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 l...
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 compensate 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) 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 amo...
Recourse to the Escrow Fund. The Escrow Fund shall be available --------------------------- to compensate the Parent and the Surviving Corporation, and their respective officers, directors, employees, agents, Affiliates and Associates for any and all Losses (whether or not involving a Third Party Claim), incurred or sustained by the Parent or Merger Sub, their respective officers, directors, employees, agents, Affiliates or Associates, directly or indirectly, as a result of any inaccuracy or breach of any representation, warranty, covenant or agreement of the Company contained herein or in any instrument delivered pursuant to this Agreement. The Parent, Merger Sub and the Company each acknowledge that such Losses, if any, would relate to unresolved contingencies existing at the Effective Time, which if resolved at the Effective Time would have led to a reduction in the aggregate Merger consideration to be paid to the shareholders of the Company. The Escrow Fund shall be the sole post closing remedy of the Parent and the Surviving Corporation for any breach of any representation, warranty, agreement or covenant contained herein (other than claims for fraud or negligent misrepresentation; provided, that no former shareholder of the Company shall be liable to the Parent or the Surviving Corporation for acts of fraud or negligent misrepresentation by Persons other than that former shareholder of the Company).
Recourse to the Escrow Fund. The Escrow Fund shall be available (and shall be the sole and exclusive remedy after the Effective Time) to hold Buyer and the Surviving Corporation, and their respective officers, directors, employees and agents, harmless for any and all Losses (whether or not involving a Third Party Claim), incurred or sustained by Buyer or the Surviving Corporation, their respective officers, directors, employees or agents, directly or indirectly, as a result of any inaccuracy or breach of any representation, warranty, covenant or agreement of the Company contained herein or in any certificate or other document delivered pursuant hereto (or, in the case of any representation or warranty of the Company contained herein, as a result of the failure of such representation or warranty to be true as of the Closing Date, unless such representation or warranty speaks only as of an earlier time); provided, however, that Buyer and the Surviving Corporation may not make any claims against the Escrow Fund unless the aggregate Losses incurred or sustained exceed $1,000,000 (at which time claims may be made for all such Losses incurred or sustained in excess of such amount). For purposes of this Agreement, "Losses" shall mean all losses, expenses (including reasonable attorneys' fees and expenses), damages, liabilities, fines, penalties, judgments, actions, claims and costs including any Tax imposed on any payment received from the Escrow Fund as well as Taxes resulting from the circumstances giving rise to the Loss. The Escrow Fund also shall be available, if applicable, for recovery by Buyer of the number of shares of Buyer Common Stock with a value (as determined in accordance with Section 7.2(e)) equal to the Company Cash Deficiency, without regard to the deductible provided for in the first sentence of this Section 7.2(b).
Recourse to the Escrow Fund. The Escrow Fund shall be available (and shall be the sole and exclusive remedy after the Effective Time) to compensate Buyer and the Surviving Corporation, and their respective officers, directors, employees, agents and affiliates, for any and all Losses (whether or not involving a Third Party Claim), incurred or sustained by Buyer or the Surviving Corporation, their respective officers, directors, employees, agents or affiliates, directly or indirectly, as a result of any inaccuracy or breach of any representation, warranty, covenant or agreement of the Company contained herein which survived the Effective Time in accordance with this Agreement;
Recourse to the Escrow Fund. The Escrow Amount shall be available as security for the indemnification obligations of the Company's shareholders. The Escrow Amount shall serve as an absolute limitation on liability of the Company, or the Company's officers, directors, employees, shareholders, Affiliates or Associates for any Losses, provided, however, that this limitation shall not apply to Losses that are related to an Identified Risk or the result 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 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 be the Indemnified Persons' sole and exclusive remedy for Losses other than Losses relating to an Identified Risk or fraud.
Recourse to the Escrow Fund. The Escrow Fund shall be available to compensate Broadcom and its officers, directors, employees, agents, Affiliates and Associates (collectively, the "Broadcom Indemnitees") for any and all Losses (whether or not involving a Third Party Claim) incurred or sustained by Broadcom or any other Broadcom Indemnitee as a result of any inaccuracy in or breach of any representation, warranty, covenant or agreement of the Company contained in this Agreement or in the Ancillary Agreements or in any instrument delivered pursuant to this Agreement; provided however, that Broadcom may not make any claim against the Escrow Fund unless the claim involves a Loss of five hundred thousand dollars ($500,000) or more and in no event may Broadcom make any claims against the Escrow Fund unless and until it has incurred Losses meeting the minimum claim threshold referred to above and the aggregate Losses associated with such Losses exceed five million dollars ($5,000,000) (at which time claims may be made only for the amount of Losses incurred or sustained in excess of $5,000,000). The dollar thresholds set forth in the immediately preceding proviso shall not apply to Losses resulting from any breach, violation or inaccuracy in or omission from any of the
Recourse to the Escrow Fund. The Escrow Fund shall be available (and shall be the sole and exclusive remedy after the Effective Time) to compensate Parent and the Surviving Corporation, and their respective officers, directors, employees, agents and affiliates, for any and all Losses (whether or not involving a Third Party Claim), incurred or sustained by Parent or the Surviving Corporation, their respective officers, directors, employees, agents or affiliates, directly or indirectly, as a result of any inaccuracy or breach of any representation, warranty, covenant or agreement of the Company contained herein which survived the Effective Time in accordance with this Agreement; provided, however, that Parent and the Surviving Corporation 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 in excess of such amount). The stockholders of the Company shall not have any liability under this Agreement of any sort whatsoever in excess of the Escrow Fund.
Recourse to the Escrow Fund. Nothing herein shall limit the liability of the Company for any Losses or damages incurred or sustained by Parent if the Merger does not close, and the establishment and availability of the Escrow Fund shall not in any way limit any other rights or remedies available hereunder or at law or in equity to Parent and its affiliates, all of which are cumulative and not exclusive. Parent may not receive any amounts from the Escrow Fund unless and until Parent delivers an Officer’s Certificate (as defined in subparagraph (e) below) to the Escrow Agent identifying the nature and amount of Losses being asserted.
Recourse to the Escrow Fund. (i) The Escrow Fund shall be available as a source for payment of the indemnification obligations of the shareholders of the Company set forth in Section 7.2 hereof; provided, that, the indemnification provided in Section 7.2 hereof shall not be limited in amount or type of remedy to the Escrow Fund. Parent, Merger Sub and the Company each acknowledge that Losses, if any, incurred by an Indemnified Party would relate to unresolved contingencies existing at the Effective Time, which if resolved at the Effective Time would have led to a reduction in the Aggregate Consideration to be paid to the shareholders of the Company. Except as set forth in Section 7.3(c), nothing in this Agreement shall limit the liability (i) of the Company for any breach of any representation, warranty or covenant contained in this Agreement or any certificate, instrument or document delivered by the Company pursuant hereto, or (ii) of any Company shareholder for its indemnification obligations under this Article VII.
