EXHIBIT 10.25
GUARANTEE
THIS DEED OF GUARANTEE is made on June 21, 2001 by and between XXXXXXXXXXXX.XXX,
INC., a Florida corporation (the "the Guarantor") and NORTHERN IRELAND LOCAL
GOVERNMENT OFFICERS' SUPERANNUATION COMMITTEE of Xxxxxxxxx Xxxxx, 000 Xxxxxxxx
Xxxx, Xxxxxxx XX0 0XX o (the "the Lender").
W I T N E S S E T H:
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WHEREAS, the Lender has lent the principal amount of US$460,000 to
iCOLLECTOR PLC (Company No: 3201371) whose registered office is at 0xx Xxxxx,
Xxxxxx Xxxxx, 0 Xxxxxxxxx Xxxx, Xxxxxx X00 0XX (the "Borrower") to the order of
the Lender, under the terms of the Loan Agreement of equal date (the "Loan
Agreement");
WHEREAS, the Lender, Borrower and the Guarantor are parties to a Heads of
Terms dated June ___, 2001 (the "Heads of Terms"), under which (i) the Lender
entered into the Loan Agreement and loaned the Borrower US$460,000 (the "Loan"),
(ii) the Lender has agreed to underwrite a pre-emptive offer by the Borrower to
its shareholders of convertible loan notes having an aggregate value of
US$3,828,000, (iii) the Guarantor has agreed to make an offer to acquire 100% of
the shares of the Borrower (the "Offer"), and (iv) the Guarantor has agreed to
provide this Guarantee to secure repayment of the Loan by the Borrower.
WHEREAS, pursuant to the Heads of Terms, the Guarantor has agreed to issue
to the Lender five hundred thousand (500,000) shares of common stock of the
Guarantor (the "Guarantee Shares") as full and complete satisfaction of the
Guarantor's obligations under the terms of this Guarantee, and the Lender has
agreed to such terms;
WHEREAS, the Guarantor has authorized the issuance of the Guarantee Shares
to the Lender under the terms and conditions of this Guarantee;
WHEREAS, it was a condition precedent to the Lender making the Loan and the
parties entering into the Heads of Terms that the Guarantor execute and deliver
to the Lender a guaranty guaranteeing the indebtedness and all liabilities of
the Borrower under the Loan Agreement;
WHEREAS, the Loan shall be converted into shares of Borrower at the higher
of
(a) par
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(b) or (b) the average market price of the Borrower's ordinary shares for
the 20 business days prior to the date that the Lender serves notice
electing to convert all or part of the Loan
immediately prior to and conditional upon the Offer becoming unconditional in
all respects; and
WHEREAS, the Guarantor will derive substantial direct and indirect benefit
from the Lender entering into the Loan Agreement and the Heads of Terms.
NOW, THEREFORE, in consideration of the premises and the agreements herein
and in order to induce the Lender to make the Loan and the parties to enter into
the Heads of Terms, the Guarantor hereby agrees with the Lender as follows:
SECTION 1. Definitions. Reference is hereby made to the Loan, the Loan
agreement and the Heads of Terms for a statement of the respective terms
thereof. All terms used in this Guarantee which are defined in the Heads of
Terms and not otherwise defined herein shall have the same meanings herein as
set forth therein.
SECTION 2. Guarantee. (a) If the Guarantor terminates the Offer for a
reason other than the failure of a condition set forth in paragraph 5 of the
Heads of Terms, the Guarantor hereby irrevocably, absolutely and unconditionally
guarantees the prompt payment by the Borrower, as and when due and payable
(whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise) (the "Due Date"), of all amounts now or hereafter owing by the
Borrower in respect of the Loan, whether for principal of the Loan, interest
(including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Borrower whether or not a claim
for post-filing interest is allowed in such proceeding), fees (including
collection fees as set out in the Loan Agreement), commissions, expenses,
indemnifications or otherwise (collectively, the "Without Cause Amount"). The
Guarantor will pay the Without Cause Amount by issuing the Lender five hundred
thousand (500,000) Guarantee Shares as full and complete satisfaction of the
Guarantor's obligations under this Guarantee.
(b) If the Offer terminates as a result of the failure of one or more
conditions set forth in paragraph 5 of the Heads of Terms, the Guarantor shall
provide the Lender and the Borrower notice of termination of the Offer and the
Heads of Terms (a "Termination Notice") and the Guarantor hereby irrevocably,
absolutely and unconditionally guarantees the prompt payment by the Borrower of
the amount equal to the amount of the Loan (the "For Cause Amount"). The
Guarantor will pay the For Cause Amount by issuing to the Lender Guarantee
Shares with a fair market value (as determined by the five day average closing
price of the shares of common stock of the Guarantor as quoted on the American
Stock Exchange or such other primary exchange or public market for such shares
immediately prior to the Due Date or the Termination Notice, as applicable)
equal to the Loan as full and complete satisfaction of the Guarantor's
obligations under this Guarantee.
(c) Upon failure by the Borrower to pay punctually as and when due and
payable all amounts owing by the Borrower in respect of the Loan, the Guarantor
shall forthwith
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on demand pay the Without Cause Amount or the For Cause Amount, as applicable,
at such placer as is specified by the Lender. Notwithstanding the foregoing, the
number of shares issuable to the Lender in full and complete satisfaction of the
obligations under this Guarantee shall not exceed 500,000 Guarantee Shares.
(d) The Guarantee Shares have not been and will not be registered under the
Securities Act of 1933, as amended (the "1933 Act"), and will be issued to the
Lender in reliance upon Regulation S under the 1933 Act. The certificates
representing the Guarantee Shares shall bear a restrictive legend in
substantially the form as follows:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "1933
ACT"). THESE SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY (A) TO THE COMPANY, (B) OUTSIDE THE UNITED STATES IN
COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE 1933 ACT; (C) IN
COMPLIANCE WITH THE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE
1933 ACT PROVIDED BY RULE 144 OR RULE 144A THEREUNDER, IF AVAILABLE, AND IN
ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, OR (D) IN A TRANSACTION
THAT DOES NOT REQUIRE REGISTRATION UNDER THE 1933 ACT OR ANY APPLICABLE
STATE LAWS AND REGULATIONS GOVERNING THE OFFER AND SALE OF SECURITIES, AND
THE HOLDER HAS, PRIOR TO SUCH SALE, FURNISHED TO THE COMPANY AN OPINION OF
COUNSEL, OR RECOGNIZED STANDING, OR OTHER EVIDENCE OF EXEMPTION, REASONABLY
SATISFACTORY TO THE COMPANY. HEDGING TRANSACTIONS INVOLVING THE SECURITIES
REPRESENTED HEREBY MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE 1933
ACT.
(e) The Lender represents and warrants that it, and if applicable, each
person for whose account it acquires Guarantee Shares:
(i) is not a "U.S. Person," as that term is defined by Rule 902 of
Regulation S of the 1933 Act (the definition of which includes,
but is not limited to, an individual resident in the United
States and an estate or trust of which any executor or
administrator or trustee, respectively, is a U.S. Person and any
partnership or corporation organized under the laws of the United
States);
(ii) Did not execute or deliver this Guarantee in the United States;
(iii)Acknowledges that no offers to sell the Guarantee Shares were
made by any other person to the Lender while the Lender was in
the United States; and
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(iv) acknowledges that the Guarantee Shares are not being acquired,
directly or indirectly, for the amount or benefit of a U.S.
Person or a person in the United States.
(f) The Lender agrees not to engage in any hedging transactions or other
transactions that have the effect of transferring the economic risk of ownership
of the Guarantee Shares unless such transactions comply with the requirements of
the 1933 Act.
(g) The Lender agrees it will not offer, sell or otherwise transfer any of
the Guarantee Shares directly or indirectly, unless:
(i) the sale is to the Guarantor;
(ii) the sale is made outside the United States in a transaction
meeting the requirements of Rule 904 of Regulation S under the
1933 Act and in compliance with applicable local laws and
regulations;
(iii)the sale is made in compliance with the exemption from the
registration statements under the 1933 Act provided by Rule 144
or Rule 144A thereunder, if available, and in accordance with any
applicable state securities or "Blue Sky" laws; or
(iv) the securities are sold in a transaction that does not require
registration under the 1933 Act or any applicable U.S. state laws
and regulations governing the offer and sale of securities; and
with respect to subparagraphs (iii) and (iv) hereof, it has prior to such sale
furnished to the Guarantor an opinion of counsel reasonably satisfactory to the
Guarantor.
SECTION 3. Guarantor's Obligations Unconditional.
(a) Except as otherwise limited in Sections 2(b) and 2(d), the Guarantor
hereby guarantees that the amounts due under the Loan Agreement will be paid by
the Guarantor strictly in accordance with the terms of the Loan Agreement,
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of Lender with respect
thereto. The obligations of the Guarantor under this Guarantee are independent
of the Borrower's obligations under the Loan Agreement, and a separate action or
actions may be brought and prosecuted against the Guarantor to enforce this
Guarantee, irrespective of whether any action is brought against the Borrower or
whether the Borrower is joined in any such action. The liability of the
Guarantor hereunder shall be absolute and unconditional irrespective of: (i) any
lack of validity or enforceability of the Loan Agreement or any agreement or
instrument relating thereto (collectively, the "Loan Documents") or (ii) any
non-perfection of any lien on, or security interest in, any collateral.
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(b) This Guarantee (i) is a continuing guaranty and shall remain in full
force and effect until such date on which all of the obligations and all other
expenses to be paid by the Guarantor or the Borrower pursuant thereto shall have
been satisfied in full, and (ii) shall continue to be effective or shall be
reinstated, as the case may be, if at any time any payment of any of the
obligations is rescinded or must otherwise be returned by the Lender upon the
insolvency, bankruptcy or reorganization of the Borrower or otherwise, as all
through such payment had not been made.
SECTION 4. Stay of Acceleration. If acceleration of the time for payment of
any amount payable by the Borrower under the Loan Agreement is stayed upon the
insolvency, bankruptcy or reorganization of the Borrower, all such amounts
otherwise subject to acceleration under the terms of the Loan Agreement shall
nonetheless be payable by the Guarantor hereunder forthwith on demand by the
Lender.
SECTION 5. Subrogation. Upon making any payment under this Guarantee, the
Guarantee shall be subrogated to the rights of the Lender against the Borrower
with respect to such payment; provided, however, until the Loan has been
satisfied in full, the Guarantor hereby waives and irrevocably agrees it will
not exercise any and all rights which it has or may have at any time or from
time to time (whether arising directly or indirectly by operation of law or
contract) to assert any claim against the Borrower on account of any payments
made under this Guarantee, including, without limitation, any and all existing
and future rights of subrogation, reimbursement, exoneration, contribution
and/or indemnity. If any amount shall be paid to the Guarantor on account of
such subrogation rights at any time when the Loan and all such other expenses
shall not have been paid in full, such amount shall be held in trust for the
benefit of the Lender, shall be segregated from the other funds of the Guarantor
and shall forthwith be paid over to the Lender to be applied in whole or in part
by the Lender against the Loan, whether matured or unmatured, and all such other
expenses in accordance with the terms of the Loan Documents.
SECTION 6. Maximum Guaranteed Amount. Notwithstanding any other provision
of this Guarantee 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 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 Guarantee, then notwithstanding
any other provision of this Guarantee to the contrary, the amount of such
liability shall, without any further action by the Guarantor or any other person
or entity, be automatically limited to 500,000 shares of common stock of the
Guarantor.
SECTION 7. 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 or delivered, if to the
Guarantor, to it at its address set forth in the Loan Agreement; if to the
Lender, to it at its address set forth in the Loan Agreement; or, as to any such
person, at such other address as shall be designated by such person in a written
notice to such other persons complying as to delivery with the terms of this
Section 7. All such notices and other communications shall be effective (i) if
sent by registered mail, return receipt requested, when received or three
business days after mailing, whichever first occurs, (ii) if telecopied, when
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transmitted and a confirmation is received, provided the same is on a business
day and, if not, on the next business day, or (iii) if delivered, upon delivery,
provided the same is on a business day and, if not, on the next business day.
SECTION 8. Integration. This Guarantee constitutes the entire agreement and
understanding among the parties hereto in relation to the Guarantor's guarantee
to repay the Loan and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof.
SECTION 9. Governing Law. This Guarantee shall be subject to the
non-exclusive jurisdiction of the English Courts and governed by the laws of
England.
SECTION 10. Miscellaneous.
(a) The Guarantor will make each payment hereunder in lawful money of the
United States of America and in immediately available funds or at the option of
the Lender shares of common stock to the Lender at such address specified by the
Lender from time to time by notice to such the Guarantor.
(b) No amendment of any provision of this Guarantee shall be effective
unless it is in writing and signed by the Guarantor and the Lender, and no
waiver of any provision of this Guarantee, and no consent to any departure by
the Guarantor therefrom, shall be effective unless it is in writing and signed
by the Lender, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
(c) No failure on the part of the Lender to exercise, and no delay in
exercising, any right hereunder or under the Loan Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any right preclude
any other or further exercise thereof or the exercise of any other right. The
rights and remedies of the Lender provided herein and in the other Loan
Documents are cumulative and are in addition to, and not exclusive of, any
rights or remedies provided by law. The rights of the Lender under the Loan
Agreement and any agreement or document relating thereto against any party
thereto are not conditional or contingent on any attempt by any such person to
exercise any of its rights under any other Loan Document against such party or
against any other person.
(d) Any provision of this Guarantee which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining portions
hereof or thereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
(e) This Guarantee shall (i) be binding on the Guarantor and its successors
and assigns, and (ii) inure, together with all rights and remedies of the Lender
hereunder, to the benefit of the Lender and its successors, transferees and
assigns. Without limiting the generality of clause (ii) of the immediately
preceding sentence, the Lender may, with prior written consent of the Guarantor,
which shall not be unreasonably withheld, assign or otherwise transfer the Loan,
and assign or otherwise transfer its rights under any other Loan Document, to
any other person, and such other person shall thereupon become vested with all
of the benefits in respect
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thereof granted to the Lender herein or otherwise. None of the rights or
obligations of the Guarantor hereunder may be assigned or otherwise transferred
without the prior written consent of the Lender.
(f) The parties to this Guarantee do not intend that any term of this
Guarantee should be enforceable by virtue of the Contacts (Rights of Third
Parties) Xxx 0000 by any person who is not a party to this Guarantee.
SECTION 11. Agency. Xxxxxxxx Investment Management Limited ("SIM") has been
given authority by the Lender to execute this Guarantee on its behalf and by
signing this Guarantee is only doing so in its capacity as agent on behalf of
the Lender. All rights, obligations, warranties and covenants under this
Guarantee are between the Lender and the Guarantor and not SIM.
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IN WITNESS WHEREOF, the parties have caused this Guarantee to be executed
and delivered as a deed as of the date first above written.
XXXXXXXXXXXX.XXX, INC.
By: /s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
Title: VP/CEO
NORTHERN IRELAND LOCAL OVERNMENT OFFICERS'
SUPERANNUATION COMMITTEE
By:
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Name:
Title:
