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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 9)*
REVCO D.S., INC.
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, par value of $.01 per share
- --------------------------------------------------------------------------------
(Title of Class of Securities)
761339100
-------------------------------------------------------
(CUSIP Number)
Sheli Z. Rosenberg, Rosenberg & Liebentritt, P.C.
Two North Riverside Plaza, Chicago, Illinois 60606
312-466-3990
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
February 6, 1997
------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [] .
Check the following box if a fee is being paid with the statement []. (A fee is
not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7).
NOTE: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
<PAGE> 2
ONLY THOSE ITEMS AMENDED ARE REPORTED HEREIN.
CAPITALIZED TERMS NOT OTHERWISE DEFINED HEREIN SHALL HAVE
THE SAME MEANING AS THEY HAVE IN THE SCHEDULE 13D AND AMENDMENTS THERETO.
Item 4. Purpose of Transaction
----------------------
and
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
---------------------------------------------------------------------
to Securities of the Issuer
---------------------------
On February 6, 1997, CVS Corporation ("CVS"), its wholly owned
subsidiary, North Acquisition Corp. ("North Corp."), and the Issuer
entered into an Agreement and Plan of Merger ("CVS Merger Agreement").
As an inducement and a condition to entering into the CVS Merger
Agreement, CVS has required that Zell/Chilmark enter into a Stockholder
Agreement with CVS ("CVS Stockholder Agreement"). Pursuant to the CVS
Stockholder Agreement, Zell/Chilmark has agreed: (1) that at any
meeting of the holders of the Issuer's Common Stock or in connection
with any written consent of the holders of the Issuer's Common Stock,
Zell/Chilmark shall vote or consent (or cause to be voted or consented)
its 13,102,288 shares of Common Stock in favor of the merger as
contemplated in the CVS Merger Agreement (the "Merger"); (2) not to
offer for sale, sell, transfer, tender, pledge, encumber, assign or
otherwise dispose of, or enter into any contract, option or other
arrangement or understanding with respect to its 13,102,288 shares of
Common Stock; and (3) except as contemplated in the CVS Stockholder
Agreement, grant any proxies or powers of attorney, deposit its
13,102,288 shares of Common Stock into a voting trust or enter into a
voting agreement with respect to its 13,102,288 shares of Common Stock.
Zell/Chilmark also agreed to surrender its certificates representing
its 13,102,288 shares of Common Stock to the Issuer to allow the
Issuer to add the following legend to such certificates:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO A STOCKHOLDER AGREEMENT DATED AS OF FEBRUARY 6,
1997 BY AND BETWEEN CVS CORPORATION AND ZELL/CHILMARK FUND,
L.P. WHICH AMONG OTHER THINGS RESTRICTS THE TRANSFER AND
VOTING THEREOF."
The foregoing obligations terminate upon the earlier to occur
of the CVS Merger Agreement or the effective time of the Merger. The
summary contained in this Amendment to Schedule 13D of certain
provisions of the CVS Stockholder Agreement is qualified in its
entirety by reference to the CVS Stockholder Agreement attached hereto
as Exhibit 8 and incorporated herein by reference.
Additionally, Zell/Chilmark stated in a letter to CVS and the
Issuer dated February 6, 1997 ("Affiliate's Letter Relating to
Pooling") that Zell/Chilmark will not sell, transfer, or otherwise
dispose of its interest in or acquire or sell any options or other
securities relating to securities of the Issuer that would be intended
to reduce Zell/Chilmark's risk relative to any shares of Common Stock
beneficially owned by it during the period commencing on the 30th day
prior to the effectiveness of the Merger and ending at such time as
CVS publicly releases a report covering at least 30 days of combined
operations of CVS after the Merger. The summary contained in this
Amendment to Schedule 13D of certain provisions of the Affiliate's
Letter Relating to Pooling is qualified in its entirety by reference
to the Affiliate's Letter Relating to Pooling attached hereto as
Exhibit 9 and incorporated herein by reference.
Page 2 of 16
<PAGE> 3
Item 7. Materials to Be Filed as Exhibits
---------------------------------
Exhibit 8 - Stockholder Agreement dated February 6, 1997 between
Zell/Chilmark and CVS.
Exhibit 9 - Letter from Zell/Chilmark to CVS and the Issuer, dated
February 6, 1997.
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<PAGE> 4
SIGNATURES
After reasonable inquiry, and the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Zell/Chilmark Fund, L.P.
By: ZC Limited Partnership, general partner
By: ZC Partnership, general partner
Dated: February 12, 1997
By: ZC Inc., a partner
By: /s/ Shelli Z. Rosenberg
--------------------------------------
Sheli Z. Rosenberg
Vice President
Page 4 of 16
<PAGE> 5
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION PAGE
- -------------- --------------------------------------- ----
<S> <C> <C>
1 Merger Agreement dated February 4, 1992 *
2 Amended and Restated Standby Purchase *
Agreement dated April 17, 1997
3 Stockholder's Agreement dated as of *
June 1, 1992
4 Registration Rights Agreement dated as *
of June 1, 1992
5 Pages 108-110 of Preliminary *
Prospectus dated November 9, 1992
6 Standby Purchase Agreement dated *
December 15, 1992
7 Stockholder Agreement dated November *
29, 1995
8 CVS Stockholder Agreement dated 6
February 6, 1997
9 Letter from Zell/Chilmark to CVS and 15
Issuer dated February 6, 1997
</TABLE>
* Previously filed.
Page 5 of 16
<PAGE> 1
Exhibit 8
---------
STOCKHOLDER AGREEMENT
AGREEMENT dated as of February 6, 1997 between CVS Corporation, a Delaware
corporation ("CVS"), and Zell/Chilmark Fund, L.P., a Delaware limited
partnership (the "STOCKHOLDER").
W I T N E S S E T H:
WHEREAS, immediately prior to the execution of this Agreement, CVS, Revco
D.S., Inc., a Delaware corporation (the "COMPANY"), and North Acquisition
Corp., a Delaware corporation ("MERGER SUBSIDIARY"), have entered into an
Agreement and Plan of Merger (as such agreement may hereafter be amended from
time to time, the "MERGER AGREEMENT"), pursuant to which Merger Subsidiary will
be merged with and into the Company (the "MERGER"); and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, CVS has requested that the Stockholder agree, and the Stockholder
has agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual promises,
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound hereby, agree as follows:
SECTION 1. Certain Definitions. Capitalized terms used and not defined
herein have the respective meanings ascribed to them in the Merger Agreement.
For purposes of this Agreement:
(a) "AFFILIATE" shall mean, when used with respect to any Person, any other
Person directly or indirectly controlling, controlled by or under common
control with such Person. As used in this definition, the term "control" means
possession, directly or indirectly, of the power to direct or control the
direction of management or policies of a Person, whether through the ownership
of voting securities, by contract or otherwise. Notwithstanding the foregoing,
"Affiliate" when used with respect to the Stockholder shall exclude any entity
that would otherwise be an Affiliate hereunder but that is not 100%
Beneficially Owned by Samuel Zell.
(b) "BENEFICIALLY OWN" OR "BENEFICIAL OWNERSHIP" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
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<PAGE> 2
determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT")), including pursuant to any agreement, arrangement
or understanding, whether or not in writing. Without duplicative counting of
the same securities by the same holder, securities Beneficially Owned by a
Person shall include securities Beneficially Owned by all other Persons with
whom such Person would constitute a "group" within the meaning of Section 13(d)
of the Exchange Act with respect to securities of the same issuer.
(c) "COMPANY COMMON STOCK" shall mean at any time the common stock, $.01
par value, of the Company.
(d) "EXISTING SHARES" shall mean the shares of Company Common Stock
Beneficially Owned by the Stockholder on the date hereof.
(e) "SHARES" shall mean the Existing Shares and any shares of Company
Common Stock and/or other equity securities of the Company acquired by the
Stockholder in any capacity after the date hereof and prior to the termination
of this Agreement, whether upon the exercise of options, warrants or rights, the
conversion or exchange of convertible or exchangeable securities, or by means
of purchase, dividend, distribution, split-up, recapitalization, combination,
exchange of shares or the like, gift, bequest, inheritance or as a successor in
interest in any capacity or otherwise Beneficially Owned by the Stockholder.
SECTION 2. Voting of Company Common Stock. The Stockholder hereby agrees
that at any meeting (whether annual or special and whether or not an adjourned
or postponed meeting) of the holders of Company Common Stock, however called,
or in connection with any written consent of the holders of Company Common
Stock, the Stockholder will appear at the meeting or otherwise cause the Shares
to be counted as present thereat for purposes of establishing a quorum and the
Stockholder shall vote or consent (or cause to be voted or consented) the
Shares held of record or Beneficially Owned by the Stockholder in favor of the
Merger, the execution and delivery by the Company of the Merger Agreement and
the approval and adoption of the terms thereof and each of the other actions
contemplated by the Merger Agreement and this Agreement and any actions
required in furtherance thereof and hereof.
SECTION 3. Covenants, Representations and Warranties of the Stockholder.
The Stockholder hereby represents and warrants to, and agrees with, CVS as
follows:
(a) OWNERSHIP OF SHARES. The Stockholder is the record and Beneficial
Owner of Existing Shares consisting of 13,102,288 shares of Company Common
Stock. on the date hereof, the Existing Shares constitute all of the Shares
owned
2
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<PAGE> 3
of record or Beneficially Owned by the Stockholder. The Stockholder has
sole voting power (except as provided in the Stockholder's Agreement dated as
of June 1, 1992, by and between Revco and the Stockholder (the "REVCO
STOCKHOLDER AGREEMENT")) and sole power to issue instructions with respect to
the matters set forth in Section 2 hereof, sole power of disposition (except as
provided in the Agreement of Limited Partnership of Zell/Chilmark Fund, L.P.
(the "ZELL FUND AGREEMENT")), sole power of conversion, sole power to demand
appraisal rights and sole power to agree to all of the matters set forth in
this Agreement, in each case with respect to all of the Existing Shares with no
limitations, qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement. Upon consummation
of the Merger, the Stockholder will have sole voting power (except as provided
in the Revco Stockholder Agreement) and sole power to issue instructions with
respect to the matters set forth in Section 4 hereof, sole power of disposition
(except as provided in the Zell Fund Agreement), sole power of conversion, sole
power to demand appraisal rights and sole power to agree to all of the matters
set forth in this Agreement, in each case with respect to all of the shares of
CVS Common Stock it holds of record or Beneficially Owns with no limitations,
qualifications or restrictions on such rights, subject to applicable securities
laws and the terms of this Agreement.
(b) CORPORATE AUTHORIZATION. This Agreement has been duly and validly
executed and delivered by the Stockholder and constitutes a valid and binding
agreement enforceable against the Stockholder in accordance with its terms
except to the extent (i) such enforcement may be limited by applicable
bankruptcy, insolvency or similar laws affecting creditors rights and (ii) the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(c) NO CONFLICTS. Except for filings, authorizations, consents and
approvals as may be required under the HSR Act, the 1934 Act and the 1933 Act,
(i) no filing with, and no permit, authorization, consent or approval of, any
state or federal governmental body or authority is necessary for the execution
and delivery of this Agreement by the Stockholder and the consummation by the
Stockholder of the transactions contemplated hereby and (ii) none of the
execution and delivery of this Agreement by the Stockholder, the consummation
by the Stockholder of the transactions contemplated hereby or compliance by the
Stockholder with any of the provisions hereof shall (A) conflict with or
result in any breach of the organizational documents of the Stockholder, (B)
result in a violation or breach of, or constitute (with or without notice or
lapse of time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under any of
the terms, conditions or
3
Page 8 of 16
<PAGE> 4
provisions of any note, loan agreement, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or other
instrument or obligation of any kind to which the Stockholder is a party or by
which the Stockholder or any of its properties or assets may be bound, or (C)
violate any order, writ, injunction, decree, judgment, statute, law, rule or
regulation applicable to the Stockholder or any of its properties or assets.
(d) NO ENCUMBRANCES. Other than as provided in the Revco Stockholder
Agreement as to voting of the Shares and in the Zell Fund Agreement as to
provisions relating to timing of disposition of the Shares by the Stockholder,
and except as applicable in connection with the transactions contemplated
hereby, the Shares and the certificates representing such Shares are now, and
at all times during the term hereof, will be, held by the Stockholder, or by a
nominee or custodian for the benefit of the Stockholder, free and clear of all
liens, claims, security interests, proxies, voting trusts or agreements,
understandings or arrangements or any other encumbrances whatsoever, except for
any such encumbrances or proxies arising hereunder.
(e) NO FINDER'S FEES. Other than as contemplated by the Merger Agreement
with respect to fees payable by the Company, no broker, investment banker,
financial advisor or other Person is entitled to any broker's, finder's,
financial adviser's or other similar fee or commission in connection with the
transactions contemplated hereby based upon arrangements made by or on behalf
of the Stockholder.
(f) NO SOLICITATION. The Stockholder shall not, and shall cause its
Affiliates and officers, directors, employees, investment bankers, consultants
and other agents of the Stockholder and such Affiliates (such Affiliates,
officers, directors, employees, investment bankers, consultants and other
agents of any Person are hereinafter collectively referred to as the
"REPRESENTATIVES" of such Person) not to, directly or indirectly, take any
action to initiate, solicit, encourage or facilitate the making of any
Acquisition Proposal or any inquiry with respect thereto, or engage in
discussions or negotiations with any Person (other than CVS or any of its
Affiliates or Representatives) relating to any Acquisition Proposal or disclose
any non-public information relating to Revco or any Subsidiary of Revco, or
afford access to the properties, books or records of revco or any subsidiary of
Revco, to any Person that has made any Acquisition Proposal. The Stockholder
shall notify CVS orally and in writing of any offers, proposals or inquiries
received by the Stockholder relating to the purchase or acquisition by any
Person of the Shares and of any Acquisition Proposal actually known to the
Stockholder (including in each case the material terms and conditions thereof
and the identity of the Person making it), within 24 hours of the receipt
thereof. The Stockholder shall, and shall cause its Representatives to,
immediately cease and
4
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<PAGE> 5
cause to be terminated any and all existing activities, discussions
or negotiations, if any, with any parties conducted heretofore with respect to
any Acquisition Proposal, other than discussions or negotiations with CVS and
its Affiliates. For purposes of the foregoing, Representatives of the
Stockholder will not include investment bankers or consultants that approach or
contact the Stockholder, the Company or any other Person, without having been
solicited by the Stockholder, regarding such an offer, proposal or inquiry so
long as the Stockholder does not thereafter encourage or retain such investment
bankers or consultants to pursue such offer, proposal or inquiry.
Notwithstanding the restrictions set forth in this Section 3(f), each of the
Company and any Person who is an officer or director of the Company may take
any action consistent with the terms of the Merger Agreement.
(g) RESTRICTION ON TRANSFER, PROXIES; NON-INTERFERENCE. The
Stockholder shall not, directly or indirectly: (i) offer for sale, sell,
transfer, tender, pledge, encumber (other than by operation of law), assign or
otherwise dispose of, or enter into any contract, option or other arrangement
or understanding with respect to or consent to the offer for sale, sale,
transfer, tender, pledge, encumbrance, assignment or other disposition of, any
or all of the Shares or any interest therein; (ii) except as contemplated by
this Agreement, grant any proxies or powers of attorney, deposit the Shares
into a voting trust or enter into a voting agreement with respect to the
Shares; or (iii) take any action that would make any representation or
warranty of the Stockholder contained herein untrue or incorrect or would
result in a breach by the Stockholder of its obligations under this Agreement
or a breach by the Company of its obligations under the Merger Agreement or the
effect of which would be inconsistent or violative of any provision or
agreement contained in this Agreement.
(h) RELIANCE BY CVS. The Stockholder understands and acknowledges that
CVS is entering into the Merger Agreement in reliance upon the Stockholder's
execution and delivery of this Agreement.
SECTION 4. Representations and Warranties of CVS. CVS hereby represents
and warrants to the stockholder as follows:
(a) ORGANIZATION. CVS is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, has all requisite
corporate power and authority to execute and deliver this agreement and perform
its obligations hereunder. The execution and delivery by CVS of this Agreement
and the performance by CVS of its obligations hereunder have been duly and
validly authorized by the Board Of Directors of CVS and no other corporate
proceedings on the part of CVS are necessary to authorize the execution,
delivery
5
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<PAGE> 6
or performance of this agreement or the consummation of the transactions
contemplated hereby.
(b) CORPORATE AUTHORIZATION. This Agreement has been duly and validly
executed and delivered by CVS and constitutes a valid and binding agreement of
CVS enforceable against CVS in accordance with its terms except to the extent
(i) such enforcement may be limited by applicable bankruptcy, insolvency or
similar laws affecting creditors rights and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(c) NO CONFLICTS. Except for filings, authorizations, consents and
approvals as may be required under the HSR Act, the 1934 Act and the 1933 Act,
(i) no filing with, and no permit, authorization, consent or approval of, any
state or federal governmental body or authority is necessary for the execution
and delivery of this Agreement by CVS and the consummation by CVS of the
transactions contemplated hereby and (ii) none of the execution and delivery of
this Agreement by CVS, the consummation by CVS of the transactions contemplated
hereby or compliance by CVS with any of the provisions hereof shall (A)
conflict with or result in any breach of the certificate of incorporation or
by-laws of CVS, (B) result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, material modification or
acceleration) under any of the terms, conditions or provisions of any note,
loan agreement, bond, mortgage, indenture, license, contract, commitment,
arrangement, understanding, agreement or other instrument or obligation of any
kind to which CVS is a party or its properties or assets may be bound, or (C)
violate any order, writ, injunction, decree, judgment, statute, law, rule or
regulation applicable to CVS or any of its properties or assets.
(d) NO FINDER'S FEE. Except for Donaldson, Lufkin & Jenrette Securities
Corporation and CS First Boston Corporation whose fees will be paid by CVS, no
broker, investment banker, financial adviser or other person is entitled to any
broker's, finder's, financial adviser's or other similar fee or commission in
connection with the transactions contemplated hereby based upon arrangements
made by or on behalf of CVS.
SECTION 5. Stop Transfer; Legend. (a) The Stockholder agrees with, and
covenants to, CVS that the Stockholder shall not request that the Company
register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Shares unless such transfer is
made in compliance with this Agreement.
6
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<PAGE> 7
(b) In the event of a stock dividend or distribution, or any change in the
Company Common Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like other than
pursuant to the Merger, the term "SHARES" shall be deemed to refer to and
include the shares of Company Common Stock as well as all such stock dividends
and distributions and any shares into which or for which any or all of the
Shares may be changed or exchanged and appropriate adjustments shall be made to
the terms and provisions of this Agreement.
(c) The Stockholder will, prior to the Effective Time, duly execute and
deliver to CVS The Affiliate's letter contemplated in Section 5.11 of the
Merger Agreement substantially in the form of Exhibit C-3 to the Merger
Agreement.
(d) The Stockholder shall promptly after the date hereof surrender to the
Company all certificates representing the Shares, and the Company shall place
the following legend on such certificates:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO A STOCKHOLDER AGREEMENT DATED AS OF FEBRUARY
6, 1997 BY AND BETWEEN CVS CORPORATION AND ZELL/CHILMARK
FUND, L.P. WHICH AMONG OTHER THINGS RESTRICTS THE
TRANSFER AND VOTING THEREOF."
SECTION 6. Termination. The provisions of this Agreement shall
terminate upon the earlier to occur of (i) the Effective Time and (ii) the
termination of the Merger Agreement in accordance with its terms.
SECTION 7. Confidentiality. The Stockholder recognizes that successful
consummation of the transactions contemplated by this Agreement may be
dependent upon confidentiality with respect to the matters referred to herein.
in this connection, pending public disclosure thereof, the Stockholder hereby
agrees not to disclose or discuss such matters with anyone not a party to this
Agreement (other than to the Company and to its and the Company's counsel and
advisors) without the prior written consent of CVS, except for filings required
pursuant to the Exchange Act and the rules and regulations thereunder or
disclosures its counsel advises are necessary in order to fulfill its
obligations imposed by law, in which event the Stockholder shall give prior
notice of such disclosure to CVS as promptly as practicable so as to enable CVS
to seek a protective order from a court of competent jurisdiction with respect
thereto.
7
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<PAGE> 8
SECTION 8. Disclosure. (a) The Stockholder hereby agrees to permit CVS to
publish and disclose in the Form S-4 and the CVS Proxy Statement (including all
documents, exhibits and schedules filed with the SEC), and any press release or
other disclosure document which CVS's counsel advises are necessary or
desirable in connection with the Merger and any transactions related thereto,
the Stockholder's identity and ownership of Company Common Stock or shares of
CVS Common Stock, as the case may be, and the nature of its commitments,
arrangements and understandings under this Agreement.
(b) The Stockholder hereby agrees to permit Revco to publish and
disclose in the Revco Proxy Statement (including all documents, exhibits and
schedules filed with the SEC), and any press release or other disclosure
document which Revco, in its sole discretion, determines to be necessary or
desirable in connection with the Merger and any transactions related thereto,
the Stockholder's identity and ownership of Company Common Stock or shares of
CVS Common Stock, as the case may be, and the nature of its commitments,
arrangements and understandings under this Agreement.
SECTION 9. Miscellaneous. (a) ENTIRE AGREEMENT. This agreement, the
Merger Agreement and the Registration Rights Agreement referred to therein
constitute the entire agreement between the parties with respect to the subject
matter hereof and thereof and supersedes all other prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof and thereof.
(b) BINDING AGREEMENT. The Stockholder agrees that this Agreement and
the obligations hereunder shall attach to the Shares and shall be binding upon
any Person to which legal or Beneficial Ownership of such Shares shall pass,
whether by operation of law or otherwise, including, without limitation, the
Stockholder's heirs, distributees, guardians, administrators, executors, legal
representatives, or successors, partners or other transferees (for value or
otherwise) and any other successors in interest. Notwithstanding any transfer
of Shares, the transferor shall remain liable for the performance of all
obligations under this Agreement of the transferor. Nothing in this clause (b)
shall permit any transfer of Shares otherwise prohibited by the provisions of
this Agreement.
(c) ASSIGNMENT. No party may assign any of its rights or obligations
hereunder, by operation of law or otherwise, without the prior written consent
of the other party; provided that CVS may assign, in its sole discretion, its
rights and obligations hereunder to any direct or indirect wholly owned
subsidiary of CVS, but no such assignment shall relieve CVS of its obligations
hereunder if such assignee does not perform such obligations.
8
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<PAGE> 9
(d) AMENDMENTS, WAIVERS, ETC. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the parties
hereto.
(e) NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if given) by hand delivery or telecopy (with
a confirmation copy sent for next day delivery via courier service, such as
Federal Express), or by any courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses:
<TABLE>
<C> <C>
If to Stockholder: Zell/Chilmark Fund, L.P.
Two CVS Riverside Plaza
Suite 1500
Chicago, Illinois 60606
Attention: Sheli Z. Rosenberg
Telephone No.: (312) 984-9711
Telecopy No.: (312) 984-0317
with a copy to: Rosenberg & Liebentritt
2 North Riverside Plaza
Suite 1601
Chicago, Illinois 60606
Attention: Alisa Singer
Telephone No.: (312) 454-0335
Telecopy No.: (312) 466-3196
If to CVS: CVS Corporation
One CVS Drive
Woonsocket, RI 02895
Attention: Thomas M. Ryan
Telephone: 401-765-1500
Telecopy No.: 401-765-4128
with a copy to: Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Attention: Dennis S. Hersch
Telephone No.: (212) 450-4545
Telecopy No.: (212) 450-5744
</TABLE>
9
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<PAGE> 1
Exhibit 9
---------
AFFILIATE'S LETTER RELATING TO POOLING
FOR ZELL/CHILMARK FUND, L.P.
(Revco D.S., Inc.)
February 6, 1997
CVS Corporation
One CVS Drive
Woonsocket, RI 02895
Revco D.S., Inc.
1925 Enterprise Parkway
Twinsburg, OH 44087
Ladies and Gentlemen:
Pursuant to the terms of the Agreement and Plan of Merger dated as of
February 6, 1997 (the "AGREEMENT") among CVS Corporation, a Delaware
corporation ("CVS"), Revco D.S., Inc., a Delaware corporation ("REVCO"), and
North Acquisition Corp., a Delaware corporation ("MERGER SUBSIDIARY"), Merger
Subsidiary will be merged with and into Revco with Revco to be the surviving
corporation in the Merger (the "MERGER").
The undersigned represents, warrants and covenants with and to CVS and
Revco that:
A. The undersigned understands that the Merger is intended to be
accounted for using the "pooling-of-interests" method and that such treatment
for financial accounting purposes is dependent upon the accuracy of certain of
the representations and warranties, and the undersigned's compliance with
certain of the covenants and agreements, set forth herein. Accordingly, the
undersigned will not sell, transfer or otherwise dispose of the undersigned's
interests in, or acquire or sell any options or other securities relating to
securities of CVS or Revco that would be intended to reduce the undersigned's
risk relative to, any shares of common stock of either CVS or Revco
beneficially owned by the undersigned, during the period commencing on the 30th
day prior to the effectiveness of the Merger and ending at such time as CVS
publicly releases a report (the "COMBINED FINANCIAL RESULTS REPORT") covering
at least 30 days of combined operations of CVS after the Merger; provided that
the foregoing shall not restrict the distribution after the Effective Time (as
defined in the Agreement) by the undersigned to its partners of the shares of
common stock of CVS held by the
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<PAGE> 2
undersigned so long as (if such distribution occurs before the date of
publication of the Combined Financial Results Report) no later than the time of
such distribution each such partner shall have executed and delivered to CVS a
letter agreement in the form of this letter (but excluding this proviso).
B. The undersigned also understands that stop transfer instructions
will be given to the transfer agents of CVS and Revco in order to prevent any
breach of the covenants and agreements make by the undersigned in paragraph A,
although such stop transfer instructions will be promptly rescinded upon the
publication of the Combined Financial Results Report.
C. The undersigned understands and agrees that this letter agreement
shall apply to all shares of the capital stock of CVS and Revco that are deemed
to be beneficially owned by the undersigned pursuant to applicable federal
securities laws.
Very truly yours,
Zell/Chilmark Fund, L.P.
By: ZC Limited Partnership, general
partner
By: ZC Partnerships, general partner
By: ZC Inc., a partner
By: /s/ Sheli Z. Rosenberg
-------------------------
Name: Sheli Z. Rosenberg
Title: Vice President
Accepted this ____ day of
____________, 1997.
CVS CORPORATION
By:
_______________________
Name:
Title:
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