Exhibit 1.1
CSK AUTO CORPORATION
(a Delaware corporation)
3,041,967 Shares of Common Stock
PURCHASE AGREEMENT
Dated: November 15, 2002
PAGE
TABLE OF CONTENTS
SECTION 1. Representations and Warranties......................................................... 2
(a) Representations and Warranties by the Company.......................................... 2
(b) Representations and Warranties by the Selling Shareholders............................. 9
(c) Officer's Certificates................................................................. 11
SECTION 2. Sale and Delivery to Underwriter; Closing.............................................. 11
(a) Securities............................................................................. 11
(b) Payment................................................................................ 11
(c) Denominations; Registration............................................................ 12
SECTION 3. Covenants of the Company............................................................... 12
(a) Compliance with Securities Regulations and Commission Requests......................... 12
(b) Filing of Amendments................................................................... 12
(c) Delivery of Registration Statements.................................................... 13
(d) Delivery of Prospectuses............................................................... 13
(e) Continued Compliance with Securities Laws.............................................. 13
(f) Blue Sky Qualifications................................................................ 13
(g) Rule 158............................................................................... 14
(h) Restriction on Sale of Securities...................................................... 14
(i) Reporting Requirements................................................................. 14
(j) Lock-up Agreements..................................................................... 14
SECTION 4. Payment of Expenses.................................................................... 14
(a) Expenses............................................................................... 14
(b) Expenses of the Selling Shareholders................................................... 15
(c) Termination of Agreement............................................................... 15
(d) Allocation of Expenses................................................................. 15
SECTION 5. Conditions of Underwriter's Obligations................................................ 15
(a) Effectiveness of Registration Statement................................................ 15
(b) Opinion of Counsel for Company......................................................... 16
(c) Opinion of Counsel for the Selling Shareholders........................................ 16
(d) Opinion of Counsel for Underwriter..................................................... 16
(e) Officers' Certificate.................................................................. 16
(f) Certificate of Selling Shareholders.................................................... 16
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PAGE
(g) Accountant's Comfort Letter............................................................ 17
(h) Bringdown Comfort Letter............................................................... 17
(i) Approval of Listing.................................................................... 17
(j) Additional Documents................................................................... 17
(k) Termination of Agreement............................................................... 17
(l) Form W-9............................................................................... 17
SECTION 6. Indemnification........................................................................ 17
(a) Indemnification of Underwriter......................................................... 17
(b) Indemnification of Company, Directors and Officers and Selling Shareholders............ 19
(c) Actions against Parties; Notification.................................................. 19
(d) Settlement without Consent if Failure to Reimburse..................................... 20
(e) Other Agreements with Respect to Indemnification....................................... 20
SECTION 7. Contribution........................................................................... 20
SECTION 8. Representations, Warranties and Agreements to Survive Delivery......................... 21
SECTION 9. Termination of Agreement............................................................... 22
(a) Termination; General................................................................... 22
(b) Liabilities............................................................................ 22
SECTION 10. Default by One or More of the Selling Shareholders..................................... 22
SECTION 11. Notices................................................................................ 23
SECTION 12. Parties................................................................................ 23
SECTION 13. GOVERNING LAW AND TIME................................................................. 23
SECTION 14. Effect of Headings..................................................................... 23
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PAGE
SCHEDULES
Schedule A - List of Selling Shareholders..................................................... Sch A-1
Schedule B - Pricing Information.............................................................. Sch B-1
Schedule C - List of Subsidiaries.............................................................. Sch C-1
Schedule D - List of Persons subject to Lock-up................................................ Sch D-1
Schedule E - List of Agreements with Registration Rights....................................... Sch E-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel................................................ A-1
Exhibit AA - Form of Opinion of General Counsel................................................. AA-1
Exhibit B - Form of Opinion for Glenellen....................................................... B-1
Exhibit BB - Form of Opinion for Transatlantic.................................................. BB-1
Exhibit BBB - Form of Opinion for the Carmel Trust.............................................. BBB-1
Exhibit BBBB - Form of UCC Opinion for Selling Shareholders..................................... BBBB-1
Exhibit C - Form of Lock-up Letter.............................................................. C-1
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CSK AUTO CORPORATION
(a Delaware corporation)
3,041,967 Shares of Common Stock
(Par Value $.01 Per Share)
PURCHASE AGREEMENT
November 15, 2002
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
CSK Auto Corporation, a Delaware corporation (the "Company") and the
entities listed in Schedule A hereto (the "Selling Shareholders"), confirm their
respective agreements with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated ("Xxxxxxx Xxxxx" or the "Underwriter"), with respect to the
sale by the Selling Shareholders, acting severally and not jointly, and the
purchase by the Underwriter of the respective numbers of shares of Common Stock,
par value $.01 per share, of the Company ("Common Stock") set forth in Schedule
A hereto. The aforesaid 3,041,967 shares of Common Stock to be purchased by the
Underwriter are hereinafter called the "Securities".
The Company and the Selling Shareholders understand that the
Underwriter proposes to make a public offering of the Securities as soon as the
Underwriter deems advisable after this Agreement has been executed and
delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-100719) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including a related prospectus, which has become effective (the
prospectus contained in such registration statement at the time it became
effective is herein called the "Base Prospectus"). Promptly after execution and
delivery of this Agreement, the Company will prepare and file a prospectus
supplement (the "Prospectus Supplement") to the Base Prospectus in accordance
with the provisions of paragraph (b) of Rule 424 ("Rule 424(b)") of the rules
and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"). The information included in such prospectus that was omitted from
such registration statement at the time it became effective but that is deemed
to be part of such registration statement at the time it became effective
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pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A
Information." Each prospectus used before such registration statement became
effective, and any prospectus that omitted the Rule 430A Information that was
used after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement, including the exhibits thereto, schedules thereto, if any, and the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, at the time it became effective and including the Rule 430A
Information is herein called the "Registration Statement." Any registration
statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein
referred to as the "Rule 462(b) Registration Statement," and after such filing
the term "Registration Statement" shall include the Rule 462(b) Registration
Statement. The Prospectus Supplement, together with the Base Prospectus,
including the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act, in the form first furnished to the Underwriter for
use in connection with the offering of the Securities is herein called the
"Prospectus." For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus, the Prospectus or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which is
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company represents
and warrants to the Underwriter as of the date hereof, as of the Closing Time
referred to in Section 2(c) hereof, and agrees with the Underwriter, as follows:
(i) Compliance with Registration Requirements. The Company meets the
requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been
complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time, the Registration Statement, the Rule
462(b) Registration Statement and
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any amendments and supplements thereto complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
Neither the Base Prospectus nor the Prospectus Supplement nor any
amendments or supplements thereto, at the time the Prospectus or any such
amendment or supplement was issued and at the Closing Time, included or
will include an untrue statement of a material fact or omitted or will
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. The representations and warranties in this subsection shall
not apply to statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by Xxxxxxx Xxxxx expressly for use in
the Registration Statement or Prospectus.
Each preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when
so filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriter for
use in connection with this offering was identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX,
except to the extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or deemed to
be incorporated by reference in the Registration Statement and the
Prospectus, when they became effective or at the time they were or
hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations or the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), as applicable, and,
when read together with the other information in the Prospectus, at the
time the Registration Statement became effective, at the time the
Prospectus was issued and at the Closing Time, did not and will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading.
(iii) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included in the
Registration Statement and the Prospectus, together with the related
schedules and notes, present fairly the financial position of the Company
and its consolidated subsidiaries at the dates indicated and the statement
of operations, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout
the periods involved. The supporting schedules, if any, included in the
Registration Statement present fairly in
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accordance with GAAP the information required to be stated therein. The
selected financial data and the summary financial information included in
the Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement. The pro forma financial
statements and the related notes, if any, included in the Registration
Statement and the Prospectus present fairly the information shown therein,
the assumptions used in the preparation of the pro forma financial
statements provide a reasonable basis for presenting the significant
effects directly attributable to the transactions or events described
therein, the related pro forma adjustments give appropriate effect to
those assumptions, and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding historical financial
statement amounts.
(v) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in
the earnings or business of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business
(a "Material Adverse Effect"), (B) there have been no transactions entered
into by the Company or any of its subsidiaries, other than those in the
ordinary course of business, which are material with respect to the
Company and its subsidiaries considered as one enterprise, and (C) there
has been no dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Delaware and has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its obligations
under this Agreement; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not result
in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each "significant subsidiary"
of the Company (as such term is defined in Rule 1-02 of Regulation S-X)
(including CSK Auto, Inc., an Arizona Corporation, each a "Subsidiary"
and, collectively, the "Subsidiaries") has been duly organized and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus and is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure
so to qualify or to be in good standing would not result in a Material
Adverse Effect; except as otherwise disclosed in the Registration
Statement, all of the issued and outstanding capital stock of each such
Subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Company, directly or through
subsidiaries,
4
free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity; none of the outstanding shares of capital
stock of any Subsidiary was issued in violation of the preemptive or
similar rights of any securityholder of such Subsidiary. The only
subsidiaries of the Company are the subsidiaries listed on Schedule C
hereto.
(viii) Capitalization. Except for repurchases of Common Stock by the
Company from officers and directors in an aggregate amount of no more than
25,000 shares, the authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus (as of the dates set forth
therein) under the section entitled "Prospectus Summary--the Offering" and
"Description of Capital Stock" (except for subsequent issuances, if any,
pursuant to reservations, agreements or employee benefit plans referred to
in the Prospectus or pursuant to the exercise of convertible securities,
options or warrants referred to in the Prospectus). The shares of issued
and outstanding capital stock of the Company, including the Securities to
be purchased by the Underwriter from the Selling Shareholders, have been
duly authorized and validly issued and are fully paid and non-assessable;
none of the outstanding shares of capital stock, including the Securities
to be purchased by the Underwriter from the Selling Shareholders, was
issued in violation of the preemptive or other similar rights of any
securityholder of the Company.
(ix) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(x) Authorization and Description of Securities. The Common Stock
conforms to all statements relating thereto contained in the Prospectus
and such description conforms to the rights set forth in the instruments
defining the same; no holder of the Securities will be subject to personal
liability by reason of being such a holder.
(xi) Absence of Defaults and Conflicts. Neither the Company nor any
of its subsidiaries is in violation of its charter or by-laws or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party or
by which it or any of them may be bound, or to which any of the property
or assets of the Company or any subsidiary is subject (collectively,
"Agreements and Instruments") except for such defaults that would not
result in a Material Adverse Effect; and the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated herein and compliance by the Company with its obligations
hereunder have been duly authorized by all necessary corporate action and
do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any subsidiary pursuant to, the
Agreements and Instruments (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not result in a
Material Adverse Effect), nor will such action result in any violation of
the provisions of the charter or by-laws of the Company or any
5
subsidiary or any applicable law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company or any
subsidiary or any of their assets, properties or operations. As used
herein, a "Repayment Event" means any event or condition which gives the
holder of any note, debenture or other evidence of indebtedness (or any
person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any subsidiary. The consummation of the
transactions contemplated in the Registration Statement (including the
sale of the Securities) do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or constitute a
breach of, or default or Repayment Event under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any subsidiary pursuant to, the Agreements and
Instruments (except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not result in a Material Adverse
Effect), nor will such action result in any violation of the provisions of
the charter or by-laws of the Company or any subsidiary or any applicable
law, statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any subsidiary or any of their
assets, properties or operations.
(xii) Absence of Labor Dispute. No labor dispute with the employees
of the Company or any subsidiary exists or, to the knowledge of the
Company, is imminent, which may reasonably be expected to result in a
Material Adverse Effect.
(xiii) Absence of Proceedings. There is no action, suit, proceeding
or investigation before or brought by any court or governmental agency or
body, domestic or foreign, now pending, or, to the knowledge of the
Company, threatened, against or affecting the Company or any subsidiary,
which if determined adversely to the Company or such subsidiary would
singly or in the aggregate, have a Material Adverse Effect, or would
materially and adversely affect the consummation of the transactions
contemplated in this Agreement or the performance by the Company of its
obligations hereunder; the aggregate of all pending legal or governmental
proceedings to which the Company or any subsidiary is a party or of which
any of their respective property or assets is the subject which are not
described in the Registration Statement, including ordinary routine
litigation incidental to the business, could not reasonably be expected to
result in a Material Adverse Effect.
(xiv) Accuracy of Exhibits. There are no contracts or documents
which are required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and filed as
required.
(xv) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms, adequate
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property
(collectively,
6
"Intellectual Property") necessary to carry on the business now operated
by them, and neither the Company nor any of its subsidiaries has received
any notice of any infringement of or conflict with asserted rights of
others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or any of its
subsidiaries therein, and which infringement or conflict (if the subject
of any unfavorable decision, ruling or finding) or invalidity or
inadequacy, singly or in the aggregate, would result in a Material Adverse
Effect.
(xvi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering or sale of the
Securities hereunder or the consummation of the transactions contemplated
by this Agreement, except such as have been already obtained or as may be
required under the 1933 Act or the 1933 Act Regulations or state
securities laws.
(xvii) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them; the Company and
its subsidiaries are in compliance with the terms and conditions of all
such Governmental Licenses, except where the failure so to comply would
not, singly or in the aggregate, have a Material Adverse Effect; all of
the Governmental Licenses are valid and in full force and effect, except
when the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have a
Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
(xviii) Title to Property. The Company and its subsidiaries have
good and marketable title to all real property owned by the Company and
its subsidiaries and good title to all other properties owned by them, in
each case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind except such as
(a) are described in the Prospectus or (b) do not, singly or in the
aggregate, materially affect the value of such property and do not
interfere with the primary uses made and proposed to be made of such
property by the Company or any of its subsidiaries; and all of the leases
and subleases material to the business of the Company and its
subsidiaries, considered as one enterprise, and under which the Company or
any of its subsidiaries holds properties described in the Prospectus, are
in full force and effect as of the dates set forth therein, and neither
the Company nor any of its subsidiaries has any notice of any claim of any
sort that has been asserted by anyone adverse to the rights of the Company
or any of its subsidiaries under any of the leases or subleases mentioned
above, or affecting or questioning the rights of the Company or such
subsidiary to the continued possession of the leased or subleased premises
under any such lease or
7
sublease which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material
Adverse Effect.
(xix) Investment Company Act. The Company is not an open-end
investment company, unit investment trust or face-amount certificate
company that is or is required to be registered under Section 8 of the
United States Investment Company Act of 1940 (the "Investment Company
Act"); and the Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Prospectus, will not be required to register as an
"investment company" as defined in the Investment Company Act.
(xx) Environmental Laws. Except as would not, individually or in the
aggregate, have a Material Adverse Effect or otherwise require disclosure
in the Registration Statement, (i) neither the Company nor any of its
subsidiaries has been or is in violation of any federal, state or local
laws and regulations relating to pollution or protection of human health
or the environment, including, without limitation, laws and regulations
relating to emissions, discharges, releases or threatened releases of
toxic or hazardous substances, materials or wastes, or petroleum and
petroleum products ("Materials of Environmental Concern"), or otherwise
relating to the protection of human health and safety, or the use,
treatment, storage, disposal, transport or handling of Materials of
Environmental Concern (collectively, "Environmental Laws"), which
violation includes, but is not limited to, noncompliance with, or lack of,
any permits or other environmental authorizations; (ii) there are no
circumstances, either past, present or that are reasonably foreseeable,
that may lead to any such violation in the future; (iii) neither the
Company nor any of its subsidiaries has received any communication
(written or oral), whether from a governmental authority or otherwise,
alleging any such violation; (iv) there is no pending or threatened claim,
action, investigation or notice (written or oral) by any person or entity
alleging potential liability of the Company or any of its subsidiaries (or
against any person or entity for whose acts or omissions the Company or
any of its subsidiaries is or may reasonably be expected to be liable,
either contractually or by operation of law) for investigatory, cleanup,
or other response costs, or natural resources or property damages, or
personal injuries, attorney's fees or penalties relating to (A) the
presence, or release into the environment, of any Materials of
Environmental Concern at any location, or (B) circumstances forming the
basis of any violation or potential violation, of any Environmental Law
(collectively, "Environmental Claims"); and (v) there are no past or
present actions, activities, circumstances, conditions, events or
incidents that could form the basis of any Environmental Claim.
(xxi) Internal Accounting Controls. The Company and each subsidiary
of the Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access
is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
8
(xxii) Taxes. All material Tax returns required to be filed by the
Company and its Subsidiaries have been filed and all such returns are
true, complete, and correct in all material respects. All material Taxes
that are due or claimed to be due from the Company and its Subsidiaries
have been paid other than those (i) currently payable without penalty or
interest or (ii) being contested in good faith and by appropriate
proceedings and for which, in the case of both clauses (i) and (ii),
adequate reserves have been established on the books and records of the
Company and its Subsidiaries in accordance with GAAP. There are no
proposed material Tax assessments against the Company or any of its
Subsidiaries as to which the Company has been notified. The accruals and
reserves on the books and records of the Company and its Subsidiaries in
respect of any material Tax liability for any Taxable period not finally
determined are reasonably adequate to meet any assessments of Tax for any
such period. For purposes of this Purchase Agreement, the term "Tax" and
"Taxes" shall mean all Federal, state, local and foreign taxes, and other
assessments of a similar nature (whether imposed directly or through
withholding), including any interest, additions to tax, or penalties
applicable thereto.
(xxiii) Registration Rights. Other than the agreements listed in
Schedule E hereto, there are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration statement
filed by the Company under the Act. No such person currently has any
rights to require the Company to include any securities in the Securities
registered pursuant to the Registration Statement (except for the
3,041,967 shares of Common Stock owned by the Selling Stockholders that
are being registered pursuant to the Registration Statement).
(b) Representations and Warranties by the Selling Shareholders. Each
Selling Shareholder severally represents and warrants to the Underwriter as of
the date hereof and as of the Closing Time, and agrees with the Underwriter, as
follows:
(i) Accurate Disclosure. Each Selling Shareholder has reviewed the
Registration Statement, and the sale of the Offered Securities by such
Selling Shareholder pursuant hereto is not prompted by any information
concerning the Company or any of its subsidiaries which is not set forth
in the Prospectus or any supplement thereto. The information in the
Registration Statement under the caption "Selling Stockholders" which
specifically relates to such Selling Shareholder does not, and will not on
the Closing Date, contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(ii) Authorization of Agreements. Each Selling Shareholder has the
full right, power and authority to enter into this Agreement and to sell,
transfer and deliver the Securities to be sold by such Selling Shareholder
hereunder. The execution and delivery of this Agreement and the sale and
delivery of the Securities to be sold by such Selling
9
Shareholder and the consummation of the transactions contemplated herein
and compliance by such Selling Shareholder with its obligations hereunder
have been duly authorized by such Selling Shareholder and do not and will
not, whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default under, or result
in the creation or imposition of any tax, lien, charge or encumbrance upon
the Securities to be sold by such Selling Shareholder or any property or
assets of such Selling Shareholder pursuant to any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, license, lease or
other agreement or instrument to which such Selling Shareholder is a party
or by which such Selling Shareholder may be bound, or to which any of the
property or assets of such Selling Shareholder is subject, nor will such
action result in any violation of the provisions of the charter or by-laws
or other organizational instrument of such Selling Shareholder, if
applicable, or any applicable treaty, law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
such Selling Shareholder or any of its properties.
(iii) Good and Marketable Title. Such Selling Shareholder has and
will at the Closing Time have valid and marketable title to the Securities
to be sold by such Selling Shareholder hereunder, free and clear of any
security interest, mortgage, pledge, lien, charge, claim, equity or
encumbrance of any kind, other than pursuant to this Agreement; and upon
delivery of such Securities and payment of the purchase price therefor as
herein contemplated, assuming the Underwriter has no notice of any adverse
claim, the Underwriter will receive good and marketable title to the
Securities purchased by it from such Selling Shareholder, free and clear
of any security interest, mortgage, pledge, lien, charge, claim, equity or
encumbrance of any kind.
(iv) Absence of Manipulation. Such Selling Shareholder has not
taken, and will not take, directly or indirectly, any action which is
designed to or which has constituted or which might reasonably be expected
to cause or result in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
(v) Absence of Further Requirements. No filing with, or consent,
approval, authorization, license, order, registration, qualification or
decree of, any court or governmental authority or agency, domestic or
foreign, is necessary or required for the performance by each Selling
Shareholder of its obligations hereunder or in connection with the offer,
sale and delivery of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement, except such as may have
previously been made or obtained or as may be required under the 1933 Act
or the 1933 Act Regulations or state securities laws.
(vi) Certificates Suitable for Transfer. Certificates for all of the
Securities to be sold by such Selling Shareholder pursuant to this
Agreement, in suitable form for transfer by delivery or accompanied by
duly executed instruments of transfer or assignment in blank with
signatures guaranteed, will be delivered on the Closing Time to the
Underwriter pursuant to this Agreement.
10
(vii) No Association with NASD. Neither such Selling Stockholder nor
any of its affiliates directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with, or has any other association with (within the meaning of Article I,
Section 1(m) of the By-laws of the National Association of Securities
Dealers, Inc.), any member firm of the National Association of Securities
Dealers, Inc.
(viii) Due Execution of Power of Attorney. Chiltern Trustees
Limited, as Trustee of the Carmal Trust, represents and warrants to the
Underwriter that (i) it has duly executed and delivered, in the form
furnished to the Underwriter, the Power of Attorney with Xxxxxx Xxxxx, as
attorney-in-fact (the "Attorney-in-Fact"); and (ii) the Attorney-in-Fact
is authorized to execute and deliver this Agreement and the certificate
referred to in Section 5(f) or that may be required pursuant to Section
5(j) on behalf of such Selling Shareholder, to sell, assign, and transfer
to the Underwriter the Securities to be sold by such Selling Shareholder
hereunder, to determine the purchase price to be paid by the Underwriter
to such Selling Shareholder, as provided in Section 2(a) hereof, to
authorize the delivery of the Securities to be sold by such Selling
Shareholder hereunder, to accept payment therefor, and otherwise to act on
behalf of such Selling Shareholder in connection with the Agreement.
(c) Officer's Certificates. Any closing certificate signed by any officer
of the Company or any of its subsidiaries delivered to the Underwriter or to
counsel for the Underwriter pursuant to the terms of this Agreement shall be
deemed a representation and warranty by the Company to the Underwriter as to the
matters covered thereby; and any certificate signed by or on behalf of the
Selling Shareholders as such and delivered to the Underwriter or to counsel for
the Underwriter pursuant to the terms of this Agreement shall be deemed a
representation and warranty by such Selling Shareholder to the Underwriter as to
the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriter; Closing.
(a) Securities. On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, each Selling
Shareholder, severally and not jointly, agrees to sell to the Underwriter, and
the Underwriter agrees to purchase from each Selling Shareholder, at the price
per share set forth in Schedule B, that number of Securities set forth in
Schedule A opposite the name of such Selling Shareholder.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the offices of Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxxxxx, XX 00000, or at
such other place as shall be agreed upon by the Underwriter and the Company and
the Selling Shareholders, at 7:00 A.M. (California time) on the third (fourth,
if the pricing occurs after 4:30 P.M. (Eastern time) on any given day) business
day after the date hereof (unless postponed in accordance with the provisions of
Section 10), or such other time not later than ten business days after such date
as shall be agreed upon by the Underwriter and the Company and the Selling
Shareholders (such time and date of payment and delivery being herein called
"Closing Time").
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Payment shall be made to the Selling Shareholders by wire transfer of
immediately available funds to bank accounts designated by each Selling
Shareholder against delivery to the Underwriter of certificates for the
Securities to be purchased by it.
(c) Denominations; Registration. Certificates for the Securities shall be
in such denominations and registered in such names as the Underwriter may
request in writing at least one full business day before the Closing Time. The
certificates for the Securities will be made available for examination and
packaging by the Underwriter in The City of New York not later than 10:00 A.M.
(Eastern time) on the business day prior to the Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with the
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
or Rule 434, as applicable, and will notify the Underwriter immediately, and
confirm the notice in writing, (1) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt
of any comments from the Commission, (iii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect the
filings necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted for
filing under Rule 424(b) was received for filing by the Commission and, in the
event that it was not, it will promptly file such prospectus. The Company will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) Filing of Amendments. The Company will give the Underwriter notice of
its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b)), any Term Sheet or any amendment,
supplement or revision to either the prospectus included in the Registration
Statement at the time it became effective or to the Prospectus, whether pursuant
to the 1933 Act, the 1934 Act or otherwise, will furnish the Underwriter with
copies of any such documents a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file or use any such document to
which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or will
deliver to the Underwriter and counsel for the Underwriter, without charge,
signed copies of the Registration Statement as originally filed and of each
amendment thereto (including, if requested by the Underwriter, exhibits filed
therewith or incorporated by reference therein and documents incorporated or
deemed to be incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to the Underwriter,
without charge, a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without
12
exhibits) for the Underwriter. The copies of the Registration Statement and each
amendment thereto furnished to the Underwriter will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to the
Underwriter, without charge, as many copies of each preliminary prospectus as
the Underwriter reasonably requested, and the Company hereby consents to the use
of such copies for purposes permitted by the 1933 Act. The Company will furnish
to the Underwriter, without charge, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such number of
copies of the Prospectus (as amended or supplemented) as the Underwriter may
reasonably request. The Prospectus and any amendments or supplements thereto
furnished to the Underwriter will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Securities
as contemplated in this Agreement and in the Prospectus. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales
of the Securities, any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the Underwriter or for the
Company, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include any untrue statements
of a material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration Statement or
amend or supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and
file with the Commission, subject to Section 3(b), such amendment or supplement
as may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and the
Company will furnish to the Underwriter such number of copies of such amendment
or supplement as the Underwriter may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriter, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other jurisdictions
(domestic or foreign) as the Underwriter may designate and to maintain such
qualifications in effect for a period of not less than one year from the later
of the effective date of the Registration Statement and any Rule 462(b)
Registration Statement; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Securities have been so qualified, the Company will
file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not less
than one year from the effective date of the Registration Statement and any Rule
462(b) Registration Statement.
13
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Restriction on Sale of Securities. During a period of 30 days from the
date of the Prospectus, the Company will not, without the prior written consent
of Xxxxxxx Xxxxx, (i) directly or indirectly, offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase or otherwise transfer or
dispose of any share of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock or file any registration statement
under the 1933 Act with respect to any of the foregoing or (ii) enter into any
swap or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction described in clause (i) or
(ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to (A)
the Securities to be sold hereunder, (B) any shares of Common Stock issued by
the Company upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof and referred to in the Prospectus, (C)
any shares of Common Stock issued or options to purchase Common Stock granted
pursuant to existing employee benefit plans of the Company referred to in the
Prospectus or (D) any shares of Common Stock issued pursuant to any non-employee
director stock plan or dividend reinvestment plan.
(i) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(j) Lock-up Agreements. The Company will use its reasonable best efforts
to obtain agreements substantially in the form of Exhibit C hereto signed by the
persons and entities listed on Schedule D hereto.
SECTION 4. Payment of Expenses.
(a) Expenses. Except as otherwise set forth herein, the Company will pay
or cause to be paid all expenses incident to the performance of its obligations
and the obligations of the Selling Shareholders under this Agreement, including
(i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, printing and delivery to the
Underwriter of this Agreement, any Agreement among Underwriters and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation, issuance and
delivery of the certificates for the Securities to the Underwriter, including
any stock or other transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Securities to the Underwriter, (iv) the fees
and disbursements of the Company's counsel, accountants and other advisors, (v)
the qualification of the Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriter in connection therewith
14
and in connection with the preparation of the Blue Sky Survey and any supplement
thereto, (vi) the printing and delivery to the Underwriter of copies of each
preliminary prospectus, any Term Sheets and of the Prospectus and any amendments
or supplements thereto, (vii) the preparation, printing and delivery to the
Underwriter of copies of the Blue Sky Survey and any supplement thereto, (viii)
the fees and expenses of any transfer agent or registrar for the Securities,
(ix) the filing fees incident to, and the reasonable fees and disbursements of
counsel to the Underwriter in connection with, the review by the National
Association of Securities Dealers, Inc. (the "NASD") of the terms of the sale of
the Securities and (x) the fees and expenses incurred in connection with the
listing of the Securities on the New York Stock Exchange. Notwithstanding
anything to the contrary in this Section 4, the cost or expense of all
underwriting discounts and selling commissions applicable to the sale of
Securities pursuant to this Agreement shall be borne by each Selling
Shareholder, in proportion to the number of shares sold by each such party.
(b) Expenses of the Selling Shareholders. The Selling Shareholders will
pay all expenses incident to the performance of their respective obligations
under, and the consummation of the transactions contemplated by this Agreement,
including (i) any stamp duties, capital duties and stock transfer taxes, if any,
payable upon the sale of the Securities owned by each of them to the Underwriter
and (ii) the fees and disbursements of their respective counsel and accountants.
(c) Termination of Agreement. If this Agreement is terminated by the
Underwriter in accordance with the provisions of Section 5, Section 9(a)(i) or
Section 10 hereof, the Company shall reimburse the Underwriter for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriter; provided, however, that if any such termination of
this Agreement is solely caused by, or based solely upon, a default by one or
more Selling Shareholders as referred to in Section 10 of this Agreement, or the
failure of one or more Selling Shareholders to comply with its requirements
under Section 5 of this Agreement, then the Selling Shareholders shall reimburse
the Underwriter for such expenses.
(d) Allocation of Expenses. The provisions of this Section shall not
affect any agreement that the Company and the Selling Shareholders may make for
the sharing of such costs and expenses.
SECTION 5. Conditions of Underwriter's Obligations. The obligations of the
Underwriter hereunder are subject to the accuracy of the representations and
warranties of the Company and the Selling Shareholders contained in Section 1
hereof or in certificates of any officer of the Company or any subsidiary of the
Company or on behalf of any Selling Shareholder delivered pursuant to the
provisions hereof, to the performance by the Company of its covenants and other
obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective and at
Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriter. A prospectus containing
the Rule 430A Information shall have been filed with the Commission in
accordance with Rule 424(b) (or a
15
post-effective amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule 430A) or, if the
Company has elected to rely upon Rule 434, a Term Sheet shall have been filed
with the Commission in accordance with Rule 424(b).
(b) Opinion of Counsel for Company. At Closing Time, the Underwriter shall
have received the favorable opinions, dated as of Closing Time, of Xxxxxx, Xxxx
& Xxxxxxxx LLP, counsel for the Company, and Xxx Xxxxxx, General Counsel of the
Company, in each case, in form and substance satisfactory to counsel for the
Underwriter, to the effect set forth in Exhibits A and AA hereto.
(c) Opinion of Counsel for the Selling Shareholders. At Closing Time, the
Underwriter shall have received the favorable opinions, dated as of Closing
Time, of (i) Jenkens & Xxxxxxxxx Xxxxxx Xxxxxx LLP, (ii) Xxxxxxx Xxxxx, Xxxxxxx
& Xxxxxxxxx, (iii) Torys LLP and (iv) Jenkens & Xxxxxxxxx Xxxxxx Xxxxxx LLP, as
special New York counsel for the Selling Shareholders, in form and substance
reasonably satisfactory to counsel for the Underwriter, to the effect set forth
in Xxxxxxxx X, XX, XXX and BBBB hereto, respectively.
(d) Opinion of Counsel for Underwriter. At Closing Time, the Underwriter
shall have received the favorable opinion, dated as of Closing Time, of Skadden,
Arps, Slate, Xxxxxxx and Xxxx LLP, counsel for the Underwriter, with respect to
the matters set forth in clauses (i), (ii), (iv) through (vi), inclusive, the
paragraph immediately following clause (xii) (solely as to the information in
the Prospectus under "Description of Capital Stock") and the penultimate
paragraph of Exhibit A hereto. In giving such opinion such counsel may rely, as
to all matters governed by the laws of jurisdictions other than the law of the
State of New York, the federal law of the United States and the General
Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Underwriter. Such counsel may also state that, insofar as
such opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and its subsidiaries and
certificates of public officials.
(e) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any material adverse change in the condition, financial
or otherwise, or in the earnings or business of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, and the Underwriter shall have received a certificate of the President
or a Vice President of the Company and of the chief financial or chief
accounting officer of each of the Company, dated as of Closing Time, to the
effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1(a) hereof are true and correct with
the same force and effect as though expressly made at and as of Closing Time,
(iii) the Company has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied at or prior to Closing Time, and (iv)
no stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or are
pending or are contemplated by the Commission.
(f) Certificate of Selling Shareholders. At Closing Time, the Underwriter
shall have received a certificate of an Attorney-in-Fact on behalf of or an
executive officer of each Selling Shareholder, dated as of Closing Time, to the
effect that (i) the representations and warranties of
16
each Selling Shareholder contained in Section 1(b) hereof are true and correct
in all respects with the same force and effect as though expressly made at and
as of Closing Time and (ii) each Selling Shareholder has complied in all
material respects with all agreements and all conditions on its part to be
performed under this Agreement at or prior to Closing Time.
(g) Accountant's Comfort Letter. At Closing Time, the Underwriter shall
have received from PricewaterhouseCoopers, LLP a letter dated as of Closing
Time, in form and substance satisfactory to the Underwriter containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and the
Prospectus.
(h) Bringdown Comfort Letter. At Closing Time, the Underwriter shall have
received from PricewaterhouseCoopers, LLP a letter, dated as of Closing Time, to
the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (g) of this Section, except that the specified date
referred to shall be a date not more than three business days prior to Closing
Time.
(i) Approval of Listing. At Closing Time, the Securities shall have been
approved for listing on the New York Stock Exchange.
(j) Additional Documents. At Closing Time counsel for the Underwriter
shall have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Securities as herein contemplated, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the Company
and the Selling Shareholders in connection with the sale of the Securities as
herein contemplated shall be satisfactory in form and substance to the
Underwriter and counsel for the Underwriter.
(k) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Underwriter by notice to the Company at any
time at or prior to Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 1, 6, 7 and 8 shall survive any such termination and remain
in full force and effect.
(l) Form W-9. Each Selling Shareholder shall have delivered to the Company
at Closing Time a properly completed and executed United States Treasury
Department Form W-9 (or other applicable form or statement specified by Treasury
Department regulations in lieu thereof).
SECTION 6. Indemnification.
(a) Indemnification of Underwriter. The Company agrees to indemnify and
hold harmless the Underwriter and each person, if any, who controls the
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act to the extent and in the manner set forth in clauses (i), (ii) and
(iii) below. In addition, each Selling Shareholder, severally and not jointly,
agrees to indemnify and hold harmless the Underwriter and each
17
person, if any, who controls the Underwriter within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430A Information
and the Rule 434 Information, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of
the Company and the Selling Shareholders; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Xxxxxxx Xxxxx), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Underwriter expressly for use in the Registration Statement (or any amendment
thereto), including the Rule 430A Information and the Rule 434 Information, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto); and, provided, further, that the Company will not be liable
to the Underwriter with respect to any prospectus to the extent that the Company
shall sustain the burden of proving that any such loss, liability, claim, damage
or expense resulted from the fact that the Underwriter, in contravention of a
requirement of this Agreement or applicable law, sold Securities to a person to
whom the Underwriter failed to send or give, at or prior to the Closing Date, a
copy of the Prospectus, as then amended or supplemented if: (i) the Company has
previously furnished copies thereof (sufficiently in advance of the Closing Date
to allow for distribution by the Closing Date) to the Underwriter and the loss,
liability, claim, damage or expense of the Underwriter resulted from an untrue
statement or omission of a material fact contained in or omitted from the
preliminary Prospectus which was corrected in the Prospectus as, if applicable,
amended or supplemented prior to the Closing Date and such Prospectus was
required by law to
18
be delivered at or prior to the written confirmation of sale to such person and
(ii) such failure to give or send such Prospectus by the Closing Date to the
party or parties asserting such loss, liability, claim, damage or expense would
have constituted the sole defense to the claim asserted by such person;
provided, further that the Selling Shareholders shall only be subject to such
liability to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission is based upon information provided in writing by
such Selling Shareholder or contained in a representation or warranty given by
such Selling Shareholder in this Agreement or the Custody Agreement; and
provided, further, that the liability under this subsection of each Selling
Shareholder shall be limited to an amount equal to the aggregate gross proceeds
after underwriting commissions and discounts, but before expenses, to such
Selling Shareholder from the sale of Securities sold by such Selling Shareholder
hereunder.
(b) Indemnification of Company, Directors and Officers and Selling
Shareholders. Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and each Selling
Shareholder and each person, if any, who controls any Selling Shareholder within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in this Section 6, as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions, made
in the Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by the Underwriter expressly for use in the Registration Statement (or
any amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Xxxxxxx Xxxxx, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof
19
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding 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) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into, and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement; provided that an indemnifying party shall not be liable for any such
settlement effected without its consent if such indemnifying party, prior to the
date of such settlement, (1) reimburses such indemnified party in accordance
with such request for the amount of such fees and expenses of counsel as the
indemnifying party believes in good faith to be reasonable, and (2) provides
written notice to the indemnified party that the indemnifying party disputes in
good faith the reasonableness of the unpaid balance of such fees and expenses.
(e) Other Agreements with Respect to Indemnification. The provisions of
this Section shall not affect any agreement among the Company and the Selling
Shareholders with respect to indemnification.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Selling Shareholders on the one hand and the Underwriter on the other hand from
the offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
Selling Shareholders on the one hand and of the Underwriter on the other hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company and the Selling
Shareholders on the one hand and the Underwriter on the other hand in connection
with the offering of the Securities pursuant to this Agreement shall be deemed
to be in the same respective proportions as the total net proceeds from the
offering of the Securities pursuant to this Agreement (before deducting
expenses) received by the Company and the Selling Shareholders and the total
underwriting discount received by the Underwriter, in each case as set forth on
the cover of the Prospectus, or,
20
if Rule 434 is used, the corresponding location on the Term Sheet bear to the
aggregate initial public offering price of the Securities as set forth on such
cover.
The relative fault of the Company and the Selling Shareholders on the
one hand and the Underwriter on the other hand shall be determined by reference
to, among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Selling Shareholders or by the
Underwriter and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company, the Selling Shareholders and the Underwriter agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in this
Section 7. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
7 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls the
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company or any
Selling Shareholder within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Company or
such Selling Shareholder, as the case may be.
The provisions of this Section shall not affect any agreement among the
Company and the Selling Shareholders with respect to contribution.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries or the
Selling Shareholders submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any investigation made
21
by or on behalf of the Underwriter or any controlling person, or by or on behalf
of the Company or the Selling Shareholders, and shall survive delivery of the
Securities to the Underwriter.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Underwriter may terminate this Agreement, by
notice to the Company and the Selling Shareholders, at any time at or prior to
Closing Time (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in the
Prospectus (exclusive of any supplement thereto), any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any material adverse change in the financial markets in
the United States or in the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Underwriter, impracticable or
inadvisable to market the Securities or to enforce contracts for the sale of the
Securities, or (iii) if trading in any securities of the Company has been
suspended or materially limited by the Commission or the New York Stock
Exchange, or if trading generally on the American Stock Exchange or the New York
Stock Exchange or in the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by such system
or by order of the Commission, the National Association of Securities Dealers,
Inc. or any other governmental authority, or a material disruption has occurred
in commercial banking or securities settlement or clearance services in the
United States, or (iv) if a banking moratorium has been declared by either
Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Selling Shareholders. If a
Selling Shareholder shall fail at Closing Time to sell and deliver the number of
Securities which such Selling Shareholder or Selling Shareholders are obligated
to sell hereunder, then the Underwriter may, by notice from the Underwriter to
the Company and the non-defaulting Selling Shareholders, either (i) terminate
this Agreement without any liability on the fault of any non-defaulting party
except that the provisions of Sections 1, 4, 6, 7 and 8 shall remain in full
force and effect or elect to purchase the Securities which the non-defaulting
Selling Shareholders have agreed to sell hereunder. No action taken pursuant to
this Section 10 shall relieve any Selling Shareholder so defaulting from
liability, if any, in respect of such default.
In the event of a default by any Selling Shareholder as referred to in
this Section 10, each of the Underwriter and the Company shall have the right to
postpone Closing Time for a period not exceeding seven days in order to effect
any required change in the Registration Statement or Prospectus or in any other
documents or arrangements.
22
SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriter shall be directed to Xxxxxxx Xxxxx at 00000 Xxxxxxxx Xxxxxxxxx,
Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, attention of Xxxxx Xxxxxx; notices to
the Company shall be directed to it at 000 X. Xxxxxxxx Xxx. Xxxxx 000, Xxxxxxx,
XX 00000, attention of Chief Financial Officer; and notices to the Selling
Shareholders shall be directed to the address set forth below such Selling
Shareholders' names on Schedule A hereto.
SECTION 12. Parties. This Agreement shall inure to the benefit of and be
binding upon the Underwriter, the Company and the Selling Shareholders and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriter, the Company and the Selling Shareholders and their
respective successors and the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
Underwriter, the Company and the Selling Shareholders and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from the Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. UNLESS
OTHERWISE INDICATED, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
23
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Attorney-in-Fact for
the Selling Shareholders a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement among the Underwriter,
the Company and the Selling Shareholders in accordance with its terms.
Very truly yours,
CSK AUTO CORPORATION
By /s/ Xxx X. Xxxxxx
-------------------------------------
Name: Xxx X. Xxxxxx
Title: Senior Vice President
CHILTERN TRUSTEES LIMITED,
as Trustee of Carmel Trust
By /s/ Xxxxxx Xxxxx
-------------------------------------
Xxxxxx Xxxxx, as Attorney-in-Fact
GLENELLEN INVESTMENT CO.
By /s/ Xxxxxx Xxxxx
-------------------------------------
Xxxxxx Xxxxx
Chairman
TRANSATLANTIC INVESTMENTS, LLC
By /s/ Xxxxx X. Xxxx
-------------------------------------
Xxxxx X. Xxxx
Executive Vice President
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By /s/ A. Xxxxx Xxxxxx
------------------------
Name: A. Xxxxx Xxxxxx
Title: Managing Director
Authorized Signatory
SCHEDULE A
Number of
Securities to be Sold
---------------------
Chiltern Trustees Limited,
as Trustee of Carmel Trust
c/o Skadden, Arps, Slate, Xxxxxxx
& Xxxx
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000 497,282
Glenellen Investment Co.
c/o Skadden, Arps, Slate, Xxxxxxx
& Xxxx
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000 2,000,000
Transatlantic Investments, LLC
X.X. Xxx 000
Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx X. Xxxx,
Executive Vice President 544,685
Total....................... 3,041,967
A-1
SCHEDULE B
CSK AUTO CORPORATION
3,041,967 Shares of Common Stock
(Par Value $.01 Per Share)
The purchase price per share for the Securities to be paid by the
Underwriter shall be $12.16 per share.
B-1
SCHEDULE C
List of Subsidiaries
CSK Auto, Inc.
Automotive Information Systems, Inc.
XXXXXXX.XXX, Inc.
C-1
SCHEDULE D
List of persons and entities subject to lock-up
Equity CSKa Limited
Equity CSKb Limited
Equity CSKc Limited
Auto Equity Limited
Auto Parts Limited
Auto Investments Limited
CSK Investments Limited
CSK Equity Limited
Investcorp CSK Holdings L.P.
CSK International Limited
X.X. Xxxxxx (Suisse) S.A., as successor to Chase Bank (C.I.) Nominees Limited
South Bay Limited
Investcorp Investment Equity Limited
Ballet Limited
Denary Limited
Highlands Limited
Noble Limited
Outrigger Limited
Quill Limited
Radial Limited
Shoreline Limited
Zinnia Limited
The JAB Trust
Xxxxxxx Xxxxxxx
Xxxxxx Xxxxxx
Xxxx Xxxx
Xxxxx Xxxxxx
Xxx Xxxxxx
Xxx Xxxxx
Xxx Xxxxxx
Xxxxx Xxxxx
Xxxxx X. Xxxxxx
Xxxxx X. Xxxx
Xxxxxx Xxxxxx
Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxx
Xxxxx Xxxxx
Xxxxxx Xxxxx
Xxxxxxxxxxx X. Xxxxxxx
Xxxxx Xxxxx
Xxxxx Xxxxx
Xxxxx X. Xxxx
D-1
SCHEDULE E
List of Agreements with Registration Rights
1) Stockholders' Agreement dated as of October 30, 1996, as thereafter
amended and supplemented, by and between the Investcorp Group (as defined
therein), the Carmel Group (as defined therein), the Company and other named
stockholders.
2) Amended and Restated Registration Rights Agreement dated as of May
16, 2002, by and between CSK Auto Corporation and LBI Group Inc. and Investcorp
CSK Holdings L.P. (relating to $50MM 7% convertible debentures).
3) Registration Rights Agreement dated August 14, 2001, by and between
CSK Auto Corporation and Xxxxxxxxxxx Capital Investment Fund (relating to $30MM
7% convertible note).
4) Registration Rights Agreement dated December 21, 2001, by and
between Credit Suisse First Boston Corporation, X.X. Xxxxxx Securities Inc., UBS
Warburg LLC and CSK Auto Inc., as issuer, and the Guarantors identified therein
(relating to 12% Senior Notes).
E-1
EXHIBIT A
FORM OF OPINION OF XXXXXX, XXXX & XXXXXXXX LLP
TO BE DELIVERED PURSUANT TO SECTION 5(B)
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the Purchase
Agreement.
(iii) The sale of the Securities by the Selling Shareholders is not
subject to the preemptive or other similar rights of any securityholder of the
Company under the Delaware General Corporation Law, the Company's charter or
bylaws or any contract filed as an exhibit to the Company's most recent Form
10-K and any exhibits filed by the Company with any subsequent SEC filings.
(iv) The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
(v) The Registration Statement, including any Rule 462(b) Registration
Statement, has been declared effective under the 1933 Act; any required filing
of the Prospectus pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b); and, to the best of our knowledge based
solely upon telephonic advice from the staff of the Commission on the date
hereof, no stop order suspending the effectiveness of the Registration Statement
or any Rule 462(b) Registration Statement has been issued under the 1933 Act and
no proceedings for that purpose have been instituted or are pending or
threatened by the Commission.
(vi) The Registration Statement, including any Rule 462(b) Registration
Statement, the Rule 430A Information and the Rule 434 Information, as
applicable, the Prospectus, excluding the documents incorporated by reference
therein, and each amendment or supplement to the Registration Statement and
Prospectus, excluding the documents incorporated by reference therein, as of
their respective effective or issue dates (other than the financial statements
and supporting schedules included therein or omitted therefrom, as to which we
need express no opinion) complied as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations.
(vii) The documents incorporated by reference in the Prospectus (other
than the financial statements and supporting schedules included therein or
omitted therefrom, as to which we need express no opinion), when they became
effective or were filed with the Commission, as the case may be, complied as to
form in all material respects with the requirements of the 1933 Act or the 1934
Act, as applicable, and the rules and regulations of the Commission thereunder.
(viii) The form of certificate used to evidence the Common Stock
complies in all material respects with all applicable statutory requirements,
with any applicable requirements of the charter and by-laws of the Company and
the requirements of the New York Stock Exchange.
Exhibit A-1
(ix) The due authorization, execution, delivery and performance by the
Company of the Purchase Agreement, and the sale and delivery of the Securities
in compliance with the terms and provisions of the Purchase Agreement, will not
require any consent, authorization, filing with or approval of any governmental
authority or regulatory body of the State of New York or the United States of
America under any law or regulation of the State of New York or the United
States of America applicable to the Company (other than under the 1933 Act and
the 1933 Act Regulations, which have been obtained, or as may be required under
the securities or blue sky laws of the various states, as to which we need
express no opinion) that, in our experience, is generally applicable to
transactions in the nature of those contemplated by the Purchase Agreement,
except for such filings or approvals that, if not made or obtained, would not
have a Material Adverse Effect.
(x) The execution, delivery and performance of the Purchase Agreement
and the consummation of the transactions contemplated in the Purchase Agreement
and in the Registration Statement (including the sale of the Securities and
compliance by the Company with its obligations under the Purchase Agreement do
not and will not, whether with or without the giving of notice or lapse of time
or both, conflict with or constitute a breach of, or default or Repayment Event
(as defined in Section 1(a)(xi) of the Purchase Agreement) under or result in
the creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any subsidiary pursuant to those contracts filed as
exhibits to the Company's most recent Form 10-K and any exhibits filed by the
Company with any subsequent SEC filings (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not have a Material
Adverse Effect), nor will such action result in any violation of the provisions
of the charter or by-laws of the Company or any subsidiary.
(xi) The Company is not, and after giving effect to the offering and
sale of the Securities and the application of the proceeds as described in the
Prospectus will not be, required to register as an "investment company" as
defined in the Investment Company Act.
The information in the Prospectus under "Description of Capital Stock"
and in the Registration Statement under Item 15, to the extent that it
constitutes summaries of legal matters and the Company's charter and bylaws, has
been reviewed by us and constitutes a fair summary of the legal matters and
documents described therein.
Such counsel shall state that (A) they have participated in conferences
with officers and other representatives of the Company, representatives of the
independent auditors of the Company and representatives of the Underwriter at
which the contents of the Registration Statement and related matters were
discussed, (B) because the purpose of their professional engagement was not to
establish or confirm factual matters and because the scope of their examination
of the affairs of the Company did not permit them to verify the accuracy,
completeness or fairness of the statements set forth in the Registration
Statement, such counsel are not passing upon and do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement except to the extent set forth in the
sentence immediately preceding this paragraph and (C) on the basis of the
foregoing, and except for the financial statements and schedules and other
financial data included or incorporated by reference therein or omitted
therefrom as to which they need express no such belief, no facts have come to
their attention that led them to believe that the Registration Statement, as of
the date it became effective or the Prospectus as of the time of its issuance or
at
Exhibit A-2
the Closing Time contained or contains an untrue statement of a material fact
or omitted or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
In rendering such opinion, such counsel may rely, as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
Exhibit A-3
EXHIBIT AA
FORM OF OPINION OF COMPANY'S GENERAL COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(B)
(i) The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect.
(ii) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus (as of the dates set forth therein)
under the sections entitled "Prospectus Summary--The Offering" and "Description
of Capital Stock" (except for subsequent issuances, repurchases and
cancellations, if any, pursuant to the Purchase Agreement or pursuant to
reservations, agreements or employee benefit plans referred to in the Prospectus
or pursuant to the exercise of convertible securities, options or warrants
referred to in the Prospectus); the shares of issued and outstanding capital
stock of the Company, including the Securities to be purchased by the
Underwriter from the Selling Shareholders, have been duly authorized and validly
issued and are fully paid and non-assessable; and none of the outstanding shares
of capital stock of the Company was issued in violation of the preemptive or
other similar rights of any securityholder of the Company.
(iii) Each Subsidiary has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus and is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding capital stock of each
Subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable and, to the best of my knowledge, is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding
shares of capital stock of any Subsidiary was issued in violation of the
preemptive or similar rights of any securityholder of such Subsidiary.
(iv) To the best of my knowledge, there is not pending or threatened
any action, suit, proceeding or investigation, to which the Company or any
subsidiary is a party, before or brought by any court or governmental agency or
body, domestic or foreign, which, if determined adversely to the Company or such
subsidiary, would have a Material Adverse Effect, or which would materially and
adversely affect the properties or assets thereof or the consummation of the
transactions contemplated in the Purchase Agreement or the performance by the
Company of its obligations thereunder.
Exhibit AA-1
(v) All descriptions in the Registration Statement of contracts and
other documents to which the Company or its subsidiaries are a party are
accurate in all material respects; to the best of my knowledge, there are no
franchises, contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto,
and the descriptions thereof or references thereto are correct in all material
respects.
(vi) To the best of my knowledge, neither the Company nor any
subsidiary is in violation of its charter or by-laws and no default by the
Company or any subsidiary exists in the due performance or observance of any
material obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement.
(vii) The execution, delivery and performance of the Purchase Agreement
and the consummation of the transactions contemplated in the Purchase Agreement
and in the Registration Statement (including the sale of the Securities) and
compliance by the Company with its obligations under the Purchase Agreement do
not and will not, whether with or without the giving of notice or lapse of time
or both, result in a violation of any applicable law, statute, rule, regulation,
judgment, order, writ or decree, known to me, of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any subsidiary or any of their respective properties, assets or
operations.
Nothing has come to my attention that led me to believe that the
Registration Statement or any amendment thereto, including the Rule 430A
Information and Rule 434 Information (if applicable), (except for financial
statements and schedules and other financial data included or incorporated by
reference therein or omitted therefrom, as to which we need make no statement),
at the time such Registration Statement or any such amendment became effective,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus or any amendment or supplement thereto
(except for financial statements and schedules and other financial data included
or incorporated by reference therein or omitted therefrom, as to which we need
make no statement), at the time the Prospectus was issued, at the time any such
amended or supplemented prospectus was issued or at the Closing Time, included
or includes an untrue statement of a material fact or omitted or omits 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.
In rendering such opinion, such counsel may rely, as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
Exhibit AA-2
EXHIBIT B
FORM OF OPINION OF COUNSEL FOR GLENELLEN
TO BE DELIVERED PURSUANT TO SECTION 5(c)
November __, 2002
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs,
RE: CSK AUTO CORPORATION - PUBLIC OFFERING OF COMMON STOCK
We have acted as special Cayman Islands counsel to Glenellen Investment Co.
("GLENELLEN") for the purpose of providing this opinion in connection with the
sale of shares of common stock of CSK Auto Corporation by Glenellen pursuant to
the Purchase Agreement dated 15 November 2002 (the "Purchase Agreement") among
you, CSK Auto Corporation and the Selling Shareholders named in Schedule A
thereof in anticipation of a public offering of such shares.
We provide registered office facilities for Glenellen in the Cayman Islands. We
have not acted generally as legal adviser to Glenellen, we are not familiar with
its operations or financial affairs and we have not acted in regard to this
matter save for the purpose of giving this opinion.
For the purpose of this opinion, we have examined and relied upon the originals
or copies, certified or otherwise, of the following documents:
(i) the Certificate of Incorporation of Glenellen dated 2nd July
1999;
(ii) the Memorandum and Articles of Association of Glenellen;
(iii) a Certificate of Good Standing issued by the Registrar of
Companies in and for the Cayman Islands dated [ ] November
2002 in respect of Glenellen (a copy of which is attached);
(iv) the executed Purchase Agreement;
(v) written resolutions of the Directors of Glenellen dated [ ]
November 2002 (the "RESOLUTIONS");
(vi) certificate of the chairman of Glenellen dated [ ] November
2002; and
(vii) the Register of Directors of Glenellen.
Exhibit B-1
We are attorneys-at-law in the Cayman Islands and this opinion is confined to
and given on the basis of the laws of the Cayman Islands in force and currently
applied by the courts by the Cayman Islands as at the date hereof. We have made
no investigation and express no opinion as to the laws of any jurisdiction other
than the Cayman Islands.
This opinion is given only as to circumstances existing and known to us at the
date hereof and, for the purposes of this opinion, we have assumed without
inquiry:
(a) the genuineness and authenticity of all signatures
and seals and the conformity to the originals of all
copies of documents (whether or not certified)
submitted to us and the authenticity and completeness
of the originals from which such copies were taken;
(b) the power, authority and legal rights of the parties
to the Purchase Agreement (other than Glenellen)
under all relevant laws and regulations to enter
into, execute and perform their obligations
thereunder;
(c) that the Resolutions are a full and accurate record
of the resolutions passed by the Directors of
Glenellen in accordance with its Articles of
Association and that such Resolutions have not been
amended or rescinded and are in full force in effect;
(d) that there is no provision of any jurisdiction other
than the Cayman Islands which would have an
implication in relation to the opinion expressed
herein;
(e) that the Purchase Agreement has been duly authorised,
executed and delivered on behalf of the parties
thereto (other than Glenellen) and is legal, valid,
binding and enforceable against all parties thereto
in accordance with its terms under the laws of the
State of New York and all other relevant laws (other
than the laws of the Cayman Islands);
(f) the choice of the laws of the State of New York to
govern the Purchase Agreement has been made for bona
fide purposes and will be regarded as a valid and
binding choice which will be upheld by the courts of
the State of New York as a matter of such laws and
all other relevant laws (other than the laws of the
Cayman Islands); and
(g) that Glenellen is the legal and beneficial owner of
the shares of common stock of CSK Auto Corporation to
be sold by Glenellen pursuant to the Purchase
Agreement (the "SECURITIES") free of any pledge,
lien, security interest, charge, claim, equity or
encumbrance of any kind.
Exhibit B-2
Based upon and subject to the foregoing and subject to the reservations
mentioned below and to any other matters not disclosed to us, we are of the
opinion that:
1. Glenellen has been duly incorporated as a limited liability exempted
company, is validly existing under the laws of the Cayman Islands and
is in good standing pursuant to the provisions of the Companies Law
(2001 Second Revision) ("GOOD STANDING" meaning solely that Glenellen
has not failed to make any filing with or pay any fee to the Government
of the Cayman Islands that would render it liable to be struck off the
Register of Companies).
2. Glenellen has the corporate power, authority and capacity to own its
assets and conduct its business in accordance with its Memorandum and
Articles of Association including the necessary corporate power and
authority to enter into the Purchase Agreement and to sell, transfer
and deliver the Securities as contemplated by the Purchase Agreement.
3. Glenellen has taken all corporate action necessary to authorise its
execution and delivery of the Purchase Agreement and the performance of
its obligations thereunder.
4. The Purchase Agreement has been duly authorised and executed by and on
behalf of Glenellen and when delivered create legal, valid and binding
obligations of Glenellen enforceable in accordance with its terms
except and insofar as far such enforcement may be limited as noted
below.
5. No consent or authorisation of or registration, declaration or filing
with, any court or governmental authority is required under the laws of
the Cayman Islands in connection with the execution and delivery of the
Purchase Agreement or the performance by Glenellen of its obligations
thereunder, including the offer, sale and delivery of the Securities
contemplated by the Purchase Agreement.
6. The execution and delivery of the Purchase Agreement and the
performance by Glenellen of its obligations thereunder, including the
offer, sale and delivery of the Securities and the consummation of the
transactions contemplated in the Purchase Agreement, have been duly
authorised by Glenellen and will not violate or conflict with, or
result in any breach of, or require any consent under, or result in the
imposition of any tax, lien, charge or encumbrance upon the Securities
or any property or assets of Glenellen pursuant to (i) its Memorandum
and Articles of Association, (ii) any contract, deed or other agreement
or instrument of which we have knowledge to which Glenellen is a party
or by which it is bound or to which any of its assets may be subject,
or (iii) any applicable law or regulation or, to our knowledge, any
order or decree of any governmental authority or agency or any other
official body having jurisdiction over Glenellen or any of its
properties in the Cayman Islands.
7. Other than the delivery of such instruments of transfer or other
documents that are required under the laws applicable to the
Securities, no other action is required under the laws of the Cayman
Islands to transfer the ownership and rights of Glenellen to the
Securities to the Underwriter pursuant to the Purchase Agreement free
of any third party claims.
Exhibit B-3
8. No taxes will be payable (by withholding or otherwise) to, or imposed
by, the Government of the Cayman Islands or any political sub-division
or taxing authority thereof or therein in respect of payments made by
Glenellen or any other party to the Purchase Agreement. There are
currently no income, corporate or capital gains taxes and no estate
duty, inheritance tax or gift tax imposed under the laws of the Cayman
Islands.
9. Although there is no statutory enforcement in the Cayman Islands of
judgements obtained elsewhere, the courts of the Cayman Islands will
recognise and enforce a judgement of a foreign court of competent
jurisdiction, based on the principle that such a judgement imposes upon
a judgement debtor an obligation to pay the sum for which the judgement
has been given, provided such judgement is final and conclusive, for a
liquidated sum not in respect of taxes or a fine or penalty, and which
was not obtained by fraud or in a manner, and is not of the kind the
enforcement of which is, contrary to the public policy of the Cayman
Islands, nor obtained in proceedings which were contrary to natural
justice.
10. Glenellen is not entitled to claim immunity under the laws of the
Cayman Islands from any legal proceedings in respect of any obligation
arising under the Transaction Documents, including immunity from
service, immunity from jurisdiction of any court or tribunal or
immunity of any of its property from attachment prior to entry of
judgement or from attachment in aid of execution upon a judgement in
respect of itself or its property.
11. The choice of the laws of the State of New York as the governing law of
the Purchase Agreement will be recognised and given effect to in any
action brought before a court of competent jurisdiction in the Cayman
Islands (except for those laws (i) which such court considers to be
procedural in nature, (ii) which are revenue or penal in nature or
(iii) the application of which would be inconsistent with public
policy, as such term is interpreted under the laws of the Cayman
Islands) provided such choice of laws was made for bona fide purposes
and is effective as a matter of the laws of the State of New York, and
such choice of laws will be applied by such courts provided evidence of
such laws is pleaded.
Our opinions are subject to the following reservations of qualifications:
(A) the term "enforceable" as used above means that the obligations assumed
by Glenellen under the Agreement are of a type that the courts of the
Cayman Islands will enforce. It does not mean that those obligations
will necessarily be enforced in all circumstances in accordance with
their terms. In particular:
(i) enforcement may be limited by bankruptcy, and
insolvency, liquidation, reorganisation and other
laws of general application relating to or affecting
the rights of creditors;
(ii) enforcement may be limited by general principles of
equity - for example, equitable remedies such as
specific performance may not be available, inter
alia, where damages are considered to be an adequate
remedy;
Exhibit B-4
(iii) enforcement may be limited by the principle of forum
non conveniens or analogous principles
notwithstanding any purported waiver of such
principles by any of the parties;
(iv) claims may become barred under the statutes of
limitation or may be subject to defences or set-off
or counterclaim;
(v) where obligations are to be performed in a
jurisdiction outside the Cayman Islands they may not
be enforceable to the extent that the performance
would be illegal under the laws of the Cayman
Islands; and
(vi) obligations to make payments following a default or
breach that may be regarded as penalties will not be
enforceable to the extent that they are penal and not
a reasonable pre-estimate of the liquidated damages.
(B) A Cayman Islands court has inherent discretion to stay proceedings if
concurrent proceedings are being brought elsewhere.
(C) In order to continue to be in good standing under the laws of the
Cayman Islands Glenellen is required, inter alia, to pay annual fees to
and file annual returns with the Registrar of Companies.
This opinion is issued on the basis that it will be governed by and construed in
accordance with the laws of the Cayman Islands. We specifically express no
opinion as to matters involving the laws of the State of New York.
Exhibit B-5
This opinion issued to the Underwriter solely for their benefit pursuant to
Section 5(c) of the Purchase Agreement and it is not to be relied upon by any
other person, firm or entity without our prior written consent.
Yours faithfully,
XXXXXXX XXXXX, XXXXXXX & XXXXXXXXX
RDF/lrf/0240/100
Exhibit B-6
EXHIBIT BB
FORM OF OPINION OF COUNSEL FOR TRANSATLANTIC
TO BE DELIVERED PURSUANT TO SECTION 5(c)
[JENKENS & XXXXXXXXX XXXXXX XXXXXX LLP LETTERHEAD]
November __, 2002
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: CSK Auto Corporation
Ladies and Gentlemen:
We have acted as special counsel to Transatlantic Investments, LLC, a
Delaware limited liability company ("Transatlantic"), in connection with the
sale by Transatlantic of 544,685 shares of Common Stock, $.01 par value per
share (the "Transatlantic Securities"), of CSK Auto Corporation ("CSK"). This
opinion letter is being delivered to you pursuant to Section 5(c) of the
Purchase Agreement dated November 15, 2002 among you, CSK and the Selling
Shareholders named in Schedule A thereof (the "Purchase Agreement"). Each
capitalized term used but not defined herein shall have the meaning ascribed to
it in the Purchase Agreement.
In so acting, we have examined originals or copies, satisfactory to us,
of: (i) the Certificate of Formation of Transatlantic certified by the Secretary
of State of Delaware on November __, 2002; (ii) the Limited Liability Company
Agreement of Transatlantic certified by the sole member of Transatlantic; (iii)
a certificate of the sole member of Transatlantic certifying resolutions adopted
by it on November __, 2002; (iv) an executed copy of the Purchase Agreement; and
(v) a copy of the stock certificate No. CAO 00219 registered in the name of
Exhibit BB-1
Transatlantic and representing the Transatlantic Securities to be sold by
Transatlantic (the "Certificate").
In addition, we have made such other investigations of applicable law
as we have deemed relevant and necessary as a basis for the opinions hereinafter
expressed.
In conducting our examination, we have assumed the genuineness of all
signatures, the legal capacity of all individual signatories, the authenticity
of all documents submitted to us as originals and the conformity with the
authentic original documents of all documents submitted to us as certified,
conformed, facsimile or photostatic copies. We have assumed, and without
independent investigation have relied exclusively upon, the factual accuracy of
the representations, warranties and other information contained in the items we
examined and upon the assumptions we have made herein. Also, we have relied upon
such certificates of public officials and of officers of Transatlantic and of
the sole member of Transatlantic with respect to the accuracy of factual matters
contained therein which were not independently established by us.
Where reference is made in this opinion letter to matters within our
knowledge, or to facts, circumstances or documents known to us, such reference
means the actual knowledge of those attorneys within our firm who have given
substantive attention to the Purchase Agreement and the transactions
contemplated thereby.
Our opinions are limited to the date hereof and we do not in any event
undertake to advise you of any facts or circumstances occurring or coming to our
attention subsequent to the date hereof.
We call your attention to the fact that we are counsel admitted to
practice only in the State of New York, and we do not express any opinion with
respect to the applicable laws, or the effect or applicability of the laws, of
any jurisdiction other than those of the State of New York, the Delaware Limited
Liability Company Act and the laws of the United States of America. We do not
express any opinion with respect to the "blue sky" or securities laws of any
State or other jurisdiction (other than the federal securities laws of the
United States of America).
Based upon and subject to the foregoing and the other qualifications,
exceptions, assumptions, limitations, definitions and exclusions contained in
this letter, we are of the opinion that:
1. No filing with, or consent, approval, authorization, license,
order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign (other
than the issuance of the order of the Commission declaring the
Registration Statement effective and such authorizations,
approvals or consents as may be necessary under state
securities laws, as to which we express no opinion) is
necessary or required to be obtained by Transatlantic for the
performance by Transatlantic of its obligations under the
Purchase Agreement or in connection with the offer, sale or
delivery of the Transatlantic Securities.
Exhibit BB-2
2. The Purchase Agreement has been duly authorized, executed and
delivered by or on behalf of Transatlantic.
3. The execution, delivery and performance of the Purchase
Agreement and the sale and delivery of the Transatlantic
Securities and the consummation of the transactions
contemplated in the Purchase Agreement and in the Registration
Statement and compliance by Transatlantic with its obligations
under the Purchase Agreement have been duly authorized by all
necessary action on the part of Transatlantic and (A) do not
and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach
of or default under, or result in the creation or imposition
of any tax, lien, charge or encumbrance upon the Transatlantic
Securities or any property or assets of Transatlantic pursuant
to, any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, license, lease or other instrument or
agreement of which we have knowledge to which Transatlantic is
a party or by which it is bound, or to which any of the
property or assets of Transatlantic are subject nor (B) will
such action result in any violation of the provisions of (i)
the Certificate of Formation or the Limited Liability Company
Agreement of Transatlantic, (ii) any law or administrative
regulation having jurisdiction over Transatlantic or any of
its properties that are applicable to Transatlantic or (iii)
to our knowledge, any judgment or order of any governmental
agency or body or any administrative or court decree having
jurisdiction over Transatlantic or any of its properties.
4. To our knowledge, Transatlantic has valid and marketable title
to the Transatlantic Securities to be sold by it pursuant to
the Purchase Agreement, free and clear of any pledge, lien,
security interest, charge, claim, equity or encumbrance of any
kind and has the legal right, power and authority to sell,
transfer and deliver the Transatlantic Securities pursuant to
the Purchase Agreement.
Xxxx X. Xxxxxx, a member of this firm, is an officer and director of
Transatlantic.
This opinion is rendered solely to you solely in connection with the
transactions contemplated by the Purchase Agreement, and only you are entitled
to rely hereon. This opinion may not be used or relied on by you for any other
purpose, or by any other person, firm, corporation or entity for any purpose,
without our prior written consent.
Very truly yours,
JENKENS & XXXXXXXXX XXXXXX XXXXXX LLP
Exhibit BB-3
EXHIBIT BBB
FORM OF OPINION OF COUNSEL FOR THE CARMEL TRUST
TO BE DELIVERED PURSUANT TO SECTION 5(c)
November __, 2002
To: XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Ladies and Gentlemen:
Re: Purchase Agreement dated November 15, 2002
We refer to:
(a) the Purchase Agreement dated November 15, 2002 - (the
"Purchase Agreement") among the underwriter identified on the
Purchase Agreement (the "Underwriter"), Chiltern Trustees
Limited as trustee (the "Trustee") of the Carmel Trust (the
"Trust"), a trust established under a trust settlement made
August 17, 1977 (the "Trust Settlement") and governed by the
laws of Ontario and the federal laws of Canada applicable in
Ontario CSK Auto Corporation and the persons identified in
Schedule A to the Purchase Agreement;
(b) the Irrevocable Power of Attorney of Selling Stockholder dated
November [ ], 2002 (the "Power of Attorney") granted by the
Trustee and appointing Xxxxxx Xxxxx (the "Attorney-in-Fact")
as the attorney-in-fact for the Trustee in connection with
certain matters referred to herein.
The Purchase Agreement and Power of Attorney are
collectively referred to in this opinion letter as the
"Documents." Capitalized terms used and not otherwise defined
in this opinion letter have the meanings respectively assigned
to them in the Purchase Agreement.
We have acted as counsel to the Trustee solely for
the purpose of rendering the opinions herein. We have not been
involved in the preparation of the Documents or any other
documents associated therewith, and we have not participated
in any manner in discussions or negotiations in connection
with the
Exhibit BBB-1
Documents or those other documents or in connection with any
other matters incidental to the Documents or the transactions
contemplated by the Documents.
This opinion letter is provided to the Underwriter at
the request of the Trustee in partial satisfaction of the
condition set forth in Section 5(c) of the Purchase Agreement.
It is intended solely for the addressees in connection with
the transactions contemplated by the Documents and may not be
relied upon by any other person or for any other purpose
without our prior consent. No part of this opinion letter may
be incorporated, quoted or otherwise referred to in any other
document or communication or filed with or otherwise furnished
to any governmental authority or other person without our
prior written consent.
In rendering this opinion letter, we have made such
investigations as we deemed necessary including, without
limitation, reviewing the Trust Settlement and any amendments
thereto and the Resolution of the Trustee approving the
Purchase Agreement and authorizing the Attorney-in-Fact to
execute the Purchase Agreement on behalf of the Trustee, and
approving and granting the Power of Attorney. We have assumed
the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, and the conformity
with the original documents of all documents submitted to us
as copies. We are solicitors qualified to carry on the
practice of law in Ontario and we express no opinion as to any
laws or any matters governed by any laws other than the laws
of Ontario and the federal laws of Canada applicable therein.
Without limiting the generality of the immediately preceding
sentence, we express no opinion with respect to the laws of
any other jurisdiction to the extent that those laws may
govern the requirements for the transfer of shares free of the
claims of third parties, and we express no opinion whether,
pursuant to Ontario conflict of laws rules, the laws of
Ontario or the federal laws of Canada would govern that issue.
Except as to legal conclusions expressed in this letter, we
have assumed the accuracy of, and without independent
investigation have relied upon, the representations,
warranties and other information contained in certificates as
to certain factual matters from the Trustee which we have
examined.
We have also assumed that:
(a) if any obligation under the Power of Attorney is required to
be performed in any jurisdiction outside of Ontario, the
performance of that obligation will not be illegal under the
laws of that jurisdiction;
(b) the Trustee and Xxxxxx Xxxxx and Xxxxxx van Riemsdijk in their
capacity as Protectors of the Carmel Trust have complied with
their fiduciary obligations in connection with the
authorization, execution, delivery and performance of the
Documents and the transactions contemplated by the Documents;
and
(c) the Trustee is incorporated and existing, has the corporate
power and capacity to execute, deliver and perform its
obligations under the Documents, has taken all necessary
corporate action to authorize the execution, delivery and
performance
Exhibit BBB-2
by it of the Documents, has duly executed and delivered the
Power of Attorney in accordance with those corporate
authorizations, and the execution, delivery and performance of
the Documents by the Trustee do not violate the constating
documents of the Trust nor any corporate law, statute, rule or
regulation to which the Trustee is subject.
For the purpose of our opinions in paragraph 6 below,
which are expressed to be given based on our knowledge, "our
knowledge" means the actual knowledge of those lawyers in our
firm (Xxxxxxx Xxxxxx-Xxxxx and Xxxx Xxxxxxx) who were the
lawyers primarily involved in the preparation of our opinions
below, without any independent investigation. Our opinions are
limited to the date hereof, and we do not in any event
undertake to advise you of any facts or circumstances
occurring or coming to our attention subsequent to the date
hereof.
Based upon and subject to the foregoing, and to the
qualifications expressed below, we are of the opinion that:
1. No filing with, or consent, approval, authorization, license, order,
registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign (other than in connection with
any applicable securities, tax, competition or anti-trust laws or laws
applicable to foreign investment in Canada, as to which we express no
opinion) is necessary or required to be obtained by the Trust for the
performance by the Trust of its obligations under the Purchase
Agreement or in the Power of Attorney, or in connection with the offer,
sale or delivery of the Securities to be sold by the Trustee on behalf
of the Trust (the "Trustee's Securities").
2. The Power of Attorney has been duly executed and delivered by the
Trustee on behalf of the Trust.
3. If an action or proceeding were brought in an Ontario court to enforce
the Power of Attorney and that court were to apply the laws of Ontario
to govern and interpret the Power of Attorney (either because that
court finds that, contrary to the express provisions of the Power of
Attorney which stipulate that they will be governed by New York State
law, Ontario law is the proper law of the Custody Agreement or the
Power of Attorney or because New York State law is not proven in that
action or proceeding), the Power of Attorney constitutes the legal,
valid and binding obligation of the Trustee, enforceable against the
Trustee in accordance with its terms.
4. The Purchase Agreement has been duly authorized, executed and delivered
by or on behalf of the Trustee on behalf of the Trust.
5. The Attorney-in-Fact has been duly authorized by the Trustee on behalf
of the Trust to deliver the Trustee's Securities on behalf of the
Trustee on behalf of the Trust in accordance with the terms of the
Purchase Agreement.
6. The execution, delivery and performance of the Documents and the sale
and delivery of the Trustee's Securities and the consummation of the
transactions contemplated in the
Exhibit BBB-3
Purchase Agreement and compliance by the Trustee with its obligations
under the Purchase Agreement have been duly authorized by all necessary
action on the part of the Trustee and (A) to our knowledge, do not and
will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default under
or result in the creation or imposition of any tax, lien, charge or
encumbrance upon the Trustee's Securities or any property or assets of
the Trust pursuant to, any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, license, lease or other
instrument or agreement to which the Trustee is a party or by which it
may be bound, or to which any of the property or assets of the Trust
may be subject, nor (B) will such action result in any violation of the
provisions of (i) the constating documents of the Trust, (ii) any law
or administrative regulation applicable to the Trust, or (iii) to our
knowledge, any judgment or order of any governmental agency or body or
any administrative or court decree having jurisdiction over the Trustee
or any of the Trust property.
7. Other than the delivery of the share certificates identified on
Schedule A together with a stock power duly endorsed in blank and
payment of the purchase price by the Underwriter, no other action is
required under the laws of Ontario or the federal laws of Canada to
transfer all of the rights of the Trustee, on behalf of the Trust, in
respect of those shares to the Underwriter free of the claims of third
parties, provided that (i) the Underwriter is acting in good faith and
has no notice of any adverse claim affecting those shares, and (ii) the
transfer complies with the restrictions on transfer noted on that share
certificate.
Our opinions above are subject to the following
qualifications:
(i) The enforceability of the Power of Attorney is subject to bankruptcy,
insolvency, reorganization, arrangement and other similar laws of
general application affecting the enforcement of creditors' rights
generally.
(ii) The enforceability of the Power of Attorney is subject to general
equitable principles, including the fact that the availability of
equitable remedies, such as specific performance and injunctive relief,
is in the discretion of a court of competent jurisdiction.
(iii) A judgment of an Ontario court may only be awarded in Canadian
currency.
(iv) Provisions which purport to sever from the Power of Attorney any
provision which is prohibited or unenforceable under applicable law
without affecting the enforceability or validity of the remainder of
the Power of Attorney may be enforced only in the discretion of a
court.
(v) We express no opinions as to exculpations, rights to indemnity and
contribution, or as to waivers of rights where inconsistent with
applicable law or public policy from time to time in effect.
(vi) We express no opinion regarding title to the Trustee's Securities or to
any other property.
Exhibit BBB-4
(vii) We express no opinion as to any securities, tax, competition or
anti-trust laws or laws applicable to foreign investment in Canada.
Yours very truly,
TORYS LLP
Exhibit BBB-5
SCHEDULE A
TO OPINION LETTER
CARMEL TRUST
Share Certificate
Share certificate number - for 497,282 shares of CSK Auto - dated -
Exhibit BBB-6
EXHIBIT BBBB
[JENKENS & XXXXXXXXX XXXXXX XXXXXX LLP LETTERHEAD]
November __, 2002
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: CSK Auto Corporation
Ladies and Gentlemen:
We have been retained as special New York counsel to Glenellen
Investment Co., a corporation incorporated as a limited liability exempted
company under the laws of the Cayman Islands ("Glenellen"), Transatlantic
Investments, LLC, a Delaware limited liability company ("Transatlantic") and
Chiltern Trustees Limited, as trustee of the Carmel Trust (the "Trust" and
together with Glenellen and Transatlantic, the "Selling Shareholders"),
exclusively for the purpose of providing the opinions expressed herein in
connection with the sale by the Selling Shareholders of 3,041,967 shares (the
"Securities") of Common Stock, $.01 par value per share ("CSK Common Stock"), of
CSK Auto Corporation ("CSK"). The opinions contained herein are rendered
pursuant to Section 5(c) of the Purchase Agreement dated November 15, 2002 among
you, CSK and the Selling Shareholders (the "Purchase Agreement"). We have also
been retained by Transatlantic, but we have not been retained by Glenellen or
the Trust for any other purpose. Each capitalized term used but not defined
herein shall have the meaning ascribed to it in the Purchase Agreement.
In rendering this opinion, we have examined originals or copies,
satisfactory to us, of: (i) an executed copy of the Purchase Agreement, (ii) an
Irrevocable Power of Attorney of Selling Shareholder dated November __, 2002
executed by the Trust, designating Xxxxxx Xxxxx as the Trust's attorney-in-fact
thereunder to take certain actions under the Purchase Agreement
Exhibit BBBB-1
(the "Power of Attorney"), (iii) the opinion dated November __, 2002 of Torys
LLP special counsel to the Trust, pursuant to Section 5(c) of the Purchase
Agreement, (iv) the opinion dated November __, 2002 of Xxxxxxx Xxxxx, Xxxxxxx &
Xxxxxxxxx, special counsel to Glenellen, pursuant to Section 5(c) of the
Purchase Agreement, (v) a copy of stock certificate Nos. CAO [ ], [ ] and [ ]
representing 2,000,000, 544,685 and 497,282 shares of CSK Common Stock,
respectively, registered in the name of Glenellen, Transatlantic and the Trust,
respectively. We have assumed that the Purchase Agreement is enforceable against
the parties thereto in accordance with its terms. We note that the parties to
the Purchase Agreement have agreed that it is to be governed by, and construed
in accordance with, the laws of the State of New York. The Securities have been
deposited in Depository Trust Company ("DTC") in New York and are held by DTC
for delivery to the Underwriter in connection with the sale thereof by the
Selling Shareholders to the Underwriter pursuant to the Purchase Agreement.
In addition, we have made such other investigations of applicable law
as we have deemed relevant and necessary as a basis for the opinions hereinafter
expressed.
In conducting our examination, we have assumed the genuineness of all
signatures, the legal capacity of all individual signatories, the authenticity
of all documents submitted to us as originals and the conformity with the
authentic original documents of all documents submitted to us as certified,
conformed, facsimile or photostatic copies. We have assumed, and without
independent investigation have relied exclusively upon, the opinion of Xxxxxxx
Xxxxx, Xxxxxxx & Xxxxxxxxx and Torys LLP referred to above, including the
qualifications and assumptions contained therein, with respect to the matters
set forth therein, and the factual accuracy of the representations, warranties
and other information contained in the items we examined and upon the
assumptions we have made herein.
Our opinions are limited to the date hereof and we do not in any event
undertake to advise you of any facts or circumstances occurring or coming to our
attention subsequent to the date hereof.
We call your attention to the fact that we are counsel admitted to
practice only in the State of New York, and we do not herein express any opinion
with respect to the applicable laws, or the effect or applicability of the laws,
of any jurisdiction other than those of the State of New York and the laws of
the United States of America.
Based upon and subject to the foregoing and the other qualifications,
exceptions, assumptions, limitations, definitions and exclusions contained in
this letter, we are of the opinion that:
An action based on an adverse claim, within the meaning of the New York
Uniform Commercial Code as in effect on the date hereof (the "NYUCC"), to the
Securities deposited in or held by DTC, whether such action is framed in
conversion, replevin, constructive trust, equitable lien, or other theory, may
not be asserted successfully against Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx,
Incorporated, ("Merrill"), assuming that Merrill acquires security entitlements
(under Section 8-501 of the NYUCC) with respect to the Securities from DTC,
Exhibit BBBB-2
makes payment therefor pursuant to the Purchase Agreement and has no notice of
any adverse claim (within the meaning of the NYUCC) with respect to the
Securities.
This opinion is rendered solely to you solely in connection with the
transactions contemplated by the Purchase Agreement, and only you are entitled
to rely hereon. This opinion may not be used or relied on by you for any other
purpose, or by any other person, firm, corporation or entity for any purpose,
without our prior written consent.
Very truly yours,
JENKENS & XXXXXXXXX XXXXXX XXXXXX LLP
Exhibit BBBB-3
EXHIBIT C
FORM OF LOCK-UP PURSUANT TO SECTION 3(J)
November ___, 2002
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: Proposed Public Offering by CSK Auto Corporation
Dear Sirs:
The undersigned, a stockholder [and an officer and/or director] of CSK
Auto Corporation, a Delaware corporation (the "Company"), understands that
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
("Xxxxxxx Xxxxx"), propose to enter into a Purchase Agreement (the "Purchase
Agreement") with the Company and the Selling Shareholders providing for the
public offering of shares (the "Securities") of the Company's common stock, par
value $.01 per share (the "Common Stock"). In recognition of the benefit that
such an offering will confer upon the undersigned as a stockholder [and an
officer and/or director] of the Company, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
undersigned agrees with each underwriter to be named in the Purchase Agreement
that, during a period of 30 days from the date of the Purchase Agreement, the
undersigned will not, without the prior written consent of Xxxxxxx Xxxxx,
directly or indirectly, (i) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant for the sale of, or otherwise dispose of or
transfer any shares of the Company's Common Stock or any securities convertible
into or exchangeable or exercisable for Common Stock, whether now owned or
hereafter acquired by the undersigned or with respect to which the undersigned
has or hereafter acquires the power of disposition, or file any registration
statement under the Securities Act of 1933, as amended, with respect to any of
the foregoing or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or indirectly, the
economic consequence of ownership of the Common Stock, whether any such swap or
transaction is to be settled by delivery of Common Stock or other securities, in
cash or otherwise.
Very truly yours,
Signature:
--------------------------------
Print Name:
------------------------------
Exhibit C-1
