Common use of Equity Backstop Clause in Contracts

Equity Backstop. (a) Subject to Sections 2(b) and 2(c) of this letter agreement in all respects, if Parent and/or Merger Sub shall have any liability to the Company under the Merger Agreement that cannot be satisfied out of the assets of Parent and/or Merger Sub, Symphony II-A shall make equity contributions to Parent (which shall, to the extent needed, be contributed by Parent to Merger Sub) from time to time in an aggregate amount equal to those liabilities, subject to a maximum aggregate amount of the Commitment Amount (those obligations of Symphony II-A, subject to that cap and any reduction described in the next two sentences, the "Backstop Obligation"). Any contribution by Symphony II-A to Parent pursuant to this Section 2(a) shall reduce the Commitment Amount of Symphony II-A under this letter agreement on a dollar-for-dollar basis, and any amount invested in Parent by Symphony II-A in respect of the Commitment Amount shall reduce the Backstop Obligation of Symphony II-A under this letter agreement on a dollar-for-dollar basis. The Backstop Obligation may be satisfied by a contribution to Parent by Symphony II-A, any of its Affiliates or any third party (and, if so contributed by a third party, the amount of that contribution shall reduce Symphony II-A's obligations in respect of the Commitment Amount and the Backstop Obligation on a dollar-for-dollar basis). Any contribution contemplated by this Section 2(a) shall be made promptly after the earlier to occur of: (i) the execution and delivery of any settlement agreement to which the Company and Parent are parties relating to and finally resolving any liability by Parent and/or Merger Sub to the Company under the Merger Agreement, provided that there shall have been executed and delivered by the Company a stipulation of dismissal with prejudice in a form prepared by (and acceptable to) Symphony II-A or (ii) the entry by a court of competent jurisdiction of a final judgment no longer subject to appeal or other avenue of review determining that a liability by Parent and/or Merger Sub to the Company exists under the Merger Agreement. Symphony II-A further acknowledges and agrees that, subject to the remainder of this letter agreement, the Backstop Obligation is absolute and unconditional. (b) (i) In any claim asserted by the Company against Parent, Merger Sub and/or Symphony II-A, any of their respective Affiliates or any of the foregoing's directors, officers, agents, employees, general or limited partners, members or other investors, including, but not limited to, any claim that arises out of or relates in any way to the Agreements or this letter agreement or the transactions contemplated by any of them or the breach or claimed breach hereof or thereof, the Company shall be entitled to only a single recovery, and that recovery shall be from Symphony II-A as specified in Section 2(a) of this letter agreement; (ii) such recovery shall be Parent's and the Company's sole and exclusive remedy with respect to any such claim (without duplication), and all other damages or remedies, at law or in equity (including provisional remedies) are waived; (iii) it is the intent of the Company that the limitations imposed hereby on remedies and the measure of damages shall apply, regardless of the theory or theories upon which recovery hereunder is sought; and (iv) this paragraph shall survive any expiration or termination of the Merger Agreement, the CVR Agreement or this letter agreement. (c) Section 2(a) of this letter agreement (and the parties' respective rights and obligations under Section 2(a)) shall terminate, and shall no longer have any force or effect, on and after the earlier to occur of (i) the date that Symphony II-A shall have invested the Commitment Amount in Parent and (ii) the Effective Time.