1. business and industrial
2. company
3. annual report

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the Quarterly Period Ended March 31, 2015
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the transition period from __________ to _________.
Commission File Number 001-01011
CVS HEALTH CORPORATION
(Exact name of registrant as specified in its charter)
Delaware
05-0494040
(State of Incorporation)
(I.R.S. Employer Identification Number)
One CVS Drive, Woonsocket, Rhode Island 02895
(Address of principal executive offices)
Registrant's telephone number, including area code: (401) 765-1500
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to
file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes[X] No [ ]
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any,
every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this
chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such
files). Yes [X] No [ ]
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a
smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company”
in Rule 12b-2 of the Exchange Act.
Large accelerated filer [X]
Non-accelerated filer [ ] (Do not check if a smaller reporting company)
Accelerated filer [ ]
Smaller reporting company [ ]
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes [ ]
No [X]
Common Stock, $0.01 par value, issued and outstanding at April 24, 2015:
1,128,330,774 shares
INDEX
Page
Part I
Item 1.
Financial Statements
Condensed Consolidated Statements of Income (Unaudited) Three Months Ended March 31, 2015 and 2014
3
Condensed Consolidated Statements of Comprehensive Income (Unaudited) Three Months Ended March 31, 2015 and 2014
4
Condensed Consolidated Balance Sheets (Unaudited) As of March 31, 2015 and December 31, 2014
5
Condensed Consolidated Statements of Cash Flows (Unaudited) Three Months Ended March 31, 2015 and 2014
6
Notes to Condensed Consolidated Financial Statements (Unaudited)
7
Report of Independent Registered Public Accounting Firm
16
Management’s Discussion and Analysis of Financial Condition and Results of Operations
Quantitative and Qualitative Disclosures About Market Risk
Controls and Procedures
17
30
30
Item 1.
Legal Proceedings
31
Item 2.
Unregistered Sales of Equity Securities and Use of Proceeds
31
Item 6.
Exhibits
32
Item 2.
Item 3.
Item 4.
Part II
Signatures
34
Part I
Item 1
CVS Health Corporation
Condensed Consolidated Statements of Income
(Unaudited)
Three Months Ended
March 31,
2015
2014
In millions, except per share amounts
Net revenues
Cost of revenues
Gross profit
Operating expenses
Operating profit
Interest expense, net
Income before income tax provision
Income tax provision
Net income
Net income per share:
Basic
Diluted
Weighted average shares outstanding:
Basic
Diluted
Dividends declared per share
$
$
36,332 $
30,168
6,164
4,032
2,132
134
1,998
777
1,221 $
32,689
26,747
5,942
3,918
2,024
158
1,866
737
1,129
$
$
1.08 $
1.07 $
0.96
0.95
$
1,128
1,136
0.350 $
1,180
1,190
0.275
See accompanying notes to condensed consolidated financial statements.
3
CVS Health Corporation
Condensed Consolidated Statements of Comprehensive Income
(Unaudited)
Three Months Ended
March 31,
2015
2014
In millions
Net income
Other comprehensive income (loss):
Foreign currency translation adjustments, net of tax
Cash flow hedges, net of tax
Total other comprehensive income (loss)
Comprehensive income
$
1,221 $
1,129
$
(48)
1
(47)
1,174 $
9
1
10
1,139
See accompanying notes to condensed consolidated financial statements.
4
CVS Health Corporation
Condensed Consolidated Balance Sheets
(Unaudited)
March 31,
2015
In millions, except per share amounts
Assets:
Cash and cash equivalents
Short-term investments
Accounts receivable, net
Inventories
Deferred income taxes
Other current assets
Total current assets
Property and equipment, net
Goodwill
Intangible assets, net
Other assets
Total assets
Liabilities:
Accounts payable
Claims and discounts payable
Accrued expenses
Short-term debt
Current portion of long-term debt
Total current liabilities
Long-term debt
Deferred income taxes
Other long-term liabilities
Commitments and contingencies (Note 8)
Shareholders’ equity:
CVS Health shareholders’ equity:
Preferred stock, par value $0.01: 0.1 share authorized; none issued or outstanding
Common stock, par value $0.01: 3,200 shares authorized; 1,693 shares issued and 1,127
shares outstanding at March 31, 2015 and 1,691 shares issued and 1,140 shares
outstanding at December 31, 2014
Treasury stock, at cost: 565 shares at March 31, 2015 and 550 shares at December 31,
2014
Shares held in trust: 1 share at March 31, 2015 and December 31, 2014
Capital surplus
Retained earnings
Accumulated other comprehensive income (loss)
Total CVS Health shareholders’ equity
Noncontrolling interest
Total shareholders’ equity
Total liabilities and shareholders’ equity
$
$
$
$
December 31,
2014
1,518 $
116
10,162
12,231
1,001
594
25,622
8,871
28,123
9,759
1,555
73,930 $
2,481
34
9,687
11,930
985
866
25,983
8,843
28,142
9,774
1,510
74,252
6,431 $
6,273
5,936
500
573
19,713
11,689
4,020
1,513
—
6,547
5,404
5,816
685
575
19,027
11,695
4,036
1,531
—
—
—
17
17
(25,634)
(31)
30,235
32,667
(264)
36,990
5
36,995
73,930 $
(24,078)
(31)
30,418
31,849
(217)
37,958
5
37,963
74,252
See accompanying notes to condensed consolidated financial statements.
5
CVS Health Corporation
Condensed Consolidated Statements of Cash Flows
(Unaudited)
In millions
Cash flows from operating activities:
Cash receipts from customers
Cash paid for inventory and prescriptions dispensed by retail network pharmacies
Cash paid to other suppliers and employees
Interest received
Interest paid
Income taxes paid
Net cash provided by operating activities
Three Months Ended
March 31,
2015
2014
$ 34,570 $ 30,505
(28,276) (23,966)
(4,162)
(4,196)
3
3
(87)
(104)
(64)
(70)
1,984
2,172
Cash flows from investing activities:
Purchases of property and equipment
Proceeds from sale-leaseback transactions
Proceeds from sale of property and equipment and other assets
Acquisitions (net of cash acquired) and other investments
Purchase of available-for-sale investments
Sales/maturities of available-for-sale investments
Net cash used in investing activities
Cash flows from financing activities:
Decrease in short-term debt
Dividends paid
Proceeds from exercise of stock options
Excess tax benefits from stock-based compensation
Repurchase of common stock
Net cash used in financing activities
Effect of exchange rate changes on cash and cash equivalents
Net decrease in cash and cash equivalents
Cash and cash equivalents at beginning of period
Cash and cash equivalents at end of period
Reconciliation of net income to net cash provided by operating activities:
Net income
Adjustments to reconcile net income to net cash provided by operating activities:
Depreciation and amortization
Stock-based compensation
Deferred income taxes and other noncash items
Change in operating assets and liabilities, net of effects from acquisitions:
Accounts receivable, net
Inventories
Other current assets
Other assets
Accounts payable and claims and discounts payable
Accrued expenses
Other long-term liabilities
Net cash provided by operating activities
(419)
25
8
(61)
(113)
16
(544)
(388)
5
5
(2,194)
(43)
55
(2,560)
(185)
—
(399)
(325)
126
154
59
37
(2,007)
(801)
(2,406)
(935)
3
—
(963)
(1,323)
2,481
4,089
$ 1,518 $ 2,766
$
$
1,221 $
1,129
490
44
(31)
477
35
16
(481)
(313)
269
(52)
756
153
(72)
1,984 $
(139)
(64)
70
(39)
339
362
(14)
2,172
See accompanying notes to condensed consolidated financial statements.
6
CVS Health Corporation
Notes to Condensed Consolidated Financial Statements
(Unaudited)
Note 1 – Accounting Policies
Basis of Presentation
The accompanying unaudited condensed consolidated financial statements of CVS Health Corporation and its subsidiaries
(collectively “CVS Health” or the “Company”) have been prepared in accordance with the rules and regulations of the U.S.
Securities and Exchange Commission (“SEC”) regarding interim financial reporting. In accordance with such rules and
regulations, certain information and accompanying note disclosures normally included in financial statements prepared in
accordance with accounting principles generally accepted in the United States of America (“GAAP”) have been condensed or
omitted, although the Company believes the disclosures included herein are adequate to make the information presented not
misleading. These condensed consolidated financial statements should be read in conjunction with the audited consolidated
financial statements and notes thereto, which are included in Exhibit 13 to the Company’s Annual Report on Form 10-K for the
year ended December 31, 2014 (“2014 Form 10-K”).
In the opinion of management, the accompanying unaudited condensed consolidated financial statements include all
adjustments consisting only of normal recurring adjustments, necessary for a fair presentation of the results for the interim
periods presented. Because of the influence of various factors on the Company’s operations, including business combinations,
certain holidays and other seasonal influences, net income for any interim period may not be comparable to the same interim
period in previous years or necessarily indicative of income for the full year.
Principles of Consolidation
The condensed consolidated financial statements include the accounts of the Company and its majority-owned subsidiaries and
variable interest entities (“VIE's”) for which the Company is the primary beneficiary. All material intercompany balances and
transactions have been eliminated.
The Company continually evaluates its investments to determine if they represent variable interests in a VIE. If the Company
determines that it has a variable interest in a VIE, the Company then evaluates if it is the primary beneficiary of the VIE. The
evaluation is a qualitative assessment as to whether the Company has the ability to direct the activities of a VIE that most
significantly impact the entity’s economic performance. The Company consolidates a VIE if it is considered to be the primary
beneficiary.
Assets and liabilities of VIEs for which the Company is the primary beneficiary were not significant to the Company’s
condensed consolidated financial statements. VIE creditors do not have recourse against the general credit of the Company.
Fair Value of Financial Instruments
The Company utilizes the three-level valuation hierarchy for the recognition and disclosure of fair value measurements. The
categorization of assets and liabilities within this hierarchy is based upon the lowest level of input that is significant to the
measurement of fair value. The three levels of the hierarchy consist of the following:
•
Level 1 – Inputs to the valuation methodology are unadjusted quoted prices in active markets for identical assets or
liabilities that the Company has the ability to access at the measurement date.
•
Level 2 – Inputs to the valuation methodology are quoted prices for similar assets and liabilities in active markets,
quoted prices in markets that are not active or inputs that are observable for the asset or liability, either directly or
indirectly, for substantially the full term of the instrument.
•
Level 3 – Inputs to the valuation methodology are unobservable inputs based upon management’s best estimate of
inputs market participants could use in pricing the asset or liability at the measurement date, including assumptions
about risk.
As of March 31, 2015, the carrying value of cash and cash equivalents, short-term and long-term investments, accounts
receivable and accounts payable approximated their fair value due to the nature of these financial instruments. The Company
7
invests in money market funds, commercial paper and time deposits that are classified as cash and cash equivalents within the
accompanying condensed consolidated balance sheets, as these funds are highly liquid and readily convertible to known
amounts of cash. These investments are classified within Level 1 of the fair value hierarchy because they are valued using
quoted market prices. The Company’s short-term investments consist of certificates of deposit with initial maturities of greater
than three months when purchased that mature in less than one year from the balance sheet date. The Company’s long-term
investments of $44 million at March 31, 2015, which are classified as noncurrent other assets within the accompanying
condensed consolidated balance sheet, consist of certificates of deposit. These investments, which are classified within Level 1
of the fair value hierarchy, are carried at fair value, which approximated historical cost at March 31, 2015. The carrying amount
and estimated fair value of the Company’s total long-term debt was $12.3 billion and $13.4 billion, respectively, as of
March 31, 2015. The fair value of the Company’s long-term debt was estimated based on quoted prices currently offered in
active markets for the Company’s debt, which is considered Level 1 of the fair value hierarchy.
Related Party Transactions
The Company has an equity method investment in SureScripts, LLC (“SureScripts”), which operates a clinical health
information network. The Pharmacy Services and Retail Pharmacy segments utilize this clinical health information network in
providing services to client plan members and retail customers. The Company expensed fees of approximately $13 million and
$16 million in the three months ended March 31, 2015 and 2014, respectively, for the use of this network.
The Company's investment in and equity in earnings in SureScripts for all periods presented is immaterial.
New Accounting Pronouncements
In May 2014, the Financial Accounting Standards Board (“FASB”) issued Accounting Standard Update (“ASU”) No. 2014-09,
Revenue from Contracts with Customers (Topic 606). ASU No. 2014-09 outlines a single comprehensive model for entities to
use in accounting for revenue arising from contracts with customers and supersedes most current revenue recognition guidance,
including industry-specific guidance. This new guidance is expected to be effective for annual reporting periods (including
interim reporting periods within those periods) beginning January 1, 2018; early adoption in 2017 is permitted. Companies have
the option of using either a full retrospective or a modified retrospective approach to adopt the guidance. This update could
impact the timing and amounts of revenue recognized. The Company is currently evaluating the effect that implementation of
this update will have on its consolidated financial position and results of operations upon adoption, as well as the method of
transition and required disclosures.
In April 2015, the FASB issued ASU No. 2015-03, Simplifying the Presentation of Debt Issuance Costs (Topic 835-30). ASU
No. 2015-03 requires the presentation of debt issuance costs in the balance sheet as a direct deduction from the related debt
liability rather than as an asset. Amortization of such costs is reported as interest expense. This change conforms the
presentation with that of debt discounts. The ASU is effective for annual reporting periods (including interim reporting periods
within those periods) beginning after December 15, 2015; early adoption is permitted. The guidance is required to be applied
retrospectively to all prior periods. Had the Company adopted this ASU, other noncurrent assets and long-term debt would both
have been $62 million and $65 million lower as of March 31, 2015 and December 31, 2014, respectively.
Note 2 – Changes in Accounting Principle
Effective January 1, 2015, the Company changed its methods of accounting for “front store” inventories in the Retail Pharmacy
Segment. Prior to 2015, the Company valued front store inventories at the lower of cost or market on a first-in, first-out
(“FIFO”) basis in retail stores using the retail inventory method and in distribution centers using the FIFO cost method.
Effective January 1, 2015, all front store inventories in the Retail Pharmacy Segment have been valued at the lower of cost or
market using the weighted average cost method. These changes affected approximately 36% of consolidated inventories.
These changes were made primarily to provide the Company with better information to manage its retail front store operations
and to bring all of the Company’s inventories to a common inventory valuation methodology. The Company believes the
weighted average cost method is preferable to the retail inventory method and the FIFO cost method because it results in
greater precision in the determination of cost of revenues and inventories at the stock keeping unit (“SKU”) level and results in
a consistent inventory valuation method for all of the Company’s inventories as all of the Company’s remaining inventories,
which consist of prescription drugs, were already being valued using the weighted average cost method.
The Company recorded the cumulative effect of these changes in accounting principle as of January 1, 2015. The Company
determined that retrospective application for periods prior to 2015 is impracticable, as the period-specific information necessary
8
to value front store inventories in the Retail Pharmacy Segment under the weighted average cost method is unavailable. The
Company implemented a new perpetual inventory system to manage front store inventory at the SKU level and valued front
store inventory as of January 1, 2015 and calculated the cumulative impact. The effect of these changes in accounting principle
as of January 1, 2015, was a decrease in inventories of $7 million, an increase in current deferred income tax assets of $3
million and a decrease in retained earnings of $4 million.
Had the Company not made these changes in accounting principle, for the three months ended March 31, 2015, net income
would have been $4 million higher, and basic and diluted net income per share would have been the same as reported.
Note 3 – Share Repurchase Programs
As of March 31, 2015, the Company had the following outstanding share repurchase programs that were authorized by the
Company's Board of Directors:
In billions
Authorization Date
December 15, 2014 (“2014 Repurchase Program”)
December 17, 2013 (“2013 Repurchase Program”)
Authorized
Remaining
$ 10.0
$ 6.0
$ 10.0
0.7
$ 10.7
The share repurchase programs, each of which was effective immediately, permit the Company to effect repurchases from time
to time through a combination of open market repurchases, privately negotiated transactions, accelerated share repurchase
transactions, and/or other derivative transactions. The repurchase programs may be modified or terminated by the Board of
Directors at any time.
During the three months ended March 31, 2015, the Company repurchased an aggregate of approximately 16.8 million shares
of common stock for approximately $2.0 billion pursuant to the 2013 Repurchase Program as discussed below.
Pursuant to the authorization under the 2013 Repurchase Program, effective January 2, 2015, the Company entered into a $2.0
billion fixed dollar accelerated share repurchase (“ASR”) agreement with JPMorgan Chase Bank (“JPMorgan”). Upon payment
of the $2.0 billion purchase price on January 5, 2015, the Company received a number of shares of our common stock equal to
80% of the $2.0 billion notional amount of the ASR agreement or approximately 16.8 million shares. At the conclusion of the
ASR program, the Company will receive additional shares equal to the remaining 20% of the $2.0 billion notional amount. The
ultimate number of shares the Company receives fluctuates based on changes in the daily volume weighted average price of the
Company's stock over the period which began on January 2, 2015 and ended on April 30, 2015. If the mean daily volume
weighted average price of the Company's common stock, less a discount (the “forward price”), during the ASR program falls
below $94.49 per share, the Company would receive a higher number of shares from JPMorgan. If the forward price rises above
$94.49 per share, the Company would either receive fewer shares from JPMorgan or, potentially have an obligation to
JPMorgan which, at the Company's option, could be settled in additional cash or by issuing shares. Under the terms of the ASR
agreement, the maximum number of shares that could be received or delivered, including the initial shares received, is 42.0
million. The initial 16.8 million shares of common stock delivered to the Company by JPMorgan were placed into treasury
stock in January 2015. On May 1, 2015, the Company received approximately 3.1 million shares of common stock,
representing the remaining 20% of the $2.0 billion notional amount of the ASR agreement, thereby concluding the agreement.
This brings the average price per share for the total 19.9 million shares delivered to $100.64 per share. The remaining 3.1
million shares of common stock delivered to the Company by JPMorgan were placed into treasury stock in May 2015.
The ASR agreement was accounted for as an initial treasury stock transaction for approximately $1.6 billion and a forward
contract for approximately $0.4 billion. The forward contract was classified as an equity instrument and was recorded within
capital surplus on the condensed consolidated balance sheet at March 31, 2015. The forward contract will be reclassified to
treasury stock upon the settlement of the agreement in May 2015. The initial repurchase of the shares resulted in an immediate
reduction of the outstanding shares used to calculate the weighted average common shares outstanding for basic and diluted net
income per share.
9
Note 4 – Accumulated Other Comprehensive Income
Accumulated other comprehensive income (loss) consists of foreign currency translation adjustments, unrealized losses on cash
flow hedges executed in previous years associated with the issuance of long-term debt, and changes in the net actuarial gains
and losses associated with pension and other postretirement benefit plans. The following table summarizes the activity within
the components of accumulated other comprehensive income (loss).
Changes in accumulated other comprehensive income (loss) by component are shown below(1):
In millions
Balance, December 31, 2014
Other comprehensive income (loss) before
reclassifications
Amounts reclassified from accumulated
other comprehensive income (2)
Other comprehensive income (loss)
Balance, March 31, 2015
Balance, December 31, 2013
Other comprehensive income before
reclassifications
Amounts reclassified from accumulated
other comprehensive income (2)
Other comprehensive income
Balance, March 31, 2014
(1)
(2)
Three Months Ended March 31, 2015
Pension and
Losses on
Other
Cash Flow
Foreign
Postretirement
Currency
Hedges
Benefits
$
(65) $
(9) $
(143) $
(48)
—
1
(47)
(264)
Three Months Ended March 31, 2014
Pension and
Losses on
Other
Foreign
Cash Flow
Postretirement
Currency
Hedges
Benefits
$
(30) $
(13) $
(106) $
Total
(149)
9
$
—
9
(21) $
1
1
(8) $
(48)
—
—
(143) $
$
—
(48)
(113) $
—
Total
(217)
—
9
—
1
1
(12) $
—
—
(106) $
1
10
(139)
All amounts are net of tax.
The amounts reclassified from accumulated other comprehensive income for losses on cash flow hedges are recorded within interest expense, net on the
condensed consolidated statement of income. The amounts reclassified from accumulated other comprehensive income for pension and other
postretirement benefits are included in operating expenses on the condensed consolidated statement of income.
Note 5 – Interest Expense
The following are the components of net interest expense:
Three Months Ended
March 31,
In millions
Interest expense
Interest income
Interest expense, net
2015
2014
$
137 $
(3)
161
(3)
$
134 $
158
10
Note 6 – Earnings Per Share
Earnings per share is computed using the two-class method. Options to purchase less than one million shares of common stock
were outstanding, but were not included in the calculation of diluted earnings per share for the three months ended March 31,
2015 and 2014, because the options’ exercise prices were greater than the average market price of the common shares and,
therefore, the effect would be antidilutive.
The following is a reconciliation of basic and diluted net income per share for the respective periods:
Three Months Ended
March 31,
In millions, except per share amounts
Numerator for earnings per share calculations:
Net income(1)
2015
$
Denominators for earnings per share calculations:
Weighted average shares, basic
Effect of dilutive securities
Weighted average shares, diluted
Net income per share:
Basic
Diluted
(1)
$
$
2014
1,216 $
1,129
1,128
8
1,136
1,180
10
1,190
1.08 $
1.07 $
0.96
0.95
Comprised of net income less amounts allocable to participating securities of $5 million for the three months ended March 31, 2015.
Note 7 – Segment Reporting
The Company has three reportable segments: Pharmacy Services, Retail Pharmacy and Corporate. The Company’s segments
maintain separate financial information for which operating results are evaluated on a regular basis by the Company’s chief
operating decision maker in deciding how to allocate resources and in assessing performance. The Company evaluates its
Pharmacy Services and Retail Pharmacy segments’ performance based on net revenue, gross profit and operating profit before
the effect of nonrecurring charges and gains and certain intersegment activities. The Company evaluates the performance of its
Corporate Segment based on operating expenses before the effect of nonrecurring charges and gains and certain intersegment
activities.
The Pharmacy Services Segment provides a full range of pharmacy benefit management (“PBM”) services including plan
design and administration, formulary management, Medicare Part D services, mail order, specialty pharmacy and infusion
services, retail pharmacy network management services, prescription management systems, clinical services, disease
management services and medical spend management. The Company’s clients are primarily employers, insurance companies,
unions, government employee groups, health plans, Managed Medicaid plans and other sponsors of health benefit plans, and
individuals throughout the United States. A portion of covered lives primarily within the Managed Medicaid, health plan and
employer markets have access to our services through public and private exchanges. Through the Company’s SilverScript
Insurance Company subsidiary, the Company is a national provider of drug benefits to eligible beneficiaries under the federal
government’s Medicare Part D program. The Pharmacy Services Segment operates under the CVS/caremarkTM Pharmacy
Services, Caremark®, CVS CaremarkTM, CVS/caremarkTM, CarePlus CVS/pharmacy®, CVS/specialtyTM, RxAmerica®, Accordant®,
SilverScript®, Novologix®, Coram® and Navarro® Health Services names. As of March 31, 2015, the Pharmacy Services
Segment operated 24 retail specialty pharmacy stores, 11 specialty mail order pharmacies, four mail service dispensing
pharmacies, and 86 branches for infusion and enteral services, including approximately 70 ambulatory infusion suites and six
centers of excellence, located in 40 states, Puerto Rico and the District of Columbia.
The Retail Pharmacy Segment sells prescription drugs and a wide assortment of general merchandise, including over-thecounter drugs, beauty products and cosmetics, personal care products, convenience foods, photo finishing, seasonal
merchandise and greeting cards through the Company’s CVS/pharmacy®, CVS®, Longs Drugs®, Navarro Discount Pharmacy®
and Drogaria Onofre® retail stores and online through CVS.com®, Navarro.comTM and Onofre.com.brTM. As of March 31, 2015,
the Retail Pharmacy Segment included 7,850 retail drugstores (of which 7,794 operated a pharmacy), 17 onsite pharmacies, 986
retail medical clinics, and the online retail websites, CVS.com, Navarro.com and Onofre.com.br. The retail drugstores are
located in 44 states, the District of Columbia, Puerto Rico and Brazil. The retail health care clinics operate under the
11
MinuteClinic® name, and 978 are located within CVS/pharmacy stores. MinuteClinics utilize nationally-recognized medical
protocols to diagnose and treat minor health conditions, perform health screenings, monitor chronic conditions and deliver
vaccinations. The clinics are staffed by board-certified nurse practitioners and physician assistants who provide access to
affordable care without appointment.
The Corporate Segment provides management and administrative services to support the Company. The Corporate Segment
consists of certain aspects of executive management, corporate relations, legal, compliance, human resources, corporate
information technology and finance departments.
In millions
Three Months Ended
March 31, 2015:
Net revenues
Gross profit
Operating profit (loss)
March 31, 2014:
Net revenues
Gross profit
Operating profit (loss)
(1)
(2)
Pharmacy
Services
Segment(1)
$
Retail
Pharmacy
Segment
Corporate
Segment
Intersegment
Eliminations(2)
Consolidated
Totals
23,879 $
1,026
734
16,951 $
5,295
1,727
— $
—
(189)
(4,498) $
(157)
(140)
36,332
6,164
2,132
20,195
934
640
16,480
5,184
1,750
—
—
(190)
(3,986)
(176)
(176)
32,689
5,942
2,024
Net revenues of the Pharmacy Services Segment include approximately $2.5 billion and $2.2 billion of retail co-payments for the three months
ended March 31, 2015 and 2014, respectively.
Intersegment eliminations relate to two types of transactions: (i) Intersegment revenues that occur when Pharmacy Services Segment customers use
Retail Pharmacy Segment stores to purchase covered products. When this occurs, both the Pharmacy Services and Retail Pharmacy segments record
the revenue on a stand-alone basis, and (ii) Intersegment revenues, gross profit and operating profit that occur when Pharmacy Services Segment
customers, through the Company’s intersegment activities (such as the Maintenance Choice® program), elect to pick-up their maintenance
prescriptions at Retail Pharmacy Segment stores instead of receiving them through the mail. When this occurs, both the Pharmacy Services and
Retail Pharmacy segments record the revenue, gross profit and operating profit on a standalone basis. The following amounts are eliminated in
consolidation in connection with the intersegment activity described in item (ii) above: net revenues of $1.2 billion and $1.1 billion for the three
months ended March 31, 2015 and 2014, respectively; gross profit of $157 million and $176 million for the three months ended March 31, 2015 and
2014, respectively; and operating profit of $140 million and $176 million for the three months ended March 31, 2015 and 2014, respectively.
Note 8 – Commitments and Contingencies
Lease Guarantees
Between 1991 and 1997, the Company sold or spun off a number of subsidiaries, including Bob’s Stores, Linens ‘n Things,
Marshalls, Kay-Bee Toys, Wilsons, This End Up and Footstar. In many cases, when a former subsidiary leased a store, the
Company provided a guarantee of the store’s lease obligations. When the subsidiaries were disposed of, the Company’s
guarantees remained in place, although each initial purchaser has agreed to indemnify the Company for any lease obligations
the Company was required to satisfy. If any of the purchasers or any of the former subsidiaries were to become insolvent and
failed to make the required payments under a store lease, the Company could be required to satisfy these obligations.
As of March 31, 2015, the Company guaranteed approximately 72 such store leases (excluding the lease guarantees related to
Linens ‘n Things, which have been recorded as a liability on the condensed consolidated balance sheet), with the maximum
remaining lease term extending through 2026. Management believes the ultimate disposition of any of the remaining guarantees
will not have a material adverse effect on the Company’s consolidated financial condition, results of operations or future cash
flows.
Legal Matters
The Company is a party to legal proceedings, investigations and claims in the ordinary course of its business, including the
matters described below. The Company records accruals for outstanding legal matters when it believes it is probable that a loss
will be incurred and the amount can be reasonably estimated. The Company evaluates, on a quarterly basis, developments in
legal matters that could affect the amount of any accrual and developments that would make a loss contingency both probable
and reasonably estimable. If a loss contingency is not both probable and estimable, the Company does not establish an accrued
12
liability. None of the Company’s accruals for outstanding legal matters are material individually or in the aggregate to the
Company’s financial position.
The Company’s contingencies are subject to significant uncertainties, including, among other factors: (i) the procedural status
of pending matters; (ii) whether class action status is sought and certified; (iii) whether asserted claims or allegations will
survive dispositive motion practice; (iv) the extent of potential damages, fines or penalties, which are often unspecified or
indeterminate; (v) the impact of discovery on the legal process; (vi) whether novel or unsettled legal theories are at issue;
(vii) the settlement posture of the parties, and/or (viii) in the case of certain government agency investigations, whether a sealed
qui tam lawsuit (“whistleblower” action) has been filed and whether the government agency makes a decision to intervene in
the lawsuit following investigation.
Except as otherwise noted, the Company cannot predict with certainty the timing or outcome of the legal matters described
below, and is unable to reasonably estimate a possible loss or range of possible loss in excess of amounts already accrued for
these matters.
•
In December 2007, the Company received a document subpoena from the Office of Inspector General (“OIG”) within
the U.S. Department of Health and Human Services, requesting information relating to the processing of Medicaid and
certain other government agency claims on behalf of its clients (which allegedly resulted in underpayments from our
pharmacy benefit management clients to the applicable government agencies) on one of the Company’s adjudication
platforms. In September 2014, the Company settled the OIG’s claims, as well as related claims by the Department of
Justice and private plaintiffs, without any admission of liability. The Company is in discussions with the OIG
concerning other claim processing issues.
•
Caremark (the term “Caremark” being used herein to generally refer to any one or more PBM subsidiaries of the
Company, as applicable) was named in a putative class action lawsuit filed in October 2003 in Alabama state court by
John Lauriello, purportedly on behalf of participants in the 1999 settlement of various securities class action and
derivative lawsuits against Caremark and others. Other defendants include insurance companies that provided
coverage to Caremark with respect to the settled lawsuits. The Lauriello lawsuit seeks approximately $3.2 billion in
compensatory damages plus other non-specified damages based on allegations that the amount of insurance coverage
available for the settled lawsuits was misrepresented and suppressed. A similar lawsuit was filed in November 2003 by
Frank McArthur, also in Alabama state court, naming as defendants, among others, Caremark and several insurance
companies involved in the 1999 settlement. This lawsuit was stayed as a later-filed class action, but McArthur was
subsequently allowed to intervene in the Lauriello action. Following the close of class discovery, the trial court entered
an Order on August 15, 2012 that granted the plaintiffs’ motion to certify a class pursuant to Alabama Rule of Civil
Procedures 23(b)(3) but denied their request that the class also be certified pursuant to Rule 23(b)(1). In addition, the
August 15, 2012 Order appointed class representatives and class counsel. On September 12, 2014, the Alabama
Supreme Court affirmed the trial court’s August 15, 2012 Order, and the case is proceeding.
•
Various lawsuits have been filed alleging that Caremark has violated applicable antitrust laws in establishing and
maintaining retail pharmacy networks for client health plans. In August 2003, Bellevue Drug Co., Robert
Schreiber, Inc. d/b/a Burns Pharmacy and Rehn-Huerbinger Drug Co. d/b/a Parkway Drugs #4, together with
Pharmacy Freedom Fund and the National Community Pharmacists Association filed a putative class action against
Caremark in Pennsylvania federal court, seeking treble damages and injunctive relief. This case was initially sent to
arbitration based on the contract terms between the pharmacies and Caremark. In October 2003, two independent
pharmacies, North Jackson Pharmacy, Inc. and C&C, Inc. d/b/a Big C Discount Drugs, Inc., filed a putative class
action complaint in Alabama federal court against Caremark and two PBM competitors, seeking treble damages and
injunctive relief. The North Jackson Pharmacy case against two of the Caremark entities named as defendants was
transferred to Illinois federal court, and the case against a separate Caremark entity was sent to arbitration based on
contract terms between the pharmacies and Caremark. The Bellevue arbitration was then stayed by the parties pending
developments in the North Jackson Pharmacy court case.
In August 2006, the Bellevue case and the North Jackson Pharmacy case were both transferred to Pennsylvania federal
court by the Judicial Panel on Multidistrict Litigation for coordinated and consolidated proceedings with other cases
before the panel, including cases against other PBMs. Motions for class certification in the coordinated cases within
the multidistrict litigation, including the North Jackson Pharmacy case, remain pending, and the court has permitted
certain additional class discovery and briefing. The consolidated action is now known as the In Re Pharmacy Benefit
Managers Antitrust Litigation.
13
•
In November 2009, a securities class action lawsuit was filed in the United States District Court for the District of
Rhode Island by Richard Medoff, purportedly on behalf of purchasers of CVS Health Corporation stock between
May 5, 2009 and November 4, 2009. The lawsuit names the Company and certain officers as defendants and includes
allegations of securities fraud relating to public disclosures made by the Company concerning the PBM business and
allegations of insider trading. In addition, a shareholder derivative lawsuit was filed by Mark Wuotila in
December 2009 in the same court against the directors and certain officers of the Company. This lawsuit, which has
remained stayed pending developments in the related securities class action, includes allegations of, among other
things, securities fraud, insider trading and breach of fiduciary duties and further alleges that the Company was
damaged by the purchase of stock at allegedly inflated prices under its share repurchase program. In January 2011,
both lawsuits were transferred to the United States District Court for the District of New Hampshire. The parties are
conducting discovery in the class action, and the derivative action is stayed pending further developments in the class
action.
•
In March 2010, the Company learned that various State Attorneys General offices and certain other government
agencies were conducting a multi-state investigation of certain of the Company’s business practices similar to those
being investigated at that time by the U.S. Federal Trade Commission (“FTC”). Twenty-eight states, the District of
Columbia and the County of Los Angeles are known to be participating in this investigation. The prior FTC
investigation, which commenced in August 2009, was officially concluded in May 2012 when the consent order
entered into between the FTC and the Company became final. The Company has cooperated with the multi-state
investigation.
•
In March 2010, the Company received a subpoena from the OIG requesting information about programs under which
the Company has offered customers remuneration conditioned upon the transfer of prescriptions for drugs or
medications to the Company’s pharmacies in the form of gift cards, cash, non-prescription merchandise or discounts or
coupons for non-prescription merchandise. The subpoena relates to an investigation of possible false or otherwise
improper claims for payment under the Medicare and Medicaid programs. The Company has provided documents and
other information in response to this request for information.
•
In January 2012, the United States District Court for the Eastern District of Pennsylvania unsealed a first amended qui
tam complaint filed in August 2011 by an individual relator, Anthony Spay, who is described in the complaint as
having once been employed by a firm providing pharmacy prescription benefit audit and recovery services. The
complaint seeks monetary damages and alleges that Caremark’s processing of Medicare claims on behalf of one of its
clients violated the federal False Claims Act. The United States declined to intervene in the lawsuit. The case is
proceeding.
•
In November 2014, the U.S. District Court in the District of Massachusetts unsealed a qui tam lawsuit brought against
the Company by a pharmacy auditor and a CVS pharmacist. The lawsuit, which was initially filed under seal in 2011,
alleges that the Company violated the federal False Claims Act, as well as the false claims acts of several states, by
overcharging state and federal governments in connection with prescription drugs available through the Company’s
Health Savings Pass program, a membership-based program that allows enrolled customers special pricing for typical
90-day supplies of various generic prescription drugs. The federal government, which issued a January 2012 OIG
subpoena concerning the Health Savings Pass program, has declined to intervene in the case. The Company has filed a
motion to dismiss the declined qui tam complaint. Separately, the Attorney General of the State of Texas has issued
civil investigative demands and other requests in February 2012 and May 2014, and has continued its investigation
concerning the Health Savings Pass program and claims for reimbursement from the Texas Medicaid program.
•
On October 12, 2012, the Drug Enforcement Agency (“DEA”) Administrator published its Final Decision and Order
revoking the DEA license registrations for dispensing controlled substances at two of our retail pharmacy stores in
Sanford, Florida. The license revocations for the two stores formally became effective on November 13, 2012. The
Company has entered into discussions with the U.S. Attorney’s Office for the Middle District of Florida concerning
civil penalties for violations of the Controlled Substances Act arising from the circumstances underlying the action
taken against the two Sanford, Florida stores. The Company is also undergoing several audits by the DEA and is in
discussions with the DEA and the U.S. Attorney’s Office in several locations. Whether agreements can be reached and
on what terms is uncertain.
•
In November 2012, the Company received a subpoena from the OIG requesting information concerning automatic
refill programs used by pharmacies to refill prescriptions for customers. The Company has been cooperating and
providing documents and other information in response to this request for information.
14
•
In January 2014, the U.S. District Court in the Southern District of New York unsealed a qui tam action in which the
Company is a defendant. The suit originally was filed under seal in 2011 by relator David Kester, a former employee
of Novartis Pharmaceuticals Corp. (“Novartis”). The suit alleges that Novartis, the Company, and other specialty
pharmacies violated the federal False Claims Act, as well as the false claims acts of several states, by using
pharmacists, nurses and other staff to recommend and increase the sales and market share for certain Novartis specialty
drugs in exchange for patient referrals, rebates and discounts provided by Novartis. The federal government has
intervened in the case as to some allegations against Novartis but has declined to intervene as to any of the allegations
against the Company. The relator has continued to litigate the declined action against the Company and other specialty
pharmacies.
•
In March 2014, the Company received a subpoena from the United States Attorney’s Office for the District of Rhode
Island, requesting documents and information concerning bona fide service fees and rebates received from certain
pharmaceutical manufacturers in connection with certain drugs utilized under Part D of the Medicare Program. The
Company has been cooperating with the government and collecting documents in response to the subpoena.
The Company is also a party to other legal proceedings, government investigations, inquiries and audits arising in the normal
course of its business, none of which is expected to be material to the Company. The Company can give no assurance, however,
that its business, financial condition and results of operations will not be materially adversely affected, or that the Company will
not be required to materially change its business practices, based on: (i) future enactment of new health care or other laws or
regulations; (ii) the interpretation or application of existing laws or regulations as they may relate to the Company’s business,
the pharmacy services, retail pharmacy or retail clinic industries or to the health care industry generally; (iii) pending or future
federal or state governmental investigations of the Company’s business or the pharmacy services, retail pharmacy or retail
clinic industry or of the health care industry generally; (iv) pending or future government enforcement actions against the
Company; (v) adverse developments in any pending qui tam lawsuit against the Company, whether sealed or unsealed, or in any
future qui tam lawsuit that may be filed against the Company; or (vi) adverse developments in pending or future legal
proceedings against the Company or affecting the pharmacy services, retail pharmacy or retail clinic industry or the health care
industry generally.
15
Report of Independent Registered Public Accounting Firm
The Board of Directors and Shareholders
CVS Health Corporation:
We have reviewed the condensed consolidated balance sheet of CVS Health Corporation (the Company) as of March 31,
2015, and the related condensed consolidated statements of income, comprehensive income and cash flows for the three-month
periods ended March 31, 2015 and 2014. These financial statements are the responsibility of the Company’s management.
We conducted our review in accordance with the standards of the Public Company Accounting Oversight Board (United
States). A review of interim financial information consists principally of applying analytical procedures and making inquiries of
persons responsible for financial and accounting matters. It is substantially less in scope than an audit conducted in accordance with
the standards of the Public Company Accounting Oversight Board, the objective of which is the expression of an opinion regarding
the financial statements taken as a whole. Accordingly, we do not express such an opinion.
Based on our review, we are not aware of any material modifications that should be made to the condensed consolidated
financial statements referred to above for them to be in conformity with U.S. generally accepted accounting principles.
As discussed in Note 2 to the condensed consolidated financial statements, the Company has elected changes in its methods
of accounting for front store inventories in the Retail Pharmacy Segment effective January 1, 2015.
We have previously audited, in accordance with the standards of the Public Company Accounting Oversight Board (United
States), the consolidated balance sheet of CVS Health Corporation as of December 31, 2014, and the related consolidated statements
of income, comprehensive income, shareholders’ equity, and cash flows for the year then ended not presented herein, and in our
report dated February 10, 2015, we expressed an unqualified opinion on those consolidated financial statements. In our opinion, the
information set forth in the accompanying condensed consolidated balance sheet as of December 31, 2014, is fairly stated, in all
material respects, in relation to the consolidated balance sheet from which it has been derived.
/s/ Ernst & Young LLP
May 1, 2015
Boston, Massachusetts
16
Part I
Item 2
Management’s Discussion and Analysis of Financial Condition and Results of Operations
Overview of Our Business
CVS Health Corporation, together with its subsidiaries (collectively “CVS Health,” the “Company,” “we,” “our” or “us”), is a
pharmacy innovation company helping people on their path to better health. At the forefront of a changing health care
landscape, the Company has an unmatched suite of capabilities and the expertise needed to drive innovations that will help
shape the future of health.
We are currently the only integrated pharmacy health care company with the ability to impact consumers, payors, and providers
with innovative, channel-agnostic solutions. We have a deep understanding of their diverse needs through our unique integrated
model, and we are bringing them innovative solutions that help increase access to quality care, deliver better health outcomes,
and lower overall health care costs.
Through our more than 7,800 retail drugstores, nearly 1,000 walk-in health care clinics, a leading pharmacy benefits manager
with more than 70 million plan members, and expanding specialty pharmacy services, we enable people, businesses, and
communities to manage health in more effective ways. We are delivering break-through products and services, from advising
patients on their medications at our CVS/pharmacy® locations, to introducing unique programs to help control costs for our
clients at CVS/caremarkTM, to innovating how care is delivered to our patients with complex conditions through
CVS/specialtyTM, or by expanding access to high-quality, low-cost care at CVS/minuteclinicTM.
We currently have three reportable segments: Pharmacy Services, Retail Pharmacy and Corporate.
Pharmacy Services Segment
Our Pharmacy Services Segment generates revenue from a full range of pharmacy benefit management (“PBM”) services,
including plan design and administration, formulary management, Medicare Part D services, mail order, specialty pharmacy
and infusion services, retail pharmacy network management services, prescription management systems, clinical services,
disease management services and medical spend management. Our clients are primarily employers, insurance companies,
unions, government employee groups, health plans, Managed Medicaid plans and other sponsors of health benefit plans, and
individuals throughout the United States. A portion of covered lives primarily within the Managed Medicaid, health plan and
employer markets have access to our services through public and private exchanges. As a pharmacy benefits manager, we
manage the dispensing of pharmaceuticals through our mail order pharmacies, specialty pharmacies and national network of
more than 68,000 retail pharmacies, consisting of approximately 41,000 chain pharmacies (which includes our CVS/pharmacy
stores) and 27,000 independent pharmacies, to eligible members in the benefit plans maintained by our clients and utilize our
information systems to perform, among other things, safety checks, drug interaction screenings and brand to generic
substitutions.
Our specialty pharmacies support individuals that require complex and expensive drug therapies. Our specialty pharmacy
business includes mail order and retail specialty pharmacies that operate under the CVS CaremarkTM, CarePlus
CVS/pharmacy® and Navarro Health Services® names. The Pharmacy Services Segment also provides health management
programs, which include integrated disease management program for 17 conditions, through our Accordant® rare disease
management offering. In addition, through our SilverScript Insurance Company subsidiary, we are a national provider of drug
benefits to eligible beneficiaries under the federal government’s Medicare Part D program. The Pharmacy Services Segment
operates under the CVS/caremarkTM Pharmacy Services, Caremark®, CVS CaremarkTM, CVS/caremarkTM, CarePlus
CVS/pharmacy®, RxAmerica®, Accordant®, SilverScript®, Coram®, CVS/specialtyTM, NovoLogix® and Navarro® Health Services
names. As of March 31, 2015, the Pharmacy Services Segment operated 24 retail specialty pharmacy stores, 11 specialty mail
order pharmacies, four mail service dispensing pharmacies, and 86 branches for infusion and enteral services, including
approximately 70 ambulatory infusion suites and six centers of excellence, located in 40 states, Puerto Rico and the District of
Columbia.
Retail Pharmacy Segment
Our Retail Pharmacy Segment sells prescription drugs and a wide assortment of general merchandise, including over-thecounter drugs, beauty products and cosmetics, personal care products, convenience foods, photo finishing, seasonal
merchandise and greeting cards through our CVS/pharmacy®, CVS®, Longs Drugs®, Navarro Discount Pharmacy® and Drogaria
17
OnofreTM retail stores and online through CVS.com®, Navarro.comTM and Onofre.com.brTM. Our Retail Pharmacy Segment
derives the majority of its revenues through the sale of prescription drugs, which are dispensed by our 24,000 retail
pharmacists. Our Retail Pharmacy Segment also provides health care services through our CVS/minuteclinic offering.
MinuteClinics are staffed by nurse practitioners and physician assistants who utilize nationally recognized protocols to diagnose
and treat minor health conditions, perform health screenings, monitor chronic conditions, and deliver vaccinations. As of March
31, 2015, our Retail Pharmacy Segment included 7,850 retail drugstores (of which 7,794 operated a pharmacy) located in 44
states, the District of Columbia, Puerto Rico and Brazil operating primarily under the CVS/pharmacy®, CVS®, Longs Drugs®,
Navarro Discount Pharmacy® or Drogaria OnofreTM names, 17 onsite pharmacies, 986 retail health care clinics operating under
the MinuteClinic® name (of which 978 were located in CVS/pharmacy stores), and our online retail websites, CVS.com,
Navarro.com and Onofre.com.br.
Corporate Segment
The Corporate Segment provides management and administrative services to support the Company. The Corporate Segment
consists of certain aspects of our executive management, corporate relations, legal, compliance, human resources, corporate
information technology and finance departments.
Results of Operations
The following discussion explains the material changes in our results of operations for the three months ended March 31, 2015
and 2014, and the significant developments affecting our financial condition since December 31, 2014. We strongly recommend
that you read our audited consolidated financial statements and notes thereto and Management’s Discussion and Analysis of
Financial Condition and Results of Operations included as Exhibit 13 to our 2014 Form 10-K along with this report.
Summary of the Condensed Consolidated Financial Results:
Three Months Ended
March 31,
2015
2014
In millions
Net revenues
Cost of revenues
Gross profit
Operating expenses
Operating profit
Interest expense, net
Income before income tax provision
Income tax provision
Net income
$
$
36,332 $
30,168
6,164
4,032
2,132
134
1,998
777
1,221 $
32,689
26,747
5,942
3,918
2,024
158
1,866
737
1,129
Net Revenues
Net revenues increased approximately $3.6 billion, or 11.1%, in the three months ended March 31, 2015, as compared to the
prior year. The increase in the Pharmacy Services Segment was primarily driven by growth in specialty pharmacy and increased
volume in pharmacy network claims. The increase in the Retail Pharmacy Segment was primarily due to an increase in
pharmacy same store sales and revenue from new stores. Net revenues in both periods were negatively impacted by increased
generic dispensing rates for both the Pharmacy Services and Retail Pharmacy segments. However, the year-over-year increase
in generic dispensing rates was not as significant in the three months ended March 31, 2015 compared to the prior year. Generic
prescription drugs typically have a lower selling price than brand name prescription drugs.
Please see the section entitled “Segment Analysis” below for additional information regarding net revenues.
Gross Profit
Gross profit dollars increased $222 million, or 3.7%, in the three months ended March 31, 2015, as compared to the prior year.
Gross profit as a percentage of net revenues decreased approximately 120 basis points to 17.0% in the three months ended
18
March 31, 2015, as compared to the prior year. The decrease was driven by a change in the mix of business with the Pharmacy
Services Segment growing faster than the Retail Pharmacy Segment, as well as modest declines in gross margin in both
segments. Gross profit dollars for the three months ended March 31, 2015 were positively impacted by an increase in generic
dispensing rates compared to the prior year.
Please see the section entitled “Segment Analysis” below for additional information regarding gross profit.
Operating Expenses
Operating expenses increased $114 million, or 2.9%, in the three months ended March 31, 2015, as compared to the prior year.
Operating expenses as a percentage of net revenues decreased approximately 90 basis points to 11.1% for the three months
ended March 31, 2015, as compared to 12.0% in the prior year. The increase in operating expense dollars in the three months
ended March 31, 2015, was primarily due to incremental store operating costs associated with operating more stores in our
Retail Pharmacy Segment. The decrease in operating expenses as a percentage of net revenues was primarily due to expense
leverage from sales growth in both operating segments and disciplined expense control.
Please see the section entitled “Segment Analysis” below for additional information regarding operating expenses.
Interest Expense, net
Interest expense, net, decreased $24 million in the three months ended March 31, 2015, as compared to the prior year. This
decrease is primarily due to lower average interest rates on our outstanding debt during the three months ended March 31, 2015.
For additional information on our financing activities, please see the “Liquidity and Capital Resources” section later in
Management’s Discussion and Analysis of Financial Condition and Results of Operations.
Income Tax Provision
Our effective income tax rate was 38.9% for the three months ended March 31, 2015, compared to 39.5% for the three months
ended March 31, 2014. The difference in the effective income tax rate for the three months ended March 31, 2015, was
primarily due to certain permanent and discrete items.
19
Segment Analysis
We evaluate the performance of our Pharmacy Services and Retail Pharmacy segments based on net revenue, gross profit and
operating profit before the effect of nonrecurring charges and gains and certain intersegment activities. We evaluate the
performance of our Corporate Segment based on operating expenses before the effect of nonrecurring charges and gains and
certain intersegment activities. The following is a reconciliation of our segments to the condensed consolidated financial
statements:
Pharmacy
Services
Segment(1)
In millions
Three Months Ended
March 31, 2015:
Net revenues
Gross profit
Operating profit (loss)
March 31, 2014:
Net revenues
Gross profit
Operating profit (loss)
(1)
(2)
$
Retail
Pharmacy
Segment
Corporate
Segment
Intersegment
Eliminations (2)
Consolidated
Totals
23,879 $
1,026
734
16,951 $
5,295
1,727
— $
—
(189)
(4,498) $
(157)
(140)
36,332
6,164
2,132
20,195
934
640
16,480
5,184
1,750
—
—
(190)
(3,986)
(176)
(176)
32,689
5,942
2,024
Net revenues of the Pharmacy Services Segment include approximately $2.5 billion and $2.2 billion of retail co-payments for the three months
ended March 31, 2015 and 2014, respectively.
Intersegment eliminations relate to two types of transaction: (i) Intersegment revenues that occur when Pharmacy Services Segment customers use
Retail Pharmacy Segment stores to purchase covered products. When this occurs, both the Pharmacy Services and Retail Pharmacy segments record
the revenue on a stand-alone basis, and (ii) Intersegment revenues, gross profit and operating profit that occur when Pharmacy Services Segment
customers, through the Company's intersegment activities (such as the Maintenance Choice® program), elect to pick-up their maintenance
prescriptions at Retail Pharmacy Segment stores instead of receiving them through the mail. When this occurs, both the Pharmacy Services and
Retail Pharmacy segments record the revenue, gross profit and operating profit on a standalone basis. The following amounts are eliminated in
consolidation in connection with the intersegment activity described in item (ii) above: net revenues of $1.2 billion and $1.1 billion for the three
months ended March 31, 2015 and 2014, respectively; gross profit of $157 million and $176 million for the three months ended March 31, 2015 and
2014, respectively; and operating profit of $140 million and $176 million for the three months ended March 31, 2015 and 2014, respectively.
20
Pharmacy Services Segment
The following table summarizes our Pharmacy Services Segment’s performance for the respective periods:
Three Months Ended
March 31,
2015
2014
In millions
Net revenues
Gross profit
Gross profit % of net revenues
Operating expenses
Operating expense % of net revenues
Operating profit
Operating profit % of net revenues
Net revenues(1):
Mail choice(2)
Pharmacy network(3)
Other
Pharmacy claims processed(1):
Total
Mail choice(2)
Pharmacy network(3)
Generic dispensing rate(1):
Total
Mail choice(2)
Pharmacy network(3)
Mail choice penetration rate
(1)
(2)
(3)
$
23,879 $
1,026
4.3%
292
1.2%
734
3.1%
20,195
934
4.6%
294
1.5%
640
3.2%
$
8,750
15,059
70
6,834
13,302
59
$
251.1
20.3
230.8
83.5%
76.1%
84.1%
19.8%
227.8
19.8
208.0
82.0%
73.9%
82.8%
21.2%
Pharmacy network net revenues, claims processed and generic dispensing rates do not include Maintenance Choice, which are included within the
mail choice category.
Mail choice is defined as claims filled at a Pharmacy Services mail facility, which includes specialty claims, as well as 90-day claims filled at retail
pharmacies under the Maintenance Choice program.
Pharmacy network is defined as claims filled at retail pharmacies, including our retail drugstores, but excluding Maintenance Choice activity.
Net Revenues
Net revenues in our Pharmacy Services Segment increased $3.7 billion, or 18.2%, to $23.9 billion in the three months ended
March 31, 2015, as compared to the prior year. The increase is primarily due to growth in specialty pharmacy, driven by
increased volume, new products, inflation and the implementation of Specialty Connect®, as well as increased pharmacy
network claims. As you review our Pharmacy Services Segment’s performance in this area, we believe you should consider the
following important information that impacted the three months ended March 31, 2015:
•
Our mail choice claims processed increased 2.7% to 20.3 million claims in the three months ended March 31, 2015,
compared to 19.8 million claims in the prior year. The increase in mail choice claims was driven by specialty claim
volume and increased claims associated with the continuing adoption of our Maintenance Choice offerings.
•
Our average revenue per mail choice claim increased by 24.7%, compared to the prior year. This increase was
primarily due to growth in specialty pharmacy.
•
Our pharmacy network claims processed increased 11.0% to 230.8 million claims in the three months ended March 31,
2015, compared to 208.0 million claims in the prior year. The increase in the pharmacy network claim volume was
primarily due to net new business, as well as growth in Managed Medicaid and public exchanges.
Our average revenue per pharmacy network claim processed increased 2.0%, as compared to the prior year. This
increase was primarily due to drug inflation and changes in the drug mix, partially offset by increases in the generic
dispensing rate.
•
21
•
Our mail choice generic dispensing rate increased to 76.1% in the three months ended March 31, 2015, compared to
73.9% in the prior year. Our pharmacy network generic dispensing rate increased to 84.1%, compared to 82.8% in the
prior year. These continued increases in mail choice and pharmacy network generic dispensing rates were primarily
due to the impact of new generic drug introductions, and our continuous efforts to encourage plan members to use
generic drugs when they are available. We believe our generic dispensing rates will continue to increase in future
periods, albeit at a slower pace. This increase will be affected by, among other things, the number of new generic drug
introductions and our success at encouraging plan members to utilize generic drugs when they are available and
clinically appropriate.
Gross Profit
Gross profit in our Pharmacy Services Segment includes net revenues less cost of revenues. Cost of revenues includes (i) the
cost of pharmaceuticals dispensed, either directly through our mail service, specialty mail and specialty retail pharmacies or
indirectly through our retail pharmacy networks, (ii) shipping and handling costs and (iii) the operating costs of our mail service
dispensing pharmacies, customer service operations and related information technology support.
Gross profit increased $92 million, or 9.8%, to approximately $1.0 billion in the three months ended March 31, 2015, as
compared to the prior year. Gross profit as a percentage of net revenues decreased to 4.3% in the three months ended March 31,
2015, compared to 4.6% in the prior year. The increase in gross profit dollars was primarily due to volume increases, higher
generic dispensing, as well as favorable purchasing and rebate economics, partially offset by price compression. The decrease
in gross profit as a percentage of net revenues was primarily due to price compression, partially offset by favorable generic
dispensing, as well as favorable purchasing and rebate economics.
As you review our Pharmacy Services Segment’s performance in this area, we believe you should consider the following
important information that had an impact on the three months ended March 31, 2015:
•
Our gross profit dollars and gross profit as a percentage of net revenues continued to be impacted by our efforts to
(i) retain existing clients, (ii) obtain new business and (iii) maintain or improve the rebates and/or discounts we
received from manufacturers, wholesalers and retail pharmacies. In particular, competitive pressures in the PBM
industry have caused us and other PBMs to continue to share a larger portion of rebates and/or discounts received from
pharmaceutical manufacturers with clients. In addition, market dynamics and regulatory changes have impacted our
ability to offer plan sponsors pricing that includes retail network “differential” or “spread”. We expect these trends to
continue. The “differential” or “spread” is any difference between the drug price charged to plan sponsors, including
Medicare Part D plan sponsors, by a PBM and the price paid for the drug by the PBM to the dispensing provider. The
increased use of generic drugs has positively impacted our gross profit margins but has resulted in third party payors
augmenting their efforts to reduce reimbursement payments for prescriptions. This trend, which we expect to continue,
reduces the benefit we realize from brand to generic product conversions.
•
Our gross profit as a percentage of revenues benefited from the increase in our total generic dispensing rate, which
increased to 83.5% in the three months ended March 31, 2015, compared to our generic dispensing rate of 82.0% in
the prior year. This increase was primarily due to new generic drug introductions and our continual efforts to
encourage plan members to use clinically appropriate generic drugs when they are available. We expect the trend in
generic introductions to continue, albeit at a slower pace.
Operating Expenses
Operating expenses in our Pharmacy Services Segment include selling, general and administrative expenses; depreciation and
amortization related to selling, general and administrative activities; and expenses related to specialty retail pharmacies, which
includes store and administrative payroll, employee benefits and occupancy costs.
Operating expenses decreased $2 million to $292 million, or 1.2% as a percentage of net revenues, in the three months ended
March 31, 2015, compared to $294 million, or 1.5% as a percentage of net revenues, in the prior year. The improvement in
operating expenses as a percentage of net revenues for the three months ended March 31, 2015 was primarily driven by expense
leverage from our revenue growth.
22
Retail Pharmacy Segment
The following table summarizes our Retail Pharmacy Segment’s performance for the respective periods:
Three Months Ended
March 31,
2015
2014
In millions
Net revenues
Gross profit
Gross profit % of net revenues
Operating expenses
Operating expense % of net revenues
Operating profit
Operating profit % of net revenues
Retail prescriptions filled (90 Day = 3 Rx) (1)
Net revenue increase:
Total
Pharmacy
Front store
Total prescription volume (90 Day = 3 Rx) (1)
Same store increase (decrease)(2):
Total sales
Pharmacy sales
Front store sales(3)
Prescription volume (90 Day = 3 Rx) (1)
Generic dispensing rate
Pharmacy % of total revenues
Third party % of pharmacy revenue
(1)
(2)
(3)
$
16,951
$
5,295
31.2 %
3,568
21.0 %
1,727
10.2 %
241.3
16,480
5,184
31.5 %
3,434
20.8 %
1,750
10.6 %
227.1
2.9 %
5.3 %
(3.6)%
6.3 %
2.7 %
5.1 %
(2.4)%
2.7 %
1.2 %
4.2 %
(6.1)%
5.1 %
84.4 %
71.7 %
98.5 %
1.4 %
3.8 %
(3.8)%
2.1 %
82.9 %
70.5 %
98.3 %
Includes the adjustment to convert 90-day, non-specialty prescriptions to the equivalent of three 30-day prescriptions. This adjustment reflects the
fact that these prescriptions include approximately three times the amount of product days supplied compared to a normal prescription.
Same store sales exclude revenues from MinuteClinic and stores in Brazil.
On a comparable basis, front store same store sales would have been approximately 800 basis points higher for the three months ended March 31,
2015 if tobacco and the estimated associated basket sales were excluded from the three months ended March 31, 2014.
As of March 31, 2015, we operated 7,850 retail drugstores, compared to 7,675 retail drugstores as of March 31, 2014.
Net Revenues
Net revenues in our Retail Pharmacy Segment increased $471 million, or 2.9%, to approximately $17.0 billion in the three
months ended March 31, 2015, as compared to the prior year. As you review our Retail Pharmacy Segment’s performance in
this area, we believe you should consider the following important information that had an impact on the three months ended
March 31, 2015:
•
Net revenues from new stores accounted for approximately 160 basis points of the increase in our total net revenues
for the three months ended March 31, 2015.
•
Front store same store sales decreased by 6.1% for the three months ended March 31, 2015, compared to the prior
year. The decrease is primarily due to the Company’s decision to stop selling tobacco products and softer customer
traffic. On a comparable basis, front store same store sales would have been approximately 800 basis points higher if
tobacco and the estimated associated basket sales were excluded from the three months ended March 31, 2014.
•
Pharmacy same store sales increased 4.2% for the three months ended March 31, 2015, as compared to the prior year.
The increase in pharmacy same store sales was primarily due to the increase in same store script growth of 5.1%,
partially driven by strong seasonal volume. Pharmacy same store sales for the three months ended March 31, 2015
23
were negatively impacted by approximately 190 basis points from the implementation of Specialty Connect. Specialty
Connect transitioned all specialty prescriptions to the Pharmacy Services Segment, as they are being processed
through the Company’s specialty mail order pharmacies. The implementation of Specialty Connect had a greater effect
on revenues than on prescription volumes due to the higher dollar value of specialty products.
•
Pharmacy revenues continue to be negatively impacted by the conversion of brand name drugs to equivalent generic
drugs, which typically have a lower selling price. Pharmacy same store sales were negatively impacted by
approximately 280 basis points for the three months ended March 31, 2015 due to recent generic introductions. The
generic dispensing rate grew to 84.4%, compared to 82.9% in the prior year. In addition, our pharmacy revenue growth
has also been affected by continued reimbursement pressure, the lack of significant new brand name drug
introductions and an increase in the number of over-the-counter remedies that were historically only available by
prescription.
•
Pharmacy revenue growth continued to benefit from the increased utilization by Medicare Part D beneficiaries, our
ability to attract and retain managed care customers and favorable industry trends. These trends include an aging
American population; many “baby boomers” are now in their fifties and sixties and are consuming a greater number of
prescription drugs, as well as expanded coverage from the Patient Protection and Affordable Care Act (“ACA”). In
addition, the increased use of pharmaceuticals as the first line of defense for individual health care contributed to the
growing demand for pharmacy services. We believe these favorable industry trends will continue.
Gross Profit
Gross profit in our Retail Pharmacy Segment includes net revenues less the cost of merchandise sold in the period and the
related purchasing costs, warehousing costs, delivery costs and actual and estimated inventory losses.
Gross profit increased $111 million, or 2.1%, to $5.3 billion in the three months ended March 31, 2015, as compared to the
prior year. Gross profit as a percentage of net revenues decreased to 31.2% in the three months ended March 31, 2015,
compared to 31.5% in the prior year.
The increase in gross profit dollars was primarily driven by increases in generic dispensing rate, same store sales and new store
sales, as well as favorable purchasing economics. The decrease in gross profit as a percentage of net revenues was primarily
driven by a decline in pharmacy margins due to continued reimbursement pressure, partially offset by increased front store
margins due to changes in the mix of products sold as well as favorable purchasing economics. We expect the trend of new
generic introductions to continue, albeit at a slower pace.
As you review our Retail Pharmacy Segment’s performance in this area, we believe you should consider the following
important information that impacted the three months ended March 31, 2015:
•
Front store revenues as a percentage of total revenues for the three months ended March 31, 2015 was 27.6%,
compared to 29.5% in the prior year. On average, our gross profit on front store revenues is higher than our average
gross profit on pharmacy revenues. Pharmacy revenues as a percentage of total revenues increased approximately 120
basis points in the three months ended March 31, 2015 compared to the prior year. The mix effect from higher
proportion of sales in the pharmacy had a negative effect on our overall gross profit for the three months ended
March 31, 2015. The negative effect was partially offset by increased generic drug dispensing rates, the removal of
tobacco products from our stores and increased store brand penetration.
•
During the three months ended March 31, 2015, our front store gross profit as a percentage of net revenues increased
compared to the same period in the prior year. The increase is primarily related to a change in the mix of products sold,
including the removal of tobacco products from our stores, and higher store brand sales.
•
Our pharmacy gross profit rates have been adversely affected by the efforts of managed care organizations, PBMs and
governmental and other third-party payors to reduce their prescription drug costs. In the event this trend accelerates,
we may not be able to sustain our current rate of revenue growth and gross profit dollars could be adversely impacted.
The increased use of generic drugs has positively impacted our gross profit but has resulted in third party payors
augmenting their efforts to reduce reimbursement payments to retail pharmacies for prescriptions. This trend, which
we expect to continue, reduces the benefit we realize from brand to generic product conversions.
24
Operating Expenses
Operating expenses in our Retail Pharmacy Segment include store payroll, store employee benefits, occupancy costs, selling
expenses, advertising expenses, depreciation and amortization expense and certain administrative expenses.
Operating expenses increased $134 million to $3.6 billion, or 21.0% as a percentage of net revenues, in the three months ended
March 31, 2015, as compared to $3.4 billion, or 20.8% as a percentage of net revenues, in the prior year. The increase in
operating expense dollars for the three months ended March 31, 2015, was primarily due to incremental store operating costs
associated with operating more stores. The increase in operating expenses as a percentage of net revenues for the three months
ended March 31, 2015, was driven by the removal of tobacco products from our stores, reimbursement rate pressure and the
implementation of Specialty Connect, all of which reduced net revenues in the Retail Pharmacy Segment. Excluding the effects
on net revenues of the removal of tobacco products from our stores and the implementation of Specialty Connect, operating
expenses as a percentage of net revenues would have improved approximately 50 basis points.
Corporate Segment
Operating Expenses
Operating expenses in our Corporate Segment include expenses from the Company’s executive management, corporate
relations, legal, compliance, human resources, corporate information technology and finance related costs. Operating expenses
decreased $1 million, or 0.7%, to $189 million in the three months ended March 31, 2015, as compared to the prior year.
Operating expenses for the three months ended March 31, 2015 were relatively flat.
Liquidity and Capital Resources
We maintain a level of liquidity sufficient to allow us to cover our cash needs in the short-term. Over the long-term, we manage
our cash and capital structure to maximize shareholder return, strengthen our financial position and maintain flexibility for
future strategic initiatives. We continuously assess our working capital needs, debt and leverage levels, capital expenditure
requirements, dividend payouts, potential share repurchases and future investments or acquisitions. We believe our operating
cash flows, commercial paper program, sale-leaseback program, as well as any potential future borrowings, will be sufficient to
fund these future payments and long-term initiatives.
The change in cash and cash equivalents is as follows:
Three Months Ended March 31,
in millions
Net cash provided by operating activities
$
Net cash used in investing activities
Net cash used in financing activities
Effect of exchange rate changes on cash and cash equivalents
Net decrease in cash and cash equivalents
$
2015
2014
1,984 $
(544)
(2,406)
3
2,172
(2,560)
(935)
—
(963) $
(1,323)
Net cash provided by operating activities was approximately $2.0 billion in the three months ended March 31, 2015, compared
to $2.2 billion in the three months ended March 31, 2014. The $0.2 billion decrease in cash provided by operating activities is
primarily due to various changes in working capital.
Net cash used in investing activities was approximately $0.5 billion in the three months ended March 31, 2015, compared to
$2.6 billion in the three months ended March 31, 2014. The decrease in cash used in investing activities is primarily due to the
$2.1 billion in cash consideration paid for the acquisition of Coram in January 2014.
Net cash used in financing activities was $2.4 billion in the three months ended March 31, 2015, compared to net cash used in
financing activities of $0.9 billion in the three months ended March 31, 2014. The $1.5 billion increase in cash used in
financing activities was primarily due to $1.2 billion of increased share repurchases, $0.2 billion of repayments of commercial
paper and $0.1 billion of increased dividends.
25
As of March 31, 2015, the Company had the following outstanding share repurchase programs were authorized by the
Company’s Board of Directors:
In billions
Authorization Date
December 15, 2014 (“2014 Repurchase Program”)
December 17, 2013 (“2013 Repurchase Program”)
Authorized
Remaining
$ 10.0
$ 6.0
$ 10.0
0.7
$ 10.7
The share repurchase programs, each of which was effective immediately, permit the Company to effect repurchases from time
to time through a combination of open market repurchases, privately negotiated transactions, accelerated share repurchase
transactions, and/or other derivative transactions. The repurchase programs may be modified or terminated by the Board of
Directors at any time.
During the three months ended March 31, 2015, the Company repurchased an aggregate of approximately 16.8 million shares
of common stock for approximately $2.0 billion pursuant to the 2013 Repurchase Program as discussed below.
Pursuant to the authorization under the 2013 Repurchase Program, effective January 2, 2015, we entered into a $2.0 billion
fixed dollar accelerated share repurchase (“ASR”) agreement with JPMorgan Chase Bank (“JPMorgan”). Upon payment of the
$2.0 billion purchase price on January 5, 2015, we received a number of shares of our common stock equal to 80% of the $2.0
billion notional amount of the ASR agreement or approximately 16.8 million shares. The initial 16.8 million shares of common
stock delivered to the Company by JPMorgan were placed into treasury stock in January 2015. On May 1, 2015, the Company
received approximately 3.1 million shares of common stock, representing the remaining 20% of the $2.0 billion notional
amount of the ASR agreement, thereby concluding the agreement. This brings the average price per share for the total 19.9
million shares delivered to $100.64 per share. The remaining 3.1 million shares of common stock delivered to the Company by
JPMorgan were placed into treasury stock in May 2015.
The ASR agreement was accounted for as an initial treasury stock transaction for approximately $1.6 billion and a forward
contract for approximately $0.4 billion. The forward contract was classified as an equity instrument and was recorded within
capital surplus on the condensed consolidated balance sheet at March 31, 2015. The forward contract will be reclassified to
treasury stock upon the settlement of the agreement in May 2015. The initial repurchase of the shares resulted in an immediate
reduction of the outstanding shares used to calculate the weighted average common shares outstanding for basic and diluted net
income per share.
We had $500 million of commercial paper outstanding at a weighted average interest rate of 0.51% as of March 31, 2015. In
connection with our commercial paper program, we maintain a $1.25 billion, five-year unsecured back-up credit facility, which
expires on February 17, 2017, and a $1.0 billion, five-year unsecured back-up credit facility, which expires on May 23, 2018,
and a $1.25 billion, five-year unsecured back-up credit facility, which expires on July 24, 2019. The credit facilities allow for
borrowings at various rates that are dependent, in part, on the Company’s public debt ratings and require the Company to pay a
weighted average quarterly facility fee of approximately 0.03%, regardless of usage. As of March 31, 2015, there were no
borrowings outstanding under the back-up credit facilities.
Our back-up credit facilities and unsecured senior notes contain customary restrictive financial and operating covenants. These
covenants do not include a requirement for the acceleration of our debt maturities in the event of a downgrade in our credit
rating. We do not believe the restrictions contained in these covenants materially affect our financial or operating flexibility.
As of March 31, 2015, our long-term debt was rated “Baa1” by Moody’s with a stable outlook and “BBB+” by Standard &
Poor’s with a stable outlook, and our commercial paper program was rated “P-2” by Moody’s and “A-2” by Standard & Poor’s.
In assessing our credit strength, we believe that both Moody’s and Standard & Poor’s considered, among other things, our
capital structure and financial policies as well as our consolidated balance sheet, our historical acquisition activity and other
financial information. Although we currently believe our long-term debt ratings will remain investment grade, we cannot
guarantee the future actions of Moody’s and/or Standard & Poor’s. Our debt ratings have a direct impact on our future
borrowing costs, access to capital markets and new store operating lease costs.
26
Off-Balance Sheet Arrangements
In connection with executing operating leases, we provide a guarantee of the lease payments. We also finance a portion of our
new store development through sale-leaseback transactions, which involve selling stores to unrelated parties and then leasing
the stores back under leases that generally qualify and are accounted for as operating leases. We do not have any retained or
contingent interests in the stores, and we do not provide any guarantees, other than a guarantee of the lease payments, in
connection with the transactions. In accordance with accounting principles generally accepted in the United States of America
(“GAAP”), such operating leases are not reflected in our condensed consolidated balance sheet. See Note 8 to our condensed
consolidated financial statements for a detailed discussion of these guarantees.
Critical Accounting Policies
We prepare our consolidated financial statements in conformity with GAAP, which requires management to make certain
estimates and apply judgment. We base our estimates and judgments on historical experience, current trends and other factors
that management believes to be important at the time the condensed consolidated financial statements are prepared. On a
regular basis, we review our accounting policies and how they are applied and disclosed in our condensed consolidated
financial statements.
While we believe that the historical experience, current trends and other factors considered support the preparation of our
condensed consolidated financial statements in conformity with GAAP, actual results could differ from our estimates and such
differences could be material.
For a full description of our other critical accounting policies, please refer to Item 7, “Management’s Discussion and Analysis
of Financial Condition and Results of Operations” in our 2014 Form 10-K.
Proposed Accounting Standard Update
In May 2013, the FASB issued a revised proposed accounting standard update on lease accounting that will require entities to
recognize assets and liabilities arising from lease contracts on the balance sheet. The proposed accounting standard update
states that lessees and lessors should apply a “right-of-use model” in accounting for all leases. Under the proposed model,
lessees would recognize an asset for the right to use the leased asset, and a liability for the obligation to make rental payments
over the lease term. The lease term is defined as the noncancelable term that takes into account renewal options and termination
options if it is reasonably certain an entity will exercise or not exercise the option. The accounting by a lessor would reflect its
retained exposure to the risks or benefits of the underlying leased asset. A lessor would recognize an asset representing its right
to receive lease payments based on the expected term of the lease. The Company cannot presently determine the potential
impact the proposed standard would have on its results of operations. While the Company believes that the proposed standard,
as currently drafted, will likely have a material impact on its financial position, it will not have a material impact on its
liquidity; however, until the proposed standard is finalized, such evaluation cannot be completed.
27
Cautionary Statement Concerning Forward-Looking Statements
This quarterly report contains forward-looking statements within the meaning of the federal securities laws. In addition, the
Company and its representatives may, from time to time, make written or verbal forward-looking statements, including
statements contained in the Company’s filings with the U.S. Securities and Exchange Commission (“SEC”) and in its reports to
stockholders, press releases, webcasts, conference calls, meetings and other communications. Generally, the inclusion of the
words “believe,” “expect,” “intend,” “estimate,” “project,” “anticipate,” “will,” “should” and similar expressions identify
statements that constitute forward-looking statements. All statements addressing operating performance of CVS Health
Corporation or any subsidiary, events or developments that the Company expects or anticipates will occur in the future,
including statements relating to corporate strategy; revenue growth; earnings or earnings per common share growth; adjusted
earnings or adjusted earnings per common share growth; free cash flow; debt ratings; inventory levels; inventory turn and loss
rates; store development; relocations and new market entries; retail pharmacy business, sales trends and operations; PBM
business, sales trends and operations; the Company’s ability to attract or retain customers and clients; Medicare Part D
competitive bidding, enrollment and operations; new product development; and the impact of industry developments, as well as
statements expressing optimism or pessimism about future operating results or events, are forward-looking statements within
the meaning of the federal securities laws.
The forward-looking statements are and will be based upon management’s then-current views and assumptions regarding future
events and operating performance, and are applicable only as of the dates of such statements. The Company undertakes no
obligation to update or revise any forward-looking statements, whether as a result of new information, future events, or
otherwise.
By their nature, all forward-looking statements involve risks and uncertainties. Actual results may differ materially from those
contemplated by the forward-looking statements for a number of reasons as described in our SEC filings, including those set
forth in the Risk Factors section within the 2014 Form 10-K, and including, but not limited to:
•
Risks relating to the health of the economy in general and in the markets we serve, which could impact consumer
purchasing power, preferences and/or spending patterns, drug utilization trends, the financial health of our PBM clients or
other payors doing business with the Company and our ability to secure necessary financing, suitable store locations and
sale-leaseback transactions on acceptable terms.
•
Efforts to reduce reimbursement levels and alter health care financing practices, including pressure to reduce
reimbursement levels for generic drugs.
•
The possibility of PBM client loss and/or the failure to win new PBM business, including as a result of failure to win
renewal of expiring contracts, contract termination rights that may permit clients to terminate a contract prior to
expiration and early or periodic renegotiation of pricing by clients prior to expiration of a contract.
•
The possibility of loss of Medicare Part D business and/or failure to obtain new Medicare Part D business, whether as a
result of the annual Medicare Part D competitive bidding process or otherwise.
•
Risks related to the frequency and rate of the introduction of generic drugs and brand name prescription products.
•
Risks of declining gross margins in the PBM industry attributable to increased competitive pressures, increased client
demand for lower prices, enhanced service offerings and/or higher service levels and market dynamics and regulatory
changes that impact our ability to offer plan sponsors pricing that includes the use of retail “differential” or “spread.”
•
Regulatory changes, business changes and compliance requirements and restrictions that may be imposed by Centers for
Medicare and Medicaid Services (“CMS”), Office of Inspector General or other government agencies relating to the
Company’s participation in Medicare, Medicaid and other federal and state government-funded programs, including
sanctions and remedial actions that may be imposed by CMS on its Medicare Part D business.
•
Risks and uncertainties related to the timing and scope of reimbursement from Medicare, Medicaid and other governmentfunded programs, including the impact of sequestration, the impact of other federal budget, debt and deficit negotiations
and legislation that could delay or reduce reimbursement from such programs and the impact of any closure, suspension or
other changes affecting federal or state government funding or operations.
28
•
Possible changes in industry pricing benchmarks used to establish pricing in many of our PBM client contracts,
pharmaceutical purchasing arrangements, retail network contracts, specialty payor agreements and other third party
payor contracts.
•
A highly competitive business environment, including the uncertain impact of increased consolidation in the PBM industry,
uncertainty concerning the ability of our retail pharmacy business to secure and maintain contractual relationships with
PBMs and other payors on acceptable terms, uncertainty concerning the ability of our PBM business to secure and
maintain competitive access, pricing and other contract terms from retail network pharmacies in an environment where
some PBM clients are willing to consider adopting narrow or more restricted retail pharmacy networks.
•
The Company’s ability to realize the planned benefits associated with the acquisition of Coram in accordance with the
expected timing.
•
The Company’s ability to timely identify or effectively respond to changing consumer preferences and spending patterns, an
inability to expand the products being purchased by our customers, or the failure or inability to obtain or offer particular
categories of products.
•
Risks relating to our ability to secure timely and sufficient access to the products we sell from our domestic and/or
international suppliers.
•
Reform of the U.S. health care system, including ongoing implementation of ACA, continuing legislative efforts, regulatory
changes and judicial interpretations impacting our health care system and the possibility of shifting political and
legislative priorities related to reform of the health care system in the future.
•
Risks relating to any failure to properly maintain our information technology systems, our information security systems and
our infrastructure to support our business and to protect the privacy and security of sensitive customer and business
information.
•
Risks related to compliance with a broad and complex regulatory framework, including compliance with new and existing
federal, state and local laws and regulations relating to health care, accounting standards, corporate securities, tax,
environmental and other laws and regulations affecting our business.
•
Risks related to litigation, government investigations and other legal proceedings as they relate to our business, the
pharmacy services, retail pharmacy or retail clinic industries or to the health care industry generally.
•
Other risks and uncertainties detailed from time to time in our filings with the SEC.
The foregoing list is not exhaustive. There can be no assurance that the Company has correctly identified and appropriately
assessed all factors affecting its business. Additional risks and uncertainties not presently known to the Company or that it
currently believes to be immaterial also may adversely impact the Company. Should any risks and uncertainties develop into
actual events, these developments could have a material adverse effect on the Company’s business, financial condition and
results of operations. For these reasons, you are cautioned not to place undue reliance on the Company’s forward-looking
statements.
29
Item 3. Quantitative and Qualitative Disclosures About Market Risk
As of March 31, 2015, the Company did not have any interest rate, foreign currency exchange rate or commodity derivative
instruments in place and believes that as of March 31, 2015 its exposure to interest rate risk (inherent in the Company’s debt
portfolio), foreign currency exchange rate risk and commodity price risk is not material.
Item 4.
Controls and Procedures
Evaluation of disclosure controls and procedures: The Company’s Chief Executive Officer and Chief Financial Officer, after
evaluating the effectiveness of the design and operation of the Company’s disclosure controls and procedures (as defined in
Securities Exchange Act Rules 13a-15 (f) and 15d-15(f)) as of March 31, 2015, have concluded that as of such date the
Company’s disclosure controls and procedures were adequate and effective and designed to provide reasonable assurance that
material information relating to the Company and its subsidiaries would be made known to such officers on a timely basis.
Changes in internal control over financial reporting: During the three months ended March 31, 2015, we implemented a
new perpetual inventory system to account for front store inventories in our Retail Pharmacy Segment and changed our
methods of accounting for front store inventories in the Retail Pharmacy Segment from the retail inventory method in retail
stores and from the FIFO cost method in distribution centers to the weighted average cost method. Other than the foregoing,
there have been no changes in our internal controls over financial reporting identified in connection with the evaluation
required by paragraph (d) of Securities Exchange Act Rule 13a-15 or Rule 15d-15 that occurred in the three months ended
March 31, 2015 that have materially affected, or are reasonably likely to materially affect, our internal control over financial
reporting.
30
Part II
Item 1. Legal Proceedings
We refer you to Note 8 - "Commitments and Contingencies - Legal Matters" contained in the "Notes to the Condensed
Consolidated Financial Statements" of our Quarterly Report on Form 10-Q for the three months ended March 31, 2015 for a
description of our legal proceedings.
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds
(c) Stock Repurchases
The following table presents the total number of shares purchased in the three months ended March 31, 2015, the average price
paid per share and the approximate dollar value of shares that still could have been purchased at the end of the applicable fiscal
period, pursuant to the 2014 and 2013 Repurchase Programs. See Note 3 to the condensed consolidated financial statements.
Fiscal Period
January 1, 2015 through January 31, 2015
February 1, 2015 through February 28, 2015
March 1, 2015 through March 31, 2015
Totals
Total Number
Average
of Shares
Price Paid
Purchased
per Share
16,795,255 $
94.49
— $
—
— $
—
16,795,255
Total Number of
Approximate Dollar
Shares
Value of Shares that
Purchased as Part of
May Yet Be
Publicly Announced Purchased Under the
Plans or Programs
Plans or Programs
16,795,255 $
10,684,839,660
10,684,839,660
— $
10,684,839,660
— $
16,795,255
31
Item 6.
Exhibits
Exhibits:
Exhibits marked with an asterisk (*) are hereby incorporated by reference to exhibits or appendices previously filed by the
Registrant as indicated in brackets following the description of the exhibit.
3.1* Amended and Restated Certificate of Incorporation of the Registrant [incorporated by reference to Exhibit 3.1 of the
Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 1996 (Commission File No. 00101011)].
3.1A* Certificate of Amendment to the Amended and Restated Certificate of Incorporation, effective May 13, 1998
[incorporated by reference to Exhibit 4.1A to Registrant’s Registration Statement No. 333-52055 on Form S-3/A
dated May 18, 1998 (Commission File No. 001-01001)].
3.1B* Certificate of Amendment to the Amended and Restated Certificate of Incorporation [incorporated by reference to
Exhibit 3.1 to Registrant’s Current Report on Form 8-K dated March 22, 2007 (Commission File No. 001-01011)].
3.1C* Certificate of Merger dated May 9, 2007 [incorporated by reference to Exhibit 3.1C to Registrant’s Quarterly Report
on Form 10-Q dated November 1, 2007 (Commission File No. 001-01011)].
3.1D* Certificate of Amendment to the Amended and Restated Certificate of Incorporation [incorporated by reference to
Exhibit 3.1 to the Registrant’s Current Report on Form 8-K dated May 13, 2010 (Commission File No. 001-01011)].
3.1E* Certificate of Amendment to the Amended and Restated Certificate of Incorporation [incorporated by reference to
Exhibit 3.1 to the Registrant’s Current Report on Form 8-K dated May 10, 2012 (Commission File No. 001-01011)].
3.1F* Certificate of Amendment to the Amended and Restated Certificate of Incorporation [incorporated by reference to
Exhibit 3.1 to the Registrant’s Current Report on Form 8-K dated May 13, 2013 (Commission File No. 001-01011)].
3.1G* Certificate of Amendment to the Amended and Restated Certificate of Incorporation [incorporated by reference to
Exhibit 3.1 to the Registrant’s Current Report on Form 8-K dated September 3, 2014 (Commission File No. 00101011)].
3.2* By-laws of Registrant, as amended and restated [incorporated by reference to Exhibit 3.2 to the Registrant's Current
Report on Form 8-K dated September 3, 2014 (Commission File No. 001-01011)].
10.1 Change in Control Agreement dated October 1, 2012 between the Registrant and the Registrant’s Executive Vice
President, Chief Health Strategy Officer and General Counsel.
10.2 Restrictive Covenant Agreement dated June 1, 2014 between the Registrant and the Registrant’s Executive Vice
President, Chief Health Strategy Officer and General Counsel.
15.1 Letter re: Unaudited Interim Financial Information.
18
Letter re: Changes in Accounting Principle.
31.1 Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
31.2 Certification of Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
32.1 Certification of Chief Executive Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
32.2 Certification of Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
32
101
The following materials from the CVS Health Corporation Quarterly Report on Form 10-Q for the three months
ended March 31, 2015 formatted in Extensible Business Reporting Language (XBRL): (i) the Condensed
Consolidated Statements of Income, (ii) the Condensed Consolidated Statements of Comprehensive Income, (iii) the
Condensed Consolidated Balance Sheets, (iv) the Condensed Consolidated Statements of Cash Flows and (v) related
Footnotes to the Condensed Consolidated Financial Statements.
33
Signatures:
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this
Quarterly Report on Form 10-Q to be signed on its behalf by the undersigned, thereunto duly authorized.
CVS Health Corporation
(Registrant)
/s/ David M. Denton
David M. Denton
Executive Vice President and
Chief Financial Officer
May 1, 2015
34
Part II
Exhibit 15.1
Letter re: Unaudited Interim Financial Information
May 1, 2015
The Board of Directors and Shareholders:
CVS Health Corporation
We are aware of the incorporation by reference in the Registration Statements (Nos. 333-49407, 333-34927, 333-28043, 33391253, 333-63664, 333-139470, 333-141481 and 333-167746 on Form S-8 and 333-187440 and 333-200217 on Form S-3ASR)
of CVS Health Corporation of our report dated May 1, 2015 relating to the unaudited condensed consolidated interim financial
statements of CVS Health Corporation that are included in its Form 10-Q for the quarter ended March 31, 2015.
/s/ Ernst & Young LLP
Boston, Massachusetts
35
Part II
Exhibit 18
Letter re: Changes in Accounting Principle
May 1, 2015
Mr. David Denton
Executive Vice President and
Chief Financial Officer
CVS Health Corporation
One CVS Drive
Woonsocket, RI 02895
Dear Mr. Denton:
Note 2 of the Notes to the Condensed Consolidated Financial Statements of CVS Health Corporation included in its Form 10-Q for
the quarter ended March 31, 2015 describes changes in the methods of accounting for front store inventories in the Retail Pharmacy
Segment from a lower of cost or market on a first-in, first-out (“FIFO”) basis in retail stores using the retail inventory method and in
the distribution centers from the FIFO cost method to a lower of cost or market using the weighted-average cost method. There are
no authoritative criteria for determining a “preferable” method for accounting for inventory based on the particular circumstances;
however, we conclude that such changes in the methods of accounting are to an acceptable alternative method which, based on your
business judgment to make these changes and for the stated reasons, is preferable in your circumstances. We have not conducted an
audit in accordance with the standards of the Public Company Accounting Oversight Board (United States) of any financial
statements of the Company as of any date or for any period subsequent to December 31, 2014, and therefore we do not express any
opinion on any financial statements of CVS Health Corporation subsequent to that date.
Very truly yours,
/s/ Ernst & Young LLP
Boston, Massachusetts
36
Exhibit 31.1
Certification Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
I, Larry J. Merlo, President and Chief Executive Officer of CVS Health Corporation, certify that:
1.
I have reviewed this quarterly report on Form 10-Q of CVS Health Corporation;
2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements made, in light of the circumstances under which such statements were made, not
misleading with respect to the period covered by this report;
3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present
in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the
periods presented in this report;
4.
The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and
procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting
(as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
5.
(a)
Designed such disclosure controls and procedures or caused such disclosure controls and procedures to be
designed under our supervision, to ensure that material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those entities, particularly during the period
in which this report is being prepared;
(b)
Designed such internal control over financial reporting, or caused such internal control over financial
reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external purposes in accordance with
generally accepted accounting principles;
(c)
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report
our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period
covered by this report based on such evaluation; and
(d)
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred
during the registrant’s most recent fiscal quarter that has materially affected or is reasonably likely to
materially affect, the registrant’s internal control over financial reporting; and
The registrant’s other certifying officer and I have disclosed based on our most recent evaluation of internal control
over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors:
(a)
All significant deficiencies and material weaknesses in the design or operation of internal control over
financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process,
summarize and report financial information; and
(b)
Any fraud, whether or not material, that involves management or other employees who have a significant
role in the registrant’s internal control over financial reporting.
Date: May 1, 2015
By:
/s/ Larry J. Merlo
Larry J. Merlo
President and Chief
Executive Officer
37
Exhibit 31.2
Certification Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
I, David M. Denton, Executive Vice President and Chief Financial Officer of CVS Health Corporation, certify that:
1.
I have reviewed this quarterly report on Form 10-Q of CVS Health Corporation;
2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements made, in light of the circumstances under which such statements were made, not
misleading with respect to the period covered by this report;
3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present
in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the
periods presented in this report;
4.
The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and
procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting
(as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
5.
(a)
Designed such disclosure controls and procedures or caused such disclosure controls and procedures to be
designed under our supervision, to ensure that material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those entities, particularly during the
period in which this report is being prepared;
(b)
Designed such internal control over financial reporting, or caused such internal control over financial
reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external purposes in accordance with
generally accepted accounting principles;
(c)
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this
report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the
period covered by this report based on such evaluation; and
(d)
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred
during the registrant’s most recent fiscal quarter that has materially affected or is reasonably likely to
materially affect, the registrant’s internal control over financial reporting; and
The registrant’s other certifying officer and I have disclosed based on our most recent evaluation of internal control
over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors:
(a)
All significant deficiencies and material weaknesses in the design or operation of internal control over
financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process,
summarize and report financial information; and
(b)
Any fraud, whether or not material, that involves management or other employees who have a significant
role in the registrant’s internal control over financial reporting.
Date: May 1, 2015
By:
/s/ David M. Denton
David M. Denton
Executive Vice President and
Chief Financial Officer
38
Exhibit 32.1
CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
The certification set forth below is being submitted in connection with the Quarterly Report of CVS Health Corporation (the
“Company”) on Form 10-Q for the period ended March 31, 2015 (the “Report”), for the purpose of complying with Rule 13(a)14(b) or Rule 15d-14(b) of the Securities Exchange Act of 1934 (the “Exchange Act”) and Section 1350 of Chapter 63 of Title
18 of the United States Code.
I, Larry J. Merlo, President and Chief Executive Officer of the Company, certify that, to the best of my knowledge:
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Exchange Act; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and result
of operations of the Company.
Date: May 1, 2015
/s/ Larry J. Merlo
Larry J. Merlo
President and Chief Executive
Officer
39
Exhibit 32.2
CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
The certification set forth below is being submitted in connection with the Quarterly Report of CVS Health Corporation (the
“Company”) on Form 10-Q for the period ended March 31, 2015 (the “Report”), for the purpose of complying with Rule 13(a)14(b) or Rule 15d-14(b) of the Securities Exchange Act of 1934 (the “Exchange Act”) and Section 1350 of Chapter 63 of Title
18 of the United States Code.
I, David M. Denton, Executive Vice President and Chief Financial Officer of the Company, certify that, to the best of my
knowledge:
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Exchange Act; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and result
of operations of the Company.
Date: May 1, 2015
/s/ David M. Denton
David M. Denton
Executive Vice President and
Chief Financial Officer
40
CVS CAREMARK CORPORATION
Change in Control Agreement for
Thomas Moriarty
CONFIDENTIAL
Revised September 2012
Page
1.
Definitions........................................................................................................................................... 1
2.
Term of Agreement. ........................................................................................................................... 4
3.
Entitlement to Severance Benefit. ...................................................................................................... 5
4.
Confidentiality; Cooperation with Regard to Litigation; Non-disparagement. .................................... 7
5.
Non-solicitation. .................................................................................................................................. 8
6.
Remedies. .......................................................................................................................................... 8
7.
Effect of Agreement on Other Benefits. ............................................................................................. 9
8.
Not an Employment Agreement. ........................................................................................................ 9
9.
Resolution of Disputes. ...................................................................................................................... 9
10.
Assignability; Binding Nature. ............................................................................................................ 9
11.
Representation. .................................................................................................................................. 9
12.
Amendment or Waiver; Section 409A. ............................................................................................... 9
13.
Severability. ...................................................................................................................................... 10
14.
Survivorship...................................................................................................................................... 10
15.
Beneficiaries/References. ................................................................................................................ 10
16.
Governing Law/Jurisdiction. ............................................................................................................. 10
17.
Notices. ............................................................................................................................................ 10
18.
Headings. ......................................................................................................................................... 11
19.
Counterparts..................................................................................................................................... 11
This Change in Control Agreement ("Agreement") is made and entered into as of October 1,
2012, between CVS Pharmacy, Inc. ("CVS") and Thomas Moriarty (the "Executive").
WHEREAS, the Board of Directors (the "Board") of CVS Caremark Corporation ("CVS
Caremark" or the “Company”) believes it is necessary and desirable for the Company to be able to rely upon
Executive to continue serving in Executive’s position with the Company in the event of a pending or actual
change in control of CVS Caremark;
WHEREAS, Executive is employed by a Subsidiary of CVS Caremark, and this Agreement
shall not alter Executive's status as an employee at will;
NOW, THEREFORE, in consideration of the promises and mutual covenants contained herein
and for other good and valuable consideration, the receipt of which is mutually acknowledged, CVS and the
Executive (individually a "Party" and together the "Parties”) agree as follows:
1.
Definitions.
a.
"Base Salary" shall mean Executive's annual rate of base salary at the time of Executive’s
termination of employment or, if greater, as in effect immediately prior to a Change in
Control.
b.
"Cause" shall exist if:
i.
Executive willfully and materially breaches Sections 4 or 5 of this Agreement;
ii.
Executive is convicted of a felony involving moral turpitude; or
iii.
Executive engages in conduct that constitutes willful gross neglect or willful gross
misconduct in carrying out Executive’s duties under this Agreement, resulting, in
either case, in material harm to the financial condition or reputation of the
Company.
For purposes of this Agreement, an act or failure to act on Executive's part shall be
considered "willful" if it was done or omitted to be done by Executive not in good
faith, and shall not include any act or failure to act resulting from any incapacity of
Executive. A termination for Cause shall not take effect absent compliance with the
provisions of this paragraph. Executive shall be given written notice by the
Company of its intention to terminate Executive’s employment for Cause, such
notice (A) to state in detail the particular act or acts or failure or failures to act that
constitute the grounds on which the proposed termination for Cause is based and
(B) to be given within 90 days of the Company's learning of such act or acts or
failure or failures to act. Executive shall have 20 days after the date that such
written notice has been given to Executive in which to cure such conduct, to extent
such cure is possible. If Executive fails to cure such conduct, Executive shall then
be entitled to a hearing before the Committee, or an officer or officers designated
by the Committee, at which Executive is entitled to appear. Such hearing shall be
held within 25 days of such notice to Executive, provided Executive requests such
hearing within 10 days of the written notice from the Company of the intention to
terminate Executive for Cause. If, within five days following such hearing,
Executive is furnished written notice by the Committee confirming that, in its
judgment, grounds for Cause on the basis of the original notice exist, Executive
shall thereupon be terminated for Cause. Executive's right to cure in accordance
with this provision applies only in the event of a Change in Control as defined in
Section 1(c) below and does not alter Executive's "at will" employment status.
1
c.
A “Change in Control” shall be deemed to have occurred if:
(i)
any Person (other than (w) the Company, (x) any trustee or other fiduciary
holding securities under any employee benefit plan of the Company, (y)
any company owned, directly or indirectly, by the stockholders of the
Company immediately after the occurrence with respect to which the
evaluation is being made in substantially the same proportions as their
ownership of the common stock of the Company immediately prior to such
occurrence or (z) any surviving or resulting entity from a merger or
consolidation referred to in clause (iii) below that does not constitute a
Change of Control under clause (iii) below) becomes the Beneficial Owner
(except that a Person shall be deemed to be the Beneficial Owner of all
shares that any such Person has the right to acquire pursuant to any
agreement or arrangement or upon exercise of conversion rights, warrants
or options or otherwise, without regard to the sixty day period referred to in
Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of
the Company or of any subsidiary owning directly or indirectly all or
substantially all of the consolidated assets of the Company (a "Significant
Subsidiary"), representing 30% or more of the combined voting power of
the Company's or such Significant Subsidiary's then outstanding
securities;
(ii)
during any period of twelve (12) consecutive months, individuals who at
the beginning of such period constitute the Board, and any new director
whose election by the Board or nomination for election by the Company's
stockholders was approved by a vote of at least a majority of the
directors then still in office who either were directors at the beginning of
the twelve (12) month period or whose election or nomination for election
was previously so approved, cease for any reason to constitute at least a
majority of the Board;
(iii)
the consummation of a merger or consolidation of the Company or any
Significant Subsidiary with any other entity, other than a merger or
consolidation which would result in the voting securities of the Company
or a Significant Subsidiary outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving or resulting entity) more
than 50% of the combined voting power of the surviving or resulting
entity outstanding immediately after such merger or consolidation; or
(iv)
the consummation of a transaction (or series of transactions within a 12
month period) which constitutes the sale or disposition of all or
substantially all of the consolidated assets of the Company but in no
event assets having a gross fair market value of less than 40% of the
total gross fair market value of all of the consolidated assets of the
Company (other than such a sale or disposition immediately after which
such assets will be owned directly or indirectly by the stockholders of the
Company in substantially the same proportions as their ownership of the
common stock of the Company immediately prior to such sale or
disposition).
For purposes of this definition:
(A)
The term "Beneficial Owner" shall have the meaning ascribed to
such term in Rule 13d-3 under the Exchange Act (including any
successor to such Rule).
2
(B)
The term "Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time, or any successor act
thereto.
(C)
The term "Person" shall have the meaning ascribed to such term
in Section 3(a)(9) of the Exchange Act and used in Sections 13(d)
and 14(d) thereof, including "group" as defined in Section 13(d)
thereof.
d.
"Committee" shall mean the Management Planning and Development Committee of the
Board, or the corresponding committee of the board of directors of a successor to CVS
Caremark.
e.
"Company" shall mean, collectively, CVS Caremark and any Subsidiary or affiliate of CVS
Caremark.
f.
"Confidential Information" shall have the meaning set forth in Section 4 below.
g.
"Constructive Termination Without Cause" shall mean a termination of the Executive's
employment at Executive’s initiative following the occurrence, without the Executive's
written consent, of one or more of the following events (except as a result of a prior
termination):
i.
an assignment of any duties to Executive that is materially inconsistent with
Executive’s status as a member of the senior management of CVS Caremark;
ii.
a material decrease in Executive's annual base salary or target annual incentive
award opportunity;
iii.
any failure to secure the agreement of any successor to CVS Caremark to fully
assume the Company’s material obligations under this Agreement; or
iv.
a relocation of Executive's principal place of employment more than 35 miles from
Executive’s place of employment before such relocation.
In all cases, no Constructive Termination Without Cause shall be deemed to have occurred
unless (a) the Executive provides written notice to the Company that an event described in
subsections i. through iv. has occurred, and such notice identifies such event and is
provided within 30 days of the initital occurrence of such event, (b) a cure period of 45 days
following the Company’s receipt of such notice expires and the Company has not cured
such event within such cure period and (c) the Executive actually terminates his/her
employment within 30 days of the expiration of the cure period.
h.
"Disability" shall mean disability as that term is defined in the Company's Long-Term
Disability Plan.
i.
"Effective Date" shall have the meaning set forth in Section 2 below.
j.
"Original Term" shall have the meaning set forth in Section 2 below.
k.
"Renewal Term" shall have the meaning set forth in Section 2 below.
l.
"Severance Period" shall mean the period of 18 months following the termination of
Executive's employment with the Company.
3
m.
"Subsidiary" shall have the meaning set forth in Section 4 below.
n.
"Term" shall have the meaning set forth in Section 2 below.
o.
“termination of employment”, “employment is terminated” and other similar words shall
mean with respect to Executive
(i)
for any plan or arrangement that is subject to the rules of Section 409A of the
Internal Revenue Code (the “Code”) a “Separation from Service” as such term is defined in
the Income Tax Regulations under Section 409A (the “409A Regulations”) of the Code as
modified by the rules described below:
(ii)
(A)
except in the case where Executive is on a bona fide leave of absence
pursuant to the Company’s policies as provided below, Executive is
deemed to have incurred a Separation from Service on a date if the
company and Executive reasonably anticipate that the level of services to
be performed by Executive after such date would be permanently reduced
to 20% or less of the average services rendered by Executive during the
immediately preceding 36-month period (or the total period of employment,
if less than 36 months), disregarding periods during which Executive was
on a bona fide leave of absence;
(B)
if Executive is absent from work due to military leave, sick leave, or other
bona fide leave of absence pursuant to the Company’s policies, Executive
shall incur a Separation from Service on the first date that the rules of (A),
above, are satisfied following the later of (i) the six-month anniversary of
the commencement of the leave or (ii) the expiration of Executive’s right, if
any, to reemployment under statute, contract or Company policy;
(C)
Executive shall be considered to continue employment and to not have a
Separation from Service while on a bona fide leave of absence pursuant to
the Company’s policies if the leave does not exceed 6 consecutive months
(12) months for a disability leave of absence) or, if longer, so long as the
Executive retains a right to reemployment with the Company or an Affiliate
under an applicable statute, contract or Company policy. For this purpose,
a “disability leave of absence” is an absence due to any medically
determinable physical or mental impairment of Executive that can be
expected to result in death or can be expected to last for a continuous
period of not less than 6 months, where such impairment causes
Executive to be unable to perform the duties of Executive’s job or a
substantially similar job;
(D)
for purposes of determining whether another organization is an Affiliate of
the Company, common ownership of at least 50% shall be determinative;
(E)
the Company specifically reserves the right to determine whether a sale or
other disposition of substantial assets to an unrelated party constitutes a
Separation from Service with respect to Executive providing services to
the seller immediately prior to the transaction and providing services to the
buyer after the transaction. Such determination shall be made in
accordance with the requirements of Section 409A of the Code; or
for any plan or arrangement that is not subject to the rules of Section 409A of the
Code, the complete cessation of providing service to the Company or any Affiliate
as an employee.
4
2.
Term of Agreement.
The term of this Agreement shall commence on the date of this Agreement (the "Effective Date")
and end on the third anniversary of such date (the "Original Term"). The Original Term shall be
automatically renewed for successive one-year terms (the "Renewal Terms") unless at least 180
days prior to the expiration of the Original Term or any Renewal Term, either Party notifies the other
Party in writing that he/she or it is electing to terminate this Agreement at the expiration of the then
current Term. "Term" shall mean the Original Term and all Renewal Terms. If a Change in Control
shall have occurred during the Term, notwithstanding any other provision of this Section 2, the
Term shall not expire earlier than two years after such Change in Control.
3.
Entitlement to Severance Benefit.
a.
Severance Benefit. In the event Executive's employment with the Company is Terminated
Without Cause, other than due to death, or Disability, or in the event there is a Constructive
Termination Without Cause, in each case within two years following a Change in Control,
Executive shall be entitled to receive:
i.
Base Salary through the date of termination of Executive's employment, which
shall be paid in a cash lump sum not later than 15 days following Executive's
termination of employment;
ii.
An amount equal to 1.5 times Executive's Base Salary in effect on the date of
termination of Executive's employment (or in the event a reduction in Base Salary
is a basis for a Constructive Termination Without Cause, then the Base Salary in
effect immediately prior to such reduction), payable in a cash lump sum following
Executive's termination of employment;
iii.
An amount equal to the most recently established target annual cash incentive
bonus amount, prorated based on the portion of the performance year that
Executive has worked as of the date of Executive’s termination. Such payment of a
pro rata annual cash incentive bonus will be payable in a cash lump sum following
Executive's termination of employment;
iv.
An amount equal to 1.5 times the most recently established target annual incentive
cash bonus amount, payable in a cash lump sum following the Executive's
termination of employment;
v.
Elimination of all restrictions on any restricted stock or restricted stock unit awards
outstanding at the time of termination of employment (other than awards under the
Company's Partnership Equity Program, which shall be governed by the terms of
such awards);
vi.
Immediate vesting of all outstanding stock options and the right to exercise such
stock options for the remainder of the full term of such option (other than awards
under the Company's Partnership Equity Program, which shall be governed by the
terms of such awards);
vii.
The balance of any incentive awards earned as of December 31 of the prior year
but not yet paid, which shall be paid in a single lump sum not later than 15 days
following Executive's termination of employment;
viii.
Settlement of all deferred compensation arrangements in accordance with any
then applicable deferred compensation plan or election form;
5
ix.
Continued participation in all medical, health and life insurance plans at the same
benefit level at which Executive was participating on the date of termination of
Executive’s employment until the earlier of:
1. the end of the Severance Period; or
2. the date, or dates, Executive receives equivalent coverage and
benefits under the plans and programs of a subsequent employer
(such coverage and benefits to be determined on a
coverage-by-coverage, or benefit-by-benefit, basis);
provided that (1) if Executive is precluded from continuing Executive’s participation
in any employee benefit plan or program as provided in this clause (ix) of this
Section 3.a, Executive shall receive cash payments equal on an after-tax basis to
the cost to Executive of obtaining the benefits provided under the plan or program
in which Executive is unable to participate for the period specified in this clause (ix)
of this Section 3.a, (2) such cost shall be deemed to be the lowest reasonable cost
that would be incurred by Executive in obtaining such benefit on an individual basis,
and (3) payment of such amounts shall be made quarterly in advance; and
x.
other or additional benefits then due or earned in accordance with applicable plans
and programs of the Company.
b.
Change in Control Best Payments Determination. In the event the Severance Benefits
described in Section 3(a) are payable to Executive in connection with a Change in Control
and, if paid, could subject Executive to an excise tax under Section 4999 of the Internal
Revenue Code (the “Excise Tax”), then notwithstanding the provisions of Section 3(a) the
Company shall reduce the Severance Benefits (the “Benefit Reduction”) under Section 3(a)
by the amount necessary to result in the Executive not being subject to the Excise Tax, if
such reduction would result in the Executive’s “Net After-Tax Amount” attributable to the
Severance Benefits described in Section 3(a) being greater than it would be if no Benefit
Reduction was effected. For this purpose “Net After-Tax Amount” shall mean the net
amount of Severance Benefits Executive is entitled to receive under this Agreement after
giving effect to all Federal, state and local taxes which would be applicable to such
payments, including, but not limited to, the Excise Tax. The determination of whether any
such Benefit Reduction shall be effected shall be made by a nationally recognized public
accounting firm selected by the Company (the “Accounting Firm”) prior to the occurrence of
the Change in Control and such determination shall be binding on both Executive and the
Company. In the event it is determined that a Benefit Reduction is required, such reduction
of items described in Section 3(a) above shall be done first by reducing cash severance
determined in accordance with Section 3(a)(ii), 3(a)(iii) and 3(a)(iv); to the extent a further
Benefit Reduction is necessary, then Severance Benefits will be reduced from the amounts
determined in accordance with Section 3(a)(v) and 3(a)(vi), all as determined by the
Accounting Firm.
c.
No Mitigation; No Offset. In the event of any termination of employment under this Section
3, Executive shall be under no obligation to seek other employment, and the amounts due
Executive under this Agreement shall not be offset by any remuneration attributable to any
subsequent employment that Executive may obtain.
d.
Nature of Payments. Any amounts due under this Section 3 are in the nature of severance
payments considered to be reasonable by the Company and are not in the nature of a
penalty.
e.
Exclusivity of Severance Benefit. Upon termination of Executive's employment during the
Term, Executive shall not be entitled to any severance payments or severance benefits
6
from the Company, or any other payments by the Company, other than the Severance
Benefit provided in this Section 3, except as required by law.
4.
f.
General Release of Claims. Executive agrees, as a condition of payment of the Severance
Benefit provided for in this Section 3, that Executive will execute within 60 days of
Executive’s termination of employment a separation agreement, in a form reasonably
satisfactory to the Company, that includes a general release of any and all claims arising
out of Executive's employment or termination of employment with the Company, other than
claims for (i) enforcement of this Agreement, (ii) enforcement of Executive's rights under
any of the Company's incentive compensation, equity and/or employee benefit plans and
programs to which Executive is entitled under this Agreement, and (iii) any tort for personal
injury not arising out of or related to Executive’s employment or termination of employment.
g.
Subject to the provisions of Section 12(b), all payments to be made pursuant to this Section
3 upon the termination of employment of Executive shall be made or commence, as the
case may be, within 75 days after the Executive’s termination of employment provided,
however, that if such termination of employment is after October 15 of a year, the payout or
first payment, as the case may be, shall be made at the end of such 75 day period.
Confidentiality; Cooperation with Regard to Litigation; Non-disparagement.
a.
During the Term and thereafter, Executive shall not, without the prior written consent of the
Company, disclose to anyone (except in good faith in the ordinary course of business to a
person who will be advised by Executive to keep such information confidential) or make
use of any confidential information except in the performance of Executive’s duties
hereunder or when required to do so by legal process, by any governmental agency having
supervisory authority over the business of the Company or by any administrative or
legislative body (including a committee thereof) that requires Executive to divulge, disclose
or make accessible such information. In the event that Executive is so ordered, Executive
shall give prompt written notice to the Company in order to allow the Company the
opportunity to object to or otherwise resist such order.
b.
During the Term and thereafter, Executive shall not disclose the existence or contents of
this Agreement beyond what is disclosed in the proxy statement or documents filed with
the government unless and to the extent such disclosure is required by law, by a
governmental agency, or in a document required by law to be filed with a governmental
agency or in connection with enforcement of Executive’s rights under this Agreement. In
the event that disclosure is so required, Executive shall give prompt written notice to the
Company in order to allow the Company the opportunity to object to or otherwise resist
such requirement. This restriction shall not apply to such disclosure by Executive to
members of Executive’s immediate family, Executive’s tax, legal or financial advisors, any
lender, or tax authorities, or to potential future employers to the extent necessary, each of
whom shall be advised not to disclose such information.
c.
Confidential Information" shall mean all information concerning the business of the
Company or any Subsidiary relating to any of their products, product development, trade
secrets, customers, suppliers, finances, and business plans and strategies. Excluded from
the definition of Confidential Information is information (i) that is or becomes part of the
public domain, other than through the breach of this Agreement by Executive or (ii)
regarding the Company's business or industry properly acquired by Executive in the course
of Executive’s career as an Executive in the Company's industry and independent of
Executive's employment by the Company. For this purpose, information known or available
generally within the trade or industry of the Company or any Subsidiary shall be deemed to
be known or available to the public.
7
5.
d.
"Subsidiary" shall mean any corporation or other business entity owned or controlled
directly or indirectly by CVS Caremark.
e.
Executive agrees to cooperate with the Company, during the Term and thereafter
(including following Executive's termination of employment for any reason), by being
reasonably available to testify on behalf of the Company or any Subsidiary in any action,
suit, or proceeding, whether civil, criminal, administrative, or investigative, and to assist the
Company, or any Subsidiary, in any such action, suit, or proceeding, by providing
information and meeting and consulting with the Board or its representatives or counsel, or
representatives or counsel to the Company, or any Subsidiary as requested; provided,
however that the same does not materially interfere with Executive’s then current
professional activities. The Company agrees to reimburse Executive on an after tax basis,
for all reasonable expenses actually incurred in connection with Executive’s provision of
testimony or assistance.
f.
Executive agrees that, during the Term and thereafter (including following Executive's
termination of employment for any reason) Executive will not make statements or
representations, or otherwise communicate, directly or indirectly, in writing, orally, or
otherwise, or take any action which may, directly or indirectly, disparage or be damaging to
the Company or any Subsidiary or their respective officers, directors, employees, advisors,
businesses or reputations. Notwithstanding the foregoing, nothing in this Agreement shall
preclude Executive from making truthful statements or disclosures that are required by
applicable law, regulation or legal process.
Non-solicitation.
During the period beginning with the Effective Date and ending 18 months following the termination
of Executive's employment with the Company, Executive, whether acting on Executive’s own
behalf or by, through or on behalf of any third party, shall not (a) hire any employees of the
Company or any Subsidiary, or recruit or solicit any such employees or encourage them to
terminate their employment with the Company or any Subsidiary; (b) accept business from any
customers of the Company or any Subsidiary, or solicit or encourage any customers, joint venture
partners or investors of the Company or any Subsidiary to terminate or diminish their relationship
with the Company or any Subsidiary or to violate any agreement with the Company or any
Subsidiary. For purposes of subsection 5(a), an employee of the Company or any Subsidiary
means any person who was employed by the Company or any Subsidiary within 180 days of such
hiring, recruitment, solicitation or encouragement. Executive agrees to make any employer with
whom Executive becomes employed during the 18-month period following Executive's termination
with the Company aware of this non-solicitation obligation upon commencing employment with
such subsequent entity.
6.
Remedies.
In addition to whatever other rights and remedies the Company may have at equity or in law, the
Company (a) shall have the right to immediately terminate all payments and benefits due under this
Agreement if Executive breaches any of the provisions contained in Sections 4 or 5 above, and (b)
shall have the right to seek injunctive relief in any court of competent jurisdiction if Executive
breaches or threatens to breach any of the provisions contained in Sections 4 or 5 above.
Executive acknowledges that such a breach would cause irreparable injury and that money
damages would not provide an adequate remedy for the Company; provided, however, the
foregoing shall not prevent Executive from contesting the issuance of any such injunction on the
ground that no violation or threatened violation of Sections 4 or 5 has occurred.
8
7.
Effect of Agreement on Other Benefits.
Except as specifically provided in this Agreement, the existence of this Agreement shall not be
interpreted to preclude, prohibit or restrict the Executive's participation in any other employee
benefit or other plans or programs in which he /she currently participates.
8.
Not an Employment Agreement.
This Agreement is not, and nothing herein shall be deemed to create, a contract of employment
between Executive and the Company. The Company may terminate the employment of Executive
at any time and for any reason, subject to the terms of any employment agreement between the
Company and Executive that may then be in effect.
9.
Resolution of Disputes.
Any controversy or claim arising out of or relating to this Agreement or any breach or asserted
breach hereof or questioning the validity and binding effect hereof arising under or in connection
with this Agreement, other than seeking injunctive relief under Sections 4 or 5, shall be resolved by
binding arbitration, to be held at an office closest to the Company’s principal offices in accordance
with the rules and procedures of the American Arbitration Association. Judgment upon the award
rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Pending the
resolution of any arbitration or court proceeding, the company shall continue payment of all
amounts and benefits due Executive under this Agreement. All reasonable costs and expenses of
any arbitration or court proceeding (including fees and disbursements of counsel) shall be paid on
behalf of or reimbursed to Executive promptly by the Company; provided, however, that no
reimbursement shall be made of such expenses if and to the extent the arbitrator(s) determine(s)
that any of Executive’s litigation assertions or defenses were in bad faith or frivolous.
10.
Assignability; Binding Nature.
This Agreement shall be binding upon and inure to the benefit of the Parties and their respective
successors, heirs (in the case of Executive) and permitted assigns. No rights or obligations of the
Company under this Agreement may be assigned or transferred by the Company except that such
rights or obligations may be assigned or transferred in connection with the sale or transfer of all or
substantially all of the assets of the Company, provided that the assignee or transferee is the
successor to all or substantially all of the assets of the Company and such assignee or transferee
assumes the liabilities, obligations and duties of the Company, as contained in this agreement,
either contractually or as a matter of law. The Company further agrees that, in the event of a sale or
transfer of assets as described in the preceding sentence, it shall take whatever action it legally can
in order to cause such assignee or transferee to expressly assume the liabilities, obligations and
duties of the Company hereunder. No rights or obligations of Executive under this Agreement may
be assigned or transferred by Executive other than Executive’s rights to compensation and benefits,
which may be transferred only by will or operation of law, except as provided in Section 15 below.
11.
Representation.
The Company represents and warrants that it is fully authorized and empowered to enter into this
Agreement and that the performance of its obligations under this Agreement will not violate any
agreement between it and any other person, firm or organization.
12.
Amendment or Waiver; Section 409A.
(a)
No provision in this Agreement may be amended unless such amendment is agreed to in
writing and signed by Executive and an authorized officer of the Company. No waiver by
either Party of any breach by the other Party of any condition or provision contained in this
9
Agreement to be performed by such other Party shall be deemed a waiver of a similar or
dissimilar condition or provision at the same or any prior or subsequent time. Any waiver
must be in writing and signed by Executive or an authorized officer of the Company, as the
case may be.
(b)
13.
Executive and Company agree that it is the intent of the Parties that this Agreement not
violate any applicable provision of, or result in any additional tax or penalty under, Section
409A of the Code, as amended, and that to the extent any provisions of this Agreement do
not comply with such Code Section 409A the Parties will make such changes as are
mutually agreed upon in order to comply with Code Section 409A. In all events, to the
extent required to avoid a violation of the applicable rules under all Section 409A by reason
of Code Section 409A(a)(2)(B)(i), payment of any amounts subject to Code Section 409A
shall be delayed until the relevant date of payment that will result in compliance with the
rules of Code Section 409A(a)(2)(B)(i).
Severability.
In the event that any provision or portion of this Agreement shall be determined to be invalid or
unenforceable for any reason, in whole or in part, the remaining provisions of this Agreement shall
be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by law.
14.
Survivorship.
The respective rights and obligations of the Parties hereunder shall survive any termination of
Executive's employment to the extent necessary to the intended preservation of such rights and
obligations.
15.
Beneficiaries/References.
Executive shall be entitled, to the extent permitted under any applicable law, to select and change a
beneficiary or beneficiaries to receive any compensation or benefit payable hereunder following
Executive's death by giving the Company written notice thereof. In the event of Executive's death or
a judicial determination of Executive’s incompetence, references in this Agreement to Executive
shall be deemed, where appropriate, to refer to Executive’s beneficiary, estate or other legal
representative.
16.
Governing Law/Jurisdiction.
This Agreement shall be governed by and construed and interpreted in accordance with the laws of
Rhode Island without reference to principles of conflict of laws. Subject to Section 6, the Company
and Executive hereby consent to the jurisdiction of any or all of the following courts for purposes of
resolving any dispute under this Agreement: (i) the United States District Court for Rhode Island or
(ii) any of the courts of the State of Rhode Island. The Company and Executive further agree that
any service of process or notice requirements in such proceeding shall be satisfied if the rules of
such court relating thereto have been substantially satisfied. The Company and Executive hereby
waive, to the fullest extent permitted by applicable law, any objection which it or he/she may now or
hereafter have to such jurisdiction and any defense of inconvenient forum.
17.
Notices.
Any notice given to a Party shall be in writing and shall be deemed to have been given when
delivered personally or sent by certified or registered mail, postage prepaid, return receipt requested,
duly addressed to the Party concerned at the address indicated below or to such changed address
as such Party may subsequently give written notice of:
10
If to CVS:
CVS Pharmacy, Inc.
One CVS Drive
Woonsocket, RI 02895
Attention: Corporate Secretary
If to Executive:
Thomas Moriarty
XXXXXXX
XXXXXXX
18.
Headings.
The headings of the sections contained in this Agreement are for convenience only and shall not be
deemed to control or affect the meaning or construction of any provision of this Agreement.
19.
Counterparts.
This Agreement may be executed in two or more counterparts.
In WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first
written above.
CVS Pharmacy, Inc.
By:
/s/ Lisa G. Bisaccia
Name: Lisa G. Bisaccia
Title: Senior Vice President and
Chief Human Resource Officer
Executive
/s/ Thomas Moriarty
Name: Thomas Moriarty
Title:
Executive Vice President and General Counsel
11
CVS Pharmacy, Inc.
Restrictive Covenant Agreement
I, Thomas M. Moriarty, enter into this Restrictive Covenant Agreement (“Agreement”) with
CVS Pharmacy, Inc. (“CVS”), which is effective as of the date I sign the Agreement (the “Effective
Date”). In consideration of the mutual promises in this Agreement, the parties agree as follows:
1.
Consideration for Agreement. In connection with my duties and responsibilities at CVS
Caremark Corporation or one of its subsidiaries or affiliates (collectively, the “Corporation”), the
Corporation will provide me with Confidential Information and/or access to the Corporation’s customers
and clients and the opportunity to develop and maintain relationships and goodwill with them. In
addition, the Corporation has awarded me restricted stock units contingent on the execution of this
Agreement and compliance with its terms.
2.
Limitation of Agreement; Practice of Law. If I am a licensed attorney, this Agreement is not
meant to restrict my ability to practice law after I cease to be an employee of the Corporation in violation
of any applicable Rules of Professional Conduct or Ethics. As it relates to the practice of law, this
Agreement shall be interpreted consistent with and to the extent permissible under Rules 5.6, 1.6 and 1.9
of the Rules of Professional Conduct, as well as any other applicable Rules of Professional Conduct or
Ethics and shall not be interpreted to expand the scope of my duty to maintain privileged or confidential
information under Rule 1.6, Rule 1.9, or any other applicable Rules of Professional Conduct or Ethics.
3.
Non-Competition. During my employment by the Corporation and during the Non-Competition
Period following the termination of my employment for any reason, I will not, directly or indirectly,
engage in Competition or provide Consulting or Audit Services within the Restricted Area.
a.
Competition. Engaging in “Competition” means providing services to a Competitor of
the Corporation (whether as an employee, independent contractor, consultant, principal, agent, partner,
officer, director, investor, or shareholder, except as a shareholder of less than one percent of a publicly
traded company) that: (i) are the same or similar in function or purpose to the services I provided to the
Corporation during the last two years of my employment by the Corporation, or (ii) will likely result in
the disclosure of Confidential Information to a Competitor or the use of Confidential Information on
behalf of a Competitor. I agree that if an authorized representative of the Corporation, during my
employment or the Non-Competition Period, requests that I identify the company or business to which I
will be or am providing services, or with which I will be or am employed, and requests that I provide
information about the services that I am or will be providing to such entity, I shall provide the
Corporation with a written statement detailing the identity of the entity and the nature of the services that
I am or will be providing to such entity with sufficient detail to allow the Corporation to independently
assess whether I am or will be in violation of this Agreement. Such statement shall be delivered to the
Corporation’s Chief Human Resources Officer or her authorized delegate via personal delivery or
overnight delivery within five calendar days of my receipt of such request.
b.
Competitor. A “Competitor” for purposes of this Agreement shall mean any person,
corporation or other entity that competes with one or more of the business offerings of the Corporation.
As of the Effective Date, the Corporation’s business offerings include: (i) pharmacy benefits management
(“PBM”), including: (a) the administration of pharmacy benefits for businesses, government agencies
and health plans; (b) mail order pharmacy; (c) specialty pharmacy, including but not limited to infusion
and related services; (d) Medicare Part D services; (ii) retail, which includes the sale of prescription
drugs, over-the-counter medications, beauty products and cosmetics, photo finishing, seasonal
merchandise, greeting cards, convenience foods and other product lines that are sold by the Corporation’s
retail division; and (iii) retail health care (“MinuteClinic”). A person or entity shall not be considered a
I/H/C18 Mos. (1)
retail Competitor if such entity derives annual gross revenues from its business in an amount that is less
than 5% of the Corporation’s gross revenues from its retail business during its most recently completed
fiscal year. The Parties acknowledge that both the Corporation’s products and services and the entities
that compete with the Corporation’s products and services evolve and that an entity will be considered a
Competitor if it provides products or services competitive with the products and services provided by the
Corporation within the last two years of your employment.
Given my role in the Corporation, I agree to this enterprise-wide definition of non-competition
that will prevent me from providing services to the Corporation’s PBM, retail and MinuteClinic
Competitors during the relevant time period.
c.
Consulting or Audit Services. “Consulting or Audit Services” shall mean any activity
that involves providing audit review or other consulting or advisory services with respect to any
relationship or prospective relationship between the Corporation and any third party, including but not
limited to PBM clients, suppliers or vendors and that is likely to result in the use or disclosure of
Confidential Information.
d.
Non-Competition Period. The “Non-Competition Period” shall be the period of 18
months following the termination of my employment with the Corporation for any reason.
e.
Restricted Area. “Restricted Area” refers to those states within the United States in
which the Corporation conducts its business, as well as the District of Columbia and Puerto Rico. To the
extent I worked on international projects in Brazil and/or Ireland or other countries where the Corporation
may conduct business, the Restricted Area includes those countries and prospective countries.
4.
Non-Solicitation. During the Non-Solicitation Period, which shall be 18 months following the
termination of my employment with the Corporation for any reason, I will not, unless a duly authorized
officer of the Corporation gives me written authorization to do so:
a.
interfere with the Corporation’s relationship with its Business Partners by soliciting or
communicating (regardless of who initiates the communication) with a Business Partner to: (i) induce or
encourage the Business Partner to stop doing business or reduce its business with the Corporation, or (ii)
buy a product or service that competes with a product or service offered by the Corporation’s business.
“Business Partner” means: a customer (person or entity), prospective customer (person or entity),
supplier, manufacturer, broker, hospital, hospital system, and/or pharmaceutical company with whom the
Corporation has a business relationship and with which I had business-related contact or dealings, or
about which I received Confidential Information, in the two years prior to the termination of my
employment with the Corporation. A Business Partner does not include a customer, supplier,
manufacturer, broker, hospital, hospital system, pharmaceutical company that has fully and finally ceased
doing any business with the Corporation independent of any conduct or communications by me or breach
of this Agreement. Nothing in this Paragraph 4(a) shall prevent me from working as a staff pharmacist or
in another retail position wherein I would be providing or selling prescriptions or other products directly
to consumers.
b.
work on a Corporation account on behalf of a Business Partner or serve as the
representative of a Business Partner for the Corporation.
c.
interfere with the Corporation’s relationship with any employee or contractor of the
Corporation by: (i) soliciting or communicating with the employee or contractor to induce or encourage
him or her to leave the Corporation’s employ or engagement (regardless of who first initiates the
communication); (ii) helping another person or entity evaluate such employee or contractor as an
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I/H/C 18 mos. (1)
employment or contractor candidate; or (iii) otherwise helping any person or entity hire an employee or
contractor away from the Corporation.
5.
Non-Disclosure of Confidential Information.
a.
Subject to Paragraph 8 below, I will not at any time, whether during or after the
termination of my employment, disclose to any person or entity any of the Corporation’s Confidential
Information, except as may be appropriately required in the ordinary course of performing my duties as
an employee of the Corporation. The Corporation’s Confidential Information includes but is not limited
to the following non-public information: trade secrets; computer code generated or developed by the
Corporation; software or programs and related documentation; strategic compilations and analysis;
strategic processes; business or financial methods, practices and plans; non-public costs and prices;
operating margins; marketing, merchandising and selling techniques and information; customer lists;
details of customer agreements; pricing arrangements with drug manufacturers, including but not limited
to any discounts and/or rebates; pharmacy reimbursement rates; expansion strategies; real estate
strategies; operating strategies; sources of supply; patient records; and confidential information of third
parties which is given to the Corporation pursuant to an obligation or agreement to keep such information
confidential (collectively, “Confidential Information”). I shall not use or attempt to use any Confidential
Information on behalf of any person or entity other than the Corporation, or in any manner which may
injure or cause loss or may be calculated to injure or cause loss, whether directly or indirectly, to the
Corporation. For employees residing in Connecticut, these restrictions on use or disclosure of
Confidential Information will only apply for three (3) years after the end of my employment where
information that does not qualify as a trade secret is concerned; however, the restrictions will continue
apply to trade secret information for as long as the information at issue remains qualified as a trade secret.
b.
During my employment, I shall not make, use, or permit to be used, any materials of any
nature relating to any matter within the scope of the business of the Corporation or concerning any of its
dealings or affairs other than for the benefit of the Corporation. I shall not, after the termination of my
employment, use or permit to be used any such materials and shall return same in accordance with
Paragraph 6 below.
6.
Ownership and Return of the Corporation’s Property. On or before my final date of
employment with the Corporation, I shall return to the Corporation all property of the Corporation in my
possession, custody or control, including but not limited to the originals and copies of any information
provided to or acquired by me in connection with the performance of my duties for the Corporation, such
as files, correspondence, communications, memoranda, e-mails, slides, records, and all other documents
no matter how produced or reproduced, all computer equipment, communication devices (including but
not limited to any mobile phone, BlackBerry or other portable digital assistant or device), computer
programs and/or files, and all office keys and access cards. I agree that all the items described in this
Paragraph are the sole property of the Corporation.
7.
Rights to Inventions, Works.
a.
Assignment of Inventions. All inventions, original works of authorship, developments,
concepts, improvements, designs, discoveries, ideas, trademarks or trade secrets, whether patentable or
otherwise protectable under similar law, made, conceived or developed by me, whether alone or jointly
with others, from the date of my initial employment by the Corporation and continuing until the end of
any period during which I am employed by the Corporation, relating or pertaining in any way to my
employment with or the business of the Corporation (collectively referred to as “Inventions”) shall be
promptly disclosed in writing to the Corporation. I hereby assign to the Corporation, or its designee, all
of my rights, title and interest to such Inventions. All original works of authorship which are made by me
3
I/H/C 18 mos. (1)
(solely or jointly with others) within the scope of and during the period of my employment with the
Corporation and which are protectable by copyright are “works made for hire,” as that term is defined in
the United States Copyright Act and as such are the sole property of the Corporation. The decision
whether to commercialize or market any Invention developed by me solely or jointly with others is within
the Corporation’s sole discretion and for the Corporation’s sole benefit and no royalty will be due to me
as a result of the Corporation’s efforts to commercialize or market any such Invention.
b.
Inventions Retained and Licensed. I have attached hereto as Exhibit A, a list
describing all inventions, original works of authorship, developments, improvements, and trade secrets
which were made by me prior to my employment with the Corporation (“Prior Inventions”), which belong
to me and are not assigned to the Corporation hereunder. If no such list is attached, I represent that there
are no such Prior Inventions. I will not incorporate, or permit to be incorporated, any Prior Invention
owned by me or in which I have an interest, into a Corporation product, process or machine without the
Corporation’s prior written consent. Notwithstanding the foregoing sentence, if, in the course of my
employment with the Corporation, I incorporate into a Corporation product, process or machine a Prior
Invention owned by me or in which I have an interest, the Corporation is hereby granted and shall have a
nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make, have made, modify, use
and sell such Prior Invention as part of or in connection with such product, process or machine.
c.
Patent and Copyright Registrations. I will assist the Corporation, or its designee, at
the Corporation’s expense, in every proper way to secure the Corporation’s rights in the Inventions and
any copyrights, patents, mask work rights or other intellectual property rights relating thereto, including,
but not limited to, the disclosure to the Corporation of all pertinent information and data with respect
thereto, the execution of all applications, specifications, oaths, assignments and all other instruments
which the Corporation shall deem necessary in order to apply for and obtain such rights and in order to
assign and convey to the Corporation, its successors, assigns, and nominees the sole and exclusive rights,
title and interest in and to such Inventions, and any copyrights, patents, mask work rights or other
intellectual property rights relating thereto. My obligation to execute or cause to be executed, when it is
in my power to do so, any such instrument or papers shall continue after my employment ends for any
reason and/or after the termination of this Agreement. If the Corporation is unable because of my mental
or physical incapacity or for any other reason to secure my signature to apply for or to pursue any
application for any United States or foreign patents or copyright registrations covering Inventions or
original works of authorship assigned to the Corporation as above, then I hereby irrevocably designate
and appoint the Corporation and its duly authorized officers and agents as my agent and attorney in fact,
to act for and in my behalf and stead to execute and file any such applications and to do all other lawfully
permitted acts to further the prosecution and issuance of letters patent or copyright registrations thereon
with the same legal force and effect as if executed by me.
d.
Exception to Assignments. I understand that if I am an employee in Illinois, Kansas,
North Carolina, Utah or Minnesota, I should refer to Exhibit B (incorporated herein for all purposes) for
important limitations on the scope of the provisions of this Agreement concerning assignment of
Inventions. I will advise the Corporation promptly in writing of any inventions that I believe meet the
criteria in Exhibit B and that are not otherwise disclosed on Exhibit A.
8.
Cooperation.
a.
In the event that I receive a subpoena, deposition notice, interview request, or other
process or order to testify or produce Confidential Information or any other information or property of the
Corporation, I shall promptly: (a) notify the Corporation of the item, document, or information sought by
such subpoena, deposition notice, interview request, or other process or order; (b) furnish the Corporation
with a copy of said subpoena, deposition notice, interview request, or other process or order; and (c)
4
I/H/C 18 mos. (1)
provide reasonable cooperation with respect to any procedure that the Corporation may initiate to protect
Confidential Information or other interests. If the Corporation objects to the subpoena, deposition notice,
interview request, process, or order, I shall cooperate to ensure that there shall be no disclosure until the
court or other applicable entity has ruled upon the objection, and then only in accordance with the ruling
so made. If no such objection is made despite a reasonable opportunity to do so, I shall be entitled to
comply with the subpoena, deposition, notice, interview request, or other process or order provided that I
have fulfilled the above obligations.
b.
I will cooperate fully with the Corporation, its affiliates, and their legal counsel in
connection with any action, proceeding, or dispute arising out of matters with which I was directly or
indirectly involved while serving as an employee of the Corporation, its predecessors, subsidiaries or
affiliates. This cooperation shall include, but shall not be limited to, meeting with, and providing
information to, the Corporation and its legal counsel, maintaining the confidentiality of any past or future
privileged communications with the Corporation’s legal counsel (outside and in-house), and making
myself available to testify truthfully by affidavit, in depositions, or in any other forum on behalf of the
Corporation. The Corporation agrees to reimburse me for any reasonable and necessary out-of-pocket
costs associated with my cooperation.
9.
Limitation on Restrictions. Nothing in this Agreement is intended to or shall interfere with my
right to file charges or participate in a proceeding with any appropriate federal, state or local government
agency, including the Equal Employment Opportunity Commission or the National Labor Relations
Board, or to prohibit me from communicating or cooperating with any such agency in its investigation.
10.
Injunctive Relief. Any breach of this Agreement by me will cause irreparable damage to the
Corporation and in the event of such breach, the Corporation shall have, in addition to any and all
remedies of law, the right to an injunction, specific performance or other equitable relief to prevent the
violation of my obligations hereunder, and without providing a bond to the extent permitted by the
applicable rules of civil procedure.
11.
Eligibility for Severance Pay. If my employment with the Corporation terminates under
circumstances in which I am eligible for severance under the Corporation’s Severance Plan for Non-Store
Employees (the “Severance Plan”), the Corporation will offer me severance in accordance with the
Severance Plan and the length of the Non-Competition Period will match the length of the severance
period. I acknowledge that the Severance Plan sets forth pre-requisites I must meet in order to receive
severance, including but not limited to execution of the Corporation’s standard separation agreement and
release of claims. In the event that the Corporation fails to comply with its obligations to offer me
severance according to the Severance Plan, then Paragraph 3 of this Agreement shall be of no further
effect. I agree that if I decline the Corporation’s offer of severance, I shall continue to be subject to the
restrictions in Paragraph 3.
12.
No Right of Continued Employment. This Agreement does not create an obligation on the
Corporation or any other person or entity to continue my employment.
13.
No Conflicting Agreements. I represent that the performance of my job duties with the
Corporation and my compliance with all of the terms of this Agreement does not and will not breach any
agreement to keep in confidence proprietary information acquired by me in confidence or in trust prior to
my employment by the Corporation.
14.
Entire Agreement/No Reliance/No Modifications. This Agreement and any compensation,
benefit or equity plan or agreement referred to herein including the CVS Caremark Corporation Change
in Control Agreement (“CIC Agreement”), to the extent those other agreements apply to me, set forth the
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entire agreement between the parties hereto and fully supersede any and all prior and/or supplemental
understandings, whether written or oral, between the parties concerning the subject matter of this
Agreement. Notwithstanding the foregoing, if I am a party to the CIC Agreement, then I understand that
in the event of a Change in Control, as that term is defined in the CIC, Paragraph 3 of this Agreement
shall be null and void. I agree and acknowledge that I have not relied on any representations, promises or
agreements of any kind in connection with my decision to accept the terms of this Agreement, except for
the representations, promises and agreements herein. Any modification to this Agreement must be made
in writing and signed by me and the Corporation’s Chief Human Resources Officer or her authorized
representative.
15.
No Waiver. Any waiver by the Corporation of a breach of any provision of this Agreement, or of
any other similar agreement with any other current or former employee of the Corporation, shall not
operate or be construed as a waiver of any subsequent breach of such provision or any other provision
hereof.
16.
Severability. The parties hereby agree that each provision herein shall be treated as a separate
and independent clause, and the unenforceability of any one clause shall in no way impair the
enforceability of any of the other clauses herein. Moreover, if one or more of the provisions of this
Agreement are for any reason held to be excessively broad as to scope, activity, duration, subject or
otherwise so as to be unenforceable at law, the parties consent to such provision or provisions being
modified or limited by the appropriate judicial body (where allowed by applicable law), so as to be
enforceable to the maximum extent compatible with the applicable law.
17.
Survival of Employee’s Obligations. My obligations under this Agreement shall survive the
termination of my employment regardless of the manner of such termination and shall be binding upon
my heirs, personal representatives, executors, administrators and legal representatives.
18.
Corporation’s Right to Assign Agreement. The Corporation has the right to assign this
Agreement to its successors and assigns without the need for further agreement or consent by me, and all
covenants and agreements hereunder shall inure to the benefit of and be enforceable by said successors or
assigns.
19.
Non-Assignment. I shall not assign my rights and obligations under this Agreement, in whole or
in part, whether by operation of law or otherwise, without the prior written consent of the Corporation,
and any such assignment contrary to the terms hereof shall be null and void and of no force or effect.
20.
Governing Law; Headings. This Agreement shall be governed by and construed in accordance
with the laws of the state of Rhode Island. The headings of the paragraphs contained in this Agreement
are for convenience only and shall not be deemed to control or affect the meaning or construction of any
provision of this Agreement.
21.
Tolling. In the event I violate one of the time-limited restrictions in this Agreement, I agree that
the time period for such violated restriction shall be extended by one day for each day I have violated the
restriction, up to a maximum extension equal to the length of the original period of the restricted
covenant.
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IN WITNESS WHEREOF, the undersigned has executed this Agreement as a sealed instrument as of the
date set forth below.
/s/ Thomas M. Moriarty
/s/ Lisa Bisaccia
Lisa Bisaccia
Chief Human Resources Officer
CVS Pharmacy, Inc.
xxxxxxxx
Employee ID
Date: 6/1/14
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EXHIBIT A
List of Prior Inventions – See Paragraph 7
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EXHIBIT B
Notice Regarding Invention Assignment
1.
For an employee residing in Illinois, Kansas, or North Carolina, you are hereby advised:
Notice. No provision in this Agreement requires you to assign any of your rights to an invention
for which no equipment, supplies, facility, or trade secret information of the Corporation was used
and which was developed entirely on your own time, unless (a) the invention relates (i) to the
business of the Corporation or (ii) to the Corporation’s actual or demonstrably anticipated research
or development, or (b) the invention results from any work performed by you for the Corporation.
Illinois 765ILCS1060/1-3, “Employees Patent Act”; Kansas Statutes Section 44-130; North
Carolina General Statutes Article 10A, Chapter 66, Commerce and Business, Section 66-57.1.
2.
For an employee residing in Utah, you are hereby advised:
Notice. No provision in this Agreement requires you to assign any of your rights to an invention
which was created entirely on your own time, and which is not (a) conceived, developed, reduced to
practice, or created by you (i) within the scope of your employment with the Corporation, (ii) on the
Corporation’s time, or (iii) with the aid, assistance, or use of any of the Corporation’s property,
equipment, facilities, supplies, resources, or patents, trade secrets, know-how, technology,
confidential information, ideas, copy rights, trademarks and service marks and any and all rights,
applications and registrations relating to them, (b) the results of any work, services, or duties
performed by you for the Corporation, (c) related to the industry or trade of the Corporation, or (d)
related to the current or demonstrably anticipated business, research, or development of the
Corporation. Utah Code Sections 34-39-1 through 34-39-3, “Employee Inventions Act.”
3.
For an employee residing in Minnesota, you are hereby advised:
Notice. No provision in this Agreement requires you to assign any of your rights to an invention
for which no equipment, supplies, facility, or trade secret information of the Corporation was used,
and which was developed entirely on your own time, and (a) which does not relate (i) directly to the
business of the Corporation, or (ii) to the Corporation’s actual or demonstrably anticipated research
or development, or (b) which does not result from any work performed by you for the Corporation.
Minnesota Statutes 13A Section 181.78.
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