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Exhibit 4.3
EXHIBIT F
SUBSIDIARY GUARANTEE
SUBSIDIARY GUARANTEE, dated as of _____________, 2006 (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
Unity Wireless Corporation, 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 Senior
Secured Convertible Debentures, due _______________, 2009 (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 Debentures, the Purchase
Agreement, the Security Agreement, the Warrants, the Registration
Rights Agreement or any other future agreement or obligations
undertaken by the Company to the Purchasers, 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.
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 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 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. 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 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 corp
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