Exhibit 10.2
DEED
OF LIMITED GUARANTY AND INDEMNITY
Deed of
Limited Guaranty and Indemnity (the “Guaranty”), dated
as of June 25, 2008, by Progress Software Corporation, a
Massachusetts corporation (the “Guarantor”), in favor
of IONA Technologies PLC, a public limited company incorporated
under Irish Company law (“IONA”).
1.
GUARANTY . To induce IONA to enter into an Implementation
Agreement, dated as of the date hereof (as amended, supplemented or
otherwise modified from time to time, the “Implementation
Agreement”; capitalized terms used herein and not otherwise
defined shall have the meaning ascribed to them in the
Implementation Agreement), by and among SPK Acquisitions Limited, a
private limited company incorporated in Ireland (the
“Buyer”), IONA, and with respect to Section 7.4 and
Section 7.7 of the Implementation Agreement only, the
Guarantor, the Guarantor as principal obligor and not merely as
surety, absolutely, unconditionally and irrevocably guarantees and
covenants to IONA the due and punctual payment and performance of
all of the obligations of Buyer (and its successors and assigns)
under the Implementation Agreement (including without limitation
and for the avoidance of doubt, (a) the obligations of Buyer
(and its successors and assigns) under Section 6.5 of the
Implementation Agreement, including but not limited to the
obligation to pay the Scheme Consideration to the IONA Shareholders
subject to, and in accordance with, the terms and conditions of the
Scheme, (b) the obligations of Buyer (and its successors and
assigns) under Section 2.1 of the Implementation Agreement,
(c) the timely performance when required of all other
obligations of Buyer (and its successors and assigns) that arise
under the Implementation Agreement (including, without limitation
the obligations of the Buyer Parties (and their respective
successors and assigns) under Section 7.4 and Section 7.7
of the Implementation Agreement) and (d) any liability of Buyer for
breach of the Implementation Agreement (collectively, the
“Obligations”); provided the maximum amount
payable by the Guarantor hereunder shall not exceed
US$161.7 million (the “Cap Amount”).
2.
NATURE OF GUARANTY . This Guaranty is an absolute,
unconditional and continuing guaranty of the full and punctual
payment and performance of the Obligations. The liability of the
Guarantor to pay the Scheme Consideration shall arise only in
circumstances where Buyer has failed to pay the Scheme
Consideration within the time period stipulated by the Irish
Takeover Rules, being within 14 days from the Effective Date.
This Guaranty is in no way conditioned upon any requirement that
IONA first attempt to collect the Obligations from Buyer or resort
to any security or other means of collecting payment. Should Buyer
default in the payment or performance of the Obligations, or
otherwise is unable for any reason to pay the Obligations as and
when due, or if IONA is unable to bring a claim for the Obligations
against Buyer for any reason, the Guarantor’s obligations
hereunder shall become immediately due and payable to IONA. Claims
hereunder may be made on one or more occasions. If any payment in
respect of any Obligations is rescinded or must otherwise be
returned for any reason whatsoever, the Guarantor shall remain
liable hereunder with respect to such Obligations as if such
payment had not been made.
3.
CHANGES IN OBLIGATIONS; CERTAIN WAIVERS . The Guarantor
agrees that IONA may, subject to obtaining the prior approval of
the Irish Takeover Panel to the extent required, at any time and
from time to time, without notice to or further consent of
the
Guarantor, extend the time of payment of any of the Obligations,
and may also make any agreement with Buyer or with any other party
to, or Person liable for 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 IONA on the one hand,
and Buyer, on the other hand, or any such other party or Person
without in any way impairing or affecting this Guaranty. The
Guarantor agrees that the obligations of the Guarantor hereunder
shall not be released or discharged, in whole or in part, or
otherwise affected by (a) the failure of IONA to assert any
claim or demand or to enforce any right or remedy against Buyer or
any other entity or other Person primarily or secondarily liable
with respect to any of the Obligations or interested therein;
(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 Implementation Agreement or any other
agreement evidencing, securing or otherwise executed in connection
with any of the Obligations; (c) the addition, substitution or
release of any entity or other Person primarily or secondarily
liable for any Obligation or interested therein; (d) any
change in the corporate existence, structure or ownership of Buyer
or any other entity or Person liable with respect to any of the
Obligations; (e) any insolvency, examination, bankruptcy,
reorganization or other similar proceeding affecting Buyer or any
other entity or Person liable with respect to any of the
Obligations or interested therein; (f) any lack of validity or
enforceability of the Implementation Agreement or any agreement or
instrument relating thereto; (g) the existence of any claim,
set-off or other rights that the Guarantor may have at any time
against Buyer or IONA, whether in connection with the Obligations
or otherwise; (h) the adequacy of any other means IONA may
have of obtaining repayment of any of the Obligations; (i) any
other act or omission that might in any manner or to any extent
vary the risk of the Guarantor or otherwise operate as a release or
discharge of the Guarantor, all of which may be done without notice
to the Guarantor; or (j) any other event or circumstance,
whether similar or dissimilar to the foregoing (other than final
payment in full of the Obligations). To the fullest extent
permitted by law, the Guarantor hereby expressly waives any and all
rights or defenses arising by reason of any law that would
otherwise require any election of remedies by IONA. The Guarantor
waives promptness, diligence, notice of the acceptance of this
Guaranty 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, all
defenses that 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 Buyer or any other
entity or other Person primarily or secondarily liable with respect
to any of the Obligations or interested therein, and all suretyship
defenses generally (other than defenses to the payment of the
Obligations that are available to Buyer under the Implementation
Agreement).
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