SUBSIDIARY GUARANTEE
EXHIBIT
10(b)
SUBSIDIARY
GUARANTEE, dated as of June 6, 2007 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 purchaser signatory (the "Purchaser")
to
that certain Securities Purchase Agreement, dated as of the date hereof, between
Knobias, Inc., a Delaware corporation (the “Company”)
and
the Purchaser.
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 Purchaser (the “Purchase
Agreement”),
the
Company has agreed to sell and issue to the Purchaser, and the Purchaser has
agreed to purchase from the Company the Company’s Senior Secured Convertible
Note, due June 6, 2010 (the
“Note”),
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 Note; and
NOW,
THEREFORE, in consideration of the premises and to induce the Purchaser to
enter
into the Purchase Agreement and to carry out the transactions contemplated
thereby, each Guarantor hereby agrees with the Purchaser 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:
Exhibit
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“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 Note,
the
Purchase Agreement, the Security Agreement, the Security Interest and Pledge
Agreements, the Warrants, the Registration Rights Agreement or any other future
agreement or obligations undertaken by the Company to the Purchaser, together
with all reasonable attorneys’ fees, disbursements and all other costs and
expenses of collection incurred by Purchaser in enforcing any of such
Obligations and/or this Guarantee.
2. Guarantee.
(p) Guarantee.
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(i)
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The
Guarantors hereby, jointly and severally, unconditionally and irrevocably,
guarantee to the Purchaser and its 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.
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(ii)
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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)).
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(iii)
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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 Purchaser
hereunder.
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(iv)
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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.
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(v)
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No
payment made by the Company, any of the Guarantors, any other guarantor
or
any other Person or received or collected by the Purchaser 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 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.
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Exhibit
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(vi)
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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
Purchaser whole on a monetary basis for the Company's failure to
perform
such Obligations in accordance with the Transaction Documents.
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(q) 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 Purchaser
and each Guarantor shall remain liable to the Purchaser for the full amount
guaranteed by such Guarantor hereunder.
(r) No
Subrogation.
Notwithstanding any payment made by any Guarantor hereunder or any set-off
or
application of funds of any Guarantor by the Purchaser, no Guarantor shall
be
entitled to be subrogated to any of the rights of the Purchaser against the
Company or any other Guarantor or any collateral security or guarantee or right
of offset held by the Purchaser 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 Purchaser 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 Purchaser, segregated from other funds of such Guarantor, and
shall, forthwith upon receipt by such Guarantor, be turned over to the Purchaser
in the exact form received by such Guarantor (duly indorsed by such Guarantor
to
the Purchaser, if required), to be applied against the Obligations, whether
matured or unmatured, in such order as the Purchaser may determine.
Exhibit
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(s) 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 Purchaser may be rescinded by the Purchaser and any of the Obligations
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 Purchaser, 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 Purchaser may deem advisable from time to time, and
any
collateral security, guarantee or right of offset at any time held by the
Purchaser for the payment of the Obligations may be sold, exchanged, waived,
surrendered or released. The Purchaser 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.
(t) 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
Purchaser 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 Purchaser, 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. 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 Purchaser, (b) any defense,
set-off or counterclaim (other than a defense of payment or performance or
fraud
or misconduct by Purchaser) which may at any time be available to or be asserted
by the Company or any other Person against the Purchaser, 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 Purchaser may, but
shall be under no obligation to, make a similar demand on or otherwise pursue
such rights and remedies as it 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 offset with respect thereto, and any failure by
the
Purchaser 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 Purchaser against any Guarantor. For the
purposes hereof, "demand" shall include the commencement and continuance of
any
legal proceedings.
Exhibit
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(u) 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 Purchaser 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, intervener 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.
(v) Payments.
Each
Guarantor hereby guarantees that payments hereunder will be paid to the
Purchaser 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 Purchaser
as of the date hereof:
(a) Organization
and Qualification.
The
Guarantor is a corporation or limited liability company, 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 Guaranty 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 Guaranty (a "Material
Adverse Effect").
(b) Authorization;
Enforcement.
The
Guarantor has the requisite corporate power and authority to enter into and
to
consummate the transactions contemplated by this Guaranty, and otherwise to
carry out its obligations hereunder. The execution and delivery of this Guaranty
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 Guaranty 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.
Exhibit
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(c) No
Conflicts.
The
execution, delivery and performance of this Guaranty 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
Guaranty.
(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 Purchaser
shall be entitled to rely on each of them as if they were fully set forth
herein, provided, that each reference in each such 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.
4. Covenants.
Each
Guarantor covenants and agrees with the Purchaser 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.
Additionally, each Guarantor agrees to be bound by the covenants set forth
in
the Note as if fully set forth herein.
Exhibit
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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 Purchaser.
(b) Notices.
All
notices, requests and demands to or upon the Purchaser 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
Purchaser 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 Purchaser, 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 Purchaser of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy which the Purchaser
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.
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(i)
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Each
Guarantor agrees to pay, or reimburse the Purchaser for, all its
costs and
expenses incurred in collecting against such Guarantor under the
guarantee
contained in Section 2 or otherwise enforcing or preserving any rights
under this Guarantee and the other Transaction Documents to which
such
Guarantor is a party, including, without limitation, the reasonable
fees
and disbursements of counsel to the
Purchaser.
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(ii)
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Each
Guarantor agrees to pay, and to save the Purchaser 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.
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Exhibit
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(iii)
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Each
Guarantor agrees to pay, and to save the Purchaser 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.
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(iv)
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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.
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(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 Purchaser 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 Purchaser.
(f) Set-Off.
Each
Guarantor hereby irrevocably authorizes the Purchaser 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, without notice to such Guarantor or any other
Guarantor, any such notice being expressly waived by each 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 Purchaser
to
or for the credit or the account of such Guarantor, or any part thereof in
such
amounts as the Purchaser may elect, against and on account of the obligations
and liabilities of such Guarantor to the Purchaser hereunder and claims of
every
nature and description of the Purchaser against such Guarantor, in any currency,
whether arising hereunder, under the Purchase Agreement, any other Transaction
Document or otherwise, as the Purchaser may elect, whether or not the Purchaser
have made any demand for payment and although such obligations, liabilities
and
claims may be contingent or unmatured. The Purchaser shall notify such Guarantor
promptly of any such set-off and the application made by the Purchaser 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 Purchaser under
this Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which the Purchaser 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.
Exhibit
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(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 Purchaser with respect to the subject matter hereof and
thereof, and there are no promises, undertakings, representations or warranties
by the Purchaser 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:
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(i)
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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 America for the Southern District of New York, and appellate
courts from any thereof;
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(ii)
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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;
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(iii)
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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 Purchaser shall have been notified pursuant
thereto;
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(iv)
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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
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Exhibit
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(v)
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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.
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(m) Acknowledgements.
Each
Guarantor hereby acknowledges that:
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(i)
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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;
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(ii)
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the
Purchaser 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 Purchaser, on the other hand, in connection herewith
or
therewith is solely that of debtor and creditor; and
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(iii)
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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 Purchaser.
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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(f), each Guarantor will be released from all liability hereunder
concurrently with the repayment in full of all amounts owed under the Purchase
Agreement, the Notes and the other Transaction Documents.
(p) Seniority.
The
Obligations of each of the Guarantors hereunder rank senior in priority to
debt
of such Guarantor.
(q) Waiver
of Jury Trial.
EACH
GUARANTOR AND, BY ACCEPTANCE OF THE BENEFITS HEREOF, THE PURCHASER, HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS GUARANTEE AND FOR ANY COUNTERCLAIM
THEREIN.
Exhibit
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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.
SUBSIDIARY
By:_________________________________
Name:
Title:
SUBSIDIARY
By:_________________________________
Name:
Title:
SUBSIDIARY
By:_________________________________
Name:
Title:
Exhibit
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