EXHIBIT 99.3
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SUBSIDIARY GUARANTEE
SUBSIDIARY GUARANTEE, dated as of December 28, 2005 (this "Guarantee"),
made by each of the signatories hereto (together with any other entity that may
become a party hereto as provided herein, (the "Guarantors"), in favor of the
purchasers signatory (the "Purchasers") to that certain Securities Purchase
Agreement, dated as of the date hereof, between XXXXxx.xxx, Inc., a Delaware
corporation (the "Company") and the Purchasers.
W I T N E S S E T H:
WHEREAS, pursuant to that certain Securities Purchase Agreement, dated as
of the date hereof, by and between the Company and the Purchasers (the "Purchase
Agreement"), the Company has agreed to sell and issue to the Purchasers, and the
Purchasers have agreed to purchase from the Company the Company's Secured
Convertible Debentures, due December ___, 2008 (the "Debentures"), subject to
the terms and conditions set forth therein; and
WHEREAS, each Guarantor will directly benefit from the extension of credit
to the Company represented by the issuance of the Debentures; and
NOW, THEREFORE, in consideration of the premises and to induce the
Purchasers to enter into the Purchase Agreement and to carry out the
transactions contemplated thereby, each Guarantor hereby agrees with the
Purchasers as follows:
1. Definitions. Unless otherwise defined herein, terms defined in the
Purchase Agreement and used herein shall have the meanings given to them in the
Purchase Agreement. The words "hereof," "herein," "hereto" and "hereunder" and
words of similar import when used in this Guarantee shall refer to this
Guarantee as a whole and not to any particular provision of this Guarantee, and
Section and Schedule references are to this Guarantee unless otherwise
specified. The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms. The following
terms shall have the following meanings:
"Guarantee" means this Subsidiary Guarantee, as the same may be
amended, supplemented or otherwise modified from time to time.
"Obligations" means the collective reference to all obligations and
undertakings of the Company of whatever nature, monetary or otherwise,
under the Transaction Documents or any other future agreement or
obligations undertaken by the Company to the Purchasers arising out of the
Transaction Documents, together with all reasonable attorneys' fees,
disbursements and all other costs and expenses of collection incurred by
Purchasers in enforcing any of such Obligations and/or this Guarantee.
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2. Guarantee.
(a) Guarantee.
(i) The Guarantors hereby, jointly and severally,
unconditionally and irrevocably, guarantee to the Purchasers
and their respective successors, indorsees, transferees and
assigns, the prompt and complete payment and performance by
the Company when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations.
(ii) Anything herein or in any other Transaction Document to the
contrary notwithstanding, the maximum liability of each
Guarantor hereunder and under the other Transaction
Documents shall in no event exceed the amount which can be
guaranteed by such Guarantor under applicable federal and
state laws, including laws relating to the insolvency of
debtors, fraudulent conveyance or transfer or laws affecting
the rights of creditors generally (after giving effect to
the right of contribution established in Section 2(b)).
(iii) Each Guarantor agrees that the Obligations may at any time
and from time to time exceed the amount of the liability of
such Guarantor hereunder without impairing the guarantee
contained in this Section 2 or affecting the rights and
remedies of the Purchasers hereunder.
(iv) The guarantee contained in this Section 2 shall remain in
full force and effect until all the Obligations and the
obligations of each Guarantor under the guarantee contained
in this Section 2 shall have been satisfied by payment in
full.
(v) No payment made by the Company, any of the Guarantors, any
other guarantor or any other Person or received or collected
by the Purchasers from the Company, any of the Guarantors,
any other guarantor or any other Person by virtue of any
action or proceeding or any set-off or appropriation or
application at any time or from time to time in reduction of
or in payment of the Obligations shall be deemed to modify,
reduce, release or otherwise affect the liability of any
Guarantor hereunder which shall, notwithstanding any such
payment (other than any payment made by such Guarantor in
respect of the Obligations or any payment received or
collected from such Guarantor in
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respect of the Obligations), remain liable for the
Obligations up to the maximum liability of such Guarantor
hereunder until the Obligations are paid in full.
(vi) Notwithstanding anything to the contrary in this Agreement,
with respect to any defaulted non-monetary Obligations the
specific performance of which by the Guarantors is not
reasonably possible (e.g. the issuance of the Company's
Common Stock), the Guarantors shall only be liable for
making the Purchasers whole on a monetary basis for the
Company's failure to perform such Obligations in accordance
with the Transaction Documents.
(b) Right of Contribution. Each Guarantor hereby agrees that to the
extent that a Guarantor shall have paid more than its proportionate
share of any payment made hereunder, such Guarantor shall be
entitled to seek and receive contribution from and against any other
Guarantor hereunder which has not paid its proportionate share of
such payment. Each Guarantor's right of contribution shall be
subject to the terms and conditions of Section 2(c). The provisions
of this Section 2(b) shall in no respect limit the obligations and
liabilities of any Guarantor to the Purchasers, and each Guarantor
shall remain liable to the Purchasers for the full amount guaranteed
by such Guarantor hereunder.
(c) No Subrogation. Notwithstanding any payment made by any Guarantor
hereunder or any set-off or application of funds of any Guarantor by
the Purchasers, no Guarantor shall be entitled to be subrogated to
any of the rights of the Purchasers against the Company or any other
Guarantor or any collateral security or guarantee or right of offset
held by the Purchasers for the payment of the Obligations, nor shall
any Guarantor seek or be entitled to seek any contribution or
reimbursement from the Company or any other Guarantor in respect of
payments made by such Guarantor hereunder, until all amounts owing
to the Purchasers by the Company on account of the Obligations are
paid in full. If any amount shall be paid to any Guarantor on
account of such subrogation rights at any time when all of the
Obligations shall not have been paid in full, such amount shall be
held by such Guarantor in trust for the Purchasers, segregated from
other funds of such Guarantor, and shall, forthwith upon receipt by
such Guarantor, be turned over to the Purchasers in the exact form
received by such Guarantor (duly indorsed by such Guarantor to the
Purchasers, if required), to be applied against the Obligations,
whether matured or unmatured, in such order as the Purchasers may
determine.
(d) Amendments, Etc. With Respect to the Obligations. Each Guarantor
shall remain obligated hereunder notwithstanding that, without any
reservation of rights against any Guarantor and without notice to or
further assent by any Guarantor, any demand for payment of any of
the Obligations made by the Purchasers may be rescinded by the
Purchasers and any of the Obligations
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continued, and the Obligations, or the liability of any other Person
upon or for any part thereof, or any collateral security or
guarantee therefor or right of offset with respect thereto, may,
from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or
released by the Purchasers, and the Purchase Agreement and the other
Transaction Documents and any other documents executed and delivered
in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, as the Purchasers may deem
advisable from time to time, and any collateral security, guarantee
or right of offset at any time held by the Purchasers for the
payment of the Obligations may be sold, exchanged, waived,
surrendered or released. The Purchasers shall have no obligation to
protect, secure, perfect or insure any Lien at any time held by them
as security for the Obligations or for the guarantee contained in
this Section 2 or any property subject thereto.
(e) Guarantee Absolute and Unconditional. Each Guarantor waives any and
all notice of the creation, renewal, extension or accrual of any of
the Obligations and notice of or proof of reliance by the Purchasers
upon the guarantee contained in this Section 2 or acceptance of the
guarantee contained in this Section 2; the Obligations, and any of
them, shall conclusively be deemed to have been created, contracted
or incurred, or renewed, extended, amended or waived, in reliance
upon the guarantee contained in this Section 2; and all dealings
between the Company and any of the Guarantors, on the one hand, and
the Purchasers, on the other hand, likewise shall be conclusively
presumed to have been had or consummated in reliance upon the
guarantee contained in this Section 2. Each Guarantor waives to the
extent permitted by law diligence, presentment, protest, demand for
payment and notice of default or nonpayment to or upon the Company
or any of the Guarantors with respect to the Obligations, except as
provided in the Transaction Documents. Each Guarantor understands
and agrees that the guarantee contained in this Section 2 shall be
construed as a continuing, absolute and unconditional guarantee of
payment without regard to (a) the validity or enforceability of the
Purchase Agreement or any other Transaction Document, any of the
Obligations or any other collateral security therefor or guarantee
or right of offset with respect thereto at any time or from time to
time held by the Purchasers, (b) any defense, set-off or
counterclaim (other than a defense of payment or performance or
fraud or misconduct by Purchasers) which may at any time be
available to or be asserted by the Company or any other Person
against the Purchasers, or (c) any other circumstance whatsoever
(with or without notice to or knowledge of the Company or such
Guarantor) which constitutes, or might be construed to constitute,
an equitable or legal discharge of the Company for the Obligations,
or of such Guarantor under the guarantee contained in this Section
2, in bankruptcy or in any other instance. When making any demand
hereunder or otherwise pursuing its rights and remedies hereunder
against any Guarantor, the Purchasers may, but shall be under no
obligation to, make a similar demand on or otherwise pursue such
rights and remedies as they may have against the Company, any other
Guarantor or any other Person or against any collateral security or
guarantee for the Obligations or any right of
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offset with respect thereto, and any failure by the Purchasers to
make any such demand, to pursue such other rights or remedies or to
collect any payments from the Company, any other Guarantor or any
other Person or to realize upon any such collateral security or
guarantee or to exercise any such right of offset, or any release of
the Company, any other Guarantor or any other Person or any such
collateral security, guarantee or right of offset, shall not relieve
any Guarantor of any obligation or liability hereunder, and shall
not impair or affect the rights and remedies, whether express,
implied or available as a matter of law, of the Purchasers against
any Guarantor. For the purposes hereof, "demand" shall include the
commencement and continuance of any legal proceedings.
(f) Reinstatement. The guarantee contained in this Section 2 shall
continue to be effective, or be reinstated, as the case may be, if
at any time payment, or any part thereof, of any of the Obligations
is rescinded or must otherwise be restored or returned by the
Purchasers upon the insolvency, bankruptcy, dissolution, liquidation
or reorganization of the Company or any Guarantor, or upon or as a
result of the appointment of a receiver, intervenor or conservator
of, or trustee or similar officer for, the Company or any Guarantor
or any substantial part of its property, or otherwise, all as though
such payments had not been made.
(g) Payments. Each Guarantor hereby guarantees that payments hereunder
will be paid to the Purchasers without set-off or counterclaim in
U.S. dollars at the address set forth or referred to in the Purchase
Agreement.
3. Representations and Warranties. Each Guarantor hereby makes the
following representations and warranties to Purchasers as of the date
hereof:
(a) Organization and Qualification. The Guarantor is a corporation, duly
incorporated, validly existing and in good standing under the laws
of the applicable jurisdiction set forth on Schedule 1, with the
requisite corporate power and authority to own and use its
properties and assets and to carry on its business as currently
conducted. The Guarantor has no subsidiaries other than those
identified as such on the Disclosure Schedules to the Purchase
Agreement. The Guarantor is duly qualified to do business and is in
good standing as a foreign corporation in each jurisdiction in which
the nature of the business conducted or property owned by it makes
such qualification necessary, except where the failure to be so
qualified or in good standing, as the case may be, could not,
individually or in the aggregate, (x) adversely affect the legality,
validity or enforceability of any of this Guarantee in any material
respect, (y) have a material adverse effect on the results of
operations, assets, prospects, or financial condition of the
Guarantor or (z) adversely impair in any material respect the
Guarantor's ability to perform fully on a timely basis its
obligations under this Guarantee (a "Material Adverse Effect").
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(b) Authorization; Enforcement. The Guarantor has the requisite
corporate power and authority to enter into and to consummate the
transactions contemplated by this Guarantee, and otherwise to carry
out its obligations hereunder. The execution and delivery of this
Guarantee by the Guarantor and the consummation by it of the
transactions contemplated hereby have been duly authorized by all
requisite corporate action on the part of the Guarantor. This
Guarantee has been duly executed and delivered by the Guarantor and
constitutes the valid and binding obligation of the Guarantor
enforceable against the Guarantor in accordance with its terms,
except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or
similar laws relating to, or affecting generally the enforcement of,
creditors' rights and remedies or by other equitable principles of
general application.
(c) No Conflicts. The execution, delivery and performance of this
Guarantee by the Guarantor and the consummation by the Guarantor of
the transactions contemplated thereby do not and will not (i)
conflict with or violate any provision of its Certificate of
Incorporation or By-laws or (ii) conflict with, constitute a default
(or an event which with notice or lapse of time or both would become
a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture
or instrument to which the Guarantor is a party, or (iii) result in
a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental
authority to which the Guarantor is subject (including Federal and
state securities laws and regulations), or by which any material
property or asset of the Guarantor is bound or affected, except in
the case of each of clauses (ii) and (iii), such conflicts,
defaults, terminations, amendments, accelerations, cancellations and
violations as could not, individually or in the aggregate, have or
result in a Material Adverse Effect. The business of the Guarantor
is not being conducted in violation of any law, ordinance or
regulation of any governmental authority, except for violations
which, individually or in the aggregate, do not have a Material
Adverse Effect.
(d) Consents and Approvals. The Guarantor is not required to obtain any
consent, waiver, authorization or order of, or make any filing or
registration with, any court or other federal, state, local, foreign
or other governmental authority or other person in connection with
the execution, delivery and performance by the Guarantor of this
Guarantee.
(e) Purchase Agreement. The representations and warranties of the
Company set forth in the Purchase Agreement as they relate to such
Guarantor, each of which is hereby incorporated herein by reference,
are true and correct as of each time such representations are deemed
to be made pursuant to such Purchase Agreement, and the Purchasers
shall be entitled to rely on each of them as if they were fully set
forth herein, provided, that each reference in each such
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representation and warranty to the Company's knowledge shall, for
the purposes of this Section 3, be deemed to be a reference to such
Guarantor's knowledge.
(f) Foreign Law. Each Guarantor has consulted with appropriate foreign
legal counsel with respect to any of the above representations for
which non-U.S. law is applicable. Such foreign counsel have advised
each applicable Guarantor that such counsel knows of no reason why
any of the above representations would not be true and accurate.
Such foreign counsel were provided with copies of this Subsidiary
Guarantee and the Transaction Documents prior to rendering their
advice.
4. Covenants.
(a) Each Guarantor covenants and agrees with the Purchasers that, from
and after the date of this Guarantee until the Obligations shall
have been paid in full, such Guarantor shall take, and/or shall
refrain from taking, as the case may be, each commercially
reasonable action that is necessary to be taken or not taken, as the
case may be, so that no Event of Default is caused by the failure to
take such action or to refrain from taking such action by such
Guarantor.
(b) So long as any of the Obligations are outstanding, each Guarantor
will not directly or indirectly on or after the date of this
Guarantee:
i. except with the prior written consent of the Agent (as
defined in the Security Agreement), enter into, create,
incur, assume or suffer to exist any indebtedness for
borrowed money of any kind, including but not limited to, a
guarantee, on or with respect to any of its property or
assets now owned or hereafter acquired or any interest
therein or any income or profits therefrom that is senior
to, or pari passu with, in any respect, such Guarantor's
obligations hereunder;
ii. enter into, create, incur, assume or suffer to exist any
liens of any kind, on or with respect to any of its property
or assets now owned or hereafter acquired or any interest
therein or any income or profits therefrom that is senior
to, in any respect, such Guarantor's obligations hereunder,
except for Permitted Liens;
iii. amend its certificate of incorporation, bylaws or other
charter documents so as to adversely affect any rights of
the Purchasers;
iv. repay, repurchase or offer to repay, repurchase or otherwise
acquire more than a de minimis number of shares of Common
Stock or Common Stock Equivalents other than (i) as to the
Conversion Shares to the extent permitted or required under
the Transaction Documents, (ii) as otherwise permitted by
the Transaction Documents or (iii) shares of Common Stock
held by former employees of the Company which the
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Company is entitled to repurchase from such employees
pursuant to contractual rights relating to their termination
of employment, provided such repurchases do not exceed
$50,000 in any 12 month period;
v. enter into any agreement with respect to any of the
foregoing; or
vi. pay cash dividends on any equity securities of the Company.
5. Miscellaneous.
(a) Amendments in Writing. None of the terms or provisions of this
Guarantee may be waived, amended, supplemented or otherwise modified
except in writing by the Purchasers and the Guarantor.
(b) Notices. All notices, requests and demands to or upon the Purchasers
or any Guarantor hereunder shall be effected in the manner provided
for in the Purchase Agreement; provided that any such notice,
request or demand to or upon any Guarantor shall be addressed to
such Guarantor at its notice address set forth on Schedule 5(b).
(c) No Waiver By Course Of Conduct; Cumulative Remedies. The Purchasers
shall not by any act (except by a written instrument pursuant to
Section 5(a)), delay, indulgence, omission or otherwise be deemed to
have waived any right or remedy hereunder or to have acquiesced in
any default under the Transaction Documents or Event of Default. No
failure to exercise, nor any delay in exercising, on the part of the
Purchasers, any right, power or privilege hereunder shall operate as
a waiver thereof. No single or partial exercise of any right, power
or privilege hereunder shall preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. A
waiver by the Purchasers of any right or remedy hereunder on any one
occasion shall not be construed as a bar to any right or remedy
which the Purchasers would otherwise have on any future occasion.
The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other
rights or remedies provided by law.
(d) Enforcement Expenses; Indemnification.
(i) Each Guarantor agrees to pay, or reimburse the Purchasers
for, all their costs and expenses incurred in collecting
against such Guarantor under the guarantee contained in
Section 2 or otherwise enforcing any rights under this
Guarantee and the other Transaction Documents to which such
Guarantor is a party, including, without limitation, the
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reasonable fees and disbursements of counsel to the
Purchasers.
(ii) Each Guarantor agrees to pay, and to save the Purchasers
harmless from, any and all liabilities with respect to, or
resulting from any delay in paying, any and all stamp,
excise, sales or other taxes which may be payable or
determined to be payable in connection with any of the
transactions contemplated by this Guarantee to the extent
the Company would be required to do so pursuant to the
Purchase Agreement.
(iii) Each Guarantor agrees to pay, and to save the Purchasers
harmless from, any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever
with respect to the execution, delivery, enforcement,
performance and administration of this Guarantee to the
extent the Company would be required to do so pursuant to
the Purchase Agreement.
(iv) The agreements in this Section shall survive repayment of
the Obligations and all other amounts payable under the
Purchase Agreement and the other Transaction Documents.
(e) Successor and Assigns. This Guarantee shall be binding upon the
successors and assigns of each Guarantor and shall inure to the
benefit of the Purchasers and their respective successors and
assigns; provided that no Guarantor may assign, transfer or delegate
any of its rights or obligations under this Guarantee without the
prior written consent of the Purchasers.
(f) Set-Off. Each Guarantor hereby irrevocably authorizes the Purchasers
at any time and from time to time while an Event of Default under
any of the Transaction Documents shall have occurred and be
continuing, upon at least five (5) days notice to such Guarantor or
any other Guarantor to set-off and appropriate and apply any and all
deposits, credits, indebtedness or claims, in any currency, in each
case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by the Purchasers to or for the
credit or the account of such Guarantor, or any part thereof in such
amounts as the Purchasers may elect, against and on account of the
obligations and liabilities of such Guarantor to the Purchasers
hereunder and claims of every nature and description of the
Purchasers against such Guarantor, in any currency, whether arising
hereunder, under the Purchase Agreement, any other Transaction
Document or otherwise, as the Purchasers may elect, whether or not
the Purchasers have made any demand for payment and although such
obligations, liabilities and claims may be contingent or unmatured.
Thereafter, the Purchasers
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shall notify such Guarantor promptly of any such set-off and the
application made by the Purchasers of the proceeds thereof, provided
that the failure to give such notice shall not affect the validity
of such set-off and application. The rights of the Purchasers under
this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which the
Purchasers may have.
(g) Counterparts. This Guarantee may be executed by one or more of the
parties to this Guarantee on any number of separate counterparts
(including by telecopy), and all of said counterparts taken together
shall be deemed to constitute one and the same instrument.
(h) Severability. 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 provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
(i) Section Headings. The Section headings used in this Guarantee are
for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the
interpretation hereof.
(j) Integration. This Guarantee and the other Transaction Documents
represent the agreement of the Guarantors and the Purchasers with
respect to the subject matter hereof and thereof, and there are no
promises, undertakings, representations or warranties by the
Purchasers relative to subject matter hereof and thereof not
expressly set forth or referred to herein or in the other
Transaction Documents.
(k) Governing Law. THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
WITHOUT REGARD TO ANY PRINCIPLES OF CONFLICTS OF LAWS.
(l) Submission to Jurisdictional; Waiver. Each Guarantor hereby
irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Guarantee and the other
Transaction Documents to which it is a party, or for
recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the
Courts of the State of New York, located in New York County,
New York, the courts of the United States of
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America for the Southern District of New York, and appellate
courts from any thereof;
(ii) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding
in any such court or that such action or proceeding was
brought in an inconvenient court and agrees not to plead or
claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar
form of mail), postage prepaid, to such Guarantor at its
address referred to in the Purchase Agreement or at such
other address of which the Purchasers shall have been
notified pursuant thereto;
(iv) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or
shall limit the right to xxx in any other jurisdiction; and
(v) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or
proceeding referred to in this Section any special,
exemplary, punitive or consequential damages.
(m) Acknowledgements. Each Guarantor hereby acknowledges that:
(i) it has been advised by counsel in the negotiation, execution
and delivery of this Guarantee and the other Transaction
Documents to which it is a party;
(ii) the Purchasers have no fiduciary relationship with or duty
to any Guarantor arising out of or in connection with this
Guarantee or any of the other Transaction Documents, and the
relationship between the Guarantors, on the one hand, and
the Purchasers, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(iii) no joint venture is created hereby or by the other
Transaction Documents or otherwise exists by virtue of the
transactions contemplated hereby among the Guarantors and
the Purchasers.
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(n) Additional Guarantors. The Company shall cause each of its
subsidiaries formed or acquired on or subsequent to the date hereof
to become a Guarantor for all purposes of this Guarantee by
executing and delivering an Assumption Agreement in the form of
Annex 1 hereto.
(o) Release of Guarantors. Subject to Section 2.6, each Guarantor will
be released from all liability hereunder concurrently with the
repayment in full of all amounts owed under the Purchase Agreement,
the Debentures and the other Transaction Documents.
(p) Seniority. The obligations of each of the Guarantors hereunder rank
senior in priority to any other unsecured Debt (as defined in the
Debentures) of such Guarantor.
(q) Waiver of Jury Trial. EACH GUARANTOR AND, BY ACCEPTANCE OF THE
BENEFITS HEREOF, THE PURCHASERS, HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS GUARANTEE AND FOR ANY COUNTERCLAIM
THEREIN.
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IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee to be
duly executed and delivered as of the date first above written.
ARKADOS, INC.
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: President & CEO
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