GUARANTY
EXHIBIT 2.2
This
GUARANTY (this “Guaranty”) dated as of
December 19, 2005 is entered into by and
between Pegasus Solutions, Inc., a Delaware corporation (the “Company”) and Prides Capital
Fund I, L.P. (the “Guarantor”). Capitalized terms used herein without definition have the
meanings given to them in the Merger Agreement (as defined below).
RECITALS
WHEREAS, concurrently with the execution and delivery of this Guaranty, the Company and
Perseus Holding Corp., a Delaware corporation (“Parent”), and 406 Acquisition Corp., a
Delaware corporation (“Merger Sub” and, together with Parent, the “Acquisition
Companies”), are entering into an Agreement and Plan of Merger, dated as of the date hereof
(the “Merger Agreement”), providing for the Merger of Merger Sub with and into the Company
upon the terms and subject to the conditions set forth therein;
WHEREAS, each of the Acquisition Companies is an Affiliate of the Guarantor; and
WHEREAS, in order to induce the Company to enter into the Merger Agreement, the Guarantor has
agreed to enter into this Guaranty;
NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the
Guarantor hereby agree as follows:
1. Guaranty. The Guarantor hereby irrevocably and unconditionally guarantees to the Company
the prompt and complete payment of the payment obligations of each of the Acquisition Companies
arising out of any willful breach by one or both of the Acquisition Companies under the Merger
Agreement that are finally judicially determined to be due and payable by any of the Acquisition
Companies by reason of a willful breach of the terms of the Merger Agreement (the “Guaranteed
Obligations”); provided, however, that the maximum aggregate liability of the
Guarantor hereunder shall not exceed $5,000,000 (the “Maximum Amount”). The Company hereby
agrees that in no event shall the Guarantor be required to pay to any Person under, in respect of,
or in connection with this Guaranty more than the Maximum Amount, and that the Guarantor shall not
have any obligation or liability to any Person relating to, arising out of or in connection with
this Guaranty other than as expressly set forth herein. For the purposes of this Guaranty, the term
“finally judicially determined” shall mean the entry of a judgment by a court or other tribunal of
competent jurisdiction, which judgment has become final and non-appealable, that the applicable
Acquisition Company is in willful breach of the terms of the Agreement or, in the event such
Acquisition Company becomes the subject of a case under any chapter of title 11 of the United
States Code, the allowance by order of the bankruptcy court or other court of competent
jurisdiction, of the Company’s proof of claim against such Acquisition Company based on its willful
breach of the Merger Agreement, which order has become final and non-appealable.
2. Terms of Guaranty.
(a) This Guaranty is one of payment, not performance or collection, and a separate action or
actions may be brought and prosecuted against the Guarantor to enforce this Guaranty, irrespective
of whether any action is brought against any Acquisition Company or whether any Acquisition Company
is joined in any such action or actions.
(b) Notwithstanding any other provision of this Guaranty, the Company hereby agrees that (i)
the Guarantor may assert, as a defense to any payment or performance by the Guarantor under this
Guaranty, any claim, set-off, deduction or defense that any Acquisition Company could assert
against the Company under the terms of the Merger Agreement or that could otherwise be asserted by
any Acquisition Company against the Company in any action by the Company against any Acquisition
Company and (ii) any failure by the Company to comply with the terms of the Merger Agreement,
including, without limitation, any breach by the Company of the representations and warranties
contained therein or in any of the agreements, certificates and other documents required to be
delivered by the Company pursuant to the terms of the Merger Agreement (whether such breach results
from fraud, intentional misrepresentation or otherwise), that would relieve any Acquisition Company
of its obligations under the Merger Agreement shall likewise relieve the Guarantor of their
obligations under this Guaranty.
3. Sole Remedy.
(a) The Company hereby acknowledges and agrees that none of the Acquisition Companies has any
assets as of the date hereof, and that the Company shall not have any right to cause any monies to
be contributed to any of the Acquisition Companies by the Guarantor or any current, former or
prospective stockholder, officer, member, general or limited partner, director, agent, employee,
Affiliate or assignee of the Guarantor.
(b) The Company hereby agrees that no Person other than the Guarantor shall have any
obligation or liability arising out of, in connection with or relating to this Guaranty and that
neither the Company nor any other Person shall have any remedy, recourse or right of recovery
against any current, former or prospective stockholder, member, general or limited partner,
officer, director, agent, employee, Affiliate or assignee of the Guarantor, or against any current,
former or prospective stockholder, member, general or limited partner, officer, director, agent,
employee, Affiliate or assignee of any of the foregoing, whether through the Guarantor or
otherwise, by or through attempted piercing of the corporate veil, by or through a claim by or on
behalf of Any of the Acquisition Companies against the Guarantor or against any current, former or
prospective stockholder, member, general or limited partner, officer, director, agent, employee,
Affiliate or assignee of the Guarantor, any of the Acquisition Companies or any of their respective
Affiliates, or otherwise.
(c) Recourse by the Company against the Guarantor under this Guaranty shall be the sole and
exclusive remedy of the Company against the Guarantor or any of its Affiliates (other than the
Acquisition Companies) in respect of any liabilities or obligations arising under, or in connection
with, the Merger Agreement or the transactions contemplated thereby. The Company 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
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Merger Agreement or the transactions contemplated thereby, against the Guarantor or any of its
Affiliates (other than the Acquisition Companies), except for claims by the Company against the
Guarantor under this Guaranty. Nothing set forth in this Guaranty shall affect or be construed to
affect any liability of any of the Acquisition Companies to the Company or shall confer or give, or
shall be construed to confer or give, to any Person other than the Company (including any Person
acting in a representative capacity) any rights or remedies against any Person in respect of or
relating to any obligation or liability of the Guarantor arising out of, in connection with or
relating to this Guaranty.
4. Termination. This Guaranty shall terminate at the earlier of (i) the Effective Time or
(ii) the termination of the Merger Agreement pursuant to the provisions of Article VII thereof
under circumstances which cannot give rise to any Guaranteed Obligation.
5. Continuing Guaranty. Unless terminated pursuant to the provisions of Section 4 hereof,
this Guaranty is a continuing one and shall remain in full force and effect until the indefeasible
payment and satisfaction in full of the Guaranteed Obligations, and shall be binding upon, inure to
the benefit of and be enforceable by, the parties hereto and their respective successors and
permitted transferees and assigns.
6. Entire Agreement. This Guaranty and the Merger Agreement constitutes the entire
agreement with respect to the subject matter hereof and supersedes any and all prior discussions,
negotiations, proposals, undertakings, understandings and agreements, whether written or oral,
between the Guarantor or any of its Affiliates on the one hand, and the Company or any of its
Affiliates on the other hand.
7. Amendments and Waivers. No amendment or waiver of any provision of this Guaranty shall
be valid and binding unless it is in writing and signed, in the case of an amendment, by the
Guarantor and the Company, or in the case of waiver, by the party against whom the waiver is sought
to be enforced. No waiver by a party of any breach or violation of, or default under, this Guaranty
shall be deemed to extend to any prior or subsequent breach, violation or default hereunder or to
affect in any way any rights arising by virtue of any such prior or subsequent occurrence. No delay
or omission by any party in exercising any right, power or remedy under this Guaranty shall operate
as a waiver thereof.
8. Counterparts. This Guaranty may be executed in any number of counterparts, each of which
will be deemed an original, but all of which together will constitute one and the same instrument.
This Guaranty shall become effective when duly executed by each party hereto.
9. Notices. All notices, requests, claims, demands and other communications hereunder
shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt)
by delivery in person, by telecopy or by registered or certified mail (postage prepaid, return
receipt requested) to the respective parties at the following addresses (or at such other address
for a party as shall be specified in a notice given in accordance with this Section 9):
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| if to the Guarantor: | Prides Capital Fund I, L.P. | |||
| 00 Xxxxxxxxxx Xxxxxx | ||||
| Xxxxx 000 | ||||
| Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 | ||||
| Facsimile No.: (000) 000-0000 | ||||
| Attention: Xxxxxx Xxxxxx | ||||
| with a copy to: | Xxxxxxx Xxxxxxx & Xxxxxxxx LLP | |||
| 0000 Xxxxxxxx Xxxxxx | ||||
| Xxxx Xxxx, Xxxxxxxxxx 00000 | ||||
| Facsimile No.: 000-000-0000 | ||||
| Attention: Xxxxxxx Xxxxxx, Esq. | ||||
| if to the Company: | Pegasus Solutions, Inc. | |||
| Xxxxxxxx Centre 1 | ||||
| 0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 0000 | ||||
| Xxxxxx, Xxxxx 00000 | ||||
| Facsimile No.: (000) 000-0000 | ||||
| Attention: Xxxx X. Xxxxx, III | ||||
| with a copy to: | Xxxxx Xxxxxxx & Xxxx LLP | |||
| 0000 Xxxx Xxxxxx, Xxxxx 0000 | ||||
| Xxxxxx, Xxxxx 00000 | ||||
| Facsimile No.: (000) 000-0000 | ||||
| Attention: Xxxx Xxxxxxx |
10. Governing Law. This Guaranty shall be governed by, and construed in accordance with,
the laws of the State of Delaware applicable to contracts executed in and to be performed in that
State. All actions and proceedings arising out of or relating to this Guaranty shall be heard and
determined exclusively in the Chancery Court of the State of Delaware (or other appropriate state
court in the State of Delaware or any federal court sitting in the State of Delaware. The parties
hereto hereby (a) submit to the exclusive jurisdiction of any such state or federal court sitting
in the State of Delaware for the purpose of any Action arising out of or relating to this Guaranty
brought by any party hereto and (b) irrevocably waive, and agree not to assert by way of motion,
defense, or otherwise, in any such action, any claim that it is not subject personally to the
jurisdiction of the above-named courts, that its property is exempt or immune from attachment or
execution, that the action is brought in an inconvenient forum, that the venue of the action is
improper, or that this Guaranty may not be enforced in or by any of the above-named courts.
11. Severability. Any term or provision of this Guaranty that is invalid or unenforceable
in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity
or unenforceability without rendering invalid or unenforceable the remaining terms and provisions
of this Guaranty or affecting the validity or enforceability of any terms or provisions of this
Guaranty in any other jurisdiction so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner adverse to any party; provided,
however, that this Guaranty may not be enforced without giving effect to the limitation of
the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the
provisions of
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Sections 3 and 4 hereof. No party hereto shall assert, and each party shall cause its respective
Affiliates not to assert, that this Guaranty or any part hereof is invalid, illegal or
unenforceable.
12. Headings. Headings are used for reference purposes only and do not affect the meaning
or interpretation of this Guaranty.
13. Parties in Interest. This Guaranty shall be binding upon and inure solely to the
benefit of each party hereto and their respective successors and permitted assigns, and nothing in
this Guaranty, express or implied, is intended to or shall confer upon any other Person any rights,
benefits or remedies of any nature whatsoever under or by reason of this Guaranty.
[Signature page follows]
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IN WITNESS WHEREOF, the undersigned have executed and delivered this Guaranty as of the date
first above written.
| PRIDES CAPITAL FUND I, L.P. | ||||||
| By: Prides Capital Partners, LLC, its general partner | ||||||
| By: | /s/ Xxxxxx Xxxxxx | |||||
| Name: Xxxxxx Xxxxxx | ||||||
| Title: Managing Member | ||||||
| PEGASUS SOLUTIONS, INC. |
||||
| By: | /s/ Xxxx X. Xxxxx, III | |||
| Name: | Xxxx X. Xxxxx, III | |||
| Title: | Chairman and Chief Executive Officer | |||
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