Health Net 2011 Annual Report Download - page 219

hold harmless any Purchaser Indemnified Parties for or with respect to (i) any amounts that are owing or payable to Seller or any of its
Affiliates by Purchaser or any of its Affiliates under any Non-Transaction Contract or (ii) any Losses that constitute Liabilities of
Purchaser or any of its Affiliates under any Non-Transaction Contract, including, in either such case, even if such amounts or Losses
constitute Retained Liabilities under this Agreement.
12.3 Indemnification Obligations of Purchaser. Subject to the terms and conditions of this Article XII, following the Closing,
Purchaser shall indemnify and hold harmless Seller, each of Seller’s Affiliates, and their respective successors, assigns, officers, directors,
employees and agents (collectively, the “Seller 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 Purchaser 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 Purchaser contained in this
Agreement or any other Transaction Document;
(c) any Assumed Liabilities; or
(d) any and all claims, proceedings, investigations or litigation that may hereafter be brought by any third party arising out of
Purchaser’s actions or omissions in the operation of its business or the Assets from and after the Closing Date;
p
rovided, howeve
r
, that (i) Purchaser shall have no liability under Section 12.3(a) or Section 12.3(b) with respect to breaches of
representations or warranties, or covenants to be performed prior to Closing with respect to any individual case of a Loss that is less than
$ 10,000; (ii) Purchaser shall have no liability under Section 12.3(a) or Section 12.3(b) with respect to breaches of representations or
warranties, or 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 covenants to be performed prior to Closing for which
Purchaser would, but for this clause (ii), be liable exceeds $3,000,000 (in which event Purchaser shall be liable only for such Losses
under Section 12.3(a) and Section 12.3(b) with respect to breaches of representations or warranties, or covenants to be performed prior to
Closing that are in excess of such amount) and (iii) Purchaser’s aggregate liability under Section 12.3(a) and Section 12.3(b) with respect
to breaches of representations or warranties, or covenants to be performed prior to Closing shall in no event exceed the Indemnity Cap.
Notwithstanding the foregoing, the Indemnity Cap shall not apply with respect to any breach of the Fundamental Representations or
Liabilities of Buyer under Section 12.3(b) with respect to covenants to be performed at or after the Closing or Section 12.2(c) or 12.2(d).
12.4 Procedures Relating to Indemnification for Third Party Claims.
(a) In order for an Indemnified Party to be entitled to any indemnification provided for under this Agreement in respect of,
arising out of or involving a claim or demand made by any third-party against the Indemnified Party (a “Third-Party Claim”), such
Indemnified Party must provide the Indemnifying Party with a written notice thereof regarding
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