by bankruptcy,
insolvency, moratorium, reorganization or other laws of general applicability
relating to or affecting the enforcement of creditors' rights and general
principles of equity, but shall be subject to the provisions of this Guaranty to
the fullest extent permitted by law in the event that any such limitations shall
apply.
C. CONSENTS AND APPROVALS; NO VIOLATIONS. Except as contemplated in the
Purchase Agreement, no material filing with, and no material permit,
authorization, consent or approval of, any public body or authority is necessary
for the consummation by Tyco of the transactions contemplated by this Guaranty.
The execution and delivery of this Guaranty and the guarantee of all of the
Obligations contemplated herein will not (x) conflict with or result in a breach
of any of the provisions of the Memorandum of Association or Bye-laws (or other
incorporation documents) of Tyco, (y) be subject to the making of the filings
and the obtaining of the governmental and other consents referred to herein,
contravene in any material respect any law, rule or regulation of any state, the
United States or any country or any order, writ, judgment, injunction, decree,
determination or award currently in effect that is binding upon Tyco or any of
its subsidiaries or any of their respective properties, or (z) violate or result
in a breach or result in the acceleration or termination of, or the creation in
any third party of the right to accelerate, terminate, modify or cancel, any
material indenture, contract, lease, sublease, loan agreement, note or other
material obligation or liability to which Tyco or any of its affiliates is a
party or is bound or to which any of the assets of Tyco are subject.
D. FINANCIAL CAPABILITY. Tyco has sufficient funds to meet all of its
obligations hereunder and to guarantee all of the Obligations contemplated
herein.
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ARTICLE III
A. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered personally,
mailed by reputable overnight courier or certified mail (return receipt
requested) or sent by telecopier (confirmed thereafter by such certified mail)
to the parties at the following addresses or at such other addresses as shall be
specified by the parties by like notice:
(a) if to Sellers:
c/o American Home Products Corporation
Five Xxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attention: Chief Financial Officer
Telecopier Number: (000) 000-0000
with a copy to:
American Home Products Corporation
Five Xxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attention: Senior Vice President and General Counsel
Telecopier Number: (000) 000-0000
(b) if to Buyer:
Tyco International (US) Inc.
Xxx Xxxx Xxxx
Xxxxxx, Xxx Xxxxxxxxx 00000
Attention: Chief Financial Officer
Telecopier Number: (000) 000-0000
with a copy to:
Tyco International (US) Inc.
Xxx Xxxx Xxxx
Xxxxxx, Xxx Xxxxxxxxx 00000
Attention: General Counsel
Telecopier (000) 000-0000
(c) if to Tyco:
Tyco International Ltd.
The Xxxxxxx Xxxx.
00 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx XX 00 Xxxxxxx
Xxxxxxxxx: Chief Financial Officer
Telecopier Number: (000)-000-0000
Notice so given shall (in the case of notice so given by mail) be deemed to
be given and received on the third calendar day after mailing or the next
business day if sent by a reputable overnight courier and (in the case of notice
so given by telecopier or personal delivery) on the date of actual transmission
or (as the case may be) personal delivery.
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(B) SUBMISSION TO JURISDICTION. Tyco hereby submits to the non-exclusive
jurisdiction of the United States District Court for the Southern District of
New York and of any New York State court sitting in New York City for purposes
of all legal proceedings arising out of or relating to this Guaranty or the
transactions contemplated hereby. Tyco irrevocably waives to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of the venue of any such proceeding brought in such a court and any claim that
any such proceeding brought in such a court has been brought in an inconvenient
forum. Buyer appoints CT Corporation System ("Process Agent") as its agent to
receive on its behalf service of copies of the summons and complaint and any
other process that might be served in the proceedings. Sellers may make service
on Buyer by sending or delivering a copy of the process (i) to the party to be
served at the address and in the manner provided for the giving of notices in
Section A above, or (ii) to the party to be served in care of the Process Agent
at 0 Xxxxxx Xxxxxx Xxxxxx, XX 00000. Nothing in this Section (B), however, shall
affect the right of any party to serve legal process in any manner permitted by
law or at equity. Each party agrees that a final judgment in any action or
proceeding so brought shall be conclusive and may be enforced by suit on the
judgment or in any other manner by law or at equity.
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(C) SEVERABILITY. If any provisions of this Guaranty shall be held to be
illegal, invalid or unenforceable under any applicable law, then such
contravention or invalidity shall not invalidate the entire Guaranty. Such
provision shall be deemed to be modified to the extent necessary to render it
legal, valid and enforceable, and if no such modification shall render it legal,
valid and enforceable, then this Guaranty shall be construed as if not
containing the provision held to be invalid, and the rights and obligations of
the parties shall be construed and enforced accordingly.
This Guaranty has been duly executed as of the date first above written.
TYCO INTERNATIONAL LTD.
By: ________________________
Title: ________________________
