LIMITED GUARANTEE
Exhibit (d)(iv)
This Limited Guarantee (this “Guarantee”) is made as of January 27, 2021, by The Veritas Capital Fund VII, L.P., a Delaware limited partnership (the “Guarantor”), in favor of Perspecta Inc., a Nevada
corporation (the “Company”). Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to such terms in the Agreement (as defined below).
WHEREAS, reference is made to that certain Agreement and Plan of Merger (as amended from time to time, the “Agreement”), dated as of the date hereof, by and among the Company, Jaguar ParentCo Inc., a Delaware
corporation (“Parent”), and Jaguar Merger Sub Inc., a Nevada corporation and wholly owned Subsidiary of Parent (“Merger Sub”).
NOW, THEREFORE, as an inducement to the Company to enter into the Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the Guarantor
undertakes and agrees for the benefit of the Company as follows:
1. The Guarantor hereby absolutely, unconditionally and irrevocably guarantees (subject to the Cap (as defined below)) the due and punctual payment to the Company of (a)(i)
the Parent Termination Fee, if and when due and payable pursuant to Section 8.4(d) or Section 8.4(e) of the Agreement and (ii) any amounts payable by Parent pursuant to Section 8.4(g) of the Agreement (subject, in each case, to Section 8.4(g),
Section 8.4(h), Section 8.4(k) and Section 8.4(l) of the Agreement) (collectively, the “Parent Termination Fee Obligations”), and (b) Parent’s reimbursement and/or indemnification obligations expressly set forth in Section 6.16(e) of the
Agreement (collectively, the “Reimbursement Obligations”, and together with the Parent Termination Fee Obligations, each, an “Obligation”, and collectively, the “Obligations”). Notwithstanding any of the terms or conditions of
this Guarantee: (i) under no circumstance shall the maximum aggregate liability of the Guarantor to the Company under this Guarantee exceed, in the aggregate, an amount equal to $252,534,936 (the “Cap”) for any reason (it being understood
that this Guarantee may not be enforced without giving effect to the Cap and Sections 7 and 13 below); (ii) this Guarantee may be enforced for the payment of money only (subject to the Cap), and under no circumstances shall the
Guarantor be liable under or in connection with the Agreement, this Guarantee, or any of the transactions contemplated thereby or hereby, for special, incidental, consequential, exemplary or punitive damages; (iii) in no event shall the Guarantor be
required to pay an amount in the aggregate in excess of the Cap to any Person pursuant to, under, or in respect of this Guarantee; and (iv) the Guarantor shall not have any obligation or liability to any Person relating to or under or arising out of
or in connection with the Agreement, this Guarantee or any of the transactions contemplated thereby or hereby, other than as expressly set forth herein or in that certain Equity Commitment Letter, dated as of the date hereof, from the Guarantor to
Parent (the “Equity Commitment Letter”). The Guarantor shall make prompt payment (in any event, no later than five business days after written demand by the Company therefor) to the Company of the amount (subject to the Cap) of the
Obligations, if and when such amount is due under the terms of the Agreement. In furtherance of the foregoing, but subject to Section 2 below, the Guarantor acknowledges that this Guarantee is one of payment, not collection, and that the
Company may, in its sole discretion, bring and prosecute a separate action or actions against the Guarantor for the full amount (subject to the Cap) of the Obligations, regardless of whether action is brought against Parent or Merger Sub or whether
Parent or Merger Sub or any other Person is joined in any such action or actions.
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2. Notwithstanding anything to the contrary contained in this Guarantee but subject to Section 9, the Company agrees that, to the extent Parent and Merger Sub are relieved of
all or any portion of the Obligations by the complete and indefeasible satisfaction thereof or pursuant to any written agreement with the Company entered into prior to the Closing (any amount so satisfied or relieved, the “Reduction Amount”),
the Cap shall be reduced by an amount equal to the Reduction Amount.
3. The Guarantor represents and warrants to the Company that:
(a) The Guarantor is a limited partnership, validly existing and in good standing under the laws of the State of Delaware, and has all requisite power and authority necessary
to execute and deliver this Guarantee, and to perform its obligations hereunder. The execution, delivery and performance by the Guarantor of this Guarantee have been approved by the requisite limited partnership action, and no other action on the
part of the Guarantor is necessary to authorize the execution, delivery and performance by the Guarantor of this Guarantee.
(b) This Guarantee has been duly executed and delivered by the Guarantor and, assuming due authorization, execution and delivery of this Guarantee by the Company, constitutes
legal, valid and binding obligations of the Guarantor, enforceable against the Guarantor in accordance with its terms, subject to applicable bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and similar laws now or hereafter
in effect relating to or affecting creditors’ rights and remedies generally and to general principles of equity. Neither the execution and delivery of this Guarantee by the Guarantor nor performance by the Guarantor of its obligations pursuant to
this Guarantee will (i) conflict with or violate any provision of the organizational documents of the Guarantor, (ii) violate, in any material respect, any law, rule, regulation, judgment, writ, stipulation or injunction of any Governmental Authority
applicable to the Guarantor or (iii) violate or constitute a default under any of the terms, conditions or provisions of any material contract to which the Guarantor is a party.
(c) The Guarantor has the financial capacity and uncalled capital commitments to pay and perform the guaranteed obligations hereunder, and all funds necessary for it to
fulfill its obligations hereunder shall be available to it for as long as this Guarantee shall remain in effect. Without limiting the generality of the foregoing the Guarantor has (i) uncalled capital commitments at least equal to the Cap and (ii)
the right to call capital from its limited partners (including in a capital call solely to fund commitments under this Guarantee), and its limited partners or other investors are bound by an enforceable obligation to fund such capital after such a
capital call by the Guarantor.
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4. The Guarantor agrees that the Obligations shall not be released or discharged, in whole or in part, or otherwise affected by (a) the failure or delay on the part of the
Company to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub or the Guarantor; (b) the existence of any claim, set-off or other right which the Guarantor may have at any time against Parent, Merger Sub or the
Company (other than defenses under the Agreement (excluding any claims, set-offs or other rights arising out of, due to, or as a result of, the insolvency or bankruptcy of Parent or Merger Sub or the failure of Parent or Merger Sub to duly authorize
the execution and delivery of the Agreement)), whether in connection with the Obligations or otherwise; (c) any discharge of the Guarantor as a matter of applicable Law or equity (other than the discharge (i) of the Guarantor with respect to all, or
a portion, of the Obligations as a result of payment of all, or a portion, of the Obligations in accordance with its terms (including as provided in Section 2 above) or as a result of defenses to the payment of the Obligations that would be
available to Parent or Merger Sub under, or in connection with, the Agreement (excluding any claims, set-offs or other rights arising out of, due to, or as a result of, the insolvency or bankruptcy of Parent or Merger Sub or the failure of Parent or
Merger Sub to duly authorize the execution and delivery of the Agreement) or (ii) pursuant to the terms of this Guarantee); (d) any release, waiver, forbearance or discharge, in whole or in part, of any obligation of Parent or Merger Sub contained in
the Agreement (other than (i) as provided in Section 2 above or (ii) as a result of the defenses to the payment of the payment obligation of Parent or Merger Sub available under, or in connection with, the Agreement (excluding any claims,
set-offs or other rights arising out of, due to, or as a result of, the insolvency or bankruptcy of Parent or Merger Sub or the failure of Parent or Merger Sub to duly authorize the execution and delivery of the Agreement)); (e) any change in the
time, place or manner of payment of any of the Obligations or any waiver, amendment or modification of any of the terms or provisions of the Agreement made in accordance with the terms thereof, provided, that
no such change, waiver, amendment or modification shall in any way increase the Cap; (f) the addition, substitution or release of any Person interested in the transactions contemplated by the Agreement; (g) any change in the corporate existence,
structure or ownership of the Guarantor, the Company or any other Person; (h) any default by Parent or Merger Sub under the Agreement; or (i) the adequacy of any other means the Company may have of obtaining repayment of any of the Obligations.
5. To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives: (a) any and all rights or defenses arising by reason of any applicable Law that
would otherwise require any election of remedies by the Company (other than any applicable rights and defenses available to Parent or Merger Sub under, or in connection with, the Agreement (excluding any rights or defenses arising out of, due to, or
as a result of, the insolvency or bankruptcy of Parent or Merger Sub or the failure of Parent or Merger Sub to duly authorize the execution and delivery of the Agreement)); (b) promptness, diligence, grace, notice of the acceptance of this Guarantee
and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the Obligations incurred and all other notices of any kind (other than notices to Parent pursuant to the Agreement), all
defenses that may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect or any right to require the marshaling of assets of Parent, Merger Sub or any other Person now or hereafter liable with
respect to the Obligations or otherwise interested in the transactions contemplated by the Agreement; (c) all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent or Merger Sub under the
Agreement (excluding any rights or defenses arising out of, due to, or as a result of, the insolvency or bankruptcy of Parent or Merger Sub or the failure of Parent or Merger Sub to duly authorize the execution and delivery of the Agreement)); and
(d) any and all notice of the creation, renewal, extension or accrual of the Obligations and notice of or proof of reliance by the Company upon this Guarantee or acceptance of this Guarantee. The Obligations shall conclusively be deemed to have been
created, contracted or incurred in reliance upon this Guarantee, and all dealings between Parent, Merger Sub or the Guarantor, on the one hand, and the Company, on the other hand, shall likewise be conclusively presumed to have been had or
consummated in reliance upon this Guarantee. The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guarantee are knowingly
made in contemplation of such benefits.
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6. When pursuing its rights and remedies hereunder against the Guarantor, the Company shall be under no obligation to pursue such rights and remedies it may have against
Parent, Merger Sub or any other Person for the Obligations or any right of offset with respect thereto, and any failure by the Company to pursue such other rights or remedies or to collect any payments from Parent, Merger Sub or any such other Person
or to realize upon or to exercise any such right of offset, and any release by the Company of any such other Person (other than a release of Parent, the treatment of which shall be governed by Section 2 above) or any right of offset, shall
not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Company.
7. This Guarantee is a continuing Guarantee and shall be binding upon the Guarantor until the complete and indefeasible payment and satisfaction in full (subject to the Cap)
of the Obligations. Notwithstanding the foregoing, this Guarantee shall terminate and the Guarantor shall have no further obligations under this Guarantee as of the earliest of (a) the Closing, (b) with respect to the Parent Termination Fee
Obligations, (i) six months following the valid termination of the Agreement pursuant to its terms in a circumstance in which the Parent Termination Fee is payable pursuant to Section 8.4(d) or Section 8.4(e) of the Agreement (unless the Company
shall have commenced litigation under this Guarantee prior to such date, in which case this Guarantee shall terminate upon the earliest to occur of (A) the complete and indefeasible payment in full of the Parent Termination Fee Obligations (subject
to the Cap) and (B) the final, non-appealable resolution of any and all actions relating to such claim and, if applicable, the complete and indefeasible satisfaction by the Guarantor of any obligations finally determined or agreed to be owed by the
Guarantor), and (ii) the valid termination of the Agreement pursuant to its terms in a circumstance in which the Parent Termination Fee is not payable pursuant to Section 8.4(d) or Section 8.4(e) of the Agreement, and (c) with respect to the
Reimbursement Obligations, six months following the valid termination of the Agreement pursuant to its terms (unless the Company shall have commenced litigation under this Guarantee prior to such date, in which case this Guarantee shall terminate
upon the earliest to occur of (i) the complete and indefeasible payment in full of the Reimbursement Obligations (subject to the Cap) and (ii) the final, non-appealable resolution of any and all actions relating to such claim and, if applicable, the
complete and indefeasible satisfaction by the Guarantor of any obligations finally determined or agreed to be owed by the Guarantor). Notwithstanding the foregoing, in the event that the Company or any of its Subsidiaries or Affiliates asserts in
any Action relating to this Guarantee that the provisions hereof (including Section 1 above, this Section 7 and Section 13 below) limiting the Guarantor’s liability or any other provisions of this Guarantee are illegal,
invalid or unenforceable in whole or in part, or asserts that any theory of liability against the Guarantor, any of its Affiliates (other than Parent or Merger Sub) or any Non-Recourse Party (as defined below) with respect to the transactions
contemplated by the Agreement or this Guarantee other than liability of the Guarantor under this Guarantee (as limited by the provisions hereunder) or asserts that the Guarantor is liable in excess of the Cap, then (A) the obligations of the
Guarantor under this Guarantee shall terminate ab initio and, thereupon, be null and void, (B) if the Guarantor has previously made any payments under this Guarantee it shall be entitled to have such payments
refunded by the Company and (C) neither the Guarantor nor any Parent Parties shall have any liability to the Company under, or with respect to the transaction contemplated by, the Agreement (other than Parent and Merger Sub in accordance with the
express terms and limitations therein) or under this Guarantee; provided that nothing herein is intended to limit the Company’s right to specific performance pursuant to the Equity Commitment Letter or
Section 9.9 of the Agreement to the extent and subject to the terms and limitations set forth therein, respectively.
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8. Each party hereto hereby unconditionally and irrevocably agrees that (a) it shall not institute any Action asserting that this Guarantee is illegal, invalid or
unenforceable in accordance with its terms and (b) this Guarantee shall maintain in full force and effect all consents of any Governmental Authority or other authority that are required to be obtained by it with respect to this Guarantee.
9. The Guarantor hereby agrees that the Obligations shall not be deemed to have been released, dismissed, impaired, reduced, discharged, paid, observed or performed or
affected as the result of the bankruptcy, insolvency, disability, dissolution, termination, receivership, reorganization or lack of corporate or other power of Parent or Merger Sub, and the Guarantor’s liabilities in respect thereof shall continue
and not be discharged, including the case where any payment or performance thereof by Parent or Merger Sub is recovered from or paid over by or on behalf of the Company by reason of a fraudulent transfer by Parent or Merger Sub, or as a preference in
any bankruptcy of Parent or Merger Sub. The Company 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 Company to so file shall not affect the Guarantor’s obligations hereunder. In the event that any payment to the Company in respect of the Obligations is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall
remain liable hereunder with respect to the Obligations as if such payment had not been made, subject to the terms of this Guarantee.
10. No waiver, modification or amendment of any provisions of this Guarantee shall be effective except pursuant to a written agreement signed by the Company and the
Guarantor, and then such waiver shall be effective only in the specific instance and for the purpose for which given. This Guarantee shall be binding upon and inure to the benefit of the successors-in-interest and permitted assigns of each party
hereto. No rights or obligations hereunder shall be assignable (by operation of law or otherwise) by the Guarantor or the Company without the prior written consent of the Company or the Guarantor, as the case may be.
11. This Guarantee may be executed and delivered (including by facsimile or other electronic transmission) in one or more counterparts, and by the different parties hereto in
separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
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12. This Guarantee, and all claims or causes of action (whether at Law, in contract or in tort or otherwise) that may be based upon, arise out of or relate to this Guarantee,
or the negotiation, execution or performance of this Guarantee, shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the principles of conflicts of law thereof; provided, however,
that issues involving the consummation and effects of the Merger will be governed by the laws of the State of Nevada to the extent the application of Nevada law is mandatory. The parties hereto irrevocably submit to the jurisdiction of the Court of
Chancery of the State of Delaware or, if the Court of Chancery of the State of Delaware lacks jurisdiction over such matter, the Superior Court of the State of Delaware and the federal courts of the United States of America located in the State of
Delaware, in connection with any dispute that arises in respect of this Guarantee, and hereby waive, and agree not to assert, as a defense in any action, suit or proceeding for interpretation or enforcement hereof or any such document that it is not
subject thereto or that such action, suit or proceeding may not be brought or is not maintainable in said courts or that venue thereof may not be appropriate or that this Guarantee may not be enforced in or by such courts, and the parties hereto
irrevocably agree that all claims with respect to such action, suit or proceeding shall be heard and determined exclusively by such a Delaware state or federal court. The parties hereto hereby consent to and grant any such court jurisdiction over
the person of such parties and over the subject matter of such dispute and agree that mailing of process or other papers in connection with such action, suit or proceeding in such manner as may be permitted by Law shall be valid and sufficient
service thereof.
13. Notwithstanding anything that may be expressed or implied in this Guarantee or any document or instrument delivered contemporaneously herewith, and notwithstanding the
fact that the Guarantor may be a partnership or limited liability company, by its acceptance of the benefits of this Guarantee, the Company acknowledges and agrees that it has no right of recovery against, and no personal liability shall attach to,
the Guarantor, the Lender Related Parties or any of their respective former, current or future Affiliates, or their respective former, current and future direct or indirect directors, officers, “principals”, general or limited partners, employees,
stockholders, other equity holders, members, managers, agents, assignees, Affiliates, controlling Persons or representatives or any former, current or future direct or indirect directors, officers, “principals”, general or limited partners,
employees, stockholders, other equity holders, members, managers, agents, assignees, Affiliates, controlling Persons or representatives of any of the foregoing, in each case, other than Parent and Merger Sub (collectively, each a “Non-Recourse
Party”) with respect to this Guarantee, the Agreement or the transactions contemplated hereby or thereby, through Parent or Merger Sub or otherwise, whether by or through attempted piercing of the corporate veil, by or through a claim by or on
behalf of Parent, Merger Sub or any other Person against any Non-Recourse Party, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute, regulation or other applicable Law, or otherwise, except for (i)
its rights to recover from the Guarantor under and to the extent provided in this Guarantee and subject always to the Cap, and the other limitations set forth herein and (ii) claims pursuant to third-party beneficiary rights under the Equity
Commitment Letter. The Company further agrees and acknowledges that recourse against the Guarantor under and pursuant to the terms and limitations of this Guarantee and the Equity Commitment Letter shall be the sole and exclusive remedy of the
Company and any of its representatives against the Guarantor and the Non-Recourse Parties in respect of any liabilities or obligations arising under, or in connection with, the Agreement or the transactions contemplated thereby or in respect of any
oral representations made or alleged to be made in connection herewith or therewith, whether at law or equity, in contract, in tort or otherwise.
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14. All notices, requests, claims, demands and other communications hereunder shall be given by the means specified in the Agreement (and shall be deemed given as specified
therein), to the addresses as follows:
If to the Guarantor:
The Veritas Capital Fund VII, L.P.
0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
with a copy, which shall not constitute notice, to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
If to the Company, as provided in the Agreement.
15. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS GUARANTEE IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE
EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH
PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; (II) SUCH
PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THE FOREGOING WAIVER; (III) SUCH PARTY MAKES THE FOREGOING WAIVER VOLUNTARILY AND (IV) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND
CERTIFICATIONS IN THIS SECTION 15.
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IN WITNESS WHEREOF, the Guarantor has duly executed and delivered this Limited Guarantee as of the day first written above.
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GUARANTOR:
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THE VERITAS CAPITAL FUND VII, L.P.
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Veritas Capital Partners VII, L.L.C., as
General Partner
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| By: |
/s/ Xxxxx Xxxxxxxx | |
| Name: Xxxxx Xxxxxxxx | ||
| Title: Authorized Signatory | ||
[Signature Page to Limited Guarantee]
Accepted and agreed as of the date
first above written:
| By: |
/s/ Xxxx X. Xxxxxx | |
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Name: Xxxx X. Xxxxxx | |
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Title: Chairman and CEO |
[Signature Page to Limited Guarantee]
