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Exhibit: 10.48FT
PERSONAL GUARANTEE AGREEMENT
AND
PROMISSORY NOTE
V. W. GOETT AND FUTECH INTERACTIVE PRODUCTS
MARCH 31, 1998 PHOENIX, ARIZONA
This Personal Guarantee Agreement and Promissory Note ("Agreement") is
made and entered into on the date set forth above, by and between, VINCENT W.
GOETT ("GUARANTOR") AND FUTECH INTERACTIVE PRODUCTS, INC. ("PROMISOR"). The
following is the basis for this Agreement:
- U. S. BANCORP ("PAYEE") is providing $4 million in operating
capital ("Loan") to Promisor.
- The Guarantor is personally guaranteeing $3.6 million of the
Loan in order to help Promisor secure the Loan.
- The purpose of this Agreement is for the Guarantor to receive
benefit from the risk of personally guaranteeing $3.6 million
of the Loan.
TERMS
For value received (i.e. Guarantor's pledge of personal assets toward the
repayment of the Loan), Promisor agrees to provide to Guarantor, at 6400 N 48
Street, Paradise Valley, Arizona 85253, (or at such other place as the Guarantor
may designate in writing) the following:
- The sum of $360,000.00 as a shareholder advance/loan as
approved by the Shareholder Loan and Master Promissory Note
for Credit Line Agreement dated January 1, 1997. This amount
shall be payable to Guarantor immediately upon receipt of the
Loan proceeds.
- 7.2 million stock options of Promisor's common stock. The
options are granted at an exercise price of $0.05 per share,
become exercisable one year from the execution date of this
Agreement and expire five years from the exercise date. The
stock options will be issued to Vincent W. and Melissa Turner
Goett.
A. Promisor and Guarantor agree to the following terms and conditions
regarding the Loan:
1. Promisor may prepay, without penalty, all outstanding
principal to Payee.
2. If any payment obligation under this Agreement is not paid
when due, the Promisor promises to pay all costs of
collection, including reasonable attorney fees, whether or not
a lawsuit is commenced as part of the collection process.
3. If Guarantor is required to pay all or part any of the
aforementioned obligation on part of Promisor, Guarantor has
the following options for repayment:
- receiving cash in the amount of principal plus 10%
annual interest payable quarterly, or,
- converting all or part of principal and interest into
shares of Promisor's common stock at a conversion
rate of 20 shares for every one dollar. The only
restriction is the Promisor's number of unencumbered
shares available for distribution.
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4. If any of the following events of default occur, this
Agreement and any other obligations of the Promisor to
Guarantor, shall become due immediately, without demand or
notice:
- the failure of the Promisor to pay the principal and
any accrued interest in full on or before the Due
Date;
- the filing of bankruptcy proceedings involving the
Promisor as a Debtor;
- the application for appointment of a receiver for the
Promisor;
- the making of a general assignment for the benefit of
the Promisor's creditors; the insolvency of the
Promisor; or the misrepresentation by the Promisor to
Payee for the purpose of obtaining or extending
credit;
B. Other Terms and Conditions:
1. If any one or more of the provisions of this Agreement are
determined to be unenforceable, in whole or in part, for any
reason, the remaining provisions shall remain fully operative.
2. All payments of principal and interest on this Agreement shall
be paid in the legal currency of the United States.
3. Promisor waives presentment for payment, protest, and notice
of protest and nonpayment of this Agreement.
4. No renewal or extension of this Agreement, delay in enforcing
any right of Guarantor under this Agreement, or assignment by
Guarantor of this Agreement shall affect the liability of the
Promisor.
5. All rights of Guarantor under this Agreement are cumulative
and may be exercised concurrently or consecutively at
Guarantor's option.
REPRESENTATIONS OF GUARANTOR
Guarantor represents, warrants and covenants as follows:
1. Guarantor is familiar with the business and affairs of Promisor and
realizes an investment in the shares involves a high degree of risk.
2. Guarantor has been advised that there will be no public market for
the shares; it may not be able to readily liquidate its investment; the shares
have not been registered or qualified under Federal or State laws governing the
issuance of securities; and Promisor has no current intention of registering the
shares or reporting under the Act or any comparable or related Federal or State
law.
3. Guarantor is an accredited investor and acknowledges that its
overall commitment to investments which are not readily marketable is not
disproportionate to its net worth; and its investment in the shares will not
cause such overall commitment to become excessive; that Guarantor has adequate
means of providing for its current needs and personal contingencies, and has no
need for liquidity of this investment; that Guarantor has evaluated the risk of
investing in Promisor; that Guarantor is aware of the financial risks and
possible financial hazards of purchasing the shares and it has carefully
considered these risks of the investment, including the possibility of a
complete loss thereof.
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4. Guarantor agrees the stock is subject to a Stock Restrictions and
Sale Agreement. The shares acquired under this Agreement shall be subject to
that Stock Restrictions and Sale Agreement, as it may be amended from time to
time.
GENERAL
This Agreement is the entire agreement between the parties upon the subject
hereof and supersedes any prior or similar agreements upon the same subject.
This Agreement shall be governed by and construed in accordance with the Federal
law of the United States of America and the internal laws of the State of
Arizona, without reference to the principles of conflicts of law.
This Agreement may be executed in one or more counterparts, each of which shall
be deemed to be an original but all of which together will constitute one and
the same instrument.
"Promisor"
/s/ Vincent W. Goett, CEO
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Futech Interactive Products, Inc.
"Futech" (in witness of)
/s/ Fred B. Gretsch
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FRED B. GRETSCH, CFO
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(Name and Title)
===== This Agreement consists of a total of 3 pages =====
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or to such other address and/or telefacsimile number as any party may provide to
the other in accordance with this Section.
20. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof (i.e.,
EMPLOYEE's employment by EMPLOYER) and supersedes all prior or contemporaneous
offers, understandings or agreements in regard thereto, including without
limitation that employment agreement between EMPLOYEE and EMPLOYER dated August
7, 1996, which is hereby terminated.
21. Modification of Agreement. No modification or addition to
this Agreement shall be valid unless in writing, specifically referring to this
Agreement and signed by all parties hereto.
22. Waiver. No waiver of any rights under this Agreement shall
be valid unless in writing and signed by the party to be charged with such
waiver. No waiver of any term or condition contained in this Agreement shall be
deemed or construed as a further or continuing waiver of such term or condition,
unless the waiver specifically provides otherwise.
23. Contracts. Notwithstanding any provisions to the contrary
in this Agreement, EMPLOYEE shall not enter into any contracts or agreements,
written or oral, for or on behalf of EMPLOYER without EMPLOYER's prior written
consent.
IN WITNESS WHEREOF, the parties have executed this Agreement on the 14
day of January, 1998.
EMPLOYER: EMPLOYEE:
Futech Educational Products, Inc.,
an Arizona corporation
By: /s/ Vincent Goett /s/ Vincent Goett
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Vincent Goett
Printed Name: Vincent W. Goett
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Title: CEO
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