Exhibit 2.3
GUARANTEE
THIS GUARANTEE ("Guarantee") is made and executed as of
December 16, 2004, by XXXXXXX X. XXXXXX ("Guarantor"), with reference to the
following:
A. Guarantor is the sole shareholder of ZENVESCO, INC., a
NEVADA corporation (the "Buyer").
B. The Buyer will purchase certain of the tobacco products and
accessories (the "Assets") of SURGE GLOBAL ENERGY, INC., a Delaware corporation
("Seller"), pursuant to an asset purchase agreement dated as of December 16,
2004 (the "Asset Purchase Agreement"), and simultaneously, as partial
consideration for the Assets, will assume certain of the liabilities of Seller
(the "Liabilities"), also pursuant to the Asset Purchase Agreement.
C. Effective concurrently with the execution of this
Guarantee, the Guarantor has entered into (i) a pledge agreement, dated as of
December 16, 2004 (the "Pledge Agreement"), whereby the Guarantor has pledged
two hundred thousand (200,000) shares of the Guarantor's stock of the Seller
(the "Shares") to the Sellers as security for the obligation of Guarantor in
this Guarantee, and (ii) an escrow agreement, dated as of December 16, 2004 (the
"Escrow Agreement") whereby the Shares will be held until Guarantor's
obligations under this Guarantee and the Asset Purchase Agreements to the Buyer
shall have been paid, satisfied and/or otherwise discharged; and
D. Effective concurrently with the execution of this
Guarantee, and in connection with the execution of the Asset Purchase Agreement,
the Buyer has entered into the Assignment and Assumption Agreement with respect
to the acquisition of the Assets and assumption of the Liabilities of the
Seller.
NOW, THEREFORE, in consideration of the foregoing, and for
such other valuable consideration, the receipt of which is hereby acknowledged,
the Guarantor hereby agrees as follows:
1. GUARANTEE.
1.1 Guarantor unconditionally guarantees Buyer's obligations
to Seller pursuant to the Asset Purchase Agreement and the Assignment and
Assumption Agreement, including, without limitation, the Buyer's assumption of
all Liabilities of the Seller under such agreements.
1.2 Guarantor agrees that his obligations under this Guarantee
shall be absolute and unconditional, irrespective of (i) the validity or
enforceability of the Asset Purchase Agreement, the Assignment and Assumption
Agreement, the Pledge Agreement or the Escrow Agreement, (ii) the absence of any
attempt to satisfy Liabilities assumed under the Asset Purchase Agreement or the
Assignment and Assumption Agreement from Buyer or other action to enforce
-1-
performance under the Asset Purchase Agreement or the Assignment and Assumption
Agreement, (iii) any waiver or consent by the Seller or any assignee of Seller
(the "Guaranteed Parties") with respect to any term or provision of the Asset
Purchase Agreement or the Assignment and Assumption Agreement.
2. DISCHARGE OF GUARANTEE. This Guarantee shall not be discharged
except by complete performance of the obligations contained in the Asset
Purchase Agreement, the Assignment and Assumption Agreement and this Guarantee.
3. WAIVER.
3.1 Guarantor waives any and all defenses to his duty to
perform pursuant to the terms of this Guarantee. Specifically, but not by way of
limitation, Guarantor waives the following:
3.1.1 Diligence, presentment, demand of payment, filing of
claims with a court in the event of receivership or any voluntary or involuntary
petition under the Bankruptcy Code involving Buyer, protest or notice with
respect to the Asset Purchase Agreement and this Guarantee, and all demands
whatsoever;
3.1.2 The defense of statute of limitations in any action
hereunder or in any action for the performance of any obligation hereby
guaranteed;
3.1.3 Any rights which Guarantor may have under California
Civil Code Sections 2819, 2845, 2849 and 2850, or California Code of Civil
Procedure Sections 580b, 580d and 726, together with any other defenses given to
guarantor or sureties at law or in equity other than actual payment or
performance of the obligations hereby guaranteed;
3.1.4 Any right to require the Guaranteed Parties to proceed
against Buyer in any way;
3.1.5 Any right to require the Guaranteed Parties to pursue
any other remedy in such party's power whatsoever;
3.1.6 Any defense that may arise by reason of the incapacity,
lack of authority, death or disability of any other person or persons or the
failure of the Guaranteed Parties to file or enforce a claim against the estate
(in administration, bankruptcy, foreclosure, or any other proceeding) of any
other person or persons;
3.1.7 Notice of the acceptance of this Guarantee by any
person;
3.1.8 Notice of default and all other notices of any kind to
which Guarantor might otherwise be entitled in connection with this Guarantee,
including, but not limited to, (i) notices as to the creation or incurring of
any new or additional obligation, or (ii) notices of any action or nonaction on
the part of Buyer or the Guaranteed Parties, or (iii) notices of action or
nonaction on the part of any person whomsoever under this or any other
instrument in connection with any obligation hereby guaranteed;
-2-
3.1.9 Any defense based upon any statute or rule of law which
provides that the obligation of a surety must be neither larger in amount nor in
other respects more burdensome than that of the principal;
3.1.10 Any defense of whatsoever nature on the part of Buyer
which may otherwise have been asserted by Guarantor as a defense hereunder;
3.1.11 Any defense based upon any statute or rule of law which
provides that an offer of performance exonerates a surety;
3.1.12 Any duty on the part of the Guaranteed Parties to
disclose to Guarantor any facts the Guaranteed Parties may now or hereafter know
about Buyer or any other person or entity, regardless of whether the Guaranteed
Parties have reason to believe that any such facts materially increase the risk
beyond that which Guarantor intends to assume, and regardless of whether the
Guaranteed Parties have reason to believe that such facts are unknown to
Guarantor or have a reasonable opportunity to communicate such facts to
Guarantor, it being understood and agreed that Guarantor is fully responsible
for and capable of being and keeping informed of the financial condition and
ability of Buyer and of all circumstances bearing on the risk of nonperformance
of any obligations hereby guaranteed;
3.1.13 Any defense arising because of election, in any
proceeding instituted under the federal Bankruptcy Code or the application of
Section 1111(b)(2) of the federal Bankruptcy Code; and
3.1.14 Any act, action or failure to act by or on behalf of
the Guaranteed Parties which extinguishes or otherwise impairs the subrogation
rights of Guarantor or the right of Guarantor to proceed against Buyer for
reimbursement, or both.
4. SETTLEMENT OF OBLIGATIONS. The Guaranteed Parties are hereby
authorized, from time to time, without notice or demand and without affecting or
impairing the obligation or liability of Guarantor hereunder, to, without
limitation, (i) accept or release any security for this Guarantee, or any
obligation guaranteed hereby, and (ii) settle, release, compromise, collect,
negotiate or otherwise liquidate any obligation guaranteed hereby, in any
manner. Any and all such actions of the Guaranteed Parties shall not impair or
affect in any way the obligation or liability of Guarantor hereunder.
5. INDEPENDENT OBLIGATIONS. The obligations hereunder are independent
of the obligations of Buyer, and a separate action or actions may be brought and
prosecuted against Guarantor regardless of whether action is brought against
Buyer or whether Buyer is joined in any such action or actions.
6. SUCCESSORS AND ASSIGNS. This Guarantee shall be binding on Guarantor
and the successors and assigns of Guarantor, and shall inure to the benefit of
the Guaranteed Parties and the successors and assigns of the Guaranteed Parties.
-3-
7. ENTIRE AGREEMENT; AMENDMENT. This Guarantee constitutes the entire
agreement between the parties pertaining to the subject matter contained herein
and supersedes all prior and contemporaneous agreements, representations and
understandings of the parties. There are no representations, warranties,
agreements or understandings, express or implied, written or oral between the
parties hereto relating to the subject matter of this Guarantee which are not
fully expressed herein. No supplement, amendment or modification of this
Guarantee shall be binding unless executed in writing by all of the parties. No
waiver shall be deemed to be made by the Guaranteed Parties of any of such
party's rights hereunder unless the same shall be in writing signed by the
Guaranteed Parties and each waiver, if any, shall be a waiver only with respect
to the specific instance involved and shall in no way impair the rights of the
Guaranteed Parties or the obligations of Guarantor to the Guaranteed Parties in
any other respect at any other time. This Guarantee may not be altered or
amended except by an agreement in writing signed by Guarantor and the Guaranteed
Parties.
8. GOVERNING LAW. This Guarantee shall be governed by, enforced and
interpreted in accordance with the laws of the State of California.
9. SEVERABILITY. Wherever possible, each provision of this Guarantee
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guarantee shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity without invalidating the remainder of such
provision or the remaining provisions of this Guarantee.
10. NOTICES. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed given or delivered (a) when
delivered personally, against written receipt, (b) if sent by registered or
certified mail, return receipt requested, postage prepaid, when received, (c)
when received by facsimile transmission, if confirmed by the other means
described in clause (a) or (b), and (d) when delivered by a nationally
recognized overnight courier service, prepaid, and shall be addressed as
follows:
If to the Guaranteed Parties: Surge Global Energy, Inc.
00000 Xx Xxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx XXX 92130
Attention: Xxxx Xxxxx, CEO
Facsimile: (000) 000-0000
With a copy to: Xxxxx & Xxxxx, PLLC
000 Xxxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxx
Facsimile: (000) 000-0000
If to Guarantor: Xxxxxxx X. Xxxxxx
0000 Xxxxxxx Xxx. XX
Xxxxx Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
-4-
With a copy to: Xxxxxx Xxxxx, Esq.
0000 Xxxxxxx Xxx. XX
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Facsimile: (000) 000-0000
or to such other address as such party may indicate by a written notice
delivered to the other parties hereto.
11. SECTION TITLES. The subject headings of the Articles, Paragraphs
and Section titles contained in this Guarantee are included for convenience only
and shall not affect the construction or interpretation of any of the provisions
of this Guarantee.
IN WITNESS WHEREOF, this Guarantee has been duly executed by
the Guarantor on the day and year first above-written.
/s/ Xxxxxxx X. Xxxxxx
---------------------------------------------
Xxxxxxx X. Xxxxxx
"Guarantor"
-5-
