Health Net 2011 Annual Report Download - page 221

or delayed); provided, howeve
r
, that the Indemnified Party shall consent to any settlement or compromise if the sole relief (other than
confidentiality obligations related to such settlement or compromise) provided is monetary damages that are paid in full by the
Indemnifying Party and that releases the Indemnified Party completely in connection with such Third-Party Claim.
12.5 Procedures Relating to Indemnification of Non-Third Party Claims. 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 that is not a Third-
Party Claim, such Indemnified Party must provide the Indemnifying Party with a written notice thereof (a “Claim Notice”). The
Claim Notice shall set forth the amount, if known, or, if not known, an estimate of the foreseeable maximum amount of claimed
Losses (which estimate shall not be conclusive of the final amount of such Losses) and a reasonably detailed description of the basis
for such claim. The Indemnifying Party will have forty-five (45) days from receipt of such Claim Notice to dispute the claim and will
reasonably cooperate and assist the Indemnified Party in determining the validity of the claim for indemnification. If the
Indemnifying Party does not give notice to the Indemnified Party that it disputes such claim (which such dispute notice shall set forth
in reasonable detail the reasons for such dispute) within forty-five (45) days after its receipt of the Claim Notice, the claim specified
in such Claim Notice shall be conclusively deemed a Loss subject to indemnification hereunder.
12.6 Adjustments to Losses. Subject to the terms and conditions of this Article XII, following the Closing:
(a) The amount of any Loss for which indemnification is provided under this Article XII shall be net of any amounts
(i) actually recovered or (ii) that are covered by, and recoverable, on a commercially reasonable basis, by the Indemnified Party under
insurance policies in effect and applicable to such Loss (excluding self-insurance). If, following the receipt by any Indemnified Party
of any indemnity payment hereunder, such Indemnified Party shall receive any insurance recovery or indemnity payment from a third
party in respect of the same underlying Losses, the Indemnified Party shall reimburse the Indemnifying Party hereunder to the extent
of such insurance recovery or third-party indemnity payment.
(b) In addition, in calculating the amount of any Losses, there shall be deducted an amount equal to any net Tax benefit
actually realized (including the utilization of a Tax loss or Tax credit carried forward) as a result of such Losses by the Indemnifying
Party claiming such Losses, and there shall be added an amount equal to any Tax imposed on the receipt of any indemnity payment
with respect thereto. The amount of a net Tax benefit shall be the present value of the Tax benefit as of the date of any
indemnification payment (using the interest rate calculation of Section 6621(a)(2) of the Code and assuming the Indemnified Party
has sufficient Taxable income or other Tax attributes to permit the utilization of such Tax benefit at the earliest possible time)
multiplied by (i) the combined effective Federal and state corporate tax rates in effect at the time of the indemnity payment or (ii) in
the case of a credit, 100 percent.
(c) Purchaser and Seller shall cooperate with each other with respect to resolving any Liability or minimizing Losses with
respect to which either Party is obligated to indemnify an Indemnified Party hereunder, including by making commercially reasonable
efforts to resolve, mitigate or minimize any such Liability or Loss.
43