EXHIBIT
10.6
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this
“ Guaranty ”) is made as of September 5, 2008 by
and between OptimizeRx Corporation, a Michigan corporation (“
Debtor ”), and Vicis Capital Master Fund
(“ Vicis ”), a sub-trust of Vicis Capital Series
Master Trust, a unit trust organized and existing under the laws of
the Cayman Islands.
WHEREAS, Debtor is a wholly owned
subsidiary of OptimizeRx, a Nevada corporation (“
Issuer ”).
WHEREAS, pursuant to a Securities
Purchase Agreement of even date herewith by and between Vicis and
Issuer (as amended or modified from time to time, the “
Purchase Agreement ”), Issuer has issued $3,500,000 in
shares of the Issuer’s Series A Convertible Preferred Stock,
par value $.001 per share (the “ Preferred Shares
”), to Vicis.
WHEREAS, it is a condition precedent
to Vicis acquiring the Preferred Shares that Guarantor execute and
deliver to Vicis a guaranty in the form hereof.
WHEREAS, this is the Guaranty
Agreement referred to in the Purchase Agreement.
NOW, THEREFORE, in consideration of
the recitals and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Guarantor
hereby agrees with Vicis as follows:
ARTICLE 1
DEFINITIONS
When used in this Guaranty,
capitalized terms shall have the meanings specified in the Purchase
Agreement, the preamble, the recitals and as follows:
1.1 Event of
Default . “Event of Default” shall have
the meaning specified in the Purchase Agreement.
1.2
Guaranty . “Guaranty” shall mean this
Guaranty, as the same shall be amended from time to time in
accordance with the terms hereof.
1.3 Law
. “Law” shall mean any federal, state, local
or other law, rule, regulation or governmental requirement of any
kind, and the rules, regulations, interpretations and orders
promulgated thereunder.
1.4
Obligations . “Obligations” shall
mean (a) the redemption of, and payment of dividends on, the
Preferred Shares, and any renewal, extension or refinancing
thereof; (b) all debts, liabilities, obligations, covenants and
agreements of the Issuer and Debtor contained in the Transaction
Documents; and (c) any and all other debts, liabilities and
obligations of the Debtor and Issuer to Vicis.
1.5
Person . “Person” shall mean and include an
individual, partnership, corporation, trust, unincorporated
association and any unit, department or agency of
government.
ARTICLE 2
THE GUARANTY
2.1 The
Guaranty . Guarantor, for itself, its successors and
assigns, hereby unconditionally and absolutely guarantees to Vicis
the full and complete payment and performance when due (whether at
stated maturity, by acceleration or otherwise) of each of the
Obligations. This is a guaranty of payment and
performance and not of collection.
2.2 Waivers
and Consents .
(a) Guarantor
acknowledges that the obligations undertaken herein involve the
guaranty of obligations of a Person other than Guarantor and, in
full recognition of that fact, Guarantor consents and agrees that
Vicis may, at any time and from time to time, without notice or
demand, and without affecting the enforceability or continuing
effectiveness hereof: (i) supplement, modify, amend,
extend, renew, accelerate or otherwise change the time for payment
or the other terms of the Obligations or any part thereof,
including without limitation any increase or decrease of the
principal amount thereof or the rate(s) of interest thereon; (ii)
supplement, modify, amend or waive, or enter into or give any
agreement, approval or consent with respect to, the Obligations or
any part thereof, or any of the Transaction Documents or any
additional security or guaranties, or any condition, covenant,
default, remedy, right, representation or term thereof or
thereunder; (iii) accept new or additional instruments, documents
or agreements in exchange for or relative to any of the Transaction
Documents or the Obligations or any part thereof; (iv) accept
partial payments on the Obligations; (v) receive and hold
additional security or guaranties for the Obligations or any part
thereof; (vi) release, reconvey, terminate, waive, abandon, fail to
perfect, subordinate, exchange, substitute, transfer and/or enforce
any security or guaranties, and apply any security and direct the
order or manner of sale thereof as Vicis in its sole and absolute
discretion may determine; (vii) release any Person from any
personal liability with respect to the Obligations or any part
thereof; (viii) settle, release on terms satisfactory to Vicis or
by operation of applicable Law or otherwise, liquidate or enforce
any Obligations and any security or guaranty in any manner, consent
to the transfer of any security and bid and purchase at any sale;
and/or (ix) consent to the merger, change or any other
restructuring or termination of the corporate existence of Issuer
or any other Person, and correspondingly restructure the
Obligations, and any such merger, change, restructuring or
termination shall not affect the liability of Guarantor or the
continuing effectiveness hereof, or the enforceability hereof with
respect to all or any part of the Obligations.
(b) Upon the
occurrence and during the continuance of any Event of Default,
Vicis may enforce this Guaranty independently of any other remedy,
guaranty or security Vicis at any time may have or hold in
connection with the Obligations, and it shall not be necessary for
Vicis to marshal assets in favor of Issuer, any other guarantor of
the Obligations or any other Person or to proceed upon or against
and/or exhaust any security or remedy before proceeding to enforce
this Guaranty. Guarantor expressly waives any right to
require Vicis to marshal assets in favor of Issuer or any other
Person or to proceed against Issuer or any other guarantor of the
Obligations or any collateral provided by any Person, and agrees
that Vicis may proceed against any obligor and/or the collateral in
such order as it shall determine in its sole and absolute
discretion. Vicis may file a separate action or actions
against Guarantor, whether action is brought or prosecuted with
respect to any security or against any other Person, or whether any
other Person is joined in any such action or
actions. Guarantor agrees that Vicis and Issuer may deal
with each other in connection with the Obligations or otherwise, or
alter any contracts or agreements now or hereafter existing between
them, in any manner whatsoever, all without in any way altering or
affecting the security of this Guaranty.
(c) The rights
of Vicis hereunder shall be reinstated and revived, and the
enforceability of this Guaranty shall continue, with respect to any
amount at any time paid on account of the Obligations which
thereafter shall be required to be restored or returned by Vicis
upon the bankruptcy, insolvency or reorganization of any Person,
all as though such amount had not been paid. The rights
of Vicis created or granted herein and the enforceability of this
Guaranty shall remain effective at all times to guarantee the full
amount of all the Obligations even though the Obligations,
including any part thereof or any other security or guaranty
therefor, may be or hereafter may become invalid or otherwise
unenforceable as against Issuer or any other guarantor of the
Obligations and whether or not Issuer or any other guarantor of the
Obligations shall have any personal liability with respect
thereto.
(d) To the
extent permitted by applicable law, Guarantor expressly waives any
and all defenses now or hereafter arising or asserted by reason
of: (i) any disability or other defense of Issuer or any
other guarantor for the Obligations with respect to the Obligations
(other than full payment and performance of all of the
Obligations); (ii) the unenforceability or invalidity of any
security for or guaranty of the Obligations or the lack of
perfection or continuing perfection or failure of priority of any
security for the Obligations; (iii) the cessation for any
cause whatsoever of the liability of Issuer or any other guarantor
of the Obligations (other than by reason of the full payment and
performance of all Obligations); (iv) any failure of Vicis to
marshal assets in favor of Issuer or any other Person; (v) any
failure of Vicis to give notice of sale or other disposition of
collateral to Issuer or any other Person or any defect in any
notice that may be given in connection with any sale or disposition
of collateral; (vi) any failure of Vicis to comply with applicable
Laws in connection with the sale or other disposition of
any
