EXHIBIT (c)(5)
SECOND EXTENSION, EARLY TERMINATION AND WAIVER AGREEMENT
This Second Extension, Early Termination and Waiver Agreement
(this "Agreement") is made as of April 30, 1998 by and between Xxxxxxxxx'x,
Inc., a Delaware corporation ("Acquiror"), Locomotive Acquisition Corp., a
Delaware corporation and wholly owned subsidiary of Acquiror ("Newco"), and
Xxxxxxx Food and Drug Stores Company, a Delaware corporation (the
"Company"), in connection with that certain Agreement and Plan of Merger,
dated as of January 19, 1998, among Acquiror, Newco and the Company (the
"Merger Agreement").
RECITALS
WHEREAS, Acquiror, Newco and the Company constitute all of the
parties to the Merger Agreement; and
WHEREAS, Section 1.1 of the Merger Agreement describes the
initial agreement of the parties hereto with respect to the conduct of the
Offer; and
WHEREAS, the parties hereto have previously entered into that
certain Extension, Early Termination and Waiver Agreement, dated as of
February 23, 1998 (the "First Extension Agreement"), which sets forth
certain additional terms and conditions of their agreement with respect to
the conduct of the Offer;
WHEREAS, the parties hereto desire to set forth in writing
certain further additional terms and conditions of their agreement with
respect to the conduct of the Offer; and
WHEREAS, each of the respective Boards of Directors of the
parties hereto has authorized the execution of this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual covenants and agreements set forth herein and intending to be
legally bound hereby, the parties hereto hereby agree as follows:
1. Definitions. Capitalized terms used and not otherwise
defined herein shall have the respective meanings assigned to such terms in
the Merger Agreement.
2. Extension of Extended Expiration Date. In the event all
conditions to the Offer (including the conditions set forth in Exhibit A to
the Merger Agreement) have not been satisfied or waived at or before 12:00
midnight, New York City time, on April 30, 1998, Acquiror and Newco shall
extend the expiration date of the Offer by filing with the Commission an
amendment to the Schedule 14D-1 providing that the Offer will expire at
12:00 midnight, New York City time, on July 15, 1998 (the "Second Extended
Expiration Date").
3. Early Termination. In the event all conditions to the Offer
(including the conditions set forth in Exhibit A to the Merger Agreement)
have been satisfied on or before the day that is 10 Business Days prior to
the Second Extended Expiration Date, Acquiror and Newco shall change the
expiration date of the Offer to 12:00 midnight, New York City time, on the
day that is 10 Business Days following the date on which they will have
filed with the Commission an amendment to the Schedule 14D-1 providing for
such change. Acquiror and Newco hereby agree to file such amendment on or
before the second Business Day following the day on which such conditions
have been satisfied and, in connection with such filing, give such notice
of such changed expiration date as may be required by the rules and
regulations of the Commission.
4. Waiver. In the event Acquiror and Newco are required to
change the expiration date of the Offer pursuant to Section 3 above,
Acquiror and Newco shall, upon the filing with the Commission of the
amendment providing for such change, waive any and all rights either of
them may have to extend the expiration date of the Offer further (including
any such right set forth in Section 1.1(b) of the Merger Agreement).
5. Further Extensions; Closing Actions. This Agreement does
not amend or modify Acquiror's or Newco's obligations to extend the Offer
beyond the Second Extended Expiration Date as required pursuant to Section
1.1(b) of the Merger Agreement. In the event that Acquiror and Newco are
unable to change the expiration date of the Offer as provided in Section 3
above for any reason, Acquiror, Newco and the Company shall take all
actions necessary to consummate the Offer and the Merger as expeditiously
as possible.
6. Effect on First Extension Agreement. Upon the execution of
this Agreement by all of the parties hereto, the First Extension Agreement
shall be of no further force or effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed and delivered by their duly authorized representatives as of
the day and year first above written.
XXXXXXXXX'X, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President, Administration
and General Counsel
LOCOMOTIVE ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
XXXXXXX FOOD AND DRUG STORES COMPANY
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
