EXHIBIT 1.1
AUTOZONE, INC.
COMMON STOCK
(PAR VALUE $.01 PER SHARE)
UNDERWRITING AGREEMENT
(U.S. VERSION)
----------------------
November , 1997
Xxxxxxx, Xxxxx & Co.,
Xxxxxx Brothers Inc.,
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation,
Xxxxxx Xxxx LLC,
Xxxxxx Xxxxxxx & Co. Incorporated
As Representatives for each of
the several Underwriters
named in Schedule 1 hereto,
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The stockholders of AutoZone, Inc., a Nevada corporation ("the
Company"), named in Schedule 2 hereto (the "Selling Stockholders") propose to
sell to the U.S. Underwriters named in Schedule 1 hereto (the "U.S.
Underwriters") an aggregate of shares (the "Firm Shares") of the
Company's Common Stock, par value $0.01 per share (the "Common Stock"). In
addition, the Selling Stockholders propose to grant to the U.S. Underwriters
an option to purchase up to an additional shares of Common Stock on the
terms and for the purposes set forth in Section 3 hereof (the "Option
Shares"). The Firm Shares and the Option Shares, if purchased, are
hereinafter collectively called the "Shares". This is to confirm the
agreement concerning the purchase of the Shares from the Selling Stockholders
by the U.S. Underwriters.
It is understood and agreed to by all parties that the Company and the
Selling Stockholders are concurrently entering into an agreement (the
"International Underwriting Agreement") providing for the sale by the Selling
Stockholders of up to a total of shares of Common Stock (the
"International Shares"), including the overallotment option thereunder,
through arrangements with certain underwriters outside the United States (the
"International Underwriters"), for whom Xxxxxxx Xxxxx International, Xxxxxx
Brothers International (Europe), Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation, Xxxxxx Xxxx LLC and Xxxxxx Xxxxxxx & Co. International Limited,
are acting as representatives. The U.S. Underwriters and the International
Underwriters are simultaneously entering into an Agreement between U.S. and
International Underwriting Syndicates (the "Agreement between Syndicates")
which provides, among other things, for the transfer of shares of Common
Stock between the two syndicates.
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Two forms of prospectus are to be used in connection with the offering
and sale of shares of Common Stock contemplated by the foregoing, one
relating to the Shares hereunder and the other relating to the International
Shares. The latter form of prospectus will be identical to the former
except for certain substitute pages as included in the registration statement
and amendments thereto as mentioned below. Except as used in Sections 3, 4,
5, 11 and 13 herein, and except as the context may otherwise require,
references herein to the Shares shall include all the shares of Common Stock
which may be sold pursuant to either this Agreement or the International
Underwriting Agreement, and references herein to any prospectus whether in
preliminary or final form, and whether as amended or supplemented, shall
include both the U.S. and the international versions thereof.
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The
Company represents and warrants (at and as of the date hereof and at and as
of each Delivery Date (as defined in Section 5 hereof)) to, and agrees with,
each of the U.S. Underwriters that:
(a) A registration statement on Form S-3 (File No. 333- ) in
respect of the Firm Shares and Option Shares has been filed with the
Securities and Exchange Commission (the "Commission"); such registration
statement in the form heretofore delivered to you, as representatives
for each of the several U.S. Underwriters (the "Representatives"), has
been declared effective by the Commission in such form; no other
document with respect to such registration statement (or document
incorporated by reference therein) has heretofore been filed with the
Commission; and no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in such registration statement or filed
with the Commission pursuant to Rule 424(a) of the rules and regulations
of the Commission under the Securities Act of 1933, as amended (the
"Act"), being hereinafter called a "Preliminary Prospectus"); the
various parts of such registration statement, including all exhibits
thereto and including (i) the information contained in the form of final
prospectus filed with the Commission pursuant to Rule 424(b) under the
Act in accordance with Section 6(a) hereof and deemed by virtue of Rule
430A under the Act to be part of the registration statement at the time
it was declared effective, (ii) the documents incorporated by reference
in the prospectus contained in the registration statement at the time
such part of the registration statement became effective, each as
amended at the time such part of the registration statement became
effective, and (iii) any post-effective amendment or amendments to the
registration statement filed pursuant to Rule 462 under the Act, being
hereinafter called the "Registration Statement"; such final prospectus,
in the form filed pursuant to Rule 424(b) under the Act, being
hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any document filed after the
date of such Preliminary Prospectus or Prospectus, as the case may be,
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; and any reference to any amendment to
the Registration Statement shall be deemed to refer to and include any
annual report of the Company filed pursuant to Section 13(a) or 15(d) of
the Exchange Act after the effective date of the Registration Statement
that is incorporated by reference in the Registration Statement;
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(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; PROVIDED,
HOWEVER, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by a U.S. Underwriter
through the Representatives or by a Selling Stockholder expressly for
use therein;
(c) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder and
do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; PROVIDED, HOWEVER, that
this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by a U.S. Underwriter through the
Representatives or by a Selling Stockholder expressly for use therein;
(d) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; and any further documents so filed and
incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents become effective or are filed
with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading;
(e) Since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, neither the
Company nor any of its subsidiaries has sustained any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus; and, since such date, there has
not been any change in the capital stock (except for any increase due to
the exercise of stock options which were outstanding since such date
through November , 1997, or as a result of issuances of shares of
Common Stock pursuant to the Company's Stock Purchase Plan) or any
increase in excess of $3 million in the consolidated long-term debt of
the Company and its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, business, management, financial position,
stockholders' equity or results of operations
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of the Company and its subsidiaries taken as a whole, otherwise than as
set forth or contemplated in the Prospectus;
(f) The Company and its subsidiaries have good and marketable title
in fee simple to all real property and good and marketable title to all
personal property owned by them, in each case free and clear of all
liens, encumbrances and defects except such as are described in the
Prospectus or such as would not and do not have, either individually or
in the aggregate, any material adverse effect on the general affairs,
business, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a
whole; and any real property and buildings held under lease by the
Company and its subsidiaries are held by them under valid, subsisting
and enforceable leases with such exceptions as would not and do not
have, either individually or in the aggregate, any material adverse
effect on the general affairs, business, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole;
(g) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Nevada,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of business and
is in good standing under the laws of each other jurisdiction in which
it owns or leases properties, or conducts any business, so as to require
such qualification, or is subject to no material liability or disability
by reason of the failure to be so qualified in any such jurisdiction;
each of the Company's subsidiaries that is a corporation has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of incorporation, with power and
authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as
a foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction; the
Company's subsidiary that is a limited partnership has been duly
organized and is validly existing as a limited partnership in good
standing under the laws of the State of Delaware with power and
authority (partnership and other) to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as
a foreign limited partnership for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it owns
or leases properties, or conducts any business, so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction; and
all of the outstanding shares of capital stock of, or equity interests
in, each subsidiary of the Company have been duly and validly authorized
and issued, are fully paid and non-assessable and are owned by the
Company, directly or indirectly, free and clear of all liens,
encumbrances, equities or claims, [except for 139 shares of the 1,200
outstanding shares of preferred stock of AutoZone Development
Corporation];
(h) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company (including the Shares to be sold by the Selling Stockholders to
the U.S. Underwriters hereunder and to the International Underwriters
under the International Underwriting Agreement) have been duly and
validly authorized and issued, are fully paid and non-assessable and
conform to the description of the Common Stock contained in the
Prospectus;
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(i) The execution, delivery and performance by the Company of this
Agreement and the International Underwriting Agreement and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement, stock option or other employee
benefit plan, or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such action
result in any violation of the provisions of the Articles of
Incorporation or By-laws of the Company or any of its subsidiaries or
any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their respective properties; no consent,
approval, authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for the
execution, delivery and performance by the Company of this Agreement and
the International Underwriting Agreement and the consummation of the
transactions contemplated hereby and thereby, except the registration
under the Act of the Shares and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the U.S. Underwriters and the
International Underwriters; and this Agreement and the International
Underwriting Agreement have been duly authorized, executed and delivered
by the Company;
(j) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is subject which, if determined adversely to the
Company or any of its subsidiaries, would, either individually or in the
aggregate, have a material adverse effect on the general affairs,
business, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a
whole; and, to the best of the Company's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened
by others;
(k) There are no contracts or other documents of a character required
to be described in the Prospectus or filed as exhibits to the Registration
Statement by the Act or by the rules and regulations of the Commission
thereunder which have not been described in the Prospectus or filed as
exhibits to the Registration Statement; and
(l) Ernst & Young, who have certified certain financial statements
of the Company, are independent public accountants as required by the Act
and the rules and regulations of the Commission thereunder.
2. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE SELLING
STOCKHOLDERS. Each Selling Stockholder severally represents and warrants
(at and as of the date hereof and at and as of each Delivery Date) to, and
agrees with, each of the U.S. Underwriters that:
(a) Such Selling Stockholder holds the Shares being sold by such
Selling Stockholder hereunder and under the International Underwriting
Agreement, free and clear of all liens, encumbrances, equities or
claims; immediately prior to each Delivery Date such Selling Stockholder
will hold the Shares being sold by such Selling Stockholder hereunder
and under the International Underwriting Agreement on such date, free
and clear of all liens, encumbrances, equities or claims; and upon
delivery of such Shares and payment therefor
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pursuant hereto and the International Underwriting Agreement, the U.S.
Underwriters and International Underwriters will hold such Shares, free
and clear of all liens, encumbrances, equities or claims, assuming that
such U.S. Underwriters and International Underwriters purchase such
Shares in good faith and without notice of any such lien, encumbrance,
equity or claim or other adverse claim within the meaning of the Uniform
Commercial Code as in effect in the State of New York;
(b) Such Selling Stockholder has full right, power and authority to
enter into this Agreement and the International Underwriting Agreement;
the execution, delivery and performance of this Agreement and the
International Underwriting Agreement and the consummation by such
Selling Stockholder of the transactions contemplated hereby and thereby
will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement, stock option or other employee
benefit plan, or other agreement or instrument to which such Selling
Stockholder is a party or by which such Selling Stockholder is bound or
to which any of the property or assets of such Selling Stockholder is
subject, nor will such action result in any violation of the provisions
of the charter, bylaws, deed of trust, partnership agreement or other
constituent documents, if any, relating to such Selling Stockholder or
any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over such Selling
Stockholder or any properties of such Selling Stockholder; and no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required for
the execution, delivery and performance by such Selling Stockholder of
each of this Agreement or the International Underwriting Agreement and
the consummation of the transactions contemplated hereby and thereby,
except the registration under the Act of the Shares and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the U.S. Underwriters and
the International Underwriters; and this Agreement and the International
Underwriting Agreement have been duly authorized, executed and delivered
by the Selling Stockholders;
(c) To the extent that any statements or omissions made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or
any amendment or supplement thereto are made in reliance upon and in
conformity with information furnished in writing to the Company by such
Selling Stockholder expressly for use therein, the Registration
Statement and such Preliminary Prospectus do not, and the Prospectus and
any amendments or supplements thereto will not, as of the applicable
effective date or as of the applicable filing date, as the case may be,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and
(d) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares.
3. PURCHASE OF SHARES. On the basis of the representations and
warranties contained in, and subject to the terms and conditions of, this
Agreement, each Selling Stockholder hereby, severally and not jointly, agrees
to sell the number of Firm Shares set forth
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opposite that U.S. Underwriter's name in Schedule 1 hereto. Each U.S.
Underwriter shall be obligated to purchase from each Selling Stockholder that
number of Firm Shares which represents the same proportion of the number of
Firm Shares to be sold by each Selling Stockholder as the number of Firm
Shares set forth opposite the name of such U.S. Underwriter in Schedule 1
represents of the total number of Firm Shares to be purchased by all of the
U.S. Underwriters pursuant to this Agreement. The respective purchase
obligations of the U.S. Underwriters with respect to the Firm Shares shall be
rounded among the U.S. Underwriters to avoid fractional shares, as the
Representatives may determine.
In addition, the Selling Stockholders grant to the U.S. Underwriters
an option to purchase an aggregate of up to _________ shares of Option Shares
as set forth in Schedule 2 hereto. Such option is granted solely for the
purpose of covering over-allotments in the sale of Firm Shares and is
exercisable as provided in Section 5 hereof. Option Shares shall be
purchased severally for the account of the U.S. Underwriters in proportion to
the number of Firm Shares set forth opposite the name of such U.S.
Underwriters in Schedule 1 hereto. The respective purchase obligations of
each U.S. Underwriter with respect to the Option Shares shall be adjusted by
the Representatives so that no U.S. Underwriter shall be obligated to
purchase Option Shares other than in 100 share amounts.
The price of both the Firm Shares and any Option Shares shall be
$ _______ per share.
The Selling Stockholders shall not be obligated to deliver any of
the Shares to be delivered on the First Delivery Date or the Second Delivery
Date (as hereinafter defined), as the case may be, except upon payment for
all the Shares to be purchased on such Delivery Date as hereinafter provided.
4. OFFERING OF SHARES BY THE U.S. UNDERWRITERS. Upon the
authorization by the Representatives of the release of the Firm Shares, the
several U.S. Underwriters propose to offer the Firm Shares for sale upon the
terms and conditions set forth in the Prospectus.
5. DELIVERY OF AND PAYMENT FOR THE SHARES. Delivery of and
payment for the Firm Shares shall be made in New York, New York, at 10:00
A.M., New York City time, on the [third] full business day following the date
of this Agreement or at such other date or place as shall be determined by
agreement between the Representatives and the Selling Stockholders. This
date and time are sometimes referred to as the "First Delivery Date". On the
First Delivery Date, each Selling Stockholder shall deliver or cause to be
delivered certificates representing the Firm Shares to the Representatives
for the account of each U.S. Underwriter against payment to or upon the
order of such Selling Stockholder of the purchase price for the Firm Shares
by wire transfer or certified or official bank check or checks payable in
immediately available (same day) funds. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a
further condition of the obligation of each U.S. Underwriter hereunder.
Upon delivery, the Firm Shares shall be registered in such names and in such
denominations as the Representatives shall request in writing not less than
two full business days prior to the First Delivery Date. For the purpose of
expediting the checking and packaging of the certificates for the Firm
Shares, the Selling Stockholders shall make the certificates representing the
Firm Shares available for inspection by the Representatives in New York, New
York, not later than 2:00 P.M., New York City time, on the business day prior
to the First Delivery Date.
At any time on or before the thirtieth day after the date of this
Agreement, the option granted in Section 3 hereof may be exercised by written
notice being given to the Selling
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Stockholders by the Representatives. Such notice shall set forth the
aggregate number of Option Shares as to which the option is being exercised,
the names in which the Option Shares are to be registered, the denominations
in which the Option Shares are to be issued and the date and time, as
determined by the Representatives, when the Option Shares are to be
delivered; PROVIDED, HOWEVER, that this date and time shall not be earlier
than the First Delivery Date nor earlier than the second business day after
the date on which the option shall have been exercised nor later than the
third business day after the date on which the option shall have been
exercised. The date and time the Option Shares are delivered are sometimes
referred to as the "Second Delivery Date", and the First Delivery Date and the
Second Delivery Date are sometimes each referred to as a "Delivery Date".
Delivery of and payment for the Option Shares shall be
made in New York, New York (or at such other place as shall be
determined by agreement between the Representatives and the Selling
Stockholders) at 10:00 A.M., New York City time, on the Second
Delivery Date. On the Second Delivery Date, each Selling
Stockholder shall deliver or cause to be delivered the certificates
representing the Option Shares to the Representatives for the
account of each U.S. Underwriter against payment to or upon the
order of such Selling Stockholder of the purchase price for the
Option Shares by wire transfer or certified or official bank check
or checks payable in immediately available (same day) funds. Time
shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the
obligation of each U.S. Underwriter hereunder. Upon delivery, the
Option Shares shall be registered in such names and in such
denominations as the Representatives shall request in the aforesaid
written notice. For the purpose of expediting the checking and
packaging of the certificates for the Option Shares, the Selling
Stockholders shall make the certificates representing the Option
Shares available for inspection by the Representatives in New York,
New York, not later than 2:00 P.M., New York City time, on the
business day prior to the Second Delivery Date.
6. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees:
(a) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Act not later than the Commission's close of business on the
second business day following the execution and delivery of this
Agreement or, if applicable, such earlier time as may be required by
Rule 430A(a)(3) under the Act; to file promptly with the Commission any
amendment to the Registration Statement or the Prospectus or any
supplement to the Prospectus that may, in the judgment of the Company or
the Representatives, be required by the Act or requested by the
Commission; to make no further amendment or any supplement to the
Registration Statement or Prospectus prior to the last Delivery Date
which shall be disapproved by the Representatives promptly after
reasonable notice thereof; to advise the Representatives promptly after
it receives notice thereof, of the time when the Registration Statement,
or any amendment thereto, has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed
and to furnish the Representatives with copies thereof; to file promptly
all reports and any definitive proxy or information statements required
to be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
the Prospectus and for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Shares; to
advise the Representatives promptly after it receives notice thereof of
the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or
Prospectus, of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, of the initiation or threatening
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of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration
Statement or the Prospectus or for additional information; and, in the
event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or Prospectus or
suspending any such qualification, to use promptly its best efforts to
obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Shares for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to continue such qualifications in
effect in such jurisdictions for as long as may be necessary to complete
the distribution of the Shares; PROVIDED that in connection therewith
the Company shall not be required to qualify as a foreign corporation or
to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the business day
next succeeding the date of this Agreement and from time to time to
furnish promptly to each of the Representatives and to counsel for the
U.S. Underwriters a signed copy of the Registration Statement as
originally filed with the Commission, and each amendment thereto filed
with the Commission, including all consents and exhibits filed
therewith; prior to 10:00 a.m., New York City time, on the business day
next succeeding the date of this Agreement and from time to time to
deliver promptly to the Representatives in New York City such number of
the following documents as the Representatives shall reasonably request:
(i) conformed copies of the Registration Statement as originally filed
with the Commission and each amendment thereto (in each case excluding
exhibits other than this Agreement and the computation of per share
earnings), (ii) each Preliminary Prospectus, the Prospectus and any
amended or supplemented Prospectus and (iii) any document incorporated
by reference in the Prospectus (excluding exhibits thereto); and, if the
delivery of a prospectus is required at any time prior to the expiration
of nine months after the time of issue of the Prospectus in connection
with the offering or sale of the Shares and if at such time any event
shall have occurred as a result of which the Prospectus as then amended
or supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the
Act or the Exchange Act, to notify the Representatives and upon the
Representatives' request to file such document and to prepare and
furnish without charge to each U.S. Underwriter and to any dealer in
securities as many copies as the Representatives may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance, and in case any U.S. Underwriter is required to deliver a
prospectus in connection with sales of any of the Shares at any time
nine months or more after the time of issue of the Prospectus, upon the
Representatives' request but at the expense of such U.S. Underwriter, to
prepare and deliver to such U.S. Underwriter as many copies as the
Representatives may request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Act;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earning statement of the Company (which need not
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be audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of
the Company, Rule 158 under the Act);
(e) During the period beginning from the date hereof and continuing
to and including the date 60 days after the date of the Prospectus not,
directly or indirectly, to offer, sell, contract to sell or otherwise
transfer or dispose of any capital stock of the Company or securities
convertible or exchangeable or exercisable for capital stock of the
Company (other than (A) Shares to be sold to the U.S. Underwriters and
the International Underwriters and (B) Common Stock issuable pursuant to
employee stock option plans or the employee stock purchase plan, in each
case as in effect on the date hereof);
(f) For so long as any reports or proxy or information statements
are required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), to furnish to its stockholders as
soon as practicable after the end of each fiscal year an annual report
(including a balance sheet and statements of income, stockholders'
equity and cash flow of the Company certified by independent public
accountants);
(g) During a period of three years from the effective date of the
Registration Statement, to furnish to the Representatives copies of all
reports or other communications (financial or other) furnished to
stockholders, and deliver to the Representatives as soon as they are
available, copies of any reports and financial statements furnished to
or filed with the Commission or any national securities exchange on
which any class of securities of the Company is listed; and
(h) To use its best efforts to comply with the rules and
regulations of the New York Stock Exchange with respect to the offering
of the Shares.
7. FURTHER AGREEMENTS OF THE SELLING STOCKHOLDERS. Each Selling
Stockholder agrees:
(a) During the period beginning from the date hereof and continuing
to and including the date 60 days after the date of the Prospectus not,
directly or indirectly, to offer, sell, contract to sell or otherwise
transfer or dispose of any capital stock of the Company or securities
convertible or exchangeable or exercisable for capital stock of the
Company (other than Shares to be sold to the U.S. Underwriters and the
International Underwriters), without the prior written consent of the
Representatives;
(b) That the obligations of such Selling Stockholder hereunder
shall not be terminated by any act of such Selling Stockholder, by
operation of law or, in the case of an individual, by the death or
incapacity of such individual Selling Stockholder or, in the case of a
partnership, by the termination of such partnership, or, in the case of
a corporation, the dissolution or liquidation of such corporation, or,
in the case of a trust, by the death or incapacity of any executor or
trustee or the termination of such trust or the occurrence of any other
event;
(c) To deliver to the Representatives prior to the First Delivery
Date a properly completed and executed United States Treasury Department
Form W-9 (or other applicable form or statement specified by Treasury
Department regulations in lieu thereof); and
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(d) To advise the Representatives promptly of any material adverse
change, or any development involving a prospective material adverse
change, in or affecting the accuracy of any of its or his
representations or warranties or its or his inability to perform the
agreements and indemnities herein at any time prior to payment being
made to such Selling Stockholder on either Delivery Date and take such
steps as may be reasonably requested by the Representatives to remedy
any such material adverse change or inability.
8. EXPENSES. The Selling Stockholders, jointly and severally,
covenant and agree with the several U.S. Underwriters and the International
Underwriters that the Selling Stockholders will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's counsel
and accountants in connection with the registration of the Shares under the
Act and all other expenses in connection with the preparation, printing and
filing of the Registration Statement, any Preliminary Prospectus and the
Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the U.S. Underwriters and any dealers; (ii)
the cost of delivering, printing or producing any Agreement among
Underwriters (U.S. Version), Agreement among Underwriters (International
Version), this Agreement, the International Underwriting Agreement, the
Agreement between U.S. and International Underwriting Syndicates, any Selling
Agreement, the Blue Sky Memorandum and any other documents in connection with
the offering, purchase, sale and delivery of the Shares; (iii) all expenses
in connection with the qualification of the Shares for offering and sale
under state securities laws as provided in Section 6(b) hereof, including the
fees and disbursements of counsel for the U.S. Underwriters in connection
with such qualification and in connection with the Blue Sky Memorandum; (iv)
the filing fees incident to securing any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Shares; (v) the cost of preparing stock certificates; (vi) the cost and
charges of any transfer agent or registrar; (vii) any stock transfer taxes
payable in connection with sales of Shares to the U.S. Underwriter and
International Underwriters and (viii) all other costs and expenses incident
to the performance of the Company's and the Selling Stockholders' obligations
hereunder which are not otherwise specifically provided for in this Section
8. It is understood, however, that, except as provided in this Section 8,
Section 10 and Section 13 hereof, the U.S. Underwriters will pay all of their
own costs and expenses, including the fees of their counsel, stock transfer
taxes on resale of any of the Shares by them, and any advertising expenses in
connection with any offers they may make.
9. CONDITIONS OF U.S. UNDERWRITERS' OBLIGATIONS. The respective
obligations of the U.S. Underwriters hereunder, as to the Shares to be
delivered on each Delivery Date, shall be subject, in their discretion, to
the accuracy, when made and on and as of such Delivery Date, of all
representations and warranties of the Company and each of the Selling
Stockholders contained herein, to the performance by the Company and each of
the Selling Stockholders of all of their respective obligations hereunder,
and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations of the Commission under the Act
and in accordance with Section 6(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction;
(b) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the
International Underwriting Agreement, the Registration
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Statement and the Prospectus, and all other legal matters relating to
this Agreement and the International Underwriting Agreement and the
transactions contemplated hereby and thereby, shall be reasonably
satisfactory in all material respects to Xxxxxxx Xxxxxxx & Xxxxxxxx,
counsel for the U.S. Underwriters and the International Underwriters,
and the Company and the Selling Stockholders shall have furnished to
such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters;
(c) Xxxxxxx Xxxxxx, Nevada counsel for the Company, shall have
furnished to the Representatives their written opinion, addressed to the
U.S. Underwriters and the International Underwriters dated such
Delivery Date, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation under the laws of the State of Nevada,
with corporate power and authority to own its properties and
conduct its business as described in the Prospectus;
(ii) The Company has authorized capital stock as set forth in
the Prospectus, and all of the issued shares of capital stock of
the Company (including the Shares being delivered on such Delivery
Date) have been duly and validly authorized and issued and are
fully paid and nonassessable; and the Shares conform to the
description of the Common Stock contained in the Prospectus;
(iii) This Agreement and the International Underwriting
Agreement have been duly authorized, executed and delivered by the
Company;
(iv) The execution, delivery and performance by the Company of
this Agreement and the International Underwriting Agreement and the
consummation of the transactions herein and therein contemplated
will not result in any violation of the provisions of the Articles
of Incorporation or By-laws of the Company or any statute or of any
order, rule or regulation known to such counsel, which in its
experience is normally applicable to transactions of the type
contemplated by this Agreement and the International Underwriting
Agreement, of any court or governmental agency or body having
jurisdiction over the Company, any of its subsidiaries or any of
their respective properties; and
(v) No consent, approval, authorization, order, registration or
qualification of or with any state court or governmental agency or
body is required for the consummation by the Company of the
transactions contemplated by this Agreement and the International
Underwriting Agreement, except for such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the U.S. Underwriters.
In rendering such opinion, such counsel may state that such opinion
is limited to matters governed by Nevada law.
(d) Xxxxxx & Xxxxxxx, counsel for the Company, shall have furnished
to the Representatives their written opinion, addressed to the U.S.
Underwriters and the International Underwriters dated such Delivery
Date, in form and substance satisfactory to the Representatives, to the
effect that:
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(i) The Company has been duly incorporated and is validly
existing as a corporation under the laws of the State of Nevada,
with corporate power and authority to own its properties and
conduct its business as described in the Prospectus;
(ii) All of the issued shares of capital stock of the Company
(including the Shares being delivered on such Delivery Date) have
been duly and validly authorized and issued and are fully paid and
non-assessable;
(iii) This Agreement and the International Underwriting
Agreement have been duly authorized, executed and delivered by the
Company;
(iv) The execution, delivery and performance by the Company of
this Agreement and the International Underwriting Agreement and the
consummation of the transactions herein and therein contemplated
will not conflict with or result in a material breach or violation
of any of the terms or provisions of, or constitute a default
under, any agreement or instrument, or stock option or other
employee benefit plan listed or referred to in Items 4 or 10 of the
exhibits to the Company's Annual Report on Form 10-K for the fiscal
year ended August 30, 1997, nor will such action result in any
violation of any statute or of any order, rule or regulation known
to such counsel, which in its experience is normally applicable to
transactions of the type contemplated by this Agreement and the
International Underwriting Agreement, of any United States federal
or state court or governmental agency or body having jurisdiction
over the Company, any of its subsidiaries or any of their
respective properties;
(v) No consent, approval, authorization, order, registration or
qualification of or with any United States federal or state court
or governmental agency or body is required for the consummation by
the Company of the transactions contemplated by this Agreement and
the International Underwriting Agreement, except the registration
under the Act of the Shares, and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the U.S. Underwriters;
(vi) The documents incorporated by reference in the Prospectus
or any further amendment or supplement thereto made by the Company
prior to such Delivery Date (other than the financial statements
and related schedules therein, as to which such counsel need
express no opinion), when they became effective or were filed with
the Commission, as the case may be, complied as to form in all
material respect with the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder; and they have no reason to believe that any of such
documents, when such documents became effective or were so filed,
as the case may be, contained, in the case of a registration
statement which became effective under the Act, an untrue statement
of a material fact, or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, or, in the case of other documents which were filed
under the Exchange Act with the Commission, an untrue statement of
a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made when such documents were
so filed, not misleading; and
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(vii) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the Company
prior to such Delivery Date (other than the financial statements
and related schedules therein, as to which such counsel need
express no opinion) comply as to form in all material respects with
the requirements of the Act and the rules and regulations of the
Commission thereunder.
In addition, such counsel shall state that they have participated
in conferences with officers and other representatives of the Company,
and representatives of the independent public accountants for the
Company, at which conferences the contents of the Registration Statement
and the Prospectus and related matters were discussed and, although such
counsel is not passing upon, and does not assume any responsibility for,
the accuracy, completeness or fairness of the statements contained in
the Registration Statement or the Prospectus (except for the
information, to the extent it comprises matters of law or legal
conclusions, contained under the caption "Description of Capital Stock"
and except that such counsel shall confirm that the information
contained in the Prospectus under the caption "Certain United States Tax
Consequences to Non-United States Holders" is accurate), and such counsel
has not made any independent check or verification thereof, on the basis
of the foregoing, no facts have come to such counsel's attention that
have led such counsel to believe that (I), as of its effective date, the
Registration Statement or any further amendment thereto made by the
Company prior to such Delivery Date (other than the financial statements
and related schedules and other financial data in the Registration
Statement, as to which such counsel need express no opinion) contained
an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, (II) as of its date, the Prospectus or any
further amendment or supplement thereto made by the Company prior to
such Delivery Date (other than the financial statements and other
financial data in the Prospectus, as to which such counsel need
expressno opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, (III) any document incorporated by reference
in the Prospectus or any further amendment or supplement thereto made by
the Company prior to such Delivery Date (other than the financial
statements and related schedules therein, as to which such counsel need
express no opinion), when such document became effective or was filed
with the Commission, as the case may be, contained an untrue statement
of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading or (IV) as of such Delivery
Date, either the Registration Statement or the Prospectus (including, in
each case, any document incorporated by reference in the Prospectus) or
any further amendment or supplement thereto made by the Company prior to
such Delivery Date (other than the financial statements and related
schedules and other financial data in the Registration Statement or the
Prospectus, as to which such counsel need express no opinion) contains
an untrue statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and they do
not know of any amendment to the Registration Statement required to be
filed or of any contracts or other documents of a character required to
be filed as an exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus or required to be
described in the Registration Statement or the Prospectus which are not
filed or incorporated by reference or described as required.
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In rendering such opinion, such counsel may state that such opinion
is limited to matters governed by U.S. federal law, New York law, and
Nevada law (with respect to the opinions to be rendered pursuant to
Section 9(d)(i), (ii) and (iii) hereof as to which such counsel may
state that they have relied exclusively upon the opinion of Xxxxxxx
Xxxxxx referred to in Section 9(c) hereof to the extent such matters are
governed by Nevada law).
(e) Xxxxx X. Xxxxxxxxx, Esq., Senior Vice President of the Company
and counsel for the Company, shall have furnished to the Representatives
his written opinion, addressed to the U.S. Underwriters and the
International Underwriters dated such Delivery Date, in form and
substance satisfactory to the Representatives, to the effect that:
(i) Each of the Company and its subsidiaries has been duly
organized and is validly existing as a corporation or limited
partnership under the laws of the jurisdiction of its organization,
with corporate or partnership, as the case may be, power and
authority to own its properties and conduct its business as
described in the Prospectus;
(ii) Each of the Company and its subsidiaries has been duly
qualified as a foreign corporation or limited partnership, as the
case may be, for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns
or leases properties, or conducts any business, so as to require
such qualification, or is subject to no material liability or
disability by reason of failure to be so qualified in any such
jurisdiction (such counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel and corporate
service agents and in respect of matters of fact upon certificates
of officers of the Company, provided that such counsel shall state
that he believes that the U.S. Underwriters and the International
Underwriters and he are justified in relying upon such opinions and
certificates);
(iii) All of the outstanding shares of capital stock of, or
equity interests in, each subsidiary of the Company have been duly
and validly authorized and issued, are fully paid and
non-assessable and are owned, directly or indirectly, by the
Company, and, to the best knowledge of such counsel, are owned free
and clear of all liens, encumbrances, equities or claims[, except
for 139 shares of the 1,200 outstanding shares of preferred stock
of AutoZone Development Corporation];
(iv) To the best of such counsel's knowledge (after reasonable
investigation) and other than as set forth in the Prospectus, there
are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the subject
which, either individually or in the aggregate, are reasonably
likely to have a material adverse effect on the general affairs,
business, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries; and, to
the best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others; and
(v) The execution, delivery and performance by the Company of
this Agreement and the International Underwriting Agreement and the
consummation of the transactions herein and therein contemplated
will not conflict with or result in a material breach or violation
of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement,
stock option or other Employee
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benefit plan, or other material agreement or instrument known to such
counsel to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any
violation of the provisions of the Articles of Incorporation or
By-laws of the Company or any of its subsidiaries or any statute or
of any order, rule or regulation known to such counsel of any
United States federal or state court or governmental agency or body
having jurisdiction over the Company, any of its subsidiaries or
any of their respective properties.
(f) Xxxxxxx Xxxxxx, Nevada counsel to the Selling Stockholders,
shall have furnished to the Representatives their written opinion,
addressed to the U.S. Underwriters and the International Underwriters
dated such Delivery Date, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The execution, delivery and performance of this Agreement
and the International Underwriting Agreement and the consummation
by each Selling Stockholder of the transactions contemplated hereby
and thereby will not result in any violation of any statute or any
order, rule or regulation known to such counsel, that in their
experience is normally applicable to transactions of the type
contemplated by this Agreement and the International Underwriting
Agreement, of any state court or governmental agency or body having
jurisdiction over such Selling Stockholder or the property of such
Selling Stockholder; and
(ii) No consent, approval, authorization, order, registration
or qualification of or with any state court or governmental agency
or body is required for the execution, delivery and performance by
each Selling Stockholder of this Agreement or the International
Underwriting Agreement and the consummation by such Selling
Stockholder of the transactions contemplated hereby and thereby,
except for such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the
Shares by the U.S. Underwriters.
In rendering such opinion, such counsel may state that such opinion
is limited to matters governed by Nevada law.
(g) Xxxxxx & Xxxxxxx, counsel to the Selling Stockholders, shall
have furnished to the Representatives their written opinion, addressed
to the U.S. Underwriters and the International Underwriters dated such
Delivery Date, in form and substance satisfactory to the
Representatives, to the effect that:
(i) This Agreement and the International Underwriting Agreement
have been duly authorized, executed and delivered by or on behalf
of each Selling Stockholder;
(ii) Each of Pittco Associates, L.P., a Delaware limited
partnership, Pittco Associates II, L.P., a Delaware limited
partnership, and KKR Partners II, L.P., a Delaware limited
partnership (together, the "Common Stock Partnerships") has full
right, power and authority to enter into this Agreement and the
International Underwriting Agreement; the execution, delivery and
performance of this Agreement and the International Underwriting
Agreement and the consummation by such Common Stock Partnership of
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the transactions contemplated hereby and thereby will not result in
any violation of the partnership agreement relating to such Common
Stock Partnership or any statute or any order, rule or regulation
known to such counsel, that in their experience is normally
applicable to transactions of the type contemplated by this
Agreement and the International Underwriting Agreement of any
United States federal or state court or governmental agency or body
having jurisdiction over such Common Stock Partnership or the
property of such Common Stock Partnership;
(iii) No consent, approval, authorization, order, registration
or qualification of or with any such United States federal or state
court or governmental agency or body is required for the execution,
delivery and performance by each Selling Stockholder of this
Agreement or the International Underwriting Agreement and the
consummation by such Selling Stockholder of the transactions
contemplated hereby and thereby, except the registration of the
Shares under the Act, and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the U.S. Underwriters; and
(iv) Upon delivery of the Shares and payment therefor pursuant
hereto, the U.S. Underwriters will hold such Shares, free and clear
of all liens, encumbrances, equities or claims, assuming that such
U.S. Underwriters have purchased such Shares in good faith and
without notice of any such lien, encumbrance, equity or claim or
any other adverse claim within the meaning of the Uniform
Commercial Code as in effect in the State of New York.
In rendering such opinion, such counsel may (i) state that such
opinion is limited to matters governed by U.S. federallaw, New York law
and the Delaware Revised Uniform Limited Partnership Act and (ii) rely
as to matters of fact upon the representations and warranties of the
Selling Stockholders contained herein as to the opinions set forth in
clauses (i) and (iv) above.
(h) At 10:00 A.M., New York City time, on the effective date of the
Registration Statement and of the most recently filed post-effective
amendment to the Registration Statement, if any, and also on each
Delivery Date, Ernst & Young shall have furnished to the Representatives
a "comfort" letter or letters, addressed to the U.S. Underwriters and the
International Underwriters and dated the respective date of delivery
thereof, as to such matters as the Representatives may reasonably
request and in form and substance satisfactory to the Representatives;
(i) (i) The Company and its subsidiaries shall not have sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference
with its business from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus, and (ii) since the respective dates as
of which information is given in the Prospectus there shall not have
been any change in the capital stock (except for any increase due to the
exercise of stock options which were outstanding as of November __, 1997
or as a result of issuances of shares of Common Stock pursuant to the
Company's Stock Purchase Plan) or any increase in excess of $3 million
in the consolidated long-term debt of the Company and its subsidiaries
or any
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change, or any development involving a prospective change, in or affecting
the general affairs, business, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such case
described in clause (i) or (ii), is in the Representatives' judgment so
material and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Shares being
delivered on such Delivery Date on the terms and in the manner
contemplated in the Prospectus;
(j) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in the
Common Stock on the New York Stock Exchange shall have been suspended;
(ii) trading in securities generally on the New York Stock Exchange
shall have been suspended or minimum prices shall have been established
on such Exchange by the Commission, by such Exchange or by any other
regulatory body or governmental authority having jurisdiction; (iii) a
banking moratorium shall have been declared by Federal or New York State
authorities; (iv) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities
involving the United States or there shall have been a declaration of a
national emergency or war by the United States, if the effect of any
such event specified in this clause (iv) in the reasonable judgment of
the Representatives makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Shares being delivered
on such Delivery Date on the terms and in the manner contemplated in the
Prospectus; or (v) there shall have occurred such a material adverse
change in general economic, political or financial conditions (or the
effect of international conditions on the financial markets in the
United States shall be such) which, in the reasonable judgment of the
Representatives, would materially and adversely affect the financial
markets or the market for the Shares;
(k) The Company shall have furnished or caused to be furnished to
the Representatives on such Delivery Date certificates of officers of
the Company satisfactory to the Representatives as to the accuracy of
the representations and warranties of the Company herein at and as of
such Delivery Date, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Delivery Date,
as to the matters set forth in Sections 9(a) and 9(i) hereof and as to
such other matters as the Representatives may reasonably request;
(l) Each Selling Stockholder shall have furnished to the
Representatives on such Delivery Date a certificate as to the accuracy
of the representations and warranties of such Selling Stockholder
contained herein at and as of such Delivery Date, as to the performance
by such Selling Stockholder of all of its or his obligations hereunder
to be performed by such Selling Stockholder at or prior to such Delivery
Date and as to such other matters as the Representatives may reasonably
request;
(m) The Company shall have complied with the provisions of Section
6(c) hereof with respect to the furnishing of Prospectuses on the
business day next succeeding the date of this Agreement;
(n) Each of , , ,
and shall have executed and delivered to the U.S.
Underwriters and the International Underwriters a letter to the effect
that during a period of 60 days from the date hereof, without the prior
written consent of the U.S. Underwriters and the International
-18-
Underwriters, such person will not, directly or indirectly, offer,
sell, contract to sell or otherwise transfer or dispose of any shares
of Common Stock or any securities convertible or exchangeable or
exercisable for Common Stock beneficially owned as of the date hereof
or acquired hereafter or any interest therein, other than any pledge of
such shares in connection with a bona fide loan transaction which does not
permit the pledgee, directly or indirectly, to offer, sell, contract to
sell or otherwise transfer or dispose of any interest in such shares
during such 60-day period; and
(o) The closing under the International Underwriting Agreement
shall have occurred concurrently with the closing hereunder on the First
Delivery Date.
10. INDEMNIFICATION AND CONTRIBUTION. (a) The Company shall
indemnify and hold harmless each U.S. Underwriter and each person, if any,
who controls any U.S. Underwriter within the meaning of the Act, from and
against any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of Shares in
connection herewith), to which that U.S. Underwriter or controlling person
may become subject, under the Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus or in
any amendment or supplement thereto or (ii) 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 shall reimburse each
U.S. Underwriter and each such controlling person for any legal or other
expenses reasonably incurred by that U.S. Underwriter or controlling person
in connection with investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action as such expenses are
incurred; PROVIDED, HOWEVER, that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged
untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any U.S.
Underwriter through the Representatives expressly for use therein; and
PROVIDED, FURTHER, that as to any Preliminary Prospectus this indemnity
agreement shall not inure to the benefit of any U.S. Underwriter or any
person controlling that U.S. Underwriter on account of any loss, claim,
damage, liability or action arising from the sale of Shares to any person by
that U.S. Underwriter if that U.S. Underwriter failed to send or give a
copy of the Prospectus, as the same may be amended or supplemented, to that
person within the time required by the Act, and the untrue statement or
alleged untrue statement of a material fact or omission or alleged omission
to state a material fact in such Preliminary Prospectus was corrected in the
Prospectus, unless such failure resulted from non-compliance by the Company
with Section 6(c) hereof. For purposes of the last proviso to the
immediately preceding sentence, the term "Prospectus" shall not be deemed to
include the documents incorporated therein by reference, and no Underwriter
shall be obligated to send or give any supplement or amendment to any
document incorporated by reference in any Preliminary Prospectus or the
Prospectus to any person. The foregoing indemnity agreement is in addition
to any liability which the Company may otherwise have to any U.S.
Underwriter or to any controlling person of that U.S. Underwriter. The
Company reaffirms its indemnification of the Selling Stockholders pursuant
to that certain Registration Rights Agreement entered into by the Company,
the Selling Stockholders and certain other holders of Common Stock, dated as
of February 18, 1987, and as amended to date.
-19-
(b) The Selling Stockholders (subject to the limitation on indemnity
contained in the last sentence of this Section 10(b)), severally and not
jointly, shall indemnify and hold harmless each U.S. Underwriter and each
person, if any, who controls any U.S. Underwriter within the meaning of the
Act, from and against any loss, claim, damage or liability, joint or
several, or action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to purchases and sales of
Shares in connection herewith), to which that U.S. Underwriter or
controlling person may become subject, under the Act or otherwise, insofar
as such loss, claim, damage, liability or action arises out of, or is based
upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration Statement or
the Prospectus or in any amendment or supplement thereto or (ii) 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,
but in each case only to the extent that the untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon
and in conformity with information furnished in writing to the Company by
such Selling Stockholder expressly for use therein, and shall reimburse each
U.S. Underwriter and each such controlling person for any legal or other
expenses reasonably incurred by that U.S. Underwriter or controlling person
in connection with investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action as such expenses are
incurred; PROVIDED, HOWEVER, that as to any Preliminary Prospectus this
indemnity agreement shall not inure to the benefit of any U.S. Underwriter
or any person controlling that U.S. Underwriter on account of any loss,
claim, damage, liability or action arising from the sale of Shares to any
person by that U.S. Underwriter if that U.S. Underwriter failed to send or
give a copy of the Prospectus, as the same may be amended or supplemented,
to that person within the time required by the Act, and the untrue statement
or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact in such Preliminary Prospectus was
corrected in the Prospectus, unless such failure resulted from
non-compliance by the Company with Section 6(c) hereof. For purposes of the
last proviso to the immediately preceding sentence, the term "Prospectus"
shall not be deemed to include the documents incorporated therein by
reference, and no Underwriter shall be obligated to send or give any
supplement or amendment to any document incorporated by reference in any
Preliminary Prospectus or the Prospectus to any person other than a person
to whom such Underwriter had delivered such incorporated document or
documents in response to a written request therefor. The foregoing indemnity
agreement is in addition to any liability which the Selling Stockholders may
otherwise have to any U.S. Underwriter or any controlling person of that
U.S. Underwriter. The aggregate liability of any Selling Stockholder to
indemnify the U.S. Underwriters and any controlling persons of the U.S.
Underwriters pursuant to the foregoing indemnity agreement shall not exceed
the proceeds received by such Selling Stockholder from the Shares sold by it
pursuant to this Agreement.
(c) Each U.S. Underwriter, severally and not jointly, shall indemnify
and hold harmless the Company, each of its directors, each of its officers
who signed the Registration Statement, each person, if any, who controls the
Company within the meaning of the Act and each Selling Stockholder from and
against any loss, claim, damage or liability, joint or several, or any action
in respect thereof, to which the Company or any such director, officer or
controlling person or such Selling Stockholder may become subject, under the
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or supplement
thereto or (ii) 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, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information
-20-
furnished to the Company by or on behalf of that U.S. Underwriter through the
Representatives expressly for use therein, and shall reimburse the Company,
any such director, officer or controlling person and such Selling Stockholder
for any legal or other expenses reasonably incurred by the Company, any such
director, officer or controlling person or such Selling Stockholder in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred.
The foregoing indemnity agreement is in addition to any liability which any
U.S. Underwriter may otherwise have to the Company or any such director,
officer or controlling person.
(d) Promptly after receipt by an indemnified party under this Section 10
of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 10, notify the indemnifying party in
writing of the claim or the commencement of that action; PROVIDED, HOWEVER,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have to an indemnified party otherwise than under
this Section 10. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel reasonably satisfactory to
the indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party
under this Section 10 for any legal or other expenses subsequently incurred
by the indemnified party in connection with the defense thereof other than
reasonable costs of investigation; PROVIDED, HOWEVER, that the
Representatives shall have the right to employ counsel to represent jointly
the U.S. Underwriters and their respective controlling persons who may be
subject to liability arising out of any claim in respect of which indemnity
may be sought by the U.S. Underwriters against the Company or any Selling
Stockholder under this Section 10 if, in the reasonable judgment of the
Representatives, it is advisable for the U.S. Underwriters and controlling
persons to be jointly represented by separate counsel, and in that event the
fees and expenses of one such separate counsel shall be paid by the Company
or such Selling Stockholder, as the case may be. No indemnifying party shall
be liable for any settlement of any such action effected without its written
consent (which consent shall not be unreasonably withheld), but if settled
with its written consent or if there be a final judgment of the plaintiff in
any such action, the indemnifying party agrees to indemnify and hold harmless
any indemnified party from and against any loss or liability by reason of
such settlement or judgment.
(e) If the indemnification provided for in this Section 10 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 10(a), 10(b) or 10(c) hereof in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred to
therein, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company and the Selling
Stockholders on the one hand and the U.S. Underwriters on the other from the
offering of the Shares or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law or if the indemnified party failed to give
the notice required under Section 10(d) hereof, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company and the Selling
Stockholders on the one hand and the U.S. Underwriters on the other with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits received by the
Company and the
-21-
Selling Stockholders on the one hand and the U.S. Underwriters on the other
with respect to such offering shall be deemed to be in the same proportion as
the total net proceeds from the offering of the Shares purchased under this
Agreement (before deducting expenses) received by each of the Selling
Stockholders bear to the total underwriting discounts and commissions
received by the U.S. Underwriters with respect to the Shares purchased under
this Agreement, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to information supplied
by the Company, the Selling Stockholders or the U.S. Underwriters, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company,
the Selling Stockholders and the U.S. Underwriters agree that it would not be
just and equitable if contributions pursuant to this Section 10(e) were to be
determined by pro rata allocation (even if the U.S. Underwriters were treated
as one entity for such purpose) or by any other method of allocation which
does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above
in this Section 10(e) shall be deemed to include, for purposes of this
Section 10(e), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 10(e), no
U.S. Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and
distributed to the public was offered to the public exceeds the amount of any
damages which such U.S. Underwriter has otherwise paid or become liable to
pay by reason of any untrue or alleged untrue statement or omission or
alleged omission, and no Selling Stockholder shall be required to contribute
any amount in excess of the amount by which the proceeds received by such
Selling Stockholder from the Shares sold by it pursuant to this Agreement
exceeds the amount of any damages which such Selling Stockholder has
otherwise paid or become liable to pay by reason of any untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The U.S. Underwriters' obligations to
contribute as provided in this Section 10(e) are several in proportion to
their respective underwriting obligations and not joint.
(f) Each Selling Stockholder severally confirms, and each of the U.S.
Underwriters agrees that the information (other than the percentage of shares
owned) pertaining to each Selling Stockholder under the caption "Principal and
Selling Stockholders" in the Prospectus constitutes the only information
furnished in writing to the Company by such Selling Stockholder expressly for
use in the Registration Statement and the Prospectus.
(g) The agreements contained in this Section 10 and the representations,
warranties and agreements of the Company in Sections 1, 6 and 8 hereof and of
the Selling Stockholders in Sections 2, 7, 8 and 13 hereof shall survive the
delivery of the Shares and shall remain in full force and effect, regardless
of any termination or cancellation of this Agreement or any investigation
made by or on behalf of any indemnified party.
11. DEFAULTING U.S. UNDERWRITERS. If, on the First Delivery Date or the
Second Delivery Date, as the case may be, any U.S. Underwriter defaults in
the performance of its obligations under this Agreement, the remaining
non-defaulting U.S. Underwriters shall be obligated to purchase the Shares
which the defaulting U.S. Underwriter agreed but failed to purchase on such
date in the respective proportions which the number of Firm Shares set forth
opposite the name of each remaining non-defaulting U.S. Underwriter in
Schedule 1 hereto bears to the total number of Firm
-22-
Shares set forth opposite the names of all the remaining non-defaulting U.S.
Underwriters in Schedule 1 hereto; PROVIDED, HOWEVER, that the remaining
non-defaulting U.S. Underwriters shall not be obligated to purchase any of
the Shares on such date if the total number of Shares which the defaulting
U.S. Underwriter or U.S. Underwriters agreed but failed to purchase on such
date exceeds 9.09% of the total number of Shares to be purchased on such
date, and any remaining non-defaulting U.S. Underwriter shall not be
obligated to purchase more than 110% of the number of Shares which it agreed
to purchase on such date pursuant to the terms of Section 3 hereof. If the
foregoing maximums are exceeded, the remaining non-defaulting U.S.
Underwriters, or those other underwriters satisfactory to the
Representatives, shall have the right, but shall not be obligated, to
purchase (in such proportions as may be agreed upon among them) all the
Shares to be purchased by the U.S. Underwriters on such date. If the
foregoing maximums are exceeded and the remaining U.S. Underwriters or other
underwriters satisfactory to the Representatives do not elect to purchase the
shares which the defaulting U.S. Underwriters agreed but failed to purchase,
this Agreement shall terminate without liability on the part of any
non-defaulting U.S. Underwriter, the Company or any Selling Stockholder,
except that the Company and the Selling Stockholders will continue to be
jointly and severally liable for the payment of expenses to any
non-defaulting U.S. Underwriters as set forth in Section 8 hereof.
Nothing contained herein shall relieve a defaulting U.S. Underwriter of
any liability it may have to the Company or any Selling Stockholder for
damages caused by such U.S. Underwriter's default. If other underwriters are
obligated or agree to purchase the Shares of a defaulting U.S. Underwriter,
either the Representatives or the Selling Stockholders may postpone the
related delivery date for up to seven full business days in order to effect
any changes that, in the opinion of counsel for the Company or counsel for
the U.S. Underwriters, may be necessary in the Registration Statement, the
U.S. Prospectus or in any other document or arrangement.
12. TERMINATION. The obligations of the U.S. Underwriters hereunder may
be terminated by the Representatives, in their absolute discretion, by notice
given to and received by the Company and the Selling Stockholders prior to
delivery of any payment for the Firm Shares if, prior to that time, any of
the events described in Section 9(i) or 9(j) hereof shall have occurred.
13. REIMBURSEMENT OF EXPENSES. If (a) any Selling Stockholder shall fail
to tender the Shares for delivery to the U.S. Underwriters for any reason
permitted under this Agreement or (b) the U.S. Underwriters shall decline to
purchase the Shares for any reason permitted under this Agreement, the
Selling Stockholders, jointly and severally, shall, subject to the next
succeeding sentence of this Section 13, reimburse the U.S. Underwriters for
the reasonable fees and expenses of their counsel and for such other
out-of-pocket expenses as shall have been incurred by them in connection with
this Agreement and the proposed purchase of the Shares, and upon demand the
Selling Stockholders shall pay the full amount thereof to the
Representatives. If this Agreement is terminated pursuant to Section 11
hereof by reason of the default of one or more U.S. Underwriters or if this
Agreement is terminated pursuant to Section 12 hereof because of the
occurrence of any of the events described in Section 9(i) hereof or as a
result of the failure of any condition set forth in Section 9(j) hereof, the
Selling Stockholders shall not be obligated to reimburse any U.S.
Underwriter on account of those expenses and shall not have any other
liability to any U.S. Underwriter except as provided in Section 8 or 10
hereof.
-23-
14. NOTICES. All statements, requests, notices and agreements hereunder
shall be in writing, and:
(a) if to the U.S. Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission c/o Goldman, Xxxxx & Co., 00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration Department;
(b) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary;
(c) if to any of the Common Stock Partnerships shall be delivered or
sent by mail, telex or facsimile transmission to such Common Stock
Partnership, care of KKR Associates, at 0 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000; and
(d) if to J.R. Hyde, III, shall be delivered or sent by mail, telex or
facsimile transmission to him, care of the Company, at the address of the
Company set forth in the Registration Statement;
PROVIDED, HOWEVER, that any notice to a U.S. Underwriter pursuant to Section
10(d) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such U.S. Underwriter at its address set forth in its
acceptance telex to the Representatives, which address will be supplied to
any other party hereto by the Representatives upon request. Any such
statements, requests, notices or agreements shall take effect at the time of
receipt thereof. The Company and the Selling Stockholders shall be entitled
to act and rely upon any request, consent, notice or agreement given or made
by Xxxxxxx, Xxxxx & Co. on behalf of the Representatives, and the Company and
the U.S. Underwriters shall be entitled to act and rely upon any request,
consent, notice or agreement given or made by the Selling Stockholders.
15. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall inure
to the benefit of and be binding upon the U.S. Underwriters, the Company, the
Selling Stockholders and their respective personal representatives and
successors. This Agreement and the terms and provisions hereof are for the
sole benefit of only those persons, except that (A) the representations,
warranties, indemnities and agreements of the Company and the Selling
Stockholders contained in this Agreement shall also be deemed to be for the
benefit of the person or persons, if any, who control any U.S. Underwriter
within the meaning of Section 15 of the Act and for the benefit of each
International Underwriter (and controlling persons thereof) and (B) the
indemnity agreement of the U.S. Underwriters contained in Section 10(c)
hereof shall be deemed to be for the benefit of directors of the Company,
officers of the Company who have signed the Registration Statement, the
Selling Stockholders and any person controlling the Company or any Selling
Stockholder within the meaning of Section 15 of the Act. Nothing in this
Agreement is intended or shall be construed to give any person, other than
the persons referred to in this Section 15, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision
contained herein. No partner of any Common Stock Partnership or any successor
general partner of any Common Stock Partnership shall have any personal
liability for the performance of any Common Stock Partnership's obligations
hereunder, and any liability or obligation of any Common Stock Partnership
arising hereunder shall be limited to and satisfied only out of the property
of such Common Stock Partnership.
-24-
16. CERTAIN DEFINITION. For purposes of this Agreement, a business day
means any day on which the New York Stock Exchange is open for trading.
17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
18. COUNTERPARTS. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
-25-
If the foregoing is in accordance with your understanding, please sign
and return to us six counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the U.S. Underwriters, this letter and such
acceptance hereof shall constitute a binding agreement among each of the U.S.
Underwriters, each of the Selling Stockholders and the Company.
Very truly yours,
AutoZone, Inc.
By:
--------------------------
Title: Vice President
THE SELLING STOCKHOLDERS:
Pittco Associates, L.P.
By: KKR Associates,
General Partner
By:
----------------------
Title: General Partner
Pittco Associates II, L.P.
By: KKR Associates,
General Partner
By:
--------------------------
Title: General Partner
KKR Partners II, L.P.
By: KKR Associates,
General Partner
By:
------------------------
Title: General Partner
J.R. Hyde, III
By:
-----------------------
J.R. Hyde, III
-26-
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
[other underwriters]
By:
-------------------------------------
(Xxxxxxx, Sachs & Co.)
On behalf of each of the Underwriters
-27-
SCHEDULE 1
Underwriter Number of
----------- Firm Shares
------------
Xxxxxxx, Xxxxx & Co. . . . . . . . . . . . . . . . . . . . . . .
[underwriter]. . . . . . . . . . . . . . . . . . . . . . . . . .
------------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . .
------------
------------
SCHEDULE 2
Number of Number of
Name of Selling Stockholder Firm Shares Option Shares
--------------------------- ----------- -------------
Pittco Associates, L.P.
Pittco Associate II, L.P.
KKR Partners II, L.P.
J.R. Hyde, III
----------- ------------
Total
----------- ------------
----------- ------------
