As filed with the Securities and Exchange Commission on May 1, 1998.
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 - Manny, Moe & Jack 1990 Stock Incentive Plan
(Amended and Restated as of March 31, 1998)
The Pep Boys Savings Plan
---------------------------
(Full Title of the Plans)
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>
- ------------------------------ -------------- ------------------ -------------------- ----------------
Title of Securities Amount to be Proposed maximum Proposed maximum Amount of
to be Registered registered(1) offering price aggregate offering registration fee
per share (2) price (2)
- ------------------------------ -------------- ------------------ -------------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, par value
$1.00 per share 3,000,000 $21.50 $64,500,000 $19,027.50
- ------------------------------ -------------- ------------------ -------------------- ----------------
Common Stock Purchase Right 3,000,000 $0 $0 $0
(attached to each share of
Common Stock)
- ------------------------------ -------------- ------------------ -------------------- ----------------
</TABLE>
(1) Represents 1,000,000 shares of common stock of The Pep Boys - Manny,
Moe & Jack (the "Common Stock") issuable pursuant to The Pep Boys
Savings Plan (the "Savings Plan") as well as 2,000,000 shares of Common
Stock issuable pursuant to The Pep Boys - Manny, Moe & Jack 1990 Stock
Incentive Plan (the "Incentive Plan"), including attached Common Stock
Purchase Rights. In addition, pursuant to Rule 416(c) under the
Securities Act of 1933, as amended (the "Securities Act"), 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 Savings 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 April 29,
1998.
<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 January 31, 1998, filed pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
(b) The Savings Plan's annual report on Form 11-K for the
fiscal year ended December 31, 1996, filed pursuant to the
Exchange Act.
(c) 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, and the
description of the Company's Common Stock Purchase Rights
contained in the amendment to the Company's Registration
Statement on Form 8-A/A filed on December 19, 1997 (File No.
103381).
In addition, all documents filed by the Company and the Savings 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 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
<PAGE>
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
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.
-2-
<PAGE>
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 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
-3-
<PAGE>
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.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable
Item 8. EXHIBITS
Exhibit No. Description of Exhibits
- ----------- -----------------------
4 Rights Agreement, dated as of December 5, 1997, between
the Company and First Union National Bank, including the
form of Right Certificate and Summary of Rights to
Purchase Common Stock (incorporated by reference to
Exhibit 4.1 of the Company's Current Report on Form 8-K
dated December 8, 1997 (File No. 103381))
5.1 Opinion of Willkie Farr & Gallagher, counsel to the Company,
as to the legality of the shares being registered
5.2 Determination Letter from the Internal Revenue Service that the
Savings Plan is qualified under Section 401 of the Internal
Revenue Code of 1986, as amended
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Willkie Farr & Gallagher (contained in Exhibit 5.1)
24 Power of Attorney (reference is made to the signature page)
With respect to any changes made to the Savings Plan hereafter, the
Company hereby undertakes to submit the Plan to the Internal Revenue Service
("IRS") in a timely manner and will make all changes required by the IRS in
order to qualify the Plan.
Item 9. UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
-4-
<PAGE>
(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;
(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 Savings 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
-5-
<PAGE>
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 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.
-6-
<PAGE>
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
30th day of April, 1998.
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 Savings 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 30th day of April, 1998.
THE PEP BOYS SAVINGS PLAN
BY: THE SAVINGS PLAN'S COMMITTEE,
acting as the Savings Plan
Administrator
BY: /s/ Michael J. Holden
---------------------------------
Michael J. Holden
A member of the Savings Plan's
Committee
-7-
<PAGE>
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, April 30, 1998
President, Chief
Executive Officer and
Director (Principal
Executive Officer)
/s/ Michael J. Holden
- ---------------------
Michael J. Holden Executive Vice President April 30, 1998
and Chief Financial
Officer (Principal
Financial and Accounting
Officer)
-8-
<PAGE>
/s/ Lennox K. Black
- --------------------
Lennox K. Black Director April 30, 1998
- ---------------------
Bernard J. Korman Director April __, 1998
/s/ J. Richard Leaman, Jr.
- --------------------------
J. Richard Leaman, Jr. Director April 30, 1998
/s/ Malcolmn D. Pryor
- ---------------------
Malcolmn D. Pryor Director April 30, 1998
/s/ Lester Rosenfeld
- --------------------
Lester Rosenfeld Director April 30, 1998
/s/ Benjamin Strauss
- --------------------
Benjamin Strauss Director April 30, 1998
/s/ Myles H. Tanenbaum
- ----------------------
Myles H. Tanenbaum Director April 30, 1998
/s/ David V. Wachs
- ------------------
David V. Wachs Director April 30, 1998
-9-
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Description of Exhibit
- ----------- ----------------------
5.1 Opinion of Willkie Farr & Gallagher, counsel to the Company, as to
the legality of the shares being registered
5.2 Determination Letter from the Internal Revenue Service that the
Savings Plan is qualified under Section 401 of the Internal Revenue
Code of 1986, as amended
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Willkie Farr & Gallagher (contained in Exhibit 5.1)
24 Power of Attorney (reference is made to the signature page)
<PAGE>
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, NY 10022
April 30, 1998
The Pep Boys - Manny, Moe & Jack
3111 West Allegheny Avenue
Philadelphia, PA 19132
Ladies and Gentlemen:
We have acted as counsel to The Pep Boys - Manny, Moe & 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 2,000,000
shares of the common stock of the Company, par value $1.00 per share, including
the attached common stock purchase rights (the "Shares"), issuable pursuant to
the terms of The Pep Boys - Manny, Moe & Jack 1990 Stock Incentive Plan (Amended
and Restated as of March 31, 1998), up to 1,000,000 Shares issuable pursuant to
the terms of The Pep Boys Savings Plan (the "Savings Plan") (collectively, the
"Plans") and of an indeterminate amount of interests to be offered or sold
pursuant to the Savings Plan, all as more fully described in the Registration
Statement.
We have examined copies of the Company's Articles of Incorporation, as amended,
and By-Laws, as amended, the Registration Statement 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 conformity to originals of all documents submitted to us
<PAGE>
as certified, conformed or photostatic copies thereof, as well as the
genuineness of all signatures on all such documents furnished to us.
Based upon and subject to the foregoing, we are of the opinion that, 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 Plans, will be legally
issued, fully paid and nonassessable.
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>
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
31 HOPKINS PLAZA
BALTIMORE, MD 21201-0000
Date: Feb 28, 1996 Employer Identification Number:
23-0962915
File Folder Number:
THE PEP BOYS - MANNY, MOE & JACK 521047719
C/O GERALD E. HOPPER FSA Person to Contact:
WILLIAM M. MERCER INCORPORATED E. GERNAT
1515 MARKET STREET SUITE 400 Contact Telephone Number:
PHILADELPHIA, PA 19102 (412) 644-5730
Plan Name:
THE PEP BOYS SAVINGS PLAN
Plan Number: 002
Dear Applicant:
We have made a favorable determination on your plan, identified above,
based on the information supplied. Please keep this letter in your permanent
records.
Continued qualification of the plan under its present form will depend
on its effect in operation. (See section 1.401-1(b)(3) of the Income Tax
Regulations.) We will review the status of the plan in operation periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some features that may affect the qualified
status of your employee retirement plan, and provides information on the
reporting requirements for your plan. It also describes some events that
automatically nullify it. It is very important that you read the publication.
This letter relates only to the status of your plan under the Internal
Revenue Code. It is not a determination regarding the effect of other federal or
local statutes.
This determination is subject to your adoption of the proposed
amendments submitted in your letter dated March 31, 1995. The proposed
amendments should be adopted on or before the date prescribed by the regulations
under Code section 401(b).
This determination is also subject to your adoption of the proposed
amendments submitted in your letter(s) dated February 7, 1996. These proposed
amendments should also be adopted on or before the date prescribed by the
regulations under Code section 401(b).
This determination letter is applicable for the amendment(s) adopted on
December 28, 1994.
This plan has been mandatorily disaggregated, permissively aggregated,
or restructured to satisfy the nondiscrimination requirements.
This letter is issued under Rev. Proc. 93-39 and considers the
amendments required by the Tax Reform Act of 1986 except as otherwise specified
in this letter.
<PAGE>
This plan satisfies the nondiscriminatory current availability
requirements of section 1.401(a)(4)-4(b) of the regulations with respect to
those benefits, rights, and features that are currently available to all
employees in the plan's coverage group. For this purpose, the plan's coverage
group consists of those employees treated as currently benefiting for purposes
of demonstrating that the plan satisfies the minimum coverage requirements of
section 410(b) of the Code.
This letter may not be relied upon with respect to whether the plan
satisfies the qualification requirements as amended by the Uruguay Round
Agreements Act, Pub. L. 103-465.
The information on the enclosed addendum is an integral part of this
determination. Please be sure to read and keep it with this letter.
We have sent a copy of this letter to your representative as indicated
in the power of attorney.
If you have questions concerning this matter, please contact the person
whose name and telephone number are shown above.
Sincerely your,
/s/ Paul M. Harrington
District Director
Enclosures(s)
Publication 794
Addendum
Letter 835(DO/CG)
This Determination Letter includes the following controlled Group
Employers, the PEP Boys, Manny, Moe & Jack and The PEP Boys, Manny, Moe & Jack
of California.
<PAGE>
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
The Pep Boys - Manny, Moe and Jack on Form S-8 of our reports dated March 19,
1998 and May 2, 1997 appearing in the Annual Report on Form 10-K of The Pep Boys
- - Manny, Moe and Jack for the year ended January 31, 1998 and in the Annual
Report on Form 11-K of The Pep Boys Savings Plan for the year ended December 31,
1996, respectively.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Philadelphia, Pennsylvania
April 30, 1998
