FORM OF AGREEMENT AND RELEASE
Exhibit 10.1
FORM OF AGREEMENT AND
RELEASE
This
Agreement and Release (Agreement) is dated December 9, 2009 (Today), and is between
H. ▇▇▇▇▇▇ ▇▇▇▇▇▇, [Address] (you), and CIGNA Corporation, a Delaware corporation
(the Company).
You and
the Company intend to be legally bound by the Agreement, and are entering into
it in reliance on the promises made to each other in this
Agreement. Under the Agreement, your employment will end, and you and
the Company agree to settle all issues concerning your employment and
termination of employment.
1.Your Termination
Date. Your employment with the Company will end on account of
your retirement on December 25, 2009 (the Termination Date). Your
formal job responsibilities will end on the Termination Date.
2.
Your
Promises to the Company.
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a.
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“CIGNA”
means, as used throughout the remaining provisions of this Agreement,
CIGNA Corporation and any subsidiaries or affiliates of CIGNA
Corporation.
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b.
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You
will, on or before your Termination Date, return to CIGNA any CIGNA
property that you now have, with the exception of your cell phone,
computer and Blackberry, (for example: identification card, access card,
office keys, company manuals, office equipment, records and
files). You will remain subject to CIGNA’s policies and
procedures, including its Code of Ethics. You also agree that,
by signing this Agreement, you are formally resigning (a) from all officer
or director positions you hold with CIGNA and (b) from all councils and
business groups where you currently represent CIGNA; in cases of both (a)
and (b) you will sign any additional paperwork that may be required by
CIGNA or law to effectuate such
resignation.
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c.
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You
agree that, other than in the good faith performance of your services to
CIGNA before your Termination Date, you will not, without first obtaining
CIGNA's written permission, (i) disclose any Material Non-Public
Information to anyone other than CIGNA employees who have a need to know
the Material Non-Public Information or (ii) use any Material Non-Public
Information for your benefit or for the benefit of any other person, firm,
operation or entity unrelated to CIGNA. “Material Non-Public
Information” means all information (a) for which there is a substantial
likelihood that a reasonable investor would consider such information
important in making an investment decision; and (b) that has not been
disseminated in a manner making it available to investors generally.
Material Non-Public Information includes, but is not limited to, financial
data, personnel data, customer specific information, confidential customer
lists, production and
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sales
information, supplier specific information, cost information, marketing
plans and strategies, or other data or information that constitutes a
trade secret. After an item of Material Non-Public Information
has become public knowledge, you shall have no further obligation under
this paragraph 2.c regarding that information so long as you were not
responsible, directly or indirectly, for permitting the information to
become public knowledge without CIGNA’s
consent.
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d.
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For
two years after your Termination Date, you will not, within any part of
the United States or any other country where CIGNA
currently conducts business:
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(1)
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(i)
provide services (including as an employee, officer, director, agent, or
in any other capacity) that are the same as, similar to, or overlap with
the services that you provided to CIGNA as Chairman and Chief Executive
Officer for or on behalf of any business, entity or company (collectively
“Competitors”) that provides products or services that compete with those
provided by CIGNA, including the following: health care and benefits
related products and services, group disability insurance and
administration services, life and accident insurance, expatriate services
of the kind offered by CIEB, and workers’ compensation case management and
related services (collectively, “Competitive Services”); (ii) own or
operate a business that provides Competitive Services; or (iii) work for
or become employed by (including, but not limited to, as a member of the
board of directors of) a Competitor;
or
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(2)
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Entice,
encourage, persuade, or solicit (or attempt to entice, encourage,
persuade, or solicit) (collectively, “solicit”) any CIGNA employees either
to terminate employment or end their service with CIGNA or to become
employed as an employee or independent contractor by you or by any
business that you may become employed by or affiliated in any way with
after leaving CIGNA.
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This
paragraph 2.d(2) shall not apply to applications for employment submitted
by CIGNA employees in response to general advertisements or to
applications submitted voluntarily by CIGNA employees; provided that,
prior to the submission of applications for, or offers of, employment,
such CIGNA employees have not been solicited (as defined above) by you or
by anyone acting on your behalf and that you have not been involved,
either directly or indirectly, in hiring the CIGNA employee or identifying
the CIGNA employee as a potential recruit;
or
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(3)
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Solicit
(as defined in paragraph 2.d.(2) above) in any manner any Covered
Customers (as defined below) to (i) terminate or alter their business
dealings with CIGNA; (ii) reduce the volume of their business dealings
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with
CIGNA; or (iii) enter into any new business arrangements with you or any
business or enterprise with which you may become employed or affiliated in
any way after leaving CIGNA, if such business arrangements would compete
with, or adversely affect, any business arrangements that such Covered
Customer has with CIGNA Today or has been planning to establish during the
three-month period ending Today. “Covered Customers” means any
and all of the customers of CIGNA who were customers during the 12-month
period ending on your Termination
Date.
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(4)
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Solicit
(as defined in paragraph 2.d(2) above) in any manner any Covered Vendors
(as defined below) to: (i) terminate or alter their business dealings with
CIGNA; (ii) reduce the volume of their business dealings with CIGNA; or
(iii) enter into any new business arrangements with you or any business or
enterprise with which you may become employed or affiliated in any way
after leaving CIGNA, if such business arrangements would interfere with,
or adversely affect, any business arrangements that any such Covered
Vendor has with CIGNA Today or that CIGNA has been planning to establish
during the three-month period ending Today. “Covered Vendors”
means any and all of the vendors of CIGNA with whom/which you dealt or
otherwise had material contact during and by virtue of your employment
with CIGNA.
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e.
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You
acknowledge and agree that you have, and in the past have had, access to
CIGNA's Material Non-Public Information, that you handle,
or are responsible for, matters throughout the United States and outside
of the United States, that CIGNA's
business competes on a global basis, that CIGNA's sales and marketing
plans are for continued expansion throughout the United States of America
and globally, and that the global nature of the non-compete and
non-solicitation restrictions contained in paragraph 2.d and the time
limitations contained in paragraph 2.d are reasonable and necessary to
protect CIGNA’s legitimate business interests and Material Non-Public
Information. You further agree that if any court or arbitrator
determines that paragraph 2.d or any part of it is unenforceable because
of the duration, area or scope of activities restricted, then the court or
arbitrator shall have the power and authority to reduce the duration, area
or scope to the maximum allowed by applicable law and, in its reduced
form, the provision shall then be enforced and you will abide by the
provision as altered.
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f.
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You
agree to cooperate with CIGNA in all investigations, litigation and
arbitrations of any kind, to assist and cooperate in the preparation and
review of documents and in meetings with CIGNA attorneys, and to provide
truthful testimony as a witness or a declarant in connection with any
present or future court, administrative agency, legislative, or
arbitration proceeding involving CIGNA and with respect to which you have
relevant information. CIGNA will
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reimburse
you, upon production of appropriate receipts and in accordance with
CIGNA's then existing Business Travel Reimbursement Policy, the reasonable
business expenses (including coach air transportation, hotel, and, similar
expenses) incurred by you in connection with such assistance. All receipts
for such expenses must be presented for reimbursement within 45 days after
the expenses are incurred in providing such
assistance.
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g.
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You
agree that you will not at any time make any verbal or written statement,
whether in public or in private, that disparages in any way CIGNA’s
integrity, business reputation, or performance, or disparages any of
CIGNA's directors, officers, or employees. It shall not,
however, be a violation of this paragraph for you to make truthful
statements (i) when required to do so by a court of law or arbitrator, by
any governmental agency having supervisory authority over CIGNA's business
or by any administrative or legislative body (including a committee
thereof) with actual or apparent jurisdiction to order you to divulge,
disclose or make accessible such information or (ii) to the extent
necessary with respect to any litigation, arbitration or mediation
involving this Agreement, including but not limited to, enforcement of
this Agreement.
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h.
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You
hereby acknowledge that you are aware that the securities laws of the
United States generally prohibit any person who has material non-public
information about a company from, among other things, (1) purchasing or
selling securities of such company or securities convertible into such
securities on the basis of such information or (2) communicating such
information to any other person under circumstances in which it is
reasonably foreseeable that such person may purchase or sell such
securities or securities convertible into such
securities. Accordingly, you agree that you will not make any
purchase or sale of, or otherwise consummate any transactions involving,
CIGNA securities or securities convertible into CIGNA
securities: (i) while in possession of Material Non-Public
Information regarding CIGNA, nor will you communicate such information in
a manner that violates the securities laws of the United States
(regardless of whether such communication would be permitted elsewhere in
this Agreement) or (ii) outside of the 10b5-1 Plan you established on
September 14, 2009, during the term of the 10b5-1 Plan. In
addition, you further agree that in the event you consummate a transaction
involving CIGNA securities (or securities convertible into CIGNA
securities) in compliance with the United States securities laws (i.e., at
a time when you are not in possession of Material Non-Public Information),
you will notify CIGNA Shareholder Services prior to consummating the
transaction and work with CIGNA Shareholder services to file (or cause to
be filed) any and all reports or notifications that may be required under
Section 16 of the Securities and Exchange Act of 1934, as amended. Given
your significant holdings in CIGNA securities, to reduce market impact and
ensure orderly trading in CIGNA securities, you agree not to sell more
than 15%
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of
your total holdings (including wholly owned shares, 401(k) CIGNA Stock
Fund and shares in the Deferred Compensation account) CIGNA securities (as
measured from Today’s date) in any one
day.
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i.
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In
accordance with the Company’s Disgorgement for Restatements policy, in the
event of a restatement of the Company’s consolidated financial statements,
the Company subject to the discretion and approval of the Board shall have
the right to recoup from you any portion of bonus or payments of Strategic
Performance Units (Units) received by you if: (i) the
amounts of bonus or payment of Units was calculated based upon the
achievement of certain financial results that were subsequently the
subject of restatement; (ii) you were engaged in intentional misconduct
that caused or partially caused the need for restatement; and (iii) the
amount of the bonus of payment of Units that would have been awarded to
you had the financial results been properly reported would have been lower
than the amount actually awarded.
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j.
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The
Company reserves the right, but does not have the duty, to review your
home security during the 12 months following your Termination Date and to
make recommendations it deems
appropriate.
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3. Pay and Benefits Until and After
Termination Date.
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a.
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From
Today until your Termination Date, the Company will continue to pay you a
salary at your current regular salary rate and you and your eligible
dependents may continue to participate in the Company’s employee benefits
programs in accordance with the terms of those
programs.
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b.
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You
understand and agree that you will not be covered by the CIGNA Short-Term
Disability Plan after Today.
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c.
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You
will receive no further time off benefits for 2009 after
Today.
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d.
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If
you die before your Termination Date, the date you die will automatically
be your new Termination Date and your salary will be payable only until
your new Termination Date. If you die before the Company pays
you all amounts due under paragraphs 3.a, 3.h, or 3.l, of the Agreement,
the remaining amounts will be paid to your surviving spouse, or, if you
have no surviving spouse, to your estate. If you die before the payment of
any other amounts described in this paragraph 3, the payments will be made
under the terms of the applicable
plan.
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e.
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None
of the payments described in this paragraph 3, except for salary payments
under paragraph 3.a, will be treated as eligible earnings for any benefits
purposes,
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and
salary payments will be treated as eligible earnings only to the extent
provided by the terms of the applicable benefit
plan.
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f.
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Any
coverage you have under the CIGNA Medical Plan or CIGNA Dental Plan on
your Termination Date will expire at the end of the month containing your
Termination Date. You may elect to continue your Company group
health care coverage for up to 18 additional months under the provisions
of COBRA. You may elect coverage under the Company’s retiree
health care plan to begin as early as the month after your Termination
Date or, if you elect COBRA coverage, the month after your COBRA coverage
ends. You will be billed monthly for COBRA
coverage. You may convert certain group benefits coverages to
individual coverages under the terms of the Company’s benefits program.
Any benefit coverage for which you may be eligible under the CIGNA retiree
health care and life insurance plans will be provided to you under the
provisions of those plans.
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g.
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Any
benefits you may have earned under the CIGNA Deferred Compensation,
Pension, Supplemental Pension, and 401(k) Plans or other deferred payment
arrangements will be paid to you under the terms and provisions of those
plans and arrangements.
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h.
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On
or before March 15, 2010 but no earlier than January 1, 2010, the Company
will pay you a cash bonus for service performed during 2009 in an amount
equal to 100% of your annual
bonus target times the Enterprise funding factor as approved by the People
Resources Committee of the Board of Directors in a single lump sum (less
applicable withholding).
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i.
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You
will be entitled to receive payments at the time specified in, and in
accordance with the terms of, the CIGNA Long-Term Incentive Plan (Amended
and Restated Effective as of January 1, 2008) for a prorated number of the
Units that have been awarded to you, based on the number of months that
you were employed during each 36-month performance period, as
follows:
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73,334
of Units granted for 2007-2009
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51,336
of Units granted for 2008-2010
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17,598 of Units granted
for 2009-2011
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j.
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Until
your Termination Date any options on CIGNA Corporation stock that you hold
will continue to vest under the terms of the applicable plan and your
applicable grant letter, including the attachment to the grant letter that
contains terms and conditions that you must continue to
honor. You may exercise vested options only in accordance with
the terms of the plan and grants and subject to CIGNA Corporation’s
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Policy. Any unexercised and unvested
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options
that you hold on your Termination Date will be subject to the terms of the
applicable plans and grant letters.
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k.
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Any
shares of restricted CIGNA Corporation stock (RSGs) that you hold on your
Termination Date will vest (i.e. restrictions will lapse) on your
Termination Date.
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l.
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The
Company will make a lump sum payment to you within 30 days after your
Termination Date for any Paid Time Off days you earned in 2009 but have
not used prior to your Termination
Date.
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m.
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No
executive financial services benefits will be provided after your
Termination Date.
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n.
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The
Company will provide you with administrative
assistant support up to 15 hours per
week through
December 31, 2010. However, you will pay the
Company for the cost of the benefits provided during the first six months
after your separation from service, which amount will be reimbursed to you
by the Company in August, 2010. The amount provided or eligible for
reimbursement during a particular year may not affect the expenses
eligible for reimbursement or benefits provided in any other
year. The reimbursement of an eligible expense will be made on
or before the last day of the year after the year in which the expense was
incurred. The right to reimbursement or in-kind benefits is not
subject to liquidation or exchange for another
benefit.
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o.
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You
will receive no other money or benefits from the Company, except as
provided in this Agreement.
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4. Acknowledgment and Release of
Claims.
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a.
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You
acknowledge that there are various local, state, and federal laws that
prohibit, among other things, employment discrimination on the basis of
age, sex, race, color, national origin, religion, disability, sexual
orientation, or veteran status and that these laws are enforced through
the Equal Employment Opportunity Commission, Department of Labor, and
state or local human rights agencies. Such laws include,
without limitation, Title VII of the Civil Rights Act of 1964 (Title VII);
the Age Discrimination in Employment Act (ADEA); the Older Workers Benefit
Protection Act; the Americans with Disabilities Act (ADA); the Employee
Retirement Income Security Act (ERISA); 42 U.S.C. Section 1981; the Family
and Medical Leave Act (FMLA); the Fair Labor Standards Act (FLSA), as each may have
been amended, and other state and local human or civil rights laws, as
well as other statutes which regulate employment; and the common law of
contracts and torts. You acknowledge that CIGNA has not (i)
discriminated against you in contravention of these laws; (ii) breached
any contract with you;
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(iii)
committed any civil wrong (tort) against you; or (iv) otherwise acted
unlawfully toward you.
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You
further acknowledge that the CIGNA has paid and, upon payment of the
amounts provided for in this Agreement, will have paid you: (i) all
salary, wages, bonuses and other compensation that might be due to you;
and (ii) all reimbursable expenses, if any, to which you may be
entitled.
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b.
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On
behalf of yourself, your heirs, executors, administrators, successors and
assigns, you hereby unconditionally release and discharge CIGNA, the
various plan fiduciaries for the benefit plans maintained by or on behalf
of CIGNA, and their successors, assigns, affiliates, shareholders,
directors, officers, representatives, agents and employees (collectively,
Released Person) from all claims (including claims for attorneys’ fees and
costs), charges, actions and causes of action, demands, damages, and
liabilities of any kind or character, in law or equity, suspected or
unsuspected, past or present, that you ever had, may now have, or may
later assert against any Released Person, including, but not limited to,
arising out of or related to your employment with, or termination of
employment from, the Company. To the fullest extent permitted
by law, this release includes, but is not limited
to: (i) claims arising under the ADEA, the Older Workers
Benefit Protection Act, the Workers’ Adjustment and Retraining
Notification Act, ERISA, FMLA, ADA, FLSA, and any other federal, state, or
local law prohibiting age, race, color, gender, creed, religion, sexual
preference/orientation, marital status, national origin, mental or
physical disability, veteran status, or any other form of unlawful
discrimination or claim with respect to or arising out of your employment
with or termination from the Company, including wage claims;
(ii) claims (whether based on common law or otherwise) arising out of
or related to any contract (whether express or implied); (iii) claims
under any federal, state or local constitutions, statutes, rules or
regulations; (iv) claims (whether based on common law or otherwise)
arising out of any kind of tortious conduct (whether intentional or
otherwise) including but not limited to, wrongful termination, defamation,
violation of public policy; and (v) claims included in, related to,
or which could have been included in any presently pending federal, state
or local lawsuit filed by you or on your behalf against any Released
Person, which you agree to immediately dismiss with
prejudice.
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For
purposes of implementing a full and complete release and discharge of all
Released Persons, you expressly acknowledge that this release is intended to
include not only claims that are known, anticipated, or disclosed, but also
claims that are unknown, unanticipated, or undisclosed. You are aware
that there may be discovery of claims or facts in addition to or different from
those known or believed to be true with respect to the matters related
herein. Nevertheless, it is
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your
intention to fully, finally, and forever settle and release all such matters,
and all claims related thereto, which now exist, may exist, or heretofore have
existed between you and any Released Person, whether suspected or
unsuspected. In furtherance of such intention, this Agreement shall
be and remain in effect as a full and complete release of all such matters,
notwithstanding the discovery or existence of any additional or different claims
or facts relative thereto.
You also
understand that by signing this Agreement you are giving up any right to become,
and you are promising not to consent to become, a member of any class in a case
in which claims are asserted against any Released Person that are related in any
way to your employment with or termination of employment from the Company, and
that involve events that occurred on or before the date you signed this
Agreement. If, without your prior knowledge and consent, you are made
a member of a class in any such proceeding, you will opt out of the class at the
first opportunity afforded to you after learning of your
inclusion. In this regard, you will execute, without objection or
delay, an “opt-out” form presented to you either by the court in which such
proceeding is pending or by counsel for any Released Person who is made a
defendant in any such proceeding.
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c.
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This Release does not include (and you and CIGNA are not releasing): |
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(1)
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any
claims against the CIGNA for promises it is making to you in this
Agreement;
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(2)
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any
claims for benefit payments to which the Plan Administrator determines you
are entitled under the terms of any retirement, savings, or other employee
benefit programs in which CIGNA participates (but your Release does cover
any claims you may make for severance benefits and any claims for benefits
beyond those provided under the terms of the applicable
plan);
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(3)
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any
claims covered by workers compensation or other laws that are not, or may
not be, as a matter of law, releasable or
waivable;
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(4)
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any
rights you have to indemnification under CIGNA’s by-laws, directors and
officers liability insurance or this Agreement or any rights you may have
to obtain contribution as permitted by law in the event of entry of
judgment against you as a result of any act or failure to act for which
you and the Company are jointly liable;
and
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(5)
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any
claims that you did not knowingly and voluntarily waive your rights under
the ADEA.
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5. No Admission of
Wrongdoing. Just because the Company is entering into this
Agreement and paying you money, CIGNA is not admitting that it (or any Released
Person) has done anything wrong or violated any law, rule, order, policy,
procedure, or contract, express or implied, or otherwise incurred any
liability. Similarly, by entering into this Agreement, you are not
admitting that you have done anything wrong or violated any law, rule, order,
policy, procedure, or contract, express or implied, or otherwise incurred any
liability.
6.Applicable Law and Exclusive
Forum. This Agreement is being made in Pennsylvania. Therefore,
this Agreement, including the promises contained in paragraph 2.d. of this
Agreement (the “Covenants”) will be interpreted, enforced and governed under the
laws of Pennsylvania (without regard to its conflict of laws principles);
provided, however, that your eligibility for, or the amount of any, employee
benefits shall be subject to the terms of the applicable benefit plans and the
provisions of the Employee Retirement Income Security Act of 1974, as amended
(ERISA). Additionally, you and CIGNA hereby agree that that any
controversy or proceeding arising out of or relating to the Covenants shall be
brought exclusively in the United States District Court for the Eastern District
of Pennsylvania (“Federal Court”) or in any Pennsylvania court where venue is
appropriate and that has subject matter jurisdiction over the dispute
(collectively, “Pennsylvania Courts”) if the Federal Court lacks subject matter
jurisdiction to adjudicate the dispute or controversy. Additionally,
you and CIGNA expressly waive any defense of inconvenient forum and any other
venue or jurisdiction-related defenses that you each might otherwise have in
such a proceeding brought in the Federal Court or Pennsylvania
Courts.
7.Arbitration. Without in
any way affecting the release in paragraph 4, any and all disagreements,
disputes or claims listed below will be resolved exclusively by arbitration in
the Philadelphia, Pennsylvania area; provided, however, that this Arbitration
provision shall not apply to claims or actions that are based (in whole or in
part) on or arise out of the Covenants.
Arbitration
will be conducted in accordance with the Employment Dispute Resolution Rules of
the American Arbitration Association, as modified by Company. Copies
of the Arbitration Policy and Rules and Procedures have been provided to
you. A legal judgment based upon the Arbitrator’s award may be
entered in any court having jurisdiction over the matter. Each party
shall be liable for its own costs and expenses (including attorneys’
fees). You and the Company agree to arbitrate anything:
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a.
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related
in any way to this Agreement or how it is interpreted or implemented
(including the validity of your ADEA waiver);
or
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b.
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that
involves your employment with Company or the termination of that
employment, including any disputes arising under local, state or federal
statutes or common law (if for any reason your release and waiver under
paragraph 4 is found to be unenforceable or
inapplicable).
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▇.▇▇▇▇▇ and Entire
Agreement. This Agreement is intended to be the complete, entire
and final agreement between you and the Company. It fully replaces
all earlier agreements or understandings; however, it does not replace the terms
of any employee benefit plan or terms included in any stock option or restricted
stock grant. Neither you nor the Company has relied upon any other
statement, agreement or contract, written or oral, in deciding to enter into
this Agreement. Any amendment to this Agreement must be in writing
and signed by both you and the Company. Any waiver by any person of
any provision of this Agreement shall be effective only if in writing,
specifically referring to the provision being waived and signed by the person
against whom enforcement of the waiver is being sought. No waiver of
any provision of this Agreement shall be effective as to any other provision of
this Agreement except to the extent specifically provided in an effective
written waiver. Except as provided in Section 11 of this Agreement,
if any provision or portion this Agreement is determined to be invalid or
unenforceable in a legal forum with competent jurisdiction to so determine, the
remaining provisions or portions of this Agreement shall remain in full force
and effect to the fullest extent permitted by law and the invalid or
unenforceable provisions or portions shall be deemed to be reformed so as to
give maximum legal effect to the agreements of the parties contained
herein.
9. Your Understanding. By
signing this Agreement, you admit and agree that:
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a.
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You have read this Agreement. |
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b.
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You
understand it is legally binding, and you are hereby advised to review it
with a lawyer of your choice.
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c.
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You
have had (or had the opportunity to take) at least 21 calendar days to
discuss it with a lawyer of your choice before signing it and, if you sign
it before the end of that period, you do so of your own free will and with
the full knowledge that you could have taken the full
period.
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d.
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You
realize and understand that the release covers certain claims, demands,
and causes of action against the Company and any Released Persons relating
to your employment or termination of employment, including those under
ADEA.
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e.
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You
understand that the terms of this Agreement are not part of an exit
incentive or other employment termination program being offered to a group
or class of employees.
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f.
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You
are signing this Agreement knowingly, voluntarily and with the full
understanding of its consequences, and you have not been forced or coerced
in any way.
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10.Revoking the Agreement.
You have seven calendar days from the date you sign this Agreement to revoke and
cancel it. To do that, a clear, written cancellation letter, signed
by you,
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must be
received by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, CIGNA Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇ before 5:00 p.m. Eastern Time on the seventh calendar
day following the date you sign this Agreement. The Agreement will
have no force and effect until the end of that seventh day; provided that,
during such seven-day period, the Company shall not be able to revoke this
Agreement or cancel it.
11.If Legal Action Is Started by
You. You understand and agree that the Company's main reason for
entering into this Agreement is to avoid lawsuits and other
litigation. Therefore, if any legal action covered by this Agreement
(other than claims excluded from the release provisions of this Agreement) is
started by you (or by someone else on your behalf) against any Released Person,
you agree to withdraw such proceeding or claim with prejudice.
If you fail to withdraw such proceeding
or claim (or fail to opt out of a class action that includes you) within 30 days
of receipt of written notice from the Released Person requesting that you
withdraw such proceeding or claim (or in the case of a class action, within 30
days of the later of such request or your being given the opportunity to opt
out), then in addition to any other equitable or legal relief that the Company
may be entitled to:
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a.
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You
may forfeit all or any portion of the amounts due
hereunder;
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b.
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You
agree to pay back to the Company within 60 days after receipt of written
notice from the Company all the money you receive under paragraph 3
(except sub-paragraphs 3.a and 3.g);
and
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c.
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You
agree to pay the Company the reasonable costs and attorneys' fees it
incurs in defending such action.
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You represent that as of Today you have
not assigned to any other party, and agree not to assign, any claim released by
you under this Agreement. (If you claim that your release of ADEA
claims was not knowing and voluntary, the Company reserves its right to recover
from you its attorneys’ fees and/or costs in defending that claim, at the
conclusion of that action.)
Upon a finding by a court of competent
jurisdiction or arbitrator that a release or waiver of claims provided for by
paragraph 4 above is illegal, void or unenforceable, the Company or you, as the
case may be, may require the other party to execute promptly a release that is
legal and enforceable and does not extend to Claims not released under paragraph
4. If you fail to execute such a release within a reasonable period
of time, then this Agreement shall be null and void from Today on, and any money
paid to you by the Company after Today under paragraph 3 (except sub-paragraphs
3.a and 3.g) and not previously returned to the Company, will be treated as an
overpayment. You will have to repay that overpayment to the Company
with interest, compounded annually at the rate of 6%. However, the
repayment provision in this paragraph does not apply to legal actions in which
you claim that your release of ADEA claims was not knowing and
voluntary.
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This
paragraph 11 does not apply to any thing of value given to you for which you
actually performed services and by law you are entitled to receive.
This
paragraph 11 is not intended to prevent you from instituting legal action for
the sole purpose of enforcing this Agreement or from filing a charge with, or
participating in an investigation conducted by, the Equal Employment Opportunity
Commission or any comparable state human rights agency; provided however, that
you expressly waive and relinquish any right you might have to recover damages
or other relief, whether equitable or legal, in any such proceeding concerning
events or actions that arose on or before the date you signed this
Agreement. You agree to inform the EEOC, any other governmental
agency, any court or any arbitration organization that takes jurisdiction over
any matter relating to your employment or termination of employment that this
Agreement constitutes a full and final settlement by you of all claims released
hereunder.
12.Representations. The Company represents
and warrants that (a) the execution, delivery and performance of this
Agreement has been fully and validly authorized by all necessary corporate
action (including, without limitation, by any action required to be taken by the
board of directors of the Company or any affiliate, any committee of such board
or any committee or designee administering the applicable CIGNA plans);
(b) the officer signing this Agreement on behalf of the Company is duly
authorized to do so; (c) the execution, delivery and performance of this
Agreement does not violate any applicable law, regulation, order, judgment or
decree or any agreement, plan or corporate governance document to which the
Company or any affiliate is a party or by which it is bound; and (d) upon
execution and delivery of this Agreement by the parties, it shall be a valid and
binding obligation of the Company enforceable against it in accordance with its
terms, except to the extent that enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting the enforcement of creditors’
rights generally.
13.Notices. Except as
provided below, any notice, request or other communication given in connection
with this Agreement shall be in writing and shall be deemed to have been given
(a) when personally delivered to the recipient or (b) provided that a written
acknowledgement of receipt is obtained, three days after being sent by prepaid
certified or registered mail, or two days after being sent by a nationally
recognized overnight courier, to the address specified in this paragraph 13 (or
such other address as the recipient shall have specified by ten days’ advance
written notice given in accordance with this paragraph 13). Such
communication shall be addressed to you as follows (unless such address is
changed in accordance with this paragraph 13):
H. ▇▇▇▇▇▇ ▇▇▇▇▇▇
[Address]
and to
the Company or CIGNA as follows:
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▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
CIGNA
Corporation
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇, ▇▇▇▇▇
However,
CIGNA and you may deliver any notices or other communications related to any
employee benefit or compensation plans, programs or arrangements in the same
manner that similar communications are delivered to or from other current or
former employees, including by electronic transmission and first class
mail.
14. Successors and
Assigns. This Agreement will be binding on and inure to the
benefit of the parties and their respective successors, heirs (in your case) and
permitted assigns. No rights or obligations of the Company under this
Agreement may be assigned or transferred without your prior written consent,
except that such rights or obligations may be assigned or transferred pursuant
to a merger or consolidation in which the Company is not the continuing entity,
or a sale, liquidation or other disposition of the assets of the Company,
provided that the assignee or transferee is the successor to the Company (or in
connection with a purchase of Company assets, assumes the liabilities,
obligations and duties of the Company under this Agreement), either
contractually or as a matter of law. Your rights or obligations under
this Agreement may not be assigned or transferred by you, without the Company’s
prior written consent, other than your rights to compensation and benefits,
which may be transferred only by will or operation of law or pursuant to the
terms of the applicable plan, program, grant or agreement of CIGNA or the
Company. In the event of your death or a judicial determination of
your incompetence, references in this Agreement to you shall be deemed to refer,
where appropriate, to your legal representative, or, where appropriate, to your
beneficiary or beneficiaries.
15. Injunctive
Relief. You agree that CIGNA shall, in addition to any other
relief available at law or equity, be entitled to injunctive relief and/or to
have the restrictive covenants contained in paragraph 2 specifically enforced by
a court of competent jurisdiction (without the requirement to post a bond), it
being agreed that any breach or threatened breach of the restrictive covenants
set forth in paragraph 2 would cause irreparable injury to CIGNA and that
monetary damages alone would not provide an adequate remedy. The
remedies contained herein are cumulative and are in addition to any other rights
and remedies CIGNA may have at law or in equity.
16. This
Agreement is not effective or binding on either party until fully signed by both
parties.
The
persons named below have signed this Agreement on the dates shown
below:
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_____________________________
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Date
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H.
▇▇▇▇▇▇ ▇▇▇▇▇▇
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____________________________
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Date
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▇▇▇▇
▇▇▇▇▇▇▇▇
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on
behalf of the Company
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