Subsidiary Guarantee



 Exhibit 4.5 
  

GUARANTY 
  

			
	 New York, New York
	 	May 27, 2004

  
 FOR VALUE RECEIVED,
and in consideration of certain Series A Preferred Stock to be issued to Laurus Master Fund, Ltd. (“Laurus”) by Vertical Health Ventures, Inc., a Delaware corporation (“Issuer”) and in consideration of other obligations of
Vertical Health Solutions, Inc., a Florida corporation (the “Company”), to be performed for the benefit of Laurus from time to time and at any time and for other good and valuable consideration and to induce Laurus, in its discretion, to
purchase such Series A Preferred Stock or make other extensions of credit and to make or grant such renewals, extensions, releases of collateral or relinquishments of legal rights as Laurus may deem advisable, each of the undersigned (and each of
them if more than one, the liability under this Guaranty being joint and several) (jointly and severally referred to as “Guarantors “ or “the undersigned”) unconditionally guaranties to Laurus, its successors, endorsees and
assigns the prompt payment when due (whether by acceleration or otherwise) of all present and future obligations and liabilities of any and all kinds of the Company and/or the Issuer to Laurus and of all instruments of any nature evidencing or
relating to any such obligations and liabilities upon which the Company and/or the Issuer or one or more parties and the Company and/or the Issuer is or may become liable to Laurus, whether incurred by the Company and/or the Issuer as maker,
endorser, drawer, acceptor, guarantors, accommodation party or otherwise, and whether due or to become due, secured or unsecured, absolute or contingent, joint or several, and however or whenever acquired by Laurus, whether arising under, out of, or
in connection with (i) that certain Securities Purchase Agreement dated as of the date hereof by and between the Company, the Issuer and Laurus (the “Securities Purchase Agreement”) and (ii) the Related Agreements referred to in the
Securities Purchase Agreement (the Securities Purchase Agreement and each Related Agreement, as each may be amended, modified, restated or supplemented from time to time, are collectively referred to herein as the “Documents”), or any
documents, instruments or agreements relating to or executed in connection with the Documents or any documents, instruments or agreements referred to therein or otherwise, or any other indebtedness, obligations or liabilities of the Company and/or
the Issuer to Laurus, whether now existing or hereafter arising, direct or indirect, liquidated or unliquidated, absolute or contingent, due or not due and whether under, pursuant to or evidenced by a note, agreement, guaranty, instrument or
otherwise (all of which are herein collectively referred to as the “Obligations”), and irrespective of the genuineness, validity, regularity or enforceability of such Obligations, or of any instrument evidencing any of the Obligations or
of any collateral therefor or of the existence or extent of such collateral, and irrespective of the allowability, allowance or disallowance of any or all of the Obligations in any case commenced by or against the Company and/or the Issuer under
Title 11, United States Code, including, without limitation, obligations or indebtedness of the Company and/or the Issuer for post-petition interest, fees, costs and charges that would have accrued or been added to the Obligations but for the
commencement of such case. Terms not otherwise defined herein shall have the meaning assigned such terms in the Securities Purchase Agreement. In furtherance of the foregoing, the undersigned hereby agrees as follows: 
  
 1. No Impairment. Laurus may at any time and from time to time,
either before or after the maturity thereof, without notice to or further consent of the undersigned, extend the time of payment of, exchange or surrender any collateral for, renew or extend any of the Obligations or increase or decrease the
interest rate thereon, or any other agreement with the Company and/or the Issuer or with any other party to or person liable on any of the Obligations, 







 or interested therein, for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in
part, or for any modification of the terms thereof or of any agreement between Laurus and the Company and/or the Issuer the Company and/or the Issuer or any such other party or person, or make any election of rights Laurus may deem desirable under
the United States Bankruptcy Code, as amended, or any other federal or state bankruptcy, reorganization, moratorium or insolvency law relating to or affecting the enforcement of creditors’ rights generally (any of the foregoing, an
“Insolvency Law”) without in any way impairing or affecting this Guaranty. This instrument shall be effective regardless of the subsequent incorporation, merger or consolidation of the Company and/or the Issuer, or any change in the
composition, nature, personnel or location of the Company and/or the Issuer and shall extend to any successor entity to the Company and/or the Issuer, including a the Company and/or the Issuer in possession or the like under any Insolvency Law.

  
 2. Guaranty Absolute. Subject to Section 5(c), each of
the undersigned jointly and severally guarantees that the Obligations will be paid strictly in accordance with the terms of the Documents and/or any other document, instrument or agreement creating or evidencing the Obligations, 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 Company and/or the Issuer with respect thereto. Guarantors hereby knowingly accept the full range of risk encompassed within a
contract of “continuing guaranty” which risk includes the possibility that the Company and/or the Issuer will contract additional indebtedness or issue additional preferred stock for which Guarantors may be liable hereunder after the
Company’s and/or the Issuer’s financial condition or ability to pay its lawful debts when they fall due has deteriorated, whether or not the Company and/or the Issuer has properly authorized incurring such additional indebtedness. The
undersigned acknowledge that (i) no oral representations, including any representations to extend credit or provide other financial accommodations to the Company and/or the Issuer, have been made by Laurus to induce the undersigned to enter into
this Guaranty and (ii) any extension of credit to the the Company and/or the Issuer shall be governed solely by the provisions of the Documents. The liability of each of the undersigned under this Guaranty shall be absolute and unconditional, in
accordance with its terms, and shall remain in full force and effect without regard to, and shall not be released, suspended, discharged, terminated or otherwise affected by, any circumstance or occurrence whatsoever, including, without limitation:
(a) any waiver, indulgence, renewal, extension, amendment or modification of or addition, consent or supplement to or deletion from or any other action or inaction under or in respect of the Documents or any other instruments or agreements relating
to the Obligations or any assignment or transfer of any thereof, (b) any lack of validity or enforceability of any Document or other documents, instruments or agreements relating to the Obligations or any assignment or transfer of any thereof, (c)
any furnishing of any additional security to Laurus or its assignees or any acceptance thereof or any release of any security by Laurus or its assignees, (d) any limitation on any party’s liability or obligation under the Documents or any other
documents, instruments or agreements relating to the Obligations or any assignment or transfer of any thereof or any invalidity or unenforceability, in whole or in part, of any such document, instrument or agreement or any term thereof, (e) any
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution, liquidation or other like proceeding relating to the Company and/or the Issuer, or any action taken with respect to this Guaranty by any trustee or receiver, or by any
court, in any such proceeding, whether or not the undersigned shall have notice or knowledge of any of the foregoing, (f) any exchange, release or nonperfection of any collateral, or any release, or amendment or waiver of or consent to departure
from any guaranty or security, for all or any of the Obligations or (g) any other circumstance which might otherwise constitute a defense 
  

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 available to, or a discharge of, the undersigned. Any amounts due from the undersigned to Laurus shall bear interest
until such amounts are paid in full at the highest rate then applicable to the Obligations. Obligations include post-petition interest whether or not allowed or allowable. 
  
 3. Waivers. 
  
 (a) This Guaranty is a guaranty of payment and not of collection. Laurus shall be under no obligation to institute suit, exercise rights
or remedies or take any other action against the Company and/or the Issuer or any other person liable with respect to any of the Obligations or resort to any collateral security held by it to secure any of the Obligations as a condition precedent to
the undersigned being obligated to perform as agreed herein and each of the Guarantors hereby waives any and all rights which it may have by statute or otherwise which would require Laurus to do any of the foregoing. Each of the Guarantors further
consents and agrees that Laurus shall be under no obligation to marshal any assets in favor of Guarantors, or against or in payment of any or all of the Obligations. The undersigned hereby waives all suretyship defenses and any rights to interpose
any defense, counterclaim or offset of any nature and description which the undersigned may have or which may exist between and among Laurus, the Company, the Issuer and/or the undersigned with respect to the undersigned’s obligations under
this Guaranty, or which the Company and/or the Issuer may assert on the underlying debt, including but not limited to failure of consideration, breach of warranty, fraud, payment (other than cash payment in full of the Obligations), statute of
frauds, bankruptcy, infancy, statute of limitations, accord and satisfaction, and usury. 
  
 (b) Each of the undersigned further waives (i) notice of the acceptance of this Guaranty, of the making of any such loans or extensions of
credit, and of all notices and demands of any kind to which the undersigned may be entitled, including, without limitation, notice of adverse change in the Company and/or the Issuer’s financial condition or of any other fact which might
materially increase the risk of the undersigned and (ii) presentment to or demand of payment from anyone whomsoever liable upon any of the Obligations, protest, notices of presentment, non-payment or protest and notice of any sale of collateral
security or any default of any sort. 
  
 (c)
Notwithstanding any payment or payments made by the undersigned hereunder, or any setoff or application of funds of the undersigned by Laurus, the undersigned shall not be entitled to be subrogated to any of the rights of Laurus against the Company
and/or the Issuer or against any collateral or guarantee or right of offset held by Laurus for the payment of the Obligations, nor shall the undersigned seek or be entitled to seek any contribution or reimbursement from the Company and/or the Issuer
in respect of payments made by the undersigned hereunder, until all amounts owing to Laurus by the Company and/or the Issuer on account of the Obligations are paid in full and Laurus’ obligation to extend credit pursuant to the Documents have
been terminated. If, notwithstanding the foregoing, any amount shall be paid to the undersigned on account of such subrogation rights at any time when all of the Obligations shall not have been paid in full and Laurus’ obligation to extend
credit pursuant to the Documents shall not have been terminated, such amount shall be held by the undersigned in trust for Laurus, segregated from other funds of the undersigned, and shall forthwith upon, and in any event within two (2) business
days of, receipt by the undersigned, be turned over to Laurus in the exact form received by the undersigned (duly endorsed by the undersigned to Laurus, if required), to be applied against the Obligations, whether matured or 
  

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 unmatured, in such order as Laurus may determine, subject to the provisions of the Documents. Any and all
present and future debts and obligations of the Company and/or the Issuer to any of the undersigned are hereby waived and postponed in favor of, and subordinated to the full payment and performance of, all present and future debts and Obligations of
the Company and/or the Issuer to Laurus. 
  
 4. Security.
All sums at any time to the credit of the undersigned and any property of the undersigned in Laurus’ possession or in the possession of any bank, financial institution or other entity that directly or indirectly, through one or more
intermediaries, controls or is controlled by, or is under common control with, Laurus (each such entity, an “Affiliate”) shall be deemed held by Laurus or such Affiliate, as the case may be, as security for any and all of the
undersigned’s obligations to Laurus and to any Affiliate of Laurus, no matter how or when arising and whether under this or any other instrument, agreement or otherwise. 
  
 5. Representations and Warranties. Each of the undersigned respectively, hereby jointly and severally represents and
warrants (all of which representations and warranties shall survive until all Obligations are indefeasibly satisfied in full and the Documents have been irrevocably terminated), that: 
  
 (a) Corporate Status. It is a corporation, partnership or limited liability company, as the case may
be, duly organized, validly existing and in good standing under the laws of its jurisdiction of organization indicated on the signature page hereof and has full power, authority and legal right to own its property and assets and to transact the
business in which it is engaged. 
  
 (b)
Authority and Execution. It has full power, authority and legal right to execute and deliver, and to perform its obligations under, this Guaranty and has taken all necessary corporate, partnership or limited liability company, as the case may
be, action to authorize the execution, delivery and performance of this Guaranty. 
  
 (c) Legal, Valid and Binding Character. This Guaranty constitutes its legal, valid and binding obligation enforceable in accordance
with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application affecting the enforcement of creditor’s rights and general principles of equity that
restrict the availability of equitable or legal remedies. 
  
 (d) Violations. The execution, delivery and performance of this Guaranty will not violate any requirement of law applicable to it or any contract, agreement or instrument to it is a party or by which it or any
of its property is bound or result in the creation or imposition of any mortgage, lien or other encumbrance other than to Laurus on any of its property or assets pursuant to the provisions of any of the foregoing, which, in any of the foregoing
cases, could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect. 
  
 (e) Consents or Approvals. No consent of any other person or entity (including, without limitation, any creditor of the
undersigned) and no consent, license, permit, approval or authorization of, exemption by, notice or report to, or registration, filing or declaration with, any governmental authority is required in connection with the execution, delivery,
performance, validity or enforceability of this Guaranty by it, except 
  

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 to the extent that the failure to obtain any of the foregoing could not reasonably be expected to have,
either individually or in the aggregate, a Material Adverse Effect. 
  
 (f) Litigation. No litigation, arbitration, investigation or administrative proceeding of or before any court, arbitrator or governmental authority, bureau or agency is currently pending or, to the best of its
knowledge, threatened (i) with respect to this Guaranty or any of the transactions contemplated by this Guaranty or (ii) against or affecting it, or any of its property or assets, which, in each of the foregoing cases, if adversely determined, could
reasonably be expected to have a Material Adverse Effect. 
  
 (g) Financial Benefit. It has derived or expects to derive a financial or other advantage from each and every loan, advance or extension of credit made under the Documents or other Obligation incurred by the
Company and/or the Issuer to Laurus. 
  
 6. Acceleration.

  
 (a) If any breach of any covenant or
condition or other event of default shall occur and be continuing under any agreement made by the Company and/or the Issuer or any of the undersigned to Laurus, or either the Company and/or the Issuer or any of the undersigned should at any time
become insolvent, or make a general assignment, or if a proceeding in or under any Insolvency Law shall be filed or commenced by, or in respect of, any of the undersigned, or if a notice of any lien, levy, or assessment is filed of record with
respect to any assets of any of the undersigned by the United States of America or any department, agency, or instrumentality thereof, or if any taxes or debts owing at any time or times hereafter to any one of them becomes a lien or encumbrance
upon any assets of the undersigned in Laurus’ possession, or otherwise, any and all Obligations shall for purposes hereof, at Laurus’ option, be deemed due and payable without notice notwithstanding that any such Obligation is not then due
and payable by the Company and/or the Issuer. 
  
 (b) Each of the undersigned will promptly notify Laurus of any default by such undersigned in its respective performance or observance of any term or condition of any agreement to which the undersigned is a party if the effect of such
default is to cause, or permit the holder of any obligation under such agreement to cause, such obligation to become due prior to its stated maturity and, if such an event occurs, Laurus shall have the right to accelerate such undersigned’s
obligations hereunder. 
  
 7. Payments from Guarantors.
Laurus, in its sole and absolute discretion, with or without notice to the undersigned, may apply on account of the Obligations any payment from the undersigned or any other guarantors, or amounts realized from any security for the Obligations, or
may deposit any and all such amounts realized in a non-interest bearing cash collateral deposit account to be maintained as security for the Obligations. 
  
 8. Costs. The undersigned shall pay on demand, all costs, fees and expenses (including expenses for legal services of every kind) relating or
incidental to the enforcement or protection of the rights of Laurus hereunder or under any of the Obligations. 
  
 9. No Termination. This is a continuing irrevocable guaranty and shall remain in full force and effect and be binding upon the undersigned, and
each of the undersigned’s successors and assigns, until all of the Obligations have been paid in full and Laurus’ obligation 
  

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 to extend credit pursuant to the Documents has been irrevocably terminated. If any of the present or future Obligations
are guarantied by persons, partnerships or corporations in addition to the undersigned, the death, release or discharge in whole or in part or the bankruptcy, merger, consolidation, incorporation, liquidation or dissolution of one or more of them
shall not discharge or affect the liabilities of any undersigned under this Guaranty. 
  
 10. Recapture. Anything in this Guaranty to the contrary notwithstanding, if Laurus receives any payment or payments on account of the liabilities guaranteed hereby, which payment or payments or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver, or any other party under any Insolvency Law, common law or equitable doctrine, then to the extent of any
sum not finally retained by Laurus, the undersigned’s obligations to Laurus shall be reinstated and this Guaranty shall remain in full force and effect (or be reinstated) until payment shall have been made to Laurus, which payment shall be due
on demand. 
  
 11. Books and Records. The books and records
of Laurus showing the account between Laurus and the Company and/or the Issuer shall be admissible in evidence in any action or proceeding, shall be binding upon the undersigned for the purpose of establishing the items therein set forth and shall
constitute prima facie proof thereof. 
  
 12. No Waiver. No
failure on the part of Laurus to exercise, and no delay in exercising, any right, remedy or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise by Laurus of any right, remedy or power hereunder preclude any
other or future exercise of any other legal right, remedy or power. Each and every right, remedy and power hereby granted to Laurus or allowed it by law or other agreement shall be cumulative and not exclusive of any other, and may be exercised by
Laurus at any time and from time to time. 
  
 13. Waiver of
Jury Trial. EACH OF THE UNDERSIGNED DOES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED ON OR WITH RESPECT TO THIS GUARANTY OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR
RELATING OR INCIDENTAL HERETO. THE UNDERSIGNED DOES HEREBY CERTIFY THAT NO REPRESENTATIVE OR AGENT OF LAURUS HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT LAURUS WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY
TRIAL PROVISION. 
  
 14. Governing Law; Jurisdiction;
Amendments. THIS INSTRUMENT CANNOT BE CHANGED OR TERMINATED ORALLY, AND SHALL BE GOVERNED, CONSTRUED AND INTERPRETED AS TO VALIDITY, ENFORCEMENT AND IN ALL OTHER RESPECTS IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT HAVING EFFECT
TO PRINCIPLES OF CONFLICTS OF LAWS. EACH OF THE UNDERSIGNED EXPRESSLY CONSENTS TO THE JURISDICTION AND VENUE OF THE SUPREME COURT OF THE STATE OF NEW YORK, COUNTY OF NEW YORK, AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK FOR ALL PURPOSES IN CONNECTION HEREWITH. ANY JUDICIAL PROCEEDING BY THE UNDERSIGNED AGAINST LAURUS INVOLVING, DIRECTLY OR INDIRECTLY ANY MATTER OR CLAIM IN ANY WAY ARISING OUT OF, RELATED TO OR CONNECTED HEREWITH SHALL BE BROUGHT ONLY IN THE
SUPREME COURT OF THE STATE OF NEW YORK, COUNTY OF NEW YORK OR THE 
  

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 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. THE UNDERSIGNED FURTHER CONSENTS THAT ANY SUMMONS,
SUBPOENA OR OTHER PROCESS OR PAPERS (INCLUDING, WITHOUT LIMITATION, ANY NOTICE OR MOTION OR OTHER APPLICATION TO EITHER OF THE AFOREMENTIONED COURTS OR A JUDGE THEREOF) OR ANY NOTICE IN CONNECTION WITH ANY PROCEEDINGS HEREUNDER, MAY BE SERVED INSIDE
OR OUTSIDE OF THE STATE OF NEW YORK OR THE SOUTHERN DISTRICT OF NEW YORK BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY PERSONAL SERVICE PROVIDED A REASONABLE TIME FOR APPEARANCE IS PERMITTED, OR IN SUCH OTHER MANNER AS MAY BE
PERMISSIBLE UNDER THE RULES OF SAID COURTS. EACH OF THE UNDERSIGNED WAIVES ANY OBJECTION TO JURISDICTION AND VENUE OF ANY ACTION INSTITUTED HEREON AND SHALL NOT ASSERT ANY DEFENSE BASED ON LACK OF JURISDICTION OR VENUE OR BASED UPON FORUM NON
CONVENIENS. 
  
 15. Severability. To the extent
permitted by applicable law, 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 hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. 
  
 16. Amendments, Waivers. No amendment or waiver of any provision of this Guaranty nor consent to any departure by the
undersigned therefrom shall in any event be effective unless the same shall be in writing executed by each of the undersigned directly affected by such amendment and/or waiver and Laurus. 
  
 17. Notice. All notices, requests and demands to or upon the undersigned, shall be in writing and shall be deemed to
have been duly given or made (a) when delivered, if by hand, (b) three (3) days after being sent, postage prepaid, if by registered or certified mail, (c) when confirmed electronically, if by facsimile, or (d) when delivered, if by a recognized
overnight delivery service in each event, to the numbers and/or address set forth beneath the signature of the undersigned. 
  
 18. Successors. Laurus may, from time to time, without notice to the undersigned, sell, assign, transfer or otherwise dispose of all or any part of
the Obligations and/or rights under this Guaranty. Without limiting the generality of the foregoing, Laurus may assign, or grant participations to, one or more banks, financial institutions or other entities all or any part of any of the
Obligations. In each such event, Laurus, its Affiliates and each and every immediate and successive purchaser, assignee, transferee or holder of all or any part of the Obligations shall have the right to enforce this Guaranty, by legal action or
otherwise, for its own benefit as fully as if such purchaser, assignee, transferee or holder were herein by name specifically given such right. Laurus shall have an unimpaired right to enforce this Guaranty for its benefit with respect to that
portion of the Obligations which Laurus has not disposed of, sold, assigned, or otherwise transferred. 
  

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 19. Release. Nothing except cash payment in full of the Obligations shall release any of the
undersigned from liability under this Guaranty. 
  
 [REMAINDER
OF THIS PAGE IS BLANK. 
 SIGNATURE PAGE IMMEDIATELY FOLLOWS] 
  

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 IN WITNESS WHEREOF, this Guaranty has been executed by the undersigned this 27th day of May, 2004.

  

			
	 VERTICAL HEALTH SOLUTIONS, INC.

		
	 By:
	 	 /s/ STEPHEN WATTERS


	 Name:
	 	 Stephen Watters

	 Title:
	 	 CEO

		
	 Address:
	 	 855 Dunbar Avenue

	 	 	 Oldsmar, Florida 34677

	 Telephone:
	 	 727-548-8345 ext 222

	 Facsimile:
	 	 727-548-7135

	 State of Incorporation:        Florida

	
	 LABELCLICK, INC.

		
	 By:
	 	 /s/ STEPHEN WATTERS


	 Name:
	 	 Stephen Watters

	 Title:
	 	 CEO

		
	 Address:
	 	 855 Dunbar Avenue

	 	 	 Oldsmar, Florida 34677

	 Telephone:
	 	 727-548-8345 ext 222

	 Facsimile:
	 	 727-548-7135

	 State of Incorporation:        Florida

	
	 VERTICAL HEALTH VENTURES, INC.

		
	 By:
	 	 /s/ STEPHEN WATTERS


	 Name:
	 	 Stephen Watters

	 Title:
	 	 President

		
	 Address:
	 	 855 Dunbar Avenue

	 	 	 Oldsmar, Florida 34677

	 Telephone:
	 	 727-548-8345 ext 222

	 Facsimile:
	 	 727-548-7135

	 State of Incorporation:        Delaware



  

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