Health Net 2011 Annual Report Download - page 223

this Section 13.1(b)(ii) shall not be available to any Party whose failure to fulfill materially any covenant or obligation under this
Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before the Termination Date;
(c) By Purchaser prior to the Closing, by written notice to Seller, if both (i) a representation or warranty of Seller set forth
in this Agreement shall be untrue or there has been a material breach of covenant on the part of Seller, in each case such that the
conditions specified in Section 9.1 or Section 9.2 would not be satisfied at the Closing (a “Terminating Seller Breach”), and (ii) such
Terminating Seller Breach is not curable, or if curable, is not cured within twenty (20) Business Days after written notice of such
Terminating Seller Breach is given to Seller by Purchaser; and
(d) By Seller prior to the Closing, by written notice to Purchaser, if both (i) a representation or warranty of Purchaser set
forth in this Agreement shall be untrue or there has been a material breach of covenant on the part of Purchaser, in each case such that
the conditions specified in Section 10.1 or Section 10.2 would not be satisfied at the Closing (a “Terminating Purchaser Breach”), and
(ii) such Terminating Purchaser Breach is not curable, or if curable, is not cured within twenty (20) Business Days after written notice
of such Terminating Purchaser Breach is given by Seller to Purchaser.
13.2 Effect of Termination.
(a) In the event of termination of this Agreement as permitted by Section 13.1, subject to the following sentence, this
Agreement shall become void and of no further force and effect, except (i) Seller shall, not later than ten (10) Business Days after the
effective date of such termination, pay a termination fee by wire transfer of immediately available funds to Purchaser in an amount
equal to $20,000,000 (the “Termination Fee”), and (ii) the following provisions shall survive and remain in full force and effect:
Section 8.5, this Article XIII, and Article XIV. Notwithstanding the foregoing, if at the time the Termination Fee otherwise would be
payable under the preceding sentence either Party has commenced a legal proceeding against the other Party that seeks to cause the
other Party to specifically perform its obligations under this Agreement and consummate the Transactions, (i) the obligation to pay
the Termination Fee shall be suspended until such legal proceeding has been fully and finally resolved, and (ii) no Termination Fee
shall be payable under this Agreement if as a consequence of such legal proceeding the Parties complete the Transactions.
(b) If this Agreement is terminated as provided herein, neither Party shall have any Liability or further obligation to the
other Party under the terms of this Agreement, except (x) as provided in Section 13.2(a), and (y) with respect to any Liabilities or
Losses arising out of or from any actual fraud or willful breach by a Party with respect to any of its representations, warranties,
covenants or other agreements contained in this Agreement, in which case any and all remedies available to the other Party either in
Law or equity (including specific performance) shall be preserved and survive the termination of this Agreement.
(c) Each Party agrees that the Termination Fee is not intended to be the sole and exclusive remedy of either Party against
the other Party in the event of a termination of this Agreement, and the Termination Fee shall in no way no way prejudice the right of
either Party to
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