Common use of Transaction Terms Clause in Contracts

Transaction Terms. (a) Parent, Merger Sub, the Sponsors and the VS Parties each agree to pursue, and cooperate with each other with respect to, the transactions contemplated by the Merger Agreement, the Equity Financing, the Debt Financing and the Rollover Investment (collectively, the “Transactions”) in accordance with the terms of this Agreement, the Merger Agreement, the Equity Funding Letters, the Debt Commitment Letter and the Rollover Letter; provided, however, that neither Parent nor Merger Sub shall, without the prior written consent of the VS Parties and Vector, and neither Parent nor Merger Sub shall commit to, or enter into any amendment, modification, waiver or alteration (which shall include any change in price) of the Merger Agreement, the Equity Funding Letter or the Debt Financing Letter that (i) could reasonably be expected to materially and adversely impact the VS Parties or Vector, as the case may be, (ii) alters the form or amount of merger consideration, waives the satisfaction of any of obligations of Parent and Merger Sub to effect the Closing as set forth in Sections 6.1 and 6.2 of the Merger Agreement or alters the amount or conditions under which the Parent Termination Fee or Damages Remedy would be payable by Parent or (iii) changes the structure or intended tax treatment of the Merger or any of the Transactions (any alteration, modification, waiver or amendment described in clause (i), (ii) or (iii) above that was not consented to in writing by the VS Parties, a “Consent Triggering Event”). Insight hereby agrees to give the VS Parties and Vector advance written notice of any Consent Triggering Event as promptly as practicable following the occurrence of any Consent Triggering Event which has not been previously agreed to in writing by the VS Parties and Vector, and the VS Parties and Vector will notify Insight in writing whether or not such party consents thereto, within 24 hours of receipt of such notice, or in the case of a Consent Triggering Event that relates to a notice period described in Section 5.2(e) or Section 5.2(f) of the Merger Agreement (a “Matching Period”), then in no event later than the end of such Matching Period. (b) The Sponsors and the VS Parties hereby agree that upon receipt by Parent or Merger Sub of any Termination Fee that may be payable by the Company to Parent or Merger Sub in connection with a termination of the Merger Agreement, that Parent or Merger Sub, as the case may be, shall pay sixty-two and one-half percent (62.5%) of such Termination Fee to Insight and thirty-seven and one-half percent (37.5%) to Vector, and the VS Parties hereby agree that they shall not be entitled to any portion of any such Termination Fee. In the event that Parent or Merger Sub receives the Parent Expenses and/or Parent, Merger Sub, any of the Sponsors or any of their respective affiliates receives any reimbursement, fee, payment or other amount as a result of any litigation, settlement or other action relating to such termination of the Merger Agreement (other than the Termination Fee), the Debt Commitment Letter or any of the transactions contemplated thereby (the “Parent Expenses Recovery”) in connection with a termination of the Merger Agreement, each of the Sponsors and the VS Parties shall be reimbursed by Parent for their documented, third party, out-of-pocket fees and expenses for legal, due diligence, accounting and travel incurred in connection with the negotiation, preparation, interpretation and execution of this Agreement, the Merger Agreement, the Equity Funding Letters, the Debt Commitment Letter, the Rollover Letter, the Stockholders Agreement and any agreements or other matters relating thereto, including any and all costs and expenses in connection with any action, suit or proceeding brought by any person (other than a party hereto) relating to, or arising from, the transactions contemplated by the Merger Agreement (“Reimbursable Expenses”); provided, in the event that the amount of the Parent Expenses Recovery is not sufficient to reimburse all of the Sponsors’ and the VS Parties’ Reimbursable Expenses, in each case in connection with the transactions contemplated by the Merger Agreement, such reimbursement shall be made to the Sponsors, on the one hand, and the VS Parties, on the other hand, on a pro rata basis based on the relative amount of their respective Reimbursable Expenses. Insight shall have an obligation to pay, or reimburse Parent, for thirty-one and one-quarter percent (31.25%) of any Parent Termination Fee, Damages Remedy and/or amounts pursuant to Section 7.3(d) of the Merger Agreement, in each case that Parent or Merger Sub actually become required to pay to the Company pursuant to the terms of the Merger Agreement (collectively, “Parent Obligations”), Vector shall have an obligation to pay, or reimburse Parent, for eighteen and three-quarter percent (18.75%) of any Parent Obligations, and the VS Parties, jointly and severally, shall have an obligation to pay, or reimburse Parent, for fifty percent (50%) of any Parent Obligations, and each of the parties hereto agrees that (1) the Parent Obligations shall be first paid from any amount by which any Parent Expense Recovery exceeds the aggregate Reimbursable Expenses of the parties, and (2) if the Parent Expense Recovery exceeds the Reimbursable Expenses and the Parent Obligations actually due and payable in accordance with the Merger Agreement, then the remaining balance of such Parent Expense Recovery shall be allocated among the Sponsors and the VS Parties in accordance with the percentages set forth in this sentence above. The parties hereto further agree to the extent such Parent Expense Recovery is insufficient to satisfy the Parent Obligations, then such unpaid portion of the Parent Obligations shall be allocated equally among the Sponsors on the one hand, and the VS Parties, on the other hand; provided, that if any of the Sponsors or the VS Parties pay any portion of the Parent Obligations pursuant to the Guaranty, or otherwise, in any other proportion than as described herein, then such Sponsor or VS Party shall have a right to contribution from the other parties hereto and shall be entitled to indemnification from the other parties in respect of any costs or expenses (including attorneys fees) expended in enforcing such right of contribution or indemnity; provided, further, in the event that Parent, Merger Sub or any Guarantor (as defined in the Guaranty) becomes obligated to pay any Parent Obligations as a result of (i) any material breach of the Rollover Letter by any VS Party or any VS Party’s failure to fund the Rollover Investment (or any portion thereof) when required to do so pursuant to the terms and conditions of the Rollover Letter (other than a failure to fund the Rollover Investment that results from the exercise of remedies by lenders to the VS Parties for which Rollover Shares are pledged as collateral as of the date hereof pursuant to the agreements set forth on Schedule A hereto (or any financing facility entered into after the date hereof to replace such specified facilities), but in no event excluding any such failure that results from any willful act or omission by any VS Party, it being understood that the failure by any VS Party to use reasonable efforts to avoid any such exercise of remedies, including a failure to use reasonable efforts to refinance such indebtedness on terms that are not materially less favorable to such VS Party and do not require any such VS Party to post any collateral other than Owned Shares or incur any expense (other than any expense that is reasonable or customary for the refinancing of a loan of this type), shall constitute a willful act or omission for purposes of this Section 2(b)), and the Sponsors have irrevocably confirmed that the Equity Financing would be funded at the Closing if the Rollover Investment was funded, then the VS Parties shall, jointly and severally, pay, or cause to be paid (or reimburse Parent, Merger Sub, the Sponsors or any of their respective Affiliates to the extent they have paid, pursuant to the Guaranty or otherwise, any portion of) the full amount of any such Parent Obligations when such amounts are due and payable by Parent pursuant to the terms of the Merger Agreement, (ii) any Sponsor’s failure to fund the Equity Financing when required to do so pursuant to the terms and conditions of the Equity Funding Letters and when the VS Parties have irrevocably confirmed that the Rollover Investment would be funded at the Closing if the Equity Financing was funded, then such Sponsor shall pay, or cause to be paid (or reimburse the other Sponsor(s) and the VS Parties to the extent they have paid, pursuant to the Guaranty or otherwise, any portion of) the full amount of any such Parent Obligations when such amounts are due and payable by Parent pursuant to the terms of the Merger Agreement, or (iii) Insight’s failure to cause Parent or Merger Sub to (A) either perform any action which Parent or Merger Sub was required to perform, or refrain from taking any action which was prohibited, pursuant to the terms of the Merger Agreement, in each case which actions were solely within Insight’s control (for the avoidance of doubt, neither (x) any action that would require the Sponsors to fund any amounts in excess of those expressly set forth in the Equity Funding Letter, nor (y) any Financing Failure that was not directly and proximately caused by a willful or intentional breach by Insight of Section 5.5(a) of the Merger Agreement, shall be a failure to cause the performance of any required action, or the failure to refrain from taking any prohibited action, for purposes of this subsection (A), or (B) obtain the consent of the VS Parties with respect to any Consent Triggering Event without curing, if capable of cure, such failure within two (2) Business Days, then Insight shall pay, or cause to be paid (or reimburse Vector and the VS Parties to the extent they have paid, pursuant to the Guaranty or otherwise, any portion of) the full amount of any such Parent Obligations when such amounts are due and payable by Parent pursuant to the terms of the Merger Agreement; provided, however, that if more than one party has failed to satisfy its obligations per the foregoing, such parties shall pay, or cause to be paid (or reimburse the non-fault parties to the extent they have paid, pursuant to the Guaranty or otherwise, any portion of) an amount of any such Parent Obligations determined ratably in proportion to their overall responsibility for Parent Obligations when such amounts are due and payable by Parent pursuant to the terms of the Merger Agreement. (c) In connection with any claim relating to the payment of the Parent Obligations, the parties hereto agree that neither the Sponsors, on one hand, nor the VS Parties, on the other hand, shall, without the prior written consent of the other party (which consent will not be unreasonably conditioned, withheld or delayed), settle, compromise or offer to settle or compromise such claim relating to the Parent Obligations on a basis that would result in (i) the imposition of a consent order, injunction or decree that would restrict or mandate the future activity or conduct of the other party or any of its Affiliates, (ii) a finding or admission of a violation of Law or violation of the rights of any Person by such other party or any of its Affiliates, or (iii) any monetary liability of the other party that will not be promptly paid or reimbursed by the settling or compromising such claim. (d) On the Closing Date, Parent, the Sponsors and the VS Parties shall (i) enter into that certain Stockholders Agreement, substantially in the form attached hereto as Exhibit B, (ii) cause the Certificate of Incorporation and Bylaws of Parent to be amended and restated to reflect the terms of the Stockholders Agreement, and (iii) cause Parent to enter into management rights letters with each of the Sponsors on customary terms and in a form reasonably acceptable to the Sponsors, in substantially the form attached hereto as Exhibit C. (e) Parent shall, and shall cause the Company to promptly after the consummation of the Merger, reimburse the Sponsors and the VS Parties for all of their Reimbursable Expenses. In addition, to the extent that the Sponsors or the VS Parties incur or continue to have any outstanding Reimbursable Expenses on or after the Closing Date, Parent shall, and shall cause the Company to promptly reimburse such parties their Reimbursable Expenses within ten (10) Business Days of receipt of reasonable documentation evidencing such Reimbursable Expenses.

Transaction Terms. (a) Parent, Merger Sub, the Sponsors Insight and the VS Parties each agree to pursue, and cooperate with each other with respect to, the transactions contemplated by the Merger Agreement, the Equity Financing, the Debt Financing and the Rollover Investment (collectively, the “Transactions”) in accordance with the terms of this Agreement, the Merger Agreement, the Equity Funding Letters, the Debt Commitment Letter and the Rollover Letter; provided, that Insight may, in its sole discretion, elect to assign all or any portion of its equity funding commitment contemplated by the Equity Funding Letters which is in excess of its equity funding commitment in the amount of one hundred and fifty million dollars ($150,000,000) (each such assignee, an “Additional Equity Investor”); provided that each such assignee agrees to be bound by the provisions of this Agreement, the Equity Funding Letters, the Guaranty and each other agreement or document entered into by Insight in connection with this transaction, in a written instrument reasonably satisfactory to Insight and the VS Parties, pursuant to which such assignee shall be bound by all of the obligations applicable to Insight, and Insight shall have the right, power and authority to act on behalf of such assignees with respect to the Transactions. Insight may elect to cause Parent and Merger Sub to amend, modify or alter any of the terms of the Merger Agreement, the Equity Funding Letter or the Debt Financing Letter (or any other Exhibit thereto) after consultation, in good faith, with VS; provided, however, that neither Parent nor Merger Sub shallInsight shall not, without the prior written consent of the VS Parties and VectorParties, permit Parent or Merger Sub to, and neither Parent nor Merger Sub shall commit to, or enter into any amendment, modification, waiver or alteration (which shall include any change in price) of the Merger Agreement, the Equity Funding Letter or the Debt Financing Letter that (i) could reasonably be expected to materially and adversely impact the VS Parties or Vector, as the case may beParties, (ii) alters the form or amount of merger consideration, waives the satisfaction of any of obligations of Parent and Merger Sub to effect the Closing as set forth in Sections 6.1 and 6.2 of the Merger Agreement or alters the amount or conditions under which the Parent Termination Fee or Damages Remedy would be payable by Parent or (iii) changes the structure or intended tax treatment of the Merger or any of the Transactions (any alteration, modification, waiver or amendment described in clause (i), (ii) or (iii) above that was not consented to in writing by the VS Parties, a “Consent Triggering Event”). Insight hereby agrees to give the VS Parties and Vector advance written notice of any Consent Triggering Event as promptly as practicable following the occurrence of any Consent Triggering Event which has not been previously agreed to in writing by the VS Parties and VectorParties, and the VS Parties and Vector will notify Insight in writing whether or not such party VS Parties consents thereto, within 24 hours of receipt of such notice, or in the case of a Consent Triggering Event that relates to a notice period described in Section 5.2(e) or Section 5.2(f) of the Merger Agreement (a “Matching Period”), then in no event later than the end of such Matching Period. (b) The Sponsors and the VS Parties hereby agree that upon receipt by Parent or Merger Sub they shall not be entitled to any portion of any Termination Fee that may be payable by the Company to Parent or Merger Sub in connection with a termination of the Merger Agreement, that Parent or Merger Sub, as the case may be, shall pay sixty-two and one-half percent (62.5%) of such Termination Fee to Insight and thirty-seven and one-half percent (37.5%) to Vector, and the VS Parties hereby agree that they shall not be entitled to any portion of any such Termination Fee. In the event that Parent or Merger Sub receives the Parent Expenses and/or Parent, Merger Sub, any of the Sponsors Insight or any of their respective affiliates receives any reimbursement, fee, payment or other amount as a result of any litigation, settlement or other action relating to such termination of the Merger Agreement (other than the Termination Fee), the Debt Commitment Letter or any of the transactions contemplated thereby (the “Parent Expenses Recovery”) in connection with a termination of the Merger Agreement, each of the Sponsors Insight and the VS Parties shall be reimbursed by Parent for their documented, third party, out-of-pocket fees and expenses for legal, due diligence, accounting and travel incurred in connection with the negotiation, preparation, interpretation and execution of this Agreement, the Merger Agreement, the Equity Funding Letters, the Debt Commitment Letter, the Rollover Letter, the Stockholders Agreement and any agreements or other matters relating thereto, including any and all costs and expenses in connection with any action, suit or proceeding brought by any person (other than a party hereto) relating to, or arising from, the transactions contemplated by the Merger Agreement (“Reimbursable Expenses”); provided, in the event that the amount of the Parent Expenses Recovery is not sufficient to reimburse all of the Sponsors’ Insight’s and the VS Parties’ Reimbursable Expenses, in each case in connection with the transactions contemplated by the Merger Agreement, such reimbursement shall be made to the SponsorsInsight, on the one hand, and the VS Parties, on the other hand, on a pro rata basis based on the relative amount of their respective Reimbursable Expenses. Insight Insight, on the one hand, and the VS Parties, jointly and severally on the other, shall each have an obligation to pay, or reimburse Parent, for thirty-one and one-quarter fifty percent (31.2550%) of any Parent Termination Fee, Damages Remedy and/or amounts pursuant to Section 7.3(d) of the Merger Agreement, in each case that Parent or Merger Sub actually become required to pay to the Company pursuant to the terms of the Merger Agreement (collectively, “Parent Obligations”), Vector shall have an obligation to pay, or reimburse Parent, for eighteen and three-quarter percent (18.75%) of any Parent Obligations, and the VS Parties, jointly and severally, shall have an obligation to pay, or reimburse Parent, for fifty percent (50%) of any Parent Obligations, and each of the parties hereto agrees that (1) the Parent Obligations shall be first paid from any amount by which any Parent Expense Recovery exceeds the aggregate Reimbursable Expenses of the parties, and (2) if the Parent Expense Recovery exceeds the Reimbursable Expenses and the Parent Obligations actually due and payable in accordance with the Merger Agreement, then the remaining balance of such Parent Expense Recovery shall be allocated equally among Insight, on the Sponsors one hand, and the VS Parties in accordance with Parties, on the percentages set forth in this sentence aboveother hand. The parties hereto further agree to the extent such Parent Expense Recovery is insufficient to satisfy the Parent Obligations, then such unpaid portion of the Parent Obligations shall be allocated equally among the Sponsors Insight, on the one hand, and the VS Parties, on the other hand; provided, that if any of Insight, on the Sponsors one hand, or the VS Parties Parties, on the other, pay any portion of the Parent Obligations pursuant to the Guaranty, or otherwise, in any other proportion than as described herein, then such Sponsor Insight, on the one hand, or the VS Party Parties, on the other, shall have a right to contribution from the other parties hereto party and shall be entitled to indemnification from the other parties party in respect of any costs or expenses (including attorneys fees) expended in enforcing such right of contribution or indemnity; provided, further, in the event that Parent, Merger Sub or any Guarantor (as defined in the Guaranty) becomes obligated to pay any Parent Obligations as a result of (i) any material breach of the Rollover Letter by any VS Party or any VS Party’s failure to fund the Rollover Investment (or any portion thereof) when required to do so pursuant to the terms and conditions of the Rollover Letter (other than a failure to fund the Rollover Investment that results from the exercise of remedies by lenders to the VS Parties for which Rollover Shares are pledged as collateral as of the date hereof pursuant to the agreements set forth on Schedule A hereto (or any financing facility entered into after the date hereof to replace such specified facilities), but in no event excluding any such failure that results from any willful act or omission by any VS Party, it being understood that the failure by any VS Party to use reasonable efforts to avoid any such exercise of remedies, including a failure to use reasonable efforts to refinance such indebtedness on terms that are not materially less favorable to such VS Party and do not require any such VS Party to post any collateral other than Owned Shares or incur any expense (other than any expense that is reasonable or customary for the refinancing of a loan of this type), shall constitute a willful act or omission for purposes of this Section 2(b)), and the Sponsors have Insight has irrevocably confirmed that the Equity Financing would be funded at the Closing if the Rollover Investment was funded, then the VS Parties shall, jointly and severally, pay, or cause to be paid (or reimburse Parent, Merger Sub, the Sponsors Insight or any of their respective Affiliates to the extent they have paid, pursuant to the Guaranty or otherwise, any portion of) the full amount of any such Parent Obligations when such amounts are due and payable by Parent pursuant to the terms of the Merger Agreement, or (ii) any SponsorInsight’s failure to (A) fund the Equity Financing when required to do so pursuant to the terms and conditions of the Equity Funding Letters Letters, and when the VS Parties have irrevocably confirmed that the Rollover Investment would be funded at the Closing if the Equity Financing was funded, then such Sponsor shall pay, or cause to be paid (or reimburse the other Sponsor(sB) and the VS Parties to the extent they have paid, pursuant to the Guaranty or otherwise, any portion of) the full amount of any such Parent Obligations when such amounts are due and payable by Parent pursuant to the terms of the Merger Agreement, or (iii) Insight’s failure to cause Parent or Merger Sub to (A) either perform any action which Parent or Merger Sub was required to perform, or refrain from taking any action which was prohibited, pursuant to the terms of the Merger Agreement, in each case which actions were solely within Insight’s control (for the avoidance of doubt, neither (x) any action that would require the Sponsors Insight to fund any amounts in excess of those expressly set forth in the Equity Funding LetterLetters, nor (y) any Financing Failure that was not directly and proximately caused by a willful or intentional breach by Insight of Section 5.5(a) of the Merger Agreement, shall be a failure to cause the performance of any required action, or the failure to refrain from taking any prohibited action, for purposes of this subsection (AB)), or (BC) obtain the consent of the VS Parties with respect to any Consent Triggering Event without curing, if capable of cure, such failure within two (2) Business Days, then Insight shall pay, or cause to be paid (or reimburse Vector and the VS Parties to the extent they have paid, pursuant to the Guaranty or otherwise, any portion of) the full amount of any such Parent Obligations when such amounts are due and payable by Parent pursuant to the terms of the Merger Agreement; provided, however, that if more than one party has failed to satisfy its obligations per the foregoing, such parties shall pay, or cause to be paid (or reimburse the non-fault parties to the extent they have paid, pursuant to the Guaranty or otherwise, any portion of) an amount of any such Parent Obligations determined ratably in proportion to their overall responsibility for Parent Obligations when such amounts are due and payable by Parent pursuant to the terms of the Merger Agreement. (c) In connection with any claim relating to the payment of the Parent Obligations, the parties hereto agree that neither the SponsorsInsight, on one hand, nor the VS Parties, on the other hand, shall, without the prior written consent of the other party (which consent will not be unreasonably conditioned, withheld or delayed), settle, compromise or offer to settle or compromise such claim relating to the Parent Obligations on a basis that would result in (i) the imposition of a consent order, injunction or decree that would restrict or mandate the future activity or conduct of the other party or any of its Affiliates, (ii) a finding or admission of a violation of Law or violation of the rights of any Person by such other party or any of its Affiliates, or (iii) any monetary liability of the other party that will not be promptly paid or reimbursed by the settling or compromising such claim. (d) On the Closing Date, Parent, the Sponsors Insight and the VS Parties shall (i) enter into that certain Stockholders Agreement, substantially in the form attached hereto as Exhibit B, (ii) cause the Certificate of Incorporation and Bylaws of Parent to be amended and restated in a form to be agreed upon between Insight and the VS Parties within ten (10) Business Days of the date hereof, which shall reflect the terms of the Stockholders Agreement, and (iii) cause Parent to enter into management rights letters with each of the Sponsors Insight on customary terms and in a form reasonably acceptable to the SponsorsInsight, in substantially the form attached hereto as Exhibit C.C. Each Additional Equity Investor shall execute a joinder to that certain Stockholders Agreement thereby becoming parties thereto as Institutional Investors (as defined therein). (e) Parent shall, and shall cause the Company to promptly after the consummation of the Merger, reimburse the Sponsors Insight and the VS Parties for all of their Reimbursable Expenses. In addition, to the extent that the Sponsors or the VS Parties incur or continue to have any outstanding Reimbursable Expenses on or after the Closing Date, Parent shall, and shall cause the Company to promptly reimburse such parties their Reimbursable Expenses within ten (10) Business Days of receipt of reasonable documentation evidencing such Reimbursable Expenses.