<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 24, 1996
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
RITE AID CORPORATION
30 HUNTER LANE
CAMP HILL, PENNSYLVANIA 17011
(717) 761-2633
(EXACT NAME, ADDRESS AND TELEPHONE NUMBER OF REGISTRANT)
DELAWARE 5912 23-1614034
(STATE OR OTHER (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
JURISDICTION CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
OF INCORPORATION) ----------------
FRANKLIN C. BROWN, ESQ.
EXECUTIVE VICE PRESIDENT
AND CHIEF LEGAL COUNSEL
RITE AID CORPORATION
30 HUNTER LANE
CAMP HILL, PENNSYLVANIA 17011
(717) 761-2633
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
----------------
COPIES TO:
ROBERT A. PROFUSEK, ESQ. ELLIOT S. GERSON, ESQ. EDMUND M. KAUFMAN, ESQ.
JONES, DAY, REAVIS & RITE AID CORPORATION IRELL & MANELLA LLP
POGUE 30 HUNTER LANE 333 SOUTH HOPE STREET
599 LEXINGTON AVENUE CAMP HILL, PENNSYLVANIA 17011 LOS ANGELES, CALIFORNIA
NEW YORK, NEW YORK 10022 90071
(212) 326-3939 (213) 620-1555
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance
with General Instruction G, check the following box. [_]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF AMOUNT OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE TO BE PER OFFERING REGISTRATION
REGISTERED REGISTERED(1) SHARE(1)(2) PRICE(1)(2) FEE(2)
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<S> <C> <C> <C> <C>
Common Stock, par value 41,015,000 $32.31 $1,325,194,650 $401,575
$1.00 per share....... shares
</TABLE>
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(1) The number of shares of Common Stock ("Rite Aid Common Stock") of Rite Aid
Corporation ("Rite Aid") to be registered has been determined based on the
estimated maximum number of shares of Rite Aid Common Stock to be issued
upon conversion of shares of Common Stock ("Thrifty PayLess Common Stock")
of Thrifty PayLess Holdings, Inc. ("Thrifty PayLess") in the proposed
merger of Thrifty PayLess into Rite Aid (the "Merger") and upon exercise
or conversion of certain options and warrants of Thrifty PayLess at the
time of the Merger.
(2) Estimated pursuant to Rule 457(f) based on the market value of shares of
Thrifty PayLess Common Stock ($21.00, which is the average of the high and
low sale prices of shares of Thrifty PayLess Common Stock on the New York
Stock Exchange, Inc. Composite Tape on October 22, 1996) and the
conversion ratio of 0.65 shares of Rite Aid Common Stock for each share of
Thrifty PayLess Common Stock in the Merger multiplied by 41,015,000 (the
estimated maximum number of shares of Rite Aid Common Stock to be issued
in connection with the Merger).
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT WILL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING
PURSUANT TO SAID SECTION 8(a) MAY DETERMINE.
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<PAGE>
[RITE AID CORPORATION LETTERHEAD]
NOVEMBER , 1996
Dear Stockholder:
You are cordially invited to attend the Special Meeting of Stockholders of
Rite Aid Corporation to be held at Radisson Penn Harris Hotel & Convention
Center, 1150 Camp Hill Bypass, Camp Hill, Pennsylvania, on , December ,
1996, at noon, Eastern Time.
At the Rite Aid Special Meeting, stockholders will be asked to adopt the
Agreement and Plan of Merger between Rite Aid and Thrifty PayLess Holdings,
Inc. (the "Merger Agreement") and the issuance of Rite Aid Common Stock to
Thrifty PayLess stockholders pursuant thereto. The Merger Agreement provides
for the merger of Thrifty PayLess with and into Rite Aid. In the Merger,
Thrifty PayLess Common Stock will be converted into Rite Aid Common Stock
based on an exchange ratio of 0.65 shares of Rite Aid Common Stock for each
share of Thrifty PayLess Common Stock. In addition, pursuant to the Merger
Agreement, Rite Aid's Certificate of Incorporation will be amended in order,
among other things, to increase the number of shares of authorized Rite Aid
Common Stock from 240 million to 300 million.
The Merger, the Merger Agreement and the terms and conditions thereof are
more fully described in the accompanying Joint Proxy Statement/Prospectus. We
urge you to review this material carefully.
Rite Aid's Board of Directors has unanimously determined that the Merger and
the transactions contemplated by the Merger Agreement are fair to and in the
best interests of the stockholders of Rite Aid, has approved the Merger
Agreement and recommends that Rite Aid stockholders vote "for" adoption of the
Merger Agreement.
The acquisition of Thrifty PayLess is an integral part of Rite Aid's
strategy to operate drug stores in large, fast-growing metropolitan areas.
During fiscal 1998, we plan to close the Thrifty PayLess headquarters in
Wilsonville, Oregon. This closing combined with increased purchasing
efficiencies should enhance Rite Aid's earnings for the year. In addition,
Rite Aid intends to rapidly install its proprietary technology into all
Thrifty PayLess stores. Over the next three years, we anticipate that the
results at the Thrifty PayLess stores will more closely mirror the Rite Aid
stores. The combined company will operate over 3,500 stores and have revenues
greater than $10 billion. Our emphasis on technology and marketing are
designed to position us as an attractive provider to managed care
organizations.
It is important that your shares of Rite Aid Common Stock are represented at
the Special Meeting, regardless of the number of shares you hold. Whether or
not you plan to attend the Special Meeting, please sign, date and return your
proxy card in the enclosed postage paid envelope as soon as possible. If you
later decide to attend the Special Meeting and vote in person, or if you wish
to revoke your proxy for any reason prior to the vote at the Special Meeting,
you may do so and your proxy will have no further effect. If you attend the
Special Meeting, you may vote in person, if you wish, even though you
previously mailed your proxy.
As previously announced, Rite Aid is redeeming the so-called poison pill
rights previously declared in respect of Rite Aid Common Stock. Accordingly,
enclosed herewith is a check in payment of the redemption price ($0.01 per
share of Common Stock owned of record as of , 1996). Rite Aid has been
advised by its legal counsel that such amounts will be treated as dividend
income for federal income tax purposes.
Sincerely,
Martin L. Grass
<PAGE>
RITE AID CORPORATION
30 HUNTER LANE
CAMP HILL, PENNSYLVANIA 17011
----------------
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD DECEMBER , 1996
----------------
To the Stockholders of Rite Aid Corporation:
NOTICE IS HEREBY GIVEN that a Special Meeting of Stockholders of Rite Aid
Corporation ("Rite Aid") will be held on , December , 1996, at noon,
Eastern Time, at Radisson Penn Harris Hotel & Convention Center, 1150 Camp
Hill Bypass, Camp Hill, Pennsylvania, for the following purposes:
1. To consider and vote upon a proposal to adopt an Agreement and Plan of
Merger, dated as of October 13, 1996 (the "Merger Agreement"), providing
for the merger (the "Merger") of Thrifty PayLess Holdings, Inc. ("Thrifty
PayLess") with and into Rite Aid, the issuance of shares of Rite Aid Common
Stock pursuant to the Merger Agreement and the amendment of Rite Aid's
Certificate of Incorporation pursuant to the Merger Agreement in order,
among other things, to increase the total number of authorized shares of
Rite Aid Common Stock from 240 million to 300 million, all as more fully
described in the accompanying Joint Proxy Statement/Prospectus.
2. To transact such other business as may properly come before the
Special Meeting or any adjournments or postponements thereof.
Information regarding the matters to be acted upon at the Special Meeting is
contained in the Joint Proxy Statement/Prospectus accompanying this notice. A
copy of the Merger Agreement is attached as Annex A thereto. The Joint Proxy
Statement/Prospectus and the Annexes thereto form a part of this Notice.
Only the holders of record of Rite Aid Common Stock as of the , 1996
record date for the Special Meeting are entitled to notice thereof and to vote
thereat or at any adjournments or postponements thereof. A list of such
stockholders will be open to examination by any stockholder at the Special
Meeting and for a period of ten days prior to the date of the Special Meeting
during ordinary business hours at Rite Aid's corporate offices, 30 Hunter
Lane, Camp Hill, Pennsylvania. The adoption of the Merger Agreement requires
the affirmative vote of the holders of record of a majority of the shares of
Rite Aid Common Stock outstanding on the record date for the Special Meeting.
BY ORDER OF THE BOARD OF DIRECTORS
_____________________________________
I. Lawrence Gelman
Vice President and Secretary
November , 1996
WHETHER OR NOT YOU PLAN TO ATTEND THE SPECIAL MEETING, PLEASE COMPLETE, SIGN
AND DATE YOUR PROXY CARD AND RETURN IT PROMPTLY IN THE ENCLOSED POSTAGE-
PREPAID ENVELOPE. YOU MAY REVOKE YOUR PROXY IN THE MANNER DESCRIBED IN THE
JOINT PROXY STATEMENT/PROSPECTUS AT ANY TIME BEFORE THE PROXY HAS BEEN VOTED
AT THE SPECIAL MEETING.
<PAGE>
[THRIFTY PAYLESS HOLDINGS, INC. LETTERHEAD]
NOVEMBER , 1996
Dear Stockholder:
You are cordially invited to attend the Special Meeting of Stockholders of
Thrifty PayLess Holdings, Inc. to be held at , , on December , 1996 at
9:00 a.m., Pacific Standard Time.
The purpose of the Thrifty PayLess Special Meeting is to consider a proposal
to approve and adopt an Agreement and Plan of Merger, dated as of October 13,
1996, between Thrifty PayLess and Rite Aid Corporation. The Merger Agreement
provides for Thrifty PayLess' acquisition by Rite Aid through the merger of
Thrifty PayLess into Rite Aid, with Rite Aid surviving the merger, and related
transactions.
Pursuant to the merger, each share of Class A Common Stock and Class B
Common Stock of Thrifty PayLess (other than shares owned by Thrifty PayLess as
treasury stock, shares held by Rite Aid or any wholly owned subsidiary of Rite
Aid or Thrifty PayLess, and shares of Class A Common Stock as to which
appraisal rights have been properly exercised and perfected) will, by virtue
of the merger and without any action on the part of the holder thereof, be
converted into the right to receive 0.65 shares of duly authorized, validly
issued, fully paid and nonassessable Common Stock of Rite Aid (the "Exchange
Ratio"), which shares will be listed on the New York Stock Exchange. In
addition, upon consummation of the merger, each outstanding option or warrant
to purchase shares of Thrifty PayLess Common Stock will be accelerated and
converted automatically into a right to receive an amount of cash equal to (i)
65% of the closing sales price per share of Rite Aid Common Stock on the New
York Stock Exchange as reported on the New York Stock Exchange Composite Tape
for the date on which the merger becomes effective, minus the exercise price
per share under the applicable option or warrant, times (ii) the number of
shares of Thrifty PayLess Common Stock purchasable upon exercise of such
option or warrant. The obligation of Thrifty PayLess to consummate the merger
is subject, at Thrifty PayLess' option, to a minimum price condition with
respect to the Rite Aid Common Stock and certain other conditions, as
described more fully in the enclosed Joint Proxy Statement/Prospectus.
Your Board of Directors, by unanimous vote, approved the Merger Agreement
and the transactions contemplated thereby (including the merger) as being in
the best interests of Thrifty PayLess and its stockholders. ACCORDINGLY, YOUR
BOARD OF DIRECTORS RECOMMENDS THAT YOU VOTE "FOR" ADOPTION OF THE MERGER
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED THEREBY (INCLUDING THE MERGER).
Our recommendation and our reasons for it, as well as the background of the
transaction, certain risks associated therewith, required regulatory approvals
and other conditions to closing and other important information regarding the
transaction are set forth in the accompanying Joint Proxy
Statement/Prospectus.
Rite Aid has entered into a Stockholder Agreement with each of Thrifty
PayLess' two largest stockholders, Green Equity Investors, L.P. and Kmart
Corporation, pursuant to which such stockholders have each agreed, among other
things, to vote all shares of Thrifty PayLess Common Stock owned by each of
them in favor of adoption of the Merger Agreement and the transactions
contemplated thereby. As of the date of this letter, such stockholders own an
aggregate of 24,998,513 shares, or approximately 42%, of outstanding Thrifty
PayLess Common Stock.
Your vote is important, regardless of the number of shares you own. Adoption
of the Merger Agreement and the transactions contemplated thereby requires the
affirmative vote of the holders of a majority of the outstanding shares of
Thrifty PayLess Class A Common Stock and Class B Common Stock, voting together
as a single class. Accordingly, whether or not you plan to attend the Thrifty
PayLess Special Meeting, you are urged to complete, date and sign the
accompanying proxy and return it promptly in the enclosed postage-paid
envelope. This will not prevent you from attending the Thrifty PayLess Special
Meeting or voting in person, but will assure that your vote is counted if you
are unable to attend such meeting. You may revoke your proxy at any time by
filing a written notice of revocation with, or delivering a duly executed
proxy bearing a later date to, the Secretary of Thrifty PayLess at Thrifty
PayLess' principal executive offices prior to the Thrifty PayLess Special
Meeting or by attending the Thrifty PayLess Special Meeting and voting in
person.
Sincerely,
Leonard I. Green
Chairman of the Board
<PAGE>
THRIFTY PAYLESS HOLDINGS, INC.
9275 S.W. PEYTON LANE
WILSONVILLE, OREGON 97070
----------------
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD DECEMBER , 1996
----------------
To the Stockholders of Thrifty PayLess Holdings, Inc.:
NOTICE IS HEREBY GIVEN that a Special Meeting of Stockholders of Thrifty
PayLess Holdings, Inc., a Delaware corporation ("Thrifty PayLess"), will be
held on , December , 1996 at 9:00 a.m., Pacific Standard Time, at the
(the "Thrifty PayLess Special Meeting"), for the following purposes:
1. To consider and vote upon a proposal to adopt an Agreement and Plan
of Merger, dated as of October 13, 1996 (the "Merger Agreement"),
between Thrifty PayLess and Rite Aid Corporation, a Delaware corporation
("Rite Aid"), which provides for, among other things, the following: (i)
the acquisition of Thrifty PayLess by Rite Aid through the merger (the
"Merger") of Thrifty PayLess with and into Rite Aid, with Rite Aid
surviving the Merger, and related transactions; (ii) the conversion of
each share of Class A Common Stock, par value $.01 per share (the "A
Common Stock"), and Class B Common Stock, par value $.01 per share (the
"B Common Stock" and, together with the A Common Stock, "Thrifty PayLess
Common Stock"), of Thrifty PayLess (other than shares owned by Thrifty
PayLess as treasury stock, shares held by Rite Aid or any wholly owned
subsidiary of Rite Aid or Thrifty PayLess, and shares of A Common Stock
as to which appraisal rights have been properly exercised and perfected)
into the right to receive 0.65 shares of duly authorized, validly
issued, fully paid and nonassessable Common Stock, par value $1.00 per
share (the "Rite Aid Common Stock"), of Rite Aid; and (iii) the
conversion of each outstanding option or warrant to purchase shares of
Thrifty PayLess Common Stock into a right to receive an amount of cash
equal to (a) 65% of the closing sales price per share of Rite Aid Common
Stock on the New York Stock Exchange as reported on the New York Stock
Exchange Composite Tape for the date on which the Merger becomes
effective, minus the exercise price per share under the applicable
option or warrant, times (b) the number of shares of Thrifty PayLess
Common Stock purchasable upon exercise of such option or warrant.
2. To transact such other business as may properly come before the
Thrifty PayLess Special Meeting or any adjournments or postponements
thereof.
Information regarding the matters to be voted upon at the Thrifty PayLess
Special Meeting is contained in the Joint Proxy Statement/Prospectus
accompanying this Notice. A copy of the Merger Agreement is attached as Annex
A thereto. The Joint Proxy Statement/Prospectus and the Annexes thereto form a
part of this Notice, and stockholders are urged to read such information
carefully.
<PAGE>
Only holders of record of Thrifty PayLess Common Stock as of the , 1996
record date for the Thrifty PayLess Special Meeting (the "Record Date") are
entitled to notice thereof and to vote thereat or at any adjournments or
postponements thereof. A list of such stockholders will be open to examination
by any stockholder at the Thrifty PayLess Special Meeting and for a period of
ten days prior to the date of the Thrifty PayLess Special Meeting during
ordinary business hours at . Adoption of the Merger Agreement
and the transactions contemplated thereby requires the affirmative vote of the
holders of record of a majority of the shares of A Common Stock and B Common
Stock outstanding on the Record Date, voting together as a single class.
By Order of the Board of Directors
_____________________________________
Gary S. Meade,
Secretary
November , 1996
WHETHER OR NOT YOU PLAN TO ATTEND THE THRIFTY PAYLESS SPECIAL MEETING, PLEASE
COMPLETE, SIGN AND DATE YOUR PROXY CARD AND RETURN IT PROMPTLY IN THE ENCLOSED
POSTAGE-PREPAID ENVELOPE. YOU MAY REVOKE YOUR PROXY IN THE MANNER DESCRIBED IN
THE JOINT PROXY STATEMENT/PROSPECTUS AT ANY TIME BEFORE THE PROXY HAS BEEN
VOTED AT THE THRIFTY PAYLESS SPECIAL MEETING.
PLEASE DO NOT SUBMIT ANY OF YOUR THRIFTY PAYLESS COMMON STOCK CERTIFICATES AT
THIS TIME. FOLLOWING CONSUMMATION OF THE MERGER, YOU WILL BE GIVEN
INSTRUCTIONS REGARDING THE PROCEDURE WHEREBY THRIFTY PAYLESS COMMON STOCK
CERTIFICATES CAN BE EXCHANGED FOR RITE AID COMMON STOCK CERTIFICATES.
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED OCTOBER 24, 1996
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JOINT PROXY STATEMENT OF
RITE AID CORPORATION
AND
THRIFTY PAYLESS HOLDINGS, INC.
SPECIAL MEETINGS OF STOCKHOLDERS
TO BE HELD ON DECEMBER , 1996
-----------
PROSPECTUS OF RITE AID CORPORATION
-----------
This Joint Proxy Statement/Prospectus relates to an Agreement and Plan of
Merger, dated as of October 13, 1996 (the "Merger Agreement"), between Rite Aid
Corporation ("Rite Aid") and Thrifty PayLess Holdings, Inc. ("Thrifty
PayLess"). The Merger Agreement provides for the merger of Thrifty PayLess into
Rite Aid (the "Merger"), as a result of which, among other things, each share
of Class A Common Stock ("A Common Stock") and Class B Common Stock ("B Common
Stock" and, together with A Common Stock, "Thrifty PayLess Common Stock") of
Thrifty PayLess will be converted into the right to receive 0.65 shares of Rite
Aid Common Stock, all as more fully described herein (see "The Merger--
General"). This Joint Proxy Statement/Prospectus is being furnished to
stockholders of Rite Aid and Thrifty PayLess in connection with the
solicitation of proxies by the respective Boards of Directors of Rite Aid and
Thrifty PayLess at the respective special meetings of stockholders (or any
adjournments or postponements thereof) of each company, both to be held on
December , 1996 (the "Rite Aid Special Meeting" and the "Thrifty PayLess
Special Meeting", respectively, and, collectively, the "Special Meetings").
Rite Aid has filed a Registration Statement pursuant to the Securities Act of
1933, as amended (the "Securities Act"), covering the shares of Rite Aid Common
Stock issuable in connection with the Merger. This Joint Proxy
Statement/Prospectus also constitutes the Prospectus of Rite Aid filed as a
part of such Registration Statement.
Rite Aid Common Stock is listed for trading on the New York Stock Exchange
(the "NYSE") and the Pacific Stock Exchange ("PSE") under the symbol "RAD."
Thrifty PayLess B Common Stock is also listed on the NYSE under the symbol
"TPD." On the last trading day prior to the date of this Joint Proxy
Statement/Prospectus, the average of the high and low sales prices of Rite Aid
Common Stock, as reported on the NYSE Composite Tape, was $ , and the average
of the high and low sales prices of Thrifty PayLess B Common Stock, as reported
on the NYSE Composite Tape, was $ .
The information contained or incorporated by reference herein with respect to
Rite Aid and its subsidiaries (including, without limitation, the information
contained herein under "Unaudited Pro Forma Condensed Consolidated Financial
Data" and the assumptions underlying such information) has been provided by
Rite Aid and the information contained or incorporated by reference herein with
respect to Thrifty PayLess and its subsidiaries has been provided by Thrifty
PayLess.
THE PROPOSED MERGER IS A COMPLEX TRANSACTION. STOCKHOLDERS OF RITE AID AND
THRIFTY PAYLESS ARE URGED TO READ AND CONSIDER CAREFULLY THIS JOINT PROXY
STATEMENT/PROSPECTUS IN ITS ENTIRETY.
THE SECURITIES TO BE ISSUED IN CONNECTION WITH THE TRANSACTION HAVE NOT BEEN
APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
JOINT PROXY STATEMENT/ PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
-----------
This Joint Proxy Statement/Prospectus and the accompanying forms of proxy are
first being mailed to stockholders of Rite Aid and Thrifty PayLess on or about
November , 1996.
-----------
THE DATE OF THIS JOINT PROXY STATEMENT/PROSPECTUS IS NOVEMBER , 1996.
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<PAGE>
TABLE OF CONTENTS
<TABLE>
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<S> <C>
AVAILABLE INFORMATION..................................................... 1
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE........................... 2
SUMMARY................................................................... 3
The Companies........................................................... 3
Rite Aid Special Meeting................................................ 4
Thrifty PayLess Special Meeting......................................... 5
The Merger.............................................................. 6
Appraisal Rights For Certain Thrifty PayLess Stockholders............... 8
Comparative Market Prices and Dividends................................. 9
Unaudited Comparative Per Share Data.................................... 11
Selected Historical Financial Data of Rite Aid.......................... 12
Selected Historical Financial Data of Thrifty PayLess................... 14
Selected Unaudited Summary Pro Forma Financial Data..................... 15
THE MEETINGS.............................................................. 16
Rite Aid Special Meeting................................................ 16
Thrifty PayLess Special Meeting......................................... 16
Quorum.................................................................. 16
Record Date; Voting Rights.............................................. 17
Required Vote........................................................... 17
Share Ownership of Officers, Directors and Certain Stockholders......... 17
Proxies................................................................. 17
Solicitation of Proxies................................................. 18
THE MERGER................................................................ 18
General................................................................. 18
Background of the Merger................................................ 18
Rite Aid's Reasons for the Merger; Recommendation of the Rite Aid Board. 20
Opinion of DLJ.......................................................... 21
Thrifty PayLess' Reasons for the Merger; Recommendation of the Thrifty
PayLess Board.......................................................... 26
Opinion of Goldman Sachs................................................ 27
Certain Federal Income Tax Consequences................................. 31
Interests of Certain Persons and Employee Matters....................... 32
Directors' and Officers' Insurance and Indemnification.................. 35
Certain Projected Financial Information................................. 36
Refinancing of Certain Thrifty PayLess Indebtedness..................... 36
Accounting Treatment.................................................... 37
Certain Legal Matters; Regulatory Approvals............................. 37
Appraisal Rights........................................................ 38
Amendment of Rite Aid Certificate of Incorporation...................... 40
Resales of Rite Aid Common Stock........................................ 41
New York Stock Exchange Listing......................................... 41
THE MERGER AGREEMENT...................................................... 42
General................................................................. 42
Interim Operations of Thrifty PayLess................................... 43
Interim Operations of Rite Aid.......................................... 45
No Solicitation......................................................... 45
Rite Aid Standstill Provision........................................... 46
Representations and Warranties.......................................... 47
Conditions to the Merger................................................ 47
Termination............................................................. 48
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
PAGE
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<S> <C>
Termination Fees........................................................ 48
Other Fees and Expenses................................................. 49
Other Covenants......................................................... 49
GEI/KMART STOCKHOLDER AGREEMENTS.......................................... 50
Voting of Thrifty PayLess Common Stock.................................. 50
Subsequent Stockholder Actions.......................................... 50
Payment to Rite Aid of Certain Amounts Received......................... 50
Standstill Provisions................................................... 51
No Solicitation......................................................... 51
Restriction on Transfer, Proxies and Non-Interference................... 51
Termination............................................................. 52
Registration Rights..................................................... 52
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL DATA................. 53
Unaudited Pro Forma Condensed Consolidated Statement of Operations
for the 26 Weeks Ended August 31, 1996................................. 54
Unaudited Pro Forma Consolidated Statement of Operations
for the Fiscal Year Ended March 2, 1996................................ 55
Unaudited Pro Forma Condensed Consolidated Balance Sheet as of August
31, 1996............................................................... 56
Notes to Unaudited Pro Forma Condensed Consolidated Financial Data...... 57
DESCRIPTION OF RITE AID CAPITAL STOCK..................................... 60
Rite Aid Preferred Stock................................................ 60
Rite Aid Common Stock................................................... 60
Change of Control....................................................... 60
Charter Provisions...................................................... 61
COMPARISON OF STOCKHOLDER RIGHTS.......................................... 62
General................................................................. 62
Voting Rights........................................................... 62
Other Charter Provisions................................................ 62
LEGAL MATTERS............................................................. 63
EXPERTS................................................................... 63
STOCKHOLDERS' PROPOSALS................................................... 64
ANNEXES
The Merger Agreement.................................................... A
Opinion of Donaldson, Lufkin & Jenrette Securities Corporation.......... B
Opinion of Goldman, Sachs & Co.......................................... C
Section 262 of the DGCL................................................. D
</TABLE>
ii
<PAGE>
AVAILABLE INFORMATION
CERTAIN FILINGS AND OTHER INFORMATION
Each of Rite Aid and Thrifty PayLess is subject to the information and
reporting requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and in accordance therewith files periodic reports, proxy
statements and other information with the Securities and Exchange Commission
(the "Commission"). Such reports, proxy statements and other information may
be inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549; 7
World Trade Center, Suite 1300, New York, New York 10048; and Citicorp Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such
reports, proxy statements and other information also can be obtained by mail
from the Public Reference Section of the Commission, 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. Such reports, proxy statements
and other information relating to Rite Aid and Thrifty PayLess also may be
inspected at the offices of the New York Stock Exchange, Inc. (the "NYSE") at
20 Broad Street, New York, New York 10005 and, in the case of Rite Aid, from
the Pacific Stock Exchange (the "PSE"), 301 Pine Street, San Francisco,
California 94104. The Commission maintains a Web site that contains reports,
proxy statements and other information filed electronically by Rite Aid and
Thrifty PayLess with the Commission which can be accessed over the Internet at
http://www.sec.gov.
Rite Aid has filed with the Commission a registration statement on Form S-4
(together with all amendments, supplements and exhibits thereto, the
"Registration Statement") under the Securities Act with respect to the Rite
Aid Common Stock to be issued pursuant to the Merger Agreement. As permitted
under the Securities Act and the Exchange Act, this Joint Proxy
Statement/Prospectus does not contain all the information set forth in the
Registration Statement and the exhibits thereto. Such additional information
can be inspected and copied or obtained from the Commission in the manner
described above. Statements contained in this Joint Proxy
Statement/Prospectus, or in any document incorporated in this Joint Proxy
Statement/Prospectus by reference, as to the contents of any other document
referred to herein or therein are not necessarily complete, and each such
statement is qualified in all respects by reference to the copy of such other
document filed as an exhibit to the Registration Statement or such other
document.
CERTAIN FORWARD-LOOKING STATEMENTS AND MERGER CONSIDERATIONS
This Joint Proxy Statement/Prospectus (including the documents incorporated
by reference herein) contains certain forward-looking statements (as such term
is defined in the Private Securities Litigation Reform Act of 1995) and
information relating to Rite Aid and Thrifty PayLess that are based on the
beliefs of the management of Rite Aid or Thrifty PayLess, as applicable, as
well as assumptions made by and information currently available to the
managements of Rite Aid or Thrifty PayLess, as applicable. When used in this
Joint Proxy Statement/Prospectus, the words "anticipate," "believe,"
"estimate," "expect," "intend" and similar expressions, as they relate to Rite
Aid, Thrifty PayLess or the management of either of them, identify forward-
looking statements. Such statements, which include, without limitation, the
matters set forth herein under "The Merger--Certain Projected Financial
Information" and "Unaudited Pro Forma Condensed Consolidated Financial Data,"
reflect the current views of Rite Aid or Thrifty PayLess, as applicable, with
respect to future events, the outcome of which is subject to certain risks,
including among others (i) competition from other drug store chains,
supermarkets, membership clubs and other retailers as well as third party
plans and mail order providers, (ii) the continued efforts of third party
payors to reduce prescription drug costs, and (iii) possible federal and state
health care reform initiatives to reduce governmental health costs. In
addition, Thrifty PayLess' consolidated federal income tax returns for fiscal
years 1992 through 1994 are currently being audited by the Internal Revenue
Service (the "IRS"), which has challenged and/or raised issues with respect to
certain positions adopted by Thrifty PayLess (see the registration statement
of Thrifty PayLess referenced in the Form 8-K referred to in item 7 under
"Incorporation of Certain Documents by Reference"). The forward looking
statements referred to above are also subject to uncertainties and assumptions
relating to the operations and results of operations of Rite Aid following the
Merger, including Rite Aid's ability successfully to integrate the operations
of Rite Aid and Thrifty PayLess (particularly in light of the different
merchandising strategies and store sizes and the geographic separation of the
two chains' respective operations), while continuing to manage the day-to-day
business of the combined company, pricing pressures, shifts in market demand
and general economic conditions, all of which are factors that may affect the
timing and realization of cost savings and other
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synergistic benefits of the Merger assumed by Rite Aid. See "The Merger--Rite
Aid's Reasons for the Merger; Recommendation of the Rite Aid Board." Should
one or more of these risks or uncertainties materialize, or should underlying
assumptions prove incorrect, actual results or outcomes may vary materially
from those described herein as anticipated, believed, estimated, expected or
intended. Stockholders of Rite Aid and Thrifty PayLess are urged to consider
the foregoing considerations in evaluating the information contained herein.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
This Joint Proxy Statement/Prospectus incorporates certain documents by
reference which are not presented herein or delivered herewith. These
documents (other than exhibits to such documents unless such exhibits are
specifically incorporated by reference) are available to any person, including
any beneficial owner, upon request from, in the case of documents relating to
Rite Aid, Franklin C. Brown, Esq., Rite Aid Corporation, 30 Hunter Lane, Camp
Hill, Pennsylvania 17011, telephone number (717) 761-2633, and in the case of
documents relating to Thrifty PayLess, Gary S. Meade, Esq., Thrifty PayLess
Holdings, Inc., 9275 S.W. Peyton Lane, Wilsonville, Oregon 97070, telephone
number (503) 682-4100. In order to ensure timely delivery of these documents,
any request should be made by December , 1996.
The following documents which have been filed by Rite Aid or Thrifty
PayLess, as the case may be, pursuant to the Exchange Act are hereby
incorporated by reference in this Joint Proxy Statement/Prospectus:
1. Rite Aid's Annual Report on Form 10-K for the fiscal year ended March 2,
1996;
2. Rite Aid's Quarterly Reports on Form 10-Q for the fiscal quarters ended
June 1, 1996 and August 31, 1996;
3. Rite Aid's Current Report on Form 8-K, dated April 29, 1996;
4. The description of capital stock of Rite Aid, including Rite Aid Common
Stock, that is contained in the Registration Statement filed under the
Exchange Act under File No. 2-28883, including all amendments or reports
filed for the purpose of updating such description;
5. Thrifty PayLess' Annual Report on Form 10-K for the fiscal year ended
October 1, 1995;
6. Thrifty PayLess' Quarterly Reports on Form 10-Q for the fiscal quarters
ended December 31, 1995, March 31, 1996 and June 30, 1996; and
7. Thrifty PayLess' Current Report on Form 8-K, dated October 24, 1996.
The information relating to Rite Aid and Thrifty PayLess contained in this
Joint Proxy Statement/Prospectus does not purport to be comprehensive and
should be read together with the information in the documents incorporated by
reference herein.
All documents filed by either Rite Aid or Thrifty PayLess pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
of this Joint Proxy Statement/Prospectus and prior to the date of the Special
Meetings will be deemed to be incorporated by reference in this Joint Proxy
Statement/Prospectus and be a part hereof from the dates of filing such
documents or reports. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein will be deemed to be modified or
superseded for purposes of this Joint Proxy Statement/Prospectus to the extent
that a statement contained herein, or in any other subsequently filed document
which also is or is deemed to be incorporated herein, modifies or supersedes
such statement. Any such statement so modified or superseded will not be
deemed, except as so modified or superseded, to constitute a part of this
Joint Proxy Statement/Prospectus.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS WITH RESPECT TO THE MATTERS DESCRIBED IN THIS JOINT PROXY
STATEMENT/PROSPECTUS OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE
HEREIN, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY EITHER RITE AID OR THRIFTY PAYLESS.
THIS JOINT PROXY STATEMENT/PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY ANY SECURITIES, NOR DOES IT CONSTITUTE THE
SOLICITATION OF A PROXY, IN ANY JURISDICTION TO OR FROM ANY PERSON TO WHOM IT
IS UNLAWFUL TO MAKE ANY SUCH SOLICITATION IN SUCH JURISDICTION. THE DELIVERY
OF THIS JOINT PROXY STATEMENT/PROSPECTUS WILL NOT, UNDER ANY CIRCUMSTANCES,
CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF RITE
AID OR THRIFTY PAYLESS SINCE THE DATE HEREOF OR THAT THE INFORMATION CONTAINED
HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
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SUMMARY
The following is a summary of certain information contained elsewhere in this
Joint Proxy Statement/Prospectus and does not purport to be complete. This
summary is qualified in its entirety by reference to the more detailed
information contained elsewhere in this Joint Proxy Statement/Prospectus, the
Annexes hereto and the documents referred to herein. Stockholders are urged to
review carefully this Joint Proxy Statement/Prospectus, the Merger Agreement
attached hereto as Annex A and the other Annexes attached hereto. Capitalized
terms used but not defined herein have the respective meanings assigned thereto
in the Merger Agreement.
THE COMPANIES
Rite Aid. Rite Aid, incorporated in 1968, is one of the largest retail drug
store chains in the United States. As of August 31, 1996, Rite Aid operated
2,796 drug stores, averaging within a range of approximately 7,200 to 11,000
square feet per store in size, in 21 states and the District of Columbia and
employed over 36,000 employees. Pharmacy service forms the core of Rite Aid's
business, with prescriptions accounting for 56.4% of drug store sales in the 26
week period ended August 31, 1996. Rite Aid's drug stores cater to convenience,
offering a full selection of health and personal care products, seasonal
merchandise and a large private label product line. Express mail with
complementary services and one-hour photo departments have recently been added
in select locations. Rite Aid's Eagle managed care subsidiary markets
prescription plans and sells other managed health care services to large
employers and government-sponsored employee benefit programs. Rite Aid is a
Delaware corporation with its principal executive offices located at 30 Hunter
Lane, Camp Hill, Pennsylvania 17011. The telephone number of Rite Aid at such
offices is (717) 761-2633.
Rite Aid's strategy is to operate drug stores in large, fast-growing
metropolitan areas. Following the Merger, and giving effect to the Southeast
Dispositions described below, Rite Aid will be the largest drug store operator
in the United States in terms of store count, operating in 26 states. Of the 50
largest metropolitan statistical areas in the United States, Rite Aid will
operate in 25 and will be the largest or second largest drug store operation in
21 of those metropolitan areas. In connection with the announcement of the
Merger Agreement, Rite Aid also announced that it plans to dispose of all of
its 270 stores in Alabama, Florida, Georgia and North and South Carolina
(collectively, the "Southeast Dispositions"), and that in connection therewith
Rite Aid entered into an agreement to sell its approximately 200 stores in
North and South Carolina to Thrift Drug, Inc.
As soon as is reasonably practicable following the Merger, Rite Aid expects
to rename all Thrifty PayLess stores "Rite Aid" and integrate them with Rite
Aid's operations, to refinance substantially all of Thrifty PayLess' existing
debt (to the extent practicable), to close Thrifty PayLess' Wilsonville, Oregon
headquarters and to divest Thrifty PayLess' Bi-Mart membership discount stores.
Rite Aid expects the elimination of duplicative overhead expenses and the
combined company's enhanced purchasing efficiencies to result in annual cost
savings of at least $65.0 million. Rite Aid also believes that there are other
cost-saving opportunities presented by the Merger (including lowering Thrifty
PayLess' historical debt expense, distribution costs and inventory shrinkage
rate), as well as opportunities for enhanced revenue growth from the increased
scale of operations and geographic diversity which Rite Aid will have after the
Merger. In addition, the application of Rite Aid's systems and technology to
Thrifty PayLess' operations should result in greater efficiencies. Giving
effect to expected cost reductions resulting from the Merger, the Merger is
expected by Rite Aid to be accretive to its earnings in the fiscal year ended
February 28, 1998 and thereafter. See "The Merger--Rite Aid's Reasons for the
Merger; Recommendation of the Rite Aid Board."
Thrifty PayLess. Thrifty PayLess (originally known as TCH Corporation) was
formed in 1992 by Green Equity Investors, L.P. ("GEI"), whose general partner
is Leonard Green & Associates, L.P. ("LGA"), when Thrifty PayLess acquired
Thrifty Corporation from Pacific Enterprises (the "1992 Thrifty Acquisition").
In April 1994, Thrifty PayLess acquired (the "1994 PayLess Acquisition") Pay
Less Drug Stores Northwest, Inc. from Kmart Corporation ("Kmart"). Thrifty
PayLess is a holding company that, through its subsidiaries Thrifty
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PayLess, Inc. ("TPI") and Bi-Mart Corporation ("Bi-Mart"), operates Thrifty and
PayLess drug stores and Bi-Mart membership discount stores. Thrifty PayLess'
principal executive offices are located at 9275 S.W. Peyton Lane, Wilsonville,
Oregon 97070, and its telephone number is (503) 682-4100. Thrifty PayLess was
incorporated in Delaware in 1992.
Thrifty PayLess is the largest drug store chain in the western United States.
As of September 30, 1996, it operated over 1,000 drug stores located in
California, Oregon, Washington and eight other western states. Its stores
average approximately 17,500 square feet of selling space, and it has over
31,000 employees. Thrifty PayLess' primary focus is the sale of prescription
drugs. Sales of prescription drugs represented approximately 32% of Thrifty
PayLess' total sales in its fiscal year ended October 1, 1995 (exclusive of Bi-
Mart sales). Thrifty PayLess drug stores also offer a wide variety of non-
pharmacy merchandise, including health and beauty aids, cosmetics,
photofinishing, greeting cards, school and office supplies, seasonal
merchandise, general merchandise and consumable products such as snack food,
candy, ice cream and beverages, including liquor where permitted. Through Bi-
Mart, Thrifty PayLess also presently operates a chain of 45 Bi-Mart membership
discount stores. Bi-Mart stores feature a wide variety of general merchandise
in a "no-frills" shopping format that enables Bi-Mart to provide its
approximately 1.2 million members with substantial discounts from suggested
retail prices.
RITE AID SPECIAL MEETING
Purpose. The Rite Aid Special Meeting will be held at the Radisson Penn
Harris Hotel & Convention Center, 1150 Camp Hill Bypass, Camp Hill,
Pennsylvania, on December , 1996 at noon, Eastern Time, to consider and vote
upon a proposal to adopt the Merger Agreement and the issuance of Rite Aid
Common Stock to the holders of Thrifty PayLess Common Stock pursuant thereto.
Pursuant to the Merger Agreement, among other things, (i) Thrifty PayLess will
merge with and into Rite Aid, with Rite Aid as the surviving corporation in the
Merger, (ii) subject to certain exceptions, each outstanding share of Thrifty
PayLess Common Stock will be converted into 0.65 of a share of Rite Aid Common
Stock (the "Exchange Ratio") and (iii) Rite Aid's Certificate of Incorporation
will be amended in order, among other things, to increase the number of
authorized shares of Rite Aid Common Stock from 240 million to 300 million. See
"The Merger Agreement--General", "The Merger--Amendment of Rite Aid Certificate
of Incorporation" and "The Meetings--Rite Aid Special Meeting." The
stockholders of Rite Aid will also consider and take action upon any other
business which may be properly brought before the Rite Aid Special Meeting.
Record Date. Only holders of record of Rite Aid Common Stock at the close of
business on , 1996 (the "Rite Aid Record Date") are entitled to receive
notice of and to vote at the Rite Aid Special Meeting. At the close of business
on the Rite Aid Record Date, there were shares of Rite Aid Common Stock
outstanding, each of which entitles the registered holder thereof to one vote.
See "The Meetings--Record Date; Voting Rights."
Required Vote. Adoption of the Merger Agreement will require the affirmative
vote of a majority of the shares of Rite Aid Common Stock outstanding as of the
Rite Aid Record Date. See "The Meetings--Required Vote."
THE BOARD OF DIRECTORS OF RITE AID (THE "RITE AID BOARD") HAS UNANIMOUSLY
APPROVED THE MERGER AGREEMENT AND UNANIMOUSLY RECOMMENDS THAT RITE AID
STOCKHOLDERS VOTE "FOR" ADOPTION OF THE MERGER AGREEMENT. SEE "THE MERGER--RITE
AID'S REASONS FOR THE MERGER; RECOMMENDATION OF THE RITE AID BOARD."
Share Ownership of Directors and Officers. At the close of business on the
Rite Aid Record Date, directors and executive officers of Rite Aid and their
affiliates were the beneficial owners of an aggregate of approximately
(approximately %) of the shares of Rite Aid Common Stock then outstanding. See
"The Meetings--Share Ownership of Officers, Directors and Certain
Stockholders."
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THRIFTY PAYLESS SPECIAL MEETING
Purpose. The Thrifty PayLess Special Meeting will be held at , on
December , 1996 at 9:00 a.m., Pacific Standard Time, to consider and vote
upon a proposal to adopt the Merger Agreement. See "The Meetings--Thrifty
PayLess Special Meeting."
Record Date. Only holders of record of Thrifty PayLess Common Stock at the
close of business on , 1996 (the "Thrifty PayLess Record Date") are
entitled to receive notice of and to vote at the Thrifty PayLess Special
Meeting. At the close of business on the Thrifty PayLess Record Date, there
were shares of Thrifty PayLess Common Stock outstanding (consisting of
shares of A Common Stock and shares of B Common Stock), each of which
entitles the registered holder thereof to one vote as to the adoption of the
Merger Agreement. See "The Meetings--Record Date; Voting Rights."
Required Vote. Adoption of the Merger will require the affirmative vote of a
majority of the shares of A Common Stock and B Common Stock outstanding as of
the Thrifty PayLess Record Date entitled to vote thereon, voting together as a
single class. See "The Meetings--Required Vote."
THE BOARD OF DIRECTORS OF THRIFTY PAYLESS (THE "THRIFTY PAYLESS BOARD") HAS
UNANIMOUSLY APPROVED THE MERGER AGREEMENT AND UNANIMOUSLY RECOMMENDS THAT
THRIFTY PAYLESS STOCKHOLDERS VOTE "FOR" ADOPTION OF THE MERGER AGREEMENT. SEE
"THE MERGER--THRIFTY PAYLESS' REASONS FOR THE MERGER; RECOMMENDATION OF THE
THRIFTY PAYLESS BOARD."
Share Ownership of Officers, Directors and Certain Stockholders. At the close
of business on the Thrifty PayLess Record Date, directors and executive
officers of Thrifty PayLess and their affiliates were the beneficial owners of
an aggregate of approximately (approximately %) of the shares of Thrifty
PayLess Common Stock then outstanding (which amounts include the shares
referred to in the next sentence). As of the Thrifty PayLess Record Date, GEI
and Kmart owned an aggregate of 24,998,513 (approximately 42%) of the shares of
Thrifty PayLess Common Stock then outstanding. See "The Meetings--Share
Ownership of Officers, Directors and Certain Stockholders." Pursuant to two
Stockholder Agreements each dated October 13, 1996, among Rite Aid, Kmart and
certain individual stockholders of Rite Aid, on the one hand, and among Rite
Aid, GEI (collectively, GEI and Kmart are referred to herein as the "GEI/Kmart
Stockholders") and certain individual stockholders of Rite Aid, on the other
(individually, a "GEI/Kmart Stockholder Agreement" and, collectively, the
"GEI/Kmart Stockholder Agreements"), each of GEI and Kmart agreed, among other
things, to vote their respective shares of Thrifty PayLess Common Stock in
favor of the adoption of the Merger Agreement. Such agreements substantially
enhance the likelihood that the Merger will be consummated. See "The Meetings--
Required Vote" and "--GEI/Kmart Stockholder Agreements."
Purchases of Thrifty PayLess Common Stock by Rite Aid. Pursuant to a letter
agreement, originally dated June 5, 1996 and re-executed as of October 3, 1996
(the "Confidentiality/Standstill Agreement"), Rite Aid agreed, among other
things, to certain standstill restrictions, including a restriction on Rite
Aid's ability to acquire beneficial ownership of Thrifty PayLess Common Stock.
The Merger Agreement modifies the Confidentiality/Standstill Agreement to
permit (i) the GEI/Kmart Stockholder Agreements and (ii) the acquisition by
Rite Aid of such number of additional shares of Thrifty PayLess Common Stock
("Rite Aid Permitted Purchases") which, when added to the number of shares of
Thrifty PayLess Common Stock subject to the GEI/Kmart Stockholder Agreements
(approximately 42% of the outstanding Thrifty PayLess Common Stock), would not
exceed 55% of the total number of shares of outstanding Thrifty PayLess Common
Stock (calculated on a fully diluted basis). Shares of Thrifty PayLess Common
Stock so acquired by Rite Aid would be subject to certain standstill provisions
contained in the Merger Agreement. See "The Merger Agreement--Rite Aid
Standstill Provision."
In connection with its approval of the Merger Agreement, the Rite Aid Board
authorized the purchase of Thrifty PayLess Common Stock as described above,
from time to time, in the open market or otherwise. Rite Aid may not, however,
purchase more than $15.0 million in value of Thrifty PayLess Common Stock until
the
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expiration or termination of the waiting period requirements of the Hart-Scott-
Rodino Antitrust Act of 1976, as amended (the "HSR Act"). See "The Merger--
Certain Legal Matters; Regulatory Approvals." Whether Rite Aid will so purchase
Thrifty PayLess Common Stock will depend upon, among other factors, the
availability and prices therefor. If Rite Aid purchases Thrifty PayLess Common
Stock representing more than 9% of the voting power of all Thrifty PayLess
Common Stock, its shares of Thrifty PayLess Common Stock, coupled with those
subject to the GEI/Kmart Stockholder Agreements, will assure approval of the
adoption of the Merger Agreement by Thrifty PayLess stockholders.
THE MERGER
General. At the effective time of the Merger (the "Effective Time"), Thrifty
PayLess will merge into Rite Aid, with Rite Aid as the surviving corporation in
the Merger. The Effective Time of the Merger will be at such time as the
Certificate of Merger is filed with the Delaware Secretary of State, or at such
subsequent date or time as Rite Aid and Thrifty PayLess agree and specify in
the Certificate of Merger. The filing of the Certificate of Merger will occur
as soon as practicable after satisfaction or waiver of the conditions to the
consummation of the Merger set forth in the Merger Agreement unless another
date is agreed to in writing by Rite Aid and Thrifty PayLess (the "Closing
Date").
The Merger Consideration. At the Effective Time of the Merger, each share of
Thrifty PayLess Common Stock issued and outstanding immediately prior to the
Effective Time (other than shares of Thrifty PayLess Common Stock owned by
Thrifty PayLess as treasury stock, any shares of Thrifty PayLess Common Stock
owned by Rite Aid or any other direct or indirect wholly owned subsidiary of
Rite Aid or Thrifty PayLess, and shares of A Common Stock as to which appraisal
rights have been properly exercised and perfected ("Dissenting Thrifty PayLess
Shares") under the Delaware General Corporation Law (the "DGCL")), will by
virtue of the Merger and without any action on the part of the holder thereof
be converted into the right to receive 0.65 shares of duly authorized, validly
issued, fully paid and nonassessable Rite Aid Common Stock. No fractional
shares of Rite Aid Common Stock will be issued in connection with the Merger.
In lieu of any fractional shares, Rite Aid will pay to each holder of Thrifty
PayLess Common Stock otherwise entitled to receive a fractional share, an
amount in cash determined by multiplying the Rite Aid Share Price (defined
below) by the fractional share interest to which the holder would otherwise be
entitled. As used in this Joint Proxy Statement/Prospectus, "Rite Aid Share
Price" means the closing sales price per share of Rite Aid Common Stock on the
NYSE as reported on the NYSE Composite Tape for the date on which the Effective
Time occurs. See "The Merger--General."
Certain Conditions to the Merger. Under the Merger Agreement, Thrifty Payless
is not obligated to consummate the Merger in the event that the average closing
sales price per share of Rite Aid Common Stock as reported on the NYSE
Composite Tape for the five NYSE trading days immediately preceding the Closing
Date of the Merger (the "Measuring Period") is less than $30.75, provided that
this condition will be satisfied if such average closing sales price is less
than $30.75 but at least $29.00, so long as such average closing sales price
does not represent a diminution below $36.375 which, expressed as a percentage,
exceeds the diminution (if any), also expressed as a percentage, of the average
reported closing Dow Jones Industrial Average ("DJIA") during the Measuring
Period below 5,934, which was the DJIA closing reported on October 2, 1996 (the
"Minimum Price Condition"). Thrifty PayLess has the right, however, to waive
the Minimum Price Condition and any other condition to its obligations under
the Merger Agreement (except for conditions imposed by law, such as the
stockholder approval requirement) at any time, including after the Thrifty
PayLess Stockholder Meeting. The effectiveness of the Merger is also subject to
other conditions. See "The Merger Agreement--Conditions to the Merger." In the
event that the Merger is not consummated prior to April 30, 1997, either party
may terminate the Merger Agreement unless such party has failed to perform its
obligations under the Merger Agreement and such failure causes the Merger not
to be consummated by such date. See "Merger Agreement--Termination."
Termination Fees. In the event that any Takeover Proposal has been made known
to Thrifty PayLess or any of its subsidiaries or has been made directly to its
stockholders generally or a third party's intention to make a Takeover Proposal
has been publicly announced and, thereafter, Thrifty PayLess fails to obtain
stockholder
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approval of the Merger Agreement, Thrifty PayLess will be obligated to pay
$37.5 million to Rite Aid (a "Termination Fee"). Thrifty PayLess will also be
obligated to pay a Termination Fee to Rite Aid in the event that Rite Aid
exercises its right to terminate the Merger Agreement following the withdrawal
or modification in any manner adverse to Rite Aid of the Thrifty PayLess
Board's approval or recommendation of the Merger or the Merger Agreement or if
the Thrifty PayLess Board recommends any Takeover Proposal other than the
Merger. For this purpose, the term "Takeover Proposal" means any inquiry,
proposal or offer from any person relating to any direct or indirect
acquisition or purchase of 14.9% or more of the assets of Thrifty PayLess and
its subsidiaries, or 14.9% or more of any class of equity securities of Thrifty
PayLess or any of its subsidiaries, any tender offer or exchange offer that if
consummated would result in any person beneficially owning 14.9% or more of any
class of equity securities of Thrifty PayLess or any of its subsidiaries, or
any merger, consolidation, business combination, recapitalization, liquidation,
dissolution or similar transaction involving Thrifty PayLess or any of its
Subsidiaries other than the transactions contemplated in the Merger Agreement.
In the event that (i) Thrifty PayLess terminates the Merger Agreement because,
at a stockholder meeting of Rite Aid duly convened therefor and finally
adjourned, Rite Aid stockholders shall not have approved the adoption of the
Merger Agreement or (ii) Thrifty PayLess terminates the Merger Agreement
following a Material Breach of the Merger Agreement by Rite Aid, which breach
or failure is not cured within 30 days after Thrifty Payless gives notice
thereof, Rite Aid will be obligated to pay a Termination Fee to Thrifty
PayLess. No Termination Fee is payable to either party pursuant to the Merger
Agreement if such party is then in Material Breach of the Merger Agreement. In
each case where a Termination Fee is payable by either Rite Aid or Thrifty
PayLess to the other, the party paying such Termination Fee shall also pay all
reasonable and documented expenses incurred by the party entitled to such
Termination Fee in connection with the Merger, the GEI/Kmart Stockholder
Agreements and the transactions contemplated thereby in an amount not to exceed
$5 million ("Reimbursable Expenses"). See "The Merger Agreement--Termination
Fees."
Recommendation of the Rite Aid Board. The Rite Aid Board has unanimously
determined that the Merger is advisable and fair to and in the best interests
of the stockholders of Rite Aid and has approved the Merger Agreement. The Rite
Aid Board unanimously recommends that the stockholders of Rite Aid vote in
favor of the adoption of the Merger Agreement at the Rite Aid Special Meeting.
For a discussion of the factors considered by the Rite Aid Board in reaching
its conclusions, see "The Merger--Rite Aid's Reasons for the Merger;
Recommendations of the Rite Aid Board."
Opinion of DLJ. Donaldson, Lufkin & Jenrette Securities Corporation ("DLJ")
delivered its oral opinion to the Rite Aid Board on October 12, 1996, which was
confirmed by its written opinion dated October 18, 1996, to the effect that as
of such dates the Exchange Ratio is fair to the stockholders of Rite Aid from a
financial point of view. The full text of the DLJ opinion, which sets forth a
description of the assumptions made, matters considered and limitations on the
review undertaken, is attached hereto as Annex B. Rite Aid stockholders are
urged to read the DLJ opinion carefully in its entirety. See "The Merger--
Opinion of DLJ."
Recommendation of the Thrifty PayLess Board. The Thrifty PayLess Board has
unanimously approved the Merger Agreement and the transactions contemplated
thereby (including the Merger) as being in the best interests of Thrifty
PayLess and its stockholders. The Thrifty PayLess Board unanimously recommends
that the stockholders of Thrifty PayLess vote in favor of the adoption of the
Merger Agreement and the transactions contemplated thereby at the Thrifty
PayLess Special Meeting. For a discussion of the factors considered by the
Thrifty PayLess Board in reaching its conclusions, see "The Merger--Thrifty
PayLess' Reasons for the Merger; Recommendations of the Thrifty PayLess Board."
Opinion of Goldman Sachs. Goldman, Sachs & Co. ("Goldman Sachs") has
delivered its written opinion to the Thrifty PayLess Board that, as of October
13, 1996, the Exchange Ratio pursuant to the Merger Agreement is fair to the
holders of Thrifty PayLess Common Stock. The full text of the written opinion
of Goldman Sachs, which sets forth assumptions made, matters considered and
limitations on the review undertaken in connection with the opinion, is
attached hereto as Annex C. Holders of Thrifty PayLess Common Stock are urged
to, and should, read such opinion in its entirety. See "The Merger--Opinion of
Goldman Sachs."
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Interests of Certain Persons. In considering the recommendation of the
Thrifty PayLess Board with respect to the Merger, stockholders of Thrifty
PayLess should be aware that certain members of the management and of the
Thrifty PayLess Board have certain interests in the Merger that are in addition
to the interests of stockholders of Thrifty PayLess generally, including, among
other things, the cash-out of options and warrants to acquire Thrifty PayLess
Common Stock pursuant to the Merger Agreement, severance arrangements for
employees of Thrifty PayLess located at its corporate headquarters, an
investment services fee payable to LGA (whose general partners include certain
directors of Thrifty PayLess (or entities controlled by them)) by TPI upon
consummation of the Merger, payments to certain Thrifty PayLess directors under
a deferred compensation plan and certain indemnification obligations of Rite
Aid to Thrifty PayLess representatives. See "The Merger--Interests of Certain
Persons and Employee Matters." Such matters were considered by the Thrifty
PayLess Board in approving the Merger Agreement and the transactions
contemplated thereby.
Certain Federal Income Tax Consequences. The Merger is intended to be a tax-
free reorganization as a result of which no gain or loss will be recognized by
Rite Aid or Thrifty PayLess and no gain or loss will be recognized by Thrifty
PayLess stockholders upon exchange of their Thrifty PayLess Common Stock for
Rite Aid Common Stock pursuant to the Merger Agreement, except in respect of
cash received by holders of Thrifty PayLess Common Stock in lieu of fractional
shares of Rite Aid Common Stock. It is a condition to the consummation of the
Merger that Thrifty PayLess and Rite Aid receive an opinion of Jones, Day,
Reavis & Pogue ("Jones Day"), counsel to Rite Aid, or Irell & Manella LLP,
counsel to Thrifty PayLess, to the effect that, among other things, the Merger
will constitute a "reorganization" within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code"). See "The Merger--
Certain Federal Income Tax Consequences."
Certain Thrifty PayLess Indebtedness. Pursuant to the Merger Agreement, Rite
Aid agreed to refinance certain existing debt of Thrifty PayLess. As of the
Effective Time, Rite Aid intends (to the extent practicable) to refinance
substantially all of Thrifty PayLess' obligations under its secured bank
facility ($605.4 million aggregate principal amount and $104.0 million of
letters of credit outstanding at September 29, 1996). In addition, if the
Merger is consummated, Rite Aid will be obligated to offer to repurchase all
outstanding TPI 12 1/4% Senior Subordinated Notes due 2004 (the "TPI Sub Debt")
($195 million aggregate principal amount outstanding at September 29, 1996) at
101% of the principal amount thereof (the "Change of Control Offer"). Rite Aid
is considering the possibility of making an offer to purchase all of the TPI
Sub Debt at a premium that is likely to substantially exceed the premium in the
Change of Control Offer, plus accrued and unpaid interest to the date of such
purchase. Any such offer to purchase would be subject to various conditions,
including the consummation of the Merger. There can be no assurance that any
such offer to purchase will be made or as to the timing and terms thereof.
Accounting Treatment. The Merger will be accounted for under the "purchase"
method of accounting.
APPRAISAL RIGHTS FOR CERTAIN THRIFTY PAYLESS STOCKHOLDERS
Under the DGCL, neither the holders of Rite Aid Common Stock nor the holders
of Thrifty PayLess B Common Stock are entitled to appraisal rights in
connection with the adoption of the Merger Agreement and the transactions
contemplated thereby. Pursuant to Section 262 of the DGCL ("Section 262"), any
holder of record of shares of A Common Stock who does not vote in favor of
adoption of the Merger Agreement, delivers a demand for appraisal prior to the
vote of Thrifty PayLess' stockholders at the Thrifty PayLess Special Meeting on
the Merger Agreement and follows certain other procedures specified in Section
262 has the right to obtain cash payment for the "fair value" of his or her
shares at the Effective Time (excluding any element of value arising from the
accomplishment or expectation of the Merger). See "The Merger--Appraisal
Rights." A copy of Section 262 is attached as Annex D and should be read in its
entirety.
8
<PAGE>
COMPARATIVE MARKET PRICES AND DIVIDENDS
The shares of Rite Aid Common Stock are listed and principally traded on the
NYSE and PSE and quoted under the symbol RAD. In April 1996, Thrifty PayLess
consummated the initial public offering (the "Thrifty PayLess IPO") of its B
Common Stock, at which time 29,200,000 shares were sold at an initial public
offering price of $14.00 per share. Since the consummation of the Thrifty
PayLess IPO, the B Common Stock has been traded on the NYSE under the symbol
"TPD." The following table sets forth, for the quarters indicated, the high and
low sales prices of Rite Aid Common Stock on the NYSE as reported on the Dow
Jones News Service, and for Thrifty PayLess since April 16, 1996, the date
Thrifty PayLess B Common Stock began publicly trading on the NYSE.
RITE AID
<TABLE>
<CAPTION>
PERIOD ENDED HIGH LOW
------------ ------- -------
<S> <C> <C>
Rite Aid's Fiscal Year Ended February 26, 1994:
Quarter Ended May 29, 1993..................................... $20 7/8 $17 5/8
Quarter Ended August 28, 1993.................................. 19 1/8 16 1/4
Quarter Ended November 27, 1993................................ 17 3/4 15 1/4
Quarter Ended February 26, 1994................................ 19 3/8 15 1/4
Rite Aid's Fiscal Year Ended March 4, 1995:
Quarter Ended May 28, 1994..................................... $20 3/8 $18 1/8
Quarter Ended August 27, 1994.................................. 21 1/2 18 7/8
Quarter Ended November 26, 1994................................ 24 20
Quarter Ended March 4, 1995.................................... 26 3/8 21 5/8
Rite Aid's Fiscal Year Ended March 2, 1996:
Quarter Ended June 3, 1995..................................... $25 1/2 $22 1/4
Quarter Ended September 2, 1995................................ 29 24 1/4
Quarter Ended December 2, 1995................................. 32 5/8 26 5/8
Quarter Ended March 2, 1996.................................... 34 1/4 30 1/4
Rite Aid's Fiscal Year Ended March 1, 1997:
Quarter Ended June 1, 1996..................................... $34 1/2 $28 5/8
Quarter Ended August 31, 1996.................................. 35 1/2 28 1/4
Quarter Ended November 30, 1996 (through November , 1996).....
THRIFTY PAYLESS
<CAPTION>
PERIOD ENDED HIGH LOW
------------ ------- -------
<S> <C> <C>
Thrifty PayLess' Fiscal Year Ended September 29, 1996:
Quarter Ended June 30, 1996.................................... $17 1/4 $13 3/8
Quarter Ended September 29, 1996............................... 18 1/2 13 7/8
Thrifty PayLess' Fiscal Year Ended September 28, 1997:
Quarter Ended December 29, 1996 (through November , 1996).....
</TABLE>
On October 11, 1996, the last full trading day prior to the public
announcement of the execution of the Merger Agreement, the highest reported
sales price of Rite Aid Common Stock on the NYSE Composite Tape was $36.00 per
share, the lowest reported sales price was $35.625 per share and the reported
closing sales price was $35.875 per share. On November , 1996, the last full
trading day for which information was available prior to the printing and
mailing of this Joint Proxy Statement/Prospectus, the last sales prices
reported for Rite Aid Common Stock on the NYSE Composite Tape was $ per
share.
On October 11, 1996, the last full trading day prior to the public
announcement of the execution of the Merger Agreement, the highest reported
sales price of the B Common Stock on the NYSE Composite Tape was
9
<PAGE>
$18.625 per share, the lowest reported sales price was $18.25 per share, and
the reported closing sales price was $18.375 per share. On November , 1996,
the last full trading day for which information was available prior to the
printing and mailing of this Joint Proxy Statement/Prospectus, the last sales
prices reported for B Common Stock on the NYSE Composite Tape was $ per
share.
Rite Aid has paid regular quarterly dividends on Rite Aid Common Stock since
1968. Since January 29, 1996, Rite Aid has paid regular quarterly dividends on
Rite Aid Common Stock of $0.185 per share. Such rate was $0.15 per share for
each of the fiscal quarters in the table above through the fiscal quarter ended
November 26, 1994 and $0.17 per share for each of the subsequent fiscal
quarters through the fiscal quarter ended March 2, 1996. The payment of
dividends on Rite Aid Common Stock is at the discretion of the Rite Aid Board
and is subject to customary limitations thereon. Rite Aid has agreed in the
Merger Agreement that, prior to the Effective Time, it will not increase its
current dividend rate by a greater percentage than the most recent percentage
increase in its dividend rate prior to the Merger Agreement. Rite Aid also
acknowledged in the Merger Agreement that its intention, as of the date of the
Merger Agreement, was to continue to pay cash dividends at a rate not less than
$0.185 per share.
Thrifty PayLess has not declared any dividends on shares of Thrifty PayLess
Common Stock during its last two fiscal years. In addition, the terms of
Thrifty PayLess' secured bank facility and certain of its other indebtedness
prohibit Thrifty PayLess from paying cash dividends or making distributions on
its capital stock.
Prior to the Thrifty PayLess IPO, there was no established public trading
market for Thrifty PayLess Common Stock. However, in connection with the 1994
PayLess Acquisition, pursuant to a registered offering under the Securities
Act, Thrifty PayLess issued and sold an aggregate of 1,710,000 shares of B
Common Stock (the "Previously Registered Shares"). Thrifty PayLess has been
informed that, from the 1994 PayLess Acquisition through the date of the
Thrifty PayLess IPO, the Previously Registered Shares were traded in
interdealer and over-the-counter bulletin board transactions. The bid
quotations for the Previously Registered Shares during the period from December
18, 1995 through the Thrifty PayLess IPO (the only period during which Thrifty
PayLess has been able to determine that bids were available for such shares)
ranged from a high of $19.58 per share to a low of $12.92 per share (in each
case on a pro forma basis after giving effect to the stock conversion and stock
split that occurred upon consummation of the Thrifty PayLess IPO). Although the
foregoing quotations have been obtained from sources believed to be reliable,
no assurance can be given with respect to the accuracy thereof or as to whether
other bids higher or lower than those set forth above have been quoted. In
addition, such quotations reflect interdealer prices, which may not include
retail mark-up, mark-down or commission, and may not necessarily represent
actual transactions.
There is currently no active public market for the A Common Stock of Thrifty
PayLess. However, pursuant to Thrifty PayLess' Restated Certificate of
Incorporation, at the option of the holder of A Common Stock, shares of A
Common Stock may be converted on a one-for-one basis into shares of B Common
Stock in connection with a sale of such stock. Accordingly, the information
pertaining to market prices of Thrifty PayLess B Common Stock set forth above
may also be applicable to Thrifty PayLess A Common Stock.
Stockholders are urged to obtain current quotations for the market prices of
Rite Aid Common Stock and Thrifty PayLess Common Stock. No assurance can be
given as to the market price of Rite Aid Common Stock or Thrifty PayLess Common
Stock at the Effective Time. The Exchange Ratio is fixed in the Merger
Agreement, and decreases in the market price of Rite Aid Common Stock or
Thrifty PayLess Common Stock will not prevent the consummation of the Merger
except, at Thrifty PayLess' option, as provided in the Minimum Price Condition.
See "The Merger Agreement--Conditions to the Merger." Accordingly, the market
value of the shares of Rite Aid Common Stock that holders of Thrifty PayLess
Common Stock will receive in the Merger may vary significantly from the prices
shown above.
10
<PAGE>
UNAUDITED COMPARATIVE PER SHARE DATA
The following table sets forth certain historical and pro forma equivalent
per share data for Rite Aid Common Stock for Rite Aid's 26 weeks ended August
31, 1996 and fiscal year ended March 2, 1996, and certain historical per share
data for Thrifty PayLess Common Stock for Thrifty PayLess' 26 weeks ended June
30, 1996 and 52 weeks ended December 31, 1995. The information presented herein
should be read in conjunction with the selected historical financial data and
unaudited pro forma condensed consolidated financial statements found elsewhere
in this Joint Proxy Statement/Prospectus (see "--Selected Historical Financial
Data of Rite Aid" and "--Selected Historical Financial Data of Thrifty
PayLess") as well as the historical financial information incorporated herein.
See "Incorporation of Certain Documents by Reference." Equivalent historical
per share data are derived from audited and unaudited financial statements of
Rite Aid and Thrifty PayLess, as the case may be. Equivalent pro forma per
share data for Rite Aid Common Stock are derived from the unaudited pro forma
condensed consolidated financial statements found elsewhere in this Joint Proxy
Statement/Prospectus. See "--Comparative Market Prices and Dividends" and
"Unaudited Pro Forma Condensed Consolidated Financial Data." The pro forma
equivalent per share value of Thrifty PayLess Common Stock on any date equals
the closing sale price of Rite Aid Common Stock on such date, as reported on
the NYSE Composite Tape, multiplied by 0.65.
<TABLE>
<CAPTION>
26 WEEKS FISCAL YEAR
ENDED ENDED
AUGUST 31, 1996(1) MARCH 2, 1996
------------------ -----------------
<S> <C> <C>
Rite Aid Common Stock(2):
Net Income
Historical(3)......................... $ .81 $ 1.90
Pro Forma............................. .60 1.37
Book Value (at period end)
Historical............................ 13.61 13.16
Pro Forma............................. 19.97 19.66
Cash Dividends Declared
Historical............................ .37 .695
Pro Forma............................. .37 .695
<CAPTION>
26 WEEKS 52 WEEKS
ENDED ENDED
JUNE 30, 1996 DECEMBER 31, 1995
------------------ -----------------
<S> <C> <C>
Thrifty PayLess Common Stock:
Loss from continuing operations before
extraordinary loss
Historical............................ $ (.01) $ (.45)
Book Value
Historical............................ 6.30 5.29
Cash Dividends Declared
Historical............................ -0- -0-
</TABLE>
- --------
(1) The pro forma financial information has been prepared assuming the Merger
occurred at the beginning of the respective periods using a 0.65 Exchange
Ratio of shares of Rite Aid Common Stock for shares of Thrifty PayLess
Common Stock.
(2) The per share amounts used in the pro forma calculations were computed by
adding the number of shares of Rite Aid Common Stock to be issued in the
Merger to the actual number of outstanding shares of Rite Aid Common Stock
for the respective periods.
(3) Net income for the 26 week period ended August 31, 1996 reflects a
nonrecurring, pre-tax charge of $16.1 million to write off expenses
associated with Rite Aid's attempted acquisition of Revco D.S. Inc. The
charge resulted in an after-tax effect of $9.9 million or $0.12 per share.
11
<PAGE>
SELECTED HISTORICAL FINANCIAL DATA OF RITE AID
(IN MILLIONS, EXCEPT PER SHARE DATA)
The following table sets forth certain selected historical consolidated
financial data of Rite Aid for each of its last five fiscal years and selected
unaudited financial data for Rite Aid's 26 week periods ended August 31, 1996
and September 2, 1995, which are incorporated by reference in this Joint Proxy
Statement/Prospectus and should be read in conjunction therewith and the Notes
thereto. See "Incorporation of Certain Documents by Reference." Interim
unaudited financial information for the periods presented is derived from the
unaudited books and records of Rite Aid and includes, in the opinion of the
management of Rite Aid, all adjustments necessary to present fairly, in all
material respects, the information for each period. Such adjustments include
only normal recurring adjustments. Such data is not necessarily indicative of
an entire year's results or future operating results.
<TABLE>
<CAPTION>
TWENTY-SIX WEEKS ENDED FISCAL YEAR ENDED
------------------------ --------------------------------------------------------
AUGUST 31, SEPTEMBER 2, MARCH 2, MARCH 4, FEBRUARY 26, FEBRUARY 27, FEBRUARY 29,
1996 1995 1996 1995 1994 1993 1992
----------- ------------ -------- -------- ------------ ------------ ------------
(UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Net Sales.............. $2,828.4 $2,683.2 $5,446.0 $4,533.9 $4,058.7 $3,833.6 $3,530.6
Income from Continuing
Operations Before
Taxes(1).............. 109.9 113.4 256.2 231.5 45.7 200.6 187.2
Income (Loss) from
Discontinued
Operations(3)......... -- -- -- -- (16.9) 8.6 9.0
Net Income(1).......... 67.9 69.3 158.9 141.3 9.3 132.4 124.0
PER SHARE INFORMATION:
Continuing Operations.. .81 .83 1.90 1.67 .30 1.41 1.32
Discontinued
Operations............ -- -- -- -- (.19) .10 .11
Net Income per
Share(1).............. .81 .83 1.90 1.67 .11 1.51 1.43
<CAPTION>
AS OF FISCAL PERIOD ENDED
---------------------------------------------------------------------------------
AUGUST 31, MARCH 2, MARCH 4, FEBRUARY 26, FEBRUARY 27, FEBRUARY 29,
1996 1996 1995 1994 1993 1992
----------- -------- -------- ------------ ------------ ------------
(UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Current Assets......... $1,520.5 $1,465.0 $1,373.2 $1,125.4 $1,079.7 $ 999.2
Property, Plant and
Equipment, Net(2)..... 1,142.1 979.5 778.5 638.7 551.4 502.7
Net Non-Current Assets
of Discontinued
Operations(3)......... -- -- 40.7 77.8 71.4 67.1
Total Assets........... 3,102.5 2,842.0 2,472.6 1,989.1 1,858.5 1,734.5
Current Liabilities.... 464.1 630.0 577.2 362.2 268.0 276.0
Long-Term Debt, Less
Current Maturities.... 1,382.9 994.3 806.0 613.4 489.2 427.5
Stockholders' Equity... 1,141.6 1,103.6 1,011.8 954.7 1,035.6 950.6
</TABLE>
- -------
(1) Primary earnings per share have been computed based on the weighted
average number of shares of Rite Aid Common Stock outstanding during each
of the following fiscal periods (83.8 in fiscal year 1996, 84.8 in fiscal
year 1995, 88.0 in fiscal year 1994, 87.9 in fiscal year 1993 and 86.9 in
fiscal year 1992 and 83.9 and 83.8 for the 26 week periods ended August
31, 1996 and September 2, 1995, respectively). Net income for the 26 week
period ended August 31, 1996 reflects a non-recurring, pre-tax charge of
$16.1 to write-off expenses associated with the attempted acquisition of
Revco D.S. Inc. The charge resulted in an after tax effect of $9.9 or $.12
per share.
(2) Depreciation and amortization expenses were $97.0 for fiscal year 1996,
$82.7 for fiscal year 1995, $76.3 for fiscal year 1994, $72.0 for fiscal
year 1993, $69.4 for fiscal year 1992, $53.6 for the 26 weeks ended August
31, 1996 and $46.7 for the 26 weeks ended September 2, 1995. Depreciation
and amortization generally are computed on a straight-line basis over the
following estimated lives: buildings: 30 to 45 years; leasehold
improvements: term of lease or useful lives of assets, whichever is
shorter; and equipment: three to 15 years. Accelerated methods are used
for income tax purposes.
12
<PAGE>
(3) As part of its restructuring strategy announced in 1994, Rite Aid
concentrated its focus and resources entirely on the drug store segment and
the Rite Aid Board authorized the sale of Rite Aid's four non-drug store
businesses. The businesses sold were (i) ADAP, an auto parts retailer with
96 stores, (ii) Encore Books ("Encore"), which operated 98 book stores,
(iii) Concord Custom Cleaners ("Concord"), which operated 168 cleaning
outlets, and (iv) Sera-Tec Biologicals ("Sera-Tec"), which operated 33
plasma collection centers providing plasma for use in therapeutic and
diagnostic products. During fiscal year 1995, Encore, Concord and Sera-Tec
were sold. The aggregate net proceeds received for the three dispositions
was $75.8, after taxes and expenses of $24.3. The resulting aggregate
after-tax loss of $12.3 was recorded to the reserve for loss on disposal of
discontinued operations. The sale of ADAP was completed in the first
quarter of fiscal 1996. The aggregate consideration for the ADAP sale was
approximately $59.3 and the remaining reserve amount of $13.3 for loss on
disposal of ADAP was adequate.
A pre-tax provision of $42.0 for loss on disposal of these discontinued
operations was recorded in the fourth quarter of fiscal year 1994 and is
shown on the consolidated statement of income net of a $16.4 income tax
benefit. The provision includes after-tax income from operations during the
phaseout period of $1.0.
Net sales for the discontinued operations were $273.1, $251.5 and $217.8
for Rite Aid's fiscal years 1994, 1993 and 1992, respectively. The interest
expense allocation was $4.5 in fiscal year 1994, $3.5 in fiscal year 1993
and $3.4 in fiscal year 1992. Assets and liabilities of the discontinued
operations have been reclassified to identify them separately on Rite Aid's
consolidated balance sheet. The net current assets of discontinued
operations principally consisted of inventories and for fiscal year 1994
included the $42.0 disposition reserve with applicable income tax benefit
of $16.4. The net non-current assets of discontinued operations were
primarily property, leasehold improvements, store fixtures and equipment.
Prior fiscal years' consolidated financial statements and notes to the
consolidated financial statements have been restated, except where
otherwise noted, to reflect continuing operations. See "Incorporation of
Certain Documents by Reference."
13
<PAGE>
SELECTED HISTORICAL FINANCIAL DATA OF THRIFTY PAYLESS
(IN MILLIONS)
The following table presents selected historical consolidated financial data
of Thrifty PayLess for the periods indicated. Such financial data is derived
from financial data of Thrifty PayLess contained in reports filed by it
pursuant to the requirements of the Exchange Act, which reports are
incorporated herein by reference (see "Incorporation of Certain Documents by
Reference"). Thrifty PayLess had no operations prior to the 1992 Thrifty
Acquisition. Accordingly, financial information for the year ended December 29,
1991 and the 39 weeks ended September 27, 1992 is that of Thrifty Corporation
("Predecessor Thrifty PayLess"). The Predecessor Thrifty PayLess periods also
include the operations of Pay'n Save until July 25, 1992, when it was sold to
PayLess. Thrifty PayLess' financial data include the operations of PayLess
beginning on April 20, 1994, the date of the 1994 PayLess Acquisition.
Accordingly, comparisons of periods may not be meaningful. Results of
operations for the 39-week periods ended July 2, 1995 and June 30, 1996 are
derived from unaudited interim financial statements and are not necessarily
indicative of results of operations for a full fiscal year.
<TABLE>
<CAPTION>
THRIFTY PAYLESS PREDECESSOR THRIFTY PAYLESS
---------------------------------------------------- -------------------------------
39 WEEKS ENDED 52 WEEKS 52 WEEKS 53 WEEKS 39 WEEKS
------------------ ENDED ENDED ENDED ENDED YEAR ENDED
JUNE 30, JULY 2, OCTOBER 1, OCTOBER 2, OCTOBER 3, SEPTEMBER 27, DECEMBER 29,
1996 1995 1995 1994 1993 1992 (1) 1991
-------- -------- ---------- ---------- ---------- -------------- -------------
<S> <C> <C> <C> <C> <C> <C> <C>
OPERATING DATA:
Sales.................. $3,643.6 $3,572.2 $4,658.8 $3,163.3 $2,119.1 $ 1,917.9 $ 2,664.6
Cost of goods sold,
buying and occupancy.. 2,673.8 2,609.4 3,430.9 2,311.1 1,571.0 1,431.8 2,003.1
-------- -------- -------- -------- -------- ------------- -------------
Gross profit........... 969.8 962.8 1,227.9 852.2 548.1 486.1 661.5
Selling and
administration........ 781.4 807.7 1,047.8 746.8 538.8 559.7 727.0
Write-off of goodwill.. -- -- -- -- -- 17.2 81.0
Depreciation and
amortization.......... 51.4 47.9 68.5 29.6 1.2 31.5 46.5
-------- -------- -------- -------- -------- ------------- -------------
Operating profit
(loss)................ 137.0 107.2 111.6 75.8 8.1 (122.3) (193.0)
Interest expense, net.. (95.1) (102.1) (137.2) (63.7) (11.6) (27.8) (37.7)
Loss on sale of assets. -- -- -- -- -- (25.6) --
-------- -------- -------- -------- -------- ------------- -------------
Income (loss) from
continuing operations
before income taxes
and extraordinary
loss.................. 41.9 5.1 (25.6) 12.1 (3.5) (175.7) (230.7)
Income tax (expense)
benefit............... (17.8) (1.1) 2.8 (5.6) 1.1 (0.5) 19.7
-------- -------- -------- -------- -------- ------------- -------------
Income (loss) from
continuing operations
before extraordinary
loss.................. 24.1 4.0 (22.8) 6.5 (2.4) (176.2) (211.0)
Income (loss) from
discontinued
operations, net of
income tax expense.... -- -- -- 5.2 3.7 39.1 (44.7)
Extraordinary loss from
early extinguishment
of debt............... (117.8) -- (11.9) -- -- -- --
-------- -------- -------- -------- -------- ------------- -------------
Net income (loss)...... (93.7) 4.0 (34.7) 11.7 1.3 (137.1) (255.7)
Accretion of preferred
stock................. -- -- -- (1.1) (1.8) -- --
-------- -------- -------- -------- -------- ------------- -------------
Net income (loss) on
common shares......... $ (93.7) $ 4.0 $ (34.7) $ 10.6 $ (0.5) $ (137.1) $ (255.7)
======== ======== ======== ======== ======== ============= =============
BALANCE SHEET DATA (AT
PERIOD END):
Working capital........ $ 532.6 $ 551.4 $ 512.8 $ 478.4 $ 144.8 $ 280.2 $ 98.2
Total assets (2)....... 2,015.6 2,062.3 2,094.0 2,141.8 693.1 1,046.2 1,424.6
Total debt (3)......... 864.5 1,094.6 1,079.7 1,011.0 95.2 200.8 413.4
Stockholders' equity... 375.0 200.0 161.4 194.6 28.4 261.1 397.8
</TABLE>
- -------
(1) Includes results for the initial two days (September 26 and September 27)
of Thrifty PayLess' period. Balance sheet data for this period are
presented as of September 25, 1992, the last day of the Predecessor Thrifty
PayLess. The fiscal period ended September 27, 1992 represents the nine-
month period created by a change in fiscal year end of Thrifty Corporation
from December to September.
(2) Included in total assets are net assets related to discontinued operations
of $192.8 million, $57.4 million and $49.1 million, at December 29, 1991,
September 25, 1992 and October 3, 1993, respectively.
(3) Net of unamortized discount.
14
<PAGE>
SELECTED UNAUDITED SUMMARY PRO FORMA FINANCIAL DATA
(IN MILLIONS)
The following selected unaudited summary pro forma financial data for Rite
Aid give effect to the Merger, the Southeast Dispositions, the Bi-Mart
divestiture and certain related adjustments described in "Unaudited Pro Forma
Condensed Consolidated Financial Data." The transactions are reflected in the
unaudited pro forma condensed consolidated balance sheet data as if they
occurred as of August 31, 1996, and in the unaudited pro forma condensed
consolidated operating statement data as if they occurred as of the beginning
of the periods presented. The Merger will be accounted for under the purchase
method of accounting. The unaudited pro forma condensed consolidated financial
statements contained herein are prepared for illustrative purposes only and are
not necessarily indicative of the financial position or results of operations
that might have occurred had the applicable transactions actually taken place
on the dates indicated, or of future results of operations or financial
positions of the stand alone or combined entities. The unaudited pro forma
condensed consolidated financial statements do not reflect any synergies
expected by Rite Aid management to be realized after the Merger (see "The
Merger--Rite Aid's Reasons for the Merger; Recommendation of the Rite Aid
Board"); transaction costs relating to the Southeast Dispositions, inasmuch as
such costs are non-recurring; or any effect that purchases of Thrifty PayLess
Common Stock by Rite Aid prior to the consummation of the Merger would have on
such financial information. The unaudited pro forma condensed consolidated
financial statements are based on the historical consolidated financial
statements of Rite Aid and Thrifty PayLess and should be read in conjunction
with (i) such historical financial statements and the notes thereto, which are
incorporated by reference in this Joint Proxy Statement/Prospectus, (ii) the
unaudited selected pro forma financial data and unaudited comparative per share
data, including the notes thereto, appearing elsewhere in this Joint Proxy
Statement/Prospectus, and (iii) the selected historical financial data of Rite
Aid and Thrifty PayLess appearing elsewhere in this Joint Proxy
Statement/Prospectus. See "--Selected Historical Financial Data of Rite Aid;"
"--Selected Historical Financial Data of Thrifty PayLess;" "Unaudited Pro Forma
Condensed Consolidated Financial Data," "Incorporation of Certain Documents by
Reference" and "The Merger--Share Ownership of Officers, Directors and Certain
Stockholders."
<TABLE>
<CAPTION>
FOR THE TWENTY-SIX FOR THE FISCAL
WEEKS ENDED YEAR ENDED
AUGUST 31, 1996 MARCH 2, 1996
--------------------- --------------
<S> <C> <C>
OPERATING STATEMENT DATA:
Net Sales......................... $5,164.9 $10,110.5
Net Income(1)..................... 73.1 167.4
<CAPTION>
AS OF AUGUST 31, 1996
---------------------
<S> <C>
BALANCE SHEET DATA:
Current Assets.................... $2,779.5
Total Assets...................... 6,255.0
Long-Term Debt.................... 2,308.8
Stockholders' Equity.............. 2,446.9
</TABLE>
- --------
(1) Excludes an extraordinary loss of Thrifty PayLess from early extinguishment
of debt.
See "Unaudited Pro Forma Condensed Consolidated Financial Data" for a
discussion of the pro forma adjustments to the historical financial data.
15
<PAGE>
THE MEETINGS
RITE AID SPECIAL MEETING
At the Rite Aid Special Meeting, the stockholders of Rite Aid will consider
and vote upon a proposal to approve adoption of the Merger Agreement and the
issuance of Rite Aid Common Stock to the holders of Thrifty PayLess Common
Stock pursuant thereto. Pursuant to the Merger Agreement, (i) Thrifty PayLess
will merge with and into Rite Aid, with Rite Aid as the surviving corporation
in the Merger, (ii) subject to certain exceptions, each outstanding share of
Thrifty PayLess Common Stock will be converted into 0.65 of a share of Rite
Aid Common Stock, resulting in the issuance of an aggregate of approximately
shares of Rite Aid Common Stock in exchange for an aggregate of
approximately shares of Thrifty PayLess Common Stock, (iii) each
outstanding option or warrant to acquire shares of Thrifty PayLess Common
Stock (collectively, "Thrifty PayLess Stock Options") will be converted into a
right to receive an amount of cash equal to (a) 65% of the Rite Aid Share
Price, minus the exercise price per share under the applicable Thrifty PayLess
Stock Option, times (b) the number of shares of Thrifty PayLess Common Stock
purchasable upon exercise of such Thrifty PayLess Stock Option, and (iv) Rite
Aid's Certificate of Incorporation will be amended in order, among other
things, to increase the number of authorized shares of Rite Aid Common Stock
from 240 million to 300 million. See "The Merger--Amendment of Rite Aid
Certificate of Incorporation."
The Rite Aid Board has unanimously determined that the Merger is advisable
and fair to and in the best interests of the stockholders of Rite Aid and has
approved the Merger Agreement. THE RITE AID BOARD HAS UNANIMOUSLY APPROVED THE
MERGER AGREEMENT AND RECOMMENDS THAT THE STOCKHOLDERS OF RITE AID VOTE "FOR"
ADOPTION OF THE MERGER AGREEMENT. See "The Merger--Rite Aid's Reasons for the
Merger; Recommendation of the Rite Aid Board."
THRIFTY PAYLESS SPECIAL MEETING
At the Thrifty Payless Special Meeting, the stockholders of Thrifty PayLess
will consider and vote upon a proposal to approve adoption of the Merger
Agreement. Pursuant to the GEI/Kmart Stockholder Agreements, the GEI/Kmart
Stockholders have agreed to vote in favor of adoption of the Merger Agreement.
Such agreements, coupled with any purchases of Thrifty PayLess Common Stock by
Rite Aid prior to the Effective Time, substantially enhance the likelihood
that the Merger will be consummated. See "--Required Vote;" "--Share Ownership
of Officers, Directors and Certain Stockholders" and "--GEI/Kmart Stockholder
Agreements."
The Thrifty PayLess Board has unanimously approved the Merger Agreement and
the transactions contemplated thereby (including the Merger) as being in the
best interests of the stockholders of Thrifty PayLess. THE THRIFTY PAYLESS
BOARD UNANIMOUSLY RECOMMENDS THAT THE STOCKHOLDERS OF THRIFTY PAYLESS VOTE
"FOR" ADOPTION OF THE MERGER AGREEMENT. See "The Merger--Thrifty PayLess'
Reasons for the Merger; Recommendation of the Thrifty PayLess Board."
QUORUM
The holders of a majority of the shares of Rite Aid Common Stock outstanding
and entitled to vote must be present in person or represented by proxy at the
Rite Aid Special Meeting in order for a quorum to be present. Similarly, the
holders of a majority of the shares of Thrifty PayLess Common Stock
outstanding and entitled to vote must be present in person or represented by
proxy at the Thrifty PayLess Special Meeting in order for a quorum to be
present. Shares represented by proxies which are marked "abstain" will be
counted as shares present for each respective Special Meeting for purposes of
determining the presence of a quorum on all matters, as will shares that are
represented by proxies that are executed by any broker, fiduciary or other
nominee on behalf of the beneficial owner(s) thereof regardless of whether
authority to vote is withheld by such broker, fiduciary or nominee on one or
more matters.
In the event that a quorum is not present at either Special Meeting, it is
expected that such Special Meeting will be adjourned or postponed to solicit
additional proxies, except that shares represented by proxies which have been
voted "against," or have abstained with respect to the proposal to adopt the
Merger Agreement and the transactions contemplated thereby (including the
Merger), will not be used to vote "for" postponement or adjournment of either
Special Meeting for the purpose of allowing additional time for soliciting
additional votes "for" such adoption.
16
<PAGE>
RECORD DATE; VOTING RIGHTS
Only holders of record of Rite Aid Common Stock at the close of business on
the Rite Aid Record Date are entitled to receive notice of and to vote at the
Rite Aid Special Meeting or at any adjournments or postponements thereof. At
the close of business on the Rite Aid Record Date, there were shares of
Rite Aid Common Stock outstanding, each of which entitles the registered
holder thereof to one vote.
Only holders of record of Thrifty PayLess Common Stock at the close of
business on the Thrifty PayLess Record Date are entitled to receive notice of
and to vote at the Thrifty PayLess Special Meeting or at any adjournments or
postponements thereof. At the close of business on the Thrifty PayLess Record
Date, there were shares of Thrifty PayLess Common Stock outstanding
(consisting of shares of A Common Stock and shares of B Common Stock),
each of which entitles the registered holder thereof to one vote with respect
to adoption of the Merger Agreement.
REQUIRED VOTE
Adoption of the Merger Agreement by Rite Aid stockholders will require the
affirmative vote of a majority of the shares of Rite Aid Common Stock
outstanding as of the Rite Aid Record Date entitled to vote thereon. Adoption
of the Merger Agreement by Thrifty PayLess stockholders will require the
affirmative vote of a majority of the shares of A Common Stock and B Common
Stock outstanding as of the Thrifty PayLess Record Date entitled to vote
thereon, voting together as a single class.
SHARE OWNERSHIP OF OFFICERS, DIRECTORS AND CERTAIN STOCKHOLDERS
At the close of business on the Rite Aid Record Date, directors and
executive officers of Rite Aid and their affiliates were the beneficial owners
of an aggregate of (approximately %) of the shares of Rite Aid Common
Stock then outstanding.
At the close of business on the Thrifty PayLess Record Date, directors and
executive officers of Thrifty PayLess and their affiliates were the beneficial
owners of an aggregate of (approximately %) of the shares of Thrifty
PayLess Common Stock then outstanding (which amounts include the shares
referred to in the next sentence). As of the Thrifty PayLess Record Date, GEI
and Kmart owned an aggregate of 24,998,513 of the shares of Thrifty PayLess
Common Stock then outstanding (approximately 42%) . Pursuant to the GEI/Kmart
Stockholder Agreements, each of GEI and Kmart agreed, among other things, to
vote its respective shares in favor of the adoption of the Merger Agreement,
thereby substantially enhancing the likelihood that the Merger will be
consummated. See "GEI/Kmart Stockholder Agreements."
In connection with its approval of, and as permitted by, the Merger
Agreement, the Rite Aid Board authorized the purchase of Thrifty PayLess
Common Stock from time to time in the open market or otherwise up to the
amount of the Rite Aid Permitted Purchases. Rite Aid may not, however,
purchase more than $15.0 million in value of Thrifty PayLess Common Stock
until the expiration or termination of the waiting period requirements of the
HSR Act. See "The Merger--Certain Legal Matters; Regulatory Approvals."
Whether Rite Aid will so purchase Thrifty PayLess Common Stock will depend
upon, among other factors, the availability and prices therefor. If Rite Aid
purchases Thrifty PayLess Common Stock representing more than 9% of the voting
power of all Thrifty PayLess Common Stock and votes such shares in favor of
adoption of the Merger Agreement, such actions, coupled with the voting
covenants under the GEI/Kmart Stockholder Agreements, will assure approval of
the adoption of the Merger Agreement by Thrifty PayLess stockholders. Shares
of Thrifty PayLess Common Stock so acquired by Rite Aid would be subject to
certain standstill provisions contained in the Merger Agreement. See "The
Merger Agreement--Rite Aid Standstill Provision."
PROXIES
All shares represented by properly executed proxies in the enclosed form
which are received in time for the respective Special Meeting and have not
been revoked will be voted in accordance with the instructions indicated in
such proxies. IF A PROXY IS SUBMITTED BUT NO DIRECTIONS ARE GIVEN THEREIN,
SHARES REPRESENTED BY THE PROXY WILL BE VOTED FOR THE ADOPTION OF THE MERGER
AGREEMENT AT THE RESPECTIVE SPECIAL MEETING. Abstentions and broker non-votes
will have the effect of a vote cast against the Merger Agreement at the
respective Special Meeting.
17
<PAGE>
In addition, while it is not expected that any other matter other than those
referred to herein will be brought before either of the Special Meetings, the
persons designated in such proxy will have discretion to vote upon any matter
properly presented at the respective Special Meeting. Any proxy in the enclosed
form may be revoked by the stockholder executing it at any time prior to its
exercise by giving written notice thereof to the Secretary of Rite Aid or
Thrifty PayLess, as the case may be, by signing and returning a later dated
proxy to the Secretary of Rite Aid or Thrifty PayLess, as the case may be, or
by voting in person at the respective Special Meeting. Attendance at the
respective Special Meeting will not in and of itself constitute the revocation
of a proxy.
SOLICITATION OF PROXIES
Proxies are being solicited hereby on behalf of the Rite Aid Board and the
Thrifty PayLess Board. In addition to the use of the mail, solicitation may be
made in person or by telephone or otherwise by directors, officers and regular
employees of Rite Aid and Thrifty PayLess. Such directors, officers and regular
employees will not be additionally compensated for such solicitation, but may
be reimbursed for out-of-pocket expenses incurred in connection therewith. If
undertaken, the expense of such solicitation would be nominal. Rite Aid and
Thrifty PayLess have retained W.F. Doring & Co. Inc. ("Doring") and MacKenzie
Partners, Inc. ("MacKenzie"), respectively, to aid in the solicitation of
proxies. Each of Doring and MacKenzie will receive reasonable and customary
compensation for its services estimated at $ and $ , respectively, and
will be reimbursed for certain reasonable out-of-pocket expenses by Rite Aid
and Thrifty PayLess.
THE MERGER
GENERAL
The description of the Merger and the Merger Agreement contained in this
Joint Proxy Statement/Prospectus does not purport to be complete and is
qualified in its entirety by reference to the Merger Agreement, a copy of which
is attached hereto as Annex A and incorporated herein by reference.
At the Effective Time, Thrifty PayLess will merge into Rite Aid, with Rite
Aid as the surviving corporation in the Merger. The Merger will become
effective at such time as the Certificate of Merger is filed with the Delaware
Secretary of State, or at such subsequent date or time as Rite Aid and Thrifty
PayLess agree and specify in the Certificate of Merger. The filing of the
Certificate of Merger will occur as soon as practicable after satisfaction or
waiver of the conditions to the consummation of the Merger set forth in the
Merger Agreement unless another date is agreed to in writing by Rite Aid and
Thrifty PayLess.
At the Effective Time, each share of Thrifty PayLess Common Stock issued and
outstanding immediately prior to the Effective Time (other than shares of
Thrifty PayLess Common Stock owned by Thrifty PayLess as treasury stock, shares
of Thrifty PayLess Common Stock owned by Rite Aid or any direct or indirect
wholly owned subsidiary of Rite Aid or Thrifty PayLess, and Dissenting Thrifty
PayLess Shares), will by virtue of the Merger and without any action on the
part of the holder thereof be converted into the right to receive 0.65 shares
of duly authorized, validly issued, fully paid and nonassessable shares of Rite
Aid Common Stock.
BACKGROUND OF THE MERGER
On June 3, 1996, a representative of DLJ informed representatives of GEI of
Rite Aid's possible interest in Thrifty PayLess and the intent of Rite Aid
representatives to visit numerous Thrifty PayLess store sites. On June 10,
1996, a representative of DLJ contacted Leonard I. Green, the founding partner
of LGA (GEI's general partner) and the Chairman of the Board of Thrifty
PayLess, to discuss the possibility of a meeting between Mr. Green and Martin
L. Grass, the Chairman and Chief Executive Officer of Rite Aid.
On June 5, 1996, Rite Aid entered into the Confidentiality/Standstill
Agreement. However, no material information was provided pursuant to such
agreement at such time.
On June 26, 1996, Mr. Grass and Mr. Green, together with certain
representatives of DLJ and Goldman Sachs, met to discuss a possible business
combination transaction involving Thrifty PayLess and Rite Aid. Mr. Green
informed Mr. Grass at that meeting, among other things, that GEI was not at
that time considering the possibility of divesting its investment in Thrifty
PayLess, but that it was possible that the Thrifty PayLess Board would consider
a merger or other business combination transaction if the terms thereof were
sufficiently
18
<PAGE>
attractive to Thrifty PayLess and its stockholders. Mr. Green also informed
Mr. Grass that no confidential information regarding Thrifty PayLess would be
provided to Rite Aid until a concrete proposal had been made by Rite Aid.
On July 12, 1996, at Rite Aid's request, Messrs. Grass and Green met again
to discuss a proposal of Mr. Grass. Mr. Grass proposed that Rite Aid acquire
Thrifty PayLess pursuant to a zero-premium stock-for-stock merger. Mr. Green
informed Mr. Grass that such proposal was not acceptable to GEI and, in his
judgment, would not be acceptable to the Thrifty PayLess Board.
On September 30, 1996, at Rite Aid's request, Messrs. Grass and Green met
together with representatives of DLJ and Goldman Sachs and other
representatives of Rite Aid. At this meeting, Mr. Grass presented a proposal
for consideration and discussions were held regarding the businesses,
operations, financial matters, strategies, prospects and personnel of each
company. On October 2, 1996, Messrs. Grass and Green met to discuss Mr. Grass'
most recent proposal. At this meeting, Messrs. Grass and Green discussed the
principal terms for a transaction that they would be willing to submit to
their respective Boards of Directors, including an exchange ratio and a
minimum price condition, and agreed upon a timetable designed to permit the
two companies to complete their due diligence examinations, agree upon
definitive documentation and take other actions so that a decision could be
made by their respective Boards of Directors as to whether to pursue the
possible transaction over an approximately ten-day period.
During the ensuing ten-day period, financial, legal, accounting and
management representatives of Rite Aid, Thrifty PayLess and GEI met or
otherwise pursued the possible transaction in order to carry out due diligence
reviews, to discuss the financial, structural, legal and other terms of a
possible transaction and to negotiate the terms of a merger agreement,
GEI/Kmart stockholder agreements and certain other matters. On October 8,
1996, GEI contacted Kmart to advise it of the ongoing negotiations and to
afford it the opportunity of reviewing, and participating in the negotiations
regarding, its respective stockholder agreement. Thereafter, Kmart
participated in the negotiations with respect thereto.
A regular meeting of the Rite Aid Board was held on October 9, 1996, at
which, among other subjects, the possible acquisition of Thrifty PayLess was
reviewed with the Rite Aid Board by Rite Aid's senior management, with the
assistance of Jones Day and DLJ. The presentations to and discussions by the
Rite Aid Board were wide ranging, and included, among other things, (i) a
review by senior management of the discussions conducted to date with
representatives of Thrifty PayLess, (ii) a review by Rite Aid's senior
management of the conditions in the drug store industry in North America, the
strategic options available to Ride Aid and the likelihood of future
consolidation in the drug store industry in North America, (iii) a discussion
of Rite Aid's strategy of focusing on geographic areas in which Rite Aid has
or can be expected to obtain a position of market leadership, and the
relationship of the Merger and the Southeast Dispositions to that strategy,
(iv) a review by senior management of Thrifty PayLess' business, operations,
financial condition, results of operations, strategies, prospects and
personnel, (v) a discussion by Jones Day of the terms of the possible
transaction, and (vi) a presentation by DLJ of its views of the possible
financial benefits to Rite Aid of, and likely stock market reactions to, a
possible acquisition of Thrifty PayLess by Rite Aid, together with a review of
the transaction from the perspective of Rite Aid's stockholders.
A special meeting of the Thrifty PayLess Board was held on October 11, 1996,
at which the proposed strategic merger of Thrifty PayLess with Rite Aid was
reviewed by the Thrifty PayLess Board with the assistance of Thrifty PayLess'
financial advisor, Goldman Sachs, and its legal counsel, Irell & Manella LLP.
The presentations to and discussions by the Thrifty PayLess Board were wide
ranging and included, among other things, the following: (i) a review of
discussions conducted to date between representatives, of Thrifty Payless and
Rite Aid, which was presented by such representatives and Irell & Manella LLP;
(ii) a presentation by Goldman Sachs of its financial analyses and, based upon
information provided by Rite Aid, information regarding the business, results
of operations and financial condition of Rite Aid and Rite Aid's management's
expectations of the potential synergies and economies of scale that Rite Aid
expected to arise from the proposed merger; and (iii) a presentation by Irell
& Manella LLP regarding the then-current status of the negotiations
19
<PAGE>
regarding the material terms of the Merger Agreement and related transactions,
including the Exchange Ratio, closing conditions, termination rights and fees
and various matters set forth herein under "The Merger--Interests of Certain
Persons and Employee Matters" (including the treatment of Thrifty PayLess
Stock Options and severance arrangements), and of the material terms of the
proposed GEI/Kmart Stockholder Agreements, including the voting provisions
thereof, as well as various other legal matters pertinent to the proposed
merger, including antitrust and tax matters and the fiduciary duties of the
Thrifty PayLess Board in evaluating and acting upon the proposed merger.
During the course of the meeting, the Thrifty PayLess Board was provided,
among other things, drafts of the Merger Agreement and the GEI/Kmart
Stockholder Agreements.
A special meeting of the Rite Aid Board was held on October 12, 1996, at
which the possible business combination was reviewed with the Rite Aid Board
by Rite Aid's senior management with the assistance of Jones Day and DLJ. At
the meeting, the Rite Aid Board had presentations regarding, and discussed
various matters, including, among other things, the course of the discussions
with Thrifty PayLess and the terms of the possible transaction, including a
review by Jones Day of the termination provisions of the draft Merger
Agreement, the terms of the GEI/Kmart Stockholder Agreements and all other
material terms of the transaction. Representatives of DLJ then updated such
firm's financial analysis of the combination previously presented at the
October 9, 1996 meeting and informed the Rite Aid Board, which advice was
subsequently confirmed in writing, that, in the opinion of DLJ, the Exchange
Ratio was fair to the stockholders of Rite Aid from a financial point of view.
DLJ subsequently confirmed its opinion by delivery of its written opinion
dated October 18, 1996. See "The Merger--Opinion of DLJ." Following
discussion, the Rite Aid Board, by unanimous vote, approved the Merger
Agreement, the Stockholder Agreements and the transactions contemplated
thereby.
A special meeting of the Thrifty PayLess Board was held on October 13, 1996,
at which the proposed strategic merger of Thrifty PayLess into Rite Aid was
again reviewed by the Thrifty PayLess Board with the assistance of Goldman
Sachs and Irell & Manella LLP. The presentations to and discussions by the
Thrifty PayLess Board were wide ranging and included, among other things, the
following: (i) a presentation by Irell & Manella LLP regarding various matters
that it had presented during the October 11, 1996 special meeting of the
Thrifty PayLess Board, including a discussion of the material terms of the
Merger Agreement and the proposed GEI/Kmart Stockholder Agreements and
revisions thereto since the date of the prior special meeting, as well as an
overview of the due diligence investigation that had been conducted with
respect to Rite Aid; (ii) a presentation by Goldman Sachs of its financial
analyses described under "The Merger--Opinion of Goldman Sachs;" and (iii) a
review of developments with respect to the various matters set forth under
"The Merger--Interests of Certain Persons" (including various enhancements to
the severance arrangements that had been negotiated for the benefit of Thrifty
PayLess employees and consideration of the LGA Investment Services fee).
Goldman Sachs then delivered its opinion to the Thrifty PayLess Board that, as
of October 13, 1996, the Exchange Ratio pursuant to the Merger Agreement is
fair to the holders of Thrifty PayLess Common Stock. Following discussion, the
Thrifty PayLess Board, by unanimous vote, approved the Merger Agreement and
the transactions contemplated thereby (including the Merger).
Following the Thrifty Payless Board meeting on October 13, 1996,
representatives of Rite Aid and Thrifty PayLess executed the Merger Agreement,
GEI and Kmart executed their respective GEI/Kmart Stockholder Agreements (as
did Rite Aid) and, on October 14, 1996, Rite Aid announced the transaction.
RITE AID'S REASONS FOR THE MERGER; RECOMMENDATION OF THE RITE AID BOARD
The Rite Aid Board has unanimously determined that the Merger is advisable
and fair to and in the best interests of the stockholders of Rite Aid and has
approved the Merger Agreement. Accordingly, the Rite Aid Board recommends that
the stockholders of Rite Aid vote to approve the Merger Agreement. In reaching
its conclusion, the Rite Aid Board considered a number of factors, including:
. The judgement and advice of Rite Aid's senior management, including in
respect of the conditions in the drug store industry in North America, the
strategic options available to Rite Aid and the likelihood of future
consolidation in the drug store industry in North America.
20
<PAGE>
. Rite Aid's strategy of focusing on geographic areas in which Rite Aid is
or can become a market leader, and the relationship of the Merger and the
Southeast Dispositions to this strategy.
. The analyses prepared by DLJ and the oral opinion of DLJ presented to the
Rite Aid Board on October 12, 1996 and confirmed in writing on October
18, 1996, to the effect that as of such dates the Exchange Ratio is fair
to the stockholders of Rite Aid from a financial point of view. A copy of
the written opinion dated October 18, 1996 of DLJ, setting forth the
assumptions made, factors considered and scope of the review undertaken
by DLJ, is attached as Annex B hereto and is incorporated herein by
reference. Rite Aid Stockholders are urged to read the opinion of DLJ
carefully and in its entirety. See "The Merger--Opinion of DLJ" and "--
Background of the Merger."
. The financial condition, results of operations and cash flows of Rite Aid
and Thrifty PayLess, both on a historical and a prospective basis.
. The terms and conditions of the Merger Agreement, including the amount
and form of consideration to be paid pursuant to the Merger Agreement.
. Historical market prices and trading information with respect to Rite Aid
Common Stock and Thrifty PayLess Common Stock.
. The Rite Aid Board's belief that the transaction would be accomplished on
a tax-free basis for federal income tax purposes (other than cash
received in lieu of fractional shares and cash payments in respect of
Dissenting Shares) and accounted for as a "purchase" transaction.
. The GEI/Kmart Stockholder Agreements which provide, among other things,
for the GEI/Kmart Stockholders to vote their respective shares of Thrifty
PayLess Common Stock in favor of adoption of the Merger Agreement.
. The other factors mentioned below in this section.
The foregoing discussion of the information and factors considered and given
weight by the Rite Aid Board is not intended to be exhaustive. In view of the
variety of factors considered in connection with its evaluation of the Merger,
the Rite Aid Board did not find it practicable to and did not attempt to rank
or assign relative weights to the foregoing factors. In addition, individual
members of the Rite Aid Board may have given different weights to different
factors.
Rite Aid's acquisition of Thrifty PayLess pursuant to the Merger is an
integral part of Rite Aid's strategy to operate drug stores in large fast-
growing metropolitan areas. Following the Merger, as soon as reasonably
practicable, Rite Aid expects to divest Bi-Mart, to rename all Thrifty PayLess
stores "Rite Aid" and integrate them with Rite Aid's operations, to refinance
substantially all of Thrifty PayLess' debt (to the extent practicable) and to
close Thrifty PayLess' Wilsonville, Oregon headquarters. Rite Aid expects the
elimination of duplicative overhead expenses and the combined company's
enhanced purchasing efficiencies to result in annual cost savings of at least
$65.0 million. Rite Aid also believes that there are other cost-savings
opportunities presented by the Merger (including lowering Thrifty PayLess'
historical debt expense, distribution costs and inventory shrinkage rate), as
well as opportunities for enhanced revenue growth from the increased scale of
operations and geographic diversity which Rite Aid will have after the Merger.
In addition, the application of Rite Aid's systems and technology to Thrifty
PayLess' operations should result in greater efficiencies. Giving effect to
expected cost reductions resulting from the Merger, the Merger is expected to
be accretive to Rite Aid's earnings in the fiscal year ended February 28, 1998
and thereafter.
THE RITE AID BOARD UNANIMOUSLY RECOMMENDS THAT THE HOLDERS OF RITE AID
COMMON STOCK VOTE "FOR" ADOPTION OF THE MERGER AGREEMENT.
OPINION OF DLJ
Rite Aid engaged DLJ to act as its financial advisor in connection with the
transactions contemplated by the Merger Agreement based upon DLJ's
qualifications, expertise and reputation, as well as DLJ's prior investment
banking relationship and familiarity with Rite Aid and Thrifty PayLess. On
October 12, 1996, DLJ rendered an oral opinion to the Rite Aid Board which was
confirmed by delivery of its written opinion dated October 18, 1996 (the "DLJ
Opinion") to the effect that, as of such date, and based upon and subject to
the assumptions, limitations and qualifications set forth in such opinion, the
Exchange Ratio was fair to the stockholders of Rite Aid from a financial point
of view.
21
<PAGE>
THE FULL TEXT OF THE DLJ OPINION IS SET FORTH AS ANNEX B TO THIS JOINT PROXY
STATEMENT/PROSPECTUS AND SHOULD BE READ CAREFULLY IN ITS ENTIRETY, INCLUDING
WITHOUT LIMITATION THE DESCRIPTIONS OF THE PROCEDURES FOLLOWED, ASSUMPTIONS
MADE, OTHER MATTERS CONSIDERED AND LIMITATIONS OF THE REVIEW UNDERTAKEN IN
ARRIVING AT SUCH OPINION. THE DLJ OPINION ADDRESSES THE FAIRNESS OF THE
EXCHANGE RATIO TO THE STOCKHOLDERS OF RITE AID FROM A FINANCIAL POINT OF VIEW
AND DOES NOT CONSTITUTE A RECOMMENDATION TO ANY STOCKHOLDER OF RITE AID OR
THRIFTY PAYLESS AS TO HOW SUCH STOCKHOLDER SHOULD VOTE AT THE RESPECTIVE
SPECIAL MEETING.
The DLJ Opinion does not constitute an opinion as to the price at which Rite
Aid Common Stock will actually trade at any time. The type and amount of
consideration was determined in arm's length negotiations between Rite Aid and
Thrifty PayLess in which negotiations DLJ advised Rite Aid. No restrictions or
limitations were imposed upon DLJ with respect to the investigations made or
procedures followed by DLJ in rendering its opinion. In arriving at its
opinion, DLJ reviewed the Merger Agreement as well as financial and other
information that was publicly available or furnished to it by Rite Aid and
Thrifty PayLess including information provided during discussions with their
respective managements. Included in the information provided during
discussions with the respective managements were certain internal financial
analyses and forecasts for Rite Aid and Thrifty PayLess prepared by their
respective managements. In addition, DLJ compared certain financial and
securities data of Rite Aid and Thrifty PayLess with various other companies
whose securities are traded in public markets, reviewed the historical stock
prices and trading volumes of the Thrifty PayLess B Common Stock and Rite Aid
Common Stock, reviewed prices and premiums paid in certain other business
combinations and conducted such other financial studies, analyses and
investigations as DLJ deemed appropriate for purposes of rendering its
opinion.
In rendering its opinion, DLJ relied upon and assumed the accuracy,
completeness and fairness of all of the financial and other information that
was available to it from public sources, that was provided to it by Rite Aid
and Thrifty PayLess or their respective representatives, or that was otherwise
reviewed by it. DLJ relied upon the estimates of the management of Rite Aid of
the operating synergies and interest expense savings achievable as a result of
the Merger. DLJ also assumed that the financial analyses and forecasts
regarding Rite Aid and Thrifty PayLess supplied to it by their respective
managements were reasonably prepared on the basis reflecting the best
currently available estimates and judgments of the management of Rite Aid and
Thrifty PayLess, respectively, as to the future operating and financial
performance of Rite Aid and Thrifty PayLess, respectively.
The DLJ Opinion is necessarily based on economic, market, financial and
other conditions as they exist on, and on information made available to it as
of, the date of its opinion. DLJ does not have any obligation to update,
revise and reaffirm its opinion.
The following is a brief summary of the analyses performed by DLJ in
connection with the DLJ Opinion to the Rite Aid Board. All analyses discussed
below, unless otherwise indicated, exclude the estimated operating synergies
and interest expense savings ("Synergies") provided by the management of Rite
Aid.
Common Stock Performance Analysis. DLJ's analysis of Rite Aid's Common Stock
performance consisted of a historical analysis of closing prices and trading
volumes for the 12 months ended October 11, 1996. In the 12 months ended
October 11, 1996, the Rite Aid Common Stock reached a high of $37.00 per share
and a low of $26.88 per share. On October 11, 1996, the closing price of Rite
Aid Common Stock of $35.88 per share was at the high end of such range. DLJ's
analysis of Thrifty PayLess' Common Stock performance consisted of a
historical analysis of Thrifty PayLess' closing prices and trading volumes for
the period beginning April 16, 1996 and ending on October 11, 1996. Since the
Thrifty PayLess IPO on April 16, 1996, Thrifty PayLess B Common Stock reached
a high of $18.88 per share and a low of $13.38 per share. On October 11, 1996,
the closing price of Thrifty PayLess B Common Stock of $18.38 per share was at
the high end of such range. Since April 16, 1996, Thrifty PayLess B Common
Stock has outperformed the S&P 400. In addition, DLJ compared the S&P 400
relative to a comparable company index, which included Rite Aid, Thrifty
PayLess, Revco, Walgreen, CVS, Longs Drug Stores, Eckerd Corporation and Arbor
Drugs from October 11, 1991 to October 11, 1996.
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Historical Exchange Ratio Analysis. DLJ analyzed the historical exchange
ratio between Rite Aid Common Stock and Thrifty PayLess Common Stock over
several time periods. For each period selected, the high, low and average
exchange ratios were calculated. The time periods (ending on October 11, 1996)
selected for analysis were as follows: since the Thrifty PayLess IPO (April
16, 1996), last 120 days, last 60 days, last 30 days and last 10 days. The
average exchange ratio for each aforementioned time period was .45, .49, .50,
.51 and .52, respectively.
Comparable Company Analysis. DLJ analyzed the operating performance of Rite
Aid and Thrifty PayLess relative to six retail drug store companies deemed by
DLJ to be reasonably comparable to Rite Aid and Thrifty PayLess. These
companies are as follows: Walgreen, Revco, CVS, Longs Drug Stores, Eckerd and
Arbor Drugs (the "Comparable Companies"). Historical financial information
used in connection with the ratios provided below with respect to the
Comparable Companies is as of the most recent financial statements publicly
available for each company as of October 11, 1996.
DLJ analyzed the relative performance and value for Rite Aid and Thrifty
PayLess by comparing certain market trading statistics for Rite Aid and
Thrifty PayLess with the Comparable Companies. DLJ examined certain publicly
available financial data of the Comparable Companies including enterprise
value (defined as market value of common equity plus book value of total debt
and preferred stock less cash) as multiples of latest 12 months revenues,
earnings before interest, taxes, depreciation and amortization and LIFO
charges ("EBITDAL") and earnings before interest and taxes ("EBIT") and price
to earnings ratios ("P/E") based on the latest 12 months EPS and estimated
calendar years ending 1997 and 1998 EPS. As of October 11, 1996 this analysis
resulted in (i) a range of 0.3x to 0.8x enterprise value to latest 12 months
revenues for the Comparable Companies compared to 0.5x for Thrifty PayLess at
the Exchange Ratio and 0.8x for Rite Aid; (ii) a range of 5.8x to 12.2x
enterprise value to latest 12 months EBITDAL for the Comparable Companies
compared to 9.3x for Thrifty PayLess at the Exchange Ratio and 9.0x for Rite
Aid, (iii) a range of 8.6x to 15.6x enterprise value to latest 12 months EBIT
for the Comparable Companies compared to 16.1x for Thrifty PayLess and 12.8x
for Rite Aid, (iv) a range of 15.4x to 25.5x P/E based on latest 12 months EPS
for the Comparable Companies compared to 32.8x for Thrifty PayLess at the
Exchange Ratio and 18.4x for Rite Aid, and (v) a range of 14.7x to 23.6x and
13.6x to 20.8x estimated P/E based on 1996 and 1997 calendar year estimates,
respectively, for the Comparable Companies, compared to 31.5x and 21.4x,
respectively, for Thrifty PayLess at the Exchange Ratio and 17.0x and 15.1x,
respectively, for Rite Aid. In addition, DLJ analyzed the implied multiples
for Thirty PayLess at the Exchange Ratio including the Synergies. EPS
estimates for Rite Aid, Thrifty PayLess and the Comparable Companies were
based on estimates provided by First Call Research Direct.
No company utilized in the Comparable Company Analysis is identical to Rite
Aid or Thrifty PayLess. Accordingly, an analysis of the results of the
foregoing necessarily involves complex considerations and judgments concerning
differences in financial and operating characteristics of Rite Aid and Thrifty
PayLess and other factors that could affect the public trading value of the
Comparable Companies or company to which they are being compared. Mathematical
analysis (such as determining the mean or median) is not in itself a
meaningful method of using comparable company data.
Comparable Transaction Analysis. DLJ performed an analysis of precedent
transactions involving retail drug store companies based upon selected merger
and acquisition transactions in the retail drug store industry. Multiples of
(i) aggregate transaction value (defined as the equity value of the offer plus
book value of total debt and preferred stock less cash) to revenues, EBITDAL
and EBIT and (ii) aggregate purchase price (defined as the equity value of the
offer) to net income and tangible book value were compared with multiples paid
or implied in certain other merger and acquisition transactions involving
retail drug store companies from 1994 through 1996. The comparison included a
total of five transactions. These transactions included: Revco D.S. Inc. and
Big B Inc. (pending); Thrift Drug and Fay's Drug (pending); Rite Aid and Revco
D.S. Inc. (terminated); Rite Aid and Perry Drug Stores (completed); Revco D.S.
Inc. and Hook-SupeRx (completed). This analysis resulted in (i) a range of
0.3x to 0.5x latest 12 months revenue compared to 0.5x for Thrifty PayLess at
the Exchange Ratio, (ii) a range of 8.1x to 10.6x latest 12 months EBITDAL
compared to 9.3x for Thrifty PayLess at the Exchange
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Ratio, (iii) a range of 13.1x to 19.8x latest 12 months EBIT compared to 16.1x
for Thrifty PayLess at the Exchange Ratio, (iv) a range of 21.8x to 52.7x
latest 12 months net income compared to 32.8x for Thrifty PayLess at the
Exchange Ratio, and (v) a range of 1.9x to 3.9x latest 12 months book value
per share compared to 3.8x for Thrifty PayLess at the Exchange Ratio.
No transaction utilized in the Comparable Transaction Analysis is identical
to the Merger. Accordingly, an analysis of the results of the foregoing
necessarily involves complex considerations and judgments concerning
differences in financial and operating characteristics of Rite Aid and Thrifty
PayLess and other factors that could affect the acquisition value of the
companies to which they are being compared. Mathematical analysis (such as
determining the mean or median) is not itself a meaningful method of using
comparable transaction data.
Relative Contribution Analysis. DLJ analyzed the relative contributions of
Rite Aid and Thrifty PayLess to the revenues, EBITDAL, EBIT and net income of
the combined entity for the 12 months ended June 1996 and the estimated fiscal
year ending February 1997. Based on the latest 12 months Thrifty PayLess'
revenues, EBITDAL, EBIT and, net income represent 46.3%, 34.1%, 30.0%, and
26.7%, respectively, of the combined entity. Based on the estimated fiscal
year ended 1997, Thrifty PayLess' revenues, EBITDAL, EBIT and net income
represent 45.1%, 34.1%, 33.1% and 27.4%, respectively, of the combined entity.
The Rite Aid shares to be issued to the Thrifty PayLess stockholders represent
approximately 31.2% of Rite Aid's outstanding shares pro forma for the Merger.
Premium Analysis. DLJ performed a comparison of the premium represented by
the Exchange Ratio to premiums offered in acquisitions of $1.0 billion to $5.0
billion in size ("Comparable Acquisitions") from January 1, 1993 to the year
to date period ended October 4, 1996. DLJ indicated that for the 38 Comparable
Acquisitions surveyed, the average and median premiums to the market price one
day, one week and one month prior to announcement were 30.5%, 29.7% and 38.0%,
respectively. The Exchange Ratio represented: a 26.9% premium to the trading
price one day prior to announcement, as compared to average premiums for
Comparable Acquisitions of 30.5%, a premium of 27.8% to the trading price one
week prior to the announcement, as compared to average premiums for Comparable
Acquisitions of 29.7% and a 27.6% premium to the trading price one month prior
to the announcement, as compared to average premiums for Comparable
Acquisitions of 38.0%.
Pro Forma Merger Analysis. DLJ analyzed the pro forma effects on the
earnings per share resulting from the Merger including, without independent
verification, the Synergies as forecasted by the management of Rite Aid
contemplated to result from the Merger with respect to Rite Aid's 12 months
ended June 1, 1996, estimated fiscal year ended February 1997 and projected
fiscal years ending February 1998 and 1999. This analysis is based on a number
of assumptions, including, among other things, the cost of integration,
estimated amounts and timing of the Synergies, the projected financial
performance of Rite Aid and Thrifty PayLess and prevailing interest rates. The
analysis indicated that with the benefit of the Synergies, the Merger is
anticipated to be accretive to Rite Aid's stand-alone earnings per share
estimates for the fiscal years ending February 1998 and 1999.
Discounted Cash Flow Analysis. DLJ performed a discounted cash flow analysis
for the five-year period ending with the 2001 fiscal year on the stand-alone
unlevered free cash flows of Rite Aid and Thrifty PayLess, based upon
financial projections prepared by the respective managements of each company
(although such financial projections for Thrifty PayLess extended only through
its 1997 fiscal year). Unlevered free cash flows were calculated as the after-
tax operating earnings of Rite Aid and Thrifty PayLess, respectively, plus
depreciation and amortization and other non-cash items, plus (or minus) net
changes in non-cash working capital, minus projected capital expenditures. DLJ
calculated terminal values by applying a range of estimated EBITDAL multiples
of 7.0x to 8.0x to the projected unlevered free cash flows of Rite Aid and
Thrifty PayLess, respectively, in fiscal year 2001. The unlevered free cash
flows and terminal values were then discounted to the present using a range of
discount rates of 10.0% to 12.5% representing an estimated range of the
weighted average cost of capital of Rite Aid and Thrifty PayLess. Based on
this analysis, DLJ calculated per share equity values of Rite Aid ranging from
$32.43 to $44.59 and of Thrifty PayLess ranging from $17.55 to $24.06. DLJ
also compared the per share equity value of Rite Aid to the per share equity
value of Thrifty PayLess including the Synergies.
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The summary set forth above does not purport to be a complete description of
the analyses performed by DLJ, but describes, in summary form, the principal
elements of the analyses made by DLJ in arriving at the DLJ Opinion. The
preparation of a fairness opinion involves various determinations as to the
most appropriate and relevant methods of financial analysis and the
application of these methods to the particular circumstances and, therefore,
such an opinion is not readily susceptible to summary description. Each of the
analyses conducted by DLJ was carried out in order to provide a different
perspective on the transaction and add to the total mix of information
available. DLJ did not form a conclusion as to whether any individual
analysis, considered in isolation, supported or failed to support an opinion
as to fairness from a financial point of view. Rather, in reaching its
conclusion, DLJ considered the results of the analyses in light of each other
and ultimately reached its opinion based on the results of the analyses taken
as a whole. DLJ did not place particular reliance or weight on any individual
factor, but instead concluded that its analyses, taken as a whole, supported
its determination. Accordingly, notwithstanding the separate factors
summarized above, DLJ believes that its analyses must be considered as a whole
and that selecting portions of its analysis and the factors considered by it,
without considering all analyses and factors, could create an incomplete or
misleading view of the evaluation process underlying its opinions. In
performing its analyses, DLJ made numerous assumptions with respect to
industry performance, business and economic conditions and other matters. The
analyses performed by DLJ are not necessarily indicative of actual values or
future results, which may be significantly more or less favorable than
suggested by such analyses.
DLJ was selected to render an opinion in connection with the Merger based
upon DLJ's qualifications, expertise and reputation, including the fact that
DLJ, as part of its investment banking business, is regularly engaged in the
valuation of businesses and their securities in connection with mergers and
acquisitions, underwritings, sales and distributions of listed and unlisted
securities, private placements and valuations for corporate and other
purposes.
Pursuant to a letter agreement between Rite Aid and DLJ dated October 11,
1996 (the "DLJ Engagement Letter"), DLJ is entitled to (i) a retainer fee of
$1.0 million payable upon execution of the DLJ Engagement Letter, (ii) a fee
of $250,000 at the time DLJ delivers its opinion to the Rite Aid Board, and
(iii) a transaction fee equal to $7.0 million upon consummation of the Merger.
Any amounts payable pursuant to clauses (i) and (ii) above will be credited
against the transaction fee. Rite Aid has agreed to reimburse DLJ for its out-
of-pocket expenses, including reasonable fees and expenses of its counsel, and
to indemnify DLJ for liabilities and expenses arising out of the Merger or the
transactions in connection therewith, including liabilities under federal
securities laws. The terms of the fee arrangement with DLJ, which DLJ and Rite
Aid believe are customary in transactions of this nature, were negotiated at
arm's length between Rite Aid and DLJ and the Rite Aid Board was aware of such
arrangement, including the fact that a significant portion of the aggregate
fee payable to DLJ is contingent upon consummation of the Merger.
DLJ provides a full range of financial, advisory and brokerage services and
in the course of its normal trading activities may from time to time effect
transactions and hold positions in the securities or options on securities of
Thrifty PayLess and/or Rite Aid for its own account and for the account of
customers. Over the past two years, DLJ has (i) lead managed a $200 million
senior notes offering for Rite Aid, (ii) advised Rite Aid in the sale of four
of its non-drug store subsidiaries, and (iii) advised Rite Aid and acted as
dealer manager for Rite Aid with respect to its attempted acquisition of Revco
D.S., Inc. DLJ has received customary compensation for the above-mentioned
services. Over the past two years, DLJ has also (i) co-managed the Thrifty
PayLess IPO and (ii) acted as dealer manager for TPI and Thrifty PayLess in
conjunction with the tender offers for TPI's 11 3/4% Senior Notes due 2003 and
Thrifty PayLess' 11 5/8% Senior Notes due 2006, respectively. DLJ has also
received customary compensation for the above mentioned services. DLJ has also
acted as financial advisor (or in a comparable capacity) in various other
transactions in which GEI and/or LGA have had material interests. In addition,
in connection with the 1992 Thrifty Acquisition, DLJ and its affiliates
acquired certain shares of Thrifty PayLess Common Stock, with respect to which
DLJ and its affiliates currently own less than 6% of the A Common Stock and
less than 1% of the B Common Stock.
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THRIFTY PAYLESS' REASONS FOR THE MERGER; RECOMMENDATION OF THE THRIFTY PAYLESS
BOARD
On October 13, 1996, the Thrifty PayLess Board, by unanimous vote, approved
the Merger Agreement and the transactions contemplated thereby (including the
Merger) as being in the best interests of Thrifty PayLess and its stockholders
and decided to recommend adoption of the Merger Agreement and the transactions
contemplated thereby to Thrifty PayLess stockholders. In reaching these
conclusions, the Thrifty PayLess Board considered, among other things, the
following factors:
. The value to Thrifty PayLess stockholders of the continuation of Thrifty
PayLess as an independent entity versus a strategic combination with Rite
Aid pursuant to the Merger. The Thrifty PayLess Board determined that the
Merger afforded Thrifty PayLess stockholders the opportunity to invest in
a larger company with greater financial resources, a stronger balance
sheet and improved potential for long-term appreciation. In that regard,
the Thrifty PayLess Board considered information concerning the
respective businesses, operations, expense structures, assets, financial
condition, strategies, expansion opportunities and prospects of Thrifty
PayLess and Rite Aid, the potential contributions of each of Thrifty
PayLess and Rite Aid to the revenues, operating profit and net profits of
the combined company, and the potential for cost savings and synergies
from the Merger in light of Right Aid's plans for the integration of the
two companies' respective operations and business. The Thrifty Payless
Board also took into consideration the prior success of Rite Aid's
management in acquiring and integrating other drug store chains.
. A comparison of the historical market prices and trading information of
Thrifty PayLess Common Stock and Rite Aid Common Stock. Based on the
closing market prices of Rite Aid Common Stock on October 11, 1996 (the
last trading day immediately prior to the public announcement of the
Merger), the value of the Rite Aid Common Stock that would have been
received by Thrifty PayLess stockholders in exchange for their Thrifty
PayLess Common Stock pursuant to the Merger if it had occurred on such
date would have represented a premium of 26.9% above the then-current
market price of the B Common Stock. In addition, the Thrifty PayLess
Board considered the Minimum Price Condition under the Merger Agreement,
which generally provides that Thrifty PayLess may elect not to consummate
the Merger if the average market price of Rite Aid Common Stock falls
below $30.75 during a specified period (except under certain limited
circumstances, in which case such average may be less than $30.75 but
must be at least $29.00). If the market price of Rite Aid Common Stock
were $30.75 as of the Effective Time, Thrifty PayLess stockholders would
receive, for each share of Thrifty PayLess Common Stock, Rite Aid Common
Stock with a value of $19.99, which amount exceeds the highest closing
market price ($18.875 per share) that Thrifty PayLess Common Stock
achieved at any time following the date of the Thrifty PayLess IPO and
before the date of the first public announcement of the Merger.
. The terms and conditions of the Merger Agreement and related matters,
including the Exchange Ratio, closing conditions, termination rights,
termination fees, the cash-out of Thrifty PayLess Stock Options and
severance arrangements for existing Thrifty PayLess management designed
to ensure a smooth transition in connection with the Merger, all of which
were the product of arms' length negotiations in which Thrifty PayLess
was assisted by its financial advisor, Goldman Sachs, and its counsel,
Irell & Manella LLP.
. The terms and conditions of the GEI/Kmart Stockholder Agreements,
pursuant to which Thrifty PayLess' two largest stockholders, GEI and
Kmart, agreed to vote their respective shares of Thrifty PayLess Common
Stock in favor of the adoption of the Merger Agreement, thereby
significantly enhancing the likelihood of the consummation of the Merger.
. The financial analyses presented by Goldman Sachs, as well as the written
opinion of Goldman Sachs to the effect that, based upon and subject to
various considerations set forth in such opinion, as of October 13, 1996,
the Exchange Ratio pursuant to the Merger Agreement is fair to the
holders of Thrifty PayLess Common Stock. See "--Opinion of Goldman
Sachs."
. The absence of any overlap between the geographic markets of Thrifty
PayLess and Rite Aid, as a result of which the Merger is less likely to
be impeded by antitrust issues than would be the case if there were
significant geographic overlap.
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. The advantages to Thrifty PayLess stockholders, who have not received any
dividends on their shares of Thrifty PayLess Common Stock during the last
two fiscal years, of receiving cash dividends at Rite Aid's historical
annual rate of $0.74 per share. In this connection, the Thrifty PayLess
Board of Directors considered that there could be no assurance as to the
timing or amount of any future dividends by Rite Aid.
. The fact that the Merger is conditioned upon the receipt of an opinion of
counsel that the Merger will be treated for federal income tax purposes
as a reorganization within the meaning of Section 368(a) of the Code and
that no gain or loss will be recognized by the stockholders of Thrifty
PayLess upon their exchange of Thrifty PayLess Common Stock for Rite Aid
Common Stock under Section 354 of the Code (except with respect to any
cash received in lieu of fractional shares).
. Various risks inherent in the Merger and the transactions contemplated
thereby, including the following: (i) potential difficulties that could
arise in connection with the integration of the operations of Rite Aid
and Thrifty PayLess, particularly in light of the geographic separation
of the two chains, Rite Aid's plans to change the name of all Thrifty and
PayLess drug stores to Rite Aid, the generally larger size of Thrifty
PayLess drug stores and the generally greater mix of non-pharmacy
merchandise at Thrifty PayLess drug stores; (ii) substantial expenses and
charges against Rite Aid's earnings that are expected to arise in
connection with the Merger and the integration of the two chains; (iii)
the fact that the Merger is to be accounted for as a purchase, requiring
amortization of goodwill and other intangible assets; and (iv) the
possibility that the market price of Rite Aid Common Stock may be
adversely affected by the Merger. The Thrifty PayLess Board determined
that these risks were substantially outweighed by the potential
advantages of the Merger.
The foregoing discussion of the information and factors considered by the
Thrifty PayLess Board is not intended to be exhaustive, but includes all
material factors considered by the Board. In reaching its determination to
approve the Merger Agreement and the transactions contemplated thereby, the
Thrifty PayLess Board did not assign any relative or specific weights to the
various factors considered by it nor did it specifically characterize any
factor as positive or negative (except as described above), and individual
directors may have given different weights to different factors and may have
viewed certain factors more positively or negatively than others.
FOR THE REASONS DESCRIBED ABOVE, THE THRIFTY PAYLESS BOARD UNANIMOUSLY
RECOMMENDS THAT THE HOLDERS OF THRIFTY PAYLESS COMMON STOCK VOTE "FOR"
APPROVAL OF THE MERGER AGREEMENT.
OPINION OF GOLDMAN SACHS
On October 13, 1996, Goldman Sachs delivered its written opinion to the
Thrifty PayLess Board that, as of the date of such opinion, the Exchange Ratio
pursuant to the Merger Agreement is fair to the holders of Thrifty PayLess
Common Stock.
THE FULL TEXT OF THE WRITTEN OPINION OF GOLDMAN SACHS, DATED OCTOBER 13,
1996, WHICH SETS FORTH ASSUMPTIONS MADE, MATTERS CONSIDERED AND LIMITATIONS ON
THE REVIEW UNDERTAKEN IN CONNECTION WITH THE OPINION, IS ATTACHED HERETO AS
ANNEX C TO THIS JOINT PROXY STATEMENT/PROSPECTUS AND IS INCORPORATED HEREIN BY
REFERENCE. STOCKHOLDERS OF THRIFTY PAYLESS ARE URGED TO, AND SHOULD, READ SUCH
OPINION IN ITS ENTIRETY.
In connection with its opinion, Goldman Sachs reviewed, among other things,
(i) the Merger Agreement; (ii) Thrifty PayLess' Registration Statement on Form
S-1 dated April 15, 1996; (iii) audited financial statements of Thrifty
PayLess for the three fiscal years ended on October 1, 1995; (iv) Annual
Reports to Stockholders and Annual Reports on Form 10-K of Rite Aid for the
five fiscal years ended March 2, 1996; (v) certain interim reports to
stockholders and Quarterly Reports on Form 10-Q of Thrifty PayLess and Rite
Aid; (vi) certain other communications from Thrifty PayLess and Rite Aid to
their respective stockholders; and (vii) certain internal financial analyses
and forecasts for Thrifty PayLess and Rite Aid prepared by their respective
managements. Goldman Sachs also held discussions with members of the senior
management of Thrifty PayLess and Rite Aid regarding the past and current
business operations, financial condition and future prospects of their
respective
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companies and with respect to the strategic and operational benefits projected
to be derived from the Merger, including certain cost savings and operational
synergies expected to be realized. In addition, Goldman Sachs reviewed the
reported price and trading activity for the Thrifty PayLess Common Stock and
Rite Aid Common Stock, compared certain financial and stock market information
for Thrifty PayLess and Rite Aid with similar information for certain other
companies the securities of which are publicly traded, reviewed the financial
terms of certain recent business combinations in the drug store industry
specifically and in other industries generally and performed such other
studies and analyses as it considered appropriate.
Goldman Sachs relied without independent verification upon the accuracy and
completeness of all of the financial and other information reviewed by it for
purposes of its opinion. In addition, Goldman Sachs has not made an
independent evaluation or appraisal of the assets and liabilities of Thrifty
PayLess or Rite Aid or any of their subsidiaries and Goldman Sachs has not
been furnished with any such evaluation or appraisal.
The following is a summary of certain of the financial analyses used by
Goldman Sachs in connection with providing its written opinion to Thrifty
PayLess' Board of Directors on October 13, 1996.
Selected Companies Analysis. Goldman Sachs reviewed and compared certain
financial information relating to Thrifty PayLess and Rite Aid to
corresponding financial information, ratios and public market multiples for
six publicly traded corporations, including Rite Aid: Arbor Drugs, Inc.,
Eckerd Corp., Longs Drug Stores Corp., Revco D.S., Inc., Rite Aid and Walgreen
Co. (the "Selected Companies"). Goldman Sachs calculated and compared various
financial multiples and ratios. The multiples of Thrifty PayLess and Rite Aid
were calculated using a price of $18.38 per share of Thrifty PayLess Common
Stock and $35.63 per share of Rite Aid Common Stock, the closing price of such
shares on October 10, 1996, and the multiples of the Selected Companies were
calculated using closing market prices for such companies on October 10, 1996.
Except as set forth below, the multiples and ratios for Thrifty PayLess, Rite
Aid and each of the Selected Companies were based on the most recent publicly
available information. With respect to the Selected Companies, Goldman Sachs
considered levered market capitalization (i.e., market value of common equity
plus estimated market value of debt and preferred stock less cash) as a
multiple of the latest twelve months ("LTM") EBITDAL, as a multiple of
estimated calendar year 1996 EBITDAL (based on Goldman Sachs' research
estimates as of October 6, 1996) and as a multiple of LTM EBIT. Goldman Sachs'
analyses of the Selected Companies indicated levered multiples of LTM EBITDAL,
which ranged from a low of 5.7x to a high of 12.5x, with a mean of 8.8x and a
median of 8.6x, estimated calendar year 1996 EBITDAL, which ranged from a low
of 5.4x to a high of 11.2x, with a mean of 8.2x and a median of 8.0x, and LTM
EBIT, which ranged from a low of 8.6x to a high of 15.6x, with a mean of 12.7x
and a median of 12.6x, compared to levered multiples of 8.0x, 7.4x and 13.8x,
respectively, for Thrifty PayLess, and levered multiples of 8.9x, 8.1x and
12.7x, respectively, for Rite Aid. Goldman Sachs also considered for the
Selected Companies LTM and estimated calendar year 1996 and 1997
price/earnings ratios (based on Institutional Broker Estimate System ("IBES")
estimates as of October 6, 1996), which for the Selected Companies ranged from
a low of 15.2x to a high of 25.4x, with a mean of 20.4x and a median of 20.9x,
for LTM, a low of 14.6x to a high of 23.1x, with a mean of 18.9x and a median
of 18.9x, for estimated calendar year 1996, and from a low of 13.5x to a high
of 20.6x, with a mean of 16.7x and a median of 16.1x, for estimated calendar
year 1997, compared to 18.3x, 16.6x and 14.8x, respectively, for Rite Aid, and
estimated calendar year 1996 and 1997 of 21.4x and 16.0x, respectively, for
Thrifty PayLess (LTM information is not meaningful for Thrifty PayLess); LTM
EBITDAL margins for the Selected Companies, LTM EBIT margins and LTM net
income margins, which ranged from a low of 5.2% to a high of 8.7%, with a mean
of 6.7% and a median of 6.6%, a low of 3.5% to a high of 6.0%, with a mean of
4.6% and a median of 4.6%, and a low of 1.7% to a high of 3.2%, with a mean of
2.5% and a median of 2.6%, respectively, compared to LTM, EBITDAL and EBIT
margins of 5.2%, and 3.0%, respectively, for Thrifty PayLess (LTM net income
margin information is not meaningful for Thrifty PayLess), and 8.7%, 6.0% and
3.0%, respectively, for Rite Aid. IBES is a data service which monitors and
publishes a compilation of earnings estimates produced by selected research
analysts on companies of interest to investors.
Selected Transactions Analysis. Goldman Sachs analyzed certain information
relating to 18 selected transactions in the drug store industry since April
1988 including three pending transactions and one transaction which was
terminated (the "Selected Transactions"). The comparisons to Thrifty PayLess
referred to below
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assume that holders of Thrifty PayLess Common Stock receive in the Merger
$23.00 in Rite Aid Common Stock for each share of Thrifty PayLess Common Stock
(which is lower than the $23.32 to be received by holders of Thrifty PayLess
Common Stock based on the closing price per share of Rite Aid Common Stock of
$35.875 on October 11, 1996). Such analysis indicated that for the Selected
Transactions levered consideration as a multiple of (i) LTM sales ranged from
a low of 0.27x to a high of 1.00x, with a mean of 0.45x and a median of 0.38x,
as compared to 0.48x for Thrifty PayLess (based on Thrifty PayLess' LTM as of
June 30, 1996) and (ii) LTM EBIT ranged from a low of 6.6x to a high of
167.5x, with a mean of 12.9x and a median of 13.0x, as compared to 16.0x for
Thrifty PayLess (based on Thrifty PayLess' LTM as of June 30, 1996). Such
analysis also indicated that for the Selected Transactions aggregate
consideration as a multiple of LTM EPS/net income ranged from a low of 13.1x
to a high of 44.6x, with a mean of 24.9x and a median of 24.5x, as compared to
35.9x for Thrifty PayLess (based on estimated calendar year EPS for 1996). For
purposes of the Selected Transactions Analysis the mean and median were
calculated excluding the high and low transactions.
Pro Forma Accretion/Dilution Analysis. Goldman Sachs analyzed the
accretive/dilutive impact of the Merger, both excluding synergies and on a pro
forma basis for synergies, with respect to Rite Aid's projected 1998 and 1999
EPS. This analysis was based on a number of assumptions, including, among
other things, the cost of integration, estimated amounts and timing of the
synergies and the projected financial performance of Rite Aid and Thrifty
PayLess. From the standpoint of stockholders of Thrifty PayLess, the analyses
indicated that (i) projected earnings for 1998 would increase from $1.19 per
share, on a standalone basis, to $1.29 per share, after giving effect to the
Merger, assuming no synergies are realized, and to $1.50 per share, after
giving effect to the Merger, assuming $65 million in pre-tax profit
improvements are realized and (ii) projected dividends paid for 1998 (based on
the calendarized dividend of Rite Aid's most recent quarter) would increase
from $0.00 per share, on a standalone basis, to $0.48 per share, after giving
effect to the Merger.
Contribution Analysis. Goldman Sachs reviewed certain historical and
estimated future operating and financial information (including, among other
things, sales, EBITDAL, EBIT, net income and number of stores) for Thrifty
PayLess and Rite Aid (based on their respective managements' estimates) and
the pro forma combined entity resulting from the Merger (such estimates
compare Thrifty PayLess' fiscal years ending in September with Rite Aid's
fiscal years ending the following February). The analysis indicated that (i)
the Thrifty PayLess stockholders would receive 32.0% of the outstanding common
equity of the combined entity, (ii) using a price of $18.38 per share of
Thrifty PayLess Common Stock and $35.875 per share of Rite Aid Common Stock,
the closing price of such shares on October 11, 1996, the Thrifty PayLess
stockholders would contribute 26.6% of the equity market capitalization and
31.5% of the levered market capitalization of the combined entity, and (iii)
assuming that a price per share of Thrifty PayLess Common Stock was $22.00,
$23.00 and $24.00, the Thrifty PayLess stockholders would contribute 30.3%,
31.3% and 32.2%, respectively, of the equity market capitalization and 33.8%,
34.4% and 35.0%, respectively, of the levered market capitalization. Goldman
Sachs analyzed the relative contribution of Thrifty PayLess and Rite Aid to
the combined entity based on actual 1996 and estimated year 1997. This
analysis indicated that (a) in 1996 Thrifty PayLess would contribute 46.1% to
combined sales, 30.7% to combined EBITDAL, 25.6% to combined EBIT and a
negative 16.8% to combined net income and (b) in estimated calendar year 1997
Thrifty PayLess would contribute 44.5% to combined sales, 32.7% to combined
EBITDAL, 31.4% to combined EBIT and 14.2% to combined net income. This
analysis indicated that Thrifty PayLess would contribute 27.3% of the number
of stores (based on Thrifty PayLess' number of stores as of June 1996 and Rite
Aid's number of stores as of August 1996) to the combined entity.
Analysis at Various Prices. Goldman Sachs prepared a financial analysis of
the Merger and calculated various financial multiples assuming (i) that
holders of Thrifty PayLess Common Stock receive in the Merger $18.00, $19.00,
$20.00, $21.00, $22.00, $23.00, $24.00, $25.00 and $26.00 in Rite Aid Common
Stock for each share of Thrifty PayLess Common Stock and (ii) the following
corresponding amounts of enterprise value (equity consideration (assuming 59.5
million shares of Thrifty PayLess Common Stock outstanding), plus debt and
preferred stock outstanding minus cash and cash equivalents): $1,950.1
million, $2,012.0 million, $2,073.9 million, $2,135.9 million, $2,197.8
million, $2,259.7 million, $2,321.6 million, $2,383.6 million and $2,445.5
million. Since the value of the Rite Aid Common Stock to be received in the
Merger for each share of Thrifty PayLess Common Stock will fluctuate with
increases or decreases in the market value of the Rite Aid Common
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Stock, Goldman Sachs performed this analysis assuming the foregoing range.
Goldman Sachs calculated multiples of the aggregate enterprise value to: (i)
sales, (ii) EBITDAL, (iii) EBIT, and (iv) primary EPS. This analysis indicated
that the multiples of LTM sales (based on Thrifty PayLess' LTM as of June
1996) ranged from a low of 0.41x to a high of 0.52x; estimated 1996 sales
ranged from a low of 0.41x to a high of 0.51x; and estimated 1997 sales ranged
from a low of 0.38x to a high of 0.48x. This analysis indicated that the
multiples of (A) LTM EBITDAL (based on Thrifty PayLess' LTM as of June 1996)
ranged from a low of 8.0x to a high of 10.0x; (B) estimated 1996 EBITDAL
ranged from a low of 7.6x to a high of 9.5x; and (C) estimated 1997 EBITDAL
ranged from a low of 6.8x to a high of 8.6x. This analysis indicated that the
multiples of (1) LTM EBIT (based on Thrifty PayLess' LTM as of June 1996)
ranged from a low of 13.8x to a high of 17.3x; (2) estimated 1996 EBIT ranged
from a low of 11.6x to a high of 14.6x; and (3) estimated 1997 EBIT ranged
from a low of 10.1x to a high of 12.6x. This analysis indicated that the
multiples of (x) estimated 1996 EPS ranged from a low of 28.1x to a high of
40.6x and (y) estimated 1997 EPS ranged from a low of 16.4x to a high of
23.6x. This analysis also indicated that the premium over LTM book value
(based on Thrifty PayLess' LTM as of June 1996) ranged from a low of 189.7% to
a high of 321.8%.
Historical Stock Trading Analysis. Goldman Sachs reviewed the historical
trading prices and volumes for the Thrifty PayLess Common Stock and the Rite
Aid Common Stock. Such analyses indicated that the price per share of Thrifty
PayLess Common Stock to be paid pursuant to the Merger Agreement represented a
premium of 26.9% based on the closing price per share of Thrifty PayLess
Common Stock and Rite Aid Common Stock on October 11, 1996 of $18.375 and
$35.875, respectively. In addition, Goldman Sachs reviewed (a) the weighted
average trading price for Thrifty PayLess Common Stock for the latest three
months and since April 16, 1996 (the date of the Thrifty PayLess IPO) and (b)
the weighted average trading price for Rite Aid Common Stock for the latest
three months, the latest six months and the LTM. The weighted average trading
price for Thrifty PayLess Common Stock was $16.24 and $15.00, respectively,
and the weighted average trading price for Rite Aid Common Stock was $32.97,
$30.93, and $31.33, respectively.
The preparation of a fairness opinion is a complex process and is not
necessarily susceptible to partial analysis or summary description. Selecting
portions of the analyses or of the summary set forth above, without
considering the analyses as a whole, could create an incomplete view of the
processes underlying Goldman Sachs' opinion. In arriving at its fairness
determination, Goldman Sachs considered the results of all such analyses. No
company or transaction used in the above analyses as a comparison is directly
comparable to Thrifty PayLess or Rite Aid or the contemplated transaction. The
analyses were prepared solely for purposes of Goldman Sachs' providing its
opinion to the Thrifty PayLess Board as to the fairness to the holders of
Thrifty PayLess Common Stock of the Exchange Ratio pursuant to the Merger
Agreement and do not purport to be appraisals or necessarily reflect the
prices at which businesses or securities actually may be sold. Analyses based
upon forecasts of future results are not necessarily indicative of actual
future results, which may be significantly more or less favorable than
suggested by such analyses. Because such analyses are inherently subject to
uncertainty, being based upon numerous factors or events beyond the control of
the parties or their respective advisors, none of Thrifty PayLess, Rite Aid,
Goldman Sachs or any other person assumes responsibility if future results are
materially different from those forecast.
As described above, Goldman Sachs' opinion to the Thrifty PayLess Board was
one of many factors taken into consideration by the Thrifty PayLess Board in
making its determination to approve the Merger Agreement. The foregoing
summary does not purport to be a complete description of the analysis
performed by Goldman Sachs and is qualified by reference to the written
opinion of Goldman Sachs set forth in Annex C hereto.
Goldman Sachs, as part of its investment banking business, is continually
engaged in the valuation of businesses and their securities in connection with
mergers and acquisitions, negotiated underwritings, competitive biddings,
secondary distributions of listed and unlisted securities, private placements
and valuations for estate, corporate and other purposes. Thrifty PayLess
selected Goldman Sachs as its financial advisor because it is a nationally
recognized investment banking firm that has substantial experience in
transactions similar to the Merger. Goldman Sachs is familiar with Thrifty
PayLess having provided certain investment banking services to Thrifty PayLess
from time to time, including having acted as the co-managing underwriter of
the Thrifty PayLess
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IPO in April 1996 and having acted as its financial advisor in connection
with, and having participated in certain of the negotiations leading to, the
Merger Agreement. Goldman Sachs has also provided certain investment banking
services to Rite Aid from time to time, including participation in its
commercial paper program, and may provide services to Rite Aid in the future.
Goldman Sachs provides a full range of financial, advisory and brokerage
services and in the course of its normal trading activities may from time to
time effect transactions and hold positions in the securities or options on
securities of Thrifty PayLess and/or Rite Aid for its own account and for the
account of customers. As of October 13, 1996 (the date of its opinion) Goldman
Sachs had a short position of 102,852 shares of Rite Aid Common Stock, a long
position of $7,159,000 of 0% convertible bonds of Rite Aid, a long position of
$15,000,000 of commercial paper of Rite Aid, and a long position of
$20,000,000 of the bank debt of Thrifty PayLess.
Pursuant to a letter agreement dated October 11, 1996 (the "Goldman Sachs
Engagement Letter"), Thrifty PayLess engaged Goldman Sachs, to act as its
financial advisor in connection with a proposed strategic transaction between
Thrifty PayLess and Rite Aid. Pursuant to the terms of the Goldman Sachs
Engagement Letter, Thrifty PayLess has agreed to pay Goldman Sachs upon the
purchase of 50% or more of the outstanding Thrifty PayLess Common Stock in one
or a series of transactions, including, but not limited to, private or open
market purchases of stock, a tender offer, a merger or an acquisition by Rite
Aid of the Thrifty PayLess Common Stock, a transaction fee of $5.0 million.
The transaction fee will be paid in cash upon consummation of the Merger.
Thrifty PayLess has agreed to reimburse Goldman Sachs for reasonable out-of-
pocket expenses, including fees and disbursements for Goldman Sachs'
attorneys, plus any sales, use or similar taxes (including additions to such
taxes, if any) arising in connection with such matters referred to in the
Goldman Sachs Engagement Letter. Thrifty PayLess has agreed to indemnify
Goldman Sachs against certain liabilities, including certain liabilities under
the federal securities laws.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
Following is a summary of material federal income tax consequences of the
Merger based on current law. Neither Rite Aid nor Thrifty PayLess has
requested or will request any ruling from the IRS as to the United States
federal income tax consequences of the Merger. Future legislative, judicial or
administrative changes or interpretations, which may be retroactive, could
alter or modify the statements set forth herein. This summary may not apply to
certain classes of taxpayers, including, without limitation, insurance
companies, tax-exempt organizations, financial institutions, dealers in
securities, nonresident aliens, foreign corporations, persons who acquired
shares of Thrifty PayLess Common Stock pursuant to the exercise of employee
stock options or rights or otherwise as compensation and persons who hold
shares of Thrifty PayLess Common Stock in a hedging transaction or as part of
a straddle or conversion transaction. Also, the summary does not address
state, local or foreign tax consequences of the Merger. Consequently, each
holder of Thrifty PayLess Common Stock (a "Holder") should consult such
Holder's own tax advisor as to the specific tax consequences of the Merger to
such Holder.
The Merger is intended to be treated as a "reorganization" within the
meaning of Section 368(a) of the Code. Accordingly, for federal income tax
purposes, no income, gain or loss will be recognized by either Rite Aid or
Thrifty PayLess as a result of the Merger and Holders who exchange shares of
Thrifty PayLess Common Stock for shares of Rite Aid Common Stock pursuant to
the Merger will be treated as follows: (i) no income, gain or loss will be
recognized by a Holder with respect to the receipt of Rite Aid Common Stock;
(ii) the aggregate adjusted tax basis of shares of Rite Aid Common Stock
(including a fractional share interest in Rite Aid Common Stock deemed
received and redeemed as described below) received by a Holder will be the
same as the aggregate adjusted tax basis of the shares of Thrifty PayLess
Common Stock exchanged therefor; (iii) the holding period of shares of Rite
Aid Common Stock (including the holding period of a fractional share interest
in Rite Aid Common Stock deemed received and redeemed as described in (iv)
below) received by a Holder will include the holding period of the Thrifty
PayLess Common Stock exchanged therefor, provided that such shares of Thrifty
PayLess Common Stock are held as capital assets at the Effective Time; and
(iv) a Holder of Thrifty PayLess Common Stock who receives cash in lieu of a
fractional share interest in Rite Aid Common Stock will
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be treated as having received such fractional share interest and then as
having received the cash in redemption of such fractional share interest. In
general, a Holder of Dissenting Thrifty PayLess Shares receiving solely cash
pursuant to the exercise of appraisal rights will recognize gain or loss equal
to the difference, if any, between the cash received and the dissenting
Holder's tax basis in the Thrifty PayLess Common Stock.
It is a condition to the consummation of the Merger that Thrifty PayLess and
Rite Aid receive an opinion of Jones Day, counsel to Rite Aid, or Irell &
Manella LLP, counsel to Thrifty PayLess, to the effect that the Merger will be
treated for federal income tax purposes as a reorganization within the meaning
of Section 368(a) of the Code and that Thrifty PayLess and Rite Aid will each
be a party to that reorganization within the meaning of Section 368(b) of the
Code and that no gain or loss will be recognized by the stockholders of
Thrifty PayLess upon their exchange of Thrifty PayLess Common Stock for Rite
Aid Common Stock under Section 354 of the Code (except to the extent such
stockholder receives cash in lieu of fractional shares). The opinion of Jones
Day or Irell & Manella LLP referred to in this paragraph will be based upon
certain facts, assumptions and representations and/or covenants, including
those contained in certificates of officers of Rite Aid, Thrifty PayLess and,
possibly, others. If such opinion is not received, the Merger will not be
consummated unless the condition requiring their receipt is waived. Rite Aid
and Thrifty PayLess currently anticipate that such opinion will be delivered
and that neither Rite Aid nor Thrifty PayLess will waive the conditions
requiring receipt of such opinions. Such opinions will not be binding upon the
IRS and no assurance can be given that the IRS will not take a contrary
position.
INTERESTS OF CERTAIN PERSONS AND EMPLOYEE MATTERS
In considering the recommendation of the Thrifty PayLess Board with respect
to the Merger, stockholders of Thrifty PayLess should be aware that certain
members of the management of Thrifty PayLess and of the Thrifty PayLess Board
have certain interests in the Merger that are in addition to the interests of
stockholders of Thrifty PayLess generally. The Thrifty PayLess Board was aware
of these interests and considered them, among other matters, in approving the
Merger Agreement and the transactions contemplated thereby.
LGA Investment Banking Fee. Pursuant to the Management Services Agreement
between TPI and LGA (the "Management Services Agreement"), LGA is entitled to
receive reasonable and customary fees and reasonable expenses from time to
time for providing financial advisory and investment banking services to
Thrifty PayLess in connection with major financial transactions (the
"Investment Services"). Upon consummation of the Merger, LGA will be paid a
fee of $12.5 million, plus reasonable expenses, in consideration of Investment
Services provided by it in connection with the Merger. Leonard I. Green,
Jonathan D. Sokoloff and Jennifer Holden Dunbar (or entities controlled by
them) are general partners of LGA as well as members of the Thrifty PayLess
Board. Pursuant to its terms, the Management Services Agreement will terminate
upon the effectiveness of the Merger.
Directorship. Pursuant to the Merger Agreement, if requested by Thrifty
PayLess prior to the Effective Time, Rite Aid will take such action as may be
required so that Leonard I. Green, Thrifty PayLess' Chairman of the Board, if
he is then ready and willing so to serve, will be elected as of the Effective
Time as a member of the Rite Aid Board in the class of members whose term
expires at Rite Aid's 1999 annual meeting of stockholders.
Severance Arrangements. Pursuant to the Merger Agreement, Rite Aid agreed to
extend certain severance arrangements to employees of Thrifty PayLess and its
subsidiaries (the "Severance Plan"). As of the Effective Time, the Severance
Plan will apply to employees of Thrifty PayLess and its subsidiaries specified
below who are terminated at the Effective Time or who continue to be employed
following the Effective Time. Payments will be made to each eligible employee
whose employment with Rite Aid or any of its subsidiaries is terminated by
Rite Aid or such subsidiary without cause (as defined) or who terminates such
employment for good reason (as defined), in either case (i) without being
offered a position with Rite Aid or any of its subsidiaries at substantially
comparable responsibility or compensation and (ii) within 24 months of the
Effective Time. The Severance Plan will provide for unmitigated severance
payments, payable in a lump sum payment. The categories of executives
specified below (collectively, the "Covered Executives") will be entitled to
severance benefits
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equal to the applicable multiple specified below, subject to certain
limitations under the Code, multiplied by their total salary plus "On
Plan/Target" bonus for Thrifty PayLess' 1996 fiscal year:
<TABLE>
<CAPTION>
OFFICE OR CATEGORY MULTIPLE
------------------ --------
<S> <C>
Chief Executive Officer.......................................... 3.0
Executive Vice President and Chief Financial Officer............. 2.0
Group A.......................................................... 1.5
Group B.......................................................... 1.0
</TABLE>
For purposes of the foregoing, (i) "Group A" means current or previously
board-approved Senior Vice Presidents as of October 13, 1996, as well as three
additional officers specified in the Merger Agreement and (ii) "Group B" means
all Vice Presidents as of October 13, 1996. In addition, a third group of
employees consisting of group vice presidents and certain department heads
will be entitled to certain severance benefits. All other Thrifty PayLess
employees working at Thrifty PayLess' headquarters in Wilsonville, Oregon who
will be displaced as a result of the Merger will be entitled to the severance
benefits equal to six months' pay if their tenure is more than two years or
six weeks' pay if their tenure is less than two years. Eligible employees
under the Severance Plan will also be entitled to (i) the continuation of
health insurance for the severance period or until covered by a new employer's
plan, whichever occurs first and (ii) outplacement services to be provided by
Rite Aid. The Chief Executive Officer and Chief Financial Officer of Thrifty
PayLess will also be entitled to retain the cars provided to them by Thrifty
PayLess without payment to either Rite Aid or Thrifty PayLess.
As of the Effective Time, it is anticipated that the foregoing arrangements
will supersede existing severance arrangements (to the extent less favorable
to the employee than those set forth above) with certain executive officers of
Thrifty PayLess, consisting of Gordon D. Barker, David R. Jessick, Barbara R.
Crane and Willard E. Wilson, which arrangements generally provide for
severance benefits upon certain termination events consisting of one year's
salary and on-plan bonus, subject to mitigation by the employee (plus, in the
case of Messrs. Barker and Jessick, an additional one year's salary and on-
plan bonus if termination occurs after certain change-in-control events, as
defined therein).
Pursuant to the terms of a severance agreement entered into between Thrifty
PayLess and Marty W. Smith, the Chief Executive Officer of Bi-Mart, which is
expected to remain in effect following the Merger, in the event that Mr.
Smith's employment with Bi-Mart is terminated other than for cause (as
defined), Mr. Smith will be paid each month, for up to 12 months, his then-
current monthly base salary as severance. If any such termination occurs
within a two-year period following a change of control (as defined), the
period during which such payments are required to be made is extended from 12
to 24 months. The severance benefits will be reduced to the extent of
compensation received from alternative sources of employment (and the employee
is required to seek such employment).
In addition to the Severance Plan, bonuses will be payable to Thrifty
PayLess executive officers under the Thrifty PayLess Executive Incentive Plan
(the "Cash Bonus Plan"), provided that certain performance targets are met.
For these purposes, the EBITDA targets for cash bonuses for the portion of
Thrifty PayLess' current fiscal year ending September 28, 1997 ("FY 1997")
will be (i) based upon the Thrifty PayLess Board approved Fiscal 1997 budget
of EBITDA of $285.3 million, (ii) prorated for the period of time during FY
1997 between September 29, 1996 and the Effective Time, (iii) calculated and
paid by Rite Aid based on a percentage of salary paid during such period,
where such percentages are consistent with the Cash Bonus Plan, (iv) paid
within 90 calendar days after the Effective Time or sooner if the employee
entitled thereto is terminated, and (v) payable by Rite Aid (or, if
applicable, a subsidiary thereof) to each executive eligible therefor whose
employment with Rite Aid or any of its subsidiaries has continued as of the
payment date under the Cash Bonus Plan or who terminated employment after the
Effective Time and prior to such payment date with the right to a severance
payment under the Severance Plan.
Treatment of Stock Options. Pursuant to the Merger Agreement, each
outstanding Thrifty PayLess Stock Option, including those issued to officers
and directors of Thrifty PayLess, will be converted automatically into
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a right to receive an amount of cash equal to (i) 65% of the Rite Aid Share
Price, minus the exercise price per share under the applicable Thrifty PayLess
Stock Option, times (ii) the number of shares of Thrifty PayLess Common Stock
purchasable upon exercise of such Thrifty PayLess Stock Option. As of the
Thrifty PayLess Record Date, the directors and executive officers of Thrifty
PayLess held options to acquire 1,584,040 shares of Thrifty PayLess Common
Stock with exercise prices ranging between $1.67 and $14.17 per share.
A substantial number of such options were granted under the Thrifty PayLess
1994 Management Equity Plan (the "TP Equity Plan"), which became effective
October 19, 1994. The TP Equity Plan provides for the sale to key employees of
Thrifty PayLess of shares of Thrifty PayLess Common Stock and for the grant to
such key employees of options to purchase such shares, with a purchase price
or exercise price, as the case may be, based on the market price of such stock
on the date of sale or grant. A maximum of 3,600,000 shares of A Common Stock
and 7,200,000 shares of B Common Stock are available for issuance under the TP
Equity Plan. The TP Equity Plan is administered by the Compensation Committee
of the Thrifty PayLess Board and has a term of ten years.
Purchases of shares of Thrifty PayLess Common Stock under such plan are made
pursuant to a Management Subscription and Stockholders Agreement, which
provides for payment to be made by means of a combination of cash, recourse
promissory notes and non-recourse promissory notes as determined by Thrifty
PayLess. The promissory notes are secured by a pledge of all of the shares so
purchased by the individual, are due five years from the date of issuance and
bear interest at the rate of 8% per annum. They also contain provisions
requiring principal and interest payments out of bonuses received by the
individual.
Grants of stock options under the TP Equity Plan are made pursuant to a
Stock Option and Stockholders Agreement, which generally provides that the
options vest in installments of 20% per annum over a five-year period from the
date of grant (although the Thrifty PayLess Compensation Committee may set
different vesting periods). Options granted under the TP Equity Plan may be
designated as incentive stock options ("ISOs") within the meaning of Section
422 of the Code or as options that do not so qualify ("NSOs"). No ISOs may be
granted to any person who owns more than 10% of the total combined voting
power of all classes of Thrifty PayLess' capital stock, unless the exercise
price thereof is at least 110% of the fair market value of the underlying
common stock as of the grant date and such option has a term of not more than
five years. In addition, no ISOs may be issued with an exercise price of less
than 100% of the fair market value of the underlying common stock as of the
grant date or with a term of more than ten years.
Options granted to directors of Thrifty PayLess were issued pursuant to
Thrifty PayLess' Non-Employee Director Stock Option Plan, which became
effective upon consummation of the Thrifty PayLess IPO. Pursuant to such plan,
(i) effective upon consummation of the Thrifty PayLess IPO, each of Richard J.
Lynch, Jr. and Frank G. Filicella received options to acquire 30,000 shares of
B Common Stock, subject to vesting, which options have an exercise price of
$14.00 per share, (ii) on the date of each of Thrifty PayLess' annual
stockholder meetings after January 1, 1997 at which non-management directors
are elected to the Thrifty PayLess Board, each such non-management director
will receive options to acquire 10,000 shares of B Common Stock, subject to
vesting, which options will have an exercise price equal to the market price
of the B Common Stock (as defined in such plan) on the date such options are
granted, and (iii) any non-management director who is first elected or
appointed to the Thrifty PayLess Board after January 1, 1997 other than at an
annual meeting of stockholders will, upon such election or appointment,
receive options to acquire 10,000 shares of B Common Stock, subject to
vesting, which options will have an exercise price equal to the market price
of the B Common Stock on the date such options are granted. Vesting of such
options accelerates upon a change of control of Thrifty PayLess (as defined in
such plan).
The Merger Agreement provides that, as of the Effective Time, the TP Equity
Plan, the Thrifty PayLess Non-Employee Director Stock Option Plan and all
other management equity plans of Thrifty PayLess (the "Thrifty PayLess Option
Plans") will terminate and the provisions in any other plan, program,
agreement or arrangement providing for the issuance or grant of any other
interest in respect of the capital stock of Thrifty
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PayLess or any of its subsidiaries will be deleted (except as otherwise
described below under "--Bi-Mart Options"). Furthermore, Thrifty PayLess will
take all actions necessary to ensure that, following the Effective Time, no
holder of Thrifty PayLess Stock Options or any participant in the Thrifty
PayLess Option Plans or any other plans, programs, agreements or arrangements
will have any right thereunder to acquire any equity securities of Thrifty
PayLess or any subsidiary thereof (except as otherwise described below under
"--Bi-Mart Options").
Thrifty PayLess Deferred Compensation Plan for Non-management Directors. In
accordance with the Thrifty PayLess Deferred Compensation Plan, certain
members of the Thrifty PayLess Board, consisting of Leonard I. Green, Jonathan
D. Sokoloff, Jennifer Holden Dunbar and Richard J. Lynch, Jr., have previously
elected to defer their director cash compensation. In accordance with the
terms of such plan, upon their termination as directors of Thrifty PayLess at
the Effective Time, such directors will be entitled to cash payments equal to
the number of units allotted to them under such plan multiplied by the average
closing sales price of Thrifty PayLess Common Stock on the NYSE for the ten-
day period immediately prior to the date of the Effective Time.
Bi-Mart Options. Pursuant to certain existing arrangements with various
officers of Bi-Mart, such officers have received or, prior to the consummation
of the Merger may receive, options to acquire up to an aggregate number of
shares of Bi-Mart not to exceed 20% of the issued and outstanding capital
stock of Bi-Mart. Such options will remain outstanding and in full force and
effect following consummation of the Merger. Rite Aid currently anticipates
that it will divest Bi-Mart following the Merger.
DIRECTORS' AND OFFICERS' INSURANCE AND INDEMNIFICATION
Pursuant to the Merger Agreement, Rite Aid agreed that at all times after
the Effective Time it will indemnify such person who is now, or has been at
any time prior to the date of the Merger Agreement, an employee, agent,
director or officer of Thrifty PayLess or of any of Thrifty PayLess'
subsidiaries, successors and assigns (individually an "Indemnified Party" and
collectively the "Indemnified Parties"), to the fullest extent required or
permitted under the Certificate of Incorporation or By-Laws of Thrifty
PayLess, or any agreement with Thrifty PayLess, in each case as in effect
immediately prior to the execution of the Merger Agreement with respect to any
claim, liability, loss, damage, judgment, fine, penalty, amount paid in
settlement or compromise, cost or expense, including reasonable fees and
expenses of legal counsel (whenever asserted or claimed) ("Indemnified
Liability"), based in whole or in part on, or arising in whole or in part out
of, any matter, state of affairs or occurrence existing or occurring at or
prior to the Effective Time whether commenced, asserted or claimed before or
after the Effective Time, including liability arising under the Securities
Act, the Exchange Act or state law. The Merger Agreement provides that Rite
Aid will maintain in effect for not less than six years after the Effective
Time the current policies of directors' and officers' liability insurance
maintained by Thrifty PayLess and its subsidiaries on the date of the Merger
Agreement (provided that Rite Aid may substitute therefor policies having at
least the same coverage, a comparably rated issuer and containing terms and
conditions which are no less advantageous to the persons currently covered by
such policies as insured) with respect to matters existing or occurring at or
prior to the Effective Time; provided, however, that if the aggregate annual
premiums for such insurance during such period exceed 200% of the per annum
rate of the aggregate premium paid by Thrifty PayLess and its subsidiaries for
such insurance on the date of Merger Agreement, then Rite Aid will provide the
maximum coverage that will then be available at an annual premium equal to
200% of such rate. The Merger Agreement provides that Rite Aid will pay all
expenses (including fees and expenses of counsel) that may be incurred by any
Indemnified Party in successfully enforcing the indemnity or other obligations
described under this paragraph. The rights described under this paragraph are
in addition to rights that an Indemnified Party may have under the Certificate
of Incorporation, By-laws, other similar organization documents of Thrifty
PayLess or any of its subsidiaries or the DGCL. The Merger Agreement also
provides that the rights under this paragraph shall survive consummation of
the Merger and are expressly intended to benefit each Indemnified Party.
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CERTAIN PROJECTED FINANCIAL INFORMATION
In the course of the discussions giving rise to the Merger Agreement (see
"--Background of the Merger"), representatives of Thrifty PayLess furnished
representatives of Rite Aid certain business and financial information that
was not publicly available, including Thrifty PayLess' budget for its fiscal
year ending September 28, 1997 ("Thrifty PayLess' 1997 Budget"). Thrifty
PayLess' 1997 Budget included certain projections for fiscal 1997 prepared
solely for Thrifty PayLess' internal purposes. None of such projected
financial information provided by Thrifty PayLess to Rite Aid was prepared for
publication or with a view to complying with the published guidelines of the
Commission regarding projections or with the AICPA Guide for Prospective
Financial Statements, and such information is being included in this Joint
Proxy Statement/Prospectus solely because it was furnished to Rite Aid in
connection with the discussions giving rise to the Merger Agreement.
The projected financial information set forth below necessarily reflects
numerous assumptions with respect to general business and economic conditions
and other matters, many of which are inherently uncertain or beyond Thrifty
PayLess' control, and does not take into account any change in ownership of
Thrifty PayLess or any changes to Thrifty PayLess' operations or capital
structure which may result from the Merger. See "--Rite Aid's Reasons for the
Merger; Recommendation of the Rite Aid Board" and "Available Information--
Certain Forward-Looking Statements and Merger Considerations." It is not
possible to predict whether the assumptions made in preparing the projected
financial information will be valid and actual results may prove to be
materially higher or lower than those contained in the projections. The
inclusion of this information should not be regarded as an indication that
Rite Aid or anyone else who received this information considered it a reliable
predictor of future events, and this information should not be relied on as
such. Neither Rite Aid nor Thrifty PayLess assumes any responsibility for the
validity, reasonableness, accuracy or completeness of the projected financial
information, and Thrifty PayLess has made no representation to Rite Aid
regarding such information. See "Available Information--Certain Forward-
Looking Statements and Merger Considerations."
Set forth below is a summary of estimated selected income statement
information provided by Thrifty PayLess to Rite Aid as described above (in
millions):
<TABLE>
<CAPTION>
ESTIMATES
FOR THE YEAR ENDING
SEPTEMBER 28, 1997
-------------------
<S> <C>
Sales................................................. $5,126.6
Total cost of sales................................... 3,752.6
Earnings before interest and taxes.................... 194.0
Interest expense...................................... 83.4
Net income............................................ 66.4
</TABLE>
The principal assumptions underlying the foregoing projections are (i) an
increase in same-store sales of 6.1% (i.e., pharmacy sales increase of 12.4%
and non-pharmacy sales increase of 2.7%), (ii) a gross margin of 26.8% (as
compared with a projected gross margin of 26.5% in fiscal 1996), (iii) the
opening of 30 new stores during the course of the fiscal year, and (iv) an
increase in pharmacy sales to 36.8% of total sales, including growth of third-
party sales to 78.1% of total pharmacy sales. Included in the projected
financial information is $385.1 million in revenues and $4.1 million in net
income from Bi-Mart, which Rite Aid intends to divest following the Merger.
See "--Rite Aid's Reasons for the Merger; Recommendation of the Rite Aid
Board."
REFINANCING OF CERTAIN THRIFTY PAYLESS INDEBTEDNESS
Pursuant to the Merger Agreement, Rite Aid agreed to refinance certain
existing debt of Thrifty PayLess. As of the Effective Time, Rite Aid intends
to refinance all of Thrifty PayLess' obligations under its secured bank
facility ($605.4 million aggregate principal amount and $104.0 million of
letters of credit outstanding at September 29, 1996). In addition, if the
Merger is consummated, Rite Aid would be obligated to offer to repurchase the
TPI Sub Debt ($195.0 million aggregate principal amount outstanding at
September 29, 1996) at 101% of the principal amount thereof. Rite Aid is
considering the possibility of commencing an offer to purchase all of the TPI
Sub Debt at a premium that is likely to substantially exceed the premium
payable under the Change
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of Control Offer, plus accrued and unpaid interest to the date of purchase.
Any such offer would be subject to various conditions, including the
consummation of the Merger. There can be no assurance that any such offer to
purchase will be made or as to the timing and terms thereof.
Rite Aid intends to refinance such indebtedness as well as other Thrifty
PayLess' indebtedness and to pay related fees and expenses of approximately
$29 million with funds from an additional $1 billion bank revolving credit
facility. As of the date hereof, the structure, terms and provisions of such
facility are being negotiated and have not yet been finalized. Subsequently,
Rite Aid plans to refinance part of its bank debt on a long term basis through
senior debt issuances.
ACCOUNTING TREATMENT
The Merger will be accounted for under the "purchase" method of accounting
in accordance with generally accepted accounting principles ("GAAP").
CERTAIN LEGAL MATTERS; REGULATORY APPROVALS
General. The business of Thrifty PayLess is subject to numerous federal,
state and local licensing and registration regulations. For instance, Thrifty
PayLess' pharmacists and pharmacy technicians are required to be licensed by
the appropriate state board of pharmacy, and Thrifty PayLess' stores and
certain of Thrifty PayLess' distribution centers are also registered with the
Federal Drug Enforcement Administration. Further, many of Thrifty PayLess'
stores sell alcoholic beverages and certain of its stores sell ammunition, and
such stores are subject to various state and local liquor and firearm
licensing requirements as a result. By virtue of these license and
registration requirements, Thrifty PayLess and/or Rite Aid will be obligated
to obtain certain governmental consents and approvals in connection with the
Merger, which Rite Aid and Thrifty PayLess are currently in the process of
seeking. There can be no assurance that any such approval or action, if
needed, would be obtained or would be obtained without substantial conditions
or that adverse consequences might not result to the business of Thrifty
PayLess or Rite Aid or that certain parts of the businesses of Thrifty PayLess
or Rite Aid might not have to be disposed of in the event that such approvals
were not obtained or any other actions were not taken. It is a condition of
the Merger that all consents, authorizations, orders, and approvals of (or
filings or registrations with) any governmental entity required in connection
with the Merger Agreement shall have been obtained or made, subject to certain
exceptions. Except as otherwise disclosed herein (including under "--
Antitrust" below), based upon its review of publicly available information
with respect to Thrifty PayLess and the review of certain information
furnished by Thrifty PayLess to Rite Aid, Rite Aid is not aware of any license
or regulatory permit that appears to be material to the business of Thrifty
PayLess and its subsidiaries, taken as a whole, that might be adversely
affected as a result of the Merger.
Antitrust. Under the HSR Act and the regulations promulgated thereunder by
the FTC, the Merger may not be consummated until notifications have been given
and certain information has been furnished to the FTC and the Antitrust
Division and the applicable waiting period has expired or been terminated. The
consummation of the Merger is conditioned upon the expiration or termination
of the applicable waiting period under the HSR Act. On October 22, 1996, Rite
Aid and Thrifty PayLess filed notifications and report forms under the HSR Act
with the FTC and the Antitrust Division.
At any time before or after the Effective Time, notwithstanding that the
waiting period under the HSR Act has expired, the FTC, the Antitrust Division
or any state could take such action under the antitrust laws of the United
States or such state, as the case may be, as it deems necessary or desirable
in the public interest, including seeking to enjoin the consummation of the
Merger or seeking divestiture of substantial assets of Rite Aid or Thrifty
PayLess. State governmental authorities or private persons may also seek to
take legal action under the antitrust laws under certain circumstances.
Closing Condition. The respective obligations of Rite Aid and Thrifty
PayLess to consummate the Merger are subject to the condition that no court,
arbitrator or governmental body, agency or official will have issued any
order, decree or ruling which remains in force and there will not have been
any statute, rule or regulation restraining, enjoining or prohibiting the
consummation of the Merger. See "Merger Agreement--Conditions to the Merger."
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APPRAISAL RIGHTS
Under the DGCL, holders of B Common Stock are not entitled to appraisal or
dissenters' rights in connection with the Merger because the B Common Stock is
listed on a national securities exchange and the consideration which such
holders will be entitled to receive in the Merger will consist solely of (i)
Rite Aid Common Stock, which will also be listed on a national securities
exchange, and (ii) cash in lieu of fractional shares. Under the DGCL, holders
of Rite Aid Common Stock are not entitled to appraisal or dissenters rights in
connection with the Merger because the Rite Aid Common Stock is listed on a
national securities exchange.
Holders of record of A Common Stock who comply with the applicable statutory
procedures summarized herein will be entitled to appraisal rights under
Section 262 of the DGCL ("Section 262") because the A Common Stock is not
listed on a national securities exchange. A person having a beneficial
interest in shares of A Common Stock held of record in the name of another
person, such as a broker or nominee, must act promptly to cause the record
holder to follow the steps summarized below properly and in a timely manner to
perfect appraisal rights.
THE FOLLOWING DISCUSSION IS NOT A COMPLETE STATEMENT OF THE LAW PERTAINING
TO APPRAISAL RIGHTS FOR THE A COMMON STOCK UNDER THE DGCL AND IS QUALIFIED IN
ITS ENTIRETY BY THE FULL TEXT OF SECTION 262 WHICH IS REPRINTED IN ITS
ENTIRETY AS APPENDIX D TO THIS JOINT PROXY STATEMENT/PROSPECTUS. ALL
REFERENCES IN SECTION 262 AND IN THIS SUMMARY TO A "STOCKHOLDER" OR "HOLDER"
ARE TO THE RECORD HOLDER OF THE SHARES OF A COMMON STOCK AS TO WHICH APPRAISAL
RIGHTS ARE ASSERTED.
Under the DGCL, holders of shares of A Common Stock ("Appraisal Shares") who
follow the procedures set forth in Section 262 will be entitled to have their
Appraisal Shares appraised by the Delaware Chancery court and to receive
payment in cash of the "fair value" of such Appraisal Shares, exclusive of any
element of value arising from the accomplishment or expectation of the Merger,
together with a fair rate of interest, if any, as determined by such court.
Under Section 262, where a proposed merger is to be submitted for approval
at a meeting of stockholders, the corporation, not less than 20 days prior to
the meeting, must notify each of its stockholders who was such on the record
date for such meeting with respect to shares for which appraisal rights are
available, that appraisal rights are so available, and must include in such
notice a copy of Section 262.
This Joint Proxy Statement/Prospectus constitutes such notice to the holders
of Appraisal Shares and the applicable statutory provisions of the DGCL are
attached to this Joint Proxy Statement/Prospectus as Annex D. Any stockholder
who wishes to exercise such appraisal rights or who wishes to preserve his
right to do so should review the following discussion and Annex D carefully,
because failure to timely and properly comply with the procedures specified
will result in the loss of appraisal rights under the DGCL.
A HOLDER OF APPRAISAL SHARES WISHING TO EXERCISE SUCH HOLDER'S APPRAISAL
RIGHTS MUST DELIVER TO THRIFTY PAYLESS PRIOR TO THE VOTE ON THE MERGER
AGREEMENT AT THE THRIFTY PAYLESS SPECIAL MEETING TO BE HELD ON , 1996, A
WRITTEN DEMAND FOR APPRAISAL OF SUCH HOLDER'S APPRAISAL SHARES. A PROXY OR
VOTE AGAINST THE MERGER AGREEMENT WILL NOT CONSTITUTE SUCH A DEMAND. A HOLDER
OF APPRAISAL SHARES WISHING TO EXERCISE SUCH HOLDER'S APPRAISAL RIGHTS MUST BE
THE RECORD HOLDER OF SUCH APPRAISAL SHARES ON THE DATE THE WRITTEN DEMAND FOR
APPRAISAL IS MADE AND MUST CONTINUE TO HOLD SUCH APPRAISAL SHARES OF RECORD
THROUGH THE EFFECTIVE DATE OF THE MERGER. ACCORDINGLY, A HOLDER OF APPRAISAL
SHARES WHO IS THE RECORD HOLDER OF APPRAISAL SHARES ON THE DATE THE WRITTEN
DEMAND FOR APPRAISAL IS MADE, BUT WHO THEREAFTER TRANSFERS SUCH APPRAISAL
SHARES PRIOR TO THE CONSUMMATION OF THE MERGER, WILL LOSE ANY RIGHT TO
APPRAISAL IN RESPECT OF SUCH APPRAISAL SHARES.
Only a holder of record of Appraisal Shares is entitled to assert appraisal
rights for the Appraisal Shares registered in that holder's name. A demand for
appraisal should be executed by or on behalf of the holder of record, fully
and correctly, as such holder's name appears on such holder's stock
certificates. If the Appraisal Shares are owned of record in a fiduciary
capacity, such as by a trustee, guardian or custodian, execution of the demand
should be made in that capacity, and if the Appraisal Shares are owned of
record by more than one
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<PAGE>
person as in a joint tenancy or tenancy in common, the demand should be
executed by or on behalf of all joint owners. An authorized agent, including
one or more joint owners, may execute a demand for appraisal on behalf of a
holder of record; however, the agent must identify the record owner or owners
and expressly disclose the fact that, in executing the demand, the agent is
agent for such owner or owners. A record holder such as a broker who holds
Appraisal Shares as nominee for several beneficial owners may exercise
appraisal rights with respect to the Appraisal Shares held for one or more
beneficial owners while not exercising such rights with respect to the
Appraisal Shares held for other beneficial owners; in such case, the written
demand should set forth the number of Appraisal Shares as to which appraisal
is sought. When no number of Appraisal Shares is expressly mentioned, the
demand will be presumed to cover all Appraisal Shares held in the name of the
record owner. If a stockholder holds Appraisal Shares through a broker who in
turn holds the shares through a central securities depositary nominee, a
demand for appraisal of shares must be made by or on behalf of the depositary
nominee and must identify the depositary nominee as record holder.
Stockholders who hold their Appraisal Shares in brokerage accounts or other
nominee forms and who wish to exercise appraisal rights are urged to consult
with their brokers to determine the appropriate procedures for the making of a
demand for appraisal by such a nominee.
ALL WRITTEN DEMANDS FOR APPRAISAL SHOULD BE SENT OR DELIVERED TO THRIFTY
PAYLESS HOLDINGS, INC. AT 9725 S.W. PEYTON LANE, WILSONVILLE, OREGON 97070,
ATTENTION: SECRETARY.
Within 10 days after the consummation of the Merger, Rite Aid will notify
each stockholder who has properly asserted appraisal rights under Section 262
of the date the Merger became effective.
Within 120 days after the consummation of the Merger, but not thereafter,
the Surviving Corporation or any stockholder who has complied with the
statutory requirements summarized above may file a petition in the Delaware
Chancery Court demanding a determination of the fair value of the Appraisal
Shares. The Surviving Corporation is under no obligation, and has no present
intention, to file a petition with respect to the appraisal of the fair value
of the Appraisal Shares. Accordingly, it is the obligation of the stockholders
to initiate all necessary action to perfect their appraisal rights within the
time prescribed in Section 262.
Within 120 days after the consummation of the Merger, any stockholder who
has complied with the requirements for exercise of appraisal rights will be
entitled, upon written request, to receive from the Surviving Corporation a
statement setting forth the aggregate number of Appraisal Shares with respect
to which demands for appraisal have been received and the aggregate number of
holders of such Appraisal Shares. Such statements must be mailed within ten
days after a written request therefor has been received by the Surviving
Corporation.
If a petition for an appraisal is timely filed, after a hearing on such
petition, the Delaware Chancery Court will determine the stockholders entitled
to appraisal rights and will appraise the "fair value" of their Appraisal
Shares, exclusive of any element of value arising from the accomplishment or
expectation of the Merger, together with a fair rate of interest, if any, to
be paid upon the amount determined to be the fair value. Stockholders
considering seeking appraisal should be aware that the fair value of their
Appraisal Shares as determined under Section 262 could be more than, the same
as or less than the value of the consideration they would receive pursuant to
the Merger Agreement if they did not seek appraisal of their Appraisal Shares
and that investment banking opinions as to fairness are not necessarily
opinions as to fair value under Section 262. The Delaware Supreme Court has
stated that "proof of value by any techniques or methods which are generally
considered acceptable in the financial community and otherwise admissible in
court" should be considered in the appraisal proceedings.
If a petition for an appraisal is timely filed, at the hearing on such
petition the Delaware Court will determine which stockholders are entitled to
appraisal rights. The Delaware Court may require the stockholders who have
demanded an appraisal for their shares to submit their certificates of stock
to the Register in Chancery for notation thereon of the pendency of the
appraisal proceedings. If any stockholder fails to comply with such direction,
the Delaware Court may dismiss the proceedings as to such stockholder.
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<PAGE>
The Delaware Chancery Court will determine the amount of interest, if any,
to be paid upon the amounts to be received by persons whose Appraisal Shares
have been appraised. The costs of the action may be determined by the Delaware
Chancery Court and taxed upon the parties as the Delaware Chancery Court deems
equitable. The Delaware Chancery Court may also order that all or a portion of
the expenses incurred by any stockholder in connection with an appraisal,
including, without limitation, reasonable attorneys' fees and the fees and
expenses of experts utilized in the appraisal proceeding, be charged pro rata
against the value of the all of the Appraisal Shares entitled to appraisal.
Any holder of Appraisal Shares who has duly demanded an appraisal in
compliance with Section 262 will not, after the consummation of the Merger, be
entitled to vote the Appraisal Shares subject to such demand for any purpose
or be entitled to the payment of dividends or other distributions on those
Appraisal Shares (except dividends or other distributions payable to holders
of record of Appraisal Shares as of a record date prior to the consummation of
the Merger).
If any stockholder who properly demands appraisal of his Appraisal Shares
under Section 262 fails to perfect, or effectively withdraws or loses, his
right to appraisal, as provided in the DGCL the Appraisal Shares of such
stockholder will be converted into the right to receive the consideration
receivable with respect to such Appraisal Shares in accordance with the Merger
Agreement. A stockholder will fail to perfect, or effectively lose or
withdraw, his right to appraisal if, among other things, no petition for
appraisal is filed within 120 days after the effective date of the Merger, or
if the stockholder withdraws his demand for appraisal. Any withdrawal
attempted more than 60 days after such effective date will require the written
approval of the Surviving Corporation. Notwithstanding the foregoing, no
appraisal proceeding pending in the Court of Chancery shall be dismissed as to
any stockholder without the approval of the Court, and any such approval may
be conditioned upon such terms as the Court deems just.
FAILURE TO FOLLOW THE STEPS REQUIRED BY SECTION 262 FOR PERFECTING APPRAISAL
RIGHTS MAY RESULT IN THE LOSS OF SUCH RIGHTS (IN WHICH EVENT A STOCKHOLDER
WILL BE ENTITLED TO RECEIVE THE CONSIDERATION RECEIVABLE WITH RESPECT TO SUCH
APPRAISAL SHARES IN ACCORDANCE WITH THE MERGER AGREEMENT).
AMENDMENT OF RITE AID CERTIFICATE OF INCORPORATION
Pursuant to the Merger Agreement and in connection with the Merger, the
Certificate of Incorporation of Rite Aid ("Rite Aid Charter") will be amended
to, among other things, change the authorized capital stock from 240,000,000
shares of Common Stock to 300,000,000 shares of Common Stock, to remove
certain obsolete provisions and to effect certain other technical amendments.
The Rite Aid Charter currently authorizes the issuance of 240,000,000 shares
of Rite Aid Common Stock and 20,000,000 shares of Rite Aid Preferred Stock. On
the Rite Aid Record Date, shares of Rite Aid Common Stock were either
issued and outstanding or reserved for issuance. Rite Aid expects to issue
approximately shares of Rite Aid Common Stock to holders of Thrifty
PayLess Common Stock in the Merger and an additional shares to or on
behalf of participants in the Rite Aid 1990 Omnibus Stock Incentive Plan upon
the exercise of options granted pursuant to such plans. After taking into
account the shares of Rite Aid Common Stock either issued or reserved for
issuance, including those to be issued pursuant to the Merger and those
reserved for the foregoing stock plans, Rite Aid would have only remaining
shares authorized for issuance if the Rite Aid Charter were not amended.
The Rite Aid Board believes it is desirable to authorize additional shares
of Rite Aid Common Stock so that there will be sufficient shares available for
issuance after the Merger for purposes that the Rite Aid Board may hereafter
determine to be in the best interests of Rite Aid and its stockholders. Such
purposes could include the offer of shares for cash, acquisitions, employee
benefit programs and other general corporate purposes. In many situations,
prompt action may be required which would not permit seeking stockholder
approval to authorize additional shares for the specific transaction on a
timely basis. The Rite Aid Board believes it should have the flexibility to
act promptly in the best interests of stockholders. The terms of any future
issuance of
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<PAGE>
shares of Rite Aid Common Stock will be dependent largely on market and
financial conditions and other factors existing at the time of issuance. For
the foregoing reasons, the Merger Agreement provides that the authorized
shares of Rite Aid Common Stock will be increased in order to have a
sufficient number of shares for issuance from time to time after the Merger.
Rite Aid currently has no agreements or special plans concerning the
issuance of additional shares of Rite Aid Common Stock, except for the shares
to be issued in the Merger and shares reserved or to be reserved for issuance
by Rite Aid as described herein. If any agreements or plans are made
concerning the issuance of any such shares, holders of the then outstanding
shares of Rite Aid's capital stock may or may not be given the opportunity to
vote thereon, depending upon the nature of any such transaction, the law
applicable thereto, the policy of the NYSE and the judgment of the Rite Aid
Board regarding the submission thereof to Rite Aid's stockholders. The current
rules of the NYSE, however, would require stockholder approval if the number
of shares of Rite Aid Common Stock to be issued would equal or exceed 20% of
the number of such shares of Rite Aid Common Stock outstanding immediately
prior to such issuance.
It is not presently contemplated that such additional shares of Rite Aid
Common Stock would be issued for the purpose of making the acquisition by an
unwanted suitor of a controlling interest in Rite Aid more difficult, time-
consuming or costly. However, it should be noted that shares of Rite Aid
Common Stock could be issued for that purpose and to that effect, and the Rite
Aid Board reserves its right (if consistent with its fiduciary
responsibilities) to issue Rite Aid Common Stock for such purposes.
RESALES OF RITE AID COMMON STOCK
All shares of Rite Aid Common Stock issued pursuant to the Merger will be
freely transferable, except that shares received by any person who may be
deemed to be an "affiliate" (as used in paragraphs (c) and (d) of Rule 145
under the Securities Act, including, without limitation, directors and certain
executive officers) of Thrifty PayLess for purposes of such Rule 145 may not
be resold except in transactions permitted by such Rule 145 or as otherwise
permitted under the Securities Act.
Thrifty PayLess has agreed to deliver to Rite Aid, not later than the record
date for the Thrifty PayLess Special Meeting, a letter identifying, to the
best of Thrifty PayLess' knowledge, all persons who are, at the time of the
Thrifty PayLess Special Meeting, deemed to be "affiliates" (as used in the
preceding paragraph) of Thrifty PayLess and to use its best efforts to cause
each person so identified to deliver to Rite Aid at least 30 days prior to the
Closing Date an agreement, substantially in the form previously approved by
Rite Aid and Thrifty PayLess, providing that such person will not sell,
pledge, transfer or otherwise dispose of any Rite Aid Common Stock received by
such person in exchange for shares of Thrifty PayLess Common Stock pursuant to
the Merger, except pursuant to an effective registration statement or in
compliance with such Rule 145 or another exemption from the registration
requirements of the Securities Act.
Pursuant to the GEI/Kmart Stockholder Agreements, GEI and Kmart each have
and, in the event GEI distributes its shares of Rite Aid Common Stock to its
limited partners, such limited partners will have, the right to require Rite
Aid to register the shares of Rite Aid Common Stock owned by them, subject to
certain terms and conditions. In particular, Kmart's demand rights entitle it,
among other things, to make a demand for registration at any time prior to the
Effective Time and, upon such demand, Rite Aid is required to use reasonable
efforts to cause a registration statement with respect to Kmart's shares of
Rite Aid Common Stock to become effective as promptly as practicable following
the Effective Time. There is no limitation on the right of GEI to distribute
its shares of Rite Aid Common Stock to its limited partners. See "The
GEI/Kmart Stockholder Agreements--Registration Rights."
NEW YORK STOCK EXCHANGE LISTING
Rite Aid has agreed to use reasonable efforts to list, prior to the
Effective Time, on the NYSE, subject to official notice of issuance, the
shares of Rite Aid Common Stock to be issued in the Merger, and such listing
is a condition to the consummation of the Merger. Rite Aid also intends to
list such shares of Rite Aid Common Stock on the PSE.
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<PAGE>
THE MERGER AGREEMENT
The following summary of the Merger Agreement and the Merger contained in
this Joint Proxy Statement/Prospectus is not intended to be a complete
description of the terms and conditions thereof and is qualified in its
entirety by reference to the full text thereof, which is incorporated herein
by reference and a copy of which is attached hereto as Annex A. Capitalized
terms not otherwise defined herein or in the following summary shall have the
meanings set forth in the Merger Agreement.
GENERAL
The Merger Agreement provides that, subject to the terms and conditions
thereof and in accordance with the DGCL, at the Effective Time, Rite Aid and
Thrifty PayLess will consummate the Merger pursuant to which (i) Thrifty
PayLess will be merged with and into Rite Aid and the separate corporate
existence of Thrifty PayLess shall thereupon cease, and (ii) Rite Aid will be
the Surviving Corporation and will continue to be governed by the laws of the
State of Delaware. Pursuant to the Merger, (a) the Certificate of
Incorporation of Rite Aid, as in effect immediately prior to the Effective
Time, will be the Certificate of Incorporation of the Surviving Corporation
until thereafter amended as provided by law and such Certificate of
Incorporation, and (b) the By-laws of Rite Aid, as in effect immediately prior
to the Effective Time, shall be the By-laws of the Surviving Corporation until
thereafter amended as provided by law, the Certificate of Incorporation of the
Surviving Corporation and such By-laws. See "The Merger--Amendment of Rite Aid
Certificate of Incorporation." The Merger will have the effects set forth in
the DGCL.
The Merger Agreement provides that each share of A Common Stock and B Common
Stock of Thrifty PayLess issued and outstanding immediately prior to the
Effective Time (other than Thrifty PayLess Common Stock owned by Thrifty
PayLess as treasury stock, any Thrifty PayLess Common Stock owned by Rite Aid
or any direct or indirect wholly owned subsidiary of Rite Aid or Thrifty
PayLess and Dissenting Thrifty PayLess Shares, if any) will, at the Effective
Time, by virtue of the Merger and without any action on the part of the holder
thereof, be converted into the right to receive 0.65 duly authorized, validly
issued, fully paid and nonassessable shares of Rite Aid Common Stock.
All shares of Thrifty PayLess Common Stock that are owned by Thrifty PayLess
as treasury stock and any shares of Thrifty PayLess Common Stock owned by Rite
Aid or any direct or indirect wholly owned subsidiary of Rite Aid or Thrifty
PayLess will, at the Effective Time, be cancelled and retired and will cease
to exist and no Rite Aid Common Stock shall be delivered in exchange therefor.
The Merger Agreement provides that, on and after the Effective Time, holders
of certificates which immediately prior to the Effective Time represented
outstanding shares of Thrifty PayLess Common Stock (the "Certificates") will
cease to have any rights as stockholders of Thrifty PayLess, except the right
to receive the consideration set forth in the Merger Agreement for each share
of Thrifty PayLess Common Stock held by them or, if applicable, payments due
to holders of Dissenting Thrifty PayLess Shares. See "The Merger--Appraisal
Rights for Thrifty PayLess Stockholders."
In lieu of any fractional share of Rite Aid Common Stock, Rite Aid will pay
to each former stockholder of Thrifty PayLess who otherwise would be entitled
to receive a fractional share of Rite Aid Common Stock an amount in cash
determined by multiplying (i) the Rite Aid Share Price by (ii) the fractional
interest in a share of Rite Aid Common Stock to which such holder would
otherwise be entitled.
AS SOON AS PRACTICABLE AFTER THE EFFECTIVE TIME, A BANK OR TRUST COMPANY
DESIGNATED BY RITE AID TO ACT AS AGENT FOR THE HOLDERS OF THRIFTY PAYLESS
COMMON STOCK IN CONNECTION WITH THE MERGER (THE "EXCHANGE AGENT") WILL MAIL TO
EACH HOLDER OF RECORD OF A CERTIFICATE WHOSE SHARES WERE CONVERTED IN THE
MERGER INTO THE RIGHT TO RECEIVE RITE AID COMMON STOCK A LETTER OF TRANSMITTAL
AND INSTRUCTIONS FOR USE IN EFFECTING THE SURRENDER OF SUCH CERTIFICATES IN
EXCHANGE FOR RITE AID COMMON STOCK.
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THRIFTY PAYLESS STOCKHOLDERS SHOULD NOT FORWARD THRIFTY PAYLESS STOCK
CERTIFICATES TO THE EXCHANGE AGENT UNTIL THEY HAVE RECEIVED SUCH TRANSMITTAL
LETTERS. THRIFTY PAYLESS STOCKHOLDERS SHOULD NOT RETURN STOCK CERTIFICATES
WITH THE ENCLOSED PROXY.
In accordance with the Merger Agreement, effective as of the Effective Time,
each outstanding Thrifty PayLess Stock Option will be converted automatically
into a right to receive an amount of cash equal to (i) 65% of the Rite Aid
Share Price minus the exercise price per share under the applicable Thrifty
PayLess Stock Options, times (ii) the number of shares of Thrifty PayLess
Common Stock purchasable upon exercise of such Thrifty PayLess Stock Options.
INTERIM OPERATIONS OF THRIFTY PAYLESS
In the Merger Agreement, Thrifty PayLess has covenanted and agreed that,
except as expressly provided in the Merger Agreement or with the prior written
consent of Rite Aid, during the term of the Merger Agreement:
(i) The business of Thrifty PayLess and its subsidiaries will be
conducted only in the ordinary course of business consistent with past
practice and, to the extent consistent therewith, each of Thrifty PayLess
and its subsidiaries will use reasonable efforts to preserve its business
organization intact and maintain its existing relations with customers,
suppliers, employees, creditors and business partners;
(ii) Thrifty PayLess will not, directly or indirectly, split, combine or
reclassify the outstanding shares of Thrifty PayLess Common Stock, or any
outstanding capital stock of any of the subsidiaries of Thrifty PayLess;
(iii) Neither Thrifty PayLess nor any of its subsidiaries will: (a) amend
its certificate of incorporation or by-laws or similar organizational
documents; (b) declare, set aside or pay any dividend or other distribution
payable in cash, stock or property with respect to its capital stock other
than dividends paid by Thrifty PayLess' subsidiaries to Thrifty PayLess or
its subsidiaries; (c) issue, sell, transfer, pledge, dispose of or encumber
any additional shares of, or securities convertible into or exchangeable
for, or options, warrants, calls, commitments or rights of any kind to
acquire, any shares of capital stock of any class of Thrifty PayLess or its
subsidiaries, other than issuances pursuant to exercise of stock-based
awards or options outstanding on the date thereof; (d) transfer, lease,
license, sell, mortgage, pledge, dispose of, or encumber any material
assets other than in the ordinary course of business consistent with past
practice or pursuant to existing agreements; or (e) redeem, purchase or
otherwise acquire directly or indirectly any of its capital stock;
(iv) Neither Thrifty PayLess nor any of its subsidiaries will: (a) except
for normal, regularly scheduled increases for non-officer employees
consistent with past practice or pursuant to the terms of existing
collective bargaining agreements, grant any increase in the compensation
payable or to become payable by Thrifty PayLess or any of its subsidiaries
to any officer or employee (including through any new award made under, or
the exercise of any discretion under, any Benefit Plan); (b) adopt any new,
or amend or otherwise increase, or accelerate the payment or vesting of the
amounts payable or to become payable under any existing bonus, incentive
compensation, deferred compensation, severance, profit sharing, stock
option, stock purchase, insurance, pension, retirement or other employee
benefit plan agreement or arrangement; (c) enter into any, or amend any
existing, employment or severance agreement with or, grant any severance or
termination pay to any officer, director, employee or consultant of Thrifty
PayLess or any of its subsidiaries; (d) make any additional contributions
to any grantor trust created by Thrifty PayLess to provide funding for non-
tax-qualified employee benefits or compensation; or (e) provide any
severance program to any subsidiary which does not have a severance program
as of the date of the Merger Agreement;
(v) Neither Thrifty PayLess nor any of its subsidiaries will modify,
amend or terminate any of the Company Agreements or waive, release or
assign any material rights or claims, except in the ordinary course of
business consistent with past practice;
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(vi) Neither Thrifty PayLess nor any of its subsidiaries will permit any
material insurance policy naming it as a beneficiary or a loss payable
payee to be cancelled or terminated without notice to Rite Aid, except in
the ordinary course of business consistent with past practice;
(vii) Neither Thrifty PayLess nor any of its subsidiaries will: (a) incur
or assume any debt except for borrowings under existing credit facilities
in the ordinary course of business consistent with past practice; (b)
assume, guarantee, endorse or otherwise become liable or responsible
(whether directly, contingently or otherwise) for the obligations of any
other person, except in the ordinary course of business consistent with
past practice; (c) make any loans, advances or capital contributions to, or
investments in, any other person (other than to wholly owned subsidiaries
of Thrifty PayLess or customary loans or advances to employees in
accordance with past practice); or (d) enter into any material commitment
(including, but not limited to, any lease, capital expenditure or purchase
of assets) other than in the ordinary course of business consistent with
past practice or Thrifty PayLess' existing expansion plans previously
disclosed in its documents filed with the Securities Exchange Commission;
(viii) Neither Thrifty PayLess nor any of its subsidiaries will change
any of the accounting principles used by it unless required by GAAP;
(ix) Neither Thrifty PayLess nor any of its subsidiaries may pay,
discharge or satisfy any claims, liabilities or obligations (absolute,
accrued, asserted or unasserted, contingent or otherwise), other than the
payment, discharge or satisfaction of any such claims, liabilities or
obligations, (a) reflected or reserved against in the consolidated
financial statements (or the notes thereto) of Thrifty PayLess and its
consolidated subsidiaries, (b) incurred in the ordinary course of business
consistent with past practice, or (c) which are legally required to be
paid, discharged or satisfied;
(x) Neither Thrifty PayLess nor any of its subsidiaries will adopt a plan
of complete or partial liquidation, dissolution, merger, consolidation,
restructuring, recapitalization or other material reorganization of Thrifty
PayLess or any of its subsidiaries or any agreement relating to a Takeover
Proposal (other than the Merger);
(xi) Neither Thrifty PayLess nor any of its subsidiaries will take, or
agree to commit to take, any action that would make any representation or
warranty of Thrifty PayLess contained in the Merger Agreement inaccurate in
any respect at, or as of any time prior to, the Effective Time;
(xii) Neither Thrifty PayLess nor any of its subsidiaries will engage in
any transaction with, or enter into any agreement, arrangement or
understanding with, directly or indirectly, any of Thrifty PayLess'
Affiliates, including any transactions, agreements, arrangements or
understandings with any Affiliate or other Person covered under Item 404 of
Regulation S-K under the Securities Act that would be required to be
disclosed under such Item 404, other than pursuant to such agreements,
arrangements, or understandings existing on the date of the Merger
Agreement;
(xiii) Neither Thrifty PayLess nor any of its subsidiaries will close,
shut down, or otherwise eliminate any of Thrifty PayLess' stores other than
in the ordinary course of business consistent with past practice; change
the name of or signage at any of Thrifty PayLess' stores other than in the
ordinary course of business; close, shut down, or otherwise eliminate any
of Thrifty PayLess' distribution centers; or move the location of, close,
shut down or otherwise eliminate Thrifty PayLess' headquarters, or effect a
general staff reduction at such headquarters;
(xiv) Neither Thrifty PayLess nor any of its subsidiaries will change or
modify in any material respect Thrifty PayLess' existing advertising
program and policies other than in the ordinary course of business;
(xv) Neither Thrifty PayLess nor any of its subsidiaries will enter into
any new lease (other than renewals of existing leases after consultation
with Rite Aid) other than in the ordinary course of business or purchase or
acquire or enter into any agreement to purchase or acquire any real estate;
(xvi) Neither Thrifty PayLess nor any of its subsidiaries will take or
omit to take any action that may result in the incurrence of any
liabilities or obligations of any nature, whether or not accrued,
contingent or otherwise, that have, or would be reasonably likely to have,
a material adverse effect on Thrifty PayLess and its subsidiaries; and
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(xvii) Neither Thrifty PayLess nor any of its subsidiaries will enter
into an agreement, contract, commitment or arrangement to do any of the
foregoing, or to authorize, recommend, propose or announce an intention to
do any of the foregoing.
INTERIM OPERATIONS OF RITE AID
In the Merger Agreement, Rite Aid has covenanted and agreed that, except as
expressly provided in the Merger Agreement or with the prior written consent
of Thrifty PayLess, during the term of the Merger Agreement:
(i) Rite Aid will not, directly or indirectly, split, combine or
reclassify the outstanding Rite Aid Common Stock;
(ii) Neither Rite Aid nor any of its subsidiaries will declare, set aside
or pay any dividend or other distribution payable in cash, stock or
property with respect to its capital stock other than (a) dividends paid by
Rite Aid's subsidiaries to Rite Aid or its subsidiaries and (b) cash
dividends on Rite Aid Common Stock at Rite Aid's current dividend rate or
as such rate may be increased (provided that any such increase is not
higher on a percentage basis, after rounding up to avoid fractions, than
Rite Aid's most recent dividend rate increase prior to date of the Merger
Agreement) (in addition, in the Merger Agreement, Rite Aid acknowledged
that its intention as of the date of the Merger Agreement was to continue
to pay cash dividends at a rate no less than the most recent dividend prior
to the date of the Merger Agreement);
(iii) Rite Aid may not adopt a plan of complete or partial liquidation or
dissolution;
(iv) Neither Rite Aid nor any of its subsidiaries may take, or agree to
commit to take, any action that would make any representation or warranty
of Rite Aid in the Merger Agreement inaccurate in any material respect at,
or as of any time prior to, the Effective Time; and
(v) Neither Rite Aid nor any of its subsidiaries may enter into an
agreement, contract, commitment or arrangement to do any of the foregoing,
or to authorize, recommend, propose or announce an intention to do any of
the foregoing.
NO SOLICITATION
Pursuant to the Merger Agreement, Thrifty PayLess (and its subsidiaries and
Affiliates over which it exercises control) have agreed that they will not,
and Thrifty PayLess (and its subsidiaries and Affiliates over which it
exercises control) have agreed that they will cause their respective officers,
directors, investment bankers, attorneys, accountants and other agents not to,
directly or indirectly: (i) initiate, solicit or encourage (including by way
of furnishing information), or take any other similar action to facilitate the
making of, any offer or proposal which constitutes or is reasonably likely to
lead to, any Takeover Proposal or an inquiry with respect thereto, or (ii) in
the event of an unsolicited Takeover Proposal for Thrifty PayLess or any
subsidiary or Affiliate of Thrifty PayLess, engage in negotiations or
discussions with, or provide any information or data to, any person (other
than Rite Aid, any of its Affiliates or representatives) relating to any
Takeover Proposal, provided, however, that if the Thrifty PayLess Board
determines in good faith, having received and considered the advice of outside
counsel, that it is necessary to do so in order to comply with its fiduciary
duties to Thrifty PayLess' stockholders under applicable law, Thrifty PayLess
may, in response to a Takeover Proposal which was not solicited by it or which
did not otherwise result from a breach of the provisions cited under this
paragraph, and subject to compliance with all the other provisions cited under
this paragraph, (a) furnish information with respect to Thrifty PayLess and
its subsidiaries to any person pursuant to a customary confidentiality
agreement (as determined by Thrifty PayLess after consultation with its
outside counsel) and (b) participate in negotiations regarding such Takeover
Proposal. Thrifty PayLess has agreed to immediately notify Rite Aid orally and
in writing of any such request for information or Takeover Proposal that comes
to the attention of any of its officers or directors (including the material
terms and conditions thereof and the identity of the person making it) and to
keep Rite Aid reasonably informed of the status and details (including
amendments or proposed amendments) of any such request or Takeover Proposal.
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The Merger Agreement also provides that, except as expressly permitted by
the Merger Agreement, neither the Thrifty PayLess Board nor any committee
thereof may (i) withdraw or modify, or propose publicly to withdraw or modify,
in a manner adverse to Rite Aid, the approval or recommendation by the Thrifty
PayLess Board or such committee of the Merger or the Merger Agreement, (ii)
approve or recommend, or propose publicly to approve or recommend, any
Takeover Proposal (other than the Merger), or (iii) cause Thrifty PayLess to
enter into any letter of intent, agreement in principle, acquisition agreement
or other similar agreement (each, an "Acquisition Agreement") related to any
Takeover Proposal. Notwithstanding the foregoing, in the event that prior to
the adoption of the Merger Agreement by the holders of Thrifty PayLess Common
Stock, the Thrifty PayLess Board determines in good faith, after it has
received a Superior Proposal (defined below) and having received and
considered advice of outside counsel, that it is necessary to do so in order
to comply with its fiduciary duties to Thrifty PayLess' stockholders under
applicable law, the Thrifty PayLess Board may (subject to the provisions cited
in this paragraph and the other provisions of the Merger Agreement) withdraw
or modify its approval or recommendation of the Merger or the Merger
Agreement, but in any such case only at a time that is after the fifth
business day following Rite Aid's receipt of written notice advising Rite Aid
that the Thrifty PayLess Board has received a Superior Proposal, specifying
the material terms and conditions of such Superior Proposal and identifying
the person making such Superior Proposal.
As used in the Merger Agreement, a "Superior Proposal" means any proposal
made by a third party to acquire, directly or indirectly, for consideration
consisting of cash and/or securities, more than 50% of the combined voting
power of the shares of Thrifty PayLess Common Stock then outstanding or all or
substantially all the assets of Thrifty PayLess and otherwise on terms which
the Thrifty PayLess Board determines in its good faith judgment (having
received and considered the advice of a financial advisor of nationally
recognized reputation) to be more favorable to Thrifty PayLess' stockholders
than the Merger and for which financing, to the extent required, is then
committed or which, in the good faith judgment of the Thrifty PayLess Board,
is reasonably capable of being obtained by such third party.
RITE AID STANDSTILL PROVISION
In the Merger Agreement Rite Aid has agreed that, if the Merger Agreement is
terminated by either party in accordance with the terms of the Merger
Agreement, for a period of four years from the date of the Merger Agreement,
except within the terms of a specific written request from Thrifty PayLess and
except for certain purchases of Thrifty PayLess Common Stock permitted prior
to the termination of the Merger Agreement, Rite Aid will not, and will use
its best efforts to cause each of its Affiliates controlled by it not to,
propose or publicly announce or otherwise disclose an intent to propose, or
enter into or agree to enter into, singly or with any other person or directly
or indirectly (a) any form of business combination, acquisition,
restructuring, recapitalization or other similar transaction relating to
Thrifty PayLess or any subsidiary of Thrifty PayLess, or (b) any demand,
request or proposal to amend, waive or terminate any of the provisions cited
in this paragraph, and except as aforesaid during such period Rite Aid will
not, and will use its best efforts to cause each of its Affiliates or any of
its representatives as a principal not to, (i) acquire, or offer, propose or
agree to acquire, by purchase or otherwise, any additional voting securities
of Thrifty PayLess, (ii) make, or in any way participate in, any solicitation
of proxies with respect to any such voting securities (including by the
execution of action by written consent), become a participant in any election
contest with respect to Thrifty PayLess, seek to influence any person with
respect to any such voting securities or demand a copy of the list of the
stockholders or other books and records of Thrifty PayLess, (iii) participate
in or encourage the formation of any partnership, syndicate or other group
which owns or seeks or offers to acquire beneficial ownership of any such
voting securities or which seeks to affect control of Thrifty PayLess or has
the purpose of circumventing any provision of the Merger Agreement, (iv)
otherwise act, alone or in concert with others (including by providing
financing for another person), to seek or to offer to control or influence, in
any manner, the management, Board of Directors or policies of Thrifty PayLess,
or (v) make any proposal or other communication designed to compel Thrifty
PayLess to make a public announcement in respect of any matter cited in this
paragraph; provided, however, that if Thrifty PayLess initiates a process of
soliciting bids for the acquisition of Thrifty PayLess, Rite Aid will be
permitted to participate in such process on the same basis, and subject to the
same conditions and limitations, as are
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established by Thrifty PayLess for all bidders and if Thrifty PayLess enters
into an Acquisition Agreement with a party other than Rite Aid and, as a
result, the Thrifty PayLess Board has a fiduciary obligation under applicable
Delaware law to consider alternative Takeover Proposals, Rite Aid will be
permitted to make a Takeover Proposal.
REPRESENTATIONS AND WARRANTIES
In the Merger Agreement, Thrifty PayLess has made customary representations
and warranties to Rite Aid with respect to, among other things, its
organization, capitalization, corporate authorization, financial statements,
public filings, employee benefit plans, insurance, compliance with laws
(including ERISA and environmental laws), transactions with affiliates,
litigation, absence of defaults, contracts, tax matters, labor matters,
assets, real property, environmental matters, consents and approvals,
information provided by it for inclusion in the Joint Proxy
Statement/Prospectus, agreements with third party payors, vote required,
opinion of financial advisors, undisclosed liabilities and the absence of any
material adverse change in Thrifty PayLess since July 1, 1996.
In the Merger Agreement, Rite Aid has made customary representations and
warranties to Thrifty PayLess with respect to, among other things, its
organization, capitalization, corporate authorization, financial statements,
public filings, insurance, compliance with laws (including ERISA and
environmental laws), transactions with Affiliates, litigation, absence of
defaults, contracts, tax matters, labor matters, assets, real property,
consents and approvals, information provided by it for inclusion in the Joint
Proxy Statement/Prospectus, agreements with third party payors, votes
required, opinion of financial advisors, undisclosed liabilities and the
absence of any material adverse change in Rite Aid since August 1, 1996.
CONDITIONS TO THE MERGER
The respective obligations of Rite Aid, on the one hand, and Thrifty
PayLess, on the other hand, to consummate the Merger are subject to the
satisfaction (or, if permissible, waiver by the party for whose benefit such
conditions exist) of the following conditions: (i) the Merger Agreement shall
have been adopted by stockholders of Thrifty PayLess and Rite Aid in
accordance with the DGCL and the issuance of Rite Aid Common Stock pursuant to
the Merger Agreement shall have been approved by the stockholders of Rite Aid;
(ii) no court, arbitrator or governmental body, agency or official shall have
issued any order, decree or ruling which remains in force and there shall not
be any statute, rule or regulation restraining, enjoining or prohibiting the
consummation of the Merger; (iii) the Registration Statement shall have become
effective under the Securities Act and no stop order suspending effectiveness
of the Registration Statement shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the Commission; (iv)
all material required consents, authorizations, orders and approvals of (or
filings or registrations with) any Governmental Entity shall have been
obtained or made, except for filings in connection with the Merger and any
other documents required to be filed after the Effective Time; (v) the Rite
Aid Common Stock to be issued in connection with the Merger shall have been
approved for listing on the NYSE, subject to official notice of issuance; and
(vi) Rite Aid and Thrifty PayLess shall have received an opinion of Jones,
Day, counsel to Rite Aid, or Irell & Manella LLP, counsel to Thrifty PayLess
stating that the Merger will be treated for federal income tax purposes as a
reorganization within the meaning of Section 368(a) of the Code and that no
gain or loss will be recognized by the stockholders of Thrifty PayLess upon
their exchange of Thrifty PayLess Common Stock for Rite Aid Common Stock under
Section 354 of the Code (except with respect to cash in lieu of any fractional
shares). See "The Merger--Certain Legal Matters; Regulatory Approval," "--
Certain Federal Income Tax Consequences" and "--New York Stock Exchange
Listing."
The obligations of Rite Aid to consummate the Merger are subject to the
satisfaction of the following conditions: (i) Thrifty PayLess shall have
performed in all material respects its agreements in the Merger Agreement and
the representations and warranties of Thrifty PayLess in the Merger Agreement
shall have been true and correct in all material respects on the date of the
Merger Agreement and on the Closing Date (with certain exceptions); (ii) from
the date of the Merger Agreement to the Effective Time, there shall not have
occurred any material adverse change in the business or properties of Thrifty
PayLess or its subsidiaries excluding changes resulting from, arising out of
or related to (a) the drug store or retail business in the United
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States generally, (b) general economic or financial conditions, or (c) costs
incurred by reason of resignations of employees at Thrifty PayLess'
headquarters; and (iii) as of the Effective Time, no person shall have any
right under any stock option plan (or any option granted thereunder) or other
plan, program or arrangement to acquire any equity securities of Thrifty
PayLess or any of its subsidiaries.
The obligations of Thrifty PayLess to consummate the Merger are subject to
the satisfaction of the following conditions: (i) the Minimum Price Condition;
(ii) Rite Aid shall have performed in all material respects its agreements in
the Merger Agreement and the representations and warranties of Rite Aid in the
Merger Agreement shall have been true and correct in all material respects on
the date of the Merger Agreement and on the Closing Date (with certain
exceptions); and (iii) from the date of the Merger Agreement to the Effective
Time, there shall not have occurred any material adverse change in the
business or properties of Rite Aid or its subsidiaries excluding changes
resulting from, arising out of or related to (a) the drug store or retail
business in the United States generally or (b) general economic or financial
conditions.
TERMINATION
According to its terms, the Merger Agreement may be terminated and the
Merger may be abandoned at any time prior to the Effective Time, whether
before or after stockholder approval thereof: (i) by the mutual consent of the
Rite Aid Board and Thrifty PayLess Board; (ii) by either Thrifty PayLess or
Rite Aid: (a) if the Merger shall not have been consummated by April 30, 1997
(and the party whose failure to perform any of its obligations under the
Merger Agreement is not the cause of the failure of the Merger to be
consummated by such time); (b) if, at the Thrifty PayLess Special Meeting duly
convened therefor and finally adjourned, the Thrifty PayLess stockholder
approval of the Merger shall not have been obtained; (c) if, at the Rite Aid
Special Meeting duly convened therefor and finally adjourned, the Rite Aid
stockholder approval of the Merger shall not have been obtained; or (d) if any
Governmental Entity shall have issued an injunction, order or decree (a
"Restraint") or taken any other action permanently enjoining, restraining or
otherwise prohibiting the consummation of the Merger or any of the other
transactions contemplated by the Merger Agreement or the GEI/Kmart Stockholder
Agreements and such Restraint or other action shall have become final and
nonappealable; (iii) by Rite Aid, if Thrifty PayLess shall be in Material
Breach (provided that Rite Aid is not then in Material Breach itself); (iv) by
Rite Aid if (a) the Thrifty PayLess Board or any committee thereof shall have
withdrawn or modified in a manner adverse to Rite Aid its approval or
recommendation of the Merger or the Merger Agreement or approved or
recommended any Takeover Proposal or (b) the Thrifty PayLess Board or any
committee thereof shall have resolved to take any of the foregoing actions;
(v) by Rite Aid, if Thrifty PayLess or any of its officers, directors,
employees, representatives or agents shall take any of the actions that would
be proscribed by the provisions set forth under "--No Solicitation" above but
for the exceptions therein allowing certain actions to be taken based upon the
fiduciary obligations of the Thrifty PayLess Board; and (vi) by Thrifty
PayLess, if Rite Aid shall be in Material Breach (provided that Thrifty
PayLess is not then in Material Breach itself). As used in this paragraph, a
"Material Breach" is a failure to perform in any material respect any
representations, warranties, covenants or other agreements of the respective
party in the Merger Agreement, which breach or failure to perform cannot be or
has not been cured within 30 days after notice to the breaching party.
Except as set forth below and except in the case of fraud or intentional
material breach of the Merger Agreement, neither party to the Merger Agreement
will have any liability to the other upon termination thereof in accordance
with its terms.
TERMINATION FEES
The foregoing notwithstanding, in the event that (i) a Takeover Proposal
shall have been made known to Thrifty PayLess or any of its subsidiaries or
has been made directly to its stockholders generally or any person shall have
publicly announced an intention (whether or not conditional) to make a
Takeover Proposal and thereafter Thrifty PayLess stockholder approval of the
Merger is not obtained or (ii) the Merger Agreement is terminated by Rite Aid
because the Thrifty PayLess Board or any committee thereof has withdrawn or
modified
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in a manner adverse to Rite Aid its approval or recommendation of the Merger
or the Merger Agreement or approved or recommended a Takeover Proposal, then
Thrifty PayLess will pay Rite Aid a Termination Fee plus Reimbursable
Expenses, except that no Termination Fee or Reimbursable Expenses will be
payable under the Merger Agreement to Rite Aid (i) if Rite Aid is in Material
Breach or (ii) for any reason other than specified in this paragraph.
In the event that the Merger Agreement is terminated by Thrifty PayLess
because of Rite Aid's failure to obtain stockholder approval of the Merger at
a meeting of Rite Aid stockholders duly convened and finally adjourned or
because of Rite Aid's Material Breach, then Rite Aid will promptly pay Thrifty
PayLess a Termination Fee plus Reimbursable Expenses, except that no
Termination Fee or Reimbursable Expenses will be payable under the Merger
Agreement to Thrifty PayLess (i) if Thrifty PayLess is in Material Breach or
(ii) for any reason other than those specified in this paragraph.
OTHER FEES AND EXPENSES
Except as described above, all fees and expenses incurred in connection with
the Merger, the Merger Agreement, the GEI/Kmart Stockholder Agreements and the
transactions contemplated thereby will be paid by the party incurring such
fees or expenses, whether or not the Merger is consummated, except that each
of Thrifty PayLess and Rite Aid will bear and pay one-half of the costs and
expenses incurred in connection with (i) the Commission filing fees and
printing and mailing costs associated with this Joint Proxy
Statement/Prospectus and (ii) the filing fees applicable to the premerger
notification and report forms under the HSR Act.
OTHER COVENANTS
The Merger Agreement also contains certain other customary covenants and
requirements of the parties. Certain of such provisions are described
elsewhere in this Joint Proxy Statement/Prospectus; see "The Merger--Interests
of Certain Persons and Employee Matters--Severance Arrangements," "--LGA
Investment Banking Fee" and "--Directorship;" "Directors' and Officers'
Insurance and Indemnification," "Financing the Transaction," "Amendment of
Rite Aid Certificate of Incorporation" and "Resales of Rite Aid Common Stock."
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GEI/KMART STOCKHOLDER AGREEMENTS
The following summary of the material terms of the GEI/Kmart Stockholder
Agreements contained in this Joint Proxy Statement/Prospectus is not intended
to be a complete description of the terms and conditions thereof and is
qualified in its entirety by reference to the full texts thereof. Capitalized
terms not otherwise defined herein shall have the meanings set forth in the
Merger Agreement which is filed as Annex A hereto or the GEI/Kmart Stockholder
Agreements which are filed as exhibits to the Registration Statement, all of
which agreements are incorporated herein by reference.
VOTING OF THRIFTY PAYLESS COMMON STOCK
Concurrently with the execution of the Merger Agreement, each of GEI and
Kmart, who together hold approximately 42% of the outstanding Thrifty PayLess
Common Stock as of the date hereof (such outstanding shares together with any
securities of Thrifty PayLess acquired between the date of the Merger
Agreement and the termination of the respective GEI/Kmart Stockholder
Agreement being referred to herein as the "Securities"), entered into its
respective GEI/Kmart Stockholder Agreement with Rite Aid. The GEI/Kmart
Stockholder Agreements provide that, subject to certain exceptions, during the
period commencing on the date of the Merger Agreement and continuing until the
first to occur of the Effective Time or termination of the Merger Agreement in
accordance with its terms, (i) such Stockholder will not sell or transfer any
of its respective Securities or any interest therein to any person, other than
a wholly owned subsidiary of such stockholder, and (ii) at any meeting
(whether annual or special and whether or not an adjourned or postponed
meeting) of the holders of Thrifty PayLess Common Stock, however called, or in
connection with any written consent of the holders of Thrifty PayLess Common
Stock, such stockholder will appear at the meeting or otherwise cause its
respective Securities to be counted as present thereat for purposes of
establishing a quorum and vote or consent (or cause to be voted or consented)
its respective Securities (a) in favor of the adoption of the Merger Agreement
and the approval of other actions contemplated by the Merger Agreement and the
respective GEI/Kmart Stockholder Agreement and any actions required in
furtherance thereof; (b) against any action or agreement that would result in
a breach in any respect of any covenant, representation or warranty or any
other obligation or agreement of Thrifty PayLess under the Merger Agreement or
the respective GEI/Kmart Stockholder Agreement; and (c) except as otherwise
agreed to in writing in advance by Rite Aid in its sole discretion, against
the following actions (other than the Merger and the transactions contemplated
by the respective GEI/Kmart Stockholder Agreement and the Merger Agreement):
(1) any Takeover Proposal or Acquisition Agreement (other than the Merger or
the Merger Agreement) and (2)(u) any change in a majority of the persons who
constitute the Thrifty PayLess Board; (v) any material change in the present
capitalization of Thrifty PayLess, including without limitation any proposal
to sell a substantial equity interest in Thrifty PayLess or its subsidiaries;
(w) any amendment of Thrifty PayLess' Certificate of Incorporation or By-laws;
(x) any other change in Thrifty PayLess' corporate structure or business; or
(y) any other action which, in the case of each of the matters referred to in
clauses (2)(u), (v), (w) or (x), is intended, or could reasonably be expected,
to impede, interfere with, delay, postpone or materially adversely affect the
Merger and the transactions contemplated by the respective GEI/Kmart
Stockholder Agreement and the Merger Agreement. The GEI/Kmart Stockholders may
not enter into any agreement or understanding with any person the effect of
which would be inconsistent with or violative of any provision contained in
this paragraph.
SUBSEQUENT STOCKHOLDER ACTIONS
The GEI/Kmart Stockholder Agreements provide that, for a period of four
years from and after the Effective Time, at any meeting (whether annual or
special or whether or not an adjourned or postponed meeting of the holders of
Rite Aid Common Stock) or in connection with any written consent of the holder
of Rite Aid Common Stock, each of GEI and Kmart will vote or consent (or cause
to be voted or consented) all shares of Rite Aid Common Stock howsoever
acquired, then held of record, or beneficially owned, by such stockholder in
accordance with the recommendations of the Rite Aid Board.
PAYMENT TO RITE AID OF CERTAIN AMOUNTS RECEIVED
If Rite Aid becomes entitled to a Termination Fee pursuant to the Merger
Agreement and Thrifty PayLess consummates a Takeover Proposal or enters into
an Acquisition Agreement with any other party during the 12
50
<PAGE>
months following the termination of the Merger Agreement, subject to the last
sentence of this paragraph, with respect to Securities for which either GEI or
Kmart receives cash consideration pursuant to the Takeover Proposal or
Acquisition Agreement, the GEI/Kmart Stockholder Agreements provide that such
stockholder will immediately upon the receipt thereof pay to Rite Aid an
amount in cash (if positive) (the "Differential Amount") equal to (i) the net
pre-tax cash proceeds received by such stockholder with respect to the shares
of Thrifty PayLess Common Stock or other Securities of Thrifty PayLess,
including any shares of Thrifty PayLess Common Stock into or for which any
Securities are convertible, exchangeable or exercisable, of such stockholder
(such shares, the "Subject Shares") in such transaction or in a sale of any of
the securities to a third party that was initiated by such stockholder within
12 months after the date that the Merger Agreement is terminated, minus (ii)
the product of (a) 65% of the average closing sales price for Rite Aid Common
Stock on the NYSE Composite Tape for the five NYSE trading days immediately
preceding the first public announcement of the transaction in which the
Subject Shares are sold (such amount, the "Basis Amount") times (b) the number
of Subject Shares. Any non-cash consideration received by GEI or Kmart in a
transaction otherwise of a type described above as part of the net proceeds
("Other Consideration") will be held by such stockholder until it shall have
received in cash upon the sale or other disposition of such Other
Consideration an amount equal to the Basis Amount times the number of Subject
Shares, whereupon all other securities or proceeds thereof will be immediately
paid to Rite Aid.
STANDSTILL PROVISIONS
For a period of four years from the date of the Merger Agreement, except
within the terms of a specific written request from Rite Aid, each of GEI and
Kmart has agreed that it will not propose or publicly announce or otherwise
disclose an intent to propose, or enter into or agree to enter into, singly or
with any other person or directly or indirectly, (i) any form of business
combination, acquisition or other similar transaction relating to Rite Aid or
any subsidiary of Rite Aid, (ii) any form of restructuring, recapitalization
or similar transaction with respect to Rite Aid or any such subsidiary, or
(iii) any demand, request or proposal to amend, waive or terminate any
provision of the respective GEI/Kmart Stockholder Agreement and, except as
aforesaid during such period, neither such stockholder will (a) acquire, or
offer, propose or agree to acquire, by purchase or otherwise, any voting
securities of Rite Aid, in excess of 1% of Rite Aid's outstanding shares (not
counting for these purposes any shares of Rite Aid Common Stock acquired
pursuant to the Merger), (b) make, or in any way participate in, any
solicitation of proxies with respect to any such voting securities (including
by the execution of action by written consent), become a participant in any
election contest with respect to Rite Aid, seek to influence any person with
respect to any such voting securities or demand a copy of the list of the
stockholders or other books and records of Rite Aid, (c) participate in or
encourage the formation of any partnership, syndicate or other group which
owns or seeks or offers to acquire beneficial ownership of any such voting
securities or which seeks to affect control of Rite Aid or has the purpose of
circumventing any provision of the respective GEI/Kmart Stockholder Agreement,
(d) otherwise act, alone or in concert with others (including by providing
financing for another person), to seek or to offer to control or influence, in
any manner, the management, Board of Directors, or policies of Rite Aid, or
(e) make any proposal or other communication designed to compel Rite Aid to
make a public announcement thereof in respect of any matter referred to in
this paragraph.
NO SOLICITATION
Under the GEI/Kmart Stockholder Agreements, each of GEI and Kmart has agreed
that it will not, and will cause its representatives not to, directly or
indirectly (i) initiate, solicit or encourage, or take any action to
facilitate the making of, any offer or proposal which constitutes or is
reasonably likely to lead to any Takeover Proposal or any inquiry with respect
thereto or (ii) in the event of an unsolicited Takeover Proposal for Thrifty
PayLess or any affiliate of Thrifty PayLess, engage in negotiations or
discussions with, or provide any information or data to, any person (other
than Rite Aid, any of its affiliates or representatives) relating to any
Takeover Proposal.
RESTRICTION ON TRANSFER, PROXIES AND NON-INTERFERENCE
The GEI/Kmart Stockholder Agreements provide that neither GEI nor Kmart
will, directly or indirectly, prior to the Merger, subject to certain
exceptions, (i) offer for sale, sell, transfer, tender, pledge, encumber,
assign
51
<PAGE>
or otherwise dispose of, or enter into any contract, option or other
arrangement or understanding with respect to or consent to the offer for sale,
sale, transfer, tender, pledge, encumbrance, assignment or other disposition
of, any or all of the Securities or any interest therein; (ii) grant any
proxies or powers of attorney, deposit the Securities into a voting trust or
enter into a voting agreement with respect to the Securities; or (iii) take
any action that would make any representation or warranty of such stockholder
contained in the respective GEI/Kmart Stockholder Agreement untrue or
incorrect or would result in a breach by such stockholder of its obligations
under the respective GEI/Kmart Stockholder Agreement.
TERMINATION
The GEI/Kmart Stockholder Agreements will terminate upon the earlier of (i)
the consummation of the Merger and (ii) the termination of the Merger
Agreement in accordance with its terms, except that the provisions for payment
of the Differential Amount and registration rights (described below) will
survive any termination for the terms specified in such provisions and the
provisions pertaining to the voting of Rite Aid Common Stock, the standstill
provisions and the registration rights will survive the consummation of the
Merger. Notwithstanding the foregoing, after the Effective Time, the
provisions pertaining to the voting of Rite Aid Common Stock and the
standstill provisions will terminate (i) as to GEI, if there has been a
distribution of the Rite Aid Common Stock received by GEI pursuant to the
Merger to the limited partners of GEI, unless the persons or entities
receiving the distribution would constitute a "group" within the meaning of
Section 13(d) of the Exchange Act with respect to the securities of Rite Aid
and (ii) as to GEI or Kmart, if such party at any time no longer owns at least
2% of the outstanding shares of Rite Aid Common Stock.
REGISTRATION RIGHTS
The GEI/Kmart Stockholder Agreements provide that the GEI/Kmart Stockholders
will be entitled to cause Rite Aid to register Rite Aid Common Stock
beneficially owned by them and received pursuant to the Merger in accordance
with the terms and conditions of the GEI/Kmart Stockholder Agreements. Such
registration rights include both "demand" and "piggyback" rights. Pursuant to
the demand rights, GEI or Kmart may be in a position to sell all of their Rite
Aid Common Stock acquired in the Merger promptly following the consummation
thereof. In particular, Kmart's demand rights entitle it, among other things,
to make a demand for registration at any time prior to the Effective Time and,
upon such demand, Rite Aid is required to use reasonable efforts to cause a
registration statement with respect to Kmart's shares of Rite Aid Common Stock
to become effective as promptly as practicable following the Effective Time.
52
<PAGE>
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL DATA
The following Unaudited Pro Forma Condensed Consolidated Statements of
Operations for the 26 weeks ended August 31, 1996 and the fiscal year ended
March 2, 1996 present unaudited pro forma operating results for Rite Aid as if
the Merger had occurred as of the beginning of the periods presented. The
following Unaudited Pro Forma Condensed Consolidated Balance Sheet presents
the unaudited pro forma financial condition of Rite Aid as if the Merger had
occurred as of August 31, 1996. The excess of the purchase price of Thrifty
PayLess over the net identifiable assets and liabilities of Thrifty PayLess is
reported as goodwill. The carrying values of Thrifty PayLess' net assets are
assumed to equal their fair values for purposes of these unaudited pro forma
condensed consolidated financial statements unless indicated otherwise in the
Notes to Unaudited Pro Forma Condensed Consolidated Financial Data. These
values are subject to revision following the results of any appraisals after
consummation of the Merger and related transactions.
The Unaudited Pro Forma Condensed Consolidated Balance Sheet and Statements
of Operations were prepared assuming consummation of: (i) the Merger, which is
accounted for under the purchase method of accounting (see "The Merger--
Accounting Treatment"); (ii) the establishment by Rite Aid of an additional
$1.0 billion revolving credit facility to be provided to Rite Aid by a
syndicate of banks (the "Credit Facility"); (iii) the refinancing of $864.5
million of outstanding Thrifty PayLess debt as described in "The Merger--
Refinancing of Certain Thrifty PayLess Indebtedness" and in the accompanying
Notes to Unaudited Pro Forma Condensed Consolidated Financial Data; and (iv)
the Southeast Dispositions, the divestiture of Bi-Mart subsequent to the
Merger and other adjustments described in the accompanying Notes to Unaudited
Pro Forma Condensed Consolidated Financial Data. The pro forma adjustments are
based upon certain assumptions Rite Aid considered reasonable under the
circumstances. Final amounts will differ from those set forth in the following
unaudited pro forma condensed consolidated financial data.
The unaudited pro forma condensed consolidated financial data does not
reflect any synergies expected by Rite Aid management to be realized after the
Merger (see "The Merger--Rite Aid's Reasons for the Merger; Recommendation of
the Rite Aid Board") or costs related to the Southeast Dispositions, inasmuch
as such costs are non-recurring. See "The Merger--Rite Aid's Reasons for the
Merger; Recommendation of the Rite Aid Board" for a discussion of the $65
million of cost benefits and synergies estimated by Rite Aid management to be
realized annually. The Notes to Unaudited Pro Forma Condensed Consolidated
Financial Data describe the other adjustments related to the Merger. Such
unaudited pro forma data also does not reflect the effect that any purchase of
Thrifty PayLess Common Stock by Rite Aid prior to the consummation of the
Merger would have on such financial information.
THE UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL DATA IS PRESENTED
FOR INFORMATIONAL PURPOSES ONLY AND IS NOT NECESSARILY INDICATIVE OF THE
OPERATING RESULTS OR FINANCIAL POSITION THAT WOULD HAVE OCCURRED HAD THE
MERGER AND OTHER TRANSACTIONS DESCRIBED HEREIN BEEN CONSUMMATED AT THE DATES
INDICATED, NOR IS IT NECESSARILY INDICATIVE OF THE FUTURE OPERATING RESULTS OR
FINANCIAL POSITION OF RITE AID FOLLOWING THE MERGER.
The unaudited pro forma condensed consolidated financial data should be read
in conjunction with the consolidated financial statements of each of Rite Aid
and Thrifty PayLess and the related notes thereto contained in (i) Rite Aid's
Annual Report on Form 10-K for the year ended March 2, 1996, (ii) Rite Aid's
Quarterly Report on Form 10-Q for the quarter ended August 31, 1996, (iii)
Thrifty PayLess' Annual Report on Form 10-K for the year ended October 1, 1995
and (iv) Thrifty PayLess' Quarterly Report on Form 10-Q for the quarter ended
June 30, 1996, all of which are incorporated herein by reference. See
"Incorporation of Certain Documents by Reference."
53
<PAGE>
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
FOR THE 26 WEEKS ENDED AUGUST 31, 1996
(IN MILLIONS, EXCEPT SHARE AND PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
RITE AID THRIFTY PAYLESS
26 WEEKS ENDED 26 WEEKS ENDED PRO FORMA PRO FORMA
AUGUST 31, 1996 JUNE 30, 1996 ADJUSTMENTS COMBINED
--------------- --------------- ------------ ------------
<S> <C> <C> <C> <C>
Net sales............... $ 2,828.4 $ 2,336.5 $ 5,164.9
Cost of goods sold,
including occupancy
costs.................. 2,084.8 1,727.5 3,812.3
Selling, general and
administrative
expenses............... 580.4 550.6 $ 11.1 (a) 1,142.4
.3 (b)
Interest expense........ 37.2 59.5 (27.7)(c) 69.0
Non-recurring charge
related to Revco D.S.
Inc. acquisition costs. 16.1 16.1
----------- ----------- ------------ ------------
2,718.5 2,337.6 (16.3) 5,039.8
----------- ----------- ------------ ------------
Income (loss) from
continuing operations
before income taxes(1). 109.9 (1.1) 16.3 125.1
Income taxes (benefit).. 42.0 (.5) 10.5 (d) 52.0
----------- ----------- ------------ ------------
Net income (loss)(1).... $ 67.9 $ (.6) $ 5.8 $ 73.1
=========== =========== ============ ============
Average shares
outstanding............ 83,878,000 59,502,000 (20,826,000)(k) 122,554,000
Earnings (loss) per
share(1)............... $ .81 $ (0.01) $ 0.60
=========== =========== ============
</TABLE>
- --------
(1)For Thrifty PayLess, excludes extraordinary loss from early extinguishment
of debt.
See the accompanying Notes to Unaudited Pro Forma Condensed Consolidated
Financial Data.
54
<PAGE>
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
FOR THE FISCAL YEAR ENDED MARCH 2, 1996
(IN MILLIONS, EXCEPT SHARE AND PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
RITE AID THRIFTY PAYLESS
52 WEEKS ENDED 52 WEEKS ENDED PRO FORMA PRO FORMA
MARCH 2, 1996 DECEMBER 31, 1995 ADJUSTMENTS COMBINED
-------------- ----------------- ----------- ------------
<S> <C> <C> <C> <C>
Net sales............... $ 5,446.0 $ 4,664.5 $ 10,110.5
Cost of goods sold,
including occupancy
costs.................. 4,017.4 3,435.1 7,452.5
Selling, general and
administrative
expenses............... 1,104.1 1,100.7 $ 22.2 (a) 2,227.5
. .5 (b)
Interest expense........ 68.3 139.5 (75.7)(c) 132.1
----------- ----------- ----------- ------------
5,189.8 4,675.3 (53.0) 9,812.1
----------- ----------- ----------- ------------
Income (loss) from
continuing operations
before income taxes(1). 256.2 (10.8) 53.0 298.4
Income taxes............ 97.3 5.0 28.7 (d) 131.0
----------- ----------- ----------- ------------
Net income (loss)(1).... $ 158.9 $ (15.8) $ 24.3 $ 167.4
=========== =========== =========== ============
Average shares
outstanding............ 83,808,000 59,502,000 (20,826,000)(k) 122,484,000
Earnings (loss) per
share(1)............... $ 1.90 $ (0.26) $ 1.37
=========== =========== ============
</TABLE>
- --------
(1) For Thrifty PayLess, excludes extraordinary loss from early extinguishment
of debt.
See the accompanying Notes to Unaudited Pro Forma Condensed Consolidated
Financial Data.
55
<PAGE>
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEET
AS OF AUGUST 31, 1996
(IN MILLIONS)
<TABLE>
<CAPTION>
PRO FORMA
RITE AID THRIFTY PAYLESS PRO FORMA ADJUSTMENTS FOR PRO FORMA
AUGUST 31, 1996 JUNE 30, 1996 ADJUSTMENTS DISPOSITIONS(N) COMBINED
--------------- --------------- ----------- --------------- ---------
<S> <C> <C> <C> <C> <C>
ASSETS
Cash.................... $ 9.4 $ .8 $ (2.0) $ 8.2
Accounts receivable,
net.................... 248.0 98.9 (19.4) 327.5
Inventories............. 1,222.1 1,097.0 28.0 (e) (159.6) 2,187.5
Other current assets.... 40.9 34.4 (2.5) 72.8
Current assets,
dispositions........... 183.5 183.5
-------- -------- -------- ------ --------
Total current assets.. 1,520.4 1,231.1 28.0 -- 2,779.5
-------- -------- -------- ------ --------
Property, plant &
equipment, net......... 1,142.1 560.1 123.0 (l) (61.7) 1,763.5
Intangible assets, net.. 372.3 133.4 999.0 (f) (6.6) 1,498.1
Other noncurrent assets. 67.6 50.7 5.0 (g) (2.9) 135.0
(18.0)(g)
32.6 (h)
Noncurrent assets,
dispositions........... 7.7 (h) 71.2 78.9
-------- -------- -------- ------ --------
Total assets.......... $3,102.4 $1,975.3 $1,177.3 $ -- $6,255.0
======== ======== ======== ====== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Short term debt and
current maturities of
long term debt......... $ 58.3 $ 28.4 $ (28.4)(i) $ $ 58.3
Accounts payable........ 253.3 288.4 (31.4) 510.3
Other current
liabilities and
deferred taxes......... 152.5 381.7 24.0 (j) (25.2) 638.0
105.0 (m)
Other current
liabilities,
dispositions........... 56.6 56.6
-------- -------- -------- ------ --------
Total current
liabilities.......... 464.1 698.5 100.6 -- 1,263.2
-------- -------- -------- ------ --------
Long term debt, net..... 1,382.8 836.1 67.0 (i) (5.5) 2,308.8
28.4 (i)
Deferred taxes.......... 113.9 (40.3) 10.7 (h) (13.7) 103.2
32.6 (h)
Other long term
liabilities............ 106.0 106.0
Noncurrent liabilities,
dispositions........... 7.7 (h) 19.2 26.9
Common stock............ 90.4 .6 38.1 (k) 129.1
Additional paid in
capital................ 63.7 503.4 763.2 (k) 1,330.3
Retained earnings....... 1,092.7 (118.7) 118.7 (k) 1,092.7
Cumulative pensions
liability adjustments.. (.4) (.4)
Treasury stock.......... (104.8) (10.3) 10.3 (k) (104.8)
-------- -------- -------- ------ --------
Total stockholders'
equity............... 1,141.6 375.0 930.3 -- 2,446.9
-------- -------- -------- ------ --------
Total liabilities and
stockholders' equity... $3,102.4 $1,975.3 $1,177.3 $ -- $6,255.0
======== ======== ======== ====== ========
</TABLE>
See the accompanying Notes to Unaudited Pro Forma Condensed Consolidated
Financial Data.
56
<PAGE>
NOTES TO UNAUDITED PRO FORMA
CONDENSED CONSOLIDATED FINANCIAL DATA
BASIS OF CONSOLIDATION
Thrifty PayLess' most recent fiscal year data that is available is for the
year ended October 1, 1995. For purposes of the Unaudited Pro Forma Condensed
Consolidated Statement of Operations for the fiscal year ended March 2, 1996,
Rite Aid's historical information is from the fiscal year ended March 2, 1996,
and the results of operations for Thrifty PayLess are for the 52 weeks ended
December 31, 1995. For purposes of the interim Unaudited Pro Forma Condensed
Consolidated Statement of Operations for the 26 weeks ended August 31, 1996,
the results of operations for the 26-week period ended August 31, 1996 were
used for Rite Aid, and the results of operations for the 26-week period ended
June 30, 1996 were used for Thrifty PayLess.
As a result of installing standardized store systems in all Thrifty PayLess
locations, and combining and standardizing various administrative support
functions such as marketing, advertising, accounting and management
information systems, Rite Aid's management expects to operate the combined
operations of Rite Aid and Thrifty PayLess with a more efficient overhead
expense structure than each of the two entities operating on a stand alone
basis. Rite Aid also expects to achieve cost reductions as a result of
increased purchasing power derived from the combination of the two companies.
See "The Merger--Rite Aid's Reasons for the Merger; Recommendation of the Rite
Aid Board." However, for purposes of the Unaudited Pro Forma Condensed
Consolidated Statements of Operations, these and other potential synergies in
overhead expenses have not been reflected because their realization cannot be
assured. See "Available Information--Certain Forward-Looking Statements."
DETERMINATION AND ALLOCATION OF PURCHASE PRICE
Pursuant to the Merger Agreement, all of the outstanding Thrifty PayLess
Common Stock will be converted to Rite Aid Common Stock at the Exchange Ratio.
The final purchase price and the allocation of the assigned purchase price to
goodwill will either increase or decrease based on the movement of the stock
price. The following table sets forth the purchase price (in millions) based
on an assumed $33.75 per share market value, which amount is the closing price
for Rite Aid Common Stock on October 18, 1996.
<TABLE>
<S> <C>
Market value of shares of Rite Aid Common Stock issued in the
Merger.......................................................... $1,305
Transaction costs................................................ 37
Payment for outstanding Thrifty PayLess Stock Options............ 30
------
Pro Forma Purchase Price....................................... $1,372
======
</TABLE>
The Merger will be accounted for as a purchase. The preliminary allocation
of the pro forma purchase price by Rite Aid is as follows (in millions):
<TABLE>
<S> <C>
Pro forma purchase price.......................................... $1,372
Equity acquired................................................... (375)
------
Unallocated pro forma purchase price............................ $ 997
======
Pro forma purchase price allocation
Fixed assets.................................................... $ 123
Merger liabilities.............................................. (105)
Inventory....................................................... 28
Goodwill........................................................ 999
Other........................................................... (48)
------
Total......................................................... $ 997
======
</TABLE>
PRO FORMA ADJUSTMENTS
(a) Amortization of the estimated goodwill relating to the Merger of $999
million over a forty-year period ($999 million/40 = $24.975 million).
The historical goodwill reflected on the Thrifty PayLess balance sheet
was being amortized over a fifteen-year period at $3.9 million per
year. The remaining balance of
57
<PAGE>
$45 million of goodwill will be reconstituted as new goodwill and
amortized over a forty-year period ($45 million / 40 = $1.125 million).
Accordingly, the pro forma incremental charge to goodwill is $22.2
million ($24.975 million + $1.125 million - $3.9 million). The pro forma
adjustment for the 26-week period ended August 31, 1996 represents one-
half of the annualized pro forma adjustment amount.
(b) Reflects pro forma amortization of estimated financing fees for the
Credit Facility, based upon estimated fees of $0.2 million for a 364-
day Credit Facility, and debt issuance costs for $600 million in new
senior debt of approximately $4.8 million amortized over the estimated
ten- and thirty-year lives of the respective debt issuances ($2.1
million / 10 years) plus ($2.7 million / 30 years). Rite Aid
anticipates refinancing approximately $600 million of the Credit
Facility with long-term fixed interest rate senior debt following
consummation of the Merger. The pro forma adjustments for the 26-weeks
ended August 31, 1996 represents one-half of the annualized pro forma
adjustment amount.
(c) Reflects the net pro forma additional interest expense on Rite Aid's
total borrowings and the reversal of Thrifty PayLess' historical debt
discount and fee amortization. It is assumed that, after completion of
the Merger, Rite Aid will refinance or retire substantially all of
Thrifty PayLess' outstanding debt to the extent practicable. See "The
Merger--Refinancing of Certain Thrifty PayLess Indebtedness." The
components of Rite Aid's total pro forma combined debt after Thrifty
PayLess' debt is refinanced or retired are as follows:
$200 million of Rite Aid senior 7.625% debt;
$200 million of Rite Aid of new senior 6.875% debt;
$300 million of new Rite Aid senior 7.85% debt;
$300 million of new Rite Aid senior 7.3% debt;
$70.6 million of Rite Aid 6.2% other debt;
$193 million of Rite Aid zero coupon bonds accreting interest at
6.75%; and Rite Aid's commercial paper indebtedness totalling $1.104
billion with a 5.5% weighted average interest rate.
The pro forma combined interest expense reflects the difference between
the interest rates currently available to Rite Aid and the historical
rates of interest paid by Thrifty PayLess.
(d) Income taxes have been calculated based on Rite Aid's effective
statutory rate for the respective periods. Amortization of goodwill is
not deductible for tax purposes.
(e) Reflects the pro forma adjustment of LIFO inventories to value the
inventory at fair market value. Rite Aid believes the adjusted carrying
values represent estimated selling prices of merchandise inventories
less the sum of costs of disposal and a reasonable profit allowance.
This value is subject to revisions pending completion of physical
inventories.
(f) Records pro forma purchase price allocation to goodwill for excess of
purchase price over net assets and direct costs of the transaction,
primarily financial advisory and legal fees. Based on the purchase of
all of the outstanding shares of Thrifty PayLess Common Stock
(approximately 59,502,000 shares) converted into Rite Aid Common Stock
at an Exchange Ratio of 0.65 (approximately 38,676,000 shares) valued
at an assumed Rite Aid market price of $33.75.
(g) Records the estimated $5 million in financing fees for the Credit
Facility and issuance of $600 million of new senior debt (see Note (b))
and removes Thrifty PayLess' unamortized debt issue costs of $18
million.
(h) Reclassifies the Thrifty PayLess historical net deferred tax assets and
records the deferred tax impact of the fair value adjustment to
inventory.
(i) See "The Merger--Refinancing of Certain Thrifty PayLess Indebtedness"
for a discussion of certain Thrifty PayLess indebtedness.
(j) Records pro forma premium on assumed purchase of TPI Sub Debt. See "The
Merger--Refinancing of Certain Thrifty PayLess Indebtedness."
58
<PAGE>
(k) Records the issuance of 38,676,000 shares of Rite Aid Common Stock at
$33.75 per share at the 0.65 Exchange Ratio and the elimination of
Thrifty PayLess' equity accounts.
(l) Records the fair value adjustments for Thrifty PayLess fixed assets.
(m) Rite Aid estimates that expenses associated with closing Thrifty
PayLess' corporate headquarters, severance and retention costs of
employees, and other Merger costs will be $105 million. These costs
will be recorded as a liability assumed in the Merger. There can be no
assurance, however, that the amount of such charges will not increase
as Rite Aid's integration plan is further developed and more accurate
estimates become available.
(n) The pro forma adjustments for the Southeast Dispositions and Bi-Mart
represent the reclassification of the Rite Aid stores being divested in
Alabama, Georgia, Florida, North Carolina and South Carolina, and the
proposed divestiture of the Thrifty PayLess' Bi-Mart stores. The table
below presents the balances for the respective dispositions. Rite Aid
estimates that it will receive approximately $200 million from the sale
of stores in the Southeast Dispositions and between $50 to $80 million
from the sale of Thrifty PayLess' Bi-Mart stores.
<TABLE>
<CAPTION>
RITE AID BI-MART TOTAL
-------- ------- -------
<S> <C> <C> <C>
ASSETS
Cash............................................. $ (2.0) $ -- $ (2.0)
Accounts receivable.............................. (13.1) (6.3) (19.4)
Inventories...................................... (83.8) (75.8) (159.6)
Other current assets............................. (1.3) (1.2) (2.5)
------- ------ -------
Total current assets........................... $(100.2) $(83.3) $(183.5)
======= ====== =======
Property and equipment, net...................... $ (53.2) $ (8.5) $ (61.7)
Intangible assets, net........................... (6.6) -- (6.6)
Other noncurrent assets.......................... -- (2.9) (2.9)
------- ------ -------
Total noncurrent assets........................ $ (59.8) $(11.4) $ (71.2)
======= ====== =======
LIABILITIES
Accounts payable................................. $ (3.3) $(28.1) $ (31.4)
Other current liabilities and deferred taxes..... (4.0) (21.2) (25.2)
------- ------ -------
Total current liabilities...................... $ (7.3) $(49.3) $ (56.6)
======= ====== =======
Long term debt................................... $ (.6) $ (4.9) $ (5.5)
Deferred taxes................................... (21.3) 7.6 (13.7)
------- ------ -------
Total noncurrent liabilities................... $ (21.9) $ 2.7 $ (19.2)
======= ====== =======
</TABLE>
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DESCRIPTION OF RITE AID CAPITAL STOCK
The statements set forth under this heading with respect to the DGCL, Rite
Aid's Certificate of Incorporation (the "Rite Aid Charter") and Rite Aid's By-
laws are brief summaries thereof and do not purport to be complete. Such
statements are subject to the detailed provisions of the DGCL, the Rite Aid
Charter and the Rite Aid By-laws. See "Available Information."
Under Rite Aid's Charter, Rite Aid's authorized capital stock consists of
240,000,000 shares of Rite Aid Common Stock and 20,000,000 shares of Rite Aid
preferred stock, par value $1.00 per share (the "Rite Aid Preferred Stock").
Pursuant to the Merger Agreement, Rite Aid will amend the Rite Aid Charter to,
among other things, (i) change the authorized capital stock from 240,000,000
shares of Common Stock to 300,000,000 shares of Common Stock, (ii) provide for
the broadest mandatory and permitted indemnification and exculpation permitted
by law, and (iii) remove any obsolete provisions. See "The Merger--Amendment
of Rite Aid Certificate of Incorporation."
RITE AID PREFERRED STOCK
No shares of Rite Aid Preferred Stock are issued or outstanding. The Rite
Aid Board is authorized to issue Rite Aid Preferred Stock in one or more
series and to determine liquidation preferences, voting rights, dividend
rights, conversion rights and redemption rights. The ability of the Rite Aid
Board to issue and set the terms of Rite Aid Preferred Stock could have the
effect of making it more difficult for a third person to acquire, or of
discouraging a third person from attempting to acquire, control of Rite Aid.
RITE AID COMMON STOCK
Assuming that issuance of an estimated shares of Rite Aid Common
Stock issuable to stockholders of Thrifty PayLess in the Merger occurred as of
the Rite Aid Record Date, shares of Rite Aid Common Stock would have been
issued and outstanding as of the Rite Aid Record Date. An additional
shares of Rite Aid Common Stock were issued and held in the treasury of Rite
Aid, shares of Rite Aid Common Stock were subject to outstanding options
or other rights to acquire such stock, and shares of Rite Aid Common Stock
were reserved for issuance under Rite Aid's 1990 Omnibus Stock Incentive Plan.
The holders of Rite Aid Common Stock are entitled to receive ratably, from
funds legally available for the payment thereof, dividends when and as
declared by resolution of the Rite Aid Board, subject to any preferential
dividend rights granted to the holders of any outstanding Rite Aid Preferred
Stock.
Each holder of Rite Aid Common Stock is entitled to one vote in respect of
each share of such stock. The holders of Rite Aid Common Stock do not have
preemptive, subscription, redemption or conversion rights. The outstanding
shares of Rite Aid Common Stock are, and the shares of Rite Aid Common Stock
issued pursuant to the Merger will be, duly authorized, validly issued, fully
paid and nonassessable, and the outstanding shares of Rite Aid Common Stock
are, and the shares of Rite Aid Common Stock issued pursuant to the Merger
upon notice of issuance will be, listed on the NYSE and the PSE.
CHANGE OF CONTROL
Section 203 of the DGCL prohibits generally a public Delaware corporation,
including Rite Aid, from engaging in a Business Combination (as defined below)
with an Interested Stockholder (as defined below) for a period of three years
after the date of the transaction in which an Interested Stockholder became
such, unless: (i) the board of directors of such corporation approved, prior
to the date such Interested Stockholder became such, either such Business
Combination or such transaction; (ii) upon consummation of such transaction,
such Interested Stockholder owns at least 85% of the voting shares of such
corporation (excluding specified shares); or (iii) such Business Combination
is approved by the board of directors of such corporation and authorized by
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the affirmative vote (at an annual or special meeting and not by written
consent) of at least 66 2/3% of the outstanding voting shares of such
corporation (excluding shares held by such Interested Stockholder). A
"Business Combination" includes (i) mergers, consolidations and sales or other
dispositions of 10% or more of the assets of a corporation to or with an
Interested Stockholder, (ii) certain transactions resulting in the issuance or
transfer to an Interested Stockholder of any stock of such corporation or its
subsidiaries and (iii) certain other transactions resulting in a financial
benefit to an Interested Stockholder. An "Interested Stockholder" is a person
who, together with its affiliates and associates, owns (or within a three-year
period did own) 15% or more of a corporation's stock entitled to vote
generally in the election of directors.
CHARTER PROVISIONS
The Rite Aid Charter specifies that the Rite Aid Board shall be divided into
three classes, as nearly equal in number as possible, and shall consist of not
less than three nor more than 15 directors elected for three year staggered
terms. The Rite Aid By-laws provide that the number of directors on the Rite
Aid Board may be fixed by the Rite Aid Board only, or if the number is not
fixed, the number will be seven. The number of directors may be increased or
decreased by the Rite Aid Board only. In the interim period between annual
meetings of stockholders or of special meetings of stockholders, vacancies and
newly created directorships may be filled by the Rite Aid Board. Any directors
so elected will hold office until the next election of the class to which such
directors have been elected. The Rite Aid Board currently consists of 10
directors. The Merger Agreement provides that, if Thrifty PayLess so requests,
Rite Aid will take such action as may be required so that Leonard I. Green,
the Chairman of the Thrifty PayLess Board, if he is ready and willing to
serve, will be elected to the Rite Aid Board as of the Effective Time. See
"The Merger--Interests of Certain Persons and Employee Matters."
The Rite Aid Charter requires that any mergers, consolidations, asset
dispositions and other transactions involving a beneficial owner of 10% or
more of the voting power of the then outstanding classes of stock entitled to
vote in the election of directors (the "Voting Stock") be approved, unless
certain conditions are satisfied, by the affirmative vote of the holders of
shares representing not less than 75% of the Voting Stock. These special
voting requirements do not apply if the transaction is approved by a majority
of the Continuing Directors (as defined below) or the consideration offered to
the stockholders of Rite Aid meets specified fair price standards (including
related procedural requirements as to the form of consideration and continued
payment of dividends). "Continuing Directors" as defined in the Rite Aid
Charter means a member of the Rite Aid Board who was not affiliated with a
Related Person (as defined below) and was a member of the Rite Aid Board prior
to the time that the Related Person acquired the last shares of Rite Aid
Common Stock entitling such Related Person to exercise, in the aggregate, in
excess of 10% of the total voting power of all classes of Voting Stock, or any
individual, corporation, partnership, person or other entity ("Person")
recommended to succeed a Continuing Director by a majority of Continuing
Directors. "Related Person" as defined in the Rite Aid Charter means any
Person, affiliate or associate of such Person, which has beneficial ownership
directly or indirectly of shares of stock of Rite Aid entitling such Person to
exercise more than 10% of the total voting power of all classes of Voting
Stock.
The Rite Aid Charter also provides that any corporate action either (i)
taken at a special meeting of stockholders called by the Rite Aid Board, a
majority of whose members are not Continuing Directors or (ii) approved by
written consent of stockholders, shall require the approval of not less than
75% of the then outstanding Voting Stock.
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COMPARISON OF STOCKHOLDER RIGHTS
GENERAL
Upon consummation of the Merger, the stockholders of Thrifty PayLess, a
Delaware corporation, will become stockholders of Rite Aid, a Delaware
corporation. Differences between Thrifty PayLess's Restated Certificate of
Incorporation (the "Thrifty PayLess Charter") and the Rite Aid Charter to be
in effect as of the Effective Time (the "Rite Aid Restated Charter"), will
result in changes in the rights of stockholders of Thrifty PayLess when they
become stockholders of Rite Aid. The following is a description of certain of
such differences, based on the DGCL as in effect on the date hereof and the
respective charters of Thrifty PayLess and Rite Aid. Certain provisions of the
DGCL and of the Rite Aid Restated Charter could have the effect of making it
more difficult for a third party to acquire, or of discouraging a third party
from attempting to acquire, control of Rite Aid without the approval of the
Rite Aid Board.
The provisions in the Rite Aid Restated Charter relating to the issuance of
preferred stock, dividend rights and the lack of preemptive, subscription or
redemption rights will be substantially similar to the provisions in the
Thrifty PayLess Charter and the existing Rite Aid Charter. See "Description of
Rite Aid Capital Stock--Right Aid Preferred Stock" and "--Rite Aid Common
Stock."
In addition, as Delaware corporations, both Rite Aid and Thrifty PayLess are
subject to the provisions of DGCL Section 203. See "Description of Rite Aid
Capital Stock--Change of Control."
VOTING RIGHTS
The Thrifty PayLess Charter currently authorizes A Common Stock, B Common
Stock and preferred stock. Under certain circumstances (as set forth below),
the A Common Stock and B Common Stock will automatically convert into a single
class with identical rights and privileges (a "Conversion"). Pursuant to the
Thrifty PayLess Charter, the Thrifty PayLess Board is comprised of seven
directors. Prior to any Conversion, five of Thrifty PayLess' directors are
elected by the holders of A Common Stock and two are elected by the holders of
B Common Stock (the "Special Voting Rights"). The Rite Aid Restated Charter
has no provision comparable to the Special Voting Rights. Accordingly, the
holders of A Common Stock and B Common Stock who become stockholders of Rite
Aid will no longer have the Special Voting Rights and will be entitled to
voting rights on the same basis as Rite Aid's other stockholders (i.e., one
vote in respect of each share of such stock).
Pursuant to the terms of the Thrifty PayLess Charter, a Conversion will
occur in the event that (i) no "person" (as defined under Rule 13d-3 of the
Exchange Act) owns that number of shares of B Common Stock constituting at
least 75% of the number of shares of A Common Stock owned by GEI, (ii) GEI's
ownership of A Common Stock decreases by more than 50% from 14,139,600 shares
(the number it currently owns), or (iii) the outstanding shares of A Common
Stock represent less than 25% of the outstanding shares of all classes of
Thrifty PayLess Common Stock. In addition, pursuant to the Thrifty PayLess
Charter, shares of A Common Stock may be converted at the option of the holder
thereof into shares of B Common Stock in connection with a sale of such stock,
provided such holder of A Common Stock makes certain required representations
to Thrifty PayLess.
OTHER CHARTER PROVISIONS
The Thrifty PayLess Charter does not contain any provisions comparable to
those of the Rite Aid Restated Charter or the existing Rite Aid Charter
relating to the classification of Rite Aid's Board. See "Description of Rite
Aid Capital Stock--Charter Provisions."
In addition, the Rite Aid Charter contains, and the Rite Aid Restated
Charter will contain, provisions that, in certain circumstances, require the
affirmative vote of the holders of shares representing not less than 75% of
the Rite Aid Voting Stock (as defined above). The Thrifty PayLess Charter has
no comparable provision. See "Description of Rite Aid Capital Stock--Charter
Provisions."
The Thrifty PayLess Charter provides that, prior to any Conversion, an
affirmative vote of the holders of a majority of the outstanding shares of B
Common Stock is generally required to approve a sale of substantially
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all of Thrifty PayLess' assets, a statutory exchange, or a merger or
consolidation following which the holders of A Common Stock and B Common Stock
together do not have the power to elect a majority of Thrifty PayLess'
directors or in which holders of B Common Stock receive consideration with
materially different rights from those of A Common Stock holders (each a "Sale
Transaction"), provided that no separate class vote of B Common Stock holders
is required if the consideration received by A Common Stock holders and B
Common Stock holders in such transaction is the same (such as in the case of
the Merger, in which holders of A Common Stock and B Common Stock will vote
together as a single class). In addition, the Thrifty PayLess Charter provides
that, prior to any Conversion, the affirmative vote of at least one director
elected by the B Common Stock holders is required to approve dividend
declarations, certain stock redemptions, certain affiliated transactions,
dissolution or liquidation plans, the election to enter into a line of
business other than retail merchandising, certain private placements of
additional shares of Thrifty PayLess Common Stock, issuance of additional
shares of A Common Stock, approval of a Sale Transaction or certain amendments
to Thrifty PayLess' Charter.
LEGAL MATTERS
The validity of the Rite Aid Common Stock to be issued to Thrifty PayLess
stockholders pursuant to the Merger will be passed upon by Franklin C. Brown,
Esq., Executive Vice President and Chief Legal Counsel of Rite Aid. Mr. Brown
is the beneficial owner of shares of Rite Aid Common Stock. It is a
condition to the consummation of the Merger that Thrifty PayLess and Rite Aid
receive an opinion of Jones Day, counsel to Rite Aid, or Irell & Manella LLP,
counsel to Thrifty PayLess, to the effect that, among other things, the Merger
will constitute a "reorganization" within the meaning of Section 368(a) of the
Code. Partners of the law firm of Irell & Manella LLP own 60,180 shares of the
A Common Stock and 1,002 shares of the B Common Stock of Thrifty PayLess.
EXPERTS
The consolidated financial statements and schedule of Rite Aid Corporation
and subsidiaries as of March 2, 1996 and March 4, 1995, and for each of the
years in the three-year period ended March 2, 1996, have been incorporated by
reference in this Joint Proxy Statement/Prospectus in reliance upon the
reports of KPMG Peat Marwick LLP, independent certified public accountants,
incorporated by reference herein, and upon the authority of said firm as
experts in accounting and auditing. The report of KPMG Peat Marwick LLP
covering the March 4, 1995, consolidated financial statements refers to a
change in the method of accounting for investments.
With respect to the unaudited interim financial information of Rite Aid
Corporation and subsidiaries for the periods ended June 1, 1996 and August 31,
1996, incorporated by reference herein, KPMG Peat Marwick LLP has reported
that they applied limited procedures in accordance with professional standards
for a review of such information. However, their separate reports included in
Rite Aid's quarterly reports on Form 10-Q for the quarters ended June 1, 1996
and August 31, 1996, and incorporated by reference herein, states that they
did not audit and they do not express an opinion on the interim financial
information. Accordingly, the degree of reliance on their reports on such
information should be restricted in light of the limited nature of the review
procedures applied. The accountants are not subject to the liability
provisions of Section 11 of the Securities Act for their report on the
unaudited interim financial information because that report is not a "report"
or a "part" of the Joint Proxy Statement/Prospectus prepared or certified by
the accountants within the meaning of Sections 7 and 11 of the Securities Act.
The consolidated financial statements and schedule of Thrifty PayLess
Holdings, Inc. and subsidiaries as of October 1, 1995 and October 2, 1994 and
for each of the years in the three-year period ended October 1, 1995, have
been incorporated by reference in this Joint Proxy Statement/Prospectus in
reliance upon the report of KPMG Peat Marwick LLP, independent certified
public accountants, incorporated by reference herein, and upon the authority
of said firm as experts in accounting and auditing.
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STOCKHOLDERS' PROPOSALS
It is presently anticipated that Rite Aid will hold its 1997 Annual Meeting
on or about , 1997. Any stockholder wishing to submit a proposal to Rite
Aid for consideration for inclusion in its proxy statement relating to its
1997 Annual Meeting of Stockholders must have delivered such proposal to Rite
Aid by , 1997.
Thrifty PayLess will hold its 1997 Annual Meeting of Stockholders only if
the Merger has not been consummated. In the event that Thrifty PayLess holds a
1997 Annual Meeting of Stockholders, such meeting will be held during the
spring of 1997, and any proposals from Thrifty PayLess stockholders intended
to be presented thereat and included in Thrifty PayLess' proxy statement
relating thereto must meet the eligibility and other requirements (including
timely submission) of the Commission's rules governing stockholder proposals
and the requirements imposed by Thrifty PayLess' Charter and By-laws.
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ANNEX A
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of October 13, 1996, by and between
Rite Aid Corporation, a Delaware corporation ("Parent"), and Thrifty Payless
Holdings, Inc., a Delaware corporation (the "Company").
RECITALS
A. The Boards of Directors of Parent and the Company have approved, and deem
it advisable and in the best interests of their respective stockholders to
consummate, the acquisition of the Company by Parent upon the terms and
subject to the conditions set forth herein;
B. It is intended that the acquisition be accomplished by a merger of the
Company with and into Parent (the "Merger"), with Parent being the surviving
corporation (as such, the "Surviving Corporation");
C. As a condition and inducement to Parent entering into this Agreement and
incurring the obligations set forth herein, immediately following the
execution and delivery of this Agreement, (i) Kmart Corporation, a Delaware
corporation, is entering into an agreement with Parent in the form of Exhibit
A hereto (the "Stockholder No. 1 Agreement"), pursuant to which, among other
things, such stockholder has agreed to vote the shares of Company Common Stock
beneficially owned by it in favor of the adoption of the Merger Agreement as
provided for therein and (ii) simultaneously with the Stockholder No. 1
Agreement, Green Equity Investors, L.P., a Delaware limited partnership, is
entering into an agreement with Parent in the form of Exhibit B hereto (the
"Stockholder No. 2 Agreement"), pursuant to which, among other things, such
stockholder has agreed to vote the shares of Company Common Stock beneficially
owned by it in favor of the adoption of the Merger Agreement as provided for
therein;
D. The Board of Directors of the Company (the "Company Board") has approved
the transactions contemplated by this Agreement, the Stockholder No. 1
Agreement and the Stockholder No. 2 Agreement (together with the Stockholder
No. 1 Agreement, the "Stockholder Agreements") in accordance with the
provisions of Section 203(a)(1) of the Delaware General Corporation Law (the
"DGCL") and has resolved to recommend the adoption of the Merger Agreement by
the holders of Company Common Stock; and
E. The Board of Directors of Parent (the "Parent Board") has resolved to
recommend adoption of this Agreement and the issuance of Parent Common Stock
as provided herein by the holders of Parent Common Stock.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties and covenants set forth herein and in the
Stockholder Agreements, the parties hereto agree as follows:
I. THE MERGER
1.1. THE MERGER. Subject to the terms and conditions of this Agreement and
in accordance with the DGCL, at the Effective Time, the Company and Parent
will consummate a merger (the "Merger") pursuant to which (a) the Company will
be merged with and into Parent and the separate corporate existence of the
Company will thereupon cease and (b) Parent will be the surviving corporation
in the Merger and will continue to be governed by the laws of the State of
Delaware. Pursuant to the Merger, (i) the Certificate of Incorporation of
Parent, as in effect immediately prior to the Effective Time (including
amendments contemplated by Exhibit C), will be the Certificate of
Incorporation of the Surviving Corporation until thereafter amended as
provided by law and such Certificate of Incorporation and (ii) the By-laws of
Parent, as in effect immediately prior to the Effective Time, will be the By-
laws of the Surviving Corporation until thereafter amended as provided by law,
the
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Certificate of Incorporation of the Surviving Corporation and such By-laws.
The Merger will have the effects set forth in the DGCL.
1.2. EFFECTIVE TIME. Parent and the Company will cause a certificate of
merger with respect to the Merger (the "Certificate of Merger") to be executed
and filed on the date of the Closing (or on such other date as Parent and the
Company may agree) with the Secretary of State of the State of Delaware as
provided in the DGCL. The Merger will become effective on the date on which
the Certificate of Merger has been duly filed with the Secretary of State or
such time as is agreed upon by the parties and specified in the Certificate of
Merger, and such time is referred to herein as the "Effective Time".
1.3. CLOSING. The closing (the "Closing") of the transactions contemplated
hereby will take place at 1:00 p.m., New York City time, on the date of the
last to occur of the Special Meetings or, if all of the conditions to the
Closing set forth herein have not then been satisfied, on the business day on
which all of the conditions set forth in Article VI hereof have been satisfied
or waived as herein provided, at the offices of Jones, Day, Reavis & Pogue,
599 Lexington Avenue, New York, New York, unless another time, date or place
is agreed to in writing by the parties hereto. The date on which the Closing
occurs is hereafter referred to as the "Closing Date."
1.4. DIRECTORS AND OFFICERS. Subject to Section 5.18, the directors and
officers of Parent will, at, from and after the Effective Time, be the initial
directors and officers of the Surviving Corporation until their successors
will have been duly elected or appointed or qualified or until their earlier
death, resignation or removal in accordance with the Surviving Corporation's
Certificate of Incorporation and By-laws.
1.5. STOCKHOLDERS' MEETINGS. (a) In order to consummate the Merger, the
Company will, in accordance with applicable law, duly call, give notice of,
convene and hold a special meeting of its stockholders (the "Company Special
Meeting"), as soon as practicable after the registration statement on Form S-4
(together with all amendments, schedules and exhibits thereto) to be filed by
Parent in connection with the registration of the Parent Common Stock to be
issued by Parent in the Merger (the "Registration Statement") is declared
effective, for the purpose of considering and taking action on this Agreement.
The Company will include in the joint proxy statement/prospectus forming a
part of the Registration Statement (the "Proxy Statement/Prospectus") the
recommendation of the Company Board that stockholders of the Company vote in
favor of the adoption of this Agreement.
(b) In order to consummate the Merger, Parent will, in accordance with
applicable law, duly call, give notice of, convene and hold a special meeting
of its stockholders (the "Parent Special Meeting" and together with the
Company Special Meeting, the "Special Meetings"), as soon as practicable after
the Registration Statement is declared effective, for the purpose of
considering the adoption of this Agreement and authorizing the issuance of
shares of Parent Common Stock pursuant to the Merger. Parent will include in
the Proxy Statement/Prospectus the recommendation of the Parent Board that
stockholders of Parent vote in favor of the adoption of this Agreement and the
issuance of shares of Parent Common Stock, par value $1.00 per share ("Parent
Common Stock"), in the Merger.
(c) Nothing in this Section 1.5 is intended to impair compliance with the
fiduciary duties of the Company Board or the Parent Board in respect of any
recommendation to the stockholders of the Company or Parent, as the case may
be, in respect of this Agreement or the transactions contemplated hereby,
provided, however, that nothing in this Article I will limit the respective
rights or obligations of the parties under any other Article hereof.
II. CONVERSION OF SHARES
2.1. CONVERSION OF SHARES. (a) Subject to Section 2.1(d), each share (other
than shares to be cancelled pursuant to Section 2.1(b) hereof) of Class A
Common Stock, par value $.01 per share, of the Company ("A Common Stock"), and
each share of Class B Common Stock, par value $.01 per share, of the Company
("B Common Stock" and, together with the A Common Stock, the "Company Common
Stock") will, at the
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Effective Time, by virtue of the Merger and without any action on the part of
the holder thereof, be converted into the right to receive 0.65 duly
authorized, validly issued, fully paid and nonassessable shares of Parent
Common Stock (the "Exchange Ratio").
(b) All shares of Company Common Stock that are owned by the Company as
treasury stock and any shares of Company Common Stock owned by Parent or any
direct or indirect wholly owned Subsidiary of Parent or the Company will, at
the Effective Time, be cancelled and retired and will cease to exist and no
Parent Common Stock will be delivered in exchange therefor.
(c) Subject to Section 2.1(d), on and after the Effective Time, holders of
certificates which immediately prior to the Effective Time represented
outstanding shares of Company Common Stock (the "Certificates") will cease to
have any rights as stockholders of the Company, except the right to receive
the consideration set forth in this Article II (the "Merger Consideration")
for each share of Company Common Stock held by them.
(d) Notwithstanding anything in this Agreement to the contrary, no such
share of A Common Stock, the holder of which shall have properly complied with
the provisions of Section 262 of the DGCL as to appraisal rights (a
"Dissenting Share"), will be deemed to be converted into and to represent the
right to receive Parent Common Stock hereunder and the holders of Dissenting
Shares, if any, will be entitled to payment, solely from the Surviving
Corporation, of the appraised value of such Dissenting Shares to the extent
permitted by and in accordance with the provisions of Section 262 of the DGCL;
provided, however, that (i) if any holder of Dissenting Shares, under the
circumstances permitted by the DGCL, affirmatively withdraws his or her demand
for appraisal of such Dissenting Shares, (ii) if any holder fails to establish
his or her entitlement to rights to payment as provided in such Section 262,
or (iii) if neither any holder of Dissenting Shares nor the Surviving
Corporation has filed a petition demanding a determination of the value of all
Dissenting Shares within the time provided in such Section 262, such holder
will forfeit such right to payment for such Dissenting Shares pursuant to such
Section 262 and, as of the later of the Effective Time or the occurrence of
such event, such holder's Certificate formerly representing shares of A Common
Stock will automatically be converted into and represent only the right to
receive shares of Parent Common Stock pursuant to Section 2.1(a), without any
interest thereon, upon surrender of the Certificate or Certificates formerly
representing such shares of A Common Stock. The Company agrees to give Parent
(A) prompt notice of any written demands for appraisal of any Dissenting
Shares, attempted withdrawals of such demands and any other instruments
received by the Company relating to stockholders' rights of appraisal, (B) the
opportunity to direct all negotiations and proceedings with respect to demands
for appraisal under the DGCL, and (C) the sole right to determine whether to
settle any such demand.
2.2. ISSUANCE OF PARENT COMMON STOCK. (a) The manner in which each share of
Company Common Stock (other than shares to be cancelled as set forth in
Section 2.1(c) and other than Dissenting Shares, if any) will be converted
into Parent Common Stock will be as set forth in this Section 2.2.
(b) No certificates or scrip representing fractional shares of Parent Common
Stock will be issued upon the surrender for exchange of Certificates
representing Company Common Stock, no dividend or distribution with respect to
shares of Company Common Stock will be payable on or with respect to any
fractional share and such fractional share interests will not entitle the
owner thereof to vote or to any other rights of a stockholder of Parent. In
lieu of any such fractional share of Parent Common Stock, Parent will pay to
each former stockholder of the Company who otherwise would be entitled to
receive a fractional share of Parent Common Stock an amount in cash determined
by multiplying (i) the Parent Share Price by (ii) the fractional interest in a
share of Parent Common Stock to which such holder would otherwise be entitled.
For purposes hereof, "Parent Share Price" means the closing sales price per
share of Parent Common Stock on the New York Stock Exchange (the "NYSE") as
reported on the NYSE Composite Tape for the date on which the Effective Time
occurs.
(c) Parent will designate a bank or trust company to act as agent for the
holders of shares of Company Common Stock in connection with the Merger (the
"Exchange Agent") to receive the shares of Parent Common Stock and the cash in
lieu of fractional shares of Parent Common Stock to which holders of shares of
Company Common Stock shall become entitled pursuant to this Article II.
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(d) As soon as reasonably practicable after the Effective Time, the Exchange
Agent will mail to each holder of record of a Certificate whose shares were
converted pursuant to this Article II into the right to receive the Merger
Consideration (i) a letter of transmittal (which will specify that delivery
will be effected, and risk of loss and title to the Certificates will pass,
only upon delivery of the Certificates to the Exchange Agent and will be in
such form and have such other provisions as Parent may reasonably specify) and
(ii) instructions for use in effecting the surrender of the Certificates in
exchange for the Merger Consideration. Upon surrender of a Certificate for
cancellation to the Exchange Agent or to such other agent or agents as may be
appointed by Parent, together with such letter of transmittal, duly executed,
the holder of such Certificate will be entitled to receive in exchange
therefor the Merger Consideration for each share of Company Common Stock
formerly represented by such Certificate and the Certificate so surrendered
will forthwith be cancelled. If payment of the Merger Consideration is to be
made to a person other than the person in whose name the surrendered
Certificate is registered, it will be a condition of payment that the
Certificate so surrendered is properly endorsed or otherwise in proper form
for transfer and that the person requesting such payment shall have paid any
transfer and other taxes required by reason of the payment of the Merger
Consideration to a person other than the registered holder of the Certificate
surrendered or shall have established to the satisfaction of the Surviving
Corporation that such tax either has been paid or is not applicable.
(e) Immediately following the Effective Time, Parent will deliver, in trust,
to the Exchange Agent, for the benefit of the holders of Shares, certificates
representing an aggregate number of shares of Parent Common Stock as nearly as
practicable equal to the product of the Exchange Ratio and the number of
shares of Company Common Stock to be converted into Parent Common Stock as
determined by this Article II and, from time to time after the Effective Time,
an amount of cash sufficient to fund the payment of cash in lieu of fractional
shares of Parent Common Stock as provided in Section 2.2(b). As soon as
practicable after the Effective Time, each holder of shares of Company Common
Stock converted into Parent Common Stock, upon surrender to the Exchange Agent
of one or more Certificates for such shares for cancellation, will be entitled
to receive certificates representing the number of shares of Parent Common
Stock into which such shares shall have been converted in the Merger and the
amount, if any, of cash in lieu of fractional shares of Parent Common Stock to
which such holder is entitled under Section 2.2(b) (such amount, the
"Fractional Cash Amount"). No dividends or distributions that have been
declared will be paid to persons entitled to receive certificates for shares
of Parent Common Stock until such persons surrender their Certificates for
shares of Company Common Stock, at which time all such dividends will be paid.
In no event will the persons entitled to receive such dividends, or any
Fractional Cash Amount, be entitled to receive interest on such dividends or
such Fractional Cash Amount. Notwithstanding the foregoing, neither the
Exchange Agent nor any party hereto will be liable to a holder of shares for
any Parent Common Stock, dividends thereon or Fractional Cash Amount delivered
to a public official pursuant to any applicable abandoned property, escheat or
similar law.
(f) At any time following six months after the Effective Time, the
Surviving Corporation will be entitled to require the Exchange Agent to
deliver to it any shares of Parent Common Stock or funds (including any
interest received with respect thereto) which had been made available to the
Exchange Agent and which have not been disbursed to holders of Certificates,
and thereafter such holders will be entitled to look only to the Surviving
Corporation (subject to abandoned property, escheat or other similar laws)
with respect to the Merger Consideration payable or issuable upon due
surrender of their Certificates, without any interest thereon.
2.3. TREATMENT OF STOCK OPTIONS. (a) Except as set forth in Section 2.3(a)
of the Company Disclosure Schedule, the Company hereby covenants to take all
actions necessary so that, effective as of the Effective Time, each option or
warrant granted by the Company to purchase shares of Company Common Stock that
is outstanding and unexercised immediately prior thereto (the "Company Stock
Options"), whether or not then exercisable, will cease to represent a right to
acquire shares of Company Common Stock and will be converted automatically
into a right to receive an amount of cash equal to (i) 65% of the Parent Share
Price minus the exercise price per share under the applicable Company Stock
Options, times (ii) the number of shares of Company Common Stock purchasable
upon exercise of such Company Stock Options.
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(b) Except as specifically set forth in Section 2.3(b) of the Company
Disclosure Schedule, the Company covenants to take all actions necessary so
that, effective as of the Effective Time, the Company's 1992 Management Equity
Plan, its 1994 Management Equity Plan, its Non-Employee Director Stock Option
Plan and its Deferred Compensation Plan for Non-Management Directors
(collectively, the "Option Plans") terminate and the provisions in any other
plan, program, agreement or arrangement providing for the issuance or grant of
any other interest in respect of the capital stock of the Company or any of
its Subsidiaries are deleted. Furthermore, the Company will take all actions
necessary to ensure that, following the Effective Time, no holder of Company
Stock Options or any participant in the Option Plans or any other plans,
programs, agreements or arrangements will have any right thereunder to acquire
any equity securities of Parent, the Company, the Surviving Corporation or any
Subsidiary of any of the foregoing.
2.4. STOCK TRANSFER BOOKS. At the Effective Time, the stock transfer books
of the Company will be closed and there will be no further registration of
transfers of shares of Company Common Stock on the records of the Company. If,
after the Effective Time, Certificates formerly representing shares of Company
Common Stock are presented to the Surviving Corporation, they will be
cancelled and exchanged for cash or certificates representing Parent Common
Stock pursuant to this Article II.
III. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Parent as follows (which
representations and warranties are qualified in their entirety by the Company
Disclosure Schedule, whether or not the specific representation or warranty is
so qualified):
3.1. ORGANIZATION. (a) The Company and each of its Subsidiaries is a
corporation, partnership or other entity duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation or
organization, and has all requisite corporate or other power and authority and
all necessary governmental approvals to own, lease and operate its properties
and to carry on its business as now being conducted, except where the failure
to be so organized, existing and in good standing or to have such power,
authority and governmental approvals would not have a material adverse effect
on the Company and its Subsidiaries. The Company and each of its Subsidiaries
are duly qualified or licensed to do business and in good standing in each
jurisdiction in which the property owned, leased or operated by them or the
nature of the business conducted by them makes such qualification or licensing
necessary, except where the failure to be so duly qualified or licensed and in
good standing would not, in the aggregate, have a material adverse effect on
the Company and its Subsidiaries. As used in this Agreement, the word
"Subsidiary" means, with respect to any party, any corporation or other
organization, whether incorporated or unincorporated, of which (i) such party
or any other subsidiary of such party is a general partner (excluding such
partnerships where such party or any subsidiary of such party do not have a
majority of the voting interest in such partnership) or (ii) at least a
majority of the securities or other interests having by their terms ordinary
voting power to elect a majority of the Board of Directors or others
performing similar functions with respect to such corporation or other
organization is directly or indirectly owned or controlled by such party or by
any one or more of its subsidiaries, or by such party and one or more of its
subsidiaries. As used in this Agreement, any reference to any event, change or
effect having a material adverse effect on or with respect to any entity (or
group of entities) means such event, change or effect, individually or in the
aggregate with such other events, changes, or effects, which is materially
adverse to the financial condition, business, results of operations, assets,
liabilities, properties or prospects of such entity or group of entities,
taken as a whole, or materially impairs the ability of such entity or group of
entities, taken as a whole, to perform its obligations hereunder or the
Stockholder Agreements or the transactions contemplated hereby or thereby. If
"material adverse effect" is used with respect to more than one entity, it
will mean such events, changes or effects with respect to all such entities
taken as a whole. If "material adverse effect" is used with respect to the
Company or Parent, it will mean such events, changes or effects with respect
to the Company or Parent, as the case may be, and its respective consolidated
Subsidiaries, taken as a whole. Section 3.1 of the Disclosure Schedule
delivered by the Company to Parent on or prior to the date hereof (the
"Company Disclosure Schedule") sets forth a complete list of the Company's
Subsidiaries.
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(b) The Company is a holding company which owns no material assets (other
than capital stock of its Subsidiaries) and has no material liabilities except
as disclosed in the Company Filed SEC Documents and except as set forth in
Section 3.1(b) of the Company Disclosure Schedule.
3.2. CAPITALIZATION. (a) The authorized capital stock of the Company
consists of 22,000,000 shares of A Common Stock, 90,000,000 shares of B Common
Stock and 10,000,000 shares of preferred stock, par value $1.00 per share (the
"Preferred Stock"). As of the close of business on October 10, 1996, the
number of issued and outstanding, treasury and reserved shares of capital
stock of the Company and shares of capital stock subject to Company Stock
Options was as set forth in Section 3.2 of the Company Disclosure Schedule.
All the outstanding shares of the Company's capital stock are, and all shares
which may be issued pursuant to the Company Stock Option Plans will be, when
issued in accordance with the respective terms thereof, duly authorized,
validly issued, fully paid and non-assessable. There are no bonds, debentures,
notes or other indebtedness having voting rights (or convertible into
securities having such rights) ("Voting Debt") of the Company or any of its
Subsidiaries issued and outstanding. Except as set forth above and except for
the transactions contemplated by this Agreement, as of the date hereof, (i)
there are no shares of capital stock of the Company authorized, issued or
outstanding and (ii) there are no existing options, warrants, calls,
preemptive rights, subscriptions or other rights, convertible securities,
agreements, arrangements or commitments of any character, relating to the
issued or unissued capital stock of the Company or any of its Subsidiaries,
obligating the Company or any of its Subsidiaries to issue, transfer or sell
or cause to be issued, transferred or sold any shares of capital stock or
Voting Debt of, or other equity interest in, the Company or any of its
Subsidiaries or securities convertible into or exchangeable for such shares or
equity interests or obligations of the Company or any of its Subsidiaries to
grant, extend or enter into any such option, warrant, call, subscription or
other right, convertible security, agreement, arrangement or commitment.
Except as set forth in Section 3.2 of the Company Disclosure Schedule, (A)
there are no outstanding contractual obligations of the Company or any of its
Subsidiaries to repurchase, redeem or otherwise acquire any shares of any
class of capital stock of the Company or any Subsidiary or Affiliate (as
defined in Section 8.4) of the Company or to provide funds to make any
investment (in the form of a loan, capital contribution or otherwise) in any
Subsidiary or any other entity and (B) following the Merger, neither the
Company nor any of its Subsidiaries will have any obligation to issue,
transfer or sell any shares of its capital stock pursuant to any employee
benefit plan or otherwise.
(b) Except as disclosed in Section 3.2(b) of the Company Disclosure
Schedule, all of the outstanding shares of capital stock of each of the
Subsidiaries are owned beneficially and of record solely by the Company,
directly or indirectly, and all such shares have been validly issued and are
fully paid and nonassessable and are so owned by either the Company or one of
its Subsidiaries free and clear of all liens, charges, security interests,
options, claims or encumbrances of any nature whatsoever.
(c) Except as disclosed in Section 3.2(c) of the Company Disclosure Schedule
and except for the Stockholder Agreements, there are no voting trusts or other
agreements or understandings to which the Company or any of its Subsidiaries
is a party with respect to the voting of the capital stock of the Company or
any of the Subsidiaries. The Company agrees that, upon the consummation of the
Merger, the stockholder agreement disclosed in Section 3.2(c) of the Company
Disclosure Schedule (the "Existing Stockholder Agreement") will, without
further action, terminate. None of the Company or its Subsidiaries is required
to redeem, repurchase or otherwise acquire shares of capital stock of the
Company, or any of its Subsidiaries, respectively, as a result of the
transactions contemplated by this Agreement.
(d) At the Effective Time, the number of shares of Company Common Stock
outstanding will not exceed the number set forth in Section 3.2 of the Company
Disclosure Schedule.
3.3. CORPORATE AUTHORIZATION; VALIDITY OF AGREEMENT; COMPANY ACTION. (a) The
Company has full corporate power and authority to execute and deliver this
Agreement and, subject to obtaining the Company Stockholder Approval, to
consummate the transactions contemplated hereby. The execution, delivery and
performance by the Company of this Agreement and the consummation by the
Company of the transactions contemplated hereby, have been duly and validly
authorized by the Company Board and, except in the case of
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this Agreement for obtaining the Company Stockholder Approval, no other
corporate action or proceedings on the part of the Company are necessary to
authorize the execution and delivery by the Company of this Agreement and the
consummation by it of the transactions contemplated hereby. This Agreement has
been duly executed and delivered by the Company and, assuming this Agreement
constitutes a valid and binding obligation of Parent, constitutes a valid and
binding obligation of the Company enforceable against the Company in
accordance with its terms, except (i) as may be subject to applicable
bankruptcy, insolvency or other similar laws, now or hereafter in effect,
affecting creditors' rights generally and (ii) that the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(b) The Company Board has duly and validly approved and taken all corporate
action required to be taken by the Company Board for the consummation of the
transactions as contemplated by this Agreement (including the Merger, the
transactions contemplated by the Stockholder Agreements and the termination of
the Existing Stockholder Agreement), including all actions necessary to
approve such transactions as contemplated by the provisions of Section
203(a)(1) of the DGCL.
3.4. CONSENTS AND APPROVALS; NO VIOLATIONS. Except as disclosed in Section
3.4 of the Company Disclosure Schedule, and except for filings, permits,
authorizations, consents and approvals as may be required under, and other
applicable requirements of, the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), the DGCL and the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), and except for the
Company Stockholder Approval and the filing and recordation of the Certificate
of Merger as required by the DGCL, none of the execution, delivery or
performance of this Agreement nor the consummation by the Company of the
transactions contemplated hereby nor compliance by the Company with any of the
provisions hereof will (i) conflict with or result in any breach of any
provision of the certificate of incorporation or by-laws or similar
organizational documents of the Company or of any of its Subsidiaries, (ii)
require any filing with, or permit, authorization, consent or approval of, any
court, arbitral tribunal, administrative agency or commission or other
governmental or other regulatory authority or agency (a "Governmental Entity")
(except where the failure to obtain such permits, authorizations, consents or
approvals or to make such filings would not have a material adverse effect on
the Company and its Subsidiaries), (iii) result in a violation or breach of,
or constitute (with or without due notice or lapse of time or both) a default
(or give rise to any right of termination, amendment, cancellation or
acceleration) under, any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, guarantee, other evidence of indebtedness
(collectively, the "Debt Instruments"), lease, license, contract, agreement or
other instrument or obligation to which the Company or any of its Subsidiaries
is a party or by which any of them or any of their properties or assets may be
bound and which either has a term of more than one year or involves the
payment or receipt of money in excess of $1,000,000 (each a "Company
Agreement"), or (iv) violate any order, writ, injunction, decree, statute,
rule or regulation applicable to the Company, any of its Subsidiaries or any
of their properties or assets, except in the case of clause (iii) or (iv) for
such violations, breaches or defaults which would not, individually or in the
aggregate, have a material adverse effect on the Company and its Subsidiaries.
3.5. SEC REPORTS AND FINANCIAL STATEMENTS. The Company has filed with the
Securities and Exchange Commission (the "SEC"), and has heretofore made
available to Parent true and complete copies of, all forms, reports,
schedules, statements and other documents required to be filed by the Company
or any of its Subsidiaries since January 1, 1993 under the Exchange Act or the
Securities Act of 1933 (the "Securities Act") (as such documents have been
amended since the time of their filing, collectively, the "Company SEC
Documents"). As of their respective dates or, if amended, as of the date of
the last such amendment prior to the date of this Agreement, the Company SEC
Documents, including any financial statements or schedules included therein
(a) did not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading and (b) complied in all material respects with the applicable
requirements of the Exchange Act and the Securities Act, as the case may be,
and the applicable rules and regulations of the SEC thereunder. Each of the
consolidated financial statements included in the Company SEC Documents has
been prepared from, and
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is in accordance with, the books and records of the Company and/or its
consolidated Subsidiaries, complies in all material respects with applicable
accounting requirements and with the published rules and regulations of the
SEC with respect thereto, has been prepared in accordance with United States
generally accepted accounting principles ("GAAP") applied on a consistent
basis during the periods involved (except as may be indicated in the notes
thereto) and fairly presents in all material respects the consolidated
financial position and the consolidated results of operations and cash flows
(and changes in financial position, if any) of the Company and its
consolidated Subsidiaries as at the dates thereof or for the periods presented
therein.
3.6. ABSENCE OF CERTAIN CHANGES. Except to the extent disclosed in the
Company SEC Documents filed prior to October 10, 1996 (the "Company Filed SEC
Documents") or as otherwise disclosed to Parent in Section 3.6 of the Company
Disclosure Schedule, from July 1, 1996 (the "Company Strike Date") through the
date of this Agreement, the Company and its Subsidiaries have conducted their
respective businesses and operations in the ordinary course of business
consistent with past practice. From the Company Strike Date through the date
of this Agreement, there have not occurred (a) any events, changes or effects
(including the incurrence of any liabilities of any nature, whether or not
accrued, contingent or otherwise) having or, which would be reasonably likely
to have, individually or in the aggregate, a material adverse effect on the
Company and its Subsidiaries, (b) any declaration, setting aside or payment of
any dividend or other distribution (whether in cash, stock or property) with
respect to the equity interests of the Company or of any of its Subsidiaries,
other than dividends paid by wholly owned Subsidiaries, or (c) any material
change by the Company or any of its Subsidiaries in accounting principles or
methods, except insofar as may be required by a change in GAAP. Except as set
forth on Schedule 3.6 of the Company Disclosure Schedule, from the Company
Strike Date through the date of this Agreement, neither the Company nor any of
its Subsidiaries has taken any of the actions that would have been prohibited
by Section 5.1(a)-(c) had Section 5.1(a)-(c) applied to the Company and its
Subsidiaries from and after the Company Strike Date.
3.7. NO UNDISCLOSED LIABILITIES. Except (a) to the extent disclosed in the
Company Filed SEC Documents and (b) for liabilities and obligations incurred
in the ordinary course of business consistent with past practice, since the
Company Strike Date, neither the Company nor any of its Subsidiaries has
incurred any liabilities or obligations of any nature, whether or not accrued,
contingent or otherwise, that have, or would be reasonably likely to have, a
material adverse effect on the Company and its Subsidiaries or would be
required to be reflected or reserved against on a consolidated balance sheet
of the Company and its Subsidiaries (including the notes thereto) prepared in
accordance with GAAP as applied in preparing the consolidated balance sheet of
the Company and its Subsidiaries as of the Company Strike Date. Section 3.7 of
the Company Disclosure Schedule sets forth each instrument evidencing
indebtedness or other obligations of the Company or any of its Subsidiaries
which will accelerate or become due or payable, or result in a right of
redemption or repurchase on the part of the holder of such indebtedness or
other obligations, or with respect to which any other payment or amount will
become due or payable, in any such case with or without due notice or lapse of
time, as a result of this Agreement, the Merger, the Stockholder Agreements or
the other transactions contemplated hereby or thereby.
3.8. INFORMATION IN PROXY STATEMENT/PROSPECTUS. The Proxy
Statement/Prospectus (or any amendment thereof or supplement thereto), at the
date mailed to the Company's stockholders, on the date filed with the SEC and
at the time of the Special Meetings, will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading, provided, however,
that no representation is made by the Company with respect to statements made
therein based on information supplied by Parent or any party to the
Stockholder Agreements specifically for inclusion in the Proxy
Statement/Prospectus. None of the information supplied by the Company
specifically for inclusion or incorporation by reference in the Proxy
Statement/Prospectus will, at the date it becomes effective and at the time of
the Special Meetings contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they
are made, not misleading.
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Subject to the proviso set forth in the second preceding sentence, the Proxy
Statement/Prospectus will comply in all material respects with the provisions
of the Exchange Act and the rules and regulations thereunder.
3.9. EMPLOYEE BENEFIT PLANS; ERISA. (a) As of the date of this Agreement,
except as set forth in Section 3.9(a) of the Company Disclosure Schedule,
there are no material employee benefit plans, arrangements, practices,
contracts or agreements (including employment agreements, change-in-control
employment or severance agreements, incentive compensation, bonus, stock
option, stock appreciation rights and stock purchase plans) of any type
(including plans described in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")), maintained by the Company, any of
its Subsidiaries or any trade or business, whether or not incorporated (an
"ERISA Affiliate"), that together with the Company would be deemed a
"controlled group" within the meaning of Section 4001(a)(14) of ERISA, or with
respect to which the Company or any of its Subsidiaries has a liability
(collectively, the "Benefit Plans"). Except as disclosed in Section 3.9(a) of
the Company Disclosure Schedule (or as otherwise expressly permitted by
Section 5.4), (i) neither the Company nor any ERISA Affiliate has any plan or
commitment, whether or not legally binding, to create any additional Benefit
Plan or modify or change any existing Benefit Plan that would affect any
employee or terminated employee of the Company or any ERISA Affiliate and (ii)
since the Company Strike Date, there has been no change, amendment,
modification to or adoption of any Benefit Plan. Section 3.9(a) of the Company
Disclosure Schedule contains a list of each material employment, termination,
severance, incentive and deferred compensation agreement or arrangement that
is a Benefit Plan.
(b) Except as disclosed in Section 3.9(b) of the Company Disclosure
Schedule, with respect to any Benefit Plan, there are no material amounts
accrued, or which should be accrued, as of the most recent balance sheet date
included in the Company Filed SEC Documents that are not reflected on that
balance sheet prepared in accordance with GAAP. All such amounts have been or
will be paid when due.
(c) With respect to each Benefit Plan, except as disclosed on Schedule
3.9(c) of the Company Disclosure Schedule or as would not have a material
adverse effect on the Company and its Subsidiaries, (i) if intended to qualify
under Section 401(a), 401(k) or 403(a) of the Code, to the Company's knowledge
such plan so qualifies and its trust is exempt from taxation under Section
501(a) of the Code; (ii) to the Company's knowledge such plan has been
administered in accordance with its terms and applicable law; (iii) to the
Company's knowledge no breaches of fiduciary duty have occurred; (iv) no
disputes are pending, or, to the knowledge of the Company, threatened; (v)
neither the Company nor, to the Company's knowledge, any party-in-interest,
has engaged in any prohibited transaction (within the meaning of Section 406
of ERISA) with respect to any Benefit Plan; (vi) no lien imposed under the
Code or ERISA exists; and (vii) all contributions and premiums due (including
any extensions for such contributions and premiums) have been made in full.
(d) Except as disclosed in Section 3.9(d) of the Company Disclosure
Schedule, none of the Benefit Plans has incurred any "accumulated funding
deficiency," as such term is defined in Section 412 of the Code, whether or
not waived.
(e) Except as disclosed in Section 3.9(e) of the Company Disclosure
Schedule, (i) neither the Company nor any ERISA Affiliate has incurred any
liability under Title IV of ERISA since the effective date of ERISA that has
not been satisfied in full except as would not have or would not reasonably be
likely to have a material adverse effect on the Company and its Subsidiaries
(including Sections 4063-4064 and 4069 of ERISA); (ii) neither the Company nor
any ERISA Affiliate maintains (or contributes to), or has maintained (or has
contributed to) within the last six years, any employee benefit plan that is
subject to Title IV of ERISA; and (iii) there is no pending dispute involving
the Company or any ERISA Affiliate concerning payment of contributions or
payment of withdrawal liability payments.
(f) With respect to each Benefit Plan that is a "welfare plan" (as defined
in section 3(1) of ERISA), except as specifically disclosed in Section 3.9(f)
of the Company Disclosure Schedule, no such plan provides medical or death
benefits with respect to current or former employees of the Company or any of
its Subsidiaries beyond their termination of employment, other than on an
employee-pay-all basis, and each such welfare plan may be
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amended or terminated by the Company or any of its Subsidiaries at any time
with respect to such former or current employees.
(g) With respect to each Benefit Plan that is intended to provide special
tax treatment to participants (including Sections 79, 105, 106, 125, 127 and
129 of the Code), to the Company's knowledge, such Benefit Plan has satisfied
all of the material requirements for the receipt of such special tax treatment
since September 29, 1992.
(h) Except as specifically set forth in Section 3.9(h) of the Company
Disclosure Schedule or Section 2.3 hereof, the consummation of the
transactions contemplated by this Agreement will not (i) entitle any
individual to severance pay, other benefits or any tax "gross-up" payments
with respect to the imposition of any tax pursuant to Section 4999 of the Code
or accelerate the time of payment or vesting, or increase the amount, of
compensation or benefits due to any individual with respect to any Benefit
Plan or (ii) constitute or result in a prohibited transaction under Section
4975 of the Code or Section 406 or 407 of ERISA with respect to any Benefit
Plan.
(i) Except as disclosed on Section 3.9(i) of the Company Disclosure
Schedule, neither the Company nor, to the Company's knowledge, any ERISA
Affiliate nor any "administrator" as that term is defined in Section 3(16) of
ERISA, has any material liability with respect to or connected with any
Benefit Plan for excise taxes payable under the Code or civil penalties
payable under ERISA and, to the Company's knowledge, no basis for any such
liability exists.
(j) Except as disclosed on Schedule 3.9(j) of the Company Disclosure
Schedule, there is no Benefit Plan that is a "multiemployer plan," as such
term is defined in Section 3(37) of ERISA, or which is covered by Section 4063
or 4064 of ERISA.
(k) With respect to each Benefit Plan except Plans in which employees of
Parent or its Affiliates do not participate and except Multiemployer Plans
from which the Company has withdrawn, the Company has delivered or made
available to Parent accurate and complete (with de minimis omissions) copies
of all plan texts, summary plan descriptions, summaries of material
modifications, trust agreements and other related agreements including all
amendments to the foregoing; the two most recent annual reports; the most
recent annual and periodic accounting of plan assets; the most recent
determination letter received from the United States Internal Revenue Service
(the "Service"); and the two most recent actuarial reports, to the extent any
of the foregoing may be applicable to a particular Benefit Plan.
(l) With respect to each Benefit Plan that is a "group health plan" as such
term is defined in Section 5000(b) of the Code, except as specifically set
forth in Section 3.9(l) of the Company Disclosure Schedule, each such Benefit
Plan complies and has complied with the requirements of Part 6 of Title I of
ERISA and Sections 4980B and 5000 of the Code except where the failure to so
comply would not have a material adverse effect on the Company and its
Subsidiaries.
(m) There are no material plans, arrangements, practices, contracts or
agreements (including change of control agreements, severance agreements,
retirement agreements, stock option or purchase agreements, medical or death
benefit agreements) maintained by the Company or an ERISA Affiliate or with
respect to which the Company or any of its Subsidiaries has a material
liability to a director or former director (as a director) of the Company or
an ERISA Affiliate other than those listed on Section 3.9(m) of the Company
Disclosure Schedule or disclosed in the Company's most recent proxy statement
(the "Director Plans"). Neither the Company nor any ERISA Affiliate has any
formal plan or commitment, whether or not legally binding, to create any
Director Plan or modify or change any existing Director Plan that would affect
any director or former director of the Company or any ERISA Affiliate.
3.10. LITIGATION. Except to the extent disclosed in the Company Filed SEC
Documents or in Section 3.10 of the Company Disclosure Schedule, there is no
suit, claim, action, proceeding or investigation pending or,
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to the knowledge of the Company, overtly threatened against or affecting, the
Company or any of its Subsidiaries which, individually or in the aggregate, is
reasonably likely to have a material adverse effect on the Company and its
Subsidiaries, or would, or would be reasonably likely to, materially impair
the ability of the Company to consummate the Merger or the other transactions
contemplated hereby or thereby.
3.11. NO DEFAULT. The business of the Company and each of its Subsidiaries
is not being conducted in default or violation of any term, condition or
provision of (a) its respective certificate of incorporation or by-laws or
similar organizational documents, (b) except as set forth in Section 3.11 of
the Company Disclosure Schedule, any Company Agreement, and (c) except as
disclosed in Section 3.11 of the Company Disclosure Schedule, each federal,
state, local or foreign law, statute, regulation, rule, ordinance, judgment,
decree, order, writ, injunction, concession, grant, franchise, permit or
license or other governmental authorization or approval applicable to the
Company or any of its Subsidiaries, excluding from the foregoing clauses (b)
and (c), defaults or violations that would not have a material adverse effect
on the Company and its Subsidiaries. Except as set forth in Section 3.11 of
the Company Disclosure Schedule, no investigation or review by any
Governmental Entity with respect to the Company or any of its Subsidiaries
(other than routine investigations made in connection with applications for
regulatory licenses, permits and approvals filed in the ordinary course of
business) is pending or, to the knowledge of the Company, overtly threatened,
nor to the knowledge of the Company, has any Governmental Entity indicated an
intention to conduct the same.
3.12. TAXES. (a) As of the date of this Agreement, except as set forth in
Section 3.12 of the Company Disclosure Schedule and except that no
representation or warranty is made herein with respect to any Tax or Tax
Return of the Company or any Subsidiary or any deemed Subsidiary of the
Company as to which the Company, such Subsidiary or such deemed Subsidiary is
a party to an agreement providing for indemnity from an entity which, to the
Company's knowledge, is able to honor such indemnity:
(i) the Company and each company or entity that, at any time, would have
been deemed a Subsidiary of the Company have (A) duly filed (or there have
been filed on their behalf) with the appropriate governmental authorities
all Tax Returns (as hereinafter defined) required to be filed by them and
such Tax Returns are true, correct and complete in all material respects
and (B) duly paid in full or made adequate provision in accordance with
GAAP (or there has been paid or adequate provision has been made on their
behalf) for the payment of all Taxes for all periods ending through the
date hereof;
(ii) the Company and its Subsidiaries have complied in all material
respects with all applicable laws, rules and regulations relating to the
payment and withholding of Taxes and have, within the time and the manner
prescribed by law, withheld and paid over to the proper governmental
authorities all amounts required to be so withheld and paid over under
applicable laws;
(iii) no federal, state, local or foreign audits or other administrative
proceedings or court proceedings are presently pending with regard to any
Taxes or Tax Returns of the Company or its Subsidiaries and neither the
Company nor its Subsidiaries has received a written notice of any pending
audits or proceedings; and
(iv) neither the Service nor any other taxing authority (whether domestic
or foreign) has asserted, or to the knowledge of the Company, is
threatening to assert, against the Company or any of its Subsidiaries any
deficiency or claim for Taxes.
(b) As of the date of this Agreement, except as set forth in Section 3.12 of
the Company Disclosure Schedule:
(i) there are no material liens for Taxes upon any property or assets of
the Company or any Subsidiary thereof, except for liens for Taxes not yet
due and payable and liens for Taxes that are being contested in good faith
by appropriate proceedings;
(ii) neither the Company nor any of its Subsidiaries has agreed to or is
required to make any material adjustment under Section 481(a) of the Code;
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(iii) the federal income Tax Returns of the Company and its Subsidiaries
have been examined by the Service (or the applicable statutes of limitation
for the assessment of federal income Taxes for such periods have expired)
for all periods as set forth on Section 3.12 of the Company Disclosure
Schedule;
(iv) neither the Company nor any of its Subsidiaries is a party to any
material agreement providing for the allocation or sharing of Taxes; and
(v) neither the Company nor any of its Subsidiaries has, with regard to
any assets or property held or acquired by any of them, filed a consent to
the application of Section 341(f) of the Code, or agreed to have Section
341(f)(2) of the Code apply to any disposition of a Subsection (f) asset
(as such term is defined in Section 341(f)(4) of the Code) owned by the
Company or any of its Subsidiaries.
(c) For purposes of this Agreement, (i) "Taxes" means any and all taxes,
charges, fees, levies or other assessments, including without limitation
income, gross receipts, excise, real or personal property, sales, withholding,
social security, retirement, unemployment, occupation, use, service, service
use, license, net worth, payroll, franchise, transfer and recording taxes,
fees and charges, imposed by the Service or any taxing authority (whether
domestic or foreign, including without limitation any state, county, local or
foreign government or any subdivision or taxing agency thereof (including a
United States possession)), whether computed on a separate, consolidated,
unitary, combined or any other basis; and such term will include any interest
whether paid or received, fines, penalties or additional amounts attributable
to, or imposed upon, or with respect to, any such taxes, charges, fees, levies
or other assessments and (ii) "Tax Return" means any report, return, document,
declaration or other information or filing required to be supplied to any
taxing authority or jurisdiction (foreign or domestic) with respect to Taxes,
including without limitation information returns, any documents with respect
to or accompanying payments of estimated Taxes, or with respect to or
accompanying requests for the extension of time in which to file any such
report, return, document, declaration or other information.
3.13. CONTRACTS. Except as set forth in Section 3.13 of the Company
Disclosure Schedule, each Company Agreement is a valid, binding and
enforceable obligation of the Company or, as applicable, its Subsidiary and,
to the Company's knowledge, the other parties thereto and is in full force and
effect, except where failure to be valid, binding and enforceable and in full
force and effect would not have a material adverse effect on the Company and
its Subsidiaries, and except as set forth in Section 3.13 of the Company
Disclosure Schedule, there are no defaults thereunder by the Company or its
Subsidiaries or, to the knowledge of the Company, by any other party thereto
that would have a material adverse effect on the Company and its Subsidiaries.
Except as disclosed in Section 3.13 of the Company Disclosure Schedule,
neither the Company nor any Subsidiary is a party to any agreement that
expressly limits in any material respect the ability of the Company or any
Subsidiary or Affiliate to compete in or conduct any line of business or
compete with any person or in any geographic area or during any period of
time.
3.14. ASSETS; REAL PROPERTY. The assets, properties, rights and contracts,
including (as applicable) title or leaseholds thereto, of the Company and its
Subsidiaries, taken as a whole, are sufficient to permit the Company and its
Subsidiaries to conduct their respective businesses as currently being
conducted with only such exceptions as would not have a material adverse
effect on the Company and its Subsidiaries. All real property owned by the
Company or any of its Subsidiaries (the "Real Property") is so owned free and
clear of all liens, charges, security interests, options, claims, mortgages,
pledges, easements, rights-of-way or other encumbrances and restrictions of
any nature whatsoever, except as described in Section 3.14 of the Company
Disclosure Schedule or those that do not have a material adverse effect on the
Company and its Subsidiaries.
3.15. ENVIRONMENTAL MATTERS. (a) Except as disclosed in Section 3.15 of the
Company Disclosure Schedule, as of the date of this Agreement, the Company is
in material compliance with all applicable Environmental Laws and there are no
Environmental Liabilities and Costs of the Company and its Subsidiaries that
would have or are reasonably likely to have a material adverse effect on the
Company and its Subsidiaries.
(b) For purposes of this Agreement, the following definitions apply: (i)
"Environmental Laws" means all applicable federal, state and local laws,
regulations, rules and ordinances relating to pollution or protection of
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health, safety or the environment and (ii) "Environmental Liabilities and
Costs" means all liabilities, obligations, responsibilities, obligations to
conduct cleanup, losses, damages, deficiencies, punitive damages,
consequential damages, treble damages, costs and expenses (including all fees,
disbursements and expenses of counsel, expert and consulting fees and costs of
investigations and feasibility studies and responding to government requests
for information or documents), fines, penalties, restitution and monetary
sanctions, interest, known or unknown, absolute or contingent, resulting from
any claim or demand, by any person or entity, whether based in contract, tort,
implied or express warranty, strict liability, joint and several liability,
criminal or civil statute, under any Environmental Law, or arising from
environmental, health or safety conditions, as a result of past or present
ownership, leasing or operation of any properties, owned, leased or operated
by the Company or any of its Subsidiaries or Parent or any of its
Subsidiaries, as the case may be.
3.16. REIMBURSEMENT. A list of all agreements to which the Company or its
Subsidiaries, as the case may be, are parties with third-party payors,
including Medicaid, health maintenance organizations, preferred provider
organizations, insurance companies and other payment sources, as of the date
of this Agreement has been provided by the Company to Parent. To the knowledge
of the Company, the Company and each of its Subsidiaries which participates in
a Medicaid reimbursement program are eligible so to participate and, except
for routine audits, no Governmental Entity has made any claim (which has not
been withdrawn or settled prior to the date hereof) to the contrary, except
for such of the foregoing as would not have a material adverse effect on the
Company and its Subsidiaries.
3.17. LABOR RELATIONS. Except as set forth in Section 3.17 of the Company
Disclosure Schedule, there is no labor strike, slowdown or work stoppage or
lockout against the Company or any of its Subsidiaries, there is no unfair
labor practice charge or complaint against or pending before the National
Labor Relations Board which if decided adversely could have a material adverse
effect on the Company and its Subsidiaries and there is no representation
claim or petition pending before the NLRB and no question concerning
representation has been raised with respect to the employees of the Company or
its Subsidiaries, in each case except for such of the foregoing as would not
have a material adverse effect on the Company and its Subsidiaries.
3.18. INSURANCE. As of the date hereof, the Company and each of its
Subsidiaries are insured by insurers, reasonably believed by the Company to be
of recognized financial responsibility and solvency, against such losses and
risks and in such amounts as are customary in the businesses in which they are
respectively engaged. All material policies of insurance and fidelity or
surety bonds are in full force and effect. Descriptions of these policies and
related liability coverage have been previously provided to Parent. These
claims, individually or in the aggregate, would not have a material adverse
effect on the Company and its Subsidiaries. All necessary notifications of
claims have been made to insurance carriers other than those which will not
have a material adverse effect on the Company and its Subsidiaries, taken as a
whole.
3.19. TRANSACTIONS WITH AFFILIATES. Except as disclosed in Section 3.19 of
the Company Disclosure Schedule or except to the extent disclosed in the
Company Filed SEC Documents, since January 1, 1993, there have been no
transactions, agreements, arrangements or understandings between the Company
or its Subsidiaries, on the one hand, and the Company's Affiliates (other than
wholly owned Subsidiaries of the Company) or other persons, on the other hand,
that would be required to be disclosed under Item 404 of Regulation S-K under
the Securities Act.
3.20. COMPLIANCE WITH LAW. Except as disclosed in the Company Filed SEC
Documents, the Company and its Subsidiaries have complied in all material
respects with all laws, statutes, regulations, rules, ordinances, and
judgments, decrees, orders, writs and injunctions, of any court or
Governmental Entity relating to any of the property owned, leased or used by
them, or applicable to their business, including equal employment opportunity,
discrimination, occupational safety and health, interstate commerce and
antitrust laws, except where the failure to so comply would not have a
material adverse effect on the Company and its Subsidiaries. The Company, with
respect to each Company store location, has all permits and licenses
(including, without limitation, pharmaceutical and liquor licenses and
permits) necessary to carry on the business being conducted at each store
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location, except where the failure to have such permit or license would not
have a material adverse effect on the Company and its Subsidiaries.
3.21. VOTE REQUIRED. The affirmative vote of the holders of a majority of
the shares of A Common Stock and B Common Stock, voting together as a single
class, is the only vote of the holders of any class or series of the Company's
capital stock necessary to approve the Merger ("Company Stockholder
Approval").
3.22. BROKERS. No broker, investment banker, financial advisor or other
person, other than Goldman, Sachs & Co. ("GS") and Leonard Green & Partners,
the fees and expenses of which will be paid by the Company, is entitled to any
broker's, finder's, financial advisor's or other similar fee or commission in
connection with the transactions contemplated by this Agreement or the
Stockholder Agreements based upon arrangements made by or on behalf of the
Company or any Subsidiary thereof. The Company has furnished or made available
to Parent true and complete copies of all agreements under which any such fees
or expenses are payable and all indemnification and other agreements related
to the engagement of the persons to whom such fees are payable.
3.23. OPINION OF FINANCIAL ADVISOR. The Company has received the written
opinion of GS, dated the date of this Agreement, to the effect that, as of
such date, the Exchange Ratio is fair to the Company's stockholders, a copy of
which opinion has been delivered to Parent.
IV. REPRESENTATIONS AND WARRANTIES OF PARENT
Parent represents and warrants to the Company as follows:
4.1. ORGANIZATION. Parent and each Significant Parent Sub is a corporation
duly organized, validly existing and in good standing under the laws of
Delaware and has all requisite corporate or other power and authority and all
necessary governmental approvals to own, lease and operate its properties and
to carry on its business as now being conducted, except where the failure to
be so organized, existing and in good standing or to have such power,
authority and governmental approvals would not have a material adverse effect
on Parent and its Subsidiaries. Parent and each of its Subsidiaries is duly
qualified or licensed to do business and in good standing in each jurisdiction
in which the property owned, leased or operated by it or the nature of the
business conducted by it makes such qualification or licensing necessary,
except where the failure to be so duly qualified or licensed and in good
standing would not have a material adverse effect on Parent and its
Subsidiaries. Exhibit 21.1 to Parent's last Annual Report on Form 10-K filed
with the SEC includes all the subsidiaries of Parent which as of the date of
this Agreement are "significant subsidiaries" within the meaning of Rule 1-02
of Regulation S-X of the SEC (such Parent Subsidiaries, "Significant Parent
Subs").
4.2. CAPITALIZATION. (a) The authorized capital stock of Parent consists of
240,000,000 shares of Parent Common Stock and (b) 20,000,000 preferred shares,
par value $1.00 per share (the "Parent Preferred Stock"). As of October 10,
1996 (the "Parent Measurement Date"), (i) 90,441,000 shares of Parent Common
Stock were issued and outstanding, (ii) no shares of Parent Preferred Stock
were issued and outstanding, (iii) 6,532,169 shares of Parent Common Stock
were issued and held in the treasury of Parent, and (iv) 13,397,200 shares of
Parent Common Stock were reserved for issuance under Parent's 1990 Omnibus
Stock Incentive Plan (the "Parent Plan") and Parent's 6.75% Zero Coupon
Convertible Subordinated Notes due July 24, 2006 ("Parent's Zero Coupon
Notes"). All of the outstanding shares of Parent's capital stock are, and all
shares which may be issued pursuant to the exercise of outstanding options or
pursuant to the Parent Plan or Parent's Zero Coupon Notes will be, when issued
in accordance with the respective terms thereof, duly authorized, validly
issued, fully paid and non-assessable. Except for Parent's Zero Coupon Notes,
there are no bonds, debentures, notes or other indebtedness having voting
rights (or convertible into securities having such rights) ("Parent Voting
Debt") of Parent or any of its Subsidiaries issued and outstanding. Except as
set forth above, and except as set forth in Section 4.2 of the Disclosure
Schedule delivered to the Company on or prior to the date hereof (the "Parent
Disclosure Schedule") and except for transactions contemplated by this
Agreement, as of the Parent Measurement Date, (i) there are no shares of
capital stock of Parent authorized, issued or outstanding and (ii)
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there are no existing options, warrants, calls, preemptive rights,
subscriptions or other rights, convertible securities, agreements,
arrangements or commitments of any character, relating to the issued or
unissued capital stock of Parent or any of its Subsidiaries, obligating Parent
or any of its Subsidiaries to issue, transfer or sell or cause to be issued,
transferred or sold any shares of capital stock or Parent Voting Debt of, or
other equity interest in, Parent or any of its Subsidiaries or securities
convertible into or exchangeable for such shares or equity interests or
obligations of Parent or any of its Subsidiaries to grant, extend or enter
into any such option, warrant, call, subscription or other right, convertible
security, agreement, arrangement or commitment. There are no outstanding
contractual obligations of Parent or any of its Subsidiaries to repurchase,
redeem or otherwise acquire any shares of Parent Common Stock or any other
class of the capital stock of Parent or any Subsidiary or Affiliate of Parent
or to provide funds to make any investment (in the form of a loan, capital
contribution or otherwise) in any Subsidiary or any other entity.
(b) All of the outstanding shares of capital stock of each of the Parent
Significant Subs are owned beneficially and of record solely by Parent,
directly or indirectly, and all such shares have been validly issued and are
fully paid.
(c) Except for the Stockholder Agreements, there are no voting trusts or
other agreements or understandings to which Parent or any of its Subsidiaries
is a party with respect to the voting of the capital stock of Parent or its
Subsidiaries. None of Parent or its Subsidiaries is required to redeem,
repurchase or otherwise acquire shares of capital stock of Parent, or any of
its Subsidiaries, respectively, as a result of the transactions contemplated
by this Agreement.
4.3. CORPORATE AUTHORIZATION; VALIDITY OF AGREEMENT; NECESSARY
ACTION. (a) Parent has full corporate power and authority to execute and
deliver this Agreement and the Stockholder Agreements and, subject in the case
of this Agreement to obtaining any necessary approval of Parent's stockholders
as contemplated by Section 1.5(b) hereof with respect to the adoption of this
Agreement and the issuance of Parent Common Stock pursuant to the Merger
("Parent Stockholder Approval"), to consummate the transactions contemplated
hereby and thereby. The execution, delivery and performance by Parent of this
Agreement and the Stockholder Agreements and the consummation by Parent of the
transactions contemplated hereby and thereby have been duly and validly
authorized by the Parent Board and, except for the Parent Stockholder
Approval, no other corporate action or proceedings on the part of Parent are
necessary to authorize the execution and delivery by Parent of this Agreement
and the Stockholder Agreements and the consummation by Parent of the
transactions contemplated hereby and thereby. This Agreement and the
Stockholder Agreements have been duly executed and delivered by Parent and,
assuming this Agreement and the Stockholder Agreements constitute the valid
and binding obligation of the Company, constitutes the valid and binding
obligation of Parent enforceable against Parent in accordance with their
terms, except (i) as may be subject to applicable bankruptcy, insolvency or
other similar laws, now or hereafter in effect, affecting creditors' rights
generally and (ii) that the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable defenses and to
the discretion of the court before which any proceeding therefor may be
brought. The shares of Parent Common Stock issued pursuant to the Merger will
be duly authorized, validly issued, fully paid and nonassessable and not
subject to preemptive rights.
(b) The Parent Board has duly and validly approved and taken all corporate
action required to be taken by the Parent Board for the consummation by Parent
of the transactions contemplated by this Agreement (including without
limitation the Merger and the Stockholder Agreements).
4.4. CONSENTS AND APPROVALS; NO VIOLATIONS. Except for filings, permits,
authorizations, consents and approvals as may be required under, and other
applicable requirements of, the Exchange Act, the Securities Act, the DGCL,
the HSR Act, state blue sky laws and any applicable state takeover laws and
the approval by Parent's stockholders of the issuance of Parent Common Stock
in the Merger, none of the execution, delivery or performance of this
Agreement and the Stockholder Agreements by Parent nor the consummation by
Parent of the transactions contemplated hereby nor compliance by Parent with
any of the provisions hereof will (i) conflict with or result in any breach of
any provision of the certificate of incorporation or by-laws of Parent, (ii)
require
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any filing with, or permit, authorization, consent or approval of, any
Governmental Entity (except where the failure to obtain such permits,
authorizations, consents or approvals or to make such filings would not have a
material adverse effect on Parent and its Subsidiaries), (iii) result in a
violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, amendment,
cancellation or acceleration) under, any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, guarantee, other evidence
of indebtedness, lease, license, contract, agreement or other instrument or
obligation to which Parent or any of its Subsidiaries is a party or by which
any of them or any of their properties or assets may be bound and which either
has a term of more than one year or involves the payment or receipt of money
in excess of $1,000,000 (each a "Parent Agreement"), or (iv) violate any
order, writ, injunction, decree, statute, rule or regulation applicable to
Parent, any of its Subsidiaries or any of their properties or assets, except
in the case of clauses (iii) and (iv) for violations, breaches or defaults
which would not, individually or in the aggregate, have a material adverse
effect on Parent and its Subsidiaries.
4.5. SEC REPORTS AND FINANCIAL STATEMENTS. Parent has filed with the SEC,
and has heretofore made available to the Company, true and complete copies of,
all forms, reports, schedules, statements and other documents required to be
filed by it and its Subsidiaries since January 1, 1993, under the Exchange Act
or the Securities Act (as such documents have been amended since the time of
their filing, collectively, the "Parent SEC Documents"). As of their
respective dates or, if amended, as of the date of the last such amendment
filed prior to the date of this Agreement, the Parent SEC Documents, including
without limitation any financial statements or schedules included therein, (i)
did not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading and (ii) complied in all material respects with the applicable
requirements of the Exchange Act and the Securities Act, as the case may be,
and the applicable rules and regulations of the SEC thereunder. Each of the
consolidated financial statements included in the Parent SEC Documents has
been prepared from, and are in accordance with, the books and records of
Parent and/or its consolidated Subsidiaries, complies in all material respects
with applicable accounting requirements and with the published rules and
regulations of the SEC with respect thereto, has been prepared in accordance
with GAAP applied on a consistent basis during the periods involved (except as
may be indicated in the notes thereto) and fairly presents in all material
respects the consolidated financial position and the consolidated results of
operations and cash flows (and changes in financial position, if any) of
Parent and its consolidated Subsidiaries as at the dates thereof or for the
periods presented therein.
4.6. ABSENCE OF CERTAIN CHANGES. Except to the extent disclosed in the
Parent SEC Documents filed prior to October 10, 1996 (the "Parent Filed SEC
Documents"), from August 1, 1996 (the "Parent Strike Date") through the date
of this Agreement, Parent and its Subsidiaries have conducted their respective
businesses in the ordinary course of business consistent with past practice.
From the Parent Strike Date through the date of this Agreement, there have not
occurred (i) any events, changes or effects (including the incurrence of any
liabilities of any nature, whether or not accrued, contingent or otherwise)
having or, which would be reasonably likely to have, individually or in the
aggregate, a material adverse effect on Parent and its Subsidiaries, (ii) any
declaration, setting aside or payment of any dividend or other distribution
(whether in cash, stock or property) with respect to the equity interests of
Parent or of any of its Subsidiaries other than regular quarterly cash
dividends or dividends paid by wholly owned Subsidiaries, or (iii) any change
by Parent or any of its Subsidiaries in accounting principles or methods,
except insofar as may be required by a change in GAAP. No indebtedness or
other obligations of Parent or any of its Subsidiaries will accelerate or
become due or payable, or result in a right of redemption or repurchase on the
part of the holder of such indebtedness or other obligations, or with respect
to which any other payment or amount will become due or payable, in any such
case with or without due notice or lapse of time, as a result of this
Agreement, the Merger, the Stockholder Agreements or the other transactions
contemplated hereby or thereby, except for such of the foregoing as would not,
individually or in the aggregate, have a material adverse effect on Parent and
its Subsidiaries.
4.7. NO UNDISCLOSED LIABILITIES. Except (a) to the extent disclosed in the
Parent Filed SEC Documents and (b) for liabilities and obligations incurred in
the ordinary course of business consistent with past practice,
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during the period from the Parent Strike Date through the date of this
Agreement, neither Parent nor any of its Subsidiaries has incurred any
liabilities or obligations of any nature, whether or not accrued, contingent
or otherwise, including any Environmental Liabilities and Costs or liabilities
under any employee retirement benefit plan or welfare benefit plan (as those
terms are used in ERISA) of Parent or any Subsidiary of Parent, that have, or
would be reasonably likely to have, a material adverse effect on Parent and
its Subsidiaries or would be required to be reflected or reserved against on a
consolidated balance sheet of Parent and its Subsidiaries (including the notes
thereto) prepared in accordance with GAAP as applied in preparing the
consolidated balance sheet of Parent and its Subsidiaries as of the Parent
Strike Date.
4.8. INFORMATION IN PROXY STATEMENT/PROSPECTUS. The Registration Statement
(or any amendment thereof or supplement thereto) will, at the date it is filed
with the SEC and as of the date it becomes effective, and the Proxy
Statement/Prospectus (or any amendment thereof or supplement thereto) at the
date mailed to Parent's and the Company's stockholders and at the time of the
Special Meetings will, not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading, provided, however, that no
representation is made by Parent with respect to statements made therein based
on information supplied by the Company or any party to the Stockholder
Agreements other than Parent and the Individual Stockholders (as defined
therein) specifically for inclusion in the Registration Statement or the Proxy
Statement/Prospectus. None of the information supplied by Parent or such
Individual Stockholders specifically for inclusion or incorporation by
reference in the Proxy Statement/Prospectus will, at the date mailed to the
Company's and Parent's stockholders or at the time of the Special Meetings,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. Subject to the proviso set forth in the second preceding
sentence, the Registration Statement and the Proxy Statement/Prospectus will
comply in all material respects with the provisions of the Securities Act and
Exchange Act, respectively, and the rules and regulations thereunder.
4.9. LITIGATION. Except to the extent disclosed in the Parent Filed SEC
Documents, as of the date of this Agreement, there is no suit, claim, action,
proceeding or investigation pending or, to the knowledge of Parent, overtly
threatened against or affecting, Parent or any of its Subsidiaries, which,
individually or in the aggregate, is reasonably likely to have a material
adverse effect on Parent and its Subsidiaries or would, or would be reasonably
likely to, materially impair the ability of Parent to consummate the Merger or
the other transactions contemplated hereby.
4.10. TAXES. (a) As of the date of this Agreement:
(i) Parent and each company or entity that, at any time, would have been
deemed a Subsidiary of Parent have (A) duly filed (or there have been filed
on their behalf) with the appropriate governmental authorities all Tax
Returns required to be filed by them and such Tax Returns are true, correct
and complete in all material respects and (B) duly paid in full or made
adequate provision in accordance with GAAP (or there has been paid or
adequate provision has been made on their behalf) for the payment of all
Taxes (as hereinafter defined) for all periods ending through the date
hereof;
(ii) Parent and its Subsidiaries have complied in all material respects
with all applicable laws, rules and regulations relating to the payment and
withholding of Taxes and have, within the time and the manner prescribed by
law, withheld and paid over to the proper governmental authorities all
amounts required to be so withheld and paid over under applicable laws;
(iii) no federal, state, local or foreign audits or other administrative
proceedings or court proceedings are presently pending with regard to any
Taxes or Tax Returns of Parent or its Subsidiaries and neither Parent nor
its Subsidiaries has received a written notice of any pending audits or
proceedings; and
(iv) neither the Service nor any other taxing authority (whether domestic
or foreign) has asserted, or to the knowledge of Parent, is threatening to
assert, against Parent or any of its Subsidiaries any deficiency
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or claim for Taxes, provided, however, that no representation or warranty
is made herein with respect to any such assertion against any entity with
which Parent or any Subsidiary of Parent was previously a member of an
affiliated group within the meaning of Section 1504 of the Code as to which
Parent or such Subsidiary is a party to an agreement providing for
indemnity by an entity which, to the knowledge of Parent, is able to honor
such indemnity.
(b) As of the date of this Agreement:
(i) there are no material liens for Taxes upon any property or assets of
Parent or any Subsidiary thereof, except for liens for Taxes not yet due
and payable and liens for Taxes that are being contested in good faith by
appropriate proceedings;
(ii) neither Parent nor any of its Subsidiaries has agreed to or is
required to make any material adjustment under Section 481(a) of the Code;
(iii) the federal income Tax Returns of Parent and its Subsidiaries have
been examined by the Service (or the applicable statutes of limitation for
the assessment of federal income Taxes for such periods have expired) for
all periods through and including February 27, 1993 for Parent and October
31, 1991 for Perry Drug Stores, Inc., provided, however, that no
representation or warranty is made herein with respect to any such
examination pertaining to any entity with which Parent or any Subsidiary of
Parent was previously a member of an affiliated group within the meaning of
Section 1504 of the Code as to which Parent or such Subsidiary is a party
to an agreement providing for indemnity by an entity which, to the
knowledge of Parent, is able to honor such indemnity;
(iv) neither Parent nor any of its Subsidiaries is a party to any
material agreement providing for the allocation or sharing of Taxes; and
(v) neither Parent nor any of its Subsidiaries has, with regard to any
assets or property held or acquired by any of them, filed a consent to the
application of Section 341(f) of the Code, or agreed to have Section
341(f)(2) of the Code apply to any disposition of a Subsection (f) asset
(as such term is defined in Section 341(f)(4) of the Code) owned by Parent
or any of its Subsidiaries.
4.11. COMPLIANCE WITH LAW. Except as disclosed in the Parent Filed SEC
Documents, Parent and its Subsidiaries have complied in all material respects
with all laws, statutes, regulations, rules, ordinances, including
Environmental Laws and ERISA, and judgments, decrees, orders, writs and
injunctions, of any court or other Governmental Entity relating to any of the
property owned, leased or used by them, or applicable to their respective
businesses, including equal employment opportunity, discrimination,
occupational safety and health, environmental, interstate commerce, antitrust
laws, ERISA and laws relating to Taxes, except where the failure to so comply
would not have a material adverse effect on Parent and its Subsidiaries.
Parent, with respect to each Parent store location, has all permits and
licenses (including pharmaceutical and liquor licenses and permits) necessary
to carry on the business being conducted at each such store location, except
where the failure to have such permit or license would not have a material
adverse effect on Parent and its Subsidiaries.
4.12. NO DEFAULT. The business of Parent and each of its Subsidiaries is not
being conducted in default or violation of any term, condition or provision of
(a) its respective certificate of incorporation or by-laws or similar
organizational documents, (b) any lease, license, contract, agreement or other
instrument or obligation to which Parent or any of its Subsidiaries is a party
or by which any of them or any of their properties or assets may be bound and
which either has a term of more than one year or involves the payment or
receipt of money in excess of $1,000,000 (each a "Parent Agreement"), or (c)
any federal, state, local or foreign law, statute, regulation, rule,
ordinance, judgment, decree, order, writ, injunction, concession, grant,
franchise, permit or license or other governmental authorization or approval
applicable to Parent or any of its Subsidiaries, excluding from the foregoing
clauses (b) and (c), defaults or violations that would not have a material
adverse effect on Parent and its Subsidiaries. Except as set forth in Schedule
4.12 of the Parent Disclosure Schedule, no investigation or review by any
Governmental Entity with respect to Parent or any of its Subsidiaries (other
than routine investigations made in connection with applications for
regulatory licenses, permits and approvals filed
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in the ordinary course of business) is pending or, to the knowledge of Parent,
overtly threatened, nor to the knowledge of Parent, has any Governmental
Entity indicated an intention to conduct the same.
4.13. VOTE REQUIRED. The affirmative vote of the holders of a majority of
the shares of Parent Common Stock outstanding as of the record date for the
Parent Special Meeting and entitled to vote thereat is the only vote of the
holders of any class or series of Parent's capital stock necessary to approve
the adoption of this Agreement and the issuance of Parent Common Stock
pursuant to the Merger Agreement.
4.14. OPINION OF FINANCIAL ADVISOR. Parent has received a written opinion
from Donaldson, Lufkin, Jenrette Securities Corporation ("DLJ"), dated as of a
date which is on or prior to the date of this Agreement to the effect that, as
of such date, the consideration to be paid by Parent in the Merger is fair to
Parent from a financial point of view (the "Parent Fairness Opinion"). Parent
has delivered to the Company a copy of the Parent Fairness Opinion.
4.15. CONTRACTS. Each Parent Agreement is a valid, binding and enforceable
obligation of Parent or, as applicable, its Subsidiaries and, to Parent's
knowledge, the other parties thereto and is in full force and effect, except
where failure to be valid, binding and enforceable and in full force and
effect would not have a material adverse effect on Parent and its
Subsidiaries, and there are no defaults thereunder by Parent or its
Subsidiaries or, to the knowledge of Parent, by any other party thereto that
would have a material adverse effect on Parent and its Subsidiaries. Neither
Parent nor any Subsidiary of Parent is a party to any agreement that expressly
limits the ability of Parent or any Subsidiary or Affiliate of Parent to
compete in or conduct any line of business or compete with any person or in
any geographic area or during any period of time which would have a material
adverse effect on Parent or its Subsidiaries.
4.16. ASSETS; REAL PROPERTY. The assets, properties, rights and contracts,
including (as applicable) title or leaseholds thereto, of Parent and its
Subsidiaries, taken as a whole, are sufficient to permit Parent and its
Subsidiaries to conduct their respective businesses as currently being
conducted with only such exceptions as would not have a material adverse
effect on Parent and its Subsidiaries. All real property owned by Parent or
any of its Subsidiaries is so owned free and clear of all liens, charges,
security interests, options, claims, mortgages, pledges, easements, rights-of-
way or other encumbrances and restrictions of any nature whatsoever, except as
described in the Parent Filed SEC Documents or those that do not have a
material adverse effect on Parent and its Subsidiaries.
4.17. REIMBURSEMENT. To the knowledge of Parent, Parent and each of its
Subsidiaries which participates in Medicaid reimbursements is eligible so to
participate and, except for routine audits, no Governmental Entity has made
any claim (which has not been withdrawn or settled prior to the date hereof)
to the contrary, except for such of the foregoing as would not have a material
adverse effect on Parent and its Subsidiaries.
4.18. LABOR RELATIONS. There is no labor strike, slowdown or work stoppage
or lockout against Parent or any of its Subsidiaries, there is no unfair labor
practice charge or complaint against or pending before the NLRB which if
decided adversely could have a material adverse effect on Parent and its
Subsidiaries and there is no representation claim or petition pending before
the NLRB and no question concerning representation has been raised with
respect to the employees of Parent or its Subsidiaries, except for such of the
foregoing as would not have a material adverse effect on Parent and its
Subsidiaries.
4.19. INSURANCE. As of the date hereof, Parent and each of its Subsidiaries
are insured by insurers, reasonably believed by Parent to be of recognized
financial responsibility and solvency, against such losses and risks and in
such amounts as are customary in the businesses in which they are respectively
engaged. All material policies of insurance and fidelity or surety bonds are
in full force and effect.
4.20. TRANSACTIONS WITH AFFILIATES. Except as disclosed in the Parent Filed
SEC Documents, since January 1, 1993, there have been no transactions,
agreements, arrangements or understandings between Parent or
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its Subsidiaries, on the one hand, and Parent's Affiliates (other than wholly
owned Subsidiaries of Parent) or other persons, on the other hand, that would
be required to be disclosed under Item 404 of Regulation S-K under the
Securities Act.
4.21. BROKERS. No broker, investment banker, financial advisor or other
person, other than DLJ, the fees and expenses of which will be paid by Parent,
is entitled to any broker's, finder's, financial advisor's or other similar
fee or commission in connection with the transactions contemplated by this
Agreement or the Stockholder Agreements based upon arrangements made by or on
behalf of Parent or any Subsidiary thereof. Parent has furnished to the
Company true and complete copies of all agreements under which any such fees
or expenses are payable and all indemnification and other agreements related
to the engagement of the persons to whom such fees are payable.
V. COVENANTS
5.1. INTERIM OPERATIONS OF THE COMPANY. The Company covenants and agrees
that, except as expressly provided in this Agreement, during the term of this
Agreement, without the prior written consent of Parent:
(a) the business of the Company and its Subsidiaries will be conducted
only in the ordinary course of business consistent with past practice and,
to the extent consistent therewith, each of the Company and its
Subsidiaries will use reasonable efforts to preserve its business
organization intact and maintain its existing relations with customers,
suppliers, employees, creditors and business partners;
(b) the Company will not, directly or indirectly, split, combine or
reclassify the outstanding Company Common Stock, or any outstanding capital
stock of any of the Subsidiaries of the Company;
(c) neither the Company nor any of its Subsidiaries will (i) amend its
certificate of incorporation or by-laws or similar organizational
documents; (ii) declare, set aside or pay any dividend or other
distribution payable in cash, stock or property with respect to its capital
stock other than dividends paid by the Company's Subsidiaries to the
Company or its Subsidiaries; (iii) except as set forth in Section 5.1(c) of
the Company Disclosure Schedule, issue, sell, transfer, pledge, dispose of
or encumber any additional shares of, or securities convertible into or
exchangeable for, or options, warrants, calls, commitments or rights of any
kind to acquire, any shares of capital stock of any class of the Company or
its Subsidiaries, other than issuances pursuant to exercise of stock-based
awards or options outstanding on the date hereof as disclosed in Section
3.2 or in Section 5.1(c) of the Company Disclosure Schedule; (iv) transfer,
lease, license, sell, mortgage, pledge, dispose of or encumber any material
assets other than (A) in the ordinary course of business consistent with
past practice or (B) pursuant to existing agreements disclosed in Section
5.1(c) of the Company Disclosure Schedule; or (v) redeem, purchase or
otherwise acquire directly or indirectly any of its capital stock (except
as expressly contemplated by Sections 2.3 or 5.4);
(d) except as disclosed in Section 5.1(d) of the Company Disclosure
Schedule or as provided in Sections 2.3 or 5.4, neither the Company nor any
of its Subsidiaries will (i) except for normal, regularly scheduled
increases for non-officer employees consistent with past practice or
pursuant to the terms of existing collective bargaining agreements, grant
any increase in the compensation payable or to become payable by the
Company or any of its Subsidiaries to any officer or employee (including
through any new award made under, or the exercise of any discretion under,
any Benefit Plan); (ii) adopt any new, or amend or otherwise increase, or
accelerate the payment or vesting of the amounts payable or to become
payable under any existing bonus, incentive compensation, deferred
compensation, severance, profit sharing, stock option, stock purchase,
insurance, pension, retirement or other employee benefit plan agreement or
arrangement; (iii) enter into any, or amend any existing, employment or
severance agreement with or, grant any severance or termination pay to any
officer, director, employee or consultant of the Company or any of its
Subsidiaries; (iv) make any additional contributions to any grantor trust
created by the Company to provide funding for non-tax-qualified employee
benefits or compensation; or (v) provide any severance program to any
Subsidiary which does not have a severance program as of the date of this
Agreement;
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(e) neither the Company nor any of its Subsidiaries may modify, amend or
terminate any of the Company Agreements or waive, release or assign any
material rights or claims, except in the ordinary course of business
consistent with past practice or as contemplated by this Agreement;
(f) neither the Company nor any of its Subsidiaries may permit any
material insurance policy naming it as a beneficiary or a loss payable
payee to be cancelled or terminated without notice to Parent, except in the
ordinary course of business consistent with past practice;
(g) except as set forth in Section 5.1(g) of the Company Disclosure
Schedule, neither the Company nor any of its Subsidiaries may (i) incur or
assume any debt except for borrowings under existing credit facilities in
the ordinary course consistent with past practice; (ii) assume, guarantee,
endorse or otherwise become liable or responsible (whether directly,
contingently or otherwise) for the obligations of any other person, except
in the ordinary course of business consistent with past practice; (iii)
make any loans, advances or capital contributions to, or investments in,
any other person (other than to wholly owned Subsidiaries of the Company or
customary loans or advances to employees in accordance with past practice);
or (iv) enter into any material commitment (including without limitation
any leases, capital expenditure or purchase of assets) other than in the
ordinary course of business consistent with past practice or the Company's
existing expansion plans previously disclosed in the Company Filed SEC
Documents;
(h) neither the Company nor any of its Subsidiaries may change any of the
accounting principles used by it unless required by GAAP;
(i) neither the Company nor any of its Subsidiaries may pay, discharge or
satisfy any claims, liabilities or obligations (absolute, accrued, asserted
or unasserted, contingent or otherwise), other than the payment, discharge
or satisfaction of any such claims, liabilities or obligations, (A)
reflected or reserved against in the consolidated financial statements (or
the notes thereto) of the Company and its consolidated Subsidiaries, (B)
incurred in the ordinary course of business consistent with past practice,
or (C) which are legally required to be paid, discharged or satisfied;
(j) neither the Company nor any of its Subsidiaries may adopt a plan of
complete or partial liquidation, dissolution, merger, consolidation,
restructuring, recapitalization or other material reorganization of the
Company or any of its Subsidiaries or any agreement relating to a Takeover
Proposal (other than the Merger and other than as provided in Section 5.5);
(k) neither the Company nor any of its Subsidiaries may take, or agree to
commit to take, any action that would make any representation or warranty
of the Company contained herein inaccurate in any material respect at, or
as of any time prior to, the Effective Time (except as otherwise provided
in Section 5.5);
(l) neither the Company nor any of its Subsidiaries may engage in any
transaction with, or enter into any agreement, arrangement or understanding
with, directly or indirectly, any of the Company's Affiliates, including
any transactions, agreements, arrangements or understandings with any
Affiliate or other Person covered under Item 404 of Regulation S-K under
the Securities Act that would be required to be disclosed under such Item
404, other than pursuant to such agreements, arrangements or understandings
existing on the date of this Agreement (which are set forth on Section
5.1(l) of the Company Disclosure Schedule);
(m) neither the Company nor any of its Subsidiaries may close, shut down,
or otherwise eliminate any of the Company's stores other than in the
ordinary course of business consistent with past practice;
(n) neither the Company nor any of its Subsidiaries may change the name
of or signage at any of the Company's stores other than in the ordinary
course of business;
(o) neither the Company nor any of its Subsidiaries may close, shut down,
or otherwise eliminate any of the Company's distribution centers;
(p) neither the Company nor any of its Subsidiaries may move the
location, close, shut down or otherwise eliminate the Company's
headquarters, or effect a general staff reduction at such headquarters;
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(q) neither the Company nor any of its Subsidiaries may change or modify
in any material respect the Company's existing advertising program and
policies other than in the ordinary course of business;
(r) except as set forth in Section 5.1(r) of the Company Disclosure
Schedule, neither the Company nor any of its Subsidiaries may enter into
any new lease (other than renewals of existing leases after consultation
with Parent) other than in the ordinary course of business or purchase or
acquire or enter into any agreement to purchase or acquire any real estate;
(s) neither the Company nor any of its Subsidiaries may take or omit to
take any action that may result in the incurrence of any liabilities or
obligations of any nature, whether or not accrued, contingent or otherwise,
that have, or would be reasonably likely to have, a material adverse effect
on the Company and its Subsidiaries; and
(t) neither the Company nor any of its Subsidiaries may enter into an
agreement, contract, commitment or arrangement to do any of the foregoing,
or to authorize, recommend, propose or announce an intention to do any of
the foregoing.
5.2. ACCESS TO INFORMATION. (a) Except to the extent that such party
determines in good faith that so doing would constitute a breach of contract
(other than an Acquisition Agreement) or a violation of law, each of the
Company and Parent will (and will cause each of its respective Subsidiaries
to) afford to the officers, employees, accountants, counsel, financing sources
and other representatives of the other, access, during normal business hours,
during the period prior to the Effective Time, to all of its and its
respective Subsidiaries' properties, books, contracts, commitments, records
(including any Tax Returns or other Tax related information pertaining to
Parent, the Company or their respective Subsidiaries) and executive,
management and operational employees, and, during such period, each of the
Company and Parent will (and will cause each of its Subsidiaries to) furnish
promptly to the other (i) a copy of each report, schedule, registration
statement and other document filed or received by it during such period
pursuant to the requirements of federal securities laws and (ii) all other
information concerning its business, properties and personnel as Parent may
reasonably request (including any Tax Returns or other Tax related information
pertaining to it and its Subsidiaries). Parent will hold any such information
which is nonpublic in confidence in accordance with the provisions of the
existing confidentiality agreement between the Company and Parent, dated as of
October 3, 1996 (the "Company Confidentiality Agreement"). The Company will
hold such information which is nonpublic in confidence in accordance with the
provisions of the existing confidentiality agreement between the Company and
Parent, dated as of October 3, 1996 (the "Parent Confidentiality Agreement"
and, together with the Company Confidentiality Agreement, the "Confidentiality
Agreements").
(b) Without limiting the generality or effect of the foregoing, in
anticipation of the Closing, at the request of Parent, the Company will afford
Parent and its representatives access, during normal business hours and
without undue disruption to the Company's and its Subsidiaries' operations, to
Company's and its Subsidiaries' stores and other facilities to permit Parent
to install wiring, satellite dishes and other equipment thereat designed to
permit Parent to integrate the operations of the Company and its Subsidiaries
into the operations of Parent and its Subsidiaries after the Merger. All such
actions will be at the sole cost and expense of Parent and, if this Agreement
is terminated, Parent will remove any equipment so installed and repair any
damage which may be incurred therein and otherwise restore the Company's
properties to their condition prior to such installations. Parent will
indemnify, defend and hold harmless the Company and each of its Subsidiaries
from and against any and all loss, cost, damage, expense (including attorneys'
costs and expenses) in respect of any third-party claim arising out of any of
the activities of Parent referred to in this Section 5.2(b).
5.3. CONSENTS AND APPROVALS. (a) Each of the Company and Parent will take
all reasonable actions necessary to file as soon as practicable notifications
under the HSR Act and to respond as promptly as practicable to any inquiries
received from the Federal Trade Commission and the Antitrust Division of the
Department of Justice for additional information or documentation and to
respond as promptly as practicable to all inquiries and requests received from
any State Attorney General or other Governmental Entity in connection with
antitrust matters.
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(b) Each of Parent and the Company will, and each will cause each of its
respective Subsidiaries to, (i) cooperate with one another to prepare, as soon
as practicable, all filings and other presentations in connection with seeking
any regulatory approval from a Governmental Entity, exemption or other
authorization necessary to consummate the transactions contemplated by this
Agreement, (ii) prosecute such filings and other presentations with diligence,
(iii) diligently oppose any objections to, appeals from or petitions to
reconsider or reopen any such approval by persons not party to this Agreement,
(iv) diligently defend any action, suit or proceeding seeking equitable or
monetary relief in respect of this Agreement or the Stockholder Agreements or
any of the transactions contemplated hereby or thereby, and (v) take all such
further action as in Parent's and the Company's respective judgment reasonably
may facilitate obtaining any final order or orders approving such transactions
consistent with this Agreement, provided, however, that nothing in this
Section 5.3 or any other provision of this Agreement will require Parent or
any Subsidiary of Parent to agree to any divestiture, hold-separate or other
limitation in connection with the Merger or any other transaction contemplated
hereby. Subject to the proviso to the immediately preceding sentence, each of
the Company and Parent will and will cause its respective Subsidiaries to (A)
take all reasonable actions necessary to comply promptly with all legal
requirements (which actions will include without limitation furnishing all
information in connection with approvals of or filings with any Governmental
Entity including without limitation any schedule or report required to be
filed with the SEC), and will promptly cooperate with and furnish information
to each other in connection with any such requirements imposed upon any of
them or any of their Subsidiaries in connection with this Agreement and the
transactions contemplated hereby and (B) take all reasonable actions necessary
to obtain any consent, authorization, order or approval of, or any exemption
by, any Governmental Entity or other public or private third party, required
to be obtained or made by Parent, the Company or any of their Subsidiaries in
connection with the Merger or the taking of any action contemplated thereby or
by this Agreement or the Stockholder Agreements.
5.4. EMPLOYEE BENEFITS. Effective from and after the Effective Time, the
Surviving Corporation and its Subsidiaries will provide to employees of the
Company the severance and other benefits set forth in Section 5.4 of the
Company Disclosure Schedule.
5.5. NO SOLICITATION. (a) The Company (and its Subsidiaries and Affiliates
over which it exercises control) will not, and the Company (and its
Subsidiaries and Affiliates over which it exercises control) will cause their
respective officers, directors, investment bankers, attorneys, accountants and
other agents not to, directly or indirectly: (i) initiate, solicit or
encourage (including by way of furnishing information), or take any other
similar action to facilitate the making of, any offer or proposal which
constitutes or is reasonably likely to lead to, any Takeover Proposal or an
inquiry with respect thereto or (ii) in the event of an unsolicited Takeover
Proposal for the Company or any Subsidiary or Affiliate of the Company, engage
in negotiations or discussions with, or provide any information or data to,
any person (other than Parent, any of its Affiliates or representatives)
relating to any Takeover Proposal; provided, however, that if the Company
Board determines in good faith, having received and considered the advice of
outside counsel, that it is necessary to do so in order to comply with its
fiduciary duties to the Company's stockholders under applicable law, the
Company may, in response to a Takeover Proposal which was not solicited by it
or which did not otherwise result from a breach of this Section 5.5, and
subject to compliance with all other provisions of this Section 5.5, (x)
furnish information with respect to the Company and its Subsidiaries to any
person pursuant to a customary confidentiality agreement (as determined by the
Company after consultation with its outside counsel) and (y) participate in
negotiations regarding such Takeover Proposal. For purposes of this Agreement,
"Takeover Proposal" means any inquiry, proposal or offer from any person
relating to any direct or indirect acquisition or purchase of 14.9% or more of
the assets of the Company and its Subsidiaries or 14.9% or more of any class
of equity securities of the Company or any of its Subsidiaries, any tender
offer or exchange offer that if consummated would result in any person
beneficially owning 14.9% or more of any class of equity securities of the
Company or any of its Subsidiaries, or any merger, consolidation, business
combination, recapitalization, liquidation, dissolution or similar transaction
involving the Company or any of its Subsidiaries, other than the transactions
contemplated by this Agreement.
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(b) Except as expressly permitted by this Section 5.5, neither the Company
Board nor any committee thereof may (i) withdraw or modify, or propose
publicly to withdraw or modify, in a manner adverse to Parent, the approval or
recommendation by such Company Board or such committee of the Merger or this
Agreement, (ii) approve or recommend, or propose publicly to approve or
recommend, any Takeover Proposal (other than the Merger), or (iii) cause the
Company to enter into any letter of intent, agreement in principle,
acquisition agreement or other similar agreement (each, an "Acquisition
Agreement") related to any Takeover Proposal. Notwithstanding the foregoing,
in the event that prior to the adoption of this Agreement by the holders of
the Company Common Stock, the Company Board determines in good faith, after it
has received a Superior Proposal and having received and considered advice of
outside counsel, that it is necessary to do so in order to comply with its
fiduciary duties to the Company's stockholders under applicable law, the
Company Board may (subject to this and the other provisions hereof) withdraw
or modify its approval or recommendation of the Merger or this Agreement, but
in any such case only at a time that is after the fifth business day following
Parent's receipt of written notice advising Parent that the Company Board has
received a Superior Proposal, specifying the material terms and conditions of
such Company Superior Proposal and identifying the person making such Superior
Proposal. For purposes of this Agreement, a "Superior Proposal" means any
proposal made by a third party to acquire, directly or indirectly, for
consideration consisting of cash and/or securities, more than 50% of the
combined voting power of the shares of Company Common Stock then outstanding
or all or substantially all the assets of the Company and otherwise on terms
which the Company Board determines in its good faith judgment (having received
and considered the advice of a financial advisor of nationally recognized
reputation) to be more favorable to the Company's stockholders than the Merger
and for which financing, to the extent required, is then committed or which,
in the good faith judgment of the Company Board, is reasonably capable of
being obtained by such third party.
(c) In addition to the obligations of the Company set forth in Section 5.5
(a) and (b), the Company will immediately advise Parent orally and in writing
of any request for information or of any Takeover Proposal that comes to the
attention of any of its officers or directors, the material terms and
conditions of such request or Takeover Proposal and the identity of the person
making such request or Takeover Proposal. The Company will keep Parent
reasonably informed of the status and details (including amendments or
proposed amendments) of any such request or Takeover Proposal.
(d) Nothing contained in this Section 5.5 will prohibit the Company from
taking and disclosing to its stockholders a position contemplated by Rule 14e-
2(a) promulgated under the Exchange Act or from making any disclosure that the
Company's Board, having received and considered the advice of outside counsel,
determines in good faith that the failure so to disclose would be inconsistent
with its fiduciary duties to the Company's stockholders under applicable law;
provided, however, that neither the Company nor the Company Board nor any
committee thereof may, except as permitted by Section 5.5(b), withdraw or
modify, or propose publicly to withdraw or modify, its position with respect
to this Agreement or the Merger or approve or recommend, or propose publicly
to approve or recommend, a Takeover Proposal.
5.6. ADDITIONAL AGREEMENTS. Subject to the terms and conditions herein
provided (including without limitation Section 5.3), each of the parties
hereto agrees to use its reasonable efforts to take, or cause to be taken, all
action and to do, or cause to be done, all things necessary, proper or
advisable, whether under applicable laws and regulations or otherwise, or to
remove any injunctions or other impediments or delays, legal or otherwise, to
consummate and make effective the Merger and the other transactions
contemplated by this Agreement. In case at any time after the Effective Time
any further action is necessary or desirable to carry out the purposes of this
Agreement, the proper officers and directors of the Company and Parent will
use their reasonable efforts to take, or cause to be taken, all such necessary
actions.
5.7. PUBLICITY. So long as this Agreement is in effect, neither the Company
nor Parent nor Affiliates which either of them control may issue or cause the
publication of any press release or other public statement or announcement
with respect to this Agreement or the Stockholder Agreements or the
transactions contemplated hereby or thereby without the prior consultation of
the other party, except as may be required by law or by
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obligations pursuant to any listing agreement with a national securities
exchange, in which case each party will use reasonable efforts to consult with
the other party prior to any such issuance.
5.8. NOTIFICATION OF CERTAIN MATTERS. The Company will give prompt notice to
Parent, and Parent will give prompt notice to the Company, of the occurrence
or non-occurrence of any event known to the Company or Parent, respectively,
the occurrence or non-occurrence of which would cause any representation or
warranty contained in this Agreement to be untrue or inaccurate in any
material respect at or prior to the Effective Time or would result in
noncompliance with or non-satisfaction of any covenant, condition or agreement
to be complied with or satisfied by it hereunder; provided, however, that the
delivery of any notice pursuant to this Section 5.8 will not limit or
otherwise affect the remedies available hereunder to the party receiving such
notice.
5.9. DIRECTORS' AND OFFICERS' INSURANCE AND INDEMNIFICATION. The Surviving
Corporation will indemnify each person who is now, or has been at any time
prior to the date hereof, an employee, agent, director or officer of the
Company or of any of the Company's Subsidiaries, successors and assigns
(individually an "Indemnified Party" and collectively the "Indemnified
Parties"), to the fullest extent required or permitted under the Certificate
of Incorporation or By-Laws of the Company, or any agreement with the Company
in each case as in effect immediately prior to the execution of this
Agreement, with respect to any claim, liability, loss, damage, judgment, fine,
penalty, amount paid in settlement or compromise, cost or expense, including
reasonable fees and expenses of legal counsel (whenever asserted or claimed)
("Indemnified Liability"), based in whole or in part on, or arising in whole
or in part out of, any matter, state of affairs or occurrence existing or
occurring at or prior to the Effective Time whether commenced, asserted or
claimed before or after the Effective Time, including liability arising under
the Securities Act, the Exchange Act or state law. The Surviving Corporation
will maintain in effect for not less than six years after the Effective Time
the current policies of directors' and officers' liability insurance
maintained by the Company and its Subsidiaries on the date hereof (provided
that Parent may substitute therefor policies having at least the same
coverage, a comparably rated issuer and containing terms and conditions which
are no less advantageous to the persons currently covered by such policies as
insured) with respect to matters existing or occurring at or prior to the
Effective Time; provided, however, that if the aggregate annual premiums for
such insurance during such period exceed 200% of the per annum rate of the
aggregate premium currently paid by the Company and its Subsidiaries for such
insurance on the date of this Agreement, then the Surviving Corporation will
provide the maximum coverage that will then be available at an annual premium
equal to 200% of such rate. The Surviving Corporation will pay in advance all
expenses (including fees and expenses of counsel) that may be incurred by any
Indemnified Party in successfully enforcing the indemnity or other obligations
under this Section 5.9. The rights under this Section 5.9 are in addition to
rights that an Indemnified Party may have under the Certificate of
Incorporation, By-laws, other similar organizational documents of the Company
or any of its Subsidiaries or the DGCL. The rights under this Section 5.9 are
contingent upon the occurrence of, and will survive consummation of, the
Merger and are expressly intended to benefit each Indemnified Party.
5.10. RULE 145 AFFILIATES. Not later than the record date for the Company
Special Meeting, the Company will deliver to Parent a letter identifying, to
the Company's knowledge, all persons who are, at the time of the Company
Special Meeting, or may be deemed to be "affiliates" of the Company for
purposes of Rule 145 under the Securities Act ("Company Affiliates") and
thereafter will promptly update such letter if, to the Company's knowledge,
any other person becomes a Company Affiliate. The Company will use its best
efforts to cause each Person who is identified as a Company Affiliate to
deliver to Parent at least 30 days prior to the Closing Date an agreement
substantially in the form of Exhibit D to this Agreement.
5.11. COOPERATION. Parent and the Company will together, or pursuant to an
allocation of responsibility to be agreed upon between them, coordinate and
cooperate (a) with respect to the timing of the Special Meetings, (b) in
determining whether any action by or in respect of, or filing with, any
Governmental Entity is required, or any actions, consents approvals or waivers
are required to be obtained from parties to any material contracts, in
connection with the consummation of the transactions contemplated by this
Agreement, and (c) in seeking any such actions, consents, approvals or waivers
or making any such filings, furnishing information required in connection
therewith and timely seeking to obtain any such actions, consents approvals or
waivers. As soon as
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possible following the execution of this Agreement, the Company will cooperate
with Parent in the preparation and filing of the Proxy Statement/Prospectus
with the SEC, including providing legal, financial and accounting information
concerning the Company and assisting in the preparation of all financial and
pro forma financial information required to be included in such Proxy
Statement/Prospectus. Subject to the terms and conditions of this Agreement,
Parent and the Company will each use reasonable efforts to have the
Registration Statement declared effective under the Securities Act as promptly
as practicable after the Registration Statement is filed, and Parent and the
Company will, subject to applicable law, confer on a regular and frequent
basis with one or more representatives of one another to report operational
matters of significance to the Merger and the general status of ongoing
operations insofar as relevant to the Merger, provided that the parties will
not confer on any matter to the extent inconsistent with law.
5.12. PROXY STATEMENT/PROSPECTUS. As soon as practicable, Parent and the
Company will prepare and file with the SEC the Proxy Statement/Prospectus and
each will use reasonable efforts to have the Proxy Statement/Prospectus
cleared by the SEC as promptly as practicable. As soon as practicable
following such clearance Parent will prepare and file with the SEC the
Registration Statement, of which the Proxy Statement/Prospectus will form a
part, and will use reasonable efforts to have the Registration Statement
declared effective by the SEC as promptly as practicable thereafter. Parent
and the Company will cooperate with each other in the preparation of the Proxy
Statement/Prospectus, and each will provide to the other promptly copies of
all correspondence between it or any of its representatives and the SEC. Each
of the Company and Parent will furnish all information concerning it required
to be included in the Registration Statement and the Proxy
Statement/Prospectus, and as promptly as practicable after the effectiveness
of the Registration Statement, the Proxy Statement/Prospectus will be mailed
to the stockholders of the Company and Parent. No amendment or supplement to
the Registration Statement or the Proxy Statement/Prospectus will be made
without the approval of each of the Company and Parent, which approval will
not be unreasonably withheld or delayed. Each of the Company and Parent will
advise the other promptly after it receives notice thereof, of the time when
the Registration Statement has become effective or any amendment thereto or
any supplement or amendment to the Proxy Statement/Prospectus has been filed,
or the issuance of any stop order, or the suspension of the qualification of
the Parent Common Stock to be issued in the Merger for offering or sale in any
jurisdiction, or of any request by the SEC or the NYSE for amendment of the
Registration Statement or the Proxy Statement/Prospectus.
5.13. COMPANY CONFIDENTIALITY AGREEMENT. The parties hereto agree that the
Company Confidentiality Agreement is hereby amended to provide that any
provision therein which in any manner limits, restricts or prohibits any of
the following will terminate as of the date hereof: the voting or acquisition
of beneficial ownership of shares of Common Stock by Parent or any of its
Affiliates pursuant to this Agreement or the Stockholder Agreements; the
transactions contemplated hereby and thereby; or the acquisition by Parent or
any of its Affiliates of beneficial ownership, whether pursuant to open-market
or privately negotiated purchases or other transactions otherwise than
pursuant to this Agreement or the Stockholder Agreements but in accordance
with applicable law, of Company Common Stock which, when added to the shares
of Common Stock subject to Section 3 of the Stockholder Agreements as of the
time of such acquisition, does not exceed 55% of the Company Common Stock
outstanding on a fully diluted basis. Except as otherwise provided in Section
5.5, the Company agrees not to take any action that would impede, bar,
restrict or otherwise interfere in any manner with Parent's rights under this
Agreement or the Stockholder Agreements, or voting or other rights in respect
of any shares of Company Common Stock acquired by Parent or any of its
Subsidiaries pursuant to this Agreement or any so-called "poison pill" or
other device which would dilute Parent's or any such Subsidiary's rights in
respect of any of the foregoing. The provisions of this Section 5.13 will
survive any termination of this Agreement; provided, however, that nothing in
this Agreement precludes the Company from implementing any measure (including,
without limitation, a so-called "poison pill" and amendments to its
Certificate of Incorporation and Bylaws) at any time that (i) is not
inconsistent with Parent's right to acquire shares of Company Common Stock
under the foregoing provisions of this Section 5.13 or with the exception to
Section 5.17(a) contained in the proviso thereto and (ii) is determined by the
Company Board to be appropriate to protect the interests of all stockholders.
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5.14. STOCK EXCHANGE LISTING. Parent will use reasonable efforts to list
prior to the Effective Time on the NYSE and the Pacific Stock Exchange,
subject to official notice of issuance, the shares of Parent Common Stock to
be issued in the Merger.
5.15. REVISIONS OF SCHEDULES. At any time following the date hereof and
prior to October 23, 1996, to the extent any information in the Company
Disclosure Schedule shall be inaccurate, untrue or incomplete in any material
respect, the Company may, at its option, revise such information and provide
written notice of such revision to Parent, referencing this Section 5.15 in
such written notice, provided, however, that no such revision may be made in
respect of Section 3.3(b). In the event that Parent, after receiving such
written notice, fails to give notice of termination of this Agreement in
accordance with Section 7.1(c) within five business days of receipt thereof,
such revision will be deemed to be a part of the Company Disclosure Schedule
as if it had been included therein as of the date hereof.
5.16. CERTAIN INTERIM OPERATIONS OF PARENT. Parent covenants and agrees
that, except as expressly provided in this Agreement, during the term of this
Agreement, without the prior written consent of the Company:
(a) Parent will not, directly or indirectly, split, combine or reclassify
the outstanding Parent Common Stock;
(b) Neither Parent nor any of its Subsidiaries will declare, set aside or
pay any dividend or other distribution payable in cash, stock or property
with respect to its capital stock other than (i) dividends paid by Parent's
Subsidiaries to Parent or its Subsidiaries and (ii) cash dividends on
Parent Common Stock at Parent's current dividend rate or as such rate may
be increased (provided that any such increase is not higher, on a
percentage basis, after rounding up to avoid fractions, than Parent's most
recent dividend rate increase prior to the date hereof); and Parent
acknowledges that its current intention is to continue to pay cash
dividends at a rate no less than the most recent dividend prior to the date
hereof;
(c) Parent may not adopt a plan of complete or partial liquidation or
dissolution;
(d) Neither Parent nor any of its Subsidiaries may take, or agree to
commit to take, any action that would make any representation or warranty
of Parent contained herein inaccurate in any material respect at, or as of
any time prior to, the Effective Time; and
(e) Neither Parent nor any of its Subsidiaries may enter into an
agreement, contract, commitment or arrangement to do any of the foregoing,
or to authorize, recommend, propose or announce an intention to do any of
the foregoing.
5.17. CERTAIN ADDITIONAL COVENANTS. (a) If this Agreement is terminated in
accordance with Section 7.1, for a period of four years from the date hereof,
except (i) within the terms of a specific written request from the Company, or
(ii) as contemplated by Section 5.13 prior to the termination of this
Agreement, Parent will not, and will use its best efforts to cause each of its
Affiliates controlled by it not to, propose or publicly announce or otherwise
disclose an intent to propose, or enter into or agree to enter into, singly or
with any other person or directly or indirectly, (a) any form of business
combination, acquisition or other similar transaction relating to the Company
or any subsidiary of the Company, (b) any form of restructuring,
recapitalization or similar transaction with respect to Company or any such
subsidiary, or (c) any demand, request or proposal to amend, waive or
terminate any provision of this Section 5.17, and except as aforesaid during
such period Parent will not, and will use its best efforts to cause each of
its Affiliates or any of its representatives as a principal not to, (A)
acquire, or offer, propose or agree to acquire, by purchase or otherwise, any
additional voting securities of Company, (B) make, or in any way participate
in, any solicitation of proxies with respect to any such voting securities
(including by the execution of action by written consent), become a
participant in any election contest with respect to Company, seek to influence
any person with respect to any such voting securities or demand a copy of the
list of the stockholders or other books and records of Company, (C)
participate in or encourage the formation of any partnership, syndicate or
other group which owns or seeks or offers to acquire beneficial ownership of
any such voting securities or which seeks to affect control of Company or has
the purpose of
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circumventing any provision of this Agreement, (D) otherwise act, alone or in
concert with others (including by providing financing for another person), to
seek or to offer to control or influence, in any manner, the management, Board
of Directors or policies of Company, or (E) make any proposal or other
communication designed to compel Company to make a public announcement thereof
in respect of any matter referred to in this Section 5.17; provided, however,
that (x) if the Company initiates a process of soliciting bids for the
acquisition of the Company, Parent will be permitted to participate in such
process on the same basis, and subject to the same conditions and limitations,
as are established by the Company for all bidders and (y) if the Company
enters into an Acquisition Agreement with a party other than Parent and, as a
result, the Company Board has a fiduciary obligation under applicable Delaware
law to consider alternative Takeover Proposals, Parent will be permitted to
make a Takeover Proposal.
(b) At the request of the Company, Parent will refinance, as of the Closing,
all of the Company's indebtedness and other obligations to the lenders under
the Bank Credit Agreement (as defined in the Company Disclosure Schedule),
subject to the occurrence of the Closing and provided that the terms thereof
are not amended, waived or otherwise modified following the date hereof
without Parent's consent.
5.18. BOARD REPRESENTATION. If requested by the Company prior to the
Effective Time, Parent will take such action as may be required so that
Leonard Green, if he is then ready and willing so to serve, will be elected
effective as of the Effective Time as a member of the Parent Board in the
class of members thereof whose term expires at Parent's 1999 annual meeting of
stockholders.
VI. CONDITIONS
6.1. CONDITIONS TO THE OBLIGATIONS OF EACH PARTY. The obligations of the
Company, on the one hand, and Parent, on the other hand, to consummate the
Merger are subject to the satisfaction (or, if permissible, waiver by the
party for whose benefit such conditions exist) of the following conditions:
(a) this Agreement shall have been adopted by the stockholders of the
Company and the adoption of this Agreement and the issuance of Parent
Common Stock in exchange for Company Common Stock shall have been approved
by Parent's stockholders, in each case as herein contemplated;
(b) no court, arbitrator or governmental body, agency or official shall
have issued any order, decree or ruling which remains in force, and there
shall not be any statute, rule or regulation, restraining, enjoining or
prohibiting the consummation of the Merger;
(c) the Registration Statement shall have become effective under the
Securities Act and no stop order suspending effectiveness of the
Registration Statement shall have been issued and no proceeding for that
purpose will have been initiated or threatened by the SEC;
(d) All consents, authorizations, orders and approvals of (or filings or
registrations with) any Governmental Entity required in connection with the
execution, delivery and performance of this Agreement shall have been
obtained or made, except for filings in connection with the Merger and any
other documents required to be filed after the Effective Time and except
where the failure to have obtained or made any such consent, authorization,
order, approval, filing or registration would not have a material adverse
effect on the business, financial condition or results of operations of the
Surviving Corporation and its Subsidiaries following the Effective Time;
(e) Parent Common Stock to be issued to the Company stockholders in
connection with the Merger shall have been approved for listing on the
NYSE, subject only to official notice of issuance; and
(f) Parent and the Company shall have received from either Irell &
Manella LLP, counsel to the Company, or Jones, Day, Reavis & Pogue, counsel
to Parent, on the date of the Proxy Statement/Prospectus and on the Closing
Date, opinions, in either case dated as of such respective dates, and
stating that the Merger will be treated for federal income tax purposes as
a reorganization within the meaning of Section 368(a) of the Code and that
the Company and Parent will each be a party to that reorganization within
the
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meaning of Section 368(b) of the Code and that no gain or loss will be
recognized by the stockholders of the Company upon their exchange of
Company Common Stock for Parent Common Stock under Section 354 of the Code
(except to the extent such a stockholder receives cash in lieu of
fractional shares). In rendering such opinions, such counsel shall be
entitled to rely upon customary representations of officers of the Company,
Parent and stockholders of the Company.
6.2. CONDITIONS TO OBLIGATION OF COMPANY TO EFFECT THE MERGER. The
obligation of the Company to effect the Merger will be subject to the
fulfillment at or prior to the Closing Date of the following additional
conditions:
(a) Parent shall have performed in all material respects its agreements
contained in this Agreement required to be performed by it on or prior to
the Closing Date, and all of the representations and warranties of Parent
contained in this Agreement shall have been true and correct in all
material respects as of the date hereof and shall be true and correct in
all material respects as of the Closing Date, except (i) for changes
specifically permitted by this Agreement and (ii) that those
representations and warranties which address matters only as of a
particular date shall remain true and correct in all material respects as
of such date, and the Company shall have received a certificate of the
Chairman, the President or a Vice President of Parent, dated the Closing
Date, certifying to such effect;
(b) From the date of this Agreement through the Effective Time, there
shall not have occurred any material adverse change in the business or
properties of Parent excluding changes resulting from, arising out of or
related to (i) the drug store or retail business in the United States
generally or (ii) general economic or financial conditions; and
(c) The average closing sales price of Parent Common Stock per share as
reported on the NYSE Composite Tape for the five NYSE trading days
immediately preceding the Closing Date (the "Five Day Measuring Period")
shall be at least $30.75; provided, however, that this condition shall be
deemed satisfied if such average closing sales price is less than $30.75
but at least $29.00, so long as such average closing sales price does not
represent a diminution below $36.375 which, expressed as a percentage,
exceeds the diminution (if any), also expressed as a percentage, of the
average reporting closing Dow Jones Industrial Average during the Five Day
Measuring Period below 5,934.
6.3. CONDITIONS TO OBLIGATION OF PARENT TO EFFECT THE MERGER. The obligation
of Parent to effect the Merger will be subject to the fulfillment at or prior
to the Closing Date (or such other date as may be specified below) of the
following additional conditions:
(a) The Company shall have performed in all material respects its
agreements contained in this Agreement required to be performed on or prior
to the Closing Date, and the representations and warranties of the Company
contained in this Agreement shall have been true and correct in all
material respects as of the date hereof and shall be true and correct in
all material respects as of the Closing Date, except (i) for changes
specifically permitted by this Agreement and (ii) that those
representations and warranties which address matters only as of a
particular date will remain true and correct in all material respects as of
such date, and Parent shall have received a certificate of the Chairman,
the President or a Vice President of the Company, dated the Closing Date,
certifying to such effect;
(b) From the date of this Agreement through the Effective Time, there
shall not have occurred any material adverse change in the business or
properties of the Company and its Subsidiaries excluding changes resulting
from, arising out of or related to (i) the drug store or retail business in
the United States generally, (ii) general economic or financial conditions,
or (iii) costs incurred by reason of resignations of employees at the
Company's headquarters; and
(c) As of the Effective Time, no person shall have any right under any
stock option plan (or any option granted thereunder) or other plan, program
or arrangement to acquire any equity securities of the Company of any of
its Subsidiaries.
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VII. TERMINATION
7.1. TERMINATION. Anything herein or elsewhere to the contrary
notwithstanding, this Agreement may be terminated and the Merger contemplated
herein may be abandoned at any time prior to the Effective Time, whether
before or after stockholder approval hereof:
(a) By the mutual consent of the Parent Board and the Company Board;
(b) by either the Company or Parent:
(i) if the Merger shall not have been consummated by April 30, 1997;
provided, however, that the right to terminate this Agreement pursuant
to this Section 7.1(b)(i) will not be available to any party whose
failure to perform any of its obligations under this Agreement is the
cause of or results in the failure of the Merger to be consummated by
such time;
(ii) if, at a Company Special Meeting duly convened therefor and
finally adjourned, the Company Stockholder Approval shall not have been
obtained;
(iii) if, at the Parent Special Meeting duly convened therefor and
finally adjourned, the Parent Stockholder Approval shall not have been
obtained; or
(iv) if any Governmental Entity shall have issued an injunction,
order or decree (a "Restraint") or taken any other action permanently
enjoining, restraining or otherwise prohibiting the consummation of the
Merger or any of the other transactions contemplated by this Agreement
or the Stockholder Agreements and such Restraint or other action shall
have become final and nonappealable;
(c) by Parent, if the Company shall have breached or failed to perform in
any material respect any of its representations, warranties, covenants or
other agreements contained in this Agreement, which breach or failure to
perform cannot be or has not been cured within 30 days after the giving of
written notice to the Company of such breach (a "Company Material Breach")
(provided that Parent is not then in Parent Material Breach (as defined in
Section 7.1(f)) of any representation, warranty, covenant or other
agreement contained in this Agreement);
(d) by Parent if (i) the Company Board or any committee thereof shall
have withdrawn or modified in a manner adverse to Parent its approval or
recommendation of the Merger or this Agreement or approved or recommended
any Takeover Proposal or (ii) the Company Board or any committee thereof
shall have resolved to take any of the foregoing actions;
(e) by Parent, if the Company or any of its officers, directors,
employees, representatives or agents shall take any of the actions that
would be proscribed by Section 5.5 but for the exceptions therein allowing
certain actions to be taken based upon the fiduciary obligations of the
Company Board; and
(f) by the Company, if Parent shall have breached or failed to perform in
any material respect any of its representations, warranties, covenants or
other agreements contained in this Agreement, which breach or failure to
perform cannot be or has not been cured within 30 days after the giving of
written notice to Parent of such breach (a "Parent Material Breach")
(provided that the Company is not then in Company Material Breach of any
representation, warranty, covenant or other agreement contained in this
Agreement).
7.2. EFFECT OF TERMINATION. In the event of the termination of this
Agreement as provided in Section 7.1, written notice thereof will forthwith be
given to the other party or parties specifying the provision hereof pursuant
to which such termination is made, and this Agreement will forthwith become
null and void, and there will be no liability on the part of Parent or the
Company except (a) for fraud or for intentional material breach of this
Agreement and (b) as set forth in Sections 5.13, 5.17(a) and 7.3.
7.3. FEES AND EXPENSES; TERMINATION FEE. (a) Except as set forth in this
Section 7.3, all fees and expenses incurred in connection with the Merger,
this Agreement, the Stockholder Agreements and the transactions contemplated
hereby and thereby will be paid by the party incurring such fees or expenses,
whether
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or not the Merger is consummated, except that each of the Company and Parent
will bear and pay one-half of the costs and expenses incurred in connection
with (i) the SEC filing fees and printing and mailing costs associated with
the Registration Statement and the Joint Proxy Statement and (ii) the filing
fees applicable to the premerger notification and report forms under the HSR
Act.
(b) In the event that (i) a Takeover Proposal shall have been made known to
the Company or any of its subsidiaries or has been made directly to its
stockholders generally or any person shall have publicly announced an
intention (whether or not conditional) to make a Takeover Proposal and
thereafter Company Stockholder Approval is not obtained or (ii) this Agreement
is terminated by Parent pursuant to Section 7.1(d), then the Company will
promptly, but in no event later than two days after the date of such
termination, pay Parent a fee equal to $37.5 million (the "Termination Fee"),
payable by wire transfer of same day funds, plus upon Parent's request all
reasonable and documented out-of-pocket expenses incurred by Parent in
connection with this Agreement, the Stockholder Agreements and the
transactions contemplated hereby and thereby in an amount (as to such
expenses) not to exceed $5 million, which payments will be in addition to any
Termination Fee that may be payable. Notwithstanding any other provision
herein, no Termination Fee or any out-of-pocket expenses will be payable under
this Section 7.3(b) to Parent (i) if Parent shall have materially breached any
representation, warranty or covenant applicable to it hereunder and such
breach shall have given rise to a right of termination on the part of the
Company pursuant to Section 7.1(f) (excluding for this purpose the proviso
contained in the parenthetical at the end of Section 7.1(f)) or (ii) for any
reason other than the specific circumstances set forth in Section 7.3(b). The
Company acknowledges that the agreements contained in this Section 7.3(b) are
an integral part of the transactions contemplated by this Agreement, and that,
without these agreements, Parent would not enter into this Agreement;
accordingly, if the Company fails promptly to pay the amount due pursuant to
this Section 7.3(b), and, in order to obtain such payment, Parent commences a
suit which results in a judgment against the Company for the fee set forth in
Section 7.3(b), the Company will pay to Parent its reasonable costs and
expenses (including attorneys' fees and expenses) in connection with such
suit, together with interest on the amount of the fee at the prime rate of
Citibank N.A. in effect on the date such payment was required to be made.
(c) In the event that this Agreement is terminated by the Company pursuant
to Section 7.1(b)(iii) or 7.1(f), then Parent will promptly, but in no event
later than two days after the date of such event, pay the Company a fee equal
to $37.5 million (the "Company Termination Fee"), plus upon the Company's
request all reasonable and documented out-of-pocket expenses incurred by the
Company in connection with this Agreement, the Stockholder Agreements and the
transactions contemplated hereby and thereby in an amount (as to such
expenses) not to exceed $5 million. Parent acknowledges that the agreements
contained in this Section 7.3(c) are an integral part of the transactions
contemplated by this Agreement, and that, without these agreements, the
Company would not enter into this Agreement; accordingly, if Parent fails
promptly to pay the amount due pursuant to this Section 7.3(c), and, in order
to obtain such payment, the Company commences a suit which results in a
judgment against Parent for the fee set forth in this Section 7.3(c), Parent
will pay to the Company its reasonable costs and expenses (including
attorneys' fees and expenses) in connection with such suit, together with
interest on the amount of the fee at the prime rate of Citibank N.A. in effect
on the date such payment was required to be made. Notwithstanding any other
provision herein, no Termination Fee or any out-of-pocket expenses will be
payable under this Section 7.3(c) to the Company (i) if the Company shall have
materially breached any representation, warranty or covenant applicable to it
hereunder and such breach shall have given rise to a right of termination on
the part of Parent pursuant to Section 7.1(c) (excluding for this purpose the
proviso contained in the parenthetical at the end of Section 7.1(c)) or (ii)
for any reason other than the specific circumstances set forth in this Section
7.3(c).
VIII. MISCELLANEOUS
8.1. AMENDMENT AND MODIFICATION. Subject to applicable law, this Agreement
may be amended, modified and supplemented in any and all respects, whether
before or after any vote of the stockholders of the Company contemplated
hereby, by written agreement of the parties hereto, pursuant to action taken
by their respective Boards of Directors, at any time prior to the Closing Date
with respect to any of the terms contained
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herein; provided, however, that after the approval of the adoption of this
Agreement by the stockholders of the Company, no such amendment, modification
or supplement will reduce or change the consideration to be received by the
Company's stockholders in the Merger.
8.2. NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES. None of the
representations and warranties in this Agreement or in any schedule,
instrument or other document (including the Stockholder Agreements) delivered
pursuant to this Agreement will survive the Effective Time.
8.3. NOTICES. All notices and other communications hereunder will be in
writing and will be deemed given if delivered personally, telecopied (which is
confirmed) or sent by an overnight courier service, such as FedEx, to the
parties at the following addresses (or at such other address for a party as
will be specified by like notice):
(a) if to Parent, to:
Rite Aid Corporation
30 Hunter Lane
Camp Hill, Pennsylvania 17011
Attention: Chief Executive Officer
Telephone No.: (717) 761-2633
Telecopy No.: (717) 975-5905
with a copy to:
Jones, Day, Reavis & Pogue
599 Lexington Avenue
New York, New York 10022
Attention: Robert A. Profusek
Telephone No.: (212) 326-3939
Telecopy No.: (212) 755-7306
(b) if to the Company, to:
Thrifty Payless Holdings, Inc.
9275 S.W. Peyton Lane
Wilsonville, Oregon 97070
Attention: Chief Executive Officer
Telephone No.: (503) 682-4100
Telecopy No.: (503) 682-1445
with a copy to:
Irell & Manella
333 South Hope Street
Los Angeles, California 90071
Attention: Edmund M. Kaufman
Telephone No.: (213) 620-1555
Telecopy No.: (213) 229-0515
8.4. INTERPRETATION. (a) In addition to the terms defined elsewhere herein,
for purposes of this Agreement:
(i) an "Affiliate" of any person means another person that directly or
indirectly, through one or more intermediaries, controls, is controlled by,
or is under common control with, such first person;
(ii) "person" means an individual, corporation, partnership, limited
liability company, joint venture, association, trust, unincorporated
organization or other entity; and
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(iii) "knowledge" of any person which is not an individual means the
actual knowledge of such person's executive officers after reasonable
inquiry.
(b) When a reference is made in this Agreement to an Article, Section,
Schedule or Exhibit, such reference shall be to an Article or Section of, or a
Schedule or Exhibit to, this Agreement unless otherwise indicated. The table
of contents and headings contained in this Agreement are for reference
purposes only and will not affect in any way the meaning or interpretation of
this Agreement. Whenever the words "include," "includes" or "including" are
used in this Agreement, they will be deemed to be followed by the words
"without limitation." The words "hereof," "herein" and "hereunder" and words
of similar import when used in this Agreement will refer to this Agreement as
a whole and not to any particular provision of this Agreement. All terms
defined in this Agreement have the defined meanings when used herein or when
used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein. The definitions contained in this Agreement
are applicable to the singular as well as the plural forms of such terms and
to the masculine as well as to the feminine and neuter genders of such term.
Any agreement, instrument or statute defined or referred to herein or in any
agreement or instrument or statute as from time to time amended, modified or
supplemented, including (in the case of agreements or instruments) by waiver
or consent and (in the case of statutes) by succession of comparable successor
statutes and references to all attachments thereto and instruments
incorporated therein. References to a person are also to its permitted
successors and assigns. When a reference is made in this Agreement to
Sections, such reference will be to a Section of this Agreement unless
otherwise indicated. Whenever the words "include", "includes" or "including"
are used in this Agreement they will be deemed to be followed by the words
"without limitation". The phrases "the date of this Agreement", "the date
hereof" and terms of similar import will be deemed to refer to October 13,
1996.
8.5. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which will be considered one and the same agreement and
will become effective when two or more counterparts have been signed by each
of the parties and delivered to the other parties, it being understood that
all parties need not sign the same counterpart.
8.6. ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES; RIGHTS OF
OWNERSHIP. This Agreement, the Stockholder Agreements and the Confidentiality
Agreements, as modified hereby (including the exhibits hereto and the
documents and the instruments referred to herein and therein): (a) constitute
the entire agreement and supersede all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof, and (b) except as provided in Section 5.9 with respect to the
obligations of the Company or the Surviving Corporation thereunder, are not
intended to confer upon any person other than the parties hereto any rights or
remedies hereunder.
8.7. SEVERABILITY. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction or other authority to
be invalid, void, unenforceable or against its regulatory policy, the
remainder of the terms, provisions, covenants and restrictions of this
Agreement will remain in full force and effect and will in no way be affected,
impaired or invalidated.
8.8. SPECIFIC PERFORMANCE. The parties hereto agree that irreparable damage
would occur in the event any provision of this Agreement was not performed in
accordance with the terms hereof and that the parties will be entitled to the
remedy of specific performance of the terms hereof, in addition to any other
remedy at law or equity.
8.9. GOVERNING LAW. This Agreement will be governed and construed in
accordance with the laws of the State of Delaware without giving effect to the
principles of conflict of laws thereof.
8.10. ASSIGNMENT. Neither this Agreement nor any of the rights, interests or
obligations hereunder will be assigned by any of the parties hereto (whether
by operation of law or otherwise) without the prior written consent of the
other parties. Subject to the preceding sentence, this Agreement will be
binding upon, inure to the benefit of and be enforceable by the parties and
their respective successors and assigns.
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IN WITNESS WHEREOF, Parent and the Company have caused this Agreement to be
signed by their respective officers thereunto duly authorized as of the date
first written above.
RITE AID CORPORATION
/s/ Martin L. Grass
By: _________________________________
Martin L. Grass
Chairman of the Board
and Chief Executive Officer
THRIFTY PAYLESS HOLDINGS, INC.
/s/ Gordon D. Barker
By: _________________________________
Gordon D. Barker
President and Chief Executive
Officer
A-34
<PAGE>
ANNEX B
[OPINION OF DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION TO BE FILED BY
AMENDMENT]
B-1
<PAGE>
ANNEX C
[OPINION OF GOLDMAN, SACHS & CO. TO BE FILED BY AMENDMENT]
C-1
<PAGE>
ANNEX D
(S) 262. APPRAISAL RIGHTS
(a) Any stockholder of a corporation of this State who holds shares of stock
on the date of the making of a demand pursuant to subsection (d) of this
section with respect to such shares, who continuously holds such shares
through the effective date of the merger or consolidation, who has otherwise
complied with subsection (d) of this section and who has neither voted in
favor of the merger or consolidation nor consented thereto in writing pursuant
to (S) 228 of this title shall be entitled to an appraisal by the Court of
Chancery of the fair value of his shares of stock under the circumstances
described in subsections (b) and (c) of this section. As used in this section,
the word "stockholder" means a holder of record of stock in a stock
corporation and also a member of record of a nonstock corporation; the words
"stock" and "share" mean and include what is ordinarily meant by those words
and also membership or membership interest of a member of a nonstock
corporation; and the words "depository receipt" mean a receipt or other
instrument issued by a depository representing an interest in one or more
shares, or fractions thereof, solely of stock of a corporation, which stock is
deposited with the depository.
(b) Appraisal rights shall be available for the shares of any class or
series of stock of a constituent corporation in a merger or consolidation to
be effected pursuant to (S) 251 (other than a merger effected pursuant to
subsection (g) of Section 251), (S) 252, (S) 254, (S) 257, (S) 258, (S) 263 or
(S) 264 of this title:
(1) Provided, however, that no appraisal rights under this section shall
be available for the shares of any class or series of stock, which stock,
or depository receipts in respect thereof, at the record date fixed to
determine the stockholders entitled to receive notice of and to vote at the
meeting of stockholders to act upon the agreement of merger or
consolidation, were either (i) listed on a national securities exchange or
designated as a national market system security on an interdealer quotation
system by the National Association of Securities Dealers, Inc. or (ii) held
of record by more than 2,000 holders; and further provided that no
appraisal rights shall be available for any shares of stock of the
constituent corporation surviving a merger if the merger did not require
for its approval the vote of the stockholders of the surviving corporation
as provided in subsection (f) of (S) 251 of this title.
(2) Notwithstanding paragraph (1) of this subsection, appraisal rights
under this section shall be available for the shares of any class or series
of stock of a constituent corporation if the holders thereof are required
by the terms of an agreement of merger or consolidation pursuant to (S)(S)
251, 252, 254, 257, 258, 263 and 264 of this title to accept for such stock
anything except:
a. Shares of stock of the corporation surviving or resulting from
such merger or consolidation, or depository receipts in respect
thereof;
b. Shares of stock of any other corporation, or depository receipts
in respect thereof, which shares of stock or depository receipts at the
effective date of the merger or consolidation will be either listed on
a national securities exchange or designated as a national market
system security on an interdealer quotation system by the National
Association of Securities Dealers, Inc. or held of record by more than
2,000 holders;
c. Cash in lieu of fractional shares or fractional depository
receipts described in the foregoing subparagraphs a. and b. of this
paragraph; or
d. Any combination of the shares of stock, depository receipts and
cash in lieu of fractional shares or fractional depository receipts
described in the foregoing subparagraphs a., b. and c. of this
paragraph.
(3) In the event all of the stock of a subsidiary Delaware corporation
party to a merger effected under (S) 253 of this title is not owned by the
parent corporation immediately prior to the merger, appraisal rights shall
be available for the shares of the subsidiary Delaware corporation.
(c) Any corporation may provide in its certificate of incorporation that
appraisal rights under this section shall be available for the shares of any
class or series of its stock as a result of an amendment to its certificate of
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incorporation, any merger or consolidation in which the corporation is a
constituent corporation or the sale of all or substantially all of the assets
of the corporation. If the certificate of incorporation contains such a
provision, the procedures of this section, including those set forth in
subsections (d) and (e) of this section, shall apply as nearly as is
practicable.
(d) Appraisal rights shall be perfected as follows:
(1) If a proposed merger or consolidation for which appraisal rights are
provided under this section is to be submitted for approval at a meeting of
stockholders, the corporation, not less than 20 days prior to the meeting,
shall notify each of its stockholders who was such on the record date for
such meeting with respect to shares for which appraisal rights are
available pursuant to subsection (b) or (c) hereof that appraisal rights
are available for any or all of the shares of the constituent corporations,
and shall include in such notice a copy of this section. Each stockholder
electing to demand the appraisal of his shares shall deliver to the
corporation, before the taking of the vote on the merger or consolidation,
a written demand for appraisal of his shares. Such demand will be
sufficient if it reasonably informs the corporation of the identity of the
stockholder and that the stockholder intends thereby to demand the
appraisal of his shares. A proxy or vote against the merger or
consolidation shall not constitute such a demand. A stockholder electing to
take such action must do so by a separate written demand as herein
provided. Within 10 days after the effective date of such merger or
consolidation, the surviving or resulting corporation shall notify each
stockholder of each constituent corporation who has complied with this
subsection and has not voted in favor of or consented to the merger or
consolidation of the date that the merger or consolidation has become
effective; or
(2) If the merger or consolidation was approved pursuant to Section 228
or Section 253 of this title, each constituent corporation, either before
the effective date of the merger or consolidation or within ten days
thereafter, shall notify each of the holders of any class or series of
stock of such constituent corporation who are entitled to appraisal rights
of the approval of the merger or consolidation and that appraisal rights
are available for any or all shares of such class or series of stock of
such constituent corporation, and shall include in such notice a copy of
this section, provided that, if the notice is given on or after the
effective date of the merger or consolidation, such notice shall be given
by the surviving or resulting corporation to all such holders of any class
or series of stock of a constituent corporation that are entitled to
appraisal rights. Such notice may, and, if given on or after the effective
date of the merger or consolidation, shall, also notify such stockholders
of the effective date of the merger or consolidation. Any stockholder
entitled to appraisal rights may, within twenty days after the date of
mailing of such notice, demand in writing from the surviving or resulting
corporation the appraisal of such holder's shares. Such demand will be
sufficient if it reasonably informs the corporation of the identity of the
stockholder and that the stockholder intends thereby to demand the
appraisal of such holder's shares. If such notice did not notify
stockholders of the effective date of the merger or consolidation, either
(i) each such constituent corporation shall send a second notice before the
effective date of the merger or consolidation notifying each of the holders
of any class or series of stock of such constituent corporation that are
entitled to appraisal rights of the effective date of the merger or
consolidation or (ii) the surviving or resulting corporation shall send
such a second notice to all such holders on or within 10 days after such
effective date; provided, however, that if such second notice is sent more
than 20 days following the sending of the first notice, such second notice
need only be sent to each stockholder who is entitled to appraisal rights
and who has demanded appraisal of such holders shares in accordance with
this subsection. An affidavit of the secretary or assistant secretary or of
the transfer agent of the corporation that is required to give either
notice that such notice has been given shall, in the absence of fraud, be
prima facie evidence of the facts stated therein. For purposes of
determining the stockholders entitled to receive either notice, each
constituent corporation may fix, in advance, a record date that shall be
not more than 10 days prior to the date the notice is given; provided that,
if the notice is given on or after the effective date of the merger or
consolidation, the record date shall be such effective date. If no record
date is fixed and the notice is given prior to the effective date, the
record date shall be the close of business on the day next preceding the
day on which the notice is given.
(e) Within 120 days after the effective date of the merger or consolidation,
the surviving or resulting corporation or any stockholder who has complied
with subsections (a) and (d) hereof and who is otherwise
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entitled to appraisal rights, may file a petition in the Court of Chancery
demanding a determination of the value of the stock of all such stockholders.
Notwithstanding the foregoing, at any time within 60 days after the effective
date of the merger or consolidation, any stockholder shall have the right to
withdraw his demand for appraisal and to accept the terms offered upon the
merger or consolidation. Within 120 days after the effective date of the
merger or consolidation, any stockholder who has complied with the
requirements of subsections (a) and (d) hereof, upon written request, shall be
entitled to receive from the corporation surviving the merger or resulting
from the consolidation a statement setting forth the aggregate number of
shares not voted in favor of the merger or consolidation and with respect to
which demands for appraisal have been received and the aggregate number of
holders of such shares. Such written statement shall be mailed to the
stockholder within 10 days after his written request for such a statement is
received by the surviving or resulting corporation or within 10 days after
expiration of the period for delivery of demands for appraisal under
subsection (d) hereof, whichever is later.
(f) Upon the filing of any such petition by a stockholder, service of a copy
thereof shall be made upon the surviving or resulting corporation, which shall
within 20 days after such service file in the office of the Register in
Chancery in which the petition was filed a duly verified list containing the
names and addresses of all stockholders who have demanded payment for their
shares and with whom agreements as to the value of their shares have not been
reached by the surviving or resulting corporation. If the petition shall be
filed by the surviving or resulting corporation, the petition shall be
accompanied by such a duly verified list. The Register in Chancery, if so
ordered by the Court, shall give notice of the time and place fixed for the
hearing of such petition by registered or certified mail to the surviving or
resulting corporation and to the stockholders shown on the list at the
addresses therein stated. Such notice shall also be given by 1 or more
publications at least 1 week before the day of the hearing, in a newspaper of
general circulation published in the City of Wilmington, Delaware or such
publication as the Court deems advisable. The forms of the notices by mail and
by publication shall be approved by the Court, and the costs thereof shall be
borne by the surviving or resulting corporation.
(g) At the hearing on such petition, the Court shall determine the
stockholders who have complied with this section and who have become entitled
to appraisal rights. The Court may require the stockholders who have demanded
an appraisal for their shares and who hold stock represented by certificates
to submit their certificates of stock to the Register in Chancery for notation
thereon of the pendency of the appraisal proceedings; and if any stockholder
fails to comply with such direction, the Court may dismiss the proceedings as
to such stockholder.
(h) After determining the stockholders entitled to an appraisal, the Court
shall appraise the shares, determining their fair value exclusive of any
element of value arising from the accomplishment or expectation of the merger
or consolidation, together with a fair rate of interest, if any, to be paid
upon the amount determined to be the fair value. In determining such fair
value, the Court shall take into account all relevant factors. In determining
the fair rate of interest, the Court may consider all relevant factors,
including the rate of interest which the surviving or resulting corporation
would have had to pay to borrow money during the pendency of the proceeding.
Upon application by the surviving or resulting corporation or by any
stockholder entitled to participate in the appraisal proceeding, the Court
may, in its discretion, permit discovery or other pretrial proceedings and may
proceed to trial upon the appraisal prior to the final determination of the
stockholder entitled to an appraisal. Any stockholder whose name appears on
the list filed by the surviving or resulting corporation pursuant to
subsection (f) of this section and who has submitted his certificates of stock
to the Register in Chancery, if such is required, may participate fully in all
proceedings until it is finally determined that he is not entitled to
appraisal rights under this section.
(i) The Court shall direct the payment of the fair value of the shares,
together with interest, if any, by the surviving or resulting corporation to
the stockholders entitled thereto. Interest may be simple or compound, as the
Court may direct. Payment shall be so made to each such stockholder, in the
case of holders of uncertificated stock forthwith, and the case of holders of
shares represented by certificates upon the surrender to the corporation of
the certificates representing such stock. The Court's decree may be enforced
as other decrees in the Court of Chancery may be enforced, whether such
surviving or resulting corporation be a corporation of this State or of any
state.
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(j) The costs of the proceeding may be determined by the Court and taxed
upon the parties as the Court deems equitable in the circumstances. Upon
application of a stockholder, the Court may order all or a portion of the
expenses incurred by any stockholder in connection with the appraisal
proceeding, including, without limitation, reasonable attorney's fees and the
fees and expenses of experts, to be charged pro rata against the value of all
the shares entitled to an appraisal.
(k) From and after the effective date of the merger or consolidation, no
stockholder who has demanded his appraisal rights as provided in subsection
(d) of this section shall be entitled to vote such stock for any purpose or to
receive payment of dividends or other distributions on the stock (except
dividends or other distributions payable to stockholders of record at a date
which is prior to the effective date of the merger or consolidation);
provided, however, that if no petition for an appraisal shall be filed within
the time provided in subsection (e) of this section, or if such stockholder
shall deliver to the surviving or resulting corporation a written withdrawal
of his demand for an appraisal and an acceptance of the merger or
consolidation, either within 60 days after the effective date of the merger or
consolidation as provided in subsection (e) of this section or thereafter with
the written approval of the corporation, then the right of such stockholder to
an appraisal shall cease. Notwithstanding the foregoing, no appraisal
proceeding in the Court of Chancery shall be dismissed as to any stockholder
without the approval of the Court, and such approval may be conditioned upon
such terms as the Court deems just.
(l) The shares of the surviving or resulting corporation to which the shares
of such objecting stockholders would have been converted had they assented to
the merger or consolidation shall have the status of authorized and unissued
shares of the surviving or resulting corporation.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Rite Aid is a Delaware corporation. The Delaware General Corporation Law
(the "DGCL") generally provides that a director, employee, officer or agent of
a Delaware corporation who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, may be indemnified
against liability, expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such proceeding (other than in a proceeding by or in the right
of the corporation), provided such person acted in good faith and in a manner
such person reasonably believed to be in, or at least not opposed to, the best
interests of the corporation, and, with respect to any criminal proceeding,
had no reasonable cause to believe the conduct was unlawful. For actions or
suits brought by or in the right of the corporation, the DGCL provides that a
director, employee, officer or agent of a Delaware corporation may be
indemnified against expenses (including attorneys' fees) as incurred by such
person in connection with such proceeding if such person acted in good faith
and in a manner such person reasonably believed to be in, or at least not
opposed to, the best interests of the corporation, except that if such person
is adjudged to be liable to the corporation, such person can be indemnified if
and only to the extent that a court determines that despite the adjudication
of liability, in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses as the court
shall deem proper.
In addition to the provisions of the DGCL described in the immediately
preceding paragraph, the Rite Aid By-laws also provide that in the judgment of
a majority of a disinterested quorum of the Board of Directors of Rite Aid
(the "Rite Aid Board"), any director, officer or employee will be entitled to
indemnification in such amounts as the Rite Aid Board deems necessary to cover
the reasonable costs and expenses of such person to be indemnified.
The DGCL provides that a corporation may include, in its articles or
certificate of incorporation, a provision which limits or eliminates the
personal liability of a director to the corporation or its stockholders for
monetary damages for such person's conduct as a director, provided that such
provision may not so limit a director's liability (i) for a breach of his or
her duty of loyalty to the corporation or its stockholders; (ii) for acts or
omissions not in good faith or involving intentional misconduct or a knowing
violation of law; (iii) for unlawful payments of dividends, certain stock
repurchases or redemptions; or (iv) for any transaction from which the
director derived an improper personal benefit. The Rite Aid Certificate of
Incorporation so limits the personal liability of directors to the fullest
extent permitted under the DGCL. The DGCL further provides that where a
director, officer, employee or agent of a corporation has been successful on
the merits or otherwise in defense of any action, suit or proceeding for which
indemnification is permissible, or in defense of any claim, issue or matter
related thereto, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
Pursuant to the Agreement and Plan of Merger, dated as of October 13, 1996,
by and between Rite Aid and Thrifty PayLess (the "Merger Agreement"), Rite Aid
agreed that at all times after the effective time of the Merger (the
"Effective Time"), it will indemnify such person who is now, or has been at
any time prior to the date of the Merger Agreement, an employee, agent,
director or officer of Thrifty PayLess or of any of Thrifty PayLess'
subsidiaries, successors and assigns (individually an "Indemnified Party" and
collectively the "Indemnified Parties"), to the fullest extent required or
permitted under the Certificate of Incorporation or By-Laws of Thrifty
PayLess, or any agreement with Thrifty PayLess, in each case as in effect
immediately prior to the execution of the Merger Agreement with respect to any
claim, liability, loss, damage, judgment, fine, penalty, amount paid in
settlement or compromise, cost or expense, including reasonable fees and
expenses of legal counsel (whenever asserted or claimed) ("Indemnified
Liability"), based in whole or in part on, or arising in whole or in part out
of, any matter, state of affairs or occurrence existing or occurring at or
prior to the Effective Time whether commenced, asserted or claimed before or
after the Effective Time, including liability arising
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under the Securities Act, the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or state law. The Merger Agreement provides that Rite Aid
will maintain in effect for not less than six years after the Effective Time
the current policies of directors' and officers' liability insurance
maintained by Thrifty PayLess and its subsidiaries on the date of the Merger
Agreement (provided that Rite Aid may substitute therefor policies having at
least the same coverage, a comparatively rated issuer and containing terms and
conditions which are no less advantageous to the persons currently covered by
such policies as insured) with respect to matters existing or occurring at or
prior to the Effective Time; provided, however, that if the aggregate annual
premiums for such insurance during such period shall exceed 200% of the per
annum rate of the aggregate premium currently paid by Thrifty PayLess and its
subsidiaries for such insurance on the date of the Merger Agreement, then Rite
Aid will provide the maximum coverage that will then be available at an annual
premium equal to 200% of such rate. The Merger Agreement provides that Rite
Aid shall pay in advance all expenses (including fees and expenses of counsel)
that may be incurred by any Indemnified Party in successfully enforcing the
indemnity or other obligations under this paragraph. The rights under this
paragraph are in addition to rights that an Indemnified Party may have under
the Certificate of Incorporation, By-laws, or other similar organizational
documents of Thrifty PayLess or any of its subsidiaries or the DGCL. The
Merger Agreement also provides that the rights under this paragraph shall
survive consummation of the Merger and are expressly intended to benefit each
Indemnified Party.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) The exhibits to this Registration Statement are listed in the Exhibit
Index hereto and are incorporated herein by reference.
(b) The financial statement schedules are incorporated by reference to Rite
Aid's Annual Report on Form 10-K for the fiscal year ended March 2, 1996 and
Thrifty PayLess' Annual Report on Form 10-K for the fiscal year ended October
1, 1995.
(c) The opinion of Donaldson, Lufkin & Jenrette Securities Corporation is
included in Part I as Annex B to the Joint Proxy Statement/Prospectus included
in this Registration Statement and is incorporated herein by reference. The
opinion of Goldman, Sachs & Co. is included in Part I as Annex C to the Joint
Proxy Statement/Prospectus included in this Registration Statement and is
incorporated herein by reference.
ITEM 22. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes as follows:
1. To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in the volume of the securities offered (if the
total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
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Provided, however, that paragraphs 1(i) and 1(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 12(a) or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
2. That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
3. To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination
of the offering.
4. That, for purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
5. That, prior to any public reoffering of the securities registered
hereunder through the use of a prospectus which is a part of this
Registration Statement, by any person or party who is deemed to be an
underwriter within the meaning of Rule 145(c), the issuer undertakes that
such reoffering prospectus will contain the information called for by the
applicable registration form with respect to reofferings by persons who may
be deemed underwriters, in addition to the information called for by the
other items of the applicable form.
The Registrant undertakes that every prospectus: (i) that is filed pursuant
to the immediately preceding paragraph, or (ii) that purports to meet the
requirements of Section 10(a)(3) of the Securities Act and is used in
connection with an offering of securities subject to Rule 415, will be filed
as a part of an amendment to the Registration Statement and will not be used
until such amendment is effective, and that, for purposes of determining any
liability under the Securities Act, each such post-effective amendment shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(b) The undersigned Registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the Joint Proxy
Statement/Prospectus pursuant to Items 4, 10(b), 11 or 13 of this Form, within
one business day of receipt of such request, and to send the incorporated
documents by first-class mail or other equally prompt means. This includes
information contained in documents filed subsequent to the effective date of
the Registration Statement through the date of responding to the request.
(c) The undersigned Registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the Registration Statement when it became effective.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to Item 20 of this Registration Statement, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
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SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THE REGISTRANT HAS DULY
CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF CAMP HILL, COMMONWEALTH
OF PENNSYLVANIA, ON OCTOBER 24, 1996.
RITE AID CORPORATION
/s/ Martin L. Grass
By: _________________________________
MARTIN L. GRASS
CHAIRMAN OF THE BOARD AND CHIEF
EXECUTIVE OFFICER
POWER OF ATTORNEY
We, the undersigned officers and directors of Rite Aid Corporation, hereby
severally and individually constitute and appoint Martin L. Grass, Frank M.
Bergonzi and Franklin C. Brown, and each of them, the true and lawful
attorneys and agents (with full power and substitution and resubstitution in
each case) of each of us to execute in the name, place and stead of each of us
(individually and in any capacity stated below) any and all amendments to this
Registration Statement on Form S-4 and all instruments necessary or advisable
in connection therewith and to file the same with the Securities and Exchange
Commission, each of said attorneys and agents to have the power to act with or
without the others and to have full power and authority to do and perform in
the name and on behalf of each of the undersigned every act whatsoever
necessary or advisable to be done in the premises as fully and to all intents
and purposes as any of the undersigned might or could do in person, and we
hereby ratify and confirm our signatures as they may be signed by our said
attorneys and agents or each of them to any and all such amendments and
instruments.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON
THE DATE INDICATED.
SIGNATURE TITLE DATE
/s/ Martin L. Grass Chairman of the October 24,
- ------------------------------------- Board and Chief 1996
MARTIN L. GRASS Executive Officer
/s/ Timothy J. Noonan President, Chief October 24,
- ------------------------------------- Operating Officer 1996
TIMOTHY J. NOONAN and Director
/s/ Frank M. Bergonzi Executive Vice October 24,
- ------------------------------------- President and Chief 1996
FRANK M. BERGONZI Financial and
Accounting Officer
II-4
<PAGE>
SIGNATURE TITLE DATE
/s/ Franklin C. Brown Executive Vice October 24,
- ------------------------------------- President, Chief 1996
FRANKLIN C. BROWN Legal Counsel and
Director
/s/ Leonard Stern Director October 24,
- ------------------------------------- 1996
LEONARD STERN
/s/ Nancy A. Lieberman Director October 24,
- ------------------------------------- 1996
NANCY A. LIEBERMAN
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
2.1 Agreement and Plan of Merger, dated as of October 13, 1996, between
Rite Aid and Thrifty PayLess (included as Annex A to the Joint Proxy
Statement/Prospectus which is a part of this Registration Statement on
Form S-4)
2.2 Stockholder Agreement, dated as of October 13, 1996, between Rite Aid
and Green Equity Investors, L.P.
2.3 Stockholder Agreement, dated as of October 13, 1996, between Rite Aid
and Kmart Corporation
3.1 Certificate of Incorporation of Rite Aid, dated April 9, 1968, to-
gether with amendments filed August 21, 1969, July 15, 1971, July 20,
1976, July 8, 1981 and July 27, 1983 (incorporated by reference to Ex-
hibit (3) to Rite Aid's Registration Statement on Form 8 filed July 2,
1984); amendment filed July 18, 1986 (incorporated by reference to
Rite Aid's Annual Report of Form 10-K dated May 26, 1987); amendment
filed July 14, 1987 (incorporated by reference to Rite Aid's Annual
Report on Form 10-K dated May 27, 1988) and amendment filed September
2, 1993 (incorporated by reference to Rite Aid's Annual Report on Form
10-K dated May 31, 1995)
3.2 By-laws of Rite Aid, dated April 6, 1983, as amended (incorporated by
reference to Exhibit 3(a)
to Rite Aid's Registration Statement on Form S-1)
5.1 Opinion of Franklin C. Brown, Esq, Executive Vice President and Chief
Legal Counsel Chief Legal Counsel of Rite Aid regarding the legality
of securities being issued*
8.1 Opinion of Jones, Day, Reavis & Pogue as to tax matters
15.1 KPMG Peat Marwick LLP Awareness Letter with respect to Rite Aid
21.1 Rite Aid subsidiaries (incorporated by reference to Exhibit 21 to Rite
Aid's Annual Report on Form 10-K for the year ended March 2, 1996)
23.1 Consent of KPMG Peat Marwick LLP with respect to Rite Aid
23.2 Consent of KPMG Peat Marwick LLP with respect to Thrifty PayLess
23.3 Consent of Jones, Day, Reavis & Pogue (included in Exhibit 8.1 hereto)
23.4 Consent of Donaldson, Lufkin & Jenrette Securities Corporation*
23.5 Consent of Goldman, Sachs & Co.*
99.1 Consent of person named to be a director of Rite Aid who has not
signed the Registration Statement*
99.2 Opinion of Donaldson, Lufkin & Jenrette Securities Corporation (in-
cluded as Annex B to the Joint Proxy Statement/Prospectus which is a
part of this Registration Statement on Form S-4)*
99.3 Opinion of Goldman, Sachs & Co. (included as Annex C to the Joint
Proxy Statement/Prospectus which is a part of this Registration State-
ment on Form S-4)*
99.4 Chairman's Letter to Stockholders of Rite Aid
99.5 Notice of Special Meeting of Stockholders of Rite Aid
99.6 Chairman's Letter to Stockholders of Thrifty PayLess
99.7 Notice of Special Meeting of Stockholders of Thrifty Payless
99.8 Form of Proxy for the Special Meeting of Stockholders of Rite Aid
99.9 Form of Proxy for the Special Meeting of Stockholders of Thrifty
PayLess
</TABLE>
- --------
* To be filed by amendment.
<PAGE>
EXHIBIT 2.2
-----------
STOCKHOLDER AGREEMENT
AGREEMENT, dated as of October 13, 1996, by and between Rite Aid
Corporation, a Delaware corporation ("Parent"), Green Equity Investors, L.P., a
Delaware limited partnership (referred to herein as the "Stockholder"), and
joined in by the Individual Stockholders for the purpose set forth in Section
11.
RECITALS
A. Immediately prior to the execution of this Agreement, Parent and
Thrifty Payless Holdings, Inc., a Delaware corporation (the "Company"), have
entered into an Agreement and Plan of Merger (as such agreement may hereafter be
amended from time to time, the "Merger Agreement"), pursuant to which the
Company will be merged with and into Parent (the "Merger"); and
B. As an inducement and a condition to entering into the Merger
Agreement, Parent has required that Stockholder agree, and Stockholder has
agreed, to enter into this Agreement simultaneously with Parent's entry into the
Stockholder No. 1 Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual promises,
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound hereby, agree as follows:
1. CERTAIN DEFINITIONS. In addition to the terms defined elsewhere
herein, capitalized terms used and not defined herein have the respective
meanings ascribed to them in the Merger Agreement. For purposes of this
Agreement:
(a) "Beneficially Own" or "Beneficial Ownership" with respect to any
securities means having "beneficial ownership" of such securities as determined
pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"). Without duplicative counting of the same securities by
the same holder, securities Beneficially Owned by a person includes securities
Beneficially Owned by all other persons with whom such person would constitute a
"group" within the meaning of Section 13(d) of the Exchange Act with respect to
the securities of the same issuer.
(b) "Existing Shares" means shares of Company Common Stock
Beneficially Owned by Stockholder as of the date hereof.
(c) "Securities" means the Existing Shares together with any shares of
Company Common Stock or other
<PAGE>
securities of the Company acquired by Stockholder in any capacity after the date
hereof and prior to the termination of this Agreement whether upon the exercise
of options, warrants or rights, the conversion or exchange of convertible or
exchangeable securities, or by means of purchase, dividend, distribution, split-
up, recapitalization, combination, exchange of shares or the like, gift,
bequest, inheritance or as a successor in interest in any capacity or otherwise.
2. DISCLOSURE. Stockholder hereby agrees to permit Parent to publish
and disclose in the Registration Statement and the Proxy Statement/Prospectus
(including all documents and schedules filed with the SEC), and any press
release or other disclosure document which Parent, in its sole discretion,
determines to be necessary or desirable in connection with the Merger and any
transactions related thereto, Stockholder's identity and ownership of Company
Common Stock and the nature of its commitments, arrangements and understandings
under this Agreement. Parent will provide Stockholder with a copy of any
proposed disclosure and will provide Stockholder with a reasonable opportunity
to comment thereon.
3. VOTING OF COMPANY COMMON STOCK. Stockholder hereby agrees that,
during the period commencing on the date hereof and continuing until the first
to occur of (a) the Effective Time or (b) termination of this Agreement in
accordance with its terms, (i) Stockholder will not sell or transfer any
Securities or any interest therein to any person, other than a wholly owned
Subsidiary of Stockholder, and (ii) at any meeting (whether annual or special
and whether or not an adjourned or postponed meeting) of the holders of Company
Common Stock, however called, or in connection with any written consent of the
holders of Company Common Stock, Stockholder will appear at the meeting or
otherwise cause the Securities to be counted as present thereat for purposes of
establishing a quorum and vote or consent (or cause to be voted or consented)
the Securities (A) in favor of the adoption of the Merger Agreement and the
approval of other actions contemplated by the Merger Agreement and this
Agreement and any actions required in furtherance thereof and hereof; (B)
against any action or agreement that would result in a breach in any respect of
any covenant, representation or warranty or any other obligation or agreement of
the Company under the Merger Agreement or this Agreement; and (C) except as
otherwise agreed to in writing in advance by Parent in its sole discretion,
against the following actions (other than the Merger and the transactions
contemplated by this Agreement and the Merger Agreement): (1) any Takeover
Proposal or Acquisition Agreement (other than the Merger or the Merger
Agreement) and (2)(u) any change in a majority of the persons who constitute the
Company Board; (v) any material change in the present capitalization of the
Company, including without limitation any proposal to sell a substantial equity
interest in the Company or its Subsidiaries; (w) any amendment of the Company's
Certificate of Incorporation or By-laws; (x) any other change in the
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Company's corporate structure or business; or (y) any other action which, in the
case of each of the matters referred to in clauses (2)(u), (v), (w) or (x), is
intended, or could reasonably be expected, to impede, interfere with, delay,
postpone or materially adversely affect the Merger and the transactions
contemplated by this Agreement and the Merger Agreement. Stockholder may not
enter into any agreement or understanding with any person the effect of which
would be inconsistent with or violative of any provision contained in this
Section 3.
4. SUBSEQUENT STOCKHOLDER ACTIONS. (a) For a period of four years
from and after the Effective Time, at any meeting (whether annual or special or
whether or not an adjourned or postponed meeting of the holders of Parent Common
Stock) or in connection with any written consent of the holder of Parent Common
Stock, Stockholder will vote or consent (or cause to be voted or consented) all
shares of Parent Common Stock howsoever acquired then held of record or
Beneficially Owned by Stockholder in accordance with the recommendations of the
Board of Directors of Parent.
(b) If Parent becomes entitled to a Termination Fee pursuant to
Section 7.3 of the Merger Agreement and the Company consummates a Takeover
Proposal or enters into an Acquisition Agreement with any other party during the
12 months following the termination of the Merger Agreement, subject to the last
sentence of this Section 4(b), with respect to Securities for which Stockholder
receives cash consideration pursuant to the Takeover Proposal or Acquisition
Agreement, Stockholder will immediately upon the receipt thereof pay to Parent
an amount in cash (if positive) (the "Differential Amount") equal to (i) the net
pre-tax cash proceeds received by Stockholder with respect to the shares of
Company Common Stock or other Securities of the Company, including any shares of
Company Common Stock into or for which any Securities are convertible,
exchangeable or exercisable, of Stockholder (such shares, the "Subject Shares")
in such transaction or in a sale of any of the Securities to a third party that
was initiated by Stockholder within 12 months after the date that the Merger
Agreement is terminated minus (ii) the product of (A) 65% of the average closing
sales price for Parent Common Stock on the NYSE Composite Tape for the five NYSE
trading days immediately preceding the first public announcement of the
transaction in which the Subject Shares are sold (such amount, the "Basis
Amount") times (B) the number of Subject Shares. Any non-cash consideration
received by Stockholder in a transaction otherwise of a type described above as
part of the net proceeds ("Other Consideration") will be held by Stockholder
until Stockholder shall have received in cash upon the sale or other disposition
of such Other Consideration an amount equal to the Basis Amount times the number
of Subject Shares, whereupon all other securities or proceeds thereof will be
immediately paid to Parent.
3
<PAGE>
(c) For a period of four years from the date hereof, except within the
terms of a specific written request from the Parent, Stockholder will not, and
will use its best efforts to cause each of its Affiliates controlled by it not
to, propose or publicly announce or otherwise disclose an intent to propose, or
enter into or agree to enter into, singly or with any other person or directly
or indirectly, (i) any form of business combination, acquisition or other
similar transaction relating to the Parent or any subsidiary of the Parent, (ii)
any form of restructuring, recapitalization or similar transaction with respect
to Parent or any such subsidiary, or (iii) any demand, request or proposal to
amend, waive or terminate any provision of this Agreement, and except as
aforesaid during such period Stockholder will not, and will use its best efforts
to cause each of its Affiliates controlled by it or any of its representatives
as a principal not to, (1) acquire, or offer, propose or agree to acquire, by
purchase or otherwise, any voting securities of Parent, in excess of 1% of
Parent's outstanding shares (not counting for these purposes any shares of
Parent Common Stock acquired pursuant to the Merger), (2) make, or in any way
participate in, any solicitation of proxies with respect to any such voting
securities (including by the execution of action by written consent), become a
participant in any election contest with respect to Parent, seek to influence
any person with respect to any such voting securities or demand a copy of the
list of the stockholders or other books and records of Parent, (3) participate
in or encourage the formation of any partnership, syndicate or other group which
owns or seeks or offers to acquire beneficial ownership of any such voting
securities or which seeks to affect control of Parent or has the purpose of
circumventing any provision of this Agreement, (4) otherwise act, alone or in
concert with others (including by providing financing for another person), to
seek or to offer to control or influence, in any manner, the management, Board
of Directors, or policies of Parent, or (5) make any proposal or other
communication designed to compel Parent to make a public announcement thereof in
respect of any matter referred to in this Section 4(c).
5. COVENANTS, REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER.
Stockholder hereby represents and warrants to, and agrees with, Parent as
follows:
(a) Ownership of Shares. Stockholder is the sole record and
Beneficial Owner of Existing Shares consisting of 14,139,600 shares of A Common
Stock and 236,664 shares of B Common Stock. On the date hereof, the Existing
Shares constitute all of the Shares owned of record or Beneficially Owned by
Stockholder. Stockholder has sole voting power and sole power to issue
instructions with respect to the matters set forth in Sections 3 and 4 hereof,
sole power of disposition, sole power of conversion, sole power to demand
appraisal rights and sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of the Existing Shares with no
limitations, qualifications or restrictions on such rights,
4
<PAGE>
subject to applicable securities laws, and the terms of this Agreement.
(b) Corporate Authorization. This Agreement has been duly and validly
executed and delivered by Stockholder and constitutes a valid and binding
agreement enforceable against Stockholder in accordance with its terms except
(i) as may be limited by applicable bankruptcy, insolvency or similar laws
affecting creditors rights and (ii) that the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought.
(c) No Conflicts. Except for filings, authorizations, consents and
approvals as may be required under the HSR Act, the Exchange Act and the
Securities Act, (i) no filing with, and no permit, authorization, consent or
approval of, any state or federal Governmental Authority is necessary for the
execution of this Agreement by Stockholder and the consummation by Stockholder
of the transactions contemplated hereby and (ii) none of the execution and
delivery of this Agreement by Stockholder, the consummation by Stockholder of
the transactions contemplated hereby or compliance by Stockholder with any of
the provisions hereof will (A) conflict with or result in any breach of the
organizational documents of Stockholder, (B) result in a violation or breach of,
or constitute (with or without notice or lapse of time or both) a default (or
give rise to any third party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or provisions
of any note, loan agreement, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement or other instrument or
obligation of any kind to which Stockholder is a party or by which Stockholder
or any of its properties or assets may be bound, or (C) violate any order, writ,
injunction, decree, judgment, statute, rule or regulation applicable to
Stockholder or any of its properties or assets.
(d) No Encumbrances. Except as applicable in connection with the
transactions contemplated by Sections 3 and 4 hereof, the Existing Shares at all
times during the term hereof, will be, Beneficially Owned by Stockholder, free
and clear of all liens, claims, security interests, proxies, voting trusts or
agreements, understandings or arrangements or any other encumbrances whatsoever,
except for any such encumbrances or proxies arising hereunder.
(e) No Finder's Fees. No broker, investment banker, financial advisor
or other person is entitled to any broker's, finder's, financial adviser's or
other similar fee or commission in connection with the transactions contemplated
by this Agreement based upon arrangements made by or on behalf of Stockholder.
5
<PAGE>
(f) No Solicitation. Stockholder will not, and will cause its
affiliates and officers, directors, employees, partners, investment bankers,
attorneys, accountants and other agents and representatives of Stockholder and
such affiliates (such affiliates, officers, directors, employees, partners
investment bankers, attorneys, accountants, agents and representatives of any
person are hereinafter collectively referred to as the "Representatives" of such
person) not to, directly or indirectly (i) initiate, solicit or encourage, or
take any action to facilitate the making of, any offer or proposal which
constitutes or is reasonably likely to lead to any Takeover Proposal or any
inquiry with respect thereto or (ii) in the event of an unsolicited Takeover
Proposal for the Company or any affiliate of the Company, engage in negotiations
or discussions with, or provide any information or data to, any person (other
than Parent, any of its affiliates or representatives) relating to any Takeover
Proposal. Stockholder will notify Parent orally and in writing of any such
offers, proposals, or inquiries relating to the purchase or acquisition by any
person of Securities (including, without limitation, the terms and conditions
thereof and the identity of the person making it), within 24 hours of the
receipt thereof. Stockholder will, and will cause its Representatives to,
immediately cease and cause to be terminated any and all existing activities,
discussions or negotiations, if any, with any parties conducted heretofore with
respect to any Takeover Proposal relating to the Company, other than discussions
or negotiations with Parent and its affiliates. Notwithstanding the
restrictions set forth in this Section 5(f) Stockholder may publicly announce or
disclose the terms of this Agreement and the Merger Agreement. For purposes of
this Agreement, the Company is not deemed to be an Affiliate of Stockholder.
(g) Restriction on Transfer, Proxies and Non-Interference.
Stockholder will not, directly or indirectly, prior to the Merger, (i) offer for
sale, sell, transfer, tender, pledge, encumber, assign or otherwise dispose of,
or enter into any contract, option or other arrangement or understanding with
respect to or consent to the offer for sale, sale, transfer, tender, pledge,
encumbrance, assignment or other disposition of, any or all of the Securities or
any interest therein except as provided in Section 4(b); (ii) grant any proxies
or powers of attorney, deposit the Securities into a voting trust or enter into
a voting agreement with respect to the Securities; or (iii) take any action that
would make any representation or warranty of Stockholder contained herein untrue
or incorrect or would result in a breach by Stockholder of its obligations under
this Agreement.
(h) Reliance by Parent. Stockholder understands and acknowledges that
Parent is entering into the Merger Agreement in reliance upon Stockholder's
execution and delivery of this Agreement.
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(i) Further Assurances. From time to time, at the other party's
request and without further consideration, each party hereto will execute and
deliver such additional documents and take all such further lawful action as may
be necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this Agreement.
6. REPRESENTATIONS AND WARRANTIES OF PARENT. Parent hereby
represents and warrants to Stockholder as follows:
(a) Organization. Parent is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, has all
requisite corporate power or other power and authority to execute and deliver
this Agreement and perform its obligations hereunder. The execution and
delivery by Parent of this Agreement and the performance by Parent of its
obligations hereunder have been duly and validly authorized by the Board of
Directors of Parent and no other corporate proceedings on the part of Parent are
necessary to authorize the execution, delivery or performance of this Agreement
or the consummation of the transactions contemplated hereby by Parent.
(b) Corporate Authorization. This Agreement has been duly and validly
executed and delivered by Parent and constitutes a valid and binding agreement
of Parent enforceable against Parent in accordance with its terms, except (i) as
may be limited by applicable bankruptcy, insolvency or similar laws affecting
creditors rights and (ii) that the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to equitable defenses and to
the discretion of the court before which any proceeding therefor may be brought.
(c) No Conflicts. Except for filings, authorizations, consents and
approvals as may be required under the HSR Act, the Exchange Act and the
Securities Act, (i) no filing with, and no permit, authorization, consent or
approval of, any state or federal Governmental Authority is necessary for the
execution of this Agreement by Parent and the consummation by Parent of the
transactions contemplated hereby and (ii) none of the execution and delivery of
this Agreement by Parent, the consummation by Parent of the transactions
contemplated hereby or compliance by Parent with any of the provisions hereof
will (A) conflict with or result in any breach of the certificate of
incorporation or by-laws of Parent, (B) result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default (or give
rise to any third party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or provisions
of any note, loan agreement, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement or other instrument or
obligation of any kind to which Parent is a party or by which Parent or any of
its properties or assets may be
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bound, or (C) violate any order, writ, injunction, decree, judgment, statute,
rule or regulation applicable to Parent or any of their respective properties or
assets.
(d) No Finder's Fee. No broker, investment banker, financial adviser
or other person is entitled to any broker's, finder's, financial adviser's or
other similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of Parent.
7. STOP TRANSFER; LEGEND. (a) Stockholder agrees with, and
covenants to, Parent that Stockholder will not request that the Company register
the transfer (book-entry or otherwise) of any certificate or uncertificated
interest representing any of the Securities, unless such transfer is made in
compliance with this Agreement.
(b) In the event of a stock dividend or distribution, or any change in
the Company Common Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like other than
pursuant to the Merger, the terms "Shares and Securities" will be deemed to
refer to and include the shares of Company Common Stock as well as all such
stock dividends and distributions and any shares into which or for which any or
all of the Securities may be changed or exchanged and appropriate adjustments
shall be made to the terms and provisions of this Agreement.
(c) Stockholder will duly execute and deliver to Parent an
Affiliate's Letter prior to the Closing.
(d) Stockholder will promptly after the date hereof surrender to the
Company all certificates representing the Securities, and the Company will place
the following legend on such certificates in addition to any other legend
required thereon:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER PURSUANT TO AND OTHER PROVISIONS OF A
STOCKHOLDER AGREEMENT, DATED AS OF OCTOBER 13, 1996, BY AND BETWEEN
RITE AID CORPORATION, GREEN EQUITY INVESTORS, L.P. AND CERTAIN OTHER
PERSONS."
8. REGISTRATION RIGHTS. Stockholder and the limited partners of
Stockholder, acting through Stockholder or, if Stockholder shall not then exist,
through Leonard Green & Associates, L.P., following a distribution to such
limited partners of Common Stock received in the Merger pursuant to
Stockholder's agreement of limited partnership (a "Distribution") (provided that
the number of shares of Parent Common Stock subject to any request for such
registration represents at least 50% of the total shares of Parent Common Stock
received by Stockholder pursuant to the Merger that are then Beneficially
8
<PAGE>
Owned by Stockholder and all such limited partners taken as a whole) will be
entitled to cause Parent to register Parent Common Stock Beneficially Owned by
it and received pursuant to the Merger in accordance with the terms and
conditions of Appendix A hereto, which are incorporated herein by reference.
9. TERMINATION. This Agreement will terminate upon the earlier of
(i) the consummation of the Merger and (ii) the termination of the Merger
Agreement in accordance with its terms, except that the covenants and agreements
set forth in Sections 4(b) and 8 hereof will survive any termination of this
Agreement for the terms specified therein and the terms of Sections 4(a), 4(c)
and 8 will survive the consummation of the Merger. Notwithstanding the
foregoing, after the Effective Time (a) the provisions of Section 4 will
terminate as to Stockholder at any time after which Stockholder ceases to own at
least 2% of the outstanding shares of Parent Common Stock and (b) if there has
been a Distribution, the covenants and agreements of Stockholder set forth in
Section 4 will terminate and be of no further force and effect unless the
persons or entities receiving the Distribution would constitute a "group" within
the meaning of Section 13(d) of the Exchange Act with respect to the securities
of Parent.
10. MISCELLANEOUS.
(a) Entire Agreement. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter hereof and supersede all
other prior agreements and understandings, both written and oral, between the
parties with respect to the subject matter hereof.
(b) Binding Agreement. Stockholder agrees that this Agreement and the
obligations hereunder will attach to the Securities and will be binding upon any
person or entity to which legal or Beneficial Ownership of such Securities shall
pass, whether by operation of law or otherwise, including without limitation
Stockholder's legal representatives or successors or other transferees (for
value or otherwise) and any other successors in interest. Notwithstanding the
foregoing, this Agreement will not apply to any transferee of Stockholder that
is not an Affiliate controlled by Stockholder provided that such transferee
becomes such in a transaction not in breach of this Agreement.
(c) Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder will be assigned or delegated (whether by
operation of law or otherwise) without the prior written consent of the other
parties, provided that Parent may assign, in its sole discretion, its rights,
interests and obligations hereunder to any direct or indirect wholly owned
Subsidiary of Parent, but no such assignment will relieve Parent from any of its
obligations hereunder if such assignee does not perform such obligations.
Subject to the
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preceding sentence, this Agreement will be binding upon, inure to the benefit of
and be enforceable by the parties and their respective successors and assigns.
(d) Amendment and Modification. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the parties
hereto.
(e) Notices. All notices and other communications hereunder will be
in writing and will be deemed given if delivered personally, telecopied (which
is confirmed) or sent by an overnight courier service, such as FedEx, to the
parties at the following addresses (or at such other address for a party as will
be specified by like notice):
If to Stockholder:
Green Equity Investors, L.P.
c/o Leonard Green & Associates, L.P.
333 S. Grand Avenue, Suite 5400
Los Angeles, CA 90071
Attn: Leonard I. Green
Telecopy: (213) 625-0005
copy to:
Irell & Manella LLP
333 S. Hope Street, Suite 3300
Los Angeles, CA 90071
Attn: Edmund M. Kaufman
Telecopy: (213) 620-1555
if to Parent or the Individual Stockholders, to:
Rite Aid Corporation
30 Hunter Lane
Camp Hill, Pennsylvania 17011
Attn: Chief Executive Officer
Telephone: (717) 761-2633
Telecopy: (717) 975-5905
copy to:
Jones, Day, Reavis & Pogue
599 Lexington Avenue
New York, NY 10022
Attn: Robert A. Profusek
Telephone: (212) 326-3939
Telecopy: (212) 755-7306
(f) Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void,
10
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unenforceable or against its regulatory policy, the remainder of the terms,
provisions, covenants and restrictions of this Agreement will remain in full
force and effect and will in no way be affected, impaired or invalidated.
(g) Specific Performance. The parties hereto agree that irreparable
damage would occur in the event any provision of this Agreement was not
performed in accordance with the terms hereof and that the parties will be
entitled to the remedy of specific performance of the terms hereof, in addition
to any other remedy at law or equity.
(h) No Waiver. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the parties
at variance with the terms hereof, will not constitute a waiver by such party of
its right to exercise any such or other right, power or remedy or to demand such
compliance.
(i) No Third Party Beneficiaries. This Agreement is not intended to
confer upon any person other than the parties hereto any rights or remedies
hereunder.
(j) Governing Law. This Agreement will be governed and construed in
accordance with the laws of the State of Delaware, without giving effect to the
principles of conflict of laws thereof.
(k) Jurisdiction. Each party hereby irrevocably submits to the
exclusive jurisdiction of the Court of Chancery in the State of Delaware in any
action, suit or proceeding arising in connection with this Agreement, and agrees
that any such action, suit or proceeding will be brought only in such court (and
waives any objection based on forum non conveniens or any other objection to
venue therein); provided, however, that such consent to jurisdiction is solely
for the purpose referred to in this Section 10(k) and will not be deemed to be a
general submission to the jurisdiction of said Court or in the State of Delaware
other than for such purposes. Each party hereto hereby waives any right to a
trial by jury in connection with any such action, suit or proceeding.
(l) Descriptive Headings. The descriptive headings used herein are
for reference purposes only and will not affect in any way the meaning or
interpretation of this Agreement.
(m) Counterparts. This Agreement may be executed in counterparts,
each of which will be considered one and the same agreement and will become
effective when such counterparts have been signed by each of the parties and
delivered to the
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other parties, it being understood that all parties need not sign the same
counterpart.
(n) Termination of Existing Shareholders Agreement. Stockholder
hereby covenants and agrees that, as of the Effective Time and without further
action, the Stockholders Agreement will be terminated and deemed null and void
and of no further force and effect.
11. THE INDIVIDUAL STOCKHOLDERS. The persons executing this
Agreement under the caption "Individual Stockholders" on the signature page
hereof are executing this Agreement solely so that this Agreement will
constitute a "stockholders' agreement" within the meaning of Section 218(c) of
the DGCL and will not have any rights or obligations hereunder except rights to
enforce Section 4(a).
12. SIMULTANEOUS AGREEMENT. This Agreement is entered into
simultaneously with a Stockholder Agreement among Stockholder No. 1, Parent and
certain other persons.
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IN WITNESS WHEREOF, Parent, Stockholder and the Individual
Stockholders have caused this Agreement to be duly executed as of the day and
year first above written.
RITE AID CORPORATION
By: -----------------------------------------
Martin L. Grass
Chairman of the Board
and Chief Executive Officer
GREEN EQUITY INVESTORS, L.P. a Delaware limited
partnership
By: LEONARD GREEN & ASSOCIATES, L.P., a Delaware
limited partnership
By: -----------------------------------------
Jonathan D. Sokoloff
INDIVIDUAL STOCKHOLDERS
---------------------------------------------
Martin L. Grass
---------------------------------------------
Franklin C. Brown
---------------------------------------------
Elliot S. Gerson
---------------------------------------------
Frank M. Bergonzi
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APPENDIX A
----------
REGISTRATION RIGHTS
-------------------
1. DEFINITIONS. For purposes of this Appendix A, the following
terms will have the following meanings:
"Blackout Period" means a Section 6(a) Period or a Section 6(b)
Period.
"Business Day" means a day, other than a Saturday or Sunday, on which
banking institutions and securities exchanges in New York, New York are required
to be open.
"Counsel to Stockholder" means the single law firm reasonably
acceptable to Parent from time to time representing Stockholder.
"Effective Period" means a period commencing on the date of this
Agreement and ending on the earlier of (i) the first date as of which all
Registrable Securities cease to be Registrable Securities and (ii) the date on
which such Stockholder may sell all of the Registrable Securities in accordance
with Rule 145(d)(3) under the Securities Act.
"Inspectors" has the meaning specified in Section 7(l).
"NASD" means the National Association of Securities Dealers, Inc.
"Prospectus" means the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities
covered by any Registration Statement and by all other amendments and
supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus.
"Records" has the meaning specified in Section 7(l).
"Registrable Securities" means Parent Common Stock acquired by
Stockholder pursuant to the Merger and any securities received in any
distribution thereon and in connection therewith unless and until all such
Parent Common Stock may be publicly sold by Stockholder under Rule 144 under the
Securities Act within a 90-day period.
"Registration Expenses" means any and all reasonable expenses incident
to performance of or compliance with this Agreement, including without
limitation, (i) all SEC, NASD and securities exchange registration and filing
fees, (ii) all fees and expenses of complying with state securities or blue sky
laws (including reasonable fees and disbursements of counsel for any
<PAGE>
underwriters in connection with blue sky qualifications of the Registrable
Securities), (iii) all printing expenses, (iv) all fees and expenses incurred in
connection with the listing of the Registrable Securities on any securities
exchange or automated quotation system pursuant to Section 7(h), (v) the fees
and disbursements of counsel for Parent and of its independent public
accountants, (vi) the reasonable fees and expenses of any special experts
retained by Parent in connection with the requested registration, and (vii) out-
of-pocket expenses of underwriters customarily paid by the issuer to the extent
provided for in any underwriting agreement, but excluding underwriting
discounts, commissions and transfer taxes, if any, fees and expenses of Counsel
to Stockholder and all the fees and expenses of Stockholder incident to its
offering or sale of Registerable Securities.
"Registration Hold Period" means a Section 7(e) Period or a Section
7(m) Period.
"Registration Statement" means any registration statement of Parent
referred to in Sections 7(c) or (d), including any Prospectus, amendments and
supplements to any such registration statement, including post-effective
amendments, and all exhibits and all material incorporated by reference in any
such registration statement.
"Related Securities" means any securities of Parent similar or
identical to any of the Registrable Securities, including without limitation
Parent Common Stock and all options, warrants, rights and other securities
convertible into, or exchangeable or exercisable for, Parent Common Stock.
"SEC" means the Securities and Exchange Commission.
"Section 6(a) Period" has the meaning specified in Section 6(a).
"Section 6(b) Period" has the meaning specified in Section 6(b).
"Section 7(e) Period" has the meaning specified in Section 7(e).
"Section 7(m) Period" has the meaning specified in Section 7(m).
"Shelf Registration" means a registration statement on an appropriate
form pursuant to Rule 415 under the Securities Act (or any successor rule that
may be adopted by the SEC).
"underwritten registration" or "underwritten offering" means an
underwritten offering in which securities of Parent are sold to an underwriter
for reoffering to the public.
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2. SECURITIES SUBJECT TO THIS APPENDIX A. The securities entitled to
the benefits of this Appendix A are the Registrable Securities. For the
purposes of this Appendix A, Registrable Securities will cease to be Registrable
Securities when and to the extent that (a) a Registration Statement covering all
of the Registrable Securities has been declared effective under the Securities
Act and Registrable Securities have been disposed of pursuant to such effective
Registration Statement or three years has passed since such Registration
Statement was declared effective, (b) all of the Registrable Securities are
distributed to the public pursuant to Rule 144 (or any successor provision then
in force) under the Securities Act, or (c) all of the Registrable Securities
have ceased to be outstanding.
3. PIGGY-BACK REGISTRATION RIGHTS. (a) Whenever during the
Effective Period Parent proposes to file a registration statement under the
Securities Act relating to the public offering of Parent Common Stock for cash
pursuant to a firm commitment underwritten offering (other than pursuant to a
registration statement on Form S-4 or Form S-8 or any successor forms, or filed
in connection with an exchange offer or an offering of securities solely to
existing stockholders or employees of Parent), Parent will (i) give written
notice at least 15 Business Days prior to the filing thereof to Stockholder,
specifying the approximate date on which Parent proposes to file such
registration statement and advising Stockholder of its right to have any or all
of the Registrable Securities then held by Stockholder included among the
securities to be covered thereby, and (ii) at the written request of Stockholder
given to Parent at least five Business Days prior to the proposed filing date,
include among the securities covered by such registration statement the number
of Registrable Securities which Stockholder shall have requested be so included
(subject, however, to reduction in accordance with Section 3(b)). Parent will
use commercially reasonable efforts to cause the managing underwriter of the
proposed underwritten offering to permit the Registrable Securities so requested
to be included in the Registration Statement for such offering to be included in
such offering on the same terms and conditions as any similar securities of
Parent included therein.
(b) In the event Stockholder desires to participate in an offering
pursuant to Section 3(a), Stockholder may include Registrable Securities in any
Registration Statement relating to such offering to the extent that the
inclusion of such Registrable Shares will not reduce the number of shares of
Parent Common Stock to be offered and sold pursuant thereto by Parent and by any
person exercising demand registration rights with respect to such offering. If
the lead managing underwriter selected by Parent for an underwritten offering
pursuant to Section 3(a) determines that marketing factors require a limitation
on the number of Parent Common Stock to be offered and sold by the stockholders
of Parent in such offering, there will be included in the offering only that
number of Parent Common
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Stock, if any, that such lead managing underwriter determines will not
jeopardize the success of the offering of all Parent Common Stock that Parent
desires to sell for its own account. In such event and provided the managing
underwriter has so notified Parent in writing, the number of shares of Parent
Common Stock to be offered and sold by stockholders of Parent, including
Stockholder, desiring to participate in such offering will be allocated among
such holders of Parent Common Stock first, pro rata among securities to be
registered pursuant to demand registration rights and second, pro rata among
securities to be registered pursuant to piggyback registration rights. From the
date hereof for as long as Stockholder has any right to require registration of
Registrable Securities pursuant to this Agreement, Parent will not enter into
any agreement, except for the Stockholder No. 1 Agreement, with respect to
Parent Common Stock which provides for registration rights of any third party
that would have the effect, if exercised, of permitting a reduction in the
number of Stockholder's Registrable Securities includable in a registration
pursuant to this Agreement other than on a pro rata basis with other holders of
registration rights.
(c) Nothing in this Section 3 will create any liability on the part
of Parent to Stockholder if Parent for any reason should decide not to file a
registration statement proposed to be filed under Section 3(a) or to withdraw
such registration statement subsequent to its filing, regardless of any action
whatsoever that Stockholder may have taken, whether as a result of the issuance
by Parent of any notice hereunder or otherwise.
(d) A request by Stockholder to include Registrable Securities in a
proposed underwritten offering pursuant to Section 3(a) will not be deemed to be
a request for a demand registration pursuant to Section 4.
4. DEMAND REGISTRATION RIGHTS. (a) Upon the written request by
Stockholder at any time commencing on the Closing Date and continuing through
the Effective Period that Parent effect the registration with the SEC under and
in accordance with the provisions of the Securities Act of all or part of
Stockholder's Registrable Securities (which written request will specify the
aggregate number of shares of Registrable Securities requested to be registered,
the form of registration statement to be used, with Parent's reasonable consent,
and the means of distribution), Parent will file a Registration Statement
covering Stockholder's Registrable Securities requested to be registered within
20 Business Days after receipt of such request; provided, however, that Parent
will not be required to take any action pursuant to this Section 4:
(i) if prior to the date of such request Parent shall have
effected two registrations pursuant to this Section 4;
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<PAGE>
(ii) if Parent has effected a registration pursuant to Section 3
within the 90-day period next preceding such request which permitted
Stockholder to register all of its Registrable Securities;
(iii) if Parent shall at the time have effective a Shelf
Registration pursuant to which Stockholder could effect the
disposition of all of the Stockholder's Registrable Securities in the
manner requested;
(iv) if the Registrable Securities which Parent shall have been
requested to register shall have a then-current market value of less
than $50,000,000, unless such registration request is for all
remaining Registrable Securities; or
(v) during the pendency of any Blackout Period.
(b) Stockholder may distribute the Registrable Securities covered by
such request by means of an underwritten offering or any other lawful means, as
determined by Stockholder and the form of the registration statement shall be
subject to Stockholder's reasonable approval.
(c) A registration requested pursuant to this Section 4 will not be
deemed to be effected for purposes of this Section 4 if it has not been declared
effective by the SEC or become effective in accordance with the Securities Act
and the rules and regulations thereunder or its effectiveness has not been
maintained for the applicable period required hereunder.
(d) Stockholder may, at any time prior to the effective date of the
Registration Statement relating to such registration, revoke such request by
providing a written notice to Parent revoking such request. In such event,
Stockholder will reimburse Parent for all its out-of-pocket expenses incurred in
the preparation, filing and processing of the Registration Statement; provided,
however, that, if such revocation was based on (i) Parent's failure to comply in
any material respect with its obligations hereunder or (ii) the occurrence of a
Blackout Period, such reimbursement will not be required.
(e) Parent will not include any securities which are not Registrable
Securities in any Registration Statement filed pursuant to a demand made under
this Section 4 without the prior written consent of Stockholder.
5. SELECTION OF UNDERWRITERS. In connection with any
underwritten offering pursuant to a Registration Statement filed pursuant to a
demand made under Section 4, Stockholder will have the right to propose a
managing underwriter or underwriters to administer the offering, which Parent
may in its sole discretion reject, in which case the managing underwriter or
underwriters
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<PAGE>
shall be selected by Stockholder from a list of six nationally prominent
underwriters selected by Parent in its sole discretion.
6. BLACKOUT PERIODS. (a) If (i) during the Effective Period,
Parent files or proposes to file a registration statement (other than in
connection with the registration of securities issuable pursuant to a continuous
"at the market offering" pursuant to Rule 415(a)(4) under the Securities Act, an
employee stock option, stock purchase, dividend reinvestment plan or similar
plan or pursuant to a merger, exchange offer or a transaction of the type
specified in Rule 145(a) under the Securities Act or a registration of debt
securities not in any way exchangeable, convertible or exercisable for common
stock of Parent) with respect to any securities of Parent, and (ii) with
reasonable prior notice, (A) Parent (in the case of a non-underwritten offering
pursuant to such registration statement) advises Stockholder in writing that a
sale or distribution of Registrable Securities would adversely affect such
offering or (B) the managing underwriter or underwriters (in the case of an
underwritten offering other than an underwritten offering of indebtedness that
is not convertible into or exchangeable or redeemable for any capital stock of
the Company or any Subsidiary of the Company) advise Parent in writing (in which
case Parent will notify Stockholder), that a sale or distribution of Registrable
Securities would adversely affect such offering, then Parent will not be
obligated to effect the initial filing of a Registration Statement pursuant to
Section 4 during the period commencing on the date that is 30 calendar days
prior to the date Parent in good faith estimates (as certified in writing by an
officer of Parent to Stockholder following a request for registration pursuant
to Section 4(a)) will be the date of the filing of, and ending on the date which
is 90 calendar days following the effective date of, such registration statement
but in no event for more than 120 consecutive days (a "Section 6(a) Period").
(b) If the Board of Directors of Parent determines in good faith that
the registration and distribution of Registrable Securities (i) would materially
impede, delay or interfere with any pending financing (other than a financing of
the type described in Section 6(a)), acquisition, corporate reorganization or
other significant transaction involving Parent or (ii) would require disclosure
of non-public material information, the disclosure of which would materially and
adversely affect Parent, and, in the case of clause (ii), Parent is concurrently
forbidding purchases or sales in the open market by senior executives of Parent,
Parent will promptly give the stockholder written notice of such determination
and will be entitled to postpone the filing or effectiveness of a Registration
Statement for a reasonable period of time not to exceed 120 calendar days (a
"Section 6(b) Period"); provided, however, that in connection therewith Parent
will be required to deliver to Counsel to Stockholder (as identified at such
time to the Company) a general statement, signed by an officer of Parent and
accompanied by a
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<PAGE>
Board resolution, describing in reasonable detail the reasons for such
postponement or restriction on use and an estimate of the anticipated delay.
Parent will promptly notify Stockholder of the expiration or earlier termination
of a Section 6(b) Period.
(c) Notwithstanding anything in this Section 6 to the contrary, (i)
the beginning of any Blackout Period will be at least 120 calendar days after
the end of the prior Blackout Period, and (ii) the aggregate number of days
included in all Blackout Periods and all Registration Hold Periods during any
consecutive 12-month period during the Effective Period will not exceed 180
calendar days.
7. REGISTRATION PROCEDURES. If and whenever Parent is required to use
commercially reasonable efforts to effect or cause the registration of any
Registrable Securities under the Securities Act as provided in this Agreement,
Parent will, as expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement with
respect to such Registrable Securities on any form for which Parent then
qualifies or which counsel for Parent deems appropriate, which form is subject
to Stockholder's reasonable approval and which form is available for the sale of
the Registrable Securities in accordance with the intended methods of
distribution thereof (including, if so requested by Stockholder, distributions
under Rule 415 under the Securities Act pursuant to a Shelf Registration
Statement), and use commercially reasonable efforts to cause such Registration
Statement to become and remain effective;
(b) prepare and file with the SEC amendments and post-effective
amendments to such Registration Statement and such amendments to the Prospectus
used in connection therewith as may be necessary to maintain the effectiveness
of such registration or as may be required by the rules, regulations or
instructions applicable to the registration form utilized by Parent or by the
Securities Act or rules and regulations thereunder necessary to keep such
Registration Statement effective for up to 90 calendar days, in the case of an
underwritten offering, or 360 calendar days, in any other case including a Shelf
Registration (or longer period in the event of a Registration Hold Period during
such 90 or 360 calendar days, as provided in this Section 7) and cause the
Prospectus as so supplemented to be filed pursuant to Rule 424 under the
Securities Act, and to otherwise comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by such
Registration Statement until the earlier of (i) such 90th or 360th calendar day
(or longer period) and (ii) such time as all Registrable Securities covered by
such Registration Statement have ceased to be Registrable Securities; provided
that a reasonable time before filing a Registration Statement or Prospectus, or
any amendments or supplements thereto, Parent will furnish to Stockholder, the
managing underwriter and their respective counsel for review and
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<PAGE>
comment, copies of all documents proposed to be filed and will not file any such
documents to which any of them reasonably object prior to the filing thereof;
(c) furnish to Stockholder such number of copies of such Registration
Statement and of each amendment and post-effective amendment thereto (in each
case including all exhibits), any Prospectus or Prospectus supplement and such
other documents as Stockholder may reasonably request in order to facilitate the
disposition of the Registrable Securities by Stockholder (Parent hereby
consenting to the use (subject to the limitations set forth in the last
paragraph of this Section 7) of the Prospectus or any amendment or supplement
thereto in connection with such disposition);
(d) use commercially reasonable efforts to register or qualify such
Registrable Securities covered by such Registration Statement under such other
securities or blue sky laws of such jurisdictions as Stockholder reasonably
requests, and do any and all other acts and things which may be reasonably
necessary or advisable to enable Stockholder to consummate the disposition in
such jurisdictions of the Registrable Securities owned by Stockholder, except
that Parent will not for any such purpose be required to qualify generally to do
business as a foreign corporation in any jurisdiction where, but for the
requirements of this Section 7(d), it would not be obligated to be so qualified,
to subject itself to taxation in any such jurisdiction or to consent to general
service of process in any such jurisdiction;
(e) notify Stockholder at any time when a Prospectus relating to any
such Registrable Securities is required to be delivered under the Securities Act
within the appropriate period mentioned in Section 7(b) of Parent's becoming
aware that the Prospectus included in such Registration Statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing (the period
during which Stockholder is required to refrain from effective public sales or
distributions in such case being referred to as a "Section 7(e) Period"), and
prepare and furnish to Stockholder a reasonable number of copies of an amendment
to such Registration Statement or related Prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such Registrable Securities,
such Prospectus shall not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing,
and the time during which such Registration Statement shall remain effective
pursuant to Section 7(b) will be extended by the number of days in the Section
7(e) Period;
(f) notify Stockholder at any time,
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(i) when the Prospectus or any Prospectus supplement or post-
effective amendment has been filed, and, with respect to the
Registration Statement or any post-effective amendment, when the same
has become effective;
(ii) of any request by the SEC for amendments or supplements to
the Registration Statement or the Prospectus or for additional
information;
(iii) of the issuance by the SEC of any stop order of which
Parent or its counsel is aware or should be aware suspending the
effectiveness of the Registration Statement or any order preventing
the use of a related Prospectus, or the initiation or any threats of
any proceedings for such purposes;
(iv) of the receipt by Parent of any written notification of the
suspension of the qualification of any of the Registrable Securities
for sale in any jurisdiction of the initiation or any threats of any
proceeding for that purpose; and
(v) if at any time the representations and warranties of Parent
contemplated by Section 7(i)(i) cease to be true and correct in any
material respect;
(g) otherwise use commercially reasonable efforts to comply with all
applicable rules and regulations of the SEC, and make available to Stockholder
an earnings statement which shall satisfy the provisions of Section 11(a) of the
Securities Act, provided that Parent will be deemed to have complied with this
Section 7(g) if it has satisfied the provisions of Rule 158 under the Securities
Act;
(h) use commercially reasonable efforts to cause all such Registrable
Securities to be listed on any securities exchange or automated quotation system
on which Parent Common Stock is then listed, if such Registrable Securities are
not already so listed and if such listing is then permitted under the rules of
such exchange or automated quotation system, and to provide a transfer agent and
registrar for such Registrable Securities covered by such Registration Statement
no later than the effective date of such Registration Statement;
(i) enter into agreements (including underwriting agreements) and
take all other appropriate and reasonable actions in order to expedite or
facilitate the disposition of such Registrable Securities and in such
connection, whether or not an underwriting agreement is entered into and whether
or not the registration is an underwritten registration:
(i) make such representations and warranties to Stockholder and
the underwriters, if any, in form,
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substance and scope as are customarily made by issuers to underwriters
in comparable underwritten offerings;
(ii) obtain opinions of counsel to Parent thereof (which counsel
and opinions (in form, scope and substance) will be reasonably
satisfactory to the managing underwriters, if any, and Stockholder)
addressed to Stockholder and the underwriters, if any, covering the
matters customarily covered in opinions requested in comparable
underwritten offerings and such other matters as may be reasonably
requested by Stockholder and the managing underwriter, if any;
(iii) obtain "cold comfort" letters and bring-downs thereof from
Parent's independent certified public accountants addressed to
Stockholder and the underwriters, if any, such letters to be in
customary form and covering matters of the type customarily covered in
"cold comfort" letters by independent accountants in connection with
underwritten offerings;
(iv) if requested, provide indemnification in accordance with
the provisions and procedures of Section 10 to all parties to be
indemnified pursuant to said Section; and
(v) deliver such documents and certificates as may be reasonably
requested by Stockholder and the managing underwriters, if any, to
evidence compliance with Section 7(e) and with any customary
conditions contained in the underwriting agreement or other agreement
entered into by Parent.
(j) cooperate with Stockholder and the managing underwriter or
underwriters or agents, if any, to facilitate, to the extent commercially
reasonable under the circumstances, the timely preparation and delivery of
certificates (not bearing any restrictive legends) representing the securities
to be sold under such Registration Statement, and enable such securities to be
in such denominations and registered in such names as the managing underwriter
or underwriters or agents, if any, or Stockholder may request;
(k) if reasonably requested by the managing underwriter or
underwriters or Stockholder, incorporate in a Prospectus supplement or post-
effective amendment such information as the managing underwriters and
Stockholder agree should be included therein relating to the plan of
distribution with respect to such Registrable Securities, including without
limitation information with respect to the purchase price being paid by such
underwriters and with respect to any other terms of the underwritten offering of
the Registrable Securities to be sold in such offering and make all required
filings of such Prospectus supplement or post-effective amendment as promptly as
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practicable upon being notified of the matters to be incorporated in such
Prospectus supplement or post-effective amendment;
(l) provide Stockholder, any underwriter participating in any
disposition pursuant to such Registration Statement and any attorney, accountant
or other agent retained by Stockholder or underwriter (collectively, the
"Inspectors") reasonable access to appropriate officers of Parent and Parent's
subsidiaries to ask questions and to obtain information reasonably requested by
any such Inspector and make available for inspection all financial and other
records and other information, pertinent corporate documents and properties of
any of Parent and its subsidiaries and affiliates (collectively, the "Records")
as may be reasonably necessary to enable them to exercise their due diligence
responsibilities; provided, however, that the Records that Parent determines, in
good faith, to be confidential and which it notifies the Inspectors in writing
are confidential will not be disclosed to any Inspector unless such Inspector
signs a confidentiality agreement reasonably satisfactory to Parent but in any
event permitting disclosure by an Inspector if (i) the disclosure of such
Records is necessary to avoid or correct a misstatement or omission of a
material fact in such Registration Statement or (ii) the release of such Records
is ordered pursuant to a subpoena or other order from a court of competent
jurisdiction; provided further, however, that any decision regarding the
disclosure of information pursuant to clause (i) may be made only after
consultation with counsel for the applicable Inspectors. Stockholder agrees that
it will promptly after learning that disclosure of such Records is sought in a
court having jurisdiction, give notice to Parent and allow Parent, at Parent's
expense, to undertake appropriate action to prevent disclosure of such Records;
(m) in the event of the issuance of any stop order of which Parent or
its counsel is aware or should be aware suspending the effectiveness of the
Registration Statement or of any order suspending or preventing the use of any
related Prospectus or suspending the qualification of any Registrable Securities
included in the Registration Statement for sale in any jurisdiction, Parent will
use commercially reasonable efforts promptly to obtain its withdrawal; and the
period for which the Registration Statement will be kept effective will be
extended by a number of days equal to the number of days between the issuance
and withdrawal of any stop orders (a "Section 7(m) Period"); and
(n) reasonably cooperate to make available members of senior
management of Parent to participate in any meetings and conferences or "road
shows" with potential purchasers of the Registrable Securities as the
underwriters (if any) or the Stockholder may reasonably request, the parties
recognizing that the regular responsibilities of such managers will take
priority over any such activities.
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Parent may require Stockholder to furnish Parent with such information regarding
Stockholder and pertinent to the disclosure requirements relating to the
registration and the distribution of such securities as Parent may from time to
time reasonably request in writing. Upon receipt of any notice from Parent of
the happening of any event of the kind described in Section 7(e), Stockholder
will forthwith discontinue disposition of Registrable Securities pursuant to the
Prospectus or Registration Statement covering such Registrable Securities until
Stockholder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 7(e), and, if so directed by Parent, Stockholder will
deliver to Parent (at Parent's expense) all copies, other than permanent file
copies then in Stockholder's possession of the Prospectus covering such
Registrable Securities current at the time of receipt of such notice.
8. REGISTRATION EXPENSES. Parent will pay all Registration Expenses
in connection with all registrations of Registrable Securities pursuant to
Sections 3 and 4 upon the written request of Stockholder, and Stockholder will
pay (a) any fees or disbursements of Counsel to Stockholder and (b) all
underwriting discounts and commissions and transfer taxes, if any, and other
fees, costs and expenses of Stockholder relating to the sale or disposition of
Stockholder's Registrable Securities pursuant to the Registration Statement.
9. REPORTS UNDER THE EXCHANGE ACT. Parent will:
(a) file with the SEC in a timely manner all reports and other
documents required of Parent under the Exchange Act; and
(b) furnish to Stockholder, during the Effective Period,
forthwith upon request (i) a written statement by Parent that it has
complied with the current public information and reporting requirements of
Rule 144 under the Securities Act and the Exchange Act and (ii) a copy of
the most recent annual or quarterly report of Parent and such other reports
and documents so filed by Parent.
10. INDEMNIFICATION; CONTRIBUTION. (a) Indemnification by Parent.
Parent will indemnify and hold harmless Stockholder, its officers, directors,
agents, trustees, general partners and each person who controls Stockholder
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act), against all losses, claims, damages, liabilities and expenses
(including reasonable attorneys' fees, disbursements and expenses) incurred by
such party pursuant to any actual or threatened action, suit, proceeding or
investigation arising out of or based upon (i) any violation by Parent (or its
officers, directors or controlling persons) of any federal or state law, rule or
regulation applicable to Parent and relating to any action required or inaction
by Parent (or such other person) in connection with or relating to any
Registration
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Statement, (ii) any untrue or alleged untrue statement of material fact
contained in the Registration Statement, any Prospectus or preliminary
Prospectus, or any amendment or supplement to any of the foregoing, or (iii) any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of a
Prospectus or a preliminary Prospectus, in light of the circumstances then
existing) not misleading, except in each case insofar as the same arise out of
or are based upon any such untrue statement or omission made in reliance on and
in conformity with information with respect to such indemnified party furnished
in writing to Parent by such indemnified party or its counsel expressly for use
therein. In connection with an underwritten offering, Parent will indemnify the
underwriters thereof, their officers, directors, agents, trustees, general
partners, and each person who controls such underwriters (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same
extent as provided above with respect to the indemnification of Stockholder.
Notwithstanding the foregoing provisions of this Section 10(a), Parent will not
be liable to Stockholder (or any officer, director, agent, trustee or
controlling person thereof), any person who participates as an underwriter in
the offering or sale of Registrable Securities or any other person, if any, who
controls Stockholder or underwriter (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act), under the indemnity agreement
in this Section 10(a) for any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense that arises out of Stockholder's or
such other person's failure to send or deliver a copy of the final Prospectus to
the person asserting an untrue statement or alleged untrue statement or omission
or alleged omission at or prior to the written confirmation of the sale of the
Registrable Securities to such person if such statement or omission was
corrected in such final Prospectus and Parent had previously furnished copies
thereof to Stockholder or such other person in accordance with this Agreement.
(b) Indemnification by Stockholder. In connection with the
Registration Statement, Stockholder will furnish to Parent in writing such
information, including the name and address of, and the amount of Registrable
Securities held by, Stockholder, as Parent reasonably requests for use in such
Registration Statement or the related Prospectus and will indemnify and hold
harmless (in the same manner and to the same extent as set forth in Section
10(a)) Parent or any underwriter, as the case may be, and any of their
respective affiliates, directors, officers, agents, trustees and controlling
persons (within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act), against any losses, claims, damages, liabilities and expenses
resulting from (i) any violation by Stockholder (or its officers, directors,
agents, trustees or controlling persons) of any federal or state law, rule or
regulation relating to action required of or inaction by
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Stockholder (or such other person) in connection with its offer and sale of
Registrable Securities and (ii) any untrue or alleged untrue statement of a
material fact contained in, or any omission or alleged omission of a material
fact required to be stated in, such Registration Statement or Prospectus or any
amendment or supplement to either of them or necessary to make the statements
therein (in the case of a Prospectus, in the light of the circumstances then
existing) not misleading, but only to the extent that any such untrue statement
or omission is made in reliance on and in conformity with information with
respect to Stockholder furnished in writing to Parent by Stockholder or its
counsel specifically for inclusion therein.
(c) Conduct of Indemnification Proceedings. Any person entitled to
indemnification hereunder agrees to give prompt written notice to the
indemnifying party after the receipt by such indemnified party of any written
notice of the commencement of any action, suit, proceeding or investigation or
threat thereof made in writing for which such indemnified party may claim
indemnification or contribution pursuant to this Agreement (provided that
failure to give such notification will not affect the obligations of the
indemnifying party pursuant to this Section 10 except to the extent the
indemnifying party shall have been actually prejudiced as a result of such
failure). In case any such action is brought against any indemnified party and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it wishes,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party (who may
not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under these
indemnification provisions for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation, unless in the reasonable judgment of any indemnified party a
conflict of interest is likely to exist, based on the written opinion of
counsel, between such indemnified party and any other of such indemnified
parties with respect to such claim, in which event the indemnifying party will
be obligated to pay the reasonable fees and expenses of such additional counsel.
No indemnifying party, in defense of any such action, suit, proceeding or
investigation, may, except with the consent of each indemnified party, consent
to the entry of any judgment or entry into any settlement (which consent will
not be unreasonably withheld) which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such indemnified party of a
release from all liability in respect to such action, suit, proceeding or
investigation to the extent the same is covered by the indemnity obligation set
forth in this Section 10. No indemnified party
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may consent to entry of any judgment or enter into any settlement without the
consent of each indemnifying party (which consent will not be unreasonably
withheld).
(d) Contribution. If the indemnification from the indemnifying party
provided for in this Section 10 is unavailable to an indemnified party hereunder
in respect of any losses, claims, damages, liabilities or expenses referred to
herein, then the indemnifying party, in lieu of indemnifying such indemnified
party, will contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities and expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified party in connection with the actions which resulted in
such losses, claims, damages, liabilities and expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying
party and indemnified party will be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact, has been made by, or relates to information supplied by, such indemnifying
party or indemnified party, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such action. The amount
paid or payable by a party as a result of the losses, claims, damages,
liabilities and expenses referred to above will be deemed to include, subject to
the limitations set forth in Section 10(c), any legal and other fees and
expenses reasonably incurred by such indemnified party in connection with any
investigation or proceeding. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 10(d) were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this Section 10(d), no underwriter will be required to contribute
any amount in excess of the underwriting discount or commission applicable to
the Registrable Securities underwritten by it. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
will be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. Stockholder's obligation to contribute is several
in the proportion that the proceeds of the offering received by Stockholder
bears to the total proceeds of the offering, and not joint. If indemnification
is available under this Section 10(d), the indemnifying parties will indemnify
each indemnified party to the full extent provided in Section 10(a) or 10(b), as
the case may be, without regard to the relative fault of said indemnifying
parties or indemnified party or any other equitable consideration provided for
in this Section 10(d).
(e) Certain Limitations. In no event will Stockholder be liable or
required to contribute any amount under this Section 10 or otherwise in respect
of any untrue or alleged
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untrue statement or omission or alleged omission for amounts in excess of the
amount by which the total price at which the Registrable Securities of
Stockholder were offered to the public exceeds the amount of any damages which
Stockholder has otherwise been required to pay by reason of such untrue
statement or omission.
(f) Nonexclusivity. The provisions of this Section 10 will be in
addition to any liability which any indemnifying party may have to any
indemnified party and will survive the termination of this Agreement.
(g) Underwriter Indemnification. Notwithstanding anything to the
contrary, the indemnification for an underwriter will be modified (to the extent
requested by the underwriter) to conform to that which is customary for such
underwriter, to the extent set forth in their underwriting agreement.
11. PARTICIPATION IN UNDERWRITTEN OFFERINGS. Stockholder may
not participate in any underwritten offering pursuant to Section 3 hereunder
unless Stockholder (a) agrees to sell Stockholder's Registrable Securities on
the basis provided in any underwriting arrangements approved by Parent in its
reasonable discretion and (b) completes and executes all questionnaires, powers
of attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
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EXHIBIT 2.3
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STOCKHOLDER AGREEMENT
AGREEMENT, dated as of October 13, 1996, by and between Rite Aid
Corporation, a Delaware corporation ("Parent"), Kmart Corporation, a Delaware
corporation (referred to herein as the "Stockholder"), and joined in by the
Individual Stockholders for the purpose set forth in Section 11.
RECITALS
A. Immediately prior to the execution of this Agreement, Parent and Thrifty
Payless Holdings, Inc., a Delaware corporation (the "Company"), have entered
into an Agreement and Plan of Merger (as such agreement may hereafter be amended
from time to time, the "Merger Agreement"), pursuant to which the Company will
be merged with and into Parent (the "Merger"); and
B. As an inducement and a condition to entering into the Merger Agreement,
Parent has required that Stockholder agree, and Stockholder has agreed, to enter
into this Agreement simultaneously with Parent's entry into the Stockholder No.
2 Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual promises,
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound hereby, agree as follows:
1. CERTAIN DEFINITIONS. In addition to the terms defined elsewhere
herein, capitalized terms used and not defined herein have the respective
meanings ascribed to them in the Merger Agreement. For purposes of this
Agreement:
(a) "Beneficially Own" or "Beneficial Ownership" with respect to any
securities means having "beneficial ownership" of such securities as determined
pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"). Without duplicative counting of the same securities by
the same holder, securities Beneficially Owned by a person includes securities
Beneficially Owned by all other persons with whom such person would constitute a
"group" within the meaning of Section 13(d) of the Exchange Act with respect to
the securities of the same issuer.
(b) "Existing Shares" means shares of Company Common Stock
Beneficially Owned by Stockholder as of the date hereof.
(c) "Securities" means the Existing Shares together with any shares of
Company Common Stock or other securities of the Company acquired by Stockholder
in any capacity
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after the date hereof and prior to the termination of this Agreement whether
upon the exercise of options, warrants or rights, the conversion or exchange of
convertible or exchangeable securities, or by means of purchase, dividend,
distribution, split-up, recapitalization, combination, exchange of shares or the
like, gift, bequest, inheritance or as a successor in interest in any capacity
or otherwise.
2. DISCLOSURE. Stockholder hereby agrees to permit Parent to publish
and disclose in the Registration Statement and the Proxy Statement/Prospectus
(including all documents and schedules filed with the SEC), and any press
release or other disclosure document which Parent, in its sole discretion,
determines to be necessary or desirable in connection with the Merger and any
transactions related thereto, Stockholder's identity and ownership of Company
Common Stock and the nature of its commitments, arrangements and understandings
under this Agreement. Parent will provide Stockholder with a copy of any
proposed disclosure and will provide Stockholder with a reasonable opportunity
to comment thereon.
3. VOTING OF COMPANY COMMON STOCK. Subject to certain rights granted
to other parties under the Trust Agreement, dated June 17, 1996, between Kmart
Corporation, the Subsidiaries of Kmart Corporation parties thereto, First Trust
of New York, N.A. and Ward A. Spooner, Trustees and related documents including
the Securities Pledge Agreement (collectively, the "Pledge Agreement"),
Stockholder hereby agrees that, during the period commencing on the date hereof
and continuing until the first to occur of (a) the Effective Time or (b)
termination of this Agreement in accordance with its terms, (i) Stockholder will
not sell or transfer any Securities or any interest therein to any person, other
than a wholly owned Subsidiary of Stockholder, and (ii) at any meeting (whether
annual or special and whether or not an adjourned or postponed meeting) of the
holders of Company Common Stock, however called, or in connection with any
written consent of the holders of Company Common Stock, Stockholder will appear
at the meeting or otherwise cause the Securities to be counted as present
thereat for purposes of establishing a quorum and vote or consent (or cause to
be voted or consented) the Securities (A) in favor of the adoption of the Merger
Agreement and the approval of other actions contemplated by the Merger Agreement
and this Agreement and any actions required in furtherance thereof and hereof;
(B) against any action or agreement that would result in a breach in any respect
of any covenant, representation or warranty or any other obligation or agreement
of the Company under the Merger Agreement or this Agreement; and (C) except as
otherwise agreed to in writing in advance by Parent in its sole discretion,
against the following actions (other than the Merger and the transactions
contemplated by this Agreement and the Merger Agreement): (1) any Takeover
Proposal or Acquisition Agreement (other than the Merger or the Merger
Agreement) and (2)(u) any change in a majority of the persons who constitute the
Company
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Board; (v) any material change in the present capitalization of the Company,
including without limitation any proposal to sell a substantial equity interest
in the Company or its Subsidiaries; (w) any amendment of the Company's
Certificate of Incorporation or By-laws; (x) any other change in the Company's
corporate structure or business; or (y) any other action which, in the case of
each of the matters referred to in clauses (2)(u), (v), (w) or (x), is intended,
or could reasonably be expected, to impede, interfere with, delay, postpone or
materially adversely affect the Merger and the transactions contemplated by this
Agreement and the Merger Agreement. Stockholder may not enter into any
agreement or understanding with any person the effect of which would be
inconsistent with or violative of any provision contained in this Section 3.
4. SUBSEQUENT STOCKHOLDER ACTIONS. (a) For a period of four years from
and after the Effective Time, at any meeting (whether annual or special or
whether or not an adjourned or postponed meeting of the holders of Parent Common
Stock) or in connection with any written consent of the holder of Parent Common
Stock, Stockholder will vote or consent (or cause to be voted or consented) all
shares of Parent Common Stock howsoever acquired then held of record or
Beneficially Owned by Stockholder in accordance with the recommendations of the
Board of Directors of Parent, subject to the terms of the Pledge Agreement.
(b) If Parent becomes entitled to a Termination Fee pursuant to
Section 7.3 of the Merger Agreement and the Company consummates a Takeover
Proposal or enters into an Acquisition Agreement with any other party during the
12 months following the termination of the Merger Agreement, subject to the last
sentence of this Section 4(b), with respect to Securities for which Stockholder
receives cash consideration pursuant to the Takeover Proposal or Acquisition
Agreement, Stockholder will immediately upon the receipt thereof pay to Parent
an amount in cash (if positive) (the "Differential Amount") equal to (i) the net
pre-tax cash proceeds received by Stockholder with respect to the shares of
Company Common Stock or other Securities of the Company, including any shares of
Company Common Stock into or for which any Securities are convertible,
exchangeable or exercisable, of Stockholder (such shares, the "Subject Shares")
in such transaction or in a sale of any of the Securities to a third party that
was initiated by Stockholder within 12 months after the date that the Merger
Agreement is terminated minus (ii) the product of (A) 65% of the average closing
sales price for Parent Common Stock on the NYSE Composite Tape for the five NYSE
trading days immediately preceding the first public announcement of the
transaction in which the Subject Shares were sold (such amount, the "Basis
Amount") times (B) the number of Subject Shares. Any non-cash consideration
received by Stockholder in a transaction otherwise of a type described above as
part of the net proceeds ("Other Consideration") will be held by Stockholder
until Stockholder shall have received in cash upon the sale or other disposition
of such Other Consideration an
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amount equal to the Basis Amount times the number of Subject Shares, whereupon
all other securities or proceeds thereof will be immediately paid to Parent.
(c) For a period of four years from the date hereof, except within the
terms of a specific written request from the Parent, Stockholder will not, and
will use its best efforts to cause each of its Affiliates controlled by it not
to, propose or publicly announce or otherwise disclose an intent to propose, or
enter into or agree to enter into, singly or with any other person or directly
or indirectly, (i) any form of business combination, acquisition or other
similar transaction relating to the Parent or any subsidiary of the Parent, (ii)
any form of restructuring, recapitalization or similar transaction with respect
to Parent or any such subsidiary, or (iii) any demand, request or proposal to
amend, waive or terminate any provision of this Agreement, and except as
aforesaid during such period Stockholder will not, and will use its best efforts
to cause each of its Affiliates controlled by it or any of its representatives
as a principal not to, (1) acquire, or offer, propose or agree to acquire, by
purchase or otherwise, any voting securities of Parent, in excess of 1% of
Parent's outstanding shares (not counting for these purposes any shares of
Parent Common Stock acquired pursuant to the Merger), (2) make, or in any way
participate in, any solicitation of proxies with respect to any such voting
securities (including by the execution of action by written consent), become a
participant in any election contest with respect to Parent, seek to influence
any person with respect to any such voting securities or demand a copy of the
list of the stockholders or other books and records of Parent, (3) participate
in or encourage the formation of any partnership, syndicate or other group which
owns or seeks or offers to acquire beneficial ownership of any such voting
securities or which seeks to affect control of Parent or has the purpose of
circumventing any provision of this Agreement, (4) otherwise act, alone or in
concert with others (including by providing financing for another person), to
seek or to offer to control or influence, in any manner, the management, Board
of Directors, or policies of Parent, or (5) make any proposal or other
communication designed to compel Parent to make a public announcement thereof in
respect of any matter referred to in this Section 4(c).
5. COVENANTS, REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER.
Stockholder hereby represents and warrants to, and agrees with, Parent as
follows:
(a) Ownership of Shares. Stockholder is the sole record and
Beneficial Owner of Existing Shares consisting of 10,622,249 shares of B Common
Stock. On the date hereof, the Existing Shares constitute all of the Shares
owned of record or Beneficially Owned by Stockholder. Stockholder has sole
voting power and sole power to issue instructions with respect to the matters
set forth in Sections 3 and 4 hereof, sole power of disposition, sole power of
conversion, sole power to demand
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appraisal rights and sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of the Existing Shares with no
limitations, qualifications or restrictions on such rights, subject to
applicable securities laws, the terms of this Agreement and the Pledge
Agreement.
(b) Corporate Authorization. This Agreement has been duly and validly
executed and delivered by Stockholder and constitutes a valid and binding
agreement enforceable against Stockholder in accordance with its terms except
(i) as may be limited by applicable bankruptcy, insolvency or similar laws
affecting creditors rights and (ii) that the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought.
(c) No Conflicts. Except for filings, authorizations, consents and
approvals as may be required under the HSR Act, the Exchange Act and the
Securities Act, (i) no filing with, and no permit, authorization, consent or
approval of, any state or federal Governmental Authority is necessary for the
execution of this Agreement by Stockholder and the consummation by Stockholder
of the transactions contemplated hereby and (ii) none of the execution and
delivery of this Agreement by Stockholder, the consummation by Stockholder of
the transactions contemplated hereby or compliance by Stockholder with any of
the provisions hereof will (A) conflict with or result in any breach of the
organizational documents of Stockholder, (B) result in a violation or breach of,
or constitute (with or without notice or lapse of time or both) a default (or
give rise to any third party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or provisions
of any note, loan agreement, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement or other instrument or
obligation of any kind to which Stockholder is a party or by which Stockholder
or any of its properties or assets may be bound, or (C) violate any order, writ,
injunction, decree, judgment, statute, rule or regulation applicable to
Stockholder or any of its properties or assets.
(d) No Encumbrances. Except as applicable in connection with the
transactions contemplated by Sections 3 and 4 hereof and except for the terms of
the Pledge Agreement, the Existing Shares at all times during the term hereof,
will be, Beneficially Owned by Stockholder, free and clear of all liens, claims,
security interests, proxies, voting trusts or agreements, understandings or
arrangements or any other encumbrances whatsoever, except for any such
encumbrances or proxies arising hereunder.
(e) No Finder's Fees. No broker, investment banker, financial advisor
or other person is entitled to any broker's, finder's, financial adviser's or
other similar fee or
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commission in connection with the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of Stockholder, except for Bankers
Trust Company which shall be the sole responsibility of Stockholder.
(f) No Solicitation. Stockholder will not, and will cause its
affiliates and officers, directors, employees, partners, investment bankers,
attorneys, accountants and other agents and representatives of Stockholder and
such affiliates (such affiliates, officers, directors, employees, partners
investment bankers, attorneys, accountants, agents and representatives of any
person are hereinafter collectively referred to as the "Representatives" of such
person) not to, directly or indirectly (i) initiate, solicit or encourage, or
take any action to facilitate the making of, any offer or proposal which
constitutes or is reasonably likely to lead to any Takeover Proposal or any
inquiry with respect thereto or (ii) in the event of an unsolicited Takeover
Proposal for the Company or any affiliate of the Company, engage in negotiations
or discussions with, or provide any information or data to, any person (other
than Parent, any of its affiliates or representatives) relating to any Takeover
Proposal. Stockholder will notify Parent orally and in writing of any such
offers, proposals, or inquiries relating to the purchase or acquisition by any
person of Securities (including, without limitation, the terms and conditions
thereof and the identity of the person making it), within 24 hours of the
receipt thereof. Stockholder will, and will cause its Representatives to,
immediately cease and cause to be terminated any and all existing activities,
discussions or negotiations, if any, with any parties conducted heretofore with
respect to any Takeover Proposal relating to the Company, other than discussions
or negotiations with Parent and its affiliates. Notwithstanding the
restrictions set forth in this Section 5(f) Stockholder may publicly announce or
disclose the terms of this Agreement and the Merger Agreement. For purposes of
this Agreement, the Company is not deemed to be an Affiliate of Stockholder.
(g) Restriction on Transfer, Proxies and Non-Interference. Except as
agreed pursuant to the terms of the Pledge Agreement, Stockholder will not,
directly or indirectly, prior to the Merger, (i) offer for sale, sell, transfer,
tender, pledge, encumber, assign or otherwise dispose of, or enter into any
contract, option or other arrangement or understanding with respect to or
consent to the offer for sale, sale, transfer, tender, pledge, encumbrance,
assignment or other disposition of, any or all of the Securities or any interest
therein except as provided in Section 4(b); (ii) grant any proxies or powers of
attorney, deposit the Securities into a voting trust or enter into a voting
agreement with respect to the Securities; or (iii) take any action that would
make any representation or warranty of Stockholder contained herein untrue or
incorrect or would result in a breach by Stockholder of its obligations under
this Agreement.
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(h) Reliance by Parent. Stockholder understands and acknowledges that
Parent is entering into the Merger Agreement in reliance upon Stockholder's
execution and delivery of this Agreement provided that nothing contained herein
shall require Stockholder to violate or breach the Pledge Agreement.
(i) Further Assurances. From time to time, at the other party's
request and without further consideration, each party hereto will execute and
deliver such additional documents and take all such further lawful action as may
be necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this Agreement,
provided that nothing contained herein shall require Stockholder to violate or
breach the Pledge Agreement.
6. REPRESENTATIONS AND WARRANTIES OF PARENT. Parent hereby represents
and warrants to Stockholder as follows:
(a) Organization. Parent is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, has all
requisite corporate power or other power and authority to execute and deliver
this Agreement and perform its obligations hereunder. The execution and
delivery by Parent of this Agreement and the performance by Parent of its
obligations hereunder have been duly and validly authorized by the Board of
Directors of Parent and no other corporate proceedings on the part of Parent are
necessary to authorize the execution, delivery or performance of this Agreement
or the consummation of the transactions contemplated hereby by Parent.
(b) Corporate Authorization. This Agreement has been duly and validly
executed and delivered by Parent and constitutes a valid and binding agreement
of Parent enforceable against Parent in accordance with its terms, except (i) as
may be limited by applicable bankruptcy, insolvency or similar laws affecting
creditors rights and (ii) that the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to equitable defenses and to
the discretion of the court before which any proceeding therefor may be brought.
(c) No Conflicts. Except for filings, authorizations, consents and
approvals as may be required under the HSR Act, the Exchange Act and the
Securities Act, (i) no filing with, and no permit, authorization, consent or
approval of, any state or federal Governmental Authority is necessary for the
execution of this Agreement by Parent and the consummation by Parent of the
transactions contemplated hereby and (ii) none of the execution and delivery of
this Agreement by Parent, the consummation by Parent of the transactions
contemplated hereby or compliance by Parent with any of the provisions hereof
will (A) conflict with or result in any breach of the certificate of
incorporation or by-laws of Parent, (B) result in a violation or breach of, or
constitute (with or without notice or lapse of time
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or both) a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the terms,
conditions or provisions of any note, loan agreement, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or other
instrument or obligation of any kind to which Parent is a party or by which
Parent or any of its properties or assets may be bound, or (C) violate any
order, writ, injunction, decree, judgment, statute, rule or regulation
applicable to Parent or any of their respective properties or assets.
(d) No Finder's Fee. No broker, investment banker, financial adviser
or other person is entitled to any broker's, finder's, financial adviser's or
other similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of Parent.
7. STOP TRANSFER; LEGEND. (a) Stockholder agrees with, and covenants
to, Parent that Stockholder will not request that the Company register the
transfer (book-entry or otherwise) of any certificate or uncertificated interest
representing any of the Securities, unless such transfer is made in compliance
with this Agreement.
(b) In the event of a stock dividend or distribution, or any change in
the Company Common Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like other than
pursuant to the Merger, the terms "Shares and Securities" will be deemed to
refer to and include the shares of Company Common Stock as well as all such
stock dividends and distributions and any shares into which or for which any or
all of the Securities may be changed or exchanged and appropriate adjustments
shall be made to the terms and provisions of this Agreement.
(c) Stockholder will duly execute and deliver to Parent an Affiliate's
Letter prior to the Closing.
(d) Stockholder will promptly after any release of the Securities to
Stockholder from the Pledge Agreement surrender to the Company all certificates
representing the Securities, and the Company will place the following legend on
such certificates in addition to any other legend required thereon:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER PURSUANT TO AND OTHER PROVISIONS OF A
STOCKHOLDER AGREEMENT, DATED AS OF OCTOBER 13, 1996, BY AND BETWEEN
RITE AID CORPORATION, KMART CORPORATION AND CERTAIN OTHER PERSONS."
8. REGISTRATION RIGHTS. Stockholder (or any lender which forecloses on
such shares) will be entitled to cause Parent
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to register Parent Common Stock Beneficially Owned by it and received pursuant
to the Merger in accordance with the terms and conditions of Appendix A hereto,
which are incorporated herein by reference.
9. TERMINATION. This Agreement will terminate upon the earlier of (i)
the consummation of the Merger and (ii) the termination of the Merger Agreement
in accordance with its terms, except that the covenants and agreements set forth
in Sections 4(b) and 8 hereof will survive any termination of this Agreement for
the terms specified therein and the terms of Sections 4(a), 4(c) and 8 will
survive the consummation of the Merger. Notwithstanding the foregoing, after the
Effective Time the provisions of Section 4 will terminate as to the Stockholder
at any time after which Stockholder ceases to own at least 2% of the outstanding
shares of Parent Common Stock.
10. MISCELLANEOUS.
(a) Entire Agreement. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter hereof and supersede all
other prior agreements and understandings, both written and oral, between the
parties with respect to the subject matter hereof.
(b) Binding Agreement. Stockholder agrees that, except to the extent
a lender forecloses on the Securities, this Agreement and the obligations
hereunder will attach to the Securities and will be binding upon any person or
entity to which legal or Beneficial Ownership of such Securities shall pass,
whether by operation of law or otherwise, including without limitation
Stockholder's legal representatives or successors or other transferees (for
value or otherwise) and any other successors in interest. Notwithstanding the
foregoing, this Agreement will not apply to any transferee of Stockholder that
is not an Affiliate controlled by Stockholder provided that such transferee
becomes such in a transaction not in breach of this Agreement.
(c) Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder will be assigned or delegated (whether by
operation of law or otherwise) without the prior written consent of the other
parties, provided that Parent may assign, in its sole discretion, its rights,
interests and obligations hereunder to any direct or indirect wholly owned
Subsidiary of Parent, but no such assignment will relieve Parent from any of its
obligations hereunder if such assignee does not perform such obligations.
Subject to the preceding sentence, this Agreement will be binding upon, inure to
the benefit of and be enforceable by the parties and their respective successors
and assigns.
(d) Amendment and Modification. This Agreement may not be amended,
changed, supplemented, waived or otherwise
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modified or terminated, except upon the execution and delivery of a written
agreement executed by the parties hereto.
(e) Notices. All notices and other communications hereunder will be
in writing and will be deemed given if delivered personally, telecopied (which
is confirmed) or sent by an overnight courier service, such as FedEx, to the
parties at the following addresses (or at such other address for a party as will
be specified by like notice):
If to Stockholder:
Kmart Corporation
3100 West Big Beaver Road
Troy, Michigan 48084
Attn: General Counsel
Telecopy: (810) 643-1054
copy to:
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue
New York, NY 10022
Attn: David J. Friedman
Telecopy: (212) 735-2000
if to Parent or the Individual Stockholders, to:
Rite Aid Corporation
30 Hunter Lane
Camp Hill, Pennsylvania 17011
Attn: Chief Executive Officer
Telephone: (717) 761-2633
Telecopy: (717) 975-5905
copy to:
Jones, Day, Reavis & Pogue
599 Lexington Avenue
New York, NY 10022
Attn: Robert A. Profusek
Telephone: (212) 326-3939
Telecopy: (212) 755-7306
(f) Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void, unenforceable or against its regulatory policy,
the remainder of the terms, provisions, covenants and restrictions of this
Agreement will remain in full force and effect and will in no way be affected,
impaired or invalidated.
(g) Specific Performance. The parties hereto agree that irreparable
damage would occur in the event any
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provision of this Agreement was not performed in accordance with the terms
hereof and that the parties will be entitled to the remedy of specific
performance of the terms hereof, in addition to any other remedy at law or
equity.
(h) No Waiver. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the parties
at variance with the terms hereof, will not constitute a waiver by such party of
its right to exercise any such or other right, power or remedy or to demand such
compliance.
(i) No Third Party Beneficiaries. This Agreement is not intended to
confer upon any person other than the parties hereto any rights or remedies
hereunder.
(j) Governing Law. This Agreement will be governed and construed in
accordance with the laws of the State of Delaware, without giving effect to the
principles of conflict of laws thereof.
(k) Jurisdiction. Each party hereby irrevocably submits to the
exclusive jurisdiction of the Court of Chancery in the State of Delaware in any
action, suit or proceeding arising in connection with this Agreement, and agrees
that any such action, suit or proceeding will be brought only in such court (and
waives any objection based on forum non conveniens or any other objection to
venue therein); provided, however, that such consent to jurisdiction is solely
for the purpose referred to in this Section 10(k) and will not be deemed to be a
general submission to the jurisdiction of said Court or in the State of Delaware
other than for such purposes. Each party hereto hereby waives any right to a
trial by jury in connection with any such action, suit or proceeding.
(l) Descriptive Headings. The descriptive headings used herein are
for reference purposes only and will not affect in any way the meaning or
interpretation of this Agreement.
(m) Counterparts. This Agreement may be executed in counterparts,
each of which will be considered one and the same agreement and will become
effective when such counterparts have been signed by each of the parties and
delivered to the other parties, it being understood that all parties need not
sign the same counterpart.
(n) Termination of Existing Shareholders Agreement. Stockholder
hereby covenants and agrees that, as of the Effective Time and without further
action, the Stockholders Agreement will be terminated and deemed null and void
and of no further force and effect.
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11. THE INDIVIDUAL STOCKHOLDERS. The persons executing this Agreement
under the caption "Individual Stockholders" on the signature page hereof are
executing this Agreement solely so that this Agreement will constitute a
"stockholders' agreement" within the meaning of Section 218(c) of the DGCL and
will not have any rights or obligations hereunder except rights to enforce
Section 4(a).
12. SIMULTANEOUS AGREEMENT. This Agreement is entered into
simultaneously with a Stockholder Agreement among Stockholder No. 2, Parent and
certain other persons.
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IN WITNESS WHEREOF, Parent, Stockholder and the Individual
Stockholders have caused this Agreement to be duly executed as of the day and
year first above written.
RITE AID CORPORATION
By: ----------------------------------------
Martin L. Grass
Chairman of the Board
and Chief Executive Officer
KMART CORPORATION
By: ----------------------------------------
Name: _____________________________
Title: ____________________________
INDIVIDUAL STOCKHOLDERS
--------------------------------------------
Martin L. Grass
--------------------------------------------
Franklin C. Brown
--------------------------------------------
Elliot S. Gerson
--------------------------------------------
Frank M. Bergonzi
<PAGE>
APPENDIX A
----------
REGISTRATION RIGHTS
-------------------
1. DEFINITIONS. For purposes of this Appendix A, the following terms
will have the following meanings:
"Blackout Period" means a Section 6(a) Period or a Section 6(b)
Period.
"Business Day" means a day, other than a Saturday or Sunday, on which
banking institutions and securities exchanges in New York, New York are required
to be open.
"Counsel to Stockholder" means the single law firm reasonably
acceptable to Parent from time to time representing Stockholder.
"Effective Period" means a period commencing on the date of this
Agreement and ending on the earlier of (i) the first date as of which all
Registrable Securities cease to be Registrable Securities and (ii) the date on
which such Stockholder may sell all of the Registrable Securities in accordance
with Rule 145(d)(3) under the Securities Act.
"Inspectors" has the meaning specified in Section 7(l).
"NASD" means the National Association of Securities Dealers, Inc.
"Prospectus" means the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities
covered by any Registration Statement and by all other amendments and
supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus.
"Records" has the meaning specified in Section 7(l).
"Registrable Securities" means Parent Common Stock acquired by
Stockholder pursuant to the Merger and any securities received in any
distribution thereon and in connection therewith unless and until all such
Parent Common Stock may be publicly sold by Stockholder under Rule 144 under the
Securities Act within a 90-day period.
"Registration Expenses" means any and all reasonable expenses incident
to performance of or compliance with this Agreement, including without
limitation, (i) all SEC, NASD and securities exchange registration and filing
fees, (ii) all fees and expenses of complying with state securities or blue sky
laws (including reasonable fees and disbursements of counsel for any
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underwriters in connection with blue sky qualifications of the Registrable
Securities), (iii) all printing expenses, (iv) all fees and expenses incurred in
connection with the listing of the Registrable Securities on any securities
exchange or automated quotation system pursuant to Section 7(h), (v) the fees
and disbursements of counsel for Parent and of its independent public
accountants, (vi) the reasonable fees and expenses of any special experts
retained by Parent in connection with the requested registration, and (vii) out-
of-pocket expenses of underwriters customarily paid by the issuer to the extent
provided for in any underwriting agreement, but excluding underwriting
discounts, commissions and transfer taxes, if any, fees and expenses of Counsel
to Stockholder and all the fees and expenses of Stockholder incident to its
offering or sale of Registerable Securities.
"Registration Hold Period" means a Section 7(e) Period or a Section
7(m) Period.
"Registration Statement" means any registration statement of Parent
referred to in Sections 7(c) or (d), including any Prospectus, amendments and
supplements to any such registration statement, including post-effective
amendments, and all exhibits and all material incorporated by reference in any
such registration statement.
"Related Securities" means any securities of Parent similar or
identical to any of the Registrable Securities, including without limitation
Parent Common Stock and all options, warrants, rights and other securities
convertible into, or exchangeable or exercisable for, Parent Common Stock.
"SEC" means the Securities and Exchange Commission.
"Section 6(a) Period" has the meaning specified in Section 6(a).
"Section 6(b) Period" has the meaning specified in Section 6(b).
"Section 7(e) Period" has the meaning specified in Section 7(e).
"Section 7(m) Period" has the meaning specified in Section 7(m).
"Shelf Registration" means a registration statement on an appropriate
form pursuant to Rule 415 under the Securities Act (or any successor rule that
may be adopted by the SEC).
"underwritten registration" or "underwritten offering" means an
underwritten offering in which securities of Parent are sold to an underwriter
for reoffering to the public.
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2. SECURITIES SUBJECT TO THIS APPENDIX A. The securities entitled to
the benefits of this Appendix A are the Registrable Securities. For the purposes
of this Appendix A, Registrable Securities will cease to be Registrable
Securities when and to the extent that (a) a Registration Statement covering all
of the Registrable Securities has been declared effective under the Securities
Act and Registrable Securities have been disposed of pursuant to such effective
Registration Statement or three years has passed since such Registration
Statement was declared effective, (b) all of the Registrable Securities are
distributed to the public pursuant to Rule 144 (or any successor provision then
in force) under the Securities Act, or (c) all of the Registrable Securities
have ceased to be outstanding.
3. PIGGY-BACK REGISTRATION RIGHTS. (a) Whenever during the Effective
Period Parent proposes to file a registration statement under the Securities Act
relating to the public offering of Parent Common Stock for cash pursuant to a
firm commitment underwritten offering (other than pursuant to a registration
statement on Form S-4 or Form S-8 or any successor forms, or filed in connection
with an exchange offer or an offering of securities solely to existing
stockholders or employees of Parent), Parent will (i) give written notice at
least 15 Business Days prior to the filing thereof to Stockholder, specifying
the approximate date on which Parent proposes to file such registration
statement and advising Stockholder of its right to have any or all of the
Registrable Securities then held by Stockholder included among the securities to
be covered thereby, and (ii) at the written request of Stockholder given to
Parent at least five Business Days prior to the proposed filing date, include
among the securities covered by such registration statement the number of
Registrable Securities which Stockholder shall have requested be so included
(subject, however, to reduction in accordance with Section 3(b)). Parent will
use commercially reasonable efforts to cause the managing underwriter of the
proposed underwritten offering to permit the Registrable Securities so requested
to be included in the Registration Statement for such offering to be included in
such offering on the same terms and conditions as any similar securities of
Parent included therein.
(b) In the event Stockholder desires to participate in an offering
pursuant to Section 3(a), Stockholder may include Registrable Securities in any
Registration Statement relating to such offering to the extent that the
inclusion of such Registrable Shares will not reduce the number of shares of
Parent Common Stock to be offered and sold pursuant thereto by Parent and by any
person exercising demand registration rights with respect to such offering. If
the lead managing underwriter selected by Parent for an underwritten offering
pursuant to Section 3(a) determines that marketing factors require a limitation
on the number of Parent Common Stock to be offered and sold by the stockholders
of Parent in such offering, there will be included in the offering only that
number of Parent Common
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Stock, if any, that such lead managing underwriter determines will not
jeopardize the success of the offering of all Parent Common Stock that Parent
desires to sell for its own account. In such event and provided the managing
underwriter has so notified Parent in writing, the number of shares of Parent
Common Stock to be offered and sold by stockholders of Parent, including
Stockholder, desiring to participate in such offering will be allocated among
such holders of Parent Common Stock first, pro rata among securities to be
registered pursuant to demand registration rights and second, pro rata among
securities to be registered pursuant to piggyback registration rights. From the
date hereof for as long as Stockholder has any right to require registration of
Registrable Securities pursuant to this Agreement, Parent will not enter into
any agreement, except for the Stockholder No. 2 Agreement, with respect to
Parent Common Stock which provides for registration rights of any third party
that would have the effect, if exercised, of permitting a reduction in the
number of Stockholder's Registrable Securities includable in a registration
pursuant to this Agreement other than on a pro rata basis with other holders of
registration rights.
(c) Nothing in this Section 3 will create any liability on the part
of Parent to Stockholder if Parent for any reason should decide not to file a
registration statement proposed to be filed under Section 3(a) or to withdraw
such registration statement subsequent to its filing, regardless of any action
whatsoever that Stockholder may have taken, whether as a result of the issuance
by Parent of any notice hereunder or otherwise.
(d) A request by Stockholder to include Registrable Securities in a
proposed underwritten offering pursuant to Section 3(a) will not be deemed to be
a request for a demand registration pursuant to Section 4.
4. DEMAND REGISTRATION RIGHTS. (a) Upon the written request by
Stockholder at any time commencing on the date hereof and continuing through the
Effective Period that Parent effect the registration with the SEC under and in
accordance with the provisions of the Securities Act of all or part of
Stockholder's Registrable Securities (which written request will specify the
aggregate number of shares of Registrable Securities requested to be registered,
the form of registration statement to be used, with Parent's reasonable consent,
and the means of distribution), Parent will file a Registration Statement
covering Stockholder's Registrable Securities requested to be registered within
20 Business Days after receipt of such request; provided, however, that Parent
will not be required to take any action pursuant to this Section 4:
(i) if prior to the date of such request Parent shall have
effected two registrations pursuant to this Section 4;
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(ii) if Parent has effected a registration pursuant to Section 3
within the 90-day period next preceding such request which permitted
Stockholder to register all of its Registrable Securities;
(iii) if Parent shall at the time have effective a Shelf
Registration pursuant to which Stockholder could effect the
disposition of all of the Stockholder's Registrable Securities in the
manner requested;
(iv) if the Registrable Securities which Parent shall have been
requested to register shall have a then-current market value of less
than $50,000,000, unless such registration request is for all
remaining Registrable Securities; or
(v) during the pendency of any Blackout Period.
(b) Stockholder may distribute the Registrable Securities covered by
such request by means of an underwritten offering or any other lawful means, as
determined by Stockholder and the form of the registration statement shall be
subject to Stockholder's reasonable approval.
(c) A registration requested pursuant to this Section 4 will not be
deemed to be effected for purposes of this Section 4 if it has not been declared
effective by the SEC or become effective in accordance with the Securities Act
and the rules and regulations thereunder or its effectiveness has not been
maintained for the applicable period required hereunder.
(d) Stockholder may, at any time prior to the effective date of the
Registration Statement relating to such registration, revoke such request by
providing a written notice to Parent revoking such request. In such event,
Stockholder will reimburse Parent for all its out-of-pocket expenses incurred in
the preparation, filing and processing of the Registration Statement; provided,
however, that, if such revocation was based on (i) Parent's failure to comply in
any material respect with its obligations hereunder or (ii) the occurrence of a
Blackout Period, such reimbursement will not be required.
(e) Parent will not include any securities which are not Registrable
Securities in any Registration Statement filed pursuant to a demand made under
this Section 4 without the prior written consent of Stockholder.
(f) Notwithstanding any other provision hereof, Parent acknowledges
and agrees that Stockholder will be entitled to make a demand hereunder
following the date of this Agreement but prior to the Effective Time, in which
event Parent will use reasonable efforts to cause the registration statement
filed
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<PAGE>
pursuant to such demand to become effective as promptly as practicable following
the Effective Time.
(g) Should Stockholder offer any options, rights, warrants or other
securities issued by it or any other person that are offered with, convertible
into or exercisable or exchangeable for any Registrable Securities, Parent's
registration obligations under this Agreement in respect of Registrable
Securities will be equally applicable to the securities to be purchased upon
such conversion, exercise or exchange or offered with such other securities.
5. SELECTION OF UNDERWRITERS. In connection with any underwritten
offering pursuant to a Registration Statement filed pursuant to a demand made
under Section 4, Stockholder will have the right to propose a managing
underwriter or underwriters to administer the offering, which Parent may in its
sole discretion reject, in which case the managing underwriter or underwriters
shall be selected by Stockholder from a list of six nationally prominent
underwriters selected by Parent in its sole discretion.
6. BLACKOUT PERIODS. (a) If (i) during the Effective Period, Parent
files or proposes to file a registration statement (other than in connection
with the registration of securities issuable pursuant to a continuous "at the
market offering" pursuant to Rule 415(a)(4) under the Securities Act, an
employee stock option, stock purchase, dividend reinvestment plan or similar
plan or pursuant to a merger, exchange offer or a transaction of the type
specified in Rule 145(a) under the Securities Act or a registration of debt
securities not in any way exchangeable, convertible or exercisable for common
stock of Parent) with respect to any securities of Parent, and (ii) with
reasonable prior notice, (A) Parent (in the case of a non-underwritten offering
pursuant to such registration statement) advises Stockholder in writing that a
sale or distribution of Registrable Securities would adversely affect such
offering or (B) the managing underwriter or underwriters (in the case of an
underwritten offering other than an underwritten offering of indebtedness that
is not convertible into or exchangeable or redeemable for any capital stock of
the Company or any Subsidiary of the Company) advise Parent in writing (in which
case Parent will notify Stockholder), that a sale or distribution of Registrable
Securities would adversely affect such offering, then Parent will not be
obligated to effect the initial filing of a Registration Statement pursuant to
Section 4 during the period commencing on the date that is 30 calendar days
prior to the date Parent in good faith estimates (as certified in writing by an
officer of Parent to Stockholder following a request for registration pursuant
to Section 4(a)) will be the date of the filing of, and ending on the date which
is 90 calendar days following the effective date of, such registration statement
but in no event for more than 120 consecutive days (a "Section 6(a) Period").
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(b) If the Board of Directors of Parent determines in good faith that
the registration and distribution of Registrable Securities (i) would materially
impede, delay or interfere with any pending financing (other than a financing of
the type described in Section 6(a)), acquisition, corporate reorganization or
other significant transaction involving Parent or (ii) would require disclosure
of non-public material information, the disclosure of which would materially and
adversely affect Parent, and, in the case of clause (ii), Parent is concurrently
forbidding purchases or sales in the open market by senior executives of Parent,
Parent will promptly give the stockholder written notice of such determination
and will be entitled to postpone the filing or effectiveness of a Registration
Statement for a reasonable period of time not to exceed 120 calendar days (a
"Section 6(b) Period"); provided, however, that in connection therewith Parent
will be required to deliver to Counsel to Stockholder (as identified at such
time to the Company) a general statement, signed by an officer of Parent and
accompanied by a Board resolution, describing in reasonable detail the reasons
for such postponement or restriction on use and an estimate of the anticipated
delay. Parent will promptly notify Stockholder of the expiration or earlier
termination of a Section 6(b) Period.
(c) Notwithstanding anything in this Section 6 to the contrary, (i)
the beginning of any Blackout Period will be at least 120 calendar days after
the end of the prior Blackout Period, and (ii) the aggregate number of days
included in all Blackout Periods and all Registration Hold Periods during any
consecutive 12-month period during the Effective Period will not exceed 180
calendar days.
7. REGISTRATION PROCEDURES. If and whenever Parent is required to use
commercially reasonable efforts to effect or cause the registration of any
Registrable Securities under the Securities Act as provided in this Agreement,
Parent will, as expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement with
respect to such Registrable Securities on any form for which Parent then
qualifies or which counsel for Parent deems appropriate, which form is subject
to Stockholder's reasonable approval and which form is available for the sale of
the Registrable Securities in accordance with the intended methods of
distribution thereof (including, if so requested by Stockholder, distributions
under Rule 415 under the Securities Act pursuant to a Shelf Registration
Statement), and use commercially reasonable efforts to cause such Registration
Statement to become and remain effective;
(b) prepare and file with the SEC amendments and post-effective
amendments to such Registration Statement and such amendments to the Prospectus
used in connection therewith as may be necessary to maintain the effectiveness
of such registration or as may be required by the rules, regulations or
instructions
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applicable to the registration form utilized by Parent or by the Securities Act
or rules and regulations thereunder necessary to keep such Registration
Statement effective for up to 90 calendar days, in the case of an underwritten
offering, or 360 calendar days, in any other case including a Shelf Registration
(or longer period in the event of a Registration Hold Period during such 90 or
360 calendar days, as provided in this Section 7) and cause the Prospectus as so
supplemented to be filed pursuant to Rule 424 under the Securities Act, and to
otherwise comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration Statement until the
earlier of (i) such 90th or 360th calendar day (or longer period) and (ii) such
time as all Registrable Securities covered by such Registration Statement have
ceased to be Registrable Securities; provided that a reasonable time before
filing a Registration Statement or Prospectus, or any amendments or supplements
thereto, Parent will furnish to Stockholder, the managing underwriter and their
respective counsel for review and comment, copies of all documents proposed to
be filed and will not file any such documents to which any of them reasonably
object prior to the filing thereof;
(c) furnish to Stockholder such number of copies of such Registration
Statement and of each amendment and post-effective amendment thereto (in each
case including all exhibits), any Prospectus or Prospectus supplement and such
other documents as Stockholder may reasonably request in order to facilitate the
disposition of the Registrable Securities by Stockholder (Parent hereby
consenting to the use (subject to the limitations set forth in the last
paragraph of this Section 7) of the Prospectus or any amendment or supplement
thereto in connection with such disposition);
(d) use commercially reasonable efforts to register or qualify such
Registrable Securities covered by such Registration Statement under such other
securities or blue sky laws of such jurisdictions as Stockholder reasonably
requests, and do any and all other acts and things which may be reasonably
necessary or advisable to enable Stockholder to consummate the disposition in
such jurisdictions of the Registrable Securities owned by Stockholder, except
that Parent will not for any such purpose be required to qualify generally to do
business as a foreign corporation in any jurisdiction where, but for the
requirements of this Section 7(d), it would not be obligated to be so qualified,
to subject itself to taxation in any such jurisdiction or to consent to general
service of process in any such jurisdiction;
(e) notify Stockholder at any time when a Prospectus relating to any
such Registrable Securities is required to be delivered under the Securities Act
within the appropriate period mentioned in Section 7(b) of Parent's becoming
aware that the Prospectus included in such Registration Statement, as then in
effect, includes an untrue statement of a
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material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing (the period during which Stockholder is required to
refrain from effective public sales or distributions in such case being referred
to as a "Section 7(e) Period"), and prepare and furnish to Stockholder a
reasonable number of copies of an amendment to such Registration Statement or
related Prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Securities, such Prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing, and the time during which such
Registration Statement shall remain effective pursuant to Section 7(b) will be
extended by the number of days in the Section 7(e) Period;
(f) notify Stockholder at any time,
(i) when the Prospectus or any Prospectus supplement or post-
effective amendment has been filed, and, with respect to the
Registration Statement or any post-effective amendment, when the same
has become effective;
(ii) of any request by the SEC for amendments or supplements to
the Registration Statement or the Prospectus or for additional
information;
(iii) of the issuance by the SEC of any stop order of which
Parent or its counsel is aware or should be aware suspending the
effectiveness of the Registration Statement or any order preventing
the use of a related Prospectus, or the initiation or any threats of
any proceedings for such purposes;
(iv) of the receipt by Parent of any written notification of the
suspension of the qualification of any of the Registrable Securities
for sale in any jurisdiction of the initiation or any threats of any
proceeding for that purpose; and
(v) if at any time the representations and warranties of Parent
contemplated by Section 7(i)(i) cease to be true and correct in any
material respect;
(g) otherwise use commercially reasonable efforts to comply with all
applicable rules and regulations of the SEC, and make available to Stockholder
an earnings statement which shall satisfy the provisions of Section 11(a) of the
Securities Act, provided that Parent will be deemed to have complied with this
Section 7(g) if it has satisfied the provisions of Rule 158 under the Securities
Act;
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(h) use commercially reasonable efforts to cause all such Registrable
Securities to be listed on any securities exchange or automated quotation system
on which Parent Common Stock is then listed, if such Registrable Securities are
not already so listed and if such listing is then permitted under the rules of
such exchange or automated quotation system, and to provide a transfer agent and
registrar for such Registrable Securities covered by such Registration Statement
no later than the effective date of such Registration Statement;
(i) enter into agreements (including underwriting agreements) and
take all other appropriate and reasonable actions in order to expedite or
facilitate the disposition of such Registrable Securities and in such
connection, whether or not an underwriting agreement is entered into and whether
or not the registration is an underwritten registration:
(i) make such representations and warranties to Stockholder and
the underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in comparable underwritten
offerings;
(ii) obtain opinions of counsel to Parent thereof (which counsel
and opinions (in form, scope and substance) will be reasonably
satisfactory to the managing underwriters, if any, and Stockholder)
addressed to Stockholder and the underwriters, if any, covering the
matters customarily covered in opinions requested in comparable
underwritten offerings and such other matters as may be reasonably
requested by Stockholder and the managing underwriter, if any;
(iii) obtain "cold comfort" letters and bring-downs thereof from
Parent's independent certified public accountants addressed to
Stockholder and the underwriters, if any, such letters to be in
customary form and covering matters of the type customarily covered in
"cold comfort" letters by independent accountants in connection with
underwritten offerings;
(iv) if requested, provide indemnification in accordance with
the provisions and procedures of Section 10 to all parties to be
indemnified pursuant to said Section; and
(v) deliver such documents and certificates as may be reasonably
requested by Stockholder and the managing underwriters, if any, to
evidence compliance with Section 7(e) and with any customary
conditions contained in the underwriting agreement or other agreement
entered into by Parent.
(j) cooperate with Stockholder and the managing underwriter or
underwriters or agents, if any, to facilitate, to
10
<PAGE>
the extent commercially reasonable under the circumstances, the timely
preparation and delivery of certificates (not bearing any restrictive legends)
representing the securities to be sold under such Registration Statement, and
enable such securities to be in such denominations and registered in such names
as the managing underwriter or underwriters or agents, if any, or Stockholder
may request;
(k) if reasonably requested by the managing underwriter or
underwriters or Stockholder, incorporate in a Prospectus supplement or post-
effective amendment such information as the managing underwriters and
Stockholder agree should be included therein relating to the plan of
distribution with respect to such Registrable Securities, including without
limitation information with respect to the purchase price being paid by such
underwriters and with respect to any other terms of the underwritten offering of
the Registrable Securities to be sold in such offering and make all required
filings of such Prospectus supplement or post-effective amendment as promptly as
practicable upon being notified of the matters to be incorporated in such
Prospectus supplement or post-effective amendment;
(l) provide Stockholder, any underwriter participating in any
disposition pursuant to such Registration Statement and any attorney, accountant
or other agent retained by Stockholder or underwriter (collectively, the
"Inspectors") reasonable access to appropriate officers of Parent and Parent's
subsidiaries to ask questions and to obtain information reasonably requested by
any such Inspector and make available for inspection all financial and other
records and other information, pertinent corporate documents and properties of
any of Parent and its subsidiaries and affiliates (collectively, the "Records")
as may be reasonably necessary to enable them to exercise their due diligence
responsibilities; provided, however, that the Records that Parent determines, in
good faith, to be confidential and which it notifies the Inspectors in writing
are confidential will not be disclosed to any Inspector unless such Inspector
signs a confidentiality agreement reasonably satisfactory to Parent but in any
event permitting disclosure by an Inspector if (i) the disclosure of such
Records is necessary to avoid or correct a misstatement or omission of a
material fact in such Registration Statement or (ii) the release of such Records
is ordered pursuant to a subpoena or other order from a court of competent
jurisdiction; provided further, however, that any decision regarding the
disclosure of information pursuant to clause (i) may be made only after
consultation with counsel for the applicable Inspectors. Stockholder agrees that
it will promptly after learning that disclosure of such Records is sought in a
court having jurisdiction, give notice to Parent and allow Parent, at Parent's
expense, to undertake appropriate action to prevent disclosure of such Records;
(m) in the event of the issuance of any stop order of which Parent or
its counsel is aware or should be aware
11
<PAGE>
suspending the effectiveness of the Registration Statement or of any order
suspending or preventing the use of any related Prospectus or suspending the
qualification of any Registrable Securities included in the Registration
Statement for sale in any jurisdiction, Parent will use commercially reasonable
efforts promptly to obtain its withdrawal; and the period for which the
Registration Statement will be kept effective will be extended by a number of
days equal to the number of days between the issuance and withdrawal of any stop
orders (a "Section 7(m) Period"); and
(n) reasonably cooperate to make available members of senior
management of Parent to participate in any meetings and conferences or "road
shows" with potential purchasers of the Registrable Securities as the
underwriters (if any) or the Stockholder may reasonably request, the parties
recognizing that the regular responsibilities of such managers will take
priority over any such activities.
Parent may require Stockholder to furnish Parent with such information regarding
Stockholder and pertinent to the disclosure requirements relating to the
registration and the distribution of such securities as Parent may from time to
time reasonably request in writing. Upon receipt of any notice from Parent of
the happening of any event of the kind described in Section 7(e), Stockholder
will forthwith discontinue disposition of Registrable Securities pursuant to the
Prospectus or Registration Statement covering such Registrable Securities until
Stockholder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 7(e), and, if so directed by Parent, Stockholder will
deliver to Parent (at Parent's expense) all copies, other than permanent file
copies then in Stockholder's possession of the Prospectus covering such
Registrable Securities current at the time of receipt of such notice.
8. REGISTRATION EXPENSES. Parent will pay all Registration Expenses in
connection with all registrations of Registrable Securities pursuant to Sections
3 and 4 upon the written request of Stockholder, and Stockholder will pay (a)
any fees or disbursements of Counsel to Stockholder and (b) all underwriting
discounts and commissions and transfer taxes, if any, and other fees, costs and
expenses of Stockholder relating to the sale or disposition of Stockholder's
Registrable Securities pursuant to the Registration Statement.
9. REPORTS UNDER THE EXCHANGE ACT. Parent will:
(a) file with the SEC in a timely manner all reports and other
documents required of Parent under the Exchange Act; and
(b) furnish to Stockholder, during the Effective Period,
forthwith upon request (i) a written statement by Parent that it has
complied with the current public information and reporting requirements of
Rule 144 under the
12
<PAGE>
Securities Act and the Exchange Act and (ii) a copy of the most recent
annual or quarterly report of Parent and such other reports and documents
so filed by Parent.
10. INDEMNIFICATION; CONTRIBUTION. (a) Indemnification by Parent.
Parent will indemnify and hold harmless Stockholder, its officers, directors,
agents, trustees, general partners and each person who controls Stockholder
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act), against all losses, claims, damages, liabilities and expenses
(including reasonable attorneys' fees, disbursements and expenses) incurred by
such party pursuant to any actual or threatened action, suit, proceeding or
investigation arising out of or based upon (i) any violation by Parent (or its
officers, directors or controlling persons) of any federal or state law, rule or
regulation applicable to Parent and relating to any action required or inaction
by Parent (or such other person) in connection with or relating to any
Registration Statement, (ii) any untrue or alleged untrue statement of material
fact contained in the Registration Statement, any Prospectus or preliminary
Prospectus, or any amendment or supplement to any of the foregoing, or (iii) any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of a
Prospectus or a preliminary Prospectus, in light of the circumstances then
existing) not misleading, except in each case insofar as the same arise out of
or are based upon any such untrue statement or omission made in reliance on and
in conformity with information with respect to such indemnified party furnished
in writing to Parent by such indemnified party or its counsel expressly for use
therein. In connection with an underwritten offering, Parent will indemnify the
underwriters thereof, their officers, directors, agents, trustees, general
partners, and each person who controls such underwriters (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same
extent as provided above with respect to the indemnification of Stockholder.
Notwithstanding the foregoing provisions of this Section 10(a), Parent will not
be liable to Stockholder (or any officer, director, agent, trustee or
controlling person thereof), any person who participates as an underwriter in
the offering or sale of Registrable Securities or any other person, if any, who
controls Stockholder or underwriter (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act), under the indemnity agreement
in this Section 10(a) for any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense that arises out of Stockholder's or
such other person's failure to send or deliver a copy of the final Prospectus to
the person asserting an untrue statement or alleged untrue statement or omission
or alleged omission at or prior to the written confirmation of the sale of the
Registrable Securities to such person if such statement or omission was
corrected in such final Prospectus and Parent had previously
13
<PAGE>
furnished copies thereof to Stockholder or such other person in accordance with
this Agreement.
(b) Indemnification by Stockholder. In connection with the
Registration Statement, Stockholder will furnish to Parent in writing such
information, including the name and address of, and the amount of Registrable
Securities held by, Stockholder, as Parent reasonably requests for use in such
Registration Statement or the related Prospectus and will indemnify and hold
harmless (in the same manner and to the same extent as set forth in Section
10(a)) Parent or any underwriter, as the case may be, and any of their
respective affiliates, directors, officers, agents, trustees and controlling
persons (within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act), against any losses, claims, damages, liabilities and expenses
resulting from (i) any violation by Stockholder (or its officers, directors,
agents, trustees or controlling persons) of any federal or state law, rule or
regulation relating to action required of or inaction by Stockholder (or such
other person) in connection with its offer and sale of Registrable Securities
and (ii) any untrue or alleged untrue statement of a material fact contained in,
or any omission or alleged omission of a material fact required to be stated in,
such Registration Statement or Prospectus or any amendment or supplement to
either of them or necessary to make the statements therein (in the case of a
Prospectus, in the light of the circumstances then existing) not misleading, but
only to the extent that any such untrue statement or omission is made in
reliance on and in conformity with information with respect to Stockholder
furnished in writing to Parent by Stockholder or its counsel specifically for
inclusion therein.
(c) Conduct of Indemnification Proceedings. Any person entitled to
indemnification hereunder agrees to give prompt written notice to the
indemnifying party after the receipt by such indemnified party of any written
notice of the commencement of any action, suit, proceeding or investigation or
threat thereof made in writing for which such indemnified party may claim
indemnification or contribution pursuant to this Agreement (provided that
failure to give such notification will not affect the obligations of the
indemnifying party pursuant to this Section 10 except to the extent the
indemnifying party shall have been actually prejudiced as a result of such
failure). In case any such action is brought against any indemnified party and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it wishes,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party (who may
not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under these
indemnification
14
<PAGE>
provisions for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation, unless in the
reasonable judgment of any indemnified party a conflict of interest is likely to
exist, based on the written opinion of counsel, between such indemnified party
and any other of such indemnified parties with respect to such claim, in which
event the indemnifying party will be obligated to pay the reasonable fees and
expenses of such additional counsel. No indemnifying party, in defense of any
such action, suit, proceeding or investigation, may, except with the consent of
each indemnified party, consent to the entry of any judgment or entry into any
settlement (which consent will not be unreasonably withheld) which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such indemnified party of a release from all liability in respect to such
action, suit, proceeding or investigation to the extent the same is covered by
the indemnity obligation set forth in this Section 10. No indemnified party may
consent to entry of any judgment or enter into any settlement without the
consent of each indemnifying party (which consent will not be unreasonably
withheld).
(d) Contribution. If the indemnification from the indemnifying party
provided for in this Section 10 is unavailable to an indemnified party hereunder
in respect of any losses, claims, damages, liabilities or expenses referred to
herein, then the indemnifying party, in lieu of indemnifying such indemnified
party, will contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities and expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified party in connection with the actions which resulted in
such losses, claims, damages, liabilities and expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying
party and indemnified party will be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact, has been made by, or relates to information supplied by, such indemnifying
party or indemnified party, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such action. The amount
paid or payable by a party as a result of the losses, claims, damages,
liabilities and expenses referred to above will be deemed to include, subject to
the limitations set forth in Section 10(c), any legal and other fees and
expenses reasonably incurred by such indemnified party in connection with any
investigation or proceeding. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 10(d) were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this Section 10(d), no underwriter will be required
15
<PAGE>
to contribute any amount in excess of the underwriting discount or commission
applicable to the Registrable Securities underwritten by it. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. Stockholder's obligation to
contribute is several in the proportion that the proceeds of the offering
received by Stockholder bears to the total proceeds of the offering, and not
joint. If indemnification is available under this Section 10(d), the
indemnifying parties will indemnify each indemnified party to the full extent
provided in Section 10(a) or 10(b), as the case may be, without regard to the
relative fault of said indemnifying parties or indemnified party or any other
equitable consideration provided for in this Section 10(d).
(e) Certain Limitations. In no event will Stockholder be liable or
required to contribute any amount under this Section 10 or otherwise in respect
of any untrue or alleged untrue statement or omission or alleged omission for
amounts in excess of the amount by which the total price at which the
Registrable Securities of Stockholder were offered to the public exceeds the
amount of any damages which Stockholder has otherwise been required to pay by
reason of such untrue statement or omission.
(f) Nonexclusivity. The provisions of this Section 10 will be in
addition to any liability which any indemnifying party may have to any
indemnified party and will survive the termination of this Agreement.
(g) Underwriter Indemnification. Notwithstanding anything to the
contrary, the indemnification for an underwriter will be modified (to the extent
requested by the underwriter) to conform to that which is customary for such
underwriter, to the extent set forth in their underwriting agreement.
11. PARTICIPATION IN UNDERWRITTEN OFFERINGS. Stockholder may not
participate in any underwritten offering pursuant to Section 3 hereunder unless
Stockholder (a) agrees to sell Stockholder's Registrable Securities on the basis
provided in any underwriting arrangements approved by Parent in its reasonable
discretion and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
16
<PAGE>
EXHIBIT 8.1
[JDR&P LETTERHEAD]
October 24, 1996
Rite Aid Corporation
30 Hunter Lane
Camp Hill, PA 17011
Re: Registration Statement on Form S-4 of Rite Aid Corporation
----------------------------------------------------------
Gentlemen:
We have acted as counsel to Rite Aid Corporation (the "Company") in
connection with the Registration Statement on Form S-4, to which this opinion
appears as Exhibit 8.1 (the "Registration Statement"), which includes a Joint
Proxy Statement/Prospectus relating to the merger of Thrifty PayLess Holdings,
Inc. ("Thrifty PayLess") with and into the Company. Unless otherwise indicated,
any defined terms used herein have the same meaning as in the Joint Proxy
Statement/Prospectus. We hereby confirm that the section of the Joint Proxy
Statement/Prospectus entitled "The Merger--Certain Federal Income Tax
Consequences" accurately summarizes the material federal income tax consequences
of the Merger to holders of Thrifty PayLess Common Stock. In connection with the
foregoing opinion, we have relied upon, without independent investigation, the
representations and warranties of the parties as set forth in the Merger
Agreement, the compliance by the parties with the convenants therein and
representations of the managements of the companies and certain holders of
Thrifty PayLess Common Stock with respect to various matters.
We hereby consent to the filing with the Securities and Exchange
Commission of this opinion as an exhibit to the Registration Statement.
Very truly yours,
/s/ Jones, Day, Reavis & Pogue
<PAGE>
EXHIBIT 15.1
[KPMG PEAT MARWICK LLP LETTERHEAD]
Rite Aid Corporation
Camp Hill, Pennsylvania
With respect to the subject registration statement, we acknowledge our
awareness of the use therein of our reports dated July 12, 1996 and October 4,
1996 related to our reviews of interim financial information.
Pursuant to Rule 436(c) under the Securities Act of 1933, such reports are
not considered part of a registration statement prepared or certified by an
accountant or a report prepared or certified by an accountant within the
meaning of sections 7 and 11 of the Act.
Very truly yours,
/s/ KPMG Peat Marwick LLP
Harrisburg, Pennsylvania
October 24, 1996
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
Rite Aid Corporation:
We consent to the use of our audit reports dated April 24, 1996 on the
consolidated financial statements and schedule of Rite Aid Corporation and
subsidiaries as of March 2, 1996 and March 4, 1995 and for each of the years
in the three-year period then ended incorporated herein by reference and to
the reference to our firm under the heading "Experts" in the prospectus. Our
reports refer to a change in the method of accounting for investments in
fiscal year 1995.
/s/ KPMG Peat Marwick LLP
Harrisburg, Pennsylvania
October 24, 1996
<PAGE>
Peat Marwick LLP
Suite 2000
1211 South West Fifth Avenue
Portland, OR 97204
Exhibit 23.2
Consent of Independent Certified Public Accountants
---------------------------------------------------
The Board of Directors
Thrifty PayLess Holdings, Inc.
We consent to the use of our audit report incorporated herein by reference and
to the reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG Peat Marwick LLP
Portland, Oregon
October 24, 1996
<PAGE>
Exhibit 99.4
[RITE AID CORPORATION LETTERHEAD]
NOVEMBER , 1996
Dear Stockholder:
You are cordially invited to attend the Special Meeting of Stockholders of
Rite Aid Corporation to be held at Radisson Penn Harris Hotel & Convention
Center, 1150 Camp Hill Bypass, Camp Hill, Pennsylvania, on , December ,
1996, at noon, Eastern Time.
At the Rite Aid Special Meeting, stockholders will be asked to adopt the
Agreement and Plan of Merger between Rite Aid and Thrifty PayLess Holdings,
Inc. (the "Merger Agreement") and the issuance of Rite Aid Common Stock to
Thrifty PayLess stockholders pursuant thereto. The Merger Agreement provides
for the merger of Thrifty PayLess with and into Rite Aid. In the Merger,
Thrifty PayLess Common Stock will be converted into Rite Aid Common Stock
based on an exchange ratio of 0.65 shares of Rite Aid Common Stock for each
share of Thrifty PayLess Common Stock. In addition, pursuant to the Merger
Agreement, Rite Aid's Certificate of Incorporation will be amended in order,
among other things, to increase the number of shares of authorized Rite Aid
Common Stock from 240 million to 300 million.
The Merger, the Merger Agreement and the terms and conditions thereof are
more fully described in the accompanying Joint Proxy Statement/Prospectus. We
urge you to review this material carefully.
Rite Aid's Board of Directors has unanimously determined that the Merger and
the transactions contemplated by the Merger Agreement are fair to and in the
best interests of the stockholders of Rite Aid, has approved the Merger
Agreement and recommends that Rite Aid stockholders vote "for" adoption of the
Merger Agreement.
The acquisition of Thrifty PayLess is an integral part of Rite Aid's
strategy to operate drug stores in large, fast-growing metropolitan areas.
During fiscal 1998, we plan to close the Thrifty PayLess headquarters in
Wilsonville, Oregon. This closing combined with increased purchasing
efficiencies should enhance Rite Aid's earnings for the year. In addition,
Rite Aid intends to rapidly install its proprietary technology into all
Thrifty PayLess stores. Over the next three years, we anticipate that the
results at the Thrifty PayLess stores will more closely mirror the Rite Aid
stores. The combined company will operate over 3,500 stores and have revenues
greater than $10 billion. Our emphasis on technology and marketing are
designed to position us as an attractive provider to managed care
organizations.
It is important that your shares of Rite Aid Common Stock are represented at
the Special Meeting, regardless of the number of shares you hold. Whether or
not you plan to attend the Special Meeting, please sign, date and return your
proxy card in the enclosed postage paid envelope as soon as possible. If you
later decide to attend the Special Meeting and vote in person, or if you wish
to revoke your proxy for any reason prior to the vote at the Special Meeting,
you may do so and your proxy will have no further effect. If you attend the
Special Meeting, you may vote in person, if you wish, even though you
previously mailed your proxy.
As previously announced, Rite Aid is redeeming the so-called poison pill
rights previously declared in respect of Rite Aid Common Stock. Accordingly,
enclosed herewith is a check in payment of the redemption price ($0.01 per
share of Common Stock owned of record as of , 1996). Rite Aid has been
advised by its legal counsel that such amounts will be treated as dividend
income for federal income tax purposes.
Sincerely,
Martin L. Grass
<PAGE>
Exhibit 99.5
RITE AID CORPORATION
30 HUNTER LANE
CAMP HILL, PENNSYLVANIA 17011
----------------
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD DECEMBER , 1996
----------------
To the Stockholders of Rite Aid Corporation:
NOTICE IS HEREBY GIVEN that a Special Meeting of Stockholders of Rite Aid
Corporation ("Rite Aid") will be held on , December , 1996, at noon,
Eastern Time, at Radisson Penn Harris Hotel & Convention Center, 1150 Camp
Hill Bypass, Camp Hill, Pennsylvania, for the following purposes:
1. To consider and vote upon a proposal to adopt an Agreement and Plan of
Merger, dated as of October 13, 1996 (the "Merger Agreement"), providing
for the merger (the "Merger") of Thrifty PayLess Holdings, Inc. ("Thrifty
PayLess") with and into Rite Aid, the issuance of shares of Rite Aid Common
Stock pursuant to the Merger Agreement and the amendment of Rite Aid's
Certificate of Incorporation pursuant to the Merger Agreement in order,
among other things, to increase the total number of authorized shares of
Rite Aid Common Stock from 240 million to 300 million, all as more fully
described in the accompanying Joint Proxy Statement/Prospectus.
2. To transact such other business as may properly come before the
Special Meeting or any adjournments or postponements thereof.
Information regarding the matters to be acted upon at the Special Meeting is
contained in the Joint Proxy Statement/Prospectus accompanying this notice. A
copy of the Merger Agreement is attached as Annex A thereto. The Joint Proxy
Statement/Prospectus and the Annexes thereto form a part of this Notice.
Only the holders of record of Rite Aid Common Stock as of the , 1996
record date for the Special Meeting are entitled to notice thereof and to vote
thereat or at any adjournments or postponements thereof. A list of such
stockholders will be open to examination by any stockholder at the Special
Meeting and for a period of ten days prior to the date of the Special Meeting
during ordinary business hours at Rite Aid's corporate offices, 30 Hunter
Lane, Camp Hill, Pennsylvania. The adoption of the Merger Agreement requires
the affirmative vote of the holders of record of a majority of the shares of
Rite Aid Common Stock outstanding on the record date for the Special Meeting.
BY ORDER OF THE BOARD OF DIRECTORS
_____________________________________
I. Lawrence Gelman
Vice President and Secretary
November , 1996
WHETHER OR NOT YOU PLAN TO ATTEND THE SPECIAL MEETING, PLEASE COMPLETE, SIGN
AND DATE YOUR PROXY CARD AND RETURN IT PROMPTLY IN THE ENCLOSED POSTAGE-
PREPAID ENVELOPE. YOU MAY REVOKE YOUR PROXY IN THE MANNER DESCRIBED IN THE
JOINT PROXY STATEMENT/PROSPECTUS AT ANY TIME BEFORE THE PROXY HAS BEEN VOTED
AT THE SPECIAL MEETING.
<PAGE>
Exhibit 99.6
[THRIFTY PAYLESS HOLDINGS, INC. LETTERHEAD]
NOVEMBER , 1996
Dear Stockholder:
You are cordially invited to attend the Special Meeting of Stockholders of
Thrifty PayLess Holdings, Inc. to be held at , , on December , 1996 at
9:00 a.m., Pacific Standard Time.
The purpose of the Thrifty PayLess Special Meeting is to consider a proposal
to approve and adopt an Agreement and Plan of Merger, dated as of October 13,
1996, between Thrifty PayLess and Rite Aid Corporation. The Merger Agreement
provides for Thrifty PayLess' acquisition by Rite Aid through the merger of
Thrifty PayLess into Rite Aid, with Rite Aid surviving the merger, and related
transactions.
Pursuant to the merger, each share of Class A Common Stock and Class B
Common Stock of Thrifty PayLess (other than shares owned by Thrifty PayLess as
treasury stock, shares held by Rite Aid or any wholly owned subsidiary of Rite
Aid or Thrifty PayLess, and shares of Class A Common Stock as to which
appraisal rights have been properly exercised and perfected) will, by virtue
of the merger and without any action on the part of the holder thereof, be
converted into the right to receive 0.65 shares of duly authorized, validly
issued, fully paid and nonassessable Common Stock of Rite Aid (the "Exchange
Ratio"), which shares will be listed on the New York Stock Exchange. In
addition, upon consummation of the merger, each outstanding option or warrant
to purchase shares of Thrifty PayLess Common Stock will be accelerated and
converted automatically into a right to receive an amount of cash equal to (i)
65% of the closing sales price per share of Rite Aid Common Stock on the New
York Stock Exchange as reported on the New York Stock Exchange Composite Tape
for the date on which the merger becomes effective, minus the exercise price
per share under the applicable option or warrant, times (ii) the number of
shares of Thrifty PayLess Common Stock purchasable upon exercise of such
option or warrant. The obligation of Thrifty PayLess to consummate the merger
is subject, at Thrifty PayLess' option, to a minimum price condition with
respect to the Rite Aid Common Stock and certain other conditions, as
described more fully in the enclosed Joint Proxy Statement/Prospectus.
Your Board of Directors, by unanimous vote, approved the Merger Agreement
and the transactions contemplated thereby (including the merger) as being in
the best interests of Thrifty PayLess and its stockholders. ACCORDINGLY, YOUR
BOARD OF DIRECTORS RECOMMENDS THAT YOU VOTE "FOR" ADOPTION OF THE MERGER
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED THEREBY (INCLUDING THE MERGER).
Our recommendation and our reasons for it, as well as the background of the
transaction, certain risks associated therewith, required regulatory approvals
and other conditions to closing and other important information regarding the
transaction are set forth in the accompanying Joint Proxy
Statement/Prospectus.
Rite Aid has entered into a Stockholder Agreement with each of Thrifty
PayLess' two largest stockholders, Green Equity Investors, L.P. and Kmart
Corporation, pursuant to which such stockholders have each agreed, among other
things, to vote all shares of Thrifty PayLess Common Stock owned by each of
them in favor of adoption of the Merger Agreement and the transactions
contemplated thereby. As of the date of this letter, such stockholders own an
aggregate of 24,998,513 shares, or approximately 42%, of outstanding Thrifty
PayLess Common Stock.
Your vote is important, regardless of the number of shares you own. Adoption
of the Merger Agreement and the transactions contemplated thereby requires the
affirmative vote of the holders of a majority of the outstanding shares of
Thrifty PayLess Class A Common Stock and Class B Common Stock, voting together
as a single class. Accordingly, whether or not you plan to attend the Thrifty
PayLess Special Meeting, you are urged to complete, date and sign the
accompanying proxy and return it promptly in the enclosed postage-paid
envelope. This will not prevent you from attending the Thrifty PayLess Special
Meeting or voting in person, but will assure that your vote is counted if you
are unable to attend such meeting. You may revoke your proxy at any time by
filing a written notice of revocation with, or delivering a duly executed
proxy bearing a later date to, the Secretary of Thrifty PayLess at Thrifty
PayLess' principal executive offices prior to the Thrifty PayLess Special
Meeting or by attending the Thrifty PayLess Special Meeting and voting in
person.
Sincerely,
Leonard I. Green
Chairman of the Board
<PAGE>
Exhibit 99.7
THRIFTY PAYLESS HOLDINGS, INC.
9275 S.W. PEYTON LANE
WILSONVILLE, OREGON 97070
----------------
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD DECEMBER , 1996
----------------
To the Stockholders of Thrifty PayLess Holdings, Inc.:
NOTICE IS HEREBY GIVEN that a Special Meeting of Stockholders of Thrifty
PayLess Holdings, Inc., a Delaware corporation ("Thrifty PayLess"), will be
held on , December , 1996 at 9:00 a.m., Pacific Standard Time, at the
(the "Thrifty PayLess Special Meeting"), for the following purposes:
1. To consider and vote upon a proposal to adopt an Agreement and Plan
of Merger, dated as of October 13, 1996 (the "Merger Agreement"),
between Thrifty PayLess and Rite Aid Corporation, a Delaware corporation
("Rite Aid"), which provides for, among other things, the following: (i)
the acquisition of Thrifty PayLess by Rite Aid through the merger (the
"Merger") of Thrifty PayLess with and into Rite Aid, with Rite Aid
surviving the Merger, and related transactions; (ii) the conversion of
each share of Class A Common Stock, par value $.01 per share (the "A
Common Stock"), and Class B Common Stock, par value $.01 per share (the
"B Common Stock" and, together with the A Common Stock, "Thrifty PayLess
Common Stock"), of Thrifty PayLess (other than shares owned by Thrifty
PayLess as treasury stock, shares held by Rite Aid or any wholly owned
subsidiary of Rite Aid or Thrifty PayLess, and shares of A Common Stock
as to which appraisal rights have been properly exercised and perfected)
into the right to receive 0.65 shares of duly authorized, validly
issued, fully paid and nonassessable Common Stock, par value $1.00 per
share (the "Rite Aid Common Stock"), of Rite Aid; and (iii) the
conversion of each outstanding option or warrant to purchase shares of
Thrifty PayLess Common Stock into a right to receive an amount of cash
equal to (a) 65% of the closing sales price per share of Rite Aid Common
Stock on the New York Stock Exchange as reported on the New York Stock
Exchange Composite Tape for the date on which the Merger becomes
effective, minus the exercise price per share under the applicable
option or warrant, times (b) the number of shares of Thrifty PayLess
Common Stock purchasable upon exercise of such option or warrant.
2. To transact such other business as may properly come before the
Thrifty PayLess Special Meeting or any adjournments or postponements
thereof.
Information regarding the matters to be voted upon at the Thrifty PayLess
Special Meeting is contained in the Joint Proxy Statement/Prospectus
accompanying this Notice. A copy of the Merger Agreement is attached as Annex
A thereto. The Joint Proxy Statement/Prospectus and the Annexes thereto form a
part of this Notice, and stockholders are urged to read such information
carefully.
<PAGE>
Only holders of record of Thrifty PayLess Common Stock as of the , 1996
record date for the Thrifty PayLess Special Meeting (the "Record Date") are
entitled to notice thereof and to vote thereat or at any adjournments or
postponements thereof. A list of such stockholders will be open to examination
by any stockholder at the Thrifty PayLess Special Meeting and for a period of
ten days prior to the date of the Thrifty PayLess Special Meeting during
ordinary business hours at . Adoption of the Merger Agreement
and the transactions contemplated thereby requires the affirmative vote of the
holders of record of a majority of the shares of A Common Stock and B Common
Stock outstanding on the Record Date, voting together as a single class.
By Order of the Board of Directors
_____________________________________
Gary S. Meade,
Secretary
November , 1996
WHETHER OR NOT YOU PLAN TO ATTEND THE THRIFTY PAYLESS SPECIAL MEETING, PLEASE
COMPLETE, SIGN AND DATE YOUR PROXY CARD AND RETURN IT PROMPTLY IN THE ENCLOSED
POSTAGE-PREPAID ENVELOPE. YOU MAY REVOKE YOUR PROXY IN THE MANNER DESCRIBED IN
THE JOINT PROXY STATEMENT/PROSPECTUS AT ANY TIME BEFORE THE PROXY HAS BEEN
VOTED AT THE THRIFTY PAYLESS SPECIAL MEETING.
PLEASE DO NOT SUBMIT ANY OF YOUR THRIFTY PAYLESS COMMON STOCK CERTIFICATES AT
THIS TIME. FOLLOWING CONSUMMATION OF THE MERGER, YOU WILL BE GIVEN
INSTRUCTIONS REGARDING THE PROCEDURE WHEREBY THRIFTY PAYLESS COMMON STOCK
CERTIFICATES CAN BE EXCHANGED FOR RITE AID COMMON STOCK CERTIFICATES.
<PAGE>
Exhibit 99.8
RITE AID CORPORATION
Special Meeting of Stockholders
This Proxy is Solicited on Behalf of the Board of Directors
The undersigned hereby constitutes and appoints Martin L. Grass and
Franklin L. Brown, or either of them, the undersigned stockholder's attorney and
proxy, each with full power of substitution and resubstitution, to represent and
to vote on behalf of the undersigned upon the proposal set forth herein all
shares of Rite Aid Corporation Common Stock held of record by the undersigned as
of ________________, 1996, at the Special Meeting of Stockholders of Rite Aid
Corporation and at all adjournments and postponements thereof, to be held at the
Radisson Penn Harris Hotel & Convention Center, 1150 Camp Hill Bypass, Camp
Hill, Pennsylvania, at noon, Eastern Time, ________________, 1996. (THIS PROXY
REVOKES ALL PRIOR PROXIES GIVEN BY THE UNDERSIGNED.)
THIS PROXY, WHEN PROPERLY EXECUTED, WILL BE VOTED IN THE MANNER DIRECTED
HEREIN. WHERE NO VOTE IS SPECIFIED, THIS PROXY WILL BE VOTED FOR SUCH PROPOSAL
1 ON THE REVERSE SIDE HEREOF AND IN THE DISCRETION OF THE INDIVIDUALS NAMED
ABOVE ON ANY OTHER MATTERS THAT PROPERLY COME BEFORE THE MEETING.
The undersigned hereby acknowledges receipt of the notice of meeting and
Joint Proxy Statement/Prospectus furnished herewith, and hereby confirms that
this Proxy shall be valid and may be voted whether or not the stockholder's name
is set forth below or a seal is affixed or the description, authority or
capacity of the person signing is given or other defect of signature exists.
(Continued and to be signed on the other side.)
<PAGE>
[X] Please mark your vote as indicated in the example.
PLEASE VOTE, SIGN, DATE AND RETURN THIS PROXY AS PROMPTLY AS POSSIBLE IN THE
POSTAGE-PAID ENVELOPE PROVIDED. THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR"
PROPOSAL 1 BELOW:
1. Adoption of the Agreement and Plan of Merger described in the Joint Proxy
Statement/Prospectus accompanying this proxy and the transactions contemplated
thereby:
FOR AGAINST ABSTAIN
[ ] [ ] [ ]
2. In their discretion upon such other matters as may properly come before the
meeting:
FOR AGAINST ABSTAIN
[ ] [ ] [ ]
IF NO DIRECTION IS INDICATED ON A PROPERLY EXECUTED PROXY, IT WILL BE VOTED
"FOR" EACH OF THE PROPOSALS SET FORTH ABOVE.
Please DATE this Proxy and SIGN EXACTLY AS YOUR NAME(S) APPEAR(S) HEREON. When
signing as attorney, executor, administrator, trustee, guardian or other
representative, give your full title as such. If a corporation, sign the full
corporate name by an authorized officer, stating his/her title. If a
partnership, sign in partnership name by an authorized person. Where stock is
issued in the name of two or more persons, all such persons should sign.
Dated:________________________________________
Signature:____________________________________
Signature if held jointly:____________________
Name of Corporation or Partnership:___________
Authorized Officer:___________________________
Title or authority:___________________________
(FOLD AND DETACH HERE)
<PAGE>
Exhibit 99.9
THRIFTY PAYLESS HOLDINGS, INC.
Special Meeting of Stockholders
This Proxy is Solicited on Behalf of the Board of Directors
The undersigned stockholder hereby constitutes and appoints Gordon D.
Barker, David R. Jessick and Gary S. Meade, or any of them, the undersigned
stockholder's attorney and proxy, each with full power of substitution and
resubstitution, to represent and to vote on behalf of the undersigned upon the
proposals set forth herein all shares of Thrifty PayLess Holdings, Inc. Class A
Common Stock and/or Class B Common Stock held of record by the undersigned as of
________________, 1996, at the Special Meeting of Stockholders of Thrifty
PayLess Holdings, Inc. and at all adjournments and postponements thereof, to be
held at ________________________________________,
________________________________, at 9:00 a.m., Pacific Standard time,
________________, 1996. (THIS PROXY REVOKES ALL PRIOR PROXIES GIVEN BY THE
UNDERSIGNED.)
THIS PROXY, WHEN PROPERLY EXECUTED, WILL BE VOTED IN THE MANNER DIRECTED
HEREIN. WHERE NO VOTE IS SPECIFIED, THIS PROXY WILL BE VOTED FOR PROPOSAL
1 ON THE REVERSE SIDE HEREOF AND IN THE DISCRETION OF THE INDIVIDUALS NAMED
ABOVE ON ANY OTHER MATTERS THAT PROPERLY COME BEFORE THE SPECIAL MEETING.
The undersigned hereby acknowledges receipt of the notice of meeting and
Joint Proxy Statement/Prospectus furnished herewith, and hereby confirms that
this Proxy shall be valid and may be voted whether or not the stockholder's name
is set forth below or a seal is affixed or the description, authority or
capacity of the person signing is given or other defect of signature exists.
(Continued and to be signed on the other side.)
<PAGE>
[X] Please mark your vote as indicated in the example.
PLEASE VOTE, SIGN, DATE AND RETURN THIS PROXY AS PROMPTLY AS POSSIBLE IN THE
POSTAGE-PAID ENVELOPE PROVIDED. THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR"
PROPOSAL 1 BELOW:
1. Adoption of the Agreement and Plan of Merger (as defined in the Joint Proxy
Statement/Prospectus that accompanies this Proxy) and the transactions
contemplated thereby:
FOR AGAINST ABSTAIN
[ ] [ ] [ ]
2. In their discretion upon such other matters as may properly come before the
meeting
FOR AGAINST ABSTAIN
[ ] [ ] [ ]
IF NO DIRECTION IS INDICATED ON A PROPERLY EXECUTED PROXY, IT WILL BE VOTED
"FOR" EACH OF THE PROPOSALS SET FORTH ABOVE.
Please DATE this Proxy and SIGN EXACTLY AS YOUR NAME(S) APPEAR(S) HEREON. When
signing as attorney, executor, administrator, trustee, guardian or other
representative, give your full title as such. If a corporation, sign the full
corporate name by an authorized officer, stating his/her title. If a
partnership, sign in partnership name by an authorized person. Where stock is
issued in the name of two or more persons, all such persons should sign.
Dated:__________________________________________
Signature:______________________________________
Signature if held jointly:______________________
Name of Corporation or Partnership:_____________
Authorized Officer:_____________________________
Title or authority:_____________________________
(FOLD AND DETACH HERE)
