As filed with the Securities and Exchange Commission on April 3, 1998.
Registration No.
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_____________________
CVS CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Delaware 05-0494040
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation) Identification Number)
One CVS Drive
Woonsocket, Rhode Island 02895
(Address, Including Zip Code, of Principal Executive Offices)
_____________________
ARBOR DRUGS, INC. 1996 STOCK OPTION PLAN
ARBOR DRUGS, INC. AMENDED AND RESTATED STOCK OPTION PLAN
(Full Title of the Plans)
______________________
Charles C. Conaway
Executive Vice President and Chief Financial Officer
CVS Corporation
One CVS Drive
Woonsocket, RI 02895
(401) 765-1500
(Name, Address and Telephone Number, including Area Code, of Agent for Service)
____________________
CALCULATION OF REGISTRATION FEE
==============================================================================
Proposed Proposed
Title of Maximum Maximum
Security Amount Offering Aggregate Amount of
To Be To Be Price Per Offering Registration
Registered Registered(1) Share (2) Price (2) Fee
______________________________________________________________________________
Common Stock 2,657,668 $28.44 $75,584,078 $22,298
($0.01 par value) Shares
______________________________________________________________________________
(1) Plus an indeterminate number of additional shares which may be offered and
issued to prevent dilution resulting from stock splits, stock dividends or
similar transactions.
(2) The 2,657,668 shares are issuable under the Arbor Drugs, Inc. 1996
Stock Option Plan and the Arbor Drugs, Inc. Amended and Restated Stock
Option Plan. The proposed maximum aggregate offering price is based upon the
weighted average exercise price of the outstanding options.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents By Reference
CVS Corporation ("CVS") hereby incorporates, or will be deemed
to have incorporated, herein by reference the following documents:
(1) The CVS Annual Report on Form 10-K for the fiscal year ended
December 31, 1997;
(2) The CVS Proxy Statement filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), on April 1,
1998;
(3) All other reports filed by CVS pursuant to Section 13(a) or
15(d) of the Exchange Act, since December 31, 1996;
(4) The description of the CVS Common Stock contained in the CVS
Registration Statement on Form 8-B filed under the Exchange Act on
November 5, 1996; and
(5) All documents filed by CVS pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered herein have been
sold or which deregisters all securities then remaining unsold.
Item 6. Indemnification of Officers And Directors
Exculpation. Section 102(b)(7) of the Delaware General
Corporation Law (the "Delaware Law") permits a corporation to include in its
certificate of incorporation a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that such
provision may not eliminate or limit the liability of a director for any
breach of the director's duty of loyalty to the corporation or its
stockholders, for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, for the payment of
unlawful dividends, or for any transaction from which the director derived an
improper personal benefit.
The CVS Certificate of Incorporation limits the personal
liability of a director to CVS and its stockholders for monetary damages for a
breach of fiduciary duty as a director to the fullest extent permitted by law.
Indemnification. Section 145 of the Delaware Law permits a
corporation to indemnify any of its directors or officers who was or is a
party, or is threatened to be made a party to any third party proceeding by
reason of the fact that such person is or was a director or officer of the
corporation, against expenses (including attorney's fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding, if such person acted in
good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reason to believe that such person's
conduct was unlawful. In a derivative action, i.e., one by or in the right of
a corporation, the corporation is permitted to indemnify directors and
officers against expenses (including attorneys' fees) actually and reasonably
incurred by them in connection with the defense or settlement of an action or
suit if they acted in good faith and in a manner that they reasonably believed
to be in or not opposed to the best interests of the corporation, except that
no indemnification shall be made if such person shall have been adjudged
liable to the corporation, unless and only to the extent that the court in
which the action or suit was brought shall determine upon application that the
defendant directors or officers are fairly and reasonably entitled to
indemnity for such expenses despite such adjudication of liability.
The CVS Certificate of Incorporation provides for
indemnification of directors and officers of CVS against liability they may
incur in their capacities as such to the fullest extent permitted under the
Delaware Law.
Insurance. CVS has in effect Directors and Officers Liability
Insurance with a limit of $100,000,000 and pension trust liability insurance
with a limit of $50,000,000. The Directors and Officers Liability Insurance
was purchased in layers from National Union Fire Insurance Company of
Pittsburgh, Pennsylvania; Federal Insurance Company of Warren, New Jersey;
Royal Indemnity Company of Charlotte, North Carolina; Continental Casualty
Insurance Company of Chicago, Illinois; St. Paul Mercury Insurance Company of
St. Paul, Minnesota; and Reliance Insurance Company of Philadelphia,
Pennsylvania. The pension trust liability insurance was purchased in layers
from Federal Insurance Company and National Union Fire Insurance Company. The
pension trust liability insurance covers actions of directors and officers as
well as other employees with fiduciary responsibilities under ERISA.
Arbor Directors and Officers. The Agreement and Plan of Merger
dated as of February 8, 1998, as amended as of March 2, 1998 (the "Merger
Agreement"), among CVS, Arbor Drugs, Inc. ("Arbor"), and Red Acquisition, Inc.,
a wholly-owned subsidiary of CVS, provides that after the Effective Time (as
defined in the Merger Agreement), CVS will cause Arbor to indemnify (including
the payment of reasonable fees and expenses of legal counsel) each person who
was a director or officer of Arbor at or prior to the date of the Merger
Agreement to the fullest extent permitted by law for damages and liabilities
arising out of facts and circumstances occurring at or prior to the Effective
Time. The Merger Agreement also provides that, for a period of six years
after the Effective Time, CVS will maintain Arbor's existing policies of
directors' and officers' liability insurance as in effect on February 8, 1998
(provided that CVS may substitute policies with reputable and financially
sound carriers having at least the same coverage and amounts and containing
terms and conditions that are no less advantageous to the covered persons)
with respect to facts or circumstances occurring at or prior to the Effective
Time; provided that if the aggregate annual premium for such insurance during
such six-year period exceeds 200% of the aggregate annual premium paid by
Arbor as of February 8, 1998 for such insurance, then CVS will cause Arbor to
provide the most advantageous directors' and officers' insurance coverage then
available for an annual premium equal to such 200% of such aggregate annual
premium in effect as of February 8, 1998. Pursuant to this requirement of the
Merger Agreement, CVS has purchased, effective through April 1, 2004,
Executive Liability and Indemnification Insurance with a limit of $10,000,000
and Outside Directorship Liability Insurance with a limit of $5,000,000. The
insurance was purchased from Federal Insurance Company.
Item 8. Exhibits
Exhibit
Number Description
------- -----------
5 Opinion of Davis Polk & Wardwell regarding the
validity of the securities being registered.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Davis Polk & Wardwell (included in the
opinion filed as Exhibit 5 to this Registration
Statement).
24 Powers of Attorney.
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
registration statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high and of
the estimated maximum offering range may be reflected in
the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in
the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the registration statement or any material
change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3, Form S-8 or Form F-3,
and the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d)
of the Securities Exchange Act of 1934) that is incorporated by reference in
the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication
of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Woonsocket, State of Rhode Island,
on April 3, 1998.
CVS CORPORATION
(Registrant)
Date: April 3, 1998 By: /s/ Charles C. Conaway
-------------------------
Charles C. Conaway
Executive Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons on
behalf of the Registrant in the capacities and on the dates indicated.
<TABLE>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* Chairman of the Board, Chief Executive April 3, 1998
- ------------------------------ Officer and Director (Principal Executive
(Stanley P. Goldstein) Officer)
/s/ Charles C. Conaway Executive Vice President and Chief April 3, 1998
- ------------------------------ Financial Officer (Principal Financial and
(Charles C. Conaway) Accounting Officer)
* Director April 3, 1998
------------------------------
(Eugene Applebaum)
* Director April 3, 1998
- ------------------------------
(Allan J. Bloostein)
* Director April 3, 1998
- ------------------------------
(W. Don Cornwell)
* Director April 3, 1998
- ------------------------------
(Thomas P. Gerrity)
* Director April 3, 1998
- ------------------------------
(William H. Joyce)
* Director April 3, 1998
- ------------------------------
(Terry R. Lautenbach)
* Director April 3, 1998
- ------------------------------
(Terrence Murray)
* Director April 3, 1998
- ------------------------------
(Sheli Rosenberg)
* Vice Chairman of the Board, Chief April 3, 1998
- ------------------------------ Operating Officer and Director
(Thomas M. Ryan)
* Director April 3, 1998
- ------------------------------
(Ivan G. Seidenberg)
* Director April 3, 1998
- ------------------------------
(Patricia Carry Stewart)
* Director April 3, 1998
- ------------------------------
(Thomas Thorsen)
* Director April 3, 1998
- ------------------------------
(M. Cabell Woodward, Jr.)
/s/ Charles C. Conaway April 3, 1998
- ------------------------------
(Charles C. Conaway)
Attorney-in-Fact
</TABLE>
* An asterisk denotes execution by Charles C. Conaway as Attorney-in-Fact.
EXHIBIT 5
[Letterhead of Davis Polk & Wardwell]
April 3, 1998
CVS Corporation
One CVS Drive
Woonsocket, RI 02895
Ladies and Gentlemen:
We have acted as special counsel to CVS Corporation ("CVS") in
connection with CVS' Registration Statement on Form S-8 (the "Registration
Statement") filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Securities Act"), relating to the
registration by CVS of shares (the "CVS/Arbor Plan Shares"), of CVS Common
Stock, par value $.01 per share, to be issued upon exercise of Adjusted
Options that replace Stock Options of Arbor Drugs, Inc. ("Arbor") granted under
Arbor's 1996 Stock Option Plan and Arbor's Amended and Restated Stock Option
Plan pursuant to Section 1.04 of the Agreement and Plan of Merger dated as of
February 8, 1998, as amended as of March 2, 1998 (the "Merger Agreement"),
among CVS, Arbor and Red Acquisition, Inc. Capitalized terms used herein and
not otherwise defined have the meanings ascribed thereto in the Merger
Agreement.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates and other instruments, and have conducted such other
investigations of fact and law, as we have deemed necessary or advisable for
the purposes of this opinion.
In rendering this opinion we have assumed that prior to the
issuance of any of the CVS/Arbor Plan Shares the Registration Statement, as
then amended, will have become effective under the Securities Act.
On the basis of the foregoing, we are of the opinion that the
CVS/Arbor Plan Shares have been duly authorized and, when issued and delivered
in accordance with the terms and conditions of the Merger Agreement and the
applicable plan, will be validly issued, fully paid and non-assessable.
We are members of the Bar of the State of New York and the
foregoing opinion is limited to the laws of the State of New York, the federal
laws of the United States of America and the General Corporation Law of the
State of Delaware.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
Davis Polk & Wardwell
EXHIBIT 23.1
[ KPMG Peat Marwick LLP Letterhead]
CONSENT OF INDEPENDENT ACCOUNTANTS
Board of Directors
CVS Corporation:
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our reports dated February 9, 1998 included in or
incorporated by reference in the Annual Report on Form 10-K of CVS Corporation
for the year ended December 31, 1997.
KPMG PEAT MARWICK LLP
Providence, Rhode Island
April 2, 1998
EXHIBIT 24
POWER OF ATTORNEY
WHEREAS, CVS CORPORATION, a Delaware corporation ("CVS"),
proposes to file with the Securities and Exchange Commission a Registration
Statement on Form S-8 relating to shares of CVS common stock to be issued
pursuant to the following stock-based plans of Arbor Drugs, Inc.: the 1996
Stock Option Plan, and the Amended and Restated Stock Option Plan.
NOW, THEREFORE, the undersigned hereby appoints Charles C.
Conaway and Thomas M. Ryan, and each of them, as attorney for the undersigned,
for the purpose of executing and filing such Registration Statement or any
amendment thereto, hereby giving said attorney full authority to perform all
acts necessary thereto as fully as the undersigned could do if personally
present and hereby ratifying all that said attorney may lawfully do, have done
or cause to be done by virtue hereof. This power of Attorney may be executed
in several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this
POWER OF ATTORNEY.
Signature
---------
/s/ Stanley P. Goldstein
- ---------------------------
(Stanley P. Goldstein)
/s/ Eugene Applebaum
- ---------------------------
(Eugene Applebaum)
/s/ Allan J. Bloostein
- ---------------------------
(Allan J. Bloostein)
/s/ W. Don Cornwell
- ---------------------------
(W. Don Cornwell)
/s/ Thomas P. Gerrity
- ---------------------------
(Thomas P. Gerrity)
/s/ William H. Joyce
- ---------------------------
(William H. Joyce)
/s/ Terry R. Lautenbach
- ---------------------------
(Terry R. Lautenbach)
/s/ Terrence Murray
- ---------------------------
(Terrence Murray)
/s/ Sheli Rosenberg
- ---------------------------
(Sheli Rosenberg)
/s/ Thomas M. Ryan
- ---------------------------
(Thomas M. Ryan)
/s/ Ivan G. Seidenberg
- ---------------------------
(Ivan G. Seidenberg)
/s/ Patricia Carry Stewart
- ---------------------------
(Patricia Carry Stewart)
/s/ Thomas Thorsen
- ---------------------------
(Thomas Thorsen)
/s/ M. Cabell Woodward, Jr.
- ---------------------------
(M. Cabell Woodward, Jr.)
