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EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
AGREEMENT dated as of May 29, 1997 among CVS Corporation, a
Delaware corporation (the "Issuer"), and the Holders 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, representation, warranties, covenants and agreements contained herein,
the parties hereto, intending to be legally bound hereby, agree as follows:
ARTICLE 1
Definitions
Section 1.01. Definitions. Terms defined in the Agreement and
Plan of Merger dated as of February 6, 1997 among the Issuer, Revco D.S., Inc.,
a Delaware corporation, and North Acquisition Corp., a Delaware 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) is (1) upon
the death of any Investor, the executor of the estate of such Investor or such
Investor's heirs, devisees, legatees or assigns, (2) upon the disability of any
Investor, any guardian or conservator of such Investor or (3) a general or
limited partner of Xxxx/Chilmark that has received Registrable Securities
pursuant to the distribution to such partners of Registrable Securities in
accordance with the agreement of limited partnership governing the rights of
such partners.
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"Holders' Agent" means each of Magten, the Xxxx Holders' Agent
and each Revco Individual Holder, as the case may be.
"Investor" means each Person listed on Schedule I hereto.
"Magten" means Magten Asset Management Corporation.
"Permitted Holder" means each of (i) the Xxxx Holders' Agent (or
one representative of the Xxxx Holders that (x) is designated by Xxxx Holders
that hold a majority of the Registrable Securities proposed to be sold by Xxxx
Holders in the applicable offering and (y) is reasonably acceptable to the
Issuer), (ii) Magten and (iii) one representative of the Revco Individual
Holders that is reasonably acceptable to the Issuer, as the case may be.
"1933 Act" means the Securities Act of 1933, as amended.
"Registrable Securities" means Common Stock acquired by the
Holders pursuant to the Merger (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 in
accordance with this Agreement and declared effective under the 1933 Act, (ii)
based on an opinion of counsel or a no-action letter of the Commission, in
either case reasonably acceptable to the Issuer (and, in the case of Registrable
Securities held by a Xxxx Xxxxxx, reasonably acceptable to the Xxxx Holders'
Agent), such Registrable Securities are eligible for immediate sale pursuant to
Rule 144 or Rule 145 (whether or not subject to applicable volume limitations
thereunder), provided that, notwithstanding such opinion or no-action letter,
prior to the Shelf Termination Date (determined disregarding clause (c) of the
definition of Shelf Termination Date in Section 2.01) (x) no Registrable
Securities held by a Xxxx Xxxxxx shall cease to be Registrable Securities unless
all Registrable Securities held by all Xxxx Holders could then be sold in a
single transaction (assuming for these purposes the aggregation of all such
Registrable Securities of all Xxxx Holders) without violation of applicable Rule
144 volume limitations and (y) no Registrable Securities held by Magten shall
cease to be Registrable Securities unless all Registrable Securities held by
Magten could then be sold in a single transaction without violation of
applicable Rule 144 volume limitations, (iii) they shall have been otherwise
sold, transferred or disposed of by a Holder to any Person that is not a Holder,
or (iv) they shall have ceased to be outstanding.
"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
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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 of the Required Shelf Registration and the 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 (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).
"Required Shelf Registration" has the meaning ascribed thereto
in Section 2.01.
"Revco Individual Holder" means each Holder that immediately
prior to the Effective Time was an officer or director of Revco and each
transferee thereof (contemplated in the definition of "Holder") that is a
Holder.
"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.
"Shelf Registration" means the registration under the 1933 Act
of a Rule 415 Offering.
"Shelf Registration Statement" means a registration statement
intended to effect a Shelf Registration.
"Xxxx Xxxxxx" means Xxxx/Chilmark, any Affiliate of
Xxxx/Chilmark that is a Holder, and each partner of Xxxx/Chilmark referred to in
clause (C) of the definition of "Holder."
"Xxxx Holders' Agent" has the meaning ascribed thereto in
Section 3.11.
Section 1.02. Internal References. Unless the context indicates
otherwise, references to Articles, Sections and paragraphs shall refer to the
corresponding articles, sections and paragraphs in this Appendix A, and
references to the parties shall mean the parties to this Agreement.
ARTICLE 2
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Registration Rights
Section 2.01. Shelf Registration. If requested by any Holder, as
soon as practicable (but in any event not more than 10 days) after the date of
this Agreement, the Issuer shall prepare and file with the Commission a Shelf
Registration Statement on an appropriate form that shall include all Registrable
Securities, and may include securities of the Company for sale for the Company's
own account (the "Required Shelf Registration"). The Issuer shall use its
reasonable best efforts to cause such Shelf Registration Statement to be
declared effective within 15 days after the public release by the Issuer of the
financial results of the Issuer and Revco referred to in Section 5.20 of the
Merger Agreement. Notwithstanding anything else contained in this Agreement, the
Issuer shall only be obligated to keep such Shelf Registration Statement
effective until the earliest of (a) 12 months after the date such Shelf
Registration Statement has been declared effective, provided that such 12-month
period shall be extended by (i) the length of any period during which the Issuer
delays in maintaining the Shelf Registration Statement current pursuant to
Section 2.04, (ii) the length of any period (in which such Shelf Registration
Statement is required to be effective hereunder) during which such Shelf
Registration Statement is not maintained effective, and (iii) such number of
days that equals the number of days elapsing from (x) the date the written
notice contemplated by Section 2.06 (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 Section 2.06 (e) below, (b) such time as
all Registrable Securities have been sold or disposed of thereunder or sold,
transferred or otherwise disposed of to a person that is not a Holder and (c)
such time as all securities that were Registrable Securities on the date hereof
have ceased to be Registrable Securities (the earliest of (a), (b) and (c) being
the "Shelf Termination Date"). The Required Shelf Registration shall not be
counted as a Demand Registration for purposes of Section 2.02 of this Agreement.
Section 2.02. Demand Registration. (a) Upon written notice to
the Issuer from one or more Holders at any time after the Shelf Termination Date
(but not later than the date that is 180 days after the Shelf Termination Date)
(the "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, 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 2.02(a) on not more than one occasion
(such registration being referred to herein as the "Demand Registration");
(ii) the Issuer shall not be required to effect the Demand
Registration hereunder unless the aggregate number of Registrable Securities to
be registered pursuant to the Demand Registration is equal to or more than
3,000,000 shares;
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(iii) the method of disposition requested by Holders in
connection with any Demand Registration may not, without the Issuer's written
consent, be a Rule 415 Offering; and
(iv) the Issuer shall not be required to effect the Demand
Registration hereunder if all securities that were Registrable Securities on the
date hereof have ceased to be Registrable Securities.
(b) Notwithstanding any other provision of this Agreement to the
contrary, a Demand Registration requested by Holders pursuant to this Section
2.02 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 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. So long as a Demand Request is made by the Holders within the 180-day
period referred to in Section 2.02(a), the Holders shall not lose their right to
their Demand Registration under Section 2.02 if the Demand Registration related
to such Demand Request is delayed or not effected in the circumstances set forth
in this clause (b).
(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 2.02(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 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 shall be allocated pro rata among
the requesting Holders and the Issuer on the basis of the relative number
requested to be included therein by the Issuer and each such Holder (in which
case Section 2.02(a)(ii) shall be disregarded for purposes of such Demand
Registration); provided that in the event such a pro rata allocation shall be
made in connection with the Demand Request, the remaining Holders shall be
entitled to request one additional Demand Registration (without needing to make
a Demand Request therefor within the 180-day period referred to in Section
2.02(a) and disregarding Section 2.02(a)(ii) for purposes of such additional
Demand Registration); provided further that in conection with such additional
Demand Registration, if any, the Issuer may not include additional securities
therein for its own account if such inclusion would result in any reduction in
the Registrable Securities proposed to be sold therein by the Holders. The
Holders of the Registrable Securities to be offered pursuant to paragraph (a)
above may require that any such additional equity securities be included by the
Issuer in the
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offering proposed by such Holders on the same conditions as the Registrable
Securities that are included therein.
(d) Within 7 days after delivery of a Demand Request by a
Holder, the Issuer shall provide a written notice to each Holder (or, if so
requested by the Issuer after appropriate notice to the Xxxx Holders' Agent by
the Issuer, the Xxxx Holders' Agent shall provide written notice to each Xxxx
Xxxxxx), 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 7 days of delivery to such Holder of a notice pursuant to
this Section 2.02(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 2.03. Other Matters In Connection With Registrations.
(a) Each Xxxx Xxxxxx shall keep the Xxxx Holders' Agent informed promptly (x) of
the name, address and other contact information of such Xxxx Xxxxxx, (y) of the
number of Registrable Securities held from time-to-time by such Xxxx Xxxxxx, and
(z) of each sale, transfer or other disposition of Registrable Securities
(including the number of shares sold) by each such Xxxx Xxxxxx. Each Holders'
Agent shall keep the Issuer informed promptly (x) of the name, address and other
contact information of each Holder for whom such Holders' Agent is acting as
agent hereunder (or, of itself, in the case of each Revco Individual Holder),
(y) of the number of Registrable Securities held from time-to-time by each such
Holder, and (z) of each sale, transfer or other disposition of Registrable
Securities (including the number of shares sold) by each such Holder.
(b) In the event that any public offering pursuant to this
Agreement shall involve, in whole or in part, an underwritten offering, the
Issuer shall have the right to designate an underwriter or underwriters as the
lead or managing underwriters of such underwritten offering who shall be
reasonably acceptable to Holders owning a majority of the Registrable Securities
proposed to be sold therein.
Section 2.04. Certain Delay Rights. Notwithstanding any other
provision of this Agreement to the contrary, if at any time while the Required
Shelf Registration is effective the Issuer provides written notice to each
Holder (whether by notice directly to such Holder or through the Holders' Agent
acting as agent for such Holder hereunder) 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 sales of
Registrable Securities thereunder to then be permitted, and setting forth the
general reasons for such judgment, the Issuer may refrain from maintaining
current the prospectus contained in the Shelf Registration Statement until such
Disadvantageous Condition no longer exists (notice of which the Issuer shall
promptly deliver to each Holder (directly or through the applicable Holders'
Agent)). Furthermore, notwithstanding anything else contained in this Agreement,
with respect to any registration
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statement filed, or to be filed, pursuant to Section 2.02, if the Issuer
provides written notice to each Holder (whether by notice directly to such
Holder or through the Holders' Agent acting as agent for such Holder hereunder)
that in the Issuer's good faith and reasonable judgment it would be materially
disadvantageous to the Issuer (because of 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 Holder (notice of which the Issuer shall promptly deliver to each Holder
(directly or through the applicable Holders' Agent)). With respect to each
Holder, upon the receipt by such Holder of any such notice of a Disadvantageous
Condition (directly from the Issuer or through the applicable Holders' Agent)
(i) in connection with the Required Shelf Registration , such Holder shall
forthwith discontinue use of the prospectus and any prospectus supplement under
such registration statement and shall suspend sales of Registrable Securities
until such Disadvantageous Condition no longer exists and (ii) in connection
with the Required Shelf Registration or the Demand Registration, as applicable,
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, (x) neither the
filing nor the effectiveness of any registration statement under Section 2.02
may be delayed for more than a total of 60 days pursuant to this Section 2.04
and (y) the maintaining current of a prospectus (and the suspension of sales of
Registrable Securities) in connection with the Required Shelf Registration may
not be delayed under this Section 2.04 for more than a total of 60 days in any
six-month period.
Section 2.05. Expenses. Except as provided herein, the Issuer
shall pay all Registration Expenses with respect to each registration hereunder.
Notwithstanding the foregoing, each Holder and the Issuer shall be responsible
for its own internal administrative and similar costs, which shall not
constitute Registration Expenses, 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), (iii) 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 (iv) the Holders shall be jointly and severally
responsible for all out-of-pocket costs and expenses of the Issuer and its
officers and employees incurred in connection with providing the assistance
and/or attending analyst or investor presentations or any "road show" undertaken
in connection with the registration and/or marketing of any Registrable
Securities as contemplated in Section 2.06(g).
Section 2.06. 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 Sections 2.01 or 2.02, the Issuer shall as
promptly as practicable (but subject to the provisions of Sections 2.01 and
2.02):
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(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 (i) in the case of the Required Shelf Registration,
until the Shelf Termination Date and (ii) 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
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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) use its reasonable best efforts to 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 Common Stock in connection with up to two 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), with all out-of-pocket costs and expenses incurred by the Issuer
or such officers in connection with such attendance or assistance to be paid by
the Holders as provided in Section 2.05; 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 2.07. Underwriting; Due Diligence. (a) If requested by
the underwriters for any underwritten offering of Registrable Securities
pursuant to a registration requested under this Article II, 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, 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.
(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 Permitted 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; provided further that (i)
each Holder and the underwriters and their respective counsel and
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accountants shall have entered into a confidentiality agreement reasonably
acceptable to the Issuer and (ii) the Permitted 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 2.08. 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 Securities 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 Securities 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
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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
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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 2.09. Holdback Agreement. If the Demand Registration
pursuant to this Article II shall be in connection with an underwritten public
offering of Registrable Securities, 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 7 days prior to or 60 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 3.01. 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 3.02. 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 3.03 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.
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Section 3.04 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 (unless such
contact information in the case of the Holders is updated pursuant to Section
2.03(a)).
Section 3.05. 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 3.06. 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 3.07. 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 3.08. Governing Law. This Agreement shall be
governed and construed in accordance with the laws of the State of New
York, without giving effect to the principles of conflicts of law thereof.
Section 3.09. Jurisdiction. Each party hereby irrevocably
submits to the exclusive jurisdiction of the United States District Court for
the Southern District of New York or any state court sitting in the City of New
York, Borough of Manhattan in any action, suit or proceeding arising in
connection with this Agreement, and agrees that any such action, suit or
proceeding shall be brought only in such courts (and waives any objection based
on forum non conveniens or any other objection to venue therein); provided,
however, that such consent to jurisdiction is solely for the purpose referred to
in this Section 3.09 and shall not be deemed to be a general submission to the
jurisdiction of said Courts or in the State of New York other than for such
purposes. Each party hereto hereby waives any right to a trial by jury in
connection with any such action, suit or proceeding.
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. Xxxx Holders' Agent. Each Xxxx Xxxxxx hereby
appoints Xxxx/Chilmark Fund. L.P. as its agent and attorney-in-fact (the "Xxxx
Holders' Agent") for purposes of the delivery and receipt of all notices and
requests pursuant to this Agreement. The Issuer may give
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notice to any Xxxx Xxxxxx hereunder by giving such notice directly to such Xxxx
Xxxxxx. Alternatively, the Issuer may request that the Xxxx Holders' Agent
deliver to each Xxxx Xxxxxx any notice given by the Issuer hereunder, in which
event the Xxxx Holders' Agent will promptly so give such notice to each Xxxx
Xxxxxx. Prompt delivery by the Xxxx Holders' Agent to the Xxxx Holders will be
deemed satisfied if delivery is made to the Xxxx Holders, in accordance with
Section 3.04, not later than the third business day after actual receipt of the
applicable notice or document by the Xxxx Holders' Agent from the Issuer.
Notwithstanding anything else contained herein, the Xxxx Holders' Agent will not
be liable or responsible to any Person should any Xxxx Xxxxxx fail to act in
accordance with any notice so given to such Xxxx Xxxxxx hereunder.
Section 3.12. 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: /s/ Xxxxxx X. Xxxx
---------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice Chairman and Chief
Operating Officer
Holders
-------
XXXX/CHILMARK FUND, L.P.
By: ZC Limited Partnership, general partner
By: ZC Partnerships, general partner
By: ZC Inc., a partner
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
Address: Equity Group Investments, Inc.
0 Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
MAGTEN ASSET MANAGEMENT
CORPORATION
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
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15
Title: Chairman
Address: 00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
/s/ Xxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Address: Equity Group Investments, Inc.
0 Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
/s/ Xxx Xxxx
---------------------------------------
Name: Xxx Xxxx
Address: Equity Group Investments, Inc.
0 Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
/s/ Xxxx X. Xxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxx
Address: X.X. Xxx 000
Xxxx, Xxxx 00000
/s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Address: Luma Corp.
Borghese Investments
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
/s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Address: The University of North
Carolina at Chapel Hill
000 Xxxxx Xxxx
Xxxxx Xxxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
/s/ Xxx Xxxxxxxx
---------------------------------------
Name: Xxx Xxxxxxxx
Address: Equity Group Investments, Inc.
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
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16
/s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Address: Magten Asset Management
Corporation
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
/s/ Xxx Xxxxx
---------------------------------------
Name: Xxx Xxxxx
Address: Ernst & Young
000 0xx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
/s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Address: Massachusetts Institute of
Technology
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
/s/ D. Xxxxxx Xxxxx
---------------------------------------
Name: D. Xxxxxx Xxxxx
Address: 000 Xxxxx Xxxx
Xxxxxxxxxxx, XX 00000
/s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Address: Varco International, Inc.
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
/s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Address: X.X. Xxx 000
Xxxxxx Xxxxxx, XX 00000
/s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Address: 00 Xxxx Xxxxxxx Xxxx
Xxxxxxxx Xxxxx, XX 00000
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