EX-10 8 kl12028_ex10-33.txt EXHIBIT 10.33 GUARANTY EXHIBIT 10.33 GUARANTY This GUARANTY dated as of January __ 2003 (the "Guaranty"), is given by iVOICE INC., a Delaware corporation ("Guarantor") in favor of the Buyer(s) (as this term is defined in the Securities Purchase Agreement dated the date hereof ). Capitalized terms used herein and not otherwise defined herein shall have the respective meanings set forth in the Securities Purchase Agreement by and between iVOICE ACQUISITION 1, Inc., a Delaware corporation, (the "Company"), and the Buyer(s) dated as of the date hereof (as amended, restated, supplemented or otherwise modified from time to time, the "Securities Purchase Agreement"). WHEREAS: A. The Company and the Buyer(s) wish to provide for the funding contemplated under the Securities Purchase Agreement in the amount up to Two Hundred Fifty Thousand Dollars ($250,000). B. To induce the Buyer(s) to enter into the Securities Purchase Agreement, the Guarantor has agreed to provide a full and unconditional guaranty of the payment and performance obligations of the Company under the Securities Purchase Agreement, Convertible Debenture, Registration Rights Agreement, Escrow Agreement, and the Irrevocable Transfer Agent Instructions (the "Transaction Documents"). C. The Guarantor is a Delaware of the Company and the Guarantor acknowledges that without this Guaranty, the Buyer(s) would not be willing to enter into the Securities Purchase Agreement. NOW, THEREFORE, in consideration of the premises and the mutual covenants set forth herein, and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Guarantor hereby agrees as follows: 1. Guaranty. 1.1 Guaranty. The Guarantor, as direct obligor and not merely as a surety, hereby unconditionally, absolutely, and irrevocably guarantees to the Buyer(s) (i) the full and prompt performance and payment of all of the Company's obligations under the Securities Purchase Agreement and the other Transaction Documents, (collectively, the "Obligations") and (ii) if the Company should default in the payment or performance of any of the Obligations, the Guarantor, as direct obligor and not merely as a surety, shall forthwith pay or perform such Obligations upon two (2) days written notice or demand by the Buyer(S) in the manner and on the day required by this Guaranty and specifically the Guarantor shall take an Advance, from the Equity Line of Credit with Cornell Capital Partners, LP, on the day the Company defaults on its Obligations, in the amount of Two Hundred Fifty Thousand Dollars ($250,000) in order to repay to the Buyer(s) the Principal Amount plus Fifty Thousand Dollars ($50,000) within seven (7) days from default by the Company. An Advance Notice and an estimate of the shares of Common Stock which shall be issued there under has been issued to Cornell Capital Partners, LP and held in escrow pending a default by the Company. In the event of a default the Advance Notice and the shares of Common Stock will be release from escrow by Cornell Capital Partners, LP. 1.2 Continuing Guaranty. The Guarantor agrees that the obligations pursuant to this Section 1 are unconditional, absolute, and irrevocable and shall not be released, discharged or affected in any way by any circumstances or condition, including without limitation: (a) any amendment or modification or other change to any of the Transaction Documents; (b) any failure, omission or delay on the part of the Company to conform or comply with any term of any of the Transaction Documents; (c) any release or discharge by operation of law of the Company or any Guarantor from any obligation or agreement contained in any of the Transaction Documents or this Guaranty; and (d) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Company or the Guarantor. 1.3 Discharge. The Guarantor covenants and agrees that this Guaranty will not be discharged, except by complete performance of the obligations contained herein. Notwithstanding anything to the contrary herein, so long as the outstanding Principal Amount is zero or would be made zero simultaneously with the termination hereof, the Guarantor shall have the right to terminate this Guaranty at any time by providing written notice of such termination to the Buyer(s). 1.4 Representations and Warranties. The Guarantor hereby represents and warrants to the Buyer(s) as follows: (a) the Guarantor has full power, right and authority to enter into and perform his obligations under this Guaranty, and this Guaranty has been duly executed and delivered by the Guarantor and constitutes the valid and binding obligation of the Guarantor and is enforceable against the Guarantor in accordance with its terms. No permits, approvals or consents of or notifications to (a) any governmental entities, or (b) any other persons or entities are necessary in connection with the execution, delivery and performance by the Guarantor of this Guaranty and the consummation by the Guarantor of the transactions contemplated hereby. Neither the execution and delivery of this Guaranty by the Guarantor nor the performance by it of the transactions contemplated hereby will: (i) violate or conflict with or result in a breach of any provision of any law, statute, rule, regulation, order, permit, judgment, ruling, injunction, decree or other decision (collectively, "Rules") of any court or other tribunal or any governmental entity or agency binding on the Guarantor or his properties, or conflict with or cause an event of default under any contract or agreement of the Guarantor; or (ii) require any authorization, consent, approval, exemption or other action by or notice to any court, administrative or governmental body, person, entity or any other third party. 1.5 Full Rights of Subrogation. The Guarantor shall be entitled to full rights of subrogation under this Guaranty. 2. Miscellaneous. 2.1 Notices, Consents, etc. Any notices, consents, waivers or other communications required or permitted to be given under the terms hereof must be in writing and will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party); or (iii) one (1) trading day after deposit with a nationally recognized overnight delivery service, in each case properly addressed to the party to receive the same. The addresses and facsimile numbers for such communications shall be: 2 If to Guarantor: iVoice, Inc. 750 Highway 34 Matawan, NJ 07747 Attention: Jerome R. Mahoney President and Chief Executive Officer Telephone: (732) 441-7700 Facsimile: (732) 441-9895 With Copy to: McCarter & English, LLP 100 Mulberry Street Newark, NJ 07102 Attention: Jerome R. Mahoney Attention: Jeffery Baumel, Esq. Telephone: (305) 358-3355 Facsimile: (305) 358-7095 If to the Investor: C/O The May Davis Group Inc. C/O National Security 120 Broadway - 28th Floor New York, NY 10271 Attention: Michael Jacobs Telephone: (212) 417-8118 Facsimile: (212) 791-8992 or at such other address and/or facsimile number and/or to the attention of such other person as the recipient party has specified by written notice given to each other party three (3) trading days prior to the effectiveness of such change. Written confirmation of receipt (A) given by the recipient of such notice, consent, waiver or other communication, (B) mechanically or electronically generated by the sender's facsimile machine containing the time, date, recipient facsimile number and an image of the first page of such transmission or (C) provided by a nationally recognized overnight delivery service, shall be rebuttable evidence of personal service, receipt by facsimile or receipt from a nationally recognized overnight delivery service in accordance with clause (i), (ii) or (iii) above, respectively. 2.2 Severability. The unenforceability or invalidity of any provision of this Guaranty shall not affect the enforceability or validity of any other provision. 2.3 Indulgence. Failure of party to exercise any right or remedy under this Guaranty or otherwise, or delay by a party in exercising such right or remedy, shall not operate as a waiver thereof. 2.4 Modification. The terms of this Guaranty may be changed, waived, discharged or terminated only by a written instrument executed by the party against which enforcement of the change, waiver, discharge or termination is sought. 2.5 Headings. The subject headings of Articles and Sections of this Guaranty are included for purposes of convenience only and shall not affect the construction or interpretation of any of its provisions. 3 2.6 Assignment. This Guaranty will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, but will not be assignable or delegable by either the Guarantor or the Buyer(s). 2.7 Entire Agreement. This Guaranty (including the recitals hereto), and the Transaction Documents set forth the entire understanding of the parties with respect to the subject matter hereof, and shall not be modified or affected by any offer, proposal, statement or representation, oral or written, made by or for any party in connection with the negotiation of the terms hereof, and may be modified only by instruments signed by all of the parties hereto. 2.8 Third Parties. Nothing herein expressed or implied is intended or shall be construed to confer upon or give to any person or entity, other than the stated beneficiaries of this Guaranty and their respective permitted successors and assigns, any rights or remedies under or by reason of this Guaranty. 2.9 No Strict Construction. The language used in this Guaranty will be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction will be applied against any party hereto. 2.10 Event of Default. For purposes of this Guaranty, an event of default shall be deemed to have occurred hereunder: (a) If the Company should default in the payment or performance of any of the Obligations, the Guarantor shall fail for any reason or for no reason, to forthwith pay or perform such Obligations after notice or demand by the Buyer(s) in the manner and on the day requested by the Buyer(s); or (b) if the Guarantor makes an assignment for the benefit of creditors or admits in writing its inability to pay its debts generally as they become due; or an order, judgment or decree is entered adjudicating the Guarantor bankrupt or insolvent; or any order for relief with respect to the Guarantor is entered under any bankruptcy or insolvency laws; or the Guarantor petitions or applies to any tribunal for the appointment of a custodian, trustee, receiver or liquidator of the Guarantor of any substantial part of the assets of the Guarantor, or commences any proceeding relating to the Guarantor under any bankruptcy reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction; or any such petition or application is filed, or any such proceeding is commenced, against the Guarantor. 2.11 Governing Law; Jurisdiction; Jury Trial. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Delaware without regard to the principles of conflict of laws. The parties further agree that any action between them shall be heard in Hudson County, New Jersey, and expressly consent to the jurisdiction and venue of the Superior Court of New Jersey, sitting in Hudson County and the United States District Court for the District of New Jersey sitting in Newark, New Jersey for the adjudication of any civil action asserted pursuant to this Paragraph. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address for such notices to it under this Guaranty and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. 4 [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 5 IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be signed as of the date first written above. GUARANTOR: iVOICE INC. By: _________________________________ Name: Jerome R. Mahoney Title: President and Chief Executive Officer 6