Exhibit (c)(8)
FOURTH EXTENSION, EARLY TERMINATION AND WAIVER AGREEMENT
This Fourth Extension, Early Termination and Waiver Agreement
(this "Agreement") is made as of August 26, 1998 by and between
▇▇▇▇▇▇▇▇▇'▇, Inc., a Delaware corporation ("Acquiror"), Locomotive
Acquisition Corp., a Delaware corporation and wholly owned subsidiary of
Acquiror ("Newco"), and ▇▇▇▇▇▇▇ 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 three
Extension, Early Termination and Waiver Agreements, dated as of February
23, 1998, April 30, 1998 and July 15, 1998 (the "Prior Extension
Agreements"), which set forth certain additional terms and conditions of
their agreement with respect to the conduct of the Offer; and
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. Termination Date. The date "July 19, 1998" referred to in
Section 9.1(c) of the Merger Agreement is hereby amended and changed to
"September 30, 1998."
3. 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 September 1, 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 September 30, 1998 (the " Fourth
Extended Expiration Date").
4. 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 Fourth 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.
5. Waiver. In the event Acquiror and Newco are required to
change the expiration date of the Offer pursuant to Section 4 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).
6. Further Extensions; Closing Actions. This Agreement does
not amend or modify Acquiror's or Newco's obligations to extend the Offer
beyond the Fourth 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 4
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.
7. Conditions to Offer. Acquiror and Newco hereby agree and
acknowledge that, as of the date hereof, (A) none of the conditions, events
or circumstances described in subparagraph (a), (b), (f) or ( g) of
Exhibit A to the Merger Agreement or in Section 9.1(a) or (h) of the Merger
Agreement has occurred and (B), to the best knowledge of Acquiror and
Newco, none of the conditions, events or circumstances described in
subparagraph (c) or (d) of Exhibit A to the Merger Agreement or in Section
9.1(i) or (j) of the Merger Agreement has occurred. No representation,
warranty or covenant of the Company and the Subsidiary in the Merger
Agreement will be breached by, and no condition to the Offer or the Merger
will fail to be satisfied as a result of, any action, omission, effect on
or adverse change in the business, operations, properties (including
intangible properties), condition (financial or otherwise), results of
operations, assets or liabilities of the Company and the Subsidiary, taken
as a whole, arising out of or related to (i) the sale or proposed sale of
stores pursuant to the Antitrust Laws, (ii) changes in the Company's
business operations requested or acquiesced in by Acquiror, prior to, on or
after the date hereof or (iii) deterioration in the Company's financial
performance after August 1, 1998 attributable to the expected purchase of
shares of Common Stock pursuant to the Offer.
8. Effect on Prior Extension Agreements. Upon the execution of
this Agreement by all of the parties hereto, the Prior Extension Agreements
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.
▇▇▇▇▇▇▇▇▇'▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
LOCOMOTIVE ACQUISITION CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ FOOD AND DRUG STORES
COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chairman, President and Chief Executive Officer
