$100,000,000
THE PEP BOYS -- XXXXX, MOE & XXXX
___% Notes Due 2006
UNDERWRITING AGREEMENT
________ __, 1996
CS FIRST BOSTON CORPORATION,
As Representative of the Several Underwriters,
Park Avenue Plaza
New York, NY 10055
Dear Sirs:
1. Introductory. The Pep Boys -- Manny, Moe & Jack, a
Pennsylvania corporation (the "Company"), proposes to issue and sell
$100,000,000 principal amount of its ___% Notes Due 2006 (the "Securities") to
be issued under an indenture, dated as of ________ __, 1996 ("Indenture"),
between the Company and First Union National Bank, as Trustee. The Company
hereby agrees with the several Underwriters named in Schedule A hereto
("Underwriters") as follows:
2. Representations and Warranties of the Company. (a) The
Company represents and warrants to, and agrees with, the several Underwriters
that:
(i) A registration statement on Form S-3 (No. 333-_____)
relating to the Securities, including a form of prospectus, has been
filed with the Securities and Exchange Commission ("Commission") and
either (i) has been declared effective under the Securities Act of
1933, as amended ("Act"), and is not proposed to be amended or (ii) is
proposed to be amended by amendment or post-effective amendment. If
such registration statement ("initial registration statement") has been
declared effective, either (i) an additional registration statement
("additional registration statement") relating to the Securities may
have been filed with the Commission pursuant to Rule 462(b) ("Rule
462(b)") under the Act and, if so filed, has become effective upon
filing pursuant to such Rule and the Securities all have been duly
registered under the Act pursuant to the initial registration statement
and, if applicable, the additional registration statement or (ii) such
an additional registration statement is proposed to be filed with the
Commission pursuant to Rule 462(b) and will become effective upon
filing pursuant to such Rule and upon such filing the Securities will
all have been duly registered under the Act pursuant to the initial
registration statement and such additional registration statement. If
the Company does not propose to amend the initial registration
statement or, if an additional registration statement has been filed
and the Company does not propose to amend it, and if any post-effective
amendment to such registration statement has been filed with the
Commission prior to the execution and delivery of this Agreement, the
most recent amendment (if any) to each such registration statement has
been declared effective by the Commission or has become effective upon
filing pursuant to Rule 462(c) ("Rule 462(c)") under the Act or, in the
case of the additional registration statement, Rule 462(b). For
purposes of this Agreement, "Effective Time" with respect to the
initial registration statement or, if filed prior to the execution and
delivery of this Agreement, the additional registration statement means
(i) if the Company has advised CS First Boston Corporation ("CS First
Boston") that it does not propose to amend such registration statement,
the date and time as of which such registration statement, or the most
recent post-effective amendment thereto (if any) filed prior to the
execution and delivery of this Agreement, was declared effective by the
Commission or has become effective upon filing pursuant to Rule 462(c),
or (ii) if the Company has advised CS First Boston that it proposes to
file an amendment or post-effective amendment to such registration
statement, the date and time as of which such registration statement,
as amended by such amendment or post-effective amendment, as the case
may be, is declared effective by the Commission. If an additional
registration statement has not been filed prior to the execution and
delivery of this Agreement but the Company has advised CS First Boston
that it proposes to file one, "Effective Time" with respect to such
additional registration statement means the date and time as of which
such registration statement is filed and becomes effective pursuant to
Rule 462(b). "Effective Date" with respect to the initial registration
statement or the additional registration statement (if any) means the
date of the Effective Time thereof. The initial registration statement,
as amended at its Effective Time, including all material incorporated
by reference therein and including all information contained in the
additional registration statement (if any) and deemed to be a part of
the initial registration statement as of the Effective Time of the
additional registration statement pursuant to the General Instructions
of the Form on which it is filed and including all information (if any)
deemed to be a part of the initial registration statement as of its
Effective Time pursuant to Rule 430A(b) ("Rule 430A(b)") under the Act,
is hereinafter referred to as the "Initial Registration Statement." The
additional registration statement, as amended at its Effective Time,
including the contents of the initial registration statement
incorporated by reference therein and including all information (if
any) deemed to be a part of the additional registration statement as of
its Effective Time pursuant to Rule 430A(b), is hereinafter referred to
as the "Additional Registration Statement." The Initial Registration
Statement and the Additional Registration Statement are herein referred
to collectively as the "Registration Statements" and individually as a
"Registration Statement." The form of prospectus relating to the
Securities, as first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("Rule 424(b)") under the Act or (if no
such filing is required) as included in a Registration Statement,
including all material incorporated by reference in such prospectus, is
hereinafter referred to as the "Prospectus." No document has been or
will be prepared or distributed in reliance on Rule 434 under the Act.
No stop order suspending the effectiveness of such Registration
Statement or any part thereof has been issued and no proceeding for
that purpose has been instituted or, to the Company's knowledge,
threatened by the Commission.
(ii) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement: (i)
on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement conformed in all material respects to
the requirements of the Act, the Trust Indenture Act of 1939 ("Trust
Indenture Act") and the rules and regulations of the Commission ("Rules
and Regulations") and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading,
(ii) on the Effective Date of the Additional Registration Statement (if
any), each Registration Statement conformed, or will conform, in all
material respects to the requirements of the Act, the Trust Indenture
Act and the Rules and Regulations and did not include, or will not
include, any untrue statement of a material fact and did not omit, or
will not omit, to state any material fact required to be stated therein
or necessary to make the statements therein not misleading and (iii) on
the date of this Agreement, the Initial Registration Statement and, if
the Effective Time of the Additional Registration Statement is prior to
the execution and delivery of this Agreement, the Additional
Registration Statement each conforms, and at the time of filing of the
Prospectus pursuant to Rule 424(b) or (if no such filing is required)
at the Effective Date of the Additional Registration Statement in which
the Prospectus is included, and on the Closing Date (as hereinafter
defined), each Registration Statement and the Prospectus, each as
amended or supplemented, will conform, in all material respects to the
requirements of the Act, the Trust Indenture Act and the Rules and
Regulations, and neither of such documents includes, or will include,
any untrue statement of a material fact or omits, or will omit, to
state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading. If the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of
this Agreement: (A) on the Effective Date of the Initial Registration
Statement, the Initial Registration Statement and the Prospectus, each
as amended or supplemented, will conform in all material respects to
the requirements of the Act, the Trust Indenture Act and the Rules and
Regulations, and neither of such documents includes, or will include,
any untrue statement of a material fact or omits, or will omit, to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and no Additional
Registration Statement has been or will be filed and (B) on the Closing
Date, the Initial Registration Statement and the Prospectus will
conform in all material respects to the requirements of the Act, the
Trust Indenture Act and the Rules and Regulations, and neither of such
documents will include any untrue statement of a material fact or will
omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, and no Additional
Registration Statement has been or will be filed. The two preceding
sentences do not apply to statements in or omissions from a
Registration Statement or Prospectus based upon written information
furnished to the Company by any Underwriter through CS First Boston
specifically for use therein, it being understood and agreed that the
only such information is that described as such in Section 2(b).
(iii) Each preliminary prospectus filed as part of a
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Act, conformed when so
filed in all material respects to the requirements of the Act and the
Rules and Regulations.
(iv) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
Commonwealth of Pennsylvania, and has the corporate power and authority
to own, lease and operate its properties and to conduct its business as
described in the Prospectus; and the Company is duly qualified to
transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership, leasing or operation of
property requires such qualification, except to the extent that the
failure to be so qualified or in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(v) Each "Significant Subsidiary" (as such term is
defined in Rule 405 of the Act, except that for purposes of this
Agreement, each reference in such Rule 405 definition to "10 percent"
shall be replaced with "5 percent") is listed on Schedule B hereto.
Each Significant Subsidiary of the Company has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the corporate power
and authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership, leasing or operation of
property requires such qualification, except to the extent that the
failure to be so qualified or in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole. All of the outstanding capital stock of each Significant
Subsidiary has been duly authorized and validly issued and is fully
paid and non-assessable and is owned by the Company, directly or
through subsidiaries, free and clear of any mortgage, pledge, lien,
perfected security interest, claim or encumbrance of any kind or, to
the knowledge of the Company, any unperfected security interest.
(vi) All outstanding shares of capital stock of the
Company have been duly authorized, are validly issued, fully paid and
non-assessable and have been issued in compliance with applicable
federal and state securities laws; the Company has an authorized and
outstanding capital stock as set forth in the Prospectus under the
caption "Capitalization"; and the stockholders of the Company have no
preemptive or similar rights with respect to the capital stock or any
other securities of the Company.
(vii) There are no contracts, agreements or understandings
between the Company and any third party granting such third party the
right to require the Company to file a registration statement under the
Act with respect to any securities of the Company owned or to be owned
by such third party or to require the Company to include such
securities in the securities registered pursuant to the Registration
Statements or in any other securities being registered pursuant to any
other registration statement filed by the Company under the Act.
(viii) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes the legal, valid and binding
obligation of the Company enforceable against the Company in accordance
with its terms, except to the extent that (A) enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to creditors' rights generally and by general
principles of equity and (B) rights to indemnity and contribution may
be limited by federal or state securities laws or policies underlying
such laws.
(ix) The Indenture has been duly authorized by the
Company, will be substantially in the form heretofore delivered to CS
First Boston and, when duly executed and delivered by the Company and
the Trustee, will constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms,
except to the extent that enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to creditors' rights generally and by general principles of equity; the
Indenture is (or, if the Effective Time is subsequent to the execution
and delivery of this Agreement, at the Effective Time the Indenture
will be) duly qualified under the Trust Indenture Act; and the
Indenture conforms in all material respects to the description thereof
contained in the Prospectus.
(x) The Securities have been duly authorized by the
Company, and when executed, authenticated, issued and delivered in the
manner provided for in the Indenture and sold and paid for as provided
in this Agreement, the Securities will constitute valid and binding
obligations of the Company entitled to the benefits of the Indenture
and enforceable against the Company in accordance with their terms,
except to the extent that enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to creditors' rights generally and by general principles of equity; and
the Securities conform in all material respects to the description
thereof contained in the Prospectus.
(xi) No consent, approval or authorization, and no order,
registration or qualification of or with any natural person,
corporation, partnership, trust, firm, association or other entity,
whether acting in an individual, fiduciary or other capacity
("Person"), or any court or government agency or body, is required for
the issuance of the Securities or for the consummation of the other
transactions contemplated by this Agreement, except such as have been
obtained and made under the Act, the Trust Indenture Act or the Rules
and Regulations and such as may be required under state securities laws
in connection with the offer and sale of the Securities.
(xii) The execution, delivery and performance of the
Indenture and this Agreement and the consummation of the transactions
herein and therein contemplated have been duly authorized by all
necessary corporate action on the part of the Company and its
subsidiaries and will not (A) contravene any provision of the charter
or by-laws of the Company or any of its subsidiaries, or (B) conflict
with or result in a breach or violation of any of the terms and
provisions of, or constitute a default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any assets or
property of the Company or any of its subsidiaries under, any statute,
rule, regulation, order or decree of any governmental agency or body or
any court having jurisdiction over the Company or any of its
subsidiaries or any of their properties or any indenture, mortgage,
loan agreement, note, lease, permit, license or other agreement or
instrument to which the Company or any such subsidiary is bound or to
which any of the properties of the Company or any such subsidiary is
subject, except, in the case of clause (B), as would not, singly or in
the aggregate, have a material adverse effect on the condition
(financial or other), business, prospects, results of operations or
general affairs of the Company and its subsidiaries, taken as a whole,
or on the transactions contemplated by this Agreement and the
Indenture; and the Company has full power and authority to authorize,
issue and sell the Securities as contemplated by this Agreement.
(xiii) (A) Neither the Company nor any of its Significant
Subsidiaries is in violation of its charter or by-laws, (B) neither the
Company nor any of its subsidiaries is in violation of any applicable
law, ordinance, administrative or governmental rule or regulation, or
any order of any court or governmental agency or body having
jurisdiction over the Company or any subsidiary and (C) no event of
default or event that, but for the giving of notice or the lapse of
time or both, would constitute an event of default exists, or upon the
use of proceeds from the sale of the Securities in the manner
contemplated by the description under the caption "Use of Proceeds"
contained in the Prospectus or upon the consummation of the other
transactions contemplated by the Prospectus will exist, under any
agreement or instrument for borrowed money, any guarantee of any
agreement or instrument for borrowed money or any lease, permit,
license or other agreement or instrument to which the Company or any of
its subsidiaries is a party or to which any of the properties or assets
of the Company or any such subsidiary is subject, except, in the case
of clauses (B) and (C), for such violations and defaults that would
not, singly or in the aggregate, have a material adverse effect on the
condition (financial or other), business, prospects, results of
operations or general affairs of the Company and its subsidiaries,
taken as a whole.
(xiv) The Company and its subsidiaries have such permits,
licenses, franchises, consents, approvals, authorizations and
clearances ("Licenses") and are in compliance with all applicable laws
and regulations of federal, state, local and foreign governmental or
regulatory authorities, as are necessary to own, lease or operate their
properties and to conduct their businesses in the manner described in
the Prospectus and all such Licenses are in full force and effect, in
each case except as would not, singly or in the aggregate, have a
material adverse effect on the condition (financial or other),
business, prospects, results of operations or general affairs of the
Company and its subsidiaries, taken as a whole.
(xv) The Company and its Significant Subsidiaries have good and
marketable title to all properties (real and personal) owned by the
Company and its Significant Subsidiaries, free and clear of all liens,
claims, security interests or other encumbrances that are material or
that may interfere with the conduct of the business of the Company and
its subsidiaries, taken as a whole; all properties held under lease or
sublease by the Company and its Significant Subsidiaries are held under
valid, subsisting and enforceable leases or subleases with such
exceptions as are not material and do not interfere with the use made
or proposed to be made of such property by the Company and its
Significant Subsidiaries; neither the Company nor any of its
Significant Subsidiaries is in default under any such lease or
sublease, except for defaults which are not material and will not
interfere with the conduct of the business of the Company and its
subsidiaries, taken as a whole; and no material claim of any sort has
been asserted by anyone adverse to the rights of the Company or any
Significant Subsidiary under any such lease or subleases or affecting
or questioning the right of such entity to the continued possession of
the leased or subleased properties under any such lease or sublease.
(xvi) The Company and its Significant Subsidiaries carry or
are entitled to the benefits of insurance, including, without
limitation, product liability and business interruption insurance, in
such amounts and covering such risks as the Company reasonably believes
is generally maintained by companies of established repute engaged in
the same or similar business, and all such insurance is in full force
and effect.
(xvii) The properties, assets and operations of the Company
and its subsidiaries are in compliance in all material respects with
all applicable federal, state, local and foreign laws, rules and
regulations, orders, decrees, judgments, permits and licenses relating
to public and worker health and safety and to the protection and
clean-up of the natural environment and activities or conditions
related thereto, including, without limitation, those relating to the
generation, handling, disposal, transportation or release of hazardous
materials (collectively, "Environmental Laws"). With respect to such
properties, assets and operations, including any previously owned,
leased or operated properties, assets or operations there are no past,
present or, to the knowledge of the Company or any of its subsidiaries,
reasonably anticipated future events, conditions, circumstances,
activities, practices, incidents, actions or plans of the Company or
any of its subsidiaries that may interfere with or prevent compliance
or continued compliance with applicable Environmental Laws in any
material respect. Neither the Company nor any of its subsidiaries is
the subject of any federal, state, local or foreign investigation, and
neither the Company nor any of its subsidiaries has received any notice
or claim (or is aware of any facts that would form a reasonable basis
for any claim), or entered into any negotiations or agreements with any
third party relating to any liability or remedial action or potential
liability or remedial action under Environmental Laws, nor are there
any pending, reasonably anticipated or, to the best knowledge of the
Company or any of its subsidiaries, threatened actions, suits or
proceedings against or affecting the Company, any of its subsidiaries
or their properties, assets or operations, in connection with any such
Environmental Laws. The term "hazardous materials" shall mean those
substances that are regulated by or form the basis for liability under
any applicable Environmental Laws.
(xviii) There are no pending actions, suits or proceedings
against or affecting the Company, any of its subsidiaries or any of
their properties that are required under the Act to be described in the
Registration Statements and the Prospectus (other than as described
therein) or that could, singly or in the aggregate, have a material
adverse effect on the condition (financial or other), business,
prospects, results of operations or general affairs of the Company and
its subsidiaries, taken as a whole, or could have a material adverse
effect on the ability of the Company to perform its obligations under
this Agreement, the Indenture or the Securities, or that are otherwise
material in the context of the sale of the Securities; and, to the
Company's knowledge, no such actions, suits or proceedings are
threatened or contemplated.
(xix) The Company and its subsidiaries own or possess all
the patents, trademarks, service marks, trade names, copyrights,
licenses and rights with respect thereto (collectively, "Intellectual
Property") necessary for the conduct of their businesses as described
in the Prospectus, except where the failure to own or possess the same
would not, singly or in the aggregate, have a material adverse effect
on the condition (financial or other), business, prospects, results of
operations or general affairs of the Company and its subsidiaries,
taken as a whole; and to the knowledge of the Company and its
subsidiaries, no conflict with the rights of others exists with respect
to any such Intellectual Property.
(xx) The Company and its subsidiaries have filed all
federal, state, local and foreign tax returns required to be filed,
such returns are complete and correct in all material respects, and all
taxes shown by such returns or otherwise assessed or due and payable
have been paid, except such taxes as are being contested in good faith
and as to which adequate reserves have been provided. The charges,
accruals and reserves on the books of the Company and its subsidiaries
in respect of any tax liability for any year not finally determined are
adequate to meet any assessments or reassessments for additional taxes,
and there has been no tax deficiency asserted and, to the knowledge of
the Company and its subsidiaries, no tax deficiency might be asserted
against the Company or any of its subsidiaries, except for such
inadequacies or deficiencies that could not, singly or in the
aggregate, have a material adverse effect on the condition (financial
or other), business, prospects, results of operations or general
affairs of the Company and its subsidiaries, taken as a whole.
(xxi) There are no contracts, agreements or understandings
between the Company and any person entitling such person to any fee,
commission or payment from the Company or, to the Company's knowledge,
any Underwriter in connection with the Securities to be sold by the
Company, other than the compensation due and payable to the
Underwriters as described in the Prospectus.
(xxii) No labor disturbance by the employees of the Company
exists, or to the knowledge of the Company, is threatened, that could,
singly or in the aggregate, have a material adverse effect on the
condition (financial or other), business, prospects, results of
operations or general affairs of the Company and its subsidiaries,
taken as a whole.
(xxiii) The financial statements and related schedules and
notes included or incorporated by reference in each Registration
Statement and the Prospectus comply, in all material respects, with the
requirements of the Act and the Rules and Regulations, were prepared in
accordance with generally accepted accounting principles consistently
applied throughout the periods involved and fairly present the
financial condition and results of operations of the Company and its
subsidiaries, on a consolidated basis, at the dates and for the periods
presented. The financial information and statistical data set forth in
the Prospectus under the captions "Selected Financial Data" and
"Capitalization" are fairly stated in all material respects in relation
to the consolidated financial statements of the Company from which they
have been derived.
(xxiv) Since the dates as of which information is given in
the Registration Statements and the Prospectus, (A) neither the Company
nor its subsidiaries has incurred any material liability or obligation
(indirect, direct or contingent) or entered into any material verbal or
written agreement or other transaction that is not in the ordinary
course of business or that could result in a material reduction in the
future earnings of the Company; (B) neither the Company nor its
subsidiaries has sustained any material loss or interference with its
business or properties from fire, flood, windstorm, accident or other
calamity (whether or not covered by insurance); (C) there has been no
change in the indebtedness of the Company and, except as contemplated
by the Prospectus, no change in the capital stock of the Company and no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock; and (D) there has been no
material adverse change, nor any development reasonably likely to
result in a material adverse change, in the condition (financial or
other), business, prospects, results of operations or general affairs
of the Company and its subsidiaries, taken as a whole.
(xxv) On the date each Registration Statement was first
filed with the Commission, and at the Effective Time, the Company met
the conditions for use of Form S-3 under the Act and the Rules and
Regulations.
(xxvi) The Company has complied, and will continue to
comply, with all provisions of Section 517.075, Florida Statutes
(Chapter 92-198, Laws of Florida), and the regulations thereunder.
(b) The Company hereby acknowledges and agrees with the
Underwriters that, for all purposes of this Agreement and the transactions
herein contemplated, the only information furnished to the Company by any
Underwriter through CS First Boston specifically for use in the Registration
Statements, the Prospectus or any amendment or supplement thereto, or any
related preliminary prospectus, are (i) the statements with respect to
stabilization appearing on the inside front cover page of the preliminary
prospectus and the Prospectus, (ii) the first sentence of the last paragraph of
text appearing on the front cover page of the preliminary prospectus and the
Prospectus and (iii) the information appearing in the preliminary prospectus and
the Prospectus in the third and fourth paragraphs under the caption
"Underwriting."
3. Purchase, Sale and Delivery of Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Company, at a purchase price of _____% of the principal amount thereof
plus accrued interest, if any, from ________ __, 1996 to the Closing Date, the
respective principal amounts of Securities set forth opposite the names of the
Underwriters in Schedule A hereto.
The Company will deliver against payment of the purchase price
the Securities in the form of one or more permanent global Securities in
definitive form (the "Global Securities") deposited with the Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the name of
Cede & Co., as nominee for DTC. Interests in any permanent Global Securities
will be held only in book-entry form through DTC, except in the limited
circumstances described in the Prospectus. Payment for the Securities shall be
made by the Underwriters in Federal (same day) funds by official check or
checks, or wire transfer to an account previously designated to CS First Boston
by the Company at a bank acceptable to CS First Boston, drawn to the order of
the Company at the offices of Dewey Xxxxxxxxxx, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx at 10:00 A.M., (New York time), on ________ __, 1996, or at such
other time not later than seven full business days thereafter as CS First Boston
and the Company determine, such time being herein referred to as the "Closing
Date", against delivery to the Trustee as custodian for DTC of the Global
Securities representing all of the Securities. The Global Securities will be
made available for checking at the offices of CS First Boston Corporation, Park
Avenue Plaza, New York, New York 10055 at least 24 hours prior to the Closing
Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
5. Certain Agreements of the Company. The Company agrees
with the several Underwriters that:
(a) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Company will file the Prospectus with the Commission pursuant to and in
accordance with subparagraph (1) (or, if applicable and if consented to
by CS First Boston, subparagraph (4)) of Rule 424(b) not later than the
earlier of (A) the second business day following the execution and
delivery of this Agreement or (B) the fifteenth business day after the
Effective Date of the Initial Registration Statement. The Company will
advise CS First Boston promptly of any such filing pursuant to Rule
424(b). If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement and an additional
registration statement is necessary to register a portion of the
Securities under the Act but the Effective Time thereof has not
occurred as of such execution and delivery, the Company will file the
additional registration statement or, if filed, will file a
post-effective amendment thereto with the Commission pursuant to and in
accordance with Rule 462(b) on or prior to 10:00 P.M., New York time,
on the date of this Agreement or, if earlier, on or prior to the time
the Prospectus is printed and distributed to any Underwriter, or will
make such filing at such later date as shall have been consented to by
CS First Boston.
(b) The Company will advise CS First Boston promptly of any
proposal to amend or supplement the initial or any additional
registration statement as filed or the related prospectus or the
Initial Registration Statement, Additional Registration Statement (if
any) or the Prospectus and will not effect such amendment or
supplementation without CS First Boston's prior consent, which consent
shall not be unreasonably withheld; and the Company will also advise CS
First Boston promptly of the effectiveness of each Registration
Statement (if its Effective Time is subsequent to the execution and
delivery of this Agreement) and of any amendment or supplementation of
a Registration Statement or the Prospectus and of the institution by
the Commission of any stop order proceedings in respect of a
Registration Statement and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
or a condition exists as a result of which it is necessary, in the
reasonable opinion of counsel to the Underwriters or counsel to the
Company, to amend a Registration Statement or amend or supplement the
Prospectus in order that the Prospectus would not include an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary, in the reasonable opinion of either such counsel, at any
time to amend a Registration Statement or amend or supplement the
Prospectus to comply with the Act, the Company will promptly notify CS
First Boston of such event and will promptly prepare and file with the
Commission an amendment or supplement that will correct such statement
or omission or an amendment that will effect such compliance. Neither
CS First Boston's consent to, nor the Underwriters' delivery of, any
such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6 of this Agreement.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally
available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the Effective Date of the
Initial Registration Statement (or, if later, the Effective Date of the
Additional Registration Statement) which will satisfy the provisions of
Section 11(a) of the Act. For the purpose of the preceding sentence,
"Availability Date" means the 45th day after the end of the fourth
fiscal quarter following the fiscal quarter that includes the Effective
Date, except that, if such fourth fiscal quarter is the last quarter of
the Company's fiscal year, "Availability Date" means the 90th day after
the end of such fourth fiscal quarter.
(e) The Company will furnish to CS First Boston copies of each
Registration Statement (at least two of which will be signed and will
include all exhibits and a signed accountant's report of Deloitte &
Touche LLP), each related preliminary prospectus, the Prospectus and
all amendments and supplements to such documents, in each case in such
quantities as CS First Boston reasonably requests. The Prospectus shall
be so furnished on or prior to 3:00 P.M., New York time, on the
business day following the later of the execution and delivery of this
Agreement or the Effective Time of the Initial Registration Statement.
All other documents shall be so furnished as soon as available.
(f) The Company will arrange for the qualification of the
Securities for sale and the determination of their eligibility for
investment under the laws of such jurisdictions as CS First Boston
designates and will continue such qualifications in effect so long as
required for the distribution thereof.
(g) During the period of five years hereafter, the Company
will furnish to CS First Boston, as soon as practicable after the end
of each fiscal year, a copy of its annual report to stockholders for
such year; and the Company will furnish to CS First Boston (i) as soon
as available, a copy of each report or definitive proxy statement of
the Company filed with the Commission under the Securities Exchange Act
of 1934, as amended, or mailed to stockholders and (ii) from time to
time, such other information concerning the Company as CS First Boston
may reasonably request.
The Company agrees with the Underwriters that the Company will
pay all expenses incident to the performance of its obligations under this
Agreement, and will reimburse the Underwriters for any expenses (including
reasonable fees and disbursements of counsel) incurred by them in connection
with the qualification of the Securities for sale under the laws of such
jurisdictions as CS First Boston designates and the printing of memoranda
relating thereto, for the filing fee of and the related reasonable fees and
expenses of counsel for the Underwriters in connection with any filings required
to be made with the National Association of Securities Dealers, Inc. relating to
the Securities, any fees charged by investment rating agencies for the rating of
the Securities and for expenses incurred in printing and distributing the
Registration Statements, preliminary prospectuses and the Prospectus (including
any amendments and supplements thereto) or related documents.
6. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Securities
on the Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company herein, to the accuracy of the statements
of Company officers made pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following additional
conditions precedent:
(a) CS First Boston shall have received a letter, dated the
date of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if
the Effective Time of the Initial Registration Statement is subsequent
to the execution and delivery of this Agreement, shall be prior to the
filing of the amendment or post-effective amendment to the registration
statement to be filed shortly prior to the Effective Time), of Deloitte
& Touche LLP confirming that they are independent public accountants
within the meaning of the Act and the applicable published Rules and
Regulations thereunder and stating in effect that:
(i) in their opinion the financial statements and
schedules examined by them and included or incorporated by
reference in the Registration Statements comply as to form in
all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations;
(ii) they have made a review of the unaudited
financial statements included or incorporated by reference in
the Registration Statements in accordance with standards
established by the American Institute of Certified Public
Accountants, as indicated in their report attached to such
letter;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
financial statements of the Company, a reading of the minutes
of all meetings of the stockholders and directors (including
each committee thereof) of the Company and its subsidiaries,
inquiries of officials of the Company who have responsibility
for financial and accounting matters and other specified
procedures, nothing came to their attention that caused them
to believe that:
(A) the unaudited financial statements
included or incorporated by reference in the
Registration Statements do not comply as to form in
all material respects with the applicable accounting
requirements of the Act and the related published
Rules and Regulations or are not in conformity with
generally accepted accounting principles applied on a
basis substantially consistent with that of the
audited financial statements included or incorporated
by reference in the Registration Statements;
(B) the information set forth under the
caption "Selected Financial Data" in the Prospectus
does not agree with the amounts set forth in the
financial statements from which it was derived or was
not determined on a basis substantially consistent
with that of the corresponding amounts in the audited
financial statements included or incorporated by
reference in the Registration Statements;
(C) at the date of the latest available
balance sheet read by such accountants, and at a
subsequent specified date not more than five days
prior to the date of such letter, there was any
decrease in stockholders' equity or change in the
capital stock or any increase in short-term
indebtedness or long-term debt of the Company and its
consolidated subsidiaries or, at the date of the
latest available balance sheet read by such
accountants, there was any decrease in consolidated
net current assets or total assets, as compared with
amounts shown on the latest balance sheet included in
the Prospectus; or
(D) for the period from the closing date of
the latest income statement included or incorporated
by reference in the Prospectus to the closing date of
the latest available income statement read by such
accountants there were any decreases, as compared
with the corresponding period of the previous year
and with the period of corresponding length ended the
date of the latest income statement included or
incorporated by reference in the Prospectus, in
merchandise sales, service revenue, total gross
profit or operating profit or in the total or per
share amounts of net earnings, or any increases or
decreases, as the case may be, in other items
specified by the Underwriters;
except in all cases set forth in clauses (C) and (D) above for changes,
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter;
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts), numerical data
and other financial information contained in the Registration
Statements (in each case to the extent that such dollar
amounts, percentages, numerical data and other financial
information are derived from the general accounting records of
the Company and its subsidiaries subject to the internal
controls of the Company's accounting system or are derived
directly from such records by analysis or computation) with
the results obtained from inquiries, a reading of such general
accounting records and other procedures specified in such
letter and have found such dollar amounts, percentages,
numerical data and other financial information to be in
agreement with such results.
For purposes of this subsection, (i) if the Effective
Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, "Registration Statements"
shall mean the initial registration statement as proposed to be amended
by the amendment or post-effective amendment to be filed shortly prior
to the Effective Time, (ii) if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement but the Effective Time of the Additional Registration
Statement is subsequent to such execution and delivery, "Registration
Statements" shall mean the Initial Registration Statement and the
additional registration statement as proposed to be filed or as
proposed to be amended by the post-effective amendment to be filed
shortly prior to its Effective Time, and (iii) "Prospectus" shall mean
the prospectus included in the Registration Statements. All financial
statements and schedules included in material incorporated by reference
into the Prospectus shall be deemed included in the Registration
Statements for purposes of this subsection.
(b) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than 10:00 P.M., New
York time, on the date of this Agreement or such later date as shall
have been consented to by CS First Boston. If the Effective Time of the
Additional Registration Statement (if any) is not prior to the
execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of
this Agreement or, if earlier, the time the Prospectus is printed and
distributed to any Underwriter, or shall have occurred at such later
date as shall have been consented to by CS First Boston. If the
Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement, the Prospectus shall have
been filed with the Commission in accordance with the Rules and
Regulations and Section 5(a) of this Agreement. On or prior to the
Closing Date, no stop order suspending the effectiveness of a
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or, to the knowledge of the
Company or CS First Boston, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development involving a prospective change, in or affecting
particularly the business or properties of the Company or any of its
subsidiaries that, in the judgment of a majority in interest of the
Underwriters including CS First Boston, materially impairs the
investment quality of the Securities; (ii) any downgrading in the
rating of any debt securities of the Company by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implications of a possible
downgrading, of such rating); (iii) any suspension or limitation of
trading in securities generally on the New York Stock Exchange, or any
setting of minimum prices for trading on such exchange, or any
suspension of trading of any securities of the Company on any exchange
or in the over-the-counter market; (iv) any banking moratorium declared
by Federal or New York authorities; or (v) any outbreak or escalation
of major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of a majority
in interest of the Underwriters including CS First Boston, the effect
of any such outbreak, escalation, declaration, calamity or emergency
makes it impractical or inadvisable to proceed with completion of the
sale of and payment for the Securities.
(d) CS First Boston shall have received an opinion, dated the
Closing Date, of Xxxxxxx Xxxx & Xxxxxxxxx, counsel for the Company, to
the effect that:
(i) Each of the Company and its Significant Subsidiaries
has been duly incorporated and is a validly existing
corporation in good standing under the laws of the
jurisdiction of its incorporation, with corporate power
and authority to own, lease and operate its properties
and conduct its business as described in the Prospectus;
and each of the Company and its Significant Subsidiaries
is duly qualified to transact business as a foreign
corporation in good standing in all other jurisdictions
in which it owns, leases or operates property or in
which the conduct of its business requires such
qualification, except to the extent that the failure to
be so qualified or in good standing would not have a
material adverse effect on the Company and its
subsidiaries, taken as a whole; and all of the
outstanding shares of capital stock of the Company's
Significant Subsidiaries have been duly authorized and
validly issued, are fully paid and non-assessable and
are owned by the Company, directly or through
subsidiaries, free and clear, to the knowledge of such
counsel after reasonable inquiry, of any mortgage,
pledge, lien, claim, security interest or other
encumbrance.
(ii) The authorized and outstanding shares of capital stock
of the Company are as set forth in the Prospectus under
the caption "Capitalization"; and the stockholders of
the Company have no preemptive or similar rights with
respect to the capital stock or any other securities of
the Company.
(iii) This Agreement has been duly authorized, executed and
delivered by the Company.
(iv) The Indenture has been duly authorized, executed and
delivered by the Company and has been duly qualified
under the Trust Indenture Act and, assuming due
authorization, execution and delivery by the Trustee,
constitutes a valid and binding obligation of the
Company, enforceable against the Company in accordance
with its terms, except to the extent that enforceability
may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws
relating to creditors' rights generally and by general
principles of equity; and the Securities have been duly
authorized, executed and (assuming they have been duly
authenticated in accordance with the terms of the
Indenture) issued, constitute legal, valid and binding
obligations of the Company, enforceable against the
Company in accordance with their terms, and are entitled
to the benefits provided by the Indenture, except to the
extent that enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar
laws relating to creditors' rights generally and by
general principles of equity; and the Indenture and the
Securities conform in all material respects to the
descriptions thereof contained in the Prospectus.
(v) No consent, approval or authorization, and no order,
registration or qualification of or with any Person or
any court or governmental agency or body is required for
the issuance of the Securities sold by the Company or
for the consummation of the other transactions
contemplated by this Agreement, except such as have been
obtained and made under the Act, the Trust Indenture Act
or the Rules and Regulations and such as may be
required under state securities laws in connection
with the offer and sale of the Securities.
(vi) The execution, delivery and performance of the Indenture
and this Agreement and the consummation of the
transactions herein and therein contemplated have been
duly authorized by all necessary corporate action on the
part of the Company and its subsidiaries and will not
(A) contravene any provision of the charter or by-laws
of the Company or any of its subsidiaries, or (B)
conflict with or result in a breach or violation of any
of the terms and provisions of, or constitute a default
under, or result in the creation or imposition or
encumbrance upon any assets or property of the Company
or any of its subsidiaries under, any statute, rule,
regulation, order or decree of any governmental agency
or body or any court having jurisdiction over the
Company or any of its subsidiaries or any of their
properties, or any indenture, mortgage, loan agreement,
note, lease, permit, license or other agreement or
instrument known to such counsel after reasonable
inquiry to which the Company or any such subsidiary is
bound or to which any of the properties of the Company
or any such subsidiary is subject, except, in the case
of clause (B), as would not, singly or in the aggregate,
have a material adverse effect on the condition
(financial or other), business, prospects, results of
operations or general affairs of the Company and its
subsidiaries, taken as a whole, or on the transactions
contemplated by this Agreement and the Indenture; and
the Company has full power and authority to authorize,
issue and sell the Securities as contemplated by this
Agreement.
(vii) Neither the Company nor any of its Significant
Subsidiaries is in violation of its charter or by-laws
or, to the knowledge of such counsel after reasonable
inquiry, any applicable law, ordinance, administrative
or governmental rule or regulation, or any order of any
court or governmental agency or body having jurisdiction
over the Company or any Significant Subsidiary or, to
the knowledge of such counsel after reasonable inquiry,
in default in the performance or observance of any
material obligation, agreement or condition in any
agreement or instrument to which the Company or any of
its Significant Subsidiaries is a party or to which any
of the properties or assets of the Company or any such
Significant Subsidiary is subject.
(viii) To the knowledge of such counsel after reasonable
inquiry, there are no pending or threatened actions,
suits or proceedings against or affecting the Company,
any of the subsidiaries or any of their properties that
are required under the Act to be described in the
Registration Statements and the Prospectus (other than
as described therein) or that could have a material
effect on the ability of the Company to perform its
obligations under this Agreement, the Indenture or the
Securities, or that are otherwise material in the
context of the sale of the Securities.
(ix) To the knowledge of such counsel after reasonable
inquiry, there are no contracts, agreements or
understandings between the Company and any third party
granting such third party the right to require the
Company to file a registration statement under the Act
with respect to any securities of the Company owned or
to be owned by such third party or to require the
Company to include such securities in the securities
registered pursuant to the Registration Statements or in
any other securities being registered pursuant to any
other registration statement filed by the Company under
the Act.
(x) The descriptions in the Registration Statements and the
Prospectus of contracts and other documents are accurate
and fairly present the information required to be shown;
and such counsel does not know of any statutes,
regulations or legal or governmental proceedings
required to be described in the Registration Statements
or the Prospectus that are not described as required or
that could materially and adversely affect the ability
of the Company to perform its obligations under the
Indenture, the Securities or this Agreement, or of any
contracts or documents of a character required to be
described in the Registration Statements or the
Prospectus or to be filed as exhibits to the
Registration Statements that are not described and filed
as required; it being understood that such counsel need
express no opinion as to the financial statements or
other financial data contained in the Registration
Statements or the Prospectus.
(xi) The Initial Registration Statement was declared
effective under the Act as of the date and time
specified in such opinion, the Additional Registration
Statement (if any) was filed and became effective under
the Act as of the date and time (if determinable)
specified in such opinion, the Prospectus either was
filed with the Commission pursuant to the subparagraph
of Rule 424(b) specified in such opinion on the date
specified therein or was included in the Initial
Registration Statement or the Additional Registration
Statement (as the case may be) and, to the knowledge of
such counsel after reasonable inquiry, no stop order
suspending the effectiveness of a Registration Statement
or any part thereof has been issued and no proceedings
for that purpose have been instituted or are pending or
contemplated under the Act.
(xii) Each Registration Statement and the Prospectus, and each
amendment or supplement thereto, as of their respective
effective or issue dates and as of the Closing Date,
complied as to form in all material respects with the
requirements of the Act, the Trust Indenture Act and the
Rules and Regulations.
Such counsel shall also state that such counsel have no
reason to believe that any Registration Statement, as of
its effective date, contained an untrue statement of a
material fact or omitted to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading, or that the
Prospectus or any amendment or supplement thereto, as of
their respective dates and as of the Closing Date, as
the case may be, contained any untrue statement of a
material fact or omitted to state a material fact
required to be stated in the Prospectus or necessary in
order to make the statements in the Prospectus, in light
of the circumstances under which they were made, not
misleading; it being understood that such counsel need
express no view as to the financial statements or other
financial data contained in the Registration Statements
or the Prospectus.
(e) CS First Boston shall have received from Xxxxx Xxxxxxxxxx,
counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the validity of the Securities, the
Registration Statements, the Prospectus and other related matters as CS
First Boston may require, and the Company shall have furnished to such
counsel such documents or certificates as they reasonably request for
the purpose of enabling them to pass upon such matters.
(f) CS First Boston shall have received a certificate, dated
the Closing Date, of the President and the principal financial officer
of the Company in which such officers, to the best of their knowledge
after reasonable investigation, shall state that (A) the
representations and warranties of the Company in this Agreement are
true and correct, (B) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date, (C) no stop order suspending
the effectiveness of any Registration Statement has been issued and no
proceedings for that purpose have been instituted or are contemplated
by the Commission, (D) the Additional Registration Statement (if any)
satisfying the requirements of subparagraphs (1) and (3) of Rule 462(b)
was filed pursuant to Rule 462(b), including payment of the applicable
filing fee in accordance with Rule 111(a) or (b) under the Act, prior
to the time the Prospectus was printed and distributed to any
Underwriter, (E) they have carefully examined the Registration
Statements and the Prospectus and neither any Registration Statement
nor the Prospectus or any amendment or supplement thereto, (i) as of
their respective effective times, contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading and (ii) as of their respective issue dates and as of the
Closing Date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading and (F) subsequent to the
dates as of which information is given in the Registration Statements
and the Prospectus, there has been no material adverse change, nor any
development reasonably likely, singly or in the aggregate, to result in
a material adverse change, in the condition (financial or other),
business, prospects, results of operations or general affairs of the
Company and its subsidiaries, taken as a whole.
(g) CS First Boston shall have received a letter, dated the
Closing Date, of Deloitte & Touche LLP that meets the requirements of
subsection (a) of this Section, except that the specified date referred
to in such subsection will be a date not more than five days prior to
the Closing Date for the purposes of this subsection.
All such opinions, certificates, letters and other documents
will be in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to CS First Boston and counsel for the
Underwriters. The Company will furnish CS First Boston with such conformed
copies of such opinions, certificates, letters and documents as CS First Boston
reasonably requests. CS First Boston may in its sole discretion waive on behalf
of the Underwriters compliance with any conditions to the obligations of the
Underwriters hereunder.
7. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon 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 will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through CS First
Boston specifically for use therein, it being understood and agreed that the
only such information furnished by any Underwriter consists of the information
described as such in Section 2(b); and provided, further, that with respect to
any untrue statement or omission or alleged untrue statement or omission made in
any preliminary prospectus, the indemnity agreement contained in this subsection
(a) shall not inure to the benefit of any Underwriter to the extent that any
such loss, claim, damage or liability of such Underwriter results from the fact
that there was not sent or given to such person, if required by law, at or prior
to the written confirmation of the sale of such Securities to the person
asserting any such loss, claim, damage or liability, a copy of the Prospectus
(exclusive of material incorporated by reference therein) if the Company had
previously furnished copies thereof in requisite quantities to such Underwriter.
(b) Each Underwriter will severally and not jointly indemnify
and hold harmless the Company against any losses, claims, damages or liabilities
to which the Company may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any Registration Statement, the Prospectus, or
any amendment or supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through CS First Boston
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are incurred,
it being understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in Section 2(b).
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above, except to the extent that the
omission so to notify the indemnifying party actually prejudices the
indemnifying party's ability to defend the action. In case any such action is
brought against any indemnified party and it notifies an indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any claims
that are the subject matter of such action.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then the indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Securities
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, 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 on the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such 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 Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company, to each officer of the Company
who has signed a Registration Statement and to each person, if any, who controls
the Company within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Securities hereunder on the Closing
Date and the aggregate principal amount of Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total principal amount of Securities that the Underwriters are obligated to
purchase on the Closing Date, CS First Boston may make arrangements satisfactory
to the Company for the purchase of such Securities by other persons, including
any of the Underwriters, but if no such arrangements are made by the Closing
Date, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Securities
that such defaulting Underwriters agreed but failed to purchase on the Closing
Date. If any Underwriter or Underwriters so default and the aggregate principal
amount of Securities with respect to which such default or defaults occur
exceeds 10% of the total principal amount of Securities that the Underwriters
are obligated to purchase on the Closing Date and arrangements satisfactory to
CS First Boston and the Company for the purchase of such Securities by other
persons are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter or the
Company, except as provided in Section 9. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Securities. If this Agreement is
terminated pursuant to Section 8 or if for any reason the purchase of the
Securities by the Underwriters is not consummated, the Company shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to Section
5 and the respective obligations of the Company and the Underwriters under
Section 7 shall remain in effect, and if any Securities have been purchased
hereunder the representations and warranties in Section 2 and all obligations
under Section 5 shall also remain in effect. If the purchase of the Securities
by the Underwriters is not consummated for any reason other than solely because
of the termination of this Agreement pursuant to Section 8 or the occurrence of
any event specified in clause (iii), (iv) or (v) of Section 6(c), the Company
will reimburse the Underwriters for all out-of-pocket expenses (including fees
and disbursements of counsel) reasonably incurred by them in connection with the
offering of the Securities.
10. Notices. All communications hereunder will be in writing
and, if sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to CS First Boston at Park Avenue Plaza, New York, N.Y. 10055,
Attention: Investment Banking Department - Transactions Advisory Group, or, if
sent to the Company, will be mailed, delivered or telegraphed and confirmed to
it at The Pep Boys -- Manny, Moe & Jack, 0000 Xxxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx, 00000, Attention: Chief Financial Officer; provided,
however, that any notice to an Underwriter pursuant to Section 7 will be mailed,
delivered or telegraphed and confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective personal
representatives and successors and the officers and directors and controlling
persons referred to in Section 7, and no other person will have any right or
obligation hereunder.
12. Representation of Underwriters. CS First Boston will act
for the several Underwriters in connection with this financing, and any action
under this Agreement taken by CS First Boston will be binding upon all the
Underwriters.
13. Counterparts. This Agreement may be executed 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 Agreement.
14. Applicable Law; Consent to Jurisdiction. This Agreement
shall be governed by, and construed in accordance with, the laws of the State of
New York, without regard to principles of conflicts of laws. The Company hereby
submits to the non-exclusive jurisdiction of the Federal and state courts in the
Borough of Manhattan in The City of New York in any suit or proceeding arising
out of or relating to this Agreement or the transactions contemplated hereby.
If the foregoing is in accordance with CS First Boston's
understanding of our agreement, kindly sign and return to us one of the
counterparts hereof, whereupon it will become a binding agreement among the
Company and the several Underwriters in accordance with its terms.
Very truly yours,
THE PEP BOYS -- XXXXX, MOE & XXXX
By
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President - Finance
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
CS FIRST BOSTON CORPORATION
By
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
Acting on behalf of itself and as the
Representative of the several Underwriters.
SCHEDULE A
Principal Amount
Underwriter of Securities
----------- -----------------
CS First Boston Corporation........................... $
-----------
Total........................................ $100,000,000
============
SCHEDULE B
Significant Subsidiaries of the Company
PBY Corporation
The Pep Boys -- Manny, Moe & Jack of California
Pep Boys - Manny, Moe & Jack of Delaware, Inc.
Pep Boys - Manny, Moe & Jack of Puerto Rico, Inc.
Colchester Insurance Company
