Recourse to the Escrow Fund. The Escrow Fund shall be available to indemnify the Purchaser Parties, Newco and their respective officers, directors, employees or agents, for any and all Losses (as defined in the Escrow Agreement) incurred or sustained, directly or indirectly, by any of them. The Escrow Fund shall be applied against the Losses in the manner set out in the Escrow Agreement by applying Purchaser Common Shares and Exchangeable Shares in the same ratio as the ratio of Purchaser Common Shares to Exchangeable Shares contributed to the Escrow Fund pursuant to Section 4.1. This Section 4.0 shall be the sole and exclusive remedy available to the Purchaser Parties, Newco and their officers, directors, employees and agents to obtain recovery from the Target Shareholders with respect to any Losses and no such party shall have recourse against the Target Shareholders under this Agreement for any other Losses. Except for the liability of a Target Shareholder with respect to the loss of his Deposited Shares (as defined in the Plan of Arrangement), and his share of any other property included in the Escrow Fund, in satisfaction of Losses in accordance with this Section 4.0 and the terms of the Escrow Agreement, no Target Shareholder shall have any liability to the Purchaser Parties, Newco or any of their respective officers, directors, stockholders, employees or agents for or in respect of any Losses or any other liabilities arising out of this Agreement or the transactions or agreements contemplated herein. Notwithstanding the foregoing, nothing in this Section 4.0 shall limit any remedy the Purchaser may have under any Principal Shareholder Voting Agreement or any remedy Purchaser may have against a particular Target Shareholder for fraud, willful misconduct or intentional misstatement which may have been committed by such Target Shareholder or for fraud, willful misconduct or intentional misstatement which may have been committed by Target and for which such Target Shareholder may be liable in tort.
Recourse to the Escrow Fund. The Escrow Fund shall be available --------------------------- to compensate the Parent and the Surviving Corporation, and their respective officers, directors, employees, agents, Affiliates and Associates for any and all Losses (whether or not involving a Third Party Claim), incurred or sustained by the Parent or Merger Sub, their respective officers, directors, employees, agents, Affiliates or Associates, directly or indirectly, as a result of any inaccuracy or breach of any representation, warranty, covenant or agreement of the Company contained herein or in any instrument delivered pursuant to this Agreement. The Parent, Merger Sub and the Company each acknowledge that such Losses, if any, would relate to unresolved contingencies existing at the Effective Time, which if resolved at the Effective Time would have led to a reduction in the aggregate Merger consideration to be paid to the shareholders of the Company. The Escrow Fund shall be the sole post closing remedy of the Parent and the Surviving Corporation for any breach of any representation, warranty, agreement or covenant contained herein (other than claims for fraud or negligent misrepresentation; provided, that no former shareholder of the Company shall be liable to the Parent or the Surviving Corporation for acts of fraud or negligent misrepresentation by Persons other than that former shareholder of the Company).
Recourse to the Escrow Fund. Except as expressly set forth herein, the Escrow Fund shall serve as the sole security for the indemnification obligations of the Company Stockholders and the Escrow Amount shall be an absolute limitation on the liability of Company stockholders for any Parent Losses, provided that this limitation shall not apply to Parent Losses that are the result of Fraud (as defined in Section 7.2(o)) below). Parent has had an opportunity to perform due diligence with respect to Company and accordingly has agreed to limit its right to recourse as set forth in this Article VII. Furthermore, Parent may not receive any shares from the Escrow Fund unless and until Officer's Certificates (as defined in Section 7.2(d) below) identifying Parent Losses, the aggregate amount of which exceed $250,000, have been delivered to the Escrow Agent as provided in Section 7.2(e) and in such case, Parent may recover from the Escrow Fund only Parent Losses in excess of the first $250,000. Notwithstanding the foregoing, Securities Losses shall not be subject to the $250,000 minimum set forth above, and Parent may recover from the Escrow Fund all Securities Losses.
Recourse to the Escrow Fund. Subject to the provisions of this Article VII, Parent, on behalf of itself and its affiliates, shall be entitled to withdraw amounts from the Escrow Amount (and any interest thereon) to compensate any Indemnitees for any Losses which Parent or any of its affiliates suffers or incurs, as provided above. The establishment and availability of the Escrow Fund shall not in any way limit the liability of any Stockholder or act as a waiver of any other rights or remedies available to Parent and its affiliates hereunder or at law or in equity, all of which are cumulative and not exclusive, subject to the limitations set forth in Section 7.2(l). Distributions to Parent from the Escrow Fund shall be made in the same proportion of cash and shares of Parent Common Stock as the proportion of Cash Consideration and Stock Consideration initially deposited into the Escrow Fund, with the shares of Parent Common Stock being valued at the Average Closing Price.
Recourse to the Escrow Fund. The Escrow Fund shall be available to compensate Broadcom and its officers, directors, employees, agents, Affiliates and Associates (collectively, the "Broadcom Indemnitees") for any and all Losses (whether or not involving a Third Party Claim) incurred or sustained by Broadcom or any other Broadcom Indemnitee as a result of any inaccuracy in or breach of any representation, warranty, covenant or agreement of the Company contained in this Agreement or in the Ancillary Agreements or in any instrument delivered pursuant to this Agreement; provided however, that Broadcom may not make any claim against the Escrow Fund unless the claim involves a Loss of five hundred thousand dollars ($500,000) or more and in no event may Broadcom make any claims against the Escrow Fund unless and until it has incurred Losses meeting the minimum claim threshold referred to above and the aggregate Losses associated with such Losses exceed five million dollars ($5,000,000) (at which time claims may be made only for the amount of Losses incurred or sustained in excess of $5,000,000). The dollar thresholds set forth in the immediately preceding proviso shall not apply to Losses resulting from any breach, violation or inaccuracy in or omission from any of the
Recourse to the Escrow Fund. Subject to the terms and conditions hereof, the IP Escrow Amount shall be available to compensate Parent and its officers, directors, employees, agents, Affiliates and Associates (the "Parent Indemnitees") for any and all payments and disbursements made by any of the Parent Indemnitees (including attorneys' fees and other expenses of litigation, and amounts paid in settlement), directly or indirectly, as a result of IP Claims ("IP Losses"). The term "IP Losses" shall not include any expenses of litigation which relate to any of the IP Claims and which are incurred prior to the Closing Date and, notwithstanding anything to the contrary contained in this Agreement, no Officer's Certificate may be submitted to the Depository Agent for any expenses of litigation which relate to any of the IP Claims and which are incurred prior to the Closing Date. Subject to the terms and conditions hereof, the General Escrow Amount shall be available to compensate the Parent Indemnitees for any and all Losses (whether or not involving a Third Party Claim), including IP Losses, incurred or sustained by any of the Parent Indemnitees, directly or indirectly, either as a result of (i) any inaccuracy or breach of any representation, warranty, covenant or agreement of the Company contained herein or in any instrument delivered pursuant to this Agreement or (ii) any IP Claim. Notwithstanding the foregoing, Parent may not make any claims against the Escrow Fund unless the aggregate Losses incurred or sustained exceed $300,000 (at which such time claims may be made for all Losses incurred or sustained).
Recourse to the Escrow Fund. The Escrow Fund shall be available (and shall be the sole and exclusive remedy after the Effective Time) to compensate Buyer and the Surviving Corporation, and their respective officers, directors, employees, agents and affiliates, for any and all Losses (whether or not involving a Third Party Claim), incurred or sustained by Buyer or the Surviving Corporation, their respective officers, directors, employees, agents or affiliates, directly or indirectly, as a result of any inaccuracy or breach of any representation, warranty, covenant or agreement of the Company contained herein which survived the Effective Time in accordance with this Agreement;
Recourse to the Escrow Fund. The Escrow Fund shall be available (and shall be the sole and exclusive remedy after the Effective Time) to hold Buyer and the Surviving Corporation, and their respective officers, directors, employees and agents, harmless for any and all Losses (whether or not involving a Third Party Claim), incurred or sustained by Buyer or the Surviving Corporation, their respective officers, directors, employees or agents, directly or indirectly, as a result of any inaccuracy or breach of any representation, warranty, covenant or agreement of the Company contained herein or in any certificate or other document delivered pursuant hereto (or, in the case of any representation or warranty of the Company contained herein, as a result of the failure of such representation or warranty to be true as of the Closing Date, unless such representation or warranty speaks only as of an earlier time); provided, however, that Buyer and the Surviving Corporation may not make any claims against the Escrow Fund unless the aggregate Losses incurred or sustained exceed $1,000,000 (at which time claims may be made for all such Losses incurred or sustained in excess of such amount). For purposes of this Agreement, "Losses" shall mean all losses, expenses (including reasonable attorneys' fees and expenses), damages, liabilities, fines, penalties, judgments, actions, claims and costs including any Tax imposed on any payment received from the Escrow Fund as well as Taxes resulting from the circumstances giving rise to the Loss. The Escrow Fund also shall be available, if applicable, for recovery by Buyer of the number of shares of Buyer Common Stock with a value (as determined in accordance with Section 7.2(e)) equal to the Company Cash Deficiency, without regard to the deductible provided for in the first sentence of this Section 7.2(b).
Recourse to the Escrow Fund. The Escrow Amount shall be available to compensate Acquiror and its officers, directors, employees or agents, for any and all payments and disbursements made by Acquiror, its officers, directors, employees or agents (including attorneys' fees and other expenses of litigation, and amounts paid in settlement), directly or indirectly, as a result of all Section 2.3 Losses (whether or not involving a Third Party Claim) incurred or sustained by Acquiror, its officers, directors, employees or agents, directly or indirectly. Other than for fraud, the provisions of this Article 6 shall be the sole and exclusive remedy available to Acquiror and to its officers, directors, employees and agents to obtain monetary recovery from Target's stockholders with respect to any Section 2.3 Losses and there shall not be recourse for any other Losses. Except for liability for fraud and the liability of a Target stockholder for the loss of such stockholder's pro rata share of the Acquiror Common Stock and other property included in the Escrow Fund in satisfaction of Section 2.3 Losses in accordance with this Article 6, no Target stockholders or any other Target securityholder or officer or director of Target shall have any liability to Acquiror or to any of Acquiror's officers, directors, stockholders, employees or agents for or in respect of any Losses or other liability arising out of this Agreement.
Recourse to the Escrow Fund. (i) The Escrow Fund shall be available as a source for payment of the indemnification obligations of the shareholders of the Company set forth in Section 7.2 hereof; provided, that, the indemnification provided in Section 7.2 hereof shall not be limited in amount or type of remedy to the Escrow Fund. Parent, Merger Sub and the Company each acknowledge that Losses, if any, incurred by an Indemnified Party would relate to unresolved contingencies existing at the Effective Time, which if resolved at the Effective Time would have led to a reduction in the Aggregate Consideration to be paid to the shareholders of the Company. Except as set forth in Section 7.3(c), nothing in this Agreement shall limit the liability (i) of the Company for any breach of any representation, warranty or covenant contained in this Agreement or any certificate, instrument or document delivered by the Company pursuant hereto, or (ii) of any Company shareholder for its indemnification obligations under this Article VII.
