<PAGE> 1
As filed with the Securities and Exchange Commission on February 16, 2000.
Registration No. 333-____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CSK AUTO CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Delaware 86-0765797
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Identification Number)
Organization)
645 EAST MISSOURI AVENUE
PHOENIX, ARIZONA 85012
(Address of Principal Executive Offices, including Zip Code)
CSK AUTO CORPORATION
2000 SENIOR EXECUTIVE STOCK LOAN PLAN
(Full Title of the Plan)
MAYNARD L. JENKINS
CSK AUTO CORPORATION
645 EAST MISSOURI AVENUE
PHOENIX, AZ 85012
(Name and Address of Agent for Service)
(602) 265-9200
(Telephone Number, Including Area Code, of Agent for Service)
Copies to:
RICHARD M. RUSSO, Esq.
Gibson, Dunn & Crutcher LLP
1801 California Street, Suite 4100
Denver, Colorado 80202-2641
(303) 298-5700
================================================================================
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
PROPOSED MAXIMUM
TITLE OF SECURITIES AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED PRICE (1) REGISTRATION FEE
- --------------------------------------------------------------------------------
Common stock, par
value $.01 ("Common Stock")..............$2,000,000 $528.00
- --------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(o) under the Securities Act of 1933, as amended.
================================================================================
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information called for in Part I of
Form S-8 will be provided to participants in the prospectus for the CSK Auto
Corporation 2000 Senior Executive Stock Loan Plan (the "Plan"). Such information
is omitted from this registration statement in accordance with Rule 428 under
the Securities Act of 1933, as amended (the "Securities Act") and the Note to
Part I of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents of the Company heretofore filed with the
Securities and Exchange Commission (the "Commission") are hereby incorporated in
this Registration Statement by reference:
(1) The Company's latest annual report filed pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), that contains audited financial statements for the Company's latest
fiscal year for which such statements have been filed;
(2) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange
Act since the end of the fiscal year covered by Company's latest annual
report or prospectus referred to in (1) above;
(3) The description of the Common Stock set forth under the caption
"Description of Capital Stock" in the Company's effective registration
statement on Form S-1 (File No. 333-43211), together with any amendment or
report filed with the Commission for the purpose of updating such
description.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a) and (c), 14 and 15(d) of the Exchange Act prior to
the filing of a post-effective amendment which indicates that all securities
offered hereunder have been sold or which deregisters all such securities then
remaining unsold shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
reports and documents.
Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such earlier statement. Any statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
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Section 145 of the Delaware General Corporation Law (the "DGCL") makes
provisions for the indemnification of officers and directors of corporations in
terms sufficiently broad to indemnify the officers and directors of the Company
under certain circumstances from liabilities (including reimbursement of
expenses incurred) arising under the Securities Act of 1933, as amended (the
"Securities Act").
As permitted by the DGCL, the Company's Restated Certificate of
Incorporation, as amended (the "Charter"), provides that, to the fullest extent
permitted by the DGCL, no director shall be liable to the Company or to its
stockholders for monetary damages for breach of his fiduciary duty as a
director. Delaware law does not permit the elimination of liability (i) for any
breach of the director's duty of loyalty to the Company or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) in respect of certain unlawful
dividend payments or stock redemptions or repurchases, or (iv) for any
transaction from which the director derives an improper personal benefit. The
effect of this provision in the Charter is to eliminate the rights of the
Company and its stockholders (through stockholders' derivative suits on behalf
of the Company) to recover monetary damages against a director for breach of
fiduciary duty as a director thereof (including breaches resulting from
negligent or grossly negligent behavior) except in the situations described in
clauses (i)-(iv), inclusive, above. These provisions will not alter the
liability of directors under federal securities laws.
In addition, the Charter provides that the Company may indemnify any
person who was or is a party or who was or is threatened to be made a party to
or is otherwise involved in any threatened, pending or completed action, suit or
proceeding (including, without limitation, one by or in the right of the Company
to procure judgment in its favor), whether civil, criminal, administrative or
investigative, by reason of the fact that he or she is or was a director,
officer, employee or agent of the Company or is or was serving at the request of
the Company as a director, officer, employee or agent of any other corporation
or enterprise, from and against any and all expenses (including attorney's
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person. The Charter also provides that the indemnification
provided in the Charter shall not be deemed exclusive of any other rights to
which the indemnified party may be entitled and that the Company may maintain
insurance, at its expense, to protect itself and any director, officer, employee
or agent of the Company or any other corporation or enterprise against expense
liability or loss whether or not the Company would have the power to indemnify
such person against such expense, liability or loss under the DGCL or under the
Charter.
The Company's By-Laws (the "Bylaws") provide that the Company may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the Company) by reason of the fact that he is or was a director,
officer, employee or agent of the Company or is or was serving at the request of
the Company as a director, officer, employee or agent of any other corporation
or enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding if such person acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe such person's conduct was
unlawful.
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The Bylaws also provide that the Company may indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Company to procure judgment
in its favor by reason of the fact that such person acted in any of the
capacities set forth above, against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit if such person acted under similar
standards, except that no indemnification may be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable to
the Company unless and only to the extent that the Court of Chancery of the
State of Delaware or the court in which such action or suit was brought shall
determine that despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to be
indemnified for such expenses which the Court of Chancery of the State of
Delaware or the court in which such action was brought shall deem proper.
The Bylaws also provide that to the extent a director or officer of the
Company has been successful in the defense of any action, suit or proceeding
referred to in the previous paragraphs or in the defense of any claim, issue, or
matter therein, he shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith and that
indemnification provided for in the Bylaws shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Unless otherwise indicated below as being incorporated by reference to
another filing of the Company with the Commission, each of the following
exhibits is filed herewith:
3.01 Restated Certificate of Incorporation of the Company, incorporated
herein by reference to Exhibit 3.01 of the Company's annual report
on Form 10-K, filed on April 28, 1999 (File No. 001-13927).
3.02 Certificate of Correction of the Company, incorporated herein by
reference to Exhibit 3.02 of the Company's annual report on Form
10-K, filed on April 28, 1999 (File No. 001-13927).
3.03 Amended and Restated By-Laws of the Company, incorporated herein by
reference to Exhibit 3.03 of the Company's annual report on Form
10-K, filed on April 28, 1999 (File No. 001-13927).
4.01 CSK Auto Corporation 2000 Senior Executive Stock Loan Plan.
4.02 Form of Common Stock Certificate, incorporated herein by reference
to Exhibit 3.02 of the Company's registration statement on Form S-1
(File No. 333-43211).
4.03 Form of Promissory Note
4.04 Form of Stock Pledge Agreement
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23.01 Consent of PricewaterhouseCoopers LLP
24.01 Power of Attorney (included on signature page of this Registration
Statement)
ITEM 9. UNDERTAKINGS.
(1) The undersigned Company hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represents a fundamental change in the information
set forth in the registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (1)(a)(i) and (1)(a)(ii) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the Company
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this registration statement.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(2) The undersigned Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the Company's
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Securities and
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Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of the
Company in the successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with the
securities being registered, the Company will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Phoenix, State of Arizona, on this 14th day of
February, 2000.
CSK AUTO CORPORATION
By /s/ James Bazlen
----------------------
James Bazlen
President and Chief
Operating Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Don W.
Watson, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Maynard Jenkins Chairman of the Board and February 14, 2000
- ---------------------- Chief Executive Officer
Maynard Jenkins (Principal Executive Officer)
/s/ James Bazlen President,
- ---------------------- Chief Operating Officer February 14, 2000
James Bazlen and Director
/s/ Don Watson Senior Vice President,Chief February 14, 2000
- ---------------------- Financial Officer and Treasurer
Don Watson (Principal Financial and
Accounting Officer)
</TABLE>
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<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Morton Godlas
-------------------------- Director February 14, 2000
Morton Godlas
/s/ James O. Egan
-------------------------- Director February 14, 2000
James O. Egan
/s/ Christopher J. O'Brien
-------------------------- Director February 14, 2000
Christopher J. O'Brien
/s/ Charles J. Philippin
-------------------------- Director February 14, 2000
Charles J. Philippin
/s/ Robert Smith
-------------------------- Director February 14, 2000
Robert Smith
/s/ Christopher J. Stadler
-------------------------- Director February 14, 2000
Christopher J. Stadler
/s/ Jules Trump
-------------------------- Director February 14, 2000
Jules Trump
/s/ Eddie Trump
-------------------------- Director February 14, 2000
Eddie Trump
/s/ Savio W. Tung
-------------------------- Director February 14, 2000
Savio W. Tung
/s/ John F. Antioco
-------------------------- Director February 14, 2000
John F. Antioco
/s/ Charles K. Marquis
-------------------------- Director February 14, 2000
Charles K. Marquis
</TABLE>
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EXHIBIT INDEX
Exhibit Description
------- -----------
Number
------
3.01 Restated Certificate of Incorporation of the Company, incorporated
herein by reference to Exhibit 3.01 of the Company's annual report
on Form 10-K, filed on April 28, 1999 (File No. 001-13927).
3.02 Certificate of Correction of the Company, incorporated herein by
reference to Exhibit 3.02 of the Company's annual report on Form
10-K, filed on April 28, 1999 (File No. 001-13927).
3.03 Amended and Restated By-Laws of the Company, incorporated herein by
reference to Exhibit 3.03 of the Company's annual report on Form
10-K, filed on April 28, 1999 (File No. 001-13927).
4.01 CSK Auto Corporation 2000 Senior Executive Stock Loan Plan.
4.02 Form of Common Stock Certificate, incorporated herein by reference
to Exhibit 3.02 of Company's registration statement on Form S-1
(File No. 333-43211).
4.03 Form of Promissory Note
4.04 Form of Stock Pledge Agreement
23.01 Consent of PricewaterhouseCoopers LLP
24.01 Power of Attorney (included on signature page of this Registration
Statement)
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<PAGE> 1
Exhibit 4.01
CSK AUTO CORPORATION
2000 SENIOR EXECUTIVE STOCK LOAN PLAN
1. Purpose. The CSK Auto Corporation 2000 Senior Executive Stock Loan
Plan (the "Plan") has been established by CSK Auto Corporation (the "Company")
to secure for the Company and its shareholders the benefits arising from capital
ownership, and thereby entrepreneurial risk, by those senior executive officers
of the Company and its subsidiaries who are and will be responsible for the
future growth and continued success of the Company and its subsidiaries. The
Plan will provide a means whereby such individuals, pursuant to loans made under
the Plan, may acquire shares of the Company's Common Stock, par value $0.01 per
share ("Common Stock").
2. Administration. Except as set forth in Section 3 below, the
authority to manage and control the operation and administration of the Plan
shall be vested in the Compensation Committee (the "Committee") of the Board of
Directors of the Company (the "Board"). Any interpretation of the Plan by the
Committee and any decision made by the Committee on any matter within its
discretion is final and binding on all persons. No member of the Committee shall
be liable for any action or determination made with respect to the Plan.
3. Participation. The Chief Executive Officer of the Company, with the
concurrence of the Committee, shall determine and designate from among the
senior executive officers of the Company and its subsidiaries (including
employees who are also directors), the officers who will participate in the Plan
("Participants").
4. Description of Plan and Procedures. For the above-noted purposes,
the Company shall make a loan (a "Loan") to each requesting Participant to
finance the acquisition by a Participant of newly purchased shares of Common
Stock (the "Purchased Shares") in the open market. If the Participant desires to
purchase Common Stock and apply for a Loan, the Participant shall notify the
Company in writing of his intention to purchase such Common Stock and make
application to the Company for such Loan, at least two days prior to the
required funding, by executing and delivering an Election to Participate,
substantially in the form attached hereto as Exhibit A. Upon such timely
application, the Participant will be required to execute and deliver a
promissory note and pledge agreement, each as described below, at which time the
Company will issue its check in the amount of the Loan. This Loan shall be used
only for the purpose of purchasing the Common Stock indicated in the
Participant's notice. It is the Participant's responsibility to effect a
purchase of the Common Stock on the open market, using a broker or dealer of the
Participant's choice, no later than ten (10) calendar days following the date of
the Loan. Under no circumstances, however, will the Participant purchase the
Common Stock directly from the Company. The Participant must request that the
Purchased Shares be received by him or her in certificated form. The Participant
is obligated to furnish to the Secretary of the Company satisfactory evidence
that such purchase was made, such as a confirmed purchase order from the
Participant's broker or dealer. Notwithstanding any other provision of this
Plan, all purchases of Common Stock by Participants shall be made in accordance
with the Company's policy regarding securities trades by Company personnel with
access to material information.
<PAGE> 2
5. Purchase Loans. The aggregate principal of any Loan to a Participant
shall not exceed fifty percent (50%) of the purchase price (exclusive of
brokerage fees and other similar expenses in connection with such purchase) of
the Purchased Shares, subject to the following:
(a) Each Loan shall be evidenced by a promissory note (the
"Note") in such form as the Committee shall approve; provided, that the
note shall (i) provide full recourse to the Participant, (ii) provide
for interest at a rate for each fiscal quarter or part thereof equal to
the average rate paid by CSK Auto, Inc. under the revolving portion of
its Senior Credit Facility during such period, (iii) be secured by a
Pledge Agreement (described in subsection 6.1 below), and (iv) comply
with all applicable laws, regulations and rules of the Board of
Governors of the Federal Reserve System and any other governmental
agency having jurisdiction.
(b) Subject to the prepayment provisions of subsection 6.2
below and the acceleration provisions set forth in paragraphs (c) and
(d) below, each Loan shall mature no later than five (5) years after it
is made (the "Maturity Date"), at which time all unpaid principal and
interest shall be payable.
(c) The principal and interest outstanding under a Loan of a
Participant who retires on or after age 65 or whose employment with the
Company and its affiliates terminates by reason of his death or
Disability (as defined below) or is terminated for a reason other than
Cause (as defined below) will not become due and payable until the
Maturity Date of the Loan. All principal and interest outstanding under
a Loan with respect to any other Participant will automatically become
due and payable on the date the Participant's employment with the
Company and its affiliates terminates. "Disability" means, unless
otherwise defined in the Participant's Employment Agreement, if any, a
determination by the Committee in its sole discretion that a
Participant has become "disabled" within the meaning of the Company's
long-term disability plan as in effect at the time. "Cause," unless
otherwise defined in the Participant's Employment Agreement, if any,
shall mean (i) the conviction for the commission of, or a plea of
guilty or nolo contendere made by a Participant in response to a charge
involving, a felony or a crime involving moral turpitude, (ii) the
embezzlement or misappropriation of funds or property of the Company or
any of its subsidiaries, (iii) the continued use of alcohol or drugs to
an extent which interferes with the performance by the Participant of
his or her employment responsibilities, (iv) the intentional,
unauthorized disclosure of proprietary information or confidential
records of the Company or any of its subsidiaries or (v) the willful
failure or refusal to perform those duties reasonably assigned or
delegated to the Participant by the Board (or the Board of Directors of
the Company's subsidiary which employs the Participant) which failure
or refusal continues following (A) such Board of Directors giving Buyer
written notice setting forth the facts or events constituting such
failure or refusal, and (B) a reasonable opportunity to correct the
deficiencies or other problems specified in such notice to the
reasonable satisfaction of such Board.
(d) The Company has the right to accelerate the principal and
interest due under the Loan if any of the following events occurs: (i)
the Participant defaults in the payment of any amount due under the
Loan and the default remains uncured for a period of ten (10) days
after the date the Company gives the Participant notice of the default,
(ii)
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the Participant defaults under or breaches any other covenant,
representation or warranty under the Note, the Pledge Agreement or any
other agreement under the Plan and the default or breach remains uncured
for a period of thirty (30) days after the date the Company gives the
Participant notice of his default or breach, (iii) the Participant
applies for or consents to the appointment of a receiver, trustee,
custodian or liquidator of any of his property, admits in writing his
inability to pay his debts as they mature, makes a general assignment as
a bankrupt or insolvent or is the subject of an order for relief under
the United States Bankruptcy Code or files a voluntary petition in
bankruptcy or a petition or answer seeking an arrangement with creditors
to take advantage of any bankruptcy, insolvency, readjustment or debt or
liquidation law or statute, or an answer admitting the material
allegations of a petition filed against him in any proceeding under any
such law, or (iv) any court of competent jurisdiction enters an order,
judgment or decree, without the application, approval or consent of the
Participant, approving a petition appointing a receiver, trustee,
custodian or liquidator of all or a substantial part of the assets of
the Participant, and such order, judgment or decree continues unstayed
and in effect for a period of thirty (30) days.
(c) If a Participant fails to make any payment required under
the Participant's Loan when due, the Company may foreclose on the
Pledged Property (as defined in subsection 6.1) and may otherwise
enforce its rights under the Plan and any Note or other agreement
entered into under the Plan.
The aggregate principal amount of all Loans outstanding under the Plan shall
not, without the approval of the Board, exceed $2,000,000, at any time.
6. Pledge of Shares.
6.1 Pledge Agreement. Each Participant shall enter into an
agreement with the Company in such form as the Committee shall approve (the
"Pledge Agreement") to pledge to the Company all of the Purchased Shares, any
non-cash dividends or distributions payable with respect to such shares and any
securities or other property (other than cash) payable in respect of or in
exchange for such shares pursuant to any merger, reorganization, consolidation,
recapitalization, exchange offer or other similar corporate transaction and all
proceeds thereof (collectively, the "Pledged Property") to secure repayment of
the Loan. Notwithstanding the foregoing, in the event that the Committee
determines that a Participant would recognize a net increase in taxable income
from the receipt of any such dividends or distributions, the Committee may in
its discretion permit the Participant to retain a portion of the dividends or
distributions so as to be able to pay all or part of his related increase in
taxes.
(a) Certificates representing shares of stock that consist of
Pledged Property shall bear the following legend in addition to any
other legends that the Company may deem appropriate:
"THIS CERTIFICATE AND THE SHARES OF STOCK AND ALL RIGHTS
HEREBY REPRESENTED ARE SUBJECT TO THE TERMS, CONDITIONS AND
RESTRICTIONS SET FORTH IN THE CSK AUTO CORPORATION 2000 SENIOR
EXECUTIVE STOCK
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LOAN PLAN AND ANY AGREEMENT UNDER THAT PLAN AND THE PLEDGE
AGREEMENT BETWEEN THE OWNER OF SUCH SHARES AND CSK AUTO
CORPORATION AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT IN
ACCORDANCE WITH THE TERMS AND CONDITIONS OF SUCH PLAN AND
AGREEMENTS, COPIES OF WHICH ARE ON FILE AT THE OFFICES OF CSK
AUTO CORPORATION."
(b) Any cash otherwise receivable by the Participant upon an
exchange or conversion of Pledged Property shall instead be paid
directly to the Company and applied to reduce the outstanding Loan
balance (with accrued but unpaid interest being reduced first). Any
cash in excess of that applied against the outstanding Loan balance
shall be paid to the Participant.
6.2. Prepayments of Loan and Releases from Pledge.
(a) A Participant may make voluntary prepayments on the Loan
at any time without penalty in such minimum amounts as the Committee
may determine, which shall be applied first to accrued but unpaid
interest, and then to principal.
(b) In the event that any cash dividend or distribution is
paid by the Company with respect to any Pledged Property relating to
the Loan, the Participant shall make a mandatory prepayment with
respect to the Loan equal to the amount of such dividend or
distribution, which shall be applied first to accrued but unpaid
interest under the Loan, then to principal. Notwithstanding the
foregoing, in the event that the Committee determines that a
Participant would recognize a net increase in taxable income from the
receipt of any such dividends or distributions after giving effect to
any deduction for the related payment under the Loan, the Committee may
in its discretion permit the Participant to retain a portion of the
dividends or distributions so as to be able to pay all or part of his
related increase in taxes.
(c) In the event that the Participant at any time desires to
obtain a release of all or part of any Pledged Property securing the
Loan, as a condition to the release, the Participant shall make
arrangements satisfactory to the Company (i) if the released Purchased
Shares are to be sold contemporaneously with their release, for the
payment directly to the Company by the purchaser of such released
Purchased Shares of all proceeds from the sale of such Shares which
would otherwise be payable to the Participant (such proceeds to be
applied first to accrued but unpaid interest under the Loan, then to
principal, with any proceeds in excess of such amounts being paid by
the Company to the Participant), or (ii) in all circumstances other
than those in (i) above, for the payment by the Participant of all
unpaid amounts outstanding under the Loan, the promissory note
evidencing such Loan and the Pledge Agreement.
7. Restrictions on Purchased Shares.
(a) Except as provided in the Pledge Agreement in the case of
an Event of Default as defined therein, or as set forth in paragraph 7(c) below,
until the end of the Restricted Period (as defined below):
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(i) Purchased Shares may not be sold, assigned, transferred, pledged,
hypothecated or transferred in any way (other than by the Participant's
will or the laws of descent and distribution) by the Participant;
(ii) the certificate representing such shares shall be registered in
the name of the Participant and shall be deposited with the Company,
together with a stock power (in such form as the Company may determine);
and
(iii) the Participant shall be treated as a stockholder with respect to
the Purchased Shares, including the right to vote such shares.
(b) The "Restricted Period" for each Participant shall mean the
period beginning on the date that the Purchased Shares are acquired by such
Participant and ending on the later of (i) the date that the principal of the
Loan and all unpaid interest thereon is repaid in full or (ii) the first
anniversary of the date that the Purchased Shares are acquired by such
Participant.
(c) Notwithstanding the provisions of paragraphs 7(a) and (b) above,
the Committee shall have the authority, in its sole discretion, to permit a
Participant to sell, assign, transfer, pledge, hypothecate or otherwise
transfer his or her Purchased Shares under such conditions as the Committee
shall determine.
8. Transfers at Termination of Restricted Period. At the end of the
Restricted Period with respect to Purchased Shares, the certificate representing
such shares shall be transferred to the Participant (or the Participant's legal
representative or heir) free of all restrictions under the Plan.
9. Additional Collateral. The Committee may, as a condition to extending
a Loan hereunder, require that the Participant collateralize the Loan by
pledging to the Company such other collateral as may from time to time be
required by the Board of Governors of the Federal Reserve Board.
10. General.
10.1. Effective Date. The Plan will become effective upon its approval by
the Company's Board of Directors.
10.2. Agreements Evidencing Participation. At the time of a Participant's
designation as a Participant, the Committee may require a Participant to enter
into one or more agreements with the Company in a form specified by the
Committee agreeing to the terms and conditions of the Plan and to such
additional terms and conditions, not inconsistent with the Plan, as the
Committee may in its discretion prescribe (collectively, "Plan Documents").
10.3. Nontransferability. No right provided under the Plan to any
Participant may be transferred, pledged or assigned by the Participant (except,
in the event of the Participant's death, by will or the laws of descent and
distribution), and the Company shall not be required to recognize any attempted
assignment of such rights by any Participant.
10.4. Compliance with Applicable Law and Withholding. The Company shall
have the right to require a Participant to pay to the Company the amount of any
taxes that are required to be withheld with respect to a Participant's
participation in the Plan. To the extent permitted by the Committee, a
Participant may elect to have any distribution otherwise required to be made
under the Plan withheld to fulfill any tax withholding obligation.
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<PAGE> 6
10.5. No Employment Rights. The Plan does not constitute a
contract of employment, and participation in the Plan will not give any
Participant the right to be retained in the employ of the Company or an
affiliate or the right to continue as a director of the Company or any right or
claim to any benefit under the Plan unless such right or claim has specifically
accrued under the terms of the Plan or the terms of any award under the Plan.
10.6. Governing Law. The Plan and all determinations made and
actions taken thereunder, to the extent not otherwise governed by the laws of
the United States, shall be governed by the internal laws of the State of
Delaware and construed accordingly.
10.7. Amendments and Termination of the Plan. The Board of
Directors may at any time suspend or terminate the Plan, in whole or in part, or
amend it from time to time in such respects as it may deem advisable, including,
without limitation, in order that Loans extended hereunder meet the requirements
of applicable law, regulations, rulings or interpretations of administrative
agencies. No new Loan shall be extended on or after the second anniversary of
the Plan's effectiveness.
6
<PAGE> 7
EXHIBIT A
FORM OF
ELECTION TO PARTICIPATE
I hereby elect to participate in the 2000 Senior Executive Stock Loan
Plan (the "Plan") of CSK Auto Corporation (the "Company") and request to borrow
$__________, or such lesser amount as the Company may determine, thereunder for
the purpose of purchasing shares (the "Shares") of the Company's Common Stock,
par value $.01 per share, on the open market through a broker or dealer of my
choice, the name and mailing address of which is set forth below (my "Broker").
I understand that my participation will be subject to the terms of the Plan and
the other documents that are required to be executed in connection with the
Plan.
I acknowledge that (i) I have received and reviewed a copy of the Plan,
and a copy of the Prospectus dated ____ __, 2000 covering the Shares to be
acquired under the Plan, as well as copies of the Promissory Note and Stock
Pledge Agreement required to be executed by me upon receipt of a loan under the
Plan (a "Loan"), (ii) by completing, signing and returning this form, I am
agreeing to borrow the amount specified above (or such lesser amount determined
by the Company) and to have the full amount of such Loan applied by my Broker to
the purchase(s) of the Shares, (iii) the proceeds from the Loan shall not exceed
fifty percent (50%) of the total funds used by me to purchase the Shares
(exclusive of brokerage fees and other similar expenses in connection with such
purchase), and (iv) the Loan will be made only in conjunction with, and subject
to, the closing of the open market purchases referred to above and will be on
the terms set forth in the Plan and the above-mentioned Promissory Note and
Stock Pledge Agreement (which I agree to sign and return upon the closing of the
Loan).
I agree that, upon the closing of the Loan and Share purchase(s), the
Shares purchased on my behalf shall be registered in the name of the individual
signing below and that certificates or other instruments representing or
evidencing such Shares shall immediately be delivered to the Company as required
by the above-mentioned Stock Pledge Agreement, along with duly executed
instruments of transfer or assignment in blank, all in form and substance
satisfactory to the Company.
Broker Name and Address: ---------------------
---------------------
---------------------
---------------------
---------------------
WITNESS my signature below:
Date: ________ __, 20__
------------------------
Name:
Title:
Social Security No.:
<PAGE> 1
Exhibit 4.03
FORM OF
PROMISSORY NOTE
$_______ Phoenix, Arizona
__________, 20__
FOR VALUE RECEIVED, the undersigned, _____________ (the "Payor"),
hereby promises to pay to the order of CSK AUTO CORPORATION, a Delaware
corporation, or its successor or assign (the "Holder"), at the office of Holder
at 645 E. Missouri Avenue, Phoenix, Arizona, Attn.: Chief Executive Officer, on
the earlier of (i) __________, 20__ (the Maturity Date) and (ii) the date to
which the maturity of this Note is accelerated as provided below, the principal
sum of _______________________________________________ DOLLARS ($______),
together with any accrued and unpaid interest thereon, in lawful money of the
United States of America in immediately available funds, and to pay interest
from the date hereof on the principal amount hereof from time to time
outstanding, in like funds, at said office. From the date hereof interest (i)
shall accrue on the outstanding principal amount hereof at a rate which shall be
calculated for each quarter or part thereof of the Holder's fiscal year, (ii)
shall equal the average rate paid by CSK Auto, Inc. under the revolving portion
of its senior credit facility during such period, and (iii) shall be payable in
arrears on or prior to the 30th day after the end of each such fiscal quarter.
The Payor hereby promises to pay interest, on demand, on any overdue
principal and, to the extent permitted by law, on any overdue interest (other
than interest added to and constituting a part of the principal hereof in
accordance with the terms hereof), and on any overdue amount under any
instrument now or hereafter evidencing or securing the indebtedness evidenced
hereby, at a rate equal to the rate of interest from time to time announced
publicly by The Chase Manhattan Bank, as its base rate plus 3% (but in no event
less than 8%), calculated on the basis of the actual number of days elapsed over
365, from the date such principal or interest was due to the date of payment.
The Payor shall have the right at any time and from time to time on any
business day to prepay the principal amount of this Note, together with accrued
and unpaid interest thereon, in whole or in part, without penalty or premium,
upon at least three business days' prior written notice to the Holder hereof,
such notice to specify the prepayment date and the principal amount hereof to be
prepaid. In the event the Payor decides not to so prepay this Note in accordance
with any such notice delivered to the Holder hereof, the Payor shall so notify
the Holder hereof, not less than two business days before such prepayment would
otherwise have been made.
This Promissory Note is subject to the terms of the CSK Auto
Corporation 2000 Senior Executive Stock Loan Plan (the "Plan") and is secured by
that certain Stock Pledge Agreement, dated as of even date herewith, between the
Holder and the Payor (the "Stock Pledge Agreement").
In case of the happening of any of the following events ("Events of
Default"):
(i) default shall be made in the payment of the principal of
or interest on this Note when and as the same shall become due and
payable, whether at the due date thereof or at a date fixed for
prepayment thereof or otherwise; provided, however, that in
<PAGE> 2
the case of a failure to make an interest payment an Event of Default
shall not occur until such interest remains unpaid for 10 days following
notice from the Holder to the Payor that such interest payment is in
default;
(ii) a breach of any covenant contained in this Note, other
than the covenant to pay the principal of and interest on this Note,
which breach shall continue unremedied for thirty days after written
notice by the Holder hereof;
(iii) the Payor shall (a) voluntarily commence any proceeding
or file any petition seeking relief under Title 11 of the United States
Code or any other Federal or state bankruptcy, insolvency, liquidation
or similar law, (b) consent to the institution of, or fail to
controvert in a timely and appropriate manner, any such proceeding or
the filing of any such petition, (c) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator or similar
official for him or for a substantial part of his property, (d) file an
answer admitting the material allegations of a petition filed against
him in any such proceeding, (e) make a general assignment for the
benefit of creditors or (f) become unable, admit in writing his
inability or fail generally to pay his debts as they become due;
(iv) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent
jurisdiction seeking (a) relief in respect of the Payor, or of a
substantial part of the property of the Payor, under Title 11 of the
United States Code or any other Federal or state bankruptcy,
insolvency, receivership or similar law or (b) the appointment of a
receiver, trustee, custodian, sequestrator or similar official for the
Payor or for a substantial part of the property of the Payor; and such
proceeding or petition shall continue undismissed for 60 days or an
order or decree approving or ordering any of the foregoing shall
continue unstayed and in effect for 60 days;
(v) the Payor shall not deliver to the Secured Party (as
defined in the Pledge Agreement) within 15 days of the date hereof all
certificates or instruments representing or evidencing the Pledged
Shares (as defined in the Pledge Agreement), or not deliver to the
Secured Party within 10 days of the acquisition thereof by the Payor
all certificates and instruments representing or evidencing securities
acquired by the Payor after the date hereof in substitution for or with
respect to the Pledged Shares and constituting Pledged Collateral (as
defined in the Pledge Agreement), all of which certificates or
instruments shall be in suitable form for transfer by delivery, or
shall be accompanied by duly executed instruments of transfer or
assignment in blank, all in form and substance satisfactory to the
Secured Party;
(vi) an Event of Default (as defined in the Stock Pledge
Agreement) shall have occurred under the Stock Pledge Agreement; or
(vii) Payor shall, for any reason, cease to be an employee of
Holder or any of its subsidiaries and the date set for repayment of a
Loan (as defined in the Plan) under Section 5(c) of the Plan shall have
passed without the Loan and all accrued interest thereon having been
repaid in full;
2
<PAGE> 3
then, in any such event (other than an event described in paragraph
(iii) or (iv) above), the Holder hereof may declare the principal amount of this
Note then outstanding to be forthwith due and payable, whereupon the principal
hereof, together with accrued and unpaid interest thereon, shall become
forthwith due and payable both as to principal and interest, without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived by the Payor (to the extent permitted by law), anything
contained herein to the contrary notwithstanding; and, in any event described in
paragraph (iii) or (iv) above, the principal amount of this Note, together with
accrued and unpaid interest thereon, shall automatically become due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Payor.
In addition, in the event that any cash dividend or distribution is
paid by the Holder with respect to the Pledged Shares, the Payor shall make a
mandatory prepayment with respect to this Note equal to the amount of such
dividend or distribution, which shall be applied first to accrued but unpaid
interest under this Note, then to principal.
If any payment under this Note is not made when due, whether at
maturity or by acceleration, Payor shall pay all costs of collection whether or
not suit is filed hereon, on the Stock Pledge Agreement or otherwise, including,
but not limited to, reasonable attorneys' fees and all expenses incurred in
connection with the protection or realization of any collateral.
Payor hereby certifies and declares that all acts, conditions and
things required to be done and performed and to have happened precedent to the
creation and issuance of this Note, and to constitute this Note the legal, valid
and binding obligation of Payor, enforceable in accordance with the terms
hereof, have been done and performed and happened in due and strict compliance
with all applicable laws.
The Payor hereby waives (to the extent permitted by law) diligence,
presentment, demand, protest and notice of any kind whatsoever except as
expressly required herein. The nonexercise by the Holder of any of its rights
hereunder or under the Stock Pledge Agreement in any particular instance shall
not constitute a waiver thereof in that or any subsequent instance. The Holder
shall at all times have the right to proceed against any portion of the security
held herefor in such order and in such manner as the Holder may select, without
waiving any rights with respect to any other security. No delay or omission on
the part of the Holder in exercising any right hereunder or under the Stock
Pledge Agreement or other agreement shall operate as a waiver of such right or
of any other right under this Note.
All prepayment of the principal hereof and interest hereon and the
respective dates thereof shall be endorsed by the Holder hereof on the schedule
attached here to and made a part hereof, or on a continuation thereof which
shall be attached hereto and made a part hereof; provided, however, that the
failure of the Holder hereof to make such a notation or any error in such a
notation shall not affect the obligations of the Payor under this Note.
This Note may be assigned, pledged, hypothecated or otherwise
transferred by the Holder hereof.
3
<PAGE> 4
Any notice to be given hereunder shall be in writing and shall be
deemed to have been given (i) when presented personally or (ii) three business
days after being deposited in a regularly maintained receptacle for the United
States Postal Service, postage prepaid, registered or certified, return receipt
requested addressed to the respective party at the address specified herein or
such other address as any party may from time to time designate by written
notice to the other as herein required.
The Payor irrevocably submits to the jurisdiction of the federal and
State courts sitting in Phoenix, Arizona, for the purposes of any suit, action
or other proceeding arising out of or relating to this Note. Payor expressly
waives any objection which he may have now or hereafter to the laying of the
venue or to the jurisdiction of any such suit, action or proceedings.
All agreements between Payor and the Holder hereof are expressly
limited so that in no contingency or event whatsoever, whether by. reason of
advancement of the proceeds of the loan evidenced hereby, acceleration of
maturity of the unpaid principal balance hereof, or otherwise, shall the
interest contracted for, charged or received by the Holder exceed the maximum
amount permissible under applicable law. If, from any circumstance whatsoever,
interest would otherwise be payable to the Holder hereof in excess of the
maximum lawful amount, then ipso facto, the interest payable to the Holder shall
be reduced to the maximum amount permitted under applicable law, and the amount
of interest for any subsequent period, to the extent less than that permitted by
applicable law, shall to that extent be increased by the amount of such
reduction. If from any circumstance the Holder hereof shall ever receive
anything of value deemed interest by applicable law in excess of the maximum
lawful amount, an amount equal to any excessive interest shall be applied to the
reduction of the unpaid principal balance due hereunder and not to the payment
of interest, or if such excessive interest exceeds the unpaid principal balance
due hereunder, such excess shall be refunded to Payor. All interest paid or
agreed to be paid to the Holder hereof shall, to the extent permitted by
applicable law, be amortized, prorated, allocated or spread throughout the full
period until payment in full of the principal balance due hereunder (including
the period of any renewal or extension) so that interest thereon for such period
shall not exceed the maximum amount permitted by applicable law. The provisions
of this paragraph shall control all agreements between the Payor and the Holder
hereof.
Any provision of this Note that is declared invalid, illegal or
unenforceable in any jurisdiction shall not affect in any way the remaining
provisions hereof in such jurisdiction or render that or any other provision of
this Note invalid, illegal or unenforceable in any other jurisdiction.
This Note shall be governed and construed, and all rights and
obligation hereunder shall be determined, in accordance with the laws of the
State of Delaware.
4
<PAGE> 5
Executed and delivered by the undersigned this ____ day of _______ __,
20__, in the State of Arizona.
Address for notices Payor
to the Payor:
- ------------------------------- -------------------------------
- -------------------------------
5
<PAGE> 1
Exhibit 4.04
FORM OF
STOCK PLEDGE AGREEMENT
This Stock Pledge Agreement (the "Agreement") is entered into as of
__________,20__ by and between ______________ ("Pledgor") and CSK AUTO
CORPORATION, a Delaware corporation ("Secured Party").
W I T N E S S E T H
WHEREAS, the Secured Party has agreed to make a loan to Pledgor
pursuant to the terms of the CSK Auto Corporation 2000 Senior Executive Stock
Loan Plan (the "Plan") in the aggregate amount of $_________ and, as evidence
thereof, Pledgor has executed and delivered to Secured Party a Promissory Note
dated as of even date herewith (the "Note");
WHEREAS, Pledgor will utilize the funds lent to Pledgor to purchase
_____ shares (the "Pledged Shares") of the common stock, par value $0.01 per
share, of Secured Party; and
WHEREAS, as a condition to the making of the loan evidenced by the
Note, the parties contemplate that the Pledged Shares will be pledged and
delivered by the Pledgor to the Secured Party, with duly endorsed instruments of
transfer, as security for such loan.
NOW, THEREFORE, in consideration of the mutual covenants, conditions
and provisions contained herein and in the Note and for other good and valuable
consideration, the parties hereto agree as follows:
Section 1. Definitions. Capitalized terms used herein without
definition, which are defined in or by reference in the Note, shall have the
respective meanings specified therein.
Section 2. Pledge. Pledgor hereby conveys, pledges, assigns and
transfers to Secured Party, and hereby grants to the Secured Party, a valid,
first priority security interest (the "Security Interest") in Pledgor's right,
title, interest in and to the following (the "Pledged Collateral"):
(a) the Pledged Shares and the certificates representing the Pledged
Shares, all dividends, cash, securities, instruments and other property from
time to time paid, payable or otherwise distributed in respect of or in exchange
for all or any part of the Pledged Shares and all proceeds thereof; and
(b) all securities issued by Secured Party, or any successor thereto,
from time to time acquired by Pledgor in substitution for or with respect to any
of the securities described in Section 2(a) above, including without limitation
all stock of Secured Party, all securities convertible into or exchangeable for
such stock and all options, warrants and other rights to purchase such stock,
all certificates and instruments representing such securities, together with the
interest coupons (if any) attached thereto, and all dividends, cash, securities,
instruments and other property from time to time paid, payable or otherwise
distributed in respect of or in exchange for any or all of such securities and
all proceeds thereof.
<PAGE> 2
Section 3. Secured Obligations. The Security Interest shall secure for
the benefit of the Secured Party the following (collectively, the "Secured
Obligations"):
(a) payment and performance of each and every obligation, covenant and
agreement of the Pledgor now or hereafter existing contained herein or in the
Note, whether for principal, interest, fees, expenses or otherwise, and any
amendments or supplements thereto, extensions or renewals thereof or
replacements therefor; and
(b) payment of all sums advanced upon an Event of Default or in
accordance herewith by Secured Party to protect the Pledged Collateral, with
interest thereon at the rate equal to the highest interest rate under the Note
as in effect from time to time;
in each case whether direct or indirect, joint or several, absolute or
contingent, liquidated or unliquidated, now or hereafter existing, renewed or
restructured, whether or not from time to time decreased or extinguished (except
as provided in Section 17 hereof) and later increased, created or incurred, and
including all indebtedness, obligations and liabilities of the Pledgor under any
instrument now or hereafter evidencing or securing any of the foregoing.
Section 4. Delivery of Collateral; Issuance of Additional Shares.
(a) All certificates or instruments representing or evidencing the
Pledged Shares shall be delivered to the Secured Party on the date hereof (or if
such certificates or instruments are not in the possession of the Pledgor,
immediately upon the acquisition thereof by Pledgor, but in no event later than
fifteen (15) days after the date hereof), and shall be held by the Secured Party
pursuant hereto at all times hereafter, and all certificates and instruments
representing or evidencing securities acquired by the Pledgor after the date
hereof and constituting Pledged Collateral hereunder shall be delivered to the
Secured Party immediately upon, and held by the Secured Party at all times
after, acquisition thereof by Pledgor (but in no event later than ten (10) days
after the date of such acquisition). All such certificates or instruments shall
be in suitable form for transfer by delivery, or shall be accompanied by duly
executed instruments of transfer or assignment in blank, all in form and
substance satisfactory to the Secured Party.
(b) Upon the occurrence and during the continuance of an Event of
Default hereunder, the Secured Party shall have the right, at any time in its
discretion, to transfer to or to register on the books of Secured Party in the
name of the Secured Party or any of its nominees any or all of the Pledged
Collateral (with, in the discretion of the Secured Party, such transfer or
registration expressly empowering the Secured Party to vote shares of stock
included in the Pledged Collateral), subject only to the revocable rights
specified in Section 7(a). In addition, the Secured Party shall have the right
at any time to exchange certificates or instruments representing or evidencing
Pledged Collateral for certificates or instruments of smaller or larger
denominations.
Section 5. Representations and Warranties; Certain Covenants.
(a) Pledgor hereby represents and warrants that Pledgor is the legal
and equitable owner of the Pledged Collateral free and clear of all liens,
charges, encumbrances and security interests of every kind and nature, other
than Permitted Encumbrances (as defined below) and
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<PAGE> 3
hereby agrees to be bound by the terms of the Plan as if such Plan were made a
part of this Agreement.
(b) Pledgor covenants that:
(i) except for the Security Interest granted hereby and the
security interests permitted under or otherwise contemplated hereby
("Permitted Encumbrances"), Pledgor will not create, assume, incur or
permit to exist or to be created, assumed or incurred, directly, or
indirectly, any lien of any kind on, or any repurchase agreement with
respect to, the Pledged Collateral, and will defend the Pledged
Collateral against, and take such action as is necessary to remove, any
such lien, and will defend the Security Interest against the claims and
demands of all persons; and
(ii) Pledgor shall advise the Secured Party promptly, in
reasonable detail, of any lien or claim made or asserted against any of
the Pledged Collateral; and of the occurrence of any other event which
would have a material adverse effect on the enforceability of the
Security Interest created hereunder.
Section 6. Further Assurances. Pledgor agrees that at any time and from
time to time, at the expense of Pledgor, Pledgor will promptly execute and
deliver all further instruments and documents, and take all further action that
the Secured Party may reasonably request, in order to perfect and protect the
Security Interest granted or intended to be granted hereby or to enable the
Secured Party to exercise and enforce its rights and remedies hereunder with
respect to any Pledged Collateral.
Section 7. Voting Rights; Dividends; Etc.
(a) So long as no Event of Default hereunder shall have occurred and be
continuing:
(i) Pledgor shall be entitled to exercise any and all voting
and other consensual rights (if any) pertaining to the Pledged
Collateral or any part thereof for any purpose not prohibited by the
terms of this Agreement; and
(ii) except as otherwise provided in Sections 4(b) and 7(c)
hereof or Section 6.2 of the Plan, Pledgor shall be entitled to receive
and retain any dividends, cash and other property from time to time
paid, payable or otherwise distributed in respect of the Pledged
Collateral.
(b) Pledgor hereby irrevocably appoints the Secured Party as Pledgor's
proxyholder with respect to the Pledged Shares and any other voting securities
forming a part of the Pledged Collateral with full power and authority to vote
such Pledged Shares and other voting securities and to otherwise act with
respect to such Pledged Shares or other voting securities on behalf of such
Pledgor, provided that this proxy shall only be operative upon the occurrence of
an Event of Default and so long as such Event of Default continues. Such proxy
shall be irrevocable for so long as any of the Secured Obligations remain in
existence. Pledgor shall execute and deliver (or cause to be executed and
delivered) to the Secured Party all proxies and other instruments as the Secured
Party may reasonably request for the purpose of enabling the Secured Party to
exercise the voting and other rights which it is entitled to exercise pursuant
to this Section 7(b); and
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<PAGE> 4
(c) Upon the occurrence and during the continuance of an Event of
Default hereunder, all rights of the Pledgor to receive and retain dividends,
cash and other property, which they would otherwise be authorized to receive and
retain pursuant to Section 7(a)(ii), shall cease and all such rights shall
thereupon be vested in the Secured Party, who shall thereupon have the sole
right to receive and hold as Pledged Collateral such dividends, cash and other
property. All cash and other property received by Pledgor contrary to the
provisions of this Section 7(c) shall be received in trust for the benefit of
the Secured Party, shall be segregated from other property or funds of Pledgor
and shall be forthwith delivered to the Secured Party as Pledged Collateral in
the same form as so received (with any necessary transfer documents or
endorsements).
Section 8. Restrictions on Transfer; Dispositions and Release of
Collateral.
(a) Pledgor covenants that Pledgor shall not enter into or perform any
agreement to sell, lease, transfer or otherwise dispose of all or any part of
the Pledged Collateral unless the Security Interest in such Pledged Collateral
shall have been released prior to the time such agreement is entered into.
(b) Notwithstanding Section 8(a) above, except as required by this
Pledge Agreement, the Pledgor shall not sell, assign, pledge, hypothecate or
transfer in any way (other than by the Pledgor's will or the laws of descent and
distribution) the Pledged Collateral prior to the first anniversary of
the date that the Pledged Shares were acquired by the Pledgor.
Section 9. Reasonable Care. The Secured Party shall be deemed to have
exercised reasonable care in the custody and preservation of the Pledged
Collateral in its possession if the Pledged Collateral is accorded treatment
substantially equal to that which the Secured Party accords its own property, it
being understood that the Secured Party shall have no responsibility for (a)
ascertaining or taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relative to any Pledged Collateral, whether
or not the Secured Party has or is deemed to have knowledge of such matters,
unless reasonably requested in writing to do so by Pledgor, or (b) taking any
necessary steps (other than steps taken in accordance with the standard of care
set forth above to maintain possession of the Pledged Collateral) to preserve
rights against any parties with respect to any Pledged Collateral.
Section 10. Secured Party Appointed Attorney-in-Fact. Pledgor hereby
irrevocably appoints the Secured Party Pledgor's attorney-in-fact, with full
authority in the place and stead of Pledgor and in Pledgor's name or otherwise,
if Secured Party elects, upon an Event of Default, to take any action and to
execute any instrument which the Secured Party may deem reasonably necessary or
advisable to accomplish the purposes of this Agreement, including, without
limitation, to receive, endorse and collect all instruments made payable to
Pledgor representing any dividend, interest payment or other distribution in
respect of the Pledged Collateral or any part thereof and to give full discharge
for the same, when and to the extent permitted by this Agreement.
Section 11. Secured Party May Perform. Upon the occurrence and during
the continuance of an Event of Default hereunder (including an Event of Default
resulting from a failure to perform any agreement
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<PAGE> 5
contained herein), if Pledgor fails to perform any agreement contained herein,
the Secured Party may itself perform, or cause performance of, such agreement,
and the expenses of the Secured Party incurred in connection therewith shall be
payable by Pledgor.
Section 12. Events of Default; Remedies.
(a) The occurrence of any of the following events shall constitute an
event of default ("Event of Default") hereunder:
(i) Any Event of Default (as defined in the Note) shall have
occurred, which Event of Default shall not be waived or, if capable of
being cured, shall not be cured within the respective periods provided
in such Note;
(ii) Pledgor fails, breaches or defaults in the payment or
performance of any of the obligations, covenants or conditions
contained in this Agreement or specified in the Plan; or
(iii) Any statement, representation or warranty made or
furnished by Pledgor in connection with this Agreement or any other
writing delivered to the Secured Party in connection with this
Agreement and the transactions contemplated herein is false, misleading
or erroneous in any material respect when made.
(b) Upon or after the occurrence of an Event of Default:
(i) The Secured Party may exercise (in compliance with all
applicable securities laws) in respect of the Pledged Collateral, in
addition to other rights, powers and remedies provided for herein or
otherwise available to it, all the rights, powers and remedies of a
secured party after default under the Uniform Commercial Code in force
and effect in each state in which such rights, powers and remedies are
asserted, all of which rights, powers and remedies shall be cumulative
and not exclusive, to the extent permitted by applicable law.
(ii) The Secured Party may also, without notice except as
specified below, sell the Pledged Collateral or any part thereof in one
or more parcels at public or private sale, at any exchange, over the
counter or at any of the Secured Party's offices or elsewhere, for
cash, on credit or for future delivery, and at such price or prices and
upon such other terms as may be commercially reasonable or otherwise in
such manner as necessary to comply with applicable federal and state
securities laws. Pledgor agrees that the Secured Party shall not be
required to register or qualify any of the Pledged Collateral under
applicable state or federal securities laws in connection with any such
sale if the sale is effected in a manner that complies with all
applicable federal and state securities laws. The Secured Party shall
be authorized at any such sale (if it deems it advisable to do so) to
restrict the prospective bidders or purchasers to persons who will
represent and agree that they are purchasing the Pledged Collateral for
their own account, for investment and not with a view to the
distribution thereof. Upon consummation of any such sale the Secured
Party shall have the right to assign, transfer and deliver to the
purchaser or purchasers at any such sale, and such purchasers shall
hold, the property sold absolutely free from any claim or right on the
part of the Pledgor, and Pledgor hereby waives (to the
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extent permitted by law) all rights of redemption, stay or appraisal
which he now has or may at any time in the future have under applicable
law now existing or hereafter enacted.
(iii) The Secured Party shall give the Pledgor at least ten
(10) days' (or such longer period as shall be specified by applicable
law) notice of the time and place of any public sale or the time after
which any private sale is to be made, which Pledgor agrees shall
constitute commercially reasonable notification. At any such public
sale and (to the extent permitted by law) at any such private sale, the
Secured Party may bid, in whole or in part, in the form of cancellation
of Secured Obligations, and the Secured Party may purchase the whole or
any part of the Pledged Collateral. The Secured Party shall not be
obligated to make any sale of Pledged Collateral regardless of notice
of sale having been given. The Secured Party may adjourn any public or
private sale from time to time by announcement at the time and place
fixed therefor, and such sale may, without further notice, be made at
the time and place to which it was so adjourned.
(iv) If a sale of all or any part of the Pledged Collateral is
made on credit or for future delivery, the Pledged Collateral so sold
may be retained by the Secured Party until the sale price is paid by
the purchaser or purchasers thereof, but the Secured Party shall not
incur any liability in case any such purchaser or purchasers shall fail
to take up and pay for the Pledged Collateral so sold and, in case of
any such failure, such Pledged Collateral may be sold again upon like
notice. Pledgor agrees to the maximum extent permitted by applicable
law that any sale of the Pledged Collateral conducted by the Secured
Party in accordance with the foregoing provisions of this Section shall
be deemed to be a commercially reasonable sale under applicable law.
(v) As an alternative to exercising the power of sale herein
conferred upon it, the Secured Party may proceed by a suit or suits at
law or in equity to foreclose the Security Interest and to sell the
Pledged Collateral, or any portion thereof, pursuant to a judgment or
decree of a court or courts of competent jurisdiction.
(vi) Any cash held by the Secured Party as Pledged Collateral
and all cash proceeds received by the Secured Party in respect of any
sale of, collection from, or other realization upon all or any part of
the Pledged Collateral shall be applied as follows: (a) first, to the
payment to the Secured Party of the costs and expenses of retaking,
holding and preparing for sale of the Pledged Collateral and any other
fees, expenses, claims, demands, losses, judgments, damages and
liabilities payable to the Secured Party pursuant to any provision
hereof; and (b) second, in accordance with the provisions of the Note.
(vii) Any surplus of such cash or cash proceeds held by the
Secured Party and remaining after payment in full of all the Secured
Obligations shall be reassigned and redelivered as provided in Section
17 hereof.
Section 13. Security Interest Absolute. All rights of the Secured Party
hereunder, the Security Interest, and all obligations of the Pledgor hereunder,
shall be absolute and unconditional irrespective of:
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(a) any lack of validity or enforceability of the Note, any agreement
with respect to any of the Secured Obligations, or any other agreement or
instrument relating to any of the foregoing;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Secured Obligations, or any other amendment or
waiver of or any consent to and departure from the Note or any other agreement
or instrument;
(c) any exchange, release or non-perfection of any other collateral, or
any release of, amendment to, waiver of, consent to or departure from any
guaranty, for all or any of the Secured Obligations; and
(d) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, Pledgor in respect of the Secured Obligations
or in respect of this Agreement.
Section 14. Notices. All notices, demands, requests, and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been given (i) when presented personally or (ii) three (3)
business days after being deposited in a regularly maintained receptacle for the
United States Postal Service, postage prepaid, registered or certified, return
receipt requested, addressed to the respective party, as the case may be, at the
following address, or such other address as any party may from time to time
designate by written notice to the others as herein required.
If to Secured Party: CSK Auto Corporation
645 E. Missouri Avenue
Phoenix, Arizona 85012
Telecopy: ________________________
If to Pledgor: ________________________
________________________
________________________
Telecopy: ________________________
Section 15. Amendments and Waivers. This Agreement may only be amended
by a document signed by Secured Party and the Pledgor. No waiver of any
provision of this Agreement nor consent by Secured Party to any departure by
Pledgor therefrom shall in any event be effective unless the same shall be in
writing and signed by Secured Party. Any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given. No failure on the part of Secured Party to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof (except as
provided above) nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right.
Section 16. Election of Remedies. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law. Secured Party
shall have all of the rights and remedies granted herein and available at law or
in equity, and these same rights and remedies may be pursued separately,
successively or concurrently against Pledgor, at the sole discretion of Secured
Party.
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Section 17. Release of Pledged Collateral and Termination. Unless an
Event of Default shall have occurred and be continuing, the Pledged Collateral
shall be released from the pledge of this Agreement, and the Secured Party shall
reassign and redeliver (or cause to be reassigned and redelivered) to Pledgor,
or, subject to compliance with applicable law, to each person or persons as
Pledgor shall designate or to whoever may be lawfully entitled to receive such
surplus, against receipt, certificates representing the Pledged Shares (if any)
or such Pledged Collateral other than Pledged Shares (if any) as shall not have
been sold or otherwise applied by the Secured Party pursuant to the terms hereof
and shall still be held by it hereunder, together with appropriate instruments
of reassignment and release as follows:
(a) promptly after payment of any partial prepayment in respect of the
Note pursuant to Section 6.2(c) of the Plan, that number of Pledged Shares
released pursuant to Section 6.2(c) of the Plan, and
(b) upon payment in full of the principal of and interest on the Note
and any other amount due hereunder, the Secured Party shall transfer or reassign
and redeliver all remaining Pledged Collateral to Pledgor.
Any transfer, redelivery or reassignment provided for above shall be without
recourse upon or warranty by the Secured Party (other than a warranty that the
Secured Party has not assigned its rights and interests hereunder to any other
person) and at the expense of Pledgor.
Section 18. Continuing Security Interest; Assignments. This Agreement
shall create a continuing security interest in the Pledged Collateral and shall
(a) remain in full force and effect until termination as provided in Section 17,
(b) be binding upon the Pledgor, the Secured Party and their respective
successors and assigns, and (c) inure, together with the rights, powers and
remedies of the Pledgor and the Secured Party hereunder, to the benefit of the
Pledgor and the Secured Party and their respective successors, transferees and
assigns, as the case may be. Notwithstanding the foregoing clause (b), Pledgor
shall not be permitted to assign this Agreement or any interest herein.
Section 19. Applicable Law and Jurisdiction.
(a) The parties hereto expressly acknowledge and agree that this
Agreement shall be governed by and construed in accordance with the laws of the
State of Delaware. Pledgor hereby expressly and irrevocably agrees and consents
that any suit, action or proceeding arising out of or relating to this Agreement
and the transactions contemplated herein may be instituted by Secured Party in
any State or Federal court sitting in Phoenix, Arizona and, by the execution and
delivery of this Agreement, Pledgor expressly waives any objection which he may
have now or hereafter to the laying of the venue or to the jurisdiction of any
such suit, action or proceeding, and irrevocably submits generally and
unconditionally to the jurisdiction of any such court in any such suit, action
or proceeding.
(b) Nothing contained in subsection (a) hereof shall preclude Secured
Party from bringing any suit, action or proceeding arising out of or relating to
this Agreement or the Note in the courts of any place where Pledgor or any of
Pledgor's property or assets may be found or located. To the extent permitted by
the applicable laws of any such jurisdiction, Pledgor hereby
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irrevocably submits to the jurisdiction of any such court and expressly waives,
in respect of any such suit, action or proceeding, the jurisdiction of any court
or courts which now or hereafter, by reason of his present, or future domicile,
or otherwise, may be available to him. PLEDGOR AND SECURED PARTY HEREBY WAIVE
THE RIGHT TO A TRIAL BY JURY.
Section 20. Severability. Any provision of this Agreement which is
prohibited, unenforceable or not authorized in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or non-authorization, without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of such
provision in any other jurisdiction.
Section 21. Number and Gender. Whenever used herein, the singular
number shall include the plural and the plural the singular, and the use of any
gender shall be applicable to all genders.
Section 22. Captions. The captions, headings, and arrangements used in
this Agreement are for convenience only and do not and shall not be deemed to
affect, limit, amplify or modify the terms and provisions hereof.
Section 23. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized, as of the date first above written.
"PLEDGOR"
_______________________________
"SECURED PARTY"
CSK AUTO CORPORATION
By:________________________
Name: ________________________
Title: ________________________
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CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated April 2, 1999 relating to the
financial statements, which appears in CSK Auto Corporation's Annual Report on
Form 10-K for the year ended January 31, 1999. We also consent to the
incorporation by reference of our report dated April 2, 1999 relating to the
financial statement schedules, which appears in such Annual Report on Form
10-K.
/s/ PricewaterhouseCoopers LLP
Phoenix, AZ
February 15, 2000
