EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of May 1, 1998 by and among AutoZone, Inc., a Nevada
corporation ("Buyer") and J. Xxxx Xxxxxx and Xxxxxx X. Xxxxxx
(collectively, "Xxxxxx").
RECITALS
X. Xxxxxx owns all of the shares of Xxxxxx Capital Corporation, an
Arkansas corporation, ("DCC"), which owns a general partner's interest in
TruckPro Limited Partnership, an Arkansas limited partnership ("Seller"),
which operates a replacement parts and maintenance, repair and rebuild
service for medium and heavy duty vehicles.
B. Buyer, Seller, TruckZone, Inc., a Nevada corporation
("Acquisition Sub"), DCC, Coral Three Corporation, an Arkansas
Corporation and Truck Pro Parts, Inc., an Arkansas corporation have
entered into a Purchase Agreement dated as of February 27, 1998, (the
"Purchase Agreement"), providing for the purchase by Buyer and
Acquisition Sub of certain assets of Seller.
C. As partial consideration for the sale of the assets of Seller,
Xxxxxx shall receive, indirectly and as tenants in common, 30,000 shares
of common stock of Buyer, par value $.01 per share (the "Common Stock").
In order to induce Xxxxxx to enter into the Purchase Agreement, Buyer has
agreed to provide the registration rights set forth in this Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants and promises
contained herein and for other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledge, the parties hereby
agree as follows:
Section 1. DEFINITIONS. Terms defined in the Purchase Agreement
are used as therein defined unless otherwise defined in this Agreement.
In addition, the following terms shall have the meaning indicated:
"Commission" means the Securities and Exchange Commission, or any
other federal agency then administering the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended, or
any successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect from time to
time.
"Registrable Securities" means the shares of Common Stock issued to
Xxxxxx pursuant to the Purchase Agreement (and any capital stock of Buyer
issued as a dividend or other distribution with respect to, or in
exchange for or in replacement of, such shares of Common Stock); PROVIDED
HOWEVER, that once such shares are distributed such shares shall cease to
be Registrable Securities when (i) a registration statement with respect
to the sale of such shares shall have become effective under the
Securities Act and such shares shall have been disposed of in accordance
with such registration statement, (ii) they are distributed or may be
distributed by any holder thereof (along with all of the other
Registrable Securities held by such holder) to the public in any 90-day
period pursuant to Rule 144 (or any successor provision) under the
Securities Act, (iii) any disposition of them shall not require
registration or delivery of a prospectus or qualification of them under
the Securities Act or any similar state law then in force such that any
subsequent holder of such Registrable Securities shall hold such
Registrable Securities free of all transfer restrictions, or (iv) they
shall have ceased to be outstanding.
Section 2. REGISTRATION RIGHTS. If at any time Buyer proposes
to register (other than a registration (1) on Form S-8 or any successor
form thereto; (2) of debt securities of Buyer (3) of Preferred Stock of
Buyer; or (4) of securities for the purpose of consummating any
acquisition by including a registration on Form S-4 (or any successor
form thereto)) for its own account or otherwise any public offering of
shares of its capital stock under the Securities Act, Buyer will give
prompt written notice to Xxxxxx of its intention so to do at least three
(3) business days prior to the filing of the registration statement.
A. In the event of an underwritten public offering:
(1) Buyer's notice shall afford Xxxxxx an opportunity to elect
to include in such filing all or any part of the Registrable Securities.
Xxxxxx shall have five (5) business days after receipt of Buyer's notice
to notify Buyer in writing of the number of shares of the Registrable
Securities which Xxxxxx elects to include in the offering. Upon such
written request, Buyer shall use commercially reasonable efforts to
effect the registration under the Securities Act of all Registrable
Securities which Buyer has been so requested to register to permit
disposition of such Registrable Securities, but only to the extent any
other previously unregistered shares of its capital stock are registered.
(2) The inclusion in such filing of the Registrable Securities
shall be upon the condition that Xxxxxx sell his Registrable Securities
to the underwriters on the same terms and conditions as the Buyer and
other selling holders.
B. In the event of a public offering which is not underwritten:
(1) Xxxxxx shall have five (5) business days after receipt of
the Buyer's notice to notify Buyer in writing of the number of shares of
Registrable Securities that are owned by him which he elects to include
in the offering.
(2) Buyer will use commercially reasonable efforts to prepare
and file with the Commission a registration statement with respect to
such Registrable Securities and shall cause such registration statement
to become effective, to prepare and file with the Commission such
amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such
registration statement effective until the earlier of the sale of all
Registrable Securities covered thereby and the expiration of a period of
nine (9) months after its effective date and to comply with the
provisions of the Securities Act with respect to the disposition of all
Registrable Securities covered by such registration statement. In the
event that any Registrable Securities included in a registration
statement subject to, or required by, this Agreement remain unsold at the
end of such period, Buyer may file a post-effective amendment to the
registration statement for the purpose of reregistering such shares.
C. In the event of any underwriting offering or any public
offering which is not underwritten.
(1) Buyer will furnish to Xxxxxx at least one day prior to the
filing of the registration statement one copy of the draft of such
registration statement as is proposed to be filed, and thereafter so many
copies of a prospectus, including a preliminary prospectus, in conformity
with the requirements of the Securities Act, and such other documents, as
Xxxxxx may reasonably request.
(2) Buyer will use commercially reasonable efforts to register
or qualify the securities covered by such registration statement under
such other securities or blue sky laws of such jurisdictions (not
exceeding ten (10) in number) as Xxxxxx shall request, and do any and all
other acts and things that may be reasonably necessary or advisable to
enable Xxxxxx to consummate the disposition in such jurisdictions of the
Registrable Securities covered by the registration statement; PROVIDED,
HOWEVER, that the Buyer shall not be obligated, by reason thereof, to
qualify as a foreign corporation or file any general consent to service
of process under the laws of any such jurisdiction or subject itself to
taxation as doing business in any such jurisdiction.
(3) Buyer shall notify Xxxxxx when the registration statement
covering the offering of the Registrable Securities to be registered has
been filed with the Commission under the Securities Act and when it has
been made effective by order of the Commission.
(4) Buyer shall notify Xxxxxx promptly of any request by the
Commission for the amending or supplementing of such registration
statement or prospectus or for additional information.
(5) Buyer shall advise Xxxxxx promptly after the Buyer shall
receive notice or obtain knowledge of the issuance of any stop order by
the Commission suspending the effectiveness of any such registration
statement or amendment thereto or of the initiation or threatening of any
proceeding for that purpose.
(6) Buyer shall notify Xxxxxx, at any time when a prospectus
relating to the proposed sale is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement or amendment contains
an untrue statement of a material fact or omits to state any material
fact required to be stated therein to make the statements therein, in
light of the circumstances under which they were made, not misleading.
X. Xxxxxx shall be entitled to have its Registrable Securities
included in an unlimited number of registrations pursuant to this
Agreement.
Section 3. OBLIGATIONS OF XXXXXX. To include any Registrable
Securities in any registration, Xxxxxx shall:
(1) Cooperate with the Buyer in preparing each such
registration and execute all such agreements as any representative of the
underwriters may deem reasonably necessary in favor of the underwriters;
(2) Promptly supply Buyer with all information,
documents, representations and agreements as the underwriters or Buyer
may deem reasonably necessary in connection with such registration; and
(3) Agree in writing not to sell or transfer any
shares of the capital stock of Buyer not included in such registration
during the period beginning after receipt of notice of such filing and
ending ninety (90) days after the effective date of such registration
without the underwriters' or Buyers' consent.
Section 4. COMPLETION OF OFFERING NOT REQUIRED. Anything herein
to the contrary notwithstanding, Buyer shall have no obligation to Xxxxxx
if the Board of Directors of Buyer determines, for any reason, not to
complete any proposed public offering of its securities.
Section 5. REGISTRATION EXPENSES. The costs and expenses (other
than underwriting discount or commission applicable to Xxxxxx'x
Registrable Securities registered in a public offering and fees and
disbursements of counsel for Xxxxxx) of all registrations and
qualifications under the Securities Act, and of all other actions that
Buyer is required to take or effect pursuant to this Agreement, shall be
paid by Buyer (including, without limitation, all registration and filing
fees, printing expenses, costs of special audits incident to or required
by any such registration and fees and disbursements of counsel for
Buyer).
Section 6. INDEMNIFICATION BY BUYER. In the event of any
registration under the Securities Act of any offering including
Registrable Securities, Buyer hereby agrees to indemnify and hold
harmless Xxxxxx with respect to each registration of Registrable
Securities that has been effected pursuant to this Agreement, against any
losses, claims, damages or liabilities or proceedings in respect thereof,
joint or several, to which Xxxxxx may become subject under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities
(or proceedings in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which Registrable
Securities were registered under the Securities Act, in any preliminary
prospectus or final prospectus contained therein or any amendment or
supplement thereto, (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 or (iii) any failure or
alleged failure of Buyer to comply with any applicable statute, rule or
regulation in connection with the registration statement or the offering,
and will reimburse Xxxxxx for any legal or other expenses reasonably
incurred by Xxxxxx in connection with investigating or defending any such
loss, claim, damage, liability or proceeding; PROVIDED, that Buyer 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 or omission or alleged omission made in such
registration statement, said preliminary or final prospectus or said
amendment or supplement in reliance upon and in conforming with written
information furnished by Xxxxxx specifically for use in the preparation
thereof.
Section 7. INDEMNIFICATION BY XXXXXX. In the event of any
registration under the Securities Act of any offering including
Registrable Securities, Xxxxxx hereby agrees to indemnify and hold
harmless Buyer with respect to each registration of Registrable
Securities that has been effected pursuant to this Agreement, and each
other person, if any, who controls Buyer within the meaning of the
Securities Act and each other person (including each underwriter, and
each other person, if any, who controls such underwriter) who
participates in the offering of such Registrable Securities against any
losses, claims, damages or liabilities or proceedings in respect thereof,
joint or several, to which Buyer, such controlling person or
participating person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
proceedings 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 under which an offering of such Registrable
Securities was registered under the Securities Act, in any preliminary
prospectus or final prospectus contained therein, or in any amendment or
supplement thereto, 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 Buyer and each such controlling person or participating
person for any legal or other expenses reasonably incurred by Buyer or
such controlling person or participating person in connection with
investigating or defending any such loss, claim, damage, liability or
proceeding; PROVIDED that Xxxxxx will be liable in any such case to the
extent, and only 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 or omission or alleged omission made in such
registration statement, said preliminary or final prospectus or said
amendment or supplement in reliance upon and in conformity with written
information furnished by Xxxxxx specifically for use in the preparation
thereof.
Section 8. ASSIGNMENT. Neither this Agreement nor any of the
rights or obligations hereunder may be assigned by any party without the
prior written consent of the other parties except that Buyer may, without
such consent, assign all such rights and obligations to a successor in
interest to Buyer which shall assume all obligations and liabilities
hereunder.
Section 9. SOLE AND ENTIRE AGREEMENT. This Agreement has been
entered into as part of the Acquisition and, along with the Purchase
Agreement, constitutes the sole and entire existing agreement between the
parties with respect to the subject matter hereof, and completely and
correctly expresses all of the rights and obligations of the parties.
All prior agreements, conditions, practices, customs, usages and
obligations are completely superseded and revoked, insofar as any such
prior agreement, condition, practice, custom, usage or obligation might
have given rise to any enforceable right.
Section 10. WAIVERS. The waiver in any particular instance or
series of instances of any term or condition of this Agreement or any
breach hereof by any party shall not constitute a waiver of such term or
condition or of any breach thereof in any other instance.
Section 11. AMENDMENT. This Agreement is subject to amendment
only by subsequent written agreement between, and executed by, the
parties hereto. Commencement or continuation of any custom, practice or
usage by Buyer shall not constitute an amendment hereof or otherwise give
rise to enforceable rights or create obligations of Buyer.
Section 12. SEPARABILITY. If any one or more provisions,
clauses, paragraphs, subclauses or subparagraphs contained in this
Agreement shall for any reason be held to be invalid, illegal, void or
unenforceable, the same shall not affect any other provision, clause, as
if such invalid, illegal, void or unenforceable provision, clause,
paragraph, subclause or subparagraph of this Agreement, but this
Agreement shall be construed as if such invalid, illegal, void or
unenforceable provision, clause, paragraph, subclause or subparagraph had
never been contained herein.
Section 13. TIME IS OF THE ESSENCE. Time is of the essence in
this Agreement. Any time limit mentioned herein has been carefully
considered and represents the agreed absolute outside limit of time
within which the applicable right must be exercised. The parties may
extend such time limit only by mutual agreement in writing.
Section 14. DURATION OF RIGHTS. Rights and obligations created
by or arising under this Agreement shall terminate automatically upon
termination of this Agreement, except as otherwise expressly provided
herein.
Section 15. FULL PERFORMANCE REQUIRED. The doctrine of
substantial performance has no application hereunder. Each condition and
provision has been carefully considered and represents the agreed minimum
limit of performance giving rise to applicable rights or obligations.
Section 16. APPLICABLE LAW. This Agreement shall be construed
and interpreted in accordance with the laws of the State of Arkansas.
Section 17. CONFIDENTIALITY. The parties agree that the terms of
this Agreement are to be held confidential and shall not be disclosed to
any other person or entity, except as required by law or legal process,
and except that either party may disclose the terms hereof to its or his
legal counsel, underwriters, or other advisors.
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Registration Rights Agreement to be duly executed on their respective
behalf, by their respective officers thereunto duly authorized, all as of
the day and year first above written.
XXXXXX AUTOZONE, INC.
("Buyer")
/S/ J. XXXX XXXXXX By: /S/ XXXXX X. XXXXXXXXX
J. Xxxx Xxxxxx Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President
and General Counsel
/S/ XXXXXX X. XXXXXX By: /S/ XXXXXX X. XXXXXXX
Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxx
Title: Assistant Secretary
