Marvell Technology Group (MRVL)

Excess Claim”), and such Excess Claim is pending or unresolved, Buyer and Seller agree to promptly thereafter jointly instruct the Escrow Agent in writing to withhold from the Escrow Payment a number of shares and/or amount of cash, if any, having an aggregate value equal to the amount of such Excess Claims (in the aggregate) until such matters are resolved.  For all purposes of the Escrow Fund, shares of Buyer Common Stock included in the Escrow Fund shall be valued at the Issuance Price.  If it is finally determined, by the agreement of Buyer and Seller or otherwise pursuant to this Agreement or by a court of competent jurisdiction, that any part or all of such Excess Claims are covered by Section 9.1, (i) the covered amount of such Excess Claims may be offset against the retained portion of the Escrow Fund, and, if such offset amount is greater than the Basket Amount, Buyer and Seller shall promptly thereafter jointly instruct the Escrow Agent in writing to release shares and/or cash, if any, having an aggregate value equal to such offset amount (including the Basket Amount) to Buyer; and (ii) Buyer and Seller shall promptly thereafter jointly instruct the Escrow Agent in writing (assuming that at such time the 12-month anniversary of the Closing Date has passed) to release the remainder of the Escrow Payment to Seller.  If it is finally determined that any such Excess Claim is not covered by Section 9.1 (again assuming that at such time the 12-month anniversary of the Closing Date has passed) Buyer and Seller shall promptly thereafter jointly instruct the Escrow Agent in writing to release all amounts withheld with respect to such Excess Claim to Seller.  At any time prior to distribution of the entire Escrow Fund pursuant to this Section 9.8, Seller may exchange any or all of the shares of Buyer Common Stock in the Escrow Fund held by the Escrow Agent for cash by wire transfer of immediately available funds to the Escrow Agent in an amount equal to the Issuance Price multiplied by the number of shares of Buyer Common Stock so exchanged.  Upon receipt of such wire transfer, the Escrow Agent shall immediately deliver to Seller certificates in the name of Seller representing the number of shares of Buyer Common Stock so exchanged and such shares shall be considered released from the Escrow Fund and, upon receipt by Seller, no longer subject to the terms of this Agreement.  Dividends, distributions and other income earned on the Escrow Fund (including on the investment or reinvestment thereof) shall be payable to Seller as part of the Escrow Payment.  Buyer shall, however, be entitled to dividends, distributions and other income earned on that portion (if any) of the Escrow Fund (including on the investment or reinvestment thereof) to which Buyer is entitled as a result of a claim (or claims) by Buyer which is ultimately resolved as provided above in favor of Buyer (and Seller shall, if it receives any such dividends, distributions and other income from the Escrow Agent, promptly forward such amounts to Buyer).

 

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