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EXHIBIT 1
REGISTRATION RIGHTS AGREEMENT
AGREEMENT dated as of ___________, 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:
Definitions
. Definitions. Terms defined in the Agreement and Plan of Merger dated
as of F ebruary 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.
"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.
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"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
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
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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.
. 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.
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REGISTRATION RIGHTS
. 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.
. Demand Registration. 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;
(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.
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(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 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. (e)
1Section .2 . Other Matters In Connection With Registrations.
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.
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(a) 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. (b) 1 Section .3 . 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 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.
ARTICLE 1Section .4 . 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).
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ARTICLE 1Section .5 . 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):
(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 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 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) 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
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certificates representing ownership of the Registrable Securities being sold in
such denominations as shall be requested by the Selling Holders or the
underwriters.
ARTICLE 1Section .6 . Underwriting; Due Diligence. 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.
(a) 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 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.
ARTICLE 1Section .7 . Indemnification and Contribution. 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).
(a) 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
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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).
(b) 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.
(c) 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
Page 17 of 27
10
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.
(d) 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.
ARTICLE 1Section .8 . 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 2 MISCELLANEOUS
ARTICLE 2Section .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.
ARTICLE 2Section .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.
ARTICLE 2Section .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.
ARTICLE 2Section .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 (unless such
contact information in the case of the Holders is updated pursuant to Section
2.03(a)).
ARTICLE 2Section .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.
ARTICLE 2Section .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.
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11
ARTICLE 2Section .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.
ARTICLE 2Section .8 . 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.
ARTICLE 2Section .9 . 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.
ARTICLE 2Section .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.
ARTICLE 2Section .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 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.
ARTICLE 2Section .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.
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12
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:
Title:
Holders
XXXX/CHILMARK FUND, L.P.
By: ZC Limited Partnership, general partner
By: ZC Partnerships, general partner
By: ZC Inc., a partner
By:_________________________________
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:_________________________________
Name: Xxxxxx X. Xxxxx
Title: Chairman
Address: 00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Page 20 of 27
13
Name: Xxxxx X. Xxxxxxxxx
Address: Equity Group Investments, Inc.
0 Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Name: Xxx Xxxx
Address: Equity Group Investments, Inc.
0 Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Name: Xxxx X. Xxxxxxx
Address: X.X. Xxx 000
Xxxx, Xxxx 00000
Name: Xxxxx X. Xxxxxxxx
Address: Luma Corp.
Borghese Investments
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Name: Xxxxxxx X. Xxxxxxxx
Address: The University of North Carolina
at Chapel Hill
000 Xxxxx Xxxx
Xxxxx Xxxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Name: Xxx Xxxxxxxx
Address: Equity Group Investments, Inc.
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Page 21 of 27
14
Name: Xxxxxx X. Xxxxx
Address: Magten Asset Management
Corporation
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Name: Xxx Xxxxx
Address: Ernst & Young
000 0xx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Name: Xxxx X. Xxxxxx
Address: Massachusetts Institute of
Technology
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Name: D. Xxxxxx Xxxxx
Address: 000 Xxxxx Xxxx
Xxxxxxxxxxx, XX 00000
Name: Xxxxxx X. Xxxxxxxxx
Address: Varco International, Inc.
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Name: Xxxxxx X. Xxxxxxx
Address: X.X. Xxx 000
Xxxxxx Xxxxxx, XX 00000
Name: Xxxxx X. Xxxxxxxx
Address: 00 Xxxx Xxxxxxx Xxxx
Xxxxxxxx Xxxxx, XX 00000
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