Use these links to rapidly review the document
TABLE OF CONTENTS

Table of Contents

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549



FORM 10-Q


ý

 

QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended August 27, 2011

OR

o

 

TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from            to          

Commission File Number: 1-5742

RITE AID CORPORATION
(Exact name of registrant as specified in its charter)

Delaware
(State or other jurisdiction of
incorporation or organization)
  23-1614034
(I.R.S. Employer
Identification No.)

30 Hunter Lane,
Camp Hill, Pennsylvania

(Address of principal executive offices)

 

17011
(Zip Code)

Registrant's telephone number, including area code: (717) 761-2633.

(Former Name, Former Address and Former Fiscal Year, if Changed Since Last Report):
Not Applicable

        Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months, and (2) has been subject to such filing requirements for the past 90 days. Yes  ý     No  o

        Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the Registrant was required to submit and post such files). Yes  ý     No  o

        Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definitions of "large accelerated filer," "accelerated filer," and "smaller reporting company" in Rule 12b-2 of the Exchange Act. (Check one):

Large accelerated filer  ý   Accelerated filer  o   Non-accelerated filer  o
(Do not check if a
smaller reporting company)
  Smaller reporting company  o

        Indicate by check mark whether registrant is a shell company (as defined in Rule 12b-2 of the Exchange act). Yes  o     No  ý

        The registrant had 898,743,304 shares of its $1.00 par value common stock outstanding as of September 22, 2011.


Table of Contents

RITE AID CORPORATION

TABLE OF CONTENTS

 

Cautionary Statement Regarding Forward-Looking Statements

  2

 

PART I
FINANCIAL INFORMATION

   

ITEM 1.

 

Financial Statements (unaudited):

 

 

Condensed Consolidated Balance Sheets as of August 27, 2011 and February 26, 2011

 
3

 

Condensed Consolidated Statements of Operations for the Thirteen Week Periods Ended August 27, 2011 and August 28, 2010

 
4

 

Condensed Consolidated Statements of Operations for the Twenty-Six Week Periods Ended August 27, 2011 and August 28, 2010

 
5

 

Condensed Consolidated Statements of Cash Flows for the Twenty-Six Week Periods Ended August 27, 2011 and August 28, 2010

 
6

 

Notes to Condensed Consolidated Financial Statements

 
7

ITEM 2.

 

Management's Discussion and Analysis of Financial Condition and Results of Operations

 
24

ITEM 3.

 

Quantitative and Qualitative Disclosures About Market Risk

 
33

ITEM 4.

 

Controls and Procedures

 
33

 

PART II
OTHER INFORMATION

   

ITEM 1.

 

Legal Proceedings

 
34

ITEM 1A.

 

Risk Factors

 
35

ITEM 2.

 

Unregistered Sales of Equity Securities and Use of Proceeds

 
35

ITEM 3.

 

Defaults Upon Senior Securities

 
35

ITEM 4.

 

Removed and Reserved

 
35

ITEM 5.

 

Other Information

 
35

ITEM 6.

 

Exhibits

 
36

1


Table of Contents

CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS

        This report, as well as our other public filings or public statements, includes forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. These forward-looking statements are identified by terms and phrases such as "anticipate," "believe," "intend," "estimate," "expect," "continue," "should," "could," "may," "plan," "project," "predict," "will" and similar expressions and include references to assumptions and relate to our future prospects, developments and business strategies.

        Factors that could cause actual results to differ materially from those expressed or implied in such forward-looking statements include, but are not limited to:

        We undertake no obligation to update or revise the forward-looking statements included in this report, whether as a result of new information, future events or otherwise, after the date of this report. Our actual results, performance or achievements could differ materially from the results expressed in, or implied by, these forward-looking statements. Factors that could cause or contribute to such differences are discussed in the section entitled "Risk Factors" and "Management's Discussion and Analysis of Financial Condition and Results of Operations" included herein and included in our Annual Report on Form 10-K for the fiscal year ended February 26, 2011 (the "Fiscal 2011 10-K"), which we filed with the SEC on April 26, 2011 and our Quarterly Report on Form 10-Q for the thirteen weeks ended May 28, 2011 (the "First Quarter 2012 10-Q"), which we filed on July 6, 2011. These documents are available on the SEC's website at www.sec.gov .

2


Table of Contents

PART I. FINANCIAL INFORMATION

ITEM 1.    Financial Statements

        


RITE AID CORPORATION AND SUBSIDIARIES

CONDENSED CONSOLIDATED BALANCE SHEETS

(In thousands, except per share amounts)

(unaudited)

 
  August 27,
2011
  February 26,
2011
 

ASSETS

             

Current assets:

             
 

Cash and cash equivalents

  $ 78,363   $ 91,116  
 

Accounts receivable, net

    949,131     966,457  
 

Inventories, net of LIFO reserve of $915,014 and $875,012

    3,290,170     3,158,145  
 

Prepaid expenses and other current assets

    114,219     195,647  
           
   

Total current assets

    4,431,883     4,411,365  

Property, plant and equipment, net

    1,960,157     2,039,383  

Other intangibles, net

    584,914     646,177  

Other assets

    439,452     458,925  
           
   

Total assets

  $ 7,416,406   $ 7,555,850  
           

LIABILITIES AND STOCKHOLDERS' DEFICIT

             

Current liabilities:

             
 

Current maturities of long-term debt and lease financing obligations

  $ 22,987   $ 63,045  
 

Accounts payable

    1,335,408     1,307,872  
 

Accrued salaries, wages and other current liabilities

    1,066,158     1,049,406  
           
   

Total current liabilities

    2,424,553     2,420,323  

Long-term debt, less current maturities

    6,052,353     6,034,525  

Lease financing obligations, less current maturities

    116,489     122,295  

Other noncurrent liabilities

    1,181,405     1,190,074  
           
   

Total liabilities

    9,774,800     9,767,217  

Commitments and contingencies

         

Stockholders' deficit:

             
 

Preferred stock—series G, par value $1 per share, liquidation value $100 per share; 2,000 shares authorized; shares issued .006 and .006

    1     1  
 

Preferred stock—series H, par value $1 per share, liquidation value $100 per share; 2,000 shares authorized; shares issued 1,665 and 1,616

    166,536     161,650  
 

Common stock, par value $1 per share; 1,500,000 authorized; shares issued and outstanding 898,740 and 890,297

    898,740     890,297  

Additional paid-in capital

    4,275,429     4,281,623  

Accumulated deficit

    (7,670,139 )   (7,514,796 )

Accumulated other comprehensive loss

    (28,961 )   (30,142 )
           
 

Total stockholders' deficit

    (2,358,394 )   (2,211,367 )
           
 

Total liabilities and stockholders' deficit

  $ 7,416,406   $ 7,555,850  
           

See accompanying notes to condensed consolidated financial statements.

3


Table of Contents


RITE AID CORPORATION AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS

(In thousands, except per share amounts)

(unaudited)

 
  Thirteen Week Period Ended  
 
  August 27,
2011
  August 28,
2010
 

Revenues

  $ 6,271,091   $ 6,161,752  

Costs and expenses:

             
 

Cost of goods sold

    4,622,130     4,523,092  
 

Selling, general and administrative expenses

    1,603,752     1,626,704  
 

Lease termination and impairment charges

    15,118     26,360  
 

Interest expense

    130,829     139,716  
 

(Gain) loss on debt modifications and retirements, net

    (4,924 )   44,003  
 

Gain on sale of assets, net

    (848 )   (3,973 )
           

    6,366,057     6,355,902  
           

Loss before income taxes

    (94,966 )   (194,150 )

Income tax (benefit) expense

    (2,712 )   2,826  
           

Net loss

  $ (92,254 ) $ (196,976 )
           

Computation of loss attributable to common stockholders:

             
 

Net loss

  $ (92,254 ) $ (196,976 )
 

Accretion of redeemable preferred stock

    (26 )   (26 )
 

Cumulative preferred stock dividends

    (2,461 )   (2,318 )
           
 

Loss attributable to common stockholders—basic and diluted

  $ (94,741 ) $ (199,320 )
           
 

Basic and diluted loss per share

  $ (0.11 ) $ (0.23 )
           

See accompanying notes to condensed consolidated financial statements.

4


Table of Contents


RITE AID CORPORATION AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS (Continued)

(In thousands, except per share amounts)

(unaudited)

 
  Twenty-Six Week Period Ended  
 
  August 27,
2011
  August 28,
2010
 

Revenues

  $ 12,661,884   $ 12,556,088  

Costs and expenses:

             
 

Cost of goods sold

    9,322,004     9,205,724  
 

Selling, general and administrative expenses

    3,189,988     3,249,638  
 

Lease termination and impairment charges

    32,208     39,817  
 

Interest expense

    261,589     281,335  
 

Loss on debt modifications and retirements, net

    17,510     44,003  
 

Gain on sale of assets, net

    (5,640 )   (3,736 )
           

    12,817,659     12,816,781  
           

Loss before income taxes

    (155,775 )   (260,693 )

Income tax (benefit) expense

    (439 )   9,967  
           

Net loss

  $ (155,336 ) $ (270,660 )
           

Computation of loss attributable to common stockholders:

             
 

Net loss

  $ (155,336 ) $ (270,660 )
 

Accretion of redeemable preferred stock

    (51 )   (51 )
 

Cumulative preferred stock dividends

    (4,886 )   (4,603 )
           
 

Loss attributable to common stockholders—basic and diluted

  $ (160,273 ) $ (275,314 )
           
 

Basic and diluted loss per share

  $ (0.18 ) $ (0.31 )
           

See accompanying notes to condensed consolidated financial statements.

5


Table of Contents


RITE AID CORPORATION AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

(In thousands)

(unaudited)

 
  Twenty-Six Week
Period Ended
 
 
  August 27,
2011
  August 28,
2010
 

Operating activities:

             
 

Net loss

  $ (155,336 ) $ (270,660 )
 

Adjustments to reconcile to net cash provided by operating activities:

             
   

Depreciation and amortization

    225,802     254,013  
   

Lease termination and impairment charges

    32,208     39,817  
   

LIFO charges

    40,002     41,056  
   

Gain on sale of assets, net

    (5,640 )   (3,736 )
   

Stock-based compensation expense

    7,523     9,735  
   

Loss on debt modifications and retirements, net

    17,510     44,003  
   

Changes in operating assets and liabilities:

             
     

Accounts receivable

    13,554     8,663  
     

Inventories

    (172,290 )   (60,166 )
     

Accounts payable

    151,125     311,378  
     

Other assets and liabilities, net

    99,601     139,706  
           
       

Net cash provided by operating activities

    254,059     513,809  
           

Investing activities:

             
 

Payments for property, plant and equipment

    (90,286 )   (72,519 )
 

Intangible assets acquired

    (16,447 )   (10,222 )
 

Proceeds from dispositions of assets and investments

    9,363     8,921  
           
       

Net cash used in investing activities

    (97,370 )   (73,820 )
           

Financing activities:

             
 

Proceeds from issuance of long-term debt

    341,285     650,000  
 

Net proceeds from (repayments to) revolver

    45,000     (80,000 )
 

Principal payments on long-term debt

    (435,161 )   (769,089 )
 

Change in zero balance cash accounts

    (118,281 )   (158,482 )
 

Net proceeds from issuance of common stock

    504     94  
 

Financing fees paid for early debt retirement

        (19,666 )
 

Deferred financing costs paid

    (2,789 )   (34,028 )
           
       

Net cash used in financing activities

    (169,442 )   (411,171 )
           

(Decrease) increase in cash and cash equivalents

    (12,753 )   28,818  

Cash and cash equivalents, beginning of period

    91,116     103,594  
           

Cash and cash equivalents, end of period

  $ 78,363   $ 132,412  
           

Supplementary cash flow data:

             
 

Cash paid for interest (net of capitalized amounts of $212 and $303, respectively)

  $ 245,635   $ 218,106  
           
 

Cash payments of income taxes, net of refunds

  $ 2,108   $ 7,295  
           
 

Equipment financed under capital leases

  $ 2,381   $ 2,064  
           
 

Equipment received for noncash consideration

  $ 1,734   $ 2,206  
           
 

Reduction in lease financing obligation

  $   $  
           
 

Preferred stock dividends paid in additional shares

  $ 4,886   $ 4,603  
           
 

Gross borrowings from revolver

  $ 693,000   $ 61,000  
           
 

Gross repayments to revolver

  $ 648,000   $ 141,000  
           

See accompanying notes to condensed consolidated financial statements.

6


Table of Contents


RITE AID CORPORATION AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

For the Thirteen and Twenty-Six Week Periods Ended August 27, 2011 and August 28, 2010

(Dollars and share information in thousands, except per share amounts)

(Unaudited)

1. Basis of Presentation

        The accompanying unaudited condensed consolidated financial statements have been prepared in accordance with generally accepted accounting principles in the United States of America for interim financial information and with the instructions to Form 10-Q and Article 10 of Regulation S-X and therefore do not include all of the information and footnotes required by accounting principles generally accepted in the United States of America for complete annual financial statements. The accompanying financial information reflects all adjustments which are of a recurring nature and, in the opinion of management, are necessary for a fair presentation of the results for the interim periods. The results of operations for the thirteen and twenty-six week periods ended August 27, 2011 are not necessarily indicative of the results to be expected for the full year. These condensed consolidated financial statements should be read in conjunction with the audited consolidated financial statements and notes thereto included in the Company's Fiscal 2011 10-K.

2. Loss Per Share

        Basic loss per share is computed by dividing loss available to common stockholders by the weighted average number of shares of common stock outstanding for the period. Diluted loss per share reflects the potential dilution that could occur if securities or other contracts to issue common stock were exercised or converted into common stock or resulted in the issuance of common stock that then shared in the income of the Company subject to anti-dilution limitations.

 
  Thirteen Week
Period Ended
  Twenty-Six Week
Period Ended
 
 
  August 27,
2011
  August 28,
2010
  August 27,
2011
  August 28,
2010
 

Numerator for loss per share:

                         
 

Net loss

  $ (92,254 ) $ (196,976 ) $ (155,336 ) $ (270,660 )
 

Accretion of redeemable preferred stock

    (26 )   (26 )   (51 )   (51 )
 

Cumulative preferred stock dividends

    (2,461 )   (2,318 )   (4,886 )   (4,603 )
                   
 

Loss attributable to common stockholders, basic and diluted

  $ (94,741 ) $ (199,320 ) $ (160,273 ) $ (275,314 )
                   

Denominator:

                         
 

Basic and diluted weighted average shares

    885,621     882,758     884,768     882,245  
 

Basic and diluted loss per share

  $ (0.11 ) $ (0.23 ) $ (0.18 ) $ (0.31 )
                   

7


Table of Contents


RITE AID CORPORATION AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

For the Thirteen and Twenty-Six Week Periods Ended August 27, 2011 and August 28, 2010

(Dollars and share information in thousands, except per share amounts)

(Unaudited)

2. Loss Per Share (Continued)

        Due to their antidilutive effect, the following potential common shares have been excluded from the computation of diluted loss per share as of August 27, 2011 and August 28, 2010:

 
  Thirteen Week
Period Ended
  Twenty-Six Week
Period Ended
 
 
  August 27,
2011
  August 28,
2010
  August 27,
2011
  August 28,
2010
 

Stock options

    77,713     88,297     77,713     88,297  

Convertible preferred stock

    30,279     28,529     30,279     28,529  

Convertible debt

    24,800     24,800     24,800     24,800  
                   

    132,792     141,626     132,792     141,626  
                   

        Also excluded from the computation of diluted loss per share as of August 27, 2011 and August 28, 2010 are restricted shares and restricted stock units of 12,407 and 8,191, respectively, which are included in shares outstanding.

3. Lease Termination and Impairment Charges

        Lease termination and impairment charges consist of amounts and number of locations as follows:

 
  Thirteen Week
Period Ended
  Twenty-Six Week
Period Ended
 
 
  August 27,
2011
  August 28,
2010
  August 27,
2011
  August 28,
2010
 

Impairment charges

  $ 657   $ 1,312   $ 1,391   $ 2,446  

Facility and equipment lease exit charges

    14,461     25,048     30,817     37,371  
                   

  $ 15,118   $ 26,360   $ 32,208   $ 39,817  
                   

Impairment charges

                         

Number of Stores

    13     7     27     23  

Number of Distribution Centers

                 
                   

    13     7     27     23  
                   

Lease exit charges

                         

Number of Stores

    8     12     11     20  

Number of Distribution Centers

                 
                   

    8     12     11     20  
                   

8


Table of Contents


RITE AID CORPORATION AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

For the Thirteen and Twenty-Six Week Periods Ended August 27, 2011 and August 28, 2010

(Dollars and share information in thousands, except per share amounts)

(Unaudited)

3. Lease Termination and Impairment Charges (Continued)

Impairment Charges

        These amounts include the write-down of long-lived assets at locations that were assessed for impairment because of management's intention to relocate or close the location, or because of changes in circumstances that indicated the carrying value of an asset may not be recoverable.

Facility and Equipment Lease Exit Charges

        Charges to close a store, which principally consist of lease termination costs, are recorded at the time the store is closed and all inventory is liquidated, pursuant to the guidance set forth in ASC 420, "Exit or Disposal Cost Obligations." The Company calculates the liability for closed stores on a store-by-store basis. The calculation includes the discounted effect of future minimum lease payments and related ancillary costs, from the date of closure to the end of the remaining lease term, net of estimated cost recoveries that may be achieved through subletting or favorable lease terminations. The Company evaluates these assumptions each quarter and adjusts the liability accordingly.

        As part of our ongoing business activities, the Company assesses stores and distribution centers for potential closure. Decisions to close stores or distribution centers in future periods would result in charges for lease exit costs and liquidation of inventory, as well as impairment of assets at these locations. The following table reflects the closed store and distribution center charges that relate to new closures, changes in assumptions and interest accretion:

 
  Thirteen Week
Period Ended
  Twenty-Six Week
Period Ended
 
 
  August 27,
2011
  August 28,
2010
  August 27,
2011
  August 28,
2010
 

Balance—beginning of period

  $ 396,443   $ 398,251   $ 405,350   $ 412,654  
 

Provision for present value of noncancellable lease payments of closed stores

    2,306     11,139     3,170     16,631  
 

Changes in assumptions about future sublease income, terminations and changes in interest rates

    5,859     7,509     15,222     8,366  
 

Interest accretion

    6,627     6,480     13,571     13,335  
 

Cash payments, net of sublease income

    (21,074 )   (28,281 )   (47,152 )   (55,888 )
                   

Balance—end of period

  $ 390,161   $ 395,098   $ 390,161   $ 395,098  
                   

        The Company's revenues and loss before income taxes for the thirteen and twenty-six week periods ended August 27, 2011 and August 28, 2010 include results from stores that have been closed or are

9


Table of Contents


RITE AID CORPORATION AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

For the Thirteen and Twenty-Six Week Periods Ended August 27, 2011 and August 28, 2010

(Dollars and share information in thousands, except per share amounts)

(Unaudited)

3. Lease Termination and Impairment Charges (Continued)


approved for closure as of August 27, 2011. The revenue, operating expenses, and loss before income taxes of these stores for the periods are presented as follows:

 
  Thirteen Week
Period Ended
  Twenty-Six Week
Period Ended
 
 
  August 27,
2011
  August 28,
2010
  August 27,
2011
  August 28,
2010
 

Revenues

  $ 21,213   $ 60,921   $ 49,294   $ 139,305  

Operating expenses

    23,274     68,668     54,531     156,960  

(Gain) loss from sale of assets

    (530 )   (3,432 )   (5,791 )   (4,508 )

Other expenses

    216     410     (275 )   1,728  

Loss before income taxes

    (1,747 )   (4,725 )   829     (14,875 )
 

Included in these stores' loss before income taxes are:

                         

Depreciation and amortization

   
193
   
768
   
465
   
1,736
 

Inventory liquidation charges

    90     588     486     2,189  

        The above results are not necessarily indicative of the impact that these closures will have on revenues and operating results of the Company in the future, as the Company often transfers the business of a closed store to another Company store, thereby retaining a portion of these revenues and operating expenses.

        The Company prioritizes inputs used in measuring the fair value of its nonfinancial assets and liabilities into a hierarchy of three levels: Level 1—quoted prices (unadjusted) in active markets for identical assets or liabilities; Level 2—inputs other than quoted prices included within Level 1 that are either directly or indirectly observable; and Level 3—unobservable inputs in which little or no market activity exists, therefore requiring an entity to develop its own assumptions about the assumptions that market participants would use in pricing.

        Long-lived assets are measured at fair value on a nonrecurring basis for purposes of calculating impairment using Level 2 and Level 3 inputs as defined in the fair value hierarchy. The fair value of long-lived assets using Level 2 inputs is determined by evaluating the current economic conditions in the geographic area for similar use assets. The fair value of long-lived assets using Level 3 inputs is determined by estimating the amount and timing of net future cash flows and discounting them using a risk-adjusted rate of interest. The Company estimates future cash flows based on its experience and knowledge of the market in which the store is located.

10


Table of Contents


RITE AID CORPORATION AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

For the Thirteen and Twenty-Six Week Periods Ended August 27, 2011 and August 28, 2010

(Dollars and share information in thousands, except per share amounts)

(Unaudited)

3. Lease Termination and Impairment Charges (Continued)

        The table below sets forth by level within the fair value hierarchy the long-lived assets as of the impairment measurement date for which an impairment assessment was performed and total losses for the thirteen and twenty-six week periods ended August 27, 2011 and August 28, 2010, respectively.

 
   
   
   
   
  Total Losses  
 
  Quoted Prices in
Active Markets
for Identical
Assets (Level 1)
  Significant
Other
Observable
Inputs (Level 2)
  Significant
Unobservable
Inputs (Level 3)
  Fair Values
as of
Impairment Date
  Thirteen Week
Period Ended
August 27,
2011
  Twenty-Six
Week
Period Ended
August 27,
2011
 

Long-lived assets held and used

  $   $   $   $   $ 208   $ 942  

Long-lived assets held for sale

      $ 1,124       $ 1,124   $ 449   $ 449  
                           

Total

  $   $ 1,124   $   $ 1,124   $ 657   $ 1,391  
                           

 

 
   
   
   
   
  Total Losses  
 
  Quoted Prices in
Active Markets
for Identical
Assets (Level 1)
  Significant
Other
Observable
Inputs (Level 2)
  Significant
Unobservable
Inputs (Level 3)
  Fair Values
as of
Impairment Date
  Thirteen Week
Period Ended
August 28,
2010
  Twenty-Six
Week
Period Ended
August 28,
2010
 

Long-lived assets held and used

  $   $   $ 291   $ 291   $ 1,312   $ 2,446  

Long-lived assets held for sale

                         
                           

Total

  $   $   $ 291   $ 291   $ 1,312   $ 2,446  
                           

4. Income Taxes

        The Company recorded an income tax benefit of $2,712 and an income tax expense of $2,826 for the thirteen week periods and an income tax benefit of $439 and an income tax expense of $9,967 for the twenty-six week periods ended August 27, 2011 and August 28, 2010, respectively. The income tax benefit for the thirteen and twenty-six week periods ended August 27, 2011 is primarily attributable to a net benefit of $5,687 for discrete items related to the recognition of previously unrecognized tax benefits offset by an accrual of state and local taxes and adjustments to unrecognized tax benefits. The income tax expense for the thirteen and twenty-six week periods ended August 28, 2010 is primarily due to the need for an accrual of additional state taxes resulting from the receipt of a final audit determination and adjustments to unrecognized tax benefits.

        The Company is indemnified by Jean Coutu Group for certain tax liabilities incurred for all years ended up to and including the acquisition date of June 4, 2007, related to the Brooks Eckerd acquisition. Although the Company is indemnified by Jean Coutu Group, the Company remains the primary obligor to the tax authorities with respect to any tax liability arising for the years prior to the

11


Table of Contents


RITE AID CORPORATION AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

For the Thirteen and Twenty-Six Week Periods Ended August 27, 2011 and August 28, 2010

(Dollars and share information in thousands, except per share amounts)

(Unaudited)

4. Income Taxes (Continued)


acquisition. Accordingly, as of August 27, 2011 and February 26, 2011, the Company had a corresponding recoverable indemnification asset of $162,542 and $158,209 from Jean Coutu Group, respectively, included in the 'Other Assets' line of the Consolidated Balance Sheets, to reflect the indemnification for such liabilities.

        The Company files U.S. federal income tax returns as well as income tax returns in those states where it does business. The consolidated federal income tax returns have been subject to examination by the Internal Revenue Service (IRS) through fiscal 2008. However, any net operating losses that were generated in these prior closed years may be subject to examination by the IRS upon utilization. The IRS has completed the examination of the consolidated U.S. income tax returns for Brooks Eckerd for the periods leading up to the acquisition which include fiscal years 2004 through 2007. A revenue agent report (RAR) has been received for each of the three audit cycles, with the last RAR received in the third quarter of fiscal 2011. The company is appealing these audit results. Management believes that the Company has adequately provided for any potential adverse results. Furthermore, pursuant to the tax indemnification referenced above, Jean Coutu Group is required to reimburse the Company for any assessment that may arise. State income tax returns are generally subject to examination for a period of three to five years after filing of the respective return. However, as a result of filing amended returns, the Company has statutes open in some states from fiscal 2004.

        The Company recognizes tax liabilities in accordance with the guidance for uncertain tax positions and management adjusts these liabilities with changes in judgment as a result of the evaluation of new information not previously available. Due to the complexity of some of these uncertainties, the ultimate resolution may result in a payment that is materially different from the current estimate of the tax liabilities.

        Over the next 12 months, the Company believes that it is reasonably possible that the amount of unrecognized tax positions including interest and penalties could decrease tax liabilities by approximately $97,739, which would impact the effective tax rate if our tax positions are sustained upon audit, the controlling statute of limitations expires or we agree to a disallowance. The primary driver of the decrease is contingent upon the timing of the conclusion of the pre-acquisition period's audit of the consolidated U.S. income tax returns for Brooks Eckerd and will impact the effective rate by decreasing tax expense by approximately $60,698. The corresponding indemnification asset will reverse concurrently.

        The valuation allowances as of August 27, 2011 and February 26, 2011 apply to the net deferred tax assets of the Company. The Company continues to maintain a full valuation allowance of $2,254,593 and $2,199,302 against net deferred tax assets at August 27, 2011 and February 26, 2011, respectively.

12


Table of Contents


RITE AID CORPORATION AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

For the Thirteen and Twenty-Six Week Periods Ended August 27, 2011 and August 28, 2010

(Dollars and share information in thousands, except per share amounts)

(Unaudited)

5. Intangible Assets

        The Company's intangible assets are finite-lived and amortized over their useful lives. Following is a summary of the Company's amortizable intangible assets as August 27, 2011 and February 26, 2011.

 
  August 27, 2011   February 26, 2011
 
  Gross
Carrying
Amount
  Accumulated
Amortization
  Remaining
Weighted
Average
Amortization
Period
  Gross
Carrying
Amount
  Accumulated
Amortization
  Remaining
Weighted
Average
Amortization
Period

Favorable leases and other

  $ 623,173   $ (358,571 ) 10 years   $ 620,786   $ (335,692 ) 10 years

Prescription files

    1,228,625     (908,313 ) 5 years     1,217,212     (856,129 ) 6 years
                         

Total

  $ 1,851,798   $ (1,266,884 )     $ 1,837,998   $ (1,191,821 )  
                         

        Also included in other non-current liabilities as of August 27, 2011 and February 26, 2011 are unfavorable lease intangibles with a net carrying amount of $87,728 and $93,952 respectively. These intangible liabilities are amortized over their remaining lease terms.

        Amortization expense for these intangible assets and liabilities was $34,121 and $75,234 for the thirteen and twenty-six week periods ended August 27, 2011, respectively. Amortization expense for these intangible assets and liabilities was $43,561 and $88,001 for the thirteen and twenty-six week periods ended August 28, 2010, respectively. The anticipated annual amortization expense for these intangible assets and liabilities is 2012—$137,483; 2013—$112,876; 2014—$87,410; 2015—$70,242 and 2016—$58,908.

13


Table of Contents


RITE AID CORPORATION AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

For the Thirteen and Twenty-Six Week Periods Ended August 27, 2011 and August 28, 2010

(Dollars and share information in thousands, except per share amounts)

(Unaudited)

6. Indebtedness and Credit Agreements

        Following is a summary of indebtedness and lease financing obligations at August 27, 2011 and February 26, 2011:

 
  August 27,
2011
  February 26,
2011
 

Secured Debt:

             
 

Senior secured revolving credit facility due August 2015 (or April 2014, see Credit Facility below)

  $ 73,000   $ 28,000  
 

Senior secured credit facility term loan due June 2014

    1,044,433     1,074,613  
 

Senior secured credit facility term loan due June 2014 ($342,125 face value less unamortized discount of $19,718)

        322,407  
 

Senior secured credit facility term loan due March 2018 (or December 2014 or September 2015, see Credit Facility below) ($333,367 face value less unamortized discount of $1,611)

    331,756      
 

9.75% senior secured notes (senior lien) due June 2016 ($410,000 face value less unamortized discount of $5,107 and $5,635)

    404,893     404,365  
 

8.00% senior secured notes (senior lien) due August 2020

    650,000     650,000  
 

10.375% senior secured notes (second lien) due July 2016 ($470,000 face value less unamortized discount of $27,187 and $29,952)

    442,813     440,048  
 

7.5% senior secured notes (second lien) due March 2017

    500,000     500,000  
 

10.25% senior secured notes (second lien) due October 2019 ($270,000 face value less unamortized discount of $1,671 and $1,774)

    268,329     268,226  
 

Other secured

    5,357     5,408  
           

    3,720,581     3,693,067  

Guaranteed Unsecured Debt:

             
 

8.625% senior notes due March 2015

    459,000     500,000  
 

9.375% senior notes due December 2015 ($405,000 and $410,000 face value less unamortized discount of $2,993 and $3,345)

    402,007     406,655  
 

9.5% senior notes due June 2017 ($810,000 face value less unamortized discount of $7,480 and $8,130)

    802,520     801,870  
           

    1,663,527     1,708,525  

Unsecured Unguaranteed Debt:

             
 

9.25% senior notes due June 2013

    6,015     6,015  
 

6.875% senior debentures due August 2013

    180,277     184,773  
 

8.5% convertible notes due May 2015

    64,188     64,188  
 

7.7% notes due February 2027

    295,000     295,000  
 

6.875% fixed-rate senior notes due December 2028

    128,000     128,000  
           

    673,480     677,976  

Lease financing obligations

    134,241     140,297  
           

Total debt

    6,191,829     6,219,865  

Current maturities of long-term debt and lease financing obligations

    (22,987 )   (63,045 )
           

Long-term debt and lease financing obligations, less current maturities

  $ 6,168,842   $ 6,156,820  
           

14


Table of Contents


RITE AID CORPORATION AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

For the Thirteen and Twenty-Six Week Periods Ended August 27, 2011 and August 28, 2010

(Dollars and share information in thousands, except per share amounts)

(Unaudited)

6. Indebtedness and Credit Agreements (Continued)

Credit Facility

        The Company has a senior secured credit facility that consists of a $1,175,000 revolving credit facility and two term loans. Borrowings under the revolving credit facility bear interest at a rate per annum between LIBOR plus 3.25% and LIBOR plus 3.75% if the Company chooses to make LIBOR borrowings, or between Citibank's base rate plus 2.25% and Citibank's base rate plus 2.75%, in each case based upon the amount of revolver availability, as defined in the senior secured credit facility. The Company is required to pay fees between 0.50% and 0.75% per annum on the daily unused amount of the revolver depending on the amount of revolver availability. Amounts drawn under the revolver become due and payable on August 19, 2015, provided that such maturity date shall instead be April 18, 2014 in the event that on or prior to April 18, 2014 the Company does not repay, refinance or otherwise extend the maturity date of its Tranche 2 Term Loan (as defined below) to a date that is at least 90 days after August 19, 2015 and, in the case of a repayment or refinancing, the Company must have at least $500,000 of availability under the revolver.

        The Company's ability to borrow under the revolver is based upon a specified borrowing base consisting of accounts receivable, inventory and prescription files. At August 27, 2011, the Company had $73,000 of borrowings outstanding under the revolver and had letters of credit outstanding thereunder of $138,916 which gave the Company additional borrowing capacity of $963,084.

        The credit facility also includes a $1,044,433 senior secured term loan (the "Tranche 2 Term Loan"). The Tranche 2 Term Loan will mature on June 4, 2014 and currently bears interest at a rate per annum equal to LIBOR plus 1.75%, if the Company elects LIBOR borrowings, or at Citibank's base rate plus 0.75%. Mandatory prepayments are required to be made from proceeds of asset dispositions and casualty events (subject to certain limitations), a portion of excess cash flows (as defined in the senior secured credit facility) and proceeds from certain issuances of equity or debt (subject to certain exceptions). If at any time there is a shortfall in the borrowing base under the senior secured credit facility, prepayment of the Tranche 2 Term Loan may also be required.

        On March 3, 2011, the Company refinanced its Tranche 3 Term Loan with a $331,756 senior secured term loan (the "Tranche 5 Term Loan"). The Tranche 5 Term Loan matures on March 3, 2018, although the maturity will instead be December 1, 2014 in the event that the Company does not repay or refinance its outstanding 8.625% senior notes due 2015 prior to that time, or September 16, 2015, in the event that the Company does not repay or refinance its outstanding 9.375% senior notes due 2015 prior to that time. The Tranche 5 Term Loan bears interest at a rate per annum equal to LIBOR plus 3.25% with a 1.25% LIBOR floor, and is subject to a 1% prepayment fee in the event it is refinanced within the first year after issuance with the proceeds of a substantially concurrent issuance of new loans or other indebtedness incurred for the primary purpose of repaying, refinancing or replacing the Tranche 5 Term Loan. The Company must make mandatory prepayments of the Tranche 5 Term Loan with the proceeds of asset dispositions and casualty events (subject to certain limitations), with a portion of excess cash flow generated by the Company (as defined in the senior secured credit facility) and with the proceeds of certain issuances of equity and debt (subject to certain exceptions). If at any

15


Table of Contents


RITE AID CORPORATION AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

For the Thirteen and Twenty-Six Week Periods Ended August 27, 2011 and August 28, 2010

(Dollars and share information in thousands, except per share amounts)

(Unaudited)

6. Indebtedness and Credit Agreements (Continued)


time there is a shortfall in its borrowing base under its senior secured credit facility, prepayment of the Tranche 5 Term Loan may also be required.

        The senior secured credit facility also restricts the Company and the subsidiary guarantors from accumulating cash on hand in excess of $200,000 at any time when revolving loans are outstanding (not including cash located in the Company's store deposit accounts, cash necessary to cover the Company's current liabilities and certain other exceptions) and from accumulating cash on hand with revolver borrowings in excess of $100,000 over three consecutive business days. The senior secured credit facility also states that if at any time (other than following the exercise of remedies or acceleration of any senior obligations or second priority debt and receipt of a triggering notice by the senior collateral agent from a representative of the senior obligations or the second priority debt) either (a) an event of default exists under the Company's senior secured credit facility or (b) the sum of revolver availability under the Company's senior secured credit facility and certain amounts held on deposit with the senior collateral agent in a concentration account is less than $100,000 for three consecutive business days (a "cash sweep period"), the funds in the Company's deposit accounts will be swept to a concentration account with the senior collateral agent and will be applied first to repay outstanding revolving loans under the senior secured credit facility, and then held as Collateral for the senior obligations until such cash sweep period is rescinded pursuant to the terms of the Company's senior secured credit facility.

        The senior secured credit facility allows the Company to have outstanding, at any time, up to $1,500,000 in secured second priority debt and unsecured debt in addition to borrowings under the senior secured credit facility and existing indebtedness, provided that not in excess of $750,000 of such secured second priority debt and unsecured debt shall mature or require scheduled payments of principal prior to three months after June 4, 2014. The senior secured credit facility allows the Company to incur an unlimited amount of unsecured debt with a maturity beyond three months after June 4, 2014; however, other debentures limit the amount of unsecured debt that can be incurred if certain interest coverage levels are not met at the time of incurrence of said debt. The senior secured facility also allows, so long as the senior secured credit facility is not in default, for the repurchase of any debt with a maturity on or before June 4, 2014, for the voluntary repurchase of debt with a maturity after June 4, 2014, and the mandatory repurchase of the Company's 8.5% convertible notes due 2015 if the Company maintains availability on the revolving credit facility of at least $100,000.

        The senior secured credit facility contains covenants which place restrictions on the incurrence of debt beyond the restrictions described above, the payments of dividends, sale of assets, mergers and acquisitions and the granting of liens. The credit facility has a financial covenant, which is the maintenance of a fixed charge coverage ratio. The covenant requires that, if availability on the revolving credit facility is less than $150,000, the Company must maintain a minimum fixed charge coverage ratio of 1.00 to 1.00 through November 26, 2011. This ratio increases to 1.05 to 1.00 in the last quarter of Fiscal 2012 and remains at that level for the remaining term of the facility. As of August 27, 2011, the Company was in compliance with this financial covenant.

        The senior secured credit facility provides for events of default including nonpayment, misrepresentation, breach of covenants and bankruptcy. It is also an event of default if the Company

16


Table of Contents


RITE AID CORPORATION AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

For the Thirteen and Twenty-Six Week Periods Ended August 27, 2011 and August 28, 2010

(Dollars and share information in thousands, except per share amounts)

(Unaudited)

6. Indebtedness and Credit Agreements (Continued)


fails to make any required payment on debt having a principal amount in excess of $50,000 or any event occurs that enables, or which with the giving of notice or the lapse of time would enable, the holder of such debt to accelerate the maturity or require the repurchase of such debt. The August 2010 amendments to the senior secured credit facility exclude the mandatory repurchase of the 8.5% convertible notes due 2015 from this event of default.

        Substantially all of Rite Aid Corporation's wholly-owned subsidiaries guarantee the obligations under the senior secured credit facility. The subsidiary guarantees of the senior secured credit facility; the 9.75% senior secured notes due 2016 and the 8.00% senior secured notes due 2020 are secured by a senior lien on, among other things, accounts receivable, inventory and prescription files of the subsidiary guarantors. Rite Aid Corporation is a holding company with no direct operations and is dependent upon dividends, distributions and other payments from its subsidiaries to service payments due under the senior secured credit facility. The Company's 10.375% senior secured notes due 2016, the 7.5% senior secured notes due 2017 and the 10.25% senior secured notes due 2019 are secured on a second priority basis by the same collateral that secures the senior secured credit facility, the 9.75% senior secured notes due 2016 and the 8.00% senior secured notes due 2020. The 8.625% senior notes due 2015, the 9.375% senior notes due 2015 and the 9.5% senior notes due 2017 are guaranteed by substantially all of the Company's wholly-owned subsidiaries on an unsecured basis.

        The subsidiary guarantees related to the Company's senior secured credit facility and secured guaranteed notes and, on an unsecured basis, the unsecured guaranteed notes are full and unconditional and joint and several, and there are no restrictions on the ability of the Company to obtain funds from its subsidiaries. Also, the Company has no independent assets or operations, and subsidiaries not guaranteeing the credit facility and applicable notes are minor. Accordingly, condensed consolidating financial information for the Company and subsidiaries is not presented.

        The indentures that govern the Company's secured and guaranteed unsecured notes contain restrictions on the amount of additional secured and unsecured debt that can be incurred by the Company. As of August 27, 2011, the amount of additional secured and unsecured debt that could be incurred under these indentures was $1,069,200 (which does not include the ability to enter into certain sale and leaseback transactions.) However, the Company could not incur any additional secured debt assuming a fully drawn revolver and the outstanding letters of credit. The ability to issue additional unsecured debt under these indentures is governed by an interest coverage ratio test.

Other Indebtedness

Convertible Notes

        On March 1, 2011, the Company was notified by the NYSE that, as of March 1, 2011, it had regained compliance with the NYSE minimum share price listing requirement. The Company is now in compliance with all NYSE listing rules, and has actively been taking steps to maintain its listing and expects its efforts to maintain its NYSE listing will be successful. However, there can be no assurance that the Company will maintain compliance with the NYSE minimum share price rule or other continued listing requirements. In the event of a delisting, all holders of its $64,188 of outstanding

17


Table of Contents


RITE AID CORPORATION AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

For the Thirteen and Twenty-Six Week Periods Ended August 27, 2011 and August 28, 2010

(Dollars and share information in thousands, except per share amounts)

(Unaudited)

6. Indebtedness and Credit Agreements (Continued)


8.5% Convertible Notes due May 2015 ("Convertible Notes") would be entitled to require the Company to repurchase its Convertible Notes. The Company's senior secured credit facility permits the Company to make such a repurchase of the Convertible Notes; provided that, before and after such transaction, no default or event of default shall have occurred and be continuing under the senior secured credit facility and the Company has at least $100.0 million of availability under its revolving credit facility. The Company's ability to pay cash to holders of the Convertible Notes may be limited by its financial resources at the time of such repurchase. The Company cannot assure you that sufficient financing will be available on terms acceptable to it if necessary to make any required repurchase of the Convertible Notes.

Optional Debt Repurchases

        During August 2011, the Company repurchased $41,000 of its 8.625% senior notes due March 2015, $5,000 of its 9.375% senior notes due December 2015 and $4,496 of its 6.875% senior debentures due August 2013. These repurchases resulted in a gain for the period of $4,924.

Maturities

        The aggregate annual principal payments of long-term debt for the remainder of fiscal 2012 and thereafter are as follows: 2012—$5,179; 2013—$114; 2014—$189,326; 2015—$1,044,692; 2016—$1,004,618 and $3,859,708 thereafter.

Refinancing

        In August 2010, the Company repaid all borrowings outstanding under its revolving credit facility due September 2012 and cancelled all of its commitments thereunder and replaced such facility with a new $1,175,000 revolving credit facility (the "New Revolver") due 2015 (or such earlier date as noted below). The Company also repaid and retired all borrowings and accrued interest due under its $647,726 Tranche 4 Term Loan due June 2015. The Company financed these repayments with the net proceeds from an issuance of $650,000 of new 8.00% Senior Secured Notes due August 2020 (the "New Notes"; the New Revolver and the New Notes are hereinafter collectively referred to as the "Refinancing"), together with cash on hand. The prepayment of the Tranche 4 Term Loan occurred prior to the second anniversary of the borrowing thereof and therefore a 3.0% penalty of the principal amount outstanding was paid totaling $19,432, which was included in loss on debt modifications for the thirteen week period ended August 28, 2010. The loss on debt modifications and retirements for the thirteen week period ended August 28, 2010 also included the write-off of debt issue costs of $13,142 and net unamortized original issuance discounts of $11,429. Additionally, the Company incurred fees and expenses of $34,028 to consummate the Refinancing, which are being deferred and amortized over the terms of the related debt instruments.

18


Table of Contents


RITE AID CORPORATION AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

For the Thirteen and Twenty-Six Week Periods Ended August 27, 2011 and August 28, 2010

(Dollars and share information in thousands, except per share amounts)

(Unaudited)

7. Financial Instruments

        The carrying amounts and fair values of financial instruments at August 27, 2011 and February 26, 2011 are as follows:

 
  August 27, 2011   February 26, 2011  
 
  Carrying
Amount
  Fair
Value
  Carrying
Amount
  Fair
Value
 

Variable rate indebtedness

  $ 1,449,189   $ 1,300,647   $ 1,425,020   $ 1,386,861  

Fixed rate indebtedness

  $ 4,608,399   $ 4,209,493   $ 4,654,548   $ 4,544,974  

        Cash, trade receivables and trade payables are carried at market value, which approximates their fair values due to the short-term maturity of these instruments.

        The following methods and assumptions were used in estimating fair value disclosures for financial instruments:

LIBOR-based borrowings under credit facilities:

        The carrying amounts for LIBOR-based borrowings under the credit facilities, term loans and term notes are estimated based on the quoted market price of the financial instruments.

Long-term indebtedness:

        The fair values of long-term indebtedness are estimated based on the quoted market prices of the financial instruments. If quoted market prices were not available, the Company estimated the fair value based on the quoted market price of a financial instrument with similar characteristics.

8. Stock Options and Stock Awards

        The Company recognizes share-based compensation expense over the requisite service period of the award, net of an estimate for the impact of forfeitures. Operating results for the twenty-six week periods ended August 27, 2011 and August 28, 2010 include $7,523 and $9,735, respectively, of compensation costs related to the company's stock-based compensation arrangements.

        The total number and type of grants and the related weighted average fair value for the thirteen week periods ended August 27, 2011 and August 28, 2010 are as follows:

 
  August 27, 2011   August 28, 2010  
 
  Shares   Weighted
Average
Fair Value
  Shares   Weighted
Average
Fair Value
 

Stock options granted

    17,714   $ 0.82     17,384   $ 0.71  

Stock awards granted

    8,526   $ 1.23     4,574   $ 1.07  
                       
 

Total awards

    26,240           21,958        
                       

19


Table of Contents


RITE AID CORPORATION AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

For the Thirteen and Twenty-Six Week Periods Ended August 27, 2011 and August 28, 2010

(Dollars and share information in thousands, except per share amounts)

(Unaudited)

8. Stock Options and Stock Awards (Continued)

        Typically, stock options granted vest, and are subsequently exercisable in equal annual installments over a four-year period for employees. During fiscal 2012, certain employee stock options and awards were issued that vest 50% in year 3 and 50% in year four. Non-employee director options granted vest, and are subsequently exercisable in equal annual installments over a three-year period. Stock awards granted vest in equal annual installments over a three-year period. Beginning in fiscal 2011, stock awards granted to non-employee directors vest 80% in year one, 10% in year two and 10% in year three.

        The Company calculates the fair value of stock options using the Black- Scholes-Merton option pricing model. The following assumptions were used in the Black-Scholes-Merton option pricing model:

 
  Twenty-Six Week
Period Ended
 
 
  August 27,
2011
  August 28,
2010
 

Expected stock price volatility

    79 %   79 %

Expected dividend yield

    0 %   0 %

Risk-free interest rate

    1.5 %   1.9 %

Expected option life

    5.5 years     5.5 years  

        As of August 27, 2011, there was $25,213 of total unrecognized pre-tax compensation costs related to unvested stock options, net of estimated forfeitures. These costs are expected to be recognized over a weighted average period of 2.86 years. As of August 27, 2011, there was $12,347 of total unrecognized pre-tax compensation costs related to unvested restricted stock grants, net of estimated forfeitures. These costs are expected to be recognized over a weighted average period of 2.84 years.

        On March 21, 2011, the Company launched a Stock Option Exchange Program ("Program") for eligible associates only. Under the Program, eligible associates had the opportunity to surrender certain stock options for a lesser number of new stock options with an exercise price that was determined based on the closing market price on April 21, 2011, the day the Program concluded. The number of new options was determined by applying exchange ratios that resulted in providing new stock options with an aggregate fair value that approximated the aggregate fair value of the options they replaced. The new options vest over two years and have a five year life with an exercise price of $1.03. A total of 14.0 million options with an average exercise price in excess of $1.77 were cancelled and 5.3 million new options were granted with an exercise price of $1.03. The Company recognized a minimal incremental compensation expense as a result of the Program.

20


Table of Contents


RITE AID CORPORATION AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

For the Thirteen and Twenty-Six Week Periods Ended August 27, 2011 and August 28, 2010

(Dollars and share information in thousands, except per share amounts)

(Unaudited)

9. Retirement Plans

        Net periodic pension expense recorded in the thirteen and twenty-six week periods ended August 27, 2011 and August 28, 2010, for the Company's defined benefit plans includes the following components:

 
  Defined Benefit
Pension Plan
  Nonqualified
Executive
Retirement Plans
  Defined Benefit
Pension Plan
  Nonqualified
Executive
Retirement Plans
 
 
  Thirteen Week Period Ended   Twenty-Six Week Period Ended  
 
  August 27,
2011
  August 28,
2010
  August 27,
2011
  August 28,
2010
  August 27,
2011
  August 28,
2010
  August 27,
2011
  August 28,
2010
 

Service cost

  $ 838   $ 809   $ 5   $ 18   $ 1,676   $ 1,618   $ 10   $ 36  

Interest cost

    1,518     1,516     192     212     3,036     3,032     385     423  

Expected return on plan assets

    (1,505 )   (1,248 )           (3,010 )   (2,496 )        

Amortization of unrecognized prior service cost

    157     215             314     430          

Amortization of unrecognized net loss (gain)

    422     507         (332 )   844     1,014         (664 )
                                   

Net pension expense (income)

  $ 1,430   $ 1,799   $ 197   $ (102 ) $ 2,860   $ 3,598   $ 395   $ (205 )
                                   

        During the thirteen and twenty-six week periods ended August 27, 2011 the Company contributed $378 and $784, respectively, to the Nonqualified Executive Retirement Plans. In addition, the Company prepaid $5,100 to the Defined Benefit Pension Plan during fiscal 2011. During the remainder of fiscal 2012, the Company expects to contribute $784 to the Nonqualified Executive Retirement Plans and $5,819 to the Defined Benefit Pension Plan.

10. Commitments and Contingencies

        While the Company cannot predict with certainty the timing or outcome of the legal matters described below, the Company does not believe that any of these matters will have a material adverse effect on its business or financial condition. The Company cannot give assurance, however, that an unfavorable outcome in one or more of these matters will not have a material adverse effect on its results of operations for the period in which they are resolved.

        The Company is currently a defendant in several putative collective or class action lawsuits filed in federal or state courts in several states, including Pennsylvania, New Jersey, New York, Maryland, Massachusetts, Maine, Washington and Oregon, purportedly on behalf of, in some cases (i) current and former assistant store managers or (ii) current and former store managers and assistant store managers, respectively, working in the Company's stores at various locations. The lawsuits allege violations of the Fair Labor Standards Act and of certain state wage and hour statutes. The lawsuits seek various

21


Table of Contents


RITE AID CORPORATION AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

For the Thirteen and Twenty-Six Week Periods Ended August 27, 2011 and August 28, 2010

(Dollars and share information in thousands, except per share amounts)

(Unaudited)

10. Commitments and Contingencies (Continued)


combinations of unpaid compensation (including overtime compensation), liquidated damages, exemplary damages, pre-and post-judgment interest as well as attorneys' fees and costs. In one of the cases, Craig et al v. Rite Aid Corporation et al , pending in the United States District Court for the Middle District of Pennsylvania, brought on behalf of current and former assistant store managers, the Court, on December 9, 2009, conditionally certified a nationwide collective group of individuals who worked for the Company as assistant store managers since December 9, 2006. Notice of the Craig action has been sent to the purported members of the collective group (approximately 6,700 current and former assistant store managers) and approximately 1,100 have joined the Craig action. In another of the cases, Indergit v. Rite Aid Corporation et al , pending in the United States District Court for the Southern District of New York, brought on behalf of current and former store managers and assistant store managers, the Court, on April 2, 2010, conditionally certified a nationwide collective group of individuals who worked for the Company as store managers since March 31, 2007. The Court ordered that Notice of the Indergit action be sent to the purported members of the collective group (approximately 7,000 current and former store managers) and approximately 1,550 have joined the Indergit action. At this time, the Company is not able to predict the outcome of these lawsuits, or any possible monetary exposure associated with the lawsuits. The Company's management believes, however, that the lawsuits are without merit and not appropriate for collective or class action treatment. The Company is vigorously defending all of these claims.

        The Company is currently a defendant in several putative class action lawsuits filed in state courts in California alleging violations of California wage and hour laws pertaining primarily to pay for missed meals and rest periods. These suits purport to be class actions and seek substantial damages. At this time, the Company is not able to predict the outcome of these lawsuits, or any possible monetary exposure associated with the lawsuits. The Company's management believes, however, that the plaintiffs' allegations are without merit and that their claims are not appropriate for class action treatment. The Company is vigorously defending all of these claims.

        The Company was served with a United States Department of Health and Human Services Office of the Inspector General ("OIG") subpoena dated March 5, 2010 in connection with an investigation being conducted by the OIG, the United States Attorney's Office for the Central District of California and the United States Department of Justice Commercial Litigation Branch. The subpoena requests records related to any gift card or similar programs for customers who transferred prescriptions for drugs or medicines to the Company's pharmacies, and whether any customers who receive federally funded prescription benefits (e.g. Medicare and Medicaid) may have benefited from those programs. The Company is in the process of completing its production of records in response to the subpoena and is unable to predict with certainty the timing or outcome of any review by the government of such information.

        The Company received a subpoena dated May 9, 2011 from certain California counties seeking information regarding compliance with environmental regulations governing the management of hazardous waste. The Company is completing its production of records in response to the subpoena. The Company is unable to predict with certainty the timing or outcome of any review by the government of such information.

22


Table of Contents


RITE AID CORPORATION AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

For the Thirteen and Twenty-Six Week Periods Ended August 27, 2011 and August 28, 2010

(Dollars and share information in thousands, except per share amounts)

(Unaudited)

10. Commitments and Contingencies (Continued)

        The Company was served with a Civil Investigative Demand Subpoena Duces Tecum dated August 26, 2011 by the United States Attorney's Office for the Eastern District of Michigan. The subpoena requests records regarding the relationship of Rite Aid's Rx Savings Program to the reporting of usual and customary charges to publicly funded health programs. The Company is in the process of communicating with the U.S. Attorney's Office regarding the scope of the subpoena and is unable to predict with certainty the timing or outcome of any review by the government of such information.

        The Company is subject from time to time to various claims and lawsuits and governmental investigations arising in the ordinary course of our business. While the Company's management cannot predict the outcome of these claims with certainty, the Company's management does not believe that the outcome of any of these legal matters will have a material adverse effect on its business, consolidated results of operations or financial position.

23


Table of Contents

ITEM 2.    Management's Discussion and Analysis of Financial Condition and Results of Operations

Overview

        Net loss for the thirteen week period ended August 27, 2011 was $92.3 million compared to the net loss of $197.0 million for the thirteen week period ended August 28, 2010. The improvement in net loss is due primarily to increased revenues, lower selling, general and administrative expenses, and gains on debt retirements in the current period compared to losses on debt retirements in the prior period. Revenues increased in the current quarter due to increased same store sales in both pharmacy and front-end, partially offset by store closures. There was a decrease in gross margin rate, due to higher markdowns associated with our wellness + loyalty program, and pharmacy reimbursement rate pressures on prescription sales, as described in detail in the following sections.

        Net loss for the twenty-six week period ended August 27, 2011 was $155.3 million compared to the net loss of $270.7 million for the twenty-six week period August 28, 2010. The improvement in net loss is due primarily to increased revenues, lower selling, general and administrative expenses, and lower losses on debt modifications and retirements. Revenues increased due to increased same store sales, partially offset by store closures. There was a decrease in gross margin rate due to higher markdowns associated with our wellness + loyalty programs and pharmacy reimbursement rate pressures on prescription sales, as described in detail in the following sections.

Results of Operations

    Revenues and Other Operating Data

 
  Thirteen Week Period Ended   Twenty-Six Week Period Ended  
 
  August 27,
2011
  August 28,
2010
  August 27,
2011
  August 28,
2010
 
 
  (dollars in thousands)
 

Revenues

  $ 6,271,091   $ 6,161,752   $ 12,661,884   $ 12,556,088  

Revenue growth (decline)

    1.8 %   (2.5 )%   0.8 %   (2.3 )%

Same store sales growth (decline)

    2.2 %   (1.5 )%   1.5 %   (1.2 )%

Pharmacy sales growth (decline)

    1.4 %   (2.6 )%   1.0 %   (2.3 )%

Same store pharmacy sales growth (decline)

    2.0 %   (1.8 )%   1.6 %   (1.3 )%

Pharmacy sales as a % of total sales

    67.8 %   68.1 %   68.3 %   68.2 %

Third party sales as a % of total pharmacy sales

    96.4 %   96.1 %   96.5 %   96.2 %

Front-end sales growth (decline)

    2.5 %   (2.4 )%   0.5 %   (2.4 )%

Same store front-end sales growth (decline)

    2.5 %   (0.9 )%   1.3 %   (1.1 )%

Front-end sales as a % of total sales

    32.2 %   31.9 %   31.7 %   31.8 %

Store data:

                         
 

Total stores (beginning of period)

    4,704     4,767     4,714     4,780  
 

New stores

                2  
 

Closed stores

    (7 )   (20 )   (17 )   (35 )
 

Total stores (end of period)

    4,697     4,747     4,697     4,747  
 

Relocated stores

    5     5     11     13  
 

Remodeled stores

    35     1     38     2  

    Revenues

        Revenues increased 1.8% and declined 2.5% for the thirteen weeks ended August 27, 2011 and August 28, 2010, respectively. Revenues increased 0.8% and declined 2.3% in the twenty-six week periods ended August 27, 2011 and August 28, 2010, respectively. Revenue increases for the thirteen and twenty-six week periods ended August 27, 2011 were driven by an increase in same store sales,

24


Table of Contents

reflecting the positive impact of our wellness + loyalty program and other management initiatives to increase sales and prescriptions. wellness + continues to be one of our significant sales initiative programs. Enrolled wellness + members, who tend to buy more and shop more often, reached approximately 43 million as of August 27, 2011. These increases were partially offset by store closures. At the end of the period, we operated 50 fewer stores than at the end of the same period last year.

        Pharmacy same store sales increased by 2.0% and 1.6% in the thirteen and twenty-six week periods ended August 27, 2011. The increase was driven by a same store prescription increase of 0.1% and 0.3% for the thirteen and twenty-six week periods ended August 27, 2011 and by inflation on brand prescriptions, partially offset by an approximate 1.5% negative impact from new generic introductions.

        Front-end same store sales increased by 2.5% and 1.3% in the thirteen and twenty-six week periods ended August 27, 2011. The increase in same store sales reflects the positive impact of our wellness + loyalty program and other management initiatives to increase sales in the front-end.

    Costs and Expenses

 
  Thirteen Week
Period Ended
  Twenty-Six Week
Period Ended
 
 
  August 27,
2011
  August 28,
2010
  August 27,
2011
  August 28,
2010
 
 
  (dollars in thousands)
 

Cost of goods sold

  $ 4,622,130   $ 4,523,092   $ 9,322,004   $ 9,205,724  

Gross profit

    1,648,961     1,638,660     3,339,880     3,350,364  

Gross margin rate

    26.3 %   26.6 %   26.4 %   26.7 %

Selling, general and administrative expenses

    1,603,752     1,626,704     3,189,988     3,249,638  

Selling, general and administrative expenses as a percentage of revenues

    25.6 %   26.4 %   25.2 %   25.9 %

Lease termination and impairment charges

    15,118     26,360     32,208     39,817  

Interest expense

    130,829     139,716     261,589     281,335  

    Cost of Goods Sold

        Gross margin was 26.3% for the thirteen week period ended August 27, 2011 compared to 26.6% of sales for the thirteen week period ended August 28, 2010. The decrease in gross margin rate was due to both lower front-end gross margin and lower pharmacy gross margin. The decrease in front-end gross margin was due primarily to higher markdowns associated with our wellness + loyalty program. Pharmacy gross margin decreased due to continued reimbursement pressures. Overall gross profit increased due to higher same store sales and a reduced wellness + revenue deferral, partially offset by wellness + program markdowns and reimbursement pressures described above.

        Gross margin rate was 26.4% for the twenty-six week period ended August 27, 2011 compared to 26.7% of sales for the twenty-six week period ended August 28, 2010. The decrease in gross margin was due to lower front-end and pharmacy gross margin. The decrease in front-end gross margin was due primarily to higher markdowns and revenue deferrals both associated with our wellness + loyalty program. Pharmacy gross margin dollars increased due to higher same store sales, which were partially offset by continued reimbursement pressures.

        We use the last-in, first-out (LIFO) method of inventory valuation, which is estimated on a quarterly basis and is finalized at year end when inflation rates and inventory levels are final. Therefore, LIFO costs for interim period financial statements are estimated. The LIFO charges were $20.0 million and $40.0 million for the thirteen and twenty-six week periods ended August 27, 2011 compared to LIFO charges of $20.5 million and $41.1 million for the thirteen and twenty-six week periods ended August 28, 2010.

25


Table of Contents

    Selling, General and Administrative Expenses

        SG&A as a percentage of revenues was 25.6% in the thirteen week period ended August 27, 2011 compared to 26.4% in the thirteen week period ended August 28, 2010. SG&A as a percentage of revenues was 25.2% in the twenty-six week period ended August 27, 2011 compared to 25.9% in the twenty-six week period ended August 28, 2010. The decrease in SG&A as a percentage of revenues for the thirteen and twenty-six week periods is due primarily to decreased depreciation and amortization and lower salaries and corporate overhead resulting from management's continued focus on cost control. These decreases are partially offset by higher self insurance liabilities of $8.6 million due primarily to a reduction in our discount rate.

    Lease Termination and Impairment Charges

        Lease termination and impairment charges consist of amounts and number of locations as follows:

 
  Thirteen Week
Period Ended
  Twenty-Six Week
Period Ended
 
 
  August 27,
2011
  August 28,
2010
  August 27,
2011
  August 28,
2010
 

Impairment charges

  $ 657   $ 1,312   $ 1,391   $ 2,446  

Facility and equipment lease exit charges

    14,461     25,048     30,817     37,371  
                   

  $ 15,118   $ 26,360   $ 32,208   $ 39,817  
                   

Impairment charges

                         

Number of Stores

    13     7     27     23  

Number of Distribution Centers

                 
                   

    13     7     27     23  
                   

Lease exit charges

                         

Number of Stores

    8     12     11     20  

Number of Distribution Centers

                 
                   

    8     12     11     20  
                   

    Impairment Charges:

        These amounts include the write-down of long-lived assets at locations that were assessed for impairment because of management's intention to relocate or close the location, or because of changes in circumstances that indicated the carrying value of an asset may not be recoverable.

        Facility and Equipment Lease Exit Charges:     Charges to close a store, which principally consist of lease termination costs, are recorded at the time the store is closed and all inventory is liquidated, pursuant to the guidance set forth in ASC 420, "Exit or Disposal Cost Obligations." We calculate our liability for closed stores on a store-by-store basis. The calculation includes the discounted effect of future minimum lease payments and related ancillary costs, from the date of closure to the end of the remaining lease term, net of estimated cost recoveries that may be achieved through subletting properties or through favorable lease terminations. We evaluate these assumptions each quarter and adjust the liability accordingly. As part of our ongoing business activities, we assess stores and distribution centers for potential closure. Decisions to close stores or distribution centers in future periods would result in charges for lease exit costs and liquidation of inventory, as well as impairment of assets at these locations.

26


Table of Contents

    Interest Expense

        Interest expense was $130.8 million and $261.6 million for the thirteen and twenty-six week periods ended August 27, 2011, compared to $139.7 million and $281.3 million for the thirteen and twenty-six week periods ended August 28, 2010. The decrease in interest expense for the thirteen and twenty-six week periods ended August 27, 2011 is due primarily to favorable interest rates resulting from our March 2011 Tranche 3 Term Loan refinancing and our August 2010 refinancing of our Tranche 4 Term Loan. The weighted average interest rates on our indebtedness for the twenty-six week period ended August 27, 2011 and August 28, 2010 were 7.4% and 7.5%, respectively.

    Income Taxes

        We recorded an income tax benefit of $2.7 million and an income tax expense of $2.8 million for the thirteen week periods and an income tax benefit of $0.4 million and an income tax expense of $10.0 million for the twenty-six week periods ended August 27, 2011 and August 28, 2010, respectively. The income tax benefit for the thirteen and twenty-six week periods ended August 27, 2011 is primarily attributable to a net benefit of $5.7 million for discrete items related to the recognition of previously unrecognized tax benefits offset by an accrual of state and local taxes and adjustments to unrecognized tax benefits. The income tax expense for the thirteen and twenty-six week periods ended August 28, 2010 is primarily due to the need for an accrual of additional state taxes resulting from the receipt of a final audit determination and adjustments to unrecognized tax benefits.

        The IRS has completed the examination of the consolidated U.S. income tax returns for Brooks Eckerd for the periods leading up to the acquisition which include fiscal years 2004 through 2007. The revenue agent reports (RAR) for these periods have been received and we are appealing these audit results. We believe we have adequately provided for any potential adverse results. Furthermore, we are indemnified by Jean Coutu Group who will reimburse us for any assessment that may arise.

        We recognize tax liabilities in accordance with the guidance for uncertain tax positions and management adjusts these liabilities with changes in judgment as a result of the evaluation of new information not previously available. Due to the complexity of some of these uncertainties, the ultimate resolution may result in a payment that is materially different from the current estimate of the tax liabilities.

        Over the next 12 months, we believe that it is reasonably possible that the amount of unrecognized tax positions including interest and penalties could decrease tax liabilities by approximately $97.7 million, which would impact the effective tax rate if our tax positions are sustained upon audit, the controlling statute of limitations expires or we agree to a disallowance. The primary driver of the decrease is contingent upon the timing of the conclusion of the pre-acquisition period's audit of the consolidated U.S. income tax returns for Brooks Eckerd and will impact the effective rate by decreasing tax expense by approximately $60.7 million. The corresponding indemnification asset will reverse concurrently.

        We evaluate our deferred tax assets on a regular basis to determine if a valuation allowance against the net deferred tax assets is required. A cumulative loss in recent years is significant negative evidence in considering whether deferred tax assets are realizable. Based on the negative evidence, we are precluded from relying on projections of future taxable income to support the recognition of deferred tax assets. The ultimate realization of deferred tax assets is dependent upon the existence of sufficient taxable income generated in the carryforward periods.

27


Table of Contents

Liquidity and Capital Resources

    General

        We have three primary sources of liquidity: (i) cash and cash equivalents, (ii) cash provided by operating activities and (iii) borrowings under the revolving credit facility under our senior secured credit facility. Our principal uses of cash are to provide working capital for operations, to service our obligations to pay interest and principal on debt and to fund capital expenditures. Total liquidity as of August 27, 2011 was $964.7 million, which consisted of revolver borrowing capacity of $963.1 million and invested cash of $1.6 million.

    Credit Facility

        Our senior secured credit facility consists of a $1.175 billion revolving credit facility and two term loans. Borrowings under the revolving credit facility bear interest at a rate per annum between LIBOR plus 3.25% and LIBOR plus 3.75%, if we choose to make LIBOR borrowings, or between Citibank's base rate plus 2.25% and Citibank's base rate plus 2.75% in each case based upon the amount of revolver availability as defined in the senior secured credit facility. We are required to pay fees between 0.50% and 0.75% per annum on the daily unused amount of the revolver, depending on the amount of revolver availability. Amounts drawn under the revolver become due and payable on August 19, 2015, provided that such maturity date shall instead be April 18, 2014 in the event that on or prior to April 18, 2014 we do not repay, refinance or otherwise extend the maturity date of our Tranche 2 Term Loan (as defined below) to a date that is at least 90 days after August 19, 2015 and, in the case of a repayment or refinancing, we must have at least $500.0 million of availability under the revolver.

        Our ability to borrow under the revolver is based upon a specified borrowing base consisting of accounts receivable, inventory and prescription files. At August 27, 2011, we had $73.0 million borrowings outstanding under the revolver and had letters of credit outstanding against the revolver of $138.9 million, which resulted in additional borrowing capacity of $963.1 million.

        The credit facility also includes our $1.044 billion senior secured term loan (the "Tranche 2 Term Loan"). The Tranche 2 Term Loan will mature on June 4, 2014 and currently bears interest at a rate per annum equal to LIBOR plus 1.75%, if we choose to make LIBOR borrowings, or at Citibank's base rate plus 0.75%. We must make mandatory prepayments of the Tranche 2 Term Loan with the proceeds of asset dispositions and casualty events (subject to certain limitations), with a portion of any excess cash flow generated by us (as defined in the senior secured credit facility) and with the proceeds of certain issuances of equity and debt (subject to certain exceptions). If at any time there is a shortfall in our borrowing base under our senior secured credit facility, prepayment of the Tranche 2 Term Loan may also be required.

        On March 3, 2011, we refinanced the Tranche 3 Term Loan with a $331.8 million senior secured term loan (the "Tranche 5 Term Loan"). The Tranche 5 Term Loan matures on March 3, 2018, although the maturity will instead be December 1, 2014 in the event that we do not repay or refinance our outstanding 8.625% senior notes due 2015 prior to that time, or September 16, 2015, in the event that we do not repay or refinance our outstanding 9.375% senior notes due 2015 prior to that time. The Tranche 5 Term Loan bears interest at a rate per annum equal to LIBOR plus 3.25% with a 1.25% LIBOR floor, and is subject to a 1% prepayment fee in the event it is refinanced within the first year after issuance with the proceeds of a substantially concurrent issuance of new loans or other indebtedness incurred for the primary purpose of repaying, refinancing or replacing the Tranche 5 Term Loan. We must make mandatory prepayments of the Tranche 5 Term Loan with the proceeds of asset dispositions and casualty events (subject to certain limitations), with a portion of any excess cash flow generated by us (as defined in the senior secured credit facility) and with the proceeds of certain issuances of equity and debt (subject to certain exceptions). If at any time there is a shortfall in our

28


Table of Contents

borrowing base under our senior secured credit facility, prepayment of the Tranche 5 Term Loan may also be required.

        The senior secured credit facility also restricts us and the subsidiary guarantors from accumulating cash on hand in excess of $200.0 million at any time when revolving loans are outstanding (not including cash located in our store deposit accounts, cash necessary to cover our current liabilities and certain other exceptions) and from accumulating cash on hand with revolver borrowings in excess of $100.0 million over three consecutive business days. The senior secured credit facility also states that if at any time (other than following the exercise of remedies or acceleration of any senior obligations or second priority debt and receipt of a triggering notice by the senior collateral agent from a representative of the senior obligations or the second priority debt) either (a) an event of default exists under our senior secured credit facility or (b) the sum of revolver availability under our senior secured credit facility and certain amounts held on deposit with the senior collateral agent in a concentration account is less than $100.0 million for three consecutive business days (a "cash sweep period"), the funds in our deposit accounts will be swept to a concentration account with the senior collateral agent and will be applied first to repay outstanding revolving loans under the senior secured credit facility, and then held as Collateral for the senior obligations until such cash sweep period is rescinded pursuant to the terms of our senior secured credit facility.

        The senior secured credit facility allows us to have outstanding, at any time, up to $1.5 billion in secured second priority debt and unsecured debt in addition to borrowings under the senior secured credit facility and existing indebtedness, provided that not in excess of $750.0 million of such secured second priority debt and unsecured debt shall mature or require scheduled payments of principal prior to three months after June 4, 2014. The senior secured credit facility allows us to incur an unlimited amount of unsecured debt with a maturity beyond three months after June 4, 2014; however, other outstanding indebtedness limits the amount of unsecured debt that can be incurred if certain interest coverage levels are not met at the time of incurrence of said debt. The senior secured facility also allows, so long as the senior secured credit facility is not in default, for the repurchase of any debt with a maturity on or before June 4, 2014, for the voluntary repurchase of debt with a maturity after June 4, 2014 and the mandatory repurchase of our 8.5% convertible notes due 2015 if we maintain availability on the revolving credit facility of at least $100.0 million.

        Our senior secured credit facility contains covenants which place restrictions on the incurrence of debt beyond the restrictions described above, the payment of dividends, sale of assets, mergers and acquisitions and the granting of liens. Our credit facility has a financial covenant, which is the maintenance of a fixed charge coverage ratio. The covenant requires that, if availability on the revolving credit facility is less than $150.0 million, we maintain a minimum fixed charge coverage ratio of 1.00 to 1.00 through November 26, 2011. This ratio increases to 1.05 to 1.00 in the last quarter of fiscal 2012 and remains at that level for the remaining term of the facility. As of August 27, 2011, we were in compliance with this financial covenant.

        The senior secured credit facility provides for events of default including nonpayment, misrepresentation, breach of covenants and bankruptcy. It is also an event of default if we fail to make any required payment on debt having a principal amount in excess of $50.0 million or any event occurs that enables, or which with the giving of notice or the lapse of time would enable, the holder of such debt to accelerate the maturity or require the repurchase of such debt. The August 2010 amendments to the senior secured credit facility exclude the mandatory repurchase of the 8.5% convertible notes due 2015 from this event of default.

        The indentures that govern our secured and guaranteed unsecured notes contain restrictions on the amount of additional secured and unsecured debt that can be incurred by us. As of August 27, 2011, the amount of additional secured debt that could be incurred under these indentures was approximately $1.1 billion (which amount does not include the ability to enter into certain sale and

29


Table of Contents


leaseback transactions). However, we could not incur any additional secured debt as of February 27, 2010 assuming a fully drawn revolver and the outstanding letters of credit. The ability to issue additional unsecured debt under these indentures is governed by an interest coverage ratio test.

    Other Transactions

        During August 2011, the Company repurchased $41.0 million of its 8.625% senior notes due March 2015, $5.0 million of its 9.375% senior notes due December 2015 and $4.5 million of its 6.875% senior debentures due August 2013. These repurchases resulted in a gain for the period of $5.0 million.

        In August 2010, we repaid all borrowings outstanding under our revolving credit facility due September 2012 and cancelled all of our commitments thereunder and replaced such facility with a new $1.175 billion revolving credit facility (the "New Revolver") due 2015 (or such earlier date as noted below). We also repaid and retired all borrowings and accrued interest due under our $647.7 million Tranche 4 Term Loan due June 2015. We financed these repayments with the net proceeds from an issuance of $650.0 million of new 8.00% Senior Secured Notes due August 2020 (collectively, the "Refinancing"), together with cash on hand. The prepayment of the Tranche 4 Term Loan occurred prior to the second anniversary of the borrowing thereof and therefore a 3.0% penalty of the principal amount outstanding was paid totaling $19.4 million which was included in loss on debt modifications for the thirteen week period ended August 28, 2010. The loss on debt modifications and retirements for the thirteen week period ended August 28, 2010 also included the write-off of debt issue costs of $13.1 million and net unamortized original issuance discounts of $11.4 million. Additionally, we incurred fees and expenses of $34.0 million to consummate the Refinancing, which are being deferred and amortized over the terms of the related debt instruments.

    Net Cash Provided by/Used in Operating, Investing and Financing Activities

        Cash flow provided by operating activities was $254.1 million and $513.8 million in the twenty-six week periods ended August 27, 2011 and August 28, 2010, respectively. Operating cash flow was positively impacted by an increase in accounts payable due to the timing of purchases as well as rent, pension funding and interest payments, partially offset by increases in inventory for seasonal build, price inflation and increased store inventory to improve in stock levels.

        Cash used in investing activities was $97.4 million and $73.8 million for the twenty-six week periods ended August 27, 2011 and August 28, 2010, respectively. Cash used for the purchase of property, plant, equipment and prescription files, net of proceeds from the sale of assets were higher compared to the prior year.

        Cash used in financing activities was $169.4 million and $411.2 million for the twenty-six week periods ended August 27, 2011 and August 28, 2010, respectively. Cash used in financing activities for the twenty-six weeks ended August 27, 2011 was primarily due to the March 2011 refinancing of our Tranche 3 Term Loan, other debt repayments and a decrease in our zero balance cash accounts.

    Capital Expenditures

        During the thirteen week period ended August 27, 2011, we spent $49.9 million on capital expenditures, consisting of $13.8 million related to new store construction, store relocation and store remodel projects, $27.9 million related to technology enhancements, improvements to distribution centers and other corporate requirements, and $8.2 million related to the purchase of prescription files from independent pharmacists. We plan on making total capital expenditures of approximately $250.0 million during fiscal 2012, consisting of approximately 49.0% related to store relocations and remodels and new store construction, 31.0% related to infrastructure and maintenance requirements and 20.0% related to prescription file purchases. Management expects that these capital expenditures will be financed primarily with cash flow from operating activities.

30


Table of Contents

    Future Liquidity

        We are highly leveraged. Our high level of indebtedness: (i) limits our ability to obtain additional financing; (ii) limits our flexibility in planning for, or reacting to, changes in our business and the industry; (iii) places us at a competitive disadvantage relative to our competitors with less debt; (iv) renders us more vulnerable to general adverse economic and industry conditions; and (v) requires us to dedicate a substantial portion of our cash flow to service our debt. Based upon our current levels of operations, we believe that cash flow from operations together with available borrowings under the senior secured credit facility and other sources of liquidity will be adequate to meet our requirements for working capital, debt service and capital expenditures at least for the next twelve months. Based on our liquidity position, which we expect to remain strong throughout the year, we do not expect the restriction on our credit facility, that could result if we fail to meet the fixed charge covenant in our senior secured credit facility, to have any impact on our business in the next twelve months. We will continue to assess our liquidity position and potential sources of supplemental liquidity in light of our operating performance, and other relevant circumstances. Should we determine, at any time, that it is necessary to obtain additional short-term liquidity, we will evaluate our alternatives and take appropriate steps to obtain sufficient additional funds. There can be no assurance that any such supplemental funding, if sought, could be obtained or if obtained, would be on terms acceptable to us. From time to time, we may seek deleveraging transactions, including entering into transactions to exchange debt for shares of common stock, repurchase outstanding indebtedness or seek to refinance our outstanding debt or may otherwise seek transactions to reduce interest expense and extend debt maturities.

Critical Accounting Policies and Estimates

        For a description of the critical accounting policies that require the use of significant judgments and estimates by management, refer to "Management's Discussion and Analysis of Financial Condition and Results of Operations—Critical Accounting Policies and Estimates" included in our fiscal 2011 10-K.

Factors Affecting Our Future Prospects

        For a discussion of risks related to our financial condition, operations and industry, refer to "Risk Factors" included herein and in our fiscal 2011 10-K and "Management's Discussion and Analysis of Financial Condition and Results of Operations" included in our fiscal 2011 10-K.

Adjusted EBITDA

        In addition to net income determined in accordance with GAAP, we use certain non-GAAP measures, such as "Adjusted EBITDA", in assessing our operating performance. We believe the non-GAAP measures serve as an appropriate measure to be used in evaluating the performance of our business. We define Adjusted EBITDA as net income (loss) excluding the impact of income taxes, interest expense, depreciation and amortization, LIFO adjustments, charges or credits for facility closing and impairment, inventory write-downs related to store closings, stock-based compensation expense, debt modifications and retirements, sale of assets and investments, revenue deferrals related to customer loyalty programs and other items. We reference this particular non-GAAP financial measure frequently in our decision-making because it provides supplemental information that facilitates internal comparisons to the historical operating performance of prior periods and external comparisons to competitors' historical operating performance. In addition, incentive compensation is based on Adjusted EBITDA and we base certain of our forward-looking estimates on Adjusted EBITDA to facilitate quantification of planned business activities and enhance subsequent follow-up with comparisons of actual to planned Adjusted EBITDA.

31


Table of Contents

        The following is a reconciliation of Adjusted EBITDA to our net loss for the thirteen and twenty-six week periods ended August 27, 2011 and August 28, 2010:

 
  Thirteen Week
Period Ended
  Twenty-Six Week
Period Ended
 
 
  August 27,
2011
  August 28,
2010
  August 27,
2011
  August 28,
2010
 
 
  (dollars in thousands)
 

Net loss

  $ (92,254 ) $ (196,976 ) $ (155,336 ) $ (270,660 )
 

Interest expense

    130,829     139,716     261,589     281,335  
 

Income tax (benefit) expense

    (2,712 )   2,826     (439 )   9,967  
 

Depreciation and amortization expense

    108,712     126,513     225,802     254,013  
 

LIFO charges

    20,001     20,528     40,002     41,056  
 

Lease termination and impairment charges

    15,118     26,360     32,208     39,817  
 

Stock-based compensation expense

    3,952     4,250     7,523     9,735  
 

Gain on sale of assets, net

    (848 )   (3,973 )   (5,640 )   (3,736 )
 

(Gain) loss on debt modifications and retirements, net

    (4,924 )   44,003     17,510     44,003  
 

Closed facility liquidation expense

    985     1,811     3,632     4,233  
 

Severance costs

    305         256     10  
 

Customer loyalty card programs revenue deferral

    6,885     15,394     28,751     20,431  
 

Other

    (1,793 )   792     (8,748 )   830  
                   

Adjusted EBITDA

  $ 184,256   $ 181,244   $ 447,110   $ 431,034  
                   

        In addition to Adjusted EBITDA, we occasionally refer to several other Non-GAAP measures, on a less frequent basis, in order to describe certain components of our business and how we utilize them to describe our results. These measures include but are not limited to EBITDA Gross Margin (gross margin adjusted for non-EBITDA items), EBITDA SG&A (SG&A expenses adjusted for non-EBITDA items), FIFO Gross Margin (gross margin before LIFO charges) and Free Cash Flow (Adjusted EBITDA less cash paid for interest, rent on closed stores, capital expenditures and the change in working capital).

        We include these non-GAAP financial measures in our earnings announcements and guidance in order to provide transparency to our investors and enable investors to better compare our operating performance with the operating performance of our competitors including with those of our competitors having different capital structures. Adjusted EBITDA or other non-GAAP measures should not be considered in isolation from, and is not intended to represent an alternative measure of, operating results or of cash flows from operating activities, as determined in accordance with GAAP. Our definition of these non-GAAP measures may not be comparable to similarly titled measurements reported by other companies.

32


Table of Contents

ITEM 3.    Quantitative and Qualitative Disclosures About Market Risk

        Our future earnings, cash flow and fair values relevant to financial instruments are dependent upon prevalent market rates. Market risk is the risk of loss from adverse changes in market prices and interest rates. Our major market risk exposure is changing interest rates. Increases in interest rates would increase our interest expense. We enter into debt obligations to support capital expenditures, acquisitions, working capital needs and general corporate purposes. Our policy is to manage interest rates through the use of a combination of variable-rate credit facilities, fixed-rate long-term obligations and derivative transactions. We currently do not have any derivative transactions outstanding.

        The table below provides information about our financial instruments that are sensitive to changes in interest rates. The table presents principal payments and the related weighted average interest rates by expected maturity dates as of August 27, 2011.

 
  2012   2013   2014   2015   2016   Thereafter   Total   Fair Value
at
08/27/2011
 
 
  (dollars in thousands)
 

Long-term debt, including current portion

                                                 

Fixed rate

  $ 5,179   $ 114   $ 186,355   $   $ 928,188   $ 3,533,000   $ 4,652,836   $ 4,252,896  

Average Interest Rate

    1.19 %   7.00 %   6.95 %   0.00 %   8.94 %   8.90 %   8.82 %      

Variable Rate

  $   $   $ 2,971   $ 1,044,692   $ 76,430   $ 326,708   $ 1,450,801   $ 1,302,093  

Average Interest Rate

    0.0 %   0.0 %   1.96 %   1.97 %   5.46 %   4.50 %   2.72 %      

Total

  $ 5,179   $ 114   $ 189,326   $ 1,044,692   $ 1,004,618   $ 3,859,708   $ 6,103,637   $ 5,554,989  

        Our ability to satisfy interest payment obligations on our outstanding debt will depend largely on our future performance, which, in turn, is subject to prevailing economic conditions and to financial, business and other factors beyond our control. If we do not have sufficient cash flow to service our interest payment obligations on our outstanding indebtedness and if we cannot borrow or obtain equity financing to satisfy those obligations, our business and results of operations could be materially adversely affected. We cannot be assured that any replacement borrowing or equity financing could be successfully completed.

        The interest rate on our variable rate borrowings, which include our revolving credit facility and our Tranche 2 Term loans and Tranche 5 Term loans, are all based on LIBOR. However, the interest rate on our Tranche 5 Term loans has a LIBOR floor of 125 basis points. If the market rates of interest for LIBOR changed by 100 basis points as of August 27, 2011, our annual interest expense would change by approximately $10.4 million.

        A change in interest rates generally does not have an impact upon our future earnings and cash flow for fixed-rate debt instruments. As fixed-rate debt matures, however, and if additional debt is acquired to fund the debt repayment, future earnings and cash flow may be affected by changes in interest rates. This effect would be realized in the periods subsequent to the periods when the debt matures.

ITEM 4.    Controls and Procedures

    (a)
    Disclosure Controls and Procedures

        Our management, with the participation of our Chief Executive Officer and Chief Financial Officer, has evaluated the effectiveness of disclosure controls and procedures (as such term is defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) as of the end of the period covered by this report. Based on such evaluation, our Chief Executive Officer and Chief Financial Officer have concluded that, as of the end of such period, our disclosure controls and procedures are effective.

33


Table of Contents

    (b)
    Changes in Internal Control over Financial Reporting

        There have not been any changes in our internal control over financial reporting (as such term is defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) during the fiscal quarter to which this report relates that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.


PART II. OTHER INFORMATION

ITEM 1.    Legal Proceedings

        While we cannot predict with certainty the timing or outcome of the legal matters described below, we do not believe that any of these matters will have a material adverse effect on our business or financial condition. We cannot give assurance, however, that an unfavorable outcome in one or more of these matters will not have a material adverse effect on our results of operations for the period in which they are resolved.

        We are currently a defendant in several putative collective or class action lawsuits filed in federal or state courts in several states, including Pennsylvania, New Jersey, New York, Maryland, Massachusetts, Maine, Washington and Oregon, purportedly on behalf of, in some cases (i) current and former assistant store managers or (ii) current and former store managers and assistant store managers, respectively, working in our stores at various locations. The lawsuits allege violations of the Fair Labor Standards Act and of certain state wage and hour statutes. The lawsuits seek various combinations of unpaid compensation (including overtime compensation), liquidated damages, exemplary damages, pre-and post-judgment interest as well as attorneys' fees and costs. In one of the cases, Craig et al v. Rite Aid Corporation et al , pending in the United States District Court for the Middle District of Pennsylvania, brought on behalf of current and former assistant store managers, the Court, on December 9, 2009, conditionally certified a nationwide collective group of individuals who worked for us as assistant store managers since December 9, 2006. Notice of the Craig action has been sent to the purported members of the collective group (approximately 6,700 current and former assistant store managers) and approximately 1,100 have joined the Craig action. In another of the cases, Indergit v. Rite Aid Corporation et al , pending in the United States District Court for the Southern District of New York, brought on behalf of current and former store managers and assistant store managers, the Court, on April 2, 2010, conditionally certified a nationwide collective group of individuals who worked for us as store managers since March 31, 2007. The Court ordered that Notice of the Indergit action be sent to the purported members of the collective group (approximately 7,000 current and former store managers) and approximately 1,550 have joined the Indergit action. At this time, we are not able to predict the outcome of these lawsuits, or any possible monetary exposure associated with the lawsuits. Our management believes, however, that the lawsuits are without merit and not appropriate for collective or class action treatment. We are vigorously defending all of these claims.

        We are currently a defendant in several putative class action lawsuits filed in state courts in California alleging violations of California wage and hour laws pertaining primarily to pay for missed meals and rest periods. These suits purport to be class actions and seek substantial damages. At this time, we are not able to predict the outcome of these lawsuits, or any possible monetary exposure associated with the lawsuits. Our management believes, however, that the plaintiffs' allegations are without merit and that their claims are not appropriate for class action treatment. We are vigorously defending all of these claims.

        We were served with a United States Department of Health and Human Services Office of the Inspector General ("OIG") subpoena dated March 5, 2010 in connection with an investigation being conducted by the OIG, the United States Attorney's Office for the Central District of California and the United States Department of Justice Commercial Litigation Branch. The subpoena requests records related to any gift card or similar programs for customers who transferred prescriptions for drugs or

34


Table of Contents


medicines to the our pharmacies, and whether any customers who receive federally funded prescription benefits (e.g. Medicare and Medicaid) may have benefited from those programs. We are in the process of completing its production of records in response to the subpoena and are unable to predict with certainty the timing or outcome of any review by the government of such information.

        We received a subpoena dated May 9, 2011 from certain California counties seeking information regarding compliance with environmental regulations governing the management of hazardous waste. We are completing its production of records in response to the subpoena. We are unable to predict with certainty the timing or outcome of any review by the government of such information.

        We were served with a Civil Investigative Demand Subpoena Duces Tecum dated August 26, 2011 by the United States Attorney's Office for the Eastern District of Michigan. The subpoena requests records regarding the relationship of Rite Aid's Rx Savings Program to the reporting of usual and customary charges to publicly funded health programs. We are in the process of communicating with the U.S. Attorney's Office regarding the scope of the subpoena and are unable to predict with certainty the timing or outcome of any review by the government of such information.

        We are subject from time to time to various claims and lawsuits and governmental investigations arising in the ordinary course of our business. While our management cannot predict the outcome of these claims with certainty, our management does not believe that the outcome of any of these legal matters will have a material adverse effect on its business, consolidated results of operations or financial position.

ITEM 1A.    Risk Factors

        In addition to the information set forth in this Quarterly Report, you should carefully consider the factors discussed in "Part I, Item 1A, Risk Factors" in our Annual Report on Form 10-K, for the year ended February 26, 2011 which could materially affect our business, financial condition or future results.

ITEM 2.    Unregistered Sales of Equity Securities and Use of Proceeds

        Issuer Repurchases of Equity Securities.     The table below is a listing of repurchases of Common Stock during the second quarter of fiscal 2012.

Fiscal period:
  Total Number of
Shares Repurchased
  Average Price
Paid Per Share
  Total Number of Shares
Purchased as Part of
Publicly Announced
Plans or Programs
  Maximum Number of
Shares that may yet be
Purchased under the
Plans or Programs
 

May 29 to June 25, 2011(1)

    756,025   $ 1.18          
                   

June 26 to July 23, 2011

                 
                   

July 24 to August 27, 2011

                 
                   

(1)
Represents shares withheld by the Company, at the election of certain holders of vested restricted stock, with a market value approximating the amount of withholding taxes due.

ITEM 3.    Defaults Upon Senior Securities

        Not applicable.

ITEM 4.    Removed and Reserved

ITEM 5.    Other Information

        Not applicable.

35


Table of Contents

ITEM 6.    Exhibits

    (a)
    The following exhibits are filed as part of this report.

Exhibit
Numbers
  Description   Incorporation By Reference To
  2.1   Amended and Restated Stockholder Agreement, dated August 23, 2006, amended and restated as of June 4, 2007, by and between Rite Aid Corporation, The Jean Coutu Group (PJC) Inc., Jean Coutu, Marcelle Coutu, Francois J. Coutu, Michel Coutu, Louis Coutu, Sylvie Coutu and Marie-Josee Coutu   Exhibit 2.2 to Form 10-Q, filed on July 12, 2007

 

2.2

 

Letter Agreement to the Amended and Restated Stockholder Agreement, dated April 20, 2010, by and between Rite Aid Corporation and The Jean Coutu Group (PJC) Inc.

 

Exhibit 2.2 to Form 10-Q, filed on July 6, 2010

 

2.3

 

Registration Rights Agreement, dated August 23, 2006, by and between Rite Aid Corporation and The Jean Coutu Group (PJC) Inc.

 

Exhibit 10.2 to Form 8-K, filed on August 24, 2006

 

3.1

 

Restated Certificate of Incorporation, dated December 12, 1996

 

Exhibit 3(i) to Form 8-K, filed on November 2, 1999

 

3.2

 

Certificate of Amendment to the Restated Certificate of Incorporation, dated February 22, 1999

 

Exhibit 3(ii) to Form 8-K, filed on November 2, 1999

 

3.3

 

Certificate of Amendment to the Restated Certificate of Incorporation, dated June 27, 2001

 

Exhibit 3.4 to Registration Statement on Form S-1, File No. 333-64950, filed on July 12, 2001

 

3.4

 

Certificate of Amendment to the Restated Certificate of Incorporation, dated June 4, 2007

 

Exhibit 4.4 to Registration Statement on Form S-8, File No. 333-146531, filed on October 5, 2007

 

3.5

 

Certificate of Amendment to the Restated Certificate of Incorporation, dated June 25, 2009

 

Exhibit 3.1 to Form 10-Q, filed on July 8, 2009

 

3.6

 

7% Series G Cumulative Convertible Pay-in-Kind Preferred Stock Certificate of Designation dated January 28, 2005

 

Exhibit 3.2 to Form 8-K, filed on February 2, 2005

 

3.7

 

6% Series H Cumulative Convertible Pay-in-Kind Preferred Stock Certificate of Designation dated January 28, 2005

 

Exhibit 3.3 to Form 8-K, filed on February 2, 2005

 

3.8

 

Amended and Restated By-Laws

 

Exhibit 3.1 to Form 8-K, filed on January 27, 2010

36


Table of Contents

Exhibit
Numbers
  Description   Incorporation By Reference To
  4.1   Indenture, dated August 1, 1993, by and between Rite Aid Corporation, as issuer, and Morgan Guaranty Trust Company of New York, as trustee, related to the Company's 7.70% Notes due 2027 and 6.875% Notes due 2013   Exhibit 4A to Registration Statement on Form S-3, File No. 033-63794, filed on June 3, 1993

 

4.2

 

Supplemental Indenture dated as of February 3, 2000, between Rite Aid Corporation, as issuer, and U.S. Bank Trust National Association as successor to Morgan Guaranty Trust Company of New York, to the Indenture dated as of August 1, 1993, relating to the Company's 7.70% Notes due 2027 and 6.875% Notes due 2013

 

Exhibit 4.1 to Form 8-K filed on February 7, 2000

 

4.3

 

Indenture, dated as of December 21, 1998, between Rite Aid Corporation, as issuer, and Harris Trust and Savings Bank, as trustee, related to the Company's 6.875% Notes due 2028

 

Exhibit 4.1 to Registration Statement on Form S-4, File No. 333-74751, filed on March 19, 1999

 

4.4

 

Supplemental Indenture, dated as of February 3, 2000, between Rite Aid Corporation and Harris Trust and Savings Bank, to the Indenture dated December 21, 1998, between Rite Aid Corporation and Harris Trust and Savings Bank, related to the Company's 6.875% Notes due 2028

 

Exhibit 4.4 to Form 8-K filed on February 7, 2000

 

4.5

 

Indenture, dated as of May 20, 2003, between Rite Aid Corporation, as issuer, and BNY Midwest Trust Company, as trustee, related to the Company's 9.25% Senior Notes due 2013

 

Exhibit 4.12 to Form 10-Q, filed on July 3, 2003

 

4.6

 

Supplemental Indenture, dated as of June 4, 2007, among Rite Aid Corporation, the subsidiaries named therein and The Bank of New York Trust Company, N.A. to the Indenture, dated as of May 20, 2003, between Rite Aid Corporation and BNY Midwest Trust Company, related to the Company's 9.25% Senior Secured Notes due 2013

 

Exhibit 4.8 to Form 10-Q, filed on January 9, 2008

37


Table of Contents

Exhibit
Numbers
  Description   Incorporation By Reference To
  4.7   Second Supplemental Indenture, dated as of June 17, 2008, between Rite Aid Corporation, the subsidiaries named therein and The Bank of New York Trust Company, N.A., as successor trustee, to the Indenture dated as of May 20, 2003, between Rite Aid Corporation and BNY Midwest Trust Company, related to the Company's 9.25% Senior Secured Notes due 2013   Exhibit 4.10 to Form 10-Q, filed on July 10, 2008

 

4.8

 

Indenture, dated as of February 21, 2007, among Rite Aid Corporation, as issuer, the subsidiary guarantors named therein and The Bank of New York Trust Company, N.A., as trustee, related to the Company's 7.5% Senior Secured Notes due 2017

 

Exhibit 99.1 to Form 8-K, filed on February 26, 2007

 

4.9

 

Supplemental Indenture, dated as of June 4, 2007, among Rite Aid Corporation, the subsidiaries named therein and The Bank of New York Trust Company, N.A. to the Indenture dated as of February 21, 2007, between Rite Aid Corporation and The Bank of New York Trust Company, N.A., related to the Company's 7.5% Senior Secured Notes due 2017

 

Exhibit 4.12 to Form 10-Q, filed on January 9, 2008

 

4.10

 

Second Supplemental Indenture, dated as of July 9, 2008, among Rite Aid Corporation, the subsidiaries named therein and The Bank of New York Mellon Trust Company, N.A., as successor trustee, to the Indenture, dated as of February 15, 2007, between Rite Aid Corporation and The Bank of New York Trust Company, N.A., related to the Company's 7.5% Senior Secured Notes due 2017

 

Exhibit 4.13 to Form 10-Q, filed on July 10, 2008

 

4.11

 

Indenture, dated as of February 21, 2007, between Rite Aid Corporation, as issuer, and The Bank of New York Trust Company, N.A., as trustee, related to the Company's 8.625% Senior Notes due 2015

 

Exhibit 99.2 to Form 8-K, filed on February 26, 2007

38


Table of Contents

Exhibit
Numbers
  Description   Incorporation By Reference To
  4.12   Supplemental Indenture, dated as of June 4, 2007, among Rite Aid Corporation, the subsidiaries named therein and The Bank of New York Trust Company, N.A. to the Indenture, dated as of February 21, 2007, between Rite Aid Corporation and The Bank of New York Trust Company, N.A., related to the Company's 8.625% Senior Secured Notes due 2015   Exhibit 4.14 to Form 10-Q, filed on January 9, 2008

 

4.13

 

Second Supplemental Indenture, dated as of July 9, 2008, among Rite Aid Corporation, the subsidiaries named therein and The Bank of New York Mellon Trust Company, N.A., as successor trustee, to the Indenture, dated as of February 15, 2007, between Rite Aid Corporation and The Bank of New York Trust Company, N.A., related to the Company's 8.625% Senior Notes due 2015

 

Exhibit 4.16 to Form 10-Q, filed on July 10, 2008

 

4.14

 

Amended and Restated Indenture, dated as of June 4, 2007, among Rite Aid Corporation (as successor to Rite Aid Escrow Corp.), the subsidiary guarantors named therein and The Bank of New York Trust Company, N.A., as Trustee, related to the Company's 9.375% Senior Notes due 2015

 

Exhibit 4.1 to Form 8-K, filed on June 6, 2007

 

4.15

 

First Supplemental Indenture, dated as of July 9, 2008, among Rite Aid Corporation, the subsidiaries named therein and The Bank of New York Mellon Trust Company, N.A. to the Amended and Restated Indenture, dated as of June 4, 2007, among Rite Aid Corporation (as successor to Rite Aid Escrow Corp.), the subsidiary guarantors named therein and The Bank of New York Trust Company, N.A., related to the Company's 9.375% Senior Notes due 2015

 

Exhibit 4.18 to Form 10-Q, filed on July 10, 2008

 

4.16

 

Amended and Restated Indenture, dated as of June 4, 2007, among Rite Aid Corporation (as successor to Rite Aid Escrow Corp.), the subsidiary guarantors named therein and The Bank of New York Trust Company, N.A., as Trustee, related to the Company's 9.5% Senior Notes due 2017

 

Exhibit 4.2 to Form 8-K, filed on June 6, 2007

39


Table of Contents

Exhibit
Numbers
  Description   Incorporation By Reference To
  4.17   First Supplemental Indenture, dated as of July 9, 2008, among Rite Aid Corporation, the subsidiaries named therein and The Bank of New York Mellon Trust Company, N.A., as successor trustee, to the Amended and Restated Indenture, dated as of June 4, 2007, among Rite Aid Corporation (as successor to Rite Aid Escrow Corp.), the subsidiary guarantors named therein and The Bank of New York Trust Company, N.A., related to the Company's 9.5% Senior Notes due 2017   Exhibit 4.20 to Form 10-Q, filed on July 10, 2008

 

4.18

 

Indenture, dated as of May 29, 2008, between Rite Aid Corporation, as issuer, and The Bank of New York Trust Company, N.A., as trustee, related to the Company's Senior Debt Securities

 

Exhibit 4.1 to Form 8-K, filed on June 2, 2008

 

4.19

 

First Supplemental Indenture, dated as of May 29, 2008, among Rite Aid Corporation, the subsidiaries named therein and The Bank of New York Trust Company, N.A. to the Indenture dated as of May 29, 2008 between Rite Aid Corporation and The Bank of New York Trust Company, N.A., related to the Company's 8.5% Convertible Notes due 2015

 

Exhibit 4.2 to Form 8-K, filed on June 2, 2008

 

4.20

 

Indenture, dated as of July 9, 2008, between Rite Aid Corporation, as issuer, and The Bank of New York Mellon Trust Company, N.A., as trustee, related to the Company's 10.375% Senior Secured Notes due 2016

 

Exhibit 4.23 to Form 10-Q, filed on July 10, 2008

 

4.21

 

Indenture, dated as of June 12, 2009, among Rite Aid Corporation, as issuer, the subsidiary guarantors named therein and The Bank of New York Mellon Trust Company, N.A., as trustee, related to the Company's 9.750% Senior Secured Notes due 2016

 

Exhibit 4.1 to Form 8-K, filed on June 16, 2009

 

4.22

 

Indenture, dated as of October 26, 2009, among Rite Aid Corporation, as issuer, the subsidiary guarantors named therein and The Bank of New York Mellon Trust Company, N.A., as trustee, related to the Company's 10.25% Senior Secured Notes due 2019.

 

Exhibit 4.1 to Form 8-K, filed on October 29, 2009

40


Table of Contents

Exhibit
Numbers
  Description   Incorporation By Reference To
  4.23   Indenture, dated as of August 16, 2010, among Rite Aid Corporation, as issuer, the subsidiary guarantors named therein and The Bank of New York Mellon Trust Company, N.A., as trustee, related to the Company's 8.00% Senior Secured Notes due 2020   Exhibit 4.1 to Form 8-K, filed on August 19, 2010

 

10.1

 

Amended and Restated Employment Agreement, dated as of June 23, 2011, between Rite Aid Corporation and Enio A. Montini, Jr.

 

Filed herewith

 

10.2

 

Amended and Restated Employment Agreement, dated as of July 11, 2011, between Rite Aid Corporation and Robert K. Thompson.

 

Filed herewith

 

11

 

Statement regarding computation of earnings per share. (See Note 2 to the condensed consolidated financial statements)

 

Filed herewith

 

31.1

 

Certification of CEO pursuant to Rule 13a-14(a) or Rule 15d-14(a) under the Securities Exchange Act of 1934, as amended

 

Filed herewith

 

31.2

 

Certification of CFO pursuant to Rule 13a-14(a) or Rule 15d-14(a) under the Securities Exchange Act of 1934, as amended

 

Filed herewith

 

32

 

Certification of CEO and CFO pursuant to 18 United States Code, Section 1350, as enacted by Section 906 of the Sarbanes-Oxley Act of 2002

 

Filed herewith

 

101.

 

The following materials are formatted in Extensible Business Reporting Language (XBRL): (i) Condensed Consolidated Balance Sheets at May 28, 2011 and February 26, 2011, (ii) Condensed Consolidated Statements of Operations for the thirteen week periods ended May 28, 2011 and May 29, 2010, (iii) Condensed Consolidated Statements of Cash Flow for the thirteen week periods ended May 28, 2011 and May 29, 2010, and (iv) Notes to Condensed Consolidated Financial Statements tagged as block text.*

 

 

*
Furnished, not filed.

41


Table of Contents


SIGNATURES

        Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

Date: October 5, 2011   RITE AID CORPORATION

 

 

By:

 

/s/ MARC A. STRASSLER

Marc A. Strassler
Executive Vice President and General Counsel

Date: October 5, 2011

 

By:

 

/s/ FRANK G. VITRANO

Frank G. Vitrano
Senior Executive Vice President, Chief Financial Officer and Chief Administrative Officer

42




Exhibit 10.1

 

EMPLOYMENT AGREEMENT

 

THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the “Agreement”) is entered into as of the 23 rd  day of June, 2011 by and between Rite Aid Corporation, a Delaware corporation (the “Company”) and Enio A. Montini, Jr. (the “Executive”).

 

WHEREAS , prior to April 21, 2011, Executive was employed by the Company as a Senior Vice President;

 

WHEREAS , the Company desires to promote Executive to the position of Executive Vice President on the terms and subject to the conditions set forth herein.

 

NOW, THEREFORE , in consideration of the mutual representations, warranties, covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and Executive (individually a “Party” and together the “Parties”), intending to be legally bound, agree as follows:

 

1.              Term Of Employment .

 

The term of Executive’s employment under this Agreement commenced on February 15, 2010 (“the Effective Date”) and, unless earlier terminated pursuant to Section 5 below, shall continue for a period ending on the date that is two (2) years following the Effective Date (the “Original Term of Employment”).  The Original Term of Employment shall be automatically renewed for successive two (2) year terms (the “Renewal Terms”) unless at least 120 days prior to the expiration of the Original Term of Employment or any Renewal Term, either Party notifies the other Party in writing that he or it is electing to terminate this Agreement at the expiration of the then current Term of Employment.  “Term” shall mean the Original Term of Employment and all Renewal Terms.  For purposes of this Agreement, except as otherwise provided herein, the phrases “year during the Term” or similar language shall refer to each twelve (12) month period commencing on the Effective Date or applicable anniversaries thereof.

 

2.              Position And Duties.

 

2.1           Generally During the Term from and after April 21, 2011 (the “Promotion Date”), Executive shall serve as an Executive Vice President of the Company and shall have such officer level duties, responsibilities and authority as shall be assigned by the Company from time to time.  Executive shall devote his full working time, attention, knowledge and skills faithfully and to the best of his ability, to the duties and responsibilities assigned by the Company in furtherance of the business affairs and activities of the Company and its subsidiaries, affiliates and strategic partners.  Following termination of Executive’s employment for any reason, Executive shall immediately resign from all offices and positions he holds with the Company or any subsidiary.

 

1



 

2.2           Other Activities.   Anything herein to the contrary notwithstanding, nothing in this Agreement shall preclude the Executive from engaging in the following activities:  (i) serving on the board of directors of a reasonable number of other corporations or the boards of a reasonable number of trade associations and/or charitable organizations, subject to the Company’s approval, which shall not be unreasonably withheld, (ii) engaging in charitable activities and community affairs, and (iii) managing his personal investments and affairs, provided that such activities do not violate Sections 6 or 7 below or materially interfere with the proper performance of his duties and responsibilities under this Agreement.  Executive shall at all times be subject to, observe and carry out such rules, regulations, policies, directions, and restrictions as the Company may from time to time establish for officers of the Company.

 

3.              Compensation .

 

3.1           Base Salary During the Term beginning on the Promotion Date, as compensation for his services hereunder, Executive shall receive a salary at the annualized rate of Four Hundred Thousand Dollars ($400,000.00) per year (“Base Salary” as may be adjusted from time to time), which shall be paid in accordance with the Company’s normal payroll practices and procedures, less such deductions or offsets required by applicable law or otherwise authorized by Executive.

 

3.2           Annual Performance Bonus The Executive shall participate each fiscal year during the Term in the Company’s annual bonus plan as adopted and approved by the Board of Directors (the “Board”) or the Compensation Committee of the Board (the “Compensation Committee”) from time to time.  For Fiscal Year 2012 (“FY 2012”), Executive’s annual bonus opportunity pursuant to such plan shall equal sixty percent (60%) (the “Annual Target Bonus”) of the Base Salary.  For subsequent fiscal years, the Annual Target Bonus may be adjusted and shall be based upon the Board approved plan for that year.

 

3.3           Equity Awards .

 

(a)  On February 17, 2010, Executive was granted an option (the “Option”) to purchase 250,000 shares of the Company’s Common Stock, par value $1.00 per share (“Company Stock”).  The Option (i) is a nonqualified stock option, (ii) has an exercise price equal to the closing price of the Company Stock as reported on the New York Stock Exchange (“NYSE”) on the date of grant, (iii) has a term of ten (10) years following the date of grant, (iv) vests and becomes exercisable as to one-fourth (1/4) of the shares of the Company Stock subject to the option on each of the first four (4) anniversaries from the date of grant, (v) is subject to the acceleration exercise and termination provisions set forth in Section 3.3(b) and Article 5 hereof and (vi) otherwise is evidenced by and subject to the terms of the Company’s stock option and equity plans.

 

(b) Upon the occurrence of a Change in Control of the Company prior to the termination of Executive’s employment with the Company, the Option awarded

 

2



 

pursuant to subsection 3.3(a) above then held by Executive shall immediately vest and become exercisable in full.  For purposes of this Agreement, “Change in Control” shall have the meaning set forth in the attached Appendix A.

 

(c)  It is understood and acknowledged by Executive that the securities underlying any stock options and the restricted stock awarded Executive may not be subject to an effective registration statement under the federal securities laws until sometime after the Effective Date.  The Company agrees that if, as of the date of termination of Executive’s employment under the circumstances described in Sections 5.2 (except termination for Cause), 5.3 and 5.5, the securities underlying the then vested and exercisable portion of any stock options are not subject to an effective registration statement, the ninety (90) day periods in Section 5.2 (except termination for Cause), 5.3 and 5.5, as applicable, will be deemed to run from the first date such securities become subject to an effective registration statement.

 

4.              Additional Benefits .

 

4.1           Employee Benefits During the Term, Executive shall be entitled to participate in the employee benefit plans (including, but not limited to medical, dental and life insurance plans, short-term and long-term disability coverage, the Supplemental Executive Retirement Plan and 401(k) plans) in which management employees of the Company are generally eligible to participate, subject to any eligibility requirements and the other generally applicable terms of such plans.

 

4.2           Expenses During the Term, the Company shall reimburse Executive for any expenses reasonably incurred by him in furtherance of his duties hereunder, including without limitation travel, meals and accommodations, upon submission of vouchers or receipts and in compliance with such rules and policies relating thereto as the Company may from time to time adopt or as may be required in order to permit such payments to be taken as proper deductions by the Company or any subsidiary under the Internal Revenue Code of 1986, as amended, and the rules and regulations adopted pursuant thereto now or hereafter in effect.

 

4.3           Vacation Executive shall be entitled to four (4) weeks paid vacation during each year of the Term.

 

4.4           Automobile Allowance During the Term, the Company shall provide Executive with an automobile allowance of One Thousand Dollars ($1,000.00) per month.

 

4.5           Annual Financial Planning Allowance .   During each year of the Term, the Company shall provide Executive with an executive planning allowance in the amount of Five Thousand Dollars ($5,000.00).

 

4.6          Relocation Expenses .  Executive shall be entitled to benefits under the Company’s Executive Level Relocation Policy as from time to time in effect.

 

3



 

4.7           Indemnification The Company shall (a) indemnify and hold Executive harmless, to the full extent permitted under applicable law, for, from and against any and all losses, claims, costs, expenses, damages, liabilities or actions (including security holder actions, in respect thereof) relating to or arising out of the Executive’s employment with and service as an Officer of the Company; and (b) pay all reasonable costs, expenses and attorney’s fees incurred by Executive in connection with or relating to the defense of any such loss, claim, cost, expense, damage, liability or action, subject to Executive’s undertaking to repay in the event it is ultimately determined that Executive is not entitled to be indemnified by the Company.  Following termination (except for termination by the Company for Cause) of the Executive’s employment or service with the Company, the Company shall cause any Director and Officer liability insurance policies applicable to the Executive prior to such termination to remain in effect for six (6) years following the date of termination of employment.

 

5.              Termination .

 

5.1           Termination of Executive’s Employment by the Company for Cause .   The Company may terminate Executive’s employment hereunder for Cause (as defined below).  Such termination shall be effected by written notice thereof delivered by the Company to Executive, indicating in reasonable detail the facts and circumstances alleged to provide a basis for such termination, and shall be effective as of the date of such notice in accordance with Section 12 hereof.  “Cause” as determined in reasonable good faith by a committee comprised of three (3) senior officers (one of which shall be Executive’s supervisor) of the Company or the Board of Directors shall mean:  (i) Executive’s gross negligence or willful misconduct in the performance of the duties or responsibilities of his position with the Company or any subsidiary, or failure to timely carry out any lawful directive of the Company; (ii) Executive’s misappropriation of any funds or property of the Company or any subsidiary; (iii) the conduct by Executive which is a material violation of this Agreement or Company Policy or which materially interferes with the Executive’s ability to perform his duties; (iv) the commission by Executive of an act of fraud or dishonesty toward the Company or any subsidiary; (v) Executive’s misconduct or negligence which damages or injures the Company or the Company’s reputation; (vi) Executive is convicted of or pleads to a felony involving moral turpitude; or (vii) the use or imparting by Executive of any confidential or proprietary information of the Company, or any subsidiary in violation of any confidentiality or proprietary agreement to which Executive is a party.

 

5.2           Compensation upon Termination by the Company for Cause or by Executive without Good Reason .   In the event of Executive’s termination of employment (i) by the Company for Cause or (ii) by Executive voluntarily without Good Reason:

 

(a)            Executive shall be entitled to receive (i) all amounts of accrued but unpaid Base Salary through the effective date of such termination, (ii) reimbursement for reasonable and necessary expenses incurred by Executive through the date of notice of such termination, to the extent otherwise provided under Section 4.2 above and (iii) all other vested payments and benefits to which Executive may otherwise be entitled pursuant to the terms of the applicable benefit plan or arrangement through the effective date of

 

4



 

such termination ((i), (ii) and (iii), the (“Accrued Benefits”)).  All other rights of Executive (and, except as provided in Section 5.6 below, all obligations of the Company) hereunder or otherwise in connection with Executive’s employment with the Company shall terminate effective as of the date of such termination of employment and Executive shall not be entitled to any payments or benefits not specifically described in this subsection (a) or (b) below.

 

(b)            Except as provided in Section 3.3(c), any portion of any restricted stock or any other equity incentive awards as to which the restrictions have not lapsed or as to which any other conditions shall not have been satisfied prior to the date of termination shall be forfeited as of such date and any portion of Executive’s stock options that have vested and become exercisable prior to the date of termination shall remain exercisable for a period of ninety (90) days following the date of termination of employment (or, such later date as may be permitted by the relevant stock option or equity plan, or, if earlier, until the expiration of the respective terms of the options), whereupon all such options shall terminate; provided, however, in the event of termination of Executive by the Company for Cause, any stock options that have not been exercised prior to the date of termination shall immediately terminate as of such date.

 

Any termination of Executive’s employment by Executive voluntarily without Good Reason shall be effective upon thirty (30) days notice to the Company or such earlier date as the Company determines in its discretion and designates in writing.  A termination of Executive’s employment by the Company for Cause or by the Executive other than for Good Reason shall not constitute a breach of this Agreement.

 

5.3           Compensation upon Termination of Executive’s Employment by the Company Other Than for Cause or by Executive for Good Reason .  Executive’s employment hereunder may be terminated by the Company other than for Cause or by Executive for Good Reason.  In the event that Executive’s employment hereunder is terminated by the Company other than for Cause or by Executive for Good Reason:

 

(a)             Executive shall be entitled to receive (i) the Accrued Benefits, (ii) an amount equal to two (2) years of Executive’s then Base Salary as of the date of termination of employment, such amount payable in equal installments pursuant to the Company’s standard payroll procedures for management employees over a period of two (2) years following the date of termination of employment, and (iii) continued health insurance coverage for Executive and his immediate family for a period of two (2) years following the date of termination of employment.

 

(b)            The Executive’s stock option awards held by Executive shall vest and become immediately exercisable and the restrictions with respect to any awards of restricted stock shall lapse, in each case to the extent such options would otherwise have become vested and exercisable (or such restrictions would have lapsed) had Executive remained in the employ of the Company for a period of two (2) years following the date of termination.  Except as provided in Section 3.3(c), such portion of Executive’s stock options (together with any portion of Executive’s stock options that have vested and

 

5



 

become exercisable prior to the date of termination) shall remain exercisable for a period of ninety (90) days following the date of termination of employment (or, such later date as may be permitted by the relevant stock option or equity plan, or, if earlier, until the expiration of the respective terms of the options), whereupon all such options shall terminate.  Any remaining portion of Executive’s stock options that have not vested (or deemed to have vested) as of the date of termination shall terminate as of such date; and all shares of restricted stock as to which the restrictions shall not have lapsed as of the date of termination shall be forfeited as of such date.

 

(c)             All other rights of Executive (and, except as provided in Section 5.6 below, all obligations of the Company) hereunder or otherwise in connection with Executive’s employment with the Company shall terminate effective as of the date of such termination of employment and Executive shall not be entitled to any payments or benefits not specifically described in 5.3(a) through (c).

 

Any termination of employment pursuant to this Section 5.3 shall be effective upon thirty (30) days notice thereof or the Company may elect in its sole discretion to reduce or eliminate the notice period and pay the Executive his Base Salary for some or all of the notice period in lieu of notice.  A termination of Executive’s employment by the Company other than for Cause or by the Executive for Good Reason shall not constitute a breach of this Agreement.  To be eligible for the payment, benefits and stock rights described in Section 5.3(a)(ii)-(iii), (b) and (c) above, Executive must execute, not revoke and abide by a release of all other claims, cooperate in the event of litigation and fully comply with Executive’s obligations under Sections 6 and 7 below.

 

5.4            Definition of Good Reason For purposes of this Agreement, “Good Reason” shall mean the occurrence of any one of the following:

 

(a)            the assignment to Executive of any duties or responsibilities materially inconsistent with Executive’s status as an officer of the Company; or

 

(b)            any decrease in Executive’s then Base Salary as set forth in Section 3.1 to which Executive has not agreed in writing; or

 

(c)            a material breach by the Company of this Agreement

 

provided, however, that in each such case the Company shall have the right, within thirty (30) days after receipt of written notice (which shall set forth in reasonable detail the specific conduct of Company that constitutes Good Reason and the specific provision(s) of this Agreement on which Executive relies) from Executive of the Company’s violation of any of the foregoing, to cure the event or circumstances giving rise to such Good Reason and in the event of which cure, such event or circumstances shall not constitute Good Reason hereunder.

 

5.5           Compensation upon Termination of Executive’s Employment by Reason of Executive’s Death or Total Disability In the event that Executive’s

 

6



 

employment with the Company is terminated by reason of Executive’s death or Total Disability (as defined below):

 

(a)            Executive or Executive’s estate, as the case may be, shall be entitled to receive (i) the Accrued Benefits, (ii) any other benefits payable under the then current disability and/or death benefit plans, as applicable, in which Executive is a participant and (iii) continued health insurance coverage for Executive and/or his immediate family, as applicable, for a period of one (1) year following the date of termination of employment.

 

(b)            All stock option awards held by Executive shall vest and become immediately exercisable and the restrictions with respect to any awards of Restricted Stock shall lapse, in each case to the extent such options would otherwise have become vested and exercisable (or such restrictions would have lapsed) had Executive remained in the employ of the Company for a period of two (2) years following the date of termination.  Except as provided in Section 3.3(c) such portion of Executive’s stock options (together with any portion of Executive’s stock options that have vested and become exercisable prior to the date of termination) shall remain exercisable for a period of ninety (90) days following the date of termination of employment (or, such later date as may be permitted by the relevant stock option or equity plan, or, if earlier, until the expiration of the respective terms of the options), whereupon all such options shall terminate.  Any remaining portion of Executive’s stock options that have not vested (or deemed to have vested) as of the date of termination shall terminate as of such date; and all shares of restricted stock as to which the restrictions shall not have lapsed as of the date of termination shall be forfeited as of such date.

 

(c)            All other rights of Executive (and, except as provided in Section 5.6 below, all obligations of the Company) hereunder or otherwise in connection with Executive’s employment with the Company shall terminate effective as of the date of such termination of employment and Executive shall not be entitled to any payments or benefits not specifically described in Section 5.5(a) through (c).

 

“Total Disability” shall mean any physical or mental disability that prevents Executive from (a)(i) performing one or more of the essential functions of his position for a period of not less than ninety (90) days in any twelve (12) month period and (ii) which is expected to be of permanent or indeterminate duration but expected to last at least twelve (12) continuous months or result in death of the Executive as determined (y) by a physician selected by the Company or its insurer or (z) pursuant to the Company’s benefit programs; or (b) reporting to work for ninety (90) or more consecutive business days or unable to engage in any substantial activity.

 

5.6           Survival In the event of any termination of Executive’s employment, Executive and the Company nevertheless shall continue to be bound by the terms and conditions set forth in Section 4.7 above and Sections 6 through 10 below, which shall survive the expiration of the Term; provided, however, the indemnification obligations in Section 4.7 shall not survive expiration of the Term in the event of termination of Executive’s employment by the Company for Cause.

 

7



 

5.7           Change in Control Best Payments Determination In the event the benefits described in Section 5.3(a) and (b) (the “Severance Benefits”) are payable to Executive in connection with a Change in Control and, if paid, could subject Executive to an excise tax under Section 4999 of the Internal Revenue Code (the “Excise Tax”), then notwithstanding the provisions of Section 5.3 (a) and (b) the Company shall reduce the Severance Benefits (the “Benefit Reduction”) under Section 5.3 (a) and (b) by the amount necessary to result in the Executive not being subject to the Excise Tax if such reduction would result in the Executive’s “Net After Tax Amount” attributable to the Severance Benefits described in Section 5.3 (a) and (b) being greater than it would be if no Benefit Reduction was effected.  For this purpose “Net After Tax Amount” shall mean the net amount of Severance Benefits Executive is entitled to receive under this Agreement after giving effect to all federal, state and local taxes which would be applicable to such payments, including, but not limited to, the Excise Tax.  The determination of whether any such Benefit Reduction shall be effected shall be made by a nationally recognized public accounting firm selected by the Company prior to the occurrence of the Change in Control and such determination shall be binding on both Executive and the Company.

 

5.8           No Other Severance or Termination Benefits Except as expressly set forth herein, Executive shall not be entitled to damages or to any severance or other benefits upon termination of employment with the Company under any circumstances and for any or no reason, including, but not limited to any severance pay under any Company severance plan, policy or practice.

 

6.              Protection of Confidential Information .

 

Executive acknowledges that during the course of his employment with the Company, its subsidiaries, affiliates and strategic partners, he will be exposed to documents and other information regarding the confidential affairs of the Company, its subsidiaries, affiliates and strategic partners, including without limitation information about their past, present and future financial condition, pricing strategy, prices, suppliers, cost information, business and marketing plans, the markets for their products, key personnel, past, present or future actual or threatened litigation, trade secrets, and other intellectual property, current and prospective customer lists, operational methods, acquisition plans, prospects, plans for future development and other business affairs and information about the Company and its subsidiaries, affiliates and strategic partners not readily available to the public (the “Confidential Information”).  Executive further acknowledges that the services to be performed under this Agreement are of a special, unique, unusual, extraordinary and intellectual character.  In recognition of the foregoing, the Executive covenants and agrees as follows:

 

6.1           No Disclosure or Use of Confidential Information At no time shall Executive ever divulge, disclose, or otherwise use any Confidential Information (other than as necessary to perform his duties under this Agreement and in furtherance of the Company’s best interests), unless and until such information is readily available in the

 

8



 

public domain by reason other than Executive’s disclosure or use thereof in violation of the first clause of this Section 6.1.  Executive acknowledges that Company is the owner of, and that Executive has not rights to, any trade secrets, patents, copyrights, trademarks, know-how or similar rights of any type, including any modifications or improvements to any work or other property developed, created or worked on by Executive during the Term of this Agreement.

 

6.2           Return of Company Property, Records and Files Upon the termination of Executive’s employment at any time and for any reason, or at any other time the Board may so direct, Executive shall promptly deliver to the Company’s offices in Harrisburg, Pennsylvania all of the property and equipment of the Company, it subsidiaries, affiliates and strategic partners (including any cell phones, pagers, credit cards, personal computers, etc.) and any and all documents, records and files, including any notes, memoranda, customer lists, reports or any and all other documents, including any copies thereof, whether in hard copy form or on a computer disk or hard drive, which relate to the Company, its subsidiaries, affiliates, strategic partners, successors or assigns, and/or their respective past and present officers, directors, employees or consultants (collectively, the “Company Property, Records and Files”); it being expressly understood that, upon termination of Executive’s employment at any time and for any reason, Executive shall not be authorized to retain any of the Company Property, Records and Files, any copies thereof or excerpts therefrom.

 

7.              Noncompetition and Other Matters .

 

7.1           Noncompetition During the Executive’s employment with the Company and for the one (1) year period immediately following the date of termination of Executive’s employment (the “Restricted Period”), Executive shall not, directly or indirectly, in any city, town, county, parish or other municipality in any state of the United States (the names of each such city, town, parish, or other municipality, including, without limitation, the name of each county in the Commonwealth of Pennsylvania being expressly incorporated by reference herein), or any other place in the world, where the Company, or its subsidiaries, affiliates, strategic partners, successors, or assigns, engages in the ownership, management and operation of retail drugstores (i) engage in a Competing Business for Executive’s own account; (ii) enter the employ of, or render any consulting or contracting services to, any Competing Business; or (iii) become interested in or otherwise associated or connected with any Competing Business in any capacity, including, without limitation, as an individual, partner, shareholder, officer, director, principal, agent, trustee, employee, contractor, consultant or management position with any entity providing consulting services to a Competing Business; provided , however, Executive may (i) own, directly or indirectly, solely as a passive investment, securities of any entity traded on any national securities exchange if Executive is not a controlling person of, or a member of a group which controls such entity and does not, directly or indirectly, own one percent (1%) or more of any class of securities of such entity.  For purposes of this Section 7.1, the phrase “Competing Business” shall mean any entity a majority of whose business involves the ownership and operation of retail or internet based drug stores.

 

9



 

7.2           Noninterference .   During the Restricted Period, Executive shall not, directly or indirectly, solicit, induce, or attempt to solicit or induce any officer, director, employee, agent or consultant of the Company or any of its subsidiaries, affiliates, strategic partners, successors or assigns to terminate his, her or its employment or other relationship with the Company or its subsidiaries, affiliates, strategic partners, successors or assigns for the purpose of associating with any competitor of the Company or its subsidiaries, affiliates, strategic partners, successors or assigns, or otherwise encourage any such person or entity to leave or sever his, her or its employment or other relationship with the Company or its subsidiaries, affiliates, strategic partners, successors or assigns for any other reason.

 

7.3           No Solicitation During the Restricted Period, Executive shall not, directly or indirectly, solicit, induce, or attempt to solicit or induce any customers, clients, vendors, suppliers or consultants then under contract to the Company or its subsidiaries, affiliates, strategic partners, successors or assigns, to terminate, limit or otherwise modify his, her or its relationship with the Company or its subsidiaries, affiliates, strategic partners, successors or assigns, for the purpose of associating with any competitor of the Company or its subsidiaries, affiliates, strategic partners, successors or assigns, or otherwise encourage such customers, clients, vendors, suppliers or consultants then under contract to terminate his, her or its relationship with the Company or its subsidiaries, affiliates, strategic partners, successors or assigns for any reason.  During the Restricted Period, Executive shall not hire, either directly or through any employee, agent or representative, any field and corporate management employee of the Company or any subsidiary or any such person who was employed by the Company or any subsidiary within 180 days of such hiring.

 

8.              Rights and Remedies upon Breach .

 

If Executive breaches, or threatens to commit a breach of, any of the provisions of Sections 6 or 7 above (the “Restrictive Covenants”), the Company and its subsidiaries, affiliates, strategic partners, successors or assigns shall have the following rights and remedies, each of which shall be independent of the others and severally enforceable, and each of which shall be in addition to, and not in lieu of, any other rights or remedies available to the Company or its subsidiaries, affiliates, strategic partners, successors or assigns at law or in equity.

 

8.1           Specific Performance .   The right and remedy to have the Restrictive Covenants specifically enforced by any court of competent jurisdiction by injunctive decree or otherwise, it being agreed that any breach or threatened breach of the Restrictive Covenants would cause irreparable injury to the Company or its subsidiaries, affiliates, strategic partners, successors or assigns and that money damages would not provide an adequate remedy to the Company or its subsidiaries, affiliates, strategic partners, successors or assigns.

 

8.2           Accounting The right and remedy to require Executive to account for and pay over to the Company or its subsidiaries, affiliates, strategic partners, successors or

 

10


 

assigns, as the case may be, all compensation, profits, monies, accruals, increments or other benefits derived or received by Executive as a result of any transaction or activity constituting a breach of any of the Restrictive Covenants.

 

8.3           Severability of Covenants Executive acknowledges and agrees that the Restrictive Covenants are reasonable and valid in geographic and temporal scope and in all other respects.  If any court determines that any of the Restrictive Covenants, or any part thereof, is invalid or unenforceable, the remainder of the Restrictive Covenants shall not thereby be affected and shall be given full force and effect without regard to the invalid portions.

 

8.4           Modification by the Court If any court determines that any of the Restrictive Covenants, or any part thereof, is unenforceable because of the duration or scope of such provision, such court shall have the power (and is hereby instructed by the parties) to modify or reduce the duration or scope of such provision, as the case may be (it being the intent of the parties that any such modification or reduction be limited to the minimum extent necessary to render such provision enforceable), and, in its modified or reduced form, such provision shall then be enforceable.

 

8.5           Enforceability in Jurisdictions Executive intends to and hereby confers jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographic scope of such covenants.  If the courts of any one or more of such jurisdictions hold the Restrictive Covenants unenforceable by reason of the breadth of such scope or otherwise, it is the intention of Executive that such determination not bar or in any way affect the right of the Company or its subsidiaries, affiliates, strategic partners, successors or assigns to the relief provided herein in the courts of any other jurisdiction within the geographic scope of such covenants, as to breaches of such covenants in such other respective jurisdictions, such covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.

 

8.6           Extension of Restriction in the Event of Breach In the event that Executive breaches any of the provisions set forth in this Section 8, the length of time of the Restricted Period shall be extended for a period of time equal to the period of time during which Executive is in breach of such provision.

 

9.              No Violation of Third-Party Rights Executive represents, warrants and covenants that he:

 

(i)             will not, in the course of employment, infringe upon or violate any proprietary rights of any third party (including, without limitation, any third party confidential relationships, patents, copyrights, mask works, trade secrets, or other proprietary rights);

 

(ii)            is not a party to any conflicting agreements with third parties, which will prevent him from fulfilling the terms of employment and the obligations of this Agreement;

 

11



 

(iii)           does not have in his possession any confidential or proprietary information or documents belonging to others and will not disclose to the Company, use, or induce the Company to use, any confidential or proprietary information or documents of others; and

 

(iv)           agrees to respect any and all valid obligations which he may now have to prior employers or to others relating to confidential information, inventions, discoveries or other intellectual property which are the property of those prior employers or others, as the case may be.

 

Executive has supplied to the Company a copy of each written agreement with any of Executive’s prior employers, as well as any other agreements to which Executive is subject, which includes any obligation of confidentiality, assignment of intellectual property, non-solicitation or noncompetition.  Executive has listed each of such agreements in Appendix “A”.

 

Executive agrees to indemnify and save harmless the Company from any loss, claim, damage, cost or expense of any kind (including without limitation, reasonable attorney fees) to which the Company may be subjected by virtue of a breach by Executive of the foregoing representations, warranties, and covenants.

 

10.            Arbitration .

 

Except as necessary for the Company and its subsidiaries, affiliates, strategic partners, successors or assigns or Executive to specifically enforce or enjoin a breach of this Agreement (to the extent such remedies are otherwise available), the parties agree that any and all disputes that may arise in connection with, arising out of or relating to this Agreement, or any dispute that relates in any way, in whole or in part, to Executive’s employment with the Company or any subsidiary, affiliate or strategic partner, the termination of that employment or any other dispute by and between the parties or their subsidiaries, affiliates, strategic partners, successors or assigns, shall be submitted to final and binding arbitration in Harrisburg, Pennsylvania according to the National Employment Dispute Resolution Rules and procedures of the American Arbitration Association at the time in effect.  This arbitration obligation extends to any and all claims that may arise by and between the parties or their subsidiaries, affiliates, strategic partners, successors or assigns, and expressly extends to, without limitation, claims or causes of action for wrongful termination, impairment of ability to compete in the open labor market, breach of an express or implied contract, breach of the covenant of good faith and fair dealing, breach of fiduciary duty, fraud, misrepresentation, defamation, slander, infliction of emotional distress, disability, loss of future earnings, and claims under the Pennsylvania Constitution, the United States Constitution, and applicable state and federal fair employment laws, federal and state equal employment opportunity laws, and federal and state labor statutes and regulations, including, but not limited to, the Civil Rights Act of 1964, as amended, the Fair Labor Standards Act, as amended, the Americans With Disabilities Act of 1990, as amended, the Rehabilitation Act of 1973, as amended, the Employee Retirement Income Security Act of 1974, as amended, the Age Discrimination

 

12



 

in Employment Act of 1967, as amended, and any other state or federal law.  Executive understands that by entering into this Agreement, Executive is waiving Executive’s rights to have a court determine Executive’s rights, including under federal, state or local statutes prohibiting employment discrimination, including sexual harassment and discrimination on the basis of age, race, color, religion, national origin, disability, veteran status or any other factor prohibited by governing law.

 

11.            Assignment .

 

Neither this Agreement, nor any of Executive’s rights or obligations hereunder, may be assigned or otherwise subject to hypothecation by Executive. The Company may assign its rights and obligations hereunder, and hereby consents to any such assignment, in whole or in part, (i) to any of the Company’s subsidiaries, affiliates, or parent corporations; or (ii) to any other successor or assign in connection with the sale of all or substantially all of the Company’s assets or stock or in connection with any merger, acquisition and/or reorganization involving the Company.

 

12.           Notices .

 

All notices and other communications under this Agreement shall be in writing and shall be given by fax or first class mail, certified or registered with return receipt requested, and shall be deemed to have been duly given three (3) days after mailing or twenty-four (24) hours after transmission of a fax to the respective persons named below:

 

If to the Company:

Rite Aid Corporation

 

30 Hunter Lane

 

Camp Hill, Pennsylvania 17011

 

Attention: General Counsel

 

Fax: (717) 760-7867

 

 

If to Executive:

Enio A. Montini, Jr.

 

1409 Summit Way

 

Mechanicsburg, Pennsylvania 17050

 

Any party may change such party’s address for notices by notice duly given pursuant hereto.

 

13.            General .

 

13.1         No Offset or Mitigation The Company’s obligation to make the payments provided for in, and otherwise to perform its obligations under this Agreement shall not be affected by any set-off, counterclaim, recoupment, defense or other claim, right or action that the Company may have against the Executive or others whether in respect of claims made under this Agreement or otherwise.  In no event shall the

 

13



 

Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts, benefits and other compensation payable or otherwise provided to the Executive under any of the provisions of this Agreement, and such amounts shall not be reduced, regardless of whether the Executive obtains other employment.

 

13.2         Governing Law .  This Agreement is executed in Pennsylvania and shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania without giving effect to conflicts of laws principles thereof which might refer such interpretations to the laws of a different state or jurisdiction.  Any court action instituted by Executive relating in any way to this Agreement shall be filed exclusively in state or federal court in Harrisburg, Pennsylvania and Executive consents to the jurisdiction and venue of said courts in any action instituted by or on behalf of the Company against him.

 

13.3        Entire Agreement This Agreement sets forth the entire understanding of the parties relating to Executive’s employment with the Company and cancels and supersedes all agreements, arrangements and understandings relating thereto made prior to the date hereof, written or oral, between the Executive and the Company and/or any subsidiary or affiliate including that certain Employment Agreement between the parties hereto entered into as of February 15, 2010 which is hereby cancelled and is of no further force and effect.

 

13.4        Amendments: Waivers This Agreement may be amended, modified, superseded, canceled, renewed or extended, and the terms or covenants hereof may be waived, only by a written instrument executed by the parties, or in the case of a waiver, by the party waiving compliance. The failure of any party at any time or times to require performance of any provision hereof shall in no manner affect the right of such party at a later time to enforce the same.  No waiver by any party of the breach of any term or covenant contained in this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or construed as, a further or continuing waiver of any such breach, or a waiver of the breach of any other term or covenant contained in this Agreement.

 

13.5         Conflict with Other Agreements Executive represents and warrants that neither his execution of this Agreement nor the full and complete performance of his obligations hereunder will violate or conflict in any respect with any written or oral agreement or understanding with any person or entity.

 

13.6        Successors and Assigns This Agreement shall inure to the benefit of and shall be binding upon the Company (and its successors and assigns) and Executive and his heirs, executors and personal representatives.

 

13.7        Withholding Notwithstanding any other provision of this Agreement, the Company may withhold from amounts payable under this Agreement all federal, state, local and foreign taxes that are required to be withheld by applicable laws or regulations.

 

14



 

13.8        Severability The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement.  If any provision of this Agreement shall be held invalid or unenforceable in part, the remaining portion of such provision, together with all other provisions of this Agreement, shall remain valid and enforceable and continue in full force and effect to the fullest extent consistent with law.

 

13.9         No Assignment The rights and benefits of the Executive under this Agreement may not be anticipated, assigned, alienated or subject to attachment, garnishment, levy, execution or other legal or equitable process except as required by law.  Any attempt by the Executive to anticipate, alienate, assign, sell, transfer, pledge, encumber or charge the same shall be void.  Payments hereunder shall not be considered assets of the Executive in the event of insolvency or bankruptcy.

 

13.10      Survival.   This Agreement shall survive the termination of Executive’s employment and the expiration of the Term to the extent necessary to give effect to its provisions.

 

13.11      Captions The section headings contained herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.

 

13.12      Counterparts This Agreement may be executed by the parties hereto in separate counterparts; each of which when so executed and delivered shall be an original but all such counterparts together shall constitute one and the same instrument.

 

14.           Compliance with Code Section 409A .

 

Notwithstanding anything in this Employment Agreement to the contrary, effective as of the later of the Effective Date or January 1, 2005 (the “409A Effective Date”), the following provisions shall govern:  The provisions listed below are intended to be compliant with Internal Revenue Code (“Code”) Section 409A and the final regulations promulgated thereunder (“409A”) and shall be construed to be so compliant.

 

(a)            Good Reason:  Any termination for ‘Good Reason’ shall comply with the safe harbor definition of ‘good reason’ in 409A, including the condition giving rise to such termination and the notice and cure period provided for in 409A.  Without limiting the generality of the foregoing, the following specific provisions will be effective as of the 409A Effective Date:

 

(i)             The final paragraph of Section 5.4 of the Agreement shall be modified to read as follows:

 

‘provided, however, that the Executive has provided written notice (which shall set forth in reasonable detail the specific conduct of the Company that constitutes Good Reason and the specific

 

15



 

provisions of this Agreement on which Executive relies) to the Company of the existence of any condition described in any one of the subparagraphs a, b, or c within thirty (30) days of the initial existence of such condition, and the Company has not cured the condition within thirty (30) days of the receipt of such notice.  Any termination of employment by the Executive for Good Reason pursuant to Section 5.3 must occur no later than the date that is the second anniversary of the initial existence of the condition giving rise to the termination right.’

 

(b)            Payment of Benefits:  To the extent necessary to avoid adverse tax consequences, and except as described below, any payment to which the Executive becomes entitled under the Agreement, or any arrangement or plan referenced in this Agreement, that constitutes “deferred compensation” under 409A, and is (a) payable upon the Executive’s termination; (b) at a time when the Executive is a “specified employee” as defined by 409A shall not be made until the earliest of:  (1) the expiration of the six (6) month period (the “Deferral Period”) measured from the date of the Executive’s ‘separation from service’ under 409A; or (2) the date of the Executive’s death.

 

Upon the expiration of the Deferral Period, all payments that would have been made during the Deferral Period (whether in a single lump sum or in installments) shall be paid as a single lump sum to the Executive or, if applicable, his beneficiary.  This section shall not apply to any payment which constitutes “separation pay” as described in Internal Revenue Regulations Section 409A-1(b)(9) (in general, payments (i) that are made on an involuntary separation from service which (ii) do not exceed the lesser of two (2) times (x) the Executive’s annualized compensation for the taxable year preceding the year in which the separation from service occurs or (y) the Code Section 401(a)(17) limit on compensation for the year in which separation from service occurs and (iii) are paid in total by the end of the second calendar year following the calendar year in which the separation from service occurs).

 

Without limiting the generality of the foregoing, the following specific provisions will be effective as of the 409A Effective Date:

 

‘The Company shall pay to the Executive the Accrued Benefits, within ten (10) days after the Date of Termination.  Notwithstanding the foregoing, if the Executive is a ‘specified employee’, as defined in 409A, the Company shall pay to the Executive the Accrued Benefits on the six (6) month anniversary of the Date of Termination.

 

To the extent permissible by law, each payment and each installment described in this Agreement shall be considered a separate payment from each other payment or installment.’

 

(c)            Reimbursements:   To the extent required by 409A, with regard to any provision that provides for the reimbursement of costs and expenses, or for the provision

 

16



 

of in-kind benefits:  (1) the right to such reimbursement or in-kind benefit shall not be subject to liquidation or exchange for another benefit; (2) the amount of expenses or in-kind benefits available or paid in one (1) year shall not affect the amount available or paid in any subsequent year; and (3) such payments shall be made on or before the last day of the Executive’s taxable year in which the expense occurred.

 

Without limiting the generality of the foregoing, the following specific provisions will be effective as of the 409A Effective Date:  Section 4.2 of the Agreement shall be modified to insert the following sentence at the end thereof:  ‘The provisions of Section 14(c) shall apply to all reimbursements made under this Section 4.2.’

 

17



 

IN WITNESS WHEREOF, Executive and the Company have executed this Agreement as of the date first written above.

 

 

RITE AID CORPORATION

 

 

 

/s/ Marc A. Strassler

 

By:

Marc A. Strassler

 

Its:

Exec. Vice President, General Counsel and

 

 

Secretary

 

 

 

EXECUTIVE

 

 

 

 

 

/s/ Enio A. Montini, Jr.

 

Enio A. Montini, Jr.

 

18



 

APPENDIX A

 

A “Change in Control of the Company” shall be deemed to have occurred if, as the result of a single transaction or a series of transactions, the event set forth in any one of the following paragraphs shall have occurred:

 

(1) any Person becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing fifty percent (50%) or more of the combined voting power of the Company’s then outstanding voting securities after the Effective Date; or

 

(2) Incumbent Directors cease at any time and for any reason to constitute a majority of the number of directors then serving on the Board. “Incumbent Directors” shall mean directors who either (A) are directors of the Company as of the Effective Date or (B) are elected, or nominated for election, to the Board with the affirmative votes of at least a majority of the Incumbent Directors at the time of such election or nomination (but shall not include an individual whose election or nomination is in connection with an actual or threatened election contest, including but not limited to a consent solicitation, relating to the election of directors to the Board); or

 

(3) there is consummated a merger or consolidation of the Company or any direct or indirect subsidiary of the Company with any other corporation, other than (i) a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or any parent thereof) at least fifty percent (50%) of the combined voting power of the securities of the Company or such surviving entity or any parent thereof outstanding immediately after such merger or consolidation, or (ii) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing thirty-five percent (35%) or more of the combined voting power of the Company’s then outstanding voting securities; or

 

(4) the stockholders of the Company approve a plan of complete liquidation or dissolution of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets, other than a sale or disposition by the Company of all or substantially all of the Company’s assets to an entity, at least sixty percent (60%) of the combined voting power of the voting securities of which are owned by stockholders of the Company in substantially the same proportions as their ownership of the Company immediately prior to such sale.

 

19



 

“Affiliate” shall have the meaning set forth in Rule 12b-2 under Section 12 of the Exchange Act.

 

“Beneficial Owner” shall have the meaning set forth in Rule 13d-3 under the Exchange Act, except that a Person shall not be deemed to be the Beneficial Owner of any securities which are properly filed on a Form 13G.

 

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to time.

 

“Person” shall have the meaning given in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof, except that such term shall not include (i) the Company or any of its subsidiaries, (ii) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities or (iv) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company.

 

20




Exhibit 10.2

 

EMPLOYMENT AGREEMENT

 

THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the “Agreement”) is entered into as of the 11 th  day of July, 2011 by and between Rite Aid Corporation, a Delaware corporation (the “Company”) and Robert K. Thompson (the “Executive”).

 

WHEREAS , prior to July 11, 2011, Executive was employed by the Company as a Senior Vice President;

 

WHEREAS , the Company desires to promote Executive to the position of Executive Vice President on the terms and subject to the conditions set forth herein.

 

NOW, THEREFORE , in consideration of the mutual representations, warranties, covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and Executive (individually a “Party” and together the “Parties”), intending to be legally bound, agree as follows:

 

1.              Term Of Employment .

 

The term of Executive’s employment under this Agreement shall commence on July 11, 2011 (“the Effective Date”) and, unless earlier terminated pursuant to Section 5 below, shall continue for a period ending on the date that is two (2) years following the Effective Date (the “Original Term of Employment”).  The Original Term of Employment shall be automatically renewed for successive two (2) year terms (the “Renewal Terms”) unless at least 120 days prior to the expiration of the Original Term of Employment or any Renewal Term, either Party notifies the other Party in writing that he or it is electing to terminate this Agreement at the expiration of the then current Term of Employment.  “Term” shall mean the Original Term of Employment and all Renewal Terms.  For purposes of this Agreement, except as otherwise provided herein, the phrases “year during the Term” or similar language shall refer to each twelve (12) month period commencing on the Effective Date or applicable anniversaries thereof.

 

2.              Position And Duties.

 

2.1           Generally During the Term, Executive shall serve as an Executive Vice President of the Company and shall have such officer level duties, responsibilities and authority as shall be assigned by the Company from time to time.  Executive shall devote his full working time, attention, knowledge and skills faithfully and to the best of his ability, to the duties and responsibilities assigned by the Company in furtherance of the business affairs and activities of the Company and its subsidiaries, affiliates and strategic partners.  Following termination of Executive’s employment for any reason, Executive shall

 

1



 

immediately resign from all offices and positions he holds with the Company or any subsidiary.

 

2.2           Other Activities.   Anything herein to the contrary notwithstanding, nothing in this Agreement shall preclude the Executive from engaging in the following activities:  (i) serving on the board of directors of a reasonable number of other corporations or the boards of a reasonable number of trade associations and/or charitable organizations, subject to the Company’s approval, which shall not be unreasonably withheld, (ii) engaging in charitable activities and community affairs, and (iii) managing his personal investments and affairs, provided that such activities do not violate Sections 6 or 7 below or materially interfere with the proper performance of his duties and responsibilities under this Agreement.  Executive shall at all times be subject to, observe and carry out such rules, regulations, policies, directions, and restrictions as the Company may from time to time establish for officers of the Company.

 

3.              Compensation .

 

3.1           Base Salary During the Term, as compensation for his services hereunder, Executive shall receive a salary at the annualized rate of Four Hundred Fifty Thousand Dollars ($450,000.00) per year (“Base Salary” as may be adjusted from time to time), which shall be paid in accordance with the Company’s normal payroll practices and procedures, less such deductions or offsets required by applicable law or otherwise authorized by Executive.

 

3.2           Annual Performance Bonus The Executive shall participate each fiscal year during the Term in the Company’s annual bonus plan as adopted and approved by the Board of Directors (the “Board”) or the Compensation Committee of the Board (the “Compensation Committee”) from time to time.  For Fiscal Year 2012 (“FY 2012”), Executive’s annual bonus opportunity pursuant to such plan shall equal sixty percent (60%) (the “Annual Target Bonus”) of the Base Salary.  For subsequent fiscal years, the Annual Target Bonus may be adjusted and shall be based upon the Board approved plan for that year.

 

3.3           Equity Awards .

 

(a)  On December 18, 2007, Executive was granted an option to purchase (the “2007 Option”) 200,000 shares of common stock par value $1.00 per share of the Company (“Company Stock”).  On the Effective Date, Executive was granted an option (the “Option”) to purchase 500,000 shares of Company Stock.  Each of the 2007 Option and the Option (i) is a nonqualified stock option, (ii) has an exercise price equal to the closing price of the Company Stock as reported on the New York Stock Exchange (“NYSE”) on the date of grant, (iii) has a term of ten (10) years following the date of grant, (iv) vests and becomes exercisable as to one-fourth (1/4) of the shares of the Company Stock subject to the option on each of the first four (4) anniversaries from the date of grant, (v) is subject to the acceleration exercise and termination provisions set forth in Section 3.3(b) and Article 5

 

2



 

hereof and (vi) otherwise is evidenced by and subject to the terms of the Company’s stock option and equity plans.

 

(b) Upon the occurrence of a Change in Control of the Company prior to the termination of Executive’s employment with the Company, the 2007 Option then held by Executive shall immediately vest and become exercisable in full.  The Option shall vest in accordance with the terms of the Company’s 2010 Omnibus Equity Plan.  For purposes of this Agreement, “Change in Control” shall have the meaning set forth in the attached Appendix A with respect to the 2007 Option.

 

(c)  It is understood and acknowledged by Executive that the securities underlying any stock options and the restricted stock awarded Executive may not be subject to an effective registration statement under the federal securities laws until sometime after the Effective Date.  The Company agrees that if, as of the date of termination of Executive’s employment under the circumstances described in Sections 5.2 (except termination for Cause), 5.3 and 5.5, the securities underlying the then vested and exercisable portion of any stock options are not subject to an effective registration statement, the ninety (90) day periods in Section 5.2 (except termination for Cause), 5.3 and 5.5, as applicable, will be deemed to run from the first date such securities become subject to an effective registration statement.

 

4.              Additional Benefits .

 

4.1           Employee Benefits During the Term, Executive shall be entitled to participate in the employee benefit plans (including, but not limited to medical, dental and life insurance plans, short-term and long-term disability coverage, the Supplemental Executive Retirement Plan and 401(k) plans) in which management employees of the Company are generally eligible to participate, subject to any eligibility requirements and the other generally applicable terms of such plans.

 

4.2           Expenses During the Term, the Company shall reimburse Executive for any expenses reasonably incurred by him in furtherance of his duties hereunder, including without limitation travel, meals and accommodations, upon submission of vouchers or receipts and in compliance with such rules and policies relating thereto as the Company may from time to time adopt or as may be required in order to permit such payments to be taken as proper deductions by the Company or any subsidiary under the Internal Revenue Code of 1986, as amended, and the rules and regulations adopted pursuant thereto now or hereafter in effect.

 

4.3           Vacation Executive shall be entitled to four (4) weeks paid vacation during each year of the Term.

 

4.4           Automobile Allowance During the Term, the Company shall provide Executive with an automobile allowance of One Thousand Dollars ($1,000.00) per month.

 

3



 

4.5           Annual Financial Planning Allowance .   During each year of the Term, the Company shall provide Executive with an executive planning allowance in the amount of Five Thousand Dollars ($5,000.00).

 

4.6           Relocation Expenses .  Executive shall be entitled to benefits under the Company’s Executive Level Relocation Policy as from time to time in effect.

 

4.7           Indemnification The Company shall (a) indemnify and hold Executive harmless, to the full extent permitted under applicable law, for, from and against any and all losses, claims, costs, expenses, damages, liabilities or actions (including security holder actions, in respect thereof) relating to or arising out of the Executive’s employment with and service as an Officer of the Company; and (b) pay all reasonable costs, expenses and attorney’s fees incurred by Executive in connection with or relating to the defense of any such loss, claim, cost, expense, damage, liability or action, subject to Executive’s undertaking to repay in the event it is ultimately determined that Executive is not entitled to be indemnified by the Company.  Following termination (except for termination by the Company for Cause) of the Executive’s employment or service with the Company, the Company shall cause any Director and Officer liability insurance policies applicable to the Executive prior to such termination to remain in effect for six (6) years following the date of termination of employment.

 

5.              Termination .

 

5.1           Termination of Executive’s Employment by the Company for Cause .   The Company may terminate Executive’s employment hereunder for Cause (as defined below).  Such termination shall be effected by written notice thereof delivered by the Company to Executive, indicating in reasonable detail the facts and circumstances alleged to provide a basis for such termination, and shall be effective as of the date of such notice in accordance with Section 12 hereof.  “Cause” as determined in reasonable good faith by a committee comprised of three (3) senior officers (one of which shall be Executive’s supervisor) of the Company or the Board of Directors shall mean:  (i) Executive’s gross negligence or willful misconduct in the performance of the duties or responsibilities of his position with the Company or any subsidiary, or failure to timely carry out any lawful directive of the Company; (ii) Executive’s misappropriation of any funds or property of the Company or any subsidiary; (iii) the conduct by Executive which is a material violation of this Agreement or Company Policy or which materially interferes with the Executive’s ability to perform his duties; (iv) the commission by Executive of an act of fraud or dishonesty toward the Company or any subsidiary; (v) Executive’s misconduct or negligence which damages or injures the Company or the Company’s reputation; (vi) Executive is convicted of or pleads to a felony involving moral turpitude; or (vii) the use or imparting by Executive of any confidential or proprietary information of the Company, or any subsidiary in violation of any confidentiality or proprietary agreement to which Executive is a party.

 

5.2           Compensation upon Termination by the Company for Cause or by Executive without Good Reason .   In the event of Executive’s termination of employment (i) by the Company for Cause or (ii) by Executive voluntarily without Good Reason:

 

4



 

(a)            Executive shall be entitled to receive (i) all amounts of accrued but unpaid Base Salary through the effective date of such termination, (ii) reimbursement for reasonable and necessary expenses incurred by Executive through the date of notice of such termination, to the extent otherwise provided under Section 4.2 above and (iii) all other vested payments and benefits to which Executive may otherwise be entitled pursuant to the terms of the applicable benefit plan or arrangement through the effective date of such termination ((i), (ii) and (iii), the (“Accrued Benefits”)).  All other rights of Executive (and, except as provided in Section 5.6 below, all obligations of the Company) hereunder or otherwise in connection with Executive’s employment with the Company shall terminate effective as of the date of such termination of employment and Executive shall not be entitled to any payments or benefits not specifically described in this subsection (a) or (b) below.

 

(b)            Except as provided in Section 3.3(c), any portion of any restricted stock or any other equity incentive awards as to which the restrictions have not lapsed or as to which any other conditions shall not have been satisfied prior to the date of termination shall be forfeited as of such date and any portion of Executive’s stock options that have vested and become exercisable prior to the date of termination shall remain exercisable for a period of ninety (90) days following the date of termination of employment (or, such later date as may be permitted by the relevant stock option or equity plan, or, if earlier, until the expiration of the respective terms of the options), whereupon all such options shall terminate; provided, however, in the event of termination of Executive by the Company for Cause, any stock options that have not been exercised prior to the date of termination shall immediately terminate as of such date.

 

Any termination of Executive’s employment by Executive voluntarily without Good Reason shall be effective upon thirty (30) days notice to the Company or such earlier date as the Company determines in its discretion and designates in writing.  A termination of Executive’s employment by the Company for Cause or by the Executive other than for Good Reason shall not constitute a breach of this Agreement.

 

5.3           Compensation upon Termination of Executive’s Employment by the Company Other Than for Cause or by Executive for Good Reason .  Executive’s employment hereunder may be terminated by the Company other than for Cause or by Executive for Good Reason.  In the event that Executive’s employment hereunder is terminated by the Company other than for Cause or by Executive for Good Reason:

 

(a)            Executive shall be entitled to receive (i) the Accrued Benefits, (ii) an amount equal to two (2) years of Executive’s then Base Salary as of the date of termination of employment, such amount payable in equal installments pursuant to the Company’s standard payroll procedures for management employees over a period of two (2) years following the date of termination of employment, and (iii) continued health insurance coverage for Executive and his immediate family for a period of two (2) years following the date of termination of employment.

 

5



 

(b)            The Executive’s stock option awards held by Executive shall vest and become immediately exercisable and the restrictions with respect to any awards of restricted stock shall lapse, in each case to the extent such options would otherwise have become vested and exercisable (or such restrictions would have lapsed) had Executive remained in the employ of the Company for a period of two (2) years following the date of termination.  Except as provided in Section 3.3(c), such portion of Executive’s stock options (together with any portion of Executive’s stock options that have vested and become exercisable prior to the date of termination) shall remain exercisable for a period of ninety (90) days following the date of termination of employment (or, such later date as may be permitted by the relevant stock option or equity plan, or, if earlier, until the expiration of the respective terms of the options), whereupon all such options shall terminate.  Any remaining portion of Executive’s stock options that have not vested (or deemed to have vested) as of the date of termination shall terminate as of such date; and all shares of restricted stock as to which the restrictions shall not have lapsed as of the date of termination shall be forfeited as of such date.

 

(c)            All other rights of Executive (and, except as provided in Section 5.6 below, all obligations of the Company) hereunder or otherwise in connection with Executive’s employment with the Company shall terminate effective as of the date of such termination of employment and Executive shall not be entitled to any payments or benefits not specifically described in 5.3(a) through (c).

 

Any termination of employment pursuant to this Section 5.3 shall be effective upon thirty (30) days notice thereof or the Company may elect in its sole discretion to reduce or eliminate the notice period and pay the Executive his Base Salary for some or all of the notice period in lieu of notice.  A termination of Executive’s employment by the Company other than for Cause or by the Executive for Good Reason shall not constitute a breach of this Agreement.  To be eligible for the payment, benefits and stock rights described in Section 5.3(a)(ii)-(iii), (b) and (c) above, Executive must execute, not revoke and abide by a release of all other claims, cooperate in the event of litigation and fully comply with Executive’s obligations under Sections 6 and 7 below.

 

5.4            Definition of Good Reason For purposes of this Agreement, “Good Reason” shall mean the occurrence of any one of the following:

 

(a)            the assignment to Executive of any duties or responsibilities materially inconsistent with Executive’s status as an officer of the Company; or

 

(b)            any decrease in Executive’s then Base Salary as set forth in Section 3.1 to which Executive has not agreed in writing; or

 

(c)            a material breach by the Company of this Agreement

 

6



 

provided, however, that in each such case the Company shall have the right, within thirty (30) days after receipt of written notice (which shall set forth in reasonable detail the specific conduct of Company that constitutes Good Reason and the specific provision(s) of this Agreement on which Executive relies) from Executive of the Company’s violation of any of the foregoing, to cure the event or circumstances giving rise to such Good Reason and in the event of which cure, such event or circumstances shall not constitute Good Reason hereunder.

 

5.5           Compensation upon Termination of Executive’s Employment by Reason of Executive’s Death or Total Disability In the event that Executive’s employment with the Company is terminated by reason of Executive’s death or Total Disability (as defined below):

 

(a)            Executive or Executive’s estate, as the case may be, shall be entitled to receive (i) the Accrued Benefits, (ii) any other benefits payable under the then current disability and/or death benefit plans, as applicable, in which Executive is a participant and (iii) continued health insurance coverage for Executive and/or his immediate family, as applicable, for a period of one (1) year following the date of termination of employment.

 

(b)            All stock option awards held by Executive shall vest and become immediately exercisable and the restrictions with respect to any awards of Restricted Stock shall lapse, in each case to the extent such options would otherwise have become vested and exercisable (or such restrictions would have lapsed) had Executive remained in the employ of the Company for a period of two (2) years following the date of termination.  Except as provided in Section 3.3(c) such portion of Executive’s stock options (together with any portion of Executive’s stock options that have vested and become exercisable prior to the date of termination) shall remain exercisable for a period of ninety (90) days following the date of termination of employment (or, such later date as may be permitted by the relevant stock option or equity plan, or, if earlier, until the expiration of the respective terms of the options), whereupon all such options shall terminate.  Any remaining portion of Executive’s stock options that have not vested (or deemed to have vested) as of the date of termination shall terminate as of such date; and all shares of restricted stock as to which the restrictions shall not have lapsed as of the date of termination shall be forfeited as of such date.

 

(c)            All other rights of Executive (and, except as provided in Section 5.6 below, all obligations of the Company) hereunder or otherwise in connection with Executive’s employment with the Company shall terminate effective as of the date of such termination of employment and Executive shall not be entitled to any payments or benefits not specifically described in Section 5.5(a) through (c).

 

“Total Disability” shall mean any physical or mental disability that prevents Executive from (a)(i) performing one or more of the essential functions of his position for a period of not less than ninety (90) days in any twelve (12) month period and (ii) which is expected to be of permanent or indeterminate duration but expected to last at least twelve (12) continuous

 

7



 

months or result in death of the Executive as determined (y) by a physician selected by the Company or its insurer or (z) pursuant to the Company’s benefit programs; or (b) reporting to work for ninety (90) or more consecutive business days or unable to engage in any substantial activity.

 

5.6           Survival In the event of any termination of Executive’s employment, Executive and the Company nevertheless shall continue to be bound by the terms and conditions set forth in Section 4.7 above and Sections 6 through 10 below, which shall survive the expiration of the Term; provided, however, the indemnification obligations in Section 4.7 shall not survive expiration of the Term in the event of termination of Executive’s employment by the Company for Cause.

 

5.7           Change in Control Best Payments Determination In the event the benefits described in Section 5.3(a) and (b) (the “Severance Benefits”) are payable to Executive in connection with a Change in Control and, if paid, could subject Executive to an excise tax under Section 4999 of the Internal Revenue Code (the “Excise Tax”), then notwithstanding the provisions of Section 5.3 (a) and (b) the Company shall reduce the Severance Benefits (the “Benefit Reduction”) under Section 5.3 (a) and (b) by the amount necessary to result in the Executive not being subject to the Excise Tax if such reduction would result in the Executive’s “Net After Tax Amount” attributable to the Severance Benefits described in Section 5.3 (a) and (b) being greater than it would be if no Benefit Reduction was effected.  For this purpose “Net After Tax Amount” shall mean the net amount of Severance Benefits Executive is entitled to receive under this Agreement after giving effect to all federal, state and local taxes which would be applicable to such payments, including, but not limited to, the Excise Tax.  The determination of whether any such Benefit Reduction shall be effected shall be made by a nationally recognized public accounting firm selected by the Company prior to the occurrence of the Change in Control and such determination shall be binding on both Executive and the Company.

 

5.8            No Other Severance or Termination Benefits Except as expressly set forth herein, Executive shall not be entitled to damages or to any severance or other benefits upon termination of employment with the Company under any circumstances and for any or no reason, including, but not limited to any severance pay under any Company severance plan, policy or practice.

 

6.              Protection of Confidential Information .

 

Executive acknowledges that during the course of his employment with the Company, its subsidiaries, affiliates and strategic partners, he will be exposed to documents and other information regarding the confidential affairs of the Company, its subsidiaries, affiliates and strategic partners, including without limitation information about their past, present and future financial condition, pricing strategy, prices, suppliers, cost information, business and marketing plans, the markets for their products, key personnel, past, present or future actual or threatened litigation, trade secrets, and other intellectual property, current

 

8



 

and prospective customer lists, operational methods, acquisition plans, prospects, plans for future development and other business affairs and information about the Company and its subsidiaries, affiliates and strategic partners not readily available to the public (the “Confidential Information”).  Executive further acknowledges that the services to be performed under this Agreement are of a special, unique, unusual, extraordinary and intellectual character.  In recognition of the foregoing, the Executive covenants and agrees as follows:

 

6.1           No Disclosure or Use of Confidential Information At no time shall Executive ever divulge, disclose, or otherwise use any Confidential Information (other than as necessary to perform his duties under this Agreement and in furtherance of the Company’s best interests), unless and until such information is readily available in the public domain by reason other than Executive’s disclosure or use thereof in violation of the first clause of this Section 6.1.  Executive acknowledges that Company is the owner of, and that Executive has not rights to, any trade secrets, patents, copyrights, trademarks, know-how or similar rights of any type, including any modifications or improvements to any work or other property developed, created or worked on by Executive during the Term of this Agreement.

 

6.2           Return of Company Property, Records and Files Upon the termination of Executive’s employment at any time and for any reason, or at any other time the Board may so direct, Executive shall promptly deliver to the Company’s offices in Harrisburg, Pennsylvania all of the property and equipment of the Company, it subsidiaries, affiliates and strategic partners (including any cell phones, pagers, credit cards, personal computers, etc.) and any and all documents, records and files, including any notes, memoranda, customer lists, reports or any and all other documents, including any copies thereof, whether in hard copy form or on a computer disk or hard drive, which relate to the Company, its subsidiaries, affiliates, strategic partners, successors or assigns, and/or their respective past and present officers, directors, employees or consultants (collectively, the “Company Property, Records and Files”); it being expressly understood that, upon termination of Executive’s employment at any time and for any reason, Executive shall not be authorized to retain any of the Company Property, Records and Files, any copies thereof or excerpts therefrom.

 

7.              Noncompetition and Other Matters .

 

7.1            Noncompetition During the Executive’s employment with the Company and for the one (1) year period immediately following the date of termination of Executive’s employment (the “Restricted Period”), Executive shall not, directly or indirectly, in any city, town, county, parish or other municipality in any state of the United States (the names of each such city, town, parish, or other municipality, including, without limitation, the name of each county in the Commonwealth of Pennsylvania being expressly incorporated by reference herein), or any other place in the world, where the Company, or its subsidiaries, affiliates, strategic partners, successors, or assigns, engages in the ownership, management and operation of retail drugstores (i) engage in a Competing Business for Executive’s own

 

9



 

account; (ii) enter the employ of, or render any consulting or contracting services to, any Competing Business; or (iii) become interested in or otherwise associated or connected with any Competing Business in any capacity, including, without limitation, as an individual, partner, shareholder, officer, director, principal, agent, trustee, employee, contractor, consultant or management position with any entity providing consulting services to a Competing Business; provided , however, Executive may (i) own, directly or indirectly, solely as a passive investment, securities of any entity traded on any national securities exchange if Executive is not a controlling person of, or a member of a group which controls such entity and does not, directly or indirectly, own one percent (1%) or more of any class of securities of such entity.  For purposes of this Section 7.1, the phrase “Competing Business” shall mean any entity a majority of whose business involves the ownership and operation of retail or internet based drug stores.

 

7.2            Noninterference .   During the Restricted Period, Executive shall not, directly or indirectly, solicit, induce, or attempt to solicit or induce any officer, director, employee, agent or consultant of the Company or any of its subsidiaries, affiliates, strategic partners, successors or assigns to terminate his, her or its employment or other relationship with the Company or its subsidiaries, affiliates, strategic partners, successors or assigns for the purpose of associating with any competitor of the Company or its subsidiaries, affiliates, strategic partners, successors or assigns, or otherwise encourage any such person or entity to leave or sever his, her or its employment or other relationship with the Company or its subsidiaries, affiliates, strategic partners, successors or assigns for any other reason.

 

7.3            No Solicitation During the Restricted Period, Executive shall not, directly or indirectly, solicit, induce, or attempt to solicit or induce any customers, clients, vendors, suppliers or consultants then under contract to the Company or its subsidiaries, affiliates, strategic partners, successors or assigns, to terminate, limit or otherwise modify his, her or its relationship with the Company or its subsidiaries, affiliates, strategic partners, successors or assigns, for the purpose of associating with any competitor of the Company or its subsidiaries, affiliates, strategic partners, successors or assigns, or otherwise encourage such customers, clients, vendors, suppliers or consultants then under contract to terminate his, her or its relationship with the Company or its subsidiaries, affiliates, strategic partners, successors or assigns for any reason.  During the Restricted Period, Executive shall not hire, either directly or through any employee, agent or representative, any field and corporate management employee of the Company or any subsidiary or any such person who was employed by the Company or any subsidiary within 180 days of such hiring.

 

8.              Rights and Remedies upon Breach .

 

If Executive breaches, or threatens to commit a breach of, any of the provisions of Sections 6 or 7 above (the “Restrictive Covenants”), the Company and its subsidiaries, affiliates, strategic partners, successors or assigns shall have the following rights and remedies, each of which shall be independent of the others and severally enforceable, and each of which shall be in addition to, and not in lieu of, any other rights or remedies available

 

10


 

to the Company or its subsidiaries, affiliates, strategic partners, successors or assigns at law or in equity.

 

8.1            Specific Performance .   The right and remedy to have the Restrictive Covenants specifically enforced by any court of competent jurisdiction by injunctive decree or otherwise, it being agreed that any breach or threatened breach of the Restrictive Covenants would cause irreparable injury to the Company or its subsidiaries, affiliates, strategic partners, successors or assigns and that money damages would not provide an adequate remedy to the Company or its subsidiaries, affiliates, strategic partners, successors or assigns.

 

8.2           Accounting The right and remedy to require Executive to account for and pay over to the Company or its subsidiaries, affiliates, strategic partners, successors or assigns, as the case may be, all compensation, profits, monies, accruals, increments or other benefits derived or received by Executive as a result of any transaction or activity constituting a breach of any of the Restrictive Covenants.

 

8.3           Severability of Covenants Executive acknowledges and agrees that the Restrictive Covenants are reasonable and valid in geographic and temporal scope and in all other respects.  If any court determines that any of the Restrictive Covenants, or any part thereof, is invalid or unenforceable, the remainder of the Restrictive Covenants shall not thereby be affected and shall be given full force and effect without regard to the invalid portions.

 

8.4             Modification by the Court .   If any court determines that any of the Restrictive Covenants, or any part thereof, is unenforceable because of the duration or scope of such provision, such court shall have the power (and is hereby instructed by the parties) to modify or reduce the duration or scope of such provision, as the case may be (it being the intent of the parties that any such modification or reduction be limited to the minimum extent necessary to render such provision enforceable), and, in its modified or reduced form, such provision shall then be enforceable.

 

8.5             Enforceability in Jurisdictions Executive intends to and hereby confers jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographic scope of such covenants.  If the courts of any one or more of such jurisdictions hold the Restrictive Covenants unenforceable by reason of the breadth of such scope or otherwise, it is the intention of Executive that such determination not bar or in any way affect the right of the Company or its subsidiaries, affiliates, strategic partners, successors or assigns to the relief provided herein in the courts of any other jurisdiction within the geographic scope of such covenants, as to breaches of such covenants in such other respective jurisdictions, such covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.

 

8.6             Extension of Restriction in the Event of Breach In the event that Executive breaches any of the provisions set forth in this Section 8, the length of time of the

 

11



 

Restricted Period shall be extended for a period of time equal to the period of time during which Executive is in breach of such provision.

 

9.              No Violation of Third-Party Rights Executive represents, warrants and covenants that he:

 

(i)             will not, in the course of employment, infringe upon or violate any proprietary rights of any third party (including, without limitation, any third party confidential relationships, patents, copyrights, mask works, trade secrets, or other proprietary rights);

 

(ii)             is not a party to any conflicting agreements with third parties, which will prevent him from fulfilling the terms of employment and the obligations of this Agreement;

 

(iii)            does not have in his possession any confidential or proprietary information or documents belonging to others and will not disclose to the Company, use, or induce the Company to use, any confidential or proprietary information or documents of others; and

 

(iv)           agrees to respect any and all valid obligations which he may now have to prior employers or to others relating to confidential information, inventions, discoveries or other intellectual property which are the property of those prior employers or others, as the case may be.

 

Executive has supplied to the Company a copy of each written agreement with any of Executive’s prior employers, as well as any other agreements to which Executive is subject, which includes any obligation of confidentiality, assignment of intellectual property, non-solicitation or noncompetition.  Executive has listed each of such agreements in Appendix “A”.

 

Executive agrees to indemnify and save harmless the Company from any loss, claim, damage, cost or expense of any kind (including without limitation, reasonable attorney fees) to which the Company may be subjected by virtue of a breach by Executive of the foregoing representations, warranties, and covenants.

 

10.           Arbitration .

 

Except as necessary for the Company and its subsidiaries, affiliates, strategic partners, successors or assigns or Executive to specifically enforce or enjoin a breach of this Agreement (to the extent such remedies are otherwise available), the parties agree that any and all disputes that may arise in connection with, arising out of or relating to this Agreement, or any dispute that relates in any way, in whole or in part, to Executive’s employment with the Company or any subsidiary, affiliate or strategic partner, the termination of that employment or any other dispute by and between the parties or their subsidiaries, affiliates, strategic partners, successors or assigns, shall be submitted to final and binding arbitration in Harrisburg, Pennsylvania according to the National Employment

 

12



 

Dispute Resolution Rules and procedures of the American Arbitration Association at the time in effect.  This arbitration obligation extends to any and all claims that may arise by and between the parties or their subsidiaries, affiliates, strategic partners, successors or assigns, and expressly extends to, without limitation, claims or causes of action for wrongful termination, impairment of ability to compete in the open labor market, breach of an express or implied contract, breach of the covenant of good faith and fair dealing, breach of fiduciary duty, fraud, misrepresentation, defamation, slander, infliction of emotional distress, disability, loss of future earnings, and claims under the Pennsylvania Constitution, the United States Constitution, and applicable state and federal fair employment laws, federal and state equal employment opportunity laws, and federal and state labor statutes and regulations, including, but not limited to, the Civil Rights Act of 1964, as amended, the Fair Labor Standards Act, as amended, the Americans With Disabilities Act of 1990, as amended, the Rehabilitation Act of 1973, as amended, the Employee Retirement Income Security Act of 1974, as amended, the Age Discrimination in Employment Act of 1967, as amended, and any other state or federal law.  Executive understands that by entering into this Agreement, Executive is waiving Executive’s rights to have a court determine Executive’s rights, including under federal, state or local statutes prohibiting employment discrimination, including sexual harassment and discrimination on the basis of age, race, color, religion, national origin, disability, veteran status or any other factor prohibited by governing law.

 

11.           Assignment .

 

Neither this Agreement, nor any of Executive’s rights or obligations hereunder, may be assigned or otherwise subject to hypothecation by Executive. The Company may assign its rights and obligations hereunder, and hereby consents to any such assignment, in whole or in part, (i) to any of the Company’s subsidiaries, affiliates, or parent corporations; or (ii) to any other successor or assign in connection with the sale of all or substantially all of the Company’s assets or stock or in connection with any merger, acquisition and/or reorganization involving the Company.

 

12.           Notices .

 

All notices and other communications under this Agreement shall be in writing and shall be given by fax or first class mail, certified or registered with return receipt requested, and shall be deemed to have been duly given three (3) days after mailing or twenty-four (24) hours after transmission of a fax to the respective persons named below:

 

If to the Company:

 

Rite Aid Corporation

 

 

30 Hunter Lane

 

 

Camp Hill, Pennsylvania 17011

 

 

Attention: General Counsel

 

 

Fax: (717) 760-7867

 

13



 

If to Executive:

 

Robert K. Thompson

 

 

9 Thalia Street

 

 

Ladera Ranch, CA 92694-0100

 

Any party may change such party’s address for notices by notice duly given pursuant hereto.

 

13.           General .

 

13.1         No Offset or Mitigation The Company’s obligation to make the payments provided for in, and otherwise to perform its obligations under this Agreement shall not be affected by any set-off, counterclaim, recoupment, defense or other claim, right or action that the Company may have against the Executive or others whether in respect of claims made under this Agreement or otherwise.  In no event shall the Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts, benefits and other compensation payable or otherwise provided to the Executive under any of the provisions of this Agreement, and such amounts shall not be reduced, regardless of whether the Executive obtains other employment.

 

13.2         Governing Law .  This Agreement is executed in Pennsylvania and shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania without giving effect to conflicts of laws principles thereof which might refer such interpretations to the laws of a different state or jurisdiction.  Any court action instituted by Executive relating in any way to this Agreement shall be filed exclusively in state or federal court in Harrisburg, Pennsylvania and Executive consents to the jurisdiction and venue of said courts in any action instituted by or on behalf of the Company against him.

 

13.3         Entire Agreement This Agreement sets forth the entire understanding of the parties relating to Executive’s employment with the Company and cancels and supersedes all agreements, arrangements and understandings relating thereto made prior to the date hereof, written or oral, between the Executive and the Company and/or any subsidiary or affiliate including that certain Employment Agreement between the parties hereto entered into as of November 12, 2007 which is hereby cancelled and is of no further force and effect.

 

13.4         Amendments: Waivers This Agreement may be amended, modified, superseded, canceled, renewed or extended, and the terms or covenants hereof may be waived, only by a written instrument executed by the parties, or in the case of a waiver, by the party waiving compliance. The failure of any party at any time or times to require performance of any provision hereof shall in no manner affect the right of such party at a later time to enforce the same.  No waiver by any party of the breach of any term or covenant contained in this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or construed as, a further or continuing waiver of any such breach, or a waiver of the breach of any other term or covenant contained in this Agreement.

 

14



 

13.5         Conflict with Other Agreements Executive represents and warrants that neither his execution of this Agreement nor the full and complete performance of his obligations hereunder will violate or conflict in any respect with any written or oral agreement or understanding with any person or entity.

 

13.6         Successors and Assigns This Agreement shall inure to the benefit of and shall be binding upon the Company (and its successors and assigns) and Executive and his heirs, executors and personal representatives.

 

13.7         Withholding Notwithstanding any other provision of this Agreement, the Company may withhold from amounts payable under this Agreement all federal, state, local and foreign taxes that are required to be withheld by applicable laws or regulations.

 

13.8         Severability The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement.  If any provision of this Agreement shall be held invalid or unenforceable in part, the remaining portion of such provision, together with all other provisions of this Agreement, shall remain valid and enforceable and continue in full force and effect to the fullest extent consistent with law.

 

13.9         No Assignment The rights and benefits of the Executive under this Agreement may not be anticipated, assigned, alienated or subject to attachment, garnishment, levy, execution or other legal or equitable process except as required by law.  Any attempt by the Executive to anticipate, alienate, assign, sell, transfer, pledge, encumber or charge the same shall be void.  Payments hereunder shall not be considered assets of the Executive in the event of insolvency or bankruptcy.

 

13.10       Survival.   This Agreement shall survive the termination of Executive’s employment and the expiration of the Term to the extent necessary to give effect to its provisions.

 

13.11       Captions The section headings contained herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.

 

13.12       Counterparts This Agreement may be executed by the parties hereto in separate counterparts; each of which when so executed and delivered shall be an original but all such counterparts together shall constitute one and the same instrument.

 

14.           Compliance with Code Section 409A .

 

Notwithstanding anything in this Employment Agreement to the contrary, effective as of the later of the Effective Date or January 1, 2005 (the “409A Effective Date”), the following provisions shall govern:  The provisions listed below are intended to be compliant with Internal Revenue Code (“Code”) Section 409A and the final regulations promulgated thereunder (“409A”) and shall be construed to be so compliant.

 

15



 

(a)            Good Reason:  Any termination for ‘Good Reason’ shall comply with the safe harbor definition of ‘good reason’ in 409A, including the condition giving rise to such termination and the notice and cure period provided for in 409A.  Without limiting the generality of the foregoing, the following specific provisions will be effective as of the 409A Effective Date:

 

(i)             The final paragraph of Section 5.4 of the Agreement shall be modified to read as follows:

 

‘provided, however, that the Executive has provided written notice (which shall set forth in reasonable detail the specific conduct of the Company that constitutes Good Reason and the specific provisions of this Agreement on which Executive relies) to the Company of the existence of any condition described in any one of the subparagraphs a, b, or c within thirty (30) days of the initial existence of such condition, and the Company has not cured the condition within thirty (30) days of the receipt of such notice.  Any termination of employment by the Executive for Good Reason pursuant to Section 5.3 must occur no later than the date that is the second anniversary of the initial existence of the condition giving rise to the termination right.’

 

(b)            Payment of Benefits:  To the extent necessary to avoid adverse tax consequences, and except as described below, any payment to which the Executive becomes entitled under the Agreement, or any arrangement or plan referenced in this Agreement, that constitutes “deferred compensation” under 409A, and is (a) payable upon the Executive’s termination; (b) at a time when the Executive is a “specified employee” as defined by 409A shall not be made until the earliest of:  (1) the expiration of the six (6) month period (the “Deferral Period”) measured from the date of the Executive’s ‘separation from service’ under 409A; or (2) the date of the Executive’s death.

 

Upon the expiration of the Deferral Period, all payments that would have been made during the Deferral Period (whether in a single lump sum or in installments) shall be paid as a single lump sum to the Executive or, if applicable, his beneficiary.  This section shall not apply to any payment which constitutes “separation pay” as described in Internal Revenue Regulations Section 409A-1(b)(9) (in general, payments (i) that are made on an involuntary separation from service which (ii) do not exceed the lesser of two (2) times (x) the Executive’s annualized compensation for the taxable year preceding the year in which the separation from service occurs or (y) the Code Section 401(a)(17) limit on compensation for the year in which separation from service occurs and (iii) are paid in total by the end of the second calendar year following the calendar year in which the separation from service occurs).

 

16



 

Without limiting the generality of the foregoing, the following specific provisions will be effective as of the 409A Effective Date:

 

‘The Company shall pay to the Executive the Accrued Benefits, within ten (10) days after the Date of Termination.  Notwithstanding the foregoing, if the Executive is a ‘specified employee’, as defined in 409A, the Company shall pay to the Executive the Accrued Benefits on the six (6) month anniversary of the Date of Termination.

 

To the extent permissible by law, each payment and each installment described in this Agreement shall be considered a separate payment from each other payment or installment.’

 

(c)            Reimbursements:   To the extent required by 409A, with regard to any provision that provides for the reimbursement of costs and expenses, or for the provision of in-kind benefits:  (1) the right to such reimbursement or in-kind benefit shall not be subject to liquidation or exchange for another benefit; (2) the amount of expenses or in-kind benefits available or paid in one (1) year shall not affect the amount available or paid in any subsequent year; and (3) such payments shall be made on or before the last day of the Executive’s taxable year in which the expense occurred.

 

Without limiting the generality of the foregoing, the following specific provisions will be effective as of the 409A Effective Date:  Section 4.2 of the Agreement shall be modified to insert the following sentence at the end thereof:  ‘The provisions of Section 14(c) shall apply to all reimbursements made under this Section 4.2.’

 

IN WITNESS WHEREOF, Executive and the Company have executed this Agreement as of the date first written above.

 

 

 

RITE AID CORPORATION

 

 

 

 

 

/s/ Marc A. Strassler

 

 

By:

Marc A. Strassler

 

 

Its:

Exec. Vice President, General Counsel and

 

 

 

Secretary

 

 

 

 

 

EXECUTIVE

 

 

 

 

 

 

 

 

/s/ Robert K. Thompson

 

 

Robert K. Thompson

 

17



 

APPENDIX A

 

A “Change in Control of the Company” shall be deemed to have occurred if, as the result of a single transaction or a series of transactions, the event set forth in any one of the following paragraphs shall have occurred:

 

(1) any Person becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing fifty percent (50%) or more of the combined voting power of the Company’s then outstanding voting securities after the Effective Date; or

 

(2) Incumbent Directors cease at any time and for any reason to constitute a majority of the number of directors then serving on the Board. “Incumbent Directors” shall mean directors who either (A) are directors of the Company as of the Effective Date or (B) are elected, or nominated for election, to the Board with the affirmative votes of at least a majority of the Incumbent Directors at the time of such election or nomination (but shall not include an individual whose election or nomination is in connection with an actual or threatened election contest, including but not limited to a consent solicitation, relating to the election of directors to the Board); or

 

(3) there is consummated a merger or consolidation of the Company or any direct or indirect subsidiary of the Company with any other corporation, other than (i) a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or any parent thereof) at least fifty percent (50%) of the combined voting power of the securities of the Company or such surviving entity or any parent thereof outstanding immediately after such merger or consolidation, or (ii) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing thirty-five percent (35%) or more of the combined voting power of the Company’s then outstanding voting securities; or

 

(4) the stockholders of the Company approve a plan of complete liquidation or dissolution of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets, other than a sale or disposition by the Company of all or substantially all of the Company’s assets to an entity, at least sixty percent (60%) of the combined voting power of the voting securities of which are owned by stockholders of the Company in substantially the same proportions as their ownership of the Company immediately prior to such sale.

 

“Affiliate” shall have the meaning set forth in Rule 12b-2 under Section 12 of the Exchange Act.

 

18



 

“Beneficial Owner” shall have the meaning set forth in Rule 13d-3 under the Exchange Act, except that a Person shall not be deemed to be the Beneficial Owner of any securities which are properly filed on a Form 13G.

 

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to time.

 

“Person” shall have the meaning given in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof, except that such term shall not include (i) the Company or any of its subsidiaries, (ii) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities or (iv) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company.

 

19




QuickLinks -- Click here to rapidly navigate through this document


Exhibit 31.1

Certification of Chief Executive Officer

I, John T. Standley, Chief Executive Officer, certify that:

1.
I have reviewed this quarterly report on Form 10-Q of Rite Aid Corporation (the "Registrant");

2.
Based on my knowledge, this quarterly report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the Registrant as of, and for, the periods presented in this report;

4.
The Registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the Registrant and have:

a.
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the Registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b.
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c.
Evaluated the effectiveness of the Registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d.
Disclosed in this report any change in the Registrant's internal control over financial reporting that occurred during the Registrant's most recent fiscal quarter (the Registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the Registrant's internal control over financial reporting; and

5.
The Registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Registrant's auditors and the audit committee of the Registrant's board of directors:

a.
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Registrant's ability to record, process, summarize and report financial information; and

b.
Any fraud, whether or not material, that involves management or other employees who have a significant role in the Registrant's internal control over financial reporting.

Date: October 5, 2011

    By:   /s/ JOHN T. STANDLEY

John T. Standley
President and Chief Executive Officer



QuickLinks

Certification of Chief Executive Officer

QuickLinks -- Click here to rapidly navigate through this document


Exhibit 31.2

Certification of Chief Financial Officer

I, Frank G. Vitrano, Senior Executive Vice President, Chief Financial Officer and Chief Administrative Officer, certify that:

1.
I have reviewed this quarterly report on Form 10-Q of Rite Aid Corporation (the "Registrant");

2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the Registrant as of, and for, the periods presented in this report;

4.
The Registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the Registrant and have:

a.
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the Registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b.
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c.
Evaluated the effectiveness of the Registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this quarterly report based on such evaluation; and

d.
Disclosed in this report any change in the Registrant's internal control over financial reporting that occurred during the Registrant's most recent fiscal quarter (the Registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the Registrant's internal control over financial reporting; and

5.
The Registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Registrant's auditors and the audit committee of the Registrant's board of directors:

a.
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Registrant's ability to record, process, summarize and report financial information; and

b.
Any fraud, whether or not material, that involves management or other employees who have a significant role in the Registrant's internal control over financial reporting.

Date: October 5, 2011

    By:   /s/ FRANK G. VITRANO

Frank G. Vitrano
Senior Executive Vice President, Chief Financial Officer and Chief Administrative Officer



QuickLinks

Certification of Chief Financial Officer

QuickLinks -- Click here to rapidly navigate through this document


Exhibit 32

Certification of CEO and Acting Principal Financial Officer Pursuant to
18 U.S.C. Section 1350,
as Adopted Pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002

        In connection with the Quarterly Report on Form 10-Q of Rite Aid Corporation (the "Company") for the quarterly period ended August 28, 2010 as filed with the Securities and Exchange Commission on the date hereof (the "Report"), John T. Standley, as Chief Executive Officer of the Company, and Frank G. Vitrano, as Chief Financial Officer of the Company, each hereby certifies, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that to the best of her/his knowledge:

/s/ JOHN T. STANDLEY

   
Name:   John T. Standley    
Title:   President and Chief Executive Officer    

Date:

 

October 5, 2011

 

 

/s/ FRANK G. VITRANO


 

 
Name:   Frank G. Vitrano    
Title:   Senior Executive Vice President, Chief Financial Officer and Chief Administrative Officer    

Date:

 

October 5, 2011

 

 



QuickLinks

Certification of CEO and Acting Principal Financial Officer Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002