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Exhibit (a)(2)
AMENDED AND RESTATED
TRUST AGREEMENT
CONSTITUTING
DOLLAR GENERAL STRYPES TRUST
Dated as of May 1, 1998
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Table of Contents
Page
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ARTICLE I.
DEFINITIONS
Section 1.01. DEFINITIONS ............................................. 2
ARTICLE II.
TRUST DECLARATION; PURPOSES, POWERS AND DUTIES OF THE TRUSTEES;
ADMINISTRATION
Section 2.01. NAME .................................................... 6
Section 2.02. OFFICE .................................................. 6
Section 2.03. RATIFICATION AND APPROVAL OF ACTION OF THE TRUSTEES ..... 6
Section 2.04. DECLARATION OF TRUST; PURPOSES OF THE TRUST ............. 7
Section 2.05. GENERAL POWERS AND DUTIES OF THE TRUSTEES ............... 7
Section 2.06. PORTFOLIO ACQUISITION ................................... 8
Section 2.07. PORTFOLIO ADMINISTRATION ................................ 9
Section 2.08. MANNER OF SALES ......................................... 11
Section 2.09. LIMITATIONS ON TRUSTEES' POWERS ......................... 11
ARTICLE III.
ACCOUNTS AND PAYMENTS
Section 3.01. THE TRUST ACCOUNT ....................................... 12
Section 3.02. DISTRIBUTIONS TO HOLDERS ................................ 12
Section 3.03. SEGREGATION ............................................. 12
Section 3.04. INVESTMENTS ............................................. 12
ARTICLE IV.
REDEMPTION
Section 4.01. REDEMPTION .............................................. 13
ARTICLE V.
ISSUANCE OF CERTIFICATES; REGISTRY; TRANSFER OF STRYPES
Section 5.01. FORM OF CERTIFICATE ..................................... 13
Section 5.02. TRANSFER OF STRYPES; ISSUANCE, TRANSFER AND INTERCHANGE
OF CERTIFICATES ......................................... 13
Section 5.03. REPLACEMENT OF CERTIFICATES ............................. 14
Section 5.04. LIMITATION ON LIABILITY ................................. 14
Section 5.05. GENERAL PROVISIONS REGARDING THE STRYPES ................ 14
ARTICLE VI.
EXECUTION OF THE CONTRACT
Section 6.01. EXECUTION OF THE CONTRACT ............................... 15
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ARTICLE VII.
TRUSTEES
Section 7.01. TRUSTEES ................................................ 15
Section 7.02. VACANCIES ............................................... 15
Section 7.03. POWERS .................................................. 16
Section 7.04. MEETINGS ................................................ 16
Section 7.05. RESIGNATION AND REMOVAL ................................. 16
Section 7.06. LIABILITY ............................................... 16
Section 7.07. COMPENSATION ............................................ 17
ARTICLE VIII.
MISCELLANEOUS
Section 8.01. MEETINGS OF HOLDERS ..................................... 17
Section 8.02. BOOKS AND RECORDS; REPORTS .............................. 18
Section 8.03. DISSOLUTION ............................................. 19
Section 8.04. AMENDMENT AND WAIVER .................................... 20
Section 8.05. ACCOUNTANTS ............................................. 21
Section 8.06. NATURE OF HOLDER'S INTEREST ............................. 21
Section 8.07. DELAWARE LAW TO GOVERN .................................. 21
Section 8.08. NOTICES ................................................. 22
Section 8.09. SEVERABILITY ............................................ 22
Section 8.10. COUNTERPARTS ............................................ 22
Section 8.11. SUCCESSORS AND ASSIGNS .................................. 22
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AMENDED AND RESTATED TRUST AGREEMENT
This Amended and Restated Trust Agreement, dated as of May 1, 1998 (the
"Trust Agreement"), by and among ML IBK Positions, Inc., as sponsor (the
"Sponsor"), Xxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxx III and Xxxxx X. X'Xxxxx, as
trustees (the "Trustees"), and the Holders (as defined herein), constituting
Dollar General STRYPES Trust (the "Trust").
W I T N E S S E T H:
WHEREAS, Xxxxx X. Xxxxxx, as depositor (the "Depositor") and Xxxxxx X.
Xxxxxxx, Xxxxxxx X. Xxxxxx III and Xxxxx X. X'Xxxxx, as trustees (the
"Trustees"), have previously entered into a Trust Agreement dated as of April
15, 1998 (the "Original Agreement"), creating Dollar General STRYPES Trust;
WHEREAS, the Depositor has transferred his interest in Dollar General
STRYPES Trust to the Sponsor;
WHEREAS, the Trustees hereby ratify and approve the transfer of the
interest of the Depositor in Dollar General STRYPES Trust to the Sponsor;
WHEREAS, the parties hereto desire to amend and restate the Original
Agreement in certain respects; and
WHEREAS, the Trust has previously issued one STRYPES to the Sponsor in
consideration of the aggregate purchase price therefor of $100;
NOW, THEREFORE, the parties hereto agree to amend and restate the Original
Agreement as provided herein. Upon the execution and delivery of counterpart
signature pages hereto by the parties hereto, the Original Agreement will be
automatically amended and restated in its entirety to read as provided herein.
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ARTICLE I
DEFINITIONS
Section 1.01. DEFINITIONS. Whenever used in this Trust Agreement, the
following words and phrases shall have the meanings listed below. Any reference
to any agreement shall be a reference to such agreement as supplemented or
amended from time to time.
"Acceleration Amount Notice" - An Acceleration Amount Notice as defined in
the Contract.
"Acceleration Value" - The Acceleration Value as defined in the Contract.
"Administration Agreement" - The Administration Agreement between the
Administrator and the Trust, substantially in the form of Exhibit E hereto, and
any substitute agreement therefor entered into pursuant to Section 2.05(a)
hereof.
"Administrator" - The Bank of New York, or its successor as permitted
under Section 6.1 of the Administration Agreement or appointed pursuant to
Section 2.05(a) hereof.
"Aggregate Acceleration Value" - The Aggregate Acceleration Value as
defined in the Contract.
"Business Day" - Any day that is not a Saturday, a Sunday or a day on
which the New York Stock Exchange, The NASDAQ National Market, or banking
institutions or trust companies in The City of New York are authorized or
obligated by law or executive order to close.
"Cash Settlement Option" - The option of the Contracting Stockholder
described in Section 2.5 of the Contract to settle its obligation to deliver
shares of Dollar General Common Stock contained in Section 2.1 of the Contract,
in whole or in part, through a cash payment on the Settlement Date.
"Certificate" - Any certificate evidencing the ownership of STRYPES
substantially in the form of Exhibit A hereto.
"Closing" - A Closing as defined in the Contract.
"Closing Date" - A Closing Date as defined in the Contract.
"Code" - The Internal Revenue Code of 1986, as amended from time to time;
each reference herein to any section of the Code or any regulation thereunder
shall constitute a reference to any successor provision thereto.
"Collateral Agent" - The Bank of New York or its successor as permitted
under the Security and Pledge Agreement.
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"Commencement Date" - The day on which the Purchase Agreement is executed.
"Commission" - The United States Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or if at any time
after the execution of this Trust Agreement such Commission is not existing or
performing the duties now assigned to it, then the body performing such duties
on such date.
"Company" - Dollar General Corporation, a Kentucky corporation.
"Company Successor" - Any surviving entity or subsequent surviving entity
of the Company.
"Contract" - The Forward Purchase Contract among the Trust, the Collateral
Agent, as agent and custodian for and on behalf of the Trust, and the
Contracting Stockholder, substantially in the form of Exhibit C hereto.
"Contract Consideration" - The Contract Consideration as defined in the
Contract.
"Contracting Stockholder" - The Person named as the "Seller" in the
Contract.
"Custodian" - The Bank of New York or its successor as permitted under
Section 11 of the Custodian Agreement or appointed pursuant to Section 2.05(a)
hereof.
"Custodian Agreement" - The Custodian Agreement, dated as of __________,
1998, between the Custodian and the Trust, and any substitute agreement therefor
entered into pursuant to Section 2.05(a) hereof.
"Date of Delivery" - A Date of Delivery as defined in the Contract.
"Depositary" - The Depository Trust Company, or any successor thereto.
"Distribution Date" - ________, ________, ________ and ________ of each
year, commencing ____________, 1998, to and including ____________, 2001 (or if
any such date is not a Business Day, then the first Business Day thereafter).
"Dollar General Common Stock" - Shares of common stock of the Company to
be exchanged by the Trustees for the STRYPES on the Exchange Date; provided
that, in the event of a reclassification referred to in clause (iv) of Section
3.1(a) of the Contract, the term "Dollar General Common Stock" shall mean the
other common stock of the Company issued pursuant thereto.
"Early Settlement Date" - The Early Settlement Date as defined in the
Contract.
"Event of Default" - An Event of Default as defined in the Security and
Pledge Agreement.
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"Exchange" - The delivery by the Trustees to the Holders of shares of
Dollar General Common Stock (or, if the Contracting Stockholder elects to
exercise the Cash Settlement Option under the Contract, the amount of cash or
combination of cash and Dollar General Common Stock, with an equal value, as
specified in the Contract as payable in respect thereof) in mandatory exchange
for the STRYPES on the Exchange Date.
"Exchange Act" - The Securities Exchange Act of 1934, as amended from time
to time; each reference herein to any section of such Act or any rule or
regulation thereunder shall constitute a reference to any successor provision
thereto.
"Exchange Date" - ____________, 2001.
"Firm Consideration Amount" - The Firm Consideration Amount as defined in
the Contract.
"Firm Payment Date" - The Firm Payment Date as defined in the Contract.
"Holder" - The registered owner of any STRYPES as recorded on the books of
the Paying Agent.
"Indemnity Agreement" - The Fund Indemnity Agreement among the Trust,
Xxxxxxx Xxxxx & Co., Inc. and the Contracting Stockholder, substantially in the
form of Exhibit D hereto.
"Independent Dealers" - Independent Dealers as defined in the Contract.
"Investment Amount" - With respect to each STRYPES, $______; provided,
however, on each Optional Acceleration Date, if any, the Investment Amount shall
be adjusted by multiplying the Investment Amount in effect immediately prior to
such Optional Acceleration Date by a fraction, the numerator of which shall be
the Optional Acceleration Value immediately after such Optional Acceleration
Date and the denominator of which shall be the Optional Acceleration Value
immediately prior to such Optional Acceleration Date.
"Investment Company Act" - The Investment Company Act of 1940, as amended
from time to time; each reference herein to any section of such Act or any rule
or regulation thereunder shall constitute a reference to any successor provision
thereto.
"Managing Trustee" - The Trustee designated the Managing Trustee by
resolution of the Trustees.
"Marketable Securities" - Any securities listed on a U.S. national
securities exchange or reported by The NASDAQ National Market.
"Optional Acceleration Amount" - The Optional Acceleration Amount as
defined in the Contract.
"Optional Acceleration Date" - An Optional Acceleration Date as defined in
the Contract.
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"Optional Acceleration Percentage" - The Optional Acceleration Percentage
as defined in the Contract.
"Optional Acceleration Value" - The Optional Acceleration Value as defined
in the Contract.
"Option Consideration Amount" - The Option Consideration Amount as defined
in the Contract.
"Original Agreement" - The meaning specified in the recitals hereof.
"Participant" - A Person having an account with the Depositary.
"Paying Agent" - The Bank of New York or its successor as permitted under
Section 6.6 of the Paying Agent Agreement or appointed pursuant to Section
2.05(a) hereof.
"Paying Agent Agreement" - The Paying Agent Agreement between the Paying
Agent and the Trust, substantially in the form of Exhibit F hereto, and any
substitute agreement therefor entered into pursuant to Section 2.05(a) hereof.
"Person" - An individual, partnership, corporation (including a business
trust), limited liability company, joint stock company, trust, unincorporated
association, joint venture or other entity, or a government or any political
subdivision or agency or instrumentality thereof.
"Prospectus" - The prospectus of the Trust relating to the offering of the
STRYPES and constituting a part of the Registration Statement, as first filed
with the Commission pursuant to Rule 497(b) or (h) under the Securities Act, and
as subsequently amended or supplemented by the Trust.
"Purchase Agreement" - The Purchase Agreement among the Trust, the
Contracting Stockholder and the Underwriters relating to the issue and sale of
the STRYPES, as described in the Prospectus.
"Quarterly Distribution" - The amount of cash to be distributed by the
Trust on each Distribution Date in accordance with the investment objectives set
forth in the Prospectus (in the case of the period from and including ________,
1998 to and including ________, 1998, $[__________]).
"Record Date" - ________, ________, ________ and ________ of each year,
commencing ________, 1998.
"Registration Statement" - The Registration Statement on Form N-2
(Registration Nos. 333-50783; 811-08755) of the Trust, as amended.
"Reorganization Event" - A Reorganization Event as defined in the
Contract.
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"Securities Act" - The Securities Act of 1933, as amended from time to
time; each reference herein to any section of such Securities Act or any rule or
regulation thereunder shall constitute a reference to any successor provision
thereto.
"Security And Pledge Agreement" - The Security and Pledge Agreement among
the Collateral Agent, the Contracting Stockholder and the Trust, securing the
obligations of the Contracting Stockholder under the Contract, substantially in
the form of Exhibit B hereto.
"Settlement Date" - The Settlement Date as defined in the Contract.
"STRYPES" - Structured Yield Product Exchangeable for Stock(SM),
representing a proportionate share of beneficial ownership in the Trust
evidencing a Holder's undivided interest in the Trust and right to receive a pro
rata distribution upon liquidation of the Trust Estate.
"Temporary Investments" - Direct short-term U.S. government obligations,
as specified from time to time by the Trustees or through standing instructions
from the Trustees to the Administrator or the Paying Agent.
"Transfer Agent and Registrar" - as transfer agent and registrar for the
Dollar General Common Stock.
"Trust Account" - The account created pursuant to Section 3.01 hereof.
"Trust Estate" - The Contract and the U.S. Treasury Securities held at any
time by the Trust, together with any Temporary Investments held at any time
pursuant to Section 3.04 hereof, and any proceeds thereof or therefrom and any
other moneys held at any time in the Trust Account.
"Underwriters" - The several Underwriters named in the Purchase Agreement.
"U.S. Treasury Securities" - The meaning specified in Section 2.06(b)
hereof.
ARTICLE II.
TRUST DECLARATION; PURPOSES, POWERS
AND DUTIES OF THE TRUSTEES; ADMINISTRATION
Section 2.01. NAME. The Trust is named "Dollar General STRYPES Trust," as
such name may be modified from time to time by the Trustees following written
notice to the Holders. The Trust's activities may be conducted under the name of
the Trust or any other name deemed advisable by the Trustees.
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(SM) Service xxxx of Xxxxxxx Xxxxx & Co., Inc.
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Section 2.02. OFFICE. The address of the principal office of the Trust is
c/o Puglisi & Associates, 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000.
On ten Business Days written notice to the Holders the Trustees may designate
another principal office.
Section 2.03. RATIFICATION AND APPROVAL OF ACTION OF THE TRUSTEES. The
Sponsor hereby ratifies and approves any and all actions taken by the Trustees
on behalf of the Trust on or prior to the date hereof in connection with the
registration of the Trust under the Investment Company Act, in connection with
the registration of the offer and sale of the STRYPES under the Securities Act,
or otherwise incident to, or connected with, or necessary to accomplish, the
foregoing or the offer and sale of the STRYPES by the Underwriters and the
operation of the Trust as described in the Prospectus.
Section 2.04. DECLARATION OF TRUST; PURPOSES OF THE TRUST. The Sponsor
hereby creates the Trust in order that it may acquire the U.S. Treasury
Securities, enter into the Contract, issue and sell to the Sponsor and the
Underwriters the STRYPES, hold the Trust Estate in trust for the use and benefit
of all present and future Holders and otherwise carry out the terms and
conditions of this Trust Agreement, all for the purpose of achieving the
investment objectives set forth in the Prospectus. The Trustees hereby declare
that they will accept and hold the Trust Estate in trust for the use and benefit
of all present and future Holders. The Depositor has heretofore deposited with
the Trustees the sum of $1 to accept and hold in trust hereunder until the
issuance and sale of the STRYPES to the Underwriters, whereupon such sum shall
be donated to an organization satisfying the requirements of Section 170(c)(2)
of the Code selected by unanimous consent of the Trustees.
Section 2.05. GENERAL POWERS AND DUTIES OF THE TRUSTEES. In furtherance of
the provisions of Section 2.04 hereof, the Sponsor authorizes and directs the
Trustees, on behalf of the Trust:
(a) to enter into and perform (and, in accordance with Section
8.04(a) hereof, amend), the Contract, the Security and Pledge Agreement, the
Purchase Agreement, the Indemnity Agreement, the Custodian Agreement, the
Administration Agreement, the Paying Agent Agreement and the Subscription
Agreement and to perform all obligations of the Trustees (including the
obligation to provide indemnity hereunder and thereunder) and enforce all rights
and remedies of the Trust under each of such agreements; and if any of the
Custodian Agreement, the Administration Agreement, the Security and Pledge
Agreement and the Paying Agent Agreement terminates, or the agent of the Trust
thereunder resigns or is discharged, to appoint a substitute agent and enter
into a new agreement with such substitute agent containing provisions
substantially similar to those contained in the agreement being terminated;
provided that in any such new agreement (i) the Custodian and the Paying Agent
shall each be a commercial bank or trust company organized and existing under
the laws of the United States of America or any state therein, shall have full
trust powers and shall have minimum capital, surplus and retained earnings of
not less than $100,000,000; and (ii) the Administrator and the Collateral Agent
shall each be a reputable financial institution eligible and qualified in all
respects to carry out its obligations under the Administration Agreement or the
Security and Pledge Agreement, as the case may be;
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(b) to hold the Trust Estate in trust, to create and administer the
Trust Account, to direct payments received by the Trust to the Trust Account and
to make payments out of the Trust Account as set forth in Article III hereof;
(c) to issue and sell to the Underwriters an aggregate of up to
8,625,000 STRYPES (including those STRYPES subject to the over-allotment option
of the Underwriters provided for in the Purchase Agreement) pursuant to the
Purchase Agreement and as contemplated by the Prospectus; provided, however,
that subsequent to the determination of the public offering price per STRYPES
and related underwriting discount for the STRYPES to be sold to the Underwriters
but prior to the sale of the STRYPES to the Underwriters, the STRYPES originally
issued to the Sponsor shall be split into a greater number of STRYPES so that
immediately following such split the value of each STRYPES held by the Sponsor
will equal the aforesaid public offering price per STRYPES;
(d) to select independent public accountants and, subject to the
provisions of Section 8.05 hereof, to engage such independent public
accountants;
(e) to engage legal counsel and, to the extent required by Section
2.07 hereof, to engage professional advisors and pay reasonable compensation
thereto;
(f) to defend any action commenced against the Trustees or the Trust
and to prosecute any action which the Trustees deem necessary to protect the
Trust and the rights and interests of Holders, and to pay the costs thereof;
(g) to delegate any or all of its powers and duties hereunder as
contemplated by the Custodian Agreement, the Paying Agent Agreement and the
Administration Agreement, to the extent permitted by applicable law; and
(h) to adopt the fundamental policies set forth in the Prospectus,
to adopt and amend a code of regulations, and take any and all such other
actions as necessary or advisable to carry out the purposes of the Trust,
subject to the provisions hereof and applicable law, including, without
limitation, the Investment Company Act.
Section 2.06. PORTFOLIO ACQUISITION. In furtherance of the provisions of
Section 2.04 hereof, the Sponsor further specifically authorizes and directs the
Trustees, acting on behalf of the Trust:
(a) to enter into the Contract with respect to the shares of Dollar
General Common Stock subject thereto with the Contracting Stockholder on the
Commencement Date for settlement on the date or dates provided thereunder and,
subject to satisfaction of the conditions set forth in the Contract, to pay to
the Contracting Stockholder the Firm Consideration Amount and any Option
Consideration Amount thereunder. Such payments shall be made with the proceeds
of the sale of the STRYPES, net of (1) the underwriting discount, (2) the
purchase price paid for the U.S. Treasury Securities as provided in paragraph
(b) below, and (3) an amount in cash equal to the difference between the
aggregate amount of all Quarterly Distributions to be made on the STRYPES
(determined on the basis of the initial Investment Amount) and the aggregate
proceeds to be received from the U.S. Treasury Securities upon maturity; and,
subject
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to the adjustments and exceptions set forth in the Contract, the Contract shall
entitle the Trust to receive from the Contracting Stockholder on the Settlement
Date the shares of Dollar General Common Stock subject thereto (or, if the
Contracting Stockholder elects to exercise the Cash Settlement Option under the
Contract, in whole or in part, an amount of cash or combination of cash and
Dollar General Common Stock, with an equal value) so that the Trust may execute
the Exchange with the Holders; and
(b) to purchase for settlement on the Firm Payment Date, and on any
Date of Delivery, as appropriate, with the proceeds of the sale the STRYPES, net
of the underwriting discount, U.S. Treasury securities from such brokers or
dealers as the Trustees shall designate in writing to the Administrator having
the terms set forth on Schedule I hereto ("U.S. Treasury Securities").
Section 2.07. PORTFOLIO ADMINISTRATION. In furtherance of the provisions
of Section 2.04 hereof, the Sponsor further specifically authorizes and directs
the Trustees:
(a) DETERMINATION OF DILUTION ADJUSTMENTS. Upon receipt of any
notice pursuant to Section 6.6(a) of the Contract of an event requiring an
adjustment to the Exchange Rate Formula, or upon otherwise acquiring knowledge
of such an event, to calculate the required adjustment and furnish notice
thereof to the Collateral Agent and the Administrator or to request from the
Administrator such further information as may be necessary to calculate or
effect the required adjustment;
(b) SELECTION OF INDEPENDENT INVESTMENT BANK. At such times and for
such purposes provided in the Contract, to select and retain a nationally
recognized investment banking firm to determine the market value of such
property as provided in the Contract, and to deliver to the Contracting
Stockholder notice pursuant to Section 8.1 of the Contract identifying the firm
proposed to be selected and retained, and to consult with the Contracting
Stockholder on such selection and retention as provided in such Section 8.1;
(c) ACCELERATION UPON EVENT OF DEFAULT. Upon receipt of any notice
pursuant to Section 6.6(b) of the Contract that an Event of Default has
occurred, or upon otherwise acquiring notice that an Event of Default has
occurred, to request quotations from Independent Dealers, compute the
Acceleration Value and the Aggregate Acceleration Value and deliver an
Acceleration Amount Notice, in each case with respect to the Contract, all as
described in Section 7.1 of the Contract;
(d) DETERMINATION OF CONTRACT CONSIDERATION. To calculate, at such
times and in such manner as provided in the Contract, the aggregate number of
shares of Dollar General Common Stock (or, if the Cash Settlement Option under
the Contract is exercised, in whole or in part, the amount of cash or
combination of cash and Dollar General Common Stock with an equal value)
required to be delivered by the Contracting Stockholder under Sections 2.1, 2.3,
2.4 and 2.5 of the Contract or, if a Reorganization Event shall have occurred,
the amount of cash and/or the aggregate number of units of any Marketable
Security required to be delivered by the Contracting Stockholder on the Early
Settlement Date, as provided in Section 7.2 of the Contract, or, if the
Contracting Stockholder shall have exercised
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its option to accelerate the settlement of its obligation under the Contract in
whole or in part as provided in Section 7.3 of the Contract, the amount of cash
and/or the aggregate number of shares of Dollar General Common Stock required to
be delivered by the Contracting Stockholder on the related Optional Acceleration
Date, as provided in Section 7.3 of the Contract, and to furnish notice of the
amounts so determined to the Collateral Agent and to the Contracting Stockholder
as provided in Section 8.1 of the Contract;
(e) DISTRIBUTION OF CONTRACT CONSIDERATION ON EXCHANGE DATE. Unless
an Event of Default or a Reorganization Event shall have occurred or the
Contracting Stockholder shall have exercised its option to accelerate the
settlement of its obligation under the Contract in whole as provided in Section
7.3 of the Contract (in which events distribution of the Contract Consideration
shall be governed by Section 8.03 below) or the Contracting Stockholder elects
to exercise the Cash Settlement Option, in whole, with respect to the shares of
Dollar General Common Stock otherwise deliverable under the Contract (in which
event the cash received in respect thereof shall be distributed pro rata to the
Holders of STRYPES on the Exchange Date):
(i) DETERMINATION OF FRACTIONAL SHARES. To determine, on
the Exchange Date: (A) for each Holder of STRYPES, such Holder's pro
rata share of the total number of shares of Dollar General Common
Stock delivered to the Trust on the Settlement Date under the
Contract; and (B) the number of fractional shares of Dollar General
Common Stock, if any, allocable to each Holder and in the aggregate;
(ii) CASH FOR FRACTIONAL SHARES. To sell, in the
principal market therefor, on the Exchange Date, a number of shares
of Dollar General Common Stock equal to the aggregate number of
fractional shares, if any, determined pursuant to clause (i)(B)
above;
(iii) DELIVERY OF SHARES. To deliver the remaining
shares of Dollar General Common Stock to the Transfer Agent and
Registrar on the Exchange Date, with instructions that such shares
of Dollar General Common Stock be re-registered and re-issued as
follows:
(A) for and in the name of each Holder (other than
the Depositary) who holds STRYPES in definitive form, the
Transfer Agent and Registrar shall be instructed to issue
definitive certificates representing a number of shares of
Dollar General Common Stock equal to such Holder's pro rata
share of the total number of shares of Dollar General Common
Stock delivered to the Trust on the Settlement Date under the
Contract, rounded down to the nearest integral number; and
(B) the Transfer Agent and Registrar shall be
instructed to transfer all remaining shares of Dollar General
Common Stock to the account of the Custodian held through the
Depositary, who shall then be instructed to transfer and
credit such shares of Dollar General
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Common Stock to each Participant who holds STRYPES, with each
Participant receiving its pro rata share of the total shares
of Dollar General Common Stock delivered to the Trust on the
Settlement Date under the Contract, reduced by the aggregate
cash value of any fractional shares of Dollar General Common
Stock allocable to such Participant;
(iv) DISTRIBUTION OF CASH IN RESPECT OF FRACTIONAL
SHARES. To distribute on or as soon as practicable after the
Exchange Date to each Holder of STRYPES to which a fractional share
of Dollar General Common Stock is allocable as determined pursuant
to clause (i)(B) above such Holder's pro rata portion of the
proceeds obtained from the liquidation of all fractional shares of
Dollar General Common Stock pursuant to clause (ii) above (net of
any brokerage or related expenses); and
(v) RECORD DATE. The distributions described in this
paragraph (e) shall be made to Holders of record as of the close of
business on the Business Day preceding the Exchange Date.
(f) DISTRIBUTION OF CONTRACT CONSIDERATION UPON OPTIONAL
ACCELERATION. Unless the Contracting Stockholder shall have exercised its option
to accelerate the settlement of its obligation under the Contract in whole as
provided in Section 7.3 of the Contract (in which event distribution of the
Contract Consideration shall be governed by Section 8.03 below) or the
Contracting Stockholder elects to pay the entire Optional Acceleration Amount in
cash (in which event the cash received on the related Optional Acceleration Date
shall be distributed pro rata to the Holders of STRYPES on the Business Day
immediately following the Optional Acceleration Date):
(i) DETERMINATION OF FRACTIONAL SHARES. To determine, on
the Optional Acceleration Date: (A) for each Holder of STRYPES, such
Holder's pro rata share of the total number of shares of Dollar
General Common Stock delivered to the Trust on the Optional
Acceleration Date under the Contract; and (B) the number of
fractional shares of Dollar General Common Stock, if any, allocable
to each Holder and in the aggregate;
(ii) CASH FOR FRACTIONAL SHARES. To sell, in the
principal market therefor, on the Business Day immediately following
the Optional Acceleration Date, a number of shares of Dollar General
Common Stock equal to the aggregate number of fractional shares, if
any, determined pursuant to clause (i)(B) above;
(iii) DELIVERY OF SHARES. To deliver the remaining
shares of Dollar General Common Stock to the Transfer Agent and
Registrar on the Business Day immediately following the Optional
Acceleration Date, with instructions that such shares of Dollar
General Common Stock be re-registered and re-issued as follows:
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(A) for and in the name of each Holder (other than
the Depositary) who holds STRYPES in definitive form, the
Transfer Agent and Registrar shall be instructed to issue
definitive certificates representing a number of shares of
Dollar General Common Stock equal to such Holder's pro rata
share of the total number of shares of Dollar General Common
Stock delivered to the Trust on the related Optional
Acceleration Date under the Contract, rounded down to the
nearest integral number; and
(B) the Transfer Agent and Registrar shall be
instructed to transfer all remaining shares of Dollar General
Common Stock to the account of the Custodian held through the
Depositary, who shall then be instructed to transfer and
credit such shares of Dollar General Common Stock to each
Participant who holds STRYPES, with each Participant
receiving its pro rata share of the total shares of Dollar
General Common Stock delivered to the Trust on the related
Optional Acceleration Date under the Contract, reduced by the
aggregate cash value of any fractional shares of Dollar
General Common Stock allocable to such Participant;
(iv) DISTRIBUTION OF CASH IN RESPECT OF FRACTIONAL
SHARES. To distribute on or as soon as practicable after the
Business Day immediately following the Optional Acceleration Date to
each Holder of STRYPES to which a fractional share of Dollar General
Common Stock is allocable as determined pursuant to clause (i)(B)
above such Holder's pro rata portion of the proceeds obtained from
the liquidation of all fractional shares of Dollar General Common
Stock pursuant to clause (ii) above (net of any brokerage or related
expenses);
(v) DISTRIBUTION OF OPTIONAL ACCELERATION AMOUNT PAID IN
CASH. To distribute to each Holder of STRYPES on the Business Day
immediately following the Optional Acceleration Date such Holder's
pro rata share of the aggregate amount of cash delivered to the
Trust on the related Optional Acceleration Date.
(vi) RECORD DATE. The distributions described in this
paragraph (f) shall be made to Holders of record as of the close of
business on the Optional Acceleration Date.
(g) DISTRIBUTION OF U.S. TREASURY SECURITIES. Unless the Contracting
Stockholder shall have exercised its option to accelerate the settlement of its
obligation under the Contract in whole as provided in Section 7.3 of the
Contract (in which event distribution of the U.S. Treasury Securities shall be
governed by Section 8.03 below):
(i) DETERMINATION OF U.S. TREASURY SECURITIES TO BE
DISTRIBUTED. To determine, on the Optional
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Acceleration Date, the Optional Acceleration Percentage of each
issue of U.S. Treasury Securities then held by the Trust.
(ii) DETERMINATION OF FRACTIONAL UNITS. To determine, on
the Optional Acceleration Date: (A) for each Holder of STRYPES, such
Holder's pro rata share of the Optional Acceleration Percentage of
each issue of U.S. Treasury Securities then held by the Trust; and
(B) the number of fractional units of any issue of U.S. Treasury
Securities, if any, allocable to each Holder and in the aggregate;
(iii) CASH FOR FRACTIONAL SHARES. To sell, in the
principal market therefor, on the Business Day immediately following
the Optional Acceleration Date, a principal amount of each issue of
U.S Treasury Securities equal to the aggregate number of fractional
units, if any, of such issue of U.S. Treasury Securities determined
pursuant to clause (ii)(B) above;
(iv) DELIVERY OF U.S. TREASURY SECURITIES. To distribute
to each Holder on the Business Day immediately following the
Optional Acceleration Date such Holder's pro rata share of the
remaining portion of the Optional Acceleration Percentage of each
issue of U.S. Treasury Securities;
(v) DISTRIBUTION OF CASH IN RESPECT OF FRACTIONAL UNITS.
To distribute on or as soon as practicable after the Business Day
immediately following the Optional Acceleration Date to each Holder
of STRYPES to which a fractional unit of any issue of U.S. Treasury
Securities is allocable as determined pursuant to clause (ii)(B)
above such Holder's pro rata portion of the proceeds obtained from
the liquidation of all fractional units of such issue of U.S.
Treasury Securities pursuant to clause (iii) above (net of any
brokerage or related expenses); and
(vi) RECORD DATE. The distributions described in this
paragraph (g) shall be made to Holders of record as of the close of
business on the Optional Acceleration Date.
Section 2.08. MANNER OF SALES. Any sale of Trust property required under
Section 2.07 hereof or permitted under Section 8.03(c) hereof shall be made
through such executing brokers or to such dealers as the Trustees, seeking best
price and execution for the Trust, shall designate in writing to the Paying
Agent, taking into account such factors as price, commission, size of order,
difficulty of execution and brokerage skill required.
Section 2.09. LIMITATIONS ON TRUSTEES' POWERS. The Trustees, acting on
behalf of the Trust, are not permitted:
(a) to purchase or hold any securities or instruments except for the
U.S. Treasury Securities, the Contract, shares of Dollar General Common Stock
acquired pursuant to the Contract, the Temporary Investments contemplated by
Section 3.04 hereof, and, in the event of a Reorganization Event, Marketable
Securities;
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(b) to dispose of the Contract prior to the Exchange Date;
(c) to issue any securities or instruments except for the STRYPES,
or to issue any STRYPES other than the STRYPES sold to the Sponsor and the
STRYPES to be sold pursuant to the Purchase Agreement and until such STRYPES
have been so purchased and paid for in full;
(d) to make short sales or purchases on margin;
(e) to write put or call options;
(f) to borrow money;
(g) to underwrite securities;
(h) to purchase or sell real estate, commodities or commodities
contracts;
(i) to purchase restricted securities;
(j) to make loans; or
(k) to take any action, or direct or permit the Administrator, the
Paying Agent or the Custodian to take any action, that would vary the investment
of the Holders within the meaning of Treasury Regulation Section 301.7701-4(c),
or otherwise take any action or direct or permit any action to be taken that
would or could cause the Trust not to be a "grantor trust" under the Code.
ARTICLE III.
ACCOUNTS AND PAYMENTS
Section 3.01. THE TRUST ACCOUNT. The Trustees shall, upon issuance of the
STRYPES, establish with the Paying Agent an account to be called the "Trust
Account". All moneys received by the Trustees in respect of the Contract, the
U.S. Treasury Securities and any Temporary Investments held pursuant to Section
3.04 hereof, all moneys received from the sale of the STRYPES to the Sponsor,
and any proceeds from the sale of the STRYPES to the Underwriters after the
purchase of the Contract and the U.S. Treasury Securities shall be credited to
the Trust Account.
Section 3.02. DISTRIBUTIONS TO HOLDERS. On or shortly after each
Distribution Date the Trustees shall distribute to each Holder of record at the
close of business on the preceding Record Date, at the post office address of
the Holder appearing on the books of the Trust or Paying Agent or by any other
means mutually agreed upon by the Holder and the Trustees, an amount equal to
such Holder's pro rata share of the Quarterly Distribution computed as of the
close of business on such Distribution Date.
Section 3.03. SEGREGATION. All moneys and other assets deposited or
received by the Trustees hereunder shall be held by them in trust as part of the
Trust Estate until required to
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be disbursed or otherwise disposed of in accordance with the provisions of this
Trust Agreement, and the Trustees shall handle such moneys and other assets in
such manner as shall constitute the segregation and holding in trust within the
meaning of the Investment Company Act.
Section 3.04. INVESTMENTS. To the extent necessary to enable the Paying
Agent to make the next succeeding Quarterly Distribution, any moneys deposited
with or received by the Trustees in the Trust Account shall be invested as soon
as possible by the Paying Agent in Temporary Investments maturing no later than
the Business Day preceding the next following Distribution Date. Except as
otherwise specifically provided herein or in the Paying Agent Agreement, the
Paying Agent shall not have the power to sell, transfer or otherwise dispose of
any Temporary Investment prior to the maturity thereof, or to acquire additional
Temporary Investments. The Paying Agent shall hold any Temporary Investment to
its maturity and shall apply the proceeds thereof upon maturity to the payment
of the next succeeding Quarterly Distribution. All such Temporary Investments
shall be selected from time to time by the Trustees or pursuant to standing
instructions from the Trustees to the Administrator, and the Administrator
and/or Paying Agent shall have no liability to the Trust or any Holder or any
other Person with respect to any such Temporary Investment. Any interest or
other income received on any moneys in the Trust Account shall, upon receipt
thereof, be deposited into the Trust Account. Notwithstanding the foregoing, not
more than 5% of the assets of the Trust may be held at any time in the form of
cash and Temporary Investments, and the Trustees shall distribute cash, or
liquidate Temporary Investments and distribute the proceeds thereof, if, when
and to the extent needed to maintain compliance with the foregoing restriction.
ARTICLE IV.
REDEMPTION
Section 4.01. REDEMPTION. The Trustees shall have no right or obligation
to redeem STRYPES.
ARTICLE V.
ISSUANCE OF CERTIFICATES;
REGISTRY; TRANSFER OF STRYPES
Section 5.01. FORM OF CERTIFICATE. Each Certificate evidencing STRYPES
shall be countersigned manually or in facsimile by the Managing Trustee and
executed manually by the Paying Agent in substantially the form of Exhibit A
hereto with the blanks appropriately filled in, shall be dated the date of
execution and delivery by the Paying Agent and shall represent a fractional
undivided interest in the Trust, the numerator of which fraction shall be the
number of STRYPES set forth on the face of such Certificate and the denominator
of which shall be the total number of STRYPES outstanding at that time. All
STRYPES shall be issued in registered form and shall be numbered serially.
Pending the preparation of definitive Certificates, the Trustees may execute and
the Paying Agent shall authenticate and deliver temporary Certificates (printed,
lithographed, typewritten or otherwise reproduced, in each case
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in form satisfactory to the Paying Agent). Temporary Certificates shall be
issuable as registered Certificates substantially in the form of the definitive
Certificates but with such omissions, insertions and variations as may be
appropriate for temporary Certificates, all as may be determined by the Trustees
with the concurrence of the Paying Agent. Every temporary Certificate shall be
executed by the Managing Trustee and be authenticated by the Paying Agent upon
the same conditions and in substantially the same manner, and with like effect,
as the definitive Certificates. Without unreasonable delay the Managing Trustee
shall execute and shall furnish definitive Certificates and thereupon temporary
Certificates may be surrendered in exchange therefor without charge at each
office or agency of the Paying Agent and the Paying Agent shall authenticate and
deliver in exchange for such temporary Certificates definitive Certificates for
a like aggregate number of STRYPES. Until so exchanged, the temporary
Certificates shall be entitled to the same benefits hereunder as definitive
Certificates.
Section 5.02. TRANSFER OF STRYPES; ISSUANCE, TRANSFER AND INTERCHANGE OF
CERTIFICATES. STRYPES may be transferred by the Holder thereof by presentation
and surrender of properly endorsed Certificates at the office of the Paying
Agent, accompanied by such documents executed by the Holder or his authorized
attorney as the Paying Agent deems necessary to evidence the authority of the
person making the transfer. Certificates issued pursuant to this Trust Agreement
are interchangeable for one or more other Certificates evidencing an equal
aggregate number of STRYPES and all Certificates issued as may be requested by
the Holder and deemed appropriate by the Paying Agent shall be issued in
denominations of one STRYPES or any multiple thereof. The Paying Agent may deem
and treat the person in whose name any STRYPES shall be registered upon the
books of the Paying Agent as the owner of such STRYPES for all purposes
hereunder and the Paying Agent shall not be affected by any notice to the
contrary. The transfer books maintained by the Paying Agent for the purposes of
this Section 5.02 shall include the name and address of the record owners of the
STRYPES and shall be closed in connection with the dissolution of the Trust
pursuant to Section 8.03 hereof. A sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such transfer
shall be paid to the Paying Agent by the Holder. A Holder may be required to pay
a fee for each new Certificate to be issued pursuant to the preceding paragraph
in such amount as may be specified by the Paying Agent and approved by the
Trustees. All Certificates cancelled pursuant to this Trust Agreement may be
voided by the Paying Agent in accordance with the usual practice of the Paying
Agent or in accordance with the instructions of the Trustees; provided, however,
that the Paying Agent shall not be required to destroy cancelled Certificates.
The Paying Agent may adopt other reasonable rules and regulations for the
registration, transfer and tender of STRYPES as it may, in its discretion, deem
necessary.
Section 5.03. REPLACEMENT OF CERTIFICATES. In case any Certificate shall
become mutilated or be destroyed, stolen or lost, the Paying Agent shall execute
and deliver a new Certificate in exchange and substitution therefor upon the
Holder's furnishing the Paying Agent with proper identification and satisfactory
indemnity, complying with such other reasonable regulations and conditions as
the Paying Agent may prescribe and paying such expenses and charges, including
any bonding fee, as the Paying Agent may incur or reasonably impose; provided
that if the Trust has dissolved or is in the process of dissolving, the Paying
Agent, in lieu of issuing such new Certificate, may, upon the terms and
conditions set forth
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herein, make the distributions set forth in Section 8.03(c) hereof. Any
mutilated Certificate shall be duly surrendered and cancelled before any
duplicate Certificate shall be issued in exchange and substitution therefor.
Upon issuance of any duplicate Certificate pursuant to this Section 5.03, the
original Certificate claimed to have been lost, stolen or destroyed shall become
null and void and of no effect, and any bona fide purchaser thereof shall have
only such rights as are afforded under Article 8 of the Uniform Commercial Code
to a Holder presenting a Certificate for transfer in the case of an overissue.
Section 5.04. LIMITATION ON LIABILITY. Pursuant to ss.3803(a) of the
Delaware Business Trust Act, 12 Del. C. ss.3801, et seq., the Holders of the
STRYPES shall be entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
Section 5.05. GENERAL PROVISIONS REGARDING THE STRYPES.
(A) The consideration received by the Trust for the issuance of the
STRYPES shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(B) Upon issuance of the STRYPES as provided in this Trust
Agreement, the STRYPES so issued shall be deemed to be validly issued, fully
paid and non-assessable. The issuance of the STRYPES will not be subject to
preemptive or other similar rights.
(C) Every person, by virtue of having become a Holder in accordance
with the terms of this Trust Agreement, shall be deemed to have expressly
assented and agreed to the terms of, and shall be bound by, this Trust
Agreement.
ARTICLE VI.
EXECUTION OF THE CONTRACT
Section 6.01. EXECUTION OF THE CONTRACT. The Contract shall be
countersigned manually or in facsimile by the Managing Trustee and executed
manually by the Contracting Stockholder and the Collateral Agent and shall be
dated the date of execution and delivery by the Contracting Stockholder.
ARTICLE VII.
TRUSTEES
Section 7.01. TRUSTEES. The Trust shall have three Trustees. One Trustee
shall be the Managing Trustee and, as such, is authorized to execute documents
and instruments on behalf of the Trust. The Managing Trustee will be appointed
by resolution of the Trustees. Each Trustee shall serve until the next regular
annual or special meeting of Holders called for the purpose of electing Trustees
and, then, until such Trustee's successor is duly elected and qualified. Holders
may not cumulate their votes in the election of Trustees. Each Trustee shall not
be considered to have qualified for the office unless such Trustee shall agree
to be bound by
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the terms of this Trust Agreement and shall evidence his consent by executing
this Trust Agreement or a supplement hereto.
Section 7.02. VACANCIES. Any vacancy in the office of a Trustee may be
filled in compliance with Sections 10 and 16 of the Investment Company Act by
the vote, within 30 days, of the remaining Trustees; provided that if required
by Section 16 of the Investment Company Act, the Trustees shall forthwith cause
to be held as promptly as possible and in any event within 60 days (unless the
Commission by order shall extend such period) a meeting of Holders for the
purpose of electing Trustees in compliance with Sections 10 and 16 of the
Investment Company Act. Until a vacancy in the office of any Trustee is filled
as provided above, the remaining Trustees in office, regardless of their number,
shall have the powers granted to the Trustees and shall discharge all the duties
imposed upon the Trustees by this Trust Agreement. Election shall be by the
affirmative vote of Holders of a majority of the STRYPES entitled to vote
present in person or by proxy at a special meeting of Holders called for the
purpose of electing any Trustee. Each individual Trustee shall be at least 21
years of age and shall not be under any legal disability. No Trustee who is an
"interested person", as defined in the Investment Company Act, may assume office
if it would cause the composition of the Trustees of the Trust not to be in
compliance with the percentage limitations on interested persons in Section 10
of the Investment Company Act. Trustees need not be Holders. Notice of the
appointment or election of a successor Trustee shall be mailed promptly after
acceptance of such appointment by the successor Trustee to each Holder.
Section 7.03. POWERS. The Trust will be managed solely by the Trustees,
who will, subject to the provisions of Article II hereof, have complete and
exclusive control over the management, conduct and operation of the Trust's
business, and shall have the rights, powers and authority of a board of
directors of a corporation organized under Delaware law. The Trustees shall have
fiduciary responsibility for the safekeeping and use of all funds and assets of
the Trust and shall not employ, or permit another to employ, such funds or
assets in any manner except for the exclusive benefit of the Trust and except in
accordance with the terms of this Trust Agreement. Subject to the continuing
supervision of the Trustees and as permitted by applicable law, the functions of
the Trust shall be performed by the Custodian, the Paying Agent, the
Administrator and such other entities engaged to perform such functions as the
Trustees may determine, including, without limitation, any or all administrative
functions.
Section 7.04. MEETINGS. Meetings of the Trustees shall be held from time
to time upon the call of any Trustee on not less than 48 hours notice (which may
be waived by any or all of the Trustees in writing either before or after such
meeting or by attendance at the meeting unless the Trustee attends the meeting
for the express purpose of objecting to the transaction of any business on the
ground that the meeting has not been lawfully called or convened). The Trustees
shall act either by majority vote of the Trustees present at a meeting at which
at least a majority of the Trustees then in office are present or by a unanimous
written consent of the Trustees without a meeting. Except as otherwise required
under the Investment Company Act, all or any of the Trustees may participate in
a meeting of the Trustees by means of a conference telephone call or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to such
communications equipment shall constitute presence in person at such meeting.
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Section 7.05. RESIGNATION AND REMOVAL. Any Trustee may resign and be
discharged of the trust created by the Trust Agreement by executing an
instrument in writing resigning as Trustee, filing the same with the
Administrator and sending notice thereof to the remaining Trustees, and such
resignation shall become effective immediately unless otherwise specified
therein. Any Trustee may be removed in the event of incapacity by vote of the
remaining Trustees and for any reason by written declaration or vote of the
Holders of more than 66 2/3% of the outstanding STRYPES, notice of which vote
shall be given to the remaining Trustees and the Administrator. The resignation,
removal or failure to reelect any Trustee shall not cause the termination of the
Trust.
Section 7.06. LIABILITY. The Trustees shall not be liable to the Trust or
any Holder for any action taken or for refraining from taking any action except
in the case of willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties of their office. Specifically, without limitation, the
Trustees shall not be responsible for or in respect of the recitals herein or
the validity or sufficiency of this Trust Agreement or for the due execution
hereof by any other Person, or for or in respect of the validity or sufficiency
of STRYPES or Certificates representing STRYPES and shall in no event assume or
incur any liability, duty or obligation to any Holder or to any other Person,
other than as expressly provided for herein. The Trustees may employ agents,
attorneys, administrators, accountants and auditors, and shall not be answerable
for the default or misconduct of any such Persons if such Persons shall have
been selected with reasonable care. Action in good faith may include action
taken in good faith in accordance with an opinion of counsel. In no event shall
any Trustee be personally liable for any expenses with respect to the Trust.
Each Trustee shall be indemnified by the Trust with respect to any claim,
liability or loss arising out of or in connection with such Trustee's acting as
Trustee of the Trust and with respect to all reasonable costs and expenses
(including the reasonable costs of investigation, preparation for and defense of
legal and/or administrative proceedings relating to a claim against such Trustee
and reasonable attorneys' fees and disbursements) incurred in connection with
any such claim, liability or loss, except in the case of willful misfeasance,
bad faith, gross negligence or reckless disregard of the duties of his office.
Notwithstanding the foregoing, it is understood that the Trust shall not, in
respect of the legal expenses of any Trustee in connection with any proceeding
or related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel).
Section 7.07. COMPENSATION. Each Trustee, other than a Trustee who is a
director, officer or employee of the Sponsor, any Underwriter, or the
Administrator or any affiliate thereof, shall receive a one-time, up-front fee
of $10,800, in respect of its annual fee and anticipated out-of-pocket expenses.
In addition, the Managing Trustee shall receive an additional one-time, up-front
fee of $3,600 for serving in such capacity. The Trustees will not receive any
pension or retirement benefits. In the event of the resignation or removal of a
Trustee, such Trustee shall remit to the Trust the portion of its fee ratable
for the period from the day of such resignation or removal through the Exchange
Date.
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ARTICLE VIII.
MISCELLANEOUS
Section 8.01. MEETINGS OF HOLDERS. The Trustees shall not hold annual or
regular meetings of Holders except as set forth herein. A special meeting may be
called at any time by the Trustees or upon petition of Holders of more than 50%
of the STRYPES outstanding (unless substantially the same matter was voted on
during the preceding 12 months), and shall be called as required by the
Investment Company Act and the rules and regulations thereunder, including,
without limitation, when requested by the Holders of not less than 10% of the
STRYPES outstanding for the purposes of voting upon the question of the removal
of any Trustee or Trustees. The Trustees shall establish, and notify the Holders
in writing of, the record date for each such meeting which shall be not less
than 10 nor more than 50 days before the meeting date. Holders at the close of
business on the record date will be entitled to vote at the meeting. The
Administrator shall, as soon as possible after any such record date (or prior to
such record date if appropriate), mail by first class mail to each Holder a
notice of meeting and a proxy statement and form of proxy in the form approved
by the Trustees and complying with the Investment Company Act and the rules and
regulations thereunder. Except as otherwise specified herein, in the Prospectus
(including, without limitation, changes to the Trust's fundamental policies set
forth in the prospectus) or in any provision of the Investment Company Act and
the rules and regulations thereunder, any action may be taken by vote of Holders
of a majority of the STRYPES outstanding present in person or by proxy if
Holders of a majority of STRYPES outstanding on the record date are so
represented. Each STRYPES shall have one vote and may be voted in person or by
duly executed proxy; provided, however, that any investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act"), owning
STRYPES in excess of the limits imposed by Sections 12(d)(1)(A)(i) and
12(d)(1)(C) of the 1940 Act must vote their STRYPES in proportion to the vote of
all other Holders of STRYPES that are not investment companies registered under
the 1940 Act. Any proxy may be revoked by notice in writing, by a subsequently
dated proxy or by voting in person at the meeting, and no proxy shall be valid
after eleven months following the date of its execution.
Section 8.02. BOOKS AND RECORDS; REPORTS. (a) The Trustees shall keep a
certified copy or duplicate original of this Trust Agreement on file at the
office of the Trust and the office of the Administrator available for inspection
at all reasonable times during its usual business hours by any Holder. The
Trustees shall keep proper books of record and account for all the transactions
under this Trust Agreement at the office of the Trust and the office of the
Administrator, and such books and records shall be open to inspection by any
Holder at all reasonable times during usual business hours. The Trustees shall
retain all books and records in compliance with Section 31 of the Investment
Company Act and the rules and regulations thereunder.
(b) With each payment to Holders the Paying Agent shall set forth,
either in the instruments by means of which payment is made or in a separate
statement, the amount being paid from the Trust Account expressed as a dollar
amount per STRYPES and the other information required under Section 19 of the
Investment Company Act and the rules and regulations thereunder. The Trustees
shall prepare and file or distribute reports as required by Section 30 of the
Investment Company Act and the rules and
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regulations thereunder. The Trustees shall prepare and file such reports as may
from time to time be required to be filed or distributed to Holders under any
applicable state or Federal statute or rule or regulation thereunder, and shall
file such tax returns as may from time to time be required under any applicable
state or Federal statute or rule or regulation thereunder. One of the Trustees
shall be designated by resolution of the Trustees to make the filings and give
the notices required by Rule 17g-1 under the Investment Company Act.
(c) In calculating the net asset value of the Trust as required by
the Investment Company Act, (i) the U.S. Treasury Securities will be valued at
the mean between the last current bid and asked prices or, if quotations are not
available, as determined in good faith by the Trustees, (ii) short-term
investments having a maturity of 60 days or less will be valued at cost with
accrued interest or discount earned included in interest receivable and (iii)
the Contract will be valued at the bid price received by the Administrator from
an independent broker-dealer firm unaffiliated with the Trust to be named by the
Trustees which is in the business of making bids on financial instruments
similar to the Contract and with terms comparable thereto. In the event that the
Trust (acting through the Administrator) is unable to obtain a valuation from an
independent broker-dealer firm, as required by clause (iii) of the preceding
sentence, on a timely basis or without unreasonable effort or expense, the
Contract shall be valued at an amount deemed to be fair and reflective of the
market value for the Contract based on all appropriate factors relevant to the
value of the Contract as [determined by an independent expert or appraiser
retained by the Trust or by the Administrator on the Trust's behalf].
Section 8.03. DISSOLUTION. (a) The Trust created hereby shall dissolve,
and its affairs be wound up, upon the earliest of (i) the date 90 days after the
execution of this Trust Agreement if (x) the STRYPES have not theretofore been
issued or (y) the net worth of the Trust is not at least $100 at such time, (ii)
the date five Business Days after any Closing Date (other than any Closing Date
in respect of a Closing of an acquisition, sale and delivery pursuant to Section
7.3 of the Contract if, immediately following such Closing, the Optional
Acceleration Value is greater than zero), and (iii) the date which is 21 years
less 91 days after the death of the last survivor of all of the descendants of
Xxxxxx X. Xxxxxxx Xx., the former United States Ambassador to the Court of St.
Xxxxx', living on the date hereof. The Trust is irrevocable, the Sponsor has no
right to withdraw any assets constituting a portion of the Trust Estate, and the
dissolution of the Sponsor shall not operate to dissolve the Trust. The death or
incapacity of any Holder shall not operate to terminate this Trust Agreement,
nor entitle his legal representatives or heirs to claim an accounting or to take
any action or proceeding in any court for a partition or winding up of the
Trust, and shall not otherwise affect the rights, obligations and liabilities of
the parties hereto.
(b) Written notice of any dissolution shall be sent to Holders
specifying the record date for any distribution to Holders, the amount
distributable (including, if applicable, the number of shares of Dollar General
Common Stock or, if a Reorganization Event shall have occurred, the number of
units of any Marketable Security) with respect to each STRYPES and the time of
dissolution as determined by the Trustees, upon which the books maintained by
the Paying Agent pursuant to Section 5.02 hereof shall be closed. Any such
notice shall be provided
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by mail, sent to each Holder at such Holder's address as it appears on the books
of the Paying Agent, first class, postage prepaid not less than 9 days prior to
the date on which such distribution is to be made. At or prior to the mailing of
such notice, the Administrator shall publish a public announcement in The Wall
Street Journal or another daily newspaper of national circulation.
(c) Subject to any applicable provisions of law, for purposes of
dissolution under Sections 8.03(a)(ii) and (iii) hereof, within five Business
Days after such dissolution, the Trustees shall effect the sale of any remaining
property of the Trust (other than any Dollar General Common Stock or Marketable
Securities received pursuant to the Contract, U.S. Treasury Securities held by
the Trust and cash), and the Paying Agent shall distribute pro rata as soon as
practicable thereafter to each Holder, upon surrender for cancellation of its
Certificates, its interest in the Trust Estate. Together with the distribution
to the Holders, the Trustees shall furnish the Holders with a final statement as
of the date of the distribution of the amount distributable with respect to each
STRYPES.
(d) Notwithstanding anything to the contrary contained herein, no
fractional units of any security (including Dollar General Common Stock) will be
distributed to Holders pursuant to Section 8.03(c) hereof upon dissolution of
the Trust. All fractional units to which Holders would otherwise be entitled
upon dissolution of the Trust will be aggregated and liquidated by the Trustees
and, in lieu of the fractional unit to which a Holder would otherwise have been
entitled in respect of the total number of STRYPES held by such Holder, such
Holder will receive its pro rata portion of the proceeds from such liquidation
(net of any brokerage or related expenses).
Section 8.04. AMENDMENT AND WAIVER. (a) This Trust Agreement may be
amended from time to time by the Trustees for any purpose prior to the issuance
and sale to the Underwriters of the STRYPES and thereafter without the consent
of any of the Holders (i) to cure any ambiguity or to correct or supplement any
provision contained herein or therein which may be defective or inconsistent
with any other provision contained herein or therein; (ii) to change any
provision hereof or thereof as may be required by applicable law or the
Commission or any successor governmental agency exercising similar authority; or
(iii) to make such other provisions in regard to matters or questions arising
hereunder or thereunder as shall not materially adversely affect the interests
of the Holders (as determined in good faith by the Trustees, who may rely on an
opinion of counsel).
(b) This Trust Agreement may also be amended from time to time by
the Trustees (or the performance of any of the provisions of the Trust Agreement
may be waived) with the consent by the required vote of the Holders in
accordance with Section 8.01 hereof; provided that this Trust Agreement may not
be amended (i) without the consent by vote of the Holders of all STRYPES then
outstanding, so as to increase the number of STRYPES issuable hereunder above
the number of STRYPES specified in Section 2.05(c) hereof or such lesser number
as may be outstanding at any time during the term of this Trust Agreement, (ii)
to reduce the interest in the Trust represented by STRYPES without the consent
of the Holders of such STRYPES, (iii) if such amendment is prohibited by the
Investment Company Act or other applicable law or (iv) without the consent by
vote of the Holders of all STRYPES then outstanding, if such amendment
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would effect a change in Section 2.04 or 2.09 hereof or in the voting
requirements set forth in Section 8.01 hereof or this Section 8.04.
(c) Any of the agreements referred to in Section 2.05(a) hereof may
be amended from time to time by the Trustees and the other parties thereto for
any purpose without the consent of any of the Holders.
(d) Promptly after the execution of any amendment, the Trustees
shall furnish written notification of the substance of such amendment to each
Holder.
(e) Notwithstanding subsections (a) and (b) of this Section 8.04, no
amendment hereof shall permit the Trust, the Trustees, the Administrator, the
Paying Agent or the Custodian to take any action or direct or permit any Person
to take any action that (i) would vary the investment of Holders within the
meaning of Treasury Regulation Section 301.7701-4(c), or (ii) would or could
cause the Trust, or direct or permit any action to be taken that would or could
cause the Trust, not to be a "grantor trust" under the Code.
Section 8.05. ACCOUNTANTS. (a) The Trustees shall, in accordance with
Section 30 of the Investment Company Act, file annually with the Commission such
information, documents and reports as investment companies having securities
registered on a national securities exchange are required to file annually
pursuant to Section 13(a) of the Exchange Act and the rules and regulations
issued thereunder. The Trustees shall transmit to the Holders, at least
semi-annually, the reports required by Section 30(d) of the Investment Company
Act and the rules and regulations thereunder, including, without limitation, a
balance sheet accompanied by a statement of the aggregate value of investments
on the date of such balance sheet, a list showing the amounts and values of such
investments owned on the date of such balance sheet, and a statement of income
for the period covered by the report. Financial statements contained in such
annual reports shall be accompanied by a certificate of independent public
accounts based upon an audit not less in scope or procedures than that which
independent public accountants would ordinarily make for the purpose of
complying with generally accepted auditing standards and shall contain such
information as the Commission may prescribe. Each such report shall state that
such independent public accountants have verified investments owned, either by
actual examination or by receipt of a certificate from the Custodian.
(b) The independent public accountants referred to in subsection (a)
above shall be selected at a meeting held within 30 days before or after the
beginning of the fiscal year by the vote, cast in person, of a majority of the
Trustees who are not "interested persons" as defined in the Investment Company
Act and such selection shall be submitted for ratification at the first meeting
of Holders to be held as set forth in Section 8.01 hereof, and thereafter as
required by the Investment Company Act and the rules and regulations thereunder.
The employment of any independent public accountant for the Trust shall be
conditioned upon the right of the Holders by a vote of the lesser of (i) 67% or
more of the STRYPES present at a special meeting of Holders, if Holders of more
than 50% of STRYPES outstanding are present or represented by proxy at such
meeting or (ii) more than 50% of the STRYPES outstanding to terminate such
employment at any time without penalty.
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(c) The foregoing provisions of this Section 8.05 are in addition to
any applicable requirements of the Investment Company Act and the rules and
regulations thereunder.
Section 8.06. NATURE OF HOLDER'S INTEREST. Each Holder holds at any given
time a beneficial interest in the Trust Estate, but does not have any right to
take title or possession of any portion of the Trust Estate. Each Holder
expressly waives any right he may have under any rule of law, or the provisions
of any statute, or otherwise, to require the Trustees at any time to account, in
any manner other than as expressly provided in this Trust Agreement, for the
shares of Dollar General Common Stock, the Contract, the U.S. Treasury
Securities or other assets or moneys from time to time received, held and
applied by the Trustees hereunder. No Holder shall have any right except as
provided herein to control or determine the operation and management of the
Trust or the obligations of the parties hereto. Nothing set forth herein or in
the Certificates representing STRYPES shall be construed to constitute the
Holders from time to time as partners or members of an association.
Section 8.07. DELAWARE LAW TO GOVERN. This Trust Agreement is executed and
delivered in the State of Delaware, and all laws or rules of construction of the
State of Delaware, without regard to principles of conflict of laws, shall
govern the rights of the parties hereto and the Holders and the construction,
validity and effect of the provisions hereof.
Section 8.08. NOTICES. Any notice, demand, direction or instruction to be
given to the Sponsor hereunder shall be in writing and shall be duly given if
mailed or delivered to ML IBK Positions, Inc. at World Financial Center, Xxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other address as shall be specified
by the Sponsor to the other parties hereto in writing. Any notice, demand,
direction or instruction to be given to the Trust and the Trustees hereunder
shall be in writing and shall be duly given if mailed or delivered to the Trust
x/x Xxx Xxxx xx Xxx Xxxx at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and to
each Trustee at such Trustee's address set forth beneath its signature below, or
such other address as shall be specified to the other parties hereto by such
party in writing. Any notice to be given to a Holder shall be duly given if
mailed, first class postage prepaid, or by such other substantially equivalent
means as the Trustees may deem appropriate, or delivered to such Holder at the
address of such Holder appearing on the registry of the Paying Agent.
Section 8.09. SEVERABILITY. If any one or more of the covenants,
agreements, provisions or terms of this Trust Agreement shall be for any reason
whatsoever held invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants, agreements, provisions
and terms of this Trust Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Trust Agreement or of the
Certificates, or the rights of the Holders thereof.
Section 8.10. COUNTERPARTS. This Trust Agreement may be executed in
several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
Section 8.11. SUCCESSORS AND ASSIGNS. Whenever in this Trust Agreement any
of the parties hereto is named or referred to, the successors and assigns of
such party shall be
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deemed to be included, and all covenants and agreements in this Trust Agreement
by the Sponsor and Trustees shall bind and inure to the benefit of their
respective successors and assigns, whether or not so expressed.
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IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed.
ML IBK POSITIONS, INC.
By:
---------------------------
Name:
Title:
TRUSTEES:
------------------------------
Name: Xxxxxx X. Xxxxxxx
Address: 000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
------------------------------
Name: Xxxxxxx X. Xxxxxx III
Address: 000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
------------------------------
Name: Xxxxx X. X'Xxxxx
Address: 000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
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Schedule I
U.S. TREASURY SECURITIES
All terms specified are for stripped principal or interest components of
U.S. Treasury debt obligations.
Maturity Par Amount CUSIP No.
=================== ============== ==========================================
27
31
Exhibit A
DOLLAR GENERAL STRYPES TRUST
NO. ____________ ______________STRYPES(SM)
CUSIP NO. ______________
THIS CERTIFIES THAT ________ IS THE RECORD OWNER OF _______ FULLY PAID AND
NON-ASSESSABLE STRYPES, PAR VALUE $.10 PER STRYPES, OF DOLLAR GENERAL STRYPES
TRUST CONSTITUTING FRACTIONAL UNDIVIDED BENEFICIAL INTERESTS IN DOLLAR GENERAL
STRYPES TRUST, A TRUST CREATED UNDER THE LAWS OF THE STATE OF DELAWARE PURSUANT
TO AN AMENDED AND RESTATED TRUST AGREEMENT (THE "TRUST AGREEMENT") AMONG ML IBK
POSITIONS, INC., THE TRUSTEES NAMED THEREIN AND THE HOLDERS (AS DEFINED
THEREIN). THIS CERTIFICATE IS ISSUED UNDER AND IS SUBJECT TO THE TERMS,
PROVISIONS AND CONDITIONS OF THE TRUST AGREEMENT, AS THE SAME MAY BE AMENDED
FROM TIME TO TIME, TO WHICH THE HOLDER OF THIS CERTIFICATE BY VIRTUE OF THE
ACCEPTANCE HEREOF ASSENTS AND IS BOUND, A COPY OF WHICH TRUST AGREEMENT IS
AVAILABLE AT THE OFFICE OF THE TRUST'S PAYING AGENT, THE BANK OF NEW YORK, 000
XXXXXXX XXXXXX XXX XXXX, XXX XXXX 00000. THIS CERTIFICATE IS TRANSFERABLE AND
INTERCHANGEABLE BY THE REGISTERED OWNER IN PERSON OR BY HIS DULY AUTHORIZED
ATTORNEY AT THE OFFICE OF THE PAYING AGENT UPON SURRENDER OF THIS CERTIFICATE
PROPERLY ENDORSED OR ACCOMPANIED BY A WRITTEN INSTRUMENT OF TRANSFER AND ANY
OTHER DOCUMENTS THAT THE PAYING AGENT MAY REQUIRE FOR TRANSFER, IN FORM
SATISFACTORY TO THE PAYING AGENT AND PAYMENT OF THE FEES AND EXPENSES PROVIDED
IN THE TRUST AGREEMENT.
THIS CERTIFICATE IS NOT VALID UNLESS MANUALLY COUNTERSIGNED BY THE PAYING
AGENT.
WITNESS THE FACSIMILE SIGNATURE OF THE MANAGING TRUSTEE.
DATED:
DOLLAR GENERAL STRYPES TRUST
By:
------------------------------
Xxxxxx X. Xxxxxxx
Managing Trustee
COUNTERSIGNED:
THE BANK OF NEW YORK
as Paying Agent
By:
------------------------------
Authorized Signature
----------
(SM) Service xxxx of Xxxxxxx Xxxxx & Co., Inc.
A-1
32
THIS CERTIFICATE IS ISSUED UNDER AND IS SUBJECT TO THE TERMS, PROVISIONS AND
CONDITIONS OF THE AMENDED AND RESTATED TRUST AGREEMENT AMONG ML IBK POSITIONS,
INC., THE TRUSTEES NAMED THEREIN AND THE HOLDERS (AS DEFINED THEREIN) TO WHICH
THE HOLDER OF THIS CERTIFICATE BY VIRTUE OF THE ACCEPTANCE HEREOF ASSENTS AND IS
BOUND.
The following abbreviations, when used in the inscription on the face of
this Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM--as tenants in common UNIF GIFT MIN ACT--___Custodian___
TEN ENT--as tenants by the entireties (Cust) (Minor)
JT TEN-- as joint tenants with right under Uniform Gifts to
of survivorship and not as Minors Act _________
tenants in common (State)
Additional abbreviations also may be used though not in the above list.
For value received, _______________________ hereby sell, assign and transfer
unto
Please insert social securities or
other identifying number of assignee
---------------------------------------------
---------------------------------------------
--------------------------------------------------------------------------------
(Please Print or Typewrite Name and Address, Including Zip Code, of Assignee)
________ STRYPES of fractional undivided beneficial interest represented by the
within Certificate, and do hereby irrevocably constitute and appoint _________
Attorney to transfer the said STRYPES on the books of the within-named Trust
with full power of substitution in the premises.
Dated: ______________________
______________________________________
NOTICE: The Signature to this assignment must correspond with the name as
written upon the face of the Certificate in every particular, without
alteration or enlargement or any change whatever.
Signature Guaranteed: _____________________________________
The Signature(s) should be guaranteed by an eligible
guarantor institution (banks, stockbrokers, savings and loan
associations and credit unions with membership in an approved
signature guarantee medallion program), pursuant to S.E.C.
Rule 17Ad-15.
A-2
33
Exhibit B
Security and Pledge Agreement
B-1
34
Exhibit C
Forward Purchase Contract
C-1
35
Exhibit D
Fund Indemnity Agreement
D-1
36
Exhibit E
Administration Agreement
E-1
37
Exhibit F
Paying Agent Agreement
F-1
