This GUARANTEE AGREEMENT (this "Agreement") is made and entered into on by and
between Roche Diagnostics GmbH, with registered office at Sandhofer Strasse 116,
D-68305 Mannheim ("Seller") and Technical Chemicals and Products Inc., 3341 SW
15th Street, Pompano Beach, Florida 33069, USA ("Guarantor").
Whereas, Seller and its Affiliates own a world-wide pregnancy and
ovulation testing business carried on under the EVATEST(R),
EVAPLAN(R), EVENT-TEST(R), DIAGNOSIS(R) and related
trademarks, which is sold to Guarantors Affiliates under
attached Global Business and Asset Purchase Agreement and the
attached Local Asset Purchase Agreements.
Whereas Seller and Guarantor hereby enter into this Agreement to
provide Seller with an irrevocable and unconditional guarantee
for the performance of Guarantor's Affiliates with the Global
Business and Asset Purchase Agreement and the Local Asset
Purchase Agreements for the transfer of the global trademark
rights for EVATEST(R), EVAPLAN(R), EVENT(R), DIAGNOSIS(R)and
related trademarks as registered in Italy, Uruguay and
Argentina and for the transfer of the business position of
Seller and Seller's Affiliates in Germany, Switzerland, Italy,
Spain, Uruguay and Argentina and for the transfer of the local
sales organization in Argentina, which agreements are
attached.
Now, therefore, in consideration of the foregoing and intending to be legally
bound, the parties hereto agree as follows:
1 DEFINITIONS
1.1 "Affiliate" of a party means any corporation or other business entity
controlled by, controlling or under common control with, such party.
For this purpose "control" shall mean direct or indirect beneficial
ownership of more than fifty percent (50%) of the voting or income
interest in such corporation or other business entity; provided,
however, Genentech, Inc. and its subsidiaries shall not be considered
an Affiliate of Seller.
1.2 "Global Business and Asset Purchase Agreement" means the Global
Business and Asset Purchase Agreement referring to Seller's pregnancy
testing business as concluded between Guarantor's Affiliate and Seller
as attached hereto as Exhibit I.
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1.3 "Local Asset Purchase Agreements" means the Asset Purchase Agreements
as concluded between Guarantor's Affiliates and Seller or Seller'
Affiliates referring to Seller's pregnancy testing business and to be
concluded on a local basis for transferring the assets held or owned by
a Seller's Affiliate and attached hereto as Exhibits II - VII.
2 GUARANTEE
2.1 The Guarantor hereby irrevocably and unconditionally guarantees the
performance by Buyer and Buyer's Affiliates of all their respective
obligations under the Global Business and Asset Purchase Agreement and
the Local Asset Purchase Agreements, including all Exhibits, and the
ancillary documents entered into pursuant thereto in the event that
Buyer and/or Buyer's Affiliates fails to comply with any or all
obligations under the Global Business and Asset Purchase Agreement
and/or the Local Asset Purchase Agreements.
2.2 At the request of the Seller, the Guarantor hereby irrevocably
undertakes to pay to Seller any sum or sums due to Seller or Seller's
Affiliates according to obligations under the Global Business and Asset
Purchase Agreement and the Local Asset Purchase Agreements, including
all Exhibits, and the ancillary documents entered into pursuant
thereto.
2.3 Furthermore, Guarantor hereby waives and abandons any and all right of
set-off for his obligations hereunder.
3 REPRESENTATIONS AND WARRANTIES OF GUARANTOR
3.1 Organization. Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida,
USA, has all corporate powers and material governmental licenses,
authorizations, permits, consents and approvals required to carry on
its business as currently conducted and has full corporate power and
authority to consummate the transactions contemplated hereby.
3.2 Authority. The execution, delivery and performance of this Agreement by
Guarantor and its Affiliates have been duly and validly authorized by
all necessary corporate proceedings, and this Agreement has been duly
authorized, executed, and delivered by Guarantor and its Affiliates
and, assuming the enforceability against Seller, constitutes the legal,
valid and binding obligation of Guarantor, enforceable in accordance
with its terms.
3.3 Liquidity. Guarantor, at the date of signature of this Agreement, is
able to fulfil all of its obligations, covenants etc. according to this
Agreement and the Local Asset Purchase Agreements.
3.4 No Violation or Conflict. The execution, delivery and performance of
this Agreement by Guarantor do not and will not conflict with, violate
or constitute or
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result in a default under any law, judgement, order, decree, the
articles of incorporation or bylaws of Guarantor, or any contract or
agreement to which Guarantor is a party or by which Guarantor is bound.
3.5 No Government Restrictions. Except as set forth in the disclosure
schedule to the Global Business and Asset Purchase Agreement, no
consent, approval, order or authorization of, or registration,
declaration or filing with, any governmental agency is required to be
obtained or made by or with respect to Guarantor in connection with the
execution, delivery and performance of this Agreement by Guarantor.
4 GUARANTOR'S COVENANTS
Liquidity. Guarantor agrees and undertakes to refrain from any and all
action that could endanger, and to take all possible steps and actions
to maintain, its sufficient liquidity to comply with all of its
financial obligations under this Agreement, for a period of five years
after the Closing date.
5 COVENANTS BY GUARANTOR AND SELLER
5.1 Press Releases. Any announcement, publication or press release
referring to this Agreement and all transactions related thereto
(Announcements) require prior written consent by both parties, which
consent shall not be unreasonably withheld. Purchase Price and other
confidential information shall not be disclosed at all, except as
required by law or regulation. The parties shall agree upon the wording
and timing of any such announcement.
5.2 Confidentiality.
5.2.1 Each party shall, and procure that its Affiliates shall, treat as
strictly confidential and not use any information received or obtained
as a result of entering into or performing this Agreement (or any other
agreement entered into under or pursuant to this Agreement) which
relates to:
a) the provisions of this Agreement and any other document
referred to herein;
b) the negotiations relating to this Agreement and any other
document referred to herein; c) any other party and the
members of its respective group (as at the date of this
Agreement) and the business or businesses carried on by each
of them;
d) trading terms, discounts or special arrangements with
individual customers of each of the parties.
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5.2.2 The provisions of Section 5.2.1 above shall not prohibit disclosure or
use if and to the extent:
a) required by law or for the purpose of any judicial proceedings
arising out of this Agreement or any other agreement entered
into under or pursuant to this Agreement;
b) required by any recognized investment exchange or any other
competent regulatory authority;
c) required to vest the full benefit of this Agreement in any
party;
d) made to or used by the professional advisers, auditors and
bankers of either party on terms that such professional
advisers, auditors and bankers undertake to comply with the
provisions of Section 5.2.1 above in respect of such
information as if they were a party to this Agreement;
e) information has become generally available through no fault
of that party; or
f) such disclosure is permitted under Section 5.1.
5.3 Further Assurances. Guarantor shall use its best efforts to implement
the provisions of this Agreement and for such purpose, at the request
of the other party, shall, without further consideration, execute and
deliver, or cause to be executed and delivered, to the other party such
consents and other instruments in addition to those required by this
Agreement, in form and substance satisfactory to the other party, as
the other party may reasonably deem necessary or desirable to implement
any provision of this Agreement.
6 TERM AND TERMINATION
6.1 Termination. This Agreement shall come into force when executed by duly
authorized officers of Guarantor and Seller and shall remain valid and
binding until full performance and consummation of any and all of
Buyer's or Buyer's Affiliates obligations under the Global Business and
Asset Purchase Agreement and the Local Asset Purchase Agreements and
the transactions contemplated thereby.
6.2 Guarantor may terminate this Agreement by giving ninety (90) days prior
written notice in case Seller and Seller's Affiliates agree in writing
that, or a final court decision is issued to the effect that, both the
Global Business and Asset Purchase Agreement and all Local Asset
Purchase Agreements are validly terminated or declared null and void.
6.3 Effect of Termination. If this Agreement is terminated, all obligations
of Seller and Guarantor under this Agreement shall terminate without
further liability of Seller or Guarantor except (a) for the obligations
of Guarantor and Seller under Sections 5.1 (Press Releases), 5.2
(Confidentiality), 8 (Governing law), 9 (Additional Terms), and (b)
that such termination shall not constitute a waiver by any party of any
claim it may have for damages caused by reason of a breach by the other
party of a representation, warranty, covenant or agreement.
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7 NOTICES
Any notice required or permitted to be given hereunder shall be deemed
sufficient if sent by facsimile letter or overnight courier, or
delivered by hand to Seller or Guarantor at the respective addresses
and facsimile numbers set forth below or at such other address and
facsimile number as either party hereto may designate. If sent by
facsimile letter, notice shall be deemed given when the transmission is
completed if the sender has a confirmed transmission report and if the
sender has sent a confirmation copy by registered mail. If a confirmed
transmission report does not exist, then the notice will be deemed
given when the notice is actually received by the person to whom it is
sent. If delivered by overnight courier, notice shall be deemed given
when it has been signed for. If delivered by hand, notice shall be
deemed given when received.
if to Guarantor, to:
Technical Chemicals and Products Inc.
3341 SW 15th Street
Pompano Beach
Florida 33069
USA
Attention : President
Fax: 001 954 979 6125
with a copy to:
Ted Klinghofer
Akerman, Senterfitt & Edison P.A.
One Southeast Third Avenue, 28th floor
Miami
Florida 33131
USA
Fax: 001 305 374 5095
if to Seller, to:
Roche Diagnostics GmbH
Sandhoferstr. 116
D - 68305 Mannheim
Germany
Attention: Legal Department Patient Care (Dep. GL-RP)
Fax: +49 / 621 759 1578
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8 GOVERNING LAW AND JURISDICTION
8.1 This Agreement shall be governed by and construed in accordance with
the Laws of the Federal Republic of Germany.
8.2 The parties submit to the exclusive jurisdiction of the competent
courts of Mannheim, Germany.
9 ADDITIONAL TERMS
9.1 Entire Agreement. This Agreement embodies the entire agreement of the
parties hereto with respect to the subject matter hereof and supersede
and replace all previous negotiations, understandings, representations,
writings, and contract provisions and rights relating to the subject
matter hereof.
9.2 Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties and their respective successors and
assigns; provided that this Agreement may not be assigned by any party
without the written consent of the other party.
9.3 Amendments; No Waiver. No provision of this Agreement may be amended,
revoked or waived except by a letter signed and delivered by an
authorized representative of each party. No failure or delay on the
part of either party in exercising any right hereunder will operate as
a waiver of, or impair, any such right. No single or partial exercise
of any such right will preclude any other or further exercise thereof
or the exercise of any other right. No waiver of any such right will be
deemed a waiver of any other right hereunder.
9.4 Counterparts. This Agreement may be executed in one or more
counterparts all of which shall together constitute one and the same
instrument and shall become effective when a counterpart has been
signed by Guarantor and delivered to Seller and a counterpart has been
signed by Seller and delivered to Guarantor.
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10 LIST OF EXHIBITS
This Agreement contains the following Exhibits with their respective
schedules. Both, the content of Exhibits and Schedules is to be
regarded as content of this Agreement.
Exhibit I: Global Business and Asset Purchase Agreement
Exhibit II: Agreed Form of Asset Purchase Agreement for
Argentina
Exhibit III: Agreed Form of Asset Purchase Agreement for
Germany
Exhibit IV: Agreed Form of Asset Purchase Agreement for
Italy
Exhibit V: Agreed Form of Asset Purchase Agreement for
Spain
Exhibit VI: Agreed Form of Asset Purchase Agreement for
Switzerland
Exhibit VII: Agreed Form of Asset Purchase Agreement for
Uruguay
Exhibit VIII: Payment Schedule
Exhibit IX: Side Letter about Handling of Inventory of
Local Affiliates
IN WITNESS WHEREOF, this Agreement has been signed by duly authorized
representatives of each of the parties hereto as of the date first above
written.
Date: May, 18, 2000 Date: May, 18, 2000
Roche Diagnostics GmbH Technical Chemicals and Products, Inc.
i.V.
S. Ek N. Grzibek Jack L. Aronowitz
Chairman and President
This GUARANTEE AGREEMENT (this "Agreement") is made and entered into on by and
between Roche Diagnostics GmbH, with registered office at Sandhofer Strasse 116,
D-68305 Mannheim ("Seller") and Technical Chemicals and Products Inc., 3341 SW
15th Street, Pompano Beach, Florida 33069, USA ("Guarantor").
