optimizerx_s1-ex1006.htm


    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.

     

    
      R E C I T A L
S

    

     

    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.

     

    
      
        
        

      

      
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    (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 collateral or other
security for any Obligation, including, without limitation, any failure of Vicis
to conduct a commercially reasonable sale or other disposition of any collateral
or other security for any Obligation; (vii) any act or omission of Vicis or
others that directly or indirectly results in or aids the discharge or release
of Issuer or any other guarantor of the Obligations, or of any security or
guaranty therefor by operation of Law or otherwise; (viii) any Law which
provides that the obligation of a surety or guarantor must neither be larger in
amount nor in other respects more burdensome than that of the principal or which
reduces a surety’s or guarantor’s obligation in proportion to the principal
obligation; (ix) any failure of Vicis to file or enforce a claim in any
bankruptcy or other proceeding with respect to any Person; (x) the election by
Vicis, in any bankruptcy proceeding of any Person, of the application or
non-application of Section 1111(b)(2) of the United States Bankruptcy Code; (xi)
any extension of credit or the grant of any lien under Section 364 of the United
States Bankruptcy Code; (xii) any use of collateral under Section 363 of the
United States Bankruptcy Code; (xiii) any agreement or stipulation with respect
to the provision of adequate protection in any bankruptcy proceeding of any
Person; (xiv) the avoidance of any lien or security interest in favor of Vicis
for any reason; (xv) any bankruptcy, insolvency, reorganization, arrangement,
readjustment of debt, liquidation or dissolution proceeding commenced by or
against any Person, including without limitation any discharge of, or bar or
stay against collecting, all or any of the Obligations (or any interest thereon)
in or as a result of any such proceeding; or (xvi) any action taken by Vicis
that is authorized by this Section or any other provision of any Transaction
Document.  Until all of the Obligations have been paid in full,
Guarantor expressly waives all presentments, demands for payment or performance,
notices of nonpayment or nonperformance, protests, notices of protest, notices
of dishonor and all other notices or demands of any kind or nature whatsoever
with respect to the Obligations, and all notices of acceptance of this Guaranty
or of the existence, creation or incurrence of new or additional
Obligations.

     

    
      
        
        

      

      
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    (e)    Condition of
Issuer.  Guarantor represents and warrants to Vicis that it has
established adequate means of obtaining from Issuer, on a continuing basis,
financial and other information pertaining to the business, operations and
condition (financial and otherwise) of Issuer and its assets and
properties.  Guarantor hereby expressly waives and relinquishes any
duty on the part of Vicis (should any such duty exist) to disclose to Guarantor
any matter, fact or thing related to the business, operations or condition
(financial or otherwise) of Issuer or its assets or properties, whether now
known or hereafter known by Vicis during the life of this
Guaranty.  With respect to any of the Obligations, Vicis need not
inquire into the powers of Issuer or agents acting or purporting to act on its
behalf, and all Obligations made or created in good faith reliance upon the
professed exercise of such powers shall be guaranteed hereby.

     

    (f)    Continuing
Guaranty.  This is a continuing guaranty and shall remain in
full force and effect as to all of the Obligations until all amounts owing by
Issuer to Vicis on the Obligations shall have been paid in full.

     

    (g)    Subrogation;
Subordination.  Guarantor expressly waives any claim for
reimbursement, contribution, indemnity or subrogation which Guarantor may have
against Issuer as a guarantor of the Obligations and any other legal or
equitable claim against Issuer arising out of the payment of the Obligations by
Guarantor or from the proceeds of any collateral for this Guaranty, until all
amounts owing to Vicis under the Obligations shall have been paid in full and
all commitments to lend have been terminated or expired.  In
furtherance, and not in limitation, of the foregoing waiver, until all amounts
owing to Vicis under the Obligations shall have been paid in full, Guarantor
hereby agrees that no payment by Guarantor pursuant to this Guaranty shall
constitute Guarantor a creditor of Issuer.  Until all amounts owing to
Vicis under the Obligations shall have been paid in full, Guarantor shall not
seek any reimbursement from Issuer in respect of payments made by Guarantor in
connection with this Guaranty, or in respect of amounts realized by Vicis in
connection with any collateral for the Obligations, and Guarantor expressly
waives any right to enforce any remedy that Vicis now has or hereafter may have
against any other Person and waives the benefit of, or any right to participate
in, any collateral now or hereafter held by Vicis.  No claim which any
Guarantor may have against any other guarantor of any of the Obligations or
against Issuer, to the extent not waived pursuant to this Section, shall be
enforced nor any payment accepted until the Obligations are paid in full and all
such payments are not subject to any right of recovery.

     

    ARTICLE
3

    REPRESENTATIONS
AND WARRANTIES OF GUARANTOR

     

    Guarantor
hereby represents and warrants to Vicis as follows:

     

    3.1    Authorization.  Guarantor
is a corporation duly and validly organized and existing under the laws of the
State of Michigan, has the corporate power to own its owned assets and
properties and to carry on its business, and is duly licensed or qualified to do
business in all jurisdictions in which failure to do so would have a material
adverse effect on its business or financial condition.  The making,
execution, delivery and performance of this Guaranty, and compliance with its
terms, have been duly authorized by all necessary corporate action of
Guarantor.

     

    
      
        
        

      

      
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    3.2    Enforceability.  This
Guaranty is the legal, valid and binding obligation of Guarantor, enforceable
against Guarantor in accordance with its terms.

     

    3.3    Absence of Conflicting
Obligations.  The making, execution, delivery and performance
of this Guaranty, and compliance with its terms, do not violate any existing
provision of Law; the articles of incorporation or bylaws of Guarantor; or any
agreement or instrument to which Guarantor is a party or by which it or any of
its assets is bound.

     

    3.4    Consideration for
Guaranty.  Guarantor acknowledges and agrees with Vicis that
but for the execution and delivery of this Guaranty by Guarantor, Vicis would
not have acquired the Preferred Shares.  Guarantor acknowledges and
agrees that the proceeds of the sale of the Preferred Shares will result in
significant benefit to Guarantor who is the wholly-owned subsidiary of Issuer
and the intended beneficiary of such proceeds.

     

    ARTICLE
4

    COVENANTS
OF THE GUARANTOR

     

    4.1    Actions by
Guarantor.  Guarantor shall not take or permit any act, or omit
to take any act, that would:  (a) cause Issuer to breach any of the
Obligations; (b) impair the ability of Issuer to perform any of the Obligations;
or (c) cause an Event of Default under the Purchase Agreement.

     

    4.2    Reporting
Requirements.  Guarantor shall furnish, or cause to be
furnished, to Vicis such information respecting the business, assets and
financial condition of Guarantor as Vicis may reasonably request.

     

    ARTICLE
5

    MISCELLANEOUS

     

    5.1    Expenses and Attorneys’
Fees.  Guarantor shall pay all reasonable fees and expenses
incurred by Vicis, including the reasonable fees of counsel, in connection with
the protection or enforcement of its rights under this Guaranty, including
without limitation the protection and enforcement of such rights in any
bankruptcy, reorganization or insolvency proceeding involving Issuer or
Guarantor, both before and after judgment.

     

    5.2    Revocation.  This
is a continuing guaranty and shall remain in full force and effect until Vicis
receives written notice of revocation signed by Guarantor.  Upon
revocation by written notice, this Guaranty shall continue in full force and
effect as to all Obligations contracted for or incurred before revocation, and
as to them Vicis shall have the rights provided by this Guaranty as if no
revocation had occurred.  Any renewal, extension, or increase in the
interest rate(s) of any such Obligation, whether made before or after
revocation, shall constitute an Obligation contracted for or incurred before
revocation.  Obligations contracted for or incurred before revocation
shall also include credit extended after revocation pursuant to commitments made
before revocation.

     

    
      
        
        

      

      
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    5.3    Assignability;
Successors.  Guarantor’s rights and liabilities under this
Guaranty are not assignable or delegable, in whole or in part, without the prior
written consent of Vicis.  The provisions of this Guaranty shall be
binding upon Guarantor, its successors and permitted assigns and shall inure to
the benefit of Vicis, its successors and assigns.

     

    5.4    Survival.  All
agreements, representations and warranties made herein or in any document
delivered pursuant to this Guaranty shall survive the execution and delivery of
this Guaranty and the delivery of any such document.

     

    5.5    Governing
Law.  This Guaranty and the documents issued pursuant to this
Guaranty shall be governed by, and construed and interpreted in accordance with,
the Laws of the State of Florida applicable to contracts made and wholly
performed within such state.

     

    5.6    Execution;
Headings.  This Guaranty may be executed in two or more
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart.  In the event that any
signature is delivered by facsimile transmission, such signature shall create a
valid and binding obligation of the party executing (or on whose behalf such
signature is executed) with the same force and effect as if such facsimile
signature page were an original thereof.  The article and section
headings in this Guaranty are inserted for convenience of reference only and
shall not constitute a part hereof.

     

    5.7    Notices.  All
notices, requests and demands to or upon Vicis or Guarantor (to be delivered
care of Issuer) shall be delivered in the manner set forth in Section 12.6 of
the Purchase Agreement.

     

    5.8    Amendment.  No
amendment of this Guaranty shall be effective unless in writing and signed by
Guarantor and Vicis.

     

    5.9    Severability.  Any
provision of this Guaranty 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 of this Guaranty in such jurisdiction or affecting the validity or
enforceability of any provision in any other jurisdiction.

     

    5.10   Taxes.  If
any transfer or documentary taxes, assessments or charges levied by any
governmental authority shall be payable by reason of the execution, delivery or
recording of this Guaranty, Guarantor shall pay all such taxes, assessments and
charges, including interest and penalties, and hereby indemnifies Vicis against
any liability therefor.

     

    
      
        
        

      

      
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    5.11    WAIVER OF RIGHT TO JURY
TRIAL.  GUARANTOR ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY
WHICH MAY ARISE UNDER THIS GUARANTY WOULD BE BASED UPON DIFFICULT AND COMPLEX
ISSUES AND, THEREFORE, GUARANTOR AGREES THAT ANY LAWSUIT ARISING OUT OF ANY SUCH
CONTROVERSY SHALL BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE
SITTING WITHOUT A JURY.

     

    5.12    SUBMISSION TO JURISDICTION;
SERVICE OF PROCESS.  AS A MATERIAL INDUCEMENT TO VICIS TO ENTER
INTO THIS TRANSACTION:

     

    THE
GUARANTOR AGREES THAT ALL ACTIONS OR PROCEEDINGS IN ANY MANNER RELATING TO OR
ARISING OUT OF THIS GUARANTY OR THE OTHER DOCUMENTS EXECUTED IN CONNECTION
HEREWITH MAY BE BROUGHT ONLY IN COURTS OF THE STATE OF FLORIDA OR THE FEDERAL
COURTS LOCATED IN FLORIDA AND THE GUARANTOR CONSENTS TO THE JURISDICTION OF SUCH
COURTS.  THE GUARANTOR WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER
HAVE TO THE VENUE OF ANY SUCH COURT AND ANY RIGHT IT MAY HAVE NOW OR HEREAFTER
HAVE TO CLAIM THAT ANY SUCH ACTION OR PROCEEDING IS IN AN INCONVENIENT COURT;
AND

     

    Guarantor
consents to the service of process in any such action or proceeding by certified
mail sent to the address specified in Section 5.7. Nothing contained herein
shall affect the right of Vicis to serve process in any other manner permitted
by law or to commence an action or proceeding in any other
jurisdiction.

     

    
      
        
        

      

      
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    IN
WITNESS WHEREOF the undersigned has executed this Guaranty as of the day and
year first above written.

     

    
    

     

    
      	 	

              OPTIMIZERx
      CORPORATION

              


              By:_______________________________

              Name: David
      Harrell

              Title: Chief
      Executive Officer

            


    

     

     

     

     

     

    Signature Page to
Guaranty

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    ACCEPTANCE BY
VICIS

     

    This
Guaranty Agreement is accepted by Vicis Capital Master Fund.

    
       

      
      

       

      
        	 	

                

                  VICIS
      CAPITAL MASTER FUND

                  By:  Vicis
      Capital LLC

                  


                  


                  By:_______________________________

                  Name:
      Chris Phillips

                  Title:
      Managing Director

                

              


      

       

    

     

     

    
    

     

    Acceptance Page to
Guaranty