EXHIBIT 99.4
GUARANTEE
This GUARANTEE ("Guarantee") is made and entered into as of this 20th
day of February, 2003, in favor of AMERICAN PHARMACEUTICAL PARTNERS, INC., a
Delaware corporation ("APP"), with offices at 0000 Xxxxxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxx 00000-0000, XXX, by XXXX XXXXXXXXXX, an individual
("Guarantor") with residences at 00000 Xxxx Xxxx Xxxx XX, Xxxxx, Xxxx 00000
(Ohio residence) and Xxxx Xxxxxx 0x, XX-0000 Xxxxxx, Xxxxxxxxxxx (Lugano
residence).
WHEREAS, Tramontana is Chairman, President and Chief Executive Officer,
as well as a principal shareholder, of Bigmar, Inc., a Delaware corporation,
which, in turn, owns all of the shares in Bigmar Pharmaceuticals, SA, a Swiss
corporation (collectively, "Bigmar"); and
WHEREAS, APP has advanced and may in the future advance certain funds
to Bigmar in respect of Bigmar's purchases of methotrexate active pharmaceutical
ingredient for Bigmar's conversion into finished pharmaceutical products for
sale to APP (hereinafter, the "Advance"); and
WHEREAS, the Advance has been memorialized in an Advance Agreement
between APP and Bigmar Pharmaceuticals, SA (with Bigmar, Inc. as a guarantor to
its subsidiary's obligations), which Advance Agreement provides for APP to be
repaid first through credits against invoices for purchases of the finished
product and then through repayment by Bigmar if full repayment is not achieved
through such credits within eighteen (18) months of the date of the Advance
Agreement; and
WHEREAS, APP and Guarantor have agreed that Guarantor shall provide a
personal guarantee of Bigmar's obligations under the Advance Agreement as an
additional safeguard to the repayment to APP of the Advance.
NOW, THEREFORE, Guarantor hereby covenants and agrees as follows:
1. Guarantor hereby absolutely and unconditionally guarantees to
APP the due and punctual payment in full, in lawful money of
the United States, of any and all sums which may at any time
be or become due and payable under and pursuant to the Advance
Agreement (a copy of which is attached hereto), as and when
the same shall be due and payable, whether by lapse of time or
otherwise.
2. Guarantor hereby agrees that its obligations hereunder are an
unconditional and absolute guarantee of payment of the terms
and provisions of the Advance Agreement, and shall remain in
full force and effect, irrespective of any waiver, consent, or
granting of any indulgence of APP or any other person to
Bigmar (either the parent or the subsidiary) with respect to
any provision of the Advance Agreement, irrespective of
whether APP has instituted any suit, action, or proceeding or
exhausted its remedies under the Advance Agreement or taken
any steps to enforce any rights against Bigmar (either the
parent or the subsidiary) to compel such performance or to
collect all or part of any payment of the Advance, at law or
in equity, irrespective of whether APP or any other person
shall have recovered any judgment against Bigmar (either the
parent or the subsidiary), and irrespective of any other
circumstances or contingencies.
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3. Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of merger
or bankruptcy of Bigmar (either the parent or the subsidiary),
any right to require a proceeding first against Bigmar (either
the parent or the subsidiary) of any other person, protest,
notice of default in the payment of any sum payable by Bigmar
(either the parent or the subsidiary) under the Advance
Agreement, notice of any other default, breach or
nonperformance of any agreement, covenant or obligation of
Bigmar (either the parent or the subsidiary) under the Advance
Agreement, notice and all demands whatsoever, with respect to
the Advance Agreement or any indebtedness evidenced thereby.
4. Guarantor hereby expressly waives notice from APP of its
acceptance of and reliance on this Guarantee. Guarantor agrees
to pay all costs, expenses and fees, including reasonable
attorneys fees and expenses, which may be incurred in
enforcing or attempting to enforce this Guarantee following
any default on the part of Guarantor, whether the same shall
be enforced by suit or otherwise.
5. No amendment, release or modification of the provisions of
this Guarantee shall be established by conduct, custom or
course of dealing, by solely by an instrument in writing duly
signed by APP and Guarantor. No delay or omission by APP to
exercise any right under this Guarantee shall impair any such
right, nor shall it be construed to be a waiver thereof.
6. The obligations of Guarantor under this Guarantee shall not be
altered, limited, or affected by any proceeding, voluntary or
involuntary, involving the bankruptcy, insolvency,
receivership, reorganization, liquidation or arrangement of
Bigmar (either the parent or the subsidiary), or any defense
Bigmar (either the parent or the subsidiary) may have by
reason of the order or decision of any court or administrative
body resulting from such proceeding.
7. Guarantor represents and warrants that he is Chairman,
President and Chief Executive Officer, as well as a principal
shareholder, of Bigmar, Inc., a Delaware corporation, and that
Bigmar, Inc. owns all of the shares in Bigmar Pharmaceuticals,
SA, a Swiss corporation (collectively, "Bigmar"). Guarantor
further represents and agrees that the consideration received
for this Guarantee is reasonably worth at least as much as the
liability and obligation under this Guarantee.
8. This Guarantee shall be governed by and construed in
accordance with the laws of the State of Illinois.
Executed this 27th day of February, 2003.
/s/Xxxx Xxxxxxxxxx
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Xxxx Xxxxxxxxxx
Guarantor
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