AGREEMENT
Exhibit
99.12
AGREEMENT
This
Agreement, dated as of August 2, 2006 (“Agreement”), is by and among The Pep
Boys - Manny, Moe & Xxxx, a Pennsylvania corporation (the “Company”), and
the other persons and entities that are signatories hereto (collectively, the
“Barington Group,” and each, individually, a “member” of the Barington Group)
which presently are or may be deemed to be members of a “group” with respect to
the common stock of the Company, par value $1.00 per share (the “Common Stock”),
pursuant to Rule 13d-5 promulgated by the Securities and Exchange Commission
(the “SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”).
WHEREAS,
the Barington Group has publicly stated that it intended to solicit proxies
for
the election of its own opposition slate of nominees (the “Proxy Solicitation”)
for election to the Company’s board of directors (the “Board”) at the 2006
annual meeting of shareholders of the Company (the “2006 Annual
Meeting”);
WHEREAS,
the Company and the members of the Barington Group have determined that the
interests of the Company and its shareholders would be best served at this
time
by, among other things, avoiding the Proxy Solicitation and the expense and
disruption that may result therefrom; and
WHEREAS,
on or prior to the date hereof, Xxxxxxxx Xxxxxxxxx, Xxxxxxxx Xxxxxxx and
Xxxxxxxx Xxxxx have resigned or retired from the Board, resulting in three
vacancies existing on the Board.
NOW,
THEREFORE, in consideration of the foregoing premises and the mutual covenants
and agreements contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto,
intending to be legally bound hereby, agree as follows:
1. Representations
and Warranties of the Company.
The
Company hereby represents and warrants to the Barington Group that (a) this
Agreement has been duly authorized, executed and delivered by the Company,
and
is a valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as enforcement thereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or similar laws generally affecting the rights of
creditors and subject to general equity principles; (b) neither the execution
of
this Agreement nor the consummation of any of the transactions contemplated
hereby nor the fulfillment of the terms hereof, in each case in accordance
with
the terms hereof, will conflict with, or result in a breach or violation of,
or
result in the imposition of any lien, charge or encumbrance upon any property
or
assets of the Company or any of its subsidiaries pursuant to the terms of,
any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument
to
which the Company or any of its subsidiaries is a party or bound or to which
its
or their property is subject; (c) the execution and delivery by the Company
of
this Agreement and the performance by the Company of its obligations hereunder
do not and will not violate the Articles of Incorporation of the Company, as
amended, the By-laws of the Company, as amended, or any policy, procedure,
charter or code of the Company; and (d) the
execution
and delivery by the Company of this Agreement and the performance by the Company
of its obligations hereunder do not and will not (i) violate in any material
respect any law, rule, regulation or order of any court or other agency of
government that is applicable to the Company or (ii) have a material adverse
effect on the enforceability of this Agreement.
2. Representations
and Warranties of the Barington Group.
Each
member of the Barington Group represents and warrants to the Company that this
Agreement has been duly authorized, executed and delivered by such member,
and
is a valid and binding obligation of such member, enforceable against such
member in accordance with its terms, except as enforcement thereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or similar laws generally affecting the rights of
creditors and subject to general equity principles.
3. Board
Matters.
(a) Prior
to
the execution of this Agreement (i) the Nominating and Governance Committee
of
the Board has reviewed and approved the qualifications of Xxxxx X. Xxxxxxxxxxx,
Xxx X. Xxxxxx, Xxxx X. Xxxxxxxx and Xxxxx X. Xxxxxxxx (each individually, a
“Barington Director” and collectively, the “Barington Directors”) to serve as
members of the Board and (ii) the Board has determined that each of the
Barington Directors are “independent” as defined by the listing standards of the
New York Stock Exchange (a person qualifying as independent, as so defined,
an
“Independent Director”);
(b) Concurrently
with the execution of this Agreement,
(i) the
Company shall increase the size of the Board from nine (9) to ten (10)
directors;
(ii) the
Barington Directors shall be appointed as members of the Board, to serve as
directors until the expiration of the term ending at the Company’s 2006 Annual
Meeting and until their successors have been duly elected and qualified or
until
their earlier death, resignation or removal; provided, however, that the
appointment of Xxxx X. Xxxxxxxx to the Board is subject to the approval of
Xx.
Xxxxxxxx’x prior employer;
provided further that, if Xx. Xxxxxxxx does not receive such approval, or if
he
is unable to serve for any other reason, then the Barington Group will propose
another person to fill the Board vacancy in accordance with the provisions
of
Section 3(f);
(iii) a
Barington Director shall be appointed to serve on each standing committee
(including, without limitation, the Audit Committee, the Nominating and
Governance Committee and the Human Resources Committee) and special committee
(including, without limitation, the Search Committee (as defined below)) of
the
Board, in each case for the duration of the Standstill Period (as defined
below), and a Barington Director shall be appointed to serve on any new standing
or special committee created during the Standstill Period upon the creation
of
such committee; provided, in each case, that a Barington Director is then
qualified to serve on any such committee under applicable legal requirements
and
listing standards; and
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(iv) Xxxxx
X.
Xxxxxxxxxxx shall be appointed to serve on the special committee of the Board
that has been formed to search for a new chief executive officer of the Company,
which committee shall consist of one Barington Director and the chairpersons
of
the Board’s Audit Committee, Nominating and Governance Committee and Human
Resources Committee (the “Search Committee”).
(c) The
Search Committee shall use its reasonable best efforts to find, and the Board
shall use its reasonable best efforts to appoint, a new chief executive officer
as promptly as practicable. Only candidates for the chief executive officer
position that have been reviewed and unanimously approved by the Search
Committee will be considered by the Board. All members of the Search Committee
shall be integrally involved in all material aspects of the search for a new
chief executive officer. The size of the Board shall not be increased or
decreased during the Standstill Period without the prior written consent of
the
Barington Group, provided, however, that upon the Board’s approval and the
Company’s hiring of a new chief executive officer, such individual may be added
to the Board as an eleventh director.
(d) The
Company shall include each Barington Director in the Board’s slate of nominees
for election as a director of the Company and use its reasonable best efforts
to
cause the election of each Barington Director at the Company’s 2006 and 2007
annual meetings of shareholders including, without limitation, recommending
that
the Company’s shareholders vote in favor of the election of the Barington
Directors at each such annual meeting and voting the shares of Common Stock
represented by all proxies granted by shareholders in connection with the
solicitation of proxies by the Board of Directors in connection with such
meetings in favor of the Barington Directors, except for such proxies that
specifically indicate a vote to withhold authority with respect to the Barington
Directors. Neither the Board nor the Company shall take any position, make
any
statements or take any action inconsistent with such
recommendations.
(e) The
Barington Group agrees to vote in favor of the Board’s slate of nominees for
election as directors of the Company at the 2006 and 2007 annual meetings of
shareholders, provided that each such slate includes the Barington
Directors.
(f) If
at any
time during the Standstill Period there shall occur a vacancy in a Board seat
either (x) previously occupied by a Barington Director by reason of the
resignation, removal, death or incapacity of such Barington Director, or (y)
as
a result of the proviso set forth in Section 3(b)(ii) above, then the Company
shall take all necessary action to promptly fill such vacancy by a person
proposed by the Barington Group that meets the qualifications of an Independent
Director, unless the Nominating and Governance Committee reasonably determines
in good faith that such person does not meet the qualifications of the Board
as
then in effect, in which case the Barington Group shall promptly propose another
person so qualified to be appointed in accordance with the provisions of this
Section 3(f).
If, as a
result of the vacancy described in the first sentence of this Section 3(f),
any
of the Board’s standing or special committees does not include a Barington
Director, the Board shall immediately appoint another Barington Director to
serve on such committee or committees, provided that such Barington Director
is
then qualified to serve on such committee under applicable legal requirements
and
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listing
standards. Any replacement director appointed pursuant to this Section 3(f)
shall also be referred to as a “Barington Director.”
(g) Concurrently
with the execution of this Agreement, the Company shall provide evidence,
reasonably satisfactory to the Barington Group, that the Board has authorized
and approved this Agreement and the execution and performance hereof and has
performed each of the covenants and agreements of the Company set forth herein
that are required to be performed prior to or concurrently with the execution
of
this Agreement.
4. Corporate
Governance.
(a)
At
the
first meeting of the Board after the date of this Agreement, which shall take
place no later than the annual meeting of directors on the day of the 2006
Annual Meeting (the “Next Board Meeting”), the Company shall cause the Rights
Agreement, dated as of December 5, 1997, between the Company and First Union
National Bank, as Rights Agent (the “Rights Agreement”), to be amended to (i)
include a “TIDE” provision as further described below; and (ii) amend Section 23
of the Rights Agreement to permit the redemption of the Rights Agreement by
the
Board rather than the Board’s “Independent Directors” (as such term is defined
in the Rights Agreement). The TIDE provision shall (x) be on such terms as
shall
be reasonably acceptable to the Barington Group, (y) require a committee of
the
Board composed of Independent Directors to meet not less than once every three
years to review the terms and conditions of the Rights Agreement, including
whether the termination or modification of the Rights Agreement is in the best
interest of the Company and its shareholders, and to make a recommendation
based
on such review to the Board, and (z) provide that the first meeting of such
committee shall take place no later than one hundred twenty (120) days after
the
date hereof. In the event that the Rights Agreement terminates or is terminated
during the Standstill Period, any successor rights agreement adopted by the
Company during the Standstill Period shall include provisions to substantially
the same effect as set forth in this Section 4(a).
(b) Concurrently
with the announcement of the execution of this Agreement, the Company shall
publicly announce the scheduling of the 2006 Annual Meeting which shall be
held
no later than October 30, 2006. The Company shall file a preliminary proxy
statement, if required, with the Securities and Exchange Commission (the “SEC”)
no later than September 10, 2006, shall respond to any comments by the staff
of
the SEC as expeditiously as possible (copies of which will be provided to the
Barington Group) and shall mail the definitive proxy statement immediately
after
resolving all comments of the SEC. If a preliminary proxy statement is not
required, the Company shall file a definitive proxy statement with the SEC
no
later than September 30, 2006. No adjournments, postponements, reschedulings
or
continuations of the 2006 Annual Meeting shall be permitted without the prior
written consent of the Barington Group.
(c)
The
Company shall provide the Barington Group with true and complete copies of
any
draft preliminary or definitive proxy statements for the 2006 and 2007 annual
meetings of shareholders as well as the Form 8-K being filed with respect to
this Agreement, not less than three (3) business days in the case of proxy
statements, and not less than two (2) business days in the case of the Form
8-K,
prior to the filing thereof, in order to provide the Barington Group with a
reasonable opportunity to review and comment thereon. The Company shall consider
in good
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faith
any
comments of the Barington Group and its counsel. The Company shall use the
language, or a summary thereof that is agreed upon in the foregoing filings,
in
all other SEC filings that disclose, discuss, refer to or are being filed in
response to or as a result of this Agreement, provided that such language is
not
altered in any material aspect without the prior written consent of the
Barington Group, which consent shall not be unreasonably withheld.
5. Standstill
Period.
(a)
Each
member of the Barington Group agrees that, from the date of this Agreement
until
the earlier of June 30, 2008 and the Company’s 2008 annual meeting of
shareholders (such period, the “Standstill Period”), without the prior written
consent of the Board specifically expressed in a written resolution adopted
by a
majority vote of the entire Board, neither it nor any of its Affiliates or
Associates under its control or direction will: (i) propose or publicly announce
or otherwise disclose an intent to propose or enter into or agree to enter
into,
singly or with any other person, directly or indirectly, (x) any form of
business combination or acquisition or other transaction relating to a material
amount of assets or securities of the Company or any of its subsidiaries or
(y)
any form of restructuring, recapitalization or similar transaction with respect
to the Company or any of its subsidiaries; (ii)(x) acquire, offer or propose
to
acquire any voting securities (or beneficial ownership thereof), or rights
or
options to acquire any voting securities (or beneficial ownership thereof)
of
the Company, (y) effect any tender offer or exchange offer, merger, acquisition
or other business combination involving the Company or any of its subsidiaries,
or (z) engage in any solicitation of proxies or consents to vote any voting
securities of the Company in opposition to the recommendation of the Board
with
respect to any matter; (iii) seek to influence any person with respect to the
voting or disposition of any securities of the Company; provided, however,
that
any member of the Barington Group and any Affiliate or Associate of any such
member may disclose, publicly or otherwise, how it intends to vote or act with
respect to any securities of the Company, any Board-approved shareholder
proposal or other matter to be voted on by the shareholders of the Company
(other than the election of directors) and the reasons therefor; (iv) otherwise
act, alone or in concert with others, to seek to control or influence the
management, the Board or policies of the Company or initiate or take any action
to obtain representation on the Board, except as permitted expressly by this
Agreement; or (v) enter into any agreements with any third party with respect
to
any of the foregoing, except, in each case, as contemplated by this Agreement.
The foregoing notwithstanding:
(A)
any
member of the Barington Group and any Affiliate or Associate of any such member
may (1) transfer any shares of Common Stock to, or acquire any shares of Common
Stock from,
any
other member of the Barington Group or any other Affiliate or Associate of
the
foregoing, (2) form a “group” pursuant to Rule 13d-5 promulgated by the SEC
under the Exchange Act with, or acquire additional shares of Common Stock from,
any party so long as after the formation of such group or acquisition of such
additional shares the members of the Barington Group and their Affiliates and
Associates, together with any other parties who, together with the Barington
Group and their Affiliates and Associates, may then constitute a “group” (all
such parties, the “Standstill Group”) do not beneficially own in the aggregate
at any time during the Standstill Period a number of shares of Common Stock
equal to more than (x) 14.99% of
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the
shares of Common Stock outstanding as of the date of this Agreement plus (y)
14.99% of the shares of Common Stock, if any, issued by the Company following
the date of this Agreement (such amount, the “Standstill Amount”), or (3) sell
or otherwise dispose of shares of Common Stock in the open market, in privately
negotiated transactions or otherwise;
(B)
the
Barington Group, and its Affiliates and Associates will not be in breach of
this
Section 5 if, upon learning of the inadvertent acquisition of beneficial
ownership of Common Stock increasing the aggregate beneficial ownership of
the
Standstill Group above the Standstill Amount, members of the Standstill Group
immediately divest themselves of a sufficient number of shares of Common Stock
to decrease the aggregate beneficial ownership of the Standstill Group to be
equal to, or less than, the Standstill Amount;
(C)
nothing contained in this Agreement shall limit any member of the Barington
Group or the Associates or Affiliates of such member from (i) taking any of
the
actions otherwise prohibited in this Agreement in connection with the 2008
annual meeting of shareholders of the Company, including without limitation,
nominating directors or soliciting proxies for the election of directors or
other purposes, requesting a shareholder list and related information, making
public filings or announcements or taking any other action, in each case,
related to the solicitation of proxies at the 2008 annual meeting of
shareholders of the Company; (ii) making and consummating a proposal or a tender
offer or exchange offer to acquire all the shares of the Company’s Common Stock,
provided that such proposal or offer is made solely to, and subject to the
approval of, the Board; or (iii) voting shares of Common Stock in any manner
its
sees fit at any annual or special meeting of shareholders of the Company,
subject to the limitations set forth in Section 3(e) of this Agreement;
and
(D)
the
provisions of this Section 5 shall not limit in any respect the actions of
any
director of the Company in his or her capacity as such, recognizing that such
actions are subject to such director’s fiduciary duties to the Company and its
shareholders.
(b)
As
used
in this Agreement, the terms “Affiliate” and “Associate” shall have the
respective meanings set forth in Rule 12b-2 promulgated by the SEC under the
Exchange Act; the terms “beneficial owner” and “beneficial ownership” shall have
the respective meanings as set forth in Rule 13d-3 promulgated by the SEC under
the Exchange Act; and the terms “person” or “persons” shall mean any individual,
corporation (including not-for-profit), general or limited partnership, limited
liability company, joint venture, estate, trust, association, organization
or
other entity of any kind or nature.
(c)
In
the
event that the Company breaches in any material respect any of its
representations, warranties or covenants contained in this Agreement, and,
in
the case of its covenants, such breach is not cured within 30 days after notice
thereof to the Company by the Barington Group, then in addition to any other
remedies that the members of the Barington Group may have, the restrictions
contained in Section 5 of this Agreement applicable to the Barington Group
shall
terminate, along with the obligation of the Barington Group to vote
for
6
the
Board’s slate of nominees for election as directors of the Company at the 2006
and 2007 annual meetings of shareholders set forth in Section 3(e) of this
Agreement.
(d) Notwithstanding
anything contained herein to the contrary:
(i)
the
provisions of Sections 3, 4 and 5 of this Agreement shall automatically
terminate upon the occurrence of a Change of Control transaction (as defined
below) involving the Company if the acquiring or counter-party to the Change
of
Control transaction has conditioned the closing of the transaction on the
termination of such sections; and
(ii)
if
the total number of shares of Common Stock held in the aggregate by members
of
the Standstill Group falls below an amount equal to 5% of the shares of Common
Stock outstanding as of the date of this Agreement, then the right of the
Barington Group under Section 3(f) of this Agreement, as it specifically relates
to the ability of the Barington Group to fill a vacancy in the Board during
the
Standstill Period caused by the resignation from the Board of a Barington
Director, shall automatically terminate (without terminating or limiting in
any
respect any of the Barington Group’s other rights under Section
3(f)).
For
purposes of this Agreement, a “Change of Control” transaction shall be deemed to
have taken place if (1) any person is or becomes a beneficial owner, directly
or
indirectly, of securities of the Company representing more than 50% of the
equity interests and voting power of the Company’s then outstanding equity
securities or (2) the Company enters into a stock-for-stock transaction whereby
immediately after the consummation of the transaction the Company’s shareholders
retain less than 50% of the equity interests and voting power of the surviving
entity’s then outstanding equity securities.
6. Confidentiality.
The
members of the Barington Group (each, a “Recipient”) each acknowledge the
confidential and proprietary nature of the Confidential Information (as defined
below) and agree that the Confidential Information (a) will be kept confidential
by Recipient and Recipient’s Representatives (as defined below) and (b) will not
be disclosed by Recipient (except to other Recipients and their Affiliates
and
Associates and such person’s Representatives to the extent contemplated by this
Agreement) or by Recipient’s Representatives to any person except with the
specific prior written consent of the Company or except as expressly otherwise
permitted by this Agreement. It is understood that (i) Recipient may disclose
Confidential Information only to those of Recipient’s Representatives who are
informed by Recipient of the confidential nature of the Confidential Information
and the obligations of this Agreement, (ii) Recipient shall be responsible
for
the breach of the provisions of this Section 6 by Recipient’s Representatives
and (iii) the provisions of this Section 6 shall not apply to any director
of
the Company in his or her capacity as such. As used in this Agreement, the
term
“Confidential Information” means and includes any and all of the information
concerning the business and affairs of the Company that may hereafter be
disclosed to Recipient by the Company or by the directors, officers, employees,
agents, consultants, advisors or other representatives, including legal counsel,
accountants and financial advisors (“Representatives”) of the Company; provided
that “Confidential Information” shall not include information that (a) was in or
enters the public domain or was or becomes generally available to the public
other than as a result of disclosure by Recipient or any Representative thereof,
(b) was independently acquired by Recipient or its
7
Representatives
without violating any of the obligations of Recipient or its Representatives
under this Agreement, or under any other contractual, legal, fiduciary or
binding obligation of Recipient or its Representatives with or to the Company,
(c) was available, or becomes available, to Recipient or its Representatives
on
a nonconfidential basis other than as a result of its disclosure to Recipient
by
the Company or any Representative of the Company, but only if to the knowledge
of Recipient the source of such information is not bound by a confidentiality
agreement with the Company or is not otherwise prohibited from transmitting
the
information to Recipient or Recipient’s Representatives by a contractual, legal,
fiduciary or other binding obligation with or to the Company, or (d) was
independently developed by Recipient or its Representatives. The
Company acknowledges that no member of the Barington Group or its Affiliates,
Associates or Representatives thereof shall be deemed to be in possession of
Confidential Information solely by reason of receipt of such Confidential
Information by any Barington Director.
The
members of the Barington Group acknowledge that they, as well as their
Representatives, are aware that the United States securities laws prohibit
any
person who has material non-public information about a company from purchasing
or selling securities of such company, or from communicating such information
to
any other person under circumstances in which it is reasonably foreseeable
that
such person is likely to purchase or sell such securities.
7. Expenses.
Within
five (5) business days after receiving documentation thereof, the Company shall
reimburse Barington Capital Group, L.P. for the actual documented expenses
(up
to a maximum of $200,000) incurred by
the
members of the Barington Group in connection with its Schedule 13D filings,
the
contemplated proxy solicitation, efforts to induce the Company to schedule
its
2006 Annual Meeting, the negotiation and execution of this Agreement and all
of
its other activities and matters related to the foregoing.
8. Public
Announcement.
The
Barington Group and the Company shall announce this Agreement and the material
terms hereof within two (2) business days of the date hereof by means of a
joint
press release in the form attached as Exhibit
A
hereto.
9. Specific
Performance.
Each of
the members of the Barington Group, on the one hand, and the Company, on the
other hand, acknowledges and agrees that irreparable injury to the other party
hereto would occur in the event any of the provisions of this Agreement were
not
performed in accordance with their specific terms or were otherwise breached
and
that such injury would not be adequately compensable in damages. It is
accordingly agreed that the members of the Barington Group or any of them,
on
the one hand, and the Company, on the other hand (the “Moving Party”), shall
each be entitled to specific enforcement of, and injunctive relief to prevent
any violation of, the terms hereof, and the other party hereto will not take
action, directly or indirectly, in opposition to the Moving Party seeking such
relief on the grounds that any other remedy or relief is available at law or
in
equity.
10. Jurisdiction;
Applicable Law.
Each of
the parties hereto (a) consents to submit itself to the personal jurisdiction
of
the Court of Chancery or other federal or state courts of the State of Delaware
in the event any dispute arises out of this Agreement or the transactions
contemplated by this Agreement, (b) agrees that it shall not attempt to deny
or
defeat such personal jurisdiction by motion or other request for leave from
any
such court, (c) agrees that it shall not bring any action relating to this
Agreement or the transactions contemplated by this
8
Agreement
in any court other than the Court of Chancery or other federal or state courts
of the State of Delaware, and each of the parties irrevocably waives the right
to trial by jury, (d) agrees to waive any bonding requirement under any
applicable law, in the case any other party seeks to enforce the terms by way
of
equitable relief and (e) irrevocably consents to service of process by first
class certified mail, return receipt requested, postage prepaid, to the address
of such party’s principal place of business or as otherwise provided by
applicable law. THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING
VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF THE STATE OF DELAWARE
APPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE
WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES OF SUCH
STATE.
11. Representative.
Each
member of the Barington Group hereby irrevocably appoints Xxxxx X. Xxxxxxxxxxx,
or Xxxxxxxxx Capital Group, L.P. in the event that Xx. Xxxxxxxxxxx is no longer
serving as the Chairman, President or Chief Executive Officer of Barington
Capital Group, L.P., as such member’s attorney-in-fact and representative (the
“Barington Representative”), in such member’s place and stead, to do any and all
things and to execute any and all documents and give and receive any and all
notices or instructions in connection with this Agreement and the transactions
contemplated hereby. The Company shall be entitled to rely, as being binding
on
each member of the Barington Group, upon any action taken by the Barington
Representative or upon any document, notice, instruction or other writing given
or executed by the Barington Representative.
12. Counterparts.
This
Agreement may be executed in two or more counterparts which together shall
constitute a single agreement.
13. Entire
Agreement; Amendment and Waiver; Successors and Assigns.
This
Agreement contains the entire understanding of the parties hereto with respect
to its subject matter. There are no restrictions, agreements, promises,
representations, warranties, covenants or undertakings between the parties
other
than those expressly set forth herein. This Agreement may be amended only by
a
written instrument duly executed by the parties hereto, or in the case of the
Barington Group, the Barington Representative, or their respective successors
or
assigns. No failure on the part of any party to exercise, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of such right, power or remedy
by such party preclude any other or further exercise thereof or the exercise
of
any other right, power or remedy. All remedies hereunder are cumulative and
are
not exclusive of any other remedies provided by law. The
terms
and conditions of this Agreement shall be binding upon, inure to the benefit
of,
and be enforceable by the parties hereto and their respective successors, heirs,
executors, legal representatives, and assigns.
9
IN
WITNESS WHEREOF, this Agreement has been duly executed and delivered by the
duly
authorized signatories of the parties as of the date hereof.
THE
PEP
BOYS - MANNY, MOE & XXXX
By:
/s/ Xxxxxxx
Xxxxxxx
Name:
Xxxxxxx Xxxxxxx
Title:
Chairman and CEO
BARINGTON
COMPANIES EQUITY PARTNERS, L.P.
By: Barington
Companies Investors, LLC, its general partner
By:
/s/
Xxxxx X.
Xxxxxxxxxxx
Name:
Xxxxx X. Xxxxxxxxxxx
Title:
Managing Member
BARINGTON
INVESTMENTS, L.P.
By:
Barington Companies Advisors, LLC, its general partner
By:
/s/
Xxxxx X.
Xxxxxxxxxxx
Name:
Xxxxx X. Xxxxxxxxxxx
Title:
Managing Member
BARINGTON
COMPANIES ADVISORS, LLC
By:
/s/
Xxxxx X.
Xxxxxxxxxxx
Name:
Xxxxx X. Xxxxxxxxxxx
Title:
Managing Member
BARINGTON
COMPANIES INVESTORS, LLC
By:
/s/
Xxxxx X.
Xxxxxxxxxxx
Name:
Xxxxx X. Xxxxxxxxxxx
Title:
Managing Member
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BARINGTON
COMPANIES OFFSHORE FUND, LTD.
By:
/s/
Xxxxx X.
Xxxxxxxxxxx
Name:
Xxxxx X. Xxxxxxxxxxx
Title:
President
BARINGTON
OFFSHORE ADVISORS, LLC
By:
/s/
Xxxxx X.
Xxxxxxxxxxx
Name:
Xxxxx X. Xxxxxxxxxxx
Title:
Authorized Signatory
BARINGTON
CAPITAL GROUP, L.P.
By:
LNA
Capital Corp., its general
partner
By:
/s/
Xxxxx X.
Xxxxxxxxxxx
Name:
Xxxxx X. Xxxxxxxxxxx
Title:
President and CEO
LNA
CAPITAL CORP.
By:
/s/
Xxxxx X.
Xxxxxxxxxxx
Name:
Xxxxx X. Xxxxxxxxxxx
Title:
President and CEO
/s/
Xxxxx X.
Xxxxxxxxxxx
Xxxxx
X.
Xxxxxxxxxxx
PARCHE,
LLC
By: Admiral
Advisors, LLC, its managing member
By:
/s/
Xxxxxxx X.
Xxxxxxx
Name:
Xxxxxxx X. Xxxxxxx
Title:
Authorized Signatory
11
STARBOARD
VALUE AND OPPORTUNITY MASTER FUND LTD.
By:
/s/
Xxxxxxx X.
Xxxxxxx
Name:
Xxxxxxx X. Xxxxxxx
Title:
Authorized Signatory
RCG
CARPATHIA MASTER FUND, LTD.
By:
/s/
Xxxxxxx X.
Xxxxxxx
Name:
Xxxxxxx X. Xxxxxxx
Title:
Authorized Signatory
RCG
XXXXXXX MASTER FUND, LTD.
By:
Ramius Capital Group, L.L.C.,
its
Investment Manager
By:
C4S
& Co., L.L.C.,
its
Managing Member
By:
/s/
Xxxxxxx X.
Xxxxxxx
Name:
Xxxxxxx X. Xxxxxxx
Title:
Managing Member
RCG
HALIFAX FUND, LTD.
By:
Ramius Capital Group, L.L.C.,
its
Investment Manager
By:
C4S
& Co., L.L.C.,
its
Managing Member
By:
/s/
Xxxxxxx X.
Xxxxxxx
Name:
Xxxxxxx X. Xxxxxxx
Title:
Managing Member
12
RAMIUS
MASTER FUND, LTD
By:
Ramius Advisors, LLC
its
Investment Manager
By:
Ramius Capital Group, L.L.C.
its
sole
member
By:
/s/
Xxxxxxx X.
Xxxxxxx
Name:
Xxxxxxx X. Xxxxxxx
Title:
Managing Member
RAMIUS
FUND III, LTD
By:
Ramius Advisors, LLC
its
Investment Manager
By:
Ramius Capital Group, L.L.C.
its
sole
member
By:
/s/
Xxxxxxx X.
Xxxxxxx
Name:
Xxxxxxx X. Xxxxxxx
Title:
Managing Member
RAMIUS
ADVISORS, LLC
By:
Ramius Capital Group, L.L.C.
its
sole
member
By:
/s/
Xxxxxxx X.
Xxxxxxx
Name:
Xxxxxxx X. Xxxxxxx
Title:
Authorized Signatory
ADMIRAL
ADVISORS, LLC
By:
Ramius Capital Group, L.L.C., its
sole
member
By:
/s/
Xxxxxxx X.
Xxxxxxx
Name:
Xxxxxxx X. Xxxxxxx
Title:
Authorized Signatory
13
RAMIUS
CAPITAL GROUP, L.L.C.
By:
C4S
& Co., L.L.C., its Managing Member
By:
/s/
Xxxxxxx X.
Xxxxxxx
Name:
Xxxxxxx X. Xxxxxxx
Title:
Managing Member
C4S
&
CO., L.L.C.
By:
/s/
Xxxxxxx X.
Xxxxxxx
Name:
Xxxxxxx X. Xxxxxxx
Title:
Managing Member
/s/
Xxxxxxx X.
Xxxxxxx
Xxxxxxx
X. Xxxxxxx
/s/
Xxxxx X.
Xxxxx
Xxxxx
X.
Xxxxx
/s/
Xxxxxx X.
Xxxxx
Xxxxxx
X.
Xxxxx
/s/
Xxxxxx X.
Xxxxxxx
Xxxxxx
X.
Xxxxxxx
RJG
CAPITAL PARTNERS, L.P.
|
By:
|
RJG
Capital Management, LLC, its general
partner
|
By:
/s/
Xxxxxx X.
Xxxxx
Name:
Xxxxxx X. Xxxxx
Title:
Managing Member
RJG
CAPITAL
MANAGEMENT, LLC
By:
/s/
Xxxxxx X.
Xxxxx
Name:
Xxxxxx X. Xxxxx
Title:
Managing Member
/s/
Xxxxxx X. Xxxxx
Xxxxxx
X.
Xxxxx
14
X.X.
XXXXX SPECIAL OPPORTUNITIES FUND, L.P.
By:
X.X.
XXXXX PARTNERS, LLC,
its
general partner
By:
XXXXX
HOLDINGS, LLC,
its
managing member
By:
/s/
Xxxxxx X.
Xxxxx
Name:
Xxxxxx X. Xxxxx
Title:
Managing Member
X.X.
XXXXX SPECIAL OPPORTUNITIES FUND (TE), L.P.
By:
X.X.
XXXXX PARTNERS, LLC,
its
general partner
By:
XXXXX
HOLDINGS, LLC,
its
managing member
By:
/s/
Xxxxxx X. Xxxxx
Name:
Xxxxxx X. Xxxxx
Title:
Managing Member
X.X.
XXXXX SPECIAL OPPORTUNITIES FUND, LTD.
By:
X.X.
Xxxxx & Co., L.P., its manager
By:
DBZ
GP, LLC, its general partner
By:
Xxxxx
Holdings, LLC, its managing member
By:
/s/
Xxxxxx X.
Xxxxx
Name:
Xxxxxx X. Xxxxx
Title:
Managing Member
15
HCM/Z
SPECIAL OPPORTUNITIES LLC
By:
X.X.
Xxxxx & Co., L.P., its manager
By:
DBZ
GP, LLC, its general partner
By:
Xxxxx
Holdings, LLC, its managing member
By:
/s/
Xxxxxx X.
Xxxxx
Name:
Xxxxxx X. Xxxxx
Title:
Managing Member
X.X.
XXXXX & CO., L.P.
By:
DBZ
GP, LLC, its general partner
By:
Xxxxx
Holdings, LLC, its managing member
By:
/s/
Xxxxxx X.
Xxxxx
Name:
Xxxxxx X. Xxxxx
Title:
Managing Member
DBZ
GP,
LLC
By:
Xxxxx
Holdings, LLC, its managing member
By:
/s/
Xxxxxx X.
Xxxxx
Name:
Xxxxxx X. Xxxxx
Title:
Managing Member
XXXXX
HOLDINGS, LLC
By:
/s/
Xxxxxx X.
Xxxxx
Name:
Xxxxxx X. Xxxxx
Title:
Managing Member
/s/
Xxxxxx X.
Xxxxx
Xxxxxx
X.
Xxxxx
16
EXHIBIT
A
[PRESS
RELEASE]
See
Exhibit 99.11
17
