GUARANTY
Exhibit 10.12
This GUARANTY (“Guaranty”) is made effective as of October 1, 2015 by XXXXXX MEDICAL GROUP N.V., a public limited company (naamloze vennootschap) incorporated under the laws of the Netherlands (“Guarantor”), in favor of Xxxxxx X. Xxxxxxxxx (“Executive”).
WHEREAS, Xxxxxx Medical Group, Inc., a Delaware corporation (“Xxxxxx”), and Executive have entered into an Employment Agreement (the “Employment Agreement”) dated as of October 1, 2015;
WHEREAS, Guarantor owns, directly or indirectly, all of the issued and outstanding shares of capital stock of Xxxxxx and is the ultimate parent company of Xxxxxx and has independent means of assessing the financial condition and business of Xxxxxx;
WHEREAS, in connection with the execution of the Employment Agreement, Executive has insisted that Guarantor execute this Guaranty;
WHEREAS, Guarantor has examined the Employment Agreement and is fully cognizant of the covenants and agreements contained therein and its obligations under this Guaranty with respect to the Employment Agreement.
NOW, THEREFORE, in consideration of the premises, which shall be considered an integral part hereof and not as mere recitals hereto, and other good and valuable consideration, the receipt and sufficiency whereof is hereby acknowledged, Guarantor, intending to be legally bound, agrees as follows:
1. Guarantor, in its capacity as (indirect) shareholder of Xxxxxx, hereby unconditionally and irrevocably guarantees to Executive with respect to the Employment Agreement the full and prompt performance and observance of all covenants, agreements, obligations and liabilities provided in the Employment Agreement to be performed and observed by Xxxxxx, its successors, and assigns, including the due and punctual payment of all amounts which are or may become due and payable by Xxxxxx thereunder when and as the same shall become due and payable (collectively, “Xxxxxx’x Obligations”) and the Guarantor further agrees to pay all expenses (including attorneys’ fees and legal expenses) paid or incurred by Executive in endeavoring to collect the Xxxxxx’x Obligations, or any part thereof, and in enforcing this Guaranty. The Guarantor acknowledges and agrees that, with respect to all of Xxxxxx’x Obligations to pay money, such Guaranty shall be a guaranty of payment and performance and not of collection.
2. Guarantor agrees that its obligations hereunder shall not be terminated, reduced, or affected in any way by reason of: (a) the assertion by Xxxxxx against Executive of any right or remedy for the enforcement of the obligations of Xxxxxx under the Employment Agreement, or (b) the waiver by Executive of, or its failure to enforce, any of the terms, covenants, or conditions of the Employment Agreement, or (c) the granting of any indulgence or extension of time to Xxxxxx or (d) the assertion by Xxxxxx against Executive of any right or remedy for the enforcement of the obligations of Executive under the Employment Agreement.
3. Executive agrees that it will not make demand on Guarantor under this Guaranty until such time as Executive has given Xxxxxx written notice of default by Xxxxxx under the Employment Agreement or Xxxxxx is then subject to a proceeding for relief (as defined in
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Paragraph 4 below). Provided that Executive complies with the immediately preceding sentence, Guarantor agrees that Executive may at its option proceed against Guarantor without having commenced any legal proceeding or having obtained any judgment against Xxxxxx. Except as set forth in this Xxxxxxxxx 0, Xxxxxxxxx waives the right, whether legal or equitable, statutory or non-statutory, to require pursuit of any remedies against Xxxxxx or any other person or that resort be had to any other security or to any balance of any account or credit, before pursuit against Guarantor under this Guaranty, notice of the acceptance by Executive of this Guaranty, notice of the existence or creation or non-payment of all or any of the Xxxxxx’x Obligations, and presentment, demand, notice of dishonor, protest, and all other notices whatsoever.
4. The liability of Guarantor hereunder is unconditional and absolute and, without limiting the generality of the foregoing, shall not be released or otherwise affected by (a) the release or discharge of Xxxxxx in any insolvency, bankruptcy, reorganization, receivership, or other debtor relief proceeding involving Xxxxxx (collectively “proceeding for relief”); (b) the impairment, limitation, or modification of the liability of Xxxxxx in any proceeding for relief, or of any remedy for the enforcement of Xxxxxx’x liability under the Employment Agreement, resulting from the operation of any law relating to bankruptcy, insolvency, or similar proceeding or other law or from any decision in any court; (c) the cessation from any cause whatsoever of the liability of Xxxxxx; (d) the invalidity or unenforceability, in whole or in part, of the Employment Agreement; (e) any modification or amendment of or supplement to the Employment Agreement; (f) any acceleration, extension, renewal, settlement, compromise, waiver or release in respect of any of Xxxxxx’x Obligations by operation of law or otherwise; (g) any change in the corporate existence, structure or ownership of Xxxxxx or the Guarantor; or (h) any other act, omission to act, delay of any kind by any party hereto or any other person, or any other circumstance whatsoever that might, but for the provisions of this Guaranty, constitute a legal or equitable discharge of the obligations of the Guarantor hereunder.
5. This Guaranty shall continue to be effective until Xxxxxx’x Obligations and all of obligations of the Guarantor hereunder shall have been indefeasibly performed in full. If at any time any performance by Xxxxxx to Executive under the Employment Agreement is rescinded or must otherwise be returned by Executive upon any proceeding for relief involving Xxxxxx, then Guarantor’s obligations hereunder with respect to such Xxxxxx’x Obligation shall be reinstated at such time as though such Xxxxxx’x Obligation had become due and had not been performed.
6. Until such time as this Guaranty shall have been discontinued and Executive shall have received indefeasible payment of the full amount of all Xxxxxx’x Obligations and of all obligations of the Guarantor hereunder, no payment made by or for the account of the Guarantor pursuant to this Guaranty shall entitle the Guarantor by subrogation or otherwise to any payment by Xxxxxx from or out of any property of Xxxxxx and the Guarantor shall not exercise any right or remedy against Xxxxxx or any property of Xxxxxx by reason of any performance by the Guarantor of this Guaranty.
7. This Guaranty shall be binding upon Guarantor, its successors and assigns, and shall inure to the benefit of Executive, and Executive’s heirs, successors and assigns.
8. This Guaranty is the complete obligation of Guarantor with respect to its subject matter and supersedes all prior agreements and understandings and may not be amended, nor any of its terms waived except in a writing signed by Guarantor and Executive. This Guaranty shall be governed by the laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction).
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9. AT THE OPTION OF EXECUTIVE, THIS GUARANTY MAY BE ENFORCED IN ANY FEDERAL COURT OR TENNESSEE STATE COURT SITTING IN SHELBY COUNTY, TENNESSEE; AND THE GUARANTOR CONSENTS TO THE JURISDICTION AND VENUE OF ANY SUCH COURT AND WAIVES ANY ARGUMENT THAT VENUE IN SUCH FORUMS IS NOT CONVENIENT. IN THE EVENT THE GUARANTOR COMMENCES ANY ACTION IN ANOTHER JURISDICTION OR VENUE UNDER ANY TORT OR CONTRACT THEORY ARISING DIRECTLY OR INDIRECTLY FROM THE RELATIONSHIP CREATED BY THIS GUARANTY, EXECUTIVE AT ITS OPTION SHALL BE ENTITLED TO HAVE THE CASE TRANSFERRED TO ONE OF THE JURISDICTIONS AND VENUES ABOVE-DESCRIBED, OR IF SUCH TRANSFER CANNOT BE ACCOMPLISHED UNDER APPLICABLE LAW, TO HAVE SUCH CASE DISMISSED WITHOUT PREJUDICE.
10. EACH OF THE GUARANTOR AND EXECUTIVE, BY ITS ACCEPTANCE OF THIS GUARANTY, IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY.
[Signature page follows]
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IN WITNESS WHEREOF, the undersigned Guarantor has caused this Guaranty to be executed in its name and on its behalf by its duly authorized director effective as of the date first written above.
| XXXXXX MEDICAL GROUP N.V. | ||
| By: | /s/ Xxxxx X. Xxxxxxxx | |
| Name: | Xxxxx X. Xxxxxxxx | |
| Title: | Senior Vice President, General Counsel and Secretary | |
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