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Exhibit 4.4
ALCATEL
GUARANTY, dated as of September 17, 1998, made by Alcatel, a corporation
organized under the laws of the Republic of France (the "Guarantor"), in favor
of DSC Communications Corporation, a Delaware corporation ("DSC").
WITNESSETH
WHEREAS, The Bank of New York (the "Trustee"), and DSC are parties to the
Indenture, dated as of August 12, 1997 (as amended, supplemented or otherwise
modified from time to time, the "Indenture"), providing for the creation and
issuance by DSC of 7% Convertible Subordinated Notes due August 1, 2004 (the
"Securities").
WHEREAS, DSC has entered into an Agreement and Plan of Merger, dated as of June
3, 1998, as amended, with the Guarantor and Net Acquisition, Inc., a Delaware
corporation and direct subsidiary of Alcatel ("Newco") pursuant to which Newco
will be merged with and into DSC, and DSC will continue as the surviving
corporation and wholly owned subsidiary of the Guarantor;
NOW, THEREFORE, in consideration of the agreements herein, the Guarantor hereby
agrees with DSC as follows:
SECTION 1. DEFINITIONS. Reference is hereby made to the Indenture for a
statement of the terms thereof. All terms used in this Guaranty which are
defined therein and not otherwise defined herein shall have the same meanings
herein as set forth herein.
SECTION 2. GUARANTY. The Guarantor shall fully and unconditionally guarantee the
due and punctual payment of the principal of, premium, if any, and interest
(including Liquidated Damages) on the Securities (the "Obligations").
SECTION 3. GUARANTOR'S OBLIGATIONS. This guaranty is a continuing guaranty and
shall remain in full force and effect until such date on which all of the
Obligations shall have been satisfied in full.
SECTION 4. SUBROGATION. The Guarantor hereby agrees it will not exercise any
rights which it may acquire by way of subrogation, reimbursement, exoneration,
contribution and/or indemnity hereunder, by operation of law or otherwise, by
any payment made by it hereunder or otherwise, until the Obligations shall have
been satisfied in full.
SECTION 5. REPRESENTATIONS AND WARRANTIES. The Guarantor hereby represents and
warrants as follows:
(a) The Guarantor (i) a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation as set forth on
the first page hereof, (ii) is qualified to do business, and is in good
standing, in the Republic of France, and (iii) has all requisite power and
authority to execute, deliver and perform this Guaranty.
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(b) The execution, delivery and performance by the Guarantor of this Guaranty
(i) have been duly authorized by all the necessary corporate action, (ii) do not
and will not contravene its by-laws or any applicable law or any material
contractual restriction binding on or otherwise affecting the Guarantor or any
of its properties, and (iii) do not and will result in or require the creation
of any lien upon or with respect to any of its properties, and (iv) do not and
will not result in any suspension, revocation, impairment, forfeiture or
nonrenewal of any permit, license, authorization or approval applicable to its
operations or any of its properties except where such suspension, revocation,
impairment, forfeiture or nonrenewal is not reasonably likely to have a material
adverse effect upon the business, operations, properties, assets, prospects or
condition (financial or otherwise) of the Guarantor.
(c) No authorization, approval or other action by, and no notice to or filing
with, any governmental authority or other regulatory body is required in
connection with the due execution, delivery and performance by the Guarantor of
this Guaranty.
(d) This Guaranty is a legal, valid and binding obligation of the Guarantor in
accordance with its terms, except to the extent that the enforceability thereof
may be limited by any applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws from time to time in effect affecting generally
enforcement of creditors' rights and by general principles of equity.
(e) There is no pending or, to the best knowledge of the Guarantor, threatened
action, suit or proceeding against the Guarantor is subject, before any court or
other governmental authority or any arbitrator (i) which challenges the validity
or enforceability of this Guaranty, or (ii) in which there is a reasonable
possibility of an adverse decision which may have a material adverse effect upon
the business, operations, properties, assets, prospects or condition (financial
or otherwise) of the Guarantor.
SECTION 6. NOTICES, ETC. All notices and other communications provided for
hereunder shall be in writing and shall be mailed (by certified mail, postage
prepaid and return receipt requested), telecopied, telegraphed, telexed or
delivered, if to the Guarantor, to it at its address at 00 xxx Xx Xxxxxx, Xxxxx,
Xxxxxx 00000; if to DSC, to it at its address set forth in the Indenture, or, to
such other address as shall be designated by any party in a written notice to
the other party hereto complying as to delivery with the terms of this Section
6.
SECTION 7. GOVERNING LAW. This Guaranty shall be governed by, and construed in
accordance with, the laws of the State of Delaware.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed by an
officer thereunto duly authorized, as of the date first above written.
ALCATEL
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Chairman and Chief
Executive Officer
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