Common use of Indemnification by Company Shareholders Clause in Contracts

Indemnification by Company Shareholders. Subject to Sections 10.5 --------------------------------------- ------------- and 10.6, each of the Company Shareholders shall, on a several, proportionate ---- basis as specified below in Section 10.6(a), defend, indemnify, and hold Itron --------------- and the Interim Surviving Corporation and their respective directors, officers and other Affiliates harmless from and against, and to reimburse Itron and the Interim Surviving Corporation and their respective directors, officers and other Affiliates with respect to, any and all Losses incurred by them by reason of or arising out of or in connection with: (a) any breach, or any claim (including claims by parties other than Itron) that if true, would constitute a breach of any representation or warranty of the Company contained in this Agreement (other than representations or warranties set forth in Section 4.1(j), (b) the failure, -------------- partial or total, of the Company to perform any agreement or covenant required by this Agreement to be performed by it or (c) any Taxes of the Company arising in or attributable to any taxable period (or portion thereof) ending on or before the Closing Date (other than any Taxes of the Company arising as a result of the Merger) to the extent that such Taxes, in the aggregate, exceed One Hundred Thousand Dollars ($100,000); provided, that -------- Itron shall take all commercially reasonable efforts to collect any sales and use Taxes from the applicable customers pursuant to their agreements with the Company prior to seeking indemnification from the Company Shareholders pursuant to Section 10.1(c) above. The indemnification obligations of the Company --------------- Shareholders pursuant to clauses (a) and (b) of the foregoing sentence shall apply only to the extent that the aggregate Losses incurred in connection therewith exceed Three Hundred Thousand Dollars ($300,000). Notwithstanding anything to the contrary herein, with respect to any claims, Itron and the Interim Surviving Corporation shall use commercially reasonable efforts to access any applicable insurance of the Company in existence at the Effective Time of the Merger prior to seeking indemnification from the Company Shareholders pursuant to Section 10.1. Any payment made pursuant to this Section ------------ ------- 10.1 shall be treated first as an adjustment to the Cash Portion of the Merger ---- Consideration.

Indemnification by Company Shareholders. Subject (a) From and after the Effective Time (but subject to Sections 10.5 --------------------------------------- ------------- Section 9.1(a)), the Company Shareholders, jointly and 10.6severally, shall hold harmless and indemnify each of the Company Shareholders shall, on a several, proportionate ---- basis as specified below in Section 10.6(a), defend, indemnify, and hold Itron --------------- and the Interim Surviving Corporation and their respective directors, officers and other Affiliates harmless Indemnitees from and against, and to shall compensate and reimburse Itron and each of the Interim Surviving Corporation and their respective directors, officers and other Affiliates with respect toIndemnitees for, any and all Losses Damages which are directly or indirectly suffered or incurred by them by reason any of the Indemnitees or arising out to which any of the Indemnitees may otherwise become subject (regardless of whether or in connection not such Damages relate to any third-party claim) and which arise from or as a result of, or are directly or indirectly connected with: (ai) any breach, inaccuracy in or any claim (including claims by parties other than Itron) that if true, would constitute a breach of any representation or warranty of the Company contained in this Agreement (other than representations or warranties set forth in Section 4.1(j2 or in the officers' closing certificate (without giving effect to any "Material Adverse Effect" or other materiality qualification or any similar qualification contained or incorporated directly or indirectly in such representation or warranty, but giving effect to any update to the Disclosure Schedule delivered by the Company to Parent prior to the Closing); (ii) any breach of any covenant or obligation of the Company (including the covenants set forth in Sections 4 and 5); (iii) any Excluded Expenses to the extent not offset as of the Closing against the Aggregate Parent Share Number pursuant to Section 1.5 above; (iv) those matters set forth in the supplemental letter dated as of the date hereof between Parent and Company, (v) those matters referred to in Section 2.9(a)(iv), 2.12, 2.14 and 2.15(h) of the Disclosure Scehdule or (vi) any Legal Proceeding relating to any inaccuracy or breach or expense of the type referred to in clause (i), (ii), (iii), (iv) or (v) above (including any Legal Proceeding commenced by any Indemnitee for the purpose of enforcing any of its rights under this Section 9). (b) The Company Shareholders acknowledge and agree that, if the failureSurviving Corporation suffers, -------------- partial incurs or total, of the Company to perform any agreement or covenant required by this Agreement to be performed by it or (c) any Taxes of the Company arising in or attributable otherwise becomes subject to any taxable period (or portion thereof) ending on or before the Closing Date (other than any Taxes of the Company arising Damages as a result of the Merger) to the extent that such Taxesor in connection with any inaccuracy in or breach of any representation, in the aggregatewarranty, exceed One Hundred Thousand Dollars covenant or obligation, then ($100,000); provided, that -------- Itron shall take all commercially reasonable efforts to collect without limiting any sales and use Taxes from the applicable customers pursuant to their agreements with the Company prior to seeking indemnification from the Company Shareholders pursuant to Section 10.1(c) above. The indemnification obligations of the Company --------------- Shareholders pursuant to clauses (a) and (b) rights of the foregoing sentence Surviving Corporation as an Indemnitee) Parent shall apply only also be deemed, by virtue of its ownership of the stock of the Surviving Corporation, to the extent that the aggregate Losses have incurred Damages as a result of and in connection therewith exceed Three Hundred Thousand Dollars ($300,000). Notwithstanding anything to the contrary herein, with respect to any claims, Itron and the Interim Surviving Corporation shall use commercially reasonable efforts to access any applicable insurance of the Company in existence at the Effective Time of the Merger prior to seeking indemnification from the Company Shareholders pursuant to Section 10.1. Any payment made pursuant to this Section ------------ ------- 10.1 shall be treated first as an adjustment to the Cash Portion of the Merger ---- Considerationsuch inaccuracy or breach.

Indemnification by Company Shareholders. (a) Subject to Sections 10.5 --------------------------------------- ------------- and 10.6the limitations in paragraph (b)-(d) below, each of the Company Shareholders shallShareholders, on a severalseverally and not jointly, proportionate ---- basis as specified below in Section 10.6(a), agrees to defend, indemnify, indemnify and hold Itron --------------- and the Interim Surviving Corporation and their respective directors, officers and other Affiliates harmless Broo▇▇' ▇▇demnified Persons from and against, and to reimburse Itron and the Interim Surviving Corporation and their respective directors, officers and other Affiliates with respect to, any and against all Losses directly or indirectly incurred by them by reason or sought to be imposed upon any of them: (i) resulting from or arising out of any breach of any of the representations or warranties made by the Company in or pursuant to this Agreement or in any Transaction Document to which the Company is a party, or document or instrument executed and delivered pursuant hereto or in connection with: (a) any breach, or any claim (including claims by parties other than Itron) that if true, would constitute a breach of any representation or warranty of with the Company contained in this Agreement (other than representations or warranties set forth in Section 4.1(j), (b) the failure, -------------- partial or total, of the Company to perform any agreement or covenant required by this Agreement to be performed by it or (c) any Taxes of the Company arising in or attributable to any taxable period (or portion thereof) ending on or before the Closing Date (other than any Taxes of the Company arising as a result of the Merger) to the extent that such Taxes, in the aggregate, exceed One Hundred Thousand Dollars ($100,000)Closing; provided, that -------- Itron for the purpose of this Section 9.2, any qualification of such representations and warranties by reference to the materiality of matters stated therein, and any limitations of such representations and warranties as being "to the knowledge of" or "known to" or words of similar effect, shall take all commercially reasonable efforts to collect be disregarded in determining any sales and use Taxes inaccuracy, untruth, incompleteness or breach thereof; or (ii) resulting from or arising out of any breach of any covenant or agreement made by the applicable customers Company pursuant to their agreements with this Agreement. 67 (b) (i) The Company Shareholders shall have no liability under Section 9.2(a) unless one or more of Broo▇▇' ▇▇demnified Persons gives written notice to the Company prior Shareholder Representatives asserting a claim for Losses, including reasonably detailed facts and circumstances pertaining thereto, before the expiration of the period ending on the earlier of the date one (1) year after the Closing Date and the date of release of Broo▇▇' ▇▇dited financial statements for the fiscal year ended September 30, 2001, except that, for any claim based upon a covenant or undertaking which by its terms is to seeking indemnification from be performed after the Closing, then the period shall commence on the date when such covenant or agreement should have been performed. (ii) The maximum amount for which the Company Shareholders pursuant may be liable to Section 10.1(c) above. The indemnification obligations of the Company --------------- Shareholders pursuant to clauses (a) and (b) of the foregoing sentence shall apply only to the extent that the aggregate Losses incurred in connection therewith exceed Three Hundred Thousand Dollars ($300,000). Notwithstanding anything to the contrary herein, with respect to any claims, Itron and the Interim Surviving Corporation shall use commercially reasonable efforts to access any applicable insurance of the Company in existence at the Effective Time of the Merger prior to seeking indemnification from the Company Shareholders pursuant to Section 10.1. Any payment made all Broo▇▇' ▇▇demnified Persons pursuant to this Section ------------ ------- 10.1 Article 9 shall not be treated first as an adjustment to the Cash Portion greater than 20% of the Merger ---- ConsiderationPurchase Price.