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.
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.
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
______________________
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President,
Store Development
LOCOMOTIVE ACQUISITION CORP.
By: /s/ Xxxxxxx X. Xxxxxxx
______________________
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
XXXXXXX FOOD AND DRUG STORES
COMPANY
By: /s/ Xxxxx X. Xxxxxxxx
______________________
Name: Xxxxx X. Xxxxxxxx
Title: Chief Financial Officer
