This excerpt taken from the HSWI 8-K filed Dec 3, 2008.
Indemnitees”) shall be indemnified and held harmless from and against and in respect of any and all Claims, Damages and Losses which arise out of, relate to or result from (i) the inaccuracy in or breach of any representation or warranty made by Company in this Agreement (including all exhibits and schedules attached hereto, including the Disclosure Schedules), in any transfer instrument or in any other agreement, certificate, document, writing or instrument delivered by Company pursuant to this Agreement, (ii) the breach or non-fulfillment of any unwaived covenant or agreement made by Company in this Agreement (including all exhibits and schedules attached hereto, including the Disclosure Schedules), in any transfer instrument or in any other agreement, certificate, document, writing or instrument delivered by Company pursuant to this Agreement, (iii) any amount payable in respect of any Dissenting Share in excess of the Per Share Common Closing Consideration and any costs and expenses of defending any Claim involving Dissenting Shares, (iv) any act or omission of the Holder Representative relating to this Agreement, (v) any Liabilities in respect of Taxes of Company relating to periods prior to the Effective Time to the extent not included as a Liability of Company in the calculation of Working Capital and any cost, fees and expenses related to the preparation of Tax Returns for such periods to the extent such costs, fees and expenses exceed the amount accrued as a Liability of Company in the calculation of Working Capital, (vi) any and all Claims against the Company or any of the Indemnitees made in connection with or arising out of the matters disclosed in Section 3.11(b) of the Disclosure Schedules and (vii) enforcing the indemnity hereunder. In connection with any exercise by any
Indemnitee of its rights hereunder, it shall be entitled to make all claims for indemnification through, and deal exclusively with, the Holder Representative.
(b) Subject to the limitations set forth in this Article VII, and except for claims based upon a finding of fraud or intentional misrepresentation, the Indemnitees shall be entitled to indemnification under this Agreement only to the extent of the aggregate amount of the Escrow Fund and any Earnout Holdback Amounts pursuant to Section 2.09 and the sole source of payment for any claim by an indemnified party pursuant to this Article VII or any other claim arising out of or related to this Agreement shall be the aggregate amount of the Escrow Fund and the Earnout Holdback Amounts pursuant to Section 2.09. The exercise of such right of setoff by Parent in good faith, whether or not ultimately determined to be justified, will not constitute a breach of this Agreement. Neither the exercise of nor the failure to exercise such right of setoff will constitute an election of remedies or limit Parent or any other Indemnitee in any manner in the enforcement of any other remedies that may be available to them. Except for Claims based upon a finding of fraud, intentional misrepresentation or demanding equitable remedies the indemnification provisions set forth in this Article VII shall be the Indemnitees’ sole and exclusive remedy for all Claims, Losses and Damages arising hereunder by Parent, its Affiliates, Sub and the Surviving Corporation, and Parent, its Affiliates, Sub and the Surviving Corporation hereby waive, for and on behalf of all of such indemnitees, any and all other remedies, whether at law or in equity, that are otherwise available to the Indemnitees, or any of them, arising out of this Agreement and the transactions contemplated hereby; provided, however, that notwithstanding the foregoing, nothing in this Agreement shall eliminate the ability of a party hereto to apply for equitable remedies to enforce the other party’s or parties’ obligations under this Agreement.
7.03 Notice of Indemnification Claims.
(a) Notice of Claims. If (i) a Claim is made by a third party against any Indemnitee, (ii) the Indemnitee believes in good faith that such party has experienced or incurred Damages, and (iii) the Indemnitee believes in good faith that it may be entitled to indemnification under Section 7.02, then such Indemnitee shall give to the Holder Representative, as agent for the Stockholders, written notice of such Claim or Damages (“