Exhibit 2.2
AMENDMENT TO
AGREEMENT AND PLAN OF
MERGER
This Amendment, dated as of September 28, 2009
(this “Amendment”), to the Agreement and Plan of
Merger, dated as of July 7, 2009 (the “Merger
Agreement”), by and among Maximus Holdings Inc., a Delaware
corporation (“Parent”), Maximus Inc., a Delaware
Corporation and a wholly owned subsidiary of Parent (“Merger
Sub”), and MSC.Software Corporation, a Delaware corporation
(the “Company”), is entered into by the Company, Parent
and Merger Sub.
WHEREAS, Section 11.03 of the Merger
Agreement permits the parties to amend the Merger Agreement by
execution of an instrument in writing signed by each of Parent,
Merger Sub and the Company; and
WHEREAS, each of Parent, Merger Sub and the
Company desires to amend the Merger Agreement as provided
herein.
NOW, THEREFORE, in consideration of the mutual
agreements specified in this Amendment, Parent, Merger Sub and the
Company hereby agree as follows:
1.
Amendment of Section 2.02(a) of the Merger Agreement
. Section 2.02(a) of the Merger Agreement is hereby
amended to replace the reference to “$7.63” with
“$8.40.”
2.
Amendment of Section 4.05(a) of the Merger Agreement
. Section 4.05(a) of the Merger Agreement is hereby
amended to replace the reference to “$900,000” with
“$1,350,000.”
3.
Amendment of Section 5.07 of the Merger Agreement
. Section 5.07 of the Merger Agreement is hereby amended
and restated in its entirety to read as follows:
“Financing.
Parent has provided to the Company
true and complete copies of (i) the fully executed commitment
letter, dated as of September 28, 2009, between Parent and each of
Wells Fargo Foothill LLC and Capital Source Bank (the “
Debt Financing Commitments ”), pursuant to which each
of Wells Fargo Foothill LLC and Capital Source Bank has agreed to
lend the amounts set forth therein on the terms and subject to the
conditions set forth therein (the “ Debt Financing
”) for the purpose of funding the transactions contemplated
by this Agreement, and (ii) (A) the fully executed equity and debt
commitment letter, dated as of September 28, 2009, between Parent
and STG III, L.P. and STG III-A, L.P. (the “ STG Equity
Commitment ”) and (B) the fully executed equity and debt
commitment letter, dated as of July 7, 2009, between Parent and
Elliott Associates, L.P. and Elliott International, L.P. (the
“ Elliott Equity Commitment ” and, together with
the STG Equity Commitment, the “ Equity Financing
Commitments ” and together with the Debt Financing
Commitments, the “ Financing Commitments ”),
pursuant to which each of STG III, L.P., STG III-A, L.P., Elliott
Associates, L.P. and Elliott International, L.P. has committed to
invest the amount set forth therein on the terms and subject to the
conditions set forth therein (the “ Equity Financing
” and together with the Debt Financing, the “
Financing ”). As of September 24, 2009,
none of the Financing Commitments has been amended or modified, and
the respective commitments contained in the Financing Commitments
have not been withdrawn or rescinded in any respect. The
Financing
Commitments are in full force and
effect and constitute the legal, valid and binding obligations of
each of Parent, Merger Subsidiary and the other parties thereto
(except as such enforceability may be limited by applicable
bankruptcy, reorganizat
