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EXHIBIT 11
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.
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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.
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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/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President,
Administration and General Counsel
LOCOMOTIVE ACQUISITION CORP.
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
XXXXXXX FOOD AND DRUG STORES
COMPANY
By: /s/ XXXXX X. XXXXXXXX
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Name: Xxxxx X. Xxxxxxxx
Title: SUP & CFO
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