Exhibit 4.4
REGISTRATION RIGHTS AGREEMENT
AGREEMENT dated as of March 31, 1998, among CVS Corporation,
a Delaware corporation (the "Issuer"), and the Investors as defined herein.
W I T N E S S E T H:
WHEREAS, this Agreement is being entered into in connection
with the closing under the Merger Agreement referred to below;
NOW, THEREFORE, in consideration of the foregoing and the
mutual promises, representations, warranties, covenants and agreements
contained herein, the parties hereto, intending to be legally bound hereby,
agree as follows:
ARTICLE 1
Definitions
Section 1.1. Definitions. Terms defined in the Agreement and
Plan of Merger dated as of February 8, 1998, as amended as of March 2, 1998,
among the Issuer, Arbor Drugs, Inc., a Michigan corporation, and Red
Acquisition, Inc., a Michigan corporation, are used herein as defined therein.
In addition, the following terms, as used herein, shall have the following
respective meanings:
"Commission" means the Securities and Exchange Commission or
any successor governmental body or agency.
"Common Stock" means the common stock, par value $.01 per
share, of the Issuer.
"Demand Registration" has the meaning ascribed thereto in
Section 2.02(a)(i).
"Demand Request" has the meaning ascribed thereto in Section
2.02(a).
"Disadvantageous Condition" has the meaning ascribed thereto in
Section 2.04.
"Holder" means a Person who owns Registrable Securities and is
either (i) an Investor or (ii) a Person that (A) has agreed to be bound by the
terms of this Agreement as if such Person were an Investor and (B)(x) is a
Person (1) to whom an Investor has transferred Registrable Securities or (2)
with whom an Investor has entered into an agreement to transfer Registrable
Securities, in each case as part of a transaction pursuant to which derivative
securities relating to such Registrable Securities will be offered for sale by
such Person in a registered public offering or (y) is (1) upon the death of
any individual Investor, the executor of the estate of such Investor or such
Investor's heirs, devisees, legatees or assigns or (2) upon the disability of
any individual Investor, any guardian or conservator of such Investor.
"Investors" means the Persons listed on Schedule I hereto.
"1933 Act" means the Securities Act of 1933, as amended.
"Registrable Securities" means Common Stock acquired by the
Investors pursuant to the Option Agreement or the Merger or pursuant to any
option granted by the Issuer to any Stockholder (and any shares of stock or
other securities into which or for which such Common Stock may hereafter be
changed, converted or exchanged and any other shares or securities issued to
Holders of such Common Stock (or such shares of stock or other securities into
which or for which such shares are so changed, converted or exchanged) upon any
reclassification, share combination, share subdivision, share dividend, share
exchange, merger, consolidation or similar transaction or event). As to any
particular Registrable Securities, such Registrable Securities shall cease to
be Registrable Securities as soon as (i) such Registrable Securities have been
sold or otherwise disposed of pursuant to a registration statement that was
filed with the Commission and declared effective under the 1933 Act, (ii) as
soon as all such Registrable Securities held by a Holder can be sold in a
single transaction pursuant to Rule 144 or Rule 145, or (iii) they shall have
been otherwise sold, transferred or disposed of by a Holder to any Person that
is not a Holder.
"Registration Expenses" means any and all expenses incident to
performance of or compliance with any registration of securities pursuant to
Article II, including, without limitation, (i) the fees, disbursements and
expenses of the Issuer's counsel and accountants (including in connection with
the delivery of opinions and/or comfort letters) in connection with this
Agreement and the performance of the Issuer's obligations hereunder; (ii) all
expenses, including filing fees, in connection with the preparation, printing
and filing of one or more registration statements hereunder; (iii) the cost of
printing or producing any agreements among underwriters, underwriting
agreements, and blue sky or legal investment memoranda; (iv) the filing fees
incident to securing any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the securities to be
disposed of; (v) transfer agents' and registrars' fees and expenses in
connection with such offering; (vi) all security engraving and security
printing expenses; (vii) all fees and expenses payable in connection with the
listing of the Registrable Securities on any securities exchange or automated
interdealer quotation system on which the Common Stock is then listed; and
(viii) all reasonable fees and expenses of one legal counsel for the Holders
in connection with each Demand Registration, which legal counsel shall be
selected by Holders owning a majority of the Registrable Securities then being
registered; provided that Registration Expenses shall exclude (w) any expenses
relating to any action taken by the Issuer in connection with a request under
Section 2.03(a) over and above the expenses that would have been incurred by
the Issuer in connection with an offering of Registrable Securities, (x) all
underwriting discounts and commissions, selling or placement agent or broker
fees and commissions, and transfer taxes, if any, in connection with the sale
of any securities, (y) the fees and expenses of counsel for any Holder (other
than pursuant to clause (viii)) and (z) all costs and expenses of the Issuer
incurred as contemplated in Section 2.06(g).
"Rule 144" means Rule 144 (or any successor rule to similar
effect) promulgated under the 1933 Act.
"Rule 145" means Rule 145 (or any successor rule to similar
effect) promulgated under the 1933 Act.
"Rule 415 Offering" means an offering on a delayed or
continuous basis pursuant to Rule 415 (or any successor rule to similar
effect) promulgated under the 1933 Act.
"Selling Holder" means any Holder who sells Registrable
Securities pursuant to a public offering registered hereunder.
References in this Agreement to an "underwritten public
offering" of Registrable Securities or "underwritten offering" of Registrable
Securities and words of similar meaning shall include, without limitation, any
offering through underwriters of (i) Registrable Securities or (ii) securities
of a trust or other special purpose vehicle formed for the purpose of
disposing of Registrable Securities, whether the securities described in (i)
and (ii) are offered separately or in conjunction with each other, if in
connection with such offering Registrable Securities are required to be
registered under the 1933 Act; provided that the provisions of this Agreement,
including without limitation Sections 2.05 and 2.08, shall not apply to any
registration of or registration statement relating to such trust or other
special purpose vehicle, except that the indemnity and contribution provisions
of Section 2.08 shall apply to information relating to the Issuer or to the
Registrable Securities in the case of such a registration or registration
statement (but not to the securities of the special purpose vehicle or the
trust or any other matter related to such special purpose vehicle or the
trust).
Section 1.2. Internal References. Unless the context
indicates otherwise, references to Articles, Sections and paragraphs shall
refer to the corresponding Articles, Sections and paragraphs in this Agreement,
and references to the parties shall mean the parties to this Agreement.
ARTICLE 2
Registration Rights
Section 2.1. Demand Registration. (a) Upon written notice to
the Issuer from one or more Holders at any time after the Effective Time (but
not later than the date that is two years after the Effective Time) (a "Demand
Request") requesting that the Issuer effect the registration under the 1933
Act of any or all of the Registrable Securities held by such requesting
Holders, which notice shall specify the intended method or methods of
disposition of such Registrable Securities, the Issuer shall prepare and,
within 60 days after such request (or 20 days in the case of the first such
request), file with the Commission a registration statement with respect to
such Registrable Securities and thereafter use its reasonable best efforts to
cause such registration statement to be declared effective under the 1933 Act
for purposes of dispositions in accordance with the intended method or methods
of disposition stated in such request. Notwithstanding any other provision of
this Agreement to the contrary:
(i) the Holders may collectively exercise their rights to request
registration under this Section 2.01(a) on not more than three
occasions (it being understood that a demand with respect to a
two-tranche contemporaneous offering of Registrable Securities
and related derivative securities shall be deemed to be only one
demand) (each such registration being referred to herein as a
"Demand Registration");
(ii) the Issuer shall not be required to effect a Demand
Registration hereunder unless the aggregate market value of
Registrable Securities to be registered pursuant to such Demand
Registration is equal to or more than $100 million;
(iii) the Holders shall not be permitted to make a request for a
Demand Registration more than once in any six-month period; and
(iv) the method of disposition requested by Holders in connection
with any Demand Registration may not be a Rule 415 Offering
without the Issuer's prior written consent, which consent shall
be in the Issuer's sole discretion.
(b) Notwithstanding any other provision of this Agreement to the
contrary, a Demand Registration requested by Holders pursuant to this Section
2.01 shall not be deemed to have been effected, and, therefore, not requested
and the rights of each Holder shall be deemed not to have been exercised for
purposes of paragraph (a) above, if such Demand Registration has not become
effective under the 1933 Act or if such Demand Registration, after it became
effective under the 1933 Act, was not maintained effective under the 1933 Act
(other than as a result of the request of Holders, or any stop order,
injunction or other order or requirement of the Commission or other government
agency or court solely on the account of a material misrepresentation or
omission of a Holder) for at least 30 days (or such shorter period ending when
all the Registrable Securities covered thereby have been disposed of pursuant
thereto) and, as a result thereof, the Registrable Securities requested to be
registered cannot be distributed in accordance with the plan of distribution
set forth in the related registration statement.
(c) The Issuer shall have the right to cause the registration of
additional equity securities for sale for the account of the Issuer in the
registration of Registrable Securities requested by the Holders pursuant to
Section 2.01(a) above; provided that if such Holders are advised in writing
(with a copy to the Issuer) by the lead or managing underwriter referred to
in Section 2.03(b) that, in such underwriter's good faith view, all or a
part of such Registrable Securities and additional equity securities cannot
be sold and the inclusion of such Registrable Securities and additional
equity securities in such registration would be likely to have an adverse
effect on the price, timing or distribution of the offering and sale of the
Registrable Securities and additional equity securities then contemplated,
then Issuer shall be entitled to include in such registration only such
number of additional equity securities, if any, which, when added to the
Registrable Securities requested by the Holders pursuant to Section 2.01(a)
above, would not exceed the number of securities that can, in the good
faith view of such underwriter, be sold in such offering without so
adversely affecting such offering.
(d) Within 10 days after delivery of a Demand Request by a
Holder, the Issuer shall provide a written notice to each Holder, advising
such Holder of its right to include any or all of the Registrable
Securities held by such Holder for sale pursuant to the Demand Registration
and advising such Holder of procedures to enable such Holder to elect to so
include Registrable Securities for sale in the Demand Registration. Any
Holder may, within 10 days of delivery to such Holder of a notice pursuant
to this Section 2.01(d), elect to so include Registrable Securities in the
Demand Registration by written notice to such effect to the Issuer
specifying the number of Registrable Securities desired to be so included
by such Holder.
Section 2.2. Piggyback Registrations. (a) At any time after
the Effective Time (but not later than two years after the Effective Time) if
the Issuer proposes (other than pursuant to a Demand Registration or on Forms
S-4 or S-8 or any successor forms) to register any of its equity securities
under the 1933 Act (whether for the Issuer's own account or for the account of
any other Person), the Issuer will give prompt written notice to all Holders
of its intention to effect such a registration, and such notice shall offer
the Holders the opportunity to register on the same terms and conditions such
number of shares of Registrable Securities as such Holder may request (a
"Piggyback Registration"). The Issuer will include in such registration all
Registrable Securities with respect to which the Issuer has received written
requests for inclusion therein within 10 days after the receipt by such Holder
of the Issuer's notice, subject to the provisions of Section 2.02(b) below;
provided that the Holders may collectively exercise their right to request
Piggyback Registration on not more than three occasions.
(b) If the Issuer is advised in writing (with a copy to the Holders
participating in the Piggyback Registration) by the lead or managing
underwriter that, in such underwriter's good faith view, all or a part of such
Registrable Securities and other equity securities proposed to be sold for the
account of the Issuer or any other Person cannot be sold and the inclusion of
such Registrable Securities and other equity securities in such registration
would be likely to have an adverse effect on the price, timing or distribution
of the offering and sale of the Registrable Securities and other equity
securities then contemplated, then the Issuer will include any securities to
be sold in such registration in the following order: (i) first, the
securities the Issuer proposes to sell for its own account, and (ii) second,
the Registrable Securities and other equity securities requested to be
included in such registration by the Holders and other holders pro rata in
proportion to the amount requested to be included therein by each Holder and
other holder.
Section 2.3. Other Matters in Connection with Registrations.
(a) Notwithstanding the express terms of this Agreement, but subject to the
general provisions hereof regarding the rights of Holders and the obligations
of Issuer, the Issuer shall take such action as may reasonably be requested by
the Holders to facilitate the public sale of securities pursuant to a
derivatives transaction sought to be engaged in by the Holders with respect to
the Registrable Securities for hedging or other purposes (it being understood
that any registration under the 1933 Act by the Issuer in accordance with any
such request shall count as a Demand Registration for purposes of Section
2.01, subject to Section 2.01(b)).
(b) Each Holder shall keep the Issuer informed of the number of
Registrable Securities held from time-to-time by each such Holder, and of each
sale, transfer or other disposition of Registrable Securities (including the
number of shares sold) by each such Holder.
(c) In the event that any public offering pursuant to a Demand
Registration shall involve, in whole or in part, an underwritten offering, the
Holders owning a majority of the Registrable Securities proposed to be sold
therein shall have the right to designate the lead underwriter of such
underwritten offering and, in the case of a public offering of Registrable
Securities (but not derivative securities) requested to be registered pursuant
to Section 2.01(a), the Issuer shall have the right to designate an
underwriter as co-manager for such offering.
Section 2.4. Certain Delay Rights. Notwithstanding any other
provision of this Agreement to the contrary, with respect to any registration
statement filed or to be filed pursuant to Section 2.01, if the Issuer
provides written notice to each Holder that in the Issuer's good faith and
reasonable judgment it would be materially disadvantageous to the Issuer
(because the sale of Registrable Securities covered by such registration
statement or the disclosure of information therein or in any related
prospectus or prospectus supplement would materially interfere with any
acquisition, financing or other material event or transaction in connection
with which a registration of securities under the 1933 Act for the account of
the Issuer is then intended or the public disclosure of which at the time
would be materially prejudicial to the Issuer) (a "Disadvantageous Condition")
for such a registration statement to be maintained effective, or to be filed
and become effective, and setting forth the general reasons for such judgment,
the Issuer shall be entitled to cause such registration statement to be
withdrawn or the effectiveness of such registration statement terminated, or,
in the event no registration statement has yet been filed, shall be entitled
not to file any such registration statement, until such Disadvantageous
Condition no longer exists (notice of which the Issuer shall promptly deliver
to each Holder). With respect to each Holder, upon the receipt by such Holder
of any such notice of a Disadvantageous Condition if so directed by the Issuer
by notice as aforesaid, such Holder will deliver to the Issuer all copies,
other than permanent file copies then in such Holder's possession, of the
prospectus and prospectus supplements then covering such Registrable
Securities at the time of receipt of such notice as aforesaid. Notwithstanding
anything else contained in this Agreement, neither the filing nor the
effectiveness of any registration statement under Section 2.01 may be delayed
(i) for more than a total of 60 days pursuant to this Section 2.04 or (ii) in
the case of the first Demand Request so long as it requires the Issuer to file
the related registration statement within 20 days after the Effective Time.
Section 2.5. Expenses. Except as provided herein, the Issuer
shall pay all Registration Expenses with respect to each registration
hereunder. Notwithstanding the foregoing, (i) each Holder shall be responsible
for the legal fees and expenses of its own counsel (except as provided in
clause (viii) of the definition of Registration Expenses), (ii) each Holder
shall be responsible for all underwriting discount and commissions, selling or
placement agent or broker fees and commissions, and transfer taxes, if any, in
connection with the sale of securities by such Holder and (iii) Section
2.03(a).
Section 2.6. Registration and Qualification. If and whenever
the Issuer is required to effect the registration of any Registrable
Securities under the 1933 Act as provided in Section 2.01, the Issuer shall
use its reasonable best efforts to (but subject to the provisions of Section
2.01):
(a) prepare, file and cause to become effective a registration
statement under the 1933 Act relating to the Registrable Securities to be
offered in accordance with the intended method of disposition thereof;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the 1933 Act with
respect to the disposition of all Registrable Securities in the case of the
Demand Registration, until the earlier of such time as all Registrable
Securities proposed to be sold therein have been disposed of in accordance
with the intended methods of disposition set forth in such registration
statement and the expiration of 30 days after such registration statement
becomes effective; provided that such 30-day period shall be extended for
such number of days that equals the number of days elapsing from (x) the
date the written notice contemplated by paragraph (e) below is given by the
Issuer to (y) the date on which the Issuer delivers to the Holders of
Registrable Securities the supplement or amendment contemplated by
paragraph (e) below;
(c) furnish to the Holders of Registrable Securities and to any
underwriter of such Registrable Securities such number of conformed copies
of such registration statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of copies of the
prospectus included in such registration statement (including each
preliminary prospectus), in conformity with the requirements of the 1933
Act, and such documents incorporated by reference in such registration
statement or prospectus, as the Holders of Registrable Securities or such
underwriter may reasonably request;
(d) furnish to any underwriter of such Registrable Securities an
opinion of counsel for the Issuer and a "cold comfort" letter signed by the
independent public accountants who have audited the financial statements of
the Issuer included in the applicable registration statement, in each such
case covering substantially such matters with respect to such registration
statement (and the prospectus included therein) and the related offering as
are customarily covered in opinions of issuer's counsel with respect
thereto and in accountants' letters delivered to underwriters in
underwritten public offerings of securities and such other matters as such
underwriters may reasonably request;
(e) promptly notify the Selling Holders in writing (i) at any time
when a prospectus relating to a registration pursuant to Section 2.01 or
2.02 is required to be delivered under the 1933 Act of the happening of any
event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, and (ii) of any request by the
Commission or any other regulatory body or other body having jurisdiction
for any amendment of or supplement to any registration statement or other
document relating to such offering, and in either such case, at the request
of the Selling Holders prepare and furnish to the Selling Holders a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus shall not
include 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 light of the circumstances under which they are made, not
misleading;
(f) list all such Registrable Securities covered by such
registration on each securities exchange and automated inter-dealer
quotation system on which the Common Stock is then listed;
(g) use reasonable efforts to assist the Holders in the marketing
of Registrable Securities in connection with up to three underwritten
offerings hereunder (including, to the extent reasonably consistent with
work commitments, using reasonable efforts to have officers of the Issuer
attend "road shows" and analyst or investor presentations scheduled in
connection with such registration); and
(h) furnish for delivery in connection with the closing of any
offering of Registrable Securities pursuant to a registration effected
pursuant to Sections 2.01 or 2.02 unlegended certificates representing
ownership of the Registrable Securities being sold in such denominations as
shall be requested by the Selling Holders or the underwriters.
Section 2.7. Underwriting; Due Diligence. (a) If requested by
the underwriters for any underwritten offering of Registrable Securities
pursuant to a Demand Registration, the Issuer shall enter into an underwriting
agreement with such underwriters for such offering, which agreement will
contain such representations and warranties by the Issuer and such other terms
and provisions as are customarily contained in underwriting agreements with
respect to secondary distributions, including, without limitation,
indemnification and contribution provisions substantially to the effect and to
the extent provided in Section 2.08, subject to such modifications as may
reasonably be requested by the lead or managing underwriter for any such
underwritten offering, and agreements as to the provision of opinions of
counsel and accountants, letters to the effect and to the extent provided in
Section 2.06(d). Such underwriting agreement shall also contain such
representations and warranties by such Selling Holders and such other terms
and provisions as are customarily contained in underwriting agreements with
respect to secondary distributions, including, without limitation,
indemnification and contribution provisions substantially to the effect and to
the extent provided in Section 2.08, subject to such modifications as may
reasonably be requested by the lead or managing underwriter for any such
underwritten offering.
(b) In connection with the preparation and filing of each
registration statement registering Registrable Securities under the 1933
Act pursuant to this Article II, the Issuer shall give the Holders of such
Registrable Securities and the underwriters, if any, and their respective
counsel and accountants (the identity and number of whom shall be
reasonably acceptable to the Issuer), such reasonable and customary access
to its books, records and properties and such opportunities to discuss the
business and affairs of the Issuer with its officers and the independent
public accountants who have certified the financial statements of the
Issuer as shall be necessary, in the opinion of such Holders and such
underwriters or their respective counsel, to conduct a reasonable
investigation within the meaning of the 1933 Act; provided that the
foregoing shall not require the Issuer to provide access to (or copies of)
any competitively sensitive information relating to the Issuer or its
Subsidiaries or their respective businesses; and provided further that (i)
each Holder and the underwriters and their respective counsel and
accountants shall have entered into a confidentiality agreement reasonably
acceptable to the Issuer and (ii) the Holders and the underwriters and
their respective counsel and accountants shall use their reasonable best
efforts to minimize the disruption to the Issuer's business and coordinate
any such investigation of the books, records and properties of the Issuer
and any such discussions with the Issuer's officers and accountants so that
all such investigations occur at the same time and all such discussions
occur at the same time.
Section 2.8. Indemnification and Contribution. (a) The Issuer
agrees to indemnify and hold harmless each Selling Holder and each person, if
any, who controls each Selling Holder within the meaning of either Section 15
of the 1933 Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or alleged untrue
statement of a material fact contained in any registration statement or any
amendment thereof, any preliminary prospectus or prospectus (as amended or
supplemented if the Issuer shall have furnished any amendments or supplements
thereto) relating to the Registrable Securities, or caused by any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based
upon information furnished to the Issuer in writing by a Selling Holder
expressly for use therein. The Issuer also agrees to indemnify any underwriter
of the Registrable Securities so offered and each person, if any, who controls
such underwriter on substantially the same basis as that of the
indemnification by the Issuer of the Selling Holder provided in this Section
2.08(a).
(b) Each Selling Holder agrees to indemnify and hold harmless
the Issuer, its directors, the officers who sign any registration statement
and each person, if any who controls the Issuer within the meaning of
either Section 15 of the 1933 Act or Section 20 of the Exchange Act, from
and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim)
insofar as such losses, claims, damages or liabilities are caused by any
untrue statement or alleged untrue statement of a material fact contained
in any registration statement or any amendment thereof, any preliminary
prospectus or prospectus (as amended or supplemented if the Issuer shall
have furnished any amendments or supplements thereto) relating to the
Registrable Securities, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, but only with reference to
information furnished in writing by a Selling Holder (or any representative
thereof) expressly for use in a registration statement, any preliminary
prospectus, prospectus or any amendments or supplements thereto. Each
Selling Holder also agrees to indemnify any underwriter of the Registrable
Securities so offered and each person, if any, who controls such
underwriter on substantially the same basis as that of the indemnification
by such Selling Holder of the Issuer provided in this Section 2.08(b).
(c) Each party indemnified under paragraph (a) or (b) above shall,
promptly after receipt of notice of a claim or action against such indemnified
party in respect of which indemnity may be sought hereunder, notify the
indemnifying party in writing of the claim or action; provided that the
failure to notify the indemnifying party shall not relieve it from any
liability that it may have to an indemnified party on account of the indemnity
agreement contained in paragraph (a) or (b) above except to the extent that
the indemnifying party was actually prejudiced by such failure, and in no
event shall such failure relieve the indemnifying party from any other
liability that it may have to such indemnified party. If any such claim or
action shall be brought against an indemnified party, and it shall have
notified the indemnifying party thereof, unless based on the written advice of
counsel to such indemnified party a conflict of interest between such
indemnified party and indemnifying parties may exist in respect of such claim,
the indemnifying party shall be entitled to participate therein, and, to the
extent that it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof. After notice from the indemnifying party
to the indemnified party of its election to assume the defense of such claim
or action, the indemnifying party shall not be liable to the indemnified party
under this Section 2.08 for any legal or other expenses subsequently incurred
by the indemnified party in connection with the defense thereof. Any
indemnifying party against whom indemnity may be sought under this Section
2.08 shall not be liable to indemnify an indemnified party if such indemnified
party settles such claim or action without the consent of the indemnifying
party. The indemnifying party may not agree to any settlement of any such
claim or action, other than solely for monetary damages for which the
indemnifying party shall be responsible hereunder, the result of which any
remedy or relief shall be applied to or against the indemnified party, without
the prior written consent of the indemnified party, which consent shall not be
unreasonably withheld. In any action hereunder as to which the indemnifying
party has assumed the defense thereof, the indemnified party shall continue to
be entitled to participate in the defense thereof, with counsel of its own
choice, but the indemnifying party shall not be obligated hereunder to
reimburse the indemnified party for the costs thereof.
(d) If the indemnification provided for in this Section 2.08
shall for any reason be unavailable (other than in accordance with its
terms) to an indemnified party in respect of any loss, liability, cost,
claim or damage referred to therein, then each indemnifying party shall, in
lieu of indemnifying such indemnified party, contribute to the amount paid
or payable by such indemnified party as a result of such loss, liability,
cost, claim or damage (i) in such proportion as is appropriate to reflect
the relative benefits received by the Issuer on the one hand and the
Selling Holders on the other hand from the offering of the Registrable
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the indemnifying party or parties on the one
hand and of the indemnified party or parties on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Issuer on the one
hand and the Selling Holders on the other hand in connection with the
offering of the Registrable Securities shall be deemed to be in the same
respective proportions as the net proceeds from the offering of the
Registrable Securities (before deducting expenses) received by the Issuer
and the Selling Holders, respectively, bear to the aggregate public
offering price of the Registrable Securities. The relative fault of the
Issuer on the one hand and the Selling Holders on the other hand 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
Issuer or a Selling Holder and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission. The amount paid or payable by an indemnified party as a
result of the loss, cost, claim, damage or liability, or action in respect
thereof, referred to above in this paragraph (d) shall be deemed to
include, for purposes of this paragraph (d), any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. The Issuer and the
Selling Holders agree that it would not be just and equitable if
contribution pursuant to this Section 2.08 were determined by pro rata
allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in this paragraph.
Notwithstanding any other provision of this Section 2.08, no Selling Holder
shall be required to contribute any amount in excess of the amount by which
the total price at which the Registrable Securities of such Selling Holder
were offered to the public exceeds the amount of any damages which such
Selling Holder 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 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
(e) The obligations of the parties under this Section 2.08
shall be in addition to any liability which any party may otherwise have to
any other party.
Section 2.9. Holdback Agreement. In connection with an
underwritten public offering of Registrable Securities effected pursuant to
this Article II, each Selling Holder agrees not to effect any sale or
distribution, including any sale under Rule 144, of any equity security of the
Issuer (otherwise than through the registered public offering then being
made), within 10 days prior to or 90 days (or such lesser period as the lead or
managing underwriters may permit) after the effective date of the applicable
registration statement.
ARTICLE 3
Miscellaneous
Section 3.1. Entire Agreement. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all other prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter hereof.
Section 3.2. Assignment. No party may assign any of its
rights or obligations hereunder by operation of law or otherwise without the
prior written consent of the other parties.
Section 3.3. Amendments, Waivers, Etc. This Agreement may not
be amended, changed, supplemented, waived or otherwise modified or terminated,
except upon the execution and delivery of a written agreement executed by the
Issuer and Holders representing a majority of the Registrable Securities then
held by all Holders.
Section 3.4. Notices. All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly received if given) by hand delivery or
telecopy, or by any courier service, such as Federal Express, providing proof
of delivery. All communications hereunder shall be delivered to the respective
parties at the address or telecopy number set forth on the signature pages
hereto or such other address or telecopy number as such party may hereafter
specify for the purpose by notice to the other parties hereto.
Section 3.5. Severability. Whenever possible, each provision
or portion of any provision of this Agreement will be interpreted in such
manner as to be effective and valid under applicable law but if any provision
or portion of any provision of this Agreement is held to be invalid, illegal
or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision
had never been contained herein.
Section 3.6. No Waiver. The failure of any party hereto to
exercise any right, power or remedy provided under this Agreement or otherwise
available in respect hereof at law or in equity, or to insist upon compliance
by any other party hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof, shall not
constitute a waiver by such party of its right to exercise any such or other
right, power or remedy or to demand such compliance.
Section 3.7. No Third Party Beneficiaries. This Agreement is
not intended to be for the benefit of, and shall not be enforceable by, any
Person who or which is not a party hereto.
Section 3.8. Governing Law. This Agreement shall be governed
and construed in accordance with the laws of the State of Delaware, without
giving effect to the principles of conflicts of law thereof.
Section 3.9. Jurisdiction. Any suit, action or proceeding
seeking to enforce any provision of, or based on any matter arising out of or
in connection with, this Agreement or the transactions contemplated by this
Agreement may be brought against any of the parties in any federal court
located in the State of Delaware or any Delaware state court, and each of the
parties hereto hereby consents to the exclusive jurisdiction of such courts
(and of the appropriate appellate courts therefrom) in any such suit, action
or proceeding and waives any objection to venue laid therein. Process in any
such suit, action or proceeding may be served on any party anywhere in the
world, whether within or without the State of Delaware.
Section 3.10. Descriptive Headings. The descriptive headings
used herein are inserted for convenience of reference only and are not
intended to be part of or to affect the meaning or interpretation of this
Agreement.
Section 3.11. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of
which, taken together, shall constitute one and the same Agreement.
IN WITNESS WHEREOF, the Issuer and the Holders have caused this
Agreement to be duly executed as of the day and year first above written.
CVS CORPORATION
By:
--------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice Chairman and Chief
Operating Officer
CVS Corporation
Xxx XXX Xxxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Vice
Chairman and Chief
Operating Officer
INVESTORS
Class of Shares XXXXXX XXXXXXXXX LIVING TRUST
Stock Owned
-----------------------
common 13,275,555 By:
------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Trustee
Class of Shares
Stock Owned
-----------------------
common 265,780
------------------------------------------
Xxxxxx X. Xxxxxxxxx
Class of Shares TRUST FOR THE BENEFIT OF
Stock Owned XXXX X. XXXXXXXXX
-----------------------
common 493,593 By:
------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Trustee
Class of Shares TRUST FOR THE BENEFIT OF
Stock Owned XXXXXX X. XXXXXXXXX
-----------------------
common 493,593 By:
------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Trustee
Investor notices shall be given to:
Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx
0000 Xxxxx Xxxxxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx, Esq.
SCHEDULE I
INVESTORS
---------
Class of Shares Xxxxxx Xxxxxxxxx Living Trust
Stock Owned
-----------------------
common 13,275,555
Class of Shares Xxxxxx X. Xxxxxxxxx
Stock Owned
-----------------------
common 265,780
Class of Shares Trust for the Benefit of
Stock Owned Xxxx X. Xxxxxxxxx
-----------------------
common 493,593
Class of Shares Trust for the Benefit of
Stock Owned Xxxxxx X. Xxxxxxxxx
-----------------------
common 493,593
