Marvell Technology Group (MRVL)

5.02         Additions to and Modification of Schedules.

(a)   Subject to subsection (b), if on any date on or prior to the Closing Date, a Party determines that any of the information in any representation, warranty or schedule of such Party (including the Seller Disclosure Schedules and the Buyer Disclosure Schedules, as applicable) provided on the date hereof is not true, accurate and complete in all material respects, such Party shall be entitled to amend the schedules relating to such Party to make additions to or modifications of such schedules (and to add new schedules not previously included in the Seller Disclosure Schedules or Buyer Disclosure Schedules, respectively, with respect to the representations and warranties in Articles III and IV, respectively) necessary to make the information set forth in such representation, warranty or schedule true, accurate and complete in all material respects, and such representations, warranties and schedules shall thereupon be deemed amended to reflect such additions and modifications for all purposes except as provided herein, provided, however, that Seller shall not be permitted to amend Schedule 2.05(a) to add assets or Liabilities of the Transferred Sub that are exclusively related to the Business without the consent of Buyer.  For any additions or modifications made to correct inaccuracies of the representations and warranties set forth in Article III or Article IV, respectively (including those representations and warranties which are expressed with respect to a date prior to the date hereof) for facts, events or circumstances occurring prior to or existing on and disclosable as of the date hereof, the non-amending Party shall be entitled to indemnification pursuant to the provisions set forth in Article VII.  Notwithstanding the foregoing, no such supplement or amendment may be made with respect to a Contract in existence on the date hereof if such Contract (together with all other such Contracts disclosed in amendments and supplements pursuant to this Section 5.02(a) but which were not listed on Schedule 2.01(c) or Schedule 2.01(d) as of the date of the execution of this Agreement) involves or (to the extent reasonably apparent on the face of such Contract) would involve monetary liabilities or obligations in excess of Thirty Million Dollars ($30,000,000) in the aggregate.  All Liabilities under such Contracts in excess of such aggregate amount shall be deemed “Excluded Liabilities” for all purposes hereunder.

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(b)   Notwithstanding subsection (a), not less than two (2) days prior to the Closing, Seller shall deliver to Buyer a supplement to the schedules to this Agreement (other than the Seller Disclosure Schedules or Buyer Disclosure Schedules, respectively) with respect to facts, events or circumstances arising after the date hereof, but any such supplement will be disregarded and have no further force and effect hereunder for any purposes unless such supplement:  (i) is consented to in writing by Buyer or (ii) derives from actions by Seller and its Subsidiaries that are either expressly permitted in this Agreement or not prohibited by Article V (and if such supplement complies with either of the foregoing clauses (i) and (ii), it shall be deemed a “Permitted Post-Signing Supplement”).  Permitted Post-Signing Supplements shall also include supplements delivered to Buyer within the foregoing time period that disclose any of the following:  (i) those Contracts relating exclusively to the Business entered into by a Selling Party or Transferred Sub after the date of this Agreement, and such Contracts identified on such supplement to Schedule 2.01(c), Schedule 2.01(d) or Schedule 3.08, respectively, shall be deemed to be Assumed Contracts or Transferred Sub Contracts, respectively, for all purposes hereof, provided that such Contracts were entered into in accordance with the terms of Article V or otherwise with the consent of Buyer (which shall not be unreasonably withheld), (ii) other assets relating exclusively to the Business acquired by a Selling Party after the date of this Agreement which would have been “Transferred Assets” if such assets were owned or held by a Selling Party as of the date hereof, and such assets identified on such supplement to Schedule 2.01 of the Seller Disclosure Schedules shall be deemed to be Transferred Assets, and (iii) other Liabilities relating exclusively to the Business incurred by a Selling Party or Transferred Sub after the date of this Agreement which would have been “Assumed Liabilities” or Liabilities of Transferred Sub if such Liabilities had been in existence as Liabilities of such Selling Party or Transferred Sub as of the date hereof, and such Liabilities identified on such supplement to Schedule 2.03 shall be deemed to be Assumed Liabilities, provided that such Liabilities were incurred in accordance with Article V hereof or otherwise with the consent of Buyer (which shall not be unreasonably withheld).  Notwithstanding the foregoing, Schedule 2.05(a) may not be updated to add assets or Liabilities of Transferred Sub that are exclusively related to the Business without the consent of Buyer.

(c)   Other than as set forth in Section 5.02(a) and (b), no Party may make any changes, supplements, amendments or modifications to the schedules to this Agreement with respect to any fact, event or circumstance occurring after the date hereof.  Notwithstanding anything to the contrary in this Agreement, in no event shall the inaccuracy of a representation and warranty give rise to a right of any Party to terminate this Agreement.

5.03         Compliance with Terms of Governmental Approvals and Consents. From and after the Closing Date, Buyer and each Buyer Designee shall comply at its own expense with all conditions and requirements imposed on Buyer or such Buyer Designee as set forth in (a) Buyer Approvals that are Governmental Approvals, to the extent necessary such that all such Governmental Approvals will remain in full force and effect assuming, if applicable, continued compliance with the terms thereof by Seller and (b) all Buyer Approvals of Persons other than Governmental Authorities, to the extent necessary such that all such consents and approvals will remain effective and enforceable against the Persons giving such consents and approvals, assuming, if applicable, continued compliance with the terms thereof by Seller.  The parties shall use all commercially reasonable efforts to obtain the consent prior to the Closing of the Investment Center in the Ministry of Industry, Trade & Labor of Israel (the “Investment Center”) to the

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transfer by the Subsidiary Sellers of the Transferred Shares.  Further, Buyer agrees that it shall, and shall cause the Buyer Designees acquiring the Transferred Shares to, continue to operate Transferred Sub in accordance with the requirements of the Investment Center, including those set forth in the applicable letters of approval and the applicable certificates with respect to the completion of the capital investments issued by the Investment Center.  Seller shall be responsible for liabilities (other than Taxes, which are governed by Section 5.09(h)(vi)) imposed on Transferred Sub on or following the Closing Date to the extent such liabilities constitute the recapture of an incentive that either reduced liabilities of Transferred Sub with respect to a period, or was paid to Transferred Sub, prior to the Closing Date, but only to the extent such recapture is a direct result of the failure of the Investment Center to approve the transfer of the Transferred Shares to Buyer or Buyer Designee pursuant to this Agreement; provided, that Buyer has complied with its obligations under this Section 5.03 with respect to obtaining such approval and has not taken or refrained from taking action that prevented such approval.  Buyer and Transferred Sub shall be responsible for all other recapture of incentives received by Transferred Sub.

5.04         Use of Marks. Notwithstanding any other provision of this Agreement, no interest in or right to use the name “Taurus” or any derivation thereof or any other Trademarks, service marks or trade names of Seller (the “Retained Marks”) is being transferred or otherwise licensed to Buyer or any Buyer Designee pursuant to the transactions contemplated by this Agreement.  Buyer agrees not to use and agrees to cause each Buyer Designee not to use any materials bearing Retained Marks or sell, transfer, or ship any products bearing Retained Marks (a) unless requested to do so by Seller, (b) except to the extent displayed on the hardcopy (non-electronic) form of such materials delivered to Buyer and/or a Buyer Designee at the Closing or (c) except as required under Assumed Contracts or Transferred Sub Contracts with customers, provided that such use, for each of (a) through (c), shall only be permitted until the date which is ninety (90) days after the Closing Date.  The foregoing rights are subject to Seller’s standard Trademark usage guidelines, a copy of which has been provided to Buyer, and Seller reserves the right to practice quality control with regard to its marks.  Upon the expiration of the foregoing license, all materials bearing any Retained Mark in the possession or control of Buyer or its agents shall be promptly destroyed.  Prior to any distribution of any materials bearing Retained Marks, Buyer shall use its commercially reasonable efforts to redact or modify such materials in order to minimize or eliminate the use of the Retained Marks.  Nothing in this section shall prevent Buyer from engaging in Fair Use or nominative fair use of the Retained Marks, to the extent permissible under the U.S. Trademark Act or common law.