Exhibit 10.18.5
SECOND AMENDMENT
TO
STOCKHOLDERS' AGREEMENT
THIS SECOND AMENDMENT (this "Second Amendment"), dated as of December
7, 2001, is by and among EQUITY CSKA LIMITED, EQUITY CSKB LIMITED, EQUITY CSKC
LIMITED, AUTO EQUITY LIMITED, AUTO PARTS LIMITED, AUTO INVESTMENTS LIMITED, CSK
INVESTMENTS LIMITED, CSK EQUITY LIMITED, NEW 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, GLEAM LIMITED,
HIGHLANDS LIMITED, NOBLE LIMITED, OUTRIGGER LIMITED, QUILL LIMITED, RADIAL
LIMITED, SHORELINE LIMITED and ZINNIA LIMITED, each being a corporation
organized under the laws of the Cayman Islands, CHILTERN TRUSTEES LIMITED, in
its capacity as trustee of The Carmel Trust, a trust governed by the laws of
Canada and established under a trust settlement made August 17, 1977 ("Chiltern
Trustees Limited"), Glenellen Investment Co., a Cayman Islands corporation,
Transatlantic Investments, LLC., XXXXXXX XXXXXXX and THE JAB TRUST
(collectively, the "Stockholders"), CSK AUTO CORPORATION, a Delaware corporation
(the "Company"), and CSK AUTO, INC., an Arizona corporation and a wholly-owned
subsidiary of the Company, each of whom is a party to that certain Stockholders'
Agreement, dated as of October 30, 1996, as amended by that certain Amendment
thereto, dated as of June 12, 1998, and as further amended by that certain
letter agreement, dated December 8, 1998 (the "Stockholders' Agreement").
WHEREAS, under the terms of the Stockholders' Agreement, the Company
has granted the Stockholders certain preemptive rights in connection with the
issuance of any additional Securities (as defined therein) by the Company;
WHEREAS, under the terms of the Stockholders' Agreement, the Company
has granted the Stockholders certain demand and piggyback registration rights in
respect of the Registrable Stock (as defined therein) held by the Stockholders;
WHEREAS, the Company wishes to obtain additional financing on the terms
and conditions set forth in that certain Securities Purchase Agreement (the
"Securities Purchase Agreement"), to be dated as of December 7, 2001, by and
among the Company and the investors who are party thereto (the "New Investors"),
who are currently anticipated to be Investcorp CSK Holdings L.P. and LBI Group
Inc., but may include an additional investor, with respect to the purchase of
$50,000,000 principal amount of the Company's 7% Convertible Debentures due
December 2006 (the "Debentures");
WHEREAS, in connection with the execution and delivery of the
Securities Purchase Agreement, the Company will enter into a Registration Rights
Agreement (the "Registration Rights Agreement"), pursuant to which the Company
will grant the New Investors certain registration rights with respect to the
Registrable Securities (as defined therein) held by the New Investors;
WHEREAS, in connection with the exercise of the New Investors'
registration rights under the Registration Rights Agreement, the New Investors
will be given preferential registration rights with respect to their Registrable
Securities (as defined in the Registration Rights Agreement) as compared to the
registration rights for the Registrable Stock that the Stockholders currently
have under the Stockholders' Agreement;
WHEREAS, the Company is required under the Securities Purchase
Agreement to obtain all consents and waivers necessary to give effect to the
registration rights it has granted to the New Investors under the Registration
Rights Agreement; and
WHEREAS, the Company and the Stockholders wish to amend the
Stockholders' Agreement to provide, in part, for certain penalties which the
Company may incur in connection with certain of the Stockholders' exercise of
their registration rights thereunder.
NOW, THEREFORE, in consideration of the mutual covenants and premises
contained herein and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
AMENDMENTS
Section 1.1. Penalties. Section 9.1 of the Stockholders' Agreement is
hereby amended by adding the following new clause "(d)" at the end thereof:
"(d) Following the date on which the Xxxxxx Registration Statement (as
defined below) is declared effective, the Company shall be obligated to file any
registration statement requested pursuant to Section 9.1(a) or Section 9.3 and
to use its best efforts to cause such registration statement to be declared
effective within the time periods specified below. If the Company fails to file
such registration statement or cause that registration statement to be declared
effective within the time periods specified, the Company shall incur the
penalties specified below to any of Chiltern Trustees Limited, Glenellen
Investment Co. and Transatlantic Investments, LLC (collectively, the "Carmel
Stockholders") requesting the filing of such Registration Statement.
(i) If any of the Stockholders exercise their registration
rights under this Section 9.1 or under Section 9.3 at any time prior to
the time that the Xxxxxx Registration Statement is declared effective
by the Commission or at any time during the Company's four or five week
accounting period (a "Company Accounting Month") in which the Xxxxxx
Registration Statement is declared effective by the Commission, the
Company shall file a registration statement in respect of such exercise
not later than two (2) Business Days after receipt by the Company of
written facsimile notice (as defined below) of such exercise, but shall
not be obligated to make such filing earlier than the second Business
Day after the Xxxxxx Registration Statement is declared effective;
provided, however, that if the written facsimile notice of such
exercise is
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provided to the Company at least three (3) Business Days prior to the
declaration of effectiveness of the Xxxxxx Registration Statement, such
filing shall be made by the Company on the first Business Day following
the declaration of effectiveness of the Xxxxxx Registration Statement.
(ii) If any of the Stockholders exercise their registration
rights under this Section 9.1 or under Section 9.3 during the Company
Accounting Month immediately following the Company Accounting Month in
which the Xxxxxx Registration Statement is declared effective, the
Company shall file a registration statement in respect of such exercise
within five (5) Business Days after receipt by the Company of written
facsimile notice of such exercise.
(iii) If any of the Stockholders exercise their registration
rights under this Section 9.1 or under Section 9.3 after the exercise
period specified in Section 9.1(d)(ii) above, the Company shall file a
registration statement in respect of such exercise within thirty (30)
calendar days after receipt by the Company of written facsimile notice
of such exercise.
(iv) The Company shall use its best efforts to cause any
registration statement filed in accordance with Sections
9.1(d)(i)-(iii), above, to become effective within 150 calendar days
following the date on which the Company receives written facsimile
notice of exercise of such registration rights; provided, however, that
the Company will, commencing with the first business day after such
filing and continuing thereafter, diligently seek a determination by
the Commission as to whether it will be reviewing such registration
statement and if the Company receives notice from the Commission that
it will not be reviewing such registration statement, the Company shall
request effectiveness of such registration statement within one (1)
Business Day of its receipt of such notification from the Commission.
(v) If a Stockholder exercises its rights under Section
9.1(d)(i) hereof, all notifications to be provided hereunder by the
Company will be provided by facsimile to the other Stockholders at the
last facsimile number provided by them to the Company and the following
time periods will apply:
A. Section 9.1(b) - - both time periods will change
from thirty (30) days to fifteen (15) hours after receipt; and
B. Section 9.2 - - thirty (30) days will change to
fifteen (15) hours after receipt.
(vi) If a Stockholder exercises its rights under Section
9.1(d)(ii) hereof, all notifications to be provided hereunder by the
Company will be provided by facsimile to the other Stockholders at the
last facsimile number provided by them to the Company and the following
time periods will apply:
A. Section 9.1(b) - - both time periods will change
from thirty (30) days to one (1) Business Day; and
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B. Section 9.2 - - thirty (30) days will change to
one (1) Business Day.
(vii) If a Stockholder exercises its rights under Section
9.1(d)(iii) hereof, all notifications to be provided hereunder will be
provided by facsimile to the other Stockholders at the last facsimile
number provided by them to the Company and the following time periods
will apply:
A. Section 9.1(b) - - both time periods will change
from thirty (30) days to five (5) Business Days; and
B. Section 9.2 - - thirty (30) days will change to
five (5) Business Days.
(viii) If the Company fails to file a registration statement,
if such registration statement is not declared effective by the
Commission, or if the Company fails to make such registration statement
available for the sale of the securities covered by such registration
statement, in each case, within the applicable time period specified
above, or if on any day after such registration statement has been
declared effective by the Commission, sales of all securities requested
to be included in such registration statement cannot be made (each of
the foregoing, a "Registration Failure"), the Company shall , as relief
for damages pay to each of the Carmel Stockholders seeking to exercise
its registration rights under this Section 9.1, which shall be a number
of shares of the Company's common stock equal to the product of (A)
0.0005 multiplied by (B) the number of shares of the Company's common
stock that such Carmel Stockholder specified in its written facsimile
notice requesting registration multiplied by (C) the sum of (x) the
number of calendar days after the applicable filing deadline that the
registration is not filed with the Commission, plus (y) the number of
calendar days after the effectiveness deadline in Section 9.1(d)(iv)
until the registration statement is declared effective by the
Commission, plus (z) the number of days after the registration
statement is declared effective by the Commission that it is not
available for the sale of the securities required to be included in the
registration statement, other than in each case during a Material Event
(as defined below). This payment shall be paid in the form of shares of
the Company's common stock based on the average final quoted price of
the Company's common stock on each of the five (5) Business Days
immediately preceding the date of payment. The payment provided in this
paragraph shall not be the exclusive remedy for a Registration Failure
nor shall it serve as a limitation on damages recoverable for or
equitable relief available for such a Registration Failure. The
payments to which any Carmel Stockholder shall be entitled pursuant to
this paragraph shall be paid on the earlier of (I) the last day of each
calendar month during which such payments are incurred and (II) the
third Business Day after the event or failure giving rise to the
payments is cured. In the event the Company fails to make such payments
in a timely manner, such payments shall bear interest at the rate of
1.5% per month (prorated for partial months) until paid in full.
For purposes hereof, "Xxxxxx Registration Statement" shall mean the
registration statement to be prepared and filed pursuant to Section 2(a) of the
Securities Purchase Agreement. For purposes hereof, "Material Event" shall mean
any event that results in (i) the Registration
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Statement, in the good faith opinion of the Board of Directors of the Company
and its counsel, containing an untrue statement of a material fact or omitting
to state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading, or (ii)
the need to delay the disclosure of material non-public information concerning
the Company, the disclosure of which at that time is not, in the good faith
opinion of the Company's Board of Directors and its counsel, in the best
interests of the Company; provided, however, that during any three hundred
sixty-five (365) day period no more than two such Material Events shall be
permitted and such Material Events shall not exceed an aggregate of forty-five
(45) days.
For purpose hereof, "written facsimile notice" shall mean notice sent
via facsimile to the Company at 000-000-0000, attention: Xxxxxx Xxxxxx and at
000-000-0000, attention: Xxx Xxxxxx, between 9:00 a.m. and 5:00 p.m., New York
time on a Business Day.
For purposes hereof, "Business Day" shall mean any day other than
Saturday, Sunday or any other day on which commercial banks in the City of New
York are authorized or required by law to remain closed."
Section 1.2. Participation of Management in "Road Shows." Section
9.4(k) of the Stockholders' Agreement is hereby amended by adding the clause
"and the Company covenants to make its executive officers available to meet the
reasonable requirements of the underwriters in presenting such "road shows" and
related presentations" in the fourth line thereof, immediately following the
phrase, "in connection therewith."
ARTICLE II
CONSENT AND WAIVER
Section 2.1. Consent. The Stockholders hereby consent to the execution
and delivery of the Securities Purchase Agreement, the Registration Rights
Agreement and all documents contemplated therein, the transactions contemplated
thereby, the performance by the parties thereto of their respective obligations
thereunder and the rights granted to the New Investors thereunder,
notwithstanding any provisions to the contrary contained in the Stockholders'
Agreement. To the extent that the Stockholders' rights under Article 9 of the
Stockholders' Agreement to include their Registrable Stock (as defined in the
Stockholders' Agreement) in any registration of the Company's securities
conflicts with the preferential allocation granted to the New Investors under
the Registration Rights Agreement in respect of their Registrable Securities (as
defined in the Registration Rights Agreement), the Stockholders hereby expressly
waive any such conflict and consent to the granting of such preferential
registration rights to the New Investors.
Section 2.2. Waivers. The Stockholders hereby (i) waive the terms and
provisions of the Stockholders' Agreement to the extent that the transactions
contemplated by the Securities Purchase Agreement and the Registration Rights
Agreement do not comply with such terms and provisions, and (ii) waive any
preemptive rights or notification rights with respect thereto they may have
under Article 6 of the Stockholders' Agreement in respect of the securities
issued in connection with the transactions contemplated by the Securities
Purchase Agreement; provided,
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however, that until 10:00 a.m. New York time on the later of the Business Day
prior to the closing of the Securities Purchase Agreement or the first Business
Day following the receipt of notice from the Company indicating the date of such
closing, any of the Carmel Stockholders may give the Company written facsimile
notice of its desire to participate in the purchase of Debentures under the
Securities Purchase Agreement in the amount that it would have been entitled to
subscribe for, but for the waivers contained in this Section 2.2, and shall then
have the right to become a party to the Securities Purchase Agreement as it then
exists and without further modification prior to 5:00 p.m. New York time on the
later of the Business Day prior to the closing of the Securities Purchase
Agreement or the first Business Day following the receipt of notice from the
Company indicating the date of such closing and to purchase such Debentures at
the closing of the sale of the Debentures under the Securities Purchase
Agreement.
Section 2.3. Additional Agreements. The Stockholders also (i) waive any
piggyback registration rights they may have under the Stockholders' Agreement in
respect of the registration contemplated by Section 2(a) of the Registration
Rights Agreement, and (ii) agree not to require the filing of any registration
statement pursuant to its exercise of any demand registration rights they may
have under Article 9 of the Stockholders' Agreement, or otherwise, until after
the registration statement to be prepared pursuant to Section 2(a) of the
Registration Rights Agreement has been declared effective.
ARTICLE III
MISCELLANEOUS
3.1. Counterparts. This Second Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
3.2. Captions. The captions herein are included for convenience of
reference only and shall not be construed in the construction or interpretation
hereof. All references to an Article or Section include all subparts thereof.
3.3 Definitions. Initial capitalized terms used herein without
definition that are defined in the Stockholders' Agreement shall have the
meanings given to such terms therein.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed as of the day and year first above-written.
CSK AUTO CORPORATION
/s/ Xxx X. Xxxxxx
-------------------------------------
Name: Xxx X. Xxxxxx
Title: Senior Vice President
CSK AUTO, INC.
/s/ Xxx X. Xxxxxx
-------------------------------------
Name: Xxx X. Xxxxxx
Title: Senior Vice President
XXXXXXX XXXXXXX
/s/ Xxxxxxx Xxxxxxx
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SIGNATURE PAGES TO SECOND AMENDMENT TO STOCKHOLDERS' AGREEMENT
EQUITY CSKA LIMITED
By: /s/
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Name: The Director Ltd.
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Title: Director
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EQUITY CSKB LIMITED
By: /s/
------------------------------
Name: The Director Ltd.
-------------------------
Title: Director
------------------------
EQUITY CSKC LIMITED
By: /s/
------------------------------
Name: The Director Ltd.
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Title: Director
------------------------
AUTO EQUITY LIMITED
By: /s/
------------------------------
Name: Bluejay Investments Ltd.
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Title: Director
------------------------
AUTO PARTS LIMITED
By: /s/
-------------------------------
Name: Cardinal Investments Ltd.
--------------------------
Title: Director
-------------------------
AUTO INVESTMENTS LIMITED
By: /s/
-------------------------------
Name: Cardinal Investments Ltd.
--------------------------
Title: Director
-------------------------
SIGNATURE PAGES TO SECOND AMENDMENT TO STOCKHOLDERS' AGREEMENT
CSK INVESTMENTS LIMITED
By: /s/
--------------------------------------
Name: Cardinal Investments Limited
Title: Director
CSK EQUITY LIMITED
By: /s/
--------------------------------------
Name: Bluejay Investments Ltd.
Title: Director
NEW CSK EQUITY LIMITED
By: /s/
--------------------------------------
Name: Bluejay Investments Ltd.
Title: Director
INVESTCORP CSK HOLDINGS L.P.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Director
CSK INTERNATIONAL LIMITED
By: /s/
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Name: Cardinal Investments Limited
Title: Director
X.X. XXXXXX (SUISSE) SA, AS SUCCESSOR TO CHASE MANHATTAN
PRIVATE BANK (SWITZERLAND)
By: /s/ Xxxxx Xxx
-------------------------------------
Name: Xxxxx Xxx
Title: Associate
By: /s/ Xxxxxxx X'Xxxxx
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Name: Xxxxxxx X'Xxxxx
Title: Associate
SIGNATURE PAGES TO SECOND AMENDMENT TO STOCKHOLDERS' AGREEMENT
SOUTH BAY LIMITED
By: /s/
--------------------------------
Name: Martonimere Services Ltd.
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Title: Director
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BALLET LIMITED
By: /s/ H. Richard Lukene III
--------------------------------
Name: H. Richard Lukene III
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Title: Authorized Representative
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DENARY LIMITED
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
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Title: Authorized Representative
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GLEAM LIMITED
By: /s/ Xxxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxx
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Title: Authorized Representative
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HIGHLANDS LIMITED
By: /s/ Xxxxx Xx Xxxxxxx
--------------------------------
Name: Xxxxx Xx Xxxxxxx
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Title: Authorized Representative
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NOBLE LIMITED
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
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Title: Authorized Representative
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SIGNATURE PAGES TO SECOND AMENDMENT TO STOCKHOLDERS' AGREEMENT
OUTRIGGER LIMITED
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
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Title: Authorized Representative
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QUILL LIMITED
By: /s/ Xxxxxxx Xx Xxxxx
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Name: Xxxxxxx Xx Xxxxx
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Title: Authorized Representative
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RADIAL LIMITED
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Authorized Representative
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SHORELINE LIMITED
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
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Title: Authorized Representative
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ZINNIA LIMITED
By: /s/ P. Xxxxx Xxxxxxxxx
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Name: P. Xxxxx Xxxxxxxxx
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Title: Authorized Representative
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INVESTCORP INVESTMENT EQUITY LIMITED
By: /s/
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Name: The Director Ltd.
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Title: Director
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SIGNATURE PAGES TO SECOND AMENDMENT TO STOCKHOLDERS' AGREEMENT
CHILTERN TRUSTEES LIMITED, AS TRUSTEE OF CARMEL TRUST
By: /s/
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Name: XX Xxxxx de Carteret
Title: Managing Director
TRANSATLANTIC INVESTMENTS, LLC.
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Co-Chairman
GLENELLEN INVESTMENT CO.
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Chairman
THE JAB TRUST
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Trustee
By: /s/
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Name:
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Title:
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SIGNATURE PAGES TO SECOND AMENDMENT TO STOCKHOLDERS' AGREEMENT
