AGREEMENT AND PLAN OF MERGER AMONG DOLLAR TREE STORES, INC., DOLLAR TREE, INC., AND DOLLAR TREE MERGER SUB, INC. February 27, 2008
Exhibit
2.1
EXHIBIT
A
AGREEMENT
AND PLAN OF MERGER
AMONG
DOLLAR
TREE STORES, INC.,
DOLLAR
TREE, INC., AND
DOLLAR
TREE MERGER SUB, INC.
February
27, 2008
AGREEMENT
AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF
MERGER (“Agreement”), dated as of February 27, 2008, is entered into
by and among Dollar Tree Stores, Inc., a Virginia corporation (the “Company”),
Dollar Tree, Inc., a Virginia corporation (“Holdco”) and a direct, wholly owned
subsidiary of the Company, and Dollar Tree Merger Sub, Inc., a Virginia
corporation (“MergerSub”) and a direct, wholly owned subsidiary of
Holdco.
RECITALS
A. The
Company's authorized capital stock consists of (i) 300,000,000 shares of common
stock, par value $.01 per share (“Company Common Stock”), of which 91,948,053
shares were issued and outstanding as of December 6, 2007, and (ii) 10,000,000
shares of preferred stock, $.01 per share, none of which is currently
outstanding (“Company Preferred Stock”).
B. As
of the date hereof, Holdco's authorized capital stock consists of (i)
300,000,000 shares of common stock, par value $.01 per share (“Holdco Common
Stock”), of which 100 shares are issued and outstanding and (ii) 10,000,000
shares of preferred stock, $.01 par value per share, none of which is currently
outstanding (“Holdco Preferred Stock”).
C. The
designations, rights and preferences, and the qualifications, limitations and
restrictions thereof, of the Holdco Preferred Stock and the Holdco Common Stock
are the same as those of the Company Preferred Stock and the Company Common
Stock.
D. The
Articles of Incorporation and the Bylaws of Holdco immediately after the
Effective Time (as hereinafter defined) will contain provisions identical to the
Articles of Incorporation and Bylaws of the Company immediately before the
Effective Time (to the extent required by Section 13.1-719.1.B.2 of the Virginia
Stock Corporation Act (the “Act”)).
E. The
directors of the Company immediately prior to the Merger (as hereinafter
defined) will be the directors of Holdco as of the Effective Time.
F. Holdco
and MergerSub are newly formed corporations organized for the purpose of
participating in the transactions herein contemplated.
G. The
Company desires to create a new holding company structure in accordance with
Section 13.1-719.1 of the Act by merging MergerSub with and into the
Company with the Company being the surviving corporation, and converting each
outstanding share of Company Common Stock into a like number of shares of Holdco
Common Stock, all in accordance with the terms of this Agreement.
H. The
Boards of Directors of Holdco, MergerSub and the Company have approved this
Agreement and the merger of MergerSub with and into the Company upon the terms
and subject to the conditions set forth in this Agreement (the
“Merger”).
I. The
Company will, immediately prior to the Effective Time, contribute to the capital
of Holdco, to be converted to Holdco Common Stock and held in treasury of
Holdco, any shares of Company Common Stock then held by the Company in
treasury.
J. For
federal income tax purposes, the Merger shall qualify as a reorganization under
the provisions of Section 368(a) of the Internal Revenue Code of 1986, as
amended.
NOW,
THEREFORE, in consideration of the premises and the covenants and agreements
contained in this Agreement, and intending to be legally bound hereby, the
Company, Holdco and MergerSub hereby agree as follows:
ARTICLE
I
THE
MERGER
Section
1.1 The
Merger. In accordance with Section 13.1-719.1 of the Act and subject to and upon
the terms and conditions of this Agreement, MergerSub shall, at the Effective
Time (defined below), be merged with and into the Company, the separate
corporate existence of MergerSub shall cease and the Company shall continue as
the surviving corporation. The Company as the surviving corporation after the
Merger is hereinafter sometimes referred to as the “Surviving
Corporation.” At the Effective Time, the effect of the Merger shall
be as provided in Section 13.1-719.1 and Section 13.1-721 of the
Act.
Section
1.2 Effective
Time. In accordance with Section 13.1-606 of the Act, the Merger
shall become effective upon the issuance of a certificate of merger by the
Virginia State Corporation Commission or at such other later time as may be
specified in the Articles of Merger filed with the Virginia State Corporation
Commission in connection with this Merger (the time of such issuance, or other
specified time, being referred to herein as the “Effective Time”).
Section
1.3 Articles
of Incorporation. From and after the Effective Time the Articles of
Incorporation of the Company, as in effect immediately prior to the Effective
Time, shall be the Articles of Incorporation of the Surviving Corporation until
thereafter amended as provided by law; provided, however, that, from and after
the Effective Time:
(a) Article
III A. shall be amended so as to read in its entirety as follows:
“A. Authorized
Shares. The aggregate number of shares that the Corporation shall
have the authority to issue is Five Thousand (5,000) shares of Common Stock,
without par value.”
(b) Article
III B. shall be amended by deleting the first paragraph thereof, by deleting
subparagraphs 1-5 thereof, and by renumbering subparagraph 6 thereof as
“B.” Article III B. will then read as follows:
“B. Pre-emptive
Rights. No holder of any share of capital stock of the
Corporation, whether now or hereafter authorized or outstanding, shall have any
pre-emptive or preferential right to purchase or subscribe to purchase i) any
shares of stock of any class of the Corporation or other security that the
Corporation may determine to issue, whether share of stock or other security to
be issued is now or hereafter authorized, ii) any warrants, rights or options to
purchase any stock or other security , or iii) any obligation convertible into
any such stock or other security or into warrants, rights or options to purchase
any such stock or other security.”
(c) Article
IV shall be amended by deleting the third, fourth, fifth and sixth sentences
thereof in their entirety.
Section
1.4 Bylaws.
From and after the Effective Time, the Bylaws of MergerSub, as in effect
immediately prior to the Effective Time, shall thereafter continue in full force
and effect as the bylaws of the Surviving Corporation until thereafter amended
or repealed as provided therein.
Section
1.5 Directors. Immediately
following the Effective Time, the directors of the Company who served as
directors immediately prior to the Effective Time shall be the directors of the
Surviving Corporation except that, pursuant to 13.1-719.1(c)(2)(b) of the Act,
all such directors except for ▇▇▇ ▇▇▇▇▇▇ shall no longer serve as
directors. Immediately following the Effective Time, therefore, ▇▇▇
▇▇▇▇▇▇ shall be the only director of the Surviving Corporation and will hold
office from the Effective Time until his successors are duly elected or
appointed and qualified in the manner provided in the Articles of Incorporation
and the Bylaws of the Surviving Corporation or as otherwise provided by
law.
Section
1.6 Officers.
The officers of MergerSub immediately prior to the Effective Time shall be the
officers of the Surviving Corporation and will hold office from the Effective
Time until their successors are duly elected or appointed and qualified in the
manner provided in the Articles of Incorporation and the Bylaws of the Surviving
Corporation or as otherwise provided by law.
Section
1.7 Additional
Actions. Subject to the terms of this Agreement, the parties hereto shall
take all such reasonable and lawful action as may be necessary or appropriate in
order to effectuate the Merger. If, at any time after the Effective Time,
the Surviving Corporation shall consider or be advised that any deeds, bills of
sale, assignments, assurances or any other actions or things are necessary or
desirable to vest, perfect or confirm, of record or otherwise, in the Surviving
Corporation its right, title or interest in, to or under any of the rights,
properties or assets of either of MergerSub or the Company acquired or to be
acquired by the Surviving Corporation as a result of, or in connection with, the
Merger or otherwise to carry out this Agreement, the officers and directors of
the Surviving Corporation shall be authorized to execute and deliver, in the
name and on behalf of each of MergerSub and the Company, all such deeds, bills
of sale, assignments and assurances and to take and do, in the name and on
behalf of each of MergerSub and the Company or otherwise, all such other actions
and things as may be necessary or desirable to vest, perfect or confirm any and
all right, title and interest in, to and under such rights, properties or assets
in the Surviving Corporation or otherwise to carry out this
Agreement.
Section
1.8 Conversion
of Securities. At the Effective Time, by virtue of the Merger and without any
action on the part of Holdco, MergerSub, the Company or the holder of any of the
following securities:
(a) Each
share or fraction of a share of the Company issued and outstanding immediately
prior to the Effective Time shall, upon compliance with the procedures specified
in Section 1.9 of this Agreement, be converted in the Merger into the right to
receive a duly issued, fully paid and non-assessable share or equal fraction of
a share of Holdco having the same preferences, rights, and limitations as the
share or fraction of a share of the Company being converted in the
Merger. Each right to acquire shares of the Company outstanding
immediately prior to the Effective Time shall be converted in the Merger
into a right to acquire shares of Holdco having the same preferences, rights,
and limitations as the right to acquire shares of the Company being converted in
the Merger.
(b) Each
share or fraction of a share of MergerSub outstanding immediately prior to the
Effective Time shall be converted in the Merger into a share or equal fraction
of a share of the Surviving Corporation having the same preferences, rights, and
limitations as the share or fraction of a share of MergerSub being converted in
the Merger.
(c) Each
share of Holdco Common Stock owned by the Company immediately prior to the
Merger shall be automatically canceled and retired and shall cease to
exist.
(d) From
and after the Effective Time, holders of certificates formerly evidencing
Company Common Stock shall cease to have any rights as shareholders of the
Company, except as provided by law; provided, however, that such holders shall
have the rights set forth in Section 1.9 herein.
(e) Immediately
prior to the Effective Time, the Company will contribute to the capital of
Holdco any shares of Company Common Stock then held by the Company in its
treasury to be converted to Holdco Common Stock and held in the treasury of
Holdco.
Section
1.9 Procedures
Relating to Company Common Stock.
(a) Exchange
of Certificates. After the Effective Time, Holdco may, to the extent
deemed desirable by the officers thereof, make available to each record holder
who, as of the Effective Time, was a holder of an outstanding certificate or
certificates which immediately prior to the Effective Time represented Company
Common Stock (the “Certificate” or “Certificates”), a letter of transmittal and
instructions (“Letter of Transmittal”) for use in effecting the surrender of the
Certificates for conversion thereof. Delivery shall be effected, and
risk of loss and title to the Certificates shall pass, only upon proper delivery
of the Certificates to Holdco and the form of Letter of Transmittal shall so
reflect. Upon surrender to Holdco of a Certificate, together
with such Letter of Transmittal duly executed, the holder of such Certificate
shall be entitled to receive in exchange therefor one or more certificates as
requested by the holder (properly issued, executed and countersigned, as
appropriate) representing that number of fully paid and nonassessable shares of
Holdco Common Stock to which such holder of Company Common Stock shall have
become entitled pursuant to the provisions of Section 1.8 hereof and the
Certificate so surrendered shall forthwith be canceled. Except as
provided in Section 1.9(b), no dividends or other cash consideration will be
paid or payable upon the surrender of the Certificates. If any shares
of Holdco Common Stock to be received upon exchange of a Certificate are to be
issued to a person other than the person in whose name the Certificate
surrendered in exchange therefor is registered, it shall be a condition of such
issuance that the Certificate so surrendered shall be properly endorsed or
otherwise in proper form for transfer and that the person requesting such
exchange shall pay in advance any transfer or other taxes required by reason of
the issuance of a certificate for shares of Holdco Common Stock to such other
person, or established to the satisfaction of Holdco that such tax has been paid
or that such tax is not applicable. From the Effective Time until
surrender in accordance with the provisions of this Section 1.9, each
Certificate shall represent for all purposes only the right to receive the
consideration provided in Section 1.8. All issuances of respective
shares of Holdco Common Stock that are made upon surrender of Certificates in
accordance with the terms hereof shall be deemed to have been made in full
satisfaction of rights pertaining to the Company Common Stock evidenced by such
Certificates. Notwithstanding the foregoing provisions of this
Section 1.9(a), the officers of Holdco shall have the discretion to cause the
shares of Holdco Common Stock issued in conversion for shares of Company Common
Stock to be issued in book-entry form, without certificates, and may dispense
with the distribution of Letters of Transmittal as they see fit, in which case
Holdco shall send to shareholders as appropriate written statements of
information concerning their shares of Holdco Common Stock and the cancellation
of their Certificates.
(b) Dividends
and Distributions. No dividends or other distributions with respect
to shares of Holdco Common Stock with a record date after the
Effective Time shall be paid to the holder of any unsurrendered Certificate with
respect to the shares of Holdco Common Stock, until the surrender of such
Certificate in accordance with this Section 1.9. Following surrender
of any such Certificate, there shall be paid to the holder of the
non-certificated shares or the certificate representing shares of Holdco Common
Stock issued in exchange therefor, without interest, (i) the amount of dividends
or other distributions with a record date after the Effective Time theretofore
paid with respect to such shares of Holdco Common Stock, and (ii) at the
appropriate payment date, the amount of dividends or other distributions with a
record date after the Effective Time but prior to such surrender and with a
payment date subsequent to such surrender payable with respect to such shares of
Holdco Common Stock.
(c) Lost,
Mislaid, Stolen or Destroyed Certificates. In the case of any lost,
mislaid, stolen or destroyed Certificate, the holder thereof may be required, as
a condition precedent to delivery to such holder of the consideration described
in Section 1.8 hereof, to deliver to Holdco a bond in such reasonable sum or a
reasonably satisfactory indemnity agreement as Holdco may direct as indemnity
against any claim that may be made against Holdco or the Surviving Corporation
with respect to the Certificate alleged to have been lost, mislaid, stolen or
destroyed.
(d) No
Stock Transfers. After the Effective Time, there shall be no
transfers on the stock transfer books of the Surviving Corporation of the
Company Common Stock that were outstanding immediately prior to the Effective
Time. If, after the Effective Time, Certificates are presented to the
Surviving Corporation for transfer, they shall be canceled and exchanged for the
consideration described in Section 1.8.
(e) Unclaimed
Merger Consideration. Any shares of Holdco Common Stock due to former
shareholders of the Company pursuant to Section 1.8 hereof that remain unclaimed
by such former shareholders after the Effective Time shall be held by Holdco,
and any former holder of Company Common Stock who has not theretofore complied
with Section 1.9(a) shall thereafter look only to Holdco for issuance of the
number of shares of Holdco Common Stock to which such holder has become entitled
pursuant to the provisions of Section 1.8 and Section 1.9 hereof; provided,
however, that neither Holdco nor any party hereto shall be liable to a former
holder of Company Common Stock for any amount required to be paid to a public
official pursuant to any applicable abandoned property, escheat or similar
law.
ARTICLE
II
ACTIONS
TO BE TAKEN IN
CONNECTION
WITH THE MERGER
Section
2.1 Assumption
of Registered Stock Plans and Other Agreements. Holdco and the Company hereby
agree that they will, at the Effective Time, execute, acknowledge and deliver an
assumption agreement pursuant to which Holdco will, from and after the Effective
Time, assume and agree to perform all outstanding obligations of the Company
pursuant to (i) the Company's stock plans, including the 2005 Employee
Stock Purchase Plan (Reg. No. 333–126286), the 2004 Executive Officer Equity
Plan (Reg. No. 333-117337), the 2003 Director Deferred Compensation Plan
(Reg. No. 333-106886), the 2003 Non-Employee Director Stock Option Plan
(Reg. No. 333-106884), the 2003 Equity Incentive Plan (Reg. No. 333-106883), the
1998 Special Stock Option Plan (Reg. No. 333-61139), the Employee Stock Purchase
Plan (Reg. No. 33-92814), the Stock Incentive Plan (Reg. Nos. 333-41248,
033-92812, and 333-38735), and the Amended and Restated Stock Option Plan (Reg.
No. 033-92816) (collectively, the “Registered Stock Plans”); (ii) each stock
option agreement and/or similar award agreement entered into pursuant to the
Registered Stock Plans; and (iii) any other agreements that management of the
Company deems necessary or appropriate to be assumed by Holdco (“Other
Agreements”). At the Effective Time, the Registered Stock Plans and
Other Agreements shall be deemed amended to (i) reflect the assumption by Holdco
described above and (ii) add Holdco or its subsidiaries as parties or the
referenced companies with respect to qualifying participants, to the extent
deemed necessary or appropriate.
The
outstanding options and other awards assumed by Holdco shall be exercisable
and/or settled upon the same terms and conditions as under the Plans immediately
prior to the Effective Time, except that, upon the exercise of each such
option or settlement of such award, shares of Holdco Common Stock shall be
issuable in lieu of each share of Company Common Stock issuable with respect
thereto immediately prior to the Effective Time.
The
Company and Holdco shall take or cause to be taken all actions necessary or
desirable to assume and perform the obligations of the Company under the
Registered Stock Plans and Other Agreements, all to the extent deemed
appropriate by the Company and Holdco and permitted under applicable
law.
Section
2.2 Post-Effective
Amendments. It is the intent of the parties hereto that Holdco, as of the
Effective Time, be deemed a "successor issuer" for purposes of continuing
offerings under the Securities Act of 1933, as amended. As soon as practicable
following the Merger, Holdco will, to the extent deemed appropriate, file
post-effective amendments to the Company's registration statements on Form S-8
covering the Registered Stock Plans, adopting such statements as its own
registration statements for all purposes of the Securities Act and the Exchange
Act and setting forth any additional information necessary to reflect any
material changes made in connection with or resulting from the succession, or
necessary to keep the registration statements from being
misleading.
Section
2.3
Reservation of Shares. On or prior to the Effective Time, Holdco will reserve
sufficient shares of Holdco Common Stock to provide for the issuance of shares
of Holdco Common Stock with respect to awards outstanding under the Registered
Stock Plans.
Section
2.4 Employee
Benefit Plans. The Company and Holdco will take or cause to be taken all actions
necessary or desirable in order for Holdco to assume (or become a participating
employer in) each existing employee benefit plan and agreement of the Company,
with or without amendments, or to adopt, comparable plans, all to the extent
deemed appropriate by the Company and Holdco and permitted under applicable
law.
ARTICLE
III
CONDITIONS
OF MERGER
Section
3.1 Conditions
Precedent. The obligations of the parties to this Agreement to consummate the
Merger and the transactions contemplated by this Agreement shall be subject to
fulfillment or waiver by the parties hereto of each of the following
conditions:
(a) The
Company shall have received any approvals or permits and any consents, waivers
or amendments or other modification to the outstanding agreements, contracts,
instruments or other understandings which the Company deems necessary or
desirable in connection with the Merger and the transactions contemplated by
this Agreement.
(b) Prior
to the Effective Time, no order, statute, rule, regulation, executive order,
injunction, stay, decree, judgment or restraining order shall have been enacted,
entered, promulgated or enforced by any court or governmental or regulatory
authority or instrumentality which prohibits or makes illegal the consummation
of the Merger or the transactions contemplated hereby.
ARTICLE
IV
TERMINATION
AND AMENDMENT
Section
4.1 Termination.
This Agreement may be terminated and the Merger contemplated hereby may be
abandoned at any time prior to the Effective Time by action of the Board of
Directors of the Company, Holdco or MergerSub if any such Board of Directors
should determine that for any reason the completion of the transactions provided
for herein would be inadvisable or not in the best interest of such corporation
or its shareholders. In the event of such termination and abandonment, this
Agreement shall become void and neither the Company, Holdco or MergerSub nor
their respective shareholders, directors or officers shall have any liability
with respect to such termination and abandonment.
Section
4.2 Amendment.
This Agreement may be supplemented, amended or modified by the mutual consent of
the Boards of Directors of the parties to this Agreement.
ARTICLE
V
MISCELLANEOUS
PROVISIONS
Section
5.1 Governing
Law. This Agreement shall be governed by and construed and enforced under the
laws of the Commonwealth of Virginia.
Section
5.2 Counterparts.
This Agreement may be executed in one or more counterparts, each of which when
executed shall be deemed to be an original but all of which shall constitute one
and the same agreement.
Section
5.3 Entire
Agreement. This Agreement, including the documents and instruments referred to
herein, constitutes the entire agreement and supersedes all other prior
agreements and undertakings, both written and oral, among the parties, or any of
them, with respect to the subject matter hereof.
Section
5.4 Severability. The
provisions of this Agreement are severable, and in the event any provision
hereof is determined to be invalid or unenforceable, such invalidity or
unenforceability shall not in any way affect the validity or enforceability of
the remaining provisions hereof.
[Signature
page follows]
IN
WITNESS WHEREOF, the Company, Holdco and MergerSub have caused this Agreement to
be executed as of the date first written above by their respective officers
thereunto duly authorized.
DOLLAR
TREE STORES, INC.
By: /s/ ▇▇▇
▇▇▇▇▇▇
Print
Name: ▇▇▇ ▇▇▇▇▇▇
Title: President
& CEO
DOLLAR
TREE, INC.
By: /s/ ▇▇▇
▇▇▇▇▇▇
Print
Name: ▇▇▇ ▇▇▇▇▇▇
Title: President
& CEO
DOLLAR
TREE MERGER SUB, INC.
By: /s/ ▇▇▇▇
▇▇▇▇▇▇▇
Print
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: President