Common use of Recourse to the Escrow Fund Clause in Contracts

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 in its entirety to indemnify the Purchaser Parties, Newco compensate Broadcom and their respective its officers, directors, employees or employees, agents, Affiliates and Associates (collectively, the "Broadcom Indemnitees") for any and all Losses (as defined in the Escrow Agreementwhether or not involving a Third Party Claim) incurred or sustainedsustained 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, directly the related sections of the Company Disclosure Schedule, any covenant or indirectlyagreement of the Company in this Agreement relating to Intellectual Property (including the agreements of the Company set forth in Section 5.22 and, by 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 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 equal 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 two-thirds of the Escrow AgreementAmount shall be available to compensate the Broadcom Indemnitees for any and all Losses (including IP Losses), no Target Shareholder shall have any liability to the Purchaser Parties, Newco incurred or any of their respective officers, directors, stockholders, employees or agents for or in respect of any Losses sustained by Broadcom or any other liabilities arising out 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, 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 of this Agreement or the transactions related sections of the Company Disclosure Schedule, Broadcom may not make any claims against the Escrow Fund unless the aggregate Losses incurred or sustained exceed seven hundred fifty thousand dollars ($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 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 breach of a representation, warranty, covenant or agreement, but excluding a negligent, grossly negligent or reckless breach, by the Company of any of its representations, warranties, agreements contemplated herein. Notwithstanding the foregoing, nothing or covenants contained in this Section 4.0 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 such a fraudulent breach, Broadcom shall limit have all remedies available at law or in equity (including for tort) with respect to such breach; provided, however, that, notwithstanding anything to the contrary contained in this Agreement, in no event shall any remedy shareholder of the Purchaser may Company 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 liability in excess of the Merger consideration received by such Target Shareholder shareholder in connection with the Merger or for fraudthe proceeds, willful misconduct or intentional misstatement which may have been committed if any, received by Target and for which such Target Shareholder may be liable shareholder in tortconnection with the disposition of such Merger consideration.

Recourse to the Escrow Fund. The Escrow Fund Amount shall be available to indemnify the Purchaser Partiescompensate Parent, Newco and their respective its officers, directors, employees or agentsemployees, agents and Affiliates (collectively, the "Parent Indemnitees") for any and all Losses (as defined in the Escrow Agreement) whether or not involving a Third-Party Claim), incurred or sustained, directly or indirectly, sustained 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 Parent or any other liabilities arising out 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 transactions 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 representation or warranty of the Company, on 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 the Company contained in this Agreement (except for the covenants of the Company set forth in the first three sentences of Section 4.1) the Ancillary Agreements or in any instrument delivered pursuant to this Agreement; (v) any 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 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 the 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 (viii) one half of any payments or royalties owed (net of any offset to other royalty obligations) with respect to the first item set forth in Section 2.17(b) of the Company Disclosure Schedule as of the Closing; 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 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 Amount unless the aggregate Losses incurred or sustained exceed $1,500,000 (at which such time claims may be made for all Losses incurred or sustained in excess of such amount). 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 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 Amount, except (x) in the event of fraud or willful misconduct by the Company of any of its representations, warranties, agreements contemplated hereinor 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 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 such a fraudulent breach, Parent shall have all remedies available at law or in equity (including for tort) with respect to such breach. Notwithstanding anything to the foregoing, nothing contrary contained in this Section 4.0 Agreement, in no event shall limit any remedy stockholder of the Purchaser may Company have under any Principal Shareholder Voting Agreement or liability of any remedy Purchaser may have against a particular Target Shareholder for fraud, willful misconduct or intentional misstatement which may have been committed sort in excess of the Merger consideration received by such Target Shareholder stockholder in connection with the Merger or for fraudthe proceeds, willful misconduct or intentional misstatement which may have been committed if any, received by Target and for which such Target Shareholder may be liable stockholder in tortconnection with the disposition of such Merger consideration.

Recourse to the Escrow Fund. The holders of Company Capital Stock --------------------------- jointly and severally agree to indemnify, defend and hold harmless Parent and Merger Sub, and their respective officers, directors, employees, agents, Affiliates and Associates (including the Surviving Corporation) for any and all Losses, on a Grossed-Up Basis (whether or not involving a Third Party Claim), incurred or sustained by Parent and Merger Sub, and their respective officers, directors, employees, agents, Affiliates and Associates (including the Surviving Corporation) directly or indirectly as a result of (i) any inaccuracy in, or breach of, a representation or warranty of the Company contained herein (or in any certificate, instrument, schedule or document attached to this Agreement and delivered by the Company in connection with the Merger); (ii) any claim that the manufacture, use or sale of the products, technology or services of the Company infringes any third-party patents; (iii) any failure by the Company to perform or comply with any covenant or agreement contained herein; or (iv) (A) any Hazardous Material at, on, under, migrating to or from, or transported to or from the Sites on or prior to the Closing; (B) any Environmental Claim arising at any time that relates to the Company on or prior to the Closing; or (C) any noncompliance with any applicable Environmental Law or Environmental Permit relating in any way to the Company on or prior to the Closing. The Escrow Fund shall be available to indemnify the Purchaser Partiescompensate Parent and Merger Sub, Newco and their respective officers, directors, employees or employees, agents, Affiliates and Associates (including the Surviving Corporation) for any and all Losses, on a Grossed-Up Basis (whether or not involving a Third Party Claim) under this Section 7.2(b). Nothing herein shall limit the liability of the Company for any breach of any representation, warranty, agreement or covenant contained herein for fraudulent misrepresentation or fraud. The holders of Company Capital Stock shall not be liable to Parent or its Affiliates and Associates (including the Surviving Corporation) under Article 7 unless and until the aggregate amount of Losses exceeds the Deductible, at which time Parent and its Affiliates and EXECUTION VERSION Associates (including the Surviving Corporation) under Article 7 unless and until the aggregate amount of Losses exceeds the Deductible, at which time Parent and its Affiliates and Associates (including the Surviving Corporation) may recover all amounts of such Losses (as defined including any amounts of Losses considered in determining whether the Escrow Agreement) incurred or sustained, directly or indirectly, by any of themDeductible has been exceeded). 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 Parent and its Affiliates and Associates (including the Purchaser Parties, Newco and their officers, directors, employees and agents to obtain recovery from the Target Shareholders with respect to Surviving Corporation) for any Losses and no such party shall have recourse against the Target Shareholders under this Agreement. In the event that the Merger is not accounted for as a Pooling of Interests, the parties agree to work together in good faith to amend this Agreement to provide the holders of Company Capital Stock with the option to pay any claims 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 indemnification under this Section 4.0 and the terms 7.2 in cash, rather than shares 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 tortParent Capital Stock.

Recourse to the Escrow Fund. The Escrow Fund shall be available (and, subject to indemnify the Purchaser Partieslast sentence of this clause (b), Newco shall be the sole and exclusive remedy) to compensate Parent and Merger Sub, and their respective officers, directors, employees or agentsemployees, agents and Affiliates, for any and all Losses (as defined in the Escrow Agreement) whether or not involving a Third Party Claim), incurred or sustainedsustained by Parent or Merger Sub, 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, stockholdersemployees, employees agents or agents for Affiliates, 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 respect of any Losses or any other liabilities arising out instrument delivered by the Company pursuant to Article 6 of this Agreement which survived the Effective Time in accordance with this Agreement; provided, however, that Parent and Merger Sub may not make any claims against the Escrow Fund unless the aggregate Losses incurred or sustained exceed $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 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 a fraudulent breach (i.e., an intentional breach of a representation, warranty, covenant or agreement, but excluding a negligent or reckless breach) by the Company of any of its representations, warranties, agreements or covenants contained 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 such a fraudulent breach, Parent and Merger Sub shall have all remedies available at law or in equity (including for tort) with respect to such breach; provided, however, that, notwithstanding anything to the contrary contained in this Agreement, in no event shall any shareholder of the Company have any liability in excess of the Merger consideration received by such shareholder in connection with the Merger or the transactions or agreements contemplated herein. Notwithstanding the foregoingproceeds, 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 fraudif any, willful misconduct or intentional misstatement which may have been committed received by such Target Shareholder or for fraud, willful misconduct or intentional misstatement which may have been committed by Target and for which shareholder in connection with the disposition of such Target Shareholder may be liable in tortMerger consideration.

Recourse to the Escrow Fund. The (i) IP Escrow Fund Amount shall be available to indemnify the Purchaser Partiescompensate Parent, Newco Merger Sub and their respective officers, directors, employees or agentsemployees, agents and representatives (including the Surviving Corporation; collectively, the "Parent Indemnitees") for any and all Losses (whether or not involving a Third Party Claim), incurred or sustained by Parent or any other Parent Indemnitee as defined 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 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 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 5.5 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 warranties of the Company set forth in Section 2.3 or the related Sections of the Company Disclosure Schedule, the Parent Indemnitees may not make any claims against the Escrow Fund unless the aggregate Losses (including IP Losses) incurred or sustainedsustained 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, directly violation or indirectly, by inaccuracy in or omission from any of themthe 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 the Company. The stockholders of the Company shall not have any contractual liability under this Agreement of any sort whatsoever in excess of the Escrow Fund (and the Escrow Fund shall be applied against the Losses sole contractual remedy of the Parent Indemnitees), except in the manner set out event of fraud or willful misconduct (i.e., an intentional breach of a representation, warranty, covenant 64 70 or agreement, but excluding a negligent or reckless breach) by the Company of any of its representations, warranties, agreements or covenants contained in this Agreement, the Escrow Agreement by applying Purchaser Common Shares and Exchangeable Shares Ancillary Agreements or in the same ratio as the ratio of Purchaser Common Shares any other instrument or document required to Exchangeable Shares contributed to the Escrow Fund be delivered pursuant to Section 4.1this Agreement in connection herewith. This Section 4.0 In the event of such a fraudulent breach, Parent and Merger Sub shall be the sole and exclusive remedy have all remedies available to the Purchaser Parties, Newco and their officers, directors, employees and agents to obtain recovery from the Target Shareholders at law or in equity (including for tort) 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 breach; provided, however, that, notwithstanding anything to the loss of his Deposited Shares (as defined contrary contained in the Plan of Arrangement), and his share of any other property included in the Escrow Fundthis Agreement, in satisfaction of Losses in accordance with this Section 4.0 and the terms no event shall any stockholder of the Escrow Agreement, no Target Shareholder shall Company have any liability in excess of the Merger consideration received by such stockholder in connection with the 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 Purchaser Partiesperson or persons designated in Section 9.1 hereof, Newco and the Escrow Agent may rely upon the confirmations of anyone purporting to be the person or any of their respective officerspersons so designated. The persons and telephone numbers for call-backs may be changed as set forth in Section 9.1 hereof, directorsprovided, stockholdershowever, employees or agents for or in respect of any Losses or any other liabilities arising out of 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 other 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 transactions transfer of funds to a bank other than the beneficiary's bank, 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 tortan intermediary bank designated.

Recourse to the Escrow Fund. (i) Subject to the limitations set forth herein, Acquirer and its officers, directors, employees, agents, Affiliates and Associates (including the Company after the Effective Time and the Surviving Corporation; collectively, the “Acquirer Indemnitees”) shall be indemnified and held harmless by the Escrow Participants, severally but not jointly, from and against any and all Losses (whether or not involving a Third Party Claim) incurred by the Acquirer Indemnitees directly or indirectly as a result of: (A) any inaccuracy or breach of a representation or warranty of the Company contained herein; (B) any Third Party Expenses in excess of $500,000; (C) any failure by the Company to perform or comply with any covenant contained herein; (D) any Loss as a result of (i) any failure by the Company to comply with any state, federal or foreign securities laws, (ii) any violation by the Company of Section 409A of the Code or (iii) any failure by the Company to comply with Section 280G of the Code; or (E) any cash paid by Acquirer or the First-Step Surviving Corporation after the Effective Time to holders of Company Capital Stock as to which appraisal rights have been properly exercised under the California Code (or any other applicable law) pursuant to a decision of a court of competent jurisdiction or otherwise in excess of what such shareholder would be entitled to receive hereunder (the “Excess Dissenting Share Payments”), notwithstanding Section 1.11. (ii) The Escrow Fund shall be the sole remedy available to indemnify compensate the Purchaser Parties, Newco and their respective officers, directors, employees or agents, Acquirer Indemnitees 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 such Losses and no such party the Acquirer Indemnitees shall have recourse not be entitled to make any claims 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 AgreementParticipants in excess of the Escrow Amount except, no Target Shareholder shall have any liability to in the Purchaser Parties, Newco or any case 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 (A) fraud, willful misconduct or intentional misstatement which may have been committed willful misrepresentation by such Target Shareholder the Company or for any Subsidiary, (B) a breach of a Specified Representation or (C) any Loss set forth in Section 6.2(b)(i)(D) above; provided, however, in the case of (A) fraud, willful misconduct or intentional misstatement which willful misrepresentation by the Company or any Subsidiary of the Company, the indemnification obligations of each Company shareholder shall continue to be several and not joint and shall be limited to one hundred percent (100%) of the portion of the Merger Consideration actually received by such Company shareholder and (B) a breach of a Specified Representation or any Loss set forth in Section 6.2(b)(i)(D) above the indemnification obligations of each Company shareholder shall continue to be several and not joint and shall be limited to ten percent (10%) of the portion of the Merger Consideration actually received by such Company shareholder (inclusive of such Company shareholder’s pro rata contribution to the Escrow Amount but assuming for this purpose that the full amount of such contribution is ultimately released to such Company shareholder). (iii) Except in the case of (A) Excess Dissenting Share Payments or (B) any Third Party Expenses in excess of $500,000, Acquirer may have been committed by Target and for not make any claims against the Escrow Fund unless the aggregate Losses incurred or sustained exceed one hundred thousand dollars ($100,000) (the “Basket”) (at which such Target Shareholder time claims may be liable made for all Losses incurred or sustained). (iv) With respect to actions grounded in tortfraud, willful misconduct or willful misrepresentation, (A) the right of a party to be indemnified and held harmless pursuant to the indemnification provisions in this Agreement shall be in addition to and cumulative of any other remedy of such party at law or in equity and (B) no such party shall, by exercising any remedy available to it under this Article 6, be deemed to have elected such remedy exclusively or to have waived any other remedy, whether at law or in equity, available to it.

Recourse to the Escrow Fund. The Escrow Fund Amount shall be available to indemnify as security for the Purchaser Parties, Newco and their respective officers, directors, employees or agents, for any and all Losses (as defined in indemnification obligations of the Escrow Agreement) incurred or sustained, directly or indirectly, by any of themCompany's stockholders. The Escrow Fund Amount 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 serve 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 an absolute limitation on liability for any other Losses. Except for the liability of a Target Shareholder with respect , provided, however, that this limitation shall not apply 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 that are related 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 an Identified Risk or the transactions or agreements contemplated hereinresult of fraud. Notwithstanding the foregoing, nothing in this Section 4.0 agreement shall be construed to limit the amount which may be recovered by the Indemnified Persons or through any other remedy as a result of Losses relating to an Identified Risk or in the Purchaser may event of fraud. The maximum liability for any Stockholder, including Founder, for any breach of a representation, warranty or covenant of the Company shall be limited to the portion of the Escrow Amount in which such Stockholder has an interest pursuant to this Agreement. (i) No investigation made by or on behalf of Parent with respect to the Company shall be deemed to affect Parent's reliance on the representations, warranties, covenants and agreements made by the Company contained in this Agreement and shall not be waiver of Parent's rights to indemnity as herein provided for the breach or inaccuracy of, or failure to perform or comply with, any of the Company's representations, warranties, covenants or agreements under this Agreement. All representations and warranties set forth in this Agreement shall be deemed to have under been made again by the Company at and as of the Closing. No performance or execution of this Agreement in whole or in part by any Principal Shareholder Voting Agreement party hereto, no course of dealing between or among the parties hereto or any remedy Purchaser delay or failure on the part of any party in exercising any rights hereunder or at law in equity, and no investigation by any party hereto shall operate as a waiver of any rights of such party. (ii) Subject to the limitations provided in this ARTICLE 7, the stockholders of the Company shall have liabilities and obligations of Losses (as defined herein) under this ARTICLE 7 only with respect to claims submitted or notice of claims provided during the time period of survivability of the specific representation, warranty, covenant or agreement as set forth herein. Notwithstanding the expiration date of the representations, warranties, covenants and agreements set forth herein, if Parent shall notify in writing the Depositary Agent with respect to the submission of a claim during the time period of survivability of such representation, warranty, covenant or agreement in conformity with the terms of the Escrow Agreement, such liability or obligation of Losses shall continue in full force and effect until those claims timely made are finally settled. (iii) Notwithstanding the foregoing, Parent may have against a particular Target Shareholder for fraudnot receive any shares from the Escrow Fund unless and until an Officer's Certificate or Certificates (as defined in Section 7.2(f)(i) below) identifying Losses the aggregate amount of which exceeds $100,000 has been delivered to the Depositary Agent as provided in Section 7.2(f) below and such amount is determined pursuant to this ARTICLE 7 to be payable, willful misconduct or intentional misstatement in which may have been committed by such Target Shareholder or for fraudcase Parent shall receive shares equal in value to the full amount of Losses (including the first $100,000) up to the Escrow Amount, willful misconduct or intentional misstatement which may have been committed by Target and for which such Target Shareholder may be liable in tortexcept as otherwise stated herein.

Recourse to the Escrow Fund. The Escrow Fund shall be available to indemnify the Purchaser Parties, Newco compensate Broadcom and their respective its officers, directors, employees or 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 defined 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; 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 warranties of the Company set forth in Section 2.3 or the related sections of the Company Disclosure Schedule, Broadcom may not make any claims against the Escrow AgreementFund unless the aggregate Losses incurred or sustained exceed two million three hundred thousand dollars ($2,300,000) (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, directly violation or indirectly, by inaccuracy in or omission from any of themthe 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 Escrow Fund stockholders of the Company shall be applied against the Losses not have any liability under this Agreement of any sort whatsoever in the manner set out in excess of the Escrow Agreement by applying Purchaser Common Shares Fund, 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 of Broadcom, except in the case of either fraud or willful misconduct (i.e., an intentional breach of a representation, warranty, covenant or agreement, but excluding a negligent or reckless breach) by 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 such a fraudulent or willful breach, Broadcom shall have all remedies available to the Purchaser Parties, Newco and their officers, directors, employees and agents to obtain recovery from the Target Shareholders at law or in equity (including for tort) 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 breach; provided, however, that, notwithstanding anything to the loss of his Deposited Shares (as defined contrary contained in this Agreement, except in the Plan of Arrangement), and his share of any other property included event that such stockholder induced or participated in the Escrow Fundsuch fraud or willful misconduct, in satisfaction of Losses in accordance with this Section 4.0 and the terms no event shall any stockholder of the Escrow Agreement, no Target Shareholder shall Company have any liability to (i) in excess of the Purchaser Parties, Newco stockholder's pro rata share of such liability or any (ii) in excess of their respective officers, directors, stockholders, employees or agents for or the Merger consideration received by such stockholder in respect of any Losses or any other liabilities arising out of this Agreement connection with the Merger or the transactions or agreements contemplated herein. Notwithstanding the foregoingproceeds, 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 fraudif any, willful misconduct or intentional misstatement which may have been committed received by such Target Shareholder or for fraud, willful misconduct or intentional misstatement which may have been committed by Target and for which stockholder in connection with the disposition of such Target Shareholder may be liable in tort.Merger consideration. -66- 74

Recourse to the Escrow Fund. The Escrow Fund shall be available to indemnify the Purchaser Parties, Newco compensate Broadcom and their respective its officers, directors, employees or 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 Broadcom or any other Broadcom Indemnitee as defined a result of any 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, (ii) as contemplated by Section 5.25 and (iii) any Losses incurred or sustained by 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 related sections of the Company Disclosure Schedule, Broadcom may not make any claims against the Escrow Agreement) Fund unless the aggregate Losses incurred or sustained exceed $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, directly violation or indirectly, by inaccuracy in or omission from any of them. The Escrow Fund 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 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 recoverable without respect to any Losses threshold amount. Broadcom and no the Company each acknowledge that such party 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 the Company shall not have recourse against the Target Shareholders any liability 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 sort whatsoever in excess of the Escrow Fund, except in satisfaction the event of Losses fraud or willful misconduct (i.e., an intentional breach of a representation, warranty, covenant or agreement, but excluding a negligent or reckless breach) by the Company of any of its representations, warranties, agreements or covenants contained in accordance 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 such a fraudulent or willful breach, Broadcom shall have all remedies available at law or in equity (including for tort) with respect to such breach; provided, however, that, notwithstanding anything to the contrary contained in this Section 4.0 and the terms Agreement, in no event shall any shareholder of the Escrow Agreement, no Target Shareholder shall Company have any liability to in excess of the Purchaser Parties, Newco or any of their respective officers, directors, stockholders, employees or agents for or Merger consideration received by such shareholder in respect of any Losses or any other liabilities arising out of this Agreement connection with the Merger or the transactions or agreements contemplated herein. Notwithstanding the foregoingproceeds, 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 fraudif any, willful misconduct or intentional misstatement which may have been committed received by such Target Shareholder or for fraud, willful misconduct or intentional misstatement which may have been committed by Target and for which shareholder in connection with the disposition of such Target Shareholder may be liable in tortMerger consideration.

Recourse to the Escrow Fund. The Escrow Fund shall be available to indemnify the Purchaser Parties, Newco compensate Broadcom and their respective its officers, directors, employees or 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 Broadcom or any other Broadcom Indemnitee as defined a result of 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 the Company or any of the Selling Shareholders contained herein or in the Ancillary Agreements or in any instrument delivered pursuant to 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 warranties of the Company set forth in Section 2.3 or the related sections of the Company Disclosure Schedule, Broadcom may not make any claims against the Escrow Agreement) Fund unless the aggregate Losses incurred or sustained exceed $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, directly violation or indirectly, by inaccuracy in or omission from any of them. The Escrow Fund 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 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 recoverable without respect to any Losses threshold amount. Broadcom and no the Company each acknowledge that such party 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 the Company, nor the Selling Shareholders shall have recourse against the Target Shareholders any liability 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 sort whatsoever in excess of the Escrow Fund, except in satisfaction the -52- 63 event of Losses in accordance with this Section 4.0 and fraud or willful misconduct (i.e., an intentional breach of a representation, warranty, covenant or agreement, but excluding a negligent or reckless breach) by the terms Company or any of the Escrow Agreement, no Target Shareholder shall have any liability to the Purchaser Parties, Newco or Selling Shareholders of any of their respective officersrepresentations, directorswarranties, stockholdersagreements or covenants contained in this Agreement, employees or agents for the Ancillary Agreements or in respect of any Losses or any other liabilities arising out of instrument or document required to be delivered pursuant to this Agreement in connection herewith. In the event of such a fraudulent breach, Broadcom shall have all remedies available at law or in equity (including for tort) with respect to such breach; provided, however, that, notwithstanding anything to the transactions or agreements contemplated herein. Notwithstanding the foregoing, nothing contrary contained in this Section 4.0 Agreement, in no event shall limit any remedy shareholder of the Purchaser may Company 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 liability in excess of the net consideration (after Israeli tax) received 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 shareholder in tortthe Transactions.

Recourse to the Escrow Fund. The Escrow Fund shall be available to indemnify compensate (and shall, except as otherwise set forth in this Section 7.2(b), be the Purchaser Parties, Newco sole source of compensation to) Broadcom and their respective its officers, directors, employees or employees, agents, Affiliates and Associates (collectively, "Broadcom Indemnitees") for any and all Losses (as defined in the Escrow Agreement) whether or not 57 65 involving a Third Party Claim), incurred or sustainedsustained by Broadcom or any other Broadcom Indemnitee, directly or indirectly, by as a result of any inaccuracy or breach of them. The Escrow Fund shall be applied against any representation, warranty, covenant or agreement of the Losses Company contained herein or in the manner set out Ancillary Agreements or in the Escrow Agreement by applying Purchaser Common Shares and Exchangeable Shares in the same ratio as the ratio of Purchaser Common Shares any instrument delivered pursuant to Exchangeable Shares contributed to this Agreement; provided, however, that Broadcom may not make any claims against the Escrow Fund pursuant unless the aggregate Losses incurred or sustained exceed $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 Section 4.1. This Section 4.0 shall 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 the sole and exclusive remedy available paid to the Purchaser Parties, Newco and their officers, directors, employees and agents to obtain recovery from shareholders of the Target Shareholders with respect to Company. The shareholders of the Company shall not have any Losses and no such party shall have recourse against the Target Shareholders liability under this Agreement for of any other Losses. Except for sort whatsoever in excess of the liability Escrow Fund, except in the event of fraud or willful misconduct (i.e., a fraudulent breach of a Target Shareholder representation or warranty or an intentional breach of a covenant or agreement, but excluding a negligent or reckless breach) by the Company of any of its representations, warranties, agreements or covenants contained in this Agreement, the Ancillary Agreements or in any Closing certificate required to be delivered pursuant to this Agreement in connection herewith (it being understood that in any controversy concerning the applicability of this exception, Broadcom shall have the burden of proof with respect to the loss applicability of his Deposited Shares the exception). In the event of such a fraudulent or intentional breach, Broadcom shall have all remedies available at law or in equity (as defined including for tort) with respect to such breach; provided, however, that, notwithstanding anything to the contrary contained in the Plan of Arrangement), and his share of any other property included in the Escrow Fundthis Agreement, in satisfaction of Losses in accordance with this Section 4.0 and the terms no event shall any shareholder of the Escrow Agreement, no Target Shareholder shall Company have any liability to in excess of the Purchaser Parties, Newco or any of their respective officers, directors, stockholders, employees or agents for or Merger consideration received by such shareholder in respect of any Losses or any other liabilities arising out of this Agreement connection with the Merger or the transactions or agreements contemplated herein. Notwithstanding the foregoingproceeds, 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 fraudif any, willful misconduct or intentional misstatement which may have been committed received by such Target Shareholder or for fraud, willful misconduct or intentional misstatement which may have been committed by Target and for which shareholder in connection with the disposition of such Target Shareholder may be liable in tortMerger consideration.

Recourse to the Escrow Fund. The Escrow Fund shall be available Subject to indemnify the Purchaser Partieslimitations set forth herein, Newco Acquirer and their respective its officers, directors, employees or employees, agents, for Affiliates and Associates (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 the Surviving Corporation directly or indirectly as defined a result of (i) any inaccuracy or breach of a representation or warranty of the Company contained herein; provided, however, that in the Escrow Agreementevent a breach or inaccuracy in 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 Section 7.2 with respect to such breach; (ii) incurred any failure by the Company to perform or sustained, directly comply with any covenant contained herein; or indirectly, (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 themthe Court of Chancery in excess of what such stockholder would be entitled to receive hereunder. 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 remedy, except for fraud or willful misconduct or willful misrepresentation, available to compensate the Purchaser Parties, Newco Acquirer Indemnitees for any and their officers, directors, employees and agents to obtain recovery from the Target Shareholders with respect to any all such Losses and no such party the Acquirer Indemnitees shall have recourse not be entitled to make any claims 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 Participants in excess of the Purchaser Parties, Newco or any Escrow Amount except in the case 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 willful misrepresentation by the Company or the Subsidiary. Except in the case of claims for Losses resulting from any cash paid by Acquirer or Surviving Corporation to holders of Company Capital Stock as to which may appraisal rights have been committed 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 and for unreimbursed Excess Third Party Expenses, Acquirer may not make any claims against the Escrow Fund unless the aggregate Losses incurred or sustained exceed two hundred thousand dollars ($200,000) (the “Basket”) (at which such time claims may be made for all Losses incurred or sustained). The dollar threshold of 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 other applicable law) pursuant to a decision of the Court of Chancery in excess of what such Target Shareholder stockholder would be entitled to receive hereunder, or for (y) from unreimbursed Excess Third Party Expenses. Any limitations set forth in this Section 7.2 shall not apply to fraud or willful misconduct or willful misrepresentation. With respect to actions grounded in fraud, willful misconduct or intentional misstatement which may willful misrepresentation, (i) the right of a party to be indemnified and held harmless pursuant to the indemnification provisions in this Agreement shall be in addition to and cumulative of any other remedy of such party at law or in equity and (ii) no such party shall, by exercising any remedy available to it under this Article 7, be deemed to have been committed elected such remedy exclusively or to have waived any other remedy, whether at law or in equity, available to it; provided, however, in no event shall any 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 amounts actually received by Target and for which such Target Shareholder may be liable in tortCompany Stockholder or Senior Manager under this Agreement.

Recourse to the Escrow Fund. The Escrow Fund shall be available to indemnify the Purchaser Partiescompensate Parent, Newco BVI, Acquisition Sub and CDN2, and their respective officers, directors, employees or employees, agents, Affiliates and Associates for any and all Losses (as defined in the Escrow Agreement) whether or not involving a Third Party Claim), incurred or sustainedsustained by Parent, BVI, Acquisition Sub or CDN2, 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. No claim may be made by any of them. The Escrow Fund shall be applied Parent, BVI, Acquisition Sub or CDN2 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 unless and until the aggregate of all such Losses exceeds $250,000. Parent, BVI, Acquisition Sub, CDN2 and the Company each acknowledge that such Losses, if any, would relate to Section 4.1. This Section 4.0 shall unresolved contingencies existing at the Effective Time, which if resolved at the Effective Time would have led to a reduction in the aggregate Plan of Arrangement consideration to be the sole and exclusive remedy available paid 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 shareholders of the Escrow AgreementCompany. Parent, no Target Shareholder shall have any liability to the Purchaser PartiesBVI, Newco or any Acquisition Sub and CDN2, on their own behalf and on behalf of their respective officers, directors, stockholdersemployees, employees agents, Affiliates and Associates acknowledge that (i) they will have no recourse or agents claim (absent fraud) in connection with any inaccuracy or breach of representations or covenants relating to the ability of Parent to account for the Acquisition as a Pooling of Interests if Parent waives the condition set forth in Section 6.3(c) in order to consummate the Acquisition and (ii) their rights and remedies for Losses incurred by Parent, BVI, Acquisition Sub and CDN2, their respective officers, directors, employees, agents, Affiliates and Associates are limited to claims against the Escrow Fund and, in the absence of fraud, have no other recourse or in respect rights of indemnity or other compensation of any Losses sort whatsoever against the Company, its shareholders 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 tortPerson.

Recourse to the Escrow Fund. The Escrow Fund shall be available to indemnify the Purchaser Parties, Newco compensate Acquiror and their its respective officers, directors, employees or employees, agents, Affiliates and Associates (collectively, the "Acquiror Indemnitees") for any and all Losses (as defined in the Escrow Agreement) whether or not involving a Third Party Claim), incurred or sustainedsustained by Acquiror or any other Acquiror Indemnitees, 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 the Ancillary Agreements or in any instrument delivered pursuant to this Agreement or as the result of the exercise by any of them. The Escrow Fund shall be applied against the Losses Company's stockholders of applicable appraisal, dissenters' or similar rights (in the manner set out 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 the Escrow Agreement by applying Purchaser Common Shares and Exchangeable Shares in the same ratio as the ratio respect of Purchaser Common Shares to Exchangeable Shares contributed to such Dissenting Shares); PROVIDED, HOWEVER, that Acquiror may not make any claims against the Escrow Fund pursuant unless the aggregate Losses incurred or sustained exceed $100,000 (at which such time claims may be made for all Losses, including the first $100,000 thereof). 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 4.1. This 3.14 or the covenants in Section 4.0 6.5 which 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 recoverable without respect to any Losses and no such party shall have recourse against threshold amount. Notwithstanding the Target Shareholders under this Agreement for any other Losses. Except for the liability establishment 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 an Escrow Fund, Acquiror shall have all remedies available at law or in satisfaction of Losses equity (including for tort); PROVIDED, HOWEVER, that, notwithstanding anything to the contrary contained in accordance with this Section 4.0 and the terms Agreement, in no event shall any stockholder of the Escrow Agreement, no Target Shareholder shall Company have any liability to in excess of 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 consideration received 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 stockholder in tortconnection with the Merger.

Recourse to the Escrow Fund. The Escrow Fund Amount shall be available to indemnify as security for the Purchaser Partiesindemnification obligations of the Company's shareholders. The Escrow Amount shall serve as an absolute limitation on liability of the Company, Newco and their respective or the Company's officers, directors, employees employees, shareholders, Affiliates or agents, Associates for any and all Losses, provided, however, that this limitation shall not apply to 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 that are related 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 an Identified Risk or the transactions or agreements contemplated hereinresult of fraud. Notwithstanding the foregoing, nothing in this agreement shall be construed to limit the amount which may be recovered by the Indemnified Persons from the Company shareholders through the indemnity provided by Section 4.0 7.2 or through any other remedy as a result of Losses relating to an Identified Risk or in the event of fraud. Recovery from the Escrow Fund as provided in this Article 7 shall limit be the Indemnified Persons' sole and exclusive remedy for Losses other than Losses relating to an Identified Risk or fraud. (i) No investigation made by or on behalf of Parent with respect to the Company shall be deemed to affect Parent's reliance on the representations, warranties, covenants and agreements made by the Company contained in this Agreement and shall not be waiver of Parent's rights to indemnity as herein provided for the breach or inaccuracy of, or failure to perform or comply with, any remedy of the Purchaser may Company's representations, warranties, covenants or agreements under this Agreement. All representations and warranties set forth in this Agreement shall be deemed to have under been made again by the Company at and as of the Closing. No performance or execution of this Agreement in whole or in part by any Principal Shareholder Voting Agreement party hereto, no course of dealing between or among the parties hereto or any remedy Purchaser delay or failure on the part of any party in exercising any rights hereunder or at law in equity, and no investigation by any party hereto shall operate as a waiver of any rights of such party. (ii) Subject to the limitations provided in this ARTICLE 7, the shareholders of the Company shall have liabilities and obligations of Losses (as defined herein) under this ARTICLE 7 only with respect to claims submitted or notice of claims provided during the time period of survivability of the specific representation, warranty, covenant or agreement as set forth below in Section 7.2(d). Notwithstanding the expiration date of the representations, warranties, covenants and agreements set forth herein, if Parent shall notify in writing the Depositary Agent with respect to the submission of a claim during the time period of survivability of such representation, warranty, covenant or agreement in conformity with the terms of the Escrow Agreement, such liability or obligation of Losses shall continue in full force and effect until those claims timely made are finally resolved. (iii) Notwithstanding the foregoing, Parent may have against a particular Target Shareholder for not receive any shares from the Escrow Fund unless and until an Officer's Certificate or Certificates (as defined in Section 7.2(f)(i) below) identifying Losses the aggregate amount of which exceeds $100,000 has been delivered to the Depositary Agent as provided in Section 7.2(c) below and such amount is determined pursuant to this ARTICLE 7 to be payable, in which case Parent shall receive shares equal in value to the full amount of Losses (including the first $100,000); provided, however, that except in the case of Losses resulting from an Identified Risk or from 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 Parent shall not receive more than the number of shares of Parent Common Stock placed in tortthe Escrow Fund.

Recourse to the Escrow Fund. The Escrow Fund shall be available to indemnify the Purchaser Parties, Newco compensate Acquiror and their respective its officers, directors, employees or employees, agents, Affiliates and Associates for any and all Losses (as defined in the Escrow Agreement) whether or not involving a Third Party Claim), incurred or sustainedsustained by Acquiror, its officers, directors, employees, agents, Affiliates or Associates, directly or indirectly, by as a result of (i) any inaccuracy or breach of them. The Escrow Fund shall be applied against the Losses any representation, warranty, covenant or agreement of Target contained herein or in the manner set out 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 Escrow Agreement by applying Purchaser Common Shares and Exchangeable Shares Surviving Corporation over $200,000 to settle or otherwise resolve Target's litigation described in Section 2.12 of the same ratio as Target Disclosure Schedules. Notwithstanding the ratio of Purchaser Common Shares to Exchangeable Shares contributed to foregoing, Acquiror may not make any claims against the Escrow Fund pursuant to Section 4.1clause (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). This Section 4.0 The shareholders of Target shall be not have any liability under this Agreement in excess of the sole and exclusive remedy available to Escrow Fund, except in the Purchaser Parties, Newco and their officers, directors, employees and agents to obtain recovery from the event of fraud or intentional misrepresentation by Target Shareholders with respect to any Losses and no such party 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 recourse all remedies available at law or in equity (including for tort); PROVIDED, HOWEVER, that Acquiror shall not proceed against the any shareholder of Target Shareholders under this Agreement for to recover 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 Losses until the Escrow FundFund shall have been exhausted; and PROVIDED FURTHER, that in satisfaction no event shall any shareholder of Losses in accordance with this Section 4.0 and the terms of the Escrow Agreement, no Target Shareholder shall have any liability to in excess of the Purchaser Parties, Newco or Merger Consideration received by such shareholder (with any shares 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 Acquiror Common Stock being valued at the transactions or agreements contemplated hereinClosing Price). Notwithstanding the foregoing, nothing in this Section 4.0 Agreement shall limit (i) Acquiror's rights to specific performance or injunctive relief with respect to any remedy the Purchaser may have under breach by Target of any Principal Shareholder Voting 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 remedy Purchaser may have against a particular liability of any holder of Target Shareholder Capital Stock, Target Options or Target Warrants for fraud, willful misconduct or intentional misstatement which may have been committed any breach of any agreement executed 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 Person in tortconnection with the consummation of the transactions contemplated hereby.

Recourse to the Escrow Fund. The Escrow Fund shall be available to indemnify compensate the Purchaser Parties, Newco and their respective its officers, directors, employees or agentsemployees, agents and Affiliates (collectively, the "Purchaser Indemnitees") for any and all Losses (as defined in the Escrow Agreement) whether or not involving a third party claim (a "Third Party Claim")), incurred or sustainedsustained by the Purchaser or any other Purchaser Indemnitee as a result of any breach or violation of, directly inaccuracy in or indirectlyomission from any representation or warranty, by or any breach or violation of them. The Escrow Fund shall any covenant or agreement, of the Company or any Person who is or was a director, officer, Affiliate or shareholder of the Company contained in this Agreement, the Transition Services Agreement, or any certificate or instrument required to be applied against delivered at the Losses in Closing of 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 Transaction pursuant to Section 4.1. This Section 4.0 shall be the sole and exclusive remedy available to the Purchaser Partiesthis Agreement, Newco and their officers, directors, employees and agents to obtain recovery from the Target Shareholders or with respect to any Losses and no such party shall have recourse against the Target Shareholders under this Agreement Taxes of Company for any other Losses. Except for the liability pre-Closing period or portion of a Target Shareholder with respect Straddle Period prior to Closing. The Purchaser 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 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 hereinCompany. Notwithstanding the foregoing, nothing in the event of fraudulent or willful misconduct by the Company or any Person who is or was a director, officer, Affiliate or shareholder of the Company in connection with this Section 4.0 shall limit any remedy the Purchaser may have under any Principal Shareholder Voting Agreement or any remedy other certificate or instrument required to be delivered at the Closing of the Transaction pursuant to this Agreement, the parties acknowledge that notwithstanding anything to the contrary herein, the Purchaser may shall have against a particular Target Shareholder all remedies available at law or in equity (including for fraud, tort) with respect to such fraudulent or willful misconduct or intentional misstatement which may have been committed and such remedies will not be capped 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 tortthe Escrow Fund.