EXIBIT 10.8
10 STATE HOUSE SQUARE SERVICES AGREEMENT
between
AETNA U.S. HEALTHCARE INC.
(to be renamed "Aetna Inc.")
and
AETNA INC.
(to be renamed "Lion Connecticut Holdings Inc.")
dated as of
December 13, 2000
10 STATE HOUSE SQUARE SERVICES AGREEMENT
10 STATE HOUSE SQUARE REAL ESTATE SERVICES AGREEMENT ("AGREEMENT"),
dated as of December 13, 2000, between AETNA U.S. HEALTHCARE INC., a
Pennsylvania corporation (to be renamed Aetna Inc.) ("SPINCO") and AETNA INC., a
Connecticut corporation (to be renamed Lion Connecticut Holdings Inc.)
("AETNA").
W I T N E S S E T H:
WHEREAS, subject to the limitations and conditions set forth in this
Agreement, Spinco has agreed to provide certain services to Aetna at 10 State
House Square, Hartford, Connecticut (the "PREMISES");
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
Services
SECTION 1.01. SERVICES. During the term of this Agreement, which term
shall be for the time periods as indicated on the schedule attached hereto (or
as otherwise provided herein), but which term shall in no event extend beyond
the earlier to occur of: (a) Aetna's vacating the Premises, or (b) the
termination of the Real Estate Services Agreement dated the date hereof by and
between the parties hereto, Spinco shall provide to Aetna telephone and voice
services as set forth on SCHEDULE 1 annexed hereto and made a part hereof, as
such may be amended by the parties, pursuant to the terms and conditions set
forth in said SCHEDULE 1 (individually, a "SERVICE" and collectively, the
"SERVICES"). All such Services shall utilize the equipment presently in place
and shall not include any upgrades or replacements of existing equipment, except
with respect to any upgrades or replacements of existing equipment initiated by
Spinco. All desktop equipment provided to Aetna by Spinco relating to the
Services (the "TELEPHONE PROPERTY"), including, but not limited to, the
workstation telephones, shall remain the property of Spinco. Spinco shall
discontinue the provision of telephone services on December 31, 2002. Aetna
shall be responsible for all activities and costs associated with preparing for
and implementing their own services on or before December 31, 2002. From and
after the termination of the Services, Aetna shall solely be responsible for
providing its own Services, including, but not limited to, a new PBX. Aetna
shall be entitled to terminate Services provided by Spinco at any time upon
written notice to Spinco. In the event of termination of Services initiated by
either Aetna or Spinco, and to the extent permitted by the Local Exchange
Carrier, Spinco will cooperate with Aetna and work in good faith to timely
transfer all or any portion of the telephone numbers then in use by Aetna to
Aetna. Upon the termination of any part of the Services, Aetna promptly shall
return the Telephone Property serving the Service being
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terminated in good order, repair and condition, reasonable wear and tear
excepted, to a location or locations designated by Spinco.
SECTION 1.02 PRICING/SALES TAX.
(a) PRICING OF SERVICES. For each period in which it receives a
Service, Aetna shall pay Spinco the amount specified in or calculated in
accordance with the method applicable to such Service as set forth on SCHEDULE 2
(the "PRICING SCHEDULE"). For any Service priced on a monthly basis, the monthly
charge will be equitably prorated if the date on which a Service is terminated
is not the first calendar day or the last calendar day, respectively, of a
calendar month. Unless otherwise indicated on a Schedule, all pricing listed on
the Pricing Schedule is applicable to the period from the commencement of such
Service through the end of calendar year 2001 only. It is the intent of the
parties hereto that no party shall realize a gain or a loss as a result of the
provision of Services under this Agreement through the end of 2001. Thereafter,
the prices may increase as indicated in Section 1.02 (b), below.
(b) PRICE INCREASES. For Services continuing for a period after
December 31, 2001, on January 1, 2002 and on each January 1 thereafter during
the term hereof, the prices listed on the Pricing Schedule shall be adjusted
based upon the actual cost for Services plus such additional charges (excluding,
however, those services for which such additional charges are prohibited by law)
as are reasonable and customary in the respective service industry for the
administration of such services (excluding, however, any profit to Spinco).
(c) SALES TAX.
(i) For state and local sales tax purposes, Spinco and Aetna
will cooperate in good faith to segregate amounts payable under this
Agreement into the following categories: (a) taxable Services; (b)
non-taxable Services; and (c) payments made by Spinco merely as a
payment agent for Aetna in procuring goods, supplies or Services that
otherwise are non-taxable or that have previously been subject to sales
tax.
(ii) Spinco shall collect from Aetna all state and local sales
tax and shall timely remit such taxes to the appropriate state and
local tax authorities. Aetna shall pay such taxes to Spinco monthly, or
as otherwise required by Spinco. Spinco shall be responsible for any
interest or penalties imposed as a result of its failure to timely
collect and remit taxes. Aetna shall be responsible for any additional
taxes, interest or penalties imposed as a result of a sales tax audit
by any taxing authority.
SECTION 1.03. OTHER SERVICE SPECIFICATIONS.
(a) SERVICE LEVELS; CURES; REMEDIES UPON DEFAULT
(i) The service levels for any Services shall be as set
forth in the applicable Schedules.
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(ii) Aetna will designate a "SERVICE LEVEL MANAGER" who will
have overall responsibility for summarizing and reporting Spinco's
results against service levels.
(iii) If Aetna becomes aware of a material deficiency in
Spinco's delivery of Services (a "SERVICE LEVEL BREACH"), Aetna may
deliver a written notice thereof to Spinco. Upon receipt of such
notice, Spinco shall use reasonable efforts to remedy the Service Level
Breach as soon as possible.
(iv) Except to the extent that a schedule to this Agreement
specifies a different period, if Spinco fails to cure a Service Level
Breach within thirty (30) calendar days after receipt of written notice
thereof, Spinco shall forfeit (and, if previously collected from Aetna,
refund) the fees or charges otherwise due with respect to such Service
from the date that the Service Level Breach commenced, and Spinco shall
not be entitled to collect fees with respect to such Service until it
has cured such Service Level Breach. The remedy for a Service Level
Breach provided under this Section 1.03(a)(iv) shall be the sole remedy
available to Aetna for a Service Level Breach.
(b) PERSONNEL. Spinco, in its sole discretion, will either: (i) employ
and retain staff, (ii) contract with third party subcontractors and other
vendors, or (iii) utilize any combination thereof as needed to perform the
Services Spinco is obligated to perform hereunder. Any such personnel shall have
a level of experience, skill, diligence and expertise consistent with Spinco's
normal business practices. The delegation of performance to a subcontractor
shall not relieve Spinco of any of its duties or obligations under this
Agreement.
SECTION 1.04. BILLING AND CASH SETTLEMENT PROCEDURES; DEFAULT.
(a) SERVICES. Billing and cash settlement for Services shall occur
monthly, except as otherwise indicated on the Schedules. Each Service provider
shall send bills in a format and containing a level of detail sufficient detail
to identify the Services that are the subject of any such bills. Spinco and
Aetna shall settle amounts so due within fourteen (14) calendar days following
the receipt of a monthly bill in good order and supported by proper
documentation. Any billing or payment errors shall be corrected promptly after
discovery thereof.
(b) VENDOR REIMBURSEMENTS. Spinco shall advise Aetna weekly of the
total amount that Spinco has paid during the prior five (5) business days to
vendors on Aetna's behalf. Aetna shall reimburse Spinco for such amount by wire
transfer of immediately available funds. Each such reimbursement shall be due
the Friday of the week during which Spinco advises Aetna of the reimbursement
amount ((or on the following business day if such advice is received after 5:00
p.m., Eastern time on the immediately preceding business day or if such Friday
is not a business day). In addition to the remedy specified in Section 1.04(d),
below, Aetna shall reimburse Spinco for any costs incurred arising from Aetna's
failure to timely reimburse Spinco.
(c) REIMBURSEMENT NOTICE; FORM OF SETTLEMENT. Reimbursement notices
shall be
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communicated to Aetna via facsimile to 770-933-3664 (Immediate Attention: ING
Treasury). Settlement for amounts due under this Section 2.04 shall be made by
wire transfer of immediately available funds. If any amount remains unsettled
after the date when due, such amount shall bear interest at the 90-Day Treasury
Rate, as defined herein, from the date due until the full settlement thereof.
The "90 Day Treasury Rate" means the annual yield rate, as of any given date, of
actively traded U.S. Treasury securities having a remaining duration to maturity
of three months, as such rate is published under "Treasury Constant Maturities"
in Federal Reserve Statistical Release H.15(519).
(d) DEFAULT IN PAYMENT. If payment for Services is not made within
thirty (30) days of the date when due, then Spinco, upon delivery of written
notice to Aetna, may suspend any such Services until Aetna has cured such
payment default.
SECTION 1.05. OTHER TERMS AND CONDITIONS.
(a) Confidentiality.
(i) DEFINITION OF CONFIDENTIAL INFORMATION. For purposes of
this Agreement, "CONFIDENTIAL INFORMATION" shall have a meaning
ascribed to such term in the Distribution Agreement between Aetna Inc.
and Aetna U.S. Healthcare Inc. dated December 13, 2000 (the
"Distribution Agreement") and shall include, without limitation, the
following: (a) information relating to planned or existing computer
systems and systems architecture and security, including, without
limitation, computer hardware, computer software, source code, object
code, documentation, methods of processing and operational methods; (b)
policyholder data, customer lists, sales, customer information,
profits, organizational restructuring, new business initiatives and
financial information; (c) information that describes insurance and
financial products, including, without limitation, actuarial
calculations, product designs, and how such products are administered
and managed; (d) information that describes product strategies, tax
interpretations, and the tax positions and treatment of any item; and
(e) confidential information of third parties with which a party
conducts business; provided, that Tax information shall be governed by
the "TAX SHARING AGREEMENT," as defined in the Distribution Agreement.
(ii) Confidential Information shall be subject to Section 6.06
of the Distribution Agreement and Tax information shall be subject to
Section 7.04 of the Tax Sharing Agreement. In addition, each party
shall use commercially reasonable efforts to restrict access to the
other party's Confidential Information to those employees of such party
requiring access for the purpose of providing Services to the other
party hereunder. Subject to its obligations under Section 6.05 of the
Distribution Agreement (Retention of Records) (or Section 7.02 of the
Tax Sharing Agreement (Corporate Records), as to Tax information), each
party shall destroy all Confidential Information obtained from the
other party in connection with this Agreement in accordance with the
receiving party's normal document retention policies but, in any event,
immediately following the
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expiration of this Agreement. Notwithstanding the foregoing, Spinco and
its respective affiliates may share Confidential Information with any
subcontractor utilized to provide Services, PROVIDED that the party
sharing such Confidential Information shall remain responsible for
compliance with the provisions of this Section.
(iii) FULFILLMENT AND CONFIDENTIALITY OF VENDOR CONTRACTS AND
SOFTWARE. Aetna shall (a) comply with the terms of, and keep
confidential and, except as required by law, not disclose, reveal or
duplicate (x) any information related to any of the vendor contracts to
which Aetna is provided access in connection with this Agreement and/or
(y) Spinco's or any third party's computer systems, software,
information and/or data to which they are provided access and/or use in
connection with this Agreement and (b) take such other actions and
execute such additional documentation required by any vendor in order
to access and/or use such vendor's software in connection with such
vendor's contracts with Spinco.
(b) LIMITATION OF REMEDIES. Except if and to the extent arising out of
Spinco's gross negligence or willful misconduct, in no event shall Spinco be
obligated to pay to Aetna in respect of breaches or alleged breaches of this
Agreement any amount in excess of the amount received by Spinco for the Services
it renders. This cumulative limitation shall apply to all monetary remedies
provided for in this Agreement or any Schedule thereto, regardless of whether
they are characterized as damages, indemnification (including, without
limitation, indemnification for defense costs), refund of fees or otherwise.
ARTICLE 2
Miscellaneous
SECTION 2.01. AETNA INDEMNIFICATION. From and after the date hereof,
Aetna shall indemnify, defend and hold harmless Spinco and its affiliates,
subsidiaries and parent and their respective officers, directors and employees
(each, a "SPINCO INDEMNITEE") from and against any and all loss, cost, expense,
damage, claim (collectively, "CLAIMS") incurred or suffered by any Spinco
Indemnitee arising out of (1) the breach of this Agreement by Aetna; or (ii)
gross negligence or willful misconduct of Aetna in connection with the matters
set forth in this Agreement
SECTION 2.02. NON-EXCLUSIVITY OF REMEDIES. The remedies provided for in
this Article 2 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to Spinco at law or in equity.
SECTION 2.03. NOTICES. All notices and other communications to any
party hereunder shall be in writing using certified mail, return receipt
requested or a nationally recognized overnight courier service and shall be
deemed given when received addressed as follows:
If to Spinco to:
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Aetna Inc.
151 Farmington Avenue
Hartford, CT 06156-9666
Attention: Real Estate Services (RS51)
With a copy to:
Reid and Riege, P.C.
One State Street
Hartford, CT 06103
Attention: Joseph K. Fortier, Esq.
If to Aetna, to:
Aetna Life Insurance and Annuity Company
151 Farmington Avenue
Hartford, CT 06156
Attention: Michael W. Cunningham.
Executive Vice President & Chief Financial Officer
And
ING North America Insurance Corp.
5780 Powers Ferry Road, NW
Atlanta, Georgia 30327-4390
Attention: Wayne Huneke
General Manager & Chief Financial Officer
Fax: 770-980-3303
B. Scott Burton
Senior Vice President & Deputy General Counsel
Fax: 770-850-7660
And
Real Estate Strategies, TN42
151 Farmington Avenue
Hartford, CT 06156
Attn: Karen Parks
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And
Levy & Droney, P.C.
74 Batterson Park Road
Farmington, CT 06032
Attn: Jomarie Andrews, Esq.
With a copy to:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: Joseph B. Frumkin, Esq.
and
William D. Torchiana, Esq.
Any party may, by written notice so delivered to the other parties,
change the address to which delivery of any notice shall thereafter be made.
SECTION 2.04. AMENDMENTS; NO WAIVERS.
(a) Any provision of this Agreement may be amended or waived if, and
only if, such amendment or waiver is in writing and signed, in the case of an
amendment, by Spinco and Aetna, or in the case of a waiver, by the party against
whom the waiver is to be effective.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 2.05. EXPENSES.
(a) Except as otherwise provided herein, all costs and expenses
incurred in connection with the preparation, execution and delivery of this
Agreement shall be paid by the party incurring such expense.
(b) Each reference in this Agreement to expenses, fees and
out-of-pocket costs shall mean such expenses, fees and out-of-pocket costs as
the party incurring such expenses, fees or out-of-pocket costs would reasonably
incur in connection with its own business under circumstances where such
expenses, fees and out-of-pocket costs are not subject to
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reimbursement.
SECTION 2.06. SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; PROVIDED that each party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement to
an Affiliate of such party without the prior written consent of the other party
hereto. If any party or any of its successors or assigns (a) shall consolidate
with or merge into any other Person and shall not be the continuing or surviving
corporation or entity of such consolidation or merger or (b) shall transfer all
or substantially all of its properties and assets to any Person, then, and in
each such case, proper provisions shall be made so that the successors and
assigns of such party shall assume all of the obligations of such party under
this Agreement. Any Assignment not conforming to the provisions of this
Agreement shall be invalid and void.
SECTION 2.07. GOVERNING LAW. This Agreement shall be construed in
accordance with and governed by the law of the State of Delaware, without regard
to the conflict of laws rules thereof.
SECTION 2.08. COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
a counterpart hereof signed by the other party hereto.
SECTION 2.09. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding of the parties with respect to the subject matter hereof and
thereof and supersede all prior agreements, understandings and negotiations,
both written and oral, between the parties with respect to the subject matter
hereof and thereof. No representation, inducement, promise, understanding,
condition or warranty not set forth herein or in the Merger, the Confidentiality
Agreement, the Distribution Agreement or the other Distribution Documents (as
defined in the Distribution Agreement) has been made or relied upon by any party
hereto.
SECTION 2.10. JURISDICTION. Except as otherwise expressly provided in
this Agreement, any Action seeking to enforce any provision of, or based on any
matter arising out of or in connection with, this Agreement or the transactions
contemplated hereby may be brought in the United States District Court for the
District of Delaware, and each of the parties hereby consents to the
jurisdiction of such court (and of the appropriate appellate courts therefrom)
in any such Action and irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the laying of the venue
of any such Action in any such court or that any such Action which is brought in
any such court has been brought in an inconvenient forum. Process in any such
Action may be served on any party anywhere in the world, whether within or
without the jurisdiction of any such court. Without limiting the foregoing, each
party agrees that service of process on such party as provided in this Section
2.10 shall be deemed effective service of process on such party.
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SECTION 2.11. SEVERABILITY. If any one or more of the provisions
contained in this Agreement should be declared invalid, illegal or unenforceable
in any respect, the validity, legality and enforceability of the remaining
provisions contained in this Agreement shall not in any way be affected or
impaired thereby so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
party. Upon such a declaration, the parties shall modify this Agreement so as to
effect the original intent of the parties as closely as possible in an
acceptable manner so that the transactions contemplated hereby are consummated
as originally contemplated to the fullest extent possible.
SECTION 2.12. SURVIVAL. All covenants and agreements of the parties
contained in this Agreement shall survive the Distribution Date indefinitely,
unless a specific survival or other applicable period is expressly set forth
therein.
SECTION 2.13. CAPTIONS. The captions herein are included for
convenience of reference only and shall be ignored in the construction or
interpretation hereof.
SECTION 2.14. DISPUTE RESOLUTION. Any disputes arising under this
Agreement shall be resolved by the Operating Committee and the procedures
related thereto, all as described in Section 2.07 of the Transition Services
Agreement dated as of the date hereof by and between the parties hereto.
SECTION 2.15. VDC RELOCATION. Spinco shall coordinate the relocation of
the existing VDC room servicing the Premises (the "VDC ROOM RELOCATION") from
its current location (4th floor) to a new, mutually agreed upon location in the
Premises. Aetna will provide Spinco with $1,000,000 toward the costs associated
with VDC Room Relocation. All costs in excess of $1,000,000, for the VDC Room
Relocation are to be the sole responsibility of Spinco. The project scope is
defined as the work required to complete the relocation of the existing VDC
room, inclusive of all equipment and infrastructure, and connectivity to the
Premises. Spinco will provide construction management, vendor management and
ensure that a material business disruption does not occur at the Premises,
except for such disruption that is ordinary and customary in relation to any
such construction. The newly relocated and constructed VDC room will be
substantially similar to the existing VDC room. Aetna's portion of costs (the
first $1,000,000 of costs incurred) will be paid against a Spinco provided
schedule of values, by which, as work is completed and deemed acceptable by both
Spinco and Aetna. From the date of this agreement until the date that the
relocated VDC room is complete and operational and available for use by Aetna,
Spinco, at its sole cost, shall continue to provide and ensure that VDC services
and connectivity are maintained as currently provided, Spinco agrees to deliver
the relocated VDC room to Aetna free and clear of all liens. Upon completion of
all work in accordance with the provisions of this Section 2.15, Spinco will
deliver to Aetna full and final lien waivers from all contractors performing
work in the Premises with regard to the VDC Room Relocation or provide Aetna
with an indemnity against any such liens. In the event that any mechanic's lien
is filed relating to the VDC Room Relocation, then Spinco shall promptly remove
such lien by payment, bonding or otherwise.
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IN WITNESS WHEREOF the parties hereto have caused this Real Estate
Services Agreement to be duly executed by their respective authorized officers
as of the date first above written.
AETNA U.S. HEALTHCARE INC.
By: /s/ Alfred P. Quirk, Jr.
--------------------------
Name: Alfred P. Quirk, Jr.
Title: Authorized Signatory
[SIGNATURES CONTINUE ON NEXT PAGE]
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AETNA INC.
By: /s/ Alfred P. Quirk, Jr.
--------------------------
Name: Alfred P. Quick, Jr.
Title: Vice President, Finance
& Treasurer
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