EXHIBIT 2.4
GUARANTY
This Guaranty ("Guaranty") is made on January 18, 2001, by TranSwitch
Corporation (the "Guarantor"), in favor of the persons listed under the heading
"Vendors" on the signature pages hereto (the "Vendors").
Recitals
Whereas, TranSwitch III, Inc., a Delaware corporation and wholly owned
subsidiary of Guarantor (the "Obligor") and the Vendors (as hereinafter defined)
are entering into a Share Purchase Agreement of even date regarding the sale by
the Vendors of shares of ADV Engineering, a societe anonyme organized under the
laws of France, to the Obligor;
Whereas, as partial payment for such sale, the Obligor has covenanted to
the Vendors to pay to Vendors certain consideration in cash or in shares of
Guarantor's stock pursuant to the Share Purchase Agreement and a Warranty
Agreement by and between Obligor and certain Vendors (the "Warranty Agreement");
Whereas, as a condition to entering into the Share Purchase Agreement, the
Vendors are requiring the Guarantor to guaranty performance of the Obligor's
obligations arising under the Share Purchase Agreement and the Warranty
Agreement;
Now, Therefore, in consideration of the foregoing recitals and the mutual
promises, representations, warranties, covenants and conditions set forth in
this Guaranty, the Guarantor, intending to be legally bound, does hereby agree
as follows:
1. Definitions and Terms.
(a) Definitions. For purposes of this Guaranty, the following terms
shall have the following definitions:
"Bankruptcy Code" means the U.S. Bankruptcy Reform Act, Title 11
of the United States Code, as amended from time to time, or any successor
statute.
"Person" means any natural person, sole proprietorship, general
partnership, limited partnership, joint venture, trust, unincorporated
organization, association, corporation, public authority, or any other
organization, irrespective of whether it is a legal entity.
(b) Other Terms. Capitalized terms used herein without definition
shall have the meaning ascribed to them in the Share Purchase Agreement.
Wherever appropriate in the context, terms used herein in the singular also
include the plural and vice versa.
2. Guaranty. The Guarantor hereby absolutely, unconditionally and
irrevocably guarantees to the Vendors the due and punctual payment of Obligor's
obligations to deliver cash or securities due to the Vendors arising under the
Share Purchase Agreement and Warranty Agreement (the "Guaranteed Obligations").
This guaranty of the Guaranteed Obligations includes, but is not limited to, all
such Guaranteed Obligations that arise after the filing of a bankruptcy petition
with respect to the Obligor and such Guaranteed Obligations that would become
due but for the operation of (i) the automatic stay under Section 362(a) of the
Bankruptcy Code, or (ii) Section 502(b) of the Bankruptcy Code. This Guaranty
is a guaranty of
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prompt and punctual payment of the Guaranteed Obligations and is not merely a
guaranty of collection.
3. Independent Guaranteed Obligations. This Guaranty is independent of
the obligations of Obligor arising under the Share Purchase Agreement and the
Warranty Agreement. The Vendors may bring a separate action to enforce the
provisions hereof against the Guarantor without (a) taking action against the
Obligor or any other Person or (b) joining the Obligor or any other Person as a
party to such action.
4. Term; Revival.
(a) This Guaranty is irrevocable by the Guarantor. It is a continuing
guaranty and shall terminate only upon the full satisfaction of the Guaranteed
Obligations.
(b) The liability of the Guarantor hereunder shall be reinstated and
revived, and the rights of the Vendors shall continue, with respect to any
amount at any time paid by the Obligor on account of the Guaranteed Obligation
which the Vendors shall be required to restore or return upon the bankruptcy,
insolvency or reorganization of the Obligor or for any other reason, whether by
court order, administrative order or settlement, all as though such amount had
not been paid and this Guaranty shall be reinstated if the Guaranteed Obligation
had been satisfied prior to the restoration or return of the payment.
5. Attorneys' Fees; Enforcement. If any attorney is engaged by the
Vendors to enforce, construe or defend any provision of (a) this Guaranty or (b)
in connection with the enforcement, construction or defense of this Guaranty,
with or without the filing of any legal action or preceding, the Guarantor shall
pay to the Vendors, immediately upon demand, the amount of all reasonable and
appropriate attorneys' fees and costs incurred by the Vendors in connection
therewith.
6. Headings. All headings appearing in this Guaranty are for convenience
only and shall be disregarded in construing this Guaranty.
7. Choice of Law. This Guaranty shall be governed by and construed in
accordance with the internal laws of the State of Delaware.
8. Arbitration. All disputes arising out of or connected with this
Guaranty, including a dispute as to the validity or existence of the guaranty,
shall be resolved by arbitration in New York conducted in English by a sole
arbitrator pursuant to the rules of the United Nations Commission on
International Trade Law ("UNCITRAL"). The appointing authority for the purposes
of the UNCITRAL rules shall be the International Chamber of Commerce ("ICC").
The decision of the sole arbitrator will be final, the parties hereby formally
waiving their right to appeal the decision. The sole arbitrator is authorised to
carry out whatever investigation it deems necessary. The sole arbitrator will
decide as to how expenses, legal fees and other costs arising out of the
arbitration will be borne by the parties.
Unless otherwise agreed by both parties, the arbitrator's decision shall be made
within six months of the date of appointment of the arbitrator.
9. Notices. All notices, demands and other communications that the
Guarantor, the Vendors or the Obligor may desire, or may be required to, give in
connection herewith shall be in
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writing and shall be sent via registered or certified mail, telecopied or
personally delivered and shall be addressed to the party to be notified as
follows:
If to the Vendor: at the address listed below
beneath each seller's name
If to the Guarantor: TranSwitch Corporation
0 Xxxxxxxxxx Xxxxx
Xxxxxxx XX 00000
Attn: Chief Financial Officer
If to the Obligor: TranSwitch III, Inc.
0 Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxx, President
Any such notice, demand or communication shall be deemed given when received if
personally delivered or sent by commercial courier or when confirmation received
if sent by Telecopier.
The address of the Guarantor, the Vendors or the Obligor may be changed by
notice given in accordance with this paragraph.
10. Assignment; Binding Effect. Neither the Guarantor nor the Vendors may
not assign this Guaranty, whether by operation of law or otherwise, without the
prior written consent of the other party. This Guaranty shall be binding upon
the Guarantor, its successors and permitted assigns, and shall inure to the
benefit of the Vendors and his/its successors and assigns.
11. Entire Agreement; Modifications. This Guaranty is intended by the
Guarantor, and the Vendors to be the final, complete, and exclusive expression
of the agreement among them. This Guaranty supersedes all prior and
contemporaneous oral and written agreements relating to the subject matter
hereof. No modification, rescission, waiver, release, or amendment of any
provision of this Guaranty shall be made, except by a written agreement signed
by the Guarantor and the Vendors.
12. Severability. If any provision of this Guaranty shall be determined
by a court of competent jurisdiction to be invalid, illegal or unenforceable,
that portion shall be deemed severed from this Guaranty and the remaining parts
shall remain in full force as though the invalid, illegal or unenforceable
portion had never been part of this Guaranty.
13. Waivers; Remedies. No failure on the part of the Vendors to exercise,
no delay in exercising and no course of dealing with respect to, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law.
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IN WITNESS WHEREOF, the Guarantor has executed this Guaranty on the date
first above written.
GUARANTOR:
TranSwitch Corporation
/s/ Xxxxxx Xxxx
--------------------------------------------
By: Xxxxxx Xxxx
Title: Attorney-in-fact
VENDORS:
/s/ Xxxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxxx
Address 00 xxxxx xx Xxxx x'Xxxxx, 00 000
Xxxxxxxx Xxxxx, Xxxxxx
/s/ Xxxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxx Xxxxxx
Address 000 xxxxxx Xxxxxxx, 00000 Xxxxx,
Xxxxxx
Represented by: Xxxxxx Xxxxxxxx, as
Attorney-in-fact
/s/ Xxxxxx Xxxxxxxx
--------------------------------------------
Name: Baudouin Xxxxxxx
Xxxxxxx 00 xxx Xxxxxxx Xxxxxxx, 00000 Brie
Compte Xxxxxx, France
Represented by: Xxxxxx Xxxxxxxx, as
Attorney-in-fact
/s/ Xxxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxxx
Address 00 xxxxx xx Xxxx x'Xxxxx, 00 000
Xxxxxxxx Xxxxx, Xxxxxx
Represented by: Xxxxxx Xxxxxxxx, as
Attorney-in-fact
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/s/ Xxxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxxx Lacasagne
Address 000 xxxxxx xx xx Xxxxxxxx, 00000
Xxxxxx, Xxxxxx
Represented by: Xxxxxx Xxxxxxxx, as
Attorney-in-fact
/s/ Xxxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxxxxxx Xxxxxxxxxx
Address 000 xxxxxx x xx Xxxxxxxx, 00000
Xxxxxx, Xxxxxx
Represented by: Xxxxxx Xxxxxxxx, as
Attorney-in-fact
/s/ Xxxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxxxxx Xxxxx
Xxxxxxx 00 Xxxxxxxxxxxx, 0000 Xxxxxxxxx,
Xxxxxxx
Represented by: Xxxxxx Xxxxxxxx, as
Attorney-in-fact
