Exhibit 1.1
$300,000,000
6.35% Senior Notes due 2018
Underwriting
Agreement
March 4,
2008
Banc of
America Securities LLC
9 West
57th Street
New York,
NY 10019
Goldman,
Sachs & Co.
85 Broad
Street
New York,
NY 10004
as the
Representatives of the several Underwriters
Ladies
and Gentlemen:
CIGNA
Corporation, a Delaware corporation (the “
Company
”), confirms,
subject to the terms and conditions stated herein, its agreement to issue and
sell to the Underwriters named in Schedule I hereto (the “
Underwriters
”) the
aggregate principal amount of its notes listed in Schedule I (the “
Notes
”) to be issued
pursuant to an Indenture dated as of August 16, 2006 (the “
Base Indenture
”)
between the Company and U.S. Bank National Association, as trustee (the “
Trustee
”) and
Supplemental Indenture No. 3 to the Base Indenture to be entered into between
the Company and the Trustee (the “
Supplemental
Indenture,
” and together with the Base Indenture and any amendments or
supplements thereto, the “
Indenture
”), between
the Company and the Trustee.
1.
Representations and
Warranties of the Company
.
The Company represents
and warrants to, and agrees with, each of the Underwriters that:
(a)
An
“automatic shelf registration statement” as defined under Rule 405 under the
Securities Act of 1933, as amended (the “
Securities Act
”) on
Form S-3 (File No. 333-136704) in respect of the Notes has been filed with the
Securities and Exchange Commission (the “
Commission
”) not
earlier than three years prior to the date hereof; such registration statement,
and any post-effective amendment thereto, became effective on filing; and no
stop order suspending the effectiveness of such registration statement or any
part thereof has been issued and no proceeding for that purpose has been
initiated or threatened by the Commission, and no notice of objection of the
Commission to the use of such registration statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been
received by the Company; the base prospectus filed as part of such registration
statement, in the form in which it has most recently been filed with the
Commission on or prior to the date of this Agreement, is
hereinafter
called the “
Basic
Prospectus
”; the preliminary prospectus (including the preliminary
prospectus supplement dated March 4, 2008) relating to the Notes filed with the
Commission pursuant to Rule 424(b) under the Securities Act is hereinafter
called the “
Preliminary
Prospectus
”; the various parts of such registration statement, including
all exhibits thereto but excluding Form T-1 and including any prospectus
supplement relating to the Notes that is filed with the Commission and deemed by
virtue of Rule 430B under the Securities Act to be part of such registration
statement, each as amended at the time such part of the registration statement
became effective, are hereinafter collectively called the “
Registration
Statement
”; the form of the final prospectus relating to the Notes filed
with the Commission pursuant to Rule 424(b) under the Securities Act in
accordance with Section 7(a) hereof is hereinafter called the “
Prospectus
”; any
reference herein to the Basic Prospectus, the Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein, as of the date of such prospectus; any reference to any
amendment or supplement to the Basic Prospectus, the Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include any post-effective
amendment to the Registration Statement, any prospectus supplement relating to
the Notes filed with the Commission pursuant to Rule 424(b) under the Securities
Act and any documents filed under the Securities Exchange Act of 1934, as
amended (the “
Exchange
Act
”), and incorporated therein, in each case after the date of the Basic
Prospectus, the Preliminary Prospectus, or the Prospectus, as the case may be;
any reference to any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed pursuant to Section
13(a) or 15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration Statement; and
any “issuer free writing prospectus” as defined in Rule 433 under the Securities
Act relating to the Notes is hereinafter called an “
Issuer Free Writing
Prospectus
”;
(b)
No order
preventing or suspending the use of any Preliminary Prospectus or any Issuer
Free Writing Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material respects to
the requirements of the Securities Act and the Trust Indenture Act of 1939, as
amended (the “
Trust
Indenture Act
”) and the rules and regulations of the Commission
thereunder, and did not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through the Representatives or Debevoise & Plimpton LLP on their
behalf expressly for use therein;
(c)
For the
purposes of this Agreement, the “
Applicable Time
” is
4:06
p.m. (Eastern
time) on the date of this Agreement; the Preliminary Prospectus as supplemented
by the final term sheet prepared and filed pursuant to Section 3(b) hereof and
any
Permitted
Free Writing Prospectus (as defined in Section 3(a) below), taken together
(collectively, the “
Pricing Disclosure
Package
”) as of the Applicable Time, did not include any untrue statement
of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; and each Issuer Free Writing Prospectus does not conflict
with the information contained in the Registration Statement, the Preliminary
Prospectus or the Prospectus and each such Issuer Free Writing Prospectus, as
supplemented by and taken together with the Pricing Disclosure Package as of the
Applicable Time, did not include any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply to
statements or omissions made in an Issuer Free Writing Prospectus in reliance
upon and in conformity with information furnished in writing to the Company by
an Underwriter through the Representatives or Debevoise & Plimpton LLP on
their behalf expressly for use therein;
(d)
The
documents incorporated by reference in the Pricing Disclosure Package and the
Prospectus, when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; any
further documents so filed and incorporated by reference in the Pricing
Disclosure Package and the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with the Commission,
as the case may be, will conform in all material respects to the requirements of
the Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; and
no such documents were filed with the Commission since the Commission’s close of
business on the business day immediately prior to the date of this Agreement and
prior to the execution of this Agreement;
(e)
The
Registration Statement conformed, as of its effective date, and conforms, and
the Pricing Disclosure Package and the Prospectus and any further amendments or
supplements to the Registration Statement and the Prospectus will conform, in
all material respects to the requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to each part of the
Registration Statement and as of the applicable filing date as to the Prospectus
and any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, that
this representation and warranty shall not apply to
any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the
Representatives or Debevoise & Plimpton LLP on their behalf expressly for
use therein;
(f)
(
i
) (
A
) At the time
of filing the Registration Statement, (
B
) at the time
of the most recent amendment thereto for the purposes of complying with Section
10(a)(3) of the Securities Act (whether such amendment was by post-effective
amendment, incorporated report filed pursuant to Section 13 or 15(d) of the
Exchange Act or form of prospectus), and (
C
) at the time
the Company or any person acting on its behalf (within the meaning, for this
clause only, of Rule 163(c) under the Securities Act) made any offer relating to
the Notes in reliance on the exemption of Rule 163 under the Securities Act, the
Company was a “well-known seasoned issuer” as defined in Rule 405 under the
Securities Act; and (
ii
) at the
earliest time after the filing of the Registration Statement that the Company or
another offering participant made a bona fide offer (within the meaning of Rule
164(h)(2) under the Securities Act) of the Notes, the Company was not an
“ineligible issuer” as defined in Rule 405 under the Securities
Act;
(g)
The
Company has been duly incorporated and is validly existing in good standing
under the laws of the State of Delaware, with power and authority to own its
properties and conduct its business as described in the Pricing Disclosure
Package and the Prospectus; the Company’s authorized share capital is as set
forth in the Pricing Disclosure Package and the Prospectus, and all of the
issued shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable;
(h)
Each of
Connecticut General Life Insurance Company and Life Insurance Company of North
America (each being hereinafter referred to as a “
Principal
Subsidiary
”) has been duly formed and is validly existing in good
standing under the laws of the jurisdiction of its formation, with power and
authority (corporate and other) to own its properties and conduct its business
as described in the Pricing Disclosure Package and the Prospectus; and each
Principal Subsidiary of the Company maintains an insurance license or is duly
qualified to do business as a foreign corporation, limited partnership or
limited liability company in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business requires such
qualification; all of the issued and outstanding ownership interests of each
Principal Subsidiary of the Company have been duly authorized and validly issued
in accordance with the organizational documents of such Principal Subsidiary;
and the ownership interests of each Principal Subsidiary owned by the Company,
directly or through subsidiaries, is owned free from liens, encumbrances and
defects, except where the failure to be so licensed or qualified or where such
liens, encumbrances and defects would not, individually or in the aggregate,
have a material adverse effect on the financial condition, business or results
of operations of the Company and its subsidiaries taken as a whole (“
Material Adverse
Effect
”);
(i)
This
Agreement has been duly authorized, executed and delivered by the
Company;
(j)
The Notes
and the Indenture have been duly authorized by the Company and, when the
Supplemental Indenture has been duly executed and delivered by the Company in
accordance with its terms, and assuming the valid execution and delivery thereof
by the Trustee, the Indenture will constitute, and, in the case of the Notes,
when they are delivered by the Company, paid for pursuant to this Agreement and
the Indenture and duly authenticated and delivered by the Trustee, the Notes
will, on the Closing Date, constitute, valid and legally binding obligations of
the Company, enforceable in accordance with their respective terms, subject, as
to enforcement, to bankruptcy, insolvency, fraudulent transfer, reorganization
and other laws of general applicability relating to or affecting creditors’
rights and to general equity principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law); the Notes
when delivered by the Company, paid for pursuant to this Agreement and the
Indenture and duly authenticated and delivered by the Trustee, will be entitled
to the benefits of the Indenture; and the Notes conform to the descriptions
thereof in the Pricing Disclosure Package and the Prospectus in all material
respects;
(k)
The
issuance by the Company of the Notes, the compliance by the Company with all of
the provisions of this Agreement, the Notes and the Indenture, and the
consummation of the transactions contemplated herein and therein (
a
) will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or
any subsidiary is a party or by which the Company or any subsidiary is bound or
to which any of the property or assets of the Company or any subsidiary is
subject, which conflict, breach, violation, or default would individually, or in
the aggregate, have a Material Adverse Effect; and (
b
) will not
result in any violation of (
i
) the
provisions of the Certificate of Incorporation or By-laws or other
organizational documents of the Company, or the charter, by-laws or other
organizational documents of any subsidiary of the Company or (
ii
) any existing
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company’s or any of its or its subsidiaries’
properties, which violation, in the case of any of the Company’s subsidiaries,
would, individually, or in the aggregate, have a Material Adverse
Effect;
(l)
No
consent, approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the issue of
the Notes or the consummation by the Company of the other transactions
contemplated by this Agreement and the Indenture, except such consents,
approvals, authorizations, registrations or qualifications as may be required
under state securities or blue sky laws in connection with the issuance by the
Company of the Notes and the purchase and distribution of the Notes by the
Underwriters;
(m)
The
Company and its Principal Subsidiaries possess certificates, authorities or
permits issued by appropriate governmental agencies or bodies necessary to
conduct the business now operated by them and have not received any notice of
proceedings relating to the revocation or modification of any such certificate,
authority or permit that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material Adverse
Effect;
(n)
Except as
disclosed in the Pricing Disclosure Package and the Prospectus, there are no
pending actions, suits or proceedings against or affecting the Company, any of
its subsidiaries or any of their respective properties that are required to be
described in the Registration Statement, the Pricing Disclosure Package or the
Prospectus and are not so described or would not reasonably be expected to
materially and adversely affect the ability of the Company to perform its
obligations under the Indenture or this Agreement or which are otherwise
reasonably possible to be material in the context of the sale of the Notes; and
no such actions, suits or proceedings are threatened or, to the Company’s
knowledge, contemplated;
(o)
There are
no contracts or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be incorporated by
reference into the Registration Statement, Pricing Disclosure Package or the
Prospectus or required to be described in the Registration Statement, Pricing
Disclosure Package or the Prospectus which are not filed or incorporated by
reference or described as required;
(p)
The
financial statements included or incorporated by reference in the Registration
Statement, the Pricing Disclosure Package and the Prospectus present fairly the
financial position of the Company and its consolidated subsidiaries as of the
dates shown and their results of operations and cash flows for the periods
shown, and, except as otherwise disclosed in the Registration Statement, the
Pricing Disclosure Package and the Prospectus, such financial statements have
been prepared in conformity with the generally accepted accounting principles in
the United States applied on a consistent basis;
(q)
Since the
date of the latest audited financial statements incorporated by reference in the
Registration Statement, the Pricing Disclosure Package and the Prospectus and
except as disclosed in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, which incorporates by reference the annual report on
Form 10-K for the fiscal year ended December 31, 2007, as well as certain
current reports on Form 8-K, as listed in such Prospectus, there has been no
material adverse change in the business, financial condition, prospects or
results of operations of the Company and its subsidiaries taken as a whole, and
there has been no dividend or distribution of any kind declared, paid or made by
the Company on any class of its equity interests, except the Company’s regular
cash dividend on its common stock, par value $0.25 per share;
(r)
The
Company and its consolidated subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (
1
) transactions
are executed in accordance with management’s general or specific authorization;
(
2
) transactions
are recorded as necessary to permit preparation of financial statements in
conformity with accounting principles generally accepted in the United States
(“
GAAP
”) and to
maintain accountability for assets; (
3
) access to
assets is permitted only in accordance with management’s general or specific
authorization; and (
4
) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences. Except as described in the Pricing Disclosure Package
and the Prospectus, since the end of the Company’s most recent audited fiscal
year, there has been (
i
) no material
weakness identified by management, or by the Company’s auditors and communicated
to management, in the Company’s internal control over financial reporting
(whether or not remediated) and (
ii
) no change in
the Company’s internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the Company’s internal
control over financial reporting;
(s)
The
Company and its consolidated subsidiaries employ disclosure controls and other
procedures that are designed to ensure that information required to be disclosed
by the Company in the reports that it files or submits under the Exchange Act is
recorded, processed, summarized and reported, within the time periods specified
in the Commission’s rules and forms, and is accumulated and communicated to the
Company’s management, including its principal executive and principal financial
officer or officers, as appropriate, to allow timely decisions regarding
disclosure;
(t)
PricewaterhouseCoopers
LLP, who have certified certain financial statements of the Company and its
subsidiaries, is an independent registered public accounting firm with respect
to the Company and its subsidiaries within the applicable rules and regulations
adopted by the Commission and the Public Accounting Oversight Board (United
States) and as required by the Securities Act; and
(u)
The
Company is not and, after giving effect to the offering and sale of the Notes
and the application of the proceeds thereof as described in the Pricing
Disclosure Package and the Prospectus, will not be an “investment company” as
defined in the Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder.
2.
Sale and
Delivery
.
(a)
Subject
to the terms and conditions herein set forth, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, the principal amount of
each series of Notes set forth in Schedule I opposite the name of such
Underwriter (plus an additional amount of Notes that such Underwriter may become
obligated to purchase
pursuant
to the provisions of Section 9 hereof) at the price set forth on Schedule I,
plus accrued interest, if any, from March 7, 2008.
(b)
The Notes
to be purchased by each Underwriter hereunder will be represented by registered
global notes in book entry form which will be deposited by or on behalf of the
Company with The Depository Trust Company (“
DTC
”) or its
designated custodian. The Company will deliver the Notes to the
Representatives, acting on behalf of the Underwriters for the account of each
Underwriter, against payment by or on behalf of such Underwriter of the amount
therefor, as set forth above, by wire transfer of Federal (same day) funds to a
commercial bank account located in the United States and designated in writing
at least forty eight hours prior to the Closing Date by the Company to the
Representatives, by causing DTC to credit the Notes to the account of one or
more of the Representatives, as designated prior to the Closing Date, at
DTC. The Company will cause the global certificates representing the
Notes to be made available to the Representatives, acting on behalf of the
Underwriters, for checking at least twenty four hours prior to the Closing Date
at the office of DTC or its designated custodian (the “
Designated
Office
”). The time and date of such delivery and payment shall
be 9:30 a.m., New York City time, on March 7, 2008 or such other time and date
as the Representatives and the Company may agree upon in
writing. Such time and date are herein called the “
Closing
Date.
”
(c)
The
documents to be delivered on the Closing Date by or on behalf of the parties
hereto pursuant to Section 7 hereof, including the cross receipt for the Notes
and any additional documents requested by the Underwriters pursuant to Section
7(k) hereof, will be delivered at such time and date at the offices of Debevoise
& Plimpton LLP, New York, New York or such other location as the
Representatives and the Company may agree in writing (the “
Closing Location
”),
and the Notes will be delivered at the Designated Office, all on the Closing
Date. A meeting will be held at the Closing Location at 1:00 p.m.,
New York City time or at such other time as the Representatives and the Company
may agree in writing, on the New York Business Day next preceding the Closing
Date, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 2, “
New York Business
Day
” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York are generally
authorized or obligated by law or executive order to close.
3.
Free Writing
Prospectuses
.
(a)
The
Company represents and agrees that, without the prior consent of the
Representatives, it has not made and will not make any offer relating to the
Notes that would constitute a “free writing prospectus” as defined in Rule 405
under the Securities Act, other than a Permitted Free Writing Prospectus; each
Underwriter, severally and not jointly, represents and agrees that, without the
prior consent of the Company and the
Representatives,
it has not made and will not make any offer relating to the Notes that would
constitute a “free writing prospectus” as defined in Rule 405 under the
Securities Act, other than a Permitted Free Writing Prospectus or a free writing
prospectus that is not required to be filed by the Company pursuant to Rule 433,
provided
that
the Underwriters may use a term sheet substantially in the form of Schedule II
hereto without the consent of the Company; any such free writing prospectus
(which shall include the pricing term sheet discussed in Section 3(b) hereof),
the use of which has been consented to by the Company and the Representatives,
is listed on Schedule III and herein called a “
Permitted Free Writing
Prospectus.
”
(b)
The
Company agrees to prepare a term sheet specifying the terms of the Notes not
contained in the Preliminary Prospectus, substantially in the form of Schedule
II hereto and approved by the Representatives, and to file such pricing term
sheet pursuant to Rule 433(d) under the Securities Act within the time period
prescribed by such Rule.
(c)
The
Company and the Representatives have complied and will comply with the
requirements of Rule 433 under the Securities Act applicable to any free writing
prospectus, including timely Commission filing, where required, and
legending.
(d)
The
Company agrees that if at any time following issuance of a Permitted Free
Writing Prospectus any event occurred or occurs as a result of which such
Permitted Free Writing Prospectus would conflict with the information in the
Registration Statement, the Preliminary Prospectus or the Prospectus, or the
Pricing Disclosure Package would include an untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, the Company will give prompt notice thereof to the Representatives
and, if requested by the Representatives, will prepare and furnish without
charge to each Underwriter a free writing prospectus or other document, the use
of which has been consented to by the Representatives, which will correct such
conflict, statement or omission.
4.
Covenants and
Agreements
.
The
Company covenants and agrees with each of the Underwriters:
(a)
That the
Company will furnish without charge to the Underwriters a copy of the
Registration Statement, including all documents incorporated by reference
therein and exhibits filed with the Registration Statement (other than exhibits
which are incorporated by reference and have previously been so furnished), and,
during the period mentioned in paragraph (c) below, as many written and
electronic copies of the Preliminary Prospectus, the Pricing Disclosure Package
and the Prospectus, any documents incorporated by reference therein at or after
the date thereof (including
documents
from which information has been so incorporated) and any supplements and
amendments thereto as each Underwriter may reasonably request;
(b)
That the
Company will cause the Preliminary Prospectus and the Prospectus to be filed
pursuant to, and in compliance with, Rule 424(b) and will promptly advise the
Underwriters (
i
) when any
amendment to the Registration Statement shall have been filed; provided, that,
with respect to documents filed pursuant to the Exchange Act and incorporated by
reference into the Registration Statement, such notice shall only be required
during such time as the Underwriters are required in the reasonable opinion of
the Representatives, to deliver a prospectus (or the notice referred to in Rule
173(a) under the Securities Act), (
ii
) of any
request by the Commission for any amendment of the Registration Statement,
(
iii
) of
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the institution or threatening of any proceeding
for that purpose or pursuant to Section 8A of the Securities Act against the
Company or related to the offering, and (
iv
) of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. So long as any
Underwriter is required in the reasonable opinion of the Representatives to
deliver a prospectus (or the notice referred to in Rule 173(a) under the
Securities Act), the Company will not file any amendment to the Registration
Statement or supplement to the Preliminary Prospectus or the Prospectus unless
the Company has furnished one copy of such amendment or supplement to each of
the Representatives and to Debevoise & Plimpton LLP, and, if such amendment
or supplement is to be filed on or prior to the Closing Date, or under
circumstances where the Underwriters are required in the reasonable opinion of
the Representatives, to deliver a prospectus (or the notice referred to in Rule
173(a) under the Securities Act), the Representatives, shall not reasonably have
objected thereto. If the Commission shall issue a stop order
suspending the effectiveness of the Registration Statement, the Company will
take such steps to obtain the lifting of that order as in the best judgment of
the Company are not contrary to the interests of the Company;
(c)
That if,
at any time when in the opinion of the Representatives the Pricing Disclosure
Package or the Prospectus (or the notice referred to in Rule 173(a) under the
Securities Act) is required by law to be delivered by an Underwriter or a
dealer, any event shall occur as a result of which it is necessary, in the
opinion of the Representatives or counsel for the Company, to amend or
supplement the Pricing Disclosure Package or the Prospectus or modify the
information incorporated by reference therein in order to make the statements
therein, in light of the circumstances existing when the Pricing Disclosure
Package or the Prospectus (or the notice referred to in Rule 173(a) under the
Securities Act) is delivered to a purchaser, not misleading, or if it shall be
necessary in the opinion of the Representatives, to amend or supplement the
Pricing Disclosure Package or the Prospectus or modify such information to
comply with law, the Company will forthwith (
i
) prepare and
furnish, at its own expense, to the Underwriters and to the
dealers
(whose names and addresses the Underwriters will furnish to the Company) to whom
Notes may have been sold by the Underwriters and to any other dealers upon
reasonable request, either amendments or supplements to the Pricing Disclosure
Package or the Prospectus or (
ii
) file with
the Commission documents incorporated by reference in the Pricing Disclosure
Package and Prospectus, which shall be so supplied to the Underwriters and such
dealers, in either case so that the statements in the Pricing Disclosure Package
or the Prospectus as so amended, supplemented or modified will not, in light of
the circumstances when the Pricing Disclosure Package or the Prospectus (or the
notice referred to in Rule 173(a) under the Securities Act) is delivered to a
purchaser, be misleading or so that the Pricing Disclosure Package and the
Prospectus will comply with law;
(d)
That, if
required, the Company will endeavor to qualify, at its expense, the
Notes for offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Underwriters shall reasonably request and to pay all filing
fees, reasonable expenses and legal fees in connection therewith and in
connection with the determination of the eligibility for investment of the
Notes; provided, that the Company shall not be required to qualify as a foreign
corporation or a dealer in securities or to file any consents to service of
process under the laws of any jurisdiction;
(e)
That the
Company will pay the required Commission filing fees relating to the Notes
within the time required by Rule 456(b)(1) under the Securities Act without
regard to the proviso therein and otherwise in accordance with Rules 456(b) and
457(r) under the Securities Act;
(f)
That the
Company will make generally available to its security holders and the holders of
the Notes as soon as practicable an earnings statement of the Company covering a
twelve month period beginning after the Closing Date which shall satisfy the
provisions of Section 11(a) of the Securities Act and the rules and regulations
of the Commission thereunder (including Rule 158 under the Securities Act);
and
(g)
That
during the period beginning on the date of this Agreement and continuing to and
including the Closing Date, the Company will not offer, sell, contract to sell
or otherwise dispose of any notes, any security convertible into or exchangeable
into or exercisable for notes or any other debt securities substantially similar
to the Notes (except for the Notes issued pursuant to this Agreement), without
the prior written consent of the Representatives.
5.
Certain Agreements of the
Underwriters
.
(a)
Each
Underwriter severally represents, warrants and agrees that: in relation to each
Member State of the European Economic Area which has implemented the Prospectus
Directive (each, a “
Relevant Member
State
”), it has not made and will not make an offer of the Notes to the
public in that Relevant Member State, except that it
may make
an offer of Notes to the public in that Relevant Member State at any time under
the following exemptions under the Prospectus Directive (as defined below), if
they have been implemented in that Relevant Member State: (
i
) to legal
entities which are authorized or regulated to operate in the financial markets
or, if not so authorized or regulated, whose corporate purpose is solely to
invest in securities; (
ii
) to any legal
entity which has two or more of the following (
1
) an average of
at least 250 employees during the last financial year, (
2
) a total
balance sheet of more than €43,000,000 and (
3
) an annual net
turnover of more than €50,000,000, as shown in its last annual or consolidated
accounts; (
iii
) to fewer
than 100 natural or legal persons (other than qualified investors as defined in
the Prospectus Directive) subject to obtaining the prior consent of the
Representatives for any such offer; or (
iv
) in any other
circumstances falling within Article 3(2) of the Prospectus Directive,
provided
that no such
offer of Notes to the public shall result in a requirement for the publication
by the Company or the Underwriters of a prospectus pursuant to Article 3 of the
Prospectus Directive.
For the
purposes of the preceding paragraph, the expression “offer of Notes to the
public” in relation to any Notes in any Relevant Member State means the
communication in any form and by any means of sufficient information on the
terms of the offer and the Notes to be offered so as to enable an investor to
decide to purchase the Notes, as the same may be varied in that Member State by
any measure implementing the Prospectus Directive in that Member State and the
expression “Prospectus Directive” means Directive 2003/71/EC and includes any
relevant implementing measure in each Relevant Member State.
6.
Expenses
.
The
Company covenants and agrees with the several Underwriters that the Company will
pay or cause to be paid the following: (
i
) all expenses
in connection with the preparation, printing and filing of the Registration
Statement as originally filed and of each amendment thereto; (
ii
) the fees,
disbursements and expenses of the Company’s counsel and accountants in
connection with the issue of the Notes and all other expenses in connection with
the preparation, printing and filing of the Basic Prospectus, any Permitted Free
Writing Prospectus, the Preliminary Prospectus, the Pricing Disclosure Package
and the Prospectus, and any amendments and supplements thereto and the mailing
and delivering of copies thereof to the Underwriters and dealers; (
iii
) all
reasonable expenses in connection with the qualification of the Notes for
offering and sale under state securities laws as provided in Section 4(d)
hereof, including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky and legal investment surveys; (
iv
) any fees
charged by rating services for rating the Notes; (
v
) the cost of
preparing the Notes; (
vi
) the fees and
expenses of the Trustee and any agent of the Trustee and the fees and
disbursements of counsel for the Trustee in connection with the Indenture; and
(
vii
) all
other costs and expenses incident to the performance of its obligations
hereunder
which are
not otherwise specifically provided for in this Section. It is
understood, however, that, except as provided in this Section, and Sections 8
and 11 hereof, the Underwriters will pay all of their own costs and expenses,
including any advertising expenses connected with any offers they may make and
the fees, disbursements and expenses of counsel for the
Underwriters.
7.
Conditions of Underwriters’
Obligations
.
The
obligations of the Underwriters hereunder shall be subject to the accuracy, at
and (except as otherwise stated herein) as of the date hereof and at and as of
the Closing Date, of the representations and warranties made herein by the
Company, to compliance at and as of the Closing Date by the Company with its
covenants and agreements herein contained and the other provisions hereof to be
satisfied at or prior to the Closing Date, and to the following additional
conditions:
(a)
(
i
) No stop order
suspending the effectiveness of the Registration Statement shall be in effect,
and no proceeding for such purpose or pursuant to Section 8A of the Securities
Act against the Company or related to the offering shall be pending before or
threatened by the Commission, (
ii
) the
Prospectus shall have been filed with the Commission pursuant to Rule 424(b)
within the applicable time period prescribed for filing by the rules and
regulations under the Securities Act and in accordance herewith and each
Permitted Free Writing Prospectus shall have been filed by the Company with the
Commission within the applicable time periods prescribed for such filings by,
and otherwise in compliance with Rule 433 under the Securities Act to the extent
so required and (
iii
) the
Underwriters shall have received on and as of the Closing Date, a certificate
dated such date, signed by an executive officer (including, without limitation,
the Treasurer) of the Company to the foregoing effect.
(b)
Subsequent
to the earlier of the Applicable Time and the execution and delivery of this
Agreement, there shall not have occurred (
i
) any change in
the business, financial condition, prospects or results of operations of the
Company and its subsidiaries taken as one enterprise which, in the reasonable
judgment of the Representatives, is material and adverse and makes it
impractical or inadvisable to proceed with completion of the offering or the
sale of and payment for the Notes on the terms set forth herein; (
ii
) any
downgrading in the rating of any debt securities of the Company or the financial
strength rating of any Principal Subsidiary of the Company by any “nationally
recognized statistical rating organization” (as defined for purposes of Rule
436(g) under the Securities Act), or any public announcement that any such
organization has newly placed under surveillance or review any such rating
(other than an announcement with positive implications of a possible upgrading,
and no implication of a possible downgrading, of such rating); (
iii
) any
material suspension or material limitation of trading in securities generally on
the New York Stock Exchange, or on the over-the-counter market or any suspension
of trading of any securities of the Company on any exchange or in the
over-the-counter market; (
iv
) any general
moratorium on commercial banking activities
declared
by U.S. Federal or New York State authorities; (
v
) any major
disruption of settlements of securities or clearance services in the United
States or (
vi
) any act of
terrorism in the United States, any attack on, outbreak or escalation of
hostilities involving the United States, any declaration of war by Congress or
any other national or international calamity or crisis if, in the judgment of
the Representatives, the effect of any such attack, outbreak, escalation, act,
declaration, calamity or crisis on the financial markets makes it impractical or
inadvisable to proceed with completion of the offering or sale of and payment
for the Notes on the terms set forth herein.
(c)
Debevoise
& Plimpton LLP, counsel for the Underwriters, shall have furnished to you a
negative assurance letter and such opinion or opinions, each dated the Closing
Date, each with respect to such matters as you may reasonably request, and such
counsel shall have received such papers and information as they may reasonably
request to enable them to provide negative assurance with respect to such
matters or to pass upon such matters.
(d)
Carol Ann
Petren, Executive Vice President and General Counsel of the Company, or Nicole
Jones, Corporate Secretary, Vice President and Chief Counsel of the Company,
shall have furnished to you her written opinion, dated the Closing Date,
substantially in the form of
Exhibit A
hereto in
form and substance satisfactory to you.
(e)
Davis
Polk & Wardwell, counsel for the Company, shall have furnished to you their
written opinion, dated the Closing Date, substantially in the form of
Exhibit B
hereto in
form and substance satisfactory to you.
(f)
At the
time of execution of this Agreement, PriceWaterhouseCoopers LLC shall have
furnished to you a letter dated the date of such execution, substantially in the
form heretofore supplied and deemed satisfactory to you.
(g)
At the
Closing Date, PriceWaterhouseCoopers LLC shall have furnished you a letter,
dated the Closing Date, to the effect that such accountants reaffirm, as of the
Closing Date and as though made on the Closing Date, the statements made in the
letter furnished by such accountants pursuant to paragraph (f) of this
Section 7, except that the specified date referred to in such letter will be a
date not more than three business days prior to the Closing Date.
(h)
The
Company shall have furnished or caused to be furnished to you at the Closing
Date certificates of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers, to the
best of their knowledge after reasonable investigation, shall state that (
i
) the
representations and warranties of the Company in this Agreement are true and
correct, (
ii
) the Company
has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date, (
iii
) subsequent
to the date of the most recent financial statements in the Registration
Statement, the Pricing Disclosure Package
and the
Prospectus, there has been no material adverse change in the business, financial
condition, prospects or results of operations of the Company and its
subsidiaries taken as a whole except as set forth in or contemplated by the
Pricing Disclosure Package and the Prospectus, (
iv
) to the
effect set forth in paragraph (b)(ii) above, and (
v
) as to such
other matters as you may reasonably request.
(i)
No action
shall have been taken and no statute, rule, regulation or order shall have been
enacted, adopted or issued by any governmental agency or body which would as of
the Closing Date, prevent the issuance or the sale of the Notes; and no
injunction, restraining order or order of any other nature by any court of
competent jurisdiction shall have been issued as of the Closing Date which would
prevent the issuance or sale of the Notes.
(j)
The Notes
shall be eligible for clearance and settlement through DTC.
(k)
On or
prior to the Closing Date, the Company shall have furnished to the
Representatives such further certificates and documents as the Representatives
may reasonably request.
8.
Indemnification and
Contribution
.
(a)
The
Company will indemnify and hold harmless each Underwriter, its affiliates,
directors and officers and each person, if any, who controls such Underwriter
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, reasonable legal fees and other
reasonable expenses incurred in connection with any suit, action or proceeding
or any claim asserted, as such fees and expenses are incurred), joint or
several, to which such person may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, any
preliminary prospectus, the Basic Prospectus, the Preliminary Prospectus, any
Permitted Free Writing Prospectus, the Pricing Disclosure Package, the
Prospectus or any free writing prospectus used by the Company other than a
Permitted Free Writing Prospectus (or any such document, as from
time to
time amended, or deemed to be amended, supplemented or modified), in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use therein.
(b)
Each
Underwriter will, severally and not jointly, indemnify and hold harmless the
Company, its directors, its officers and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, to the same extent as the indemnity set forth in paragraph
(a) above, but only to the extent that such untrue statement or alleged
untrue statement or omission or alleged omission was made in the Registration
Statement, any preliminary prospectus, the Basic Prospectus, the Preliminary
Prospectus, any Permitted Free Writing Prospectus, the Pricing Disclosure
Package, the Prospectus or any free writing prospectus used by the Company other
than a Permitted Free Writing Prospectus (or any such document, as from time to
time amended, or deemed to be amended, supplemented or modified), in reliance
upon and in conformity with written information furnished to the Company by such
Underwriter through the Representatives expressly for use therein.
(c)
Promptly
after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party under such subsection. In case any such action
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. In any such action, any
indemnified party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such indemnified party
unless (
i
) the
indemnifying party and the indemnified party shall have mutually agreed to the
contrary; (
ii
) the
indemnifying party has failed within a reasonable time to retain counsel
reasonably satisfactory to the indemnified party; (
iii
) the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it that are different from or in addition to those
available to the indemnifying party; or (
iv
) the named
parties in any such action (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or potential
differing
interest
between them. It is understood and agreed that the indemnifying party
shall not, in connection with any action or related action in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all indemnified parties, and that all
such fees and expenses shall be reimbursed as they are incurred. Any
such separate firm for any Underwriter, its affiliates, directors and officers
and any control persons of such Underwriter shall be designated in writing by
the Representatives and any such separate firm for the Company, its directors,
its officers and any control persons of the Company shall be designated in
writing by the Company. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify each indemnified party from and
against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the written consent of
the indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (
i
) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (
ii
) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(d)
If the
indemnification provided for in this Section 8 is unavailable to or insufficient
to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other from
the offering of the Notes. If, however, the allocation provided by
the immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection
(c) above, then each indemnifying party shall contribute to such amount
paid or payable by such indemnified party in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault of the
Company on the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact
relates
to information supplied by the Company on the one hand or the Underwriters on
the other and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Company and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection
(d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include
any reasonable legal or other reasonable expenses incurred by such indemnified
party in connection with any such action or claim. Notwithstanding
the provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Notes underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters’ obligations in this
subsection (d) to contribute are several in proportion to their
respective underwriting obligations and not joint.
9.
Substitution of
Underwriters
.
If any
Underwriter shall default in its obligation to purchase the Notes which it has
agreed to purchase hereunder and the aggregate principal amount of such Notes
which such defaulting Underwriter agreed but failed to purchase does not exceed
10% of the total principal amount of Notes, the non defaulting Underwriters may
make arrangements satisfactory to the Company for the purchase of the aggregate
principal amount of such Notes by other persons, including any of the non
defaulting Underwriters, but if no such arrangements are made by the Closing
Date, the non defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Notes that
such defaulting Underwriter agreed but failed to purchase. If any
Underwriter or Underwriters shall so default and the aggregate principal amount
of Notes with respect to which such default or defaults occur exceeds 10% of the
total principal amount of Notes and arrangements satisfactory to the non
defaulting Underwriters and the Company for the purchase of such Notes by other
persons are not made within 36 hours after such default, this agreement will
terminate.
If the
non defaulting Underwriter or Underwriters or substituted underwriter or
underwriters are required hereby or agree to take up all or part of Notes of the
defaulting Underwriter as provided in this Section 9, (
i
) the Company
shall have the right to postpone the Closing Date for a period of not more than
five full business days, in order
that the
Company may effect whatever changes may thereby be made necessary in the
Registration Statement or Prospectus or in any other documents or arrangements,
and the Company agrees to promptly file any amendments to the Registration
Statement or supplements to the Prospectus which may thereby be made necessary,
and (
ii
) the
respective aggregate principal amount of Notes which the non defaulting
Underwriters or substituted purchaser or purchasers shall thereafter be
obligated to purchase shall be taken as the basis of their underwriting
obligation for all purposes of this Agreement. Nothing herein
contained shall relieve any defaulting Underwriter of its liability to the
Company or the non defaulting Underwriters for damages occasioned by its default
hereunder. Any termination of this Agreement pursuant to this Section
9 shall be without liability on the part of the non defaulting Underwriters or
the Company, other than as provided in Sections 8 and 11.
10.
Survival of Indemnities,
Representations, Warranties, etc
.
The
respective indemnities, agreements, representations, warranties and other
statements of the Company and the several Underwriters, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Notes.
11.
Termination
.
If this
Agreement shall be terminated pursuant to Section 9 or if for any reason the
purchase of the Notes by the Underwriters is not consummated, the Company shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 6 and the respective obligations of the Company and the Underwriters
pursuant to Section 8 shall remain in effect. If the purchase of the
Notes by the Underwriters is not consummated for any reason other than solely
because of the termination of this Agreement pursuant to Section 9 or the
occurrence of any event specified in clause (iii) (other than any
suspension of trading specific to the Company's securities), (iv), (v) or
(vi) of section 7(b), the Company will reimburse the Underwriters for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Notes.
12.
Notices
.
In all
dealings hereunder, the Representatives shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by the Representatives.
All
statements, requests, notices and agreements hereunder shall be in writing, and
(
i
) if to
the Underwriters shall be delivered or sent by mail, telex or facsimile
transmission to the Underwriters in care of:
Banc of
America Securities LLC, 40 West 57th Street, NY1-040-27-03, New York,
NY 10019, Attention: High Grade Transactional Management/Legal
,
Facsimile No.
646-313-4823
,
Goldman,
Sachs & Co., 85 Broad Street, 20
th
Floor,
New York, New York 10004, Attention: Registration Department
;
and
(
ii
) if to
the Company shall be delivered or sent by mail, telex or facsimile transmission
to CIGNA Corporation, Two Liberty Place, 1601 Chestnut Street, Philadelphia,
Pennsylvania 19192, Attention: Executive Vice President and General Counsel
(facsimile number: (215) 761-3596). Any such statements,
requests, notices or agreements shall take effect upon receipt
thereof.
13.
Successors
.
This
Agreement shall inure to the benefit of and be binding upon the several
Underwriters and the Company and their respective successors and the directors,
trustees, officers and controlling persons referred to in Section 8 of this
Agreement. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person other than the persons
mentioned in the preceding sentence any legal or equitable right, remedy or
claim under or in respect of this Agreement, or any provisions herein contained;
this Agreement and all conditions and provisions hereof being intended to be,
and being, for the sole and exclusive benefit of such persons and for the
benefit of no other person; except that the representations, warranties,
covenants, agreements and indemnities of the Company contained in this Agreement
shall also be for the benefit of the person or persons, if any, who control any
Underwriter within the meaning of the Securities Act or the Exchange Act, and
the representations, warranties, covenants, agreements and indemnities of the
several Underwriters shall also be for the benefit of each director of the
Company, each person who has signed the Registration Statement and the person or
persons, if any, who control the Company within the meaning of the Securities
Act.
14.
Relationship
.
The
Company acknowledges and agrees that (
i
) the purchase
and sale of the Notes pursuant to this Agreement is an arm's-length commercial
transaction between the Company, on the one hand, and the several Underwriters,
on the other, (
ii
) in
connection therewith and with the process leading to such transaction each
Underwriter is acting solely as a principal and not the agent or fiduciary of
the Company, (
iii
) no
Underwriter has assumed an advisory or fiduciary responsibility in favor of the
Company with respect
to the
offering contemplated hereby or the process leading thereto (irrespective of
whether such Underwriter has advised or is currently advising the Company on
other matters) or any other obligation to the Company except the obligations
expressly set forth in this Agreement and (
iv
) the Company
has consulted its own legal and financial advisors to the extent it deemed
appropriate. The Company agrees that it will not claim that the
Underwriters, or any of them, has rendered advisory services of any nature or
respect, or owes a fiduciary or similar duty to the Company, in connection with
such transaction or the process leading thereto.
Goldman,
Sachs & Co. understands that the Company expects to use the net proceeds of
the offering of the Notes as described in the Preliminary Prospectus. The
Company understands that Goldman, Sachs & Co. may be retained as a financial
advisor in connection with any such acquisition. The Company agrees that
Goldman, Sachs & Co. is not (and will not be deemed to be) the Company's
financial advisor in connection with any such potential acquisition and that any
such advisory relationship would need to be established by a separate engagement
letter or other applicable type of agreement.
15.
Applicable
Law
.
This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York.
The
Company hereby submits to the non-exclusive jurisdiction of the Federal and
state courts in the Borough of Manhattan in The City of New York in any suit or
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
16.
Counterparts
.
This
Agreement may be executed by any one or more of the parties hereto in any number
of counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same
instrument. Delivery of an executed signature page of this Agreement
by facsimile or any other rapid transmission device designed to produce a
written record of the communication transmitted shall be as effective as
delivery of a manually executed counterpart thereof.
[signature
page follows]
If the
foregoing is in accordance with your understanding, please sign and return to us
five counterparts hereof, and upon the acceptance hereof by you, on behalf of
each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement between each of the Underwriters and the
Company. It is understood that your acceptance of this letter on
behalf of each of the Underwriters is pursuant to the authority set forth in a
form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination upon request, but without warranty on your part as
to the authority of the signers thereof.
|
|
Very
truly yours,
|
|
|
CIGNA
Corporation
|
|
|
By:
/s/ Mordecai
Schwartz
|
|
|
Name:
Mordecai Schwartz
|
|
|
Title: Senior
Vice President
|
|
|
and
Treasurer
|
Accepted
as of the date hereof:
BANC OF
AMERICA SECURITIES LLC
GOLDMAN,
SACHS & CO.
as the Representatives of the several
Underwriters
By:BANC
OF AMERICA SECURITIES LLC
By:
/s/ Peter J.
Carbone
Name: Peter J. Carbone
Title: Vice President
By:
GOLDMAN, SACHS & CO.
By:
/s/ GOLDMAN, SACHS &
CO.
(GOLDMAN,
SACHS & CO.)
SCHEDULE
I
|
|
|
|
|
|
Purchase
price payable by the Underwriters
|
|
|
99.238%
|
|
|
|
|
|
|
|
|
Principal amount to be
purchased by each Underwriter
|
|
|
|
|
|
Banc
of America Securities
LLC
|
|
$
|
88,500,000
|
|
|
Goldman,
Sachs &
Co.
|
|
|
88,500,000
|
|
|
Barclays
Capital
Inc.
|
|
|
15,000,000
|
|
|
Citigroup
Global Markets
Inc.
|
|
|
15,000,000
|
|
|
Deutsche
Bank Securities
Inc.
|
|
|
15,000,000
|
|
|
J.P.
Morgan Securities
Inc.
|
|
|
15,000,000
|
|
|
Mitsubishi
UFJ Securities International plc
|
|
|
15,000,000
|
|
|
UBS
Securities
LLC
|
|
|
15,000,000
|
|
|
Wachovia
Capital Markets,
LLC
|
|
|
15,000,000
|
|
|
Daiwa
Securities America
Inc.
|
|
|
6,000,000
|
|
|
Mizuho
Securities USA
Inc
|
|
|
6,000,000
|
|
|
PNC
Capital Markets
LLC.
|
|
|
6,000,000
|
|
|
Total
|
|
$
|
300,000,000
|
|
Exhibit 4.1
SUPPLEMENTAL
INDENTURE NO. 3
THIS SUPPLEMENTAL INDENTURE NO.
3
, dated as of March 7, 2008 (the “
Supplemental Indenture No.
3
”), between
CIGNA
CORPORATION
, a corporation duly organized and existing under the laws of
the State of Delaware (the “
Company
”), and
U.S. BANK NATIONAL
ASSOCIATION
, a national banking association duly organized and existing
under the laws of the United States of America, as trustee (the “
Trustee
”).
RECITALS:
WHEREAS,
the Company and the Trustee are parties to a Senior Indenture, dated as of
August 16, 2006 (the “
Base Indenture
” and
as amended by this Supplemental Indenture No. 3, the “
Indenture
”), relating
to the issuance from time to time by the Company of its Securities on terms to
be specified at the time of issuance;
WHEREAS,
Section 901(5) of the Base Indenture provides that the Company may enter into a
supplemental indenture to add to, change or eliminate any of the provisions of
the Indenture in respect of one or more series of Securities, provided that any
such addition, change or elimination shall neither (A) apply to any Security of
any series created prior to the execution of such supplemental indenture and
entitled to the benefit of such provision nor (B) modify the rights of the
Holder of any such Security with respect to such provision;
WHEREAS,
the Company desires to amend the first paragraph of Section 303 of the Base
Indenture as it relates to the Senior Notes (as defined below) and each series
of Securities to be issued after the date hereof;
WHEREAS,
Section 901(7) of the Base Indenture provides that the Company may enter into a
supplemental indenture to establish the terms and provisions of a series of
Securities issued pursuant to the Indenture;
WHEREAS,
the Company desires to issue a series of Securities, and has duly authorized the
creation and issuance of such Securities and the execution and delivery of this
Supplemental Indenture No. 3 to modify the Base Indenture and provide certain
additional provisions as hereinafter described;
WHEREAS,
the parties hereto deem it advisable to enter into this Supplemental Indenture
No. 3 for the purpose of establishing the terms of such Securities, providing
for the rights, obligations and duties of the Trustee with respect to such
Securities and amending certain provisions of the Base Indenture;
and
WHEREAS,
all conditions and requirements of the Base Indenture necessary to make this
Supplemental Indenture No. 3 a valid, binding and legal instrument in accordance
with its terms have been performed and fulfilled by the parties
hereto.
NOW,
THEREFORE, for and in consideration of the premises and other good and valuable
consideration, receipt of which is hereby acknowledged by the parties hereto,
the parties hereto agree as follows:
ARTICLE
I
THE SENIOR
NOTES
Section
1.01
Title of
Securities
. There shall be a series of Securities designated
the “6.35% Senior Notes due 2018” of the Company (the “
Senior
Notes
”).
Section
1.02
Limitation of Aggregate
Principal Amount
. The aggregate principal amount of the Senior
Notes shall initially be limited to $300,000,000 (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, Senior Notes pursuant to Sections 304, 305, 306, 906 or 1107
of the Indenture and except for any Securities which, pursuant to Section 303 of
the Indenture, are deemed never to have been authenticated and delivered
thereunder). The Company may, without the consent of the Holders of
the Senior Notes, issue additional Senior Notes having the same interest rate,
maturity date, CUSIP number and other terms (other than issue date and issue
price) (“
Additional
Senior Notes
”). Any Additional Senior Notes, together with the
Senior Notes, will constitute a single series of Securities under the
Indenture. No Additional Senior Notes may be issued if an Event of
Default under the Indenture has occurred and is continuing with respect to the
Senior Notes.
Section
1.03
Principal Payment
Date
. The principal amount of the Senior Notes outstanding
(together with any accrued and unpaid interest) shall be payable in a single
installment on March 15, 2018, which date shall be the Stated Maturity of the
Senior Notes.
Section
1.04
Interest and Interest
Rates
. The rate of interest on each Senior Note shall be 6.35%
per annum, accruing from March 7, 2008, or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, payable semi-annually
in arrears on March 15 and September 15 of each year, commencing September 15,
2008 until the principal thereof is paid or made available for
payment. The amount of interest payable on any Interest Payment Date
shall be computed on the basis of a 360-day year of twelve 30-day
months. The amount of interest payable for any period shorter than a
full monthly period shall be computed on the basis of the actual number of
calendar days elapsed in such a period. In the event that any
Interest Payment Date, Redemption Date, Change of Control Payment Date, Maturity
or Stated Maturity of any Senior Note is not a Business Day, then payment of
interest or principal (and premium, if any) payable on such date will be made on
the next succeeding day that is a Business Day
(and
without any interest or other payment in respect of any such
delay). The interest so payable in respect of any Senior Note, and
punctually paid or duly provided for, on any Interest Payment Date will be paid
to the Person in whose name such Senior Note (or one or more Predecessor
Securities) is registered at the close of business on the fifteenth calendar day
(whether or not a Business Day) prior to such Interest Payment Date (the “
Regular Record Date
”). Any
such interest not punctually paid or duly provided for in respect of any Senior
Note shall forthwith cease to be payable to the registered Holder on such
Regular Record Date and may either be paid to the Person in whose name such
Senior Note (or one or more Predecessor Securities) is registered at the close
of business on a Special Record Date to be fixed by the Trustee for the payment
of such Defaulted Interest, notice whereof shall be given to the Holders of the
Senior Notes not less than 10 calendar days prior to such Special Record Date,
or be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Senior Notes may be listed,
and upon such notice as may be required by such exchange.
Section
1.05
Place of
Payment
. The place where the Senior Notes may be presented or
surrendered for payment, where the Senior Notes may be surrendered for
registration of transfer or exchange and where notices and demand to or upon the
Company in respect of the Senior Notes and the Indenture may be served shall be
the Corporate Trust Office of the Trustee or the Paying Agent’s office
maintained for that purpose in the Borough of Manhattan, City of New
York.
Section
1.06
Optional
Redemption
.
(a)
The
Company may redeem the Senior Notes, at any time, and from time to time, in
whole or in part, at a redemption price equal to the greater of (
i
) 100% of the
principal amount of such Senior Notes to be redeemed and (
ii
) the sum of the
present values of the remaining scheduled payments of principal and interest
(excluding interest accrued to the Redemption Date) on the Senior Notes to be
redeemed from the Redemption Date to the Stated Maturity date discounted to the
Redemption Date on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate, plus 40 basis points, plus, in each
case, accrued and unpaid interest on the Senior Notes to the Redemption Date
(the “
Redemption
Price
”). Unless the Company defaults in payment of the
Redemption Price, interest will cease to accrue on the Senior Notes called for
redemption on and after the Redemption Date.
(b)
The
Treasury Rate shall be calculated on the third Business Day preceding the
Redemption Date.
(c)
Notice of
redemption shall be given in accordance with Section 1104 of the
Indenture. If less than all of the Senior Notes then Outstanding are
to be redeemed, the Trustee will select the particular Senior Notes or portions
thereof in accordance with Section 1103 of the Indenture.
(d)
For the
purposes of this Section 1.06 of Supplemental Indenture No. 3, the terms below
are defined as follows:
“
Comparable Treasury
Issue
” means the United States Treasury Security selected by an
Independent Investment Banker as having a maturity comparable to the remaining
term of the Senior Notes to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of the Senior Notes to be redeemed.
“
Comparable Treasury
Price
” means, with respect to any Redemption Date for any Senior Notes,
the average of all Reference Treasury Dealer Quotations obtained.
“
Independent Investment
Banker
” means one of the Reference Treasury Dealers appointed by the
Trustee after consultation with the Company.
“
Primary Treasury
Dealer
” means a primary U.S. Government securities dealer in New York
City.
“
Reference Treasury
Dealer
” means Banc of America Securities LLC, Goldman, Sachs & Co.
and their successors;
provided
,
however
, that if any
Reference Treasury Dealer ceases to be a Primary Treasury Dealer, the Company
will substitute therefor another Primary Treasury Dealer.
“
Reference Treasury Dealer
Quotations
” means, with respect to each Reference Treasury Dealer and any
Redemption Date, the average, as determined by the Trustee, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) quoted in writing to the Trustee by that Reference
Treasury Dealer at 5:00 p.m. (New York City time) on the third Business Day
preceding such Redemption Date.
“
Treasury Rate
” means,
with respect to any Redemption Date, (
1
) the yield, under
the heading which represents the average for the immediately preceding week,
appearing in the most recently published statistical release designated
“H.15(519)” or any successor publication which is published weekly by the Board
of Governors of the Federal Reserve System and which establishes yields on
actively traded United States Treasury securities adjusted to constant maturity
under the caption “Treasury Constant Maturities,” for the maturity corresponding
to the Comparable Treasury Issue (if no maturity is within three months before
or after the maturity date for the Senior Notes, yields for the two published
maturities most closely corresponding to the Comparable Treasury Issue will be
determined and the Treasury Rate shall be interpolated or extrapolated from such
yields on a straight line basis, rounding to the nearest month) or (
2
) if such release
(or any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum equal to
the semi-annual equivalent yield-to-
maturity
of the Comparable Treasury Issue, calculated using a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Redemption Date.
Section
1.07
Change of Control
Offer
.
(a)
If a
Change of Control Triggering Event occurs, unless the Company has exercised its
right to redeem the Senior Notes in full, the Company will make an offer to each
Holder (the “
Change of
Control Offer
”) to repurchase any and all of such Holder’s Senior Notes
at a repurchase price in cash equal to 101% of the aggregate principal amount of
the Senior Notes repurchased plus accrued and unpaid interest, if any, thereon,
to the date of repurchase (the “
Change of Control
Payment
”). Within 30 days following any Change of Control
Triggering Event, the Company will mail a notice to Holders of Senior Notes
describing the transaction or transactions that constitute the Change of Control
Triggering Event and offering to repurchase the Senior Notes on the date
specified in the notice, which date will be no less than 30 days and no more
than 60 days from the date such notice is mailed (the “
Change of Control Payment
Date
”), pursuant to the procedures required by the Senior Notes and
described in such notice.
(b)
The
Company will comply with the requirements of Rule 14e-1 under the Securities
Exchange Act of 1934, as amended (the “
Exchange Act
”), and
any other securities laws and regulations thereunder to the extent those laws
and regulations are applicable in connection with the repurchase of the Senior
Notes as a result of a Change of Control Triggering Event. To the
extent that the provisions of any securities laws or regulations conflict with
the Change of Control repurchase provisions of the Senior Notes, the Company
will comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under the Change of Control repurchase
provisions of the Senior Notes by virtue of such conflicts.
(c)
The
Company will not be required to offer to repurchase the Senior Notes upon the
occurrence of a Change of Control Triggering Event if a third party makes such
an offer in the manner, at the times and otherwise in compliance with the
requirements for an offer made by the Company and the third party repurchases on
the applicable date all Senior Notes properly tendered and not withdrawn under
its offer;
provided
that for all
purposes of the Senior Notes and the Indenture, a failure by such third party to
comply with the requirements of such offer and to complete such offer shall be
treated as a failure by the Company to comply with its obligations to offer to
purchase the Senior Notes unless the Company promptly makes an offer to
repurchase the Senior Notes at 101% of the principal amount thereof plus accrued
and unpaid interest, if any, thereon, to the date of repurchase, which shall be
no later than 30 days after the third party’s scheduled Change of Control
Payment Date.
(d)
On the
Change of Control Payment Date, the Company will, to the extent
lawful:
(i)
accept or
cause a third party to accept for payment all Senior Notes or portions of Senior
Notes properly tendered pursuant to the Change of Control Offer;
(ii)
deposit
or cause a third party to deposit with the Paying Agent an amount equal to the
Change of Control Payment in respect of all Senior Notes or portions of Senior
Notes properly tendered; and
(iii)
deliver
or cause to be delivered to the Trustee the Senior Notes properly accepted,
together with an officer’s certificate stating the principal amount of Senior
Notes or portions of Senior Notes being purchased.
(e)
For the
purposes of this Section 1.07, the terms below are defined as
follows:
“
Below Investment Grade
Rating Event
” means the Senior Notes are rated below all Investment Grade
Ratings by at least two of the three Rating Agencies on any date from the
earlier of (
1
)
the occurrence of a Change of Control and (
2
) public notice of
the Company’s intention to effect a Change of Control, in each case until the
end of the 60-day period following public notice of the occurrence of the Change
of Control;
provided
,
however
, that if
(
a
) during such
60-day period one or more Rating Agencies has publicly announced that it is
considering the possible downgrade of the Senior Notes, and (
b
) a downgrade by
each of the Rating Agencies that has made such an announcement would result in a
Below Investment Grade Rating Event, then such 60-day period shall be extended
for such time as the rating of the Senior Notes by any such Rating Agency
remains under publicly announced consideration for possible downgrade to a
rating below an Investment Grade Rating and a downgrade by such Rating Agency to
a rating below an Investment Grade Rating could cause a Below Investment Grade
Rating Event. Notwithstanding the foregoing, a rating event otherwise
arising by virtue of a particular reduction in rating will not be deemed to have
occurred in respect of a particular Change of Control (and thus will not be
deemed a rating event for purposes of the definition of Change of Control
Triggering Event) if the Rating Agencies making the reduction in rating to which
this definition would otherwise apply do not announce or publicly confirm or
inform the Trustee in writing at the Company’s or the Trustee’s request that the
reduction was the result, in whole or in part, of any event or circumstance
comprised of or arising as a result of, or in respect of, the applicable Change
of Control (whether or not the applicable Change of Control has occurred at the
time of the rating event).
“
Change of Control
”
means the occurrence of any of the following: (
1
) direct or indirect
sale, transfer, conveyance or other disposition (other than by way of merger or
consolidation), in one or a series of related transactions, of all or
substantially all of the properties or assets of the Company and its
subsidiaries taken as a whole to any “person” (as that term is used in Section
13(d)(3) of the Exchange Act) other than to the Company or one of its
subsidiaries; (
2
) the consummation
of any transaction (including, without
limitation,
any merger or consolidation) the result of which is that any “person” (as that
term is used in Section 13(d)(3) of the Exchange Act) other than the Company or
one of its subsidiaries becomes the beneficial owner, directly or indirectly, of
more than 50% of the then outstanding number of shares of the Company’s voting
stock; or (
3
)
the first day on which a majority of the members of the Company’s Board of
Directors are not Continuing Directors;
provided
,
however
, that a
transaction will not be deemed to involve a Change of Control if (
A
) the Company
becomes a wholly owned subsidiary of a holding company and (
B
)(
x
) the holders of the
voting stock of such holding company immediately following that transaction are
substantially the same as the holders of the Company’s voting stock immediately
prior to that transaction or (
y
) immediately
following that transaction no Person is the beneficial owner, directly or
indirectly, of more than 50% of the voting stock of such holding company. For
purposes of this definition, “
voting stock
” means
capital stock of any class or kind the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of directors (or
persons performing similar functions) of the Company, even if the right to vote
has been suspended by the happening of such a contingency.
“
Change of Control Triggering
Event
” means the occurrence of both a Change of Control and a Below
Investment Grade Rating Event.
“
Continuing Director
”
means, as of any date of determination, any member of the Board of Directors of
the Company who (
1
) was a member of
the Board of Directors of the Company on the date of the issuance of the Senior
Notes; or (
2
)
was nominated for election or elected to the Board of Directors of the Company
with the approval of a majority of the Continuing Directors who were members of
such Board of Directors of the Company at the time of such nomination or
election (either by specific vote or by approval of the Company’s proxy
statement in which such member was named as a nominee for election as a
director).
“
Fitch
” means Fitch
Ratings Inc. and its successors.
“
Investment Grade
Rating
” means a rating by Moody’s equal to or higher than Baa3 (or the
equivalent under a successor rating category of Moody’s), a rating by S&P
equal to or higher than BBB- (or the equivalent under any successor rating
category of S&P), a rating by Fitch equal to or higher than BBB- (or the
equivalent under any successor rating category of Fitch), and the equivalent
investment grade credit rating from any replacement rating agency or rating
agencies selected by the Company under the circumstances permitting the Company
to select a replacement agency and in the manner for selecting a replacement
agency, in each case as set forth in the definition of “
Rating
Agencies
”.
“
Moody’s
” means
Moody’s Investors Service, Inc. and its successors.
“
Rating Agencies
”
means (
1
)
Moody’s, S&P and Fitch; and (
2
) if any or all of
Moody’s, S&P or Fitch ceases to rate the Senior Notes or fails to make a
rating of the Senior Notes publicly available for reasons outside of the
Company’s control, a “nationally recognized statistical rating organization”
within the meaning of Section 3(a)(62) of the Exchange Act, that the Company
selects (pursuant to a resolution of the Company’s Board of Directors) as a
replacement agency for any of Moody’s, S&P or Fitch, or all of them, as the
case may be.
“
S&P
” means
Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies,
Inc., and its successors.
Section
1.08
Sinking Fund
Obligations
. The Company has no obligation to redeem or
purchase any Senior Notes pursuant to any sinking fund or analogous requirement
or upon the happening of a specified event or at the option of a Holder
thereof.
Section
1.09
Denomination
. The
Senior Notes shall be issuable only in registered form without coupons and in
denominations of $2,000 and multiples of $1,000 in excess thereof.
Section
1.10
Currency
. Principal
and interest on the Senior Notes shall be payable in such coin or currency of
the United States of America that at the time of payment is legal tender for
payment of public and private debts.
Section
1.11
Senior Notes to be Issued in
Global Form
. The Senior Notes will be permanently represented
by one or more securities in global form (the “
Global Note
”). The
Company hereby designates The Depository Trust Company as the initial Depositary
for the Global Note.
Section
1.12
Form of Senior
Notes
. The Senior Notes shall be substantially in the form
attached as
Annex
A
hereto.
Section
1.13
Security Registrar and
Paying Agent for the Senior Notes
. The Trustee shall serve
initially as the Security Registrar and the Paying Agent.
Section
1.14
Defeasance
. The
provisions of Section 1006 of the Indenture shall apply to the Senior
Notes.
ARTICLE
II
AMENDMENT OF BASE
INDENTURE
Section
2.01
Execution, Authentication,
Delivery, and Dating
. The first paragraph of Section 303 of
the Base Indenture is hereby deleted in its entirety and the following is
inserted in substitution therefor:
The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its Vice Chairman of the Board, its President or one of its Vice
Presidents, attested by its Corporate Secretary or one of its Assistant
Corporate Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
ARTICLE
III
MISCELLANEOUS
Section
3.01
Integral Part; Effect of
Supplement on Indenture
. This Supplemental Indenture No. 3
constitutes an integral part of the Indenture. Except for the
amendments and supplements made by this Supplemental Indenture No. 3, the Base
Indenture shall remain in full force and effect as executed.
Section
3.02
General
Definitions
. For purposes of this Supplemental Indenture No.
3:
(a)
Capitalized
terms used herein without definition shall have the meanings specified in the
Base Indenture;
(b)
All
references to Articles and Sections, unless otherwise specified, refer to the
corresponding Articles and Sections of the Base Indenture; and
(c)
The terms
“herein,” “hereof,” “hereunder” and other words of similar import refer to this
Supplemental Indenture No. 3.
Section
3.03
Adoption, Ratification and
Confirmation
. The Indenture, as supplemented by this
Supplemental Indenture No. 3, is in all respects hereby adopted, ratified and
confirmed.
Section
3.04
Trustee Not Responsible for
Recitals
. The recitals in this Supplemental Indenture No. 3 are made by
the Company, and the Trustee assumes no responsibility for the correctness of
such recitals. The Trustee makes no representations as to the
validity or sufficiency of this Supplemental Indenture No. 3.
Section
3.05
Counterparts
. This
Supplemental Indenture No. 3 may be executed in multiple counterparts, each of
which shall be regarded for all purposes as an original and all of which shall
constitute but one and the same instrument.
Section
3.06
Governing
Law
. This Supplemental Indenture No. 3 and the Senior Notes
shall be governed by and construed in accordance with the laws of the State of
New York applicable to agreements made or instruments entered into and, in each
case, performed in said state.
[signature
page follows]
IN
WITNESS WHEREOF, the Company and the Trustee have executed this Supplemental
Indenture No. 3 as of the date first above written.
CIGNA
CORPORATION
By:
/s/ Mordecai Schwartz
Name: Mordecai
Schwartz
Title: Senior
Vice President
and Treasurer
U.S. BANK NATIONAL
ASSOCIATION
By:
/s/ William G.
Keenan
Name: William G.
Keenan
Title: Vice
President
ANNEX
A
FORM OF
GLOBAL NOTE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE AND IS
REGISTERED IN THE NAME OF CEDE & CO. THIS SECURITY MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFERS OF
THIS GLOBAL SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN NOMINEES OF CEDE & CO. OR A SUCCESSOR THEREOF OR SUCH
SUCCESSOR’S NOMINEE.
CIGNA
CORPORATION
6.35%
Senior Note Due 2018
CUSIP:
125509 BK4
No.
1
Principal
Amount $300,000,000
CIGNA
CORPORATION, a Delaware corporation (herein called the “
Company
”), which term
includes any successor Person under the Indenture hereinafter referred to, for
value received, hereby promises to pay to CEDE & CO., or its registered
assigns, the principal sum of Three Hundred Million Dollars ($300,000,000) upon
presentation and surrender of this Security on March 15, 2018 and to pay
interest thereon accruing from March 7, 2008 or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
in arrears on March 15 and September 15 of each year, commencing September 15,
2008, at the rate of 6.35% per annum, until the principal hereof is paid or made
available for payment. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record
Date for
such interest payment, which shall be the close of business on the fifteenth
calendar day (whether or not a Business Day) prior to such Interest Payment
Date. Any such interest not punctually paid or duly provided for
shall forthwith cease to be payable to the registered Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 calendar days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture.
Payment
of the principal of (and premium, if any) and interest on this Security will be
made at the Corporate Trust Office of the Trustee or the Paying Agent’s office
maintained for that purpose in the Borough of Manhattan, City of New York, in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts;
provided
,
however
, that at the
option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register.
Reference
is hereby made to the further provisions of this Security set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless
the certificate of authentication hereon has been executed by the Trustee
referred to on the reverse hereof by manual signature, this Security shall not
be entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN
WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
CIGNA
CORPORATION
By:
____________________
Name:
Title:
Attest:
____________________
Name:
Title:
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This is
one of the Securities of the series designated under, and referred to in, the
within-mentioned Indenture.
U.S. BANK NATIONAL
ASSOCIATION,
as
Trustee
By:
____________________
Authorized
Signatory
[REVERSE
SIDE OF SECURITY]
CIGNA
CORPORATION
6.35%
Senior Notes due 2018
This
Security is one of a duly authorized issue of securities of the Company (herein
called the “
Securities
”), issued
and to be issued in one or more series under a Senior Indenture, dated as of
August 16, 2006, as supplemented by a Supplemental Indenture No. 3, dated as of
March 7, 2008 (as so supplemented, the “
Indenture
”), between
the Company, as issuer, and U.S. Bank National Association, as trustee (herein
called the “
Trustee
”, which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face
hereof, initially limited in aggregate principal amount to $300,000,000, subject
to future issuances of additional Securities pursuant to Section 301 of the
Indenture.
The
Securities of this series are subject to redemption upon not less than 30
calendar days’ nor more than 60 calendar days’ notice by mail, at any time, and
from time to time, in whole or in part, at a redemption price equal to the
greater of (
i
)
100% of the principal amount of such Securities to be redeemed and (
ii
) the sum of the
present values of the remaining scheduled payments of principal and interest
(excluding interest accrued to the Redemption Date) on the Securities to be
redeemed from the Redemption Date to the Stated Maturity date discounted to the
Redemption Date on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate, plus 40 basis points, plus, in each
case, accrued and unpaid interest on the Securities to the Redemption
Date.
“
Treasury Rate
” means,
with respect to any Redemption Date, (
1
) the yield, under
the heading which represents the average for the immediately preceding week,
appearing in the most recently published statistical release designated
“H.15(519)” or any successor publication which is published weekly by the Board
of Governors of the Federal Reserve System and which establishes yields on
actively traded United States Treasury securities adjusted to constant maturity
under the caption “Treasury Constant Maturities,” for the maturity corresponding
to the Comparable Treasury Issue (if no maturity is within three months before
or after the maturity date for the Senior Notes, yields for the two published
maturities most closely corresponding to the Comparable Treasury Issue will be
determined and the Treasury Rate shall be interpolated or extrapolated from such
yields on a straight line basis, rounding to the nearest month) or (
2
) if such release
(or any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum equal to
the semi-annual equivalent yield-to-maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable
Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Redemption Date.
The
Treasury Rate shall be calculated on the third Business Day preceding the
Redemption Date.
“
Comparable Treasury
Issue
” means the United States Treasury Security selected by an
Independent Investment Banker as having a maturity comparable to the remaining
term of the Senior Notes to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of the Senior Notes to be redeemed.
“
Comparable Treasury
Price
” means, with respect to any Redemption Date for any Senior Notes,
the average of all Reference Treasury Dealer Quotations obtained.
“
Independent Investment
Banker
” means one of the Reference Treasury Dealers appointed by the
Trustee after consultation with the Company.
“
Primary Treasury
Dealer
” means a primary U.S. Government securities dealer in New York
City.
“
Reference Treasury
Dealer
” means Banc of America Securities, LLC, Goldman, Sachs, & Co.
and their successors;
provided
,
however
, that if any
Reference Treasury Dealer ceases to be a Primary Treasury Dealer, the Company
will substitute therefor another Primary Treasury Dealer.
“
Reference Treasury Dealer
Quotations
” means, with respect to each Reference Treasury Dealer and any
Redemption Date, the average, as determined by the Trustee, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) quoted in writing to the Trustee by that Reference
Treasury Dealer at 5:00 p.m. (New York City time) on the third Business Day
preceding such Redemption Date.
Unless
the Company defaults in payment of the Redemption Price, interest will cease to
accrue on the Securities of this series called for redemption on and after the
Redemption Date. In the event of redemption of this Security in part
only, a new Security or Securities of this series for the unredeemed portion
hereof will be issued in the name of the Holder hereof upon the cancellation
hereof.
If a
Change of Control Triggering Event occurs, unless the Company has exercised its
right to redeem the Securities in full, the Company will make an offer to each
Holder (the “
Change of
Control Offer
”) to repurchase any and all of such Holder’s Securities at
a repurchase price in cash equal to 101% of the aggregate principal amount
of the
Securities repurchased plus accrued and unpaid interest, if any, thereon, to the
date of repurchase (the “
Change of Control
Payment
”). Within 30 days following any Change of Control
Triggering Event, the Company will mail a notice to Holders of Securities
describing the transaction or transactions that constitute the Change of Control
Triggering Event and offering to repurchase the Securities on the date specified
in the notice, which date will be no less than 30 days and no more than 60 days
from the date such notice is mailed (the “
Change of Control Payment
Date
”), pursuant to the procedures required hereby and described in such
notice.
The
Company will comply with the requirements of Rule 14e-1 under the Securities
Exchange Act of 1934, as amended (the “
Exchange Act
”), and
any other securities laws and regulations thereunder to the extent those laws
and regulations are applicable in connection with the repurchase of the
Securities as a result of a Change of Control Triggering Event. To the extent
that the provisions of any securities laws or regulations conflict with the
Change of Control repurchase provisions of the Securities, the Company will
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under the Change of Control repurchase
provisions of the Securities by virtue of such conflicts.
The
Company will not be required to offer to repurchase the Securities upon the
occurrence of a Change of Control Triggering Event if a third party makes such
an offer in the manner, at the times and otherwise in compliance with the
requirements for an offer made by the Company and the third party repurchases on
the applicable date all Securities properly tendered and not withdrawn under its
offer;
provided
that for all purposes
of the Securities and the Indenture, a failure by such third party to comply
with the requirements of such offer and to complete such offer shall be treated
as a failure by the Company to comply with its obligations to offer to purchase
the Securities unless the Company promptly makes an offer to repurchase the
Securities at 101% of the principal amount thereof plus accrued and unpaid
interest, if any, thereon, to the date of repurchase, which shall be no later
than 30 days after the third party’s scheduled Change of Control Payment
Date.
On the
Change of Control Payment Date, the Company will, to the extent
lawful:
|
·
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accept
or cause a third party to accept for payment all Securities or portions of
Securities properly tendered pursuant to the Change of Control
Offer;
|
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·
|
deposit
or cause a third party to deposit with the paying agent an amount equal to
the Change of Control Payment in respect of all Securities or portions of
Securities properly tendered; and
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deliver
or cause to be delivered to the Trustee the Securities properly accepted,
together with an officer’s certificate stating the principal amount of
Securities or portions of Securities being
purchased.
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“
Below Investment Grade
Rating Event
” means the Securities are rated below all Investment Grade
Ratings by at least two of the three Rating Agencies on any date from the
earlier of (
1
)
the occurrence of a Change of Control and (
2
) public notice of
the Company’s intention to effect a Change of Control, in each case until the
end of the 60-day period following public notice of the occurrence of the Change
of Control;
provided
,
however
, that if
(
i
) during such
60-day period one or more Rating Agencies has publicly announced that it is
considering the possible downgrade of the Securities, and (
ii
) a downgrade by
each of the Rating Agencies that has made such an announcement would result in a
Below Investment Grade Rating Event, then such 60-day period shall be extended
for such time as the rating of the Securities by any such Rating Agency remains
under publicly announced consideration for possible downgrade to a rating below
an Investment Grade Rating and a downgrade by such Rating Agency to a rating
below an Investment Grade Rating could cause a Below Investment Grade Rating
Event. Notwithstanding the foregoing, a rating event otherwise arising by virtue
of a particular reduction in rating will not be deemed to have occurred in
respect of a particular Change of Control (and thus will not be deemed a rating
event for purposes of the definition of Change of Control Triggering Event) if
the Rating Agencies making the reduction in rating to which this definition
would otherwise apply do not announce or publicly confirm or inform the Trustee
in writing at the Company’s or the Trustee’s request that the reduction was the
result, in whole or in part, of any event or circumstance comprised of or
arising as a result of, or in respect of, the applicable Change of Control
(whether or not the applicable Change of Control has occurred at the time of the
rating event).
“
Change of Control
”
means the occurrence of any of the following: (
1
) direct or indirect
sale, transfer, conveyance or other disposition (other than by way of merger or
consolidation), in one or a series of related transactions, of all or
substantially all of the properties or assets of the Company and its
subsidiaries taken as a whole to any “person” (as that term is used in Section
13(d)(3) of the Exchange Act) other than to the Company or one of its
subsidiaries; (
2
) the consummation
of any transaction (including, without limitation, any merger or consolidation)
the result of which is that any “person” (as that term is used in Section
13(d)(3) of the Exchange Act) other than the Company or one of its subsidiaries
becomes the beneficial owner, directly or indirectly, of more than 50% of the
then outstanding number of shares of the Company’s voting stock; or (
3
) the first day on
which a majority of the members of the Company’s Board of Directors are not
Continuing Directors;
provided
,
however
, that a
transaction will not be deemed to involve a Change of Control if (
A
) the Company
becomes a wholly owned subsidiary of a holding company and (
B
)(
x
) the holders of the
voting stock of such holding company immediately following that transaction are
substantially the same as the holders of the Company’s voting stock immediately
prior to that transaction or (
y
) immediately
following
that transaction no Person is the beneficial owner, directly or indirectly, of
more than 50% of the voting stock of such holding company. For purposes of this
definition, “
voting
stock
” means capital stock of any class or kind the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the election
of directors (or persons performing similar functions) of the Company, even if
the right to vote has been suspended by the happening of such a
contingency.
“
Change of Control Triggering
Event
” means the occurrence of both a Change of Control and a Below
Investment Grade Rating Event.
“
Continuing Director
”
means, as of any date of determination, any member of the Board of Directors of
the Company who (1) was a member of the Board of Directors of the Company on the
date of the issuance of the Securities; or (2) was nominated for election or
elected to the Board of Directors of the Company with the approval of a majority
of the Continuing Directors who were members of such Board of Directors of the
Company at the time of such nomination or election (either by specific vote or
by approval of the Company’s proxy statement in which such member was named as a
nominee for election as a director).
“
Fitch
” means Fitch
Ratings Inc. and its successors.
“
Investment Grade
Rating
” means a rating by Moody’s equal to or higher than Baa3 (or the
equivalent under a successor rating category of Moody’s), a rating by S&P
equal to or higher than BBB- (or the equivalent under any successor rating
category of S&P), a rating by Fitch equal to or higher than BBB- (or the
equivalent under any successor rating category of Fitch), and the equivalent
investment grade credit rating from any replacement rating agency or rating
agencies selected by the Company under the circumstances permitting the Company
to select a replacement agency and in the manner for selecting a replacement
agency, in each case as set forth in the definition of “Rating
Agencies”.
“
Moody’s
” means
Moody’s Investors Service, Inc. and its successors.
“
Rating Agencies
”
means (
1
)
Moody’s, S&P and Fitch; and (
2
) if any or all of
Moody’s, S&P or Fitch ceases to rate the Securities or fails to make a
rating of the Securities publicly available for reasons outside of the Company’s
control, a “nationally recognized statistical rating organization” within the
meaning of Section 3(a)(62) of the Exchange Act, that the Company selects
(pursuant to a resolution of the Company’s Board of Directors) as a replacement
agency for any of Moody’s, S&P or Fitch, or all of them, as the case may
be.
“
S&P
” means
Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies,
Inc., and its successors.
If an
Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the
Indenture.
The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Holders of the Securities of each series to be affected under
the Indenture at any time by the Company and the Trustee with the consent of the
Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any
such consent or waiver by the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
No
reference herein to the Indenture and no provision of this Security or of the
Indenture shall alter or impair the obligation of the Company, or the right of
the Holder of this Security, which is absolute and unconditional, to pay, or, in
the case of the Holder of this Security, to receive payment of, the principal of
(and premium, if any) and interest on this Security at the times, place and
rate, and in the coin or currency, herein prescribed.
As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Security is registrable in the Security Register, upon
surrender of this Security for registration of transfer at the Corporate Trust
Office of the Trustee or the Paying Agent’s office where the principal of (and
premium, if any) and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or such
Holder’s attorney duly authorized in writing; and thereupon one or more new
Securities of this series and of like tenor, of authorized denominations and for
the same aggregate principal amount, will be issued to the designated transferee
or transferees.
The
Securities of this series are issuable only in registered form without coupons
in denominations of $2,000 and multiples of $1,000 in excess
thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for
other Securities of this series, of a like tenor and aggregate principal amount
but of a different authorized denomination, as requested by the Holder
surrendering the same.
No
service charge shall be made for any such registration of transfer or exchange,
but the Company or the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Sections 304, 906 or 1107 of the Indenture not involving any
transfer.
Prior to
due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name this Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.
The
Indenture provides that the Company, at the Company’s option, (
a
) will be discharged
from any and all obligations in respect of the Securities (except for certain
obligations to register the transfer or exchange of Securities, replace stolen,
lost or mutilated Securities, maintain paying agencies and hold moneys for
payment in trust) or (
b
) need not comply
with certain restrictive covenants of the Indenture, in each case if the Company
deposits, in trust with the Trustee, money, or U.S. Government Obligations (or
Foreign Government Obligations if the Securities are denominated in a foreign
currency or currencies) which through the payment of interest thereon and
principal thereof in accordance with their terms will provide money, in an
amount sufficient to pay all the principal (including any mandatory sinking fund
payments) of (and premium, if any) or interest on the Securities on the dates
such payments are due in accordance with the terms of such Securities, and
certain other conditions are satisfied.
No
recourse shall be had for the payment of the principal of (and premium, if any)
or interest on this Security, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, stockholder, officer, employee,
agent or director, as such, past, present or future, of the Company or of any
successor corporation, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
All terms
used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
ASSIGNMENT
FORM
I or we
assign and transfer this Security to:
____________________________________________________________
Insert
social security or other identifying number of assignee
________________________________________________________________________________
Print or
type name, address and zip code of assignee
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
and
irrevocably appoint _______________________, as agent, to transfer this Security
on the books of the Company.
The agent
may substitute another to act for him.
Date:
_____________
Signed
________________________________________
(Sign exactly as name appears on
the
other side of this
Security)
Signature
Guarantee*:
* The
Holder’s signature must be guaranteed by a member firm of a registered national
securities exchange or of the National Association of Securities Dealers, Inc.,
a commercial bank or trust company having an office or correspondent in the
United States or an “eligible guarantor institution” as defined by Rule 17Ad-15
under the Exchange Act.