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Exhibit 8
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STOCKHOLDER AGREEMENT
AGREEMENT dated as of February 6, 1997 between CVS Corporation, a Delaware
corporation ("CVS"), and Xxxx/Chilmark Fund, L.P., a Delaware limited
partnership (the "STOCKHOLDER").
W I T N E S S E T H:
WHEREAS, immediately prior to the execution of this Agreement, CVS, Revco
D.S., Inc., a Delaware corporation (the "COMPANY"), and North Acquisition
Corp., a Delaware corporation ("MERGER SUBSIDIARY"), have entered into an
Agreement and Plan of Merger (as such agreement may hereafter be amended from
time to time, the "MERGER AGREEMENT"), pursuant to which Merger Subsidiary will
be merged with and into the Company (the "MERGER"); and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, CVS has requested that the Stockholder agree, and the Stockholder
has agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual promises,
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound hereby, agree as follows:
SECTION 1. Certain Definitions. Capitalized terms used and not defined
herein have the respective meanings ascribed to them in the Merger Agreement.
For purposes of this Agreement:
(a) "AFFILIATE" shall mean, when used with respect to any Person, any other
Person directly or indirectly controlling, controlled by or under common
control with such Person. As used in this definition, the term "control" means
possession, directly or indirectly, of the power to direct or control the
direction of management or policies of a Person, whether through the ownership
of voting securities, by contract or otherwise. Notwithstanding the foregoing,
"Affiliate" when used with respect to the Stockholder shall exclude any entity
that would otherwise be an Affiliate hereunder but that is not 100%
Beneficially Owned by Xxxxxx Xxxx.
(b) "BENEFICIALLY OWN" OR "BENEFICIAL OWNERSHIP" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
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determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT")), including pursuant to any agreement, arrangement
or understanding, whether or not in writing. Without duplicative counting of
the same securities by the same holder, securities Beneficially Owned by a
Person shall include securities Beneficially Owned by all other Persons with
whom such Person would constitute a "group" within the meaning of Section 13(d)
of the Exchange Act with respect to securities of the same issuer.
(c) "COMPANY COMMON STOCK" shall mean at any time the common stock, $.01
par value, of the Company.
(d) "EXISTING SHARES" shall mean the shares of Company Common Stock
Beneficially Owned by the Stockholder on the date hereof.
(e) "SHARES" shall mean the Existing Shares and any shares of Company
Common Stock and/or other equity securities of the Company acquired by the
Stockholder in any capacity after the date hereof and prior to the termination
of this Agreement, whether upon the exercise of options, warrants or rights, the
conversion or exchange of convertible or exchangeable securities, or by means
of purchase, dividend, distribution, split-up, recapitalization, combination,
exchange of shares or the like, gift, bequest, inheritance or as a successor in
interest in any capacity or otherwise Beneficially Owned by the Stockholder.
SECTION 2. Voting of Company Common Stock. The Stockholder hereby agrees
that at any meeting (whether annual or special and whether or not an adjourned
or postponed meeting) of the holders of Company Common Stock, however called,
or in connection with any written consent of the holders of Company Common
Stock, the Stockholder will appear at the meeting or otherwise cause the Shares
to be counted as present thereat for purposes of establishing a quorum and the
Stockholder shall vote or consent (or cause to be voted or consented) the
Shares held of record or Beneficially Owned by the Stockholder in favor of the
Merger, the execution and delivery by the Company of the Merger Agreement and
the approval and adoption of the terms thereof and each of the other actions
contemplated by the Merger Agreement and this Agreement and any actions
required in furtherance thereof and hereof.
SECTION 3. Covenants, Representations and Warranties of the Stockholder.
The Stockholder hereby represents and warrants to, and agrees with, CVS as
follows:
(a) OWNERSHIP OF SHARES. The Stockholder is the record and Beneficial
Owner of Existing Shares consisting of 13,102,288 shares of Company Common
Stock. on the date hereof, the Existing Shares constitute all of the Shares
owned
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of record or Beneficially Owned by the Stockholder. The Stockholder has
sole voting power (except as provided in the Stockholder's Agreement dated as
of June 1, 1992, by and between Revco and the Stockholder (the "REVCO
STOCKHOLDER AGREEMENT")) and sole power to issue instructions with respect to
the matters set forth in Section 2 hereof, sole power of disposition (except as
provided in the Agreement of Limited Partnership of Xxxx/Chilmark Fund, L.P.
(the "XXXX FUND AGREEMENT")), sole power of conversion, sole power to demand
appraisal rights and sole power to agree to all of the matters set forth in
this Agreement, in each case with respect to all of the Existing Shares with no
limitations, qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement. Upon consummation
of the Merger, the Stockholder will have sole voting power (except as provided
in the Revco Stockholder Agreement) and sole power to issue instructions with
respect to the matters set forth in Section 4 hereof, sole power of disposition
(except as provided in the Xxxx Fund Agreement), sole power of conversion, sole
power to demand appraisal rights and sole power to agree to all of the matters
set forth in this Agreement, in each case with respect to all of the shares of
CVS Common Stock it holds of record or Beneficially Owns with no limitations,
qualifications or restrictions on such rights, subject to applicable securities
laws and the terms of this Agreement.
(b) CORPORATE AUTHORIZATION. This Agreement has been duly and validly
executed and delivered by the Stockholder and constitutes a valid and binding
agreement enforceable against the Stockholder in accordance with its terms
except to the extent (i) such enforcement may be limited by applicable
bankruptcy, insolvency or similar laws affecting creditors rights and (ii) the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(c) NO CONFLICTS. Except for filings, authorizations, consents and
approvals as may be required under the XXX Xxx, xxx 0000 Xxx xxx xxx 0000 Xxx,
(x) no filing with, and no permit, authorization, consent or approval of, any
state or federal governmental body or authority is necessary for the execution
and delivery of this Agreement by the Stockholder and the consummation by the
Stockholder of the transactions contemplated hereby and (ii) none of the
execution and delivery of this Agreement by the Stockholder, the consummation
by the Stockholder of the transactions contemplated hereby or compliance by the
Stockholder with any of the provisions hereof shall (A) conflict with or
result in any breach of the organizational documents of the Stockholder, (B)
result in a violation or breach of, or constitute (with or without notice or
lapse of time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under any of
the terms, conditions or
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provisions of any note, loan agreement, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or other
instrument or obligation of any kind to which the Stockholder is a party or by
which the Stockholder or any of its properties or assets may be bound, or (C)
violate any order, writ, injunction, decree, judgment, statute, law, rule or
regulation applicable to the Stockholder or any of its properties or assets.
(d) NO ENCUMBRANCES. Other than as provided in the Revco Stockholder
Agreement as to voting of the Shares and in the Xxxx Fund Agreement as to
provisions relating to timing of disposition of the Shares by the Stockholder,
and except as applicable in connection with the transactions contemplated
hereby, the Shares and the certificates representing such Shares are now, and
at all times during the term hereof, will be, held by the Stockholder, or by a
nominee or custodian for the benefit of the Stockholder, free and clear of all
liens, claims, security interests, proxies, voting trusts or agreements,
understandings or arrangements or any other encumbrances whatsoever, except for
any such encumbrances or proxies arising hereunder.
(e) NO FINDER'S FEES. Other than as contemplated by the Merger Agreement
with respect to fees payable by the Company, no broker, investment banker,
financial advisor or other Person is entitled to any broker's, finder's,
financial adviser's or other similar fee or commission in connection with the
transactions contemplated hereby based upon arrangements made by or on behalf
of the Stockholder.
(f) NO SOLICITATION. The Stockholder shall not, and shall cause its
Affiliates and officers, directors, employees, investment bankers, consultants
and other agents of the Stockholder and such Affiliates (such Affiliates,
officers, directors, employees, investment bankers, consultants and other
agents of any Person are hereinafter collectively referred to as the
"REPRESENTATIVES" of such Person) not to, directly or indirectly, take any
action to initiate, solicit, encourage or facilitate the making of any
Acquisition Proposal or any inquiry with respect thereto, or engage in
discussions or negotiations with any Person (other than CVS or any of its
Affiliates or Representatives) relating to any Acquisition Proposal or disclose
any non-public information relating to Revco or any Subsidiary of Revco, or
afford access to the properties, books or records of revco or any subsidiary of
Revco, to any Person that has made any Acquisition Proposal. The Stockholder
shall notify CVS orally and in writing of any offers, proposals or inquiries
received by the Stockholder relating to the purchase or acquisition by any
Person of the Shares and of any Acquisition Proposal actually known to the
Stockholder (including in each case the material terms and conditions thereof
and the identity of the Person making it), within 24 hours of the receipt
thereof. The Stockholder shall, and shall cause its Representatives to,
immediately cease and
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cause to be terminated any and all existing activities, discussions
or negotiations, if any, with any parties conducted heretofore with respect to
any Acquisition Proposal, other than discussions or negotiations with CVS and
its Affiliates. For purposes of the foregoing, Representatives of the
Stockholder will not include investment bankers or consultants that approach or
contact the Stockholder, the Company or any other Person, without having been
solicited by the Stockholder, regarding such an offer, proposal or inquiry so
long as the Stockholder does not thereafter encourage or retain such investment
bankers or consultants to pursue such offer, proposal or inquiry.
Notwithstanding the restrictions set forth in this Section 3(f), each of the
Company and any Person who is an officer or director of the Company may take
any action consistent with the terms of the Merger Agreement.
(g) RESTRICTION ON TRANSFER, PROXIES; NON-INTERFERENCE. The
Stockholder shall not, directly or indirectly: (i) offer for sale, sell,
transfer, tender, pledge, encumber (other than by operation of law), assign or
otherwise dispose of, or enter into any contract, option or other arrangement
or understanding with respect to or consent to the offer for sale, sale,
transfer, tender, pledge, encumbrance, assignment or other disposition of, any
or all of the Shares or any interest therein; (ii) except as contemplated by
this Agreement, grant any proxies or powers of attorney, deposit the Shares
into a voting trust or enter into a voting agreement with respect to the
Shares; or (iii) take any action that would make any representation or
warranty of the Stockholder contained herein untrue or incorrect or would
result in a breach by the Stockholder of its obligations under this Agreement
or a breach by the Company of its obligations under the Merger Agreement or the
effect of which would be inconsistent or violative of any provision or
agreement contained in this Agreement.
(h) RELIANCE BY CVS. The Stockholder understands and acknowledges that
CVS is entering into the Merger Agreement in reliance upon the Stockholder's
execution and delivery of this Agreement.
SECTION 4. Representations and Warranties of CVS. CVS hereby represents
and warrants to the stockholder as follows:
(a) ORGANIZATION. CVS is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, has all requisite
corporate power and authority to execute and deliver this agreement and perform
its obligations hereunder. The execution and delivery by CVS of this Agreement
and the performance by CVS of its obligations hereunder have been duly and
validly authorized by the Board Of Directors of CVS and no other corporate
proceedings on the part of CVS are necessary to authorize the execution,
delivery
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or performance of this agreement or the consummation of the transactions
contemplated hereby.
(b) CORPORATE AUTHORIZATION. This Agreement has been duly and validly
executed and delivered by CVS and constitutes a valid and binding agreement of
CVS enforceable against CVS in accordance with its terms except to the extent
(i) such enforcement may be limited by applicable bankruptcy, insolvency or
similar laws affecting creditors rights and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(c) NO CONFLICTS. Except for filings, authorizations, consents and
approvals as may be required under the XXX Xxx, xxx 0000 Xxx xxx xxx 0000 Xxx,
(x) no filing with, and no permit, authorization, consent or approval of, any
state or federal governmental body or authority is necessary for the execution
and delivery of this Agreement by CVS and the consummation by CVS of the
transactions contemplated hereby and (ii) none of the execution and delivery of
this Agreement by CVS, the consummation by CVS of the transactions contemplated
hereby or compliance by CVS with any of the provisions hereof shall (A)
conflict with or result in any breach of the certificate of incorporation or
by-laws of CVS, (B) result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, material modification or
acceleration) under any of the terms, conditions or provisions of any note,
loan agreement, bond, mortgage, indenture, license, contract, commitment,
arrangement, understanding, agreement or other instrument or obligation of any
kind to which CVS is a party or its properties or assets may be bound, or (C)
violate any order, writ, injunction, decree, judgment, statute, law, rule or
regulation applicable to CVS or any of its properties or assets.
(d) NO FINDER'S FEE. Except for Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation and CS First Boston Corporation whose fees will be paid by CVS, no
broker, investment banker, financial adviser or other person is entitled to any
broker's, finder's, financial adviser's or other similar fee or commission in
connection with the transactions contemplated hereby based upon arrangements
made by or on behalf of CVS.
SECTION 5. Stop Transfer; Legend. (a) The Stockholder agrees with, and
covenants to, CVS that the Stockholder shall not request that the Company
register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Shares unless such transfer is
made in compliance with this Agreement.
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(b) In the event of a stock dividend or distribution, or any change in the
Company Common Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like other than
pursuant to the Merger, the term "SHARES" shall be deemed to refer to and
include the shares of Company Common Stock as well as all such stock dividends
and distributions and any shares into which or for which any or all of the
Shares may be changed or exchanged and appropriate adjustments shall be made to
the terms and provisions of this Agreement.
(c) The Stockholder will, prior to the Effective Time, duly execute and
deliver to CVS The Affiliate's letter contemplated in Section 5.11 of the
Merger Agreement substantially in the form of Exhibit C-3 to the Merger
Agreement.
(d) The Stockholder shall promptly after the date hereof surrender to the
Company all certificates representing the Shares, and the Company shall place
the following legend on such certificates:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO A STOCKHOLDER AGREEMENT DATED AS OF FEBRUARY
6, 1997 BY AND BETWEEN CVS CORPORATION AND XXXX/CHILMARK
FUND, L.P. WHICH AMONG OTHER THINGS RESTRICTS THE
TRANSFER AND VOTING THEREOF."
SECTION 6. Termination. The provisions of this Agreement shall
terminate upon the earlier to occur of (i) the Effective Time and (ii) the
termination of the Merger Agreement in accordance with its terms.
SECTION 7. Confidentiality. The Stockholder recognizes that successful
consummation of the transactions contemplated by this Agreement may be
dependent upon confidentiality with respect to the matters referred to herein.
in this connection, pending public disclosure thereof, the Stockholder hereby
agrees not to disclose or discuss such matters with anyone not a party to this
Agreement (other than to the Company and to its and the Company's counsel and
advisors) without the prior written consent of CVS, except for filings required
pursuant to the Exchange Act and the rules and regulations thereunder or
disclosures its counsel advises are necessary in order to fulfill its
obligations imposed by law, in which event the Stockholder shall give prior
notice of such disclosure to CVS as promptly as practicable so as to enable CVS
to seek a protective order from a court of competent jurisdiction with respect
thereto.
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SECTION 8. Disclosure. (a) The Stockholder hereby agrees to permit CVS to
publish and disclose in the Form S-4 and the CVS Proxy Statement (including all
documents, exhibits and schedules filed with the SEC), and any press release or
other disclosure document which CVS's counsel advises are necessary or
desirable in connection with the Merger and any transactions related thereto,
the Stockholder's identity and ownership of Company Common Stock or shares of
CVS Common Stock, as the case may be, and the nature of its commitments,
arrangements and understandings under this Agreement.
(b) The Stockholder hereby agrees to permit Revco to publish and
disclose in the Revco Proxy Statement (including all documents, exhibits and
schedules filed with the SEC), and any press release or other disclosure
document which Revco, in its sole discretion, determines to be necessary or
desirable in connection with the Merger and any transactions related thereto,
the Stockholder's identity and ownership of Company Common Stock or shares of
CVS Common Stock, as the case may be, and the nature of its commitments,
arrangements and understandings under this Agreement.
SECTION 9. Miscellaneous. (a) ENTIRE AGREEMENT. This agreement, the
Merger Agreement and the Registration Rights Agreement referred to therein
constitute the entire agreement between the parties with respect to the subject
matter hereof and thereof and supersedes all other prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof and thereof.
(b) BINDING AGREEMENT. The Stockholder agrees that this Agreement and
the obligations hereunder shall attach to the Shares and shall be binding upon
any Person to which legal or Beneficial Ownership of such Shares shall pass,
whether by operation of law or otherwise, including, without limitation, the
Stockholder's heirs, distributees, guardians, administrators, executors, legal
representatives, or successors, partners or other transferees (for value or
otherwise) and any other successors in interest. Notwithstanding any transfer
of Shares, the transferor shall remain liable for the performance of all
obligations under this Agreement of the transferor. Nothing in this clause (b)
shall permit any transfer of Shares otherwise prohibited by the provisions of
this Agreement.
(c) 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 party; provided that CVS may assign, in its sole discretion, its
rights and obligations hereunder to any direct or indirect wholly owned
subsidiary of CVS, but no such assignment shall relieve CVS of its obligations
hereunder if such assignee does not perform such obligations.
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(d) 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 parties
hereto.
(e) 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 (with
a confirmation copy sent for next day delivery via courier service, such as
Federal Express), 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 following addresses:
If to Stockholder: Xxxx/Chilmark Fund, L.P.
Two CVS Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
with a copy to: Xxxxxxxxx & Xxxxxxxxxxx
0 Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to CVS: CVS Corporation
Xxx XXX Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx
Telephone: 000-000-0000
Telecopy No.: 000-000-0000
with a copy to: Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
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