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Exhibit 4.4
REGISTRATION RIGHTS AGREEMENT
May ___, 1998
Xxxxxx Children Trust
c/o Xxx Xxxxxx, Xx. and Xxxxx Xxxxxxx Xxxxxx
000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Gentlemen:
This will confirm that in connection with your plans to enter into a
forward purchase contract with the Dollar General STRYPES Trust (the "Trust
Contract") pursuant to which you may deliver to certain public investors certain
shares of common stock of Dollar General Corporation (the "Company") whereupon
such shares would be distributed in an orderly manner and in recognition of the
intent of and the rights previously granted to you in a Registration Rights
Agreement dated August 22, 1994 between the Company, you and your immediate
beneficiaries (the "1994 Registration Rights Agreement"), the Company hereby
covenants and agrees with you as follows:
1. Certain Definitions. As used herein, the following terms shall have the
following respective meanings:
"Commission" means the Securities and Exchange Commission, or any
other federal agency at the time administering the Securities Act.
"Common Stock" means the common stock, par value $.50 per share, of
the Company, as constituted as of the date of this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934 or any
similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Registration Expenses" means the expenses so described in Section 4
hereof.
"Securities Act" means the Securities Act of 1933 or any similar
federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Trust" means the Xxxxxx Children Trust, of which Xxx Xxxxxx, Xx. and
Xxxxx Xxxxxxx Xxxxxx are the co-trustees.
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"Trust Shares" means the 22,769,899 shares of Common Stock, subject to
further adjustment pursuant to the Articles of Incorporation, as amended,
into which the 1,613,742 shares of Series A Convertible Junior Preferred
Stock of the Company held by the Trust are convertible.
2. Registration on Form S-3. At your request, the Board of Directors of the
Company has approved the preparation and filing of one registration statement on
Form S-3 under the Securities Act covering the number of Trust Shares which are
the subject of your obligations under the Trust Contract. The Company agrees to
use its best efforts to cause such registration statement to become effective in
accordance with the registration procedures set forth in Section 3 hereof. You
shall advise the Company of the number of Trust Shares to be registered and
shall describe the plan of distribution of the Trust Shares. In the event the
proposed offering contemplated by the Trust Contract is not consummated within
90 days of this Agreement, this Agreement and the obligations of the Company
under this Agreement shall terminate and be of no force and effect thereafter.
3. Registration Procedures. In connection with the Company's obligation to
use its best efforts to effect the registration of any of the Trust Shares under
the Securities Act, the Company will, as expeditiously as possible:
(a) prepare (and afford counsel for the Trust reasonable opportunity
to review and comment thereon) and file with the Commission a registration
statement on Form S-3 with respect to such securities and use its best
efforts to cause such registration statement to become and remain effective
for the period of distribution contemplated thereby (determined as
hereinafter provided);
(b) prepare (and afford counsel for the Trust reasonable opportunity
to review and comment thereon) and file with the Commission such amendments
and supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for the period specified in paragraph (a) above and as
comply with all material provisions of the Securities Act with respect to
the distribution of all Trust Shares covered by such registration statement
in accordance with the Trust's intended method of distribution set forth in
such registration statement for such period;
(c) furnish such number of copies of the registration statement and
the prospectus included therein (including each preliminary prospectus) as
may reasonably be required to facilitate the plan of distribution of the
Trust Shares covered by such registration statement;
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(d) use its best efforts to list, register or qualify the Trust Shares
covered by such registration statement with the New York Stock Exchange and
under the securities or blue sky laws of such jurisdictions as may
reasonably be required to effect the plan of distribution set forth in the
registration statement (provided that the Company will not be required to
(i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to so qualify but for this paragraph (d), (ii)
subject itself to taxation in any such jurisdiction or (iii) consent to
general service of process in any jurisdiction); and
(e) immediately notify the Trust at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of
the happening of any event as a result of which the prospectus contained in
such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing.
For purposes of paragraphs (a) and (b) above, the period of distribution of
Trust Shares shall be deemed to extend until the plan of distribution set forth
in the registration statement is completed but no longer than three years after
the effective date thereof.
In connection with the registration hereunder, the Trust will furnish to
the Company in writing such information with respect to itself and the proposed
plan of distribution as shall be reasonably necessary in order to assure
compliance with federal and applicable state securities laws.
4. Expenses. All expenses incurred by the Company in complying with
Sections 2 and 3 hereof, including without limitation all registration and
filing fees, printing expenses, fees and disbursements of counsel and
independent public accountants for the Company, fees of the National Association
of Securities Dealers, Inc., transfer taxes, fees of transfer agents and
registrars and fees and expenses of one counsel for the Trust are herein called
"Registration Expenses". The Trust will pay all Registration Expenses in
connection with the registration statement filed and maintained pursuant to
Sections 2 and 3 hereof.
5. Indemnification. The Company will indemnify and hold harmless the Trust
and each person, if any, who controls the Trust within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which such Trust or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any registration statement (including documents incorporated by reference
therein) under which the Trust Shares were registered under the Securities Act
pursuant to Section 2 hereof, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereof, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the
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Trust and each such controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case if and to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission so made in
conformity with information furnished by the Trust or such controlling person in
writing specifically for use in such registration statement or prospectus.
The Trust will indemnify and hold harmless the Company and each person, if
any, who controls the Company within the meaning of the Securities Act, each
officer of the Company who signs the registration statement, and each director
of the Company against all losses, claims, damages or liabilities, joint or
several, to which the Company or such controlling person, officer or director
may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the registration statement under which Trust Shares
were registered under the Securities Act pursuant to Section 2 hereof, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse the
Company and each such controlling person, officer and director for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Trust will be liable hereunder in any such case if and only to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with information pertaining to
the Trust and its plan of distribution, as such, furnished in writing to the
Company by the Trust specifically for use in such registration statement or
prospectus.
Promptly after receipt by an indemnified party hereunder of notice of the
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party hereunder, notify the
indemnifying party in writing thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party other than under this Section 5. In case any such action
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in and, to the extent it shall wish, to assume and
undertake the defense thereof with counsel satisfactory to such indemnified
party, and, after notice from the indemnifying party to such indemnified party
of its election so to assume and undertake the defense thereof, the indemnifying
party shall not be liable to such indemnified party under this Section 5 for
any legal expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation and of
liaison with counsel so selected; provided, however, that, if the defendants in
any such action
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include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be reasonable
defenses available to it which are different from or additional to those
available to the indemnifying party, or if the interests of the indemnified
party reasonably may be deemed to conflict with the interests of the
indemnifying party, the indemnified party shall have the right to select a
separate counsel and to assume such legal defenses and otherwise to participate
in the defense of such action, with the expenses and fees of such separate
counsel and other expenses related to such participation to be reimbursed by the
indemnifying party as incurred.
Notwithstanding the foregoing, any indemnified party shall have the right
to retain its own counsel in any such action, but the fees and disbursements of
such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party shall have failed to retain counsel for the indemnified
person as aforesaid or (ii) the indemnifying party and such indemnified party
shall have mutually agreed to the retention of such counsel. It is understood
that the indemnifying party shall not, in connection with any action or related
actions in the same jurisdiction, be liable for the fees and disbursements of
more than one separate firm qualified in such jurisdiction to act as counsel for
the indemnified party. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment.
6. Miscellaneous.
(a) All covenants and agreements contained in this Agreement by or on
behalf of any of the parties hereto shall bind and inure to the benefit of
the respective successors and assigns of the parties hereto whether so
expressed or not.
(b) All notices, requests, consents and other communications hereunder
shall be in writing and shall be mailed by first class registered mail,
postage prepaid, addressed as follows:
if to the Company, to it at:
Dollar General Corporation
000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Secretary
if to the Trust, to it at:
Xxxxxx Children Trust
c/o Xxx Xxxxxx, Xx. and Xxxxx Xxxxxxx Xxxxxx
000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
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or, in any case, at such other address or addresses as shall have been
furnished in writing to the Company (in the case of the Trust) or to the
Trust (in the case of the Company).
(c) This Agreement shall be governed by and construed in accordance
with the laws of the State of Tennessee.
(d) Except as set forth herein, this Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof. This
Agreement may not be modified or amended except in writing signed by the
Company and the Trust. This Agreement shall have no effect on the rights
and obligations of the Company and the Trust set forth in the 1994
Registration Rights Agreement which shall remain in full force and effect.
Please indicate your acceptance of the foregoing by signing and returning
the enclosed counterpart of this letter, whereupon this letter (herein sometimes
called "this Agreement") shall be a binding agreement between the Company and
you.
Very truly yours,
DOLLAR GENERAL CORPORATION
By: ________________________________
Title: ________________________________
AGREED TO AND ACCEPTED
as of the date first
above written.
XXXXXX CHILDREN TRUST
By: _____________________________
Title: _____________________________
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