Exhibit 10.1
LIMITED GUARANTEE
Limited Guarantee, dated as of
July 7, 2009 (this “ Limited Guarantee ”),
by each of STG III, L.P., a Delaware limited partnership (“
STG III ”), and STG III-A, L.P., a Delaware limited
partnership (“ STG III-A ” and, together with
STG III, the “ Guarantors ”), in favor of
MSC.Software Corporation (the “ Guaranteed Party
”).
1. Limited Guarantee . To
induce the Guaranteed Party to enter into an Agreement and Plan of
Merger, dated as of July 7, 2009 (as it may be amended from
time to time, the “ Merger Agreement ”;
capitalized terms used but not defined herein shall have the
meanings given to such terms in the Merger Agreement), by and among
Maximus Holdings Inc., a Delaware corporation (“
Parent ”), Maximus Inc., a Delaware corporation and
wholly-owned subsidiary of Parent (“ Merger Sub
”), and the Guaranteed Party, pursuant to which Merger Sub,
or a permitted assignee, will merge with and into the Guaranteed
Party, each of the Guarantors, severally and not jointly (based on
their respective Pro Rata Portions (as defined below)), hereby
absolutely, unconditionally and irrevocably guarantees to the
Guaranteed Party the due and punctual performance and discharge of
the payment obligations of Parent under Sections 11.04(c) and
11.04(d) of the Merger Agreement (the “ Obligations
”). The “Pro Rata Portion” for STG III shall be
88.29%, and the “Pro Rata Portion” for STG III-A shall
be 11.71%. The obligations of each Guarantor hereunder are those of
primary obligor, and not merely as surety, and are independent of
the Obligations and the obligations of any other guarantor, and a
separate action may be brought against the Guarantor to enforce
this Limited Guaranty whether or not the Guaranteed Party or any
other person or entity is joined as a party.
2. Nature of Guarantee . The
Guaranteed Party shall not be obligated to file any claim relating
to the Obligations in the event that Parent or Merger Sub becomes
subject to a bankruptcy, reorganization or similar proceeding, and
the failure of the Guaranteed Party to so file shall not affect the
Guarantors’ obligations hereunder. In the event that any
payment to the Guaranteed Party in respect of the Obligations is
rescinded or must otherwise be returned for any reason whatsoever,
the Guarantors shall remain liable hereunder with respect to the
Obligations as if such payment had not been made. This is an
unconditional guarantee of payment and not merely of
collectibility.
3. Changes in Obligations;
Certain Waivers . Each of the Guarantors agrees that the
Guaranteed Party may at any time and from time to time, without
notice to or further consent of such Guarantor, extend the time of
payment of any of the Obligations, and may also make any agreement
with Parent, Merger Sub or any assignee of Parent or Merger Sub
pursuant to Section 11.06(b) of the Merger Agreement (“
Assignee ”), 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 other agreement
between the Guaranteed Party and Parent, Merger Sub or any Assignee
without in any way impairing or affecting such Guarantor’s
obligations under this Limited Guarantee, but in any case subject
to the last sentence of Section 4(a) and to Section 7(a).
Each Guarantor agrees that, except as set forth in
Section 7(a), the obligations of such Guarantor hereunder
shall not be released or discharged, in whole or in part, or
otherwise affected by (a) the failure of the Guaranteed Party
to assert any claim or demand or to enforce any right or
remedy
against Parent, Merger Sub or any Assignee;
(b) any change in the time, place or manner of payment of any
of the Obligations or any rescission, waiver, compromise,
consolidation or other amendment or modification of any of the
terms or provisions of the Merger Agreement or any other agreement
evidencing, securing or otherwise executed in connection with any
of the Obligations; (c) any change in the corporate existence,
structure or ownership of Parent, Merger Sub or any Assignee;
(d) any insolvency, bankruptcy, reorganization or other
similar proceeding affecting Parent, Merger Sub or any Assignee;
(e) the existence of any claim, set-off or other right which
such Guarantor may have at any time against Parent, Merger Sub, any
Assignee or the Guaranteed Party, whether in connection with the
Obligations or otherwise; or (f) the adequacy of any other
means the Guaranteed Party may have of obtaining repayment of any
of the Obligations. To the fullest extent permitted by law, each
Guarantor hereby expressly waives any and all rights or defenses
arising by reason of any law which would otherwise require any
election of remedies by the Guaranteed Party. Each Guarantor waives
promptness, diligence, notice of the acceptance of this Limited
Guarantee and of the Obligations, presentment, demand for payment,
notice of non-performance, default, dishonor and protest, notice of
any Obligations incurred and all other notices of any kind (except
for notices to be provided to Parent, Merger Sub and
Shearman & Sterling LLP in accordance with
Section 11.01 of the Merger Agreement), all defenses which may
be available by virtue of any valuation, stay, moratorium law or
other similar law now or hereafter in effect, any right to require
the marshalling of assets of Parent, Merger Sub or any Assignee,
and all suretyship defenses generally (other than fraud or willful
misconduct by the Guaranteed Party or any of its Subsidiaries,
defenses to the payment of the Obligations that are available to
Parent or Merger Sub under the Merger Agreement or breach by the
Guaranteed Party of this Limited Guarantee). Each Guarantor
acknowledges that it will receive substantial direct and indirect
benefits from the transactions contemplated by the Merger Agreement
and that the waivers set forth in this Limited Guarantee are
knowingly made in contemplation of such benefits.
4. Additional Agreements
.
a) The Guaranteed Party hereby
covenants and agrees that it shall not institute, and shall cause
its Affiliates not to institute, any proceeding or bring any other
claim arising under, or in connection with, the Merger Agreement or
the transactions contemplated thereby or otherwise relating thereto
against the Guarantors (except for claims against the Guarantors
under this Limited Guarantee, subject to the limitations described
herein), Parent or Merger Sub or against (a) any of the
Guarantors’ respective former, current or future directors,
officers, agents, Affiliates (other than Parent or Merger Sub) or
employees, (b) any of the respective former, current or future
general or limited partners, members, managers or stockholders of
the Guarantors or any Affiliate thereof (other than Parent or
Merger Sub), or (c) any former, current or future directors,
officers, agents, Affiliates, general or limited partners, members,
managers or stockholders of any of the foregoing (other than Parent
or Merger Sub) ((a) through (c) collectively, the “
Guarantor Affiliates ”). Notwithstanding the
foregoing, in connection with the pursuit by the Guaranteed Party
of a claim under this Limited Guarantee, the Guaranteed Party may
pursue a declaratory judgment claim against Parent to demonstrate
that Parent has failed to perform its obligations under
Sections 11.04(c) and 11.04(d) of the Merger Agreement;
provided that such claim does not seek any other remedy
(including damages) against Parent or Merger Sub. Notwithstanding
anything to the contrary contained in this Limited Guarantee, the
Guaranteed Party hereby agrees that to the extent Parent is
relieved of its obligations under Sections 11.04(c) and
11.04(d) of the Merger Agreement, each of the Guarantors shall be
similarly relieved of its obligations under this Limited
Guarantee.
b) Each of the Guarantors hereby
covenants and agrees that it shall not institute, and shall cause
its Affiliates not to institute, any proceedings asserting that
this Limited Guarantee is illegal, invalid or unenforceable in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws affecting creditors’ rights generally, and
general equitable principles (whether considered in a proceeding in
equity or at law). Each of the Guarantors hereby unconditionally
and irrevocably agrees not to exercise any rights that it may now
have or hereafter acquire against Parent, Merger Sub or any
Assignee that arise from the existence, payment, performance, or
enforcement of such Guarantor’s obligations under or in
respect of this Limited Guarantee or any other agreement in
connection therewith, including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution or
indemnification and any right to participate in any claim or remedy
of the Guaranteed Party against Parent, Merger Sub or any Assignee,
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 Parent, Merger Sub or
any Assignee, directly or indirectly, in cash or other property or
by set-off or in any other manner, payment or security on account
of such claim, remedy or right, unless and until all of such
Guarantor’s Obligations shall have been paid in full in cash.
If any amount shall be paid to a Guarantor in violation of the
immediately preceding sentence at any time prior to the payment in
full in cash of such Guarantor’s Obligations, such amount
shall be received and held in trust for the benefit of the
Guaranteed Party and shall forthwith be paid or delivered to the
Guaranteed Party in the same form as so received (with any
necessary endorsement or assignment) to be credited and applied to
such Obligations, in accordance with the terms of the Merger
Agreement, whether matured or unmatured, or to be held as
collateral for any such Obligations.
5. No Waiver; Cumulative
Rights . No failure on the part of the Guaranteed Party 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 the Guaranteed Party of any right, remedy or
power hereunder preclude any other or future exercise of any right,
remedy or power hereunder. Each and every right, remedy and power
hereby granted to the Guaranteed Party or allowed it by law or
other agreement shall be cumulative and not exclusive of any other,
and may be exercised by the Guaranteed Party at any time or from
time to time.
6. Representations and
Warranties . Each of the Guarantors, severally and not jointly,
hereby represents and warrants that:
a) the execution, delivery and
performance of this Limited Guarantee have been duly authorized by
all necessary action and do not contravene an
