FORM OF GUARANTY]
Exhibit 4.5
[FORM OF GUARANTY]
This GUARANTY (this “Guaranty”), dated as of May 22, 2008, is made by Liberator Medical
Supply, Inc., a Florida corporation (the “Guarantor”), in favor of the “Noteholders” (as defined
below).
W I T N E S S E T H:
WHEREAS, Liberator Medical Holdings, Inc., a Nevada corporation and the holder of all of the
issued and outstanding capital stock of the Guarantor, (the “Company”), and each party listed as a
“Buyer” (each a “Buyer”, and collectively, the “Buyers” and together with their successors and
assigns and each other holder of a Note, each a “Noteholder” and collectively the “Noteholders”) on
the signature pages attached to the Securities Purchase Agreement, dated as of May 22, 2008 (as
amended, restated or otherwise modified from time to time, the “Securities Purchase Agreement”),
are parties to the Securities Purchase Agreement;
WHEREAS, the Securities Purchase Agreement requires, among other things, that the Guarantor
execute and deliver to the Buyers a guaranty guaranteeing all of the obligations of the Company
under the Notes (as defined below); and
WHEREAS, the Guarantor has determined that the execution, delivery and performance of this
Guaranty benefits, and is in the best interest of, the Guarantor.
NOW, THEREFORE, in consideration of the premises and the agreements herein and in order to
induce the Buyers to perform their obligations under the Securities Purchase Agreement to, among
other things, purchase the Notes and Warrants (as defined in the Securities Purchase Agreement)
from the Company, the Guarantor hereby agrees for the benefit of the Noteholders as follows:
SECTION 1. Definitions. Reference is hereby made to the “Notes” (as defined in and
issued pursuant to the Securities Purchase Agreement, and as such Notes may be amended, restated,
replaced or otherwise modified from time to time in accordance with the terms thereof,
collectively, the “Notes”). All capitalized terms used in this Guaranty, which are defined in the
Notes and not otherwise defined herein, shall have the same meanings herein as set forth therein.
SECTION 2. Guaranty. The Guarantor hereby unconditionally and irrevocably,
guaranties the punctual payment, as and when due and payable, by stated maturity or otherwise, of
all obligations of the Company from time to time owing by it in respect of the Notes, including,
without limitation, all interest that accrues after the commencement of any insolvency proceeding
of the Company or the Guarantor, whether or not the payment of such interest is unenforceable or is
not allowable due to the existence of such insolvency proceeding, and all fees, commissions,
expense reimbursements, indemnifications and all other amounts due or to become due under the Notes
(such obligations, to the extent not paid by the Company, being the “Guaranteed Obligations”), and
agrees to pay any and all expenses (including reasonable counsel fees and expenses) reasonably
incurred by the Noteholders in enforcing this Guaranty. Without limiting the generality of the
foregoing, the Guarantor’s liability hereunder shall extend
to all amounts that constitute part of the Guaranteed Obligations and would be owed by the
Company to the Noteholders but for the fact that they are unenforceable or not allowable due to the
existence of an insolvency proceeding involving the Guarantor or the Company (each, a “Transaction
Party”).
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(a) The Guarantor guaranties that the Guaranteed Obligations will be paid strictly in
accordance with the terms of the Notes, regardless of any law, regulation or order now or hereafter
in effect in any jurisdiction affecting any of such terms or the rights of the Noteholders with
respect thereto. The obligations of the Guarantor under this Guaranty are independent of the
Guaranteed Obligations, and a separate action or actions may be brought and prosecuted against the
Guarantor to enforce such obligations, irrespective of whether any action is brought against any
Transaction Party or whether any Transaction Party is joined in any such action or actions. The
liability of the Guarantor under this Guaranty shall be irrevocable, absolute and unconditional
irrespective of, and the Guarantor hereby irrevocably waives, to the extent permitted by law, any
defenses it may now or hereafter have in any way relating to, any or all of the following:
(i) any lack of validity or enforceability of the Notes or any other Transaction Document (as
defined in the Securities Purchase Agreement) or agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment of, or in any other term of, all or
any of the Guaranteed Obligations, or any other amendment or waiver of or any consent to departure
from the Notes, including, without limitation, any increase in the Guaranteed Obligations resulting
from the extension of additional credit to any Transaction Party or otherwise;
(iii) any taking, exchange, release or non-perfection of any collateral securing the
Guaranteed Obligations, if any, or any taking, release or amendment or waiver of or consent to
departure from any other guaranty, for all or any of the Guaranteed Obligations;
(iv) any change, restructuring or termination of the corporate, limited liability company or
partnership structure or existence of any Transaction Party; or
(v) any other circumstance (including any statute of limitations) or any existence of or
reliance on any representation by any Buyer or Noteholder that might otherwise constitute a defense
available to, or a discharge of, any Transaction Party or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time
any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by a
Noteholder or any other Person upon the insolvency, bankruptcy or reorganization of any Transaction
Party or otherwise, all as though such payment had not been made.
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(b) This Guaranty is a continuing guaranty and shall (i) remain in full force and effect until
the indefeasible cash payment in full of the Guaranteed Obligations (other than inchoate indemnity
obligations) and/or the conversion of all of the Notes into shares of Common Stock (or such other
securities or consideration the Notes are then convertible into or exchangeable for in accordance
with the terms of the Notes and payment of all other amounts payable under this Guaranty (other
than inchoate indemnity obligations) (the “Guaranty Satisfaction Conditions”) and shall not
terminate for any reason prior to the Maturity Date of the Notes (other than satisfaction in full
of the Guaranty Satisfaction Conditions) and (ii) be binding upon the Guarantor and its successors
and assigns. This Guaranty shall inure to the benefit of and be enforceable by each Noteholder and
its successors and permitted pledgees, transferees and assigns. Notwithstanding the foregoing and
for the avoidance of doubt, this Guaranty will expire and the Guarantor will be released from its
obligations hereunder upon the earlier of the satisfaction in full of the Guaranty Satisfaction
Conditions.
(c) Any term or provision of this Guaranty or any Transaction Document to the contrary
notwithstanding, the maximum aggregate amount for which the Guarantor shall be liable hereunder
shall not exceed the maximum amount for the Guarantor can be liable without rendering this Guaranty
or any other Transaction Document, as it relates to the Guarantor, subject to avoidance under
applicable requirements of law relating to fraudulent conveyance or fraudulent transfer (including
the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act and Section 548 of Title
11 of the United States Code or any applicable provisions of comparable laws relating to
bankruptcy, insolvency or the protection of creditors).
SECTION 4. Waivers. To the extent permitted by applicable law, the Guarantor hereby
waives promptness, diligence, notice of acceptance and any other notice with respect to any of the
Guaranteed Obligations and this Guaranty and any requirement that the Noteholders exhaust any right
or take any action against any Transaction Party or any other Person or any collateral, if any,
securing the Guaranteed Obligations. The Guarantor acknowledges that it will receive direct and
indirect benefits from the financing arrangements contemplated by the Securities Purchase Agreement
and the Notes and that the waiver set forth in this Section 4 is knowingly made in
contemplation of such benefits. The Guarantor hereby waives any right to revoke this Guaranty, and
acknowledges that this Guaranty is continuing in nature and applies to all Guaranteed Obligations,
whether existing now or in the future.
SECTION 5. Subrogation. The Guarantor may not exercise any rights that it may now or
hereafter acquire against the Company or any other guarantor of the Company’s obligations under the
Notes, or any Noteholder or Buyer, that arise from the existence, payment, performance or
enforcement of the Guarantor’s obligations under this Guaranty, including, without limitation, any
right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of any Noteholder against the Company or any other guarantor or
any collateral, if any, securing the Guaranteed Obligations, whether or not such claim, remedy or
right arises in equity or under contract, statute or common law, including, without limitation, the
right to take or receive from the Company or any other guarantor, directly or indirectly, in cash
or other property or by set-off or in any other manner, payment or security solely on account of
such claim, remedy or right, unless and until all of the Guaranteed Obligations (other than
inchoate indemnity obligations) and all other amounts payable under this Guaranty (other than
inchoate indemnity obligations) shall have indefeasibly
been paid in full in cash. If any amount shall be paid to Guarantor in violation of the
immediately preceding sentence at any time prior to the later of the payment in full in cash of the
Guaranteed Obligations and all other amounts payable under this Guaranty, such amount shall be held
in trust for the benefit of the Noteholders and shall forthwith be paid to the Noteholders to be
credited and applied to the Guaranteed Obligations and all other amounts payable under this
Guaranty, whether matured or unmatured, in accordance with the terms of the Notes, or to be held as
collateral for any Guaranteed Obligations or other amounts payable under this Guaranty thereafter
arising.
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SECTION 6. Representations, Warranties and Covenants. The Guarantor hereby
represents and warrants as of the date first written above as follows:
(a) The Guarantor (i) is a corporation, validly existing and in good standing under the laws
of the State of Florida, (ii) has all requisite corporate, power and authority to conduct its
business as now conducted and as presently contemplated and to execute and deliver this Guaranty
and to consummate the transactions contemplated hereby, and (iii) is duly qualified to do business
and is in good standing in each jurisdiction in which the character of the properties owned or
leased by it or in which the transaction of its business makes such qualification necessary except
where the failure to be so qualified would not result in a material adverse effect on the business,
operations, properties, prospects of financial condition of the Guarantor and its subsidiaries,
taken as a whole (a “Material Adverse Effect”).
(b) The execution, delivery and performance by the Guarantor of this Guaranty (i) has been
duly authorized by all necessary corporate action, (ii) does not contravene its certificate of
incorporation or by-laws, or any applicable law or any contractual restriction binding on the
Guarantor or its properties (except to the extent that such contraventions would not, individually
or in the aggregate, result in or be reasonably expected to result in, a Material Adverse Effect),
(iii) does not and will not result in or require the creation of any lien upon or with respect to
any of its properties, and (iv) does not and will not result in any default, noncompliance,
suspension, revocation, impairment, forfeiture or nonrenewal of any material permit, license,
authorization or approval applicable to it or its operations or any of its properties (except to
the extent that such default, noncompliance, suspension, revocation, impairment, forfeiture or
nonrenewal would not, individually or in the aggregate, result in or be reasonably expected to
result in, a Material Adverse Effect).
(c) No authorization or approval or other action by, and no notice to or filing with, any
governmental authority is required in connection with the due execution, delivery and performance
by the Guarantor of this Guaranty (except to the extent that the failure to obtain such approval or
other action, or give notice or make a filing, would not, individually or in the aggregate, result
in or be reasonably expected to result in, a Material Adverse Effect).
(d) This Guaranty is a legal, valid and binding obligation of the Guarantor, enforceable
against the Guarantor in accordance with the terms hereof, except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, suretyship or other
similar laws and equitable principles (regardless of whether enforcement is sought in equity or at
law).
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SECTION 7. Notices, Etc. All notices and other communications provided for hereunder
shall be in writing and shall be by hand-delivery, first-class mail (registered or certified,
return receipt requested), telex, telecopier, or air courier guaranteeing overnight delivery, if to
the Guarantor, to it at its address set forth on the signature page hereto, or if to any
Noteholder, to it at its respective address set forth in the Schedule of Buyers attached to
Securities Purchase Agreement or at such other address as shall be designated by any Person in a
written notice to such other Person complying as to delivery with the terms of this Section
7. All such notices and communications shall be deemed to have been duly given at: the time
delivered by hand, if personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt acknowledged, if
transmitted by facsimile; and on the next Business Day, if timely delivered to an air courier
guaranteeing overnight delivery.
SECTION 8. CONSENT TO JURISDICTION; SERVICE OF PROCESS AND VENUE. ANY LEGAL ACTION
OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY OTHER TRANSACTION DOCUMENT TO WHICH THE
GUARANTOR IS A PARTY MAY BE BROUGHT IN ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ IN THE COUNTY OF NEW
YORK OR OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY
EXECUTION AND DELIVERY OF THIS GUARANTY, THE GUARANTOR HEREBY IRREVOCABLY ACCEPTS IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. THE GUARANTOR
HEREBY IRREVOCABLY APPOINTS THE SECRETARY OF STATE OF THE STATE OF NEW YORK AS ITS AGENT FOR
SERVICE OF PROCESS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING AND FURTHER IRREVOCABLY CONSENTS TO
THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS AND IN ANY SUCH ACTION OR PROCEEDING
BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, AT ITS ADDRESS
FOR NOTICES AS SET FORTH ON THE SIGNATURE PAGE HERETO AND TO THE SECRETARY OF STATE OF THE STATE OF
NEW YORK, SUCH SERVICE TO BECOME EFFECTIVE TEN (10) DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF ANY NOTEHOLDER TO SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE GUARANTOR IN ANY OTHER JURISDICTION.
THE GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE JURISDICTION OR LAYING OF VENUE OF ANY SUCH
LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE GUARANTOR HAS OR HEREAFTER MAY
ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH
SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH
RESPECT TO ITSELF OR ITS PROPERTY, THE GUARANTOR HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT
OF ITS OBLIGATIONS UNDER THIS GUARANTY AND THE OTHER TRANSACTION DOCUMENTS.
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SECTION 9. WAIVER OF JURY TRIAL, ETC. THE GUARANTOR HEREBY WAIVES ANY RIGHT TO A
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM CONCERNING ANY RIGHTS UNDER THIS GUARANTY
OR THE OTHER TRANSACTION DOCUMENTS TO WHICH IT IS A PARTY, OR UNDER ANY AMENDMENT, WAIVER, CONSENT,
INSTRUMENT, DOCUMENT OR OTHER AGREEMENT DELIVERED OR WHICH IN THE FUTURE MAY BE DELIVERED IN
CONNECTION HEREWITH OR THEREWITH, OR ARISING FROM ANY FINANCING RELATIONSHIP EXISTING IN CONNECTION
WITH THIS GUARANTY OR THE OTHER TRANSACTION DOCUMENTS TO WHICH THE GUARANTOR IS A PARTY, AND AGREES
THAT ANY SUCH ACTION, PROCEEDING OR COUNTERCLAIM SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A
JURY. THE GUARANTOR CERTIFIES THAT NO OFFICER, REPRESENTATIVE, AGENT OR ATTORNEY OF ANY BUYER HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT ANY NOTEHOLDER WOULD NOT, IN THE EVENT OF ANY ACTION,
PROCEEDING OR COUNTERCLAIM, SEEK TO ENFORCE THE FOREGOING WAIVERS. THE GUARANTOR HEREBY
ACKNOWLEDGES THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE BUYERS TO ENTER INTO THE
SECURITIES PURCHASE AGREEMENT AND PERFORM THEIR OBLIGATIONS THEREUNDER.
SECTION 10. Miscellaneous.
(a) The Guarantor will make each payment hereunder in lawful money of the United States of
America and in immediately available funds to each Noteholder, at such address specified by in the
Schedule of Buyers attached to the Securities Purchase Agreement or at such other address as such
Noteholder may provide from time to time by written notice to the Guarantor.
(b) No amendment or waiver of any provision of this Guaranty and no consent to any departure
by the Guarantor therefrom shall in any event be effective unless the same shall be in writing and
signed by the Guarantor and each Person who is a Noteholder at such time, and then such waiver or
consent shall be effective only in the specific instance and for the specific purpose for which
given.
(c) No failure on the part of any Noteholder to exercise, and no delay in exercising, any
right hereunder or under any other Transaction Document shall operate as a waiver thereof, nor
shall any single or partial exercise of any right hereunder or under any Transaction Document
preclude any other or further exercise thereof or the exercise of any other right. The rights and
remedies of the Noteholders provided herein and in the other Transaction Documents are cumulative
and are in addition to, and not exclusive of, any rights or remedies provided by law. The rights
of the Noteholders under any Transaction Document against any party thereto are not conditional or
contingent on any attempt by any Noteholder to exercise any of its rights under any other
Transaction Document against such party or against any other Person.
(d) Any provision of this Guaranty that 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 portions hereof or affecting the validity
or enforceability of such provision in any other jurisdiction.
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(e) This Guaranty shall (i) be binding on the Guarantor and its successors and assigns, and
(ii) inure, together with all rights and remedies of the Noteholders and their respective
successors, transferees and assigns. Without limiting the generality of clause (ii) of the
immediately preceding sentence, each Noteholder may assign or otherwise transfer its rights and
obligations under the Securities Purchase Agreement or any other Transaction Document to any other
Person in accordance with the terms thereof, and such other Person shall thereupon become vested
with all of the benefits in respect thereof granted to such Noteholder herein or otherwise. None
of the rights or obligations of the Guarantor hereunder may be assigned or otherwise transferred
without the prior written consent of each Person who is a Noteholder at such time.
(f) This Guaranty reflects the entire understanding of the Guarantor relating to its guaranty
contemplated hereby and shall not be contradicted or qualified by any other agreement, oral or
written, entered into before the date hereof.
(g) Section headings herein are included for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.
(h) THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE
OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED THEREIN WITHOUT REGARD TO CONFLICT OF
LAW PRINCIPLES.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed by its respective
duly authorized officer, as of the date first above written.
| LIBERATOR MEDICAL SUPPLY, INC., a Florida corporation |
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| By: | ||||
| Name: | ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| Title: | President | |||
| Notice Address: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President Liberator Medical Supply, Inc. ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇ |
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