AGREEMENT
PAGE 17 OF 29
AGREEMENT
This AGREEMENT (this “Agreement”), dated as of June 25, 2008, is made by and between ESL
Investments, Inc., a Delaware corporation (together with its affiliates, “ESL”), and AutoZone,
Inc., a Nevada corporation (the “Company”). Each of ESL and the Company is a “Party” and are
collectively, the “Parties.”
WHEREAS, as of June 24, 2008, ESL owned, and had the right to vote, that number of shares of
common stock, par value $0.01 per share, of the Company (the “Common Stock”), set forth on
Schedule A to this Agreement (the “Initial Shares”), which represented in the aggregate,
based on the 63,303,490 shares of Common Stock outstanding as of June 24, 2008, approximately 36.2%
of the voting power of the Common Stock; and
WHEREAS, ESL and the Company desire to enter into this Agreement in order to set forth certain
understandings and agreements regarding the voting by ESL of any shares of Common Stock that it may
own from time to time in excess of agreed thresholds, protections for non-ESL stockholders in
certain transactions involving the Company or ESL, as well as certain other matters.
NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the
Parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. For the purposes of this Agreement the following definitions shall
apply:
“Additional Share Percentage” means, (i) if the Record Date ESL Percentage is less than or
equal to the Specified Percentage, a percentage equal to zero (0) or (ii) if the Record Date ESL
Percentage is greater than the Specified Percentage, a percentage equal to (x) the Record Date ESL
Percentage minus (y) the Specified Percentage.
“Additional Shares” means a number equal to the product of (i) the Record Date Outstanding
Shares multiplied by (ii) the Additional Share Percentage.
An “affiliate” of ESL means any person or entity that directly, or indirectly through one of
more intermediaries, controls, or is controlled by, or is under common control with, ESL. For the
avoidance of doubt, the Company and its subsidiaries shall not be deemed to be affiliates of ESL.
“Aggregate ESL Percentage” means as of any date the sum of (a) the lesser of (x) the quotient
of (i) the Subject Shares divided by (ii) the Outstanding Shares or (y) 40%, plus
(b) the
PAGE 18 OF 29
quotient of (aa) the Subject Shares minus the Initial Shares divided by (bb)
the Outstanding Shares.
“Outstanding Shares” means the number of shares of Common Stock outstanding.
“Record Date ESL Percentage” means the quotient of (i) the Subject Shares divided by
(ii) the Record Date Outstanding Shares.
“Record Date Outstanding Shares” means the number of shares of Common Stock outstanding as of
the record date for purposes of the stockholder vote (including by written consent) regarding which
the Additional Shares are being calculated.
“Specified Percentage” means 40% at all times until the conclusion of the 2009 Annual Meeting
and 37.5% at all times thereafter.
“Subject Shares” means the number of shares of Common Stock owned by ESL.
“2008 Annual Meeting” means the first annual meeting of stockholders of the Company held
following the conclusion of the Company’s fiscal year ending on August 30, 2008, at which the
Company’s Board of Directors are elected.
“2009 Annual Meeting” means the first annual meeting of stockholders of the Company, finally
adjourned following the conclusion of the Company’s fiscal year ending on August 29, 2009
(i.e., its “2009 fiscal year”), at which the Company’s Board of Directors are elected,
provided that the 2008 Annual Meeting shall have already occurred.
“Unaffiliated Shares” means all Outstanding Shares that are not Subject Shares.
ARTICLE II
VOTING AGREEMENT
Section 2.1 Voting Agreement.
(a) ESL shall, at each meeting of the stockholders of the Company, whether an annual meeting
or a special meeting, however called, and at each adjournment or postponement of any such meeting
(a “Stockholders’ Meeting”), and in all other circumstances upon which a vote, consent or other
approval (including, without limitation, by written consent) is sought by or from the stockholders
of the Company (any such vote, consent or approval, a “Stockholders’ Consent”), appear at such
Stockholders’ Meeting or otherwise cause all Subject Shares to be counted as present for the
purpose of establishing a quorum.
(b) Subject to the provisions of Section 7.2(b), ESL shall, at each Stockholders’ Meeting and
in connection with the execution of each Stockholders’ Consent, vote all Additional Shares on all
matters proposed in the same proportion as Unaffiliated Shares are actually voted (it being
understood that, in connection with any action by written consent, shares not consenting shall be
treated as shares voted against such action).
PAGE 19 OF 29
Section 2.2 Irrevocable Proxy.
(a) Subject to the provisions of Section 7.2(b), as security for ESL’s obligations under
Section 2.1 of this Agreement, ESL hereby irrevocably constitutes and appoints the Company (acting
through the CEO, CFO, General Counsel or such other persons so designated by the Board of Directors
of the Company (the “Board”) from time to time) as its attorney and proxy in accordance with the
Nevada Revised Statutes, with full power of substitution and re-substitution, to cause the
Additional Shares to be counted as present at any Stockholders’ Meeting, to vote the Additional
Shares at any Stockholders’ Meeting, and to execute any Stockholders’ Consent in respect of the
Additional Shares as and to the extent provided in Section 2.1(b) of this Agreement. The powers
granted in this Section 2.2 shall also entitle the Company to give instructions to any nominee
through whom ESL may hold Shares. ESL shall from time to time provide the Company with any nominee
information that the Company may require to exercise its rights hereunder. ESL hereby revokes all
other proxies and powers of attorney with respect to the Subject Shares that it may have previously
appointed or granted and represents that any proxies previously given in respect of the Subject
Shares, if any, are revocable.
(b) Upon the failure of ESL to comply with its obligations under Section 2.1(a) of this
Agreement, ESL hereby irrevocably constitutes and appoints the Company (acting through the CEO,
CFO, General Counsel or such other persons so designated by the Board from time to time) as its
attorney and proxy in accordance with the Nevada Revised Statutes, with full power of substitution
and re-substitution, to cause the Subject Shares (excluding the Additional Shares) to be counted as
present at any Stockholders’ Meeting as and to the extent provided in Section 2.1(a) of this
Agreement, but such shares (i.e., the Subject Shares excluding the Additional Shares) may
not otherwise be voted by the Company.
(c) ESL hereby affirms that the irrevocable proxy set forth in this Section 2.2 is given to
induce the Company to perform the obligations set forth in Article III of this Agreement and to
secure the performance of the duties of ESL under this Agreement. ESL hereby further affirms that
the irrevocable proxy is coupled with an interest and, except as set forth in this Section 2.2 or
in Section 8.1 of this Agreement, is intended to be irrevocable in accordance with the provisions
of Section 78.355 of the Nevada Revised Statutes. If for any reason the proxy granted herein is not
irrevocable, then ESL agrees to vote the Additional Shares in accordance with Section 2.1(b) of
this Agreement. The Parties agree that the foregoing is a voting agreement created under Section
78.365 of the Nevada Revised Statutes.
(d) This irrevocable proxy shall be effective for each Stockholders’ Meeting or Stockholders’
Consent so designated by the Company (unless and to the extent that ESL has complied with its
obligations under Section 2.1 of this Agreement or the provisions of Section 2.1(b) are suspended,
in either case, for such meeting or action taken by written consent) and shall automatically
terminate on the Termination Date (as defined in Section 8.1 below). Prior to the Termination Date,
this irrevocable proxy shall not be terminated by any act of ESL or by operation of law, whether by
the dissolution or entrance into bankruptcy or foreclosure of ESL or by the occurrence of any other
event or events, it being understood that actions taken by
PAGE 20 OF 29
the Company hereunder prior to the Termination Date shall be and remain valid as if such
dissolution, entry into bankruptcy or foreclosure or other event or events had not occurred,
regardless of whether or not the Company has received notice of the same.
ARTICLE III
ADDITION OF DIRECTORS
TO THE BOARD OF DIRECTORS OF THE COMPANY
TO THE BOARD OF DIRECTORS OF THE COMPANY
Section 3.1 New Directors. In accordance with the provisions of this Article III, the
Company shall take appropriate actions, once nominees are identified satisfying the requirements of
Section 3.2, to add three (3) new members to the Board (the “New Directors”). It is the intent of
the parties that such additions shall occur as promptly as practicable, but in no case later than
the Company’s 2008 Annual Meeting of Stockholders.
Section 3.2 Selection of New Directors.
(a) An independent search agency has been engaged to identify a nominee for one (1) of the New
Director positions (the “Specified Director”) pursuant to criteria previously determined by the
Nominating and Corporate Governance Committee and all of the directors shall be permitted to
propose persons as suggested candidates for the Specified Director to such independent search
agency. A candidate identified shall be considered by the Nominating and Corporate Governance
Committee in accordance with its regular policies and procedures, which shall include, without
limitation, consideration of such candidate’s background, competencies and experience. A candidate
shall be recommended by the Nominating and Corporate Governance Committee as a nominee for election
by the Board as the Specified Director only if he or she is (a) deemed to be “independent” pursuant
to the Company’s corporate governance principles and the rules and regulations of the New York
Stock Exchange and (b) reasonably acceptable to both ESL and a majority of the members of the
Nominating and Corporate Governance Committee. Only a nominee who is recommended by the Nominating
and Corporate Governance Committee shall be presented to the Board as a potential nominee for
election as the Specified Director.
(b) Two (2) New Directors (the “Non-Specified Directors”) shall be appointed from nominees
identified by ESL, including persons suggested by other directors to ESL who are reasonably
acceptable to ESL (any such person, a “Candidate”). Each Candidate identified shall be considered
by the Nominating and Corporate Governance Committee in accordance with its regular policies and
procedures, which shall include, without limitation, consideration of such Candidate’s background,
competencies, experience and affiliation with ESL (if any). Only candidates which are reasonably
acceptable to both ESL and a majority of the members of the Nominating and Corporate Governance
Committee may be recommended by the Nominating and Corporate Governance Committee for election to
the Board. Either or both of the two Candidates may, at ESL’s discretion, be an officer of ESL and
its affiliated investment entities. Each candidate shall qualify as “independent” pursuant to the
Company’s corporate governance principles and the rules and regulations of the New York Stock
Exchange. The Company will use its reasonable best efforts to have the Nominating and Corporate
Governance
PAGE 21 OF 29
Committee promptly recommend Candidates for election to the Board once candidates are
identified satisfying the requirements above.
(c) Subject to the nomination of directors in accordance with the provisions of Section 3.2(a)
and 3.2(b), the Company’s Board of Directors shall promptly take all action required to cause the
Specified Director and Non-Specified Directors to be so elected.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF ESL
ESL hereby represents and warrants to the Company as follows:
Section 4.1 Authority for this Agreement. ESL has all necessary power and authority to
execute and deliver this Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by ESL and the consummation by ESL of the transactions
contemplated hereby (i) will not violate the charter, bylaws or any other organizational documents
of ESL, (ii) will not violate any order, writ, injunction, decree, statute, rule, regulation or law
applicable to ESL or by which any of the Subject Shares are bound, (iii) will not violate or
constitute a breach or default under any agreement by which ESL or the Subject Shares may be bound,
and (iv) have been duly and validly authorized, and no other proceedings on the part of ESL are
necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by ESL and, assuming it has been duly
and validly authorized, executed and delivered by the Company, constitutes a legal, valid and
binding agreement of ESL, enforceable against ESL in accordance with its terms. There is no
beneficiary or holder of a voting trust certificate or other interest of any trust of which ESL is
a trustee, or any party to any other agreement or arrangement, whose consent is required for the
execution and delivery of this Agreement or the consummation by ESL of the transactions
contemplated hereby.
Section 4.2 Ownership of Shares. As of the date of this Agreement, except as disclosed on
Schedule A to this Agreement, ESL is the sole record and beneficial owner of the number of
Initial Shares set forth on Schedule A to this Agreement, free and clear of all pledges,
liens, proxies, claims, charges, security interests, preemptive rights, voting trusts, voting
agreements, options, rights of first offer or refusal and any other encumbrances or arrangements
whatsoever with respect to the ownership, transfer or other voting of the Initial Shares other than
the encumbrances created by this Agreement and any restrictions on transfer under applicable
federal and state securities laws (collectively, “Liens”). Except as disclosed on Schedule A to
this Agreement, as of the date of this Agreement, there are no outstanding options, warrants or
rights to purchase or acquire, or agreements or arrangements relating to the voting of, any Subject
Shares and ESL has the sole authority to direct the voting of the Subject Shares in accordance with
the provisions of this Agreement and the sole power of disposition with respect to the Subject
Shares, with no restrictions, subject to applicable federal and state securities laws on his rights
of disposition pertaining thereto (other than Liens or restrictions created by this Agreement).
Except as disclosed on Schedule A to this Agreement, as of the date of this Agreement, ESL
does not own beneficially or of record any equity securities of the Company.
PAGE 22 OF 29
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to ESL as follows:
Section 5.1 Authority for this Agreement. The Company has all necessary corporate power and
authority to execute and deliver this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by the Company and the consummation by the
Company of the transactions contemplated hereby (i) will not violate any order, writ, injunction,
decree, statute, rule, regulation or law applicable to the Company, (ii) will not violate or
constitute a breach or default under any agreement by which the Company may be bound, and (iii)
have been duly and validly authorized, and no other proceedings on the part of the Company are
necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by the Company and, assuming it has been
duly and validly authorized, executed and delivered by ESL, constitutes a legal, valid and binding
obligation of the Company enforceable against the Company in accordance with its terms.
ARTICLE VI
COVENANTS OF ESL
Section 6.1 No Inconsistent Agreements. ESL hereby covenants and agrees that (a) it has not
entered into and shall not enter into any agreement which would restrict, limit or interfere with
the performance of its obligations hereunder and (b) it shall not knowingly take any action that
would reasonably be expected to make any of its representations or warranties contained herein
untrue or incorrect or have the effect of preventing or disabling it from performing its
obligations hereunder.
Section 6.2 Restrictions on Certain Transfers and Proxies.
(a) Other than pursuant to the terms of this Agreement, without the prior written consent of
the Company or as otherwise provided in this Agreement, ESL shall not directly or indirectly grant
any proxy or enter into any voting trust or other agreement or arrangement with respect to the
voting of any Additional Shares.
(b) Without the prior written consent of the Company, ESL shall not, directly or indirectly,
grant any proxy (other than the proxy granted to the Company pursuant to Section 2.2 of this
Agreement and, if applicable, a proxy granted to any other person (a “Third Party Proxy”) which
conforms to the requirements of the immediately succeeding sentence of this Section 6.2(b)) or
enter into any voting trust or other agreement or arrangement with respect to the voting of any
Subject Shares (excluding the Additional Shares). Notwithstanding the immediately preceding
sentence, ESL may grant a Third Party Proxy with respect to the voting of any Subject Shares
(excluding the Additional Shares) so long as such Third Party Proxy shall
PAGE 23 OF 29
in all cases be (i) immediately and fully revocable by ESL at any time without prior notice to
the holder of such proxy and (ii) subordinate and subject to the rights of the Company under this
Agreement.
Section 6.3 Future Sales and/or Transactions Involving an Acquisition of the Company.
(a) ESL shall not dispose or agree to dispose of any shares of Common Stock pursuant to any
agreement, arrangement or understanding (whether or not in writing), including by way of merger or
other business combination, at a price above the market price per share prevailing at the time of
such agreement, arrangement or understanding, without taking appropriate steps to ensure that the
purchaser of such shares simultaneously provides all other holders of Common Stock with an
opportunity to dispose of a number of shares (representing, for each Company stockholder, the same
proportion of owned shares of Common Stock as ESL proposes to dispose of) in such transaction on
the same terms and conditions, including price per share, as ESL. It is understood that (i) sales
in the open market shall be deemed to be at prevailing market prices and (ii) (a) the transfer of
Shares of Common Stock from one ESL affiliate subject to this Agreement to another, (b)
distributions by ESL to its shareholders or limited partners, and (c) sales to the Company or third
parties approved by at least two directors representing a majority of the independent,
disinterested directors unaffiliated with ESL, shall not constitute a disposition subject to this
Section 6.3(a).
(b) ESL shall not pursue, either directly or indirectly, including as part of a group, a
transaction resulting in the acquisition of all or substantially all of the shares of Common Stock
not owned by ESL or by such group (including, for example, in a leveraged recap in which “stub
equity” is left in the hands of some or all of the non-ESL stockholders) unless the following
procedures and requirements are followed and satisfied. The Board shall establish a committee of
independent, disinterested directors unaffiliated with ESL (the “Special Committee”) to review and
evaluate any transaction (other than any such transaction in which ESL would be treated on the same
basis as all other Company stockholders) proposed by ESL or in which ESL intends to participate,
with full authority to negotiate and recommend the terms of such a transaction on behalf of the
Company and the non-ESL stockholders. ESL will proceed only with a transaction recommended by the
Special Committee, unless the acquisition is structured as a “non-coercive” tender offer, followed
by a merger at the same price if the offer is successful, not subject to the test of “entire
fairness” in accordance with applicable Delaware case law (e.g., the decisions involving
Silconix and Pure Resources), assuming, for these purposes, that the Company had been incorporated
under the laws of the State of Delaware and was subject to Delaware law.
(c) The provisions of this Section 6.3 may be enforced by any directors constituting a
majority of the independent, disinterested directors unaffiliated with ESL or, in the absence of
any such persons sitting on the Board, through a derivative action.
Section 6.4 Information Regarding Common Stock. If ESL increases or decreases the number of
Subject Shares it owns at any time prior to the Termination Date, ESL
PAGE 24 OF 29
shall give prompt notice to the Company of such increase or decrease (which notice may be satisfied
by a filing of a Form 4 with the Securities and Exchange Commission on a timely basis). If
requested by ESL, the Company shall promptly provide ESL with the number of Outstanding Shares.
ARTICLE VII
COVENANTS OF THE COMPANY
Section 7.1 Restrictions on Certain Company Actions. Other than pursuant to the terms of
this Agreement, without the prior written consent of ESL, the Company shall not take any action,
including the adoption of a stockholder rights plan, that would prevent ESL from exercising voting
rights or acquiring additional shares of Common Stock, except to the extent that such action is
required by applicable law (including the implementation of blackout periods that apply equally to
the Company and all affiliates of the Company).
Section 7.2 Target Adjusted Debt/EBITDAR Ratio.
(a) The Company shall use its commercially reasonable efforts to achieve, no later than
February 14, 2009, the last day of the Company’s second quarter of the Company’s 2009 fiscal year,
an adjusted debt/EBITDAR ratio of at least 2.5:1. For purposes of this section 7.2, adjusted
debt/EBITDAR ratio shall be calculated in a manner consistent with the calculation of such ratio in
the Company’s quarterly earnings release.
(b) If the Company shall not have achieved the targeted adjusted debt/EBITDAR ratio referenced
in Section 7.2(a) by the end of the second quarter of the Company’s 2009 fiscal year, the
provisions of Section 2.1(b) shall be suspended until such time as the targeted adjusted
debt/EBITDAR ratio is achieved.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Termination. This Agreement and all of its provisions shall terminate upon the
Termination Date; provided that Sections 8.3, 8.4, 8.5, 8.7, 8.8, 8.9, 8.10, 8.13 and, in the case
of clause (b) below, 6.3 of this Agreement shall survive any termination of this Agreement. For
purposes of this Agreement, “Termination Date” means the earliest of (a) the date upon which the
Subject Shares shall, in the aggregate, constitute less than 25% of the Outstanding Shares, (b) the
date upon which the Aggregate ESL Percentage shall exceed 50% and (c) the date upon which the
Parties (which, in the case of the Company, shall have been authorized by at least two directors
representing a majority of the independent and disinterested members of the Board unaffiliated with
ESL) mutually agree in writing that this Agreement and all of its provisions shall no longer be in
effect. Nothing in this Section 8.1 shall be deemed to release any Party from any liability for any
breach by such Party of their representations and warranties or any other terms and provisions of
this Agreement.
PAGE 25 OF 29
Section 8.2 No Ownership Interest. Except as expressly set forth in this Agreement,
including, without limitation, in Section 2.2 of this Agreement, nothing contained in this
Agreement shall be deemed to vest in the Company any direct or indirect ownership, or incidence of
ownership, of or with respect to any Subject Shares. All rights, ownership and economic benefits of
and relating to any Subject Shares shall remain and belong to ESL, and the Company shall not have
any authority to exercise any power or authority to manage, direct, superintend, restrict,
regulate, govern or administer any of the policies or operations of ESL or exercise any power or
authority to direct ESL in the voting of any of the Subject Shares, except as otherwise expressly
provided in this Agreement, including, without limitation, in Section 2.2 of this Agreement.
Section 8.3 Notices. All notices, requests, claims, demands and other communications
hereunder shall be given (and shall be deemed to have been duly received if given) by hand delivery
in writing or by facsimile transmission with confirmation of receipt or by a nationally recognized
overnight courier service, as follows:
If to the Company:
AutoZone, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxxxxx
Fax: 000-000-0000
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxxxxx
Fax: 000-000-0000
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxx Xxxxxx
Xxxxx X. Xxxxxxxx
Fax: 000-000-0000
0 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxx Xxxxxx
Xxxxx X. Xxxxxxxx
Fax: 000-000-0000
If to ESL:
ESL Investments, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Chief Financial Officer
Fax: 000-000-0000
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Chief Financial Officer
Fax: 000-000-0000
With a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxx
Fax: 000-000-0000
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxx
Fax: 000-000-0000
PAGE 26 OF 29
Section 8.4 Validity. Whenever possible, each provision or portion of any provision of this
Agreement shall be interpreted in such manner as to be effective and valid under applicable law but
if any provision or portion of any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any jurisdiction such invalidity,
illegality or unenforceability shall not affect any other provision or portion of any provision in
such jurisdiction, and this Agreement shall be reformed, construed and enforced in such
jurisdiction as if such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
Section 8.5 Entire Agreement; Assignment. This Agreement constitutes the entire agreement
between the Parties with respect to the subject matter of this Agreement and supersedes all other
prior agreements and understandings, both written and oral, between the Parties with respect to the
subject matter of this Agreement. The Agreement shall not be assigned by any Party by operation of
law or otherwise without the prior written consent of the other Party.
Section 8.6 Adjustments. If at any time during the period between the date of this
Agreement and the Termination Date, any change in the outstanding shares of capital stock of the
Company shall occur by reason of any reclassification, recapitalization, stock split or
combination, exchange or readjustment of shares, or any stock dividend on such capital stock with a
record date during such period, the number of shares of Common Stock shall be appropriately
adjusted to provide ESL and the Company with same results contemplated by this Agreement as of the
date it was executed.
Section 8.7 Amendment. This Agreement may not be amended except by an instrument in writing
signed by the Company (which, in the case of the Company, shall have been authorized by at least
two directors representing a majority of the independent and disinterested members of the Board
unaffiliated with ESL).
Section 8.8 Parties in Interest. This Agreement shall be binding upon and inure solely to
the benefit the Parties, and nothing in this Agreement, express or implied, is intended to confer
upon any other person or entity any rights or remedies of any nature whatsoever under or by reason
of this Agreement.
Section 8.9 Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Nevada (without giving effect to choice of law principles).
Section 8.10 Enforcement of the Agreement; Jurisdiction; Venue. The Parties agree that
irreparable damage would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached and that money damages
would be both incalculable and an insufficient remedy for any such non-performance or other breach.
It is accordingly agreed that each Party shall be entitled to seek an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and provisions of this
Agreement in the courts of the State of Nevada, this being in addition to any other remedy to which
it is entitled at law or in equity. Each Party agrees that it will not allege or assert that money
damages are an adequate or sufficient remedy for a breach of this Agreement as a defense or
objection to the request or granting of injunctive and /
PAGE 27 OF 29
or other equitable relief therefor. The Parties further agree that neither Party shall be required
to obtain, furnish or post any bond or similar instrument or other security in connection with or
as a condition to obtaining any remedy referred to in this Section 8.10, and each Party irrevocably
waives any right it may have to require the obtaining, furnishing or posting of any such bond or
similar instrument or other security. In addition, each Party (a) consents to submit itself to the
personal jurisdiction of any such court in the event any dispute arises out of this Agreement or
any transaction contemplated by this Agreement, (b) agrees that it will not attempt to deny or
defeat such personal jurisdiction by motion or other request for leave from any such court, (c)
agrees that it will not bring any action relating to this Agreement or any transaction contemplated
by this Agreement in any court other than a court in the State of Nevada and (d) waives any right
to trial by jury with respect to any action related to or arising out of this Agreement or any
transaction contemplated by this Agreement. Each Party irrevocably and unconditionally waives any
objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or
the transactions contemplated hereby in the courts of the State of Nevada and shall irrevocably and
unconditionally waive and agree not to plead or claim in any such court that any such action, suit
or proceeding brought in any such court has been brought in an inconvenient forum.
Section 8.11 Descriptive Headings. The descriptive headings herein are inserted for
convenience of reference only and are not intended to be part of or to affect the meaning or
interpretation of this Agreement.
Section 8.12 Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed to be an original, but all of which, taken together, shall constitute one and the
same agreement.
Section 8.13 Further Assurances. From time to time, at the request of the other Party and
without further consideration, each Party agrees to take such reasonable further action as may
reasonably be necessary or desirable to consummate and make effective the transactions contemplated
by this Agreement.
[signature page follows]
PAGE 28 OF 29
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed on the date
first written above.
| AUTOZONE, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx, III | |||
| Name: | Xxxxxxx X. Xxxxxx, III | |||
| Title: | Chairman, President and CEO | |||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | EVP, General Counsel and Secretary | |||
| ESL INVESTMENTS, INC. (on behalf of itself and its affiliates) |
||||
| By: | /s/ Xxxxxx Xxxx Maizey | |||
| Name: | Xxxxxx Xxxx Maizey | |||
| Title: | Chief Financial Officer | |||
PAGE 29 OF 29
SCHEDULE A
SHARES OF COMMON STOCK OWNED BY ESL
Shares of
Common Stock Held by ESL as of June 24, 2008: 22,928,783
Options to Purchase Shares of Common Stock Held of Record by ESL as of June 24, 2008: 0
Total
Shares of Common Stock Owned by ESL as of June 24, 2008: 22,928,783
Shares of Common Stock Held by ESL and Pledged as of June 24, 2008: 0
