Health Net 2011 Annual Report Download - page 218

following expiration of the applicable statute of limitations (including extensions), with respect to matters covered by Section 6.10
(Tax Matters), (c) for a period of twenty-four (24) months following the Closing Date, with respect to matters covered by Section 6.4
(Permits; Compliance with Laws) and (d) for a period of eighteen (18) months following the Closing Date, with respect to all other
representations and warranties, except that any representation or warranty that would otherwise terminate in accordance with clause
(a), (b), (c) or (d), and the related indemnification obligations under Section 12.2(a) and Section 12.3(a), will continue to survive as to
any specific matter, if a written notice of a breach of such representation and warranty with respect to such matter shall have been
timely given to the Indemnifying Party by the Indemnified Party on or prior to such termination date, until the related claim for
indemnification is satisfied or otherwise resolved as provided in this Article XII. The covenants of the Parties in this Agreement shall
remain in full force and effect for such periods expressly set forth herein, or if no such period is specific, shall survive the Closing
indefinitely.
12.2 Indemnification Obligations of Seller. Subject to the terms and conditions of this Article XII, following the Closing,
Seller shall indemnify and hold harmless Purchaser, each of Purchaser’s Affiliates, and their respective successors, assigns, officers,
directors, employees and agents (collectively, the “Purchaser Indemnified Parties”) against and in respect of any and all Losses
arising or resulting from or based upon:
(a) any breach of any representation or warranty of Seller contained in this Agreement or any other Transaction Document;
(b) any breach or violation of, or failure to perform, any covenant or agreement on the part of Seller contained in this
Agreement or any other Transaction Document; or
(c) any Retained Liabilities.
p
rovided, howeve
r
, that (i) Seller shall have no liability under Section 12.2(a) or Section 12.2(b) with respect to breaches of
representations or warranties, or of covenants to be performed prior to Closing with respect to any individual case of a Loss that is
less than $10,000; (ii) Seller shall have no liability under Section 12.2(a) or Section 12.2(b) with respect to breaches of
representations or warranties, or of covenants to be performed prior to Closing unless the aggregate of all Losses arising under
Section 12.2(a) and Section 12.2(b) with respect to breaches of representations or warranties, or of covenants to be performed prior to
Closing for which Seller would, but for this clause (ii), be liable exceeds $3,000,000 (in which event Seller shall be liable only for
such Losses under Section 12.2(a) and Section 12.2(b) with respect to breaches of representations or warranties, or of covenants to be
performed prior to Closing that are in excess of such amount) and (iii) Seller’s aggregate liability under Section 12.2(a) and
Section 12.2(b) with respect to breaches representations or warranties, or of covenants to be performed prior to Closing shall in no
event exceed an amount equal to 20% of the Purchase Price (the “Indemnity Cap”). Notwithstanding the foregoing, the Indemnity
Cap shall not apply with respect to any breach of the Fundamental Representations or Liabilities of Seller under Section 12.2(b) with
respect to covenants to be performed at or after the Closing or Section 12.2(c). Notwithstanding anything to the contrary in this
Section 12.2 or elsewhere in this Agreement, in no event shall Seller have any obligation under this Agreement to indemnify or
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