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Exhibit 2.k.(ii)
PAYING AGENT AGREEMENT
This PAYING AGENT AGREEMENT, dated as of this __th day of May, 1998,
by and between ChaseMellon Shareholder Services, L.L.C., a New Jersey limited
liability company (the "Paying Agent"), and Xxxxxxx X. Xxxxxx III, Xxxxx X.
X'Xxxxx and Xxxxxx X. Xxxxxxx (collectively, the "Trustees"), not in their
individual capacities but solely as Trustees of CVS Automatic Common Exchange
Security Trust (the "Trust"), a trust organized under the laws of the State of
New York under and by virtue of an Amended and Restated Trust Agreement, dated
as of May __, 1998 (the "Trust Agreement").
W I T N E S S E T H
WHEREAS, the Trust is a non-diversified, closed-end management
investment company, as defined in the Investment Company Act of 1940 (the
"Investment Company Act"), formed to purchase and hold the U.S. treasury
securities (the "Treasury Securities"), to enter into and hold a forward
purchase contract (the "Contract") with an existing shareholder of CVS
Corporation (the "Company") and to issue Trust Automatic Common Exchange
Securities (the "Securities") to the public in accordance with the terms and
conditions of the Trust Agreement;
WHEREAS, the Trustees desire to engage the services of the Paying
Agent to assume certain responsibilities and to perform certain duties as the
transfer agent, registrar and paying agent with respect to the Securities upon
the terms and conditions of this Agreement; and
WHEREAS, the Paying Agent is qualified and willing to assume such
responsibilities and to perform such duties,
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subject to the supervision of the Trustees, on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. Capitalized terms not otherwise defined herein
shall have the respective meanings specified in the Trust Agreement.
ARTICLE II
PAYING AGENT
2.1 Appointment of Paying Agent and Acceptance. The Trust Agreement
provides that ChaseMellon Shareholder Services, L.L.C. shall act as the initial
Paying Agent. ChaseMellon Shareholder Services, L.L.C. accepts such appointment
and agrees to act in accordance with its standard procedures and the provisions
of the Trust Agreement and the provisions set forth in this Article 2 as Paying
Agent with respect to the Securities. Without limiting the generality of the
foregoing, ChaseMellon Shareholder Services, L.L.C., as Paying Agent, agrees
that it shall establish and maintain the Trust Account, subject to the
provisions of Section 2.3 hereof.
2.2 Certificates and Notices. The Trustees shall deliver to the
Paying Agent the certificates and notices required to be delivered to the Paying
Agent pursuant to the Trust Agreement, and the Paying Agent shall mail or
publish such certificates or notices as required by the Trust Agreement, but the
Paying Agent shall have no responsibility to confirm or verify the accuracy of
certificates or notices of the Trustees so delivered.
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2.3 Payments and Investments. The Paying Agent shall make payments
out of the Trust Account as provided for in Section 3.2 of the Trust Agreement.
The Paying Agent shall effect the transactions set forth in Sections 2.3, 2.4,
2.5 and 8.3 of the Trust Agreement upon instructions to do so from the
Administrator (except that with respect to its obligations under Section 8.3 of
the Trust Agreement, the Paying Agent shall act without instructions from the
Administrator) and shall invest monies on deposit in the Trust Account in
Temporary Investments in accordance with Section 3.5 of the Trust Agreement.
Except as otherwise specifically provided herein or in the Trust Agreement, the
Paying Agent shall not have the power to sell, transfer or otherwise dispose of
any Temporary Investment prior to the maturity thereof, or to acquire additional
Temporary Investments. The Paying Agent shall hold any Temporary Investment to
its maturity and shall apply the proceeds thereof paid upon maturity to the
payment of the next succeeding Quarterly Distribution. All such Temporary
Investments shall be selected by the Trustees from time to time or pursuant to
standing instructions from the Trustees, and the Paying Agent shall have no
liability to the Trust or any Holder or any other Person with respect to any
such Temporary Investment.
2.4 Instructions from Administrator. The Paying Agent shall receive
and execute all instructions from the Administrator, except to the extent they
conflict with or are contrary to the terms of the Trust Agreement or this
Agreement.
ARTICLE III
TRANSFER AGENT AND REGISTRAR
3.1 Original Issue of Certificates. On the date Securities sold
pursuant to the Underwriting Agreement are originally issued, certificates for
the Securities shall be issued by the Trust, and, at the request of the
Trustees, registered in such names and such denominations as the underwriters
shall have previously requested of the
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Trustees, executed manually or in facsimile by the Managing Trustee and
countersigned by the Paying Agent. At no time shall the aggregate number of
Securities represented by such countersigned certificates exceed the number of
then outstanding Securities.
3.2 Registry of Holders. The Paying Agent shall maintain a registry
of the Holders of the Securities.
3.3 Registration of Transfer of the Securities. The Securities shall
be registered for transfer or exchange, and new certificates shall be issued, in
the name of the designated transferee or transferees, upon surrender of the old
certificates in form deemed by the Paying Agent properly endorsed for transfer
with (a) all necessary endorsers' signatures medallion guaranteed, (b) such
assurances as the Paying Agent shall deem necessary or appropriate to evidence
the genuineness and effectiveness of each necessary endorsement and (c)
satisfactory evidence of compliance with all applicable laws relating to the
collection of taxes or funds necessary for the payment of such taxes.
3.4 Lost Certificates. The Paying Agent shall issue and register
replacement certificates for certificates represented to have been lost, stolen
or destroyed, upon the receipt of (a) evidence acceptable to it of the loss,
theft or destruction and (b) surety bond acceptable to the Paying Agent,
sufficient to indemnify and save it and the Trustees harmless. The Paying Agent
may issue new certificates in exchange for and upon the cancellation of
mutilated certificates. Any request by the Trustees to the Paying Agent to issue
a replacement or new certificate pursuant to this Section 3.4 shall be deemed to
be a representation and warranty by the Trustees to the Paying Agent that such
issuance will comply with such provisions of law and the Trust Agreement and
resolutions of the Trustees.
3.5 Transfer Books. The Paying Agent shall maintain the transfer
books listing the Holders of the
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Securities. In case of any written request or demand for the inspection of the
transfer books of the Trust or any other books in the possession of the Paying
Agent, the Paying Agent will notify the Trustees and secure instructions as to
permitting or refusing such inspection. The Paying Agent reserves the right,
however, to exhibit the transfer books or other books to any person in case it
is advised by its counsel that its failure to do so would be unlawful.
3.6 Disposition of Cancelled Certificates; Records. The Paying Agent
shall retain certificates which have been cancelled in transfer or in exchange
and accompanying documentation in accordance with applicable rules and
regulations of the Commission for six calendar years from the date of such
cancellation, and shall make such records available during this period at any
time, or from time to time, for reasonable periodic, special, or other
examinations by representatives of the Commission and the Board of Governors of
the Federal Reserve System. Thereafter such records shall not be destroyed by
the Paying Agent but will be safely stored for possible future reference. In
case of any request or demand for the inspection of the register of the Trust or
any other books in the possession of the Paying Agent, the Paying Agent will
notify the Trustees and seek to secure instructions as to permitting or refusing
such inspection. The Paying Agent reserves the right, however, to exhibit the
register or other records to any person in case it is advised by its counsel
that its failure to do so would (i) be unlawful, or (ii) expose it to liability,
unless the Trustees shall have offered indemnification satisfactory to the
Paying Agent.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE TRUSTEES
The Trustees represent and warrant to the Paying Agent that:
(a) the Trust is a validly existing trust under the laws of the
State of New York and the Trustees have full power under the Trust
Agreement to execute and deliver this Agreement and to authorize, create
and issue the Securities;
(b) this Agreement has been duly and validly authorized, executed
and delivered by the Trustees and constitutes the valid and binding
agreement of the Trustees, enforceable against the Trustees in accordance
with its terms, subject as to such enforceability to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equitable
principles;
(c) the form of the certificate evidencing the Securities complies
with all applicable laws of the State of New York;
(d) the Securities have been duly and validly authorized, executed
and delivered by the Trustees and are validly issued;
(e) the offer and sale of the Securities has been registered under
the Securities Act of 1933 and the Trust has been registered under the
Investment Company Act and no further action by or before any governmental
body or authority of the United States or of any state thereof is required
in connection with the execution and delivery of this Agreement or the
issuance of the Securities;
(f) the execution and delivery of this Agreement and the issuance
and delivery of the Securities do not
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and will not conflict with, violate, or result in a breach of, the terms,
conditions or provisions of, or constitute a default under, the Trust
Agreement, any law or regulation, any order or decree of any court or
public authority having jurisdiction over the Trust, or any mortgage,
indenture, contract, agreement or undertaking to which the Trustees are a
party or by which any of them are bound; and
(g) no taxes are payable upon or in respect of the execution of this
Agreement or the issuance of the Securities.
ARTICLE V
DUTIES AND RIGHTS
5.1 Duties. (a) The Paying Agent is acting solely as agent for the
Trustees hereunder and owes no fiduciary duties to any other Person by reason of
this Agreement.
(b) In the absence of bad faith, gross negligence or willful
misfeasance on its part in the performance of its duties hereunder or its
reckless disregard of its duties and obligations hereunder, the Paying Agent
shall not be liable for any action taken, suffered, or omitted in the
performance of its duties under this Agreement. The Paying Agent shall under no
circumstances be liable for any indirect or consequential damages hereunder even
if the Paying Agent has been advised of the possibility of such loss or damages.
5.2 Rights. (a) The Paying Agent may rely and shall be protected in
acting or refraining from acting upon any communication authorized hereby and
upon any written instruction, notice, request, direction, consent, report,
certificate, share certificate or other instrument, paper or document reasonably
believed by it to be genuine. The Paying Agent shall not be liable for acting
upon any telephone communication authorized hereby which the Paying Agent
believes in good faith to have been given by the Trustees.
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(b) The Paying Agent may consult with legal counsel and the advice
of such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.
(c) The Paying Agent shall not be required to advance, expend or
risk its own funds or otherwise incur or become exposed to financial liability
in the performance of its duties hereunder.
(d) The Paying Agent may perform its duties and exercise its rights
hereunder either directly or by or through agents or attorneys appointed with
due care by it hereunder.
5.3 Disclaimer. The Paying Agent makes no representation as to (a)
the first two recitals of this Agreement or (b) the validity or adequacy of the
Securities.
5.4 Compensation, Expenses and Indemnification. (a) The Paying Agent
shall receive for all services rendered by it under this Agreement and, upon the
prior written approval of the Trustees, for all expenses, disbursements and
advances incurred or made by the Paying Agent in accordance with any provision
of this Agreement (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), the compensation set forth in Section
3.1 of the Administration Agreement.
(b) The Trustees shall indemnify the Paying Agent for, and hold it
harmless against, any loss, liability, claim or expense ("Loss") arising out of
or in connection with its duties under this Agreement, including the costs and
expenses of
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defending itself against any Loss, unless such Loss shall be a result of the
Paying Agent's gross negligence or intentional misconduct. In no case will the
Paying Agent be liable for special, indirect, incidental or consequential loss
or damages of any kind whatsoever (including but nolimited to lost profits),
even if the Paying Agent has been advised of the possibility of such damages.
The indemnification provided by this Section 5.4(b) shall survive the
termination of this Agreement.
ARTICLE VI
MISCELLANEOUS
6.1 Term of Agreement. (a) The term of this Agreement is unlimited
unless terminated as provided in this Section 6.1 or unless the Trust is
terminated, in which case this Agreement shall terminate ten days after the date
of termination of the Trust. This Agreement may be terminated by either party
hereto without penalty upon 60 days' prior written notice to the other party
hereto; provided that neither party hereto may terminate this Agreement pursuant
to this Section 6.1(a) unless a successor Paying Agent shall have been appointed
and shall have accepted the duties of the Paying Agent. The termination of the
Trust Agreement, the Collateral Agreement, the Administration Agreement or the
Custodian Agreement or the resignation or removal of the Custodian shall cause
the termination of this Agreement simultaneously therewith. If, within 30 days
after notice by the Paying Agent of termination of this Agreement, no successor
Paying Agent shall have been selected and accepted the duties of the Paying
Agent, the Paying Agent may apply to a court of competent jurisdiction for the
appointment of a successor Paying Agent.
(b) Except as otherwise provided in this paragraph (b), the
respective rights and duties of the Trustees and the Paying Agent under this
Agreement shall cease upon termination of this Agreement. The Trustees'
representations, warranties, covenants and obligations to the Paying Agent
under Article IV and Section 5.4 hereof shall survive the termination hereof.
Upon termination of this Agreement, the Paying Agent shall, at the Trustees'
request, promptly deliver to the Trustees or to any successor Paying Agent as
requested by the Trustees (i) copies of all books and
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records maintained by it and (ii) any funds deposited with the Paying Agent by
the Trustees.
6.2 Communications. Except for communications authorized to be made
by telephone pursuant to this Agreement, all notices, requests and other
communications to any party hereunder shall be in writing (including telecopy or
similar writing) and given to such person at its address or telecopy number set
forth below:
If to the Trust,
addressed: CVS Automatic Common Exchange
Security Trust
c/o Xxxxxx X. Xxxxxxx, Managing
Trustee
Xxxxxxx & Associates
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to the Administrator if the duties of the Administrator are being
performed by a Person other than the Person performing the obligations of the
Paying Agent.
If to the Paying Agent,
addressed: ChaseMellon Shareholder Services
000 Xxxx 00xx Xx.
Xxx Xxxx, Xxx Xxxx 00000
Attn: _____________
Telephone: _____________
Telecopier: _____________
or such other address or telecopy number as such party may hereafter specify for
such purpose by notice to the other party. Each such notice, request or
communication shall be effective when delivered at the address specified herein.
Communications shall be given on behalf of the Trust by the Trustees (or by the
Administrator, provided that the Trustees shall not have delivered to the Paying
Agent an
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instrument in writing revoking the authorization of the Administrator to act for
it pursuant hereto) and on behalf of the Paying Agent by a Senior Vice President
or Vice President of the Paying Agent assigned to its Corporate Trust
Department.
6.3 Entire Agreement. This Agreement contains the entire agreement
between the parties relating to the subject matter hereof, and there are no
other representations, endorsements, promises, agreements or understandings,
oral, written or inferred, between the parties relating to the subject matter
hereof.
6.4 No Third Party Beneficiaries. Nothing herein, express or
implied, shall give to any Person, other than the Trustees, the Paying Agent and
their respective successors and assigns, any benefit of any legal or equitable
right, remedy or claim hereunder.
6.5 Amendment; Waiver. (a) This Agreement shall not be deemed or
construed to be modified, amended, rescinded, cancelled or waived, in whole or
in part, except by a written instrument signed by a duly authorized
representative of the party to be charged. The Trustees shall notify the Paying
Agent of any change in the Trust Agreement prior to the effective date of any
such change.
(b) Failure of either party hereto to exercise any right or remedy
hereunder in the event of a breach hereof by the other party shall not
constitute a waiver of any such right or remedy with respect to any subsequent
breach.
6.6 Successors and Assigns. Any corporation into which the Paying
Agent may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Paying Agent shall be a party, shall be the successor Paying Agent hereunder and
under the Trust Agreement without the execution or filing of any paper,
instrument or further act to be done on the part of the parties hereto, provided
that such corporation meets the requirements set forth in the
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Trust Agreement, provided further that the Trustees have given their prior
written consent to the Paying Agent with respect to any such merger, conversion
or consolidation. This Agreement shall be binding upon, inure to the benefit of,
and be enforceable by, the respective successors of each of the Trust and the
Paying Agent. This Agreement shall not be assignable by either the Trustees or
the Paying Agent, without the prior written consent of the other party.
6.7 Severability. If any clause, provision or section hereof shall
be ruled invalid or unenforceable by any court of competent jurisdiction, the
invalidity or unenforceability of such clause, provision or section shall not
affect any of the remaining clauses, provisions or sections hereof.
6.8 Execution in Counterparts. This Agreement may be executed in
several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
6.9 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, without giving effect to
principles of conflicts of law.
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IN WITNESS WHEREOF, the parties hereto have caused this Paying Agent
Agreement to be duly executed and delivered as of the date first above written.
TRUSTEES
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Xxxxxxx X. Xxxxxx III,
as Trustee
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Xxxxx X. X'Xxxxx,
as Trustee
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Xxxxxx X. Xxxxxxx,
as Trustee
ChaseMellon Shareholder Services, L.L.C.
By:
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Name:
Title:
