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 Bob Sasser shall no longer serve as
directors. Immediately following the Effective
Time, therefore, Bob Sasser 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 conver
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