Common use of Recourse to the Escrow Fund Clause in Contracts

Recourse to the Escrow Fund. The Escrow Fund shall be available to compensate Acquiror and its officers, directors, employees, agents, Affiliates and Associates for any and all Losses (whether or not involving a Third Party Claim), incurred or sustained by Acquiror, its officers, directors, employees, agents, Affiliates or Associates, directly or indirectly, as a result of (i) any inaccuracy or breach of any representation, warranty, covenant or agreement of Target contained herein or in the Ancillary Documents or in any instrument delivered pursuant to this Agreement; (ii) any amount to which Acquiror is entitled pursuant to Section 5.5; and (iii) any Losses incurred by Target or the Surviving Corporation over $200,000 to settle or otherwise resolve Target's litigation described in Section 2.12 of the Target Disclosure Schedules. Notwithstanding the foregoing, Acquiror may not make any claims against the Escrow Fund pursuant to clause (i) of the preceding sentence with respect to breaches of Target's representations and warranties unless the aggregate Losses incurred or sustained in respect of all such breaches exceed $250,000 (at which time claims may be made for all Losses incurred or sustained). The shareholders of Target shall not have any liability under this Agreement in excess of the Escrow Fund, except in the event of fraud or intentional misrepresentation by Target with respect to any of its representations, warranties, agreements or covenants contained in this Agreement, the Ancillary Agreements or in any other instrument or document required to be delivered pursuant to this Agreement in connection herewith. In the event of fraud or intentional misrepresentation, Acquiror shall have all remedies available at law or in equity (including for tort); PROVIDED, HOWEVER, that Acquiror shall not proceed against any shareholder of Target to recover any Losses until the Escrow Fund shall have been exhausted; and PROVIDED FURTHER, that in no event shall any shareholder of Target have any liability in excess of the Merger Consideration received by such shareholder (with any shares of Acquiror Common Stock being valued at the Closing Price). Notwithstanding the foregoing, nothing in this Agreement shall limit (i) Acquiror's rights to specific performance or injunctive relief with respect to any breach by Target of any of Target's covenants or agreements contained herein or in any other instrument or document delivered or required to be delivered pursuant to this Agreement or (ii) any liability of any holder of Target Capital Stock, Target Options or Target Warrants for any breach of any agreement executed by such Person in connection with the consummation of the transactions contemplated hereby.

Recourse to the Escrow Fund. The Escrow Fund shall be available to compensate Acquiror 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 (a "Third Party Claim")), incurred or sustained by Acquiror, its officers, directors, employees, agents, Affiliates Broadcom or Associates, directly or indirectly, any other Broadcom Indemnitee as a result of (i) any inaccuracy in or breach (or any claim by any third party alleging or involving an inaccuracy or breach) of any representation, warranty, covenant or agreement of Target the Company or any of the Selling Shareholders contained herein or in the Ancillary Documents Agreements or in any instrument delivered pursuant to this Agreement; (ii) provided, however, that, except in the case of claims for Losses resulting from a breach, violation or inaccuracy in or omission from any amount to which Acquiror is entitled pursuant to of the representations and warranties of the Company set forth in Section 5.5; and (iii) any Losses incurred by Target 2.3 or the Surviving Corporation over $200,000 to settle or otherwise resolve Target's litigation described in Section 2.12 related sections of the Target Company Disclosure Schedules. Notwithstanding the foregoingSchedule, Acquiror Broadcom may not make any claims against the Escrow Fund pursuant to clause (i) of the preceding sentence with respect to breaches of Target's representations and warranties unless the aggregate Losses incurred or sustained in respect of all such breaches exceed $250,000 1,000,000 (at which such time claims may be made for all Losses incurred or sustained). The dollar threshold 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 representations and warranties of the Company set forth in Section 2.3 or the related sections of the Company Disclosure Schedule, which shall be recoverable without respect to any threshold amount. Broadcom and the Company each acknowledge that such Losses, if any, would relate to unresolved contingencies existing at the Closing Date, which if resolved at the Closing Date would have led to a reduction in the aggregate consideration to be paid to the Company. Neither the Company nor the shareholders of Target the Company, nor the Selling Shareholders shall not have any liability under this Agreement of any sort whatsoever in excess of the Escrow Fund, except in the -52- 63 event of fraud or willful misconduct (i.e., an intentional misrepresentation breach of a representation, warranty, covenant or agreement, but excluding a negligent or reckless breach) by Target with respect to the Company or any of its the Selling Shareholders of any of their respective representations, warranties, agreements or covenants contained in this Agreement, the Ancillary Agreements or in any other instrument or document required to be delivered pursuant to this Agreement in connection herewith. In the event of fraud or intentional misrepresentationsuch a fraudulent breach, Acquiror Broadcom shall have all remedies available at law or in equity (including for tort)) with respect to such breach; PROVIDEDprovided, HOWEVERhowever, that Acquiror shall not proceed against any shareholder of Target that, notwithstanding anything to recover any Losses until the Escrow Fund shall have been exhausted; and PROVIDED FURTHERcontrary contained in this Agreement, that in no event shall any shareholder of Target the Company have any liability in excess of the Merger Consideration net consideration (after Israeli tax) received by such shareholder (with any shares of Acquiror Common Stock being valued at in the Closing Price). Notwithstanding the foregoing, nothing in this Agreement shall limit (i) Acquiror's rights to specific performance or injunctive relief with respect to any breach by Target of any of Target's covenants or agreements contained herein or in any other instrument or document delivered or required to be delivered pursuant to this Agreement or (ii) any liability of any holder of Target Capital Stock, Target Options or Target Warrants for any breach of any agreement executed by such Person in connection with the consummation of the transactions contemplated herebyTransactions.

Recourse to the Escrow Fund. The Escrow Fund shall be available to compensate Acquiror and its respective officers, directors, employees, agents, Affiliates and Associates (collectively, the "Acquiror Indemnitees") for any and all Losses (whether or not involving a Third Party Claim), incurred or sustained by Acquiror, its officers, directors, employees, agents, Affiliates Acquiror or Associatesany other Acquiror Indemnitees, directly or indirectly, as a result of (i) any inaccuracy or breach of any representation, warranty, covenant or agreement of Target the Company contained herein or in the Ancillary Documents Agreements or in any instrument delivered pursuant to this Agreement; (ii) any amount to which Acquiror is entitled pursuant to Section 5.5; and (iii) any Losses incurred by Target Agreement or as the Surviving Corporation over $200,000 to settle or otherwise resolve Target's litigation described in Section 2.12 result of the Target Disclosure Schedules. Notwithstanding exercise by any of the foregoingCompany's stockholders of applicable appraisal, dissenters' or similar rights (in the amount of the excess of the cost of the appraisal over the value, as of the Closing Date, of the shares of Acquiror Common Stock otherwise issuable in respect of such Dissenting Shares); PROVIDED, HOWEVER, that Acquiror may not make any claims against the Escrow Fund pursuant to clause (i) of the preceding sentence with respect to breaches of Target's representations and warranties unless the aggregate Losses incurred or sustained in respect of all such breaches exceed $250,000 100,000 (at which such time claims may be made for all Losses incurred or sustainedLosses, including the first $100,000 thereof). The shareholders of Target dollar threshold set forth in the immediately preceding proviso shall not have apply to Losses resulting from any liability under this Agreement breach, violation or inaccuracy in excess or omission from any of the Escrow Fund, except representations and warranties of the Company set forth in Section 3.14 or the event of fraud or intentional misrepresentation by Target with covenants in Section 6.5 which shall be recoverable without respect to any threshold amount. Notwithstanding the establishment of its representations, warranties, agreements or covenants contained in this Agreement, the Ancillary Agreements or in any other instrument or document required to be delivered pursuant to this Agreement in connection herewith. In the event of fraud or intentional misrepresentationan Escrow Fund, Acquiror shall have all remedies available at law or in equity (including for tort); PROVIDED, HOWEVER, that Acquiror shall not proceed against any shareholder of Target that, notwithstanding anything to recover any Losses until the Escrow Fund shall have been exhausted; and PROVIDED FURTHERcontrary contained in this Agreement, that in no event shall any shareholder stockholder of Target the Company have any liability in excess of the Merger Consideration consideration received by such shareholder (with any shares of Acquiror Common Stock being valued at the Closing Price). Notwithstanding the foregoing, nothing in this Agreement shall limit (i) Acquiror's rights to specific performance or injunctive relief with respect to any breach by Target of any of Target's covenants or agreements contained herein or in any other instrument or document delivered or required to be delivered pursuant to this Agreement or (ii) any liability of any holder of Target Capital Stock, Target Options or Target Warrants for any breach of any agreement executed by such Person stockholder in connection with the consummation of the transactions contemplated herebyMerger.

Recourse to the Escrow Fund. The Escrow Fund Amount shall be available to compensate Acquiror and Parent, its officers, directors, employees, agentsagents and Affiliates (collectively, Affiliates and Associates the "Parent Indemnitees") for any and all Losses (whether or not involving a Third Third-Party Claim), incurred or sustained by Acquiror, its officers, directors, employees, agents, Affiliates Parent or Associates, directly or indirectly, any other Parent Indemnitee as a result of (i) any inaccuracy in or breach (or any claim by any third party alleging or constituting an inaccuracy or breach) of any representation or warranty of the Company, as of the date of this Agreement, contained in this Agreement or in the Ancillary Agreements or any other instrument delivered pursuant to this Agreement; (ii) any breach of or inaccuracy in any representation or warranty of the Company, as of the date of this Agreement or the Closing Date, contained in the Sections of this Agreement set forth on Schedule 7.2(b)(ii); (iii) any intentional or reckless breach of any representationrepresentation or warranty of the Company, warrantyon the Closing Date, contained in the Sections of this Agreement set forth on Schedule 7.2(b)(iii); (iv) any breach of any covenant or agreement of Target the Company contained herein or in this Agreement (except for the covenants of the Company set forth in the first three sentences of Section 4.1) the Ancillary Documents Agreements or in any instrument delivered pursuant to this Agreement; (iiv) any amount inaccuracy or breach of any representation or warranty of the Company in this Agreement arising out of third-party confidential information, not previously disclosed to which Acquiror is entitled Parent based upon the Company's confidentiality obligations to third parties, that has a material adverse effect in the Business or the Condition of the Company; (vi) any redemption, repurchase or other right to purchase shares of Company Capital Stock exercised prior to the date of this Agreement (other than pursuant to Section 5.5the Company Stock Plans); (vii) the inclusion of the Company and its Subsidiaries in the Tax returns of any other Person prior to the Closing Date or (iiiviii) one half of any Losses incurred by Target payments or royalties owed (net of any offset to other royalty obligations) with respect to the Surviving Corporation over $200,000 to settle or otherwise resolve Target's litigation described first item set forth in Section 2.12 2.17(b) of the Target Company Disclosure Schedules. Notwithstanding Schedule as of the foregoingClosing; provided, Acquiror however, that, except in the case of claims for Losses resulting from a breach, violation or inaccuracy in or omission from any of the representations and warranties of the Company set forth in Section 2.3 or as modified or supplemented by Section 2.3 of the Company Disclosure, Parent may not make any claims against the Escrow Fund pursuant to clause (i) of the preceding sentence with respect to breaches of Target's representations and warranties Amount unless the aggregate Losses incurred or sustained in respect of all such breaches exceed $250,000 1,500,000 (at which such time claims may be made for all Losses incurred or sustainedsustained in excess of such amount). The shareholders dollar threshold 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 Target the representations and warranties of the Company set forth in Section 2.3 or Section 2.3 of the Company Disclosure Schedule, which shall be recoverable without respect to any threshold amount to the extent 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 Company Stockholders. The Company Stockholders shall not have any liability under this Agreement of any sort whatsoever in excess of the Escrow FundAmount, except (x) in the event of fraud or intentional misrepresentation willful misconduct by Target with respect to the Company of any of its representations, warranties, agreements or covenants contained in this Agreement, the Ancillary Agreements or in any other instrument or document required to be delivered pursuant to this Agreement in connection herewithherewith or (y) with respect to the indemnification obligations in Section 7.2(b)(vi). Insofar as a Loss is claimed, after the Escrow Fund has been distributed to the Company Stockholders, under (x) Section 7.2(b)(i) relating to a breach of Section 2.17 or Section 7.2(b)(iii) relating to a breach of Section 2.17, or (y) Section 7.2(b)(iv), Section 7.2(b)(v) or Section 7.2(b)(vii) or Section 7.2(b)(viii), the Company Stockholders shall be liable for such Losses (A) up to, but not in the aggregate in excess of (for all such Losses and all Company Stockholders) the released portion of the Escrow Amount and (B) subject to the procedures set forth in this Article 7. In the event of fraud or intentional misrepresentationsuch a fraudulent breach, Acquiror Parent shall have all remedies available at law or in equity (including for tort); PROVIDED) with respect to such breach. Notwithstanding anything to the contrary contained in this Agreement, HOWEVER, that Acquiror shall not proceed against any shareholder of Target to recover any Losses until the Escrow Fund shall have been exhausted; and PROVIDED FURTHER, that in no event shall any shareholder stockholder of Target the Company have any liability of any sort in excess of the Merger Consideration consideration received by such shareholder (with any shares of Acquiror Common Stock being valued at the Closing Price). Notwithstanding the foregoing, nothing in this Agreement shall limit (i) Acquiror's rights to specific performance or injunctive relief with respect to any breach by Target of any of Target's covenants or agreements contained herein or in any other instrument or document delivered or required to be delivered pursuant to this Agreement or (ii) any liability of any holder of Target Capital Stock, Target Options or Target Warrants for any breach of any agreement executed by such Person stockholder in connection with the consummation Merger or the proceeds, if any, received by such stockholder in connection with the disposition of the transactions contemplated herebysuch Merger consideration.

Recourse to the Escrow Fund. The Escrow Fund shall be available to compensate Acquiror Broadcom and its officers, directors, employees, agents, Affiliates and Associates (collectively, the "Broadcom Indemnitees"), (i) for any and all Losses (whether or not involving a Third Party Claim), incurred or sustained by Acquiror, its officers, directors, employees, agents, Affiliates Broadcom or Associates, directly or indirectly, any other Broadcom Indemnitee as a result of (i) any inaccuracy or breach of any representation, warranty, covenant or agreement of Target the Company contained herein or in the Ancillary Documents Agreements or in any instrument delivered pursuant to this Agreement; , (ii) any amount to which Acquiror is entitled pursuant to as contemplated by Section 5.5; 5.25 and (iii) any Losses incurred or sustained by Target Broadcom or any other Broadcom Indemnitee as a result of any infringement, misappropriation or other claim by Allied Telesyn Inc. related to any Intellectual Property; provided, however, that, except in the case of claims pursuant to Section 5.25 and for Losses resulting from a breach, violation or inaccuracy in or omission from any of the representations and warranties of the Company set forth in Section 2.3 or the Surviving Corporation over $200,000 to settle or otherwise resolve Target's litigation described in Section 2.12 related sections of the Target Company Disclosure Schedules. Notwithstanding the foregoingSchedule, Acquiror Broadcom may not make any claims against the Escrow Fund pursuant to clause (i) of the preceding sentence with respect to breaches of Target's representations and warranties unless the aggregate Losses incurred or sustained in respect of all such breaches exceed $250,000 200,000 (at which such time claims may be made for all Losses incurred or sustained). The dollar threshold 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 representations and warranties of the Company set forth in Section 2.3 or the related sections of the Company Disclosure Schedule, which shall be recoverable without respect to any threshold amount. Broadcom 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 Target the Company. The shareholders of the Company shall not have any liability under this Agreement of any sort whatsoever in excess of the Escrow Fund, except in the event of fraud or willful misconduct (i.e., an intentional misrepresentation breach of a representation, warranty, covenant or agreement, but excluding a negligent or reckless breach) by Target with respect to the Company of any of its representations, warranties, agreements or covenants contained in this Agreement, the Ancillary Agreements or in any other instrument or document required to be delivered pursuant to this Agreement in connection herewith. In the event of fraud such a fraudulent or intentional misrepresentationwillful breach, Acquiror Broadcom shall have all remedies available at law or in equity (including for tort)) with respect to such breach; PROVIDEDprovided, HOWEVERhowever, that Acquiror shall not proceed against any shareholder of Target that, notwithstanding anything to recover any Losses until the Escrow Fund shall have been exhausted; and PROVIDED FURTHERcontrary contained in this Agreement, that in no event shall any shareholder of Target the Company have any liability in excess of the Merger Consideration consideration received by such shareholder (with any shares of Acquiror Common Stock being valued at the Closing Price). Notwithstanding the foregoing, nothing in this Agreement shall limit (i) Acquiror's rights to specific performance or injunctive relief with respect to any breach by Target of any of Target's covenants or agreements contained herein or in any other instrument or document delivered or required to be delivered pursuant to this Agreement or (ii) any liability of any holder of Target Capital Stock, Target Options or Target Warrants for any breach of any agreement executed by such Person in connection with the consummation Merger or the proceeds, if any, received by such shareholder in connection with the disposition of the transactions contemplated herebysuch Merger consideration.

Recourse to the Escrow Fund. The Escrow Fund shall be available in its entirety to compensate Acquiror 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 or warranty of the Company set forth in Section 2.17 of this Agreement, the related sections of the Company Disclosure Schedule, any covenant or agreement of the Company in this Agreement relating to Intellectual Property (including the agreements of the Company set forth in Section 5.22 and, insofar as it relates to waivers of Made-in-America Requirements, other provisions of Article 5) or the related portions of any instrument delivered pursuant to this Agreement (collectively, "IP Losses"), and a portion of the Escrow Fund equal to two-thirds of the Escrow Amount shall be available to compensate the Broadcom Indemnitees for any and all Losses (including IP Losses), incurred or sustained by Acquiror, its officers, directors, employees, agents, Affiliates Broadcom or Associates, directly or indirectly, any other Broadcom Indemnitee as a result of (i) any inaccuracy in or breach of any representation, warranty, covenant or agreement of Target the Company contained herein in this Agreement or in the Ancillary Documents Agreements or in any instrument delivered pursuant to this Agreement; (ii) provided, however, that, except in the case of claims for Losses resulting from a breach, violation or inaccuracy in or omission from any amount to which Acquiror is entitled pursuant to of the representations and warranties of the Company set forth in Section 5.5; and (iii) any Losses incurred by Target 2.3 of this Agreement or the Surviving Corporation over $200,000 to settle or otherwise resolve Target's litigation described in Section 2.12 related sections of the Target Company Disclosure Schedules. Notwithstanding the foregoingSchedule, Acquiror Broadcom may not make any claims against the Escrow Fund pursuant to clause (i) of the preceding sentence with respect to breaches of Target's representations and warranties unless the aggregate Losses incurred or sustained in respect of all such breaches exceed seven hundred fifty thousand dollars ($250,000 750,000) (at which such time claims may be made for all Losses incurred or sustained). The dollar threshold 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 representations and warranties of the Company set forth in Section 2.3 of this Agreement or the related sections of the Company Disclosure Schedule, which shall be recoverable without respect to any threshold amount. Broadcom and the Company each acknowledge that all 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 Target the Company. The shareholders of the Company shall not have any liability under this Agreement of any sort whatsoever in excess of the Escrow Fund, except in the event of fraud or an intentional misrepresentation breach of a representation, warranty, covenant or agreement, but excluding a negligent, grossly negligent or reckless breach, by Target with respect to the Company of any of its representations, warranties, agreements or covenants contained in this Agreement, the Ancillary Agreements or in any other instrument or document required to be delivered pursuant to this Agreement in connection herewith. In the event of fraud or intentional misrepresentationsuch a fraudulent breach, Acquiror Broadcom shall have all remedies available at law or in equity (including for tort)) with respect to such breach; PROVIDEDprovided, HOWEVERhowever, that Acquiror shall not proceed against any shareholder of Target that, notwithstanding anything to recover any Losses until the Escrow Fund shall have been exhausted; and PROVIDED FURTHERcontrary contained in this Agreement, that in no event shall any shareholder of Target the Company have any liability in excess of the Merger Consideration consideration received by such shareholder (with any shares of Acquiror Common Stock being valued at the Closing Price). Notwithstanding the foregoing, nothing in this Agreement shall limit (i) Acquiror's rights to specific performance or injunctive relief with respect to any breach by Target of any of Target's covenants or agreements contained herein or in any other instrument or document delivered or required to be delivered pursuant to this Agreement or (ii) any liability of any holder of Target Capital Stock, Target Options or Target Warrants for any breach of any agreement executed by such Person in connection with the consummation Merger or the proceeds, if any, received by such shareholder in connection with the disposition of the transactions contemplated herebysuch Merger consideration.

Recourse to the Escrow Fund. The Escrow Fund shall be available to compensate Acquiror (and shall, except as otherwise set forth in this Section 7.2(b), be the sole source of compensation to) Broadcom and its officers, directors, employees, agents, Affiliates and Associates (collectively, "Broadcom Indemnitees") for any and all Losses (whether or not 57 65 involving a Third Party Claim), incurred or sustained by Acquiror, its officers, directors, employees, agents, Affiliates Broadcom or Associatesany other Broadcom Indemnitee, directly or indirectly, as a result of (i) any inaccuracy or breach of any representation, warranty, covenant or agreement of Target the Company contained herein or in the Ancillary Documents Agreements or in any instrument delivered pursuant to this Agreement; (ii) any amount to which Acquiror is entitled pursuant to Section 5.5; and (iii) any Losses incurred by Target or the Surviving Corporation over $200,000 to settle or otherwise resolve Target's litigation described in Section 2.12 of the Target Disclosure Schedules. Notwithstanding the foregoingprovided, Acquiror however, that Broadcom may not make any claims against the Escrow Fund pursuant to clause (i) of the preceding sentence with respect to breaches of Target's representations and warranties unless the aggregate Losses incurred or sustained in respect of all such breaches exceed $250,000 600,000 (at which such time claims may be made for all Losses incurred or sustained). Broadcom 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 shareholders of Target the Company shall not have any liability under this Agreement of any sort whatsoever in excess of the Escrow Fund, except in the event of fraud or willful misconduct (i.e., a fraudulent breach of a representation or warranty or an intentional misrepresentation breach of a covenant or agreement, but excluding a negligent or reckless breach) by Target with respect to the Company of any of its representations, warranties, agreements or covenants contained in this Agreement, the Ancillary Agreements or in any other instrument or document Closing certificate required to be delivered pursuant to this Agreement in connection herewithherewith (it being understood that in any controversy concerning the applicability of this exception, Broadcom shall have the burden of proof with respect to the applicability of the exception). In the event of fraud such a fraudulent or intentional misrepresentationbreach, Acquiror Broadcom shall have all remedies available at law or in equity (including for tort)) with respect to such breach; PROVIDEDprovided, HOWEVERhowever, that Acquiror shall not proceed against any shareholder of Target that, notwithstanding anything to recover any Losses until the Escrow Fund shall have been exhausted; and PROVIDED FURTHERcontrary contained in this Agreement, that in no event shall any shareholder of Target the Company have any liability in excess of the Merger Consideration consideration received by such shareholder (with any shares of Acquiror Common Stock being valued at the Closing Price). Notwithstanding the foregoing, nothing in this Agreement shall limit (i) Acquiror's rights to specific performance or injunctive relief with respect to any breach by Target of any of Target's covenants or agreements contained herein or in any other instrument or document delivered or required to be delivered pursuant to this Agreement or (ii) any liability of any holder of Target Capital Stock, Target Options or Target Warrants for any breach of any agreement executed by such Person in connection with the consummation Merger or the proceeds, if any, received by such shareholder in connection with the disposition of the transactions contemplated herebysuch Merger consideration.

Recourse to the Escrow Fund. The Escrow Fund shall be available (and, subject to the last sentence of this clause (b), shall be the sole and exclusive remedy) to compensate Acquiror Parent and its Merger Sub, and their respective officers, directors, employees, agentsagents and Affiliates, Affiliates and Associates for any and all Losses (whether or not involving a Third Party Claim), incurred or sustained by AcquirorParent or Merger Sub, its their respective officers, directors, employees, agents, Affiliates agents or AssociatesAffiliates, directly or indirectly, as a result of (i) any inaccuracy or breach of any representation, warranty, covenant or agreement of Target the Company contained herein or in the Ancillary Documents or in any instrument delivered by the Company pursuant to Article 6 of this Agreement which survived the Effective Time in accordance with this Agreement; (ii) any amount to which Acquiror is entitled pursuant to Section 5.5; provided, however, that Parent and (iii) any Losses incurred by Target or the Surviving Corporation over $200,000 to settle or otherwise resolve Target's litigation described in Section 2.12 of the Target Disclosure Schedules. Notwithstanding the foregoing, Acquiror Merger Sub may not make any claims against the Escrow Fund pursuant to clause (i) of the preceding sentence with respect to breaches of Target's representations and warranties unless the aggregate Losses incurred or sustained in respect of all such breaches exceed $250,000 100,000 (at which such time claims may be made for all such Losses incurred or sustained); and provided further that Parent may not make any claims against the Escrow Fund for any failure of the Company to make payments of principal or interest under the Note. 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 shareholders of Target the Company shall not have any liability under this Agreement of any sort whatsoever in excess of the Escrow Fund, except in the event of fraud a fraudulent breach (i.e., an intentional breach of a representation, warranty, covenant or intentional misrepresentation agreement, but excluding a negligent or reckless breach) by Target with respect to the Company of any of its representations, warranties, agreements or covenants contained in this Agreement, the Ancillary Agreements herein or in any other instrument or document required to be delivered pursuant to Article 6 of this Agreement in connection herewith. In the event of fraud or intentional misrepresentationsuch a fraudulent breach, Acquiror Parent and Merger Sub shall have all remedies available at law or in equity (including for tort)) with respect to such breach; PROVIDEDprovided, HOWEVERhowever, that Acquiror shall not proceed against any shareholder of Target that, notwithstanding anything to recover any Losses until the Escrow Fund shall have been exhausted; and PROVIDED FURTHERcontrary contained in this Agreement, that in no event shall any shareholder of Target the Company have any liability in excess of the Merger Consideration consideration received by such shareholder (with any shares of Acquiror Common Stock being valued at the Closing Price). Notwithstanding the foregoing, nothing in this Agreement shall limit (i) Acquiror's rights to specific performance or injunctive relief with respect to any breach by Target of any of Target's covenants or agreements contained herein or in any other instrument or document delivered or required to be delivered pursuant to this Agreement or (ii) any liability of any holder of Target Capital Stock, Target Options or Target Warrants for any breach of any agreement executed by such Person in connection with the consummation Merger or the proceeds, if any, received by such shareholder in connection with the disposition of the transactions contemplated herebysuch Merger consideration.

Recourse to the Escrow Fund. The Escrow Fund shall be available to compensate Acquiror 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 Acquiror, its officers, directors, employees, agents, Affiliates Broadcom or Associates, directly or indirectly, any other Broadcom Indemnitee as a result of (i) any inaccuracy in or breach (or any claim by any third party alleging, constituting or involving an inaccuracy or breach) of any representation, warranty, covenant or agreement of Target the Company contained herein or in the Ancillary Documents Agreements or in any instrument delivered pursuant to this Agreement; (ii) provided, however, that, except in the case of claims for Losses resulting from a breach, violation or inaccuracy in or omission from any amount to which Acquiror is entitled pursuant to of the representations and warranties of the Company set forth in Section 5.5; and (iii) any Losses incurred by Target 2.3 or the Surviving Corporation over $200,000 to settle or otherwise resolve Target's litigation described in Section 2.12 related sections of the Target Company Disclosure Schedules. Notwithstanding the foregoingSchedule, Acquiror Broadcom may not make any claims against the Escrow Fund pursuant to clause (i) of the preceding sentence with respect to breaches of Target's representations and warranties unless the aggregate Losses incurred or sustained in respect of all such breaches exceed two million three hundred thousand dollars ($250,000 2,300,000) (at which such time claims may be made for all Losses incurred or sustained). The shareholders dollar threshold 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 Target the representations and warranties of the Company set forth in Section 2.3 or the related sections of the Company Disclosure Schedule, which shall be recoverable without respect to any threshold amount. Broadcom 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 stockholders of the Company. The stockholders of the Company shall not have any liability under this Agreement of any sort whatsoever in excess of the Escrow Fund, and the Escrow Fund shall be the sole and exclusive remedy of Broadcom, except in the event case of either fraud or willful misconduct (i.e., an intentional misrepresentation breach of a representation, warranty, covenant or agreement, but excluding a negligent or reckless breach) by Target with respect to the Company of any of its representations, warranties, agreements or covenants contained in this Agreement, the Ancillary Agreements or in any other instrument or document required to be delivered pursuant to this Agreement in connection herewith. In the event of fraud such a fraudulent or intentional misrepresentationwillful breach, Acquiror Broadcom shall have all remedies available at law or in equity (including for tort)) with respect to such breach; PROVIDEDprovided, HOWEVERhowever, that, notwithstanding anything to the contrary contained in this Agreement, except in the event that Acquiror shall not proceed against any shareholder of Target to recover any Losses until the Escrow Fund shall have been exhausted; and PROVIDED FURTHERsuch stockholder induced or participated in such fraud or willful misconduct, that in no event shall any shareholder stockholder of Target the Company have any liability (i) in excess of the stockholder's pro rata share of such liability or (ii) in excess of the Merger Consideration consideration received by such shareholder (with any shares of Acquiror Common Stock being valued at the Closing Price). Notwithstanding the foregoing, nothing in this Agreement shall limit (i) Acquiror's rights to specific performance or injunctive relief with respect to any breach by Target of any of Target's covenants or agreements contained herein or in any other instrument or document delivered or required to be delivered pursuant to this Agreement or (ii) any liability of any holder of Target Capital Stock, Target Options or Target Warrants for any breach of any agreement executed by such Person stockholder in connection with the consummation Merger or the proceeds, if any, received by such stockholder in connection with the disposition of the transactions contemplated hereby.such Merger consideration. -66- 74

Recourse to the Escrow Fund. The Escrow Fund shall be available to compensate Acquiror and its respective officers, directors, employees, agents, Affiliates and Associates (collectively, the "Acquiror Indemnitees") for any and all Losses (whether or not involving a Third Party Claim), incurred or sustained by Acquiror, its officers, directors, employees, agents, Affiliates Acquiror or Associatesany other Acquiror Indemnitees, directly or indirectly, as a result of (i) any inaccuracy or breach of any representation, warranty, covenant or agreement of Target the Company contained herein or in the Ancillary Documents Agreements or in any instrument delivered pursuant to this Agreement; (ii) any amount to which Acquiror is entitled pursuant to Section 5.5; and (iii) any Losses incurred by Target Agreement or as the Surviving Corporation over $200,000 to settle or otherwise resolve Target's litigation described in Section 2.12 result of the Target Disclosure Schedules. Notwithstanding exercise by any of the foregoingCompany's stockholders of applicable appraisal, dissenters' or similar rights (in the amount of the excess of the cost of the appraisal over the value, as of the Closing Date, of the shares of Acquiror Common Stock otherwise issuable in respect of such Dissenting Shares); PROVIDED, HOWEVER, that Acquiror may not make any claims against the Escrow Fund pursuant to clause (i) of the preceding sentence with respect to breaches of Target's representations and warranties unless the aggregate Losses incurred or sustained in respect of all such breaches exceed $250,000 1,200,000 (at which such time claims may be made for all Losses incurred or sustainedLosses, including the first $1,200,000 thereof). The shareholders Notwithstanding the establishment of Target shall not have any liability under this Agreement in excess of the an Escrow Fund, except in the event of fraud or intentional misrepresentation by Target with respect to any of its representations, warranties, agreements or covenants contained in this Agreement, the Ancillary Agreements or in any other instrument or document required to be delivered pursuant to this Agreement in connection herewith. In the event of fraud or intentional misrepresentation, Acquiror shall have all remedies available at law or in equity (including for tort); PROVIDED, HOWEVER, that Acquiror shall not proceed against any shareholder of Target that, notwithstanding anything to recover any Losses until the Escrow Fund shall have been exhausted; and PROVIDED FURTHERcontrary contained in this Agreement, that in no event shall any shareholder stockholder of Target the Company have any liability in excess of the Merger Consideration consideration received by such shareholder (with any shares of Acquiror Common Stock being valued at the Closing Price). Notwithstanding the foregoing, nothing in this Agreement shall limit (i) Acquiror's rights to specific performance or injunctive relief with respect to any breach by Target of any of Target's covenants or agreements contained herein or in any other instrument or document delivered or required to be delivered pursuant to this Agreement or (ii) any liability of any holder of Target Capital Stock, Target Options or Target Warrants for any breach of any agreement executed by such Person stockholder in connection with the consummation Merger (valued as of the transactions contemplated herebyClosing Date) or the proceeds, if any, received by such stockholder in connection with the disposition of such Merger consideration.

Recourse to the Escrow Fund. The (i) IP Escrow Fund Amount shall be available to compensate Acquiror Parent, Merger Sub and its their respective officers, directors, employees, agentsagents and representatives (including the Surviving Corporation; collectively, Affiliates and Associates the "Parent Indemnitees") for any and all Losses (whether or not involving a Third Party Claim), incurred or sustained by Acquiror, its officers, directors, employees, agents, Affiliates Parent or Associates, directly or indirectly, any other Parent Indemnitee as a result of (i) any inaccuracy in or breach (or any claim by any third party alleging, constituting or involving an inaccuracy or breach) of any representation, warranty, covenant or agreement of Target the Company contained herein or in the Ancillary Documents Agreements or in any instrument delivered pursuant to this Agreement; Agreement related to Intellectual Property of the Company ("IP Losses") which becomes known to Parent during the Escrow Period and (ii) General Escrow Amount shall be available to compensate the Parent Indemnitees for any amount to which Acquiror is entitled and all Losses (whether or not involving a Third Party Claim), incurred or sustained by Parent or any other Parent Indemnitee as a result of any inaccuracy in or breach (or any claim by any third party alleging, constituting or involving an inaccuracy or breach) of any representation, warranty, covenant or agreement of the Company contained herein or in the Ancillary Agreements or in any instrument delivered pursuant to this Agreement which becomes known to Parent during the Escrow Period including Losses resulting from Transaction Fees in excess of $3,500,000 as described in the last sentence of Section 5.55.5 of this Agreement; provided, however, that, except in the case of claims for Losses resulting from a breach, violation or inaccuracy in or omission from any of the representations and (iii) any Losses incurred by Target warranties of the Company set forth in Section 2.3 or the Surviving Corporation over $200,000 to settle or otherwise resolve Target's litigation described in Section 2.12 related Sections of the Target Company Disclosure Schedules. Notwithstanding Schedule, the foregoing, Acquiror Parent Indemnitees may not make any claims against the Escrow Fund pursuant to clause (i) of the preceding sentence with respect to breaches of Target's representations and warranties unless the aggregate Losses (including IP Losses) incurred or sustained exceed one hundred thousand dollars ($100,000) (the "Deductible") The dollar threshold of the Deductible set forth in the immediately preceding proviso shall not apply to Losses (i) resulting from any breach, violation or inaccuracy in or omission from any of the representations and warranties of the Company set forth in Section 2.3 or the related Sections of the Company Disclosure Schedule, which shall be recoverable without respect to any threshold amount or (ii) as set forth in Section 5.5 hereof. Parent, Merger Sub and the Company each acknowledge that such Losses (including IP 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 stockholders of all such breaches exceed $250,000 (at which time claims may be made for all Losses incurred or sustained)the Company. The shareholders stockholders of Target the Company shall not have any contractual liability under this Agreement of any sort whatsoever in excess of the Escrow FundFund (and the Escrow Fund shall be the sole contractual remedy of the Parent Indemnitees), except in the event of fraud or willful misconduct (i.e., an intentional misrepresentation breach of a representation, warranty, covenant 64 70 or agreement, but excluding a negligent or reckless breach) by Target with respect to the Company of any of its representations, warranties, agreements or covenants contained in this Agreement, the Ancillary Agreements or in any other instrument or document required to be delivered pursuant to this Agreement in connection herewith. In the event of fraud or intentional misrepresentationsuch a fraudulent breach, Acquiror Parent and Merger Sub shall have all remedies available at law or in equity (including for tort)) with respect to such breach; PROVIDEDprovided, HOWEVERhowever, that Acquiror shall not proceed against any shareholder of Target that, notwithstanding anything to recover any Losses until the Escrow Fund shall have been exhausted; and PROVIDED FURTHERcontrary contained in this Agreement, that in no event shall any shareholder stockholder of Target the Company have any liability in excess of the Merger Consideration consideration received by such shareholder (with any shares of Acquiror Common Stock being valued at the Closing Price). Notwithstanding the foregoing, nothing in this Agreement shall limit (i) Acquiror's rights to specific performance or injunctive relief with respect to any breach by Target of any of Target's covenants or agreements contained herein or in any other instrument or document delivered or required to be delivered pursuant to this Agreement or (ii) any liability of any holder of Target Capital Stock, Target Options or Target Warrants for any breach of any agreement executed by such Person stockholder in connection with the consummation Merger or the proceeds, if any, received by such stockholder in connection with the disposition of such Merger consideration. In the event funds transfer instructions are given (other than in writing at the time of execution of this Agreement), whether in writing, by telecopier or otherwise, the Escrow Agent is authorized to seek confirmation of such instructions by telephone call-back to the person or persons designated in Section 9.1 hereof, and the Escrow Agent may rely upon the confirmations of anyone purporting to be the person or persons so designated. The persons and telephone numbers for call-backs may be changed as set forth in Section 9.1 hereof, provided, however, that such changes shall only be binding when actually received and acknowledged by the Escrow Agent. The parties to this Agreement acknowledge that such security procedure is commercially reasonable. It is understood that the Escrow Agent and the beneficiary's bank in any funds transfer may rely solely upon any account numbers or similar identifying number provided by either of the transactions contemplated herebyother parties hereto to identify (i) the beneficiary, (ii) the beneficiary's bank, or (iii) an order it executes using any such identifying number, even where its use may result in a Person other than the beneficiary being paid, or the transfer of funds to a bank other than the beneficiary's bank, or an intermediary bank designated.

Recourse to the Escrow Fund. The Escrow Fund shall be available Subject to compensate Acquiror the limitations set forth herein, Acquirer and its officers, directors, employees, agents, Affiliates and Associates for (including the Surviving Corporation; collectively, the “Acquirer Indemnitees”) shall be indemnified and held harmless by the Escrow Participants from and against any and all Losses on a Gross-Up Basis (whether or not involving a Third Party Claim), ) incurred by Acquirer or sustained by Acquiror, its officers, directors, employees, agents, Affiliates or Associates, the Surviving Corporation directly or indirectly, indirectly as a result of (i) any inaccuracy or breach of any representationa representation or warranty of the Company contained herein; provided, warrantyhowever, covenant or agreement of Target contained herein or that in the Ancillary Documents event a breach or inaccuracy in any instrument delivered a representation or warranty which constitutes a material adverse change in the business of the Company was disclosed in writing to Acquirer prior to the Closing and identified as such, Acquirer shall have no recourse pursuant to this AgreementSection 7.2 with respect to such breach; (ii) any amount failure by the Company to which Acquiror is entitled pursuant to Section 5.5perform or comply with any covenant contained herein; and or (iii) any cash paid by Acquirer or Surviving Corporation to holders of Company Capital Stock as to which appraisal rights have been properly exercised under Delaware Law (or any other applicable law) pursuant to a decision of the Court of Chancery in excess of what such stockholder would be entitled to receive hereunder. The Escrow Fund shall be the sole remedy, except for fraud or willful misconduct or willful misrepresentation, available to compensate the Acquirer Indemnitees for any and all such Losses incurred and the Acquirer Indemnitees shall not be entitled to make any claims against any of the Escrow Participants in excess of the Escrow Amount except in the case of fraud, willful misconduct or willful misrepresentation by Target the Company or the Subsidiary. Except in the case of claims for Losses resulting from any cash paid by Acquirer or Surviving Corporation over $200,000 to settle holders of Company Capital Stock as to which appraisal rights have been properly exercised under Delaware Law (or otherwise resolve Target's litigation described in Section 2.12 any other applicable law) pursuant to a decision of the Target Disclosure Schedules. Notwithstanding the foregoingCourt of Chancery in excess of what such stockholder would be entitled to receive hereunder and for unreimbursed Excess Third Party Expenses, Acquiror Acquirer may not make any claims against the Escrow Fund pursuant to clause (i) of the preceding sentence with respect to breaches of Target's representations and warranties unless the aggregate Losses incurred or sustained in respect of all such breaches exceed two hundred thousand dollars ($250,000 200,000) (the “Basket”) (at which such time claims may be made for all Losses incurred or sustained). The shareholders dollar threshold of Target the Basket set forth in the immediately preceding proviso shall not apply to Losses resulting (x) from any cash paid by Acquirer or Surviving Corporation to holders of Company Capital Stock as to which appraisal rights have been properly exercised under Delaware Law (or any liability under this Agreement other applicable law) pursuant to a decision of the Court of Chancery in excess of the Escrow Fundwhat such stockholder would be entitled to receive hereunder, except or (y) from unreimbursed Excess Third Party Expenses. Any limitations set forth in the event of this Section 7.2 shall not apply to fraud or intentional misrepresentation by Target with willful misconduct or willful misrepresentation. With respect to any actions grounded in fraud, willful misconduct or willful misrepresentation, (i) the right of its representations, warranties, agreements or covenants contained a party to be indemnified and held harmless pursuant to the indemnification provisions in this Agreement, the Ancillary Agreements or Agreement shall be in addition to and cumulative of any other instrument or document required to be delivered pursuant to this Agreement in connection herewith. In the event remedy of fraud or intentional misrepresentation, Acquiror shall have all remedies available such party at law or in equity and (including for tort)ii) no such party shall, by exercising any remedy available to it under this Article 7, be deemed to have elected such remedy exclusively or to have waived any other remedy, whether at law or in equity, available to it; PROVIDEDprovided, HOWEVERhowever, that Acquiror shall not proceed against any shareholder of Target to recover any Losses until the Escrow Fund shall have been exhausted; and PROVIDED FURTHER, that in no event shall any shareholder of Target Company Stockholder or Senior Manager have any liability to Acquirer Indemnitees in excess of their pro rata share of such Losses with respect to fraud, willful misconduct or willful misrepresentation and in any event not in excess of the Merger Consideration amounts actually received by such shareholder (with any shares of Acquiror Common Stock being valued at the Closing Price). Notwithstanding the foregoing, nothing in Company Stockholder or Senior Manager under this Agreement shall limit (i) Acquiror's rights to specific performance or injunctive relief with respect to any breach by Target of any of Target's covenants or agreements contained herein or in any other instrument or document delivered or required to be delivered pursuant to this Agreement or (ii) any liability of any holder of Target Capital Stock, Target Options or Target Warrants for any breach of any agreement executed by such Person in connection with the consummation of the transactions contemplated herebyAgreement.