UnitedHealth Group (UNH)

18.4 Effect Of An Appeal

An appeal of the Final Order and Judgment involving any matter other than the amount or allocation of Attorneys’ Fees shall postpone the occurrence of the Effective Date. If any Final Order and Judgment approving the Settlement is not affirmed in its entirety on any such appeal or discretionary review, Defendants may, in their sole and absolute discretion, terminate this Settlement Agreement by delivering a notice of termination to Settlement Class Counsel within thirty (30) calendar days of such appellate or discretionary review determination.

This Settlement Agreement shall terminate upon the termination of this Settlement Agreement by any Party pursuant to the terms of this Settlement Agreement (the “Termination Date”). Effective on the Termination Date, and except where expressly provided otherwise, the provisions of this Settlement Agreement shall thereafter become void and of no further force and effect and there shall be no liability under this Settlement Agreement on the part of any Party, except as to a claim for breach of this Settlement Agreement brought before the Termination Date.

Within thirty (30) days after the Effective Date, all documents or other items, and all copies thereof, of a Party that are in the possession, custody, or control of any other Party because they were produced in discovery in the Actions shall be returned to the producing Party, at the sole election of the producing Party. An affidavit from the receiving Party stating that the documents were returned completely shall be delivered within thirty (30) days after the Effective Date to counsel for the producing Party. Counsel for the Parties may retain copies of all documents that have been filed with the Court, depositions, and exhibits thereto, except those filed under seal, which must be returned pursuant to this Section. All logs of privileged or work-product-protected documents shall be returned to the producing Party in accordance with this Section.

In no event shall this Settlement Agreement, in whole or in part, whether effective, terminated, or otherwise, or any of its provisions or any negotiations, statements, or proceedings relating to it, be construed as, offered as, received as, used as, or deemed to be evidence of any kind in the Actions, in any other action or proceeding, except in a proceeding to enforce this Settlement Agreement. Without limiting the foregoing, neither this Settlement Agreement nor any related negotiations, statements, or proceedings shall be construed as, offered as, received as, used as, or deemed to be evidence, or an admission or concession of liability of wrongdoing or breach of any duty on the part of any Party, or as a waiver by any Party of any applicable defense, including without limitation any applicable statute of limitations. None of the Parties waives or intends to waive any applicable attorney-client privilege or work product protection for any negotiations, statements, or proceedings relating to this Settlement Agreement. This provision shall survive termination of this Settlement Agreement.

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None of the Parties shall be considered to be the drafter of this Settlement Agreement or any provision for the purpose of any statute, case law, or rule of interpretation or construction that would or might cause any provision to be construed against the drafter hereof. This Settlement Agreement was drafted with substantial input by all Parties and their respective counsel, and no reliance was placed on any representation other than those contained in this Settlement Agreement.

Except as otherwise provided in this Settlement Agreement, it is expressly agreed and stipulated that the United States District Court for the Southern District of New York shall have exclusive jurisdiction and authority to administer, interpret, and enforce the terms of this Settlement Agreement, and to consider, rule upon, and issue a final order with respect to suits, whether judicial, administrative, or otherwise, which may be instituted by any Person, individually or derivatively, with respect to this Settlement Agreement. This reservation of jurisdiction does not limit any other reservation of jurisdiction in this Settlement Agreement, nor do any other such reservations limit the reservation in this subsection. Except as otherwise provided in this Settlement Agreement, each Party and each Settlement Class Member who has not Opted-Out of this Settlement Agreement hereby irrevocably submits to the exclusive jurisdiction and venue of the United States District Court for the Southern District of New York for any suit, action, proceeding, case, controversy, or dispute relating to this Settlement Agreement and/or the negotiation, performance, or breach of this Settlement Agreement. Furthermore, the Parties jointly shall urge the Court to include the provisions of this Section in its Final Order and Judgment approving this Settlement Agreement.

The Parties agree to move the Court to enter an order to the effect that should any Person desire any discovery incident to (or which the Person contends is necessary to) the approval of this Settlement Agreement, the Person first must obtain an order from the Court.

This Settlement Agreement may be executed in counterparts, each of which shall constitute an original. Facsimile signatures shall be considered valid signatures as of the date submitted, although the original signature pages shall thereafter be appended to this Settlement Agreement.

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The division of this Settlement Agreement into sections and subsections and the use of captions and headings in connection herewith are solely for convenience and shall have no legal effect in construing the provisions of this Settlement Agreement.

This Settlement Agreement and all agreements, exhibits, and documents relating to this Settlement Agreement shall be construed under the laws of the State of New York, excluding its choice of law rules.

The provisions of this Settlement Agreement may be waived only by an instrument in writing executed by the waiving party. The waiver by any Party of any breach of this Settlement Agreement shall not be deemed to be or construed as a waiver of any other breach, whether prior, subsequent, or contemporaneous, of this Settlement Agreement.

Except as otherwise specified herein, nothing in this Settlement Agreement is intended, nor shall it in any way be construed, to create or convey any rights in or to any Person other than the Parties and the Settlement Class Members.

The provisions of this Settlement Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns; provided that a Party may not assign, delegate, or otherwise transfer any of its, his, or her rights or obligations under this Settlement Agreement to a third party that is not a successor or affiliate, without: (a) in the case of a Defendant, the consent of Settlement Class Counsel; and (b) in the case of a Plaintiff, the consent of counsel for Defendants.

This Settlement Agreement, including its Exhibits, contains an entire, complete, and integrated statement of each and every term and provision agreed to by and among the Parties, and the Settlement Agreement is not subject to any condition not provided for herein. This Settlement Agreement supersedes any prior agreements or understandings, whether written or oral, between and among Settling Plaintiffs, Settlement Class Members, Settlement Class Counsel, Defendants, and counsel for Defendants regarding the subject matter of this Settlement Agreement. This Settlement Agreement may be amended or modified only as provided in a written instrument signed by or on behalf of all signatories to this Settlement Agreement (or their successors in interest) and approved by the Court.

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By the signature affixed hereto, each Party acknowledges that it, he, or she has read this Settlement Agreement, fully understands the agreements, representations, covenants, obligations, conditions, warranties, releases, and terms contained herein, and has had the advise of counsel pertaining thereto, prior to the time of execution.

Each Person signing this Settlement Agreement on behalf of a Party represents and warrants that he or she has all requisite power and authority to enter into this Settlement Agreement and to implement the transactions contemplated herein, and is duly authorized to execute this Settlement Agreement on behalf of that Party.

EXECUTED and DELIVERED on January 14, 2009.