EXHIBIT 4.04.01
AMENDMENT NO. 1 TO SECURITIES PURCHASE AGREEMENT
This Amendment No. 1 to SECURITIES PURCHASE AGREEMENT (the
"Amendment"), dated as of May 16, 2002, amends the Security Purchase Agreement
dated as of December 7, 2001 (the "Agreement"), by and among CSK Auto
Corporation, a Delaware corporation, with headquarters located at 000 X.
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 (the "Company"), LB I Group
Inc. ("LB I") and Investcorp CSK Holdings LP ("Investcorp CSK" and with LB I,
each a "Buyer" and collectively, the "Buyers").
WHEREAS:
A. Pursuant to the Agreement, the Company sold to Investcorp
CSK and Xxxxxx Brothers Inc. (as assignee of LB I) on December 21, 2001 (the
"Closing Date'") (i) $50 million principal amount of its 7% Convertible
Subordinated Debentures (the "Debentures"), which are convertible into shares of
the Company's common stock, par value $0.01 per share (the "Common Stock") (as
converted, the "Conversion Shares"), and (ii) associated warrants (the
"Make-Whole Warrants") to purchase shares of Common Stock (as exercised, the
"Warrant Shares"). As of the date hereof, Xxxxxx Brothers Inc. re-assigned back
to LB I all of Xxxxxx Brothers Inc.'s rights and obligations under the
Agreement, the Amended Registration Rights Agreement (as defined below) and
related documents, and all of its interests in the Debentures and Make-Whole
Warrants.
B. Contemporaneously with the execution and delivery of the
Agreement, the Company and the Buyers executed a Registration Rights Agreement
(the "Registration Rights Agreement"), pursuant to which the Company agreed (i)
to file a registration statement (herein referred to as the "Primary
Registration Statement") within 30 days of the Closing Date, registering for
resale at least 12.7 million shares of Common Stock, which shares included the
Conversion Shares, shares payable in lieu of cash interest payments on the
Debentures, and the Warrant Shares, and (ii) to use its best efforts to have the
Primary Registration Statement be declared effective by the U.S. Securities and
Exchange Commission (the "SEC") within 120 days of its filing.
C. Pursuant to comments by the SEC concerning the Primary
Registration Statement, the issuance of the Warrant Shares is deemed by the SEC
to be subject to certain conditions precedent and thus cannot be registered for
resale in the Primary Registration Statement, and the Company and the Buyers
have therefore entered into an Amended and Restated Registration Rights
Agreement, dated as of the date hereof (the "Amended Registration Rights
Agreement"). The Amended Registration Rights Agreement excludes the Warrant
Shares from the Primary Registration Statement and requires the Company to file
an additional Registration Statement (as defined in the Amended Registration
Rights Agreement) within two Business Days of the Make-Whole Date (as defined in
the Debentures), registering for resale any
Make-Whole Securities (as defined in the Amended Registration Rights Agreement)
issued or issuable on the Make-Whole Date.
D. The Company and the Buyers wish to amend and update the
Agreement to ensure that it is consistent with the terms of the Amended
Registration Rights Agreement;
NOW THEREFORE, in consideration of the mutual promises,
covenants and conditions hereinafter set forth, the parties hereto agree as
follows:
1. Definitions. All capitalized terms used and not defined herein shall
have the meanings ascribed to such terms in the Agreement.
2. Amendment.
A. All references in the Agreement to the Registration Rights
Agreement shall be read to refer to the Amended Registration Rights
Agreement.
B. Section 4(s) of the Agreement shall be deleted and replaced
with the following language:
(s) Registration Rights.
(i) Until a "Registration Statement" (as defined in
the Amended Registration Rights Agreement) covering the Registrable
Securities is declared effective by the SEC, the Company will not grant
registration rights with respect to the Common Stock to any stockholder
which are preferential to the rights of the Buyers under the Amended
Registration Rights Agreement with respect to the registration of the
Registrable Securities; and
(ii) If the Company is required under the Amended
Registration Rights Agreement to file a Registration Statement
registering for resale any Make-Whole Securities (as defined in the
Amended Registration Rights Agreement), between the Make-Whole Date (as
defined in the Debenture) and the time such Registration Statement
covering the Make-Whole Securities is declared effective by the SEC,
the Company will not grant registration rights with respect to the
Common Stock to any stockholder which are preferential to the rights of
the Buyers under the Amended Registration Rights Agreement with respect
to the Make-Whole Securities;
3. Company Representations and Warranties. The Company represents and
warrants to each of the Buyers that:
A. The Company has received all consents and waivers necessary
to give effect to the rights of the Buyers contained in the Amended
Registration Rights Agreement.
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B. As of the date hereof, the Company meets the requirements
for use of Form S-3 for registration of the resale of Registrable
Securities (as defined in the Amended Registration Rights Agreement) or
Make-Whole Securities, as the case may be.
C. Each affiliate of Investcorp S.A. that is a stockholder of
the Company ("Investcorp"), and The Carmel Trust and each of its
affiliates that are stockholders of the Company ("Carmel"), have waived
in writing any piggyback registration rights they may have with respect
to any Company securities they hold in connection with the registration
of Registrable Securities or Make-Whole Securities pursuant to the
Amended Registration Rights Agreement, as the case may be.
Additionally, each of Investcorp and Carmel has agreed to waive the
Company's requirement to file a registration statement in response to
any exercise of registration rights by either Investcorp or Carmel (i)
until the registration of the Registrable Securities issuable to LB I
has been declared effective by the SEC; and (ii) in the event the
Company is required to file a Registration Statement registering for
resale any Make-Whole Securities, from the Make-Whole Date until any
such Registration Statement has been declared effective by the SEC
(collectively, the "Registration Rights Waivers").
D. The Company has secured the listing of the Registrable
Securities and the Make-Whole Securities upon each national securities
exchange and automated quotation system, if any, upon which shares of
Common Stock are listed (subject to official notice of issuance).
4. Covenants.
A. The Company covenants to each Buyer that true and
complete copies of the Registration Rights Waivers
(collectively, the "Amended Registration Rights
Waiver Agreements") have been provided to each Buyer.
Without the prior written consent of LB I, the
Company shall not modify, amend, terminate or waive
any of its rights under the Amended Registration
Rights Waiver Agreements.
B. The Company covenants to each Buyer that it shall
maintain, so long as any other shares of Common Stock
shall be so listed, the listing of all Registrable
Securities and Make-Whole Securities from time to
time issuable under the terms of the Transaction
Documents upon each national securities exchange and
automated quotation system, if any, upon which shares
of Common Stock are listed.
5. Miscellaneous.
A. Effect of Amendment. Except as specifically provided
herein, the Agreement is in all respects ratified and
confirmed. All of the terms, conditions and
provisions of the Agreement as hereby amended shall
be and remain in full force and effect.
B. Entire Agreement. This Amendment, together with the
unaltered portions of the Agreement, embodies the
entire agreement and understanding of the
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parties hereto and supersedes all prior agreements
and understandings relating to the subject matter
hereof.
C. Duplicate Originals. This Amendment may be executed
in as many counterparts as may be necessary or
convenient, and each of which, when so executed,
shall be deemed to be an original, but all such
counterparts shall constitute but one and the same
agreement.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the Buyers and the Company have caused
this Amendment No. 1 to Securities Purchase Agreement to be duly executed as of
the date first written above.
COMPANY: BUYERS:
CSK AUTO CORPORATION LB I GROUP INC.
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxx X. Xxxxxx
----------------------------- ---------------------------------
Name: Xxxxxx Xxxxxx Name: Xxxxx X. Xxxxxx
Title: President and Chief Operating Title: Vice President
Officer
[Additional Buyers Signature Page Follows]
Additional Buyers Signature Page to Amendment No. 1 to Securities Purchase
Agreement
INVESTCORP CSK HOLDINGS L.P.
By:/s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Representative
