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EXHIBIT (c)(4)
EXTENSION, EARLY TERMINATION AND WAIVER AGREEMENT
This Extension, Early Termination and Waiver Agreement (this
"Agreement") is made as of February 23, 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
agreement of the parties hereto with respect to the conduct of the Offer; and
WHEREAS, the parties hereto desire to set forth in writing
certain 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.
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2. Extension of 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 February 23, 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 April 30, 1998 (the "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
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, (a) mail notice of such changed expiration date,
together with a copy of the Letter of Transmittal previously included with the
Offer Documents, to each holder of record of shares of Common Stock and (b) give
such other 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 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.
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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/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President,
Store Development
LOCOMOTIVE ACQUISITION CORP.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
XXXXXXX FOOD AND DRUG STORES
COMPANY
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
Chief Financial Officer
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