EXHIBIT 1.2
AUTOZONE, INC.
COMMON STOCK
(PAR VALUE $.01 PER SHARE)
UNDERWRITING AGREEMENT
(INTERNATIONAL VERSION)
------------------------
November , 1997
▇▇▇▇▇▇▇ ▇▇▇▇▇ International,
[other underwriters]
As Representative[s] for each of
the several International Underwriters
named in Schedule 1 hereto,
c/o Goldman Sachs International,
Peterborough Court
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Ladies and Gentlemen:
The stockholders of AutoZone, Inc., a Nevada corporation (the
"Company"), named in Schedule 2 hereto (the "Selling Stockholders") propose
to sell to the International Underwriters named in Schedule 1 hereto (the
"International Underwriters") an aggregate of shares (the "Firm Shares")
of the Company's Common Stock, par value $0.01 per share (the "Common
Stock"). In addition, the Selling Stockholders propose to grant to the
International Underwriters an option to purchase up to an additional
shares of Common Stock on the terms and for the purposes set forth in Section
3 hereof (the "Option Shares"). The Firm Shares and the Option Shares, if
purchased, are hereinafter collectively called the "Shares". This is to
confirm the agreement concerning the purchase of the Shares from the Selling
Stockholders by the International Underwriters.
It is understood and agreed to by all parties that the Company and the
Selling Stockholders are concurrently entering into an agreement (the "U.S.
Underwriting Agreement") providing for the sale by the Selling Stockholders
of up to a total of shares of Common Stock (the "U.S. Shares"),
including the overallotment option thereunder, through arrangements with
certain underwriters in the United States (the "U.S. Underwriters"), for whom
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., [other underwriters] are acting as representatives. The
U.S. Underwriters and the International Underwriters are simultaneously
entering into an Agreement between U.S. and International Underwriting
Syndicates (the "Agreement between Syndicates") which provides, among other
things, for the transfer of shares of Common Stock between the two
syndicates. Two forms of prospectus are to be used in connection with the
offering sale of shares of Common Stock contemplated by the foregoing, one
relating to the Shares hereunder and the other relating to the U.S. Shares.
The latter form of prospectus will be identical to the former except for
certain substitute pages as included in the registration statement and
amendments thereto as mentioned below. Except as used in Sections
3, 4, 5, 11 and 13 herein, and except as the context may otherwise require,
references herein to the Shares shall include all the shares of Common Stock
which may be sold pursuant to either this Agreement or the U.S. Underwriting
Agreement, and references herein to any prospectus whether in preliminary or
final form, and whether as amended or supplemented, shall include both the
U.S. and the international versions thereof.
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 each Delivery Date (as defined in Section 5 hereof)) to, and agrees with,
each of the International Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-) in respect
of the Firm Shares and Option Shares has been filed with the Securities
and Exchange Commission (the "Commission"); such registration statement
in the form heretofore delivered to you, as representatives for each of
the several International Underwriters (the "Representatives"), 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; and no
stop order suspending the effectiveness of such registration statement
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
information contained in the form of final prospectus filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with
Section 6(a) hereof and deemed by virtue of Rule 430A under the Act to
be part of the registration statement at the time it was declared
effective (ii) 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
(iii) any post-effective amendment or amendments to the registration
statement filed pursuant to Rule 462 under the Act, being hereinafter
called the "Registration Statement"; such final prospectus, in the form
filed pursuant to Rule 424(b) 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 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; and 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;
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
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
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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 an
International Underwriter through the Representatives or by a 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 statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an International Underwriter
through the Representatives or by a Selling Stockholder expressly for
use therein;
(d) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the 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 the 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 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 such date, there has
not been any change in the capital stock (except for any increase due to
the exercise of stock options which were outstanding since such date
through November , 1997 or as a result of issuances of shares of Common
Stock pursuant to the Company's Stock Purchase Plan) or any increase in
excess of $3 million 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
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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 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;
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 subsidiary that is a limited partnership has been duly
organized and is validly existing as a limited partnership in good
standing under the laws of the State of Delaware with power and
authority (partnership and other) to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as
a foreign limited partnership 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; 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 and are owned by the
Company, directly or indirectly, free and clear of all liens,
encumbrances, equities or claims[, except for 139 shares of the 1,200
outstanding shares of preferred stock 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 International Underwriters hereunder and to the U.S. Underwriters
under the U.S. Underwriting Agreement) 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 U.S. Underwriting Agreement and the consummation of
the transactions herein and therein 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
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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 U.S. Underwriting Agreement and the
consummation of the transactions contemplated hereby and thereby, 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 International
Underwriters and the U.S. Underwriters; and this Agreement and the U.S.
Underwriting Agreement have 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, 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 each Delivery Date) to, and agrees with, each of
the International Underwriters that:
(a) Such Selling Stockholder holds the Shares being sold by such
Selling Stockholder hereunder and under the U.S. Underwriting Agreement,
free and clear of all liens, encumbrances, equities or claims;
immediately prior to each Delivery Date such Selling Stockholder will
hold the Shares being sold by such Selling Stockholder hereunder and
under the U.S. Underwriting Agreement on such date, free and clear of
all liens, encumbrances, equities or claims; and upon delivery of such
Shares and payment therefor pursuant hereto and the U.S. Underwriting
Agreement, the International Underwriters and U.S. Underwriters will
hold such Shares, free and clear of all liens, encumbrances, equities or
claims, assuming that such International Underwriters and U.S.
Underwriters purchase 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;
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(b) Such Selling Stockholder has full right, power and authority to
enter into this Agreement and the U.S. Underwriting Agreement; the
execution, delivery and performance of this Agreement and the U.S.
Underwriting 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 each of this Agreement or the U.S. Underwriting Agreement and the
consummation of the transactions contemplated hereby and thereby,
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 International
Underwriters and the U.S. Underwriters; and this Agreement and the U.S.
Underwriting Agreement have 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 Firm Shares set forth opposite such Selling
Stockholder's name in Schedule 2 hereto to the several International
Underwriters and each of the International Underwriters, severally and not
jointly, agrees to purchase the number of Firm Shares set forth opposite that
International Underwriter's name in Schedule 1 hereto. Each International
Underwriter shall be obligated to purchase from each Selling Stockholder that
number of Firm Shares which represents the same proportion of the number of
Firm Shares to be sold by each Selling Stockholder as the number of Firm
Shares set forth opposite the name of such International Underwriter in
Schedule 1 represents of the total number of Firm Shares to be purchased by
all of the International Underwriters pursuant to this Agreement. The
respective purchase obligations of
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the International Underwriters with respect to the Firm Shares shall be
rounded among the International Underwriters to avoid fractional shares, as
the Representatives may determine.
In addition, the Selling Stockholders grant to the International
Underwriters an option to purchase an aggregate of up to __________ shares of
Option Shares as set forth in Schedule 2 hereto. Such option is granted
solely for the purpose of covering over-allotments in the sale of Firm Shares
and is exercisable as provided in Section 5 hereof. Option Shares shall be
purchased severally for the account of the International Underwriters in
proportion to the number of Firm Shares set forth opposite the name of such
International Underwriters in Schedule 1 hereto. The respective purchase
obligations of each International Underwriter with respect to the Option
Shares shall be adjusted by the Representatives so that no International
Underwriter shall be obligated to purchase Option Shares other than in 100
share amounts.
The price of both the Firm Shares and any Option Shares shall be $
per share.
The Selling Stockholders shall not be obligated to deliver any of
the Shares to be delivered on the First Delivery Date or the Second Delivery
Date (as hereinafter defined), as the case may be, except upon payment for
all the Shares to be purchased on such Delivery Date as hereinafter provided.
4. OFFERING OF SHARES BY THE INTERNATIONAL UNDERWRITERS. Upon the
authorization by the Representatives of the release of the Firm Shares, the
several International Underwriters propose to offer the Firm 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 Firm Shares shall be made in New York, New York, at 10:00 A.M., New
York City time, on the [third] full business day following the date of this
Agreement or at such other date or place as shall be determined by agreement
between the Representatives and the Selling Stockholders. This date and time
are sometimes referred to as the "First Delivery Date". On the First Delivery
Date, each Selling Stockholder shall deliver or cause to be delivered
certificates representing the Firm Shares to the Representatives for the
account of each International Underwriter against payment to or upon the
order of such Selling Stockholder of the purchase price for the Firm 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 each International Underwriter
hereunder. Upon delivery, the Firm Shares shall be registered in such names
and in such denominations as the Representatives shall request in writing not
less than two full business days prior to the First Delivery Date. For the
purpose of expediting the checking and packaging of the certificates for the
Firm Shares, the Selling Stockholders shall make the certificates
representing the Firm Shares available for inspection by the Representatives
in New York, New York, not later than 2:00 P.M., New York City time, on the
business day prior to the First Delivery Date.
At any time on or before the thirtieth day after the date of this
Agreement, the option granted in Section 3 hereof may be exercised by written
notice being given to the Selling Stockholders by the Representatives. Such
notice shall set forth the aggregate number of Option Shares as to which the
option is being exercised, the names in which the Option Shares are to be
registered, the denominations in which the Option Shares are to be issued and
the date and time, as determined by the Representatives, when the Option
Shares are to be delivered; PROVIDED, HOWEVER, that this date and time shall
not be earlier than the First Delivery Date nor earlier than the
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second business day after the date on which the option shall have been
exercised nor later than the third business day after the date on which the
option shall have been exercised. The date and time the Option Shares are
delivered are sometimes referred to as the "Second Delivery Date", and the
First Delivery Date and the Second Delivery Date are sometimes each referred
to as a "Delivery Date".
Delivery of and payment for the Option Shares shall be made in New
York, New York (or at such other place as shall be determined by agreement
between the Representatives and the Selling Stockholders) at 10:00 A.M., New
York City time, on the Second Delivery Date. On the Second Delivery Date,
each Selling Stockholder shall deliver or cause to be delivered the
certificates representing the Option Shares to the Representatives for the
account of each International Underwriter against payment to or upon the
order of such Selling Stockholder of the purchase price for the Option 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 each International Underwriter
hereunder. Upon delivery, the Option Shares shall be registered in such names
and in such denominations as the Representatives shall request in the
aforesaid written notice. For the purpose of expediting the checking and
packaging of the certificates for the Option Shares, the Selling Stockholders
shall make the certificates representing the Option Shares available for
inspection by the Representatives in New York, New York, not later than 2:00
P.M., New York City time, on the business day prior to the Second Delivery
Date.
6. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees:
(a) To prepare the Prospectus in a form approved by the
Representatives 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
Rule 430A(a)(3) 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 Representatives, 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 last Delivery Date
which shall be disapproved by the Representatives promptly after
reasonable notice thereof; to advise the Representatives 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 Representatives 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 Representatives 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
Representatives may reasonably request to qualify the Shares for
offering and sale under the securities laws of such jurisdictions as
the Representatives 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 each of the Representatives and to counsel for the
International Underwriters 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 Representatives in New York City such number of
the following documents as the Representatives 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 Representatives and upon the Representatives' request to
file such document and to prepare and furnish without charge to each
International Underwriter and to any dealer in securities as many
copies as the Representatives 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 International 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
Representatives' request but at the expense of such International
Underwriter, to prepare and deliver to such International Underwriter
as many copies as the Representatives 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) During the period beginning from the date hereof and
continuing to and including the date 60 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 (other
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than (A) Shares to be sold to the International Underwriters and the U.S.
Underwriters and (B) Common Stock issuable pursuant to employee stock
option plans or the employee stock purchase plan, in each case as in
effect on the date hereof);
(f) 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);
(g) During a period of three years from the effective date of the
Registration Statement, to furnish to the Representatives copies of all
reports or other communications (financial or other) furnished to
stockholders, and deliver to the Representatives 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
(h) 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 60 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 (other than Shares to be sold to the
International Underwriters and the U.S. Underwriters), without the
prior written consent of the Representatives;
(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 an individual, by the death or
incapacity of such individual Selling Stockholder 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, or,
in the case of a trust, by the death or incapacity of any executor or
trustee or the termination of such trust or the occurrence of any other
event;
(c) To deliver to the Representatives prior to the First Delivery
Date a properly completed and executed United States Treasury
Department Form W-9 (or other applicable form or statement specified by
Treasury Department regulations in lieu thereof); and
(d) To advise the Representatives 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 either Delivery Date and take such
steps as may be reasonably requested by the Representatives to remedy
any such material adverse change or inability.
-10-
8. EXPENSES. The Selling Stockholders, jointly and severally,
covenant and agree with the several International Underwriters and the U.S.
Underwriters 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 International Underwriters and any
dealers; (ii) the cost of delivering, printing or producing any Agreement
among Underwriters (U.S. Version), Agreement among Underwriters
(International Version), this Agreement, the U.S. Underwriting Agreement, the
Agreement between U.S. and International Underwriting Syndicates, any Selling
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 International Underwriters 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 International
Underwriters and the U.S. Underwriters; 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, Section 10 and Section 13 hereof, the
International Underwriters will pay all of their own costs and expenses,
including the fees of their 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 INTERNATIONAL UNDERWRITERS OBLIGATIONS. The
respective obligations of the International Underwriters hereunder, as to the
Shares to be delivered on each Delivery Date, shall be subject, in their
discretion, to the accuracy, when made and on and as of such Delivery 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 Representatives' reasonable satisfaction;
(b) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the
International Underwriting Agreement, the Registration Statement and the
Prospectus, and all other legal matters relating to this Agreement and
the U.S. Underwriting Agreement and the transactions contemplated hereby
and thereby, shall be reasonably satisfactory in all material respects
to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the International
Underwriters and the U.S. Underwriters, and the Company and the Selling
Stockholders shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass upon
such matters;
-11-
(c) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Nevada counsel for the Company, shall have
furnished to the Representatives their written opinion, addressed to the
International Underwriters and the U.S. Underwriters dated such Delivery
Date, in form and substance satisfactory to the Representatives, 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 shares of capital stock of
the Company (including the Shares being delivered on such Delivery
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 and the U.S. Underwriting Agreement have
been duly authorized, executed and delivered by the Company;
(iv) The execution, delivery and performance by the Company of
this Agreement and the U.S. Underwriting Agreement and the
consummation of the transactions herein and therein contemplated
will not result in any violation of the provisions of the Articles
of Incorporation or By-laws of the Company or 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 and the U.S. Underwriting Agreement,
of any court or governmental agency or body having jurisdiction
over the Company, any of its subsidiaries or any of their
respective properties; and
(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 and the U.S.
Underwriting Agreement, except for 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 International
Underwriters.
In rendering such opinion, such counsel may state that such opinion
is limited to matters governed by Nevada law.
(d) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Company, shall have furnished
to the Representatives their written opinion, addressed to the
International Underwriters and the U.S. Underwriters dated such Delivery
Date, in form and substance satisfactory to the Representatives, 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) All of the issued shares of capital stock of the Company
(including the Shares being delivered on such Delivery Date) have
been duly and validly authorized and issued and are fully paid and
non-assessable;
-12-
(iii) This Agreement and the U.S. Underwriting Agreement have
been duly authorized, executed and delivered by the Company;
(iv) The execution, delivery and performance by the Company of
this Agreement and the U.S. Underwriting Agreement and the
consummation of the transactions herein and therein 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 agreement or instrument, or stock option or other
employee benefit plan listed or referred to in Items 4 or 10 of the
exhibits to the Company's Annual Report on Form 10-K for the fiscal
year ended August 30, 1997, 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 and the
U.S. Underwriting Agreement, of any United States federal or state
court or governmental agency or body having jurisdiction over the
Company, any of its subsidiaries or any of their respective
properties;
(v) No consent, approval, authorization, order, registration
or qualification of or with any United States federal or state
court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated by
this Agreement and the U.S. Underwriting 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
International Underwriters;
(vi) The documents incorporated by reference in the Prospectus
or any further amendment or supplement thereto made by the Company
prior to such Delivery 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 respect with the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder; and they have no reason to believe that any of such
documents, when such documents became effective or were so filed,
as the case may be, contained, in the case of a registration
statement which became effective under the Act, an untrue statement
of a material fact, or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, or, in the case of other documents which were filed
under the Exchange Act with the Commission, 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 when such documents were
so filed, not misleading; and
(vii) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the Company
prior to such Delivery 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
-13-
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
(except for the information, to the extent it comprises matters of law
or legal conclusions, contained under the caption "Description of Capital
Stock" and except that such counsel shall confirm that the information
contained in the Prospectus under the caption "Certain United States Tax
Consequences to Non-United States Holders" is accurate), and such counsel
has not made any independent check or verification thereof, on the basis
of the foregoing, no facts have come to such counsel's attention that
have led 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 such Delivery Date (other than the financial statements
and related schedules and other financial data in the Registration
Statement, as to which such counsel need express no opinion) 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
such Delivery Date (other than the financial statements and other
financial data in the Prospectus, as to which such counsel need express
no opinion) 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, (III) any document incorporated by reference in the
Prospectus or any further amendment or supplement thereto made by the
Company prior to such Delivery Date (other than the financial statements
and related schedules therein, as to which such counsel need express no
opinion), when such document became effective or was filed with the
Commission, as the case may be, 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 (IV) as of such Delivery 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
such Delivery 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 amendment to the Registration Statement required to be
filed or 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.
In rendering such opinion, such counsel may state that such opinion
is limited to matters governed by U.S. federal law, New York law, and
Nevada law (with respect to the opinions to be rendered pursuant to
Section 9(d)(i), (ii) and (iii) hereof as to which such counsel may
state that they have relied exclusively upon the opinion of ▇▇▇▇▇▇▇
▇▇▇▇▇▇ referred to in Section 9(c) hereof to the extent such matters are
governed by Nevada law).
(e) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq., Vice President of the Company and
counsel for the Company, shall have furnished to the Representatives his
written opinion, addressed to the
-14-
International Underwriters and the U.S. Underwriters dated such Delivery
Date, in form and substance satisfactory to the Representatives, to the
effect that:
(i) Each of the Company and its subsidiaries has been duly
organized and is validly existing as a corporation or limited
partnership under the laws of the jurisdiction of its organization,
with corporate or partnership, as the case may be, power and
authority to own its properties and conduct its business as
described in the Prospectus;
(ii) Each of the Company and its subsidiaries has been duly
qualified as a foreign corporation or limited partnership, as the
case may be, 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 failure to be so qualified in any such
jurisdiction (such counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel and corporate
service agents and in respect of matters of fact upon certificates
of officers of the Company, provided that such counsel shall state
that he believes that the International Underwriters and the U.S.
Underwriters and he are justified in relying upon such opinions and
certificates);
(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, [except
for 139 shares of the 1,200 outstanding shares of preferred stock
of AutoZone Development Corporation;]
(iv) To the best of such counsel's knowledge (after
reasonable investigation) and 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 the
subject which, either individually or in the aggregate, are
reasonably likely to 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; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others; and
(v) The execution, delivery and performance by the Company of
this Agreement and the U.S. Underwriting Agreement and the
consummation of the transactions herein and therein 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 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 United States federal or state court
or governmental agency or body having jurisdiction over the
Company, any of its subsidiaries or any of their respective
properties.
-15-
(f) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Nevada counsel to the Selling Stockholders,
shall have furnished to the Representatives their written opinion,
addressed to the International Underwriters and the U.S. Underwriters
dated such Delivery Date, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The execution, delivery and performance of this Agreement
and the U.S. Underwriting Agreement and the consummation by each
Selling Stockholder of the transactions contemplated hereby and
thereby will not result in any violation of any statute or any
order, rule or regulation known to such counsel, that in their
experience is normally applicable to transactions of the type
contemplated by this Agreement and the U.S. Underwriting Agreement
of any state court or governmental agency or body having
jurisdiction over such Selling Stockholder or the property of such
Selling Stockholder; and
(ii) No consent, approval, authorization, order, registration
or qualification of or with any state court or governmental agency
or body is required for the execution, delivery and performance by
each Selling Stockholder of this Agreement or the U.S. Underwriting
Agreement and the consummation by such Selling Stockholder of the
transactions contemplated hereby and thereby, except for 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 International Underwriters.
In rendering such opinion, such counsel may state that such opinion
is limited to matters governed by Nevada law.
(g) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Selling Stockholders, shall
have furnished to the Representatives their written opinion, addressed
to the International Underwriters and the U.S. Underwriters dated such
Delivery Date, in form and substance satisfactory to the
Representatives, to the effect that:
(i) This Agreement and the U.S. Underwriting Agreement have
been duly authorized, executed and delivered by or on behalf of
each Selling Stockholder;
(ii) Each of Pittco Associates, L.P., a Delaware limited
partnership, Pittco Associates II, L.P., a Delaware limited
partnership, and KKR Partners II, L.P., a Delaware limited
partnership (together, the "Common Stock Partnerships") has full
right, power and authority to enter into this Agreement and the
U.S. Underwriting Agreement; the execution, delivery and
performance of this Agreement and the U.S. Underwriting Agreement
and the consummation by such Common Stock Partnership of the
transactions contemplated hereby and thereby will not result in any
violation of the partnership agreement relating to such Common
Stock Partnership or any statute or any order, rule or regulation
known to such counsel, that in their experience is normally
applicable to transactions of the type contemplated by this
Agreement and the U.S. Underwriting Agreement of any United States
federal or state court or governmental agency or body having
jurisdiction over such Common Stock Partnership or the property of
such Common Stock Partnership;
-16-
(iii) No consent, approval, authorization, order, registration
or qualification of or with any such United States federal or state
court or governmental agency or body is required for the execution,
delivery and performance by each Selling Stockholder of this
Agreement or the U.S. Underwriting Agreement and the consummation
by such Selling Stockholder of the transactions contemplated hereby
and thereby, 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 International Underwriters; and
(iv) Upon delivery of the Shares and payment therefor pursuant
hereto, the International Underwriters will hold such Shares, free
and clear of all liens, encumbrances, equities or claims, assuming
that such International Underwriters have purchased such Shares in
good faith and without notice of any such lien, encumbrance, equity
or claim or any other adverse claim within the meaning of the
Uniform Commercial Code as in effect in the State of New York.
In rendering such opinion, such counsel may (i) state that such
opinion is limited to matters governed by U.S. federal law, New York law
and the Delaware Revised Uniform Limited Partnership Act 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.
(h) At 10:00 A.M., New York City time, on the effective date of the
Registration Statement and of the most recently filed post-effective
amendment to the Registration Statement, if any, and also on each
Delivery Date, Ernst & Young shall have furnished to the Representatives
a "comfort" letter or letters, addressed to the International Underwriters
and the U.S. Underwriters and dated the respective date of delivery
thereof, as to such matters as the Representatives may reasonably
request and in form and substance satisfactory to the Representatives;
(i) (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 (except for any increase due to the
exercise of stock options which were outstanding as of November __, 1997
or as a result of issuances of shares of Common Stock pursuant to the
Company's Stock Purchase Plan) or any increase in excess of $3 million
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 Representatives' 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 such Delivery Date on the terms and in the manner
contemplated in the Prospectus;
-17-
(j) 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;
(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; (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 Representatives makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Shares being delivered
on such Delivery Date on the terms and in the manner contemplated in the
Prospectus; or (v) there shall have occurred such a material adverse
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
Representatives, would materially and adversely affect the financial
markets or the market for the Shares;
(k) The Company shall have furnished or caused to be furnished to
the Representatives on such Delivery Date certificates of officers of
the Company satisfactory to the Representatives as to the accuracy of
the representations and warranties of the Company herein at and as of
such Delivery Date, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Delivery Date,
as to the matters set forth in Sections 9(a) and 9(i) hereof and as to
such other matters as the Representatives may reasonably request;
(l) Each Selling Stockholder shall have furnished to the
Representatives on such Delivery Date a certificate as to the accuracy
of the representations and warranties of such Selling Stockholder
contained herein at and as of such Delivery 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 such Delivery
Date and as to such other matters as the Representatives may reasonably
request;
(m) 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;
(n) Each of
shall have executed and delivered to the U.S. Underwriters
and the International Underwriters a letter to the effect that during a
period of 60 days from the date hereof, without the prior written consent
of the U.S. Underwriters and the International Underwriters, such person
will not, directly or indirectly, offer, sell, contract to sell or
otherwise transfer or dispose of any shares of Common Stock or any
securities convertible or exchangeable or exercisable for Common Stock
beneficially owned as of the date hereof or acquired hereafter or any
interest therein, other than any pledge of such shares in connection with
a bona fide loan transaction which does not permit the pledgee, directly
or indirectly, to offer, sell, contract to sell or otherwise transfer or
dispose of any interest in such shares during such 60-day period; and
-18-
(o) The closing under the U.S. Underwriting Agreement shall have
occurred concurrently with the closing hereunder on the First Delivery
Date.
10. INDEMNIFICATION AND CONTRIBUTION. (a) The Company shall indemnify
and hold harmless each International Underwriter and each person, if any, who
controls any International 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 International 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
each International Underwriter and each such controlling person for any legal
or other expenses reasonably incurred by that International 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 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 any
International Underwriter through the Representatives expressly for use
therein; and PROVIDED, FURTHER, that as to any Preliminary Prospectus this
indemnity agreement shall not inure to the benefit of any International
Underwriter or any person controlling that International Underwriter on
account of any loss, claim, damage, liability or action arising from the sale
of Shares to any person by that International Underwriter if that
International 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 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 International Underwriter or to any controlling person
of that International Underwriter. The Company reaffirms its indemnification
of the Selling Stockholders pursuant to that certain Registration Rights
Agreement entered into by the Company, the Selling Stockholders and certain
other holders of Common Stock, dated as of February 18, 1987, and as amended
to date.
(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 each
International Underwriter and each person, if any, who controls any
International 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 International 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
-19-
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 each
International Underwriter and each such controlling person for any legal
or other expenses reasonably incurred by that International 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 International Underwriter or any person controlling that
International Underwriter on account of any loss, claim, damage,
liability or action arising from the sale of Shares to any person by
that International Underwriter if that International 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 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 any
International Underwriter or any controlling person of that
International Underwriter. The aggregate liability of any Selling
Stockholder to indemnify the International Underwriters and any
controlling persons of the International Underwriters 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) Each International Underwriter, severally and not jointly,
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 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 and in conformity with written
information furnished to the Company by or on behalf of that
International Underwriter through the Representatives 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
claim, damage, liability or action as such expenses are incurred. The
foregoing
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indemnity agreement is in addition to any liability which any
International Underwriter may otherwise have to 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 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 Representatives shall have the right to employ counsel to represent
jointly the International Underwriters and their respective controlling
persons who may be subject to liability arising out of any claim in
respect of which indemnity may be sought by the International
Underwriters against the Company or any Selling Stockholder under this
Section 10 if, in the reasonable judgment of the Representatives, it is
advisable for the International Underwriters 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 Section 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 International Underwriters 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 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 International Underwriters 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 International
Underwriters 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 International
Underwriters 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
-21-
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 International Underwriters, 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 International Underwriters 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 (even if the International
Underwriters were treated as one entity for such purpose) 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),
no International Underwriter shall 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 such International
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. The International
Underwriters' obligations to contribute as provided in this Section
10(e) are several in proportion to their respective underwriting
obligations and not joint.
(f) Each Selling Stockholder severally confirms, and each of the
International Underwriters agrees that the information (other than the
percentage of shares owned) pertaining to each Selling Stockholder under
the caption Principal and 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
13 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. DEFAULTING INTERNATIONAL UNDERWRITERS. If, on the First Delivery
Date or the Second Delivery Date, as the case may be, any International
Underwriter defaults in the performance of its obligations under this
Agreement, the remaining non-defaulting International Underwriters shall be
obligated to purchase the Shares which the defaulting International
Underwriter agreed but failed to purchase on such date in the respective
proportions which the number of Firm Shares set forth opposite the name of
each remaining non-defaulting International Underwriter in Schedule 1 hereto
bears to the total number of Firm Shares set forth opposite the names of all
the remaining non-defaulting International Underwriters in Schedule 1 hereto;
PROVIDED, HOWEVER, that the remaining non-defaulting International
Underwriters shall not be obligated to purchase any of the Shares on such
date if the total number of Shares which the defaulting International
Underwriter or International Underwriters agreed but failed to purchase on
such date exceeds 9.09% of the total number of
-22-
Shares to be purchased on such date, and any remaining non-defaulting
International Underwriter shall not be obligated to purchase more than 110%
of the number of Shares which it agreed to purchase on such date pursuant to
the terms of Section 3 hereof. If the foregoing maximums are exceeded, the
remaining non-defaulting International Underwriters, or those other
underwriters satisfactory to the Representatives, shall have the right, but
shall not be obligated, to purchase (in such proportions as may be agreed
upon among them) all the Shares to be purchased by the International
Underwriters on such date. If the foregoing maximums are exceeded and the
remaining International Underwriters or other underwriters satisfactory to
the Representatives do not elect to purchase the shares which the defaulting
International Underwriters agreed but failed to purchase, this Agreement
shall terminate without liability on the part of any non-defaulting
International Underwriter, the Company or any Selling Stockholder, except
that the Company and the Selling Stockholders will continue to be jointly and
severally liable for the payment of expenses to any non-defaulting
International Underwriters as set forth in Section 8 hereof.
Nothing contained herein shall relieve a defaulting International
Underwriter of any liability it may have to the Company or any Selling
Stockholder for damages caused by such International Underwriter's default.
If other underwriters are obligated or agree to purchase the Shares of a
defaulting International Underwriter, either the Representatives or the
Selling Stockholders may postpone the related delivery date for up to seven
full business days in order to effect any changes that, in the opinion of
counsel for the Company or counsel for the International Underwriters, may be
necessary in the Registration Statement, the U.S. Prospectus or in any other
document or arrangement.
12. TERMINATION. The obligations of the International Underwriters
hereunder may be terminated by the Representatives, in their absolute
discretion, by notice given to and received by the Company and the Selling
Stockholders prior to delivery of any payment for the Firm Shares if, prior
to that time, any of the events described in Section 9(i) or 9(j) hereof
shall have occurred.
13. REIMBURSEMENT OF EXPENSES. If (a) any Selling Stockholder shall fail
to tender the Shares for delivery to the International Underwriters for any
reason permitted under this Agreement or (b) the International Underwriters
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 13, reimburse the International
Underwriters for the reasonable fees and expenses of their counsel and for
such other out-of-pocket expenses as shall have been incurred by them 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
Representatives. If this Agreement is terminated pursuant to Section 11
hereof by reason of the default of one or more International Underwriters or
if this Agreement is terminated pursuant to Section 12 hereof because of the
occurrence of any of the events described in Section 9(i) hereof or as a
result of the failure of any condition set forth in Section 9(j) hereof, the
Selling Stockholders shall not be obligated to reimburse any International
Underwriter on account of those expenses and shall not have any other
liability to any International Underwriter except as provided in Section 8 or
10 hereof.
14. NOTICES. All statements, requests, notices and agreements hereunder
shall be in writing, and:
(a) if to the International Underwriters, shall be delivered or
sent by mail, telex or facsimile transmission c/o Goldman ▇▇▇▇▇
International, Peterborough Court, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, Attention: Registration Department;
-23-
(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;
(c) if to any of the Common Stock Partnerships, shall be delivered
or sent by mail, telex or facsimile transmission to such Common Stock
Partnership, care of KKR Associates, at ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇; and
(d) if to J.R. Hyde, III, shall be delivered or sent by mail,
telex, or facsimile transmission to him, care of the Company, at the
address of the Company set forth in the Registration Statement;
PROVIDED, HOWEVER, that any notice to an International Underwriter pursuant
to Section 10(d) hereof shall be delivered or sent by mail, telex or
facsimile transmission to such International Underwriter at its address set
forth in its acceptance telex to the Representatives, which address will be
supplied to any other party hereto by the Representatives upon request. Any
such statements, requests, notices or agreements shall take effect at the
time of receipt thereof. The Company and the Selling Stockholders shall be
entitled to act and rely upon any request, consent, notice or agreement given
or made by ▇▇▇▇▇▇▇ ▇▇▇▇▇ International on behalf of the Representatives, and
the Company and the International Underwriters shall be entitled to act and
rely upon any request, consent, notice or agreement given or made by the
Selling Stockholders.
15. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall inure
to the benefit of and be binding upon the International Underwriters, 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, indemnities and agreements of the Company and
the Selling Stockholders contained in this Agreement shall also be deemed to
be for the benefit of the person or persons, if any, who control any
International Underwriter within the meaning of Section 15 of the Act and for
the benefit of each U.S. Underwriter (and controlling persons thereof) and
(B) the indemnity agreement of the International Underwriters 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. No partner of any Common Stock Partnership or any successor
general partner of any Common Stock Partnership shall have any personal
liability for the performance of any Common Stock Partnership's obligations
hereunder, and any liability or obligation of any Common Stock Partnership
arising hereunder shall be limited to and satisfied only out of the property
of such Common Stock Partnership.
16. CERTAIN DEFINITION. For purposes of this Agreement, a business day
means any day on which the New York Stock Exchange is open for trading.
17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
-24-
18. COUNTERPARTS. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
-25-
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, on behalf of each of the International Underwriters, this letter and
such acceptance hereof shall constitute a binding agreement among each of the
International Underwriters, each of the Selling Stockholders and the Company.
Very truly yours,
AutoZone, Inc.
By:
------------------------
Title:
THE SELLING STOCKHOLDERS:
Pittco Associates, L.P.
By: KKR Associates,
General Partner
By:
-----------------------
Title:
Pittco Associates II, L.P.
By: KKR Associates,
General Partner
By:
-----------------------
Title:
KKR Partners II, L.P.
By: KKR Associates,
General Partner
By:
-----------------------
Title:
J.R. Hyde, III
-----------------------
J.R. Hyde, III
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Accepted as of the date hereof:
▇▇▇▇▇▇▇ ▇▇▇▇▇ International,
[underwriters]
By:
-------------------------------------
(Attorney-in-fact)
On behalf of each of the Underwriters
-27-
SCHEDULE 1
Number of
Underwriter Firm Shares
----------- -----------
▇▇▇▇▇▇▇ Sachs International . . . . . . . . . . . . . . . .
[underwriter] . . . . . . . . . . . . . . . . . . . . . . . .
[underwriter] . . . . . . . . . . . . . . . . . . . . . . . .
-----------
Total. . . . . . . . . . . . . . . . . . . . . . . . . .
-----------
-----------
SCHEDULE 2
Number of Number of
Name of Selling Stockholder Firm Shares Option Shares
--------------------------- ----------- -------------
Pittco Associates, L.P.
Pittco Associates II, L.P.
KKR Partners II, L.P.
J.R. Hyde, III
----------- -------------
Total
----------- -------------
----------- -------------