AMENDMENT TO MERGER AGREEMENT
THIS AMENDMENT TO MERGER AGREEMENT ("Amendment") dated June
22, 1999, by and among DOLLAR TREE STORES, INC., a Virginia corporation
("Parent"), DOLLAR TREE NEW YORK, INC., a New York corporation and a wholly
owned subsidiary of Parent ("Sub"), XXXXX'X MERCHANDISING, INC., a New York
corporation ("Company"), and XXXXXXX X. XXXXX, XXXXXX X. XXXXX, XXXXX X. XXXXX,
XXXXXX X. XXXXX, and XXXXXXXXX X. XXXXX, the sole shareholders of the Company
(each may be referred to herein as a "Shareholder" or collectively as the
"Shareholders"). The capitalized terms used herein shall have the meanings given
such terms in the Merger Agreement dated June 15, 1999 by and among the parties
hereto ("Agreement").
W I T N E S S E T H:
WHEREAS, pursuant to the Agreement, the Average Closing Price
is defined to be the arithmetic average of the closing price per share of Parent
Common Stock, as reported on the Nasdaq for each of the four (4) consecutive
trading days ending with the trading day which occurs immediately prior to the
Closing Date; and
WHEREAS, the Agreement contemplates that the Closing may take
place as late as August 31, 1999 before either party has the right to terminate
the Agreement; and
WHEREAS, prior to Closing, Parent is subject to the risk that
the Average Closing Price may fall, resulting in an increase in the Merger
Consideration, and Shareholders are subject to the risk that the Average Closing
Price may rise, resulting in a decrease in Merger Consideration; and
WHEREAS, the parties desire to modify the Agreement at this
time to fix the dates for determining the Average Closing Price as if the
Closing under the Agreement had occurred on the date hereof in order to arrive
at a known Average Closing Price, thus eliminating the risks to both parties
described above.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements set forth herein, the parties hereby amend the
Agreement and agree as follows:
1. Amendment to Agreement. The definition of "Average Closing Price"
shall be amended by restating the second sentence of Section 2.1(a) to read as
follows:
The "Merger Consideration" shall be a number of shares of Parent Common
Stock equal to $20,000,000 divided by the arithmetic average of the
closing price per share of Parent Common Stock, as reported on the
Nasdaq National Market System (the "Nasdaq"), for each of the following
four (4) consecutive trading days: June 16, June 17, June 18 and June
21, 1999 (the "Average Closing Price").
Amendment - 1
2. Determination of Average Closing Price. The parties hereby agree
that the effect of the amendment to the Agreement contained in Section 1 of this
Amendment is to fix the Average Closing Price for all purposes of the Agreement
at THIRTY-NINE and SEVEN/EIGHTHS DOLLARS ($39 7/8ths) per share, which amount
shall not be subject to challenge by any party hereto for any reason.
3. Miscellaneous. The original Agreement, as amended hereby, shall
remain in full force and effect and embody the entire agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and therein in conformity with Section 12.2 of the Agreement. This
Amendment may be executed in two or more counterparts, each of which shall be
deemed an original and all of which together shall constitute one and the same
instrument, and, when signed by all of the parties hereto, shall become legally
binding on such parties effective as of the date set forth at the beginning of
this Amendment.
IN WITNESS WHEREOF, the parties have executed or caused to be
executed this Agreement effective as of the day and year first above written.
COMPANY: XXXXX'X MERCHANDISING, INC. [SEAL]
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Xxxxxxx X. Xxxxx
President
PARENT: DOLLAR TREE STORES, INC. [SEAL]
By: /s/ H. Xxx Xxxxxxx
------------------
H. Xxx Xxxxxxx
Executive Vice President
SUB: DOLLAR TREE NEW YORK, INC. [SEAL]
By: /s/ H. Xxx Xxxxxxx
------------------
H. Xxx Xxxxxxx
Executive Vice President
Amendment - 2
SHAREHOLDERS:
/s/ Xxxxxxx X. Xxxxx [SEAL]
--------------------
XXXXXXX X. XXXXX
/s/ Xxxxxx X. Xxxxx [SEAL]
-------------------
XXXXXX X. XXXXX
/s/ Xxxxxx X. Xxxxx [SEAL]
-------------------
XXXXXX X. XXXXX
/s/ Xxxxx X. Xxxxx [SEAL]
------------------
XXXXX X. XXXXX
/s/ Xxxxxxxxx X. Xxxxx [SEAL]
----------------------
XXXXXXXXX X. XXXXX
State of (Commonwealth of) New York, City/County of Oneida, to-wit:
The foregoing instrument was acknowledged before me this 22nd day of June,
1999, by Xxxxxxx X. Xxxxx, President of Xxxxx'x Merchandising, Inc., on behalf
of the corporation.
/s/ Xxxx X. Xxxxxxx
------------------------------------
Notary Public
My commission expires: May 5, 2000
State of (Commonwealth of) Virginia, City/County of Chesapeake, to-wit:
The foregoing instrument was acknowledged before me this 22nd day of June,
1999, by H. Xxx Xxxxxxx, Executive Vice President of Dollar Tree Stores, Inc.,
on behalf of the corporation.
/s/ Xxxxxx X. Xxx
------------------------------------
Notary Public
My commission expires: Aug. 31, 1999
Amendment - 3
State of (Commonwealth of) Virginia, City/County of Chesapeake, to-wit:
The foregoing instrument was acknowledged before me this 22nd day of June,
1999, by H. Xxx Xxxxxxx, Executive Vice President of Dollar Tree New York, Inc.,
on behalf of the corporation.
/s/ Xxxxxx X. Xxx
------------------------------------
Notary Public
My commission expires: Aug. 31, 1999
State of (Commonwealth of) New York, City/County of Oneida, to-wit:
The foregoing instrument was acknowledged before me this 22nd day of June,
1999, by Xxxxxxx X. Xxxxx.
/s/ Xxxx X. Xxxxxxx
------------------------------------
Notary Public
My commission expires: May 5, 2000
State of (Commonwealth of) New York, City/County of Oneida, to-wit:
The foregoing instrument was acknowledged before me this 22nd day of June,
1999, by Xxxxxx X. Xxxxx.
/s/ Xxxx X. Xxxxxxx
------------------------------------
Notary Public
My commission expires: May 5, 2000
State of (Commonwealth of) New York, City/County of Oneida, to-wit:
The foregoing instrument was acknowledged before me this 22nd day of June,
1999, by Xxxxxx X. Xxxxx.
/s/ Xxxx X. Xxxxxxx
------------------------------------
Notary Public
My commission expires: May 5, 2000
Amendment - 4
State of (Commonwealth of) New York, City/County of Oneida, to-wit:
The foregoing instrument was acknowledged before me this 22nd day of June,
1999, by Xxxxx X. Xxxxx.
/s/ Xxxx X. Xxxxxxx
------------------------------------
Notary Public
My commission expires: May 5, 2000
State of (Commonwealth of) New York, City/County of Oneida, to-wit:
The foregoing instrument was acknowledged before me this 22nd day of June,
1999, by Xxxxxxxxx X. Xxxxx.
/s/ Xxxx X. Xxxxxxx
------------------------------------
Notary Public
My commission expires: May 5, 2000
Amendment - 5
