Exhibit 2.2
AMENDMENT NO. 1 TO
THE
AGREEMENT AND PLAN OF
MERGER
AMENDMENT NO. 1 (this “
Amendment ”) dated as of January 16, 2007 to the
AGREEMENT AND PLAN OF MERGER (the “ Merger Agreement
”) dated as of November 1, 2007 among Caremark Rx, Inc.,
a Delaware corporation (“ Caremark ”), CVS
Corporation, a Delaware corporation (“ CVS ”),
and Twain MergerSub Corp., a Delaware corporation and a wholly
owned subsidiary of CVS (“ MergerSub
”).
WHEREAS, the parties intend for this
Amendment to qualify as an amendment to the Merger Agreement in
compliance with the requirements for doing so that are set forth in
Section 11.03(a) of the Merger Agreement;
WHEREAS, on the date of this
Amendment, CVS has separately and on its own accord offered and
granted a waiver (the “ CVS Dividend Waiver ”)
to Caremark from the restrictions set forth in Section 6.01(b)
of the Merger Agreement to permit Caremark to pay a one-time,
extraordinary cash dividend to holders of record of Caremark Stock
on a record date prior to the Effective Time in the amount of $2.00
per share of Caremark Stock held by each such holder on that record
date, which dividend (the “ Conditional Extraordinary
Dividend ”) shall, under the terms of the CVS Dividend
Waiver, be declared prior to the Caremark Stockholder Meeting, but
shall only become payable, and such payment shall be conditioned,
upon the occurrence of the Effective Time;
WHEREAS, CVS and Caremark have
separately agreed under the CVS Dividend Waiver to implement an
accelerated share repurchase program (the “ Accelerated
Share Repurchase ”) as promptly as practicable after the
Effective Time, which will have the effect of immediately retiring
150 million shares of CVS Stock upon implementation of the
transaction;
WHEREAS, it is intended that the
Merger shall qualify for U.S. federal income tax purposes as a
reorganization within the meaning of Section 368(a) of the
U.S. Internal Revenue Code of 1986 (the “ Code
”) and that the Merger Agreement as amended by this Amendment
shall constitute a plan of reorganization within the meaning of
Treasury Regulations Section 1.368-2(g); and
WHEREAS, in light of the changes to
the Merger Agreement made by this Amendment, the Conditional
Extraordinary Dividend and the Accelerated Share Repurchase and the
requirements of Section 368(a) of the Code as they relate to
the qualification of the Merger as a reorganization within the
meaning of such Section, the parties have agreed to change the
structure of the Merger from a reverse triangular merger to a
forward triangular merger as described below;
ACCORDINGLY, in consideration of the
foregoing, and of the terms and conditions set forth in this
Agreement, and for other good and valuable consideration (the
receipt and sufficiency of which is hereby acknowledged), the
parties to this Agreement (each, a “ party ” and
collectively, the “ parties ”) agree as
follows:
Section 1. Conversion of
MergerSub into an LLC. As promptly as practicable after the
date of this Amendment (but in any event before the Effective
Time), CVS and MergerSub shall take all actions that are
reasona
