Exhibit 10.1
GUARANTY
GUARANTY, dated as September 29, 2000 (this "GUARANTY"), by
Communication Intelligence Corporation, a Delaware corporation ("GUARANTOR"), in
favor of PenOp Limited, a company organized under the laws of England and Wales,
and PenOp Inc., a Delaware corporation (together, "SELLERS").
W I T N E S S E T H:
WHEREAS, concurrent with the execution and delivery hereof, Sellers
are entering into an Asset Purchase Agreement, dated as of the date hereof (as
amended, supplemented or modified from time to time, the "PURCHASE AGREEMENT"),
with CIC Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary
of Guarantor ("SUBSIDIARY"), pursuant to which Subsidiary has agreed to purchase
certain of the assets used or usable in connection with Sellers' business (the
"ACQUISITION");
WHEREAS, Guarantor has organized and has fully funded Subsidiary, in
order to enable Subsidiary to consummate the Acquisition, as a result of which
Guarantor will benefit directly from the Acquisition; and
WHEREAS, to induce Sellers to execute and perform the Purchase
Agreement and Related Agreements (as defined in the Purchase Agreement)
Guarantor hereby guarantees the performance by Subsidiary and any Affiliate (as
defined in the Purchase Agreement) of Subsidiary that assumes Subsidiary's
obligations under the Purchase Agreement and/or any of the Related Agreements
(as defined in the Purchase Agreement) in accordance with the terms of the
Purchase Agreement and/or such Related Agreement, as the case may be (Subsidiary
and any such Affiliate(s), collectively, "OBLIGORS") of all of Obligors'
obligations under the Purchase Agreement and Related Agreements;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, Guarantor hereby agrees as
follows:
1. GUARANTY. To induce Sellers to execute, deliver and perform the
Purchase Agreement and Related Agreements (as defined in the Purchase
Agreement), and in recognition of the direct and indirect benefits to be
received by Guarantor from the Acquisition, Guarantor hereby absolutely,
unconditionally and irrevocably guarantees, as primary obligor and not merely as
surety, the full and prompt performance of all obligations and payment when due
of any and all obligations and liabilities (including all obligations and
liabilities which but for the automatic stay under Section 362(a) of Title 11 of
the United States Code (11 U.S.C. Section 101, ET SEQ.) as amended from time to
time, or any successor statute (the "BANKRUPTCY CODE") would become due) of
Obligors to Sellers, or either of them, under the Purchase Agreement and the
Escrow Agreement, the Pledge Agreement, the Xxxx of Sale and Assignment and the
Assumption Agreement (each as defined in the Purchase Agreement) at any time and
from time to time based upon, arising out of or relating to the Purchase
Agreement and Related Agreements (as defined in the Purchase Agreement any of
such agreements, as the case may be)
(all such obligations and liabilities, collectively, the "GUARANTEED
OBLIGATIONS"); provided, that the obligations of Guarantor hereunder shall be
subject to the condition that Obligors, or any of them, shall have failed to
comply with such Guaranteed Obligations for any reason (including, without
limitation, the liquidation, dissolution, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, composition or
readjustment of, or other similar proceedings affecting the status, existence,
assets or obligations of, any of the Obligors, including, without limitation,
any automatic stay under Section 362(a) of the Bankruptcy Code applicable to
it). If any of the Guaranteed Obligations becomes due hereunder, Guarantor
unconditionally promises to pay to Sellers, together with performance and
payment of such Guaranteed Obligations, without duplication, any and all
reasonable expenses, including but not limited to legal fees and costs, which
may be incurred by Sellers in enforcing this Guaranty and collecting any such
Guaranteed Obligations.
2. NATURE OF OBLIGATIONS; INVALIDITY. (a) This Guaranty shall
constitute a guarantee of performance and payment and not of collection, and
Guarantor specifically agrees that it shall not be necessary, and that Guarantor
shall not be entitled to require (and Guarantor hereby waives any right, except
as cannot be waived under law, to require), before or as a condition of
enforcing the liability of Guarantor under this Guaranty or requiring payment of
the Guaranteed Obligations by Guarantor hereunder, or at any time thereafter,
that Sellers: (i) file suit or proceed to obtain or assert a claim against any
of Obligors or any person or other entity or association, trust, or
unincorporated organization (each a "PERSON") that may be liable for any
Guaranteed Obligation; (ii) make any other effort to obtain payment or
performance of any Guaranteed Obligation from any of Obligors or any other
Person that may be liable for such Guaranteed Obligation; (iii) exercise or
assert any other right or remedy to which Sellers are or may be entitled in
connection with any Guaranteed Obligation or any security or other guarantee
therefor; or (iv) assert or file any claim against the assets of any of Obligors
or any other Person that may be liable for any Guaranteed Obligation.
(b) No invalidity, irregularity or unenforceability of all or
any part of the Guaranteed Obligations or of any security therefor shall affect,
impair or be a defense to this Guaranty. This Guaranty shall be primary,
absolute and unconditional and shall remain in full force and effect without
regard to, and shall not be released, suspended, impaired, discharged,
terminated or otherwise affected by, and the rights of Sellers to enforce this
Guaranty, whether by action at law, suit in equity or otherwise, shall not in
any way be affected by, (i) the liquidation, dissolution, receivership,
insolvency, bankruptcy, assignment for the benefit of creditors, reorganization,
composition or readjustment of, or other similar proceedings affecting the
status, existence, assets or obligations of, any of Obligors, including, without
limitation, any automatic stay under Section 362(a) of the Bankruptcy Code
applicable to it; or (ii) the occurrence of any event or the existence of any
other circumstances that might otherwise constitute a legal or equitable
discharge of or defense to a guarantor or surety with respect to any Guaranteed
Obligation, except to the extent any defense, other than any defense based upon
lack of authority or disability, could be asserted successfully by any of
Obligors. Sellers shall not be obligated to file any claim relating to any
Guaranteed Obligations in any bankruptcy, insolvency, liquidation,
reorganization or similar proceeding relating to any of Obligors, and any
failure of Sellers to so file shall not affect Guarantor's obligations
hereunder.
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3. SUBORDINATION. Any of the indebtedness of Obligors now or
hereafter owing to Guarantor is hereby subordinated to the Guaranteed
Obligations.
4. WAIVERS. (a) Sellers may exercise any other right or remedy
Sellers may have against any of Obligors or any other party, or any security,
without affecting or impairing in any way the liability of Guarantor hereunder
except to the extent the Guaranteed Obligations have been performed and paid.
(b) Guarantor waives notices of or any right to require its
consent to any amendment of, supplements to or modifications of the Purchase
Agreement and Related Agreements (as defined in the Purchase Agreement) and
notices of or any right to require its consent to the existence, modification,
creation or incurring of new or additional Guaranteed Obligations.
5. REPRESENTATIONS AND WARRANTIES. In order to induce Sellers to
accept this Guaranty, Guarantor represents and warrants to Sellers that: all
requisite corporate actions for the execution, delivery and performance by
Guarantor of this Guaranty have been duly performed; Guarantor has the full
legal capacity and legal right, power and authority to enter into this Guaranty
and to consummate the transactions contemplated hereby; this Guaranty has been
duly executed and delivered by Guarantor; and this Guaranty, upon execution and
delivery, will be, a legal, valid and binding obligation of Guarantor,
enforceable in accordance with its terms, except to the extent that such
enforcement may be subject to applicable bankruptcy, reorganization, insolvency,
moratorium or similar laws of general application affecting the rights and
remedies of creditors or secured parties, and that the availability of equitable
remedies, including specific performance, injunctive relief and reformation, may
be subject to equitable defenses and the discretion of the court before which
any proceeding therefor may be brought.
6. REINSTATEMENT OF OBLIGATIONS. If a claim is ever made upon
Sellers for repayment or recovery of any amount or amounts received in payment
or on account of any of the Guaranteed Obligations and Sellers are required to
repay all or part of said amount for any reason whatsoever, then and in such
event Guarantor shall be and remain liable to Sellers hereunder for the amount
so repaid or recovered to the same extent as if such amount had never originally
been received by Sellers.
7. MISCELLANEOUS. (a) NOTICES. All notices and other communications
hereunder shall be in writing and shall be given by hand delivery to the other
party; overnight courier; registered or certified mail, return receipt
requested, postage prepaid; or facsimile transmission addressed as follows:
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If to Guarantor:
Communication Intelligence Corporation
000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx XxXxxxxxxx, President and Chief Executive
Officer
With a copy to:
Xxxx Marks & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxx, Esq.
If to Sellers:
PenOp Limited
PenOp Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx, President
With a copy to:
White & Case LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx Xxxxxxxx, Esq.
and
Xxxxxxx Xxxxxx
00 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxxx XX0 0XX
Xxxxxx Xxxxxxx
Telephone: 000 00 000 000-0000
Telecopy: 011 44 171 917-4205
Attention: Xxxxx Xxxxxxxx, Esq.
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or at such other address or addresses as may have been furnished in writing by
any party to the others in accordance with the provisions of this Section 7(a).
Notices and other communications provided in accordance with this Section 7(a)
shall be deemed delivered upon receipt. The furnishing of any notice or
communication required hereunder may be waived in writing by the party entitled
to receive such notice. Failure or delay in delivering copies of any notice to
persons designated above to receive copies shall in no way adversely affect the
effectiveness of such notice or communication.
(b) NO WAIVER; CUMULATIVE RIGHTS. No failure on the part of
Sellers to exercise, and no delay in exercising, any right, remedy or power
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise by Sellers of any right, remedy or power hereunder preclude any other
or future exercise of any right, remedy or power. Each and every right, remedy
and power hereby granted to Sellers or allowed them by law or any other
agreement shall be cumulative and not exclusive of any other, and may be
exercised by Sellers at any time or from time to time.
(c) PARTIES OBLIGATED AND BENEFITED. This Guaranty shall be
binding upon, inure to the benefit of and be enforceable by Guarantor and its
permitted assigns and successors in interest. This Guaranty shall be binding
upon, inure to the benefit of and be enforceable by Sellers and their assigns
and successors in interest. Guarantor may not assign or transfer any of its
rights or obligations hereunder without the prior written consent of Sellers.
(d) GOVERNING LAW; CONSENT TO JURISDICTION. This Guaranty
shall be governed by and construed and enforced in accordance with the law
(without giving effect to the law governing the principles of conflicts of law)
of the State of New York. Any action to enforce, or arising out of or relating
in any way to, any of the provisions of this Guaranty shall be brought and
prosecuted in the appropriate court or courts located within New York County,
State of New York, and the parties consent to the jurisdiction of said court or
courts and to service of process by registered mail, return receipt requested,
or by any other manner permitted by law. Each party hereto agrees to not assert,
by way of motion, as a defense or otherwise, in any such action, suit or
proceeding any claim that it is not subject personally to the jurisdiction of
such court, that the action, suit or proceeding is brought in an inconvenient
forum, that the venue of the action, suit or proceeding is improper or that this
Guaranty, or any other agreement or transaction related hereto or the subject
matter hereof or thereof may not be enforced in or by such court.
(e) HEADINGS DESCRIPTIVE. The headings of the several sections
and subsections of this Guaranty are inserted for convenience only and shall not
in any way affect the meaning or construction of any provision of this Guaranty.
(f) SEVERABILITY. If any provision of this Guaranty shall be
held or deemed, by a court or other tribunal of competent jurisdiction, to be
invalid, inoperative or unenforceable because of the conflict of such provision
with any constitution or statute or rule of public policy or for any other
reason, such circumstance shall not have the effect of rendering any other
provision invalid, inoperative or unenforceable, and this Guaranty shall be
reformed and construed as if such invalid, inoperative or unenforceable
provision had never been
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contained herein and such provision reformed so that it is valid, operative and
enforceable to the maximum extent permitted.
(g) ENTIRE AGREEMENT. This Guaranty represents the entire
agreement between Guarantor and Sellers with respect to the subject matter
hereof. The terms of this Guaranty shall not be waived, altered, modified,
amended, supplemented or terminated in any manner whatsoever except by written
instrument signed by Sellers and Guarantor.
(h) COUNTERPARTS. This Guaranty may be executed in
counterparts, each of which shall be deemed to be an original, but all of which
shall be considered one and the same instrument.
IN WITNESS WHEREOF, Guarantor has caused this Guarantee to be duly
executed and delivered as of the date first above written.
GUARANTOR:
COMMUNICATION INTELLIGENCE CORPORATION
By: /s/ XXXXXX XXXXXXXX
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Name: Xxxxxx Xxxxxxxx
Title: Secretary
ACCEPTED:
September 29, 2000
SELLERS:
PENOP LIMITED
By: /s/ XXXXXX XXXXXXXXX
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Name: Xxxxxx Xxxxxxxxx
Title: Director
PENOP INC.
By:/s/ XXXXXX XXXXXXXXX
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Name: Xxxxxx Xxxxxxxxx
Title: President
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