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This excerpt taken from the CVS 8-K filed Aug 13, 2008. Healthcare
Information Laws”).
(g) The
Company and each of its Subsidiaries (i) are in material compliance with
all Applicable Laws and any other applicable guidance relating to the operation
of pharmacies, the repackaging of drug products, the wholesale distribution of
prescription drugs or controlled substances, and the dispensing of prescription
drugs or controlled substances, (ii) are in material compliance with all
Applicable Laws and any other applicable guidance relating to the labeling,
packaging, advertising, or adulteration of prescription drugs or
controlled
28
substances
and (iii) are not subject to any material sanction or other material
adverse action by any Governmental Authority for the matters described above in
clause (i) and (ii).
(h) The
Company and each of its Subsidiaries has filed all material regulatory reports,
schedules, statements, documents, filings, submissions, forms, registrations and
other documents, together with any amendments required to be made with respect
thereto, that each was required to file with any Governmental Authority,
including state health and insurance regulatory authorities and any applicable
Federal regulatory authorities, and have timely paid all material fees and
assessments due and payable in connection therewith.
(i) All
premium rates, rating plans and policy terms established and used by the Company
and each of its Subsidiaries that are required to be filed with and/or approved
by Governmental Authorities have been in all material respects so filed and/or
approved, the premiums charged conform in all material respects to the premiums
so filed and/or approved and comply in all material respects with the Applicable
Laws, and to the Company’s knowledge, no such premiums are subject to any
material investigation by any Governmental Authority.
(j) The
Company and its Subsidiaries have implemented policies, procedures and/or
programs designed to assure that its agents and employees are in material
compliance within all Applicable Laws, including laws, regulations, directives
and opinions of Governmental Authorities relating to advertising, licensing,
marketing and sales practices. Each of the Company and its
Subsidiaries and, to the knowledge of the Company, each broker, producer,
consultant, agent or third-party service provider acting on behalf of the
Company or any of its Subsidiaries, has marketed, administered, sold and issued
insurance and health care benefit products in compliance in all material
respects with all Applicable Laws.
Section
5.15. Taxes.
(a) Except as would not reasonably be expected to have, individually or in the
aggregate, a Company Material Adverse Effect, (i) each Tax Return required by
Applicable Law to be filed with any Taxing Authority by, or on behalf of, the
Company or any of its Subsidiaries has been filed when due in accordance with
all Applicable Laws and (ii) each such Tax Return is true and
complete.
(b) Except
as would not reasonably be expected to have, individually or in the aggregate, a
Company Material Adverse Effect, (i) the Company and each of its Subsidiaries
has timely paid to the appropriate Taxing Authority all Taxes that are required
to be paid by any of them, including any Taxes required to be withheld from
amounts owing to any employee, partner, independent contractor,
29
creditor,
stockholder or with respect to any payments of royalties, and (ii) adequate
accruals and reserves (as determined in accordance with GAAP) have been or will
be established for Taxes attributable to taxable periods (or portions thereof)
commencing on the day following the Company Balance Sheet Date.
(c) The
consolidated federal income Tax Returns for the affiliated group of which the
Company is the common parent through the Tax year ended January 30, 2003 have
been examined and the examinations have been closed or are Tax Returns with
respect to which the applicable period for assessment under Applicable Law,
after giving effect to extensions or waivers, has expired.
(d) Except
as would not reasonably be expected to have, individually or in the aggregate, a
Company Material Adverse Effect, there is no written claim, audit, suit or other
administrative or court proceeding now pending or, to the Company’s knowledge,
threatened against or with respect to the Company or its Subsidiaries in respect
of any federal or state income or other material Tax, and no written notice
thereof has been received.
(e) There
are no Liens for Taxes on any of the assets of the Company or any of its
Subsidiaries other than Permitted Liens.
(f) During
the two-year period ending on the date hereof, neither the Company nor any of
its Subsidiaries was a distributing corporation or a controlled corporation in a
transaction intended to be governed by Section 355 of the Code.
(g) Neither
the Company nor any of its Subsidiaries is, or has been, a party to any material
written Tax Sharing Agreement (other than an agreement exclusively between or
among the Company and its Subsidiaries) pursuant to which it will have any
obligation to make any payments for Taxes after the Effective Time.
(h) Neither
the Company nor any of its Subsidiaries (i) has participated in a “listed
transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2)
or (ii) has filed, or currently expects to file, an Internal Revenue
Service Form 8886.
(i) “ This excerpt taken from the CVS 8-K filed Nov 2, 2006. Healthcare Information Laws”), except for failures to comply with any of the foregoing that would not
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Caremark.
(e) Caremark and each Caremark Subsidiary (i) are in compliance with all Applicable Laws and any other applicable guidance relating to the operation of pharmacies, the repackaging of drug products, the wholesale distribution of prescription drugs or controlled substances, and the dispensing of prescription drugs or controlled substances, (ii) are in compliance with all Applicable Laws and any other applicable guidance relating to the labeling, packaging, advertising, or adulteration of prescription drugs or controlled substances and (iii) are not subject to any sanction or other adverse action by any Governmental Authority for the matters described above in clauses (i) and (ii), except for such failures to comply or such sanctions described above in clauses (i) through (iii) that would 23 not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Caremark. Section 4.14. Litigation. There is no action, suit, investigation or proceeding (or any reasonable basis therefor) pending against, or, to the knowledge of Caremark, threatened against or affecting, Caremark, any of its Subsidiaries, any present or former Designated Officer or director of Caremark or any of its Subsidiaries or any Person for whom Caremark or any Subsidiary may be liable or any of their respective properties before any court or arbitrator or before or by, before or with any Governmental Authority (including any of the Food and Drug Administration, Department of Health and Human Services, the Drug Enforcement Administration, state Medicaid agencies, state pharmacy boards, and other federal and state Governmental Authorities with jurisdiction over the dispensing or distribution of pharmaceutical products or over the provision of health care items or services) that, if determined or resolved adversely to Caremark, would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Caremark or that, as of the date of this Agreement, in any manner challenges or seeks to prevent, enjoin, alter or materially delay the Merger or any of the other transactions contemplated hereby. Section 4.15. Finders’ Fees. Except for UBS Securities LLC and J.P. Morgan Securities Inc., a copy of whose engagement agreements have been provided to CVS, there is no investment banker, broker, finder or other intermediary that has been retained by or is authorized to act on behalf of Caremark or any of its Subsidiaries who might be entitled to any fee or commission from Caremark or any of its Affiliates in connection with the transactions contemplated by this Agreement. Section 4.16. Opinions of Financial Advisor. Prior to the execution of this Agreement, the Board of Directors of Caremark has received the opinion of each of UBS Securities LLC and J.P. Morgan Securities Inc., financial advisors to Caremark, to the effect that, as of the date of such opinion and, based on the assumptions, qualifications and limitations contained therein, the Exchange Ratio is fair from a financial point of view, to holders of Caremark Stock. Section 4.17. Taxes. (a) Each Tax Return required by Applicable Law to be filed with any Taxing Authority by, or on behalf of, Caremark or any of its Subsidiaries has been filed when due in accordance with all Applicable Laws, and each such Tax Return is, or shall be at the time of filing, true and complete in all respects, excluding in each case any items or matters that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on Caremark. (b) Excluding in each case any items or matters that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on Caremark, (i) Caremark and each of its Subsidiaries has paid (or has had paid on its behalf) or has withheld and remitted to the appropriate 24 Taxing Authority all Taxes shown as due on all Tax Returns that have been filed, (ii) the accruals and reserves with respect to Taxes (other than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the Caremark Balance Sheet are adequate (as determined in accordance with GAAP) to cover all Taxes accruing or payable with respect to taxable periods (or portions thereof) ending on or before the Caremark Balance Sheet Date and (iii) adequate accruals and reserves (as determined in accordance with GAAP) have been or will be established for Taxes attributable to taxable periods (or portions thereof) commencing on the day following the Caremark Balance Sheet Date. (c) The consolidated federal income Tax Returns for the affiliated group of which Caremark is the common parent through the Tax year ended December 31, 1995 have been examined and the examinations have been closed or are Tax Returns with respect to which the applicable period for assessment under Applicable Law, after giving effect to extensions or waivers, has expired. (d) There is no claim, audit or suit now pending or, to Caremark’s knowledge, threatened against or with respect to Caremark or its Subsidiaries in respect of any federal or state income Tax; additionally, no claim or suit regarding an amount of Tax is now pending in connection with (i) any other Tax Return or (ii) circumstances where no Tax Return has been filed, excluding in each case any items or matters that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on Caremark. (e) During the five-year period ending on the date hereof, neither Caremark nor any of its Subsidiaries was a distributing corporation or a controlled corporation in a transaction intended to be governed by Section 355 of the Code. (f) Neither Caremark nor any of its Subsidiaries has participated in a “reportable transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(1). (g) “ This excerpt taken from the CVS DEFA14A filed Nov 2, 2006. Healthcare Information Laws”), except for failures to comply with any of the foregoing that would not
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Caremark.
(e) Caremark and each Caremark Subsidiary (i) are in compliance with all Applicable Laws and any other applicable guidance relating to the operation of pharmacies, the repackaging of drug products, the wholesale distribution of prescription drugs or controlled substances, and the dispensing of prescription drugs or controlled substances, (ii) are in compliance with all Applicable Laws and any other applicable guidance relating to the labeling, packaging, advertising, or adulteration of prescription drugs or controlled substances and (iii) are not subject to any sanction or other adverse action by any Governmental Authority for the matters described above in clauses (i) and (ii), except for such failures to comply or such sanctions described above in clauses (i) through (iii) that would 23 not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Caremark. Section 4.14. Litigation. There is no action, suit, investigation or proceeding (or any reasonable basis therefor) pending against, or, to the knowledge of Caremark, threatened against or affecting, Caremark, any of its Subsidiaries, any present or former Designated Officer or director of Caremark or any of its Subsidiaries or any Person for whom Caremark or any Subsidiary may be liable or any of their respective properties before any court or arbitrator or before or by, before or with any Governmental Authority (including any of the Food and Drug Administration, Department of Health and Human Services, the Drug Enforcement Administration, state Medicaid agencies, state pharmacy boards, and other federal and state Governmental Authorities with jurisdiction over the dispensing or distribution of pharmaceutical products or over the provision of health care items or services) that, if determined or resolved adversely to Caremark, would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Caremark or that, as of the date of this Agreement, in any manner challenges or seeks to prevent, enjoin, alter or materially delay the Merger or any of the other transactions contemplated hereby. Section 4.15. Finders’ Fees. Except for UBS Securities LLC and J.P. Morgan Securities Inc., a copy of whose engagement agreements have been provided to CVS, there is no investment banker, broker, finder or other intermediary that has been retained by or is authorized to act on behalf of Caremark or any of its Subsidiaries who might be entitled to any fee or commission from Caremark or any of its Affiliates in connection with the transactions contemplated by this Agreement. Section 4.16. Opinions of Financial Advisor. Prior to the execution of this Agreement, the Board of Directors of Caremark has received the opinion of each of UBS Securities LLC and J.P. Morgan Securities Inc., financial advisors to Caremark, to the effect that, as of the date of such opinion and, based on the assumptions, qualifications and limitations contained therein, the Exchange Ratio is fair from a financial point of view, to holders of Caremark Stock. Section 4.17. Taxes. (a) Each Tax Return required by Applicable Law to be filed with any Taxing Authority by, or on behalf of, Caremark or any of its Subsidiaries has been filed when due in accordance with all Applicable Laws, and each such Tax Return is, or shall be at the time of filing, true and complete in all respects, excluding in each case any items or matters that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on Caremark. (b) Excluding in each case any items or matters that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on Caremark, (i) Caremark and each of its Subsidiaries has paid (or has had paid on its behalf) or has withheld and remitted to the appropriate 24 Taxing Authority all Taxes shown as due on all Tax Returns that have been filed, (ii) the accruals and reserves with respect to Taxes (other than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the Caremark Balance Sheet are adequate (as determined in accordance with GAAP) to cover all Taxes accruing or payable with respect to taxable periods (or portions thereof) ending on or before the Caremark Balance Sheet Date and (iii) adequate accruals and reserves (as determined in accordance with GAAP) have been or will be established for Taxes attributable to taxable periods (or portions thereof) commencing on the day following the Caremark Balance Sheet Date. (c) The consolidated federal income Tax Returns for the affiliated group of which Caremark is the common parent through the Tax year ended December 31, 1995 have been examined and the examinations have been closed or are Tax Returns with respect to which the applicable period for assessment under Applicable Law, after giving effect to extensions or waivers, has expired. (d) There is no claim, audit or suit now pending or, to Caremark’s knowledge, threatened against or with respect to Caremark or its Subsidiaries in respect of any federal or state income Tax; additionally, no claim or suit regarding an amount of Tax is now pending in connection with (i) any other Tax Return or (ii) circumstances where no Tax Return has been filed, excluding in each case any items or matters that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on Caremark. (e) During the five-year period ending on the date hereof, neither Caremark nor any of its Subsidiaries was a distributing corporation or a controlled corporation in a transaction intended to be governed by Section 355 of the Code. (f) Neither Caremark nor any of its Subsidiaries has participated in a “reportable transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(1). (g) “ | EXCERPTS ON THIS PAGE:
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