Common use of Indemnification by Emergent Clause in Contracts

Indemnification by Emergent. Emergent shall indemnify and hold PJC, the Investor, the Consenting Convertible Note Holders and each of their respective officers, directors, Affiliates, agents and employees (collectively, the “Indemnified Parties”) harmless from and against any out-of-pocket loss, Liability, Taxes, claim, charge, assessed interest, judgment, fine, penalty, damage, fee or expense (including reasonable legal, consultant, accounting and other professional fees and expenses and including any mitigation cost and any cost of determining that there has been a breach under this Agreement or any other Transaction Document) (collectively, “Losses”) incurred by such Indemnified Party resulting from (a) any breach of any representation and warranty of Emergent contained in this Agreement or in any other Transaction Document or in any certificate delivered pursuant to this Agreement or any other Transaction Document, (b) any failure by Emergent to perform any covenant or agreement hereunder, under any other Transaction Document or under any agreement contemplated hereby or thereby, or (c) any material inaccuracy in the Offering Memoranda or in the Proxy Statement. For purposes of determining the amount of Losses incurred with respect to a breach of any representation or warranty contained in this Agreement, any other Transaction Document or any certificate delivered pursuant to this Agreement or any other Transaction Document, each such representation or warranty shall be read without reference to “materiality” or “Material Adverse Effect” qualifier. The Indemnified Parties shall be third party beneficiaries of this Section 11.2, each of whom may enforce the provisions of this Section 11.2.

Indemnification by Emergent. From and after the Closing Date, subject to Section 8.04, Emergent shall indemnify and hold PJC, the Investor, the Consenting Convertible Note Holders Holdings and each of their respective its officers, directors, Affiliates, agents shareholders, agents, successors and employees assigns (collectively, the “Holdings Indemnified Parties”) harmless from and against any out-of-pocket loss, Liability, Taxes, claim, charge, assessed interest, judgment, fine, penalty, damage, fee or expense (including reasonable legal, consultant, accounting and other professional fees and expenses and including any mitigation cost and any cost of determining that there has been a breach under this Agreement or any other Transaction Document) (collectively, “Losses”) all Losses incurred by such any Holdings Indemnified Party resulting from (a) any breach of any representation and warranty of made by Emergent contained in this Agreement or in any other Transaction Document or in any certificate delivered pursuant to this Agreement the Agreement, or any other Transaction Document, (b) any failure by Emergent to perform any covenant or agreement hereunder, under any other Transaction Document Agreement or under any agreement contemplated hereby or therebythereby (unless such failure is based upon a breach of the representations, warranties or (c) covenants of Holdings, the Company or any material inaccuracy in Affiliate of Holdings that is party to a Transaction Document under this Agreement, the Offering Memoranda Transaction Documents or in any agreements contemplated hereby or violations of Laws by Holdings, the Proxy StatementCompany or any such Affiliate). For purposes of determining the amount of Losses incurred with respect to a breach of any representation or warranty contained in this Agreement, any other Transaction Document Agreement or in any certificate delivered pursuant to this Agreement or any other Transaction DocumentAgreement, each such representation or warranty shall be read without reference to “materiality” or “Material Adverse Effectmaterial adverse effect” or any similar qualifier. The Holdings Indemnified Parties shall be third party beneficiaries of this Section 11.28.03, each of whom may enforce the provisions of this Section 11.28.03.