EXHIBIT 2
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is entered into as
of the 1st day of August 2003, by and among Value City Department Stores, Inc.,
an Ohio corporation ("Value City"), Value City Merger Sub, Inc., an Ohio
corporation ("Merger Sub"), and Retail Ventures, Inc., an Ohio corporation
("RVI").
RECITALS
A. This Agreement provides for the merger of Merger Sub with and
into Value City (the "Merger"), which will be the surviving corporation, in
accordance with General Corporate Law of the State of Ohio (the "OGCL"), upon
the terms and conditions set forth herein and in accordance with the applicable
provisions of the OGCL. The purpose of the Merger is to implement a holding
company organizational structure under which Value City will become a direct
wholly-owned subsidiary of RVI.
B. The respective Boards of Directors and Shareholders of Value
City, RVI, and Merger Sub have approved the Merger upon the terms and subject to
the conditions set forth herein.
AGREEMENT
Accordingly, in consideration of the mutual promises and agreements set
forth herein, and in order to set forth the terms and conditions of the Merger
and the mode of carrying the same into effect, the parties hereby agree as
follows:
1. THE MERGER.
1.1 The Merger. At the Effective Time (as defined in Section 1.3
hereof), and subject to the terms and conditions of this Agreement and the OGCL,
Merger Sub shall be merged with and into Value City, the separate corporate
existence of Merger Sub shall thereupon cease, and Value City shall be the
surviving corporation in the Merger (the "Surviving Corporation").
1.2 Surviving Corporation. At the Effective Time, Value City shall
continue its corporate existence under the laws of the State of Ohio and shall
thereupon and thereafter possess all rights, privileges, powers and franchises
and all property of Merger Sub and shall be subject to all debts, liabilities
and duties of Merger Sub, all as provided under the OGCL. The name of the
Surviving Corporation shall continue to be "Value City Department Stores, Inc."
1.3 Effective Time of the Merger. The Merger shall become
effective and be consummated at 12:01 a.m. on October 8, 2003, as set forth in
the Certificate of Merger filed by the Surviving Corporation with the Secretary
of State of the State of Ohio (the "Effective Time").
1.4 Articles of Incorporation of the Surviving Corporation. The
Articles of Incorporation of Value City, as in effect immediately prior to the
Effective Time, shall be the Articles of Incorporation of the Surviving
Corporation following the Effective Time.
1.5 Code of Regulations of the Surviving Corporation. The Code of
Regulations of Value City, as in effect immediately prior to the Effective Time,
shall be the Code of Regulations of the Surviving Corporation following the
Effective Time until thereafter amended or repealed as provided therein and
under the OGCL.
1.6 Directors and Officers of the Surviving Corporation. The
directors of Merger Sub in office immediately prior to the Effective Time shall
serve as the directors of the Surviving Corporation from and after the Effective
Time in accordance with the Code of Regulations of the Surviving Corporation.
The officers of Value City in office immediately prior to the Effective Time
shall serve as the officers of the Surviving Corporation from and after the
Effective time in accordance with the Code of Regulations of the Surviving
Corporation.
1.7 Statutory Agent. The name and address of the agent upon whom
any process, notice, or demand against any of the parties may be served is CSC -
Lawyers Incorporating Service (Corporation Service Company), 00 Xxxx Xxxxx
Xxxxxx, Xxxxxxxx, Xxxx 00000.
2. CONVERSION OF SECURITIES AND ASSUMPTION OF CERTAIN
OBLIGATIONS.
2.1 Conversion of Securities. At the Effective Time, by virtue of
the Merger and without any further action on the part of Value City, RVI, Merger
Sub or the holders of any securities of the foregoing corporations:
2.1.1 Common Stock of Merger Sub. Each share of common
stock, without par value, of Merger Sub issued and outstanding immediately prior
to the Effective Time, shall be converted into one share of common stock,
without par value, of the Surviving Corporation.
2.1.2 Common Stock of Value City. Each share of common
stock, without par value, of Value City ("Value City Common Stock") issued and
outstanding or held in its treasury immediately prior to the Effective Time
shall be converted into one share of common stock, without par value, of RVI
("RVI Common Stock"), and shall have the same designations, rights and powers
and preferences, and the qualifications, limitations and restrictions thereof,
as the Value City Common Stock being converted. Each certificate representing
shares of Value City Common Stock immediately prior to the Effective Time shall
be deemed to represent the same number of shares of RVI Common Stock.
2.1.3 Common Stock of RVI. Each share of RVI Common Stock
issued and outstanding immediately prior to the Effective Time shall
automatically be cancelled and retired and shall cease to exist.
2.1.4 Value City Stock Options and Other Awards. RVI shall
assume sponsorship and continue all the rights and obligations of Value City
under the 1991 Stock Option Plan (as amended), the Non-Employee Director Stock
Option Plan (as amended), the 2000 Stock Incentive Plan (as amended), the
Employee Stock Purchase Plan, the 1992 Officer/Key Employee Stock Bonus Plan,
and the Profit Sharing and 401(k) Plan administered by Schottenstein Stores
Corporation, in which Value City is a participating employer and RVI shall
continue as the participating employer (collectively, the "Plans"). The
outstanding options and other awards assumed by RVI shall be exercisable 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 award,
shares of RVI Common Stock shall be issuable in lieu of each share of Value City
Common Stock issuable upon the exercise thereof immediately prior to the
Effective Time.
2.1.5 Successor Issuer. It is the intent of the parties
hereto that RVI, as of the Effective Time, be deemed a "successor issuer" for
purposes of continuing offerings under the Securities Exchange Act of 1933, as
amended.
2.2 Exchange of Certificates. Each holder of a certificate
formerly representing shares of Value City Common Stock shall be required to
surrender such certificate to Value City's transfer agent ("Transfer Agent"),
along with a properly completed transmittal letter in order to receive a
certificate or certificates of RVI representing the number of shares of RVI
Common Stock into which the shares of Value City Common Stock previously
represented by such Value City certificate have been converted pursuant to this
Agreement. A letter of transmittal will be mailed by the Transfer Agent to each
former shareholder of Value City as soon as reasonably practicable after the
Effective Time. Until surrendered and exchanged in accordance with this Section
2.2 or in the ordinary course, each certificate representing Value City Common
Stock shall be deemed and treated for all corporate purposes at any time after
the Effective Time to evidence the ownership of the number of shares of RVI into
which such shares of Value City were converted pursuant to Section 2.1.2 herein.
2.3 Value City Stock Transfer Books. At the Effective Time, the
stock transfer books for the shares of Value City Common Stock which will be
converted to RVI Common Stock pursuant to Section 2.1 hereof shall be deemed
closed, and no transfer of such shares shall thereafter be made or consummated.
2.4 Other Agreements. At the Effective Time, RVI shall assume any
obligation of Value City to deliver or make available shares of Value City
Common Stock under any agreement, including but not limited to, all warrants and
option agreements, or employee benefit plan not specifically referred to in this
Section 2 to which Value City or any of its subsidiaries is a party. Any
reference to Value City Common Stock under any such agreement or employee
benefit plan shall be deemed to be a reference to RVI Common Stock and one share
of RVI Common Stock shall be
issuable in lieu of each share of Value City Common Stock required to be issued
by any such agreement or employee benefit plan, subject to subsequent adjustment
as provided in any such agreement or employee benefit plan.
3. MISCELLANEOUS.
3.1 Amendment. At any time prior to the Effective Time, the
parties hereto may, to the extent permitted by the OGCL, by written agreement
amend, modify or supplement any provision of this Agreement.
3.2 Termination. This Agreement may be terminated and the Merger
abandoned by the Board of Directors or duly authorized committees thereof of
Value City at any time prior to the filing of the Certificate of Merger with the
Ohio Secretary of State. Upon termination provided herein, this Agreement shall
become void and there shall be no further obligations or liability on the part
of any party hereto or their respective shareholders, officers or directors.
3.3 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio, without reference to
Ohio's choice of law rules.
3.4 Headings. The headings set forth herein are for convenience
only and shall not be used in interpreting the text of the section in which they
appear.
3.5 Counterparts. This Agreement may be executed in one or more
counterparts which together shall constitute a single agreement.
3.6 Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings, oral or written, between the
parties with respect thereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written by their respective officers
thereunto duly authorized.
VALUE CITY DEPARTMENT STORES, INC.
/s/ Xxxxx X. XxXxxxx
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Xxxxx X. XxXxxxx
Executive Vice President, Chief Financial
Officer, Treasurer and Secretary
RETAIL VENTURES, INC.
/s/ Xxxxx X. XxXxxxx
-----------------------------------------
Xxxxx X. XxXxxxx
Executive Vice President, Chief Financial
Officer, Treasurer and Secretary
VALUE CITY MERGER SUB, INC.
/s/ Xxxxx X. XxXxxxx
-----------------------------------------
Xxxxx X. XxXxxxx
Executive Vice President, Chief Financial
Officer, Treasurer and Secretary
