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HomeMy WebLinkAbout03-5898 1776152v2 BALLARD SPAHR ANDREWS & INGERSOLL, LLP By: William A. Slaughter Hara K. Jacobs Douglas 1. Flitter Peter e. Amuso PA ID Nos. 30637,74832,81479 & 80182 1735 Market Street, 51 st Floor Philadelphia, PA 19103-7599 (215) 665-8500 RITE AID CORPORATION 30 Hunter Lane Camp Hill, PA 17011 Plaintiff, V. TIMOTHY J. NOONAN 1022 North Waterford Way ~echanicsburg,PJ\, 17050 Defendant. NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do 80 the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to YO'Q.. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, P A 17013 (717) 249-3166 JURY TRIAL DEMANDED THIS IS NOT AN ARBITRATION CASE, AN ASSESSMENT OF DAMAGES IS REQUIRED Attorneys for Corporate Plaintiff Rite Aid Corporation COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03 - 5 l' 91' r5>>J IL-.- AVISO Le han demandado a usted en la corte. 5i ustli:d quiere defenderse de estas demandas ex-puestas en las paginas siguientes, usted tiene veinte (20) dias de plazo al partir de la fecha de 1a demanda y la notificadon. Hace falta asentar una comparencia escrita 0 en persona 0 con un abogado y entregar a la corte en forma esc:rita sus defensas 0 sus objeciones a laB demandas en contra de su persona. Sea avisado que 81 usted no se defiende, la corte tomara medidas y puede continuar la demanda en contra suya sin previa aviso 0 notificacion. Ademas, la corte puede decidir a favor del demandante y requiere que usted cumpla con toclas las provisiones de esta demanda. Usted puede perder dinero 0 sus propiedades u otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIAT AMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICO, V AYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRIT A ABAJO PARA A VERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, P A 17013 (717) 249-3166 COMPLAINT Plaintiff, Rite Aid Corporation ("Rite Aid" or the "Company"), by its undersigned counsel, for its Complaint against defendant Timothy J. Noonan ("Noonan"), avers as follows: NATURE OF THE ACTION 1. On July 11, 2002, Noonan pleaded guilty to a single-count Information charging him with criminal misprision of a felony, based on his concealment of material information from professionals retained on behalf of Rite Aid's Audit Committee to investigate issues relating to Rite Aid's financial reporting, among other things. By pleading guilty, Noonan admitted to having engaged in conduct that was unlawful, in bad faith and not in the best interests of the Company. Such conduct forfeited any right Noonan might otherwise have had to continued advancement or indemnification under the provisions of Rite Aid's Certificate of Incorporation and applicable law and violated the terms of Noonan's Deferred Compensation and Separation Agreements with the Company. 2. In this action, Rite Aid seeks (i) to recover defense costs advanced to Noonan by the Company subject to Noonan's agreement to repay such advances upon determination that he is not entitled to indemnification, (ii) a declaration that Noonan is not entitled to any further advancement or indemnification of expenses from the Company, (iii) repayment of amounts paid to Noonan by Rite Aid under his Deferred Compensation and Separation Agreements; and (iv) to recover for damages Rite Aid has suffered as a result of Noonan's breach of his fiduciary duty of undivided loyalty to the Company. 2 THE PARTIES 3. Plaintiff Rite Aid Corporation is a Delaware corporation with its principal place of business in Camp Hill, Pennsylvania. Rite Aid is one of the nation's leading drugstore chains, operating approximately 3400 stores in 28 states. 4. Defendant Timothy J, Noonan was employed by Rite Aid in several capacities, including President and Chief Operating Officer, until his retirement in February 2000. Noonan also served as a director of Rite Aid from March 4,1994 until December 18, 1999, Noonan resides in Mechanicsburg, Pennsylvania. JURISDICTION AND VENUE 5. The causes of action alleged in this Complaint arose out of transactions and occurrences that took place in Cumberland County, Pennsylvania, where Rite Aid's principal place of business is located. Noonan resides and is subject to service in Pennsylvania. Accordingly, this Court has jurisdiction over Noonan and venue is proper pursuant to Pa. R.C.P. 1006. SUBSTANTIVE ALLEGATIONS 6. Upon Noonan's retirement from Rite Aid in February 2000, Rite Aid and Noonan entered into an Executive Separation Agreement ("Separation Agreement"), under which the Company agreed to pay him substantial benefits upon the termination of his employment and for years thereafter. (A copy ofthe Separation Agreement is attached hereto as Exhibit A.) Among other benefits, the Separation Agreement provided for accelerated payments under Noonan's Deferred Compensation Agreement. (A copy of the Deferred Compensation Agreement is attached hereto as Exhibit B.) In exchange, Noonan undertook to "cooperate fully with the Company. . . in connection with any investigation by the Company relating to any 3 matter in which [Noonan] was or is involved or of which [Noonan] has knowledge by virtue of his employment or other position with the Company. . . including without limitation the pending investigation of the Company's accounting practices and related matters." 7. The Separation Agreement further provided that any payments received by Noonan, including those received under the Deferred Compensation Agreement, would be subject to forfeiture in the event he failed to perform these obligations: Notwithstanding anything herein to the contrary, if the Company shall determine that [Noonan] has failed to perform his obligations set forth in this Section 8, the Company shall have the right to terminate immediately payment and provisions of the Severance Benefits in their entirety. . . and such Severance Benefits shall thereupon be forfeited by [Noonan]. 8. Similarly, benefits paid under the Deferred Compensation Agreement provided for forfeiture "if subsequent to [Noonan's] retirement. . . it is discovered that [Noonan] committed an act which could have resulted in [his] discharge for good cause by Corporation, had it been known to Corporation. . . ." 9. Rite Aid paid Noonan substantial sums in severance and other benefits under his Deferred Compensation and Separation Agreements. 1 O. On June 21, 2002, the United States Attorney for the Middle District of Pennsylvania charged Noonan by Information with misprision of a felony, based on his concealment of material information from professionals retained on behalf of Rite Aid's Audit Committee to investigate issues relating to Rite Aid's financial reporting, among other things. A copy of the Information is attached hereto as Exhibit C. 11. Under Rite Aid's Restated Certificate of Incorporation ("Certificate"), the Company was required to advance the reasonable costs its present or former officers incurred in defending any action or proceeding brought against them by reason of their service to the 4 Company. (A copy of the Certificate is attached hereto as Exhibit D.) Such advancement could be made, however, "only upon delivery to the corporation of an undertaking by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under [the Certificate] or otherwise." The right to indemnification conferred by the Certificate was "to the fullest extent authorized by the General Corporation Law" of Delaware, where Rite Aid is incorporated. 12. The relevant provisions of Delaware law permit a corporation to indemnify its officers only "if the person acted in good faith and in a marmer the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person's conduct was unlawfuL" Del. Code Ann. tit. 8, S 145(a). 13. In accordance with the provisions of the Certificate, Rite Aid advanced to Noonan costs he claims he incurred in defense of the Information and related proceedings, subject to his undertaking to repay such advances if it was ultimately determined he was not entitled to indemnification by the Company. The written Undertaking for Advancement of Expenses (the "Undertaking") signed by Noonan provided: Please accept this letter as my legally binding undertaking to repay the Corporation any expenses paid by it on my behalf in advance ofthe final disposition of the above-described [litigation], if it shall ultimately be determined that I am not entitled to be indemnified by the Corporation as authorized by Section 145 of the General Corporation Law of the State of Delaware. (A copy of the Undertaking is attached hereto as Exhibit E.) 14. Pursuant to the Undertaking, Rite Aid advanced to Noonan certain costs incurred by him in defending the Information and related proceedings. 5 15. On July 11, 2002, Noonan pleaded guilty to the Information, and the United States District Court for the Middle District of Pennsylvania entered a judgment of guilty on the plea. Noonan currently awaits sentencing, 16. By pleading guilty, Noonan admitted to having engaged in conduct that was unlawful, not in good faith, and not in the best interests of the Company. Such conduct forfeited any right Noonan might otherwise have had to continued advancement or indemnification by Rite Aid, and Noonan's guilty plea triggered Rite Aid's right to repayment of previously advanced expenses pursuant to the Undertaking. Such conduct also constituted a breach of Noonan's obligations to Rite Aid under the Separation Agreement and triggered his duty to repay the Company any amounts previously received by him under the Deferred Compensation and Separation Agreements. 17. Despite Rite Aid's demand, Noonan has failed to repay the amounts advanced to him for expenses he allegedly incurred in defense of the Information and related proceedings or the amounts paid to him under the Deferred Compensation and Separation Agreements. COUNT I BREACH OF CONTRACT (UNDERTAKING) 18. The foregoing averments are incorporated herein by reference. 19. Rite Aid agreed to advance Noonan his expenses incurred in defense of the Information and related proceedings, subject to Noonan's Undertaking "to repay the Corporation any expenses paid by it on my behalf in advance of the final disposition of the above described [litigation], if it shall ultimately be determined that I am not entitled to be indemnified 6 by the Corporation as authorized by Section 145 of the General Corporation Law of the State of Delaware. " 20. Pursuant to the Undertaking, Rite Aid advanced to Noonan certain costs incurred by him in defending the Information and related proceedings. 21. By pleading guilty to the Information, Noonan admitted to having engaged in conduct that was unlawful, not in good faith, and not in the best interests of the Company. Such conduct forfeited any right Noonan might otherwise have had to continued advancement or indemnification under the Certificate and applicable law, and Noonan's guilty plea triggered his duty pursuant to the terms ofthe Undertaking to repay all amounts previously advanced to him. 22. Despite Rite Aid's request, Noonan has failed to repay such expenses and has thereby breached his Undertaking. 23. As a direct and proximate result of Noonan's breach of the Undertaking, Rite Aid has suffered and will continue to suffer damages in excess of $50,000. WHEREFORE, Rite Aid demands judgment in its favor and against Timothy J. Noonan in an amount in excess of $50,000, as well as an award of interest, delay damages, attorneys' fees and costs and such other relief as the Court may deem just and proper. COUNT II DECLARATORY JUDGMENT (ADVANCEMENT AND INDEMNIFICATION) 24. The foregoing averments are incorporated herein by reference. 25. By pleading guilty to the Information, Noonan admitted to having engaged in conduct that was unlawful, not in good faith, and not in the best interests of the Company. Such conduct forfeited any right Noonan might otherwise have had to continued advancement or indemnification under the Certificate and applicable law. 7 WHEREFORE, Rite Aid demands judgment in its favor declaring that Timothy J. Noonan is not entitled to advancement or indemnification by Rite Aid Corporation for expenses he has incurred or will incur by reason of the fact that he was an officer of Rite Aid Corporation or otherwise. COUNT III BREACH OF CONTRACT (SEPARATION AGREEMENT) 26. The foregoing averments are incorporated herein by reference. 27. On February 9, 2000, Rite Aid and Noonan entered into the Separation Agreement. 28. In exchange for receiving certain payments and other benefits under the Agreement, Noonan agreed to "cooperate fully with the Company. . . in connection with any investigation by the Company relating to any matter in which [Noonan] was or is involved or of which [Noonan] has knowledge by virtue of his employment or other position with the Company . . . including without limitation the pending investigation of the Company's accounting practices and related matters." 29. The Separation Agreement further provided that any payments received by Noonan, including those received under the Deferred Compensation Agreement, would be subject to forfeiture in the event he failed to perform these obligations: Notwithstanding anything herein to the contrary, if the Company shall determine that [Noonan] has failed to perform his obligations set forth in this Section 8, the Company shall have the right to terminate immediately payment and provisions ofthe Severance Benefits in their entirety. . . and such Severance Benefits shall thereupon be forfeited by [Noonan]. 30. Rite Aid has paid Noonan in excess of $50,000 under the Deferred Compensation and Separation Agreements. 8 31. By pleading guilty to the Information, Noonan has admitted that he breached his obligation under the Separation Agreement to cooperate with Rite Aid's internal investigators, and his breach of that obligation has triggered his duty to repay the Company any amounts previously received by him under the Deferred Compensation and Separation Agreements. 32. Despite Rite Aid's demand, Noonan has failed to repay the Company amounts received by him under the Deferred Compensation and Separation Agreements. 33. As a direct and proximate result of Noonan's breach of his Separation Agreement, Rite Aid has suffered and will continue to suffer damages in excess of$50,000. WHEREFORE, Rite Aid demands judgment in its favor and against Timothy J. Noonan in an amount in excess of$50,OOO, as wen as an award of interest, delay damages, attorneys' fees and costs and such other relief as the Court may deem just and proper. COUNT IV BREACH OF CONTRACT (DEFERRED COMPENSATION AGREEMENT) 34. The foregoing averments are incorporated herein by reference. 35. On November 15,1999, Rite Aid and Noonan entered into the Deferred Compensation Agreement. 36. The Agreement provided that any benefits received by Noonan would be forfeited "if subsequent to [Noonan's] retirement. . . it is discovered that [Noonan] committed an act which would have resulted in [Noonan's] discharge for good cause by [Rite Aid], had it been known to [Rite Aid]." 37. Rite Aid paid Noonan in excess of$50,OOO under the Deferred Compensation Agreement. 9 WHEREFORE, Rite Aid demands judgment in its favor and against Timothy J. Noonan in excess of $50,000 together with interest, delay damages, and costs, including reasonable attorneys' fees, and such other and further relief as the Court deems just and proper. Dated: November 7, 2003 ..-- William A. Slaugh Hara K. Jacobs Douglas 1. Flitter Peter e. Amuso BALLARD SPAHR ANDREWS & INGERSOLL, LLP 1735 Market Street, 51 st Floor Philadelphia, PA 19103-7599 (215) 665-8500 Attorneys for Rite Aid Corporation 11 >- 0" ""r ~-:: L' C'i If) -.:1 6 ~:) ....... ,-. .~ ,~..::~ .):~ " ,~? ~ 1~'.:j'D J.'lJ_ :5 Q Co': G. t-~. -.. .:-" < EXECtmVE SEPARATION AGREEMENT AND GENERAL FF.T .EASE This Executive Separation Agreement and General Release (this "Agreement") by and betv\'cen Timothy Noonan n:.xccutivc") and Rite Aia Corporation (the "Company') is entered into lIS of Fcbl"ll2rY 28, 2000 subject to the revocation and effectivCDess provisions of Section 14 below. WHEREAS, Executive has for many years served as an officer and employee of the Company and its subsidiaries; and WHEREAS, tbe Company and Executive have determined that Executive's emplo}'IIlent with the Company shall terminate effective as of the date hereof; and . WHEREAS, the Company has determined to provide Executive with certain severance benetits, subject to the terms and condilions set. forth herein. NOW, THEREFORE, in consideration of me premises and covenants set forth herein, and for other gQOd and valuable consideration, the receipt and sufficiency ofwbich is hereby ackoowlcdged by the parties hereto, Executive and the Company hen:by agree as fOUOW3: I. Re:lip.na.tion of Position~. Executive hereby voluntarily resigns his employment with the Company effective as of the date hereof. and the Company hereby accepts such resignation. EMcutive hereby further resigns, effective as of the date hercof,-from all positions he may hold as. an officer or director of the Compeny and its subsidiaries and affiliates, and the Company hereby accepts such resignations. . 2. AC9J'llCd Oblh'atio~. Within 10 days of the date hereof, the Company shall pay to Executive in a lump sum the following amoWltS (S\1ch 8mOwts hereinafter referred to as "Accrued Obligations"); (i) Executive's base salary through February 26, 2000, (il) any compensation, including without limitation any bonus and salary, previously deferred by F.xecutive (together with any accrued interest thereon) and not yet paid by the Company, and (iii) any accrued vacation pay not yet paid by the Company, not to exceed ei&ht weeks, and any aDd all other similar amounts generally payable to ltmninBUng ex~utives ofthc COrnpftny. 3. ~evel'AlI.ce Benefits. In consideration for Executive's ~ODll and release of claims set forth herein, but subject to the forfeiture provisiOllllllCt forth in ScctiOllll 7 and g, the Company shall provide: Executive with the following benefits (the "Severance Benefits"): (a) During the period commencIng on the elate hereof and ending on Febnwy 28, 2002 (the "Severance Period"), the ComplUly shall continue pa}'U1ent of Executive' 5 annual base salary at the rate in effect on the date hereof ("Base Salary"), such amounts to be payable at such times and otherwise in accotdance with the Company's standard payroll procedures for officers. (For clarity. it is Wlderstood and acknowledged thlll: for purposes of this Agreement, the meaning ofthc tenn "Severance Period" shall be una.ffeaed by any forfeiture of all or any portion of the Severance Benefits pursuant to Sectioll$ 8 or 9 below). e2e729.11.01 02J2l11OO 2:49 PM '. (b) During the S~verancc: Period, the Company shail provide Executivc with continued covel1ll!e under such of the Company's medical bcoefiu plJms, including without limitation all dental, vision and hospital benefits plans, in cffect from time to time as ~ generally applicable 10 senior executives of the Company, subject to allepplicable terms and conditions of such plans. Without limiting the generality of the foregoing, Executive shall be responsible for any premiums, cu-paymenUl, deductible: and other lImO\lnlll payable by participants pursuant to the terms of such plans. . (c) All stock options hc1d by Executive that have not'Vestccl on or prior to the date hereof shall immediately terminate effective I;\S of the date hereof; movided.. that the option grant made to Executive on May 12, 1998 related to the right to purchase an asgregate of 650,000 shares of the Company's cOmmon sUlek, par value $1.00 per share (the "Common Stock'') at II price of$30.75 per share made to Executive on May 12, 1998 shall continue to vest and become exercisable in accordance with its terms through the end of the severaitcc Period. Any option that vests before the end of the Severance Period shall remain exercisable, but not beyond the tenth anniversary of it date of grant, through the later of (i) the Illllt day of the Severance Period and (ii) 90 days after the date on which the Company is first able lawfully to deliver shares in response to the exercise of thaI option by reason of a resistt'lll:ion lIl11lcmcnt under the Securities Act of 1933 relating to the shares deliverable upon such exercise being effective; and nrovided. further, that with respect to the option grants made to Executive on November 10, 1999, relating to the right to purchase an asgregllte of 1,960,897 Hhanlti of tile . Cornmon SIOCK at a price ofSS.37 per share, the Company aclcno\\1cdges thln as of the date hereof such option grant has vested and become exercisable with respect to 300,000 shares of Common Slock and Executive acknowledges thaI the remaining portion of such option grant shall terminate and expire in full as of the date hereof and shall not become exerc:isable at any time. (d) ThaI cenain Deferred Compensation Agreement, claIed November 15, ] 999 between Executive and the Company (the "Defem:d Compensation Agreement"). shall be amended to provide that Executive shall begin to receive payment ofbcnefits under the Defcrred Compensation Agreement C(Immencing on or after March 1. 2002. Other than as set forth herein, the terms and conditions of the Deferred Compensation Agreement shall remain in full force and' effect. For clarity, il is understood and acknowledged by Exccuti..o that regard.Jess of the date upon which the payment of such benefits actually commences, the milximum period during which such benefits shall be paid is 15 years. (0) Executive shali be eligible LO receive benefits under any applicable pension and weifare benefit plans maintained by the Company ill which Executive is a participant as of the date hereof, inclUding an)' successor plans theMo. in accordance with the lenns and conditions of such plans. Nothing herein shall be constrUed as providing Executive the right to continued vesting or accroal benefits WIder any such plan during the Sevenmce Period. Cf) The Company shall (i) indemnifY Executive to the full extent permitted by the Company's Certificate of lncoxporation (aubject to anY limitations imposed under applicable law) and provide advancement of attorney's fees in connection therewith, and (ii) continued coverage for Executive following tennination of his employment with the 626rn.11.01 0212910O .2. Company Wlder any Direct.or and Officer insurance policies maintained. from time to time by the Company. fOI any cloims that may be made against Executive with respect to his service as a director or oftic:er afthe Company, for any claims that may be made against Exe<:utive with respect to his service as a director or officer of the Company; provided. that Executive shall reimburse the Company for ;ulvanccments if and to the extent so required under the Company's CertiJicatc of Incorporation and applicable law. Eltecutive acknowledges and agrees that (i) he shall not receive Or be entitled to receive any annual or other bonus in respect of the Company's fiscal year ending in.February 2000, (ii) he shall not receive or be entitled to receive any payment in respect of any long-tenn bonus or incentive plan in which Executive has at any time been a panicipant prior to the date hereof, (Ui) he shall not receive or be entitled to receivl:: any annual, long-tenn or other bonus in relpect to the Severance Period or any portion thereof, (i v) he shall not recei ve or be entitled to receive pension credits or otherwise be eligible lOr retirement plllD contributions in connection with the SevcllU1Ce Benefits and (v) other thllD as set fonh in this Section 3, Executive sball not receive or be entitled to receive any amounts or benefits under any stock-based or other incentive, bonus or other compensation, severance or frinae benefit plan, program, policy, agreemcll1 or ammgement of the Coolpany. Ex.ecutive shall not be obligated to seek otht:1' cmplo}'ment or take any other l!l;tion by way ofrnitigation of the amounts, benefits and other compell:Slltion payablc or otherwise provided to Executive under this Section 3. lIn.d such amounts, benefIts and other compensation shall not be reduced in respect of any amounts actUally Cllmed by Executive from subsequent employment. 4. Full J)ischarE\c. Executive agrees and acknowledses that (i) the Severancc Benefits provided to Executive under this Agreemenl and refelTlld to in Section 3 above exceed llIl)" $UD1S or other payments of benefits to which Executive would otherwise be entitled in respect of his employment with the Company and the tennination thereof under any policy, plan, or procedure of, or any ag~ement or understanding with, the Company or its subsidiaries or affiliates and (ii) except as provided in Sec:tion 5(a), the Severance Benefits, and the Ac:crued Obligations referred to in Se<:'.tion 2 above, arc in fun discharge of any and all claims the Executive has or may have against the Company Releasees, as defined in Section 5(d), including without limitation for wages, benefits (including plan contributions) or attorneys fees. S. General Re\el;Se. (8) The Executive Releasors (as defined below) release and forever discharge the Company Releasees (as defined below), jointly and severally, from and against any and all claims, charges, complaints, demands, llCtions, causes of action, agreement.,. promise5, contributions, fees, losses, expenses and liabilities of any kind whatsoever (based upon any legal or equitable theory, whether ContraL1ua1, common-law, 3tatutory, federal, state, local or otherwise), whether known or unknown, which Exec:utive Releasors evet had, now have or may have against the Company Releasees, by reason of any actual or alleged act, omission, uansaction, practice, conduct, occurrence, or other matter up 10 and including the Relc:Il,'lC Effective Date (as defined In Section 14) (the "Claims"); ~ that such release shall not apply With respect to (1) any rights of indemnification end advancement to \\'hieh Executive is entitled as of the date hereof; (ii) Executive's rights under this Agreement; and (Hi) Executive's 626729.11.01 02/2l11DO -3. vested right to any benefit pa)'able after termination of employment under any employee benefit plan, as defined in Section 3(3) o{ERISA. (b) Without limiting the generality of the foregoing, this Agreement is intended to and shall releaM: the Company Releasees from uny and all c1alln$ arising out of Executive's employment by or other service with the Company and its affiliates, or the =ianat;oll or termination of Executive's employment or other service with the: Company IIDd its affiliates, including without limitation, (i) any claim under the Age Discrimirlation In Employment Act, as amended by, among other lav,'S, the Older Workers Benefit Protection Act; (ii) IIDY claim undO!" Title VII of the Civil Righ~ Act of 1964, as amended by, amon& other laws, the Civil Right$ Act of 1991; (iii) any claim under the Americans with Disabilities Act; (iv) any claim under any applicable Pennsylvania law; (v) any other daim of discrimination or retaliation in employment (whether based on federal, state or local law, statutory or deCisional); (vi) any clllim under the Employee Rctirement Income Security Act of 1974, IS amended ("ERISA) except as provided in (a}(iii) above; (vii) any claim under the National Labor Relations Act, IS amended; (viii) any claim under the Worker Adjustment and Rctralnin& Notification Act; (ix) any claim for tort or for breach of contract; and (,,) any claim for attorneys' fees, costs, disbursements or the like, ~m to the extent any such claim relates to (A) any rights of indemnification and advancement to which Executive i~ entitled as of the date hereof; (B) Executive's rights under this Agreement; and (C) the Company's rights under this Agreement. (c) E"ccutive and the Compony further agree that Executive will not seek or accept any award or settlement from any source or proceeding with respect to any claim or right covered by this Section 5 and 6 below. (d) As used herein, (i) "Executive Releasors" shall mean Executive, for himself and for his heirs, executors, administrators, representatives, SUCl:esSOrs and assigns; and "Company Releasees" shall mean the Company and any and aU ofits subsidiaries, divisions, affiliated entities, representatives, successors and assigns, and any and all of its or their employee. benefit or pension plans or funds, and any and all of its or their past or present officers, directors, stoekholders. aients. trustees, administrators, employees. successors or assigns (whether acting as agents for such entities or in their individual capacities). 6. No Claims. Executive agrees, to the fullest extent permitted by law, not to commence, maimain, prosecute or participate in any action or proceeding of any kind, nor . encourage anyone else to do so, against any uribe CompllllY Releasees, arising out of any llet, omission, transaction or occurrence occurring up to and including the Release Effective Date (olher than with respect to an action, omission, transaction or occurrence that is subject to the proviso in Section 5(a)), and Executive represents and W<1nants that he has not done so at any time prior to OT as of the ReleaSe Effective Date. 7. No IniurioU$ Conduct. Executive acknowledges that he bas not 1cnQwingly engaged and agrees that he ....ill not knowingly engage (except as may be required pursuant to . Section 8 below or by applicable law) in any conduct that is injurious to the Company Releasees' reputation or interest, including but not limited to (i) divulging, communicating, or in any way making use of any confidential or proprietary information acquired in the performance of 6267211.11.0t 02l291llO .4 - Eltecutive's duties for the Company and its affiliateli and (ii) publicly disparagin8 (or inducing or encouraging others to publicly disparage) any of the Company Releasee!. 8. Cot'?Cration. (a) Executive shall cooperate fully Vlith Li.e Company and its subsidiaries and affiliates and its counsel in connection with 811Y investigation by the Company relatina to any matter in which Executive WElS or is involved or of which Executive has knowledge by virtue of his employment or other position with the Company Releasees, including without limitation the pending inVClltigation of the Company's accounting practices and related mattees. Without limiting the generality of the foregoing, Eltccutive shaUl (i) make bi_if available to be interViewed upon reasqnable notice and otherwise on a reasonable basis and for a reasonable period oftime relating to any such investigatiol1, (ii) provide, to the best of his abilities trUthful, accurate and complete information and responses in the course thereof (including without limitation during infomlal or fonnal interviews) and (iii) provide all requested documentation that is in his possession or control (pursuant to any fonnal or informal request). (b) Executive agrees that, in the event he is subpoenaed by any person or entity to Bive testimony (in a deposition, court proceeding or otherwise) which in any way relates to Exccutive's employment or other position with Releasees, any investigation, proceeding or litigation Qr otherwise relating to the subject matter of this Agreement, Executive shalL give prompt notice of such request to the Compal'lY'S General. Counsel at the address listed beLow. (c) Executive shall make himseLf available to the Company upon reasonable notice and "thelV.-;sc on a reasonable basis and for a six-month period commencing on. the date hereof to consult regarding the Company's business during lhe u-ansition period for the Compan~"s ncwmar.agement team. (d) The Company shall reimburse Executive for any and all reasonable expenses incurred by him in discharging his obligations pursuant to this Section 8, including without limitation all reasonable travel and related expenses and all reasonable attorneys fees and disbur.sements subject to the reimbursement obligation referred to in Section 3(:1). (e) Notwithstanding anything herein to the contrary, if the Company shall determine that &ecutive has faHed to perfonn his obligations set forth in this Section 8, then the Company shall have the right to tenninate immediately payment and provisIons oCthe Severance Benefits in their entirety (other than vested benefits protected UJlder ERISA and executive's rights to indemnification and IIdvancernern as set forth in Section 3(f)), and such Severance Benefits sh.all thereupon be forfeited by Executive. For clarity, it is Wlderstood and agreed by Executive that (i) such forfeiture shall result in, among other things, (x) the immodiate termination of all benefits under the Deferred Compensation Agreemenl (notwithstanding anything to the contrary therein) and (y) the immediate termination of any otherwise then exercisable stock options; and (ii) the terrnination of payment and provision of Severance Benefits pllISuant to tills Section 8(e) shall in no way affect the continuing validity a.'1Ci enforceability (lithe release provided in Section 5 and Executive's other covenants and agreements hereunder. If at any time during the Severance Period the Company shall become 626729.11.0102l2groO -5- aware of evidence that, Executive may have committed an act which could have resul.ted in Executive's discharge for "cause" by tbe Company, had it been known to the Company, the Company 5ha11 have the right to immediately begin proceedings to tetminatc payment of the Severance Benefits in their entirety (other than vested benefits protected under ERISA). For purposes of this AgreemlOnt "cll.u~e" shall mean that in accorcianee with the Deferred Compensation Agreement, the Board of Directors shall have dr;lcnnined that there has beet) an act which would have justified a discharge for good cause, using reasonable and non- discrinlinatory standards. For clarity, it is understood and agreed by Executive that (i) the termination of payment and provisiun of the Severa:lcc Benctits pUl'S1.llUrt to this Section S(f) shall in no way affect the continuing validity and enforceability ofthc release provided in Section 5 and Executive's other covenants and agreements. 9, ~OisclosU1c. The terms and conditions of this Agreement, tbe disclosure intormation attached lIS Exhibit A, and the circumsW1C1;S and discU$Si.ons iiving rise to this Agreement are and shall be deemed to be confidential, and shall not be diJClosed by Executive to any person or entity without the prior written consent of the Cbainnan and Chief EAt:Cutive Officer of the Company, except ifrequired by law, arta Execulivc's accountants, attorneys or spouse, provided that these latter persons each agree to mainuin the confidentiality of this Agreement, the di:ocJosure information and the circumstances and diSCUSSions living rise to this Agreement. Executive further represents that he has not disclosed the terms end conditions of this Agreement or the disclosure information or the circumstances and discussions giving rise to this Agreement to anyone who is not an executive officer or .director of the . Company other than his attorneys, accountants or spouse. 10. Confidentiality. Executive acknowledges that during the course of his employment with the Company, its subsidiaries and affiliates, he has been exposed to documents and other information regarding the confidential affairs of the Company, its subsidiaries and affiliates, including v.ithout limitation information about their PIISt, present and future financial condition, the markets for their prodllct.~, key personnel. past. present or future actual or threatened litigation, trade secrets, current and prospective cu.stomer lists. operational methods, aequisition plans. prospects, plans for future development and other business j{fairs and infonnation about the Company and its subsidiaries and affiliates not readily available to the public (the "Confidential Information''). In recognition of the foregoing, the EXecutive covenants and agrees as follows: . (a) Except lIS is necessary in order for Executive to enforce his riihts hereunder, and lIS IDa)' otherwise be required by applicable Jawor court order at no time sbnll Executive ever divulge, disclose. or otherwise use any Confidential Infonnation, unlC$S and until such information is available in the public domain by reason other thall Executive's unauthorized. disclosure or use thereof, unlcss such disclosure or use is expressly authorized by the Cbai:nrum and Chief Executive Officer of the Company in writing in advance of such disclosure Or use. (b) Promptly following the date hereof, Executive shall deliver to the Company's offices in Camp Hill, Pelmsylvania all of the property and equipment oftht Company and its subsidiaries (including any cell phones, pagers, credit cards, personal computers, etc.) and any and all documents, records. and tiles. including any notes, mc:mo~ customer lists, repons or any and all other documents, including any copies thereof, whether m 828729.11 .01 02J2i/00 .6- hard copy form or on a computer disk or herd drive, which relate to the Company, its subsidiaries, affiliates, successors or assil:Il!o and/or their respective past and present officers, directoi:s, employees, agents or consultants (collectively, the "Company Property, Rcoords md F ilcs''); it being expressly understood tha.t Execud ve shall not be authorized to retain any of the Company Property, Records and Files, except (i) that in any event Executive may retain his rolodex and (il) to the extent exprcs:;ly so authorized in writing by the Company's Chairman and Chief Exetutive Officer. 11. Non-Solicitation. During the Severance Period., Executive shall not,. directly or indirectly, solicit, inducc:, or attempt to solicit or indu;c any officer, diTedXlr, employee, agent or consulta.'11 of the Company or any of its subsidiaries, amIia,.,s, successors or assigns to tenninate his, her or its employment or other relationship with the Company or its subsidiaries, affiliates, successors or assigns for the purpose of lISsociatin& with any competitor of the Company or its subsidiaries, affiliates, successors or DlIsi&JlS, or otherwise eneo\D'Bge any such person or entity to leave or sever his, her or its employment or other relationship with the Company or its subsidiaries, affiliates, successors or OISsisns for any other !Cason. For p\U]lOSe6 of this Section II,the term "competitor of the Company" shall be defmed as any person or enti'ly which direCtly or indiI1:ctIy through one or more subsidiaries and affiliates owns and/or operates a chain of 200 Or more retail drugstoIe$ in the United States. 12. IUlthts and Remedies upon Breach. If Executive breaches, or threatens to commit:!. breach of. any of the provisions ofScctioDS 10 or Illlbove (the "Restrictive Covenants''), the Company. and its subsidiaries, affiliates, successors or assigns shall have the following naht! and remedies. ellCh of which shall be independent of the others and several!)" enforceable, and each of which shall be in addition to, lUld not in lieu of, an}' other riahts or remedies available to the Company or its subsidiaries, affiliates, successors or a..~igns at law or in equity: . (a) The right and remedy to have the Rcstrictive 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 sUbsidillries, affiliates, successors or -'ana, as the case may be, and that money damages would not provide an adequate remedy to the ComplnY or its subsidiaries, affiliates, successors or assigns, as the case may be. (b) The right and remedy to require executive to account for and pay over to the Company or its subsidiaries, affiliates, successors or assigns. as the case may be, all compensation, prorits, monies, accruals, increments or othe.r benefits derived or received by Executive as a result of any transaction Or activity constitutinllll breach of a.llY of the Re.~trictive Covenants. . (c) Executive Ilcknnv.iedlles and aarees that the Restrictive Covenants are reasonable and valid in geographic and temporal scope and in aU other respects. rf any court determines that any of me RI:~lrictive Coycnanu, or Mj" P""l 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. 626729.11.01 Q2I29IllO .7- (d) If any court determines that any of the Restrictive CovenantS. or any part th.en;of, is unenforuablc because of the duration or scope of such provisions, such court shall have the power (and is hereby instructed by the parti~s) 10 reduce the duration or scope of such provisions. lIS the case may be. to render such provision enforceable (it being the intent of the panies that any such reduction be li.tnited to the minimum extent necessary to render S\l.;:b provision emorcelllilc). and, in its reduced form, such provision shall then be enforceable. (e) The parties bereto agree t.'lat the state and federal courts of Pennsylvania shall have exclusi've jurisdiction 10 enforc~ the Restrictive Covenants a.nd over any other dispute arising with respect to thil; Agreement, and the parties hereby submit to such jurisdictlon. 13. No Violation. The making of this Agreement is not intended to, and shall not. be construed as an admission that any Company Releasee or E'lCccutive Releasee has violated eny federal. stlUe or local law (statutory or decisional), ordinance or reiulatioIl, breached any agreement, contract, understanding, policy or practice, or committed any wrong 1Nbatsoever against any Executive Releasor or Company Releasor. 14. Review IIlJd Revocation Period. Executive shall have up to forty-five (4:5) days fronl the date of receipt hereof to consider the tmna and cOllditions of this Agreement. Executive may accept this Agreement by signing it befOre II notary and returning it to Mr. Robert G. Miller, Chairman and Chief Executive Officer, Rite Aid Corporation. at 30 HlUlter Lane, Camp Hill, Pennsylvania 17011, by no later than the: ciose of business on the forty-fifth (45th) day after Executive receives this Agreement ("Agreement and Release Return Date"). After signing tlus Agreement, Executive shall have seven (7) days (the "Revocation Period") to revoke this Agreement by indic:ating his desire to do so in writing (i) addressed to Mr. Miller at the address listed above. and (ii) received in hand by Mr, Miller no later than the close ofbusines$ on the seventh (7th) day following the dale Executive executes this Agreement. The effective date of this Agreement shall be the eighth (8th) day after Executive executes it (the "Release Effective Date"). Iflhe lastdllY of the Agreement and Release Retllm Dale or the Revocation Period falls on a Saturday, Sunday. or holiday, the last day of the Agreement ond Rclease RetUrn Date or the Revocation Period, respectively, will be deemed to be the next business day. In the event Executive does not accept thil; Agreement as set forth above, or in the event Executive revokes this Agreement during the Revocation Period, this Agreement. including but not limited LO the obligation of the Company to provide the Severance Benefits referred to in Section 3. shall automatically be deemed null and void; orovided. that notwithstanding ....y1hing hClein to the contrary, the:: date of termination of Executive's employment ",-ith the Company shall in all events be February 28, 2000. 15. Acknowledlffi1ent. Executive acknowledges that: (a) he has carefully read this Agreement in its entirety; (b) he has been offered and had an opportunity to consider fully the terms of this Agreement and the disclosure infonnation attached as Exhibit A provided pursuant to the Older WOtkers Benefit Protection Act, for 8 period of at least fony-five (45) days, or where applicable has waived the necessity of a full 45 days; (c) he has been advised by the Company in "'"titing 10 consult with an anomc;y of Executive's choice beforesisning this Agreement; (d) he fully \UlderstaIlds the significance of all of the terms and conditions of this Agreement and he has discu.~sed them with his independent legal CO\Ulsel, or has had a 62e729.11.01 02129/00 - 8 - reasonable opportunity to do so; (e) he has bad answered to his satisfaction any questions he bas 1Il6ked with f1:gard to 1he m~anint and $ignifiellftce of any of the provisions of this Agn::cmCDt; IInd (f) he is signina tliliI Agreement voluntarily and ofhis own free win and assents to all the tenns llnd conditions conUlined herein. 16, Arbitration. Any controversy Or claim arising out of or relating to this Agreement or the breach of this Agreement (other than a controversy or claim arising under Sections 11 and 12. to the extent necessary for the Company to avail itself of the rights and remedies provided under Section 12) that is not resolved by Executive and the Compauy (or ita affiliates where applicable) shall be submined to arbitration in Philadelphia, PennsylVllDie. in accordance \\;th Pennsylvania law and the procedures of the American Arbitration Association. The determination of the arbitl'lllor(s) shall be conclusive and binding on the Company (or itlI affiliates, where applicable) and Executive andjudgnletlt may be entered on the arbitrators' award in any court having jurisdiction. 17. Successors. This Agreement is binding upon, and sball.iNurc to tho benefit of, the parties and their respective heirs, executors, administrators. representatives, successors and assigns. 18. Survival. Except as specifically provided herein, Executive's obligations under Se,,'tions 4, 5, 6. 7. 9, and 10 of this Agre<:ment shall survive the payment of the Severance Benefits. 19. Severability. If any provision of this Agrctmlent shall be held by a court of competent jurisdiction to be ill(gal, void. or unenforceable, such illegality or unenforceabUlty shall have no effect upon. lUld shall not im~ir the enforceability of, any other provi$iClll of this Agreemcnt. Further, if Executive seeks to challenge the validity of or otherwise vitiate this Agreement or any provillion thereof (inclUding, without limitation, Sections S and 6), Executive shall. as a precondition, be required to repay to the CompllllY the Severance Benefits theretofore paid and pro\<;ded to him under this Agreement in their entirety; and if the Company seeks to chellenge the validity of or otherwise vitiate this Agrc:emcnt or any provision thereof, the Company shaJl, as a precondition, be 11::qUired to pay to the Executive any unpaid Severance Benefits and Executive shall immediately be released from his obligation to cooperate as described in Section 8. 20. Notices. All notices and other communications under this Agreement shall be in writing and shall he given by flllC or first class mail, certified or registered with return rec~ipt requested, and shall be deemed to have been duly given three (3) da)'ll after mailing or twenty.four (24) hours after transmission of a fax to the respective persons named below: [fto the Company: Rite Aid Corporation 30 Hunter Lane CamJl Hill. PA 17011 Attention: General Counsel Fax: (717)760-7867 6267'29. t 1.01 0212910O .9- with a copy to: Kaye, Scholer, Fierman, Hays & Handler, LLP 1999 Avenue of the Stars Los Angeles, CA 90067 Attention: Andrew Ash. Esq. Fax: (310) 788-1200 If to Executive: Timothy Noonan 1022 N. Wlltenord Way Mechanicsburg, P A 17055 Any such party may change suchparty's address for notices by notice duly given pUl'SUaDt hcretQ. 21. 00~rnin2 Law: Venue. This Agreement shall be governed by the laws of the Comm.oDwealth of pennsylvanill and the parties in any action arising out of this Agreement shall be subject to the jurisdiction and venue of the federal and state courts, as applicable, in the County of Cumberland, Commonwealth of Pennsylvania. 22. Entire Al2reenlent. This Agrecment and Exhibit A hereto, constitute the compl~ understanding betweeJ'l the parties and supersede any and all prior agn:emenlS, underst!llldlngs. and discussions, whether written or oral, betY."een the parties. No other promises or aareements shall be binding unless in writing and executed atler the Relellliie Effective Date by . the parties to be bound thereby. . 23. Amendment: Waiver. This Agreement may be amended, modified, 5Upenieded, canceled, renewed or extended, and the tenus 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 tjmes to require perfonnance of any provision hereof shall in no manner affect the right of such party at a later time to enforce the Slll11e. No waiver by any pany of the breach of any term or covenant contained in this Agreement, whether by conduct or otherwise, in anyone or moR instances, shall be deem.cd to be, or c-Ilnstrued as, a further or continuing waiver of any such breach, or a waiver of the breach of any other leon or covenant contained in this Agreement. . 24. No Conflict with Other AlZreements. Each of Executive and the Company represents and warrants tbat neither the execution of this Agreement by such party nor the full ant! complete performance: of such plll'ty's obligations hereunder will \'ioiate or conflict in any respect with any written or oral agreement or understanding with any pel'$On or entity. 25. H~dinis. The section headings contained herein 3rt for reference pwposes only and shalL not in any way affect the meanins or interpretation of this Agreement. 25. Counttroans. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered. shall be an original but all such counterpart$ together shall constitute one and the same instrument. 62e72!l.'1.01021291OO -10 - . . IN WITNESS WHEREOF. the Executive has hereunto set his band. end. pursuant to. due authorization, the Company has <:llUSt:d this Agreement to be executed in its name and on its behalf, all as of the day and year set forth below. RITE AID CORPORA'nON Date: jJ !JCf Ice ~~ By: Robert 0, MUler Its: Chairman d Chief Executive Officer Date: ,J /:?'?/oC' 62&729.",0102J2S/110 -11 - . . . COMMONWEA.LTH OF PENNSYL VANtA COUNTY OF CUMBERLAND ) :ss ) On thi~ day offN.WtLA.+J, ,~before me personally came Timothy Noonan, to me;: known and known to me l.O be tire person Ih:::;c:ribcd in and who exewtcd the: Executive Separation Agreement and General Release, and he duly acknowledged to me that he executed the same. . AJj.U.12. ru:') NO~bIiC I P-v ~ Notarla' S..I Gall A. Bonsleln Camp Iii" BoroUgh, Cumterland CounlY My CommlllSlon Expire. Mareh 13. 2000 626729. ".01 02m.'OO . 12- . . EXHIBIT A Severance benefits have been offered to William Titleman lInd Philip Markovitz in connection witb thetennination oftheir employment with the Company pursU8I1t to individually negotiated arrangemenb. Nmm William TItleman Am: Ii!!; 53 Executive Vice President Philip Marlovitz 59 Senior Vice President e26729.11.01 Q2!2V1OO - 13 - e DEFERREO COMPENSATION AGREEMENT 'e AGREEMENT entered into as of the 15th day of November, 1999, by and between RITE AID CORPORATION, with offices at 30 Hunter Lane, Camp Hill, Pennsylvania 17011 ("Corporation"), and the employee named on the signature page of this Agreement (" Employee") . WHEREAS, Employee is rendering and Corporation desires that Employee continue to render valuable services to Corporation; and WHEREAS, to assist Employee in providing for the contingencies of death, disability and old age dependency, Corporation and Employee desire to enter into this Agreement ( "Agreement") to provide Employee with deferred compensation. e e NOW, THEREFORE, Corporation and Employee hereby agree as follows: ,~. 1. (a) In the event that Employee's employment with Corporation terminates after Employee has reached age sixty five (65), Employee shall be entitled to retirement ("Retirement") with the compensation provided in this Agreement. In such event, the Corporation shall pay to Employee, monthly, an amount equal to one twelfth (1/12) of sixty (60t) percent of the highest annual base salary and bonus paid or accrued to Employee within the last ten (10) fiscal years of the Corporation prior to termination of Employee's employment; provided, however, that in the event Employee's Retirement commences after at least six (6) months of the fiscal year in which Employee's Retirement takes place have elapsed, that fiscal year shall be included as the tenth year in the calculation of the Retirement Allowance and Employee shall be deemed to have been paid an annual base salary for that entire fiscal year at the highest rate paid to Employee in that fiscal year. The monthly amount of such 2 . e payments shall hereinafter be referred to as the "Retirement Allowance". Monthly payments of Retirement Allowance shall commence on the first day of the month next following Employee's Retirement and shall continue for one hundred eighty (180) months. All payments of Retirement Allowance under this Agreement shall be made subject to such withholding and deductions as may be required by law. -e (b) If the Employee's service with the Corporation is terminated or suspended by reason of disability ("Disability"), then regardless of the Employee's age or length of service, and provided Employee is not then receiving disability payments under Corporation's Long Term Disability Plan, if requested by Employee and if approved by the Board of Directors in its sole discretion, Corporation shall pay to Employee, monthly, commencing on the first day of the third month next following its receipt of Employee's request, so much of the Retirement Allowance (determined at the date of Employee's Disability) as the Board of Directors shall deem appropriate. Such monthly payments shall continue - 3 e until the earlier of: (i) the cessation of Employee's Disability (whether or not Employee returns to active employment with Corporation or with another employer) or (ii) the payment of an aggregate amount of the product of 180 and the Retirement Allowance or (ii) Employee's death. -e Employee shall be deemed to have incurred a Disability only if according to certification of competent medical authority approved or selected by Corporation's Board of Directors ("Board of Directors"), Employee is incapable of performing normal duties with Corporation by reason of a medically determinable physical or mental impairment which will persist for an indeterminate period of time. (c) If after receiving monthly Disability payments under this Agreement, Employee returns to employment with Corporation, the total dollar amount of Retirement Allowance received by Employee during Employee's Disability shall, in any manner deemed equitable by the Board of Directors, be subtracted from the aggregate Retirement Allowance to which e 4 . Employee may later become entitled at such time as that Retirement Allowance becomes payable under this Agreement. However, there shall not be subtracted from the Retirement Allowance any payments received under any other disability insurance or program not arising out of this Agreement. .. 2. (a) If Employee dies while employed by Corporation or while subject to a Disability, Corporation shall pay to Employee's beneficiary designated pursuant to Section 5 or as otherwise provided in that Section, a Retirement Allowance the amount of which shall be calculated as if the death had occurred (i) after Employee had completed twenty (20) years of service with Corporation and (ii) after Employee had reached age sixty five (65), reduced by one-180th of the aggregate amount, if any, paid to Employee under Section l(b). Monthly payment of that Retirement Allowance shall commence on the first day of the month next following the date of Employee's death and shall continue for one hundred eighty (180) months. 5 . . (b) If Employee dies after payments under Section 1 have commenced, but before payments have been completed, the remaining payments shall be continued to Employee's beneficiary designated pursuant to Section 5 or as otherwise provided in that Section. -. 3. If Employee's employment with Corporation terminates for any reason other than Retirement, disability or death, this Agreement shall terminate and no benefits shall be payable to Employee or to any person or entity claiming by, from or through Employee. 4. If at any time Employee is discharged for good cause by Corporation with the acquiescence of the Board of Directors, or if subsequent to Employee's retirement, disability or death, it is discovered that Employee committed an act which could have resulted in Employee's discharge for good cause by Corporation, had it been known to Corporation, this Agreement shall terminate and any and all rights and benefits of Employee and of any person claiming by, from or . 6 . through Employee under this Agreement shall be forfeited and any benefits then being paid or to be paid in the future shall cease. In the case of an after-discovered fact, the Board of Directors shall determine whether there has been an act which would have justified a discharge for good cause, using reasonable and non-discriminatory standards. .. 5. Employee shall designate in writing on a form delivered to the Board of Directors (Attention: Chairman) a beneficiary or beneficiaries and successor beneficiaries (including address) to receive the benefits, if any, payable under this Agreement upon Employee's death. The Board of Directors shall decide which beneficiary or beneficiaries, if any, shall have been validly designated. Such designation of beneficiary may be revoked and changed by Employee, from time to time, in writing on a form delivered to the Board of Directors (Attention: Chairman), and shall be revoked automatically if the designated beneficiary or beneficiaries predecease Employee, in which case a new designation of 7 . e beneficiary or beneficiaries may be made, If, at the time of Employee's death no designation of beneficiary is then in effect, or following Employee's death, upon the death of all successor beneficiaries designated by Employee, all remaining 'Retirement Allowance shall be paid to Employee's estate. 6. Employee's rights under this Agreement and the rights of Employee's beneficiary or estate may not be assigned, transferred, pledged or encumbered. -e 7 . In determining Employee's length of service with Corporation for purposes of this Agreement there shall be counted any period of: (a) employment with any business entity controlling, controlled by or under common control with Corporation; (b) employment with any business entity at the request of Corporation; (c) service prior to the date of this Agreement with any business entity referred to in (a) and (b) of this Section and (d) any period of Disability (whether or not payments of the Retirement Allowance were made to Employee as a result thereof) . 8 . e 8. Nothing contained in this Agreement shall be construed as conferring upon Employee the right to continue in the employ of Corporation in any capacity and the employment rights of Employee shall be determined as if this Agreement had never been executed. e 9. If at any time after Retirement Employee, without the prior consent of the Board of Directors, undertakes employment with or provides consulting or advisory services to any person or entity engaged in the continental United States: (a) in any business in which Corporation or any entity, employment with which would, for purposes of this Agreement, constitute employment by the Corporation, is engaged (whether or not in competition with Corporation or such entity) or (b) in the operation of pharmacy benefit manager, Employee's right to any remaining Retirement Allowance otherwise payable under this Agreement shall at that time cease and terminate permanently. The provisions of this Section 9 shall not be applicable with respect to 9 e . employment by or consulting services to a trade association of persons or entities referred to in (a) of this Section. ". 10. The benefits, if any, payable to Employee in accordance with this Agre~ment shall not constitute a segregation of funds or other property for the benefit of Employee or of any person or entity claiming by, from or through Employee. Nothing contained in this Agreement and no. action taken pursuant to the provision of this Agreement shall create or be construed as creating a trust of any kind or a fiduciary relationship between Corporation and Employee or any person or entity claiming by, from or through Employee and neither Employee nor any person or entity claiming by, from or through Employee shall have rights with respect to the benefits under this Agreement greater than the rights of an unsecured general creditor of the Corporation. 11. (a) The Board of Directors shall have full power and authority to interpret, construe and administer this Agreement and shall not be liable to Employee or any person . 10 . -. or entity claiming by, from or through Employee for any action taken or omitted in connection with the interpretation, construction or administration or this Agreement and no action taken or omitted by the Board of Directors in connection with the interpretation, construction or administration of any similar or dissimilar agreement between Corporation and any other employee of Corporation shall by reason of this Agreement create any cause of action in Employee or any person or entity claiming by, from or through Employee. All decisions, interpretations and actions of the Board of Directors taken in connection with this Agreement, including any claims for benefits made under this . Agreement , shall be conclusive, final and binding on all parties. (b) If the Board of Directors denies the claim of an Employee or of any person claiming by, from or through Employee (a "Claimant") for payment of the Retirement Allowance under this Agreement, the Board of Directors shall provide written notice, within sixty (60) days after receipt . 11 . of the claim, setting forth in a manner calculated to be understood by the Claimant; (i) the specific reasons for such denial; (ii) the specific reference to the provisions of this Agreement on which denial is based; . (iii) a description of any additional material or information necessary to perfect the claim and an explanation of why such material or information is needed; and (iv) an explanation of this Agreement's claim review procedure and the time limitations of this subsection applicable thereto. Employee or any Claimant whose claim for payment of the Retirement Allowance has been denied may request review by the Board of Directors of the denied claim by notifying 12 . . . the Board of Directors in writing within sixty (60) days after receipt of the notification of claim denial. As part of said review procedure, the Employee or Claimant or their authorized representatives may review pertinent documents and submit issues and comments to the Board of Directors in writing. The Board of Directors shall render its decision to Employee or the Claimant in writing in a manner calculated to be understood by the Employee or Claimant not later than sixty (60) days after receipt of the request for review, unless special circumstances require an extension of time, in which case decision shall be rendered as soon after the sixty (60) day period as possible, but not later than one hundred twenty (120) days after receipt of the request for review. The decision on review shall state the specific reasons therefor and the specific Agreement references on which it is based. 12. This Agreement shall be binding upon and inure to the benefit of this Corporation, its successors and assigns, 13 e - and Employee, Employee's beneficiary, heirs, executors, administrators and legal representatives. 13. Failure to insist upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any right or power hereunder at anyone time or more times be deemed a waiver or relinquishment of such right or power at any other time or times. .. 14. If any clause, sentence, paragraph, section or part of this Agreement shall be held by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder hereof. 15. Any notice required or permitted to be given under this Agreement shall be sufficient if in writing and sent by registered or certified mail; if to Employee, to the address shown on the books of Corporation; and if to Corporation, to 14 . . the address shown above or such other address as Corporation may have designated in writing, or if actually received by the person to whom sent. 16. This Agreement shall be subject to and construed in accordance with the laws of the Commonwealth of Pennsylvania where it is made without giving effect to principles of conflict of law. IN WITNESS WHEREOF, Corpqration has caused this . Agreement to be executed by its dUly authorized officer and Employee has hereunder set Employee'S hand as of the date first above written. EMPLOYEE / ~~ By: -- vice ~J President , S,\AREA6.LEG\OEF-COMP\nooan-defcomp-111599.wpd 15 . , . UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLV ANIA UNITED STATES OF AMERICA NO. . . -v- : (J. TIMOTHY J. NOONAN INFORMATION The U.S. Attorney Charges: INTRODUCTION Rite Aid Corporation 1. During all time periods encompassed by this Information, Rite Aid Corporation, hereinafter referred to as "the Company," was a publicly held corporation duly organized and existing under the laws of the State of Delaware. Incorporated in 1968, its primary business was the operation of retail drug stores. The Company also engaged in pharmacy benefits management, the marketing of prescription plans, and managed health care services. Rite Aid's headquarters and senior executive offices were located at 30 Hunter Lane, Camp Hill, Pennsylvania. Most of its accounting department personnel were located at a separate facility in Valley Green, PA. 2. As a publicly owned corporation, Rite Aid's stock was traded on the New Page 1 of 14 .. York Stock Exchange. As of May 10, 1999, the Company had more than 258 million outstanding shares of common stock.. The Company also sold short term notes (commercial paper) and other securities to the public. The Board of Directors 3. Rite Aid was governed by a Board of Directors, which consisted of 8-9 members serving staggered, three-year terms. The Board regularly met 4 times a year and usually had 5-6 "Outside Directors," who ,were not corporate officers. The Board had various Committees, including an Audit Committee and a Compensation Committee, each of which were composed of3 Outside Directors. The Audit Committee oversaw management's financial reporting responsibilities and the Company's maintenance of appropriate internal control systems. The Compensation Committee reviewed the performance of the Company's executive personnel and made recommendations to the Board with respect to executive compensation policies. The Top 4 Corporate Officers 4. The top 4 corporate officers at Rite Aid between March of 1995 and October of 1999 were MARTIN L. GRASS (GRASS), T1MOTIN J. NOONAN, FRANKLIN C. BROWN, and FRANK M. BERGONZI. GRASS'was appointed Rite Aid's Chief Executive Officer (CEO) and Chairman ofits Board of Directors on March J All references to numbers of shares in this Indictment reflect the February 2, 1998, two for one stock spilt. Page 2 of 14 .. , . 4, 1995, the beginning ofits 1996 Fiscal Year.2 Prior to his appointment, GRASS had been the Company's President and Chief Operating Officer (COO) since 1989, a member of the Board of Directors since 1982, and a corporate officer since 1980. GRASS is the son of the Cornpany's founder, Alex Grass.3 GRASS served as CEO and Chairman of the Board from March 4,1995, until his resignation was announced on October 18, 1999. " \ ~ 5. At the time of GRASS' promotion to CEO on March 4, 1995, Timothy J. ,I' NOONAN became Rite Aid's President and Chief Operating Officer (COO). NOONAN also became a member of the Board of Directors at that time. Prior to that, NOONAN had served as the Company's Executive Vice President and had been a corporate officer since 1973. NOONAN served as Rite Aid's President, COO, and as a member of its Board of Directors from March 4,1995 until October 18, 1999. .Between October 18,1999, and December 5,1999, NOONAN served as the Company's Interim Chief Executive Officer. NOONAN resigned from Rite Aid employ on February 25, 2000. 6. On March 4, 1995, FRANKLIN C. BROWN was Executive Vice- President, Chief Legal Counsel, and had been a member of the Board of Directors ZJljte Aid's fiscal year ends on the Saturday closest to Feb 28 or March 1. 3 Alex Grass retired as Chairman of the Board and Chief Executive Officer on March 4, 1995, positions he held since the founding of the Company. However, Alex Grass continued to serve as a member of the Board of Directors unti12001. Page 3 of 14 , . sincel981. Prior to his appointment as Executive Vice President in April of 1993, BROWN served the Company for 13 years as Senior Vice President and General Counsel, and as a corporate officer since 1969. BROWN served as Executive Vice President, Chief Legal Counsel, and as a member of the Board of Directors until July 9, 1997, when he was promoted to Vice Chairman of the Board of Directors. Thereafter, BROWN resigned as an employee of Rite Aid on February 25, 2000, and as a member of the Board of Directors on May 29, 2000. 7. On March 4, 1995, FRANK M. BERGONZI was promoted to Executive Vice President and Chief Financial Officer (CFO) of the Company. Prior to that BERGONZI had served as Senior Vice President of Finance and as a corporate officer since 1977. BERGONZI became a Certified Public Accountant (CPA) in Pennsylvania in 1970, but his certification expired in 1983. BERGONZI served as Executive Vice President and CFO from March 4,1995 until January 13, 1999, when he was promoted to Senior Executive Vice President and CFO. BERGONZI served as Senior Executive Vice President and CFO until June 14, 1999, when he resigned his position as CFO. Thereafter, BERGONZI maintained his office at corporate headquarters where he worked in an untitled capacity until his retirement on or about October 18, 1999. 8. As Rite Aid's four highest and most senior officers, GRASS, NOONAN, BROWN and BERGONZI directly participated in the day-to-day management of the Company and, as such, were privy to aU pertinent information regarding Rite Aid's Page 4 of 14 '. business operations, accounting, and fmances. As Rite Aid's four most senior officers,' GRASS, NOONAN, BROWN, and BERGONZI owed fiduciary obligations to manage the Company's affairs honestly and to provide complete and candid information to Rite Aid's directors, shareholders, and investors. GRASS, NOONAN, BROWN, and BERGONZI were duty bound to provide truthful, complete and accurate information to Rite Aid's accountants, auditors, and government regulators, and had statutory duties to ,Ii . , dis~~minate accurate information with respe~ to the Company's true financial condition ',f and .earnings. RiteAid's Financial Statements and Earnings Reports 9. Between March of 1995 and October IS, 1999, GRASS, NOONAN, BROWN, and BERGONZI caused Rite Aid [mancial statements that purported to conform with GAAP and the applicable regulatory requirements to be prepared and filed in Quarterly and Annual Reports with the United States Securities and Exchange Commission (SEe). The Quarterly (Form 10-Q) and Annual (FormIO-K) Reports, which were signed by GRASS, NOONAN, BROWN, and/or BERGONZI, included acknowledgments that management was responsible for the preparation, integrity and objectivity of the financial statements, along with representations that they were prepared in conformity with Generally Accepted Accounting Principles (GAAP). 10. In these financial statements Rite Aid portrayed itself as a financially robust company with sustained economic growth between FY 1996 and FY 1999. Net Page 5 of 14 income for FY 1996 and FY 1997 exceeded $158 million and $116 million, respectively. According to the Reports, net income more than doubled in FY 1998 to $316 m Hlion. In the Company's FY 1998 Annual Report GRASS boasted that Rite Aid just completed "the most ... profitable year in the history of our Company." The Price of Rite Aid Stock 11. As a consequence of the financial statements tiled and earnings announcements made by GRASS, NOONAN, BROWN, and BERGONZI, the price of Rite Aid stock soared. Between March of 1995 and February of 1999 the Company's stock price rose by more than 306%, an increase more than twice that of Standard and Poor's 500 stock index. On March 3,1995, the price of Rite Aid stock closed on the New York Stock Exchange at $12.81. Two years later on March 3,1997, the price was at $21.75. By July of 1998 the price hit $40 a share, That year Rite Aid was named by Business Week as one ofits 50 top-performing companies and by Fortune magazine as one of "America's Most Admired Companies." On January 8, 1999, the Company's stock closed at its all time high of$50.94 per share. To illustrate the dramatic increase in the price of Rite Aid stock between 1994 and 1999, as compared to the rest of the retail store industry, Rite Aid included the following chart in the Company's 1999 Proxy Statement: Page 6 of 14 STOCK PERFORMANCE GRAPH The graph below eo~ares .the yearty percentage -chaQg8 .in the' cumu&atiVe1otal st~hoIder mum on the Common Stock for the lastflve f\scaI years' with the cumulative lOtalrelUrn on :the S&P SOO Index and the S&P Retail _Composite Index"",", the same period (all..,miog the 10",._ of .'00 I" the Common Stock. end such indices on FebruaI'lf "26~ 1994 -and minveatment -01. dlvldenda). For comparison of cumukrtkre ,total retum. the 'Company has elected to use the S&P RelaY 8tDrw CompOsite Index. ,conRrting 01 '3S companies 'Including-the six -large.t 'drugatore"chalna."" ehowa competison of the Company to the peer group of atm)lar sized companle., used by the eornrnm.. in its eveluaDon and determination of -executtvecompenaatlon. soo ~ .00 350 ~ 300 Z50 200 ~ ~ 150 ~~~ 100 SO 1_ 1_ 1_ 11187 ,81N1 ,- - .... Co<p. - "00 "-33.10 '.'7'3.74 $2S'7;77 S37CUt8 ....A1 I saP~1 -a- "00 '..81.4'7 $100.82 .'24.'4 .'88.8' ....., SAP 600 lnchlc ---0- "00 St07.a!5 $'.....56 S182..ae &248.1'7 82M."" """"Cornpanya ti~llf8ar.,Qa on-......-~-c:iD&eIl1.'to Fet:truary H or....1'Ch 1. Rite Aid's Internal Investigation 12. On October 18,1999, the Company issued a Press Release announcing GRASS's resignation as Chairman of the Board and Chief Executive Officer, that Tim NOONAN would serve as Interim CEO, and that it expected a restatement of its FY 1997- 1999 income to total, on a pre-tax basis, $500 million. With GRASS' resignation, BERGONZI immediately ceased working at Rite Aid. On November 11, 1999, Page 7 of 14 .. -' KPMG announced it was resigning as Rite Aid's auditor and withdrawing its opinions with respect to Rite Aid's FY 1997-1999 financial statements. 13. On December 5, 1999, Rite Aid announced a new senior executive management team, one with no previous ties to the Company, had been hired.4 That month the Board of Directors launched a massive internal investigation into the Company's accounting and financial reporting. A New York law firm (Swidler, Berlin, Shereff, & Fri~dman, LLP) was retained to conduct the ~robe. A new public accounting firm, Deloitte & Touche, LLP, was hired to replace KPMG. The forensic accounting team at Deloitte & Touche was also engaged to help review and reconstruct the Company's books and records. The $1.6 Billion Dollar Restatement 14. The internal investigation lasted nearly 8 months and entailed more than 80 interviews of current and former Rite Aid employees. After the results were presented to the Board, the Company filed its Annual Report for FY 2000 with the SEC on July 11, 2000. The filing included a comprehensive Restatement of Rite Aid's financial statements for FY 1998, FY 1999 and the 1" Quarter ofFY 2000. 15. The Restatement was the largest restatement of corporate income in the history of the United States. The filing fixed FY 2000 as a $1.133 billion loss, FY 1999 as a $461.5 million loss. and FY 1998 as a $165.2 million loss, Although the Restatement "NOONAN and BROWN retired from Rite Aid employment in February of2000. Page 8 of 14 did not specifically address net income for FY 1996 or FY 1997, it reduced retained earnings for all years prior to FY 1998 by an additional $547.1 million. As such, the Restatement effectively eliminated all profits originally reported by Rite Aid between FY 1996 and the I st Quarter of FY 2000. The following table compares the Company's originally reported net income to the July 11,2000 Restatement: Net Income As Net Income (Loss) Per . Originally Reported July 11, 2000 Restatement FY 1998 $316.4 million ($165.2 million) FY 1999 $143.6 million ($461.5 million) 1st Q FY 2000 $81 million ($43.7 million) Total $541 million ($670.5 million) Other Crimes 16. Beyond massive accounting fraud, Rite Aid's internal investigation uncovered substantial evidence GRASS, BROWN and BERGONZI had perpetrated other offenses, including Conspiracy, 18 D.S.C. ~ 371, Mail Fraud, 18 D.S.C. ~1341, and Wire Fraud, 18 D.S.C. ~ 1343, in the course of their scheme to manipulate the Company's earnings. Among other crimes, the investigation revealed a scheme to defraud Rite Aid's vendors out of millions of dollars and a scheme to defraud the Company via GRASS' issuance of back-dated severance letters after GRASS no longer was employed by Rite Aid. The Upcharge Page 9 of 14 ~ '. 17. In order to inflate the Company's reported earnings, the senior management of Rite Aid devised schemes that defrauded Rite Aid's vendors. As a major retailer, Rite Aid did business with thousands of vendors and suppliers, spending billions each year on pharmaceutical and consumer goods. Rite Aid had different agreements with its vendors regarding darnaged and outdated (D & 0) merchandise. Most allowed Rite Aid to take a , D & 0 deduction against future payments without returning the goods to them or a third .'1 . , ..,I' party. These vendors relied upon Rite Aid providing a monthly statement that accurately ',~ reported the quantities ofD & 0 product removed from Rite Aid's stores. I:: 18. With GRASS, NOONAN, BROWN, and BERGONZI's knowledge, approval and direction, Rite Aid arbitrarily inflated the quantities of damaged and outdated goods it reported to its vendors between FY 1995 and FY 1999. Known as the "Upcharge," the percentage of inflation was approximately 35% in FY 1995. At the beginning ofFY 1999 the Upcharge was increased to 50%. 19. The Upcharge was never disclosed to the vendors, who were unaware Rite Aid was systematically defrauding them. The Upcharge had a significant impact upon the Company's fmancial statements, allowing Rite Aid to claim and deduct approximately $53.1 million in additional, bogus D & 0 credits between FY 1995 and FY 1999. More than half of that amount, $27.8 million, was recorded on the Company's books and records during FY 1999. The February 23,1999, Chargebacks Page 10 of 14 " 20. In late February of 1999,justbefore the close ofFY 1999, GRASS, NOONAN, BROWN, BERGONZI and their co-conspirators devised yet another scheme by which to inflate Rite Aid's earnings by defrauding its vendors. During the summer of 1998 the Cornpany decided to discontinue carrying a large quantity of goods,much of which were acquired in the Thrifty Payless acquisition. Known as non-go-forward product, the goods were sold at substantial markdowns in clearance-type sales. 21. Despite the fact there were no prior vendor agreements in place for sharing these costs, and despite the fact the amount charged was merely estimated as a percentage of each vendor's annual sales, GRASS, NOONAN, BROWN, BERGONZI and their c0- conspirators caused Rite Aid's Category Management and Accounts Payable departments to bill the vendors for the markdowns. The invoices, all of which were dated February 23, 1999, falsely described the chargebacks as deductions for damaged and outdated goods. As a result, $29.7 million in additional bogus vendor credits were booked as income for FY 1999. The Back-dated Severance Letters 22. During the Summer of 1999, as Rite Aid's fmances began to fail and GRASS endeavored to sell the Company, GRASS gave highly lucrative, back-dated severance and enhanced deferred compensation benefit letters to several officers. This aspect of the fraud against the Company did not end with GRASS' resignation. Sometime after his resignation on October 18, 1999, GRASS and BROWN prepared at least 31etters Page 11 of 14 . . ~ " . .. bearing GRASS's signature on Rite Aid letterhead and caused them to be delivered to Tim NOONAN, Eric Sorkin, and another Rite Aid employee. The letters, which were back- dated to dates when GRASS was the Company's CEO, granted the recipients millions in enhanced severance and deferred compensation benefits. 23. With respect to NOONAN's back-dated letter, GRASS signed and BROWN delivered the letter, which was prepared on GRASS' CEO letterhead and dated January 8, ,.'1 I 19~,~, to NOONAN in December of 1999. In addition to stock option exercise rights, the \\\ back-dated letter granted NOONAN continued salary and his highest annual bonus for 3 . years following his termination or removal from the Presidency of Rite Aid, followed by deferred compensation benefits for 20 years beyond his 6511I birthday. At the time NOONAN received the letter he was 58 years of age, his annual salary was $700,000, and his highest bonus had been $628,600. However, NOONAN never submitted the letter to the Board of Directors and ask that it be honored.. Noonan's Misprison 24. While the Company was actively engaged in the course of its internal investigation, GRASS and BROWN met with NOONAN on several occasions between March and July of 2000 at various locations in Pennsylvania and Maryland. During these meetings GRASS and BROWN encouraged NOONAN to withhold material information rel!:ardine the criminal activities that had taken place at Rite Aid from the internal investigators. As a result, NOONAN did, in fact, withhold key information regarding, Page 12 of 14 ,.< . among other matters, Rite Aid's accounting fraud, vendor fraud, and the back-dated severance letters, when he was interviewed by the internal investigators on March 16, 2000, March 30, 2000, and July 27, 2000. COUNT ONE (Misprision of a Felony) ,'I , , ",I' ",; 25. in Between March 16,2000, and_July 27, 2000, in the Middle District of Pennsylvania and elsewhere, the defendant, ::\ ", t!1 TIMOTHY J. NOONAN, having knowledge of the actual commission of a felony cognizable by a court of the United States, to wit; Conspiracy, Mail Fraud, and Wire Fraud, as set forth above, did conceal same by intentionally withholding and concealing material information regarding these offenses during interviews with Rite Aid's internal investigators, and did not as soon as possible make known the same to some judge or other person in civil or military authority under the United States. All in violation of Title 18, United States Code, Section 4. TIlOMAS A. MARINO Page 13 of 14 " .".' . ~. United States Attorney Middle District of Pennsylvania DATE: Page 14 of 14 p, 005 DEe, -17' 96\T\lE\ \l:00 JDRP '\ olD,.. ..,. .~_ __rUr ..,. nAS ,"P16ZDN tW ~I'.hl!I" nUD G.I:.10 W ll-'ll/lU' '111341113 - onllle RESTATED C~T%J'lCJ\TB OF INCClRl'ClMT%ON or Rn'S AID COIU'ORA'l'IOJI al~. Aid corporation, a corporaeion organiled an4 ..istin; lindeI' the law at the State of D.l."al'l, h....bV C81'eitl.. .1 tollow.: 1. The n... at th. carporatjon i. Rite Aid carpar.~ton and the corpgration vas 'originally inoorporat.d under the .... JIIH. The odgin.l e.rtiUc.~. of IncDJ'pantioft of Rite Aid Corporation va. tlled April 15. 11&1. i. ~11 ISltated certificate of Znclrpgratian .'1'11y re.tate. 1M intevrat.. and doe. not flll'ther ..end 1:IIe ps'ovidonl or tbe certUlca~ or Incorporation of the oarponUon, <<a amended or IUfpl..ent.d, Ind th.r. i. no discr.pancy batv..n the provi8ione of tha certificate ot Incorporation, a. amended, and thie AB.tated Certificate of Incorporation. 3. :hil R.atateO Certificate of Inc~oratlon haa Men dUly adapt:.d ~ the a".rd ot Db-actor. of tbe col:pDrlt.ion 1n aacordana. w1th the pr"Y18iona of Sei;t.lan 245 at the Cenera! corporat.ion loAV Of the lute of Delevue. ... TIle teltt or the RlIatatec:l Certific"te of tncgrporation al heretofore a.ended or 81Ipplellllnt.cI !. hereby rastatel! to read in ita entirety es follow8' PIRsf: De n..e ot thi. CorporaUon (herelllafter oalled the "corporation"1 1s JUT! A:tD CORPORATION, SE~; '1'l1a Idlk'asa, includin, atreet, IPlIIIber, oi'ty, end county, ot t.be regiltered arUoe ot the carpouUon :I.n the state of Delavan ie IOU C8lltZ's ....d, City af W1Ui1nl,lt.on, C01Int.y of B." CaRl.; and the na.. of t.he rtgi.ttrtel IGent of the a~atiall 1n the state of Delawan at 81Ieb addl'.e. is The h'elItice-JlI.U Cotpontion syatea. :tM. 'l'RtJl91 "be plII'pa.. Of till corporation 11 to engage in any laWful act or activity 'or which corpontbnl ., be ol'pniaed under the General corporation Law ot the Itlte of aelavan (tbtI ~aen.ral CGqlDI'aUon Lav"): mIm'NI: . '1'Ile total IMPOQ:' af MUll of aUe)!. vhlllh the C1ol'poreUan .ha1:l. haw aUthDl'ity U taaue ahall be thz'e. Ilundred tventJ' .11110n (320,000,0001 .har.. of Which ~.e Ilundred .illLoa (300,000,0001 8haree 8hall be Cc~ stock of the par valu. of $1.00 par ebare. and twenty .1111011 (20,000,0001 Ihar.. .baU be 'r.fund StOC3C Of the par valli. of 81.00 pe~ eMra, GoalN'Ol Door 3111J,tI ut.\i, -li' ~HlUt.1 ll:UU ~UKr rbs d.,ignltion8, ~.f..enc.. and ~.lativ., pa~'lcipat!n" op~ional or o~.r .pactal right. and qgalit1cations, ltlltatlon. or raatr1etlona at elch ela.. of .~ock are &I follow., A. '1'118 P&'Bfarred StDele aay bs i"lIa4 in one or Bon e.~i.a and _y Ile with I\leh Vgtillf povne, full 01' 11I11i~.4, 01' w1thout voting powers, Ind ~ith IUch deei9nations, p~.r.~anc.. and ~.l.tiv., partlcipatin" optional or othar .pee111 rt9hta, and qualifications, li.1ta~on. or r..t:rictiona thersot. .s ahall lie rured by the 80l1'd at Dtr.ctoZ'B pur.usnt t.a aqtllarity he.by expr..IIY gTlnt.4 to it, and a. Ihlll be Itated ~d expr.8S8d in u. r..e~\ltiOft ~ I'e.olutionl providin9 rDl' the iasus or such .toak a40p\\8. by the Boud of Dtre.:1:o:n pIll"lluant: ,"0 alltbadt.y expres.ly ve.t.d in it by the.. provision.. B. Any Preferred stock or .erle. theno' .'Y N made .ul:lject to 1'edeJl\ll1:ion at 81lcb. t1llle or t1111e. and at neh pdoe gr prices 118 shin be &tatlll and exPresSed 1n \lie re.alut:iona rar re.olutions providi"" tot' tile iSlIlI.e at Buch at.ook adapted. by eft. Boarcl ot Directors III hereinuove provided. C. TIle holder. of Pr.t8&'red Stack or at any .Brie. thereot shall be en~itled to receive dividends st SYah ~ate., on .uoh conditione and at: luah times as shall be lta~d Ind a.,r...ad Ln the &,.solution or re.olutions providinq for tbe ie._ ot ell.ch stocle adapted by the B04lXd of Dizoeei:orB e. het'.1n.~ve proVidedl payable in preterenc. to, or in ducb r81at1on to. the div dends payebl. on any other ala.e or 01..... of ~oQk. or aqnulet!v. or non-euaulat1ve as shall be 10 stated and .lepr....d. D. ,T.IUl hel4K. at l'I'efeu" stock or at any clu. or 0' any .8rie. tbereot, Ihell be .nt1tle4 to Buch rigbt8 upon the dLe.olution of, or upon any dls~i)qtion ot !h. I..eta or, the co~etion as .hall be stated and ~..Bed in the ra.olll.tion or n.ol\1tion. J)t'ovitlJ.n, tor ~e .i..ue of such nOOk adopted by the loari of DlrBc!ore Ie hus1nsbcnnl provld04. II. Ally Preferred Steck of any cllle 01' ot Iny s.d.. thereot .ay ~. .ed. convertible into. or e.chan,..bl. for, .hare. of anr oca.r a~..e Dr cl..... ar of any O~b.r "l'le. of the .... at' of afty otbar elll. or ell.... of etock of the corporation, or .hll'ee ot .ny cla.. ClZ' .eri., of .tack. af .ny othe oDrJlOZOI't10n, at '\1= priCe or pdee. or at such ratas of excblnte and with ,ueh aclju.t:unta .. 8haU be ltated and expres.ed or provlcle4 fill' 1n tbe resolution 01' reaol\1ttone providing tal' the i.lu. of eUGh ,took adapted br the BOlrd ot Director. .. hereiDaboY. provided, .,. llIloapt.. otherwiee by eut.llt:a Ill' by the r..01lltI0ll8 provllUN1 for the 18.\1. ot Inferred S~ s,.c1UcaUy provide.., tbl Preterred stacie and the CllIIIIIlln S1:oc:k IlIlll each IIlv. the 1'~t .nd pont' to vote Oft III alttez'. 011 lIItich . vote ot .toolcllelder. 1. tll l:Ie taJcen. EaCh ho1411Z' of <:lW'ltal 0.0 alii"" 2 r, VVq ..........O(>l....l CCCCl...Clr"l,...T-:;>Tr ...... I ,n' In....' , "1' , -"1' ,,..,-.-. ,.,,,,, -.,., ~. ~, . ...... ---.....- -.- ,.-... I. ..".. .....,...., ~, ..... \ I .... I ~ - . .. ... YU,.... lreferT.d Stock end e.ch he~der of cOnlon stoQk of the ~arpoZ'et1Dn lIIIuttee! to vote .hdl bu.. one vote for .aCh .har. 1:hereof held. 'U!'II: '1'h8 n... Ina the ,dUng addr... of the lnc:orparator 18 as tollaws; Lawrenc. P. L;i"'an, lit Broad.wl" Mev ~ork, Naw ~Drk 10008. 8r~: The aorpoZ'ation 1. to bav"p.rpatual ex1.tenC8. .. SEVBITR: Wh.nav.r a aompra.t.. or arrange.ent 1. ,rope.ed between tbe carparatlon and itecreditore ar any cla.. ot the. end/or bot~een t~e DOZ'poration and it. etockhaldere or an1' cl... of Un, any court at equit.abl. jUI'J.odillUon wiUlln tIl. Stat. of Delaware ~ay, an ~e .ppllcatlon in a ~.ry way of the corporation, or of In1' creditor or stockholder thereot or on tha application ot any receiver or receivers appointed tor the corporat10n under the provi810ns of Section 29~ of the General corporation ~w or on the application at tru.t.... in di..olu~1an or of any "sadvar or :receivar8 appai1ltecl tar tbe ll~pOl'ation I.IIId.~ ttle Fovuioll. of S.I:Uon 275 at tIl. Genaral Corporation LaV order I .,etlng ot ths creditol'8 or cl..s of cr.ditors, Indlor of tu Btaelcholders or c~... of .aclcbolders Of tile corpor'tion, as the cas. lIaY be, to be lII\11111l1onecl in IUd! Mnnsr .. th. .Iid cOijrt directe. It a ..jority in nu~ repre.enting tbrss-tourth. 1ft valu of tbe m:-.UtlJr. ar 01... of =editors, IndiaI' of the .taokhcldor. or 01..' of stel:khal'.r. of the corpDrstian, a. till cas. "y be, agree to any CDlIprOll1e. 01' uu",...nt and to any "organization ot the eorporat1on .. consequence of such co.,roM1., or arr.ng..,nt, tha aaJd cOMProml.. = arranqement and the said reorqanlzatlon Bhall, 1f ..nationed by Cbs court to which the said application ha. b..n ..de, be binding on III the stockholder. or cla.. at .toclchaldN'8, ot tbe corporation, a. the CIB8 .a, be, and a180 an 1:11.8 cDqlOZ'lticm. JIGII'.I.'H I Par Ue lII.nag..."t of tbe wdn... a!\c1 for tn. CDllduct or ~e andre ot ths a~.tlDJI, end in fla'tber 'af!nUion, 11.11iuUon and l.'8fJulaUon at thl pover. of tbe COQaZ'.Uon an. of ita dLncton and Itockholdar., or any cla.. thereof, " 'be ce.e ..y be, .1, i. turthar p~Dvld.'1 1. tlie lIIlIIOJ...nt at the Iill.!n.., &1\4 the eondUat of the attairs at tbe corporation, inclUding the election ot th. Cbainan of the Iloard of D1rectora, if any, tile President the rrealunr, the Secretlry, all4 ather prinQipal Dftlo~ of the corporation, eball g. vaa~e. 1n 1M Board or Dlnet.=e. The lIuber of DlrectcR'e af the cDrpor.tion .hall be fi..d by the By-Lava ot tb8 corporatlon anlS .., H alter.1S tl'oa ti.. UI till. a. pnIv1484 tbe:nin, bUt 1n no avent IllaU tile nailer of tU~.Ilt:D!'. of tile ~at.lOll be le.. thin three nor .fte than fUt..n. A dlrector &hall ~. .lect:" to hold otllo. ~nt:l1 ~e c:&.aIJIIIDrelll\U.3 " 3 -.., -. ... .. . ,- -- -- -- .--......,..... . ~..---......."-.........-..........,.. ..... ......,.........., -, r. uuo U~V, "II 10 \ I U~ I I': U I uUl\r expiration af tna Cerm tar Which sueh ,.,.on t. ela~t.d, and unci 1 lucb persPR's luac..eor ahlll ~. duly .leated and qual1rbd. tb. db-Iatar. Df the cOJ'P'I'It:1Cln .hlU be divide. inta thre. alal.e., .s nluly el(l&ll1 111 nuldlel:' a. po..Lbla, d..iqnated cla.e I clas. It Ind CIa.. IIZ. Tb. , tl~ at atrial at eft. initi.i clall I director. Iblll explrl at the annual ..etlnt af eCackholderl to ~I hald in 1177j the tera of Clffie. of the initial C1a.. %1 dll'ect~1 ahall -.,tr. at tha annual ...tinf ot .ta~aldar. to b. b.ld in 1971' and tho t.ra at ottlcl at tbo initlal el.11 III cUrector. Gill expire It thl annud ....Ul\f at .tock!lold.r. to be b.ld in 1979. At I.ell annuIl m.lt1n; of .tackbold~. eoimlnoinq with the annual ..et!ng to ~ h.ld 1n 1"7 fDr tne purpoa. ot el.ct1h4 a el... at 41receDre1 p.raDna Iball be electec\ to hold offioe aa .uCll'l cIa.. aC d rAC!ta&'. tOl" . period af thr.e yean and unUl the thud luacledlng .nnual m.et!nq at Itaekbolder. tallav!ng tbe meot!nq at vbl~b th.y are lleatH. When the nwaber ot dlnctorl 11 allllJl9sd, .nl n.vly crests. dirsctor.hips Dr any 4.=r.... In director.bips shall ~ 110 apportioned laan9 tile clUI.. 10 a. to aalc.. all cla.... II n'lrly aqual in number I. pOllible. Any vacaneis. =rsated in the Board ot D~.ctor. thrauqh inere.l. in the nu.ber ot d~rlctor. or otherwi.e, ..f be t111.d in accordance vith tbs By-LAw. at the corporation II". the applicabl. levs ot tb8 ltate a~ Delavar.. Election of dir:eccorl n.ed "ot be ~ vrttten bulot. 2. 2'Ile lIdgilllll By-Lav. of the corporation shall De adapted ~y th. incorporator. '1'ber..tter,!:.bs pCIVIZ' 1:0 MlCIl, ..1~, al" rep.al the aY-LlIw( .nd to .dopt. any nell Iy-Lall. .xoept. . ly-J.llII l::l....:Lfy!ng dir.ctora tor election tal" .ta998r.d ~er:as. anall h. vested In tile laard of Director.. J. lIbell.ver the cortloration shill b. IIUthOI"J.led to llll\le .Dr4l t:!llll on. cua. at .tClClll:, one Dr .01'8 of wlI1dl 11 41ll'lbd voUng paver, no outetanltill9 allara ot an.r 01... of .toek whiCh 18 denied vGtin; paver under th1e Certiticate ot Incorpor.tion ahall entl~l. the heldar thtreaf to notl~. of, .nd the ~i9hc to wte, It Ifty ...tin, at stolilkbalden IllDI~ I' the ,ravle.l.on. at pUl9I'.pb (bJ (2) at .ece1Dn 242 ot the Gen.~a1 CBrpore~Lan Lew end of section 251, 252, end 253 of t:Jw G~RIl CllI'pctII:'ation Law llIall othezvi.. r.f!Uir.j 'revL..... uac no ahue ot any allCll ala.. vbicb 1. othenl.. ani'" voUI1ll JICIWU .IulU entitle t.M bol'... tJa.reot ta vete upon the Ln..... ar d.GI'.... in the nUDblr Df .uthor-LEed .ber.. ar ..1d c:l..I. 4, %4 li.~ Df taking any perat..ive or Z'gqul.11:8 .ction ~ vote at . ...tin, of Itockhaldera, Iny lucll V01:8 and In, .uClla ...UII9 M, be diapelllll. wltb it either aU Of tbe et:aQhDldw. entinell ta vat. ~-NIIV 4 ............-....... -~.. -,.,,~.. -- ---- -.... .'-"" ,-._ ~"""r":I' I ~rr<"">....r""I""'''''''''''''''''''' .....' ,.-.' ,~'-' ,..,., r. UU! u~". -1/ ~O\IU~J lL:UL IlUI'\r upon 1:1I. Ic:Uon It: InY lIuch ...U", IIhln c:oneut; in wd~1ng to any BUc:lI l:OS'pont. .a1:i.Oft 1le1M talam or it 111.11 ~ft all of the ~OCKbold8rl entitl.a te vat. upon th. aa1:1an It Iny Iveh ...tin, Ihall con..nt in writi", to Iny aulltl cllt'JlOnt:. 1a1:1on _il19 Ukenl providld, tbat any .vell Ic:tion taJcu \lpan 1... tun the unlnbClll8 written 1I0n..nt ot III atoekho1dan ent.ltls4 to vot. upon any .veh .etion ehll1 b. by the wr!'t'tM Clone.nt of t:h8 .taclrba1c1.re lIo1c11n9' It l...t the .11\1." p.rc.ntalJ' II! the \'Ote. requlred to be CAlt to luthOriz. any such action Undar tbe provieionll ot the General coZ'pllration Law III' under tile. provililln' of till. cart.if1cata ot tncorpcration or tI\a lV-t.va .. pe~itts4 ~ the prov181onll of the Gen.l'll cOl'parl~lGft taw1 and, pravided, that proapt notioe ~. given to .11 stOCkholder. entit184 to vote on Iny luoh eetion ar the taJcin, of nch Iction witllOll't a ....tin9 Ind ~Y 1... than lUlilJlilDOua writtEln con..n1:. IfIII'HtI lIa oD1ltra~ or trln.actlon I:l.'t~ the oorpllnt10n end on. Ill' IlDe11 of 1t. cU%ec:torl or otricere, or ...'v.." 1:11. ell~al:at.lal\ anet any othar corpoutiGft, partnnlll!p, I..gciation, or otber arglnlzat!on In Which one Dr nore of 11:. 41reCl~01'. _ Ilttic"' are C11rectorl or ott1cerl, Dr hllve' a tinlnclll inc.r..t, Iball be vll!d or voidal:ll. so181y tar this r...on, or 80181y beelllle the dJreetllZ' OZ' or1'1c8r ie pl'ea.nt at or participat.a 111 tba mllt1n9 0' the leaI'd ot nlrector. or . eoaaltt.. 'thlreof whieh aqthal'i... the oonkrlet Dr trlnlletion, or .01.1y 1:110111.. hle or thaiI' vlilUe are Clollnte4 for neh JIIU'PCI.., 11 J eaJ The ..tarill tact. .. to hi. interest IInd .. to the contr.et or nan.action ar. d:l.8elClt1.d Dr 111'1 MaWJI to the BOlIrd of DirectOZ'. or the couittee, Ind the Boud DZ' CCl1llIIitte. 1n qaod faith aqthorl.e. the ean'traDC Ill' trln.lction by I vote aurrili.nt for aQCb purPOSI without COIIIlting the vote at t:be .I.n.U'1Iet:ecI cU.raota&" 1ilZ' d.l.rect.ee; OJ: till The ..t.dal 'aou II to hi. lntel'Mt .nd I. to till contract or uan.al:tillll an cU._10ll.d _ arl kJlOWll to the e~ol..n entitled to vote ther.on, and the contract or tz'an.action ia specifically anz..".. 'in fOod .faith by vote of the .toctllolder., or eel Th. Clontrallt 01' t:zolneactian h fdr IS to the DDZJIDratillll .a of t;h. u.. it 11 authwi..dl .ppraw" or ratitl.d, by tII. laud of DU'actora, I GClM1tt.. t.ha,..eol, or ~h. ItOGkba1del'l, ClCDUIIllla JlIRV 15 DEe, -17' 95tTUEI IZ:OZ JDRP lnte~e.t.4 directors may be counted in det~1nlft4 the preeencI o~ a q~orua It a 31.tin. of \b. &oarO 01 Dlreet~1 .~ at a comaitt.e vftich .u~orize. the contract or tran..ction. 'tnw: A. "04itica~lDn of c.rt.l~ Li~~111ty of ~lrector.. A direot.or of the corporation abllU not be personally liable to the corporation or its stockhold.rs for mon.tary d...q.a tor hreaoh at f!dQcil%1 duty .s a director, except tor liability (.I.) tor any JneaCh at thl director'. duty at loyalty to the corporation or ite etDekhDld.~e, Iii) tor acts or GMt..ionl not in qood fait" o~ which involve intenUonal llisconduct 01' a knov1nq violation at law. (iill under Section 114 at the ceneral Co~oration Law, or (iVI tor any transaction fr~ whiCb the dir.ctor derived an 1aproper p.rsonal benefit. If tn. Generll corporltian Lew ie amended ta authori.. aorporat. action furth.r eli.inatinv or liliti"9 the perlonll liability of d!rectaca, than the 11.~ility of I director o~ the cQrporation ehall ~a eli.ina~ed or limited to th. ful1..t .xt.~t permitted b? the ra.n"&l CD&'Porat:ion Law, u ao MInded. Ant repeal or ModUicaUon of tbb S.aUcR A or . ~y the stockholders Of the COrpOZ'ilti.ClII mall not advereel)' affect any rlq1lt or rotection of I director Of the eOQloratian .~i.tin, at till tille 0 IIllcll reped or modifielt!ol,. 8. Ind8anlfleation and Ineuranc.. (11 liGht to I~_.ftifJcatloa. ladb p"lan wbo wa. or 18 .acte . party or 11 threatened to be .... a party to or 18 involved in Iny act:l.on, .loIit or proce.ding, wnethflZ' civil, criMinll, 14qinietrative or invest191tlve (hereinaftar . Rpzo..aci1n9RI, by reallon ot tile tact thlt he OJ: .h. or . por.on of Willi be or Ibe 1. the l.,al repr..entet!ve ill or Wall I dir.at~ or officer of the corporation or 11' or ".. .e"in9 It: tile requ..' of tho cOzpDraUon a. I director 01:' officer of anothlr Clot'pot'ation or of a partnerllllp, joint. vllllt1ln, trIl.' Ol' otlHlr enterpri.e, tncludin, .erv1ce with reep.ct to -.ployee beneUt plane, vh.tbezo the )1..18 of IhIdl ~oC8edln, 1. .11e,.d action in an cfficial cap.city I' a dir.atar or afftoe~ or Ln,~ny oth.r 0.pac1ty vhi1e .erving a. . director or affic.r ellal1 ~. !nd.mnifi.d end beld hlrsl... ~y the corporation to the fu11.et .xtent authorized by the General ccrpor.tian LaV .. the .ea. exilts or .ay bere.fteE ~ llIIIende4 (IlIlt, 111 the case of .ny such ..endlll.nt. only tll fohe ext.nt tbat .uell ..andlaent penlite tha ClIZ'PWll'tlon to prav!.d. ...eder ind..nifleation rwllt.! tJlan .dd laW plnllttld till c=poration tll Fov1de pdor to such "In~.ntl, a,ll"at all expanl', liability and 101e (1nc:luding att~n.' f..., jlhlpenta, Une., DSlr. .'llCi.. ta_ or penIIU.. and .lIOllnbl PIU or to .. pdd in .att.l_t) r...anallly lnCUlTBd or 11l1fer.d II)' nc!l penon "-'IIlIIllor.2Il"t~ & p, 008 DEe, -17' 96 (TUE) 12: 03 JDRP in eonn_otlon tbsravt~h and .~cb lndeanltlaetion shall eDllt1nu. .. to 1 pQ'.on vbc has "s..1Id to lie a IIlrllCltor. offic.r, 8mplDJ.. 01' a,.nt anll aball lnYr. to tha baneflt ot bie 01' hsr bell'S, executors and la-lnt.trltOl'e; frovtllall, holtllVOl', thlt .xce" .. prOVided in pnalJl'lph (2 ot tlbis Sectll11n I vitb napec:t to proceedin,. ...kl119 to .nfarce ri9bt. to Inllaanltlc:ation. tns oorporation Iba11 lndemnifr Inr IUGh perlon leekin; lnde.niticatiOA in connec:tion "'i~n a proe."lnv (01' port thereat I initlatell by .uch paraon only if nob pl'oc:e.lI1n, (or pin thereof) val autboJ:lnd 11)' \h. Boull of D.1ract:o.r. of tlhe corporation. The r1ght ~ 1"4..n1t10Itlon oonl.I'I'.1I in thl. 8Dation . .h.l1 ba a cantrlct 1'111111 Ind lIball lnol~de the right to h. paid by llh. cOl'pOl'ation th. expanD.. incurred ln d.tendi~ any DuC:h pl'oo..dln, ln IIdvallCe of it. I1nal lIilJlGl1tbn, FOVided, hovev.r, tbat 1t the General Corporation Lav r.quire., the paraent ae .~Cb eMPlns.1 lnc~ed by 4 director or otficer in hi. or her capacity II a dirlctor 01' ofticer (Ind not in any atllao elpacity 1n which service VII CIl' i. rlndered by .Qob p8rlon While a dire~or or offioer, inoludlnv, without l1aitatlon, .ervicI to any emp~or" oan.flt p1anl In advanc. of tha f1nll disposition of e procoeding, .hlll be ..d. onl)' upon deUvery to the corporation of all un4ertilkln\l "y or on behalf ot ~ch diractor or offioer, to replY .l~ amoun~ 10 adv.nced it it .hall UltimatelY be dlter.ined that IUcb 1I1rect= or orUcer la not entitled to be Ind..niUIId unoer tbi. Section 8 or othuvie.. ral Rl~t of ClalmAnt to Biina SUit. It a c11~ under pIIravrapJ! (11 ot thl. '.etion 8 . not paid In tllll by tile corporation within thl thirty dey. atter a written c11im ha. been received ):Jy the cOl'lloration, the claillilllt IIIly It Iny ti.. there.fter brillq luit againet the c:orporltion to recoyu the unpd4 amount: of the c:1dlll and. if 5ucce..rul in whole or 1n pa~, the cla!.ant Iball ba entitled to be pald alia the expenle or prad.c~tJnq .ue~ clai.. It shU~ I:Ie e def.n.1 to Iny euDh aetian (ot~ar thin In action broUgbt to enforce . Gl.l. fo~ e"lnl.. inc:urr.d 1n defendin, Iny proceding 1ll Ildvanoe at ita final dlspol1tian wbu. the requlZ'ecI 1IndIrt&lt1h,. 11 Ilny i. :requll'lld, Itll b..n tendered t:D ~ corporaU.Gn) t"at: tbe clAl:l.lIIlnt: h.8 na~ .et the Itandard. at conduct whi." .Ike lt pe,..i.eib1e under t". Cenw.rll Corporation Law tal' the corporltion to indeanify tha gJ.aillam f= till llIaune clai.ed, bilt tlae burden of pZ'oYi~ BUM .'IA.e shall be Dn t!I. corporation. Nelilll.r tlh. t.l1~,.. of the corporation (1ncludin9 it. ..ll'd of uJzlet:or8, iJldlplnclent 18911 aOlll18d or ItollJcbolderB) to havI .ade . determin.tion prior to the eas..nca..nt ot .ueb Ict!on thlt ind-.nlfiGltiOft of the c1ai..nt 11 propel' in thl cL:rc:\UIltanD8e ,lI8call.e be 01' .h. b.1 ..t tile applicabJ.e .tandal'd of conduct eet fortis in the General C011lRlt10n 1.IIv, nor all aetul dDCeninatiOll by tile oorpontlan (lnol8d:l.ftt ite Boar. of Di~otorl. ind.pendallt 1.,.1 coun.el 01' 'l:lIollhalderll that t:b4t clalMnt: h.. not lilt; .uell a.m1llOl !lor. JIIMIJ"J 7 p, 009 UM,;. -lI' ~1l\lUt.1 L,:UJ ~Ul(r applicable .tan4ard at oonduct. Iblll be I delene. to tba il~lon or or..u . F.euaptlon ~h.~ the old..llt hae not .et the .pplicl~l. .tlndl~ of eondQot. (31 1I'Qr1 ~"l"dvltv !;It RI..llel. The right: to indemnifioation Ina the 'I,..nt of expenae. 1neur~.d in d.tendin, . p~ae..ding in laVlne. Of it. final Ili.position conferred in thia aaotion . aball nat be -xoIQI1v. of I~ otbar dgbt Vlllcb .nlf penon lilY Illv. ~ beZ'..tte~ lCqIlil'e un~ any et.tutl. provillon at thla C.rtillolte of %ncarporat Ion , By-Lev, .;r....nt, vat. of .tockbalder. or dil1ntareetld dirlctorl or othervie.. (41 Ineu"."a.. 'J'bl aoqaoration 1II1Y llIIintdn J.IUIQ~lnlltl, It ita upen.., to protect hu1t Ind 11\1 dlrecccr. otticer, e.ploy.. or .g.nt at the corporltion or anather aarporltlllJ\. pln.n.rlhlP. joint v.nt\ln, tNlt or othe~ enteZ'Fl.e .gainet any ex,.n.., liabilier or 10.., vb.CbeZ' or not thl corporation would heve tbl paver to indeanity lueh p.r.on .'Iin.t IUob .xpenae. liabillty or loel under tbe General Corporation Law. nEV~1 Frolll U.e to tillle any elf 'tIl.e provisionl of this Cercitlcste at %ncorpQrltion ..y be ..ended, altlred or rlp.llld, a~d othlr provi.10n. Igthori&ld ~ the lawI ot tile S\ate of D.l.v.~e at the t1a1 ln forol .ay be add~ or in..rt.d in the .anner and It the \1., pre.or1bl4 by Bald lav, Ind all I'ighte at any ~i.1 c:on"~recl Ilpon the etodcllalden of the eorporation ~y tIli, Clrtificlt. ot %Qc~or.t1Qn ara granted ~8C\ to thl provi.lon. of thi, Articll ~ENrK. ' 'l'IlI!.Ptlll ". All uled 1n thiB Artic:le MLl"1'lh (1) ~Atfillate. and ""..oei.te- Iball be dete~~n.d PQreYlnt to RUla 1212-2 eel' Iny IUcas.Bor rull) 01 the aenerll Rule. en4 Regulation. QadIr the Seo~itiel Exchange Act of 1~341 (2) "sneliolal OWnership" Ihall ~e detlrftlned pvz-nlnt 1:0 Roll UcI-3 (or aft)' luee,e.or rull) of the CaneI'd lllIla. and 1l111l1aUonl IInder th. SecN1'1U.a baJsanp 1Iat 01 1934 slid aall lnalulle: (i) .hare, of 'taak Vftidl a P,uon !Ia. the riqht to 1.1.., ha14 ot vote plU'allant till any a,",.ent. lln'iU"eln8n_ OZ' 1IIldarst.n41nf, Dr upCIII Ixercise of oonv.ralon d,IIt11, varrant., option. or otJtll1li.l; ImI (HI llllare. ot .toclc wh1ctl 11'1 btrneUclally lMItId, elkecely ~ il,l411'Ictly linalwUng- IIlanI de..ed ownelt tlll'OUlJlI eppl1clc!cn at tbe foregoing ~l.u.. (11), Joy any Jlenon (al witda VhiClII it: 01' it. Affiliate o~ AlI.oc:.l.lte h.e ear I~....nt, al'rlnq...llt or lInd.rBtendint tor 1:.111 PUZPO'I of acqu!rilllJ, holeli1llJ, vot1nlJ Olr d iapoein9 of Ibare. or Q.CDII'II .,. 21"._3 . r, U lU DEC. -17' 96 (TUE) 12: 04 JDRP .tock of tbe corporaUon Or' (hI wllieh is i.t. Affiliate 01' "._lat.; (31 -'udn... couinattllll- ."IU lnelucle; Ii) any .~g.r or tonaolida'ion of the corporation wlth or into a~ othlr RIlatea Perlonl (111 the .al., 1...., ..oha",., aart;a,_, plldg., tran.fe,. or Dthlr d1apo.ltlon (in one tranlaction or a ..1'11' or transaction., to or with any Belat.d' Perl on of an~ ....t. ot thl corporation or Iny lub.idilZ1 tblrwot hly!n; an I'tre,&tl tall' ~.rklt vIlua af '15,00D,DOO or more; (Hi) till iall&anc. Dr tr6l\Ifll1' ~y tlll cOl'Jlorat1on or any .~aldiuy th.reof (ill 01UI u.n..cUon Cd' a ..d.. ot transact1an.) of any sl~1tia. of tbe corporatlan or anJ sUbsidiary thlrsof to any llelahd Plrson 1n eleChan,e for o&8b, '8wz-iti.. or Clt.lle prapan:y 101' . cOMin.UDn ther.ot) having an a,gr.,I'1 tl1r m.rk.t Valu. of $15,DOO,000 or lOre; (iv) the adoptilln lit any plan III' propa..l for the liquidatilln or di..olutlon Of tha clIrporatilln propo.e. by Dr on bllha1f of any Jl8lated Person; 01' (vI any reel..eilie.tion or recapitalization Of ,eeutitie. or the oarporetion lf ~e .rf.ct, direotJy ar indirectly. lit BUah crlna.otlan i. to 1ncrel.. the r.latlv. voUI\lJ """1' of any Related P1l1'80n; , 14] WContlnuln, Director- .hall mean I ~I' lit the BOlrd of Dirogtora of the oorpllrltian who was not .ttillated vitb th. JlDlated Pereon and WII I ..lIbel' ot the Board. of Dl.ncurB pr:ios: to the tillle that the Relal:ld ""80n aClJ1Ii:nd th. last lbaZW. of .took of thl corporltion .ntitling luch JI.lated Per.on to ex.rei... in the Itgrlgat., in exc.I. at t.n percent ClOt) Dr 1:IIe tll1:d vot:1111J power of all cla.... Of .tock Of 1:1\. caE'pat'atillll .nth:l.. ~o VCIq in .lactllll\a of .Uz.c1:Drl, OJ:' I '.1011 reoo..anded to .u~.ed I continuing Dtraator by . ..j~ity of contimlil\lJ Diracton; (5) .PerlonR .hlll 1nclude any indiyidual, oorporatlllft, pu1:nuahlp, per'Oft or othlr .nt1t.y; and (61 -.elated Per.on. .ball ...n aby 'Irion, toq.th.r with any AfnUatl .... ~.ad.tl at .uCll Perlon, which !lal aaneticlal awnlrlh1p, .lrlc1:1~ lIr indirectlY, of Ibar.e of .tock Dt the corporation Intltlil\lJ aucb '.rean to ..~ie. aD2e thIn ten percent. (loti Of tba tot.l vatLn, povlr of .11 c1..... at .tock Dt tile ClGll1'oZ'aUon antit1ecl t.o YOU in .t.ction. of cUrecto.... oCln.lh~1Id tor the purPOSI. of thie AJi'tiol. 'l'IfELr:tI a. _ 01.... 1:CICIlthlr wlth the IUGee..are lUIlI ........ 01 any .uoll ....eon 1n InY ~....atiCln 0" ....1.. or tr.n..ctione not Lnvolvinq GCII.... _1'lm_' I ~, 0\\ DEC,-!7' 96 (TUEI 12:04 JDRP a pUblle ot'~ift9 ot the oorpo~.tion'. .tock within tho ..Inln, ot tho s.Qq~ltie. Aot of 1933. ., Uhl... the COndition. ..t forth in .ubpe~lfr.pbe (11 or (21 of thi. pa~19~.ph . 11'8 Bati.ti.d, the Ifrlr.et1ve voCe of not 1... ~'n ..v.nty.'iva p.~o.nt 175tl at the out.t:and.iJ\f MUM ot .tocle of !lie co~po~.t:lon .nUtlld to votl in .1.Qtlane of dl~.otorl, con.ider.d tor thl purPDl.. ot thil Artlel1 TWBLrtH II ana 01..., 'ball b. t8~l.ld f~ the adoption o~ autbo~lzltion ot a 8u.1ne.. Combination with any RIlatld 'er,an, Suob aff1l'MtivI vot.e ohlll be requl~ed nat:vith,tlndlng tbe tact. that: no vote, or I 11'0.1' ,nc.ntage, ..y be r.qulre4 bY llv 01' in In, agralment wlth any national ..ouritl.. .xchln,. or ot!l.rvial, bvl: ouc:h vat. oh.ll not k apPUoilbb itl (11 Thl def1n1tSva a9l'enent or other arT.I19...nta to ettect.uate a IUllnl.1 coabination with I R.lated Plrlon al'l IPllro"ed ~ . lIII:lorn,. ot thl C:ontinuinf Db'lCton; auch determination oblll be .adl ~y a ..jor~ty ot thl COntlnulnq D1r.~orI eve~ if lueh majority da., no~ con.titute , qQDru~ at the ""II.r. of tIla BOII'II d Db'.Ift"1 t~.n 1n oU;!.c., or (2) All-or tho tollowin, con41tlon. a~. ..ti.tied; IiI Tbl cash and tail' ..~keb vIlue at ~. property, .ecur1t1e. or other con,ideration (1nclY~lnf, wltbout limlt.tion, atack at the corp~.tion r.teined Dy lta ..ilcing public .tockholderl 1n the .Vent at a Bus!n... CUb1lteUon in whiCh i:Ile cel'pol'Atlon il \:be surviv1nq corpllZ'lItionl to be noelved per 8hilre by tbe boloer. of .aah ala.. or ..rie. of otock ot the corporation 1n I aU.in... ColIIbLIMtion with I .Ilat.. p.non i. not lei' than tile h1qhe.t pOl' ohore price (lnolvdin, brDklr191 c.-.i..ioRl an"/ft .0U.citinv d.1.le1:e' t."1 paS" br lu.e\l RaJ.atoel Pellon 1n lc;uir1n, a~ ~r.. at .uch el... or ..ri.., nJpIICltlv.ly; (111 ~. conaialretian to be receiv.d by hold.~. at e part:l~lU cl... CIf ..wl'1t1.. .haU 1:11 in e.1Ib ar in the .... ton .. tll. Rela1:ld Perl on Ill. pnvioualy pIIld for .har.1 ot ~oh 01... ot atock. It the RIlated Peraon ba. pdd tft .ral~.a ot any ell.. 0' ltook vitia "aryl", fona ot con.1dantion, the fOJ'lll of cone1lleration tv .un cl... of .tock .haU III 81thlll' c..h IlZ' t!la tonr u.ed to .C4\lll'e tll. lar,..t n~ at lbeZWI at IUD" ela.. of ItoClt pr.vlou.ly aClll\llrl4 by i~, liiJ.) AIt_ a .u.gn hat b8COl11 I "lltad PInon Ind p~~ ta thl can.Ulmltlon of . Busln... CQ.'lna~lan. SXClpt a. appro"leI by . ..jor1ty ot thl contilN1rIt DinctOP, tltll" IIIIU ha". ~'1Ill no racluction in till annual rat. of .iYl...... JlIU on ahu,. of .toM of C1ae Goqrarst:ion lac_ .1 "."I'ry to nnlet any .uW1vs..ian of luc:b .barl.), Q.QJIIIOI Dol: 1111") 10 p, 012 U~G..17'9b('I'U~1 1Z:0& JURP I',OOZ (iv) Th. Rala~.d P.raan .b.ll na~ b... ca) recelv.d thl bene~lt, dl~.ctly Dr indlrectly Cexcept prapGrtio-.tely I. . etoclcholdel'). a~ any laane, .dvanc.., 'JUuante.., ,llldt- ft otbW tlnana1al a..!at.nce or Ux ~.dlt. p&'OYided l:Ir tJl,a carporatlon, or CII) .ade any .a,or cbll\lJ'eln th. cOqlozoatian'. bll8lne.. ar aquity Gepltal ItRctur. withOllt th. appraval at a ..jority af t!le ClantUlllil'lf Director., in eith.. 9.. prior to the cem.lIDation at tile lueina.. CGablnation, and (v] A ,Z'all)' atat..ent cOlllplying with the reqll1raent. ot the sacuritl.. Exchange ~ct of 1934 ehll1 be ..11.d ta ,aUe; .hclchaldua of th. ccrJIontian for the pUZ'JIolle of eal1e;it1ng etookhalde1' approval of tha Bualnaee eo.btnatian and shall contain It the f&"CIne t:heZ'eaf, 111 a ~a.l"."t p18ee, QlY recDI1IIenlSatiana .. to the allviaabUity (01' inadvlauiUty) of t:h. BuBin... Callbiution 1IbicJ\ tha eontlJl\llnq DinC\:on, or any of tho, .ay cllo... to .t.t. and, it cla.ad advi8lbla by a ujOdtr of the Continu!n9 Director. , an aplnlon of a nplltabl. nve.tllent b.nkillCJ Un .. to the I.lme.a (or not) of the t.rae ot .uch lu.lna.. cCllIbinedon. Ira the polnt of view of the :reMin!n; public atockboldel'8 ot the corporation I.uch inveataent ~nkinq fi~ to ~. .elact.d by a .ajority of th. Continuill9 Direotors and to be paill a rea.anahla f.e for tneir ..rv1~e by tile corporation \lpon ucBipt of such opinion). The provieiona of tnie ~rticle ~B _hall a180 apply to a BU81n... couination wlth 1Ul)' hnon whlch at MY ti.. has bean a Related Perlon, natwithetlnllin; thl f&at tblt .uah P.rson i. no lanqer . blllted Parean, if, lit the ti_ the definitive 891's_nt Dr other a~anqe~ente relat~nq to a BU81na.. coaDlnatlon with ..ucJ1 J'er'lon vae enbred into, lt WILl a Relat.d Person or it. al ot the record date for the d.t.rain.tiDn ot Itockbolllere entitled to notice of and to vote on ths auei"... CDmbination, aueh pereon 11 an Affiliate Dt the oarporat.1Dn, C. A ujoritJ of tha Continu1nq Dinetora .hall have the powlll' and du~, contietant vlth thair fiduciary obUgatlons, to d.t.rmine for the purpoa.. of tbi. Article TWlLPrH, on th. bad8 of infonation knovn to tb.., (1) wtIather IIIIY 'e:rllOn La 8 .elated 1'er8oni (2) whether any P8rlon is an ~rfiliate or ~llociat. of another; (3) wh.~b.r any .erean haD an agr....nt. IrrallfJ...nt, or under.t.ndi", with anotbar, or (4) tIuI fau- .a:rk.t value or property, .eoudtie. 01' ether oonlill.nt10n (oilier than D.aIl) to ... ~i..cI b1 holdere of ahara. of stDCk~or Ill. corpor.tion. Ql7'_..me.1 11 DEe, -17' 96 (TUE) 12:06 JDRP P,003 TIle fOod faitb 48t.ninaUon of 8 ..jad~ gl ~e contilllli", 1)i~.c:to1's on 'Ilcb ..t1:81" ,lIaU M b!Jldillg Uld conoludv8 far pllrpoe.. at tIli. Artial. TWILr'1'II. D. ~nr carpllZ'ation acUon whiah. ..1' Il8 tat.n 111 the written Clone.nt .f etoc:ldl01d8l'1 entitled to vote upon euc:h IR.l.on p~.uant te ~tlcl. EImHTH S.ction 4 of thi. Q.~1f1aa~ of Incorpa~a'ian or pureuant to the Gell8l:a1 aOl'por8t1on Lew 8~all b. only b.r ~. v~.l.tten con..nt or bold.r8 of not 1..e tb.n leventy- five ...~c.nt cut) of tIl. Ibara, at ,tack at thl eorpal'aUon ent1tled to lJOt. tba'.on, natvlthlltlUldll1f tal fl,~ tll., I le.lIN' percenta,e l1Iay lie nqyir-Il I:Iy law 01' othlrvi... s. AnY CCIZllOrl1:l action whic:ll .a1 bit taken at . ,p8cbl ",UII9 of lrtoclCho148J'1 c111.11 '" th8 Boan of DinlCt.=.. , "~Qd~lI' of whiCh Boari ani not Cantinuin; Dlraatar., llIall be only bl/' t:IIl Itt1naUv. voto of the bolden of JlGt 1..1 than ..v.nty.fh.. p.ra.nt C75', of the outatanding Ihar.. of ltocIc Of the COl'pOI'.Ucm InUtlllcl to vatl 1ft Illet10nl of dinctol'l, aall.ld.~d for p~pel.1 of ~. Al'tial. twlLPIH ,. on. cl.... natw:l.eblt.nlllll9 the riot thlt a lII..el' perc.nta,. IIAY be nquir.d by l.w CIZ' a1:!I'1'W11'. r. Motvithltand1ng an)' oth81:' provilicm aont.lned in till. ce~ir1c.t. of Incorporation. any action by atoekboldlll's to .-n4 tJll1 certificate at InGorparlltian or tJl. By-Llw. of t:Jle cDl'po~atlon .h,ll b. .ade lit . ...ting of the .toCkbaldarl alll.d fill' that p~pa.. and not )l1"dl:ten aaneent. G. 110 u.nd:llant. a, thia certific.te at J:ne=p=el:ian of the carpOZ'atiDn .hall BlUM, alter, chang. Dr repeal any ot ~he p~aYilian. of thi. Article TWlLrTH, onla.. the ...ndaent eUecting .lIcll 8111ndlunt, alt.1'I1:1on. eban,. or r8peal .hall receiv. the .ffl~~tvv vat. of not 1... t~.n ..vantr-tiva ~08nt: (71t) of t:l:!8 .han. of .tad: of tile Garporatlon 8IIt1tl811 to YR. 1ft Ilection_ of dlnetOl'., aonl1dlll'lcl for the pllZ'pOlle. of ~. U1:101. TWIiLl"l'H .. on. 01.../ provided thlt tJlil pare9l'8pb G abUl Jlat Ipply to. and 11IcJ\ llventJ'-f:l.ve p.reMt C,,!It) votl _11 not: .. r'fI\lire4 for, Iny ...nd.lnt, alt.rat:l.on, dlanve or n,..l nCCIIllII.nclBIl to till ItDClcllalden by . lIa;lority of the ccmt:l.nlllJIIJ Di~otOl'.. R. Ifot.IaJ.mJ c:on"1nlMl in 1:hil Article '1'WBLrrH Ihlll !Ie conl~e4 to nU.va ttll Ioard at Directon or any blat.d Per.OIl frClll .ny t1411ctazy obU,.tion il\pa.1Id Ily 1811. D IIlft'B8& WHIIlIOP, tIIi. Reatat__CutU1At.. ot InaarporeUon h.. III'" l:I.9nlll by ~/J.rJf' s rnE;t.'5/)u. its .uthori... C1ff1cw. t.hi. neb dill' of D.O.... 11". :Ii1a~ ~~. __ _111\II.' 12 February _, 2000 Elliot S. Oerson, Esquire Senior Executive Vice President, General Counsel and Secretary Rite Aid Corpomtion 30 Hunter Lane Cnmp Hill; P A 11011 Re: Advancement of Litieation Expenses Dear Mr. Gerson: Pursuant to Rite Aid Corporation's (the "Company") charter provi- sions, I hereby request that the Company advance to me eltpenses incurred in my dd'ense of the following: (I) litigation filed in the United States District Court for the Enstem District of PelUlsylvania; (il) litigation filed in the Delaware COllrt of Chancery; (iii) proceedings initiated by the Securities and Exchange Commission and (iv) any other related actions or proceedings that may be filed or commenced for which I may be entitled to indemnification, I hereby undel'take to repay any such amounts advanced in the event lhut a court of competent jurisdiction ultimately detennines in a final judgment that 1 urn not entitled to indemnification. Very truly yours, - /~ iJ~ 'flto.'7)OI.Willllil\l.t.mS~nlr.r IA Drllft Nn,,'..-mber :!l. t99~. 10: to AM . UNDERT AKlNG FOR ADVANCEMENT OF EXPENSES To; The Hoard ofDirectOl'S of Rite Aid Corporation: I am a defendant in certain actions presently pending in the United States District Court for the Eastern Dist1'ict of Pennsylvania and in the Delaware Court of Chancery, brought on behalf of Rite Aid COIporatiun (the "Corporation") against me and others, by reason of the fact that I was 8n officer and director of the Corporation at the time of the matters complained of. I may also be involved in c,ertain other proceedings, relating to the subject matter of these actions, including proc.eedings initiated by the Securities and Exchange Commission. I understand that in accordance with Section 145( e) of the General Corporation Law of the State of Delaware, the Corporation is considering paying the expenses of the individual defendants being incurred in the defense of the above. described litigation and proceedings, Please accept this letter as my legally binding undertakin(!: to repay the Corporation any expenses paid by it on my behalf in advance uftbe final disposi- tion of the above-described action, if it shall ultimately be determined that I am not entitled to be indemnified by the Corporation as authorized by Section 145 of the (leneral Corporation Law of the State of Delaware, Sincerely, fl~ 111616 \ .111 _Wilmln,t('tn Renier I ^ Dr.n Novomllcr 23, 1m M 111:113 M... VERIFICATION 1, Robert B. Sari, hereby state that I am the Senior Vice President, General Counsel and Corporate Secretary of Rite Aid Corporation; that I am authorized to make this verification on behalf of plaintiff in the foregoing action; that I have personal knowledge of the statements made in the foregoing Complaint; and that the s1atements made in the Complaint are tnIe and correct to the best of my knowledge, information and belief. I understand that the statements in this verification are made subject to the penalties of 18 Pa.C.S. ~ 4904 relating to unsworn falsification to ~orities, ... ,~. ~. ...., >- Ul 0': ~ t; ;.:; ..;;/ (,'; ;:: ;v; -:J ~~~~ i.-:J )-. ~.l.-~ ,- ~ -.. ....,> ).. - --j>! "" , . 2f -.. -.(/) "- )- i:,:l~ 00 "<I i'" ~LJlU ::... 1 '_~ ~ >~}n.. "lI ~~,"") .., <S ~ cJ C) ::J ~ .::.:) () - 1815652vl JURY TRIAL DEMANDED THIS IS NOT AN ARBITRATION CASE, AN ASSESSMENT OF DAMAGES IS REQUIRED BALLARD SPAHR ANDREWS & INGERSOLL, LLP By: William A. Slaughter Hara K. Jacobs Douglas L. Flitter Peter C. Amuso PA ID Nos. 30637,74832,81479 & 80182 1735 Market Street, 51 st Floor Philadelphia, PA 19103-7599 (215) 665-8500 Attorneys for Corporate Plaintiff Rite Aid Corporation Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW RITE AID CORPORATION 30 Hunter Lane Camp Hill, PA 17011 v. NO. 03..5898 Civil Term TIMOTHY J. NOONAN 1022 North Waterford Way Mechanicsburg, P A, 17050 Defendant. PRAECIPE TO ATTACH ORIGINAL VERIFICATION TO COMPLAINT TO THE PROTHONOTARY: Please attach the enclosed original verification of Robert B, Sari to the Complaint of Rite Aid Corporation filed against Timothy J. Noonan on November 7,2003. Dated: November 10, 2003 m ; William A. Slaughter Hara K. Jacobs Douglas L. Flitter Peter C. Amuso BALLARD SPAHR ANDREWS & INGERSOLL, LLP 1735 Market Stref:t, 51 st Floor Philadelphia, PA 19103-7599 (215) 665-8500 Attorneys for Rite Aid Corporation CERTIFICATE OF SERVICE I hereby certify that I have today caused a true and correct copy of the foregoing Praecipe to Attach Original Verification to Complaint to be served on the following by first class mail postage prepaid: David M. Howard, Esq. Dechert LLP 4000 Bell Atlantic Tower 1717 Arch Street Philadelphia, PA 19103 Timothy J, Noonan 1022 North Waterford Way Mechanicsburg, P A 17050 this 10lh day of November, 2003. - Dougl . 1itt (') C :?" -0 b) nlr<'; ~2 0)) , """ . ~=:: \~ 2.~C-1 1;t' -7 ~ '\ c> w (') " ,--l "T.1;n ;"n ,'~) -~~ (~? .-: :z ::;~ Go) "0 :,]!: '^' ;'J '0 .~-~f~ .:-::; 5; ,-< VERIFICATION I, Robert B. Sari, hereby state that I am the Senior Vice President, General Counsel and Corporate Secretary of Rite Aid Corporation; that I am authorized to make this verification on behalf of plaintiff in the foregoing action; that !I have personal knowledge of the statements made in the foregoing Complaint; and that the statements made in the Complaint are true and correct to the best of my knowledge, information and belief. I understand that the statements in this verification are made subject to the penalties of 18 Pa,C,S, ~ 4904 relating to unsworn falsification to authorities, . 6?!417 L!!-~- Robert B. Sari " (') C) 0 c: W -n ~ % ,~ -QC,L -:::J 1]2'/ '''''- :zr. ~~, c, ~C_ ~C ::.r,; -"C ) :PC::: t:? "\ z ,'"" :.0 :<! ,0 -< SHERIFF'S RETURN - REGULAR CASE NO: 2003-05898 P COMMONWEALTH OF PENNSYLVANIA, COUNTy OF CUMBERLAND RITE AID CORPORATION VS NOONAN TIMOTHY J RONALD HOOVER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon NOONAN TIMOTHY J the DEFENDANT , at 2020:00 HOURS, on the 14th day of November, 2003 at 1022 NORTH WATERFORD WAY MECHANICSBURG, PA 17050 by handing to TIMOTHY J NOONAN a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 18.00 8.97 .00 10.00 .00 36,97 r~~-f' R. Thomas Kline 11/17/2003 BALLARD SPAHR ANDREWS INGERSOL Sworn and Subscribed to before By: ~2./~/~/ Deputy Sheriff me this 1'1 JlI'~ day of Olc_"t A.D, 4..., t';:J ~ ~ 1._ ~ -I).~~ """ f Prothonot~ry' d' BALLARD SPAHR ANDREWS & INGERSOLL, LLP By: William A. Slaughter Douglas L. Flitter PA ID Nos. 30637,81479 1735 Market Street, 51 st Floor Philadelphia, PA 19103-7599 (215) 665-8500 RITE AID CORPORATION 30 Hunter Lane Camp Hill, PA 17011 Plaintiff, v. TIMOTHY J. NOONAN 1022 North Waterford Way Mechanicsburg, P A, 17050 Defendant. Attorneys for Corporate Plaintiff Rite Aid Corporation COURTOFCO~ONPLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-5898 PRAECIPE TO THE PROTHONOTARY: Please mark the above-captioned action settled, discontin payment of your costs only. Dated: September 14, 2006 OM EAST #9604720 v1 William A. Slau r BALLARD SPAHR ANDREWS & INGERSOLL, LLP 1735 Market Street, 51 st Floor Philadelphia, PA 19103-7599 (215) 665-8500 Attorneys for Rite Aid Corporation -- (." ; --, -, ? \",.-.