EXHIBIT 4.02.2
CSK AUTO CORPORATION
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and entered
into as of August 14, 2001 by and between CSK Auto Corporation, a Delaware
corporation (the "Company"), and Oppenheimer Capital Income Fund, a registered
open-end investment company organized as a Massachusetts business trust (the
"Investor").
R E C I T A L S
WHEREAS, the Investor has agreed to purchase from the Company, and the
Company has agreed to sell to the Investor, $30,000,000.00 aggregate principal
amount of the Company's 7% Convertible Subordinated Notes due 2006 (the "Note").
The Note is convertible into 4,524,886 shares of the Company's common stock, par
value $0.01 per share ("Common Stock"), at a conversion price per share of
Common Stock of $6.63 (the "Conversion Shares"), on the terms and conditions set
forth in the Note.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
promises hereinafter set forth, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
(a) Registrable Securities. The term "Registrable Securities" means
all of the Conversion Shares held by the Investor, excluding Conversion Shares
that (i) have been registered under the Securities Act pursuant to an effective
registration statement, (ii) have been publicly sold pursuant to Rule 144 under
the Securities Act, or (iii) are otherwise publicly tradeable pursuant to any
other applicable exemption from registration under the Securities Act.
(b) Registration. The terms "register," "registered," and
"registration" refer to a registration effected by preparing and filing a
registration statement in compliance with the Securities Act of 1933, as
amended, (the "Securities Act"), and the declaration or ordering of
effectiveness of such registration statement.
(c) SEC. The term "SEC" or "Commission" means the U.S.
Securities and Exchange Commission.
2. REGISTRATION RIGHTS.
2.1 Demand Registration.
(a) Request by the Investor. If the Company shall at any time after
the date hereof receive a written request from the Investor that the Company
file a registration statement
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under the Securities Act covering the registration of Registrable Securities
pursuant to this Section 2.1, then the Company shall use commercially reasonable
efforts to effect, as soon as practicable, the registration under the Securities
Act of all Registrable Securities that the Investor requests to be registered,
subject only to the limitations of this Section 2.1; provided that the
Registrable Securities requested by the Investor to be registered pursuant to
such request must be offered to the public at an aggregate price that is
reasonably anticipated to be not less than $10,000,000; and provided further
that the Company shall not be obligated to effect any such registration if the
Company has, within the six (6) month period preceding the date of such request,
already effected a registration under the Securities Act pursuant to this
Section 2.1, or in which the Investor had an opportunity to participate pursuant
to the provisions of Section 2.2, other than a registration from which the
Registrable Securities of the Investor have been excluded (with respect to all
of the Registrable Securities the Investor requested be included in such
registration) pursuant to the provisions of Section 2.2(b).
(b) Underwriting. If the Investor intends to distribute the
Registrable Securities covered by its request by means of an underwriting, then
the Investor shall so advise the Company as a part of its request made pursuant
to this Section 2.1. The Investor shall enter into an underwriting agreement in
customary form with the managing underwriter or underwriters selected for such
underwriting by the Investor and reasonably acceptable to the Company.
Notwithstanding any other provision of this Section 2.1, if the underwriter(s)
advise(s) the Company in writing that marketing factors require a limitation of
the number of securities to be underwritten then the Company shall so advise the
Investor, and the number of Registrable Securities that may be included in the
underwriting shall be reduced as required by the underwriter(s); provided,
however, that the number of shares of Registrable Securities to be included in
such underwriting and registration shall not be reduced unless all other
securities of the Company and any other requesting holders are first entirely
excluded from the underwriting and registration. Any Registrable Securities
excluded and withdrawn from such underwriting shall be withdrawn from the
registration.
(c) Maximum Number of Demand Registrations. The Company shall
be obligated to effect only three (3) such registrations pursuant to this
Section 2.1.
(d) Deferral. Notwithstanding the foregoing, if the Company shall
furnish to the Investor, following its request of the filing of a registration
statement pursuant to this Section 2.1, a certificate signed by the President or
Chief Executive Officer of the Company stating that in the good faith judgment
of the Company's board of directors it would be materially detrimental to the
Company and its stockholders for such registration statement to be filed, then
the Company shall have the right to defer such filing for a period of not more
than ninety (90) days after receipt of the request of the Investor; provided,
however, that the Company may not utilize this right more than twice in any
twelve (12) month period.
(e) Expenses. All expenses incurred in connection with any
registration pursuant to this Section 2.1, including without limitation all
federal and "blue sky" registration, filing and qualification fees, printer's
and accounting fees, and fees and disbursements of counsel for the Company (but
excluding underwriters' discounts and commissions relating to shares sold by the
Investor and legal fees of counsel for the Investor), shall be borne by the
Company.
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Notwithstanding the foregoing, the Company shall not be required to pay for any
expenses of any registration proceeding begun pursuant to this Section 2.1 if
the registration request is subsequently withdrawn at the request of the
Investor, unless the Investor agrees that such registration constitutes the use
by the Investor of one (1) demand registration pursuant to this Section 2.1.
2.2 Piggyback Registrations.
(a) Notice and Request by the Investor. The Company shall notify the
Investor in writing at least thirty (30) days prior to filing any registration
statement under the Securities Act for purposes of effecting a public offering
of securities of the Company (including, but not limited to, registration
statements relating to secondary offerings of securities of the Company, but
excluding registration statements relating to any registration under Section 2.1
of this Agreement or to any employee benefit plan or a corporate reorganization)
and will afford the Investor an opportunity to include in such registration
statement all or any part of the Registrable Securities then held by the
Investor. The Investor shall within twenty (20) days after receipt of the
above-described notice from the Company, so notify the Company in writing, and
in such notice shall inform the Company of the number of Registrable Securities
the Investor wishes to include in such registration statement. If the Investor
decides not to include all of its Registrable Securities in any registration
statement thereafter filed by the Company, the Investor shall nevertheless
continue to have the right to include any Registrable Securities in any
subsequent registration statement or registration statements as may be filed by
the Company with respect to offerings of its securities, all upon the terms and
conditions set forth herein.
(b) Underwriting. If a registration statement under which the
Company gives notice under this Section 2.2 is for an underwritten offering,
then the Company shall so advise the Investor. In such event, the right of any
of the Investor's Registrable Securities to be included in a registration
pursuant to this Section 2.2 shall be conditioned upon the Investor's
participation in such underwriting and the inclusion of the Investor's
Registrable Securities in the underwriting to the extent provided herein. The
Investor, if proposing to distribute any of its Registrable Securities in such
underwriting, shall enter into an underwriting agreement in customary form with
the managing underwriter or underwriters selected for such underwriting.
Notwithstanding any other provision of this Agreement, if the managing
underwriter(s) determine(s) in good faith that marketing factors require a
limitation of the number of shares to be underwritten, then the managing
underwriter(s) may exclude shares from the registration and the underwriting,
and the number of shares that may be included in the registration and the
underwriting shall be allocated, first to the Company or, if the registration is
pursuant to a demand registration right similar to the right contained in
Section 2.1, to the security holder that exercised such right (together with
each security holder entitled to participate on the same basis as such security
holder) until all securities requested to be sold by such parties have been
sold, and second, to the Investor and all other stockholders that exercise
similar registration rights on a pro rata basis based on the number of shares of
Common Stock held by such persons. If the Investor disapproves of the terms of
any such underwriting, the Investor may elect to withdraw therefrom by written
notice to the Company and the underwriter(s), delivered at least ten (10)
business days prior to the effective date of the registration statement. Any
Registrable Securities excluded or withdrawn from such underwriting shall be
excluded and withdrawn from the registration.
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(c) Expenses. All expenses incurred in connection with a
registration pursuant to this Section 2.2, including, without limitation all
federal and "blue sky" registration, filing and qualification fees, printers'
and accounting fees, and fees and disbursements of counsel for the Company (but
excluding underwriters' and brokers' discounts and commissions relating to
shares sold by the Investor and legal fees of counsel for the Investor), shall
be borne by the Company.
(d) Not Demand Registration. Registration pursuant to this Section
2.2 shall not be deemed to be a demand registration as described in Section 2.1
above. Except as otherwise provided herein, there shall be no limit on the
number of times the Investor may request registration of Registrable Securities
under this Section 2.2.
2.3 Obligations of the Company. Whenever required to effect the
registration of any Registrable Securities under this Agreement the Company
shall, as expeditiously as reasonably possible:
(a) Registration Statement. Prepare and file with the SEC a
registration statement with respect to such Registrable Securities and use
commercially reasonable efforts to cause such registration statement to become
effective, provided, however, that the Company shall not be required to keep any
such registration statement effective for more than ninety (90) days.
(b) Amendments and Supplements. Prepare and file with the SEC such
amendments and supplements to such registration statement and the prospectus
used in connection with such registration statement as may be necessary to
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement.
(c) Prospectuses. Furnish to the Investor such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by the Investor that are included in such registration.
(d) Blue Sky. Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Investor, provided that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions.
(e) Underwriting. In the event of any underwritten public offering,
enter into and perform its obligations under an underwriting agreement in usual
and customary form, with the managing underwriter(s) of such offering. The
Investor shall also enter into and perform its obligations under such an
agreement.
(f) Notification. Notify the Investor at any time when a prospectus
relating thereto is required to be delivered under the Securities Act of the
happening of any event as a
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result of which the prospectus included in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing.
(g) Opinion and Comfort Letter. Furnish, at the request of the
Investor, on the date that such Registrable Securities are delivered to the
underwriters for sale, if such securities are being sold through underwriters,
or, if such securities are not being sold through underwriters, on the date that
the registration statement with respect to such securities becomes effective,
(i) an opinion, dated as of such date, of the counsel representing the Company
for the purposes of such registration, in form and substance as is customarily
given to underwriters in an underwritten public offering and reasonably
satisfactory to the Investor, addressed to the underwriters, if any, and to the
Investor and (ii) a "comfort" letter dated as of such date, from the independent
certified public accountants of the Company, in form and substance as is
customarily given by independent certified public accountants to underwriters in
an underwritten public offering and reasonably satisfactory to the Investor,
addressed to the underwriters, if any, and to the Investor.
2.5 Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to Sections 2.1 or 2.2
that the Investor shall furnish to the Company such information regarding
itself, the Registrable Securities held by it, and the intended method of
disposition of such securities as shall be required to timely effect the
Registration of its Registrable Securities.
2.6 Indemnification. In the event any Registrable Securities are
included in a registration statement under Sections 2.1 or 2.2:
(a) By the Company. To the extent permitted by law, the Company will
indemnify and hold harmless the Investor, any underwriter (as determined in the
Securities Act) for the Investor and each person, if any, who controls the
Investor or underwriter within the meaning of the Securities Act or the
Securities Exchange Act of 1934, as amended, (the "1934 Act"), against any
losses, claims, damages, or liabilities (joint or several) to which they may
become subject under the Securities Act, the 1934 Act or other federal or state
law, insofar as such losses, claims, damages, or liabilities (or actions in
respect thereof) arise out of or are based upon any of the following statements,
omissions or violations (collectively a "Violation"):
(i) any untrue statement or alleged untrue statement of a
material fact contained in such registration statement, including
any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto;
(ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make
the statements therein not misleading, or
(iii) any violation or alleged violation by the Company of the
Securities Act, the 1934 Act, any federal or state securities law or
any rule or regulation
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promulgated under the Securities Act, the 1934 Act or any federal
or state securities law in connection with the offering covered by
such registration statement;
and the Company will reimburse the Investor for any legal or other expenses
reasonably incurred by it in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that the indemnity
agreement contained in this subsection 2.6(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld), nor shall the Company be liable in any such case
for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by the Investor.
(b) By the Investor. To the extent permitted by law, the Investor
will indemnify and hold harmless the Company, each of its directors, each of its
officers who have signed the registration statement, each person, if any, who
controls the Company within the meaning of the Securities Act or the 1934 Act,
and any underwriter against any losses, claims, damages or liabilities (joint or
several) to which the Company or any such director, officer, controlling person
or underwriter may become subject under the Securities Act, the 1934 Act or
other federal or state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereto) arise out of or are based upon any
Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished by the Investor expressly for use in connection with such
registration; and the Investor will reimburse any legal or other expenses
reasonably incurred by the Company or any such director, officer, controlling
person or underwriter in connection with investigating or defending any such
loss, claim, damage, liability or action: provided, however, that the indemnity
agreement contained in this subsection 2.6(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Investor (which consent shall
not be unreasonably withheld); and provided, further, that the total amounts
payable in indemnity by the Investor under this subsection 2.6(b) in respect of
any Violation shall not exceed the net proceeds received by the Investor in the
registered offering out of which such Violation arises.
(c) Notice. Promptly after receipt by an indemnified party under
this Section 2.6 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 2.6, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential conflict of interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within
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a reasonable time of the commencement of any such action shall relieve such
indemnifying party of liability to the indemnified party under this Section 2.6
to the extent the indemnifying party is prejudiced as a result thereof, but the
omission so to deliver written notice to the indemnified party will not relieve
it of any liability that it may have to any indemnified party otherwise than
under this Section 2.6.
(d) Defect Eliminated in Final Prospectus. The foregoing indemnity
agreements of the Company and the Investor are subject to the condition that,
insofar as they relate to any Violation made in a preliminary prospectus but
eliminated or remedied in the amended prospectus on file with the SEC at the
time the registration statement in question becomes effective or the amended
prospectus filed with the SEC pursuant to SEC Rule 424(b) (the "Final
Prospectus"), such indemnity agreement shall not inure to the benefit of any
person if a copy of the Final Prospectus was timely furnished to the indemnified
party and was not furnished to the person asserting the loss, liability, claim
or damage at or prior to the time such action is required by the Securities Act.
(e) Contribution. In order to provide for just and equitable
contribution to joint liability under the Securities Act in any case in which
either (i) the Investor makes a claim for indemnification pursuant to this
Section 2.6 but it is judicially determined (by the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration of time to appeal
or the denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section 2.6 provides
for indemnification in such case, or (ii) contribution under the Securities Act
may be required on the part of the Investor in circumstances for which
indemnification is provided under this Section 2.6; then, and in each such case,
the Company and the Investor will contribute to the aggregate losses, claims,
damages or liabilities to which they may be subject (after contribution from
others) in such proportion so that the Investor is responsible for the portion
represented by the percentage that the public offering price of its Registrable
Securities offered by and sold under the registration statement bears to the
public offering price of all securities offered by and sold under such
registration statement; provided, however, that, in any such case: (A) the
Investor will not be required to contribute any amount in excess of the public
offering price of all such Registrable Securities offered and sold by the
Investor pursuant to such registration statement; and (B) no person or entity
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) will be entitled to contribution from any person or entity
who was not guilty of such fraudulent misrepresentation.
2.7 Lock-Up Arrangements. If requested in writing by the managing
underwriter for an underwritten public offering of securities of the Company,
the Investor shall agree not to sell publicly any shares of the Company's
securities held by it without the consent of such underwriter for a period of
not more than 90 days following the effective date of the registration
statement; provided, however, that all persons entitled to registration rights
with respect to shares of the Company's securities, all other persons selling
shares of the Company's securities in such offering and all executive officers
and directors of the Company shall also have agreed not to sell publicly their
shares of the Company's securities under the circumstances and pursuant to the
terms set forth in this Section 2.7.
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2.8 Termination of the Company's Obligations. The Company shall have no
obligations pursuant to Sections 2.1 or 2.2 with respect to any Registrable
Securities proposed to be sold by the Investor in a registration pursuant to
Sections 2.1 or 2.2 more than five (5) years after the date of this Agreement,
or, if, in the opinion of counsel to the Company, all such Registrable
Securities proposed to be sold by the Investor may then be sold under Rule 144
in one transaction without exceeding the volume limitations thereunder.
3. GENERAL PROVISIONS.
3.1. Notices. Except as may be otherwise provided herein, all notices,
requests, waivers and other communications made pursuant to this Agreement shall
be in writing and shall be conclusively deemed to have been duly given (a) when
hand delivered to the other party; (b) when received when sent by facsimile at
the address and number set forth below; (c) three (3) business days after
deposit in the U.S. mail with first class or certified mail receipt requested
postage prepaid and addressed to the other party as set forth below; or (d) the
next business day after deposit with a national overnight delivery service,
postage prepaid, addressed to the parties as set forth below with
next-business-day delivery guaranteed, provided that the sending party receives
a confirmation of delivery from the delivery service provider.
CSK Auto, Inc. Oppenheimer Capital Income Fund
645 E. Missouri Avenue Two World Trade Center
Phoenix, Arizona 85012 New York, New York 10048
Attn.: Lon B. Novatt, Esq. Attn.: Michael S. Levine
Telecopier No.: (602) 264-0495 Telecopier No.:
with a copy to: with a copy to:
Gibson, Dunn & Crutcher LLP Oppenheimer Capital Income Fund
1801 California Street Two World Trade Center
Denver, Colorado 80202 New York, New York 10048
Attn.: Richard M. Russo, Esq. Attn.: Katherine P. Feld
Telecopier No.: (303) 298-5715 Telecopier No.: (212) 321-1159
Each person making a communication hereunder by facsimile shall promptly
confirm by telephone to the person to whom such communication was addressed each
communication made by it by facsimile pursuant hereto but the absence of such
confirmation shall not affect the validity of any such communication. A party
may change or supplement the addresses given above, or designate additional
addresses, for purposes of this Section 3.1 by giving the other party written
notice of the new address in the manner set forth above.
3.2 Entire Agreement. This Agreement, constitutes and contains the entire
agreement and understanding of the parties with respect to the subject matter
hereof and supersedes any and all prior negotiations, correspondence,
agreements, understandings, duties or obligations between the parties respecting
the subject matter hereof.
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3.3 Governing Law and Jurisdiction. This Agreement shall be governed in
all respects by the laws of the State of Delaware without regard to provisions
regarding choice of laws. The parties hereto hereby submit to the non-exclusive
jurisdiction of the federal and Delaware State courts located in the City of
Dover in connection with any dispute related to this letter or any matters
contemplated hereby.
3.4 Severability. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, then such provision(s) shall be excluded
from this Agreement and the balance of this Agreement shall be interpreted as if
such provision(s) were so excluded and shall be enforceable in accordance with
its terms.
3.5 Third Parties. Nothing in this Agreement, express or implied, is
intended to confer upon any person, other than the parties hereto and their
permitted successors and assigns, any rights or remedies under or by reason of
this Agreement.
3.6 Successors and Assigns. Except as otherwise expressly provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto
whose rights or obligations hereunder are affected by such amendments. This
Agreement and the rights and obligations therein may not be assigned by the
Investor without the written consent of the Company except to an affiliate of
the Purchaser. This Agreement and the rights and obligations therein may not be
assigned by the Company without the written consent of the Purchaser.
3.7 Captions. The captions to sections of this Agreement have been
inserted for identification and reference purposes only and shall not be used to
construe or interpret this Agreement.
3.8 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
CSK AUTO CORPORATION OPPENHEIMER CAPITAL INCOME FUND
By: /s/ Don W. Watson By: /s/ Michael S. Levine
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Name: Don W. Watson Name: Michael S. Levine
Title:SR VP CFO Title:Vice President
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