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This excerpt taken from the CVS 8-K filed Sep 11, 2009. Agreement”) is to confirm the
agreement concerning the purchase of the Notes from the Company by the
Underwriters.
1. Representations, Warranties and
Agreements of the Company. The Company represents and warrants
to, and agrees with, each Underwriter that:
(a) An
“automatic shelf registration statement” (as defined in Rule 405 under the
Securities Act of 1933, as amended (the “ This excerpt taken from the CVS 8-K filed Mar 13, 2009. Agreement”) between the
Company and you, as Representatives of the several underwriters named in
Schedule I thereto (the “ This excerpt taken from the CVS 8-K filed Sep 10, 2008. Agreement”) is to confirm the
agreement concerning the purchase of the Notes from the Company by the
Underwriters.
1. Representations, Warranties and
Agreements of the Company. The Company represents and warrants
to, and agrees with, each Underwriter that:
(a) An
“automatic shelf registration statement” (as defined in Rule 405 under the
Securities Act of 1933, as amended (the “ This excerpt taken from the CVS 8-K filed Aug 13, 2008. Agreement”).
Notwithstanding
any other provision of the Agreement, Merger Subsidiary shall not be required to
accept for payment or pay for any Shares, and, only after complying with any
obligation to extend the expiration date of the Offer pursuant to Section
2.01(a) of the Agreement, may terminate the Offer, if:
(a) prior
to the expiration of the Offer, (i) the Minimum Condition shall not have
been satisfied or (ii) the applicable waiting period (and any extension
thereof) under the HSR Act shall not have expired or been terminated;
or
(b) at
any time on or after the date of the Agreement and prior to the expiration of
the Offer, any of the following conditions exists:
(i) there
shall be instituted or pending any action or proceeding (or any investigation or
other inquiry that is reasonably likely to result in such action or proceeding)
by any Governmental Authority challenging or seeking to make illegal, to delay
materially or otherwise directly or indirectly to restrain or prohibit the
making of the Offer, the acceptance for payment of or payment for some or all of
the Shares by Parent or Merger Subsidiary or the consummation of the
Merger;
(ii) there
shall have been any action taken, or any Applicable Law shall have been
proposed, enacted, enforced, promulgated, issued or deemed applicable to the
Offer or the Merger, by any Governmental Authority, other than the application
of the waiting period provisions of the HSR Act to the Offer or the Merger, that
would or is reasonably likely, directly or indirectly, to make illegal, to delay
materially or otherwise directly or indirectly to restrain or prohibit the
making of the Offer, the acceptance for payment of or payment for some or all of
the Shares by Parent or Merger Subsidiary or the consummation of the
Merger;
(iii) (A)
the representations and warranties of the Company contained in any of Sections
5.01, 5.02, 5.03, 5.05(a) or 5.21 of the Agreement shall not be true and correct
in all material respects at and as of immediately prior to the expiration of the
Offer as if made at and as of such time (other than such representation and
warranty that by their terms
address
matters only as of another specified time, which shall be true and correct in
all material respects only as of such time) or (B) the other representations and
warranties of the Company contained in the Agreement (disregarding all
materiality and Company Material Adverse Effect qualifications contained
therein) shall not be true and correct at and as of immediately prior to the
expiration of the Offer as if made at and as of such time (other than
representations and warranties that by their terms address matters only as of
another specified time, which shall be true and correct only as of such time),
except, in the case of clause (B) only, for such matters as have not had and
would not reasonably be expected to have, individually or in the aggregate, a
Company Material Adverse Effect;
(iv) the
Company shall have breached or failed to perform in all material respects any of
its covenants or obligations to be performed or complied with by it under the
Agreement prior to such time;
(v) the
Company shall have failed to deliver to Parent a certificate signed by an
executive officer of the Company dated as of the date on which the Offer expires
certifying that the conditions specified in clauses (iii) and (iv) of this
paragraph (b) do not exist; or
(vi) the
Agreement shall have been terminated in accordance with its terms.
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