Common use of Indemnification of the Buyer Indemnitees Clause in Contracts

Indemnification of the Buyer Indemnitees. Subject to the applicable provisions of this Article VIII, from and after the Closing, Seller shall indemnify and hold harmless each Buyer Indemnitee against all Third-Party Claims and all Damages that arise from, are based on or relate or otherwise are attributable to, without duplication (each such Third-Party Claim or Damage referred to in clauses (a) through (e) below being a “Buyer Indemnified Loss”): (a) any breach or inaccuracy of any representations and warranties of Seller set forth in Article II; (b) any breach or nonfulfillment of any covenant or agreement on the part of Seller under this Agreement; (c) any breach or inaccuracy of any representations and warranties of the Company set forth in Article III; (d) any breach or nonfulfillment of any covenant or agreement on the part of the Company under this Agreement to the extent of performance prior to the Closing; (e) any and all Taxes imposed on the Acquired Entities for any Pre-Closing Tax Period (as determined in accordance with Section 5.7(d) for Straddle Periods); provided, however, (i) only if and to the extent that such Taxes are not taken into account in the final and binding Closing Working Capital, Closing Indebtedness, or Transaction Expenses, and (ii) the Buyer Indemnitees shall not be indemnified and held harmless from and against any Damages incurred as a result of or relating to any Taxes arising from transactions occurring on the Closing Date after the Closing outside the ordinary course of business; and (f) any Fraud. THE INDEMNIFICATION PROVISIONS IN THIS SECTION 8.2 ARE EXPRESSLY INTENDED TO APPLY NOTWITHSTANDING THE NEGLIGENCE OR GROSS NEGLIGENCE (WHETHER SOLE, CONCURRENT, ACTIVE OR PASSIVE) OR STRICT LIABILITY OR ILLEGAL CONDUCT ON THE PART OF THE BUYER INDEMNITEES OR WHETHER DAMAGES ARE ASSERTED IN CONTRACT, QUASI-CONTRACT, BREACH OF REPRESENTATION AND WARRANTY (EXPRESS OR IMPLIED), PERSONAL INJURY OR OTHER TORT, UNDER LAW OR OTHERWISE.

Indemnification of the Buyer Indemnitees. (a) Subject to the applicable provisions terms of this Article VIIIVI, from and after the Closing, Seller the Sellers, jointly and severally, shall indemnify indemnify, save and hold harmless Buyer and each of Buyer’s Affiliates (collectively, the “Buyer Indemnitee Indemnitees”), from and against all Third-Party Claims any and all Damages that arise losses, Liabilities, claims, demands, Actions, causes of action, costs, damages, expenses or Taxes, deficiencies or diminution in value whether or not arising from or in connection with any third-party claims (including interest, penalties, reasonable attorneys’, consultants’ and experts’ fees and expenses and all amounts paid in investigation, defense or settlement of any of the foregoing) (collectively, “Damages”), to the extent incurred in connection with, arising out of or resulting from, are based on or relate or otherwise are attributable to, without duplication (each such Third-Party Claim or Damage referred to in clauses (a) through (e) below being a “Buyer Indemnified Loss”):: (ai) any breach of any representation or warranty or the inaccuracy of any representations and warranties representation made by any Seller in or pursuant to Article III of this Agreement, in the Ancillary Agreements or in any certificate delivered by or on behalf of the Sellers pursuant hereto (other than the Seller set forth Carve-Out Representations), in Article IIeach case, without giving effect to any materiality qualifications, Material Adverse Effect qualifications or similar phrases for purposes of determining the Damages resulting from, arising out of or relating to a breach (but not whether there is a breach); (bii) any breach of any of the Seller Carve-out Representations or nonfulfillment any inaccuracy of any Seller Carve-Out Representation made by the Sellers in or pursuant to the Agreement or any certificate delivered by or on behalf of the Sellers pursuant hereto, in each case, without giving effect to any materiality qualifications, Material Adverse Effect qualifications or similar phrases for purposes of determining the Damages resulting from, arising out of or relating to a breach (but not whether there is a breach); (iii) any breach of any covenant or agreement on the part of made by any Seller under in or pursuant to this Agreement or in any Ancillary Agreement; (civ) any breach or inaccuracy of any representations and warranties of the Company set forth in Article III; (d) any breach or nonfulfillment of any covenant or agreement on the part of the Company under this Agreement to the extent of performance prior to the Closing; (e) any and all Taxes imposed on the Acquired Entities for any Pre-Closing Tax Period (as determined in accordance with Section 5.7(d) for Straddle Periods); provided, however, (i) only if and to the extent that such Taxes are not taken into account in the final and binding Closing Working Capital, Closing Indebtedness, or Transaction Expenses, and (ii) the Buyer Indemnitees shall not be indemnified and held harmless from and against any Damages incurred as a result of or relating to any Taxes arising from transactions occurring on the Closing Date after the Closing outside the ordinary course of businessExcluded Liabilities; and (fv) non-compliance with any Fraud. THE INDEMNIFICATION PROVISIONS IN THIS SECTION 8.2 ARE EXPRESSLY INTENDED TO APPLY NOTWITHSTANDING THE NEGLIGENCE OR GROSS NEGLIGENCE (WHETHER SOLE, CONCURRENT, ACTIVE OR PASSIVE) OR STRICT LIABILITY OR ILLEGAL CONDUCT ON THE PART OF THE BUYER INDEMNITEES OR WHETHER DAMAGES ARE ASSERTED IN CONTRACT, QUASI-CONTRACT, BREACH OF REPRESENTATION AND WARRANTY (EXPRESS OR IMPLIED), PERSONAL INJURY OR OTHER TORT, UNDER LAW OR OTHERWISEapplicable bulk sales Law or similar Laws.

Indemnification of the Buyer Indemnitees. Subject (a) If the Closing occurs, subject to the applicable provisions terms of this Article VIIIARTICLE VII, from the Sellers shall, on a joint and after the Closingseveral basis, Seller shall indemnify and hold harmless each Buyer Indemnitee against all Third-Party Claims the Acquired Companies, Buyer, Amedisys and all Damages that arise fromits Affiliates (collectively, are based on or relate or otherwise are attributable to, without duplication (each such Third-Party Claim or Damage referred to in clauses (a) through (e) below being a the “Buyer Indemnified LossIndemnitees”):) from and against, and pay to the Buyer Indemnities the amount of, or reimburse the Buyer Indemnitees for, any Losses incurred by the Buyer Indemnitees by reason of: (ai) any inaccuracy or breach or inaccuracy of any of the representations and or warranties of Seller the Company or the Sellers specifically set forth in Article IISections 3.1 or 3.3 or contained in any certificate delivered at the Closing by the Company or the Sellers pursuant to this Agreement (with any Material Adverse Effect qualifier contained in any such certificate being disregarded for the purposes of this Section 7.2(a)(i)); (bii) the failure of the Company or the Sellers to perform any breach of their or nonfulfillment its covenants or agreements contained herein required to be performed prior to the Closing, or the failure of the Sellers to perform any covenant or agreement on the part of Seller under this Agreement; (c) any breach or inaccuracy of any representations and warranties of the Company set forth in Article III; (d) any breach or nonfulfillment of any covenant or agreement on the part of the Company under this Agreement herein which by its terms is to the extent of performance prior to be performed after the Closing; (eiii) any claim by a current or former holder of any security of any Acquired Company, in its capacity as such, challenging this Agreement or the other transactions contemplated hereby; (iv) the failure of (A) any portion of the Company Expenses or the Indebtedness of the Acquired Companies outstanding as of the Closing to be paid at Closing (unless the failure arises from a breach by the Buyer of its obligations under Sections 2.4(a)(i) or 2.4(a)(iii)) or (B) Closing Cash to be equal to or greater than the Closing Cash Target (except to the extent that the Purchase Price paid at Closing was reduced to reflect all or a portion of such deficiency); (v) any Medicare and Medicaid Recoupment Claims (provided, however, in the case of any such claims relating to hospice cap liabilities of the Acquired Companies, such claims shall be limited to the extent they exceed the accrual for hospice cap liabilities set forth on Part 7.2(a)(v) of the Disclosure Schedule); (vi) any Mandatory Repayments (without regard to any matters disclosed on the Disclosure Schedule); (vii) any Healthcare Liability Claims (without regard to any matters disclosed on the Disclosure Schedule); and (viii) any and all Taxes imposed on amounts required to be paid by the Acquired Companies after the Closing Date pursuant to those certain existing and pending settlements with the Government Entities listed on Part 7.2(a)(viii) of the Disclosure Schedule, including any fines, penalties or interest in connection therewith (solely to the extent such fines, penalties or interest were incurred or are attributable to the period prior to the Closing Date), to the extent such amounts, in the aggregate exceed $5,300,000. For purposes of determining both (1) whether the Company or the Sellers, as applicable, has breached any of his or its representations and warranties in Sections 3.1 or 3.3 (or any certificate) or whether the Company or the Sellers has breached any covenants or agreements herein, and (2) the amount of Losses suffered or incurred by any Buyer Indemnitee by reason of such breach, qualifications therein referring to “material”, “Material Adverse Effect” and other qualifications of similar import or effect shall be disregarded. (b) In addition to the limitations in Section 7.1, the right of the Buyer Indemnitees to submit claims pursuant to Section 7.2(a) is subject to the following limitations: (i) no right to be indemnified or held harmless shall exist and no claim may be made against the Sellers under Section 7.2(a)(i) (except for Fundamental Representations and Fraud, neither of which shall be subject to the Tipping Basket or the Threshold (as each such term is hereinafter defined)) unless and until the aggregate amount of all Losses incurred by the Buyer Indemnitees in respect of claims thereunder exceeds $2,800,000 (the “Tipping Basket”), after which point the Sellers shall be obligated to indemnify the Buyer Indemnitees from and against all such Losses from dollar one, except in the case of the Special Health Care Representations, which are subject to the Threshold; (ii) no right to be indemnified or held harmless shall exist and no claim may be made against the Sellers (x) under Section 7.2(a)(i) for any Pre-inaccuracy or breach of any of the Special Health Care Representations, or (y) under Sections 7.2(a)(v), 7.2(a)(vi) and 7.2(a)(vii), unless and until the aggregate amount of all Losses incurred by the Buyer Indemnitees in respect of claims thereunder exceeds $2,800,000 (the “Threshold”), after which point the Sellers shall be obligated to indemnify the Buyer Indemnitees from and against all such Losses in excess of the Threshold; (iii) except for indemnification claims made against the Sellers for (w) any inaccuracy or breach of any of the Fundamental Representations, (x) any failure of the Sellers to perform any covenant or agreement set forth herein which by its terms is to be performed after the Closing, (y) any failure by any of the Sellers to pay any of his or its Income Taxes accruing prior to the Closing Tax Period and (as determined z) Fraud, the sole source of payment for all indemnification claims under Section 7.2(a) shall be limited to the amount of, and in accordance with Section 5.7(dno event exceed, the remaining amount of the Escrow Fund held by the Escrow Agent; (iv) except for Straddle Periodsindemnification claims made against the Sellers for (x) any failure of the Sellers to perform any covenant or agreement set forth herein which by its terms is to be performed after the Closing, (y) any failure by any of the Sellers to pay any of his or its Income Taxes accruing prior to the Closing, or (z) Fraud, the Escrow Fund shall be the Buyer Indemnitees’ first recourse for all indemnification claims made against them, and the Sellers shall not be responsible to pay for any such indemnification claim until the Escrow Fund has been reduced to zero dollars ($0); provided, however, any indemnification claims made under Section 7.2(a)(iv)(B), shall first be paid from the Escrow Fund, for an amount up to $500,000, and second, from the Sellers with respect to any remaining difference. (iv) only if except for indemnification claims made against the Sellers for Fraud, the aggregate liability of the Sellers for all indemnification claims shall be limited to, and shall in no event exceed, $280,000,000; (vi) no claim shall be made with respect to Losses arising out of any breach of the representations or warranties contained in Section 3.1 to the extent that such Taxes are not taken into account that there has been a corresponding reduction in the final Purchase Price and binding Closing Working Capitalsuch Losses shall be disregarded in determining whether the Tipping Basket or Threshold apply; and (vii) notwithstanding anything herein to the contrary, Closing Indebtednessthe, or Transaction Expenses, and (ii) Sellers shall not be required to indemnify the Buyer Indemnitees shall not be indemnified and held harmless from and against in respect of any Damages incurred Losses consisting of or relating to (x) Taxes with respect to any taxable period, or, under the principles of Section 4.11(c), the portion thereof, beginning after the Closing Date or (y) any Tax withholding requirements imposed following Closing or (z) any Tax Return preparation or filing requirements imposed following Closing, in each case as a result of or relating to any Taxes arising from transactions occurring on breach of the Closing Date after representations and warranties under Section 3.1(i) (Taxes) other than the Closing outside representations and warranties set forth in the ordinary course last sentence of business; and paragraph (f) any Fraud. THE INDEMNIFICATION PROVISIONS IN THIS SECTION 8.2 ARE EXPRESSLY INTENDED TO APPLY NOTWITHSTANDING THE NEGLIGENCE OR GROSS NEGLIGENCE (WHETHER SOLE, CONCURRENT, ACTIVE OR PASSIVE) OR STRICT LIABILITY OR ILLEGAL CONDUCT ON THE PART OF THE BUYER INDEMNITEES OR WHETHER DAMAGES ARE ASSERTED IN CONTRACT, QUASI-CONTRACT, BREACH OF REPRESENTATION AND WARRANTY (EXPRESS OR IMPLIEDix), PERSONAL INJURY OR OTHER TORTor paragraphs (x), UNDER LAW OR OTHERWISE(xi) or (xii), of such Section 3.1(i) (Taxes).

Indemnification of the Buyer Indemnitees. Subject 9.2.1. From and after the Closing (but subject to the applicable provisions terms and conditions of this Article VIII9), from the Buyer Indemnitees (as defined below) will be indemnified by each Seller, on a several basis and after proportionate to the amount of proceeds such Seller received under Section 2.4.1(a) over the total amount of proceeds distributed under Section 2.4.1(a) and not on a joint and several basis, but subject to Section 9.2.2, in respect of any Loss suffered or incurred by the Buyers or any of their respective Affiliates (including, following the Closing, the Acquired Companies and the Subsidiaries of the Acquired Companies), officers, directors, employees or agents (collectively, the “Buyer Indemnitees”) directly or indirectly arising out of, relating to or resulting from any of the following: (i) a breach of any representation or warranty of an Acquired Company contained in Article 3 or in the Acquired Companies Closing Certificate or of such Seller shall indemnify contained in Article 4 (in each case, other than with respect to representations and hold harmless warranties set forth in Section 3.5, assuming that all qualifications contained in such representations and warranties and in the Acquired Companies Closing Certificate with respect to such representations and warranties as to materiality, including each Buyer Indemnitee against all Third-Party Claims qualifying reference to the defined term “Material Adverse Effect,” the words “material” and “materiality” and all Damages that arise fromsimilar phrases and words, are based on or relate or otherwise are attributable towere deleted therefrom), without duplication (each such Third-Party Claim or Damage referred to in clauses (a) through (e) below being a “Buyer Indemnified Loss”): (aii) any breach or inaccuracy of any representations and warranties of Seller set forth in Article II; (b) any breach or nonfulfillment of any covenant of such Seller contained in Section 8.15 or agreement on contained in this Agreement requiring performance by such Seller after the part of Seller under this Agreement; (c) Closing or any breach or inaccuracy of any representations and warranties of the Company set forth in Article III; (d) any breach or nonfulfillment of any covenant or agreement on the part of the Company under Acquired Companies contained in this Agreement to the extent of requiring performance by any Acquired Company prior to the Closing; , (eiii) any Indemnifiable Transaction Expenses; (iv) the Seller Representatives' performance of their obligations under this Agreement, (v) with respect to Taxes, subject to Section 8.9.12 and all without duplication (1) Taxes of the Acquired Companies and their Subsidiaries for Pre-Closing Tax Periods and the portion of any Straddle Period ending on the Closing Date (which, for the avoidance of doubt, shall include Taxes (other than any Japanese capital contribution duty payable by the Japan Buyer or the Japan Holdco in connection with the amounts payable to Japan Holdco at Closing pursuant to Section 2.4.1) of the Acquired Companies and their Subsidiaries arising from or attributable to the repayment of the Intercompany Loans and the payment of the Preferred Stock Consideration), (2) Taxes imposed on the Sellers with respect to their ownership of the Shares, including any liability to Taxes with respect to any gain realized by the Sellers upon the sale of the Shares or the Japan Options, (3) Taxes of any member of an affiliated group (other than any of the Acquired Entities for any Companies or their Subsidiaries) with which the Acquired Companies and their Subsidiaries have filed a Tax Return on a consolidated, combined or unitary basis under applicable Legal Requirements with respect to Pre-Closing Tax Period Periods that are imposed on the Acquired Companies or their Subsidiaries by reason of filing such Tax Return with respect to a Pre-Closing Tax Period, and (as determined in accordance with 4) Taxes payable by the Sellers pursuant to Section 5.7(d8.9.6, and (vi) for Straddle Periods); provided, however, the matter disclosed on Schedule 8.16.2 (i) only if and to the extent that such Taxes are not taken into account in the final and binding Closing Working Capital, Closing Indebtedness, or Transaction Expenses, and (ii) the Buyer Indemnitees shall not be indemnified and held harmless from and against any Damages incurred as a result of or relating related to any Taxes arising from transactions act or omission occurring on prior to the Closing Date after the Closing outside the ordinary course of business; and (f) any Fraud. THE INDEMNIFICATION PROVISIONS IN THIS SECTION 8.2 ARE EXPRESSLY INTENDED TO APPLY NOTWITHSTANDING THE NEGLIGENCE OR GROSS NEGLIGENCE (WHETHER SOLE, CONCURRENT, ACTIVE OR PASSIVE) OR STRICT LIABILITY OR ILLEGAL CONDUCT ON THE PART OF THE BUYER INDEMNITEES OR WHETHER DAMAGES ARE ASSERTED IN CONTRACT, QUASI-CONTRACT, BREACH OF REPRESENTATION AND WARRANTY (EXPRESS OR IMPLIEDClosing), PERSONAL INJURY OR OTHER TORT, UNDER LAW OR OTHERWISE.

Indemnification of the Buyer Indemnitees. Subject to the applicable provisions of this Article VIII, from and after the Closing, the Seller shall indemnify and hold harmless each Buyer Indemnitee against all Third-Party Claims and all Damages that arise from, are based on or relate or otherwise are attributable to, without duplication (each such Third-Party Claim or Damage referred to in clauses (a) through (eg) below being a “Buyer Indemnified Loss”): ): (a) any breach or inaccuracy of any representations and warranties of the Seller set forth in Article II; II of this Agreement (but in any event with respect to this Section 8.2(a), disregarding any qualifications as to “materiality,” “Seller Material Adverse Effect,” “material adverse effect” or words of similar import contained in any such representation or warranty for purposes of determining both a breach and the amount of any Damages); (b) any breach or nonfulfillment of any covenant or agreement on the part of the Seller under this Agreement; ; (c) any breach or inaccuracy of any representations and warranties of the Company set forth in Article III; III of this Agreement (but in any event with respect to this Section 8.2(c), disregarding any qualifications as to “materiality,” “Seller Material Adverse Effect,” “material adverse effect” or words of similar import contained in any such representation or warranty for purposes of determining both a breach and the amount of any Damages); (d) any breach or nonfulfillment of any covenant or agreement on the part of the Company under this Agreement that by its terms is to be performed by the extent of performance Company at or prior to the Closing; ; (e) (i) any and all Taxes imposed on the Acquired Entities for any Pre-Closing Tax Period (as determined in accordance with Section 5.7(d5.10(c) for Straddle Periods)) and (ii) all Taxes of any member of an affiliated, consolidated, combined or unitary group of which any of the Acquired Entities (or any predecessor of any of the foregoing) is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation §1.1502-6 or any analogous or similar state, local, or foreign Law, and (iii) any and all Taxes of any Person (other than the Acquired Entities) imposed on any of the Acquired Entities as a transferee or successor, by contract or pursuant to any Law, which Taxes relate to an event or transaction occurring before the Closing; provided, however, (ix) only if and to the extent that such Taxes are not taken into account in the final and binding Closing Working Capital, Closing Indebtedness, or Transaction Expenses, and (iiy) the Buyer Indemnitees shall not be indemnified and held harmless from and against any Damages incurred as a result of or relating to any Taxes arising from transactions occurring on the Closing Date after the Closing outside the ordinary course Ordinary Course of businessBusiness; and (f) any Fraud. THE INDEMNIFICATION PROVISIONS IN THIS SECTION 8.2 ARE EXPRESSLY INTENDED TO APPLY NOTWITHSTANDING THE NEGLIGENCE OR GROSS NEGLIGENCE (WHETHER SOLEi) Transaction Expenses to the extent not paid pursuant to Section 1.3(b) or Section 1.4 and (ii) Indebtedness incurred by the Company prior to the Closing to the extent not paid pursuant to Section 1.3(a) or Section 1.4, CONCURRENT, ACTIVE OR PASSIVEin the case of (i) OR STRICT LIABILITY OR ILLEGAL CONDUCT ON THE PART OF THE BUYER INDEMNITEES OR WHETHER DAMAGES ARE ASSERTED IN CONTRACT, QUASI-CONTRACT, BREACH OF REPRESENTATION AND WARRANTY and (EXPRESS OR IMPLIEDii), PERSONAL INJURY OR OTHER TORTto the extent that a valid Claim Notice is made to the Seller on or before the date that is one year following the Closing Date; and (g) if a valid Claim Notice is made to the Seller on or before the date that is 18 months following the Closing Date, UNDER LAW OR OTHERWISEthe Specified Matters. Any assignment by the Seller of its rights or obligations pursuant to this Agreement shall not relieve the Seller of its liabilities or obligations under this Agreement. The indemnification provisions in this Section 8.2 are expressly intended to apply notwithstanding the negligence or gross negligence (whether sole, concurrent, active or passive) or strict liability or illegal conduct on the part of the Buyer Indemnitees or whether Damages are asserted in contract, quasi-contract, breach of representation and warranty (express or implied), personal injury or other tort, under law or otherwise.