ESCROW AGREEMENT
THIS ESCROW AGREEMENT, dated as of _______________, 2000 (the "Escrow
Agreement"), by and among DOLLAR TREE STORES, INC., a Virginia corporation
("Parent"); THE SHAREHOLDERS IDENTIFIED ON SCHEDULE 1 HERETO, (each a
"Shareholder" and, collectively, the "Shareholders"); XXXXXXX SPAIN and XXXXXXX
XXX, as representatives of the Shareholders (collectively, the "Shareholder
Representatives"); and STATE STREET BANK AND TRUST COMPANY, a Massachusetts
banking corporation acting solely as escrow agent hereunder and not in its
individual capacity ("Escrow Agent"). The Parent and the Shareholders are
sometimes referred to herein as the "Interested Parties." Capitalized terms used
but not otherwise defined herein shall have the meanings ascribed to such terms
in the Merger Agreement (as hereinafter defined).
W I T N E S S E T H:
WHEREAS, pursuant to a certain Merger Agreement, dated as of April 5,
2000 (the "Merger Agreement") by and among Parent, DT Keystone, Inc., a
Pennsylvania corporation and wholly-owned subsidiary of Parent ("Sub") and
Dollar Express, Inc., a Pennsylvania corporation (the "Company"), the capital
stock of the Company owned by the Shareholders has been (simultaneously with the
execution hereof) converted into the right to receive shares of Parent Common
Stock;
WHEREAS, pursuant to Article 10 of the Merger Agreement, the
Shareholders have agreed to indemnify Parent and its subsidiaries and Affiliates
(including DT Keystone, Inc., Dollar Express, Inc., and the surviving
corporation in the Merger), each of their respective officers, directors,
employees, agents and representatives and each of the heirs, executors,
successors and assigns of any of the foregoing (collectively, the "Parent
Indemnified Parties") for Parent Losses;
WHEREAS, as security for the Shareholders' obligations under the Merger
Agreement but without limiting the other remedies of the Parent Indemnified
Parties thereunder, the Merger Agreement also contemplates a surrender of Escrow
Shares (as defined below) and related funds to the extent Parent Indemnified
Parties suffer Parent Losses;
1
WHEREAS, pursuant to Section 8.5 of the Merger Agreement, the
Shareholders have appointed the Shareholder Representatives to act on their
behalf with respect to the performance on behalf of such Shareholder under the
terms and provisions of this Escrow Agreement; and
WHEREAS, Escrow Agent is willing to act as escrow agent hereunder.
NOW, THEREFORE, in consideration of the premises and the mutual
promises, covenants and agreements contained herein, the parties hereto,
intending to be legally bound, hereby agree as follows:
1 Delivery of Escrow Shares.
1.1 Subject and pursuant to the Merger Agreement, Escrow Shares
shall be delivered to the Escrow Agent on behalf of the Shareholders, in the
proportion specified on Schedule 1 hereto. The Escrow Shares shall be
represented by a stock certificate in the name of State Street Bank and Trust
Company, as Escrow Agent under the Escrow Agreement, dated April ___, 2000.
Notwithstanding the foregoing, during the term of this Escrow Agreement, title
to the Escrow Shares will be in the name of the Escrow Agent for record holder
purposes only. The parties acknowledge that the Shareholders are the beneficial
owners of the Escrow Shares, subject to the terms and conditions of the Merger
Agreement and this Escrow Agreement, and each Shareholder shall retain all
rights to vote the shares of Parent Common Stock delivered on behalf of such
Shareholder to the Escrow Agent that are not transferred to Parent pursuant to
Section 2 hereof.
1.2 The Escrow Shares shall be contributed into escrow hereunder
on behalf of the Shareholders in the same proportion to the Parent Common Stock
to be received by each Shareholder pursuant to Article 2 of the Merger
Agreement. Escrow Agent agrees to submit said shares for transfer into its name
as Escrow Agent hereunder or, in its discretion, into the name of its nominee,
and agrees to hold and administer said shares subject to the terms of this
Escrow Agreement. Except as set forth in this Agreement, the Escrow Agent shall
be under no obligation to preserve, protect or exercise rights in the Escrow
Shares, and shall be responsible only for reasonable measures to maintain the
physical safekeeping thereof, and otherwise to perform and observe such duties
on its part as are expressly set forth in this Escrow Agreement. The Escrow
Agent shall have no responsibility for the genuineness, validity, market value,
title or sufficiency for any intended purpose of the Escrow Shares.
2 The Escrow Fund. All cash dividends on or proceeds from the
permitted sale of the Escrow Shares shall be deposited directly into an escrow
account created by the Escrow Agent specifically for the purpose of holding such
cash dividends and proceeds (the "Dividend Account"), without any tax or other
withholding or deduction, subject to the terms of the Escrow Agreement. Shares
resulting from stock dividends, stock splits and other shares or securities
issued in respect of the Escrow Shares shall be issued in the name of the Escrow
Agent, and shall be held by the Escrow Agent subject to the provisions of this
Agreement, and upon issuance
2
shall become part of the Escrow Shares. The Escrow Agent shall invest the
Dividend Account at, and pursuant to, the written direction of the Shareholder
Representatives in Eligible Investments and shall not be responsible or liable
for any loss accruing from any investment made in accordance herewith except for
losses due to the gross negligence or wilful misconduct of the Escrow Agent.
"Eligible Investments" shall mean (i) obligations issued or guaranteed by the
United States of America or any agency or instrumentality thereof (provided that
the full faith and credit of the United States is pledged in support thereof);
(ii) obligations (including certificates of deposit and banker's acceptances) of
any domestic commercial bank having capital and surplus in excess of
$500,000,000; (iii) repurchase obligations for underlying securities of the type
described in clause (i); (iv) shares of money market funds at least 95% of the
assets of which constitute obligations of the type described in clause (i)
above. No investment shall have a term of more than ninety (90) days. If
otherwise qualified, obligations of the Escrow Agent shall qualify as Eligible
Investments. Absent its timely receipt of such specific written investment
instruction from the Shareholder Representatives, the Escrow Agent shall invest
the funds in the Dividend Account in the Eligible Investments described in
clause (i) above. All earnings received from the investment of the Dividend
Account shall be credited to, and shall become a part of, the Dividend Account
(and any losses on such investments shall be debited to the Dividend Account).
The Escrow Agent shall have no liability for any investment losses, including
any losses on any investment required to be liquidated prior to maturity in
order to make a payment required hereunder except for losses due to the gross
negligence or wilful misconduct of the Escrow Agent.
The Escrow Agent is hereby authorized, in making or disposing of any
investment permitted by this section, to deal with itself (in its individual
capacity) or with any one or more affiliates, whether it or such affiliate is
acting as an agent of the Escrow Agent or for any third person or dealing as
principal for his own account.
3 Voting and Disposition of Escrow Shares.
(a) The Escrow Shares shall be voted on all matters submitted to
the shareholders of Parent as each Shareholder shall direct with respect to the
number of Escrow Shares allocated to such Shareholder. During the period the
Escrow Shares are held hereunder, Parent shall cause all proxy solicitation
materials, including forms of proxy, to be sent to the Shareholders and Escrow
Agent as and when sent to the shareholders of Parent. In the absence of
direction from any Shareholder, the Escrow Agent shall not be responsible for
forwarding to any party, notifying any party with respect to, or taking any
action with respect to any Escrow Shares.
(b) Following the Restricted Period (as defined below), and subject
to compliance with the requirements of applicable securities laws, the Escrow
Shares may be sold by the Escrow Agent on behalf of the Shareholders for cash at
the time and in the manner the Shareholder Representatives shall direct. No
Escrow Shares may be sold, transferred or otherwise disposed of, nor shall any
person in any other way reduce such person's risk or other
3
shares of the capital stock of Parent until after such time as financial results
covering at least 30 days of post merger combined operations of Parent and the
Company have been published (within the meaning of Section 201.01 of the SEC's
Codification of Financial Reporting Policies) by Parent, in the form of a
post-effective amendment, issuance of a quarterly earnings report, a Form 10-K,
10-Q or 8-K filing, or any other public issuance which includes the combined
sales and net income (the "Restricted Period"). Proceeds from the permitted sale
of the Escrow Shares shall be deposited in the Dividend Account and allocated to
identified subaccount for the benefit of the applicable Shareholders.
Notwithstanding any provision of this section 3(b) to the contrary, the Escrow
Agent conclusively may assume that the Restricted Period has expired if it
receives directions from the Shareholder Representatives to sell shares.
4 Application of Escrow Shares and the Dividend Account to Claims of
Parent Indemnified Parties and Deficit Amount.
4.1 In the event a Parent Indemnified Party claims that it is
entitled to indemnification pursuant to the Merger Agreement (including without
limitation a claim for a Deficit Amount pursuant to Section 7.1(vi)), such
Parent Indemnified Party shall give written notice of such claim to the
Shareholder Representatives and the Escrow Agent. Any such notice shall be
signed by an officer of Parent and shall contain (i) a reasonable description of
the claim and (ii) and the amount thereof. The Escrow Agent shall thereupon, but
in no event less promptly than five (5) business days thereafter, deliver a copy
of such notice to the Shareholder Representatives. Subject to compliance by such
Parent Indemnified Party with the applicable indemnification provisions of the
Merger Agreement, the amount of such claim shall be paid to the Parent
Indemnified Party as provided in Section 4.3, unless the Shareholder
Representatives shall contest the right of such Parent Indemnified Party to such
payment by delivering to such Parent Indemnified Party and the Escrow Agent
notice of such contest within twenty (20) days after such Parent Indemnified
Party shall have delivered notice to the Shareholder Representatives of the
claim.
4.2 If within the twenty (20) day period specified in Section 4.1
above, the Shareholder Representatives shall deliver to the Parent Indemnified
Party and the Escrow Agent the notice of contest referred to in Section 4.1
above, the Parent Indemnified Party and the Shareholder Representatives shall
use their reasonable efforts to resolve the dispute by mutual agreement within
ninety (90) days from the receipt of such notice of contest. If at the end of
such ninety-day period, the Parent Indemnified Party and Shareholder
Representatives have not reached an agreement with respect to such dispute, then
such parties shall use their good faith efforts to submit such dispute promptly
to binding arbitration or, if such parties cannot agree to the terms of such
arbitration, to a court of competent jurisdiction. The Escrow Agent shall make
no payment hereunder with respect to the claim involved until the dispute has
been finally settled by written agreement of such Parent Indemnified Party and
the Shareholder Representatives, a copy of which is delivered to Escrow Agent,
or, in the absence of such an agreement, by a binding and final arbitration
award if such Parent Indemnified Party and the Shareholder Representative have
agreed to such arbitration, or otherwise by a binding and final judgment,
4
order or decree of a court of competent jurisdiction, a copy of which is
delivered to Escrow Agent.
4.3 Promptly upon determination by the Escrow Agent that a payment
is to be made to a Parent Indemnified Party hereunder, then the Escrow Agent
shall calculate each Shareholder's pro rata liability for such payment ("Per
Shareholder Amount") in accordance with Schedule 1 hereof. The Escrow Agent
shall then make such payment of the Per Shareholder Amount, with respect to each
Shareholder:
(i) first, by cancellation of the number of whole
unsold Escrow Shares allocable to such Shareholder having an aggregate
value nearest to the Per Shareholder Amount ("Share Value") without
exceeding the Per Shareholder Amount, such value per share to be
$_______ (the "Average Closing Price") subject to appropriate
adjustment to take into account any stock split, stock dividend or
recapitalization subsequent to the Effective Time and not reflected in
such Average Closing Price; and
(ii) second, if the Per Shareholder Amount cannot be
fully satisfied pursuant to Section 4.3(i), by payment of a
distribution of amounts, if any, contained in the Dividend Account
allocable to such Shareholder which shall be made to such Parent
Indemnified Party in an amount equal to the Per Shareholder Amount
minus the Share Value.
The intent of this provision is to divide any payment made to Parent Indemnified
Parties among the Shareholders and then to satisfy such payments first out of
each Shareholder's unsold Escrow Shares and secondly out of each Shareholder's
share of the Dividend Account.
5 Final Distribution. On the first anniversary of the date hereof
(the "Anniversary"), except as otherwise provided in this Section, the Escrow
Shares and the Dividend Account then remaining in escrow shall be distributed to
the Shareholders pro rata in accordance with Schedule 1 hereto. If any claim
theretofore asserted by a Parent Indemnified Party shall not have been paid or
finally determined to be without merit or the amount of such claim shall not
have been finally determined, the number of whole shares of the Escrow Shares
having an aggregate value (determined as provided in Section 4.3 above) nearest
to the amount of such claim on the Anniversary (the "Retained Escrow Shares"),
plus, if the Retained Escrow Shares are insufficient to cover the amount of such
claim, an amount from the Dividend Account equal to any amount remaining subject
to such claim, shall be retained in escrow until such claim(s) shall have been
paid or finally determined to be without merit, whereupon such Retained Escrow
Shares and Dividend Account amount shall be distributed to the Shareholders pro
rata in accordance with Schedule 1 hereto, subject to the remaining provisions
of this Section. Any distribution pursuant hereto shall be net of any required
tax or other withholding or deduction. The parties will make all reasonable
efforts to resolve any claims hereunder as quickly as possible.
5
6 Fractional Shares; Distributions. In the event any calculations
required under this Escrow Agreement result in the allocation of a fractional
share amount to a Shareholder, the fraction shall be rounded to the next lower
whole number, and any remainder shares shall be canceled. Parent agrees to
deliver to any Shareholder requesting it, a cash payment to such Shareholder in
the amount of the value of any canceled fractional share, measured at the
Average Closing Price. All deliveries under this Escrow Agreement shall be made
by and to the parties hereto (or their lawfully appointed attorneys-in-fact) in
the United States.
7 Shareholder Representatives; Unanimous Action; Notices and Written
Directions.
(a) Each Shareholder agrees to execute a power of attorney in the
form of Exhibit A hereto (and to deliver copies of such power to Parent and the
Escrow Agent), which power appoints the Shareholder Representative to be his,
her or its true and lawful attorney for those matters specified therein.
Notwithstanding the foregoing, the Shareholder Representative will not act on
behalf of the Shareholders with respect to distributions, voting or tax
withholdings.
(b) The Shareholder Representatives hereby agree to accept, with
respect to each Shareholder, the appointment as set forth in Exhibit A. Whenever
there are two or more Shareholder Representatives, action by the Shareholder
Representatives shall require their unanimous consent, and all obligations in
this Escrow Agreement with respect to the Shareholder Representatives shall
apply to both such representatives.
(c) Until notified in writing by the Shareholder Representatives
that they have resigned or by holders of 75% of the Escrow Shares that they have
been removed, the Escrow Agent may act upon the directions, instructions and
notices of the Shareholder Representatives named above and, thereafter, upon the
directions, instructions and notices of any successor named in a writing
executed by holders of 75% of the Escrow Shares delivered to the Escrow Agent.
8 Escrow Agent.
8.1 Duties. Each Interested Party acknowledges and agrees that the
Escrow Agent (i) shall not be responsible for any of the agreements referred to
or described herein (including without limitation the Merger Agreement), or for
determining or compelling compliance therewith, and shall not otherwise be bound
thereby, (ii) shall be obligated only for the performance of such duties as are
expressly and specifically set forth in this Escrow Agreement on its part to be
performed, each of which are ministerial (and shall not be construed to be
fiduciary) in nature, and no implied duties or obligations of any kind shall be
read into this Escrow Agreement against or on the part of the Escrow Agent,
(iii) shall not be obligated to take any legal or other action hereunder which
might in its judgment involve or cause it to incur any expense or liability
unless it shall have been furnished with acceptable
6
indemnification, (iv) may rely on and shall be protected in acting or refraining
from acting upon any written notice, instruction (including, without limitation,
wire transfer instructions, whether incorporated herein or provided in a
separate written instruction), instrument, statement, certificate, request or
other document furnished to it hereunder and reasonably believed by it to be
genuine and to have been signed or presented by the proper person, and shall
have no responsibility for determining the accuracy thereof, and (v) may consult
counsel satisfactory to it, including in-house counsel, and the opinion or
advice of such counsel in any instance shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the opinion or advice of such
counsel. Escrow Agent shall not be in any manner liable or responsible for the
sufficiency, correctness, genuineness or validity of any instruments deposited
with it or with reference to the form of execution thereof, or the identity,
authority or rights of any person executing or depositing same, and Escrow Agent
shall not be liable for any loss that may occur by reason of forgery, false
representation or the exercise of its discretion in any particular manner or for
any other reason to anyone for any action taken or omitted to be taken by it
hereunder, except for its own gross negligence or willful misconduct or for a
breach of the terms of this Escrow Agreement. In no event shall the Escrow Agent
be liable for punitive, special or consequential damage or loss (including but
not limited to lost profits) whatsoever, even if the Escrow Agent has been
informed of the likelihood of such loss or damage and regardless of the form of
action.
8.2 Indemnification. Except in instances of Escrow Agent's own
gross negligence or willful misconduct Shareholders collectively or the one hand
and the Parent on the other shall each indemnify, defend, and hold harmless
Escrow Agent (and its directors, officers and employees) against fifty percent
(50%) of any and all costs, losses, claims, damages, liabilities, expenses,
including reasonable costs of investigation, court costs, and attorneys' fees,
and disbursements, which may be imposed upon Escrow Agent (or its directors,
officers and employees) solely in connection with its actions taken within the
scope of duties specified hereunder as Escrow Agent (and the exercise or failure
to exercise its discretion hereunder), including any litigation arising from
this Escrow Agreement involving the subject matter hereof, and all such costs,
expenses and disbursement shall be for the account of and shall be borne and
paid by Parent and the Shareholders as a condition to termination of this Escrow
Agreement. The foregoing indemnification and agreement to hold harmless shall
survive the termination of the Escrow Agreement.
8.3 Disputes. In the event of a dispute between the parties, in the
discretion of Escrow Agent, Escrow Agent shall be entitled to tender into the
registry or custody of any court of competent jurisdiction all money or property
in its hands under this Escrow Agreement, together with such legal pleadings as
it deems appropriate, and thereupon shall be discharged from all further duties
and liabilities under this Escrow Agreement. Any such legal action may be
brought in such court as Escrow Agent shall determine to have jurisdiction
thereof. The filing of any such legal proceedings shall not deprive Escrow Agent
of its compensation earned prior to such filing, or of the benefits of Section
8.2 hereof.
7
8.4 Receipt. Escrow Agent shall provide written acknowledgment to
the Parent and the Shareholder Representatives of receipt of the Escrow Shares.
8.5 Fees. Escrow Agent's fees hereunder shall be as set forth on
the fee schedule attached hereto as Schedule 2 and incorporated herein by
reference. All such fees, expenses and reimbursements (other than in relation to
a dispute, which shall be governed by Section 8.3) shall be paid by the Parent.
9 Transfer of Interests. The interests of the Shareholders in the
Escrow Shares and the rights and obligations of the Shareholders hereunder may
not be transferred except by will, the laws of descent and distribution or by
other operation of law.
10 Miscellaneous.
10.1 Benefits and Burdens; Assignment. This Escrow Agreement shall
inure to the benefit of and shall be binding upon Parent and the Shareholders
and Escrow Agent and their respective heirs, representatives, successors and
assigns. No party to this Escrow Agreement may assign its rights or obligations
hereunder without the prior written consent of each of the other parties hereto,
provided however, that this Escrow Agreement may only be assigned by Parent to a
corporation, all of whose issued and outstanding capital stock is owned directly
or indirectly by Parent, and in such event Parent shall not be released from its
obligations hereunder.
10.2 Governing Law. This Escrow Agreement shall be governed by the
internal laws (ignoring principles of conflicts of laws) of the Commonwealth of
Massachusetts. All deliveries under this Escrow Agreement shall be made by and
to the parties hereto (or their lawfully appointed attorneys-in-fact) in the
United States.
10.3 Headings. The section and paragraph headings contained in this
Escrow Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Escrow Agreement.
10.4 Notices; Wiring Instructions.
(a) Any transmittals, notice or other communications
required or permitted hereunder shall be sufficiently given if sent by
registered or certified mail, postage prepaid, by national overnight courier
service or, in the case of any communication not involving a transmittal of
original documents, by telecopy, addressed as follows:
If to Parent or, after the Closing, the Company:
Dollar Tree Stores, Inc.
000 Xxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxxxx X. Xxxxx
Telecopier: (000) 000-0000
8
With a copy to:
Xxxxxxxxx Xxxxxxx, P.C.
000 Xxxxxxxxx Xxxxx, Xxxxx 0000
P. O. Xxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Old, Jr., Esquire
Telecopier: (000) 000-0000
If to the Shareholder Representatives:
With a copy to:
If to Shareholders:
To the addresses stated on Schedule 1
If to Escrow Agent:
State Street Bank and Trust Company
Xxx Xxxxxx xx Xxxxxxxxx, Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Corporate Trust Department
Attention: Dollar Tree/Dollar Express Escrow
Fax: 000-000-0000
With a copy to:
Xxxxxx X. Xxxxxxx, Esq.
Peabody & Xxxxxx LLP
00 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
or such other addresses as shall be furnished in writing by any of the parties,
and any such notice or communication shall be deemed to have been given as of
the next business day, if delivered by overnight courier service or upon receipt
(as evidenced by proof of transmission), if telecopied when received and three
days after the date so mailed (if mailed).
9
(b) Any funds to be paid to or by the Escrow Agent
hereunder shall be sent by wire transfer or certified or cashier's check
pursuant to the following instructions (or by such method of payment and
pursuant to such instruction as may have been given in advance and in writing to
or by the Escrow Agent, as the case may be, in accordance with Section 10.4(a)
above):
If to Parent:
Bank: First Union National Bank, N.A.
ABA #: 0514 0054 9
A/C #: 2070000330892
Attn: Xxxxxxx Xxxxxxx (000) 000-0000
Ref: Dollar Tree/DLRX Escrow
If to Shareholders:
By certified or cashier's check sent via registered
or certified mail, postage prepaid, or by national
overnight courier service to the addresses stated on
Schedule 1.
If to the Escrow Agent:
Bank: State Street Bank and Trust Company
ABA #: 0110 0002 8
A/C #: 9903-9901
Attn: Corporate Trust Department
Ref: Dollar Tree/DLRX Escrow
10.5 Counterparts. This Escrow Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
10.6 Modification. This Escrow Agreement may be modified only by a
written instrument signed by each of the parties hereto, provided however that
Schedule 1 hereto may be modified to reflect valid transfers of the
Shareholders' interests in the Escrow Shares by a writing signed by Parent and
the Shareholder Representatives, upon which Escrow Agent shall be entitled to
rely without further investigation.
10.7 Cooperation. Shareholders, Parent and the Escrow Agent shall
deliver to each other such information and documents and shall execute and
deliver to each other such further information and documents and shall execute
and deliver such further instruments and agreements as the others may reasonably
request in order to accomplish the purpose of this Escrow Agreement or to assure
to the others the benefits of this Escrow Agreement.
10
10.8 Entire Understanding. This Escrow Agreement and the schedules
referred to herein represent the entire understanding of the parties with
respect to the subject matter hereof and supersede all correspondence,
memoranda, conversations or other communications with respect thereto.
10.9 Severability. The invalidity or unenforceability of any
provision of this Escrow Agreement shall not affect the validity or
enforceability of any other provision of this Escrow Agreement.
10.10 Time. Time is of the essence under this Escrow Agreement.
10.11 Statutes. Any reference herein to any federal, state or
local statute shall include all amendments to such statute through the date of
this Escrow Agreement.
10.12 Interpretation. It is the intention of the parties hereto
and the Shareholders and Company that the Merger qualify as a "reorganization"
under the provisions of Section 368 of the Code, and be accounted for as a
"pooling of interests," and this Escrow Agreement shall be interpreted and
applied in a manner consistent with, and shall be subject to amendment to
conform to, the requirements for such treatment.
10.13 Tax-Related Terms.
(a) Tax Reporting. The Interested Parties agree that,
for tax reporting purposes, all interest or other income earned from the
investment of the Dividend Account in any tax year shall (i) to the extent such
interest or other income is distributed by the Escrow Agent to any person or
entity pursuant to the terms of this Escrow Agreement during such tax year, be
allocated to such person or entity, and (ii) otherwise shall be allocated to the
Shareholders in proportion to their holdings as set forth on Schedule 1.
(b) Certification of Tax Identification Number. The
Shareholder Representatives agree to obtain the certified tax identification
number for each Shareholder on a Form W-9 (or Form W-8, in case of non-U.S.
persons) and deliver the same to the Escrow Agent prior to the date on which any
income earned on the investment of the Dividend Account is credited to the
Dividend Account. In the event that any tax identification number is not
certified to the Escrow Agent, the Internal Revenue Code, as amended from time
to time, may require withholding of a portion of any interest or other income
earned on the investment of the Dividend Account.
(c) Tax Indemnification. The Shareholder Representa-
tives will instruct the Escrow Agent in writing with respect to the Escrow
Agent's responsibility for
11
withholding and other taxes, assessments or other governmental charges, and will
instruct the Escrow Agent with respect to any certifications and governmental
reporting that may be required under any laws or regulations that may be
applicable in connection with its acting as Escrow Agent under this Escrow
Agreement. The Shareholders will indemnify and hold the Escrow Agent harmless
from any liability or obligation on account of taxes, assessments, additions for
late payment, interest, penalties, expenses and other governmental charges that
may be assessed or asserted against the Escrow Agent in connection with or
relating to any payment made or other activities performed under the terms of
this Escrow Agreement, including without limitation any liability for the
withholding or deduction of (or the failure to withhold or deduct) the same, and
any liability for failure to obtain proper certifications or to report properly
to governmental authorities in connection with this Escrow Agreement, including
costs and expenses (including reasonable legal fees and expenses), interest and
penalties. The foregoing indemnification and agreement to hold harmless shall
survive the termination of this Escrow Agreement.
10.14 Resignation. The Escrow Agent may at any time resign as
Escrow Agent hereunder by giving ten (10) business days' prior written notice of
resignation to the Parent and the Shareholder Representatives. Prior to the
effective date of the resignation as specified in such notice, the Parent will
issue to the Escrow Agent a written instruction authorizing redelivery of the
Escrow Shares and Dividend Account to a bank or trust company that it selects as
successor to the Escrow Agent hereunder, subject to the consent of the
Shareholder Representatives (which consent shall not be unreasonably withheld).
If, however, the Parent shall fail to name such a successor escrow agent within
five (5) business days after the notice of resignation from the Escrow Agent,
the Shareholder Representatives shall be entitled to name such successor escrow
agent. If no successor escrow agent is named by the Parent or the Shareholder
Representatives, the Escrow Agent may apply to a court of competent jurisdiction
for appointment of a successor escrow agent.
10.15 Force Majeure. The Escrow Agent shall not be responsible for
delays or failures in performance resulting from acts beyond its control. Such
acts shall include but not be limited to acts of God, strikes, lockouts, riots,
acts of war, epidemics, governmental regulations superimposed after the fact,
fire, external power or communications line failures, earthquakes or other
natural disasters.
10.16 Reproduction of Documents. This Escrow Agreement and all
documents relating thereto, including, without limitation, (a) consents, waivers
and modifications which may hereafter be executed, and (b) certificates and
other information previously or hereafter furnished, may be reproduced by any
photographic, photostatic, microfilm, optical disk, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
[Signatures pages follow]
12
IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement under seal as of the date first written above.
PARENT: DOLLAR TREE STORES, INC.
By__________________________________
[Name]
[Title]
SHAREHOLDER ____________________________________
REPRESENTATIVES: XXXXXXX SPAIN, as Shareholder Representative
------------------------------------
XXXXXXX XXX, as Shareholder Representative
[Executions Continue]
Signature Pages
SHAREHOLDERS:
------------------------------------------
XXXXXXX SPAIN
------------------------------------------
XXXXXX SPAIN
XXXXXXX SPAIN FAMILY LIMITED PARTNERSHIP
By: ____________________________________
Xxxxxx Spain, its General Partner
XXXXXX SPAIN FAMILY LIMITED PARTNERSHIP
By: ____________________________________
Xxxxxxx Xxxxxxxxxx, its General Partner
[Executions Continue]
Signature Pages
GLOBAL PRIVATE EQUITY III LIMITED PARTNERSHIP
By: Advent International Limited Partnership,
its General Partner
By: Advent International Corporation, its
General Partner
By:_______________________________________
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
ADVENT PGGM GLOBAL LIMITED PARTNERSHIP
By: Advent International Limited Partnership,
its General Partner
By: Advent International Corporation, its
General Partner
By:_______________________________________
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
[Executions Continue]
Signature Pages
ADVENT PARTNERS GPE III LIMITED PARTNERSHIP
By: Advent International Corporation, General
Partner
By:_______________________________________
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
ADVENT PARTNERS (NA) GPE III LIMITED
PARTNERSHIP
By: Advent International Corporation, General
Partner
By:_______________________________________
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
ADVENT PARTNERS LIMITED PARTNERSHIP
By: Advent International Corporation, General
Partner
By:_______________________________________
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
[Executions Continue]
Signature Pages
GUAYACAN PRIVATE EQUITY FUND LIMITED
PARTNERSHIP
By: Advent-Morro Equity Partners, Inc., its
General Partner
By:_______________________________________
Name: Xxxxx X. Xxxxxx
Title: President
DOLLAR EXPRESS INVESTMENT, LLC
By:_______________________________________
Name:
Title:
[Executions Continue]
Signature Pages
ESCROW AGENT: STATE STREET BANK AND TRUST COMPANY
(Acting solely as Escrow Agent herein and not
in its individual capacity)
By___________________________________
Name:
Title:
Signature Pages
