EXHIBIT 4.3
UNCONDITIONAL GUARANTY AGREEMENT
This Unconditional Guaranty Agreement (this "Guaranty") is given this 22nd
day of April, 2005, by Chips & Bits, Inc., a Vermont corporation, Strategy Plus,
Inc., a Vermont corporation, Voiceglo Holdings, Inc., a Delaware corporation,
Direct Partner Telecom, Inc., a Florida corporation, TC Acquisition Holdings
Corp., a Delaware corporation, and SendTec, Inc., a Florida corporation (each a
"Guarantor" and collectively, the "Guarantor"`) in conjunction with that certain
Note Purchase Agreement dated April 22, 2005, (the "Note Purchase Agreement") by
and between xxxxxxxx.xxx, inc., a Delaware corporation (the "Borrower") and the
Investors listed on Schedule "A" attached thereto, as the same may be updated
from time to time in accordance with the provisions of such Agreement (the
"Investors").
W I T N E S S E T H:
A. In order to induce Investors to enter into the Note Purchase Agreement
and in furtherance of covenants and undertakings pursuant to that certain Note
Purchase Agreement, each Guarantor does hereby undertake and agree that, if for
any reason the Borrower does not make payment of any such sums or comply with
any such obligations by the time, on the date and otherwise in the manner
specified in the Note Purchase Agreement (or in any of the promissory notes
issued to the Investors in connection therewith, whether such notes are issued
at the initial closing thereof or any subsequent additional closing (the
"Notes")) (the Notes together with the Note Purchase Agreement, this Agreement
and the Security Agreement of even date, the "Note Documentation"), the
Guarantor will pay to the Investors such sums and comply with such obligations
on demand by the Investors in the manner provided in the Note Documentation. For
purposes of this Guaranty, the holders of Notes representing at least a majority
of the outstanding principal of all the Notes in the aggregate issued pursuant
to the Note Purchase Agreement are referred to herein as the "Majority Holders."
Each Guarantor agrees that its obligations hereunder shall be joint and several
with each other Guarantor; and
B. Each Guarantor is a subsidiary of the Borrower, and will substantially
benefit, economically and otherwise, from the Borrower executing the Note
Documentation and from the proceeds of the loans derived therefrom.
NOW, THEREFORE, in consideration of the premises herein, in the Note
Purchase Agreement, and of the sum of TEN DOLLARS ($10.00) paid to Guarantor by
the Investors, the receipt and adequacy whereof is hereby acknowledged, and as
part of the consideration for the execution by the Investors of the Note
Purchase Agreement, each Guarantor hereby covenants and agrees with the
Investors as follows:
1. Guaranty of Borrower's Obligations. Each Guarantor, jointly and
severally, irrevocably, absolutely and unconditionally guarantees to Investors
the due and punctual payment, when due, by acceleration or otherwise, of all
obligations to pay under the Note Documentation and performance of all of the
obligations of the Note Documentation and related documents.
2. Absolute and Unconditional Guaranty. This is also an absolute and
unconditional Guaranty pursuant to which the obligations of the Guarantors may
be enforced without first having recourse to the Borrower, any other Guarantor
or person or any other agreement, security, guaranty or indemnity.
3. General Guaranty. This Guaranty is a general guaranty and shall inure
to the benefit of the Investors and their successors and assigns. The
obligations of each Guarantor under this Guaranty shall be binding on each of
the Guarantors and their respective successors and assigns. No Guarantor may
assign its rights or transfer its obligations under this Guaranty without the
prior written approval of the Majority Holders.
4. Waiver of Defenses. Each Guarantor specifically waives any and all
defenses to any action or proceeding brought to enforce this Guaranty or any
part of this Guaranty, either at law or in equity, except for the defense that
the sum claimed by the Investors to be due has actually been paid to the
Investors. Any release of any Guarantor from this Guarantor shall not affect the
obligation and liability of the remaining Guarantors.
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5. Waiver of Jury Trial. Each Guarantor hereby knowingly, voluntarily, and
intentionally, waives the right it may have to a trial by jury in respect of any
litigation based on, or arising out of, under or in connection with this
Guaranty and any document executed in conjunction herewith or any course of
conduct, course of dealing, statement (whether oral or written) or actions of or
by any Guarantor or the Investors.
6. Submission to Jurisdiction; Attorneys' Fees. Each Guarantor irrevocably
and unconditionally (a) agrees that any suit, action or other legal proceeding
arising out of or relating to this Guaranty shall be brought in the circuit
court located in Broward County, Florida or the court of the United States,
Southern District of Florida; (b) consents to the jurisdiction of each such
court located in any such suit, action or proceeding; (c) waives any objection
which it may have to the laying of venue of any such suit, action or proceeding
in any of such courts; and (d) agrees that service of any court paper may be
affected on such party by mail or in such other manner as may be provided under
applicable laws or court rules in said state. Each Guarantor further agrees to
pay all costs of collection, including reasonable attorneys' fees, costs and
other legal expenses incurred by the Investors in attempting to enforce the
Guarantors' obligations under this Guaranty.
7. Notices. All notices, requests, consents and other communications under
this Guaranty shall be in writing and shall be (as elected by the person giving
such notice) (i) hand delivered by messenger or courier service, (ii)
telecommunicated, (iii) mailed by registered or certified mail (postage prepaid,
return receipt requested), or (iv) sent by recognized overnight courier service
to the relevant party at its/his/her address listed above (or at such other
address as the relevant Guarantor or the Investors may specify by written notice
in accordance with this paragraph). Each such notice shall be deemed delivered
(a) on the date delivered if by personal delivery; (b) on the date of
transmission with confirmed answer back if by facsimile (provided that notice is
also sent on such date in accordance with either clause (i), (iii) or (iv); (c)
on the date upon which the return receipt is signed or delivery is refused or
the notice is designated by the postal authorities as not deliverable, as the
case may be, if mailed; or (d) on the second business day following delivery to
a recognized overnight courier service for next business day delivery.
8. Entire Agreement. This Guaranty represents the entire understanding and
agreement among the Guarantors and the Investors with respect to the subject
matter hereof and supersedes all other negotiations, understandings and
representations (if any) made by and among such parties. No course of dealing,
course of performance or trade usage, shall be used to supplement or modify any
terms hereof.
9. Severability. If any part of this Guaranty is contrary to, prohibited
by or deemed invalid under applicable law or regulation, such provision shall be
inapplicable and deemed omitted to the extent so contrary, prohibited or
invalid, but the remainder of this Guaranty shall not be invalidated and shall
be given full force and effect.
10. Governing Law. This Guaranty shall be governed by the laws of the
State of Florida, without regard to the conflicts of law principles thereof.
11. Amendment and Waiver. Any term of this Guaranty may be amended, only
with the written consent of the Guarantors and the Majority Holders. Any
amendment or waiver effected in accordance with this paragraph shall be binding
upon the Guarantors and each Investor.
[EXECUTION PAGES FOLLOW]
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IN WITNESS WHEREOF, the Guarantors have duly executed this Guaranty
this ___ day of April, 2005, pursuant to a corporate resolution approving same.
Signed, sealed, and delivered in the presence of:
Chips & Bits, Inc., a Vermont corporation
______________________________________ By:___________________________________
Signature of Witness 1 Its: _________________________________
______________________________________ Print Name:___________________________
Print Name of Witness 1
______________________________________
Signature of Witness 2
______________________________________
Print Name of Witness 2
STATE OF ________________________)
) SS:
COUNTY OF _______________________)
The foregoing instrument was acknowledged before me this ____ day of
________________, 2005, by _________________________ as _____________ of Chips &
Bits, Inc., a Vermont corporation, on behalf of the corporation. He/She is
(check one) ____ personally known to me or ____ has produced
_____________________________________ as identification.
______________________________________
Notary Public Signature
______________________________________
Print Name
(SEAL) State of _______at Large
Commission No.: ______________________
My Commission expires: _______________
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Signed, sealed, and delivered in the presence of:
Strategy Plus, Inc., a Vermont corporation
______________________________________ By:___________________________________
Signature of Witness 1 Its: _________________________________
______________________________________ Print Name:___________________________
Print Name of Witness 1
______________________________________
Signature of Witness 2
______________________________________
Print Name of Witness 2
STATE OF ________________________)
) SS:
COUNTY OF _______________________)
The foregoing instrument was acknowledged before me this ____ day of
________________, 2005, by _________________________ as _____________ of
Strategy Plus, Inc., a Vermont corporation on behalf of the corporation. He/She
is (check one) ____ personally known to me or ____ has produced
_____________________________________ as identification.
______________________________________
Notary Public Signature
______________________________________
Print Name
(SEAL) State of _______at Large
Commission No.: ______________________
My Commission expires: _______________
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Signed, sealed, and delivered in the presence of:
Voiceglo Holdings, Inc., a Delaware corporation
______________________________________ By:___________________________________
Signature of Witness 1 Its: _________________________________
______________________________________ Print Name:___________________________
Print Name of Witness 1
______________________________________
Signature of Witness 2
______________________________________
Print Name of Witness 2
STATE OF ________________________)
) SS:
COUNTY OF _______________________)
The foregoing instrument was acknowledged before me this ____ day of
________________, 2005, by _________________________ as _____________ of
Voiceglo Holdings, Inc., a Delaware corporation on behalf of the corporation.
He/She is (check one) ____ personally known to me or ____ has produced
_____________________________________ as identification.
______________________________________
Notary Public Signature
______________________________________
Print Name
(SEAL) State of _______at Large
Commission No.: ______________________
My Commission expires: _______________
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Signed, sealed, and delivered in the presence of:
TC Acquisition Holdings Corp.,
a Delaware corporation
______________________________________ By:___________________________________
Signature of Witness 1 Its: _________________________________
______________________________________ Print Name:___________________________
Print Name of Witness 1
______________________________________
Signature of Witness 2
______________________________________
Print Name of Witness 2
STATE OF ________________________)
) SS:
COUNTY OF _______________________)
The foregoing instrument was acknowledged before me this ____ day of
________________, 2005, by _________________________ as _____________ of TC
Acquisition Holdings Corp., a Delaware corporation on behalf of the corporation.
He/She is (check one) ____ personally known to me or ____ has produced
_____________________________________ as identification.
______________________________________
Notary Public Signature
______________________________________
Print Name
(SEAL) State of _______at Large
Commission No.: ______________________
My Commission expires: _______________
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Signed, sealed, and delivered in the presence of:
Direct Partner Telecom, Inc.
a Florida corporation
______________________________________ By:___________________________________
Signature of Witness 1 Its: _________________________________
______________________________________ Print Name:___________________________
Print Name of Witness 1
______________________________________
Signature of Witness 2
______________________________________
Print Name of Witness 2
STATE OF ________________________)
) SS:
COUNTY OF _______________________)
The foregoing instrument was acknowledged before me this ____ day of
________________, 2005, by _________________________ as _____________ of Direct
Partner Telecom, Inc., a Florida corporation on behalf of the corporation.
He/She is (check one) ____ personally known to me or ____ has produced
_____________________________________ as identification.
______________________________________
Notary Public Signature
______________________________________
Print Name
(SEAL) State of _______at Large
Commission No.: ______________________
My Commission expires: _______________
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Signed, sealed, and delivered in the presence of:
SendTec, Inc.
a Florida corporation
______________________________________ By:___________________________________
Signature of Witness 1 Its: _________________________________
______________________________________ Print Name:___________________________
Print Name of Witness 1
______________________________________
Signature of Witness 2
______________________________________
Print Name of Witness 2
STATE OF ________________________)
) SS:
COUNTY OF _______________________)
The foregoing instrument was acknowledged before me this ____ day of
________________, 2005, by _________________________ as _____________ of
SendTec, Inc., a Florida corporation on behalf of the corporation. He/She is
(check one) ____ personally known to me or ____ has produced
_____________________________________ as identification.
______________________________________
Notary Public Signature
______________________________________
Print Name
(SEAL) State of _______at Large
Commission No.: ______________________
My Commission expires: _______________
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