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As filed with the Securities and Exchange Commission on November 17, 1997
Registration No. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
THE PEP BOYS - MANNY, MOE & JACK
--------------------------------
(Exact name of issuer as specified in its charter)
Pennsylvania 23-0962915
- -------------------------------- ---------------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
3111 West Allegheny Avenue
Philadelphia, Pennsylvania 19132
--------------------------------
(Address of Principal Executive Offices)
The Pep Boys Savings Plan - Puerto Rico
---------------------------------------
(Full Title of the Plan)
Michael J. Holden
Executive Vice President
and Chief Financial Officer
The Pep Boys - Manny, Moe & Jack
3111 West Allegheny Avenue
Philadelphia, Pennsylvania 19132
(215) 229-9000
------------------------------------
(Name, address and telephone number,
including area code, of agent for service)
COPY TO:
Daniel D. Rubino, Esq.
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
(212) 821-8000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
Title of Securities Amount to be Proposed maximum Proposed maximum Amount of
to be Registered registered (1) offering price aggregate offering registration
per share (2) price (2) fee
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$1.00 per share (including
attached Common Stock
Purchase Rights) 200,000 $25.375 $5,075,000 $1,537.88
</TABLE>
(1) Represents 200,000 shares of common stock of The Pep Boys - Manny, Moe &
Jack (the "Common Stock") issuable pursuant to The Pep Boys Savings Plan -
Puerto Rico (the "Plan") as well as attached Common Stock Purchase Rights.
Prior to the occurrence of certain events, the Common Stock Purchase Rights
will not be evidenced separately from shares of Common Stock. Upon the
occurrence of such events, separate Rights certificates will be issued
representing one Right for each share of Common Stock. In addition,
pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the
"Securities Act"),
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this registration statement on Form S-8 (the "Registration Statement") also
covers an indeterminate amount of interests to be offered or sold pursuant
to the Plan.
(2) Estimated solely for calculating the amount of the registration fee,
pursuant to paragraphs (c) and (h) of Rule 457 under the Securities Act,
based upon the average of the high and low prices of the Common Stock as
reported by the New York Stock Exchange, Inc. on November 12, 1997.
<PAGE>
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, filed with the Securities and Exchange
Commission (the "Commission") by The Pep Boys - Manny, Moe & Jack, a
Pennsylvania corporation (the "Company"), are incorporated by reference into the
Registration Statement:
(a) The Company's annual report on Form 10-K for the fiscal year ended
February 1, 1997 (File No. 103381), filed pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
(b) The Company's quarterly reports on Form 10-Q for the quarter ended
May 3, 1997 (File No. 103381) and the quarter ended August 2, 1997
(File No. 103381), filed pursuant to the Exchange Act.
(c) The Company's current report on Form 8-K (File No. 103381) dated
July 10, 1997, filed pursuant to the Exchange Act.
(d) The description of the Company's Common Stock, contained in the
Registration Statement on Form 8-A dated June 10, 1983 (File No.
103381) filed pursuant to the Exchange Act, including all amendments
and reports filed for the purpose of amending such description, and the
description of the Company's Common Stock Purchase Rights contained in
the Registration Statement on Form 8-A dated December 21, 1987 (File
No. 103381), as amended by the Company's Form 8 dated June 30, 1989
(File No. 103381), each filed pursuant to the Exchange Act.
In addition, all documents filed by the Company and the Plan with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
subsequent to the date of this Registration Statement and prior to the filing of
a post-effective amendment which indicates that all the securities offered
hereby have been sold or which deregisters all 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 the filing of such documents with the
Commission. Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded
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for purposes hereof to the extent that a statement contained herein (or in any
other subsequently filed document which also is incorporated by reference
herein) modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed to constitute a part hereof except as so modified
or superseded.
Item 4. DESCRIPTION OF SECURITIES
Inapplicable
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Inapplicable
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Sections 1741 through 1750 of Subchapter D, Chapter 17, of the
Pennsylvania Business Corporation Laws (the "BCL") contain provisions for
mandatory and discretionary indemnification of a corporation's directors,
officers and other personnel, and related matters.
Under Section 1741, subject to certain limitations, a corporation has
the power to indemnify directors and officers under certain prescribed
circumstances against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred in connection with
an action or proceeding, whether civil, criminal, administrative or
investigative (other than derivative actions), to which any of them is a party
or is threatened to be made a party by reason of his being a representative of
the corporation or serving at the request of the corporation as a representative
of another corporation, partnership, joint venture, trust or other enterprise,
if he acted in good faith and in a manner he reasonably believed to be in, or
not opposed to, the best interests of the corporation and, with respect to any
criminal proceeding, had no reasonable cause to believe his conduct was
unlawful.
Section 1742 permits indemnification in derivative actions if the
appropriate standard of conduct is met, except in respect of any claim, issue or
matter as to which the person has been adjudged to be liable to the corporation
unless and only to the extent that the proper court determines upon application
2
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that, despite the adjudication of liability but in view of all the circumstances
of the case, the person is fairly and reasonably entitled to indemnity for the
expenses that the court deems proper.
Under Section 1743, indemnification is mandatory to the extent that the
officer or director has been successful on the merits or otherwise in defense of
any action or proceeding referred to in Section 1741 or 1742.
Section 1744 provides that, unless ordered by a court, any
indemnification under Section 1741 or 1742 shall be made by the corporation only
as authorized in the specific case upon a determination that the representative
met the applicable standard of conduct and that such determination will be made
(i) by the board of directors by a majority vote of a quorum of directors not
parties to the action or proceeding; (ii) if a quorum is not obtainable, or if
obtainable and a majority of disinterested directors so directs, by independent
legal counsel; or (iii) by the shareholders.
Section 1745 provides that expenses incurred by an officer or director
in defending an action or proceeding may be paid by the corporation in advance
of the final disposition of such action or proceeding upon receipt of an
undertaking by or on behalf of such person to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
corporation.
Section 1746 provides generally that the indemnification and
advancement of expenses provided by Subchapter 17D of the BCL (i) will not be
deemed exclusive of any other rights to which a person seeking indemnification
or advancement of expenses may be entitled under any bylaw, agreement, vote of
shareholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding that
office, and (ii) may not be made in any case where the act or failure to act
giving rise to the claim for indemnification is determined by a court to have
constituted willful misconduct or recklessness.
Section 1747 grants a corporation the power to purchase and maintain
insurance on behalf of any director or officer against any liability incurred by
him in his capacity as officer or director, whether or not the corporation would
have the power
3
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to indemnify him against that liability under Subchapter 17D of the BCL.
Sections 1748 and 1749 extend the indemnification and advancement of
expenses provisions contained in Subchapter 17D of the BCL to successor
corporations in fundamental corporate changes and to representatives serving as
fiduciaries of employee benefit plans.
Section 1750 provides that the indemnification and advancement of
expenses provided by, or granted pursuant to, Subchapter 17D of the BCL shall,
unless otherwise provided when authorized or ratified, continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs and personal representative of such person.
Article VII of the Company's Bylaws provides in general that the
Company shall indemnify its officers and directors to the fullest extent
permitted by law. The Bylaws further provide that any alteration, amendment, or
repeal of the indemnification provisions, if not approved by 80% of the Board of
Directors, requires the affirmative vote of shareholders owning at least 80% of
the outstanding shares entitled to vote.
The Company maintains liability insurance on behalf of its directors
and officers.
See Section 6 of the Underwriting Agreement Basic Provisions, pursuant
to which the underwriter agrees to indemnify the Company, its directors, certain
officers and controlling persons against certain liabilities, including
liabilities under the Securities Act.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable
Item 8. EXHIBITS
Exhibit No. Description of Exhibits
- ----------- -----------------------
4.1 Rights Agreement, dated as of December 17, 1987, between the
Company and The Philadelphia National Bank, including the form
of Right Certificate and Summary of Rights to Purchase Common
Stock
4
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(incorporated by reference to Exhibit 1 of the Company's
Current Report on Form 8-K dated December 17, 1987 (File No.
103381))
4.2 Amendment to Rights Agreement, dated as of June 6, 1989,
between the Company and The Philadelphia National Bank
(incorporated by reference to Exhibit 1 to the Company's
Current Report on Form 8-K dated June 6, 1989 (File No.
103381))
5 Opinion of Willkie Farr & Gallagher, counsel to the
Company, as to the legality of the shares being registered and
the Plan's compliance with the requirements of the Employee
Retirement Income Security Act of 1974, as amended
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Willkie Farr & Gallagher (contained in Exhibit 5)
24 Power of Attorney (reference is made to the signature page)
Item 9. UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to the 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, represent
a fundamental change in the information set forth in the
Registration Statement;
5
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(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 (a)(i) and (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 the 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 registrant 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
each filing of the 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 Commission such indemnification is against
public policy as expressed in the Securities 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
6
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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 Securities Act and will be governed by the final
adjudication of such issue.
7
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Company
certifies that it has reasonable grounds to believe that it meets all of 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 Philadelphia, Commonwealth of Pennsylvania, on this
14th day of November, 1997.
THE PEP BOYS - MANNY, MOE & JACK
By: /s/ Mitchell G. Leibovitz
-------------------------
Mitchell G. Leibovitz
Chairman of the Board,
President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act, the Plan's
Committee, the administrative committee of the Plan, has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Philadelphia, Commonwealth of Pennsylvania, on
this 14th day of November, 1997.
THE PEP BOYS SAVINGS PLAN - PUERTO RICO
BY: THE PLAN'S COMMITTEE, acting on
behalf of the Plan as
Administrator
BY: /s/ Michael J. Holden
--------------------------------
Michael J. Holden
A member of the Plan's Committee
8
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POWER OF ATTORNEY
Each of the undersigned officers and directors of The Pep Boys -
Manny, Moe & Jack hereby severally constitutes and appoints Mitchell G.
Leibovitz and Michael J. Holden as the attorney-in-fact for the undersigned, in
any and all capacities, with full power of substitution, to sign any and all
pre- or post-effective amendments to this Registration Statement, any subsequent
Registration Statement for the same offering which may be filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended, and any and all pre- or
post-effective amendments thereto, and to file the same with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact 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 each said
attorney-in-fact may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons in
the capacities and on the dates indicated:
Signature Title Date
--------- ----- ----
/s/ Mitchell G. Leibovitz
- -------------------------
Mitchell G. Leibovitz Chairman of the Board, November 14, 1997
President, Chief
Executive Officer and
Director (Principal
Executive Officer)
/s/ Michael J. Holden
- ---------------------
Michael J. Holden Executive Vice President November 14, 1997
and Chief Financial
Officer (Principal
Financial and Accounting
Officer)
9
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/s/ Lennox K. Black
- -------------------
Lennox K. Black Director November 14, 1997
/s/ Bernard J. Korman
- ---------------------
Bernard J. Korman Director November 14, 1997
/s/ J. Richard Leaman, Jr.
- --------------------------
J. Richard Leaman, Jr. Director November 14, 1997
/s/ Malcolm D. Pryor
- --------------------
Malcolmn D. Pryor Director November 14, 1997
/s/ Lester Rosenfeld
- --------------------
Lester Rosenfeld Director November 14, 1997
/s/ Benjamin Strauss
- --------------------
Benjamin Strauss Director November 14, 1997
/s/ Myles H. Tanenbaum
- ----------------------
Myles H. Tanenbaum Director November 14, 1997
/s/ David V. Wachs
- ----------------------
David V. Wachs Director November 14, 1997
10
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INDEX TO EXHIBITS
Exhibit No. Description of Exhibit
- ----------- ----------------------
4.1 Rights Agreement, dated as of December 17, 1987, between
the Company and The Philadelphia National Bank, including
the form of Right Certificate and Summary of Rights to
Purchase Common Stock (incorporated by reference to
Exhibit 1 of the Company's Current Report of Form 8-K
dated December 17, 1987 (File No. 103381))
4.2 Amendment to Rights Agreement, dated as of June 6, 1989, between
the Company and The Philadelphia National Bank (incorporated by
reference to Exhibit 1 to the Company's Current Report on Form
8-K dated June 6, 1989 (File No. 103381))
5 Opinion of Willkie Farr & Gallagher, counsel to the Company, as
to the legality of the shares being registered and the Plan's
compliance with the Employee Retirement Income Security Act of
1974, as amended
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Willkie Farr & Gallagher (contained in Exhibit 5)
24 Power of Attorney (reference is made to the signature page)
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Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, NY 10022
November 14, 1997
The Pep Boys - Manny, Moe and Jack
3111 West Allegheny Avenue
Philadelphia, PA 19132
Ladies and Gentlemen:
We have acted as counsel to The Pep Boys - Manny, Moe and Jack (the "Company"),
a corporation organized under the laws of the Commonwealth of Pennsylvania, in
connection with the preparation of a Registration Statement on Form S-8 (the
"Registration Statement") relating to the offer and sale of up to 200,000 shares
of the common stock of the Company, par value $1.00 per share (the "Shares"),
issuable pursuant to the terms of The Pep Boys Savings Plan - Puerto Rico (the
"Plan") and of an indeterminate amount of interests to be offered or sold
pursuant to the Plan, all as more fully described in the Registration Statement.
We have examined copies of the Amended and Restated Certificate of Incorporation
and By-Laws of the Company, the Registration Statement, the Plan and The Pep
Boys Savings Plan - Puerto Rico Trust (the "Trust") and such other records,
amendments and documents that we have deemed necessary for the purpose of this
opinion. We have also examined such other documents, papers, statutes and
authorities as we have deemed necessary to form a basis for the opinion
hereinafter expressed. As to factual matters, we have relied upon certificates
and statements of the officers of the Company, and such other documents as we
have deemed necessary or appropriate to enable us to render the opinions
expressed below; we have not undertaken any independent investigation to
determine the existence or absence of such factual matters, but we advise you
that nothing has come to our attention which leads us to believe that such
reliance is unwarranted.
In our examination, we have assumed the accuracy of all documents and
information furnished to us, the genuineness of all documents submitted to us as
originals and the
<PAGE>
The Pep Boys - Manny, Moe & Jack
November 14, 1997
Page 2
conformity to originals of all documents submitted to us as certified, conformed
or photostatic copies thereof, as well as the genuineness of all signatures on
all such documents to us.
Based upon and subject to the foregoing, and subject to further qualifications,
assumptions and limitation set forth herein, we are of the opinion that:
1. With respect to the Shares to be originally issued, such Shares, when
duly sold, issued and paid for in accordance with the terms of the
Plan, will be legally issued, fully paid and nonassessable.
2. The written Plan and the Trust document, as amended to the date
hereof, comply with those requirements of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), that are applicable
thereto.
We express no opinion as to the compliance of the operation and administration
of the Plan and Trust with the requirements of ERISA.
We are members of the Bar of the Commonwealth of Pennsylvania and do not purport
to be experts in the laws of jurisdictions other than the Commonwealth of
Pennsylvania and the Federal laws of the United States of America.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not hereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission.
Very truly yours,
/s/ Willkie Farr & Gallagher
<PAGE>
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
The Pep Boys - Manny, Moe & Jack on Form S-8 of our reports dated March 18, 1997
and September 19, 1997, appearing in the Annual Report on Form 10-K of The Pep
Boys - Manny, Moe & Jack for the year ended February 1, 1997 and in the Annual
Report on Form 11-K of The Pep Boys Savings Plan - Puerto Rico for the year
ended March 31, 1997, respectively.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Philadelphia, Pennsylvania
November 13, 1997
