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EXHIBIT 2.3
GUARANTY
THIS GUARANTY (this "Guaranty"), dated as of June 18, 1998 is entered into
by Boca Research, Inc., a Florida corporation (the "Guarantor"), in favor of
Global Village Communication, Inc., a Delaware corporation (together with its
permitted successors and assigns, the "Guaranteed Party").
RECITALS
A. Boca Global, Inc., a Florida corporation ("Company"), proposes to issue
that certain Note dated as of June 18, 1998 (as the same may be amended,
supplemented, amended and restated or otherwise modified from time to time, the
"Note") among the Company, the Guarantor and the Guaranteed Party. As a
condition to purchasing the Note, the Guaranteed Party has required that the
Guarantor deliver this Guaranty. Company and Guarantor are sometimes referred to
herein as the "Guarantor Parties". When capitalized and used herein, terms
defined in the Note and not otherwise defined herein shall have the meanings
ascribed to them in the Note; and
B. The Guaranteed Party requires, as a condition to purchasing the Note,
that the Guarantor execute and deliver this Guaranty.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and to induce the
Guaranteed Party to purchase the Note, the Guarantor agrees with the Guaranteed
Party as follows:
SECTION 1. THE GUARANTEE. The guarantee of the Guarantor hereunder is as
follows:
Section 1.1 GUARANTY OF EXTENSIONS OF CREDIT TO COMPANY. The Guarantor
hereby unconditionally, absolutely and irrevocably guarantees to the Guaranteed
Party the prompt payment and performance of all of the obligations of the
Company under the Note (including all interest and costs of enforcement which
may at any time accrue with respect to the obligations or which would accrue but
for the operation of any provision or doctrine with respect to the Bankruptcy
Code, as hereinafter defined, and whether or not an allowed claim) (the
"Guaranteed Obligations"). The Guarantor agrees that this Guaranty is a guaranty
of payment and performance and not of collection, and that its obligations under
this Guaranty shall be unaffected by:
(a) the genuineness, validity, regularity, enforceability or any
future amendment of, or change in, this Guaranty, the Note or other agreement,
document or instrument to which any Guarantor Party is or are or may become a
party;
(b) the absence of any action to enforce this Guaranty, the Note
or waiver or consent by the Guaranteed Party with respect to any of the
provisions hereof or thereof;
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(c) any bankruptcy, insolvency, reorganization, arrangement,
adjustment, composition, liquidation or the like of any other Guarantor Party
including, but not limited to, (i) the Guaranteed Party's election, in any
proceeding instituted under Title 11 of the United States Code (11 U.S.C. ss.
101 ET SEQ.) or any replacement or supplemental federal statutes dealing with
the bankruptcy of debtors (the "Bankruptcy Code"), of the application of Section
1111(b)(2) of the Bankruptcy Code, or (ii) the disallowance of all or any
portion of the Guaranteed Party's claim(s) for repayment of the Guaranteed
Obligations under Section 502 of the Bankruptcy Code;
(d) any merger or consolidation of any Guarantor Party into or
with any other Person, or any sale, lease or transfer of any or all of the
assets of any other Guarantor Party to any other Person;
(e) any circumstance which might constitute a defense available
to, or a discharge of any other Guarantor Party;
(f) any sale, transfer or other disposition of any stock of any
Guarantor Party;
(g) absence of any notice to, or knowledge by, the Guarantor of
the existence or occurrence of any of the matters or events set forth in the
foregoing subdivisions (a) through (g); or
(h) any other fact or circumstance which might otherwise
constitute a defense available to, or a discharge of, a surety or guarantor;
it being agreed by the Guarantor that its obligations under this Guaranty shall
not be discharged until all of the Guaranteed Obligations have been fully paid
and performed. The Guarantor shall be regarded, and shall be in the same
position, as principal obligor (and not merely as surety) with respect to the
Guaranteed Obligations and specifically agrees that, notwithstanding any
discharge of the Company or any other Person or the operation of any other
provision of the Bankruptcy Code with respect to the Guaranteed Obligations or
any such Persons, the Guarantor shall be fully responsible for paying all
interest and costs of enforcement or preservation which may at any time accrue
with respect to the Guaranteed Obligations or which would accrue but for the
operation of any provision of or doctrine with respect to the Bankruptcy Code
and whether or not an allowed claim. The Guarantor expressly waives all rights
it may have now or in the future under any statute, or at common law, or at law
or in equity, or otherwise, to compel the Guaranteed Party to proceed in respect
of the Guaranteed Obligations against the Company, any other Guarantor Party or
any other party before proceeding against, or as a condition to proceeding
against, the Guarantor. The Guarantor agrees that any notice or directive given
at any time to the Guaranteed Party which is inconsistent with the waiver in the
immediately preceding sentence shall be null and void and may be ignored by the
Guaranteed Party, and, in addition, may not be pleaded or introduced as evidence
in any litigation relating to this Guaranty for the reason that such pleading or
introduction would be at variance with the written terms of this Guaranty unless
the Guaranteed Party has specifically agreed otherwise in writing.
Section 1.2 MAXIMUM GUARANTEED AMOUNT. Notwithstanding any other
provision of this Guaranty to the contrary, if the obligations of the Guarantor
hereunder would otherwise be held or determined by a court of competent
jurisdiction in any action or proceeding involving any state corporate
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law or any state or Federal bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other law affecting the rights of creditors generally,
to be void, invalid or unenforceable to any extent on account of the amount of
the Guarantor's liability under this Guaranty, then notwithstanding any other
provision of this Guaranty to the contrary, the amount of such liability shall,
without any further action by the Guarantor or any other Person, be
automatically limited and reduced to the highest amount which is valid and
enforceable as determined in such action or proceeding.
Section 1.3 DEMAND BY THE GUARANTEED PARTY. In addition to the terms
of the Guaranty set forth in Section 1.1 hereof, but subject to the limitations
contained in Section 1.2, and in no manner imposing any other limitation on such
terms, it is expressly understood and agreed that, if any or all of the
Guaranteed Obligations becomes due and payable due to an Event of Default (as
defined in the Note), then the obligations of the Guarantor shall immediately
without notice or demand, become due and payable and Guarantor shall pay to the
Guaranteed Party the Guaranteed Obligations. If the Guaranteed Party fails to
pay the Guaranteed Obligations and such Event of Default is pursuant to Section
3(a) of the Note, the Guaranteed Party shall be entitled, in addition to all
other rights granted to the Guaranteed Party hereunder, to demand, at any time,
that the Guarantor issue and register shares of its Common Stock pursuant to the
terms of Section 1.5 hereto.
Section 1.4 ENFORCEMENT OF GUARANTY. In no event shall the Guaranteed
Party have any obligation (although it is entitled, at its option) to proceed
against the Company or any other Person before seeking satisfaction from the
Guarantor. The Obligations of Guarantor hereunder are independent of the
obligations of any other Guarantor Party, and a separate action or actions may
be brought and prosecuted against Guarantor whether or not action is brought
against any other guarantor or any other Guarantor Party, and whether or not any
other guarantor or any other Guarantor Party be joined in any such action or
actions.
Section 1.5 COMMON STOCK ISSUANCE. In the event that the Guaranteed
Party demands that the Guarantor issue shares of its Common Stock pursuant to
Section 1.3, the Guarantor shall issue, within five (5) business days of the
date of such notice, to the Escrow Agent (as defined below, for the benefit of
the Guaranteed Party) such number of shares of Guarantor's outstanding Common
Stock (the "Shares") having an aggregate value equal to 150% of the Guaranteed
Obligations which remain unpaid, to be held as additional security for the
satisfaction of the Guaranteed Obligations; provided, however, that in no event
shall the shares exceed 19.9% of the Guarantor's common stock outstanding
immediately prior to the issuance thereof. For purposes of this Section 1.5, the
value of a share of Guarantor's Common Stock shall be the closing price on the
third day of trading after the occurrence of an Event of Default under the Note.
Guarantor covenants and agrees that it will use its best efforts to file and
have declared effective a registration statement (the "Registration Statement")
with the Securities and Exchange Commission for the purpose of registering for
resale the Shares under the Securities Act of 1933, as amended. Upon the
effectiveness of the Registration Statement, the Guaranteed Party, through the
Escrow Agent, shall be entitled to sell that number of the Shares as will enable
the Guaranteed Party to receive, in net proceeds, the Guaranteed Obligations.
Any Shares not sold in satisfaction of the Guaranteed Obligations shall be
immediately returned to the Guarantor. In the event that the Escrow Agent shall
sell all of the Shares and shall not have received net proceeds sufficient to
satisfy the Guaranteed Obligations, the Guarantor shall, upon notice by the
Guaranteed Party, immediately pay to the Guaranteed Party such amount as will
satisfy the Guaranteed Obligations.
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Upon making demand pursuant to this Section 1.5, the Guaranteed Party shall
identify the agent to hold the Shares (the "Escrow Agent") who shall be
reasonably satisfactory to the Guarantor. The Escrow Agent shall take direction
from the Guaranteed Party with respect to sales of the Shares. The Guaranteed
Party hereby agrees that it shall sell the Shares in an orderly manner; however,
it being understood and agreed that the determination of the timing, manner and
price of such sales shall remain exclusively with the Guaranteed Party; provided
that on the 20th business day after the effectiveness of the registration
statement, the Escrow Agent shall return to the Guarantor those shares not sold
in satisfaction of the guaranteed obligations. In connection with the receipt of
the Shares, the Guaranteed Party shall agree to enter into a voting agreement
providing that the Guaranteed Party shall vote its shares in the same
proportions as the holders of Common Stock of the Guarantor vote their shares
with respect to any item brought before the shareholders of the Guarantor.
Section 1.6 WAIVER. In addition to the waivers contained in Section
1.1 hereof, the Guarantor waives, and agrees that it shall not at any time
insist upon, plead or in any manner whatever claim or take the benefit or
advantage of, any appraisal, valuation, stay, extension, marshaling of assets or
redemption or similar laws, or exemption, whether now or at any time hereafter
in force, which may delay, prevent or otherwise affect the performance by the
Guarantor of its obligations under, or the enforcement by the Guaranteed Party
of, this Guaranty. The Guarantor hereby waives diligence, presentment and demand
(whether for nonpayment or protest or of acceptance, maturity, extension of
time, change in nature or form of the Guaranteed Obligations, acceptance of
further security, release of further security, composition or agreement arrived
at as to the amount of, or the terms of, the Guaranteed Obligations, notice of
adverse change in a Company's or any other Guarantor Party's financial condition
or any other fact which might materially increase the risk to the Guarantor)
with respect to any of the Guaranteed Obligations or all other demands
whatsoever and waives the benefit of all provisions of law which are or might be
in conflict with the terms of this Guaranty. The Guarantor represents, warrants
and agrees that, as of the date of this Guaranty, its obligations under this
Guaranty are not subject to any offsets or defenses against the Guaranteed Party
or any Guarantor Party of any kind. The Guarantor further agrees that its
obligations under this Guaranty shall not be subject to any counterclaims,
offsets or defenses against the Guaranteed Party or any Guarantor Party of any
kind which may arise in the future.
Section 1.7 BENEFIT OF GUARANTY. The provisions of this Guaranty are
for the benefit of the Guaranteed Party and its respective successors,
transferees, endorsees and assigns, and nothing herein contained shall impair,
as between the Guarantor Parties and the Guaranteed Party, the obligations of
the Guarantor Parties under the Note.
Section 1.8 REINSTATEMENT. This Guaranty shall remain in full force
and effect and continue to be effective in the event any petition is filed by or
against any of the Guarantor Parties for liquidation or reorganization, in the
event any of the Guarantor Parties or the Guarantor becomes insolvent or makes
an assignment for the benefit of creditors or in the event a receiver or trustee
is appointed for all or any significant part of any of the Guarantor Parties' or
the Guarantor's assets, and shall continue to be effective or be reinstated, as
the case may be, if at any time payment and performance of the Guaranteed
Obligations, or any part thereof, is, pursuant to applicable law, rescinded or
reduced in amount, or must otherwise be restored or returned by the Guaranteed
Party, whether as a "voidable preference", "fraudulent conveyance", or
otherwise, all as though such payment or performance had not been made. In the
event that any payment, or any part thereof, is rescinded, reduced, restored or
returned, the Guaranteed Obligations shall be reinstated and deemed reduced only
by such amount paid and not so rescinded, reduced, restored or returned.
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Section 1.9 WAIVER OF SUBROGATION. GUARANTOR HEREBY IRREVOCABLY
WAIVES, WHILE THE GUARANTEED OBLIGATIONS ARE OUTSTANDING, ALL RIGHTS OF
SUBROGATION (WHETHER CONTRACTUAL, UNDER SECTION 509 OF THE BANKRUPTCY CODE,
UNDER COMMON LAW, OR OTHERWISE) TO THE CLAIMS OF THE GUARANTEED PARTY AGAINST
THE COMPANY AND ALL CONTRACTUAL, STATUTORY OR COMMON LAW RIGHTS OF CONTRIBUTION,
REIMBURSEMENT, INDEMNIFICATION AND SIMILAR RIGHTS AND "CLAIMS" (AS SUCH TERM IS
DEFINED IN THE BANKRUPTCY CODE) AGAINST THE COMPANY WHICH ARISE IN CONNECTION
WITH, OR AS A RESULT OF, THIS GUARANTEE.
Section 1.10 CONTINUING GUARANTY. This Guaranty is a continuing
guaranty and shall (i) remain in full force and effect until all the Guaranteed
Obligations have been fully paid and performed, (ii) be binding upon the
Guarantor and its successors and permitted assigns, and (iii) inure, together
with the rights and remedies of the Guaranteed Party hereunder, to the benefit
of the Guaranteed Party and its respective successors, transferees, endorsees
and assigns.
SECTION 2. REPRESENTATIONS AND COVENANTS. The Guarantor represents and
warrants that:
(a) the execution, delivery and performance by the Guarantor of this
Guaranty is within the Guarantor's corporate powers, have been duly authorized
by all necessary corporate action, require no action by or in respect of, or
filing with, any governmental authority and do not contravene, or constitute a
default under, any provision of applicable law or regulation or of the
certificate of incorporation or bylaws of the Guarantor or of any agreement,
judgment, injunction, order, decree or other instrument binding upon the
Guarantor or result in the creation or imposition of any lien, security interest
or other charge or encumbrance on any asset of the Guarantor; and
(b) this Guaranty constitutes a legal, valid and binding agreement of
the Guarantor, enforceable against the Guarantor in accordance with its terms.
SECTION 3. FURTHER ASSURANCES. The Guarantor agrees, upon the written
request of the Guaranteed Party, and at the Guarantor's expense, to execute and
deliver to the Guaranteed Party, from time to time, any additional instruments
or documents considered necessary by the Guaranteed Party to cause this Guaranty
to be, become or remain valid and effective in accordance with its terms.
SECTION 4. MISCELLANEOUS.
Section 4.1 AMENDMENTS. Any amendment or waiver of any provision of
this Guaranty and any consent to any departure by the Guarantor from any
provision of this Guaranty shall be effective only if made or given in writing
by the party against which enforcement is sought and to be effective against the
Guaranteed Party, such amendment or waiver shall also be signed by an authorized
officer.
Section 4.2 EXPENSES. The Guarantor shall promptly pay to the
Guaranteed Party the amount of any and all reasonable out-of-pocket costs and
expenses of the Guaranteed Party incurred (a) to commence, defend, or intervene
in any litigation or to file a petition, complaint, answer, motion or other
pleadings necessary to protect or enforce the rights of the Guaranteed Party
under this Guaranty,
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(b) to take any other action in or with respect to any suit or proceeding
(bankruptcy or otherwise) necessary to protect the rights of the Guaranteed
Party under this Guaranty or to respond to any subpoena, deposition or
interrogatory with respect to any litigation involving the Guarantor, or (c) to
attempt to enforce or to enforce any rights of the Guaranteed Party to collect
any of the Guaranteed Obligations against Guarantor, including all reasonable
fees and expenses of attorneys and paralegals (including charges for inside
counsel).
Section 4.3 SEVERABILITY. The provisions of this Guaranty are
severable, and if any clause or provision shall be held invalid or unenforceable
in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect in that jurisdiction only such clause or
provision, or part thereof, and shall not in any manner affect such clause or
provision in any other jurisdiction or any other clause or provision of this
Guaranty in any jurisdiction.
Section 4.4 NOTICES. All notices, requests and other hereunder shall
be in accordance with the provisions of the Note with notices to Guarantor to be
directed to the address specified for Company therein.
Section 4.5 ASSIGNABILITY. This Guaranty shall be binding on the
Guarantor and its successors and permitted assigns and shall inure to the
benefit of the Guaranteed Party and their respective successors, transferees,
endorsees and assigns. The Guarantor may not assign this Guaranty.
Section 4.6 NON-WAIVER. The failure of the Guaranteed Party to
exercise any right or remedy hereunder, or promptly to enforce any such right or
remedy, shall not constitute a waiver thereof, nor give rise to any estoppel
against the Guaranteed Party, nor excuse the Guarantor from its obligations
hereunder.
Section 4.7 TERMINATION. Subject to the provisions of Section 1.8,
this Guaranty shall terminate upon the payment in full of all obligations under
the Note. At the time of such termination, the Guaranteed Party will execute and
deliver to the Guarantor a proper instrument or instruments acknowledging the
satisfaction and termination of this Guaranty.
Section 4.8 COUNTERPARTS. This Guaranty may be executed in any number
of counterparts and by the different parties hereto on separate counterparts,
each of which, when so executed and delivered, shall be an original, but all of
which shall together constitute one and the same agreement.
Section 4.9 GOVERNING LAW. THE VALIDITY, INTERPRETATION AND
ENFORCEMENT OF THIS GUARANTEE AND ANY DISPUTE ARISING OUT OF OR IN CONNECTION
WITH THIS GUARANTEE, WHETHER SOUNDING IN CONTRACT, TORT, EQUITY OR OTHERWISE,
SHALL BE GOVERNED BY THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS OF LAWS
PROVISIONS) AND DECISIONS OF THE STATE OF DELAWARE.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed and delivered as of the date first above written.
BOCA RESEARCH, INC.
/s/ Xxxxxxx X. Xxxxxxxx
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By: Xxxxxxx X. Xxxxxxxx
Title: President/Chief Executive Officer
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