Exhibit 2.5
FIRST AMENDMENT TO
DOLLAR TREE STORES, INC.
AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
This FIRST AMENDMENT ("Amendment") to the Dollar Tree Stores, Inc. Amended
and Restated Stockholders Agreement is made by and among the undersigned parties
effective March 13, 1995.
WHEREAS, the undersigned parties are original parties (or have become
parties) to that certain Amended and Restated Stockholders Agreement
("Agreement"), effective March 13, 1995;
WHEREAS, the Agreement deals with certain matters relating to the ownership
of securities of Dollar Tree Stores, Inc., a Virginia corporation ("Company");
and
WHEREAS, pursuant to Section 7.7 of the Agreement, the undersigned parties
now wish to amend certain provisions of the Agreement as set forth below.
NOW, THEREFORE, in consideration of the premises, the mutual promises set
forth below and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Agreement is hereby amended as
follows:
1. DEFINITIONS.
a. Capitalized words used in this Amendment shall have the same
meaning as the identical terms used in the Agreement, except as otherwise
explicitly noted herein.
b. The definition of "Permitted Transferee" in Section 1.18 of
the Agreement shall be amended and restated as follows:
PERMITTED TRANSFEREES. Any of the following persons to whom Stock is
Transferred, who agrees to be bound by the provisions of this Agreement,
and whose admission to the Agreement is approved by the Fund and the
Founders, all in the manner provided in Section 7.2:
(a) With respect to a Founder, "Permitted Transferee" may include (i)
any Founder, (ii) any executive manager of the Company, (iii) the spouse
(other than pursuant to a separation agreement, divorce decree, or other
instrument indicative of marital discord), lineal descendant, or lineal
ascendent, of any Founder or executive manager of the Company, (iv) the
estate of any person described in (i), (ii), or (iii) above or a trust,
foundation or custodianship for the benefit of any person described in (i),
(ii) or (iii) above.
1
(b) With respect to The SK Equity Fund, L.P., "Permitted Transferee"
may include any entity which is under common control with, controls, or is
controlled by Xxxxxxxx Xxxx & Co., L.P., directly or indirectly through one
or more intermediaries, or the Fund Successor.
(c) With respect to the Fund (with the exception of The SK Equity
Fund, L.P.), "Permitted Transferee" may include (i) the spouse (other than
pursuant to a separation agreement, divorce decree, or other instrument
indicative of marital discord), lineal descendant, or lineal ascendant of
Karp, Saunders, Xxxxxx or Xxxxxx, (ii) the estate of any person described
in (i) above or a trust, foundation or custodianship for the benefit of any
person described in (i) above.
2. TRANSFERS.
a. Section 3.12 of the Agreement is hereby amended and restated as
follows:
HOLDBACK AGREEMENT. The parties to this Agreement agree not to effect
any Transfer, including any sale pursuant to Rule 144 (or any successor
provision, under the Act), of any Stock or of any security convertible into
or exchangeable or exercisable for any Stock (in each case, other than as
part of a Public Offering) during 14 days prior to, and during the 90-day
period which begins on the effective date any registration statement filed
with respect to Stock; provided that the prohibition shall only be
effective once a Stockholder has or reasonably should have notice of such
registration.
b. Section 7.2 of the Agreement is hereby amended and restated as
follows:
TRANSFER. Apart from the holdback provisions found in Section 3.12,
nothing in this Agreement shall prohibit or restrict a Transfer of Stock or
of any security convertible into or exchangeable or exercisable for any
Stock by a party hereto. However, no person receiving Stock by any
Transfer shall become a Permitted Transferee under this Agreement unless
and until the following conditions precedent are met:
(i) any such transferee who is not an original party hereto shall
become subject to the provisions of this Agreement as if the
transferee were an original party hereto by executing a written
agreement to that effect and delivering the same to the Company, and
(ii) the Fund and the Founders shall both approve the
transferee's admission to the Agreement as a Permitted Transferee,
which approval may not be unreasonably withheld. Execution of an
admission agreement as contemplated above by Xxxx X. Xxxxxx and H. Xxx
Xxxxxxx or their attorney(s)-in-fact shall constitute conclusive proof
of such approval by the Fund and the Founders respectively.
2
Any Transfer of Stock failing to comply with the foregoing conditions shall
be NOT be deemed void on account of such failure, but the transferee shall
not be deemed a Permitted Transferee unless and until the failure is
remedied. The Transfer of Stock or any security convertible into Stock is
restricted under applicable state and federal securities laws, and nothing
in this Section 7.2 shall be deemed to require the Company to acknowledge
or record on its books any such Transfer without registration under the Act
or an exemption therefrom as determined by counsel reasonably acceptable to
the Company.
c. The first sentence and the text of the restrictive legend
contained in Section 7.4 of the Agreement are amended and restated as follows:
The following provisions described in (i) below shall be affixed to
each existing certificate representing Stock owned by a party to this Agreement
or a transferee of such party, and, in addition, the provisions described in
(ii) below shall be affixed to certificates representing Stock owned by a party
to this Agreement or a Permitted Transferee of such party:
(i) This Stock has not been registered under the Securities
Act of 1933, as amended, or any state securities laws and
may not be offered or sold except in compliance therewith.
(ii) In addition, this Stock is subject to the terms of a
certain Amended and Restated Stockholders Agreement
effective March 13, 1995, as it may be amended from time to
time, which may be furnished to the Stockholder upon written
request without charge or obtained and inspected without
charge at the office of Dollar Tree Stores, Inc. or
Hofheimer, Nusbaum, XxXxxxx & Xxxxxxx, between the hours of
9:00 a.m. and 5:00 p.m. on weekdays. Among other things,
the Stockholders Agreement provides for restrictions on the
transfer of this Stock.
3. MISCELLANEOUS.
a. Except as herein modified, the Agreement is confirmed and
ratified and shall continue in full force and effect in accordance with its
terms.
b. This Amendment shall be governed by the internal substantive law
of the Commonwealth of Virginia without giving effect to the choice- or
conflict-of-law provisions thereof and may be executed in two or more
counterparts, each of which shall be deemed an original hereof, but all of which
together, shall constitute a single agreement.
3
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
hand and seal on the dates stated below, but effective as of the Effective Date.
DOLLAR TREE STORES, INC.
By: /s/ J. Xxxxxxx Xxxxx
--------------------------- ----------------------
Date Executed Name: J. Xxxxxxx Xxxxx
Title:
Attest:
/s/ H. Xxx Xxxxxxx
---------------------------
H. Xxx Xxxxxxx
Secretary
4
/s/ J. Xxxxxxx Xxxxx
------------- ---------------------------------------
Date Executed J. Xxxxxxx Xxxxx
/s/ Xxxxxxxx X. Xxxxx
------------- ---------------------------------------
Date Executed Xxxxxxxx X. Xxxxx
/s/ J. Xxxxxxx Xxxxx
------------- ---------------------------------------
Date Executed J. Xxxxxxx Xxxxx, Trustee of the Xxxxxxx
Xxxxxxx Xxxxx Descendants' Trust
/s/ J. Xxxxxxx Xxxxx
------------- ---------------------------------------
Date Executed J. Xxxxxxx Xxxxx, Trustee of the Xxxxxx
Xxxxxxxxxxx Xxxxx Descendants' Trust
/s/ J. Xxxxxxx Xxxxx
------------- ---------------------------------------
Date Executed J. Xxxxxxx Xxxxx, Trustee of the Xxxxx
Xxxxx Xxxxx Descendants' Trust
/s/ J. Xxxxxxx Xxxxx
------------- ---------------------------------------
Date Executed J. Xxxxxxx Xxxxx, Trustee of the Xxxxxxxx
X. Xxxxx Grantor Retained Annuity Trust
5
/s/ Macon X. Xxxxx, Xx.
------------- ---------------------------------------
Date Executed Macon X. Xxxxx, Xx.
/s/ Xxxx X. Xxxxx
------------- ---------------------------------------
Date Executed Xxxx X. Xxxxx
/s/ Macon X. Xxxxx, Xx.
------------- ---------------------------------------
Date Executed Macon X. Xxxxx, Xx., Trustee of the
Xxxxxxx X. Xxxxx Descendants' Trust
/s/ Macon X. Xxxxx, Xx.
------------- ---------------------------------------
Date Executed Macon X. Xxxxx, Xx., Trustee of the
Xxxxxxxxx Xxxxx XxXxxxxx Descendants'
Trust
/s/ Macon X. Xxxxx, Xx.
------------- ---------------------------------------
Date Executed Macon X. Xxxxx, Xx., Trustee of the
Macon X. Xxxxx, III, Descendants' Trust
/s/ Macon X. Xxxxx, Xx.
------------- ---------------------------------------
Date Executed Macon X. Xxxxx, Xx., Trustee of the
Xxxx X. Xxxxx Grantor Retained Annuity
Trust
6
/s/ H. Xxx Xxxxxxx
------------- ---------------------------------------
Date Executed H. Xxx Xxxxxxx
/s/ Xxxxx X. Xxxxxxx
------------- ---------------------------------------
Date Executed Xxxxx X. Xxxxxxx, Trustee of the Brymar
Descendants' Trust
/s/ Xxxx X. Xxxxxxx
------------- ---------------------------------------
Date Executed Xxxx X. Xxxxxxx, Trustee of the H. Xxx
Xxxxxxx Grantor Retained Annuity Trust
7
THE SK EQUITY FUND, L.P.
By: SK PARTNERS, L.P.,
Sole General Partner
By: /s/ Xxxxxx X. Xxxxxxxx, III
------------- ------------------------------
Date Executed Duly Authorized General Partner
/s/ Xxxxx X. Xxxx
------------- ---------------------------------------
Date Executed Xxxxx X. Xxxx
/s/ Xxxxxxxxxxx X. Xxxxxx
------------- ---------------------------------------
Date Executed Xxxxxxxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
------------- ---------------------------------------
Date Executed Xxxxxxx X. Xxxxxx, Custodian for
Xxxxxxxxxxx Xxxxxxxxx Xxxxxx until
age twenty-one, under the New York
Uniform Gifts to Minors Act
/s/ Xxxxxxx X. Xxxxxx
------------- ---------------------------------------
Date Executed Xxxxxxx X. Xxxxxx, Custodian for
Xxxx Xxxxxxxxx Xxxxxx until age
twenty-one, under the New York Uniform
Gifts to Minors Act
/s/ Xxxxxx X. Xxxxxxxx, III
------------- ---------------------------------------
Date Executed Xxxxxx X. Xxxxxxxx, III, Trustee for
the Ivor Family Trust
/s/ Xxxx X. Xxxxxx
------------- ---------------------------------------
Date Executed Xxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxxxx, III
------------- ---------------------------------------
Date Executed Xxxxxx X. Xxxxxxxx, III
/s/ Xxxxxx X. Xxxxxxx
------------- ---------------------------------------
Date Executed Xxxxxx X. Xxxxxxx, Trustee for
the Ivor Family Trust and the
Xxxxxxxx Dollar Tree Trust
8
