EXHIBIT 4.5
The Pep Boys - Manny, Moe & Xxxx
4.25% Convertible Senior Notes due June 1, 2007
REGISTRATION RIGHTS AGREEMENT
May 21, 2002
Xxxxxxx, Sachs & Co.,
First Union Securities, Inc.
Advest, Inc.
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The Pep Boys - Manny, Moe & Xxxx, a Pennsylvania corporation (the
"Company"), proposes to issue and sell to the Purchasers (as defined herein)
upon the terms set forth in the Purchase Agreement (as defined herein) its 4.25%
Convertible Senior Notes. The Securities will be unconditionally guaranteed
pursuant to guarantees (the "Guarantees") as to payment of principal, premium,
if any, and interest by The Pep Boys Xxxxx Xxx & Xxxx of California, a
California corporation, Pep Boys - Manny, Moe & Xxxx of Delaware, Inc., a
Delaware corporation and Pep Boys - Manny, Moe & Xxxx of Puerto Rico, Inc., a
Delaware corporation, each a wholly-owned direct or indirect subsidiary of the
Company (collectively, the "Guarantors"). As an inducement to the Purchasers to
enter into the Purchase Agreement and in satisfaction of a condition to the
obligations of the Purchasers thereunder, the Company agrees with the Purchasers
for the benefit of Holders (as defined herein) from time to time of the
Registrable Securities (as defined herein) as follows:
1. DEFINITIONS.
(a) Capitalized terms used herein without definition shall have the
meanings ascribed to them in the Purchase Agreement. As used in this Agreement,
the following defined terms shall have the following meanings:
"ACT" OR "SECURITIES ACT" means the United States Securities Act of
1933, as amended.
"AFFILIATE" of any specified person means any other person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with such specified person. For purposes of this definition, control of
a person means the power, direct or indirect, to direct or cause the direction
of the management and policies of such person whether by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"CLOSING DATE" means the First Time of Delivery as defined in the
Purchase Agreement.
"COMMISSION" means the United States Securities and Exchange
Commission, or any other federal agency at the time administering the Exchange
Act or the Securities Act, whichever is the relevant statute for the particular
purpose.
"COMMON STOCK" means the Company's common stock, par value $1 per
share, together with any associated common stock purchase rights.
"DTC" means The Depository Trust Company.
"EFFECTIVE DATE" has the meaning assigned thereto in Section 2(b)(i)
hereof.
"EFFECTIVE FAILURE" has the meaning assigned thereto in Section 7(b)
hereof.
"EFFECTIVENESS PERIOD" has the meaning assigned thereto in Section
2(b)(i) hereof.
"EFFECTIVE TIME" means the time at which the Commission declares the
Shelf Registration Statement effective or at which the Shelf Registration
Statement otherwise becomes effective.
"ELECTING HOLDER" has the meaning assigned thereto in Section
3(a)(iii) hereof.
"EXCHANGE ACT" means the United States Securities Exchange Act of
1934, as amended.
"HOLDER" means, any person that is the record owner of Registrable
Securities (and includes any person that has a beneficial interest in any
Registrable Security in book-entry form).
"INDENTURE" means the Indenture, dated as of May 21, 2002, between the
Company, the Guarantors and Wachovia Bank, National Association, as Trustee, as
amended and supplemented from time to time in accordance with its terms.
"LIQUIDATED DAMAGES" has the meaning assigned thereto in Section 7(a)
hereof.
"MANAGING UNDERWRITERS" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering,
if any, conducted pursuant to Section 6 hereof.
"NASD RULES" means the Rules of the National Association of Securities
Dealers, Inc., as amended from time to time.
"NOTICE AND QUESTIONNAIRE" means a Notice of Registration Statement
and Selling Securityholder Questionnaire substantially in the form of Appendix A
hereto.
The term "PERSON" means an individual, partnership, corporation, trust
or unincorporated organization, or a government or agency or political
subdivision thereof.
"PROSPECTUS" means the prospectus (including, without limitation, any
preliminary prospectus, any final prospectus and any prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon
-2-
Rule 430A under the Act) included in the Shelf Registration Statement, as
amended or supplemented by any prospectus supplement with respect to the terms
of the offering of any portion of the Registrable Securities covered by the
Shelf Registration Statement and by all other amendments and supplements to such
prospectus, including all material incorporated by reference in such prospectus
and all documents filed after the date of such prospectus by the Company under
the Exchange Act and incorporated by reference therein.
"PURCHASE AGREEMENT" means the purchase agreement, dated as of May 15,
2002, among the Purchasers, the Guarantors and the Company relating to the
Securities.
"PURCHASERS" means the Purchasers named in Schedule I to the Purchase
Agreement.
"REGISTRABLE SECURITIES" means all or any portion of the Securities
issued from time to time under the Indenture in registered form and the shares
of Common Stock issuable upon conversion, repurchase or redemption of such
Securities; PROVIDED, HOWEVER, that a security ceases to be a Registrable
Security when it is no longer a Restricted Security.
"REGISTRATION DEFAULT" has the meaning assigned thereto in Section
7(a) hereof.
"RESTRICTED SECURITY" means any Security or share of Common Stock
issuable upon conversion thereof except any such Security or share of Common
Stock that (i) has been effectively registered under the Securities Act and sold
in a manner contemplated by the Shelf Registration Statement, (ii) has been
transferred in compliance with Rule 144 under the Securities Act (or any
successor provision thereto) or is transferable pursuant to paragraph (k) of
such Rule 144 (or any successor provision thereto), or (iii) has otherwise been
transferred and a new Security or share of Common Stock not subject to transfer
restrictions under the Securities Act has been delivered by or on behalf of the
Company in accordance with Section 3.5 of the Indenture.
"RULES AND REGULATIONS" means the published rules and regulations of
the Commission promulgated under the Securities Act or the Exchange Act, as in
effect at any relevant time.
"SECURITIES" means the 4.25% Convertible Senior Notes due June 1, 2007
of the Company. Each Security is entitled to the benefit of the guarantees
provided for in the Indenture (the "Guarantees") and, unless the context
otherwise requires, any reference herein to a "Security" or a "Registrable
Security" shall include a reference to the related Guarantees.
"SHELF REGISTRATION" means a registration effected pursuant to Section
2 hereof.
"SHELF REGISTRATION STATEMENT" means a "shelf" registration statement
filed under the Securities Act providing for the registration of, and the sale
on a continuous or delayed basis by the Holders of, all of the Registrable
Securities pursuant to Rule 415 under the Securities Act and/or any similar rule
that may be adopted by the Commission, filed by the Company pursuant to the
provisions of Section 2 of this Agreement, including the Prospectus contained
therein, any amendments and supplements to such registration statement,
including post-effective amendments, and all exhibits and all material
incorporated by reference in such registration statement.
-3-
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, or any
successor thereto, and the rules, regulations and forms promulgated thereunder,
as the same shall be amended from time to time.
The term "UNDERWRITER" means any underwriter of Registrable Securities
in connection with an offering thereof under a Shelf Registration Statement.
(b) Wherever there is a reference in this Agreement to a percentage
of the "principal amount" of Registrable Securities or to a percentage of
Registrable Securities, Common Stock shall be treated as representing the
principal amount of Securities that was surrendered for conversion or exchange
in order to receive such number of shares of Common Stock.
2. SHELF REGISTRATION.
(a) The Company and the Guarantors shall, no later than 90 calendar
days following the Closing Date, file with the Commission a Shelf Registration
Statement relating to the offer and sale of the Registrable Securities by the
Holders from time to time in accordance with the methods of distribution elected
by such Holders and set forth in such Shelf Registration Statement and,
thereafter, shall use their best efforts to cause such Shelf Registration
Statement to be declared effective under the Act no later than 180 calendar days
following the Closing Date; PROVIDED, HOWEVER, that the Company may, upon
written notice to all Holders, postpone having the Shelf Registration Statement
declared effective for a reasonable period not to exceed 90 days if the Board of
Directors of the Company shall have determined in good faith that because of
valid business reasons (not including avoidance of the Company's obligations
hereunder), including the acquisition or divestiture of assets, pending
corporate developments and similar events, it is in the best interests of the
Company to postpone having the Shelf Registration Statement declared effective;
provided, further, however, that no Holder shall be entitled to be named as a
selling securityholder in the Shelf Registration Statement or to use the
Prospectus forming a part thereof for resales of Registrable Securities unless
such Holder is an Electing Holder.
(b) The Company and the Guarantors shall use their best efforts:
(i) to keep the Shelf Registration Statement continuously
effective in order to permit the Prospectus forming a part thereof to
be usable by Holders until the earliest of (A) the sale of all
Registrable Securities registered under the Shelf Registration
Statement; (B) the expiration of the period referred to in Rule 144(k)
of the Act with respect to all Registrable Securities held by Persons
that are not Affiliates of the Company; and (C) two years from the
date (the "Effective Date") such Shelf Registration Statement is
declared effective (such period being referred to herein as the
"Effectiveness Period");
(ii) after the Effective Time of the Shelf Registration
Statement, promptly upon the request of any Holder of Registrable
Securities that is not then an Electing Holder, to take any action
reasonably necessary to enable such Holder to use the Prospectus
forming a part thereof for resales of Registrable Securities,
including, without limitation, any action necessary to identify such
Holder as a selling securityholder in the Shelf Registration
Statement; PROVIDED, HOWEVER, that nothing in this subparagraph shall
relieve such Holder of the obligation to return a completed and
-4-
signed Notice and Questionnaire to the Company in accordance with
Section 3(a)(ii) hereof; and
(iii) if at any time the Securities, pursuant to Article XII
of the Indenture, are convertible into securities other than Common
Stock, to cause, or to cause any successor under the Indenture to
cause, such securities to be included in the Shelf Registration
Statement no later than the date on which the Securities may then be
convertible into such securities.
The Company shall be deemed not to have used its best efforts to keep
the Shelf Registration Statement effective during the requisite period if the
Company or any of the Guarantors voluntarily takes any action that would result
in Holders of Registrable Securities covered thereby not being able to offer and
sell any of such Registrable Securities during that period, unless such action
is (A) required by applicable law and the Company thereafter promptly complies
with the requirements of paragraph 3(j) below or (B) permitted pursuant to
Section 2(c) below.
(c) The Company may suspend the use of the Prospectus for a period
not to exceed 30 days in any 90-day period or an aggregate of 90 days in any
365-day period if the Board of Directors of the Company shall have determined in
good faith that because of valid business reasons (not including avoidance of
the Company's obligations hereunder), including the acquisition or divestiture
of assets, pending corporate developments and similar events, it is in the best
interests of the Company to suspend such use, and prior to suspending such use
the Company provides the Holders with written notice of such suspension, which
notice need not specify the nature of the event giving rise to such suspension.
3. REGISTRATION PROCEDURES. In connection with the Shelf
Registration Statement, the following provisions shall apply:
(a)(i) Not less than 30 calendar days prior to the Effective Time of
the Shelf Registration Statement, the Company shall mail the Notice and
Questionnaire to the Holders of Registrable Securities. No Holder shall be
entitled to be named as a selling securityholder in the Shelf Registration
Statement as of the Effective Time, and no Holder shall be entitled to use the
Prospectus forming a part thereof for resales of Registrable Securities at any
time, unless such Holder has returned a completed and signed Notice and
Questionnaire to the Company by the deadline for response set forth therein;
PROVIDED, HOWEVER, Holders of Registrable Securities shall have at least 28
calendar days from the date on which the Notice and Questionnaire is first
mailed to such Holders to return a completed and signed Notice and Questionnaire
to the Company.
(ii) After the Effective Time of the Shelf Registration
Statement, the Company shall, upon the request of any Holder of
Registrable Securities that is not then an Electing Holder, promptly
send a Notice and Questionnaire to such Holder. The Company shall not
be required to take any action to name such Holder as a selling
securityholder in the Shelf Registration Statement or to enable such
Holder to use the Prospectus forming a part thereof for resales of
Registrable Securities until such Holder has returned a completed and
signed Notice and Questionnaire to the Company.
-5-
(iii) The term "Electing Holder" shall mean any Holder of
Registrable Securities that has returned a completed and signed Notice
and Questionnaire to the Company in accordance with Section 3(a)(i) or
3(a)(ii) hereof.
(b) The Company shall furnish to each Electing Holder, prior to the
Effective Time, a copy of the Shelf Registration Statement initially filed with
the Commission, and shall furnish to such Holders, prior to the filing thereof
with the Commission, copies of each amendment thereto and each amendment or
supplement, if any, to the Prospectus included therein, and shall use its best
efforts to reflect in each such document, at the Effective Time or when so filed
with the Commission, as the case may be, such comments as such Holders and their
respective counsel reasonably may propose.
(c) The Company shall promptly take such action as may be necessary
so that (i) each of the Shelf Registration Statement and any amendment thereto
and the Prospectus forming a part thereof and any amendment or supplement
thereto (and each report or other document incorporated therein by reference in
each case) complies in all material respects with the Securities Act and the
Exchange Act and the respective rules and regulations thereunder, (ii) each of
the Shelf Registration Statement and any amendment thereto does not, when it
becomes effective, 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 (iii) each of the Prospectus forming a
part of the Shelf Registration Statement, and any amendment or supplement to
such Prospectus, does not at any time during the Effectiveness Period include an
untrue statement of a material fact or omit 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.
(d) The Company shall promptly advise each Electing Holder, and
shall confirm such advice in writing if so requested by any such Electing
Holder:
(i) when a Shelf Registration Statement and any amendment
thereto has been filed with the Commission and when a Shelf
Registration Statement or any post-effective amendment thereto has
become effective, in each case making a public announcement thereof by
release made to Reuters Economic Services and Bloomberg Business News;
(ii) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the Prospectus
included therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement or
the initiation of any proceedings for such purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the securities
included in the Shelf Registration Statement for sale in any
jurisdiction or the initiation of any proceeding for such purpose; and
(v) of the happening of any event or the existence of any
state of facts that requires the making of any changes in the Shelf
Registration Statement or the
-6-
Prospectus included therein so that, as of such date, such Shelf
Registration Statement and Prospectus do not contain an untrue
statement of a material fact and do not omit to state a material fact
required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading (which advice shall be
accompanied by an instruction to such Holders to suspend the use of
the Prospectus until the requisite changes have been made).
(e) Each of the Company and the Guarantors shall use its best
efforts to prevent the issuance, and if issued to obtain the withdrawal at the
earliest possible time, of any order suspending the effectiveness of the Shelf
Registration Statement.
(f) The Company shall furnish to each Electing Holder, without
charge, at least one copy of the Shelf Registration Statement and all
post-effective amendments thereto, including financial statements and schedules,
and, if such Electing Holder so requests in writing, all reports, other
documents and exhibits that are filed with or incorporated by reference in the
Shelf Registration Statement.
(g) The Company shall, during the Effectiveness Period, deliver to
each Electing Holder, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) included in the Shelf Registration
Statement and any amendment or supplement thereto as such Electing Holder may
reasonably request; and the Company consents (except during the periods
specified in Section 2(c) above or during the continuance of any event described
in Section 3(d)(v) above) to the use of the Prospectus and any amendment or
supplement thereto by each of the Electing Holders in connection with the
offering and sale of the Registrable Securities covered by the Prospectus and
any amendment or supplement thereto during the Effectiveness Period.
(h) Prior to any offering of Registrable Securities pursuant to the
Shelf Registration Statement, each of the Company and the Guarantors shall (i)
register or qualify or cooperate with the Electing Holders and their respective
counsel in connection with the registration or qualification of such Registrable
Securities for offer and sale under the securities or "blue sky" laws of such
jurisdictions within the United States as any Electing Holder may reasonably
request, (ii) keep such registrations or qualifications in effect and comply
with such laws so as to permit the continuance of offers and sales in such
jurisdictions for so long as may be necessary to enable any Electing Holder or
underwriter, if any, to complete its distribution of Registrable Securities
pursuant to the Shelf Registration Statement, and (iii) take any and all other
actions necessary or advisable to enable the disposition in such jurisdictions
of such Registrable Securities; PROVIDED, HOWEVER, that in no event shall the
Company or the Guarantors be obligated to (A) qualify as a foreign corporation
or as a dealer in securities in any jurisdiction where it would not otherwise be
required to so qualify but for this Section 3(h) or (B) file any general consent
to service of process in any jurisdiction where it is not as of the date hereof
so subject.
(i) Unless any Registrable Securities shall be in book-entry only
form, the Company and the Guarantors shall cooperate with the Electing Holders
to facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold pursuant to the Shelf Registration Statement,
which certificates, if so required by any securities exchange upon which any
Registrable Securities are listed, shall be penned, lithographed or engraved, or
produced
-7-
by any combination of such methods, on steel engraved borders, and which
certificates shall be free of any restrictive legends and in such permitted
denominations and registered in such names as Electing Holders may request in
connection with the sale of Registrable Securities pursuant to the Shelf
Registration Statement.
(j) Upon the occurrence of any fact or event contemplated by
paragraph 3(d)(v) above, the Company shall promptly prepare a post-effective
amendment to any Shelf Registration Statement or an amendment or supplement to
the related Prospectus or file any other required document so that, as
thereafter delivered to purchasers of the Registrable Securities included
therein, the Prospectus will not include an untrue statement of a material fact
or omit to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading. If
the Company notifies the Electing Holders of the occurrence of any fact or event
contemplated by paragraph 3(d)(v) above, the Electing Holder shall suspend the
use of the Prospectus until the requisite changes to the Prospectus have been
made.
(k) Not later than the Effective Time of the Shelf Registration
Statement, the Company shall provide a CUSIP number for the Registrable
Securities that are debt securities.
(l) The Company shall use its best efforts to comply with all
applicable Rules and Regulations, and to make generally available to its
securityholders as soon as practicable, but in any event not later than eighteen
months after (i) the effective date (as defined in Rule 158(c) under the
Securities Act) of the Shelf Registration Statement, (ii) the effective date of
each post-effective amendment to the Shelf Registration Statement, and (iii) the
date of each filing by the Company with the Commission of an Annual Report on
Form 10-K that is incorporated by reference in the Shelf Registration Statement,
an earning statement of the Company and its subsidiaries complying with Section
11(a) of the Securities Act and the rules and regulations of the Commission
thereunder (including, at the option of the Company, Rule 158).
(m) Not later than the Effective Time of the Shelf Registration
Statement, the Company and the Guarantors shall cause the Indenture to be
qualified under the Trust Indenture Act; in connection with such qualification,
the Company and the Guarantors shall cooperate with the Trustee under the
Indenture and the Holders (as defined in the Indenture) to effect such changes
to the Indenture as may be required for such Indenture to be so qualified in
accordance with the terms of the Trust Indenture Act; and the Company and the
Guarantors shall execute, and shall use all reasonable efforts to cause the
Trustee to execute, all documents that may be required to effect such changes
and all other forms and documents required to be filed with the Commission to
enable such Indenture to be so qualified in a timely manner. In the event that
any such amendment or modification referred to in this Section 3(m) involves the
appointment of a new trustee under the Indenture, the Company shall appoint a
new trustee thereunder pursuant to the applicable provisions of the Indenture.
(n) In the event of an underwritten offering conducted pursuant to
Section 6 hereof, the Company shall, if requested, promptly include or
incorporate in a Prospectus supplement or post-effective amendment to the Shelf
Registration Statement such information as the Managing Underwriters reasonably
agree should be included therein and to which the Company does not reasonably
object and shall make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after it is notified of the
matters to be included or incorporated in such Prospectus supplement or
post-effective amendment.
-8-
(o) The Company and the Guarantors shall enter into such customary
agreements (including an underwriting agreement in customary form in the event
of an underwritten offering conducted pursuant to Section 6 hereof) and take all
other appropriate action in order to expedite and facilitate the registration
and disposition of the Registrable Securities, and in connection therewith, if
an underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures substantially identical to those set
forth in Section 5 hereof with respect to all parties to be indemnified pursuant
to Section 5 hereof.
(p) The Company shall:
(i)(A) subject to the execution and delivery to the Company of
any customary confidentiality agreements the Company may reasonably
request (subject to customary exceptions, such as disclosure made in
connection with a court proceeding or required by law, or records,
information or documents that have become available to the public
generally or through a third party without an accompanying obligation
of confidentiality), make reasonably available for inspection by the
Electing Holders, any underwriter participating in any disposition
pursuant to the Shelf Registration Statement, and any attorney,
accountant or other agent retained by such Electing Holders or any
such underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Company and its
subsidiaries, and (B) cause the Company's officers, directors and
employees to supply all information reasonably requested by such
Electing Holders or any such underwriter, attorney, accountant or
agent in connection with the Shelf Registration Statement, in each
case, as is reasonably necessary to enable such persons to conduct a
reasonable investigation within the meaning of Section 11 of the
Securities Act; PROVIDED, HOWEVER, that the foregoing inspection and
information gathering shall be coordinated on behalf of the Electing
Holders and the other parties by one firm of counsel, which shall be
designated by the Electing Holders pursuant to Section 4 hereof; and
PROVIDED FURTHER that, if the foregoing inspection and information
gathering would otherwise disrupt the Company's conduct of its
business, such inspection and information gathering shall, to the
greatest extent possible, be coordinated on behalf of the Electing
Holders and the other parties entitled thereto by one counsel
designated by and on behalf of the Electing Holders and other parties;
(ii) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, make such representations and warranties
to the Electing Holders participating in such underwritten offering
and to the Managing Underwriters, in form, substance and scope as are
customarily made by the Company to underwriters in primary
underwritten offerings of equity and convertible debt securities and
covering matters including, but not limited to, those set forth in the
Purchase Agreement;
(iii) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, obtain opinions of counsel to the
Company (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the Managing Underwriters)
addressed to each Electing Holder participating in such underwritten
offering and the underwriters, covering such matters as are
customarily covered in opinions requested in primary underwritten
offerings of equity and convertible debt securities and such other
matters as may be reasonably requested by such Electing Holders and
underwriters (it being agreed that the matters to be covered by such
opinions shall include, without limitation, as of the date of the
opinion and as of the
-9-
Effective Time of the Shelf Registration Statement or most recent
post-effective amendment thereto, as the case may be, the absence from
the Shelf Registration Statement and the Prospectus, including the
documents incorporated by reference therein, of an untrue statement of
a material fact or the omission of a material fact required to be
stated therein or necessary to make the statements therein not
misleading;
(iv) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, obtain "cold comfort" letters and
updates thereof from the independent public accountants of the Company
(and, if necessary, from the independent public accountants of any
subsidiary of the Company or of any business acquired by the Company
for which financial statements and financial data are, or are required
to be, included in the Shelf Registration Statement), addressed to
each Electing Holder participating in such underwritten offering (if
such Electing Holder has provided such letter, representations or
documentation, if any, required for such cold comfort letter to be so
addressed) and the underwriters, in customary form and covering
matters of the type customarily covered in "cold comfort" letters in
connection with primary underwritten offerings;
(v) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, deliver such documents and certificates
as may be reasonably requested by any Electing Holders participating
in such underwritten offering and the Managing Underwriters, if any,
including, without limitation, certificates to evidence compliance
with Section 3(j) hereof and with any conditions contained in the
underwriting agreement or other agreements entered into by the
Company.
(q) The Company will use its best efforts to cause the Common Stock
issuable upon conversion of the Securities to be listed on the New York Stock
Exchange or other stock exchange or trading system on which the Common Stock
primarily trades on or prior to the Effective Time of the Shelf Registration
Statement hereunder.
(r) In the event that any broker-dealer registered under the
Exchange Act shall be an "affiliate" (as defined in Rule 2720(b)(1) of the NASD
Rules (or any successor provision thereto)) of the Company or has a "conflict of
interest" (as defined in Rule 2720(b)(7) of the NASD Rules (or any successor
provision thereto)) and such broker-dealer shall underwrite, participate as a
member of an underwriting syndicate or selling group or assist in the
distribution of any Registrable Securities covered by the Shelf Registration
Statement, whether as a Holder of such Registrable Securities or as an
underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, the Company shall assist such broker-dealer in complying
with the requirements of the NASD Rules, including, without limitation, by (A)
engaging a "qualified independent underwriter" (as defined in Rule 2720(b)(15)
of the NASD Rules (or any successor provision thereto)) to participate in the
preparation of the registration statement relating to such Registrable
Securities, to exercise usual standards of due diligence in respect thereto and
to recommend the public offering price of such Registrable Securities, (B)
indemnifying such qualified independent underwriter to the extent of the
indemnification of underwriters provided in Section 5 hereof, and (C) providing
such information to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the NASD Rules.
-10-
(s) The Company and the Guarantors shall use their best efforts to
take all other steps necessary to effect the registration, offering and sale of
the Registrable Securities covered by the Shelf Registration Statement
contemplated hereby.
4. REGISTRATION EXPENSES. Except as otherwise provided in
Section 3, the Company and Guarantors shall bear all fees and expenses incurred
in connection with the performance of their obligations under Sections 2, 3 and
6 hereof and shall bear or reimburse the Electing Holders for the reasonable
fees and disbursements of a single counsel selected by a plurality of all
Electing Holders who own an aggregate of not less than 25% of the Registrable
Securities covered by the Shelf Registration Statement to act as counsel
therefore in connection therewith. Each Electing Holder shall pay all
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of such Electing Holder's Registrable Securities
pursuant to the Shelf Registration Statement.
5. INDEMNIFICATION AND CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY AND THE GUARANTORS. Upon the
registration of the Registrable Securities pursuant to Section 2 hereof, the
Company and the Guarantors shall indemnify and hold harmless each Electing
Holder and each underwriter, selling agent or other securities professional, if
any, which facilitates the disposition of Registrable Securities, and each of
their respective officers and directors and each person who controls such
Electing Holder, underwriter, selling agent or other securities professional
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act (each such person being sometimes referred to as an "Indemnified
Person") against any losses, claims, damages or liabilities, joint or several,
to which such Indemnified Person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Shelf Registration
Statement under which such Registrable Securities are to be registered under the
Securities Act, or any Prospectus contained therein or furnished by the Company
to any Indemnified Person, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and the Company hereby agrees to reimburse such
Indemnified Person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such action or claim as such
expenses are incurred; PROVIDED, HOWEVER, (i) that neither the Company nor the
Guarantors shall be liable to any such Indemnified Person in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such Shelf Registration Statement or Prospectus, or
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by such Indemnified Person expressly for
use therein and (ii) with respect to any untrue statement or omission or alleged
untrue statement or omission made in any preliminary Prospectus included in the
Shelf Registration Statement, the indemnity agreement contained in this
subsection (a) shall not inure to the benefit of any holder of Registrable
Securities, Securities or Stock from whom the person asserting any such losses,
claims, damages or liabilities purchased the Registrable Securities concerned,
to the extent that a prospectus relating to such Registrable Securities was
required to be delivered by such holder under the Securities Act in connection
with such purchase and any such loss, claim, damages or liability of such holder
results from the fact that there was not sent or given to such person, at or
prior to the written confirmation of the sale of such Registrable Securities to
such
-11-
person, a copy of the final Prospectus if the Company had previously furnished
copies thereof to such holder; PROVIDED FURTHER, HOWEVER, that this indemnity
agreement will be in addition to any liability which the Company may otherwise
have to such Indemnified Person.
(b) INDEMNIFICATION BY THE ELECTING HOLDERS AND ANY AGENTS AND
UNDERWRITERS. Each Electing Holder agrees, as a consequence of the inclusion of
any of such Electing Holder's Registrable Securities in such Shelf Registration
Statement, and each underwriter, selling agent or other securities professional,
if any, which facilitates the disposition of Registrable Securities shall agree,
as a consequence of facilitating such disposition of Registrable Securities,
severally and not jointly, to (i) indemnify and hold harmless the Company, the
Guarantors, their directors, officers who sign any Shelf Registration Statement
and each person, if any, who controls the Company or the Guarantors within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, against any losses, claims, damages or liabilities to which the Company or
such other persons may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in such Shelf Registration Statement or
Prospectus, or any amendment or supplement, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such
Electing Holder, underwriter, selling agent or other securities professional
expressly for use therein, and (ii) reimburse the Company and the Guarantors for
any legal or other expenses reasonably incurred by the Company and the
Guarantors in connection with investigating or defending any such action or
claim as such expenses are incurred.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an
indemnified party under subsection (a) or (b) above of notice of the
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against an indemnifying party under this Section 5, notify
such indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under the
indemnification provisions of or contemplated by subsection (a) or (b) above. In
case any such action shall be brought against any indemnified party and it shall
notify an indemnifying party of the commencement thereof, such indemnifying
party shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, such
indemnifying party shall not be liable to such indemnified party under this
Section 5 for any legal expenses of other counsel or any other expenses, in each
case subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. In no event shall
any indemnified party be liable for fees and expenses of more than reasonable
costs of one counsel (in addition to local counsel) separate from their own
counsel for all indemnified parties in connection with any one or separate but
similar or related actions in the same jurisdiction arising out of the general
allegations or circumstances. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any
-12-
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include a statement as to, or an admission of, fault, culpability or a failure
to act, by or on behalf of any indemnified party.
(d) CONTRIBUTION. If the indemnification provided for in this
Section 5 is unavailable to or insufficient to hold harmless an indemnified
party under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
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
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 5(d) were determined by
pro rata allocation (even if the Electing Holders or any underwriters, selling
agents or other securities professionals or all of them were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in this Section 5(d).
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Electing Holders and any underwriters,
selling agents or other securities professionals in this Section 5(d) to
contribute shall be several in proportion to the percentage of principal amount
of Registrable Securities registered or underwritten, as the case may be, by
them and not joint.
(e) Notwithstanding any other provision of this Section 5, in no
event will any (i) Electing Holder be required to undertake liability to any
person under this Section 5 for any amounts in excess of the dollar amount of
the proceeds to be received by such Holder from the sale of such Holder's
Registrable Securities (after deducting any fees, discounts and commissions
applicable thereto) pursuant to any Shelf Registration Statement under which
such Registrable Securities are to be registered under the Securities Act and
(ii) underwriter, selling agent or other securities professional be required to
undertake liability to any person hereunder for any amounts in excess of the
discount, commission or other compensation payable to such underwriter, selling
agent or other securities professional with respect to the Registrable
Securities underwritten by it and distributed to the public.
(f) The obligations of the Company and the Guarantors under this
Section 5 shall be in addition to any liability which the Company and the
Guarantors may otherwise have to any
-13-
Indemnified Person and the obligations of any Indemnified Person under this
Section 5 shall be in addition to any liability which such Indemnified Person
may otherwise have to the Company and the Guarantors. The remedies provided in
this Section 5 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to an indemnified party at law or in equity.
6. UNDERWRITTEN OFFERING. Any Holder of Registrable Securities who
desires to do so may sell Registrable Securities (in whole or in part) in an
underwritten offering; PROVIDED that (i) the Electing Holders of at least
33-1/3% in aggregate principal amount of the Registrable Securities then covered
by the Shelf Registration Statement shall request such an offering and (ii) at
least such aggregate principal amount of such Registrable Securities shall be
included in such offering; and PROVIDED FURTHER that the Company shall not be
obligated to cooperate with more than one underwritten offering during the
Effectiveness Period. Upon receipt of such a request, the Company shall provide
all Holders of Registrable Securities written notice of the request, which
notice shall inform such Holders that they have the opportunity to participate
in the offering. In any such underwritten offering, the investment banker or
bankers and manager or managers that will administer the offering will be
selected by, and the underwriting arrangements with respect thereto (including
the size of the offering) will be approved by, the holders of a majority of the
Registrable Securities to be included in such offering; PROVIDED, HOWEVER, that
such investment bankers and managers and underwriting arrangements must be
reasonably satisfactory to the Company. No Holder may participate in any
underwritten offering contemplated hereby unless (a) such Holder agrees to sell
such Holder's Registrable Securities to be included in the underwritten offering
in accordance with any approved underwriting arrangements, (b) such Holder
completes and executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other documents
required under the terms of such approved underwriting arrangements, and (c) if
such Holder is not then an Electing Holder, such Holder returns a completed and
signed Notice and Questionnaire to the Company in accordance with Section
3(a)(ii) hereof within a reasonable amount of time before such underwritten
offering. The Holders participating in any underwritten offering shall be
responsible for any underwriting discounts and commissions and fees and, subject
to Section 4 hereof, expenses of their own counsel. The Company shall pay all
expenses customarily borne by issuers in an underwritten offering, including but
not limited to filing fees, the fees and disbursements of its counsel and
independent public accountants and any printing expenses incurred in connection
with such underwritten offering. Notwithstanding the foregoing or the provisions
of Section 3(n) hereof, upon receipt of a request from the Managing Underwriter
or a representative of holders of a majority of the Registrable Securities to be
included in an underwritten offering to prepare and file an amendment or
supplement to the Shelf Registration Statement and Prospectus in connection with
an underwritten offering, the Company may delay the filing of any such amendment
or supplement for up to 90 days if the Board of Directors of the Company shall
have determined in good faith that the Company has a bona fide business reason
for such delay.
7. LIQUIDATED DAMAGES.
(a) Pursuant to Section 2(a) hereof, the Company may, upon written
notice to all the Holders, postpone having the Shelf Registration Statement
declared effective for a reasonable period not to exceed 90 days if the Board of
Directors of the Company shall have determined in good faith that because of
valid business reasons (not including avoidance of the Company's obligations
hereunder), including the acquisition or divestiture of assets, pending
corporate
-14-
developments and similar events, it is in the best interests of the Company to
delay the effectiveness of such Registration Statement. Notwithstanding any such
postponement, if (i) on or prior to the 90th day following the Closing Date, a
Shelf Registration Statement has not been filed with the Commission or (ii) on
or prior to the 180th day following the Closing Date, such Shelf Registration
Statement is not declared effective by the Commission (each, a "Registration
Default"), the Company shall be required to pay liquidated damages ("Liquidated
Damages"), from and including the day following such Registration Default until
such Shelf Registration Statement is either so filed or so filed and
subsequently declared effective, as applicable, at a rate per annum equal to an
additional one-quarter of one percent (0.25%) of the principal amount of
Registrable Securities, to and including the 90th day following such
Registration Default and one-half of one percent (0.5%) thereof from and after
the 91st day following such Registration Default.
(b) In the event that the Shelf Registration Statement ceases to be
effective (or the Holders of Registrable Securities are otherwise prevented or
restricted by the Company from effecting sales pursuant thereto) (an "Effective
Failure") for more than 30 days, whether or not consecutive, in any 90-day
period, or for more than 90 days, whether or not consecutive, during any 365-day
period, then the Company shall pay Liquidated Damages at a rate per annum equal
to an additional one-half of one percent (0.5%) of the principal amount of
Registrable Securities from the 31st day of the applicable 90-day period or the
91st day of the applicable 365-day period, as the case may be, that such Shelf
Registration Statement ceases to be effective (or the Holders of Registrable
Securities are otherwise prevented or restricted by the Company from effecting
sales pursuant thereto) until the earlier of (i) the time the Shelf Registration
Statement again becomes effective or the Holders of Registrable Securities are
again able to make sales under the Shelf Registration Statement or (ii) the time
the Effectiveness Period expires. For the purpose of determining an Effective
Failure, days on which the Company has been obligated to pay Liquidated Damages
in accordance with the foregoing in respect of a prior Effective Failure within
the applicable 90-day or 12-month period, as the case may be, shall not be
included.
(c) In the event the Company fails to file a post-effective
amendment to the Shelf Registration Statement, or the post-effective amendment
is not declared effective, within the periods required by Section 2, the Company
shall pay Liquidated Damages at a rate per annum equal to an additional one-half
of one percent (0.5%) of the principal amount of Registrable Securities from and
including the date of such Registration Default until such time as such
Registration Default is cured.
(d) Any amounts to be paid as Liquidated Damages pursuant to
paragraphs (a), (b) or (c) of this Section 7 shall be paid semi-annually in
arrears, with the first semi-annual payment due on the first Interest Payment
Date (as defined in the Indenture), as applicable, following the date of such
Registration Default. Such Liquidated Damages will accrue (1) in respect of the
Securities at the rates set forth in paragraphs (a), (b) or (c) of this Section
7, as applicable, on the principal amount of the Securities and (2) in respect
of the Common Stock issued upon conversion of the Securities, at the rates set
forth in paragraphs (a), (b) or (c) of this Section 7, as applicable, applied to
the Conversion Price (as defined in the Indenture) at that time.
(e) Except as provided in Section 8(b) hereof, the Liquidated
Damages as set forth in this Section 7 shall be the exclusive monetary remedy
available to the Holders of Registrable Securities for such Registration Default
or Effective Failure. In no event shall the Company be
-15-
required to pay Liquidated Damages in excess of the applicable maximum amount of
one-half of one percent (0.5%) set forth above, regardless of whether one or
multiple Registration Defaults exist.
8. MISCELLANEOUS.
(a) OTHER REGISTRATION RIGHTS. The Company may grant registration
rights that would permit any person that is a third party the right to
piggy-back on any Shelf Registration Statement, PROVIDED that if the Managing
Underwriter of any underwritten offering conducted pursuant to Section 6 hereof
notifies the Company and the Electing Holders that the total amount of
securities which the Electing Holders and the holders of such piggy-back rights
intend to include in any Shelf Registration Statement is so large as to
materially threaten the success of such offering (including the price at which
such securities can be sold), then the amount, number or kind of securities to
be offered for the account of holders of such piggy-back rights will be reduced
to the extent necessary to reduce the total amount of securities to be included
in such offering to the amount, number and kind recommended by the Managing
Underwriter prior to any reduction in the amount of Registrable Securities to be
included in such Shelf Registration Statement.
(b) SPECIFIC PERFORMANCE. The parties hereto acknowledge that there
would be no adequate remedy at law if the Company fails to perform any of its
obligations hereunder and that the Purchasers and the Holders from time to time
may be irreparably harmed by any such failure, and accordingly agree that the
Purchasers and such Holders, in addition to any other remedy to which they may
be entitled at law or in equity and without limiting the remedies available to
the Electing Holders under Section 7 hereof, shall be entitled to compel
specific performance of the obligations of the Company under this Registration
Rights Agreement in accordance with the terms and conditions of this
Registration Rights Agreement, in any court of the United States or any State
thereof having jurisdiction.
(c) AMENDMENTS AND WAIVERS. This Agreement, including this Section
8(c), may be amended, and waivers or consents to departures from the provisions
hereof may be given, only by a written instrument duly executed by the Company,
Guarantors and the holders of a majority in aggregate principal amount of
Registrable Securities then outstanding. Each Holder of Registrable Securities
outstanding at the time of any such amendment, waiver or consent or thereafter
shall be bound by any amendment, waiver or consent effected pursuant to this
Section 8(c), whether or not any notice, writing or marking indicating such
amendment, waiver or consent appears on the Registrable Securities or is
delivered to such Holder.
(d) NOTICES. All notices and other communications provided for or
permitted hereunder shall be given as provided in the Indenture.
(e) PARTIES IN INTEREST. The parties to this Agreement intend that
all Holders of Registrable Securities shall be entitled to receive the benefits
of this Agreement and that any Electing Holder shall be bound by the terms and
provisions of this Agreement by reason of such election with respect to the
Registrable Securities which are included in a Shelf Registration Statement. All
the terms and provisions of this Agreement shall be binding upon, shall inure to
the benefit of and shall be enforceable by the respective successors and assigns
of the parties hereto and any Holder from time to time of the Registrable
Securities to the aforesaid extent. In the event that any transferee of any
Holder of Registrable Securities shall acquire Registrable
-16-
Securities, in any manner, whether by gift, bequest, purchase, operation of law
or otherwise, such transferee shall, without any further writing or action of
any kind, be entitled to receive the benefits of and, if an Electing Holder, be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement to the aforesaid extent.
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(i) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties hereto shall be enforceable to the fullest extent permitted by law.
(j) SURVIVAL. The respective indemnities, agreements,
representations, warranties and other provisions set forth in this Agreement or
made pursuant hereto shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Electing Holder, any director, officer or partner of such Holder, any
agent or underwriter, any director, officer or partner of such agent or
underwriter, or any controlling person of any of the foregoing, and shall
survive the transfer and registration of the Registrable Securities of such
Holder.
-17-
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
The Pep Boys - Manny, Moe & Xxxx
By: /s/ Xxxxxxx X. XxXxxxx
---------------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: Vice President - Chief Accounting
Officer and Treasurer
The Pep Boys Xxxxx Xxx & Xxxx of California
By: /s/ Xxxxxxx X. XxXxxxx
---------------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: Vice President - Chief Accounting
Officer and Treasurer
Pep Boys - Manny, Moe & Xxxx of Delaware, Inc.
By: /s/ Xxxxxxx X. XxXxxxx
---------------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: Vice President - Chief Accounting
Officer and Treasurer
Pep Boys - Manny, Moe & Xxxx of Puerto Rico, Inc.
By: /s/ Xxxxxxx X. XxXxxxx
---------------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: Vice President - Chief Accounting
Officer and Treasurer
Accepted as of the date hereof:
Xxxxxxx, Sachs & Co.
First Union Securities, Inc.
Advest, Inc.
By: /s/ Xxxxxxx, Xxxxx & Co.
---------------------------------------
(Xxxxxxx, Sachs & Co.)
On behalf of each of the Purchasers
-18-
APPENDIX A
THE PEP BOYS - MANNY, MOE & XXXX
INSTRUCTION TO DTC PARTICIPANTS
(DATE OF MAILING)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: ___________
The Depository Trust Company ("DTC") has identified you as a DTC
Participant through which beneficial interests in The Pep Boys - Manny, Moe &
Xxxx (the "Company") 4.25% Convertible Senior Notes due June 1 2007 (the
"Securities") are held.
The Company is in the process of registering the Securities under the
Securities Act of 1933 for resale by the beneficial owners thereof. In order to
have their Securities included in the registration statement, beneficial owners
must complete and return the enclosed Notice of Registration Statement and
Selling Securityholder Questionnaire.
IT IS IMPORTANT THAT BENEFICIAL OWNERS OF THE SECURITIES RECEIVE A
COPY OF THE ENCLOSED MATERIALS AS SOON AS POSSIBLE as their rights to have the
Securities included in the registration statement depend upon their returning
the Notice and Questionnaire by _____________. Please forward a copy of the
enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact ____________, The
Pep Boys - Manny, Moe & Xxxx, 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, XX
00000, telephone (215) 430-____.
-19-
THE PEP BOYS - MANNY, MOE & XXXX
Notice of Registration Statement
and
SELLING SECURITYHOLDER QUESTIONNAIRE
_________, 2002
The Pep Boys - Manny, Moe & Xxxx (the "COMPANY") has filed with the
United States Securities and Exchange Commission (the "Commission") a
registration statement on Form S-3 (the "SHELF REGISTRATION STATEMENT") for the
registration and resale under Rule 415 of the United States Securities Act of
1933, as amended (the "SECURITIES ACT"), of the Company's 4.25% Convertible
Senior Notes (the "SECURITIES") and the shares of common stock, par value $1 per
share (the "COMMON STOCK"), issuable upon conversion thereof, in accordance with
the Registration Rights Agreement, dated as of May 21, 2002 (the "REGISTRATION
RIGHTS AGREEMENT"), between the Company and the purchasers named therein. A copy
of the Registration Rights Agreement is attached hereto. All capitalized terms
not otherwise defined herein shall have the meanings ascribed thereto in the
Registration Rights Agreement.
In order to have Registrable Securities included in the Shelf
Registration Statement (or a supplement or amendment thereto), this Notice of
Registration Statement and Selling Securityholder Questionnaire ("NOTICE AND
QUESTIONNAIRE") must be completed, executed and delivered to the Company at the
address set forth herein for receipt ON OR BEFORE _____________. Beneficial
owners of Registrable Securities who do not complete, execute and return this
Notice and Questionnaire by such date (i) will not be named as selling
securityholders in the Shelf Registration Statement and (ii) may not use the
Prospectus forming a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and related Prospectus.
-20-
The term "REGISTRABLE SECURITIES" is defined in the Registration
Rights Agreement to mean all or any portion of the Securities issued from time
to time under the Indenture in registered form and the shares of Common Stock
issuable upon conversion of such Securities; PROVIDED, HOWEVER, that a security
ceases to be a Registrable Security when it is no longer a Restricted Security.
Each Security is entitled to the benefit of the Guarantees provided for in the
Indenture.
The term "RESTRICTED SECURITY" is defined in the Registration Rights
Agreement to mean any Security or share of Common Stock issuable upon conversion
thereof except any such Security or share of Common Stock which (i) has been
effectively registered under the Securities Act and sold in a manner
contemplated by the Shelf Registration Statement, (ii) has been transferred in
compliance with Rule 144 under the Securities Act (or any successor provision
thereto) or is transferable pursuant to paragraph (k) of such Rule 144 (or any
successor provision thereto), or (iii) has otherwise been transferred and a new
Security or share of Common Stock not subject to transfer restrictions under the
Securities Act has been delivered by or on behalf of the Company in accordance
with Section 3.5 of the Indenture.
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable
Securities hereby elects to include in the Shelf Registration Statement the
Registrable Securities beneficially owned by it and listed below in Item (3).
The undersigned, by signing and returning this Notice and Questionnaire, agrees
to be bound with respect to such Registrable Securities by the terms and
conditions of this Notice and Questionnaire and the Registration Rights
Agreement, including, without limitation, Section 5 of the Registration Rights
Agreement, as if the undersigned Selling Securityholder were an original party
thereto.
Upon any sale of Registrable Securities pursuant to the Shelf
Registration Statement, the Selling Securityholder will be required to deliver
to the Company and the Trustee the Notice of Transfer (completed and signed) set
forth in Exhibit 1 to this Notice and Questionnaire.
The Selling Securityholder hereby provides the following information
to the Company and represents and warrants that such information is accurate and
complete:
-21-
QUESTIONNAIRE
(1)(a) Full Legal Name of Selling Securityholder:
_____________________________________________________________________
(b) Full Legal Name of Registered Holder (if not the same as in (a)
above) of Registrable Securities Listed in Item (3) Below:
_____________________________________________________________________
(c) Full Legal Name of DTC Participant (if applicable and if not the same
as (b) above) Through Which Registrable Securities Listed in Item (3)
Below are Held:
_____________________________________________________________________
(2) Address for Notices to Selling Securityholder:
_______________________________
_______________________________
_______________________________
Telephone: _______________________________
Fax: _______________________________
Contact Person: _______________________________
(3) Beneficial Ownership of Securities:
EXCEPT AS SET FORTH BELOW IN THIS ITEM (3), THE UNDERSIGNED SELLING
SECURITYHOLDER DOES NOT BENEFICIALLY OWN ANY SECURITIES OR SHARES OF
COMMON STOCK ISSUED UPON CONVERSION, REPURCHASE OR REDEMPTION OF ANY
SECURITIES.
(a) Principal amount of Registrable Securities (as defined in the
Registration Rights Agreement) beneficially owned: __________________
CUSIP No(s). of such Registrable Securities: ________________________
Number of shares of Common Stock (if any) issued upon conversion,
repurchase or redemption of Registrable Securities: _________________
(b) Principal amount of Securities other than Registrable Securities
beneficially owned: _________________________________________________
CUSIP No(s). of such other Securities: ______________________________
Number of shares of Common Stock (if any) issued upon conversion of
such other Securities: ______________________________________________
(c) Principal amount of Registrable Securities which the undersigned
wishes to be included in the Shelf Registration Statement: __________
CUSIP No(s). of such Registrable Securities to be included in the
Shelf Registration Statement: _______________________________________
Number of shares of Common Stock (if any) issued upon conversion of
Registrable Securities which are to be included in the Shelf
Registration Statement: _________________
-22-
(4) Beneficial Ownership of Other Securities of the Company:
EXCEPT AS SET FORTH BELOW IN THIS ITEM (4), THE UNDERSIGNED SELLING
SECURITYHOLDER IS NOT THE BENEFICIAL OR REGISTERED OWNER OF ANY
SHARES OF COMMON STOCK OR ANY OTHER SECURITIES OF THE COMPANY, OTHER
THAN THE SECURITIES AND SHARES OF COMMON STOCK LISTED ABOVE IN
ITEM (3).
State any exceptions here:
(5) Relationships with the Company:
EXCEPT AS SET FORTH BELOW, NEITHER THE SELLING SECURITYHOLDER NOR ANY
OF ITS AFFILIATES, OFFICERS, DIRECTORS OR PRINCIPAL EQUITY HOLDERS
(5% OR MORE) HAS HELD ANY POSITION OR OFFICE OR HAS HAD ANY OTHER
MATERIAL RELATIONSHIP WITH THE COMPANY (OR ITS PREDECESSORS OR
AFFILIATES) DURING THE PAST THREE YEARS.
State any exceptions here:
(6) Plan of Distribution:
EXCEPT AS SET FORTH BELOW, THE UNDERSIGNED SELLING SECURITYHOLDER
INTENDS TO DISTRIBUTE THE REGISTRABLE SECURITIES LISTED ABOVE IN ITEM
(3) ONLY AS FOLLOWS (IF AT ALL): SUCH REGISTRABLE SECURITIES MAY BE
SOLD FROM TIME TO TIME DIRECTLY BY THE UNDERSIGNED SELLING
SECURITYHOLDER OR, ALTERNATIVELY, THROUGH UNDERWRITERS,
BROKER-DEALERS OR AGENTS. SUCH REGISTRABLE SECURITIES MAY BE SOLD IN
ONE OR MORE TRANSACTIONS AT FIXED PRICES, AT PREVAILING MARKET PRICES
AT THE TIME OF SALE, AT VARYING PRICES DETERMINED AT THE TIME OF
SALE, OR AT NEGOTIATED PRICES. SUCH SALES MAY BE EFFECTED IN
TRANSACTIONS (WHICH MAY INVOLVE CROSSES OR BLOCK TRANSACTIONS) (i) ON
ANY NATIONAL SECURITIES EXCHANGE OR QUOTATION SERVICE ON WHICH THE
REGISTRABLE SECURITIES MAY BE LISTED OR QUOTED AT THE TIME OF SALE,
(ii) IN THE OVER-THE-COUNTER MARKET, (iii) IN TRANSACTIONS OTHERWISE
THAN ON SUCH EXCHANGES OR SERVICES OR IN THE OVER-THE-COUNTER MARKET,
OR (iv) THROUGH THE WRITING OF OPTIONS. IN CONNECTION WITH SALES OF
THE REGISTRABLE SECURITIES OR OTHERWISE, THE SELLING SECURITYHOLDER
MAY ENTER INTO HEDGING TRANSACTIONS WITH BROKER-DEALERS, WHICH MAY IN
TURN ENGAGE IN SHORT SALES OF THE REGISTRABLE SECURITIES IN THE
COURSE OF HEDGING THE POSITIONS THEY ASSUME. THE SELLING
SECURITYHOLDER MAY ALSO SELL REGISTRABLE SECURITIES SHORT AND DELIVER
REGISTRABLE SECURITIES TO CLOSE OUT SUCH SHORT POSITIONS, OR LOAN OR
PLEDGE REGISTRABLE SECURITIES TO BROKER-DEALERS THAT IN TURN MAY SELL
SUCH SECURITIES.
State any exceptions here:
Note: In no event may such method(s) of distribution take the form of
an underwritten offering of the Registrable Securities without the prior
agreement of the Company.
-23-
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
prospectus delivery and other provisions of the Securities Act and the Exchange
Act and the rules and regulations thereunder, particularly Regulation M.
In the event that the Selling Securityholder transfers all or any
portion of the Registrable Securities listed in Item (3) above after the date on
which such information is provided to the Company, the Selling Securityholder
agrees to notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Registration Rights
Agreement.
By signing below, the Selling Securityholder consents to the
disclosure of the information contained herein in its answers to Items (1)
through (6) above and the inclusion of such information in the Shelf
Registration Statement and related Prospectus. The Selling Securityholder
understands that such information will be relied upon by the Company in
connection with the preparation of the Shelf Registration Statement and related
Prospectus.
In accordance with the Selling Securityholder's obligation under
Section 3(a) of the Registration Rights Agreement to provide such information as
may be required by law for inclusion in the Shelf Registration Statement, the
Selling Securityholder agrees to promptly notify the Company of any inaccuracies
or changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Registration Rights Agreement
shall be made in writing, by hand-delivery, first-class mail, or air courier
guaranteeing overnight delivery as follows:
(i) To the Company:
The Pep Boys - Manny, Moe & Xxxx
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Chief Legal Officer
(ii) With a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company, the terms of this Notice and
Questionnaire, and the representations and warranties contained herein, shall be
binding on, shall inure to the benefit of and shall be enforceable by the
respective successors, heirs, personal representatives, and assigns of the
Company and the Selling Securityholder (with respect to the Registrable
Securities beneficially owned by such Selling Securityholder and listed in
Item (3) above). This Agreement shall be governed in all respects by the laws of
the State of New York.
-24-
IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered either in
person or by its duly authorized agent.
Dated:
-------------------
----------------------------------------------------------------
Selling Securityholder
(Print/type full legal name of beneficial owner of Registrable
Securities)
By:
------------------------------------------------------------
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR
RECEIPT ON OR BEFORE ___________, _____ TO THE COMPANY AT:
The Pep Boys - Manny, Moe & Xxxx
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Chief Legal Officer
-25-
EXHIBIT 1
TO APPENDIX A
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
The Pep Boys - Manny, Moe & Xxxx
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Chief Legal Officer
Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx
XX0000
Xxxxxxxxxxx, XX 00000
Re: The Pep Boys - Manny, Moe & Xxxx (the "Company")
4.25% Convertible Senior Notes due June 1, 2007 (the "Notes")
Dear Sirs:
Please be advised that _____________________ has transferred
$___________ aggregate principal amount of the above-referenced Notes or shares
of the Company's common stock, issued upon conversion, repurchase or redemption
of Notes, pursuant to an effective Registration Statement on Form S-3 (File No.
333-____) filed by the Company.
We hereby certify that the prospectus delivery requirements, if any,
of the Securities Act of 1933, as amended, have been satisfied with respect to
the transfer described above and that the above-named beneficial owner of the
Notes or common stock is named as a selling securityholder in the Prospectus
dated __________, or in amendments or supplements thereto, and that the
aggregate principal amount of the Notes or number of shares of common stock
transferred are [a portion of] the Notes or shares of common stock listed in
such Prospectus as amended or supplemented opposite such owner's name.
Dated:
Very truly yours,
-------------------------
(Name)
By:
-------------------------
(Authorized Signature)
-26-
