Common use of Indemnification of Parent Clause in Contracts

Indemnification of Parent. (a) If the Closing occurs, subject to the terms of this Article VII, each Equityholder, severally and not jointly (limited to and based on each Equityholder’s pro rata share of the Escrow Fund), agree to indemnify and hold harmless Amedisys, Parent, the Surviving Company, and the other Merged Companies (collectively, the “Buyer Indemnitees”) from and against Losses incurred by the Buyer Indemnitees by reason of: (i) any inaccuracy or breach of any of the representations or warranties of the Company specifically set forth in Section 3.1 or contained in any certificate delivered at the Closing by the Company pursuant to this Agreement; (ii) the failure of the Company to perform any of its covenants or agreements contained herein required to be performed prior to the Closing, or the failure of the Agent to perform any covenant or agreement set forth herein which by its terms is to be performed after the Closing; (iii) any claim by an Equityholder or current or former holder of any other security of the Company, in its capacity as such, challenging this Agreement, the other transactions contemplated hereby or an act or omission by the Agent hereunder, including, without limitation, any claims relating to (x) the delivery of the Agent Fund, or (y) the Agent’s exercise or failure to exercise its rights pursuant to Section 8.5; (iv) the failure of any portion of the Company Expenses or the Indebtedness of the Merged Companies outstanding as of the Closing to be paid at Closing (subject to Section 4.17(g)); (v) any post-payment review of claims, actions, audits, investigations, or proceedings conducted by or on behalf of any Government Programs, including, but not limited to, Medicare administrative contractors or intermediaries, recovery audit contractors, zone program integrity contractors, specialty medical review contractors, or similar investigative agencies, but only to the extent such Losses arise from the provision of healthcare services or the submission of healthcare claims by the Merged Companies and any predecessors from whom the Merged Companies acquired any Medicare or Medicaid provider number relating to dates of service prior to the Closing Date (“Recoupment Indemnity Matter”); provided, however, that Recoupment Indemnity Matter shall exclude Losses to the extent arising from post-closing changes by Parent or the Merged Companies to the billing policies, procedures and/or practices used by the Merged Companies prior to Closing, with respect to bills submitted by Parent or the Merged Companies following Closing for dates before the Closing Date; (vi) any audits, investigations, claims, actions, proceedings or lawsuits by the U.S. Department of Health and Human Services Office of Inspector General, U.S. Department of Justice, a state attorney general, state Medicaid agency or other agencies or Governmental Entities with respect to healthcare fraud, False Claims Act matters, qui tam or whistle blower actions, or other intent-based, reckless disregard-based, or other scienter-based Laws related to the provision of healthcare services or the submission of healthcare claims by the Merged Companies and any predecessors from whom the Merged Companies acquired any Medicare or Medicaid provider number relating to dates of service prior to the Closing Date, but excluding Losses to the extent arising from post-closing changes by Parent or the Merged Companies to the billing policies, procedures and/or practices used by the Merged Companies prior to Closing with respect to bills submitted by Parent or the Merged Companies following Closing for dates before the Closing Date; and (vii) the ongoing Tax dispute matter listed on Part 3.1(i) of the Disclosure Schedule; provided, however, the Buyer Indemnitee’s Losses with respect to such matter shall be limited to the reasonable out-of-pocket cost incurred by the Merged Companies in litigating such matter and any out-of-pocket Taxes due and owing by the Merged Companies as a result of the resolution of such litigation for the period prior to the Closing Date. If the Closing occurs, subject to the terms of this Article VII, and to the extent in excess of the then remaining balance of the Escrow Fund at the related time, the Equityholders, severally and not jointly (based on each Equityholder’s pro rata share of the Merger Consideration paid to the Equityholders), agree to indemnify and hold harmless the Buyer Indemnitees for all Losses incurred by the Buyer Indemnitees by reason of any inaccuracy or breach by the Company of a Fundamental Representation and for all Losses incurred by the Buyer Indemnitees pursuant to Sections 7.2(a)(ii), 7.2(a)(iii), 7.2(a)(iv), 7.2(a)(v), 7.2(a)(vi) and 7.2(a)(vii). For purposes of determining both (1) whether the Company has breached any of its representations and warranties in Section 3.1 (other than in Sections 3.1(j) and 3.1(v)) or whether the Company 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 (but, for the avoidance of doubt, qualifications referring to “Knowledge” or specified dollar amounts or dates or periods shall not be disregarded).

Indemnification of Parent. Subject to Section 7.5, the Share ------------------------- Recipients (a) If other than those holders of Eligible Dissenting Shares), by reason of the Closing occurs, subject approval by the Company's stockholders of the Merger and each Share Recipient's acceptance of the consideration provided for in Section 1.4 hereof or Section 1.1.1 of the Note Retirement Agreement and by the execution of the Escrow Agreement pursuant to the terms of this Article VII, each EquityholderSection 1.4.6 which is a condition to receiving such consideration shall, severally and but not jointly (it being understood that with respect to the Share Recipients, the term "severally" means that each Share Recipient's total indemnification obligation shall be limited to and based on each Equityholder’s such Share Recipient's pro rata share of the Escrow Fundindemnification obligations of the Share Recipients, with the understanding that such pro rata share shall be based upon the respective amount of consideration payable to such Share Recipient under Section 1.4 hereof), agree to indemnify defend, indemnify, and hold Parent harmless Amedisys, Parent, the Surviving Companyfrom and against, and the other Merged Companies to reimburse Parent with respect to, any and all losses, damages, liabilities, claims, judgments, settlements, fines, costs, and expenses (collectively, the “Buyer Indemnitees”including attorneys' fees) from and against Losses ("Indemnifiable Amounts") of every nature whatsoever incurred by the Buyer Indemnitees Parent by reason of: of or arising out of or in connection with (i) any inaccuracy breach, or breach any claim (including claims by parties other than Parent) that if true, would constitute a breach, by Company of any representation or warranty of the representations Company contained in this Agreement or warranties of the Company specifically set forth in Section 3.1 or contained in any certificate or other document delivered at the Closing by the Company to Parent pursuant to the provisions of this Agreement; , (ii) the failure failure, partial or total, of the Company to perform any of its covenants agreement or agreements contained herein covenant required by this Agreement to be performed prior to the Closingby it, or the failure of the Agent to perform any covenant or agreement set forth herein which by its terms is to be performed after the Closing; (iii) any claim by an Equityholder or current or former holder of any other security of the Company, in its capacity as such, challenging this Agreement, the other transactions contemplated hereby or an act or omission by the Agent hereunder, including, without limitation, any claims relating to (x) the delivery of the Agent Fundtax liability, or (y) the Agent’s exercise or failure to exercise its rights pursuant to Section 8.5; (iv) the failure of any portion asserted liability of the Company Expenses relating to any period of time prior to and through the Closing which is not disclosed in the Financial Statements or the Indebtedness of the Merged Companies outstanding as of the Closing to be paid at Closing (subject to Section 4.17(g)); (v) any post-payment review of claims, actions, audits, investigations, or proceedings conducted by or on behalf of any Government Programs, including, but not limited to, Medicare administrative contractors or intermediaries, recovery audit contractors, zone program integrity contractors, specialty medical review contractors, or similar investigative agencies, but only to the extent such Losses arise from the provision of healthcare services or the submission of healthcare claims by the Merged Companies and any predecessors from whom the Merged Companies acquired any Medicare or Medicaid provider number relating to dates of service prior to the Closing Date (“Recoupment Indemnity Matter”); provided, however, that Recoupment Indemnity Matter shall exclude Losses to the extent arising from post-closing changes by Parent or the Merged Companies to the billing policies, procedures and/or practices used by the Merged Companies prior to Closing, with respect to bills submitted by Parent or the Merged Companies following Closing for dates before the Closing Date; (vi) any audits, investigations, claims, actions, proceedings or lawsuits by the U.S. Department of Health and Human Services Office of Inspector General, U.S. Department of Justice, a state attorney general, state Medicaid agency or other agencies or Governmental Entities with respect to healthcare fraud, False Claims Act matters, qui tam or whistle blower actions, or other intent-based, reckless disregard-based, or other scienter-based Laws related to the provision of healthcare services or the submission of healthcare claims by the Merged Companies and any predecessors from whom the Merged Companies acquired any Medicare or Medicaid provider number relating to dates of service prior to the Closing Date, but excluding Losses to the extent arising from post-closing changes by Parent or the Merged Companies to the billing policies, procedures and/or practices used by the Merged Companies prior to Closing with respect to bills submitted by Parent or the Merged Companies following Closing for dates before the Closing Date; and (vii) the ongoing Tax dispute matter listed on Part 3.1(i) of the Disclosure Schedule; provided, however, the Buyer Indemnitee’s Losses with respect to such matter shall be limited to the reasonable out-of-pocket cost incurred by the Merged Companies in litigating such matter and any out-of-pocket Taxes due and owing by the Merged Companies as a result of the resolution of such litigation for the period prior to the Closing Date. If the Closing occurs, subject to the terms of this Article VIIBalance Sheet, and in each case without giving effect to the extent in excess of the then remaining balance of the Escrow Fund at the related time, the Equityholders, severally and not jointly (based on each Equityholder’s pro rata share of the Merger Consideration paid any "materiality" limitations or references to the Equityholders), agree to indemnify and hold harmless the Buyer Indemnitees for all Losses incurred by the Buyer Indemnitees by reason of any inaccuracy or breach by the Company of a Fundamental Representation and for all Losses incurred by the Buyer Indemnitees pursuant to Sections 7.2(a)(ii), 7.2(a)(iii), 7.2(a)(iv), 7.2(a)(v), 7.2(a)(vi) and 7.2(a)(vii). For purposes of determining both (1) whether the Company has breached any of its representations and warranties in Section 3.1 (other than in Sections 3.1(j) and 3.1(v)) or whether the Company 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 " set forth therein. The obligations of similar import or effect any Share Recipient to indemnify Parent shall be disregarded (butdetermined without regard to any right to indemnification to which any Share Recipient may have in his or her capacity as an officer, director, employee, agent or any other capacity of Company and no Share Recipient shall be entitled to any indemnification from Company or the Surviving Corporation for the avoidance amounts paid hereunder. There shall be no right of doubt, qualifications referring contribution from Company or any successor to “Knowledge” or specified dollar amounts or dates or periods shall not be disregarded)Company.

Indemnification of Parent. (a) If The Company Holders agree that, after the Closing occurs, subject to the terms of this Article VII, each Equityholder, severally and not jointly (limited to and based on each Equityholder’s pro rata share of the Escrow Fund), agree to indemnify and hold harmless AmedisysEffective Time, Parent, the Surviving Company, and the other Merged Companies (collectivelyCorporation, the Company and their respective Affiliates and any officers, directors, employees or agents thereof (each a “Buyer IndemniteesIndemnified Person”) from and against Losses incurred by the Buyer Indemnitees by reason of: (i) any inaccuracy or breach of any of the representations or warranties of the Company specifically set forth in Section 3.1 or contained in any certificate delivered at the Closing by the Company pursuant to this Agreement; (ii) the failure of the Company to perform any of its covenants or agreements contained herein required to be performed prior to the Closing, or the failure of the Agent to perform any covenant or agreement set forth herein which by its terms is to be performed after the Closing; (iii) any claim by an Equityholder or current or former holder of any other security of the Company, in its capacity as such, challenging this Agreement, the other transactions contemplated hereby or an act or omission by the Agent hereunder, including, without limitation, any claims relating to (x) the delivery of the Agent Fund, or (y) the Agent’s exercise or failure to exercise its rights pursuant to Section 8.5; (iv) the failure of any portion of the Company Expenses or the Indebtedness of the Merged Companies outstanding as of the Closing to be paid at Closing (subject to Section 4.17(g)); (v) any post-payment review of claims, actions, audits, investigations, or proceedings conducted by or on behalf of any Government Programs, including, but not limited to, Medicare administrative contractors or intermediaries, recovery audit contractors, zone program integrity contractors, specialty medical review contractors, or similar investigative agencies, but only to the extent such Losses arise from of funds on deposit in the provision of healthcare services or the submission of healthcare claims by the Merged Companies and any predecessors from whom the Merged Companies acquired any Medicare or Medicaid provider number relating to dates of service prior to the Closing Date (“Recoupment Indemnity Matter”); providedEscrow shall, however, that Recoupment Indemnity Matter shall exclude Losses to the extent arising provided in this Article IX, be indemnified and held harmless from post-closing changes by Parent or the Merged Companies to the billing policiesand against, procedures and/or practices used by the Merged Companies prior to Closingany and all claims, with respect to bills submitted by Parent or the Merged Companies following Closing for dates before the Closing Date; (vi) any auditsdemands, investigations, claimssuits, actions, proceedings or lawsuits by the U.S. Department causes of Health and Human Services Office of Inspector General, U.S. Department of Justice, a state attorney general, state Medicaid agency or other agencies or Governmental Entities with respect to healthcare fraud, False Claims Act matters, qui tam or whistle blower actions, or other intent-basedlosses, reckless disregard-basedcosts, or other scienter-based Laws related to the provision of healthcare services or the submission of healthcare claims by the Merged Companies damages, penalties, assessments, liabilities and any predecessors from whom the Merged Companies acquired any Medicare or Medicaid provider number relating to dates of service prior to the Closing Date, but excluding Losses to the extent arising from post-closing changes by Parent or the Merged Companies to the billing policies, procedures and/or practices used by the Merged Companies prior to Closing with respect to bills submitted by Parent or the Merged Companies following Closing for dates before the Closing Date; and (vii) the ongoing Tax dispute matter listed on Part 3.1(i) of the Disclosure Schedule; provided, however, the Buyer Indemnitee’s Losses with respect to such matter shall be limited to the reasonable out-of-pocket cost expenses incurred or paid, including reasonable attorneys’ fees, costs of investigation or settlement, other professionals’ and experts’ fees, and court or arbitration costs but specifically excluding, other than in the case of a Third-Party Claim, consequential damages or punitive and exemplary damages (hereinafter collectively referred to as “Damages”), to the extent such Damages are determined by a Final Award, a final order of a court of competent jurisdiction or written agreement of Parent and the Stockholder Representative to have arisen out of or to have resulted from, in connection with, or by virtue of (i) facts or circumstances which constitute an inaccuracy (in the case of any such representation or warranty, as of the date of this Agreement or such earlier specified date as of which such representation or warranty was expressly made (each, an “Earlier Date Representation”) or, except for any Earlier Date Representation, as of and as if made on the Closing Date), misrepresentation, false certification, breach of, default in, or failure to perform, any of the representations, warranties or covenants given or made by the Company in this Agreement or in the certificate delivered pursuant to Section 8.2(c)(i), as qualified by the Company Disclosure Schedules hereto (collectively, the “Company Breaches”), (ii) any Indebtedness, Company Transaction Expense or Closing Taxes to the extent it is not actually reflected in the Closing Indebtedness, Unpaid Company Transaction Expenses or Closing Taxes used to determine the Merger Consideration, (iii) the matters set forth on Schedule 9.1(a) (the “Special Indemnified Matters”) or (iv) any claim made by any Non-Signatory Holders with respect to the Merger (including the treatment of the Merger as an Approved Sale, and a liquidation of the Company under the Company Charter), the Company Charter, this Agreement, the transactions contemplated hereby and thereby, the payment of expenses incurred by the Merged Companies in litigating such matter and any out-Stockholder Representative as set forth herein, the provisions of-pocket Taxes due and owing by the Merged Companies as a result of the resolution of such litigation for the period prior to the Closing Date. If the Closing occurs, subject to the terms of this Article VII, and to the extent in excess method of the then remaining balance of the Escrow Fund at the related timedetermination, the Equityholdersreduction, severally allocation, payment and not jointly (based on each Equityholder’s pro rata share post-Closing adjustment of the Merger Consideration paid provided for in Articles II and IX both generally and with respect to such Equity Securities and any claims and causes of actions and any rights it has under Section 262 of the EquityholdersDGCL (the “Non-Joinder Indemnified Matters” and, collectively with the other matters for which indemnification is provided in this Section 9.1(a), agree to indemnify and hold harmless the Buyer Indemnitees for all Losses incurred by the Buyer Indemnitees by reason of any inaccuracy or breach by the “Company of a Fundamental Representation and for all Losses incurred by the Buyer Indemnitees pursuant to Sections 7.2(a)(ii), 7.2(a)(iii), 7.2(a)(iv), 7.2(a)(v), 7.2(a)(vi) and 7.2(a)(viiIndemnified Matters”). For purposes of determining both (1) whether the there has been any Company has breached Breach in respect of any of its representations and warranties in Section 3.1 representation or warranty (other than in Sections 3.1(j) and 3.1(vwith respect to any Qualified Representation)) or whether the Company has breached any covenants or agreements herein, and (2) for purposes of calculating the amount of Losses suffered Damages to which an Indemnitee is entitled as a result of any such Company Breach, such representation or incurred warranty shall not be deemed qualified or limited by any Buyer Indemnitee by reason concept of such breach, qualifications therein referring to “material”, ,” “materiality,” “Company Material Adverse Effect” and or other qualifications of similar import materiality qualification or effect shall be disregarded (but, for limitations. For the avoidance of doubt, qualifications referring no Buyer Indemnified Person will be entitled to “Knowledge” be indemnified pursuant to this Section 9.1 for any amount of Damages to the extent such amount is actually reflected in the Closing Indebtedness, Unpaid Company Transaction Expenses or specified dollar amounts or dates or periods shall not be disregarded)Closing Working Capital used to determine the Merger Consideration.

Indemnification of Parent. (a) If From and after the Closing occursClosing, subject to the terms of this Article VII, each Equityholder, severally Shareholders and not jointly (limited to and based on each Equityholder’s pro rata share of the Escrow Fund), agree to Optionees shall indemnify and hold harmless AmedisysParent and its affiliates, Parent, the Surviving Companysuccessors and assigns, and the other Merged Companies (collectivelyrespective officers, directors, managers, employees and agents of each of the “Buyer Indemnitees”) foregoing, from and against Losses any and all Damages actually incurred thereby or caused thereto based on, arising out of, or resulting from, or alleged by the Buyer Indemnitees by reason ofa third party to be based on or to have arisen out of or resulted from: (ia) any inaccuracy or breach of any of the representations or warranties made by Barrier in this Agreement or any exhibit, schedule, certificate, instrument, or other document pursuant to this Agreement (without giving effect to any materiality or Material Adverse Effect qualifier therein or any supplement to the Barrier Disclosure Schedule); (b) any breach or violation of, or failure to fully perform, any covenant, agreement or obligation of the Company specifically set forth Barrier in Section 3.1 this Agreement or contained in any certificate delivered at the Closing by the Company exhibit, schedule, certificate, instrument, or other document pursuant to this Agreement; (iic) the failure to pay any Transaction Costs as and when due; (d) any Liabilities for Taxes relating to taxable periods of the Company Companies ending on or before the Closing Date, and with respect to perform any of its covenants or agreements contained herein required to be performed prior taxable periods beginning before the Closing Date and ending after the Closing Date, for Taxes imposed on the Companies which are allocable to the Closingportion of such period ending on the Closing Date (including, or the failure without limitation, Liabilities disclosed in Section 4.1(h) of the Agent Barrier Disclosure Schedule), but only to perform the extent any covenant such Liabilities for Taxes are in excess of any reserves or agreement set forth herein which by its terms is to be performed accruals established with respect thereto on the face of the Final Closing Balance Sheet; (e) any Liabilities related to, arising out of or associated with the QMB Sale, the Canadian Companies, QMB Payment Co. or operation of the Canadian Companies and QMB Payment Co. prior to, on and after the ClosingClosing Date; (iiif) any claim by an Equityholder Liabilities related to, arising out of or current associated with grants or former holder attempts to grant options to purchase capital stock of any other security Barrier without due authority or otherwise not in compliance with Barrier's Articles of the Company, in its capacity as such, challenging this Agreement, the other transactions contemplated hereby Incorporation or an act Bylaws or omission by the Agent hereunderapplicable Law, including, without limitation, any claims relating by the recipients or intended recipients of such options; (g) any Liabilities related to, arising out of or associated with deferred compensation arrangements between Barrier and Xxxxxx Xxxxxx and any payments by Barrier pursuant thereto; (h) any Liabilities related to, arising out of or associated with that certain lease, dated December 29, 1937, by and between California Packing Corporation, as lessor, and Amerada Petroleum Corporation, as lessee; and (i) any Liabilities related to, arising out of or associated with failures to file notices under Section 25102(0 of the California Corporations Code, if any, in connection with the issuance of capital stock of either Company. Notwithstanding the foregoing, (x) no indemnification shall be payable by the delivery Shareholders under clause (a) of this Section 8.2 (except with respect to any breach of any representation or warranty in Section 4.1(j) or 4.1(s)) until the total of all such claims for indemnification exceed $100,000 (the "Threshold"), in which event Parent shall only be entitled to recover the Damages in excess of the Agent FundThreshold, or (y) the Agent’s exercise or failure to exercise its rights pursuant to aggregate liability for indemnification obligations payable under this Section 8.5; (iv) 8.2 shall not exceed the failure of any portion Holdback Amount and shall be payable solely out of the Company Expenses or Indemnity Escrow Account, and (z) no indemnification shall be payable by the Indebtedness Shareholders with respect to any claim under clause (a) of the Merged Companies outstanding as Section 8.2 unless the Shareholder Representative is notified of the Closing to be paid at Closing (subject to Section 4.17(g)); (v) any post-payment review of claims, actions, audits, investigations, or proceedings conducted by or on behalf of any Government Programs, including, but not limited to, Medicare administrative contractors or intermediaries, recovery audit contractors, zone program integrity contractors, specialty medical review contractors, or similar investigative agencies, but only to the extent such Losses arise from the provision of healthcare services or the submission of healthcare claims by the Merged Companies and any predecessors from whom the Merged Companies acquired any Medicare or Medicaid provider number relating to dates of service claim prior to the Closing Date (“Recoupment Indemnity Matter”); provided, however, that Recoupment Indemnity Matter shall exclude Losses to expiration of the extent arising from post-closing changes by Parent applicable representation or warranty in accordance with Section 8.1. As security for the Merged Companies to the billing policies, procedures and/or practices used performance by the Merged Companies prior to Closing, with respect to bills submitted by Parent or the Merged Companies following Closing for dates before the Closing Date; (vi) any audits, investigations, claims, actions, proceedings or lawsuits by the U.S. Department Shareholders of Health and Human Services Office of Inspector General, U.S. Department of Justice, a state attorney general, state Medicaid agency or other agencies or Governmental Entities with respect to healthcare fraud, False Claims Act matters, qui tam or whistle blower actions, or other intent-based, reckless disregard-based, or other scienter-based Laws related to the provision of healthcare services or the submission of healthcare claims by the Merged Companies and any predecessors from whom the Merged Companies acquired any Medicare or Medicaid provider number relating to dates of service prior to the Closing Date, but excluding Losses to the extent arising from post-closing changes by Parent or the Merged Companies to the billing policies, procedures and/or practices used by the Merged Companies prior to Closing with respect to bills submitted by Parent or the Merged Companies following Closing for dates before the Closing Date; and (vii) the ongoing Tax dispute matter listed on Part 3.1(i) of the Disclosure Schedule; provided, howevertheir indemnification obligations under this Section 8.2, the Buyer Indemnitee’s Losses with respect to such matter Holdback Amount shall be limited deposited into the Indemnity Escrow Account to the reasonable out-of-pocket cost incurred by the Merged Companies be held and distributed in litigating such matter accordance with this Agreement and any out-of-pocket Taxes due and owing by the Merged Companies as a result of the resolution of such litigation for the period prior to the Closing Date. If the Closing occurs, subject to the terms of this Article VII, and to the extent in excess of the then remaining balance of the Escrow Fund at the related time, the Equityholders, severally and not jointly (based on each Equityholder’s pro rata share of the Merger Consideration paid to the Equityholders), agree to indemnify and hold harmless the Buyer Indemnitees for all Losses incurred by the Buyer Indemnitees by reason of any inaccuracy or breach by the Company of a Fundamental Representation and for all Losses incurred by the Buyer Indemnitees pursuant to Sections 7.2(a)(ii), 7.2(a)(iii), 7.2(a)(iv), 7.2(a)(v), 7.2(a)(vi) and 7.2(a)(vii). For purposes of determining both (1) whether the Company has breached any of its representations and warranties in Section 3.1 (other than in Sections 3.1(j) and 3.1(v)) or whether the Company 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 (but, for the avoidance of doubt, qualifications referring to “Knowledge” or specified dollar amounts or dates or periods shall not be disregarded)Agreement.

Indemnification of Parent. The Company and Stockholders (solely with respect to claims made under this Article 10.1 prior to the Closing) jointly and severally agree to indemnify and hold harmless Parent, each of its Affiliates and each of its and their respective members, managers, partners, directors, officers, employees, stockholders, attorneys and agents and permitted assignees (the “Parent Indemnitees”), against and in respect of any and all out-of-pocket loss, cost, payment, demand, penalty, forfeiture, expense, liability, judgment, deficiency or damage, and diminution in value or claim (including actual costs of investigation and attorneys’ fees and other costs and expenses) (all of the foregoing collectively, “Losses”) incurred or sustained by any Parent Indemnitee as a result of or in connection with (a) If any breach, inaccuracy or nonfulfillment or the alleged breach, inaccuracy or nonfulfillment of any of the representations, warranties and covenants of the Company and/or the Stockholders contained herein or in any of the Additional Agreements or any certificate or other writing delivered pursuant hereto, (b) any actions by any third parties with respect to the Business (including breach of contract claims, violations of warranties, trademark infringement, privacy violations, torts and/or consumer complaints) for any period on or prior to the Closing occursDate (c) the violation of any Laws in connection with or with respect to the operation of the Business on or prior to the Closing Date, (d) any claims by any employee of the Company or any of its Subsidiaries with respect to any period or event occurring on or prior to the Closing Date, or relating to the termination of employee’s employment status in connection with the transactions contemplated by this Agreement, or the termination, amendment or curtailment of any employee benefit plans, (e) the failure of the Company or any of its Subsidiaries to pay any Taxes to any Taxing Authority or to file any Tax Return with any Taxing Authority with respect to any Pre-Closing Period, or (f) any sales, use, transfer or similar Tax imposed on Parent or its Affiliates as a result of any transaction contemplated by this Agreement. The total payments made by the Stockholders to the Parent Indemnitees with respect to Losses shall not exceed $15,000,000 (the “Indemnifiable Loss Limit”), except that the Indemnifiable Loss Limit shall not apply with respect to any Losses relating to or arising under or in connection with breaches of Articles 4.15 (Properties; Title to the Company’s Assets), 4.25 (Employees), 4.26 (Employment Matters), 4.27 (Withholding), 4.28 (Employee Benefits and Compensation), 4.29 (Real Property), or 4.31 (Tax Matters). Notwithstanding anything set forth in this Article 10.1, any Losses incurred by any Parent Indemnitee arising out of the failure of any Stockholder to perform any covenant or obligation to be performed by such Stockholder at or after the Closing Date, shall not, in any such case, be subject to or applied against the Indemnifiable Loss Limit. Any liability incurred by the Stockholders pursuant to the terms of this Article VII, each Equityholder, severally and not jointly (limited to and based on each Equityholder’s pro rata share 10.1 shall be paid solely by the return for cancellation of the Escrow FundShares in accordance with the terms of the Escrow Agreement. Notwithstanding anything to the contrary set forth herein, the foregoing indemnification obligations except with respect to Articles 4.25 (Employees), agree to indemnify 4.26 (Employment Matters), 4.27 (Withholding), 4.28 (Employee Benefits and hold harmless AmedisysCompensation), Parent, the Surviving Company4.29 (Real Property), and 4.31 (Tax Matters) shall be effective only if any Parent Indemnitee has suffered, incurred, sustained, or become subject to Losses in excess of $150,000 in the other Merged Companies aggregate (collectively, the “Buyer IndemniteesDeductible”) from and against ), it being understood that such Parent Indemnitee shall only be entitled to indemnification for such Losses incurred by the Buyer Indemnitees by reason of: (i) any inaccuracy or breach of any of the representations or warranties of the Company specifically set forth in Section 3.1 or contained in any certificate delivered at the Closing by the Company pursuant to this Agreement; (ii) the failure of the Company to perform any of its covenants or agreements contained herein required to be performed prior to the Closing, or the failure of the Agent to perform any covenant or agreement set forth herein which by its terms is to be performed after the Closing; (iii) any claim by an Equityholder or current or former holder of any other security of the Company, in its capacity as such, challenging this Agreement, the other transactions contemplated hereby or an act or omission by the Agent hereunder, including, without limitation, any claims relating to (x) the delivery of the Agent Fund, or (y) the Agent’s exercise or failure to exercise its rights pursuant to Section 8.5; (iv) the failure of any portion of the Company Expenses or the Indebtedness of the Merged Companies outstanding as of the Closing to be paid at Closing (subject to Section 4.17(g)); (v) any post-payment review of claims, actions, audits, investigations, or proceedings conducted by or on behalf of any Government Programs, including, but not limited to, Medicare administrative contractors or intermediaries, recovery audit contractors, zone program integrity contractors, specialty medical review contractors, or similar investigative agencies, but only to the extent such Losses arise from exceed the provision of healthcare services or the submission of healthcare claims by the Merged Companies and any predecessors from whom the Merged Companies acquired any Medicare or Medicaid provider number relating to dates of service prior to the Closing Date (“Recoupment Indemnity Matter”); provided, however, that Recoupment Indemnity Matter shall exclude Losses to the extent arising from post-closing changes by Parent or the Merged Companies to the billing policies, procedures and/or practices used by the Merged Companies prior to Closing, with respect to bills submitted by Parent or the Merged Companies following Closing for dates before the Closing Date; (vi) any audits, investigations, claims, actions, proceedings or lawsuits by the U.S. Department of Health and Human Services Office of Inspector General, U.S. Department of Justice, a state attorney general, state Medicaid agency or other agencies or Governmental Entities with respect to healthcare fraud, False Claims Act matters, qui tam or whistle blower actions, or other intent-based, reckless disregard-based, or other scienter-based Laws related to the provision of healthcare services or the submission of healthcare claims by the Merged Companies and any predecessors from whom the Merged Companies acquired any Medicare or Medicaid provider number relating to dates of service prior to the Closing Date, but excluding Losses to the extent arising from post-closing changes by Parent or the Merged Companies to the billing policies, procedures and/or practices used by the Merged Companies prior to Closing with respect to bills submitted by Parent or the Merged Companies following Closing for dates before the Closing Date; and (vii) the ongoing Tax dispute matter listed on Part 3.1(i) of the Disclosure Schedule; provided, however, the Buyer Indemnitee’s Losses with respect to such matter shall be limited to the reasonable out-of-pocket cost incurred by the Merged Companies in litigating such matter and any out-of-pocket Taxes due and owing by the Merged Companies as a result of the resolution of such litigation for the period prior to the Closing Date. If the Closing occurs, subject to the terms of this Article VII, and to the extent in excess of the then remaining balance of the Escrow Fund at the related time, the Equityholders, severally and not jointly (based on each Equityholder’s pro rata share of the Merger Consideration paid to the Equityholders), agree to indemnify and hold harmless the Buyer Indemnitees for all Losses incurred by the Buyer Indemnitees by reason of any inaccuracy or breach by the Company of a Fundamental Representation and for all Losses incurred by the Buyer Indemnitees pursuant to Sections 7.2(a)(ii), 7.2(a)(iii), 7.2(a)(iv), 7.2(a)(v), 7.2(a)(vi) and 7.2(a)(vii). For purposes of determining both (1) whether the Company has breached any of its representations and warranties in Section 3.1 (other than in Sections 3.1(j) and 3.1(v)) or whether the Company 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 (but, for the avoidance of doubt, qualifications referring to “Knowledge” or specified dollar amounts or dates or periods shall not be disregarded)Deductible.