LIMITED GUARANTEE
Exhibit 2.2
LIMITED GUARANTEE, dated as of December 14, 2010 (this “Limited Guarantee”), is made by H.I.G.
Bayside Debt & LBO Fund II, L.P., a Delaware limited partnership (the “Guarantor”), in favor of
Matrixx Initiatives, Inc., a Delaware corporation (the “Guaranteed Party”). Reference is hereby
made to that certain Agreement and Plan of Merger dated as of the date hereof (as amended,
restated, supplemented or otherwise modified from time to time, the “Merger Agreement”) by and
among Wonder Holdings Acquisition Corp. (“Parent”), a Delaware corporation, Wonder Holdings, Inc.,
a Delaware corporation and wholly-owned subsidiary of Parent (“Merger Sub”), and the Guaranteed
Party, pursuant to which Merger Sub has agreed to (i) commence a tender offer for all of the
outstanding Shares (the “Offer”) and (ii) if the Offer is completed on the terms and subject to the
conditions set forth in the Merger Agreement, merge with and into the Guaranteed Party (the
“Merger”), with the Guaranteed Party surviving the Merger as a wholly-owned subsidiary of Parent.
Capitalized terms used but not defined herein shall have the meaning ascribed to them in the Merger
Agreement.
In consideration of, and as an inducement to the Guaranteed Party entering into the Merger
Agreement and performing its obligations thereunder, the Guarantor, intending to be legally bound,
hereby absolutely, irrevocably and unconditionally, guarantees to the Guaranteed Party, but only up
to the Cap (as defined below), as primary obligor and not merely as surety, the due and punctual
payment, performance and discharge of all liabilities and obligations of Parent and Merger Sub (or
each of them) under the Merger Agreement, including, without limitation, all liabilities and
obligations to pay or perform, or to provide adequate funds for the payment of (a) the Offer Price,
on terms and subject to the conditions set forth in the Merger Agreement, for each of the tendered
Shares pursuant to Section 1.1 of the Merger Agreement, (b) the Per Share Merger Consideration for
each of the Excluded Shares pursuant to Sections 4.1 and 4.2 of the Merger Agreement, (c) any
obligations of Parent or Merger Sub under Section 6.5 of the Merger Agreement, (d) any liabilities
or damages incurred or suffered by the Guaranteed Party as a result
of the breach by the Parent or Merger Sub of any of their representations, warranties, covenants or
other agreements under the Merger Agreement, including, but not limited to, any liabilities or
damages arising or resulting from the termination of the Merger Agreement pursuant to Section
8.3(b), and (e) Parent’s and Merger Sub’s obligations pursuant to Sections 9.5(c) and (d) of the
Merger Agreement to perform specifically the terms and provisions of the Merger Agreement to the
extent such specific performance is found in a judicial determination (or a settlement tantamount
thereto) to be required pursuant to the terms and conditions of the Merger Agreement
or to pay monetary damages awarded in lieu of specific performance as completed under Section
9.5(d) of the Merger Agreement (collectively, the “Obligations”); provided, however, that the
maximum aggregate liability of Guarantor hereunder shall not exceed an amount equal to $75,188,696
(the “Cap”), it being understood that in no event shall this Limited Guarantee be enforced without
giving effect to the Cap. This Limited Guarantee may not be revoked or terminated and shall remain
in full force and effect and shall be binding on the Guarantor and its successors and assigns until
all of the Obligations have been satisfied in full; provided, however, that the obligation of
Guarantor pursuant to this Limited Guarantee shall terminate and be of no further force or effect
immediately upon the earlier of (a) the Effective Time, (b) the termination
of the Merger Agreement in accordance with its terms other than a termination pursuant to Sections
8.2, 8.3(b) or 8.3(c) thereof, and (c) 180 days after a termination of the Merger Agreement
pursuant to Sections 8.2, 8.3(b) or 8.3(c) thereof, unless prior to the termination pursuant to
Sections 8.2, 8.3(b) or 8.3(c) or the end of the 180 day period referred to in this clause (c), the
Guaranteed Party shall have commenced a legal proceeding alleging amounts payable by the Guarantor
to the Guaranteed Party under this Limited Guarantee or payable by the Parent or Merger Sub under
the Merger Agreement, in which case this Limited Guarantee shall terminate upon either (i) a final,
non-appealable resolution of such legal proceeding and payment of the Obligations (subject to the
Cap), if applicable or (ii) a written agreement signed by each of the parties hereto terminating
this Limited Guarantee. All payments hereunder shall be made in lawful money of the United States,
in immediately available funds.
This Limited Guarantee is an absolute, unconditional, irrevocable and continuing (irrespective of
any modification, amendment or waiver of or any consent to departure from the Merger Agreement or
the Equity Financing Commitment that may be agreed to by Parent or Merger Sub as further described
in Section 2 below) guarantee of the full and punctual payment and performance of the Obligations
(subject, in all respects, to the Cap). Without limiting the foregoing, this Limited Guarantee is a
guarantee of payment and not of collection and in no way conditioned upon any requirement that the
Guaranteed Party first attempt to collect the Obligations from the Parent or Merger Sub or resort
to any security or other means of collecting payment. Should the Parent or Merger Sub default in
the payment or performance of any of the Obligations, the Guarantor’s obligations hereunder shall
become immediately due and payable to
the Guaranteed Party. In addition, 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 Guarantor’s obligations hereunder. In the event that any payment hereunder is rescinded or
must otherwise be returned for any reason whatsoever, Guarantor shall remain liable hereunder as if
such payment had not been made.
Subject to and in furtherance of the foregoing, the Guarantor acknowledges that the Guaranteed
Party may, in its sole discretion, bring and prosecute a separate action or actions against the
Guarantor for the full amount of the Obligations (subject to the Cap).
2. CHANGES IN OBLIGATIONS, CERTAIN WAIVERS.
a) 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 (i) the failure or
delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any
right or remedy against Guarantor, Parent, Merger Sub or any other Person; (ii) 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 made in accordance with the terms thereof or any
agreement evidencing, securing or otherwise executed in connection with any of the
Obligations; (iii) the addition, substitution or release of any Person interested in the
transactions contemplated by the Merger Agreement; (iv) any change in the corporate
existence, structure or ownership of the Parent, Merger Sub or any other
Person interested in the transactions contemplated by the Merger Agreement; (v) any
insolvency, bankruptcy, reorganization or other similar proceeding affecting the Parent,
Merger Sub or any other Person; (vi) the existence of any claim, set-off or other right
which the Guarantor may have at any time against Parent, Merger Sub or the Guaranteed Party,
whether in connection with the Obligations or otherwise; (vii) the adequacy of any means the
Guaranteed Party may have of obtaining payment related to the Obligations; or (viii) the
value, genuineness, validity, regularity, illegality or enforceability according to their
terms of the Merger Agreement or the Equity Financing Commitment. The Guarantor waives
promptness, diligence, notice of the acceptance of this Limited Guarantee and of the
Obligations, presentment, demand for payment, notice of nonperformance, default, dishonor
and protest, notice of any Obligations incurred and all other notices of any kind, 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
the Parent or Merger Sub or any other Person interested in the transactions contemplated by
the Merger Agreement, and all suretyship defenses generally, other than defenses to the
payment of the Obligations that are available to the Parent and Merger Sub (a) under the
Merger Agreement (other than any such defenses arising out of, or due to, or as a result of,
the insolvency or bankruptcy of the Parent or Merger Sub (including, without limitation, the
rejection of the Merger Agreement in an insolvency or bankruptcy of the Parent or Merger
Sub)) and (b) in respect of a breach by the Guaranteed Party of this Limited Guarantee. The
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.
b) The Guarantor hereby covenants and agrees that it shall not institute, directly or
indirectly, and shall cause its Affiliates not to institute, directly or indirectly, any
litigation or other proceeding asserting that this Guarantee is illegal, invalid or
unenforceable in accordance with its terms. The Guarantor agrees to pay on demand all
reasonable out-of-pocket expenses (including reasonable fees of counsel) incurred by the
Guaranteed Party in connection with the enforcement of its rights hereunder if the
Guaranteed Party prevails in such litigation or proceeding.
c) The Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights
that it may now have or hereafter acquire against the Parent or Merger Sub that arise from
the existence, payment, performance, or enforcement of the Guarantor’s obligations under or
in respect of this Guarantee or any other agreement in connection with this Guarantee,
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 the Parent or Merger Sub, 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 the Parent or Merger Sub, 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 the Obligations
and all other amounts payable under this Guarantee shall have been paid in full in cash;
provided that the Guarantor shall have the right to cause any other
person to satisfy its payment obligations to the Guaranteed Party hereunder. If any amount
shall be paid to the Guarantor in violation of the immediately preceding sentence at any
time prior to the payment in full of the Obligations and all other amounts payable under
this Guarantee, an amount equal to the lesser of (i) the amount paid to the Guarantor in
violation of the immediately preceding sentence and (ii) all amounts payable under this
Guarantee shall be received and held in trust for the benefit of the Guaranteed Party, shall
be segregated from other property and funds of the Guarantor 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 the Obligations and all other
amounts payable under this Guarantee, in accordance with the terms of the Merger Agreement,
whether matured or unmatured, or to be held as collateral for any of the Obligations or
other amounts payable under this Guarantee thereafter arising.
d) The Guaranteed Party hereby covenants and agrees that it shall not institute, and shall
cause its respective 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 any of the former, current and future equity
holders, controlling persons, directors, officers, employees, agents, Affiliates, members,
managers, general or limited partners or permitted assignees of the Guarantor, Merger Sub or
Parent, or any former, current or future stockholder, controlling person, director, officer,
employee, general or limited partner, member, manager, Affiliate, agent or assignee of any
of the foregoing (those persons and entities described in any of the foregoing clauses, each
being referred to as a “Non-Recourse Party”), except for claims against the Guarantor or its
successors or permitted assigns under, or in connection with, this Limited Guarantee, the
Equity Financing Commitment or the transactions contemplated hereby or thereby and against
the Parent, Merger Sub or their respective successors and assigns under, or in connection
with, the Merger Agreement or the Equity Financing Commitment or the transactions
contemplated thereby. The maximum aggregate liability of the Guarantor, Parent and Merger
Sub under this Limited Guarantee, the Merger Agreement and the Equity Commitment Letter
shall not exceed the Cap.
3. 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
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. The Guaranteed Party shall not have any
obligation to proceed at any time or in any manner against, or exhaust any or all of the Guaranteed
Party’s rights against Parent, Merger Sub or any other Person liable for any Obligations prior to
proceeding against the Guarantor hereunder.
4. REPRESENTATIONS AND WARRANTIES. The Guarantor hereby represents and warrants and covenants that:
a) it is a limited partnership, duly organized, validly existing and in good standing under
the Laws of Delaware;
b) it has all requisite power and authority and has taken all corporate action necessary in
order to execute, deliver and perform its obligations under this Limited Guarantee;
c) the execution, delivery and performance of this Limited Guarantee have been duly
authorized by all necessary action and do not contravene any provision of the Guarantor’s charter,
partnership agreement, operating agreement or similar organizational documents or any Law,
regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or
its assets;
d) all consents, approvals, authorizations, permits of, filings with and notifications to, any
governmental authority necessary for the due execution, delivery and performance of this Limited
Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly
complied with, and no other action by, and no notice to or filing with, any governmental authority
or regulatory body is required in connection with the execution, delivery or performance of this
Limited Guarantee;
e) this Limited Guarantee constitutes a legal, valid and binding obligation of the Guarantor
enforceable against the Guarantor in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating
to or affecting creditors’ rights and to general equity principles; and
f) the Guarantor has the financial capacity to pay and perform its obligations under this
Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this
Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall
remain in force and effect in accordance with the termination provisions set forth herein.
5. NO ASSIGNMENT. Neither the Guarantor nor the Guaranteed Party may assign or delegate their
respective rights, interests or obligations hereunder to any other Person (including by operation
of Law) without the prior written consent of the Guaranteed Party or the Guarantor,
as the case may be.
6. NOTICES. All notices, requests, claims, demands and other communications hereunder shall be
given in writing and shall be deemed to have been duly received (a) upon receipt by hand delivery,
(b) upon receipt after dispatch by registered or certified mail, postage prepaid, (c) on the next
Business Day if transmitted by national overnight courier with confirmation of delivery, or (d)
upon confirmation of delivery if transmitted by facsimile, addressed to each party hereto as set
forth below:
If to Guarantor, to it at:
c/o H.I.G. Capital LLC
0000 Xxxxxxxx Xxx Xxxxx
0000 Xxxxxxxx Xxx Xxxxx
00xx Xxxxx
Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Facsimile: (000) 000-0000
Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxx LLP
000 X. XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxx, P.C.
000 X. XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxx, P.C.
If to the Guaranteed Party, to it at:
Matrixx Initiatives, Inc.
0000 X. Xxxxxxxx Xx.
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Fax: (000) 000-0000
0000 X. Xxxxxxxx Xx.
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
and
Xxxxx & Xxxxxx L.L.P.
Xxx Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
Xxx Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
7. RECOURSE. By its acceptance of the benefits of this Limited Guarantee and subject to its terms,
the Guaranteed Party acknowledges and agrees that no Person other than the Guarantor
has any obligations hereunder and that no recourse shall be had hereunder, or for any claim based
on, in respect of, or by reason of, such obligations hereunder or their creation, against, and
no personal liability shall attach to any Non-Recourse Party, whether by or through attempted
piercing of the corporate veil, by or through a claim by or on behalf of the Guaranteed Party
against the Guarantor, or any Non-Recourse Party by any legal or equitable proceeding, by virtue
of any statute, regulation or applicable Law, or otherwise, it being acknowledged and agreed, for
the avoidance of doubt, that the restriction on liability set forth in the immediately preceding
sentence shall not limit or otherwise apply to the Guaranteed Party’s rights against the Guarantor
under, or in connection with, this Limited Guarantee and the Equity Financing Commitment and
the transactions contemplated hereby and thereby and against the Parent or Merger Sub under,
or in connection with, the Merger Agreement or the Equity Financing Commitment or the transactions
contemplated thereby. The maximum aggregate liability of the Guarantor, Parent and Merger Sub under
this Limited Guarantee, the Merger Agreement and the Equity Financing Commitment shall not exceed
the Cap.
8. GOVERNING LAW; JURISDICTION. This Limited Guarantee, and all claims and causes of action arising
out of, based upon, or related to this Limited Guarantee or the negotiation, execution or
performance hereof, shall be governed by, and construed, interpreted and enforced in accordance
with, the Laws of the State of Delaware, without regard to choice or conflict of law principles
that would result in the application of any Laws other than the Laws of the State of Delaware. Each
of the parties hereto irrevocably submits to the exclusive jurisdiction of the Court of Chancery of
the State of Delaware for the purpose of any action arising out of or relating to this Limited
Guarantee, and each of the parties hereto irrevocably agrees that all claims in respect to such
action may be heard and determined exclusively in the Court of Chancery of the State of Delaware.
Each of the parties hereto agrees that a final judgment in any action shall be conclusive and may
be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
Each of the parties hereto irrevocably consents to the service of any summons and complaint and any
other process in any other action relating to the this Limited Guarantee, on behalf of itself or
its property, by the personal delivery of copies of such process to such party in accordance with
Section 6 hereof. Nothing in this Section 8 shall affect the right of any party hereto to serve
legal process in any other manner permitted by Law.
9. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW ANY AND ALL RIGHT SUCH PARTY MAY HAVE TO TRIAL BY JURY IN ANY LEGAL
ACTION, SUIT OR PROCEEDING BETWEEN THE PARTIES HERETO ARISING OUT OF, BASED UPON OR RELATING TO
THIS LIMITED GUARANTEE OR THE NEGOTIATION, EXECUTION OR PERFORMANCE HEREOF.
10. COUNTERPARTS. This Limited Guarantee may be executed by facsimile or electronic (including.pdf) transmission and 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.
11. MISCELLANEOUS.
a) This Limited Guarantee, the Equity Financing Commitment and the Merger Agreement represent
all agreements between the parties relative to the subject matter hereof. No modification or waiver
of any provision hereof shall be enforceable unless agreed to by the Guaranteed Party and the
Guarantor in writing.
b) Any provision hereof that is prohibited or unenforceable in any situation or in any
jurisdiction shall be, as to such jurisdiction or situation, ineffective solely to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any situation or jurisdiction shall not invalidate or
render unenforceable such provision in any other situation or jurisdiction.
c) The descriptive headings herein are inserted for convenience of reference only and are not
intended to be part of or to affect the meaning or interpretation of this Limited Guarantee.
d) All parties acknowledge that each party and its counsel have reviewed this Limited
Guarantee and that any rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this Limited Guarantee.
e) The Guarantor hereby agrees that irreparable damages would occur in the event that any of
the provisions of this Guarantee were not performed in accordance with the terms hereof, and that
the Guaranteed Party shall be entitled to an injunction, specific performance and other equitable
relief to prevent breaches of this Guarantee and to enforce specifically the terms and provisions
hereof, this being in addition to any other remedy to which the Guaranteed Party is entitled at law
or in equity. The Guarantor agrees that it will not oppose the granting of an injunction, specific
performance and other equitable relief on the basis that the Guaranteed Party has an adequate
remedy at law or an award of specific performance is not an appropriate remedy for any reason at
law or equity. In the event that the Guaranteed Party is seeking an injunction or injunctions to
prevent breaches of this Limited Guarantee and to enforce specifically the terms and provisions of
this Limited Guarantee, the Guaranteed Party shall not be required to provide any bond or other
security in connection with any such order or injunction.
(signature page to follow)
[
IN WITNESS WHEREOF, the Guarantor has caused this Limited Guarantee to be executed and
delivered as of the date first written above.
| H.I.G. BAYSIDE DEBT & LBO FUND II, L.P. | ||||||
| By: | H.I.G. Bayside Advisors II, LLC | |||||
| Its: | General Partner | |||||
| By: | H.I.G.-GPII, Inc. | |||||
| Its: | Manager | |||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Its: Vice President and General Counsel | ||||
Accepted and Agreed
MATRIXX INITIATIVES, INC.
MATRIXX INITIATIVES, INC.
By: |
/s/ Xxxxxxx Xxxxxx |
||||
Name:
|
Xxxxxxx Xxxxxx |
||||
Title:
|
President and Chief Executive Officer
|
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