EXECUTION COPY
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (the "Agreement") dated as of June 18, 2002 is by
and between Amplifon S.p.A., an Italian joint stock company ("Parent"), and
Sonus Corp., a Xxxxx Xxxxxxxxx, Xxxxxx Corporation (the "Seller").
RECITALS
Amplifon (USA), Inc., a Delaware corporation (the "Buyer"), and Seller,
have entered into a Purchase Agreement (as such agreement may be executed and
amended from time to time, the "Purchase Agreement"), pursuant to which (and
subject to the terms and conditions specified therein) Buyer will acquire all of
the subsidiaries and certain of the assets of the Seller.
As a condition to Buyer's negotiating and entering into the Purchase
Agreement, Seller requires that Parent enter into, and Parent has agreed to
enter into, this Agreement with Seller.
AGREEMENT
To implement the foregoing and in consideration of the mutual agreements
contained herein, the parties hereby agree as follows:
1. Guaranty.
(a) Parent hereby irrevocably and unconditionally guarantees, as primary
obligor and not merely as surety, the full and prompt payment when due, and
at all times thereafter, of all obligations of the Buyer to the Seller,
howsoever created, arising or evidenced, whether direct or indirect,
absolute or contingent, or now or hereafter existing, or due or to become
due under the Purchase Agreement (all such obligations being hereinafter
collectively called the "Obligations"), and Parent further agrees to pay
all expenses (including attorneys' fees and legal expenses) paid or
incurred by the Seller in endeavoring to collect the Obligations, or any
part thereof, and in enforcing this guaranty (the "Guaranty").
(b) The Guaranty shall in all respects be a continuing, absolute and
unconditional guaranty, and shall remain in full force and effect until all
Obligations (including any extensions or renewals of any thereof) shall
have been paid in full.
(c) Parent further agrees that, if at any time all or any part of any
payment theretofore applied by the Seller to any of the Obligations is or
must be rescinded or returned by the Seller for any reason whatsoever
(including, without limitation, the insolvency, bankruptcy or
reorganization of the Buyer), such Obligations shall, for the purposes of
the Guaranty, to the extent that such payment is or must be rescinded or
returned, be deemed to have continued in existence, notwithstanding such
application by the Seller, and the Guaranty shall continue to be effective
or be reinstated, as the case may be, as to such Obligations, all as though
such application by the Seller had not been made.
(d) The Seller may, from time to time, at its sole discretion and
without notice to or the consent of Parent, take any or all of the
following actions without affecting the liability of Parent hereunder: (i)
extend or renew for one or more periods, alter or exchange any of the
Obligations, or release. settle or compromise any obligation of Parent or
the Buyer with respect to any of the Obligations or (ii) resort to Parent
for payment of any of the Obligations, whether or not the Seller shall have
proceeded against the Buyer or any other obligor primarily or secondarily
obligated with respect to any of the Obligations.
(e) Parent expressly waives: (i) notice of the acceptance by the Buyer
of this Guaranty, (ii) notice of the existence or creation or non-payment
of all or any of the Obligations, (iii) presentment, demand, notice of
dishonor, protest, and all other notices whatsoever, and (iv) all diligence
in collection or protection of or realization upon the Obligations or any
thereof, any obligation hereunder, or any security for or guaranty of any
of the foregoing.
2. Further Assurances. From time to time, at the other party's request and
without further consideration, each party hereto shall execute and deliver such
additional documents and take all such further action as may be necessary to
consummate and make effective the transactions contemplated by this Agreement.
3. Termination. The obligations set forth in this Agreement will terminate
upon termination of the Purchase Agreement.
4. Miscellaneous.
(a) Entire Agreement; Assignment. This Agreement (i) constitutes the
entire agreement between the parties with respect to the subject matter
hereof and supersedes all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter
hereof and (ii) shall not be assigned by operation of law or otherwise
without the prior written consent of the other party.
(b) Amendments. This Agreement may not be modified, amended, altered or
supplemented, except upon the execution and delivery of a written agreement
executed by the parties hereto.
(c) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given; as of the date of
delivery, if delivered personally; upon receipt of confirmation, if
telecopied or upon the next business day when delivered during normal
business hours to an overnight courier service, such as Federal Express, in
each case to the parties at the following addresses or at such other
addresses as shall be specified by the parties by like notice; unless the
sending party has knowledge that such notice or other communication
hereunder was not received by the intended recipient:
2
If to Seller:
Sonus Corp.
000 X.X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx, Esq.
Facsimile No.: 000-000-0000
with a copy to:
Xxxxxx Xxxx LLP
000 X.X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000
Attn: Xxxx Xxx Xxxxxx
Facsimile No. 000-000-0000
and
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Facsimile No. 000-000-0000
It to Parent:
c/o Amplifon (USA) Inc.
0000 Xxxxxxxx Xxxx Xxxxx
Xxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
Facsimile No. 000-000-0000
With a copy to:
Xxxxxx Xxxxxx Xxxxx Xxxxxxxx
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxx
Fax: 312/000-0000
312/577-8753
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
3
(d) Governing Law. The validity, interpretation and effect of this
Agreement shall be governed exclusively by the laws of the State of
Delaware, without giving effect to the principles of conflict of laws
thereof.
(e) Costs. Subject to Section 1(a) hereof and subject to the provisions
of the Purchase Agreement, each party will be solely responsible for and
bear all of its own respective expenses, including, without limitation,
expenses of legal counsel, accountants, and other advisors, incurred at any
time in connection with pursuing or consummating this Agreement or the
Purchase Agreement and the transactions contemplated hereby and thereby.
(f) Enforcement. The parties agree that irreparable damage would occur
in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement.
(g) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but both of
which shall constitute one and the same Agreement.
(h) Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
(i) Severability. If any term or provision of this Agreement or the
application thereof to any party or set of circumstances shall, in any
jurisdiction and to any extent, be finally held invalid or unenforceable,
such term or provision shall only be ineffective as to such jurisdiction,
and only to the extent of such invalidity or unenforceability, without
invalidating or rendering unenforceable any other terms or provisions of
this Agreement under any other circumstances, and the parties shall
negotiate in good faith a substitute provision which comes as close as
possible to the invalidated or unenforceable term or provision, and which
puts each party in a position as nearly comparable as possible to the
position it would have been in but for the finding of invalidity or
unenforceability, while remaining valid and enforceable.
[signature page follows]
4
IN WITNESS WHEREOF, Seller and Parent have caused this Agreement to be
duly executed as of the day and year first written above.
AMPLIFON S.P.A.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Its: Attorney in Fact
-------------------------------------
SONUS CORP.
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Its: Chief Executive Officer
-------------------------------------
