Exhibit 2(b)
February 25, 1997
X. X. Xxxxxx Company, Inc.
0000 Xxxxxx Xxxxx
Xxxxx, Xxxxx 00000-0000
Omega Acquisition Corporation
0000 Xxxxxx Xxxxx
Xxxxx, Xxxxx 00000-0000
Eckerd Corporation
0000 Xxxxx Xxxxx Xxxx
Xxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
Reference is hereby made to the Amended and Restated Agreement and
Plan of Merger, dated as of November 2, 1996 (the "Merger Agreement"), between
X. X. Xxxxxx Company, Inc., a Delaware corporation ("JCPenney"), Omega
Acquisition Corporation, a Delaware corporation and wholly owned subsidiary of
JCPenney ("Omega"), and Eckerd Corporation, a Delaware corporation ("Eckerd").
Capitalized terms used but not defined herein shall have the meanings ascribed
thereto in the Merger Agreement.
Each of JCPenney, Omega and Eckerd hereby agree as follows:
1. Section 3.2(a) of the Merger Agreement is hereby amended to read
in its entirety as follows:
(a) Each holder of a then outstanding option to purchase Shares
(collectively, "Options") under Company's 1993 Stock Option and Incentive
Plan and 1995 Stock Option and Incentive Plan (collectively, the "Stock
Option Plans"), whether or not then exercisable or fully vested, may elect,
prior to the Effective Time, in settlement thereof, to
February 25, 1997
Page 2
receive from Parent for each share subject to such Option an amount in cash
equal to the difference between the Offer Consideration and the per share
exercise price of such Option, to the extent the Offer Consideration is
greater than the per share exercise price of such Option (such excess
amount, the "Option Consideration"); provided, however, that with respect
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to any person subject to Section 16(a) of the Exchange Act, any such amount
shall be paid as soon as practicable after the first date payment can be
made without liability to such person under Section 16(b) of the Exchange
Act.
2. Section 3.2(c) of the Merger Agreement is hereby amended to read
in its entirety as follows:
(c) Not later than 30 days prior to the Effective Time, Company
shall provide each holder of an Option an election form pursuant to which
each such holder may make the election specified in Section 3.2(a). Company
shall also use its best efforts to obtain all necessary waivers, consents
or releases from holders of Options under the Stock Option Plans and take
any such other action as may be reasonably necessary to give effect to the
transactions contemplated by this Section 3.2 and, with respect to the
Options for which an election to receive cash in settlement thereof has
been made, to cause each such Option to be surrendered to Parent and
cancelled, whether or not any Option Consideration is payable with respect
thereto, at the Effective Time. The surrender of an Option to Parent shall
be deemed a release of any and all rights the holder had or may have had in
such Option, other than the right to receive the Option Consideration in
respect thereof.
The Merger Agreement, as amended by this letter agreement, shall
remain in full force and effect in accordance with its terms. No modification of
this letter agreement shall be valid unless in writing and signed by the parties
hereto. In the event of any conflict between the provisions of this letter
agreement and the provisions of the Merger Agreement, the provisions of this
letter agreement shall control.
February 25, 1997
Page 3
This letter agreement may be executed in one or more counterparts,
each of which shall be an original and all of which, when taken together, shall
constitute one and the same instrument.
Very truly yours,
X. X. PENNEY COMPANY, INC.
By: /s/ XXXXX X. XXXXXXXXXXXXX
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Name: X. X. Xxxxxxxxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
OMEGA ACQUISITION CORPORATION
By: /s/ X. X. XXXXX
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Name: X. X. XxXxx
Title: President
ECKERD CORPORATION
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President/
Chief Financial Officer
