Exhibit 10.1
EXECUTION COPY
GUARANTEE
GUARANTEE dated as of March 12,
2009 by Roche Holding Ltd, a joint stock company organized under
the laws of Switzerland (the “ Guarantor ”), for
the benefit of Genentech, Inc. (together with its successors and
permitted assigns, the “ Beneficiary
”).
W I T N E S S E T H
:
WHEREAS, Roche Holdings, Inc., a
Delaware corporation (together with its successors and assigns
under the Merger Agreement, the “ Obligor ”) is
an indirect wholly-owned subsidiary of the Guarantor;
and
WHEREAS, the Obligor has entered
into an Agreement and Plan of Merger dated as of March 12,
2009 (as amended, modified or supplemented from time to time, the
“ Merger Agreement ”) among the Beneficiary, the
Obligor and Roche Investments USA Inc. (the “ Merger
Subsidiary ”); and
WHEREAS, this Guarantee is being
made at the request of the Obligor and the Beneficiary;
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 the Obligor’s
and Merger Subsidiary’s (and their permitted assigns’)
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 performance 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, other indulgence,
renewal, settlement, compromise, discharge (other than payment in
full or full performance of obligations), waiver, subordination or
release in respect of any obligation of the Obligor or Merger
Subsidiary under the Merger Agreement, by operation of law or
otherwise;
(b) any modification or amendment of
or supplement to the Merger Agreement;
(c) any change in the corporate
existence, structure or ownership of the Obligor or Merger
Subsidiary, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting the Obligor or Merger Subsidiary or
their respective assets or any resulting release or discharge of
any obligation of the Obligor or Merger Subsidiary contained in the
Merger Agreement;
(d) the existence of any claim,
set-off, counterclaim or other rights which the Guarantor may have
at any time against the Obligor or Merger Subsidiary, the
Beneficiary or any other Person; provided that nothing
herein shall prevent the assertion of any such claim by separate
suit or compulsory counterclaim;
(e) any incapacity or lack of power,
authority or legal personality, or change in the existence,
structure, constitution, name, control or ownership of the Obligor
or Merger Subsidiary;
(f) any defense arising by reason of
any failure of Beneficiary to proceed against Obligor or any other
person, or to apply or exhaust any security held from Obligor or
any other person for all or any part of the Obligations, to proceed
against, apply or exhaust any security held from the Guarantor or
any other person, or to pursue any other remedy available to the
Beneficiary or to realize full value of any security and any
defense relating to any impairment of Guarantor’s right of
subrogation;
(g) any defense arising by reason of
breach by Obligor or the Merger Subsidiary of any representation,
warranty or covenant contained in the Merger Agreement;
or
(h) any other event, act or omission
to act or delay of any kind by the Obligor or the Merger
Subsidiary, 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 irrevocably paid or
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 (including, without
limitation, the insolvency, bankruptcy or reorganization of the
Obligor or the Merger Subsidiary), 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 the 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
2
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 the 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. Additional Waivers by the
Guarantor. Provided that the Beneficiary shall have made a
request (oral or written) to the Obligor for payment or performance
(which procedural requirement to make such a request shall not
apply in the event of the initiation of pendency of any
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