EXHIBIT 2
AUTOZONE, INC.
COMMON STOCK
(PAR VALUE $0.01 PER SHARE)
UNDERWRITING AGREEMENT
October 31, 2003
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Certain stockholders of AutoZone, Inc., a Nevada corporation (the "Company"),
named in Schedule 1 hereto (the "Selling Stockholders") propose to sell to the
Citigroup Global Markets Inc. (the "Underwriter") an aggregate of 5,600,000
shares (the "Shares") of the Company's Common Stock, par value $0.01 per share
(the "Common Stock"). This is to confirm the agreement concerning the purchase
of the Shares from the Selling Stockholders by the Underwriter.
1. Representations, Warranties and Agreements of the Company. The Company
represents and warrants (at and as of the date hereof and at and as of the
Closing Date (as defined in Section 5 hereof)) to, and agrees with, the
Underwriter that:
(a) A registration statement on Form S-3 (File No. 333-83436) in
respect of the Shares has been filed with the Securities and
Exchange Commission (the "Commission"); such registration
statement and any post-effective amendment thereto, each in
the form heretofore delivered to the Underwriter, has been
declared effective by the Commission in such form; no other
document with respect to such registration statement (or
document incorporated by reference therein) has heretofore
been filed with the Commission; no stop order suspending the
effectiveness of such registration statement or any
post-effective amendment thereto has been issued and no
proceeding for that purpose has been initiated or threatened
by the Commission (any preliminary prospectus included in such
registration statement or filed with the Commission pursuant
to Rule 424(a) of the rules and regulations of the Commission
under the Securities Act of 1933, as amended (the "Act"),
being hereinafter called a "Preliminary Prospectus"); the
various parts of such registration statement, including all
exhibits thereto and including (i) the documents incorporated
by reference in the prospectus contained in the registration
statement at the time such part of the registration statement
became effective, each as amended at the time such part of the
registration statement became effective, and (ii) any
post-effective amendment or amendments of the registration
statement filed pursuant to Rule 462 under the Act, being
hereinafter called the "Registration Statement"; the
prospectus, in the form in which it has most recently been
filed, or transmitted for filing with the Commission prior to
or on the date hereof under the Act, being hereinafter called
the "Prospectus"; any reference herein to any Preliminary
Prospectus or Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act, as of the date
of such Preliminary Prospectus or Prospectus, as the case may
be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any
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document filed after the date of such Preliminary Prospectus
or Prospectus, as the case may be, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment
to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the effective
date of the Registration Statement that is incorporated by
reference in the Registration Statement and any reference to
the Prospectus as amended or supplemented shall be deemed to
refer to the Prospectus as amended or supplemented in relation
to the Shares in the form in which it is filed with the
Commission pursuant to Rule 424(b) under the Act in accordance
with Section 6(a) hereof, including any documents incorporated
by reference therein as of the date of such filing;
(b) No order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus has been issued by the
Commission, and each Preliminary Prospectus and the
Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder, and did not
contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the
Company by the Underwriter or by any Selling Stockholder
expressly for use therein;
(c) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration
Statement or the Prospectus will conform, in all material
respects to the requirements of the Act and the rules and
regulations of the Commission thereunder and do not and will
not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any amendment
or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and
warranty shall not apply to any statement or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by the Underwriter or by any Selling
Stockholder expressly for use therein;
(d) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with Commission, as
the case may be, conformed in all material respects to the
requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder,
and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading; and any further documents so filed and
incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become
effective or are filed with Commission, as the case may be,
will conform in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain
an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading;
(e) Since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus,
neither the Company nor any of its subsidiaries has sustained
any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or
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not covered by insurance, or from any labor dispute or court
or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been
any change in the capital stock (other than shares of Common
Stock repurchased by the Company under its previously
announced stock repurchase program and shares issued or
issuable pursuant to employee and director stock option plans,
the director compensation plan and employee stock purchase
plans, in each case as in effect on the date hereof) or any
increase in excess of $150 million in the aggregate in the
consolidated long-term debt of the Company and its
subsidiaries or any material adverse change, or any
development involving a prospective material adverse change,
in or affecting the general affairs, business, management,
financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a
whole, otherwise than as set forth or contemplated in the
Prospectus;
(f) The Company and its subsidiaries have good and marketable
title in fee simple to all real property and good and
marketable title to all personal property owned by them, in
each case free and clear of all liens, encumbrances and
defects except such as are described in the Prospectus or such
as would not and do not have, either individually or in the
aggregate, any material adverse effect on the general affairs,
business, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries
taken as a whole; and any real property and buildings held
under lease by the Company and its subsidiaries are held by
them under valid, subsisting and enforceable leases with such
exceptions as would not and do not have, either individually
or in the aggregate, any material adverse effect on the
general affairs, business, management, financial position,
stockholders' equity or results of operations of the Company
and its subsidiaries taken as a whole;
(g) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State
of Nevada, with power and authority (corporate and other) to
own its properties and conduct its business as described in
the Prospectus, and has been duly qualified as a foreign
corporation for transaction of business and is in good
standing under the laws of each other jurisdiction in which it
owns or leases properties, or conducts any business, so as to
require such qualification, or is subject to no material
liability or disability by reason of the failure to be so
qualified in any such jurisdiction; each of the Company's
subsidiaries that is a corporation has been duly incorporated
and is validly existing as a corporation in good standing
under the laws of the jurisdiction of incorporation, with
power and authority (corporate and other) to own its
properties and conduct its business as described in the
Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it
owns or leases properties, or conducts any business, so as to
require such qualification, or is subject to no material
liability or disability by reason of the failure to be so
qualified in any such jurisdiction; the Company's subsidiaries
that are limited partnerships or limited liability companies
have been duly organized and are validly existing as limited
partnerships or limited liability companies in good standing
under the laws of the states of their respective organization
with power and authority (partnership or corporate and other)
to own their properties and conduct their businesses, and have
been duly qualified as foreign limited partnerships or limited
liability companies for the transaction of business and are in
good standing under the laws of each other jurisdiction in
which they own or lease properties, or conduct any business,
so as to require such qualification, or are subject to no
material liability or disability by reason of the failure to
be so qualified in any such jurisdiction; and all of the
outstanding shares of capital stock of, or equity interests
in, each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable
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and are owned by the Company, directly or indirectly, free and
clear of all liens, encumbrances, equities or claims, except
for 118 shares of the 1,200 outstanding shares of preferred
stock, $100 par value, of AutoZone Development Corporation;
(h) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock
of the Company (including the Shares to be sold by the Selling
Stockholders to the Underwriter hereunder) have been duly and
validly authorized and issued, are fully paid and
non-assessable and conform to the description of the Common
Stock contained in the Prospectus;
(i) The execution, delivery and performance by the Company of this
Agreement and the consummation of the transactions herein
contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan
agreement, stock option or other employee benefit plan, or
other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject,
nor will such action result in any violation of the provisions
of the Articles of Incorporation or By-laws of the Company or
any of its subsidiaries or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or
any of their respective properties; no consent, approval,
authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for
the execution, delivery and performance by the Company of this
Agreement and the consummation of the transactions
contemplated hereby, except the registration under the Act of
the Shares and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriter; and this
Agreement has been duly authorized, executed and delivered by
the Company;
(j) Other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property of
the Company or any of its subsidiaries is subject which, if
determined adversely to the Company or any of its
subsidiaries, would, either individually or in the aggregate,
have a material adverse effect on the general affairs,
business, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries
taken as a whole; and, to the best of the Company's knowledge,
no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(k) There are no contracts or other documents of a character
required to be described in the Prospectus or filed as
exhibits to the Registration Statement by the Act or by the
rules and regulations of the Commission thereunder which have
not been described in the Prospectus or filed as exhibits to
the Registration Statement; and
(l) Ernst & Young LLP, who have certified certain financial
statements of the Company, are independent public accountants
as required by the Act and the rules and regulations of the
Commission thereunder.
2. Representations, Warranties and Agreements of the Selling Stockholders. Each
Selling Stockholder severally represents and warrants (at and as of the date
hereof and at and as of the Closing Date) to, and agrees with, the Underwriter
that:
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(a) Such Selling Stockholder holds the Shares being sold by such
Selling Stockholder hereunder free and clear of all liens,
encumbrances, equities or claims; immediately prior to the
Closing Date such Selling Stockholder will hold the Shares
being sold by such Selling Stockholder hereunder on such date,
free and clear of all liens, encumbrances, equities or claims;
and upon delivery of such Shares and payment therefor pursuant
hereto, the Underwriter will hold such Shares, free and clear
of all liens, encumbrances, equities or claims, assuming that
the Underwriter purchases such Shares in good faith and
without notice of any such lien, encumbrance, equity or claim
or other adverse claim within the meaning of the Uniform
Commercial Code as in effect in the State of New York;
(b) Such Selling Stockholder has full right, power and authority
to enter into this Agreement; the execution, delivery and
performance of this Agreement and the consummation by such
Selling Stockholder of the transactions contemplated hereby
and thereby will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan
agreement, stock option or other employee benefit plan, or
other agreement or instrument to which such Selling
Stockholder is a party or by which such Selling Stockholder is
bound or to which any of the property or assets of such
Selling Stockholder is subject, nor will such action result in
any violation of the provisions of the charter, bylaws, deed
of trust, partnership agreement or other constituent
documents, if any, relating to such Selling Stockholder or any
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over such
Selling Stockholder or any properties of such Selling
Stockholder; and no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the execution,
delivery and performance by such Selling Stockholder of this
Agreement and the consummation of the transactions
contemplated hereby, except the registration under the Act of
the Shares and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriter; and this
Agreement has been duly authorized, executed and delivered by
the Selling Stockholders;
(c) To the extent that any statements or omissions made in the
Registration Statement, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto are made in
reliance upon and in conformity with information furnished in
writing to the Company by such Selling Stockholder expressly
for use therein, the Registration Statement and such
Preliminary Prospectus do not, and the Prospectus and any
amendments or supplements thereto will not, as of the
applicable effective date or as of the applicable filing date,
as the case may be, contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading; and
(d) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or
which has constituted or which might reasonably be expected to
cause or result in stabilization or manipulation of the price
of any security of the Company to facilitate the sale or
resale of the Shares.
3. Purchase of Shares. On the basis of the representations and warranties
contained in, and subject to the terms and conditions of, this Agreement, each
Selling Stockholder hereby, severally and not jointly, agrees to sell the number
of Shares set forth opposite such Selling Stockholder's name in Schedule 2
hereto to the Underwriter and the Underwriter agrees to purchase such number of
Shares from each Selling Stockholder.
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The price to be paid by the Underwriter to the Selling Stockholders for the
Shares shall be $98.8815 per share.
The Selling Stockholders shall not be obligated to deliver any of the Shares to
be delivered on the Closing Date, except upon payment for all the Shares to be
purchased on the Closing Date as hereinafter provided.
4. Offering of Shares by the Underwriter. The Underwriter proposes to offer the
Shares for sale upon the terms and conditions set forth in the Prospectus.
5. Delivery of and Payment for the Shares. Delivery of and payment for the
Shares shall be made in New York, New York, at 10:00 A.M., New York City time,
November 5, 2003, or at such other date or place as shall be determined by
agreement between the Underwriter and the Selling Stockholders. This date and
time are sometimes referred to as the "Closing Date". On the Closing Date, each
Selling Stockholder shall deliver or cause to be delivered the Shares to the
Underwriter against payment to or upon the order of such Selling Stockholder of
the purchase price for the Shares by wire transfer or certified or official bank
check or checks payable in immediately available (same day) funds. Time shall be
of the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of the Underwriter hereunder.
Upon delivery, the Shares shall be registered in such names and in such
denominations as the Underwriter shall request in writing not less than two full
business days prior to the Closing Date. For the purpose of expediting the
checking and packaging of the certificates for the Shares, the Selling
Stockholders shall make the certificates or other documentation representing the
Shares available for inspection by the Underwriter in New York, New York, not
later than 2:00 P.M., New York City time, on the business day prior to the
Closing Date.
6. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the
Underwriter and to file such Prospectus pursuant to Rule
424(b) under the Act not later than the Commission's close of
business on the second business day following the execution
and delivery of this Agreement or, if applicable, such earlier
time as may be required by the rules and regulations of the
Commission under the Act; to file promptly with the Commission
any amendment to the Registration Statement or the Prospectus
or any supplement to the Prospectus that may, in the judgment
of the Company or the Underwriter, be required by the Act or
requested by the Commission; to make no further amendment or
any supplement to the Registration Statement or Prospectus
prior to the Closing Date which shall be disapproved by the
Underwriter promptly after reasonable notice thereof; to
advise the Underwriter promptly after it receives notice
thereof, of the time when the Registration Statement, or any
amendment thereto, has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has
been filed and to furnish the Underwriter with copies thereof;
to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus is
required in connection with the offering or sale of the
Shares; to advise the Underwriter promptly after it receives
notice thereof of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or Prospectus, of the suspension of the
qualification of the Shares for offering or sale in any
jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal;
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(b) Promptly from time to time to take such action as the
Underwriter may reasonably request to qualify the Shares for
offering and sale under the securities laws of such
jurisdictions as the Underwriter may request and to continue
such qualifications in effect in such jurisdictions for as
long as may be necessary to complete the distribution of the
Shares; provided that in connection therewith the Company
shall not be required to qualify as a foreign corporation or
to file a general consent to service of process in any
jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the business day
next succeeding the date of this Agreement and from time to
time to furnish promptly to the Underwriter and to counsel for
the Underwriter a signed copy of the Registration Statement as
originally filed with the Commission, and each amendment
thereto filed with the Commission, including all consents and
exhibits filed therewith; prior to 10:00 a.m., New York City
time, on the business day next succeeding the date of this
Agreement and from time to time to deliver promptly to the
Underwriter in New York City such number of the following
documents as the Underwriter shall reasonably request: (i)
conformed copies of the Registration Statement as originally
filed with the Commission and each amendment thereto (in each
case excluding exhibits other than this Agreement and the
computation of per share earnings), (ii) each Preliminary
Prospectus, the Prospectus and any amended or supplemented
Prospectus and (iii) any document incorporated by reference in
the Prospectus (excluding exhibits thereto); and, if the
delivery of a prospectus is required at any time prior to the
expiration of nine months after the time of issue of the
Prospectus in connection with the offering or sale of the
Shares and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary
during such period to amend or supplement the Prospectus or to
file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act or
the Exchange Act, to notify the Underwriter and upon the
Underwriter's request to file such document and to prepare and
furnish without charge to the Underwriter and to any dealer in
securities as many copies as the Underwriter may from time to
time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement
or omission or effect such compliance, and in case any
Underwriter is required to deliver a prospectus in connection
with sales of any of the Shares at any time nine months or
more after the time of issue of the Prospectus, upon the
Underwriter's request but at the expense of the Underwriter,
to prepare and deliver to the Underwriter as many copies as
the Underwriter may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earning statement of
the Company (which need not be audited) complying with Section
11 (a) of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the
Company, Rule 158 under the Act);
(e) For so long as any reports or proxy or information statements
are required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), to furnish to its stockholders as soon as practicable
after the end of each fiscal year an annual report (including
a balance sheet and statements of income, stockholders' equity
and cash flow of the Company certified by independent public
accountants);
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(f) During a period of three years from the effective date of the
Registration Statement, to furnish to the Underwriter, upon
its request, copies of all reports or other communications
(financial or other) furnished to all stockholders, and
deliver to the Underwriter as soon as they are available,
copies of any reports and financial statements furnished to or
filed with the Commission or any national securities exchange
on which any class of securities of the Company is listed; and
(g) To use its best efforts to comply with the rules and
regulations of the New York Stock Exchange with respect to the
offering of the Shares.
7. Further Agreements of the Selling Stockholders. Each Selling Stockholder
agrees:
(a) During the period beginning from the date hereof and
continuing to and including the date 90 days after the date of
the Prospectus not, directly or indirectly, to offer, sell,
contract to sell or otherwise transfer or dispose of any
capital stock of the Company or securities convertible or
exchangeable or exercisable for capital stock of the Company
(except for the Shares to be sold hereunder to the
Underwriter), without the prior written consent of the
Underwriter;
(b) That the obligations of such Selling Stockholder hereunder
shall not be terminated by any act of such Selling
Stockholder, by operation of law or, in the case of a
partnership, by the termination of such partnership, or, in
the case of a corporation, the dissolution or liquidation of
such corporation;
(c) To deliver to the Underwriter prior to the Closing Date a
properly completed and executed U.S. Treasury Department Form
W-9 (or other applicable form or statement specified by
Treasury Department regulations in lieu thereof); and
(d) To advise the Underwriter promptly of any material adverse
change, or any development involving a prospective material
adverse change, in or affecting the accuracy of any of its or
his representations or warranties or its or his inability to
perform the agreements and indemnities herein at any time
prior to payment being made to such Selling Stockholder on the
Closing Date and take such steps as may be reasonably
requested by the Underwriter to remedy any such material
adverse change or inability.
8. Expenses. The Selling Stockholders, jointly and severally, covenant and agree
with the Underwriter that the Selling Stockholders will pay or cause to be paid
the following: (i) the fees, disbursements and expenses of the Company's counsel
and accountants in connection with the registration of the Shares under the Act
and all other expenses in connection with the preparation, printing and filing
of the Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriter and any dealers; (ii) the cost of delivering,
printing or producing this Agreement, the Blue Sky Memorandum and any other
documents in connection with the offering, purchase, sale and delivery of the
Shares; (iii) all expenses in connection with the qualification of the Shares
for offering and sale under state securities laws as provided in Section 6(b)
hereof, including the fees and disbursements of counsel for the Underwriter in
connection with such qualification and in connection with the Blue Sky
Memorandum; (iv) the filing fees incident to securing any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of the
Shares; (v) the cost of preparing stock certificates; (vi) the cost and charges
of any transfer agent or registrar; (vii) any stock transfer taxes payable in
connection with sales of Shares to the Underwriter and (viii) all other costs
and expenses incident to the performance of the Company's and the Selling
Stockholders' obligations hereunder which are not otherwise specifically
provided for in this Section 8. It is understood, however, that, except as
provided in this Section 8,
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Section 10 and Section 13 hereof, the Underwriter will pay all of its own costs
and expenses, including the fees of its counsel, stock transfer taxes on resale
of any of the Shares by them, and any advertising expenses in connection with
any offers they may make.
9. Conditions of Underwriter's Obligations. The obligations of the Underwriter
hereunder, as to the Shares to be delivered on the Closing Date, shall be
subject, in its discretion, to the accuracy, when made and on and as of the
Closing Date, of all representations and warranties of the Company and each of
the Selling Stockholders contained herein, to the performance by the Company and
each of the Selling Stockholders of all of their respective obligations
hereunder, and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations of the
Commission under the Act and in accordance with Section 6(a)
hereof; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests
for additional information on the part of the Commission shall
have been complied with to the Underwriter's reasonable
satisfaction;
(b) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the
Registration Statement and the Prospectus, and all other legal
matters relating to this Agreement and the transactions
contemplated hereby and thereby, shall be reasonably
satisfactory in all material respects to Xxxxxxx Xxxxxxx &
Xxxxxxxx LLP, counsel for the Underwriter, and the Company and
the Selling Stockholders shall have furnished to such counsel
all documents and information that they may reasonably request
to enable such counsel to furnish to the Underwriter their
written opinion, addressed to the Underwriter and dated the
Closing Date, with respect to such matters as the Underwriter
may reasonably request and in form and substance reasonably
satisfactory to the Underwriter;
(c) Xxxxxxx Xxxxxxxx, special Nevada counsel for the Company,
shall have furnished to the Underwriter their written opinion,
addressed to the Underwriter dated the Closing Date, in form
and substance reasonably satisfactory to the Underwriter, to
the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation under the laws of the State
of Nevada, with corporate power and authority to own
its properties and conduct its business as described
in the Prospectus;
(ii) The Company has authorized capital stock as set forth
in the Prospectus, and all of the issued and
outstanding shares of capital stock of the Company
(including the Shares being delivered on the Closing
Date) have been duly and validly authorized and
issued and are fully paid and nonassessable; and the
Shares conform to the description of the Common Stock
contained in the Prospectus;
(iii) This Agreement has been duly authorized, executed and
delivered by the Company;
(iv) The execution, delivery and performance by the
Company of this Agreement and the consummation of the
transactions herein contemplated will not result in
any violation of the provisions of the Articles of
Incorporation or By-laws of the Company or any Nevada
statute or of any order, rule or regulation known to
such counsel, which in its experience is normally
applicable to transactions of the type contemplated
by this Agreement, of any Nevada court or
governmental agency or body having jurisdiction over
the Company or any of its subsidiaries; and
9
(v) No consent, approval, authorization, order,
registration or qualification of or with any state
court or governmental agency or body is required for
the consummation by the Company of the transactions
contemplated by this Agreement, except the
registration under the Act of the Shares (as to which
such counsel need express no opinion), and such
consents, approvals, authorizations, registrations or
qualifications as may be required under state
securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the
Underwriter (as to which such counsel need express no
opinion).
In rendering such opinion, such counsel may state that such opinion is limited
to matters governed by Nevada law.
(d) Xxxxxx & Xxxxxxx LLP, counsel for the Company, shall have
furnished to the Underwriter their written opinion, addressed
to the Underwriter dated the Closing Date, in form and
substance reasonably satisfactory to the Underwriter, to the
effect that:
(i) This Agreement has been duly executed and delivered
by the Company;
(ii) The execution, delivery and performance by the
Company of this Agreement and the consummation of the
transactions herein contemplated will not conflict
with or result in a breach or violation of any of the
terms or provisions of, or constitute a default
under, any agreement or instrument, or stock option
or other employee benefit plan set forth on a list
annexed to such counsel's opinion (which list shall
be reasonably satisfactory to the Underwriter), nor
will such action result in any violation of any
statute or of any order, rule or regulation known to
such counsel, which in its experience is normally
applicable to transactions of the type contemplated
by this Agreement, of any U.S. federal or state court
or governmental agency or body having jurisdiction
over the Company, any of its subsidiaries or any of
their respective properties;
(iii) No consent, approval, authorization, order,
registration or qualification of or with any U.S.
federal or state court or governmental agency or body
is required for the consummation by the Company of
the transactions contemplated by this Agreement,
except the registration under the Act of the Shares,
and such consents, approvals, authorizations,
registrations or qualifications as may be required
under state securities or Blue Sky laws in connection
with the purchase and distribution of the Shares by
the Underwriter;
(iv) The Registration Statement has become effective under
the Act; no stop order suspending the effectiveness
of the Registration Statement has been issued under
the Act and no proceedings therefor have been
initiated by the Commission; and all required filings
of the Prospectus pursuant to Rule 424 under the Act
has been made in accordance with Rule 424 under the
Act;
(v) The documents incorporated by reference in the
Prospectus or any further amendment or supplement
thereto made by the Company prior to the Closing Date
(other than the financial statements and related
schedules therein, as to which such counsel need
express no opinion), when they became effective or
were filed with the Commission, as the case may be,
complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the
Commission thereunder; and
10
(vi) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by
the Company prior to the Closing Date (other than the
financial statements and related schedules therein,
as to which such counsel need express no opinion)
comply as to form in all material respects with the
requirements of the Act and the rules and regulations
of the Commission thereunder.
In addition, such counsel shall state that they have participated in conferences
with officers and other representatives of the Company, and representatives of
the independent public accountants for the Company, at which conferences the
contents of the Registration Statement and the Prospectus and related matters
were discussed and, although such counsel is not passing upon, and does not
assume any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus, and such
counsel has not made any independent check or verification thereof, during the
course of such participation no facts came to such counsel's attention that
caused such counsel to believe that (I), as of its effective date, the
Registration Statement or any further amendment thereto made by the Company
prior to the Closing Date contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (II) as of its date, the Prospectus
or any further amendment or supplement thereto made by the Company prior to the
Closing Date contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading or (III)
as of the Closing Date, either the Registration Statement or the Prospectus
(including, in each case, any document incorporated by reference in the
Prospectus) or any further amendment or supplement thereto made by the Company
prior to the Closing Date (other than the financial statements and related
schedules and other financial data in the Registration Statement or the
Prospectus, as to which such counsel need express no opinion) contains an untrue
statement of a material fact or omits to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; and they do not know of any contracts or other documents
of a character required to be filed as an exhibit to the Registration Statement
or required to be incorporated by reference into the Prospectus or required to
be described in the Registration Statement or the Prospectus which are not filed
or incorporated by reference or described as required (it being understood that
such counsel need express no belief with respect to the financial statements or
the financial data included or incorporated by reference in, or omitted from,
the Registration Statement or Prospectus).
In rendering such opinion, such counsel may state that such opinion is limited
to matters governed by U.S. federal law and New York law.
(e) Xxxxx X. Xxxxxxxxx, Esq., Senior Vice President, General
Counsel and Secretary of the Company, or Xxxxxx X. Xxxxxxx,
Esq., Vice President, Assistant General Counsel and Assistant
Secretary of the Company, shall have furnished to the
Underwriter his written opinion, addressed to the Underwriter
dated the Closing Date, in form and substance satisfactory to
the Underwriter, to the effect that:
(i) The Company is duly qualified as a foreign
corporation to transact its 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 to so qualify or
be in good standing would not result in any material
adverse change in the financial condition, earnings,
management or business affairs, or any development
involving a prospective material adverse change in
the financial condition, earnings, management or
business affairs, of the Company and its subsidiaries
considered as one enterprise, whether or not arising
in the ordinary course of business;
11
(ii) Each "significant subsidiary" of the Company (as such
term is defined in Rule 1-02 of Regulation S-X
promulgated under the 0000 Xxx) (each, a "Significant
Subsidiary" and, collectively, the "Significant
Subsidiaries" has been duly organized and is validly
existing as a corporation, limited liability company
or limited partnership in good standing under the
laws of the jurisdiction of its organization, has
corporate, limited liability company or partnership
power and authority to own, lease and operate its
properties and to conduct its business as described
in the Prospectus and is duly qualified 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 to so
qualify or be in good standing would not result in
any material adverse change in the financial
condition, earnings, management or business affairs,
or any development involving a prospective material
adverse change in the financial condition, earnings,
management or business affairs, of the Company and
its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of
business;
(iii) All of the outstanding shares of capital stock of, or
equity interests in, each subsidiary of the Company
have been duly and validly authorized and issued, are
fully paid and non-assessable and are owned, directly
or indirectly, by the Company, and, to the best
knowledge of such counsel, are owned free and clear
of all liens, encumbrances, equities or claims, other
than 118 shares of the 1,200 outstanding shares of
preferred stock, $100 par value, of AutoZone
Development Corporation; none of the outstanding
shares of capital stock or partnership interest of
any Significant Subsidiary was issued in violation of
preemptive or other similar rights of any
securityholder of such Significant Subsidiary;
(iv) To the best of such counsel's knowledge, except as
disclosed in the Registration Statement and the
Prospectus, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation to
which the Company or any of its Significant
Subsidiaries is a party or to which the assets,
properties or operations of the Company or any of its
Significant Subsidiaries is subject, before or by any
court or governmental agency or body, domestic or
foreign, which would reasonably be expected to result
in any material adverse change in the financial
condition, earnings, management or business affairs,
or any development involving a prospective material
adverse change in the financial condition, earnings,
management or business affairs, of the Company and
its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of
business or which would reasonably be expected to
materially and adversely affect the consummation of
the transactions contemplated under the Agreement or
the performance by the Company of its obligations
thereunder;
(v) To the best of such counsel's knowledge, neither the
Company nor any of its subsidiaries is in violation
of its Articles of Incorporation or By-laws and no
default by the Company or any of its subsidiaries
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
(vi) The execution, delivery and performance by the
Company of this Agreement and the consummation of the
transactions herein contemplated will not conflict
with or result in a material breach or violation of
any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of
trust, loan agreement, stock option or other
12
employee benefit plan, or other material agreement or
instrument known to such counsel to which the Company
or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or
any of its subsidiaries is subject, nor will such
action result in any violation of the provisions of
the Articles of Incorporation or By-laws of the
Company or any of its subsidiaries or any statute or
of any order, rule or regulation known to such
counsel of any U.S. federal or state court or
governmental agency or body having jurisdiction over
the Company, any of its subsidiaries or any of their
respective properties;
(vii) The documents incorporated by reference in the
Prospectus or any further amendment or supplement
thereto made by the Company prior to the Closing Date
(other than the financial statements therein, as to
which such counsel need express no opinion), when
they became effective or were filed with the
Commission, as the case may be, complied as to form
in all material respect with the requirements of the
Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder; and
(viii) Such counsel does not know of any contracts or other
documents of a character required to be filed as an
exhibit to the Registration Statement or required to
be incorporated by reference into the Prospectus or
required to be described in the Registration
Statement or the Prospectus which are not filed or
incorporated by reference or described as required.
(f) Wachtell, Lipton, Xxxxx & Xxxx, counsel to the Selling
Stockholders, shall have furnished to the Underwriter their
written opinion, addressed to the Underwriter dated the
Closing Date, in form and substance satisfactory to the
Underwriter, to the effect that:
(i) This Agreement has been duly authorized, executed and
delivered by or on behalf of each Selling
Stockholder;
(ii) Each Selling Stockholder has full right, power and
authority to enter into this Agreement; the
execution, delivery and performance of this Agreement
and the consummation by such Selling Stockholder of
the transactions contemplated hereby will not result
in any violation of its partnership agreement or
limited liability company agreement or any statute or
any order, rule or regulation known to such counsel,
which in their experience is normally applicable to
transactions of the type contemplated by this
Agreement, of any U.S. federal or state court or
governmental agency or body having jurisdiction over
such Selling Stockholder;
(iii) No consent, approval, authorization, order,
registration or qualification of or with any such
U.S. federal or state court or governmental agency or
body is required for the execution, delivery and
performance by each Selling Stockholder of this
Agreement and the consummation by such Selling
Stockholder of the transactions contemplated hereby,
except the registration of the Shares under the Act,
and such consents, approvals, authorizations,
registrations or qualifications as may be required
under state securities or Blue Sky laws in connection
with the purchase and distribution of the Shares by
the Underwriter; and
(iv) Upon the payment and transfer contemplated hereto,
the Underwriter will acquire a security entitlement
with respect to the Shares to be sold by the Selling
Stockholders and no action based on an adverse claim
may be asserted against the Underwriter.
13
In rendering such opinion, such counsel may (i) state that such opinion is
limited to matters governed by U.S. federal law, New York state law, the
Delaware Revised Uniform Limited Partnership Act, the Delaware Limited Liability
Company Act and, in reliance upon an opinion of Xxxxxxx, Xxxx & Xxxxxxx, Bermuda
counsel to the Selling Stockholders, Bermuda law and (ii) rely as to matters of
fact upon the representations and warranties of the Selling Stockholders
contained herein as to the opinions set forth in clauses (i) and (iv) above.
(g) On the Closing Date, Ernst & Young LLP shall have furnished to
the Underwriter a "comfort" letter or letters, addressed to
the Underwriter and dated the respective date of delivery
thereof, as to such matters as the Underwriter may reasonably
request and in form and substance satisfactory to the
Underwriter;
(h) (i) The Company and its subsidiaries shall not have sustained
since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any
loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated
in the Prospectus, and (ii) since the respective dates as of
which information is given in the Prospectus there shall not
have been any change in the capital stock (other than shares
of Common Stock repurchased by the Company under its
previously announced stock repurchase program and shares
issued or issuable pursuant to employee and director stock
option plans, the director compensation plan and employee
stock purchase plans, in each case as in effect on the date
hereof) or any increase in excess of $150 million in the
aggregate in the consolidated long-term debt of the Company
and its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general
affairs, business, management, financial position,
stockholders' equity or results of operations of the Company
and its subsidiaries taken as a whole, otherwise than as set
forth or contemplated in the Prospectus, the effect of which,
in any such case described in clause (i) or (ii), is in the
Underwriter's judgment so material and adverse as to make it
impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares being delivered on the
Closing Date on the terms and in the manner contemplated in
the Prospectus;
(i) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i)
trading in the Common Stock on the New York Stock Exchange
shall have been suspended or materially limited; (ii) trading
in securities generally on the New York Stock Exchange shall
have been suspended or minimum prices shall have been
established on such Exchange by the Commission, by such
Exchange or by any other regulatory body or governmental
authority having jurisdiction; (iii) a banking moratorium
shall have been declared by Federal or New York State
authorities or a material disruption in commercial banking or
securities settlement or clearance services in the United
States; (iv) the United States shall have become engaged in
hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have
been a declaration of a national emergency or war by the
United States, if the effect of any such event specified in
this clause (iv) in the reasonable judgment of the Underwriter
makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares being delivered
on the Closing Date on the terms and in the manner
contemplated in the Prospectus; or (v) the occurrence of any
other calamity or crisis or any change in general economic,
political or financial conditions (or the effect of
international conditions on the financial markets in the
United States shall be such) which, in the reasonable judgment
of the Underwriter, would materially and adversely affect the
financial markets or the market for the Shares;
14
(j) The Company shall have furnished or caused to be furnished to
the Underwriter on the Closing Date certificates of officers
of the Company satisfactory to the Underwriter as to the
accuracy of the representations and warranties of the Company
herein at and as of the Closing Date, as to the performance by
the Company of all of its obligations hereunder to be
performed at or prior to the Closing Date, as to the matters
set forth in Sections 9(a) and 9(h) hereof and as to such
other matters as the Underwriter may reasonably request;
(k) Each Selling Stockholder shall have furnished to the
Underwriter on the Closing Date a certificate as to the
accuracy of the representations and warranties of such Selling
Stockholder contained herein at and as of the Closing Date, as
to the performance by such Selling Stockholder of all of its
or his obligations hereunder to be performed by such Selling
Stockholder at or prior to the Closing Date and as to such
other matters as the Underwriter may reasonably request; and
(l) The Company shall have complied with the provisions of Section
6(c) hereof with respect to the furnishing of Prospectuses on
the business day next succeeding the date of this Agreement.
10. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless the Underwriter
and each person, if any, who controls the Underwriter within
the meaning of the Act, from and against any loss, claim,
damage or liability, joint or several, or any action in
respect thereof (including, but not limited to, any loss,
claim, damage, liability or action relating to purchases and
sales of Shares in connection herewith), to which that
Underwriter or controlling person may become subject, under
the Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement
thereto or (ii) the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and
shall reimburse the Underwriter and each such controlling
person for any legal or other expenses reasonably incurred by
the Underwriter or any such director, officer or controlling
person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case
to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement
or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement
or the Prospectus or in any such amendment or supplement in
reliance upon and in conformity with written information
furnished to the Company by or on behalf of the Underwriter or
by or on behalf of any Selling Stockholder expressly for use
therein; and provided, further, that as to any Preliminary
Prospectus this indemnity agreement shall not inure to the
benefit of the Underwriter or any person controlling that
Underwriter on account of any loss, claim, damage, liability
or action arising from the sale of Shares to any person by
that Underwriter if that Underwriter failed to send or give a
copy of the Prospectus, as the same may be amended or
supplemented to that person within the time required by the
Act, and the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a
material fact in such Preliminary Prospectus was corrected in
the Prospectus, unless such failure resulted from
non-compliance by the Company with Section 6(c) hereof. For
purposes of the last proviso to the immediately preceding
sentence the term "Prospectus" shall not be deemed to include
the documents incorporated therein by reference, and no
Underwriter shall
15
be obligated to send or give any supplement or amendment to
any document incorporated by reference in any Preliminary
Prospectus or the Prospectus to any person. The foregoing
indemnity agreement is in addition to any liability which the
Company may otherwise have to any Underwriter or to any
controlling person of that Underwriter.
(b) The Selling Stockholders (subject to the limitation on
indemnity contained in the last sentence of this Section
10(b), severally and not jointly, shall indemnify and hold
harmless the Underwriter and each person, if any, who controls
any Underwriter within the meaning of the Act, from and
against any loss, claim, damage or liability, joint or
several, or action in respect thereof (including, but not
limited to, any loss, claim, damage, liability or action
relating to purchases and sales of Shares in connection
herewith), to which that Underwriter or controlling person may
become subject, under the Act or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in
any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein
not misleading, but in each case only to the extent that the
untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity
with information furnished in writing to the Company by such
Selling Stockholder expressly for use therein, and shall
reimburse the Underwriter and each such controlling person for
any legal or other expenses reasonably incurred by that
Underwriter or controlling person in connection with
investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses
are incurred; provided, however, that as to any Preliminary
Prospectus this indemnity agreement shall not inure to the
benefit of any Underwriter or any person controlling that
Underwriter on account of any loss, claim, damage, liability
or action arising from the sale of Shares to any person by
that Underwriter if that Underwriter failed to send or give a
copy of the Prospectus, as the same may be amended or
supplemented, to that person within the time required by the
Act, and the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a
material fact in such Preliminary Prospect was corrected in
the Prospectus, unless such failure resulted from
non-compliance by the Company with Section 6(c) hereof. For
purposes of the last proviso to the immediately preceding
sentence, the term "Prospectus" shall not be deemed to include
the documents incorporated therein by reference, and no
Underwriter shall be obligated to send or give any supplement
or amendment to any document incorporated by reference in any
Preliminary Prospectus or the Prospectus to any person other
than a person to whom such Underwriter had delivered such
incorporated document or documents in response to a written
request therefor. The foregoing indemnity agreement is in
addition to any liability which the Selling Stockholders may
otherwise have to the Underwriter or any controlling person of
the Underwriter. The aggregate liability of any Selling
Stockholder to indemnify the Underwriter and any controlling
persons of the Underwriter pursuant to the foregoing indemnity
agreement shall not exceed the proceeds received by such
Selling Stockholder from the Shares sold by it pursuant to
this Agreement.
(c) The Underwriter shall indemnify and hold harmless the Company,
each of its directors, each of its officers who signed the
Registration Statement, each person, if any, who controls the
Company within the meaning of the Act and each Selling
Stockholder from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof,
to which the Company or any such director, officer or
controlling person or such Selling Stockholder may become
subject, under the Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based
upon, (i) any untrue statement or alleged untrue statement of
a
16
material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment
or supplement thereto or (ii) the omission or alleged omission
to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading,
but in each case only to the extent that the untrue statement
or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the
Underwriter expressly for use therein, and shall reimburse the
Company, any such director, officer or controlling person and
such Selling Stockholder for any legal or other expenses
reasonably incurred by the Company, any such director, officer
or controlling person or such Selling Stockholder in
connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or
action as such expenses are incurred. The foregoing indemnity
agreement is in addition to any liability which the
Underwriter may otherwise have to the Company or any such
director, officer or controlling person.
(d) Promptly after receipt by an indemnified party under this
Section 10 of notice of any claim or the commencement of any
action, the indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under
this Section 10, notify the indemnifying party in writing of
the claim or the commencement of that action; provided,
however, that the failure to notify the indemnifying party
shall not relieve it from any liability which it may have to
an indemnified party otherwise than under subsections (a), (b)
and (c) of this Section 10. If any such claim or action shall
be brought against an indemnified party, and it shall notify
the indemnifying party thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying
party shall not be liable to the indemnified party under this
Section 10 for any legal or other expenses subsequently
incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation;
provided, however, that the Underwriter shall have the right
to employ counsel to represent jointly the Underwriter and its
respective controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be
sought by the Underwriter against the Company or any Selling
Stockholder under this Section 10 if, in the reasonable
judgment of the Underwriter, it is advisable for the
Underwriter and controlling persons to be jointly represented
by separate counsel, and in that event the fees and expenses
of one such separate counsel shall be paid by the Company or
such Selling Stockholder, as the case may be. No indemnifying
party shall be liable for any settlement of any such action
effected without its written consent (which consent shall not
be unreasonably withheld), but if settled with its written
consent or if there be a final judgment of the plaintiff in
any such action, the indemnifying party agrees to indemnify
and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(e) If the indemnification provided for in this Section 10 shall
for any reason be unavailable to or insufficient to hold
harmless an indemnified party under Sections 10(a), 10(b) or
10(c) hereof in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to
therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such
loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company and the
Selling Stockholders on the one hand and the Underwriter on
the other from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by
applicable law or if the indemnified party failed to give the
notice required under Section 10(d) hereof, in
17
such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the
relative fault of the Company and the Selling Stockholders on
the one hand and the Underwriter on the other with respect to
the statements or omissions which resulted in such loss,
claim, damage or liability, or action in respect thereof, as
well as any other relevant equitable considerations. The
relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriter on the other
with respect to such offering shall be deemed to be in the
same proportion as the total net proceeds from the offering of
the Shares purchased under this Agreement (before deducting
expenses) received by each of the Selling Stockholders bear to
the total underwriting discounts and commissions received by
the Underwriter with respect to the Shares purchased under
this Agreement, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault shall be
determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information
supplied by the Company, the Selling Stockholders or the
Underwriter, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company, the Selling
Stockholders and the Underwriter agree that it would not be
just and equitable if contributions pursuant to this Section
10(e) were to be determined by pro rata allocation or by any
other method of allocation which does not take into account
the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the
loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 10(e) shall be
deemed to include, for purposes of this Section 10(e), any
legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the
provisions of this Section 10(e), the Underwriter shall not be
required to contribute any amount in excess of the amount by
which the total price at which the Shares underwritten by it
and distributed to the public was offered to the public
exceeds the amount of any damages which the Underwriter has
otherwise paid or become liable to pay by reason of any untrue
or alleged untrue statement or omission or alleged omission,
and no Selling Stockholder shall be required to contribute any
amount in excess of the amount by which the proceeds received
by such Selling Stockholder from the Shares sold by it
pursuant to this Agreement exceeds the amount of any damages
which such Selling Stockholder has otherwise paid or become
liable to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent
misrepresentation.
(f) Each Selling Stockholder severally confirms, and the
Underwriter agrees that the information (other than the
percentage of shares owned) pertaining to each Selling
Stockholder under the captions "Selling Stockholders" in the
Prospectus constitutes the only information furnished in
writing to the Company by such Selling Stockholder expressly
for use in the Registration Statement and the Prospectus.
(g) The agreements contained in this Section 10 and the
representations, warranties and agreements of the Company in
Sections 1, 6 and 8 hereof and of the Selling Stockholders in
Sections 2, 7, 8 and 12 hereof shall survive the delivery of
the Shares and shall remain in full force and effect,
regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any
indemnified party.
11. Termination. The obligations of the Underwriter hereunder may be terminated
by the Underwriter, in its absolute discretion, by notice given to and received
by the Company and the Selling
18
Stockholders prior to delivery of any payment for the Shares if, prior to that
time, any of the events described in Section 9(h) or 9(i) hereof shall have
occurred.
12. Reimbursement of Expenses. If (a) any Selling Stockholder shall fail to
tender the Shares for delivery to the Underwriter for any reason permitted under
this Agreement or (b) the Underwriter shall decline to purchase the Shares for
any reason permitted under this Agreement, the Selling Stockholders, jointly and
severally, shall, subject to the next succeeding sentence of this Section 12,
reimburse the Underwriter for the reasonable fees and expenses of its counsel
and for such other out-of-pocket expenses as shall have been incurred by it in
connection with this Agreement and the proposed purchase of the Shares, and upon
demand the Selling Stockholders shall pay the full amount thereof to the
Underwriter. If this Agreement is terminated pursuant to Section 11 hereof
because of the occurrence of any of the events described in Section 9(i) hereof,
the Selling Stockholders shall not be obligated to reimburse the Underwriter on
account of those expenses and shall not have any other liability to the
Underwriter except as provided in Section 8 or 10 hereof.
13. Notices. All statements, requests, notices and agreements hereunder shall be
in writing, and:
(a) If to the Underwriter, shall be delivered or sent by mail,
telex or facsimile transmission at the address set forth
above, Attention: General Counsel;
(b) If to the Company, shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Company set
forth in the Registration Statement, Attention: Secretary; and
(c) If to the Selling Stockholders, shall be delivered or sent by
mail, telex or facsimile transmission to 000 Xxxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxx 00000.
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof. The Company and the Underwriter shall be entitled to
act and rely upon any request, consent, notice or agreement given or made by the
Selling Stockholders.
14. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the Underwriter, the Company, the Selling
Stockholders and their respective personal representatives and successors. This
Agreement and the terms and provisions hereof are for the sole benefit of only
those persons, except that (A) the representations, warranties, Agreement shall
also be deemed to be for the benefit of the person or persons, if any, who
control the Underwriter within the meaning of Section 15 of the Act and (B) the
indemnity agreement of the Underwriter contained in Section 10(c) hereof shall
be deemed to be for the benefit of directors of the Company, officers of the
Company who have signed the Registration Statement, the Selling Stockholders and
any person controlling the Company or any Selling Stockholder within the meaning
of Section 15 of the Act. Nothing in this Agreement is intended or shall be
construed to give any person, other than the persons referred to in this Section
15, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
15. Certain Definition. For purposes of this Agreement, a "business day" means
any day on which the New York Stock Exchange is open for trading.
16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
19
17. Counterparts. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts (including, without limitation,
facsimile counterparts), each of which shall be deemed to be an original, but
all such counterparts shall together constitute one and the same instrument.
20
If the foregoing is in accordance with your understanding, please sign and
return to us six counterparts hereof, and upon the acceptance hereof by you this
letter and such acceptance hereof shall constitute a binding agreement among the
Underwriter, each of the Selling Stockholders and the Company.
Very truly yours,
AutoZone, Inc.
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------------------
Xxxxx X. Xxxxxxxxx
Senior Vice President, General Counsel &
Secretary
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------------
Xxxxxxx Xxxxxxxx
Senior Vice President and Chief Financial
Officer
SELLING STOCKHOLDERS:
ESL Partners, L.P.
By: RBS Partners, L.P., its general partner
By: ESL Investments, Inc., its general partner
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxx
President and Chief Operating
Officer
ESL Limited
By: ESL Investment Management, LLC, its
investment manager
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxx
Member
ESL Institutional Partners, L.P.
By: RBS Investment Management, LLC, its general
partner
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxx
Member
ESL Investors, L.L.C.
By: RBS Partners, L.P., its manager
By: ESL Investments, Inc., its general partner
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxx
President and Chief Operating Officer
Acres Partners, L.P.
By: ESL Investments, Inc., its general partner
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxx
President and Chief Operating Officer
Xxxxxx Partners, L.P.
By: ESL Investments, Inc., its general partner
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxx
President and Chief Operating Officer
Blue Macaw Partners, L.P.
By: ESL Investments, Inc., its general partner
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxx
President and Chief Operating Officer
Accepted as of the date hereof:
Citigroup Global Markets Inc.
By:
-----------------------------------
Title: Managing Director
SCHEDULE 1
NUMBER OF
NAME OF SELLING STOCKHOLDER SHARES
--------------------------- -----------
ESL Partners, L.P. 2,422,470
ESL Limited 344,699
ESL Institutional Partners, L.P. 93,255
ESL Investors, L.L.C. 375,344
Acres Partners, L.P. 1,651,042
Xxxxxx Partners, L.P. 224,840
Blue Macaw Partners, L.P. 488,350
----------
Total 5,600,000
==========
