UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
September 28, 2007
(September 26, 2007)
Date of Report
(Date of earliest event reported)
(September 26, 2007)
Date of Report
(Date of earliest event reported)
AUTOZONE, INC.
(Exact name of registrant as specified in its charter)
| Nevada | 1-10714 | 62-1482048 | ||
| (State or other jurisdiction of | (Commission File Number) | (IRS Employer Identification No.) | ||
| incorporation or organization) |
123 South Front Street
Memphis, Tennessee 38103
(Address of principal executive offices) (Zip Code)
Memphis, Tennessee 38103
(Address of principal executive offices) (Zip Code)
(901) 495-6500
Registrant’s telephone number, including area code
Registrant’s telephone number, including area code
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17
CFR 240.14a-12)
o Precommencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
o Precommencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Item 1.01. Entry Into a Material Definitive Agreement.
On September 26, 2007, the Board of Directors of AutoZone, Inc. (“AutoZone”) amended the AutoZone,
Inc. Third Amended and Restated Employee Stock Purchase Plan (“ESPP”) to extend the term of the
ESPP by an additional ten years, through December 31, 2017, and to add a provision allowing
AutoZone to “cash out” participants with fewer than twenty shares in their account at termination.
The amended and restated ESPP is filed as Exhibit 99.1 to this current report on Form 8-K and
incorporated into this Item 1.01 by reference.
| Item 5.02. | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
On September 26, 2007, the Compensation Committee of AutoZone’s Board of Directors approved the
following severance arrangement with AutoZone’s Chairman, President and Chief Executive Officer,
William C. Rhodes, III. If Mr. Rhodes’ employment is terminated by AutoZone without cause, then in
addition to the severance benefit previously approved by the Board, consisting of an amount equal
to 2.99 times his then-current base salary, Mr. Rhodes will receive a lump sum prorated share of
any unpaid annual bonus incentive for periods during which he was employed, to be paid at the time
such incentives are paid to similarly-situated executives, and AutoZone will pay the cost of COBRA
premiums to continue his medical, dental and vision insurance benefits for up to 18 months to the
extent such premiums exceed the amount Mr. Rhodes had been paying for such coverage during his
employment. Additionally, Mr. Rhodes will sign an agreement not to compete with AutoZone or
solicit its employees for a three-year period after such termination.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
The Board of Directors of AutoZone amended AutoZone’s bylaws (the “Bylaws”) effective September 26,
2007 to permit AutoZone to issue uncertificated shares of stock. Previously, the Bylaws required
that all shares of stock be represented by certificates. Article V of the Bylaws was amended in
order for AutoZone to become eligible to participate in a Direct Registration Program as required
by New York Stock Exchange Rule 501.00. The amended and restated Bylaws are filed as Exhibit 99.2
to this current report on Form 8-K and incorporated into this Item 5.03 by reference.
Item 9.01. Financial Statements and Exhibits
The following exhibits are furnished with this Current Report:
(d) Exhibits
| 99.1 | AutoZone,
Inc. Fourth Amended and Restated Employee Stock Purchase Plan |
|||
| 99.2 | Fourth
Amended and Restated Bylaws of AutoZone, Inc. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| AUTOZONE, INC. |
||||
| By: | /s/ Harry L. Goldsmith | |||
| Harry L. Goldsmith | ||||
| Executive Vice President, General Counsel and Secretary |
||||
Dated: September 28, 2007
EXHIBIT INDEX
| 99.1 | AutoZone,
Inc. Fourth Amended and Restated Employee Stock Purchase Plan |
|||
| 99.2 | Fourth
Amended and Restated Bylaws of AutoZone, Inc. |
EXHIBIT 99.1
AUTOZONE, INC.
FOURTH AMENDED AND RESTATED
EMPLOYEE STOCK PURCHASE PLAN
EMPLOYEE STOCK PURCHASE PLAN
AUTOZONE, INC., a corporation organized under the laws of the State of Delaware, by resolution
of its Board of Directors on March 29, 1991, adopted the Employee Stock Purchase Plan (the “Plan”).
The Plan was approved by the stockholders of the Company on March 29, 1991. The Plan was amended
by the Board of Directors on June 18, 1991, to conform the Plan to amendments to the regulations
related to the Securities Exchange Act of 1934, as amended. On December 21, 1991, the Plan was
assumed by AutoZone, Inc., a Nevada corporation, after its reincorporation. The Plan was amended
by the Board of Directors on March 2, 1996, and October 21, 1996, to extend the expiration date of
the Plan. On October 21, 1997, the Compensation Committee adopted the Amended and Restated
Employee Stock Purchase Plan, which was approved by the stockholders of the Company on December 18,
1997. On October 19, 1999, the Compensation Committee adopted the Second Amended and Restated
Employee Stock Purchase Plan to prohibit sales of shares purchased under the Plan for at least one
year after the exercise of an option under the Plan. On December 12, 2002, the Board of Directors
extended the termination date of the Plan to December 31, 2007.
On September 26, 2007, the Board of
Directors amended the Plan to (i) permit the Administrator to require Participants holding fewer
than 20 uncertificated shares of Stock under the Plan as of the Participant’s termination of
employment (or shortly thereafter, in certain circumstances) who either fail to elect to receive
certificated shares of Stock or who elect to receive cash in lieu of such shares of Stock, in
either case, in accordance with the terms of the Plan, to accept a cash payment in lieu of such
uncertificated shares upon (or shortly after) termination of employment, and (ii) extend the
termination date of the Plan to December 31, 2017.
The purposes of the Plan are as follows:
(1) To assist employees of the Company or of a Parent or Subsidiary of the Company in
acquiring a stock ownership interest in the Company pursuant to a plan which is intended to qualify
as an “employee stock purchase plan” under Section 423 of the Internal Revenue Code of 1986, as
amended.
(2) To help employees provide for their future security and to encourage them to remain in
the employment of the Company or of a Parent or Subsidiary of the Company.
1. DEFINITIONS
Whenever any of the following terms are used in the Plan with the first letter or letters
capitalized, they shall have the meaning specified below unless the context clearly indicates to
the contrary. The masculine pronoun shall include the feminine and neuter and the singular shall
include the plural where the context so indicates:
| (a) | “Board” shall mean the Board of Directors of the Company. | |
| (b) | “Code” shall mean the Internal Revenue Code of 1986, as amended. | |
| (c) | “Committee” shall mean the Compensation Committee of the Board appointed to administer the Plan pursuant to paragraph 12. | |
| (d) | “Company” shall mean AutoZone, Inc., a Nevada corporation. | |
| (e) | “Date of Exercise” shall mean with respect to any Option (i) the March 31 of the Plan Year in which the Option was granted (in the case of an Option granted on January 1), (ii) the June 30 of the Plan Year in which the Option was granted (in the case of an Option granted on April 1), (iii) the September 30 of the Plan Year in which the Option was granted (in the case of an Option granted on July 1), (iv) the December 31 of the Plan Year in which the Option was granted (in the case of an Option granted on October 1) or (v) such other day, as may be determined by the Committee, of the Plan Year in which the Option was granted. | |
| (f) | “Date of Grant” shall mean the date upon which an Option is granted, as set forth in paragraph 3(a). | |
| (g) | “Determination Date” shall have the meaning provided in paragraph 4(c)(iv) below. | |
| (h) | “Election” means a written election, filed with the Administrator within thirty days after a Participant’s Determination Date and otherwise in accordance with any procedures established by the Administrator, to either receive Stock certificates in respect of any uncertificated shares held under the Plan or to receive cash in lieu of such Stock certificates. | |
| (i) | “Eligible Compensation” shall mean (i) the Eligible Employee’s rate of pay for the immediately preceding calendar year based on the wages, tips and other compensation as reported on Form W-2 issued by the Company, if the Eligible Employee’s Form W-2 issued by the Company reports wages, tips, and other compensation for the full preceding calendar year, otherwise (ii) the Eligible Employee’s annualized current rate of pay on the Date of Grant. | |
| (j) | “Eligible Employee” shall mean an employee of the Company and those of any present or future Parent or Subsidiary of the Company incorporated under the laws of a state of the United States of America (i) who has completed six months of employment; and (ii) who does not, immediately after the Option is granted, own stock (as defined by Sections 423(b)(3) and 424(d) of the Code) possessing five percent or more of the total combined voting power or value of all classes of stock of the Company or of a Parent or Subsidiary of the Company. | |
| (k) | “Form” shall mean either a paper form or a form on electronic media, prepared by the Company. |
| (l) | “Option” shall mean an option granted under the Plan to an Eligible Employee to purchase shares of the Company’s Stock. | |
| (m) | “Option Period” shall mean with respect to any Option the period beginning upon the Date of Grant and ending upon the Date of Exercise. | |
| (n) | “Option Price” has the meaning set forth in paragraph 4(b). | |
| (o) | “Parent of the Company” shall mean any corporation, other than the Company, in an unbroken chain of corporations ending with the Company if, at the time of the granting of the Option each of the corporations other than the Company owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. | |
| (p) | “Participant” shall mean an Eligible Employee who has complied with the provisions of paragraph 3(b). | |
| (q) | “Payout Date” shall have the meaning provided in paragraph 4(c)(iv) below. | |
| (r) | “Plan” shall mean the AutoZone, Inc. Amended and Restated Employee Stock Purchase Plan. | |
| (s) | “Plan Year” shall mean the calendar year beginning on January 1 and ending on December 31. | |
| (t) | “Stock” shall mean shares of the Company’s common stock. | |
| (u) | “Subsidiary of the Company” shall mean any corporation other than the Company in an unbroken chain of corporations beginning with the Company if, at the time of the granting of the Option, each of the corporations other than the last corporation in the unbroken chain owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. |
2. STOCK SUBJECT TO THE PLAN
Subject to the provisions of paragraph 9 (relating to adjustment upon changes in the Stock),
the Stock which may be sold pursuant to options granted under the Plan shall not exceed in the
aggregate 3,000,000 shares, and may be unissued shares or reacquired shares or shares bought on the
market for purposes of the Plan.
3. GRANT OF OPTIONS
(a) General Statement. Following the effective date of the Plan and continuing while
the Plan remains in force, the Company may offer Options under the Plan to all Eligible Employees.
These Options may be granted four times each Plan Year on the January 1, the April 1, the July 1,
or the October 1 of each Plan Year, or on such other days as may be determined by the Committee.
The term of each Option shall be for three
months and shall end on the March 31 (with respect to a January 1 Date of Grant), the June 30
(with respect to an April 1 Date of Grant), the September 30 (with respect to a July 1 Date of
Grant), or the December 31 (with respect to an October 1 Date of Grant) of the Plan Year in which
the Option is granted or for such other term or Date of Exercise as may be determined by the
Committee. The number of shares of the Stock subject to each Option shall be the whole number
quotient of (i) the aggregate payroll deductions authorized by each Participant in accordance with
subparagraph (b) for the Option Period divided by (ii) the Option Price of the Stock.
(b) Election To Participate; Payroll Deduction Authorization. An Eligible Employee
may participate in the Plan only by payroll deduction. Each Eligible Employee who elects to
participate in the Plan shall deliver to the Company during the calendar month next preceding
either a January 1 Date of Grant, an April 1 Date of Grant, a July 1 Date of Grant, or an October 1
Date of Grant, or on such other days as may be determined by the Committee, the properly completed
Form whereby the Eligible Employee gives notice of the election to participate in the Plan as of
the next following Date of Grant, and which shall designate a stated dollar amount, in $5.00
increments, of Eligible Compensation to be withheld on each payday. The stated dollar amount may
not be less than $5.00 and may not exceed 10% of the Eligible Compensation. In addition, at the
discretion of the Committee exercised uniformly as to all Eligible Employees at any particular
time, an Eligible Employee who participates in the Plan may also elect to have an amount withheld
from any bonus. Notwithstanding the foregoing, the maximum cumulative amount an Eligible Employee
may have withheld through payroll deduction and from any bonus shall not exceed $4,000 per Plan
Year. Effective as of January 1, 2000, the maximum cumulative amount an Eligible Employee may have
withheld through payroll deduction and from any bonus shall not exceed $15,000 per Plan Year.
(c) Changes in Payroll Authorization. The payroll deduction authorization referred to
in subparagraph (b) may only be changed during the enrollment period described in subparagraph (b)
and may not be changed during the Option Period, except as provided in paragraph 5.
(d) $25,000 Limitation. Notwithstanding anything to the contrary contained herein, no
Participant shall be permitted to purchase Stock under the Plan or under any other employee stock
purchase plan of the Company or of a Parent or Subsidiary of the Company which is intended to
qualify under Section 423 of the Code, at a rate which exceeds $25,000 in fair market value of the
Stock (determined at the time the option is granted) for each calendar year in which any such
option granted to such Participant is outstanding at any time.
4. EXERCISE OF OPTIONS
(a) General Statement. Each Participant automatically will be deemed to have
exercised the Option on each Date of Exercise to the extent that the balance then in the
Participant’s account under the Plan is sufficient to purchase at the Option Price whole shares of
the Stock subject to the Option. The excess balance, if any, in Participant’s account shall remain
in the account and be available for the purchase of Stock on the
following Date of Exercise, provided that no withdrawal from the Plan or termination of
employment has occurred under paragraphs 5 or 6.
(b) Option Price Defined. The option price per share of the Stock (the “Option
Price”) to be paid by each Participant on each exercise of the Option shall be an amount equal to
the lesser of (y) 85% of the fair market value of the Stock on the Date of Grant or (z) 85% of the
fair market value of the Stock on the Date of Exercise. The fair market value of the Stock as of a
given date shall be: (i) the closing price of the Stock on the principal exchange on which the
Stock is then trading, if any, on such date, or, if the Stock was not traded on such date, then on
the next preceding trading day during which a sale occurred; or (ii) if such Stock is not traded on
an exchange but is quoted on NASDAQ or a successor quotation system, (1) the last sales price (if
the Stock is then listed as a National Market Issue under the NASD National Market System) or (2)
the mean between the closing representative bid and asked prices (in all other cases) for the Stock
on such date as reported by NASDAQ or such successor quotation system; or (iii) if such Stock is
not publicly traded on an exchange and not quoted on NASDAQ or a successor quotation system, the
mean between the closing bid and asked prices for the Stock on such date as determined in good
faith by the Committee; or (iv) if the Stock is not publicly traded, the fair market value
established by the Committee acting in good faith.
(c) Delivery of Share Certificates. (i) For any shares purchased by exercise of an
option prior to January 1, 2000, upon the proper completion and submission of the proper Form to
the Company, the Company will deliver to such Participant a certificate issued in Participant’s
name for the number of shares of the Stock with respect to which the Option was exercised and for
which the Option Price has been paid.
(ii) For any shares purchased by exercise of an option on or after January 1, 2000, subject to
Section 4(c)(iv) below, after the passage of one year from an Option exercise date, upon the proper
completion and submission of the proper Form to the Company, the Company will deliver to such
Participant a certificate issued in Participant’s name for the number of shares of the Stock with
respect to which the Option was exercised and for which the Option Price has been paid. If a
Participant’s employment has terminated prior to the passage of one year from the Option exercise
date, subject to Section 4(c)(iv) below and notwithstanding the first sentence of this subsection,
the Participant shall be entitled to receive certificates representing the number of shares of
Stock with respect to which the Option was exercised and for which the Option Price has been paid.
(iii) In the event the Company is required to obtain from any commission or agency authority
to issue any such certificate, the Company will seek to obtain such authority. The inability of
the Company to obtain from any such commission or agency authority which counsel for the Company
deems necessary for the lawful issuance of any such certificate shall relieve the Company from
liability to any Participant except to return the amount of the balance in the account in cash.
(iv) Notwithstanding anything herein to the contrary, if a Participant’s employment with the
Company terminates and (A) such Participant holds fewer than 20
uncertificated shares of Stock obtained through Option exercises under the Plan (excluding any
shares of Stock with respect to which certificates have been delivered to such Participant in
accordance with the terms of the Plan prior to the Participant’s termination of employment) as of
the date of termination or, if such termination occurs due to the Participant’s death, disability
or Retirement, then as of the Date of Exercise next following such termination (in any case, the
“Determination Date”), and (B) such Participant (or such Participant’s estate) timely files
an Election to receive cash in lieu of such shares or fails to timely file an Election, then the
Company shall have no obligation to deliver certificates evidencing such shares of Stock and,
instead, may, in the Administrator’s sole discretion, pay to such Participant (or Participant’s
estate) in cash or cash equivalents, the fair market value of such shares as of the close of
business on the earlier to occur of the date on which the Participant (or the Participant’s estate)
makes a valid Election to receive cash in lieu of such shares or the thirtieth day following the
Participant’s Determination Date (in either case, the “Payout Date”). Payments pursuant to
this paragraph 4(c)(iv) shall be made as soon as administratively practicable following the
applicable Payout Date. Following the payment of any such amounts, the Participant (and the
Participant’s estate) shall have no further rights with respect to any such uncertificated shares.
(d) Restriction on Sale of Stock. Effective as of January 1, 2000, for all Options
exercised under the Plan after that date, a participant shall not sell any shares of stock
purchased under the Plan until after the first to occur of passage of one year from the date of the
Option exercise or termination of employment.
5. WITHDRAWAL FROM THE PLAN
(a) General Statement. Any Participant may withdraw from the Plan at any time. A
Participant who wishes to withdraw from the Plan must deliver to the Company a notice of withdrawal
in a Form prepared by the Company. The Company, as soon as practicable following receipt of a
Participant’s notice of withdrawal, will refund to the Participant the amount of the balance in the
account under the Plan. Upon receipt of a Participant’s notice of withdrawal from the Plan,
automatically and without any further act on the part of the Participant, the payroll deduction
authorization, any interest in the Plan, and any Option under the Plan shall terminate.
(b) Participation Following Withdrawal. A Participant who withdraws from the Plan may
participate again in the Plan on the next January 1, April 1, July 1, or October 1 immediately
following the date of withdrawal, or on such other days as may be determined by the Committee.
(c) Stock Subject to Plan. Notwithstanding a Participant’s withdrawal from the Plan,
any Stock acquired under the Plan shall remain subject to the terms of the Plan.
6. TERMINATION OF EMPLOYMENT
(a) Termination of Employment Other Than By Retirement or Death. If the employment of
a Participant terminates other than by retirement or death, participation in the Plan automatically
shall terminate as of the date of the termination of employment.
As soon as practicable after such a Participant’s termination of employment, the Company will
refund the amount of the balance in that account under the Plan. Upon a Participant’s termination
of employment, any interest in the Plan and any Option under the Plan shall terminate.
(b) Termination by Retirement. A Participant who retires on a normal retirement date,
or earlier or later with the consent of the Company, may by written notice to the Company request
payment in cash or cash equivalent of the balance in the account under the Plan, in which event the
Company shall make such payment as soon as practicable after receiving such notice; upon receipt of
such notice, the Participant’s interest in the Plan and any Option under the Plan shall terminate.
If the Company does not receive such notice prior to the next Date of Exercise, such Participant’s
Option will be deemed to have been exercised on such Date of Exercise.
(c) Termination By Death. If the employment of a Participant is terminated by
Participant’s death, the executor of the Participant’s will or the administrator of the
Participant’s estate by written notice to the Company may request payment in cash or cash
equivalent of the balance in the Participant’s account under the Plan, in which event the Company
shall make such payment without any interest thereon as soon as practicable after receiving such
notice. Upon receipt of such notice, the Participant’s interest in the Plan and Option under the
Plan shall terminate. If the Company does not receive such notice prior to the next Date of
Exercise, the Participant’s Option shall be deemed to have been exercised on such Date of Exercise.
7. RESTRICTION UPON ASSIGNMENT
No Option or interest or right therein or part thereof shall be liable for the debts,
contracts or engagements of any Participant or any successor in interest, nor shall any Option be
subject to disposition by transfer, alienation, anticipation, pledge, encumbrance, assignment or
any other means, whether such disposition be voluntary or involuntary or by operation of law by
judgment, levy, attachment, garnishment or any other legal or equitable proceedings (including
bankruptcy), and attempted disposition thereof shall be null and void and of no effect; provided,
however, that nothing in this paragraph 7 shall prevent transfers by will or by the applicable laws
of descent and distribution. Except as provided in paragraph 6(c), an Option may not be exercised
to any extent except by the Participant. The Committee may require the Participant to give the
Company prompt notice of any disposition of shares of stock acquired by exercise of an Option
within two years from the date of granting such Option or one year after the transfer of such
shares to such Participant. The Committee may require that the certificates evidencing shares
acquired by exercise of an Option refer to such requirement to give prompt notice of disposition.
8. NO RIGHTS OF STOCKHOLDER UNTIL OPTION IS EXERCISED
With respect to shares of the Stock subject to an Option, a Participant shall not be deemed to
be a stockholder of the Company, and shall not have any of the rights or privileges of a
stockholder. A Participant shall have the rights and privileges of a stockholder of the Company
when, but not until, an Option is exercised.
9. CHANGES IN THE STOCK; ADJUSTMENTS OF AN OPTION
Whenever any change is made in the Stock or to Options outstanding under the Plan, by reason
of stock dividend or by reason of division, combination or reclassification of shares, appropriate
action will be taken by the Committee to adjust accordingly the number of shares of the Stock
subject to the Plan and the number and the Option Price of shares of the Stock subject to the
Options outstanding under the Plan.
10. USE OF FUNDS; NO INTEREST PAID
All funds received or held by the Company under the Plan will be included in the general funds
of the Company free of any trust or other restriction and may be used for any corporate purpose.
No interest will be paid to any Participant or credited to any account under the Plan with respect
to such funds.
11. AMENDMENT OF THE PLAN
The Committee may amend, suspend or terminate the Plan at any time and from time to time;
provided, however, that the provisions in paragraphs 1(e), 1(h), 3(a), 3(d), and 4(b) may not be
amended more than once every six months, other than to comport with changes in the Code, the
Employee Retirement Income Security Act of 1974, as amended, or the rules thereunder; and provided
further, that approval by the vote of the holders of more than 50% of the outstanding shares of the
Company’s Stock entitled to vote shall be required to amend the Plan (i) to increase the number of
shares of Stock available under the Plan, (ii) to decrease the Option Price below a price computed
in the manner stated in paragraph 4(b), (iii) to materially alter the requirements for eligibility
to participate in the Plan, or (iv) to modify the Plan in a manner requiring stockholder approval
under the Code or Securities Exchange Act of 1934 (“Exchange Act”).
12. ADMINISTRATION BY COMMITTEE; RULES AND REGULATIONS
(a) Administration. The Plan shall be administered by the Compensation Committee of
the Board.
(b) Duties And Powers of Committee. It shall be the duty of the Committee to conduct
the general administration of the Plan in accordance with its provisions. The Committee shall have
the power to interpret the Plan and the Options and to adopt such rules for the administration,
interpretation and application of the Plan as are consistent therewith and to interpret, amend or
revoke any such rules. The Board shall have no right to exercise any of the rights or duties of
the Committee under the Plan.
(c) Majority Rule. The Committee shall act by a majority of its members in office.
The Committee may act either by vote at a meeting or by a memorandum or other written instrument
signed by a majority of the Committee.
(d) Professional Assistance; Good Faith Actions. The Committee may employ attorneys,
consultants, accountants, appraisers, brokers or other persons. The Committee, the Company and its
officers and directors shall be entitled to rely upon the advice,
opinions or valuations of any such persons. All actions taken and all interpretations and
determinations made by the Committee in good faith shall be final and binding upon all
Participants, the Company and all other interested persons. No member of the Committee shall be
personally liable for any action, determination or interpretation made in good faith with respect
to the Plan or the Options, and all members of the Committee shall be fully protected by the
Company in respect to any such action, determination or interpretation.
13. NO RIGHTS AS AN EMPLOYEE
Nothing in the Plan shall be construed to give any person (including any Eligible Employee or
Participant) the right to remain in the employ of the Company or a Parent or Subsidiary of the
Company or to affect the right of the Company or a Parent or Subsidiary of the Company to terminate
the employment of any person (including any Eligible Employee or Participant) at any time with or
without cause.
14. MERGER, ACQUISITION OR LIQUIDATION OF THE COMPANY
In the event of the merger or consolidation of the Company into another corporation, the
acquisition by another corporation of all or substantially all of the Company’s assets or 80% or
more of the Company’s then outstanding voting stock or the liquidation or dissolution of the
Company, the Date of Exercise with respect to outstanding Options shall be the business day
immediately preceding the effective date of such merger, consolidation, acquisition, liquidation or
dissolution unless the Committee shall, in its sole discretion, provide for the assumption or
substitution of such Options in manner complying with Section 424(a) of the Code.
15. TERM; APPROVAL BY STOCKHOLDERS
No Option may be granted during any period of suspension or after termination of the Plan, and
in no event may any Option be granted under the Plan after December 31, 2017, unless extended by
the Board of Directors of the Company. The Plan was approved by the Company’s stockholders on
March 19, 1991, which was within 12 months after the date of the Board of Directors’ initial
adoption of the Plan, and again on December 18, 1997, which was within twelve months after the
Board adopted Plan amendments requiring shareholder approval under Section 423 of the Code. The
Company shall take such actions with respect to the Plan as may be necessary to satisfy the
requirements of Section 423 of the Code.
16. EFFECT UPON OTHER PLANS
The adoption of the Plan shall not affect any other compensation or incentive plans in effect
for the Company or a Parent or Subsidiary of the Company. Nothing in this Plan shall be construed
to limit the right of the Company or a Parent or Subsidiary of the Company (a) to establish any
other forms of incentives or compensation for employees of the Company or a Parent or Subsidiary of
the Company or (b) to grant or assume options otherwise than under this Plan in connection with any
proper corporate purpose, including, but not by way of limitation, the grant or assumption of
options in
connection with the acquisition, by purchase, lease, merger, consolidation or otherwise, of
the business, stock or assets of any corporation, firm or association.
17. RULE 16b-3 RESTRICTIONS UPON DISPOSITIONS OF STOCK
The Plan is intended to conform to the extent necessary with all provisions of the Securities
Act of 1933, as amended (the “Securities Act”), and the Exchange Act and any and all regulations
and rules promulgated by the Securities and Exchange Commission thereunder, including, without
limitation, Rule 16b-3. Notwithstanding anything herein to the contrary, the Plan shall be
administered, and Options shall be granted and may be exercised, only in such a manner as to
conform to such laws, rules and regulations. To the extent permitted by applicable law, the Plan
and Options granted hereunder shall be deemed amended to the extent necessary to conform to such
laws, rules and regulations.
18. NOTICES
Any notice to be given under the terms of the Plan to the Company shall be addressed to the
Company in care of its Secretary or any designee and any notice to be given to a Participant shall
be addressed to Participant’s last address as reflected in the Company’s records and may be given
either in writing or via electronic communication to the extent permitted by law. By a notice given
pursuant to this paragraph, either party may hereafter designate a different address for notices to
be given. Any notice which is required to be given to a Participant shall, if the Participant is
then deceased, be given to the Participant’s personal representative if such representative has
previously informed the Company of the representative status and address by notice under this
paragraph. Any notice shall have been deemed duly given when received by the Company or when sent
to a Participant by the Company to Participant’s last known mailing address or delivered to an
electronic mailbox accessible by Participant as permitted by law.
19. TITLES
Titles are provided herein for convenience only and are not to serve as a basis for
interpretation or construction of the Plan.
EXHIBIT 99.2
FOURTH
AMENDED AND RESTATED
BY-LAWS
OF
AUTOZONE, INC.
AMENDED AND RESTATED
BY-LAWS
OF
AUTOZONE, INC.
ARTICLE I.
OFFICES
Section 1. The Corporation may have offices at such places both within and without the State
of Nevada as the Board of Directors may from time to time determine or the business of the
Corporation may require.
ARTICLE II.
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders shall be held at any place within or outside the
State of Nevada as shall be designated from time to time by the Board of Directors. In the absence
of any such designation, stockholders’ meetings shall be held at the principal executive office of
the Corporation.
Section 2. The annual meeting of stockholders shall be held on such date and at such time and
place as may be fixed by the Board of Directors and stated in the notice of the meeting, for the
purpose of electing directors and for the transaction of such other business as is properly brought
before the meeting in accordance with these By-Laws.
To be properly brought before the annual meeting, business must be either (i) specified in the
notice of annual meeting (or any supplement or amendment thereto) given by or at the direction of
the Board of Directors, (ii) otherwise brought before the annual meeting by or at the direction of
the Board of Directors, or (iii) otherwise properly brought before the annual meeting by a
stockholder. In addition to any other applicable requirements, for business to be properly brought
before an annual meeting by a stockholder, the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation. To be timely, a stockholder’s notice must be delivered
to the Secretary at the principal executive offices of the Corporation not later than the close of
business on the ninetieth (90th) day nor earlier than the close of business on the one
hundred twentieth (120th) day prior to the first anniversary of the preceding year’s
annual meeting; provided, however, that in the event that the date of the annual meeting is more
than thirty (30) days before or more than seventy (70) days after such anniversary date, notice by
the stockholder must be so delivered not earlier than the close of business on the one hundred
twentieth (120th) day prior to such annual meeting and not later than the close of
business on the later of the ninetieth (90th) day prior to such annual meeting or the
tenth (10th) day following the day on which public announcement of the date of such
meeting is first made by the Corporation. In no event shall the public
announcement of an adjournment or postponement of an annual meeting commence a new time period
for the giving of a stockholder’s notice as described above.
A stockholder’s notice to the Secretary shall set forth (i) a brief description of the
business desired to be brought before the annual meeting and the reasons for conducting such
business at the annual meeting, (ii) the name and record address of the stockholder proposing such
business, (iii) the class, series and number of shares of the Corporation which are beneficially
owned by the stockholder, and (iv) any material interest of the stockholder in such business.
Notwithstanding anything in the By-Laws to the contrary, no business shall be conducted at the
annual meeting except in accordance with the procedures set forth in this Article II, Section 2.
The officer of the Corporation presiding at an annual meeting shall, if the facts warrant,
determine and declare to the annual meeting that business was not properly brought before the
annual meeting in accordance with the provisions of this Article II, Section 2, and if he should so
determine, he shall so declare to the annual meeting and any such business not properly brought
before the meeting shall not be transacted. Written notice of the annual meeting stating the place,
date and hour of the annual meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten (10) nor more than sixty (60) days before the date of the meeting.
Section 3. The holders of a majority of the voting power of the Corporation’s stock at any
meeting of stockholders, which are present in person or represented by proxy, shall constitute a
quorum for the transaction of business except as otherwise provided by law, by the Articles of
Incorporation, or by these By-Laws. A quorum, once established, shall not be broken by the
withdrawal of enough votes to leave less than a quorum and the votes present may continue to
transact business until adjournment. If, however, such quorum shall not be present or represented
at any meeting of the stockholders, a majority of the voting stock represented in person or by
proxy may adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such adjourned meeting at which a
quorum shall be present or represented, any business may be transacted which might have been
transacted at the meeting as originally notified. If the adjournment is for more than thirty days,
or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the
adjourned meeting shall be given to each stockholder of record entitled to vote thereat.
Section 4. When a quorum is present at any meeting, action of the stockholders on a matter
other than the election of directors is approved if the number of votes cast in favor of the action
exceeds the number of votes cast in opposition to the action, unless the question is one upon which
by express provision of the statutes, or the Articles of Incorporation, or these By-Laws, a
different vote is required in which case such express provision shall govern and control the
decision of such question. Directors shall be elected by a plurality of the votes cast by the
stockholders.
Section 5. At each meeting of the stockholders, each stockholder having the right to vote may
vote in person or may authorize another person or persons to act for him by proxy appointed in a
reasonable manner as may be permitted by law, including, without limitation, a signed writing,
telegram, facsimile, and electronic communication. All proxies must be filed with the Secretary of
the Corporation at the beginning of each
meeting in order to be counted in any vote at the meeting. Each stockholder shall have one
vote for each share of stock having voting power, registered in his name on the books of the
Corporation on the record date set by the Board of Directors as provided in Article V, Section 6
hereof.
Section 6. Special meetings of the stockholders, for any purpose, or purposes, unless
otherwise prescribed by statute or by the Articles of Incorporation, may be called by the Chairman
of the Board or President and shall be called by the President or the Secretary at the request in
writing of a majority of the Board of Directors or by the holders of a majority of the shares of
voting stock. Such request shall state the purpose or purposes of the proposed meeting. Business
transacted at any special meeting of stockholders shall be limited to the purposes stated in the
notice. Written notice of a request for a meeting by the holders of a majority of the voting shares
shall be accompanied by the name and record address of the stockholders proposing the special
meeting, and the class, series and number of shares of the Corporation which are beneficially owned
by each stockholder, and a description of any material interest of the stockholder in such
business.
Section 7. Whenever stockholders are required or permitted to take any action at a meeting, a
written notice of the meeting shall be given which notice shall state the place, date and hour of
the meeting and the purpose or purposes for which the meeting is called. The written notice of any
meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor
more than sixty days before the date of the meeting. If mailed, notice is given when deposited in
the United States mail, postage prepaid, directed to the stockholder at his address as it appears
on the records of the Corporation.
Section 8. The officer who has charge of the stock ledger of the Corporation shall prepare and
make, at least ten days before every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder. Such list shall be
open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, either at a place within
the city where the meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also
be produced and kept at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
Section 9. Stockholders of the Corporation may only take action at an annual or special
meeting of stockholders. Stockholders may not take action by written consent without a meeting.
ARTICLE III
DIRECTORS
Section 1. Subject to any limitations in the laws of the State of Nevada, the Articles of
Incorporation or these By-Laws, the number of directors may be changed from time to time by
resolutions adopted by the Board of Directors or the stockholders. No reduction of the number of
directors shall have the effect of removing any director prior to the expiration of his term of
office. A director need not be a stockholder of the Corporation. Nominations of persons for
election to the Board of Directors of the Corporation at the annual meeting may be made at such
meeting by or at the direction of the Board of Directors, by any committee or persons appointed by
the Board of Directors or by any stockholder of the Corporation entitled to vote for the election
of directors at the meeting who complies with the notice procedures set forth in this Article III,
Section 1. Such nominations by any stockholder shall be made pursuant to timely notice in writing
to the Secretary of the Corporation. To be timely, a stockholder’s notice shall be delivered to the
Secretary at the principal executive offices of the Corporation not later than the close of
business on the ninetieth (90th) day nor earlier than the close of business on the one
hundred twentieth (120th) day prior to the first anniversary of the preceding year’s
annual meeting; provided, however, that in the event that the date of the annual meeting is more
than thirty (30) days before or more than seventy (70) days after such anniversary date, notice by
the stockholder must be so delivered not earlier than the close of business on the one hundred
twentieth (120th) day prior to such annual meeting and not later than the close of
business on the later of the ninetieth (90th) day prior to such annual meeting or the
tenth (10th) day following the day on which public announcement of the date of such
meeting is first made by the corporation. In no event shall the public announcement of an
adjournment or postponement of an annual meeting commence a new time period for the giving of a
stockholder’s notice as described above.
Such stockholder’s notice to the Secretary shall set forth (i) as to each person whom the
stockholder proposes to nominate for election or reelection as a director, (a) the name, age,
business address and residence address of the person, (b) the principal occupation or employment of
the person, (c) the class and number of shares of capital stock of the Corporation which are
beneficially owned by the person, and (d) any other information relating to the person that is
required to be disclosed in solicitations for proxies for election of directors pursuant to the
Rules and Regulations of the Securities and Exchange Commission under Section 14 of the Securities
Exchange Act of 1934, as amended; and (ii) as to the stockholder giving the notice (a) the name and
record address of the stockholder and (b) the class and number of shares of capital stock of the
Corporation which are beneficially owned by the stockholder. The Corporation may require any
proposed nominee to furnish such other information as may reasonably be required by the Corporation
to determine the eligibility of such proposed nominee to serve as a director of the Corporation. No
person shall be eligible for election as a director of the Corporation unless nominated in
accordance with the procedures set forth herein. The officer of the Corporation presiding at an
annual meeting shall, if the facts warrant, determine and declare to the meeting that a nomination
was not made in accordance with the foregoing procedure, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded. The directors shall be
elected at the annual meeting of the stockholders, except as provided in Section 2
of this Article III, and each director elected shall hold office until his successor is
elected and qualified; provided, however, that unless otherwise restricted by the Articles of
Incorporation or law, any director or the entire Board of Directors may be removed, either with or
without cause, from the Board of Directors at any meeting of stockholders by the holders of
two-thirds of the voting power of the Corporation’s stock.
Section 2. Vacancies on the Board of Directors by reason of death, resignation, retirement,
disqualification, removal from office, or otherwise, and newly created directorships resulting from
any increase in the authorized number of directors may be filled by a majority of the directors
then in office, although less than a quorum, or by a sole remaining director. The directors so
chosen shall hold office until the next annual election of directors and until their successors are
duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then
an election of directors may be held in the manner provided by statute. If, at the time of filling
any vacancy or any newly created directorship, the directors then in office shall constitute less
than a majority of the whole Board (as constituted immediately prior to any such increase), any
stockholder or stockholders holding at least ten percent of the voting power of the Corporation’s
stock may summarily order an election to be held to fill any such vacancies or newly created
directorships, or to replace the directors chosen by the directors then in office.
Section 3. The property and business of the Corporation shall be managed by or under the
direction of its Board of Directors. In addition to the powers and authorities by these By-Laws
expressly conferred upon them, the Board may exercise all such powers of the Corporation and do all
such lawful acts and things as are not by statute or by the Articles of Incorporation or by these
By-Laws directed or required to be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The directors may hold their meetings and have one or more offices, and keep the
books of the Corporation outside of the State of Nevada.
Section 5. Regular meetings of the Board of Directors may be held without notice at such time
and place as shall from time to time be determined by the Board.
Section 6. Special meetings of the Board of Directors may be called by the Chairman or the
President on twenty-four hours’ notice to each director; special meetings shall be called by the
Chairman, the President or the Secretary in like manner and on like notice on the written request
of two directors unless the Board consists of only one director; in which case special meetings
shall be called by the Chairman, the President or Secretary in like manner or on like notice on the
written request of the sole director.
Section 7. At all meetings of the Board of Directors a majority of the authorized number of
directors shall be necessary and sufficient to constitute a quorum for the transaction of business,
and the vote of a majority of the directors present at any meeting at which there is a quorum,
shall be the act of the Board of Directors, except as
may be otherwise specifically provided by statute, by the Articles of Incorporation or by
these By-Laws. If a quorum shall not be present at any meeting of the Board of Directors the
directors present thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present. If only one director is authorized,
such sole director shall constitute a quorum.
Section 8. Unless otherwise restricted by the Articles of Incorporation or these By-Laws, any
action required or permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting, if all members of the Board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
Section 9. Unless otherwise restricted by the Articles of Incorporation or these By-Laws,
members of the Board of Directors, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors, or any committee, by means of conference
telephone or similar communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall constitute presence in
person at such meeting.
COMMITTEES OF DIRECTORS
Section 10. The Board of Directors may, by resolution passed by a majority of the whole Board,
designate one or more committees, each such committee to consist of one or more of the directors of
the Corporation. The Board may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of the committee. In
the absence or disqualification of a member of a committee, the member or members thereof present
at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the meeting in the place of
any such absent or disqualified member. Any such committee, to the extent provided in the
resolution of the Board of Directors, shall have and may exercise all the powers of the Board of
Directors in the management of the business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed to all papers which may require it; but no such committee
shall have the power in reference to amending the Articles of Incorporation (except that a
committee may, to the extent authorized in the resolution or resolutions providing for the issuance
of shares of stock adopted by the Board of Directors, fix the designations and any of the
preferences or rights of such shares relating to dividends, redemption, dissolution, any
distribution of assets of the Corporation or the conversion into, or the exchange of such shares
for, shares of any other class or classes or any other series of the same or any other class or
classes of stock of the Corporation or fix the number of shares of any series of stock or authorize
the increase or decrease of the shares of any series), adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially
all of the Corporation’s property and assets, recommending to the stockholders a dissolution of the
Corporation or a revocation of a dissolution, or amending the By-Laws of the Corporation; and,
unless the resolution, By-Laws, or the Articles of Incorporation expressly so provide, no such
committee shall have the power
or authority to declare a dividend to authorize the issuance of stock, or to adopt Articles of
Merger.
Section 11. Each committee shall keep regular minutes of its meetings and report the same to
the Board of Directors when required.
COMPENSATION OF DIRECTORS
Section 12. Unless otherwise restricted by the Articles of Incorporation or these By-Laws, the
Board of Directors shall have the authority to fix the compensation of directors. The directors may
be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be
paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary as
director. No such payment shall preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor. Members of special or standing committees may be
allowed like compensation for attending committee meetings.
INDEMNIFICATION
Section 13. (a) The Corporation shall 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, except an action by or in the right of
the Corporation, by reason of the fact that he is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a director, officer,
employee or agent of another Corporation, partnership, joint venture, trust or other enterprise,
against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with the action, suit or proceeding if he
either is not liable pursuant to Nevada Revised Statutes 78.138 or 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 action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent, does not, of itself,
create a presumption that the person is liable pursuant to Nevada Revised Statutes 78.138 or did
not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(b) The Corporation shall 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
Corporation to procure a judgment in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another Corporation, partnership, joint
venture, trust or other enterprise against expenses, including amounts paid in settlement and
attorneys’ fees actually and reasonably incurred by him in connection with the defense or
settlement of the action or suit 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. Indemnification shall not be made for any claim, issue or matter
as to which such a person has been adjudged by a court of competent jurisdiction, after exhaustion
of all appeals therefrom, to be liable to the Corporation or for amounts paid in settlement to the
Corporation unless and only to the extent that the court in which such action or suit was brought
or other court of competent jurisdiction determines upon application that in view of all the
circumstances of the case, the person is fairly and reasonably entitled to indemnity for such
expenses as the court deems proper.
(c) To the extent that a director, officer, employee or agent of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or proceeding referred to in
paragraphs (a) and (b), or in defense of any claim, issue or matter therein, he must be indemnified
by the Corporation against expenses, including attorneys’ fees, actually and reasonably incurred by
him in connection with the defense.
(d) Any indemnification under paragraphs (a) and (b), unless ordered by a court shall be made
by the Corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the circumstances. The
determination shall be made (1) by the holders of a majority of the voting power of the
corporation’s stock, (2) by the Board of Directors by majority vote of a quorum consisting of
directors who were not parties to the act, suit or proceeding, (3) if a majority vote of a quorum
consisting of directors who are not parties to the act, suit or proceeding so order, by independent
legal counsel in a written opinion, or (4) if a quorum consisting of directors who were not parties
to the act, suit or proceeding cannot be obtained, by independent legal counsel in a written
opinion.
(e) Expenses incurred by an officer or director in defending a civil or criminal action, suit
or proceeding may be paid by the Corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to
repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by
the Corporation as authorized in this Section 13. Such expenses incurred by other employees and
agents may be so paid upon such terms and conditions, if any, as the Board of Directors deems
appropriate.
(f) The indemnification and advancement of expenses authorized in or ordered by a court
pursuant to the other paragraphs of this Section 13, (i) does not exclude any other rights to which
a person seeking indemnification or advancement of expenses may be entitled under any By-Law,
agreement, vote of stockholders or disinterested directors or otherwise, for either an action in
his official capacity or an action in another capacity while holding his office except that
indemnification, unless ordered by a court pursuant to paragraph (b) or for the advancement of
expenses made pursuant to paragraph (e), may not be made to or on behalf of any director or officer
if a final adjudication establishes that his acts or omissions involved intentional misconduct,
fraud or a knowing violation of the law and was material to the cause of action; and (ii) continues
for a person who has ceased to be a director, officer, employee or agent and inures to the benefit
of the heirs, executors and administrators of such a person. If a claim for indemnification or
payment of expenses under this Section 13 is not paid in full within ninety (90) days after a
written claim therefor has been received by the Corporation, the claimant may file suit to recover
the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be
paid the expense of prosecuting such
claim. In any such action the Corporation shall have the burden of proving that the claimant
was not entitled to the requested indemnification or payment of expenses under applicable law.
(g) The Board of Directors may authorize, by a vote of a majority of a quorum of the Board of
Directors, the Corporation to purchase and maintain insurance on behalf of any person who is or was
a director, officer, employee or agent of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another Corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against him and incurred by
him in any such capacity, or arising out of his status as such, whether or not the Corporation
would have the power to indemnify him against such liability under the provisions of this Section
13.
(h) The Board of Directors may authorize the Corporation to enter into a contract with any
person who is or was a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another partnership,
joint venture, trust or other enterprise providing for indemnification rights equivalent to or, if
the Board of Directors so determines, greater than those provided for in this Section 13.
(i) For the purposes of this Section 13, references to “the Corporation” shall include, in
addition to the resulting Corporation, any constituent Corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers, and employees or agents,
so that any person who is or was a director, officer, employee or agent of such constituent
Corporation, or is or was serving at the request of such constituent Corporation as a director,
officer, employee or agent of another Corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions of this Section with respect to
the resulting or surviving Corporation as he would have with respect to such constituent
Corporation if its separate existence had continued.
(j) For purposes of this section, references to “other enterprises” shall include employee
benefit plans; references to “fines” shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to “serving at the request of the Corporation”
shall include service as a director, officer, employee or agent of the Corporation which imposes
duties on, or involves services by, such director, officer, employee or agent with respect to an
employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and
in a manner he reasonably believed to be in the interest of the participants and beneficiaries of
an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best
interests of the Corporation” as referred to in this section.
ARTICLE IV.
OFFICERS
Section 1. The officers of this Corporation shall be chosen by the Board of Directors and
shall include a President, a Secretary and a Treasurer. The Corporation may also have at the
discretion of the Board of Directors such other officers as are desired, including a Chairman of
the Board, one or more Vice Presidents, one or more Assistant Secretaries and Assistant Treasurers,
and such other officers as may be appointed in accordance with the provisions of Section 3 hereof.
In the event there are two or more Vice Presidents, then one or more may be designated as Executive
Vice President, Senior Vice President, or other similar or dissimilar title. At the time of the
election of officers, the directors may by resolution determine the order of their rank. Any number
of offices may be held by the same person, unless the Articles of Incorporation or these By-Laws
otherwise provide.
Section 2. The Board of Directors, at its first meeting after each annual meeting of
stockholders, shall choose the officers of the Corporation.
Section 3. The Board of Directors may appoint such other officers and agents as it shall deem
necessary who shall hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board.
Section 4. The salaries of all officers and agents of the Corporation shall be fixed by the
Board of Directors.
Section 5. The officers of the Corporation shall hold office until their successors are chosen
and qualify in their stead. Any officer elected or appointed by the Board of Directors may be
removed at any time by the affirmative vote of a majority of the Board of Directors. If the office
of any officer or officers becomes vacant for any reason, the vacancy shall be filled by the Board
of Directors.
CHAIRMAN OF THE BOARD
Section 6. The Chairman of the Board, if such an officer be elected, shall, if present,
preside at all meetings of the Board of Directors and exercise and perform such other powers and
duties as may be from time to time assigned to him by the Board of Directors or prescribed by these
By-Laws. The Chairman of the Board shall in addition be the Chief Executive Officer of the
Corporation and shall have the powers and duties prescribed in Section 7 of this Article IV, if no
such officer is elected.
CHIEF EXECUTIVE OFFICER
Section 7. Subject to such supervisory powers, if any, as may be given by the Board of
Directors to the Chairman of the Board, if there be such an officer, the Chief Executive Officer
shall, subject to the control of the Board of Directors, have general supervision, direction and
control of the business and officers of the Corporation.
He shall preside at all meetings of the Stockholders and, if there is no Chairman of the
Board, at all meetings of the Board of Directors. He shall be an ex-officio member of all
committees and shall have the general powers and duties of management usually vested in the office
of Chief Executive Officer of corporations, and shall have such other powers and duties as may be
prescribed by the Board of Directors or these By-Laws.
PRESIDENT
Section 8. In the absence or disability of the Chief Executive Officer, the President shall
perform all duties of the Chief Executive Officer, and when so acting shall have all the powers of
and be subject to all the restrictions upon the Chief Executive Officer. He shall be an ex-officio
member of all committees and shall have the general powers and duties of management usually vested
in the office of President of corporations, and shall have such other powers and duties as may be
prescribed by the Board of Directors or these By-Laws.
VICE PRESIDENTS
Section 9. In the absence or disability of the President, the Vice Presidents (including those
designated as Executive Vice President, Senior Vice President, or other similar or dissimilar
title) in order of their rank as fixed by the Board of Directors, or if not ranked, the Vice
President designated by the Board of Directors, shall perform all the duties of the President, and
when so acting shall have all the powers of and be subject to all the restrictions upon the
President. The Vice Presidents shall have such other duties as from time to time may be prescribed
for them, respectively, by the Board of Directors.
SECRETARY AND ASSISTANT SECRETARY
Section 10. The Secretary shall attend all sessions of the Board of Directors and all meetings
of the stockholders and record all votes and the minutes of all proceedings in a book to be kept
for that purpose; and shall perform like duties for the standing committees when required by the
Board of Directors. The Secretary shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties as may be
prescribed by the Board of Directors or these By-Laws. The Secretary shall keep in safe custody the
seal of the Corporation, and affix the same to any instrument requiring it, and when so affixed it
shall be attested by his signature or by the signature of an Assistant Secretary. The Board of
Directors may give general authority to any other officer to affix the seal of the Corporation and
to attest the affixing by his signature.
Section 11. The Assistant Secretary, or if there be more than one, the Assistant Secretaries
in the order determined by the Board of Directors, or if there be no such determination, the
Assistant Secretary designated by the Board of Directors, shall, in the absence or disability of
the Secretary perform the duties and exercise the powers of the Secretary and shall perform such
other duties and have such other powers as the Board of Directors may from time to time prescribe.
TREASURER AND ASSISTANT TREASURER
Section 12. The Treasurer shall have the custody of the corporate funds and securities and
shall keep full and accurate accounts of receipts and disbursements in books belonging to the
Corporation and shall deposit all moneys, and other valuable effects in the name and to the credit
of the Corporation, in such depositories as may be designated by the Board of Directors. He shall
disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper
vouchers for such disbursements, and shall render to the Board of Directors, at its regular
meetings, or when the Board of Directors so requires, an account of all his transactions as
Treasurer and of the financial condition of the Corporation. If required by the Board of Directors,
he shall give the Corporation a bond, in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors, for the faithful performance of the duties of his office
and for the restoration to the Corporation, in case of his death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of whatever kind in
his possession or under his control belonging to the Corporation.
Section 13. The Assistant Treasurer, or if there shall be more than one, the Assistant
Treasurers in the order determined by the Board of Directors, or if there be no such determination,
the Assistant Treasurer designated by the Board of Directors, shall, in the absence or disability
of the Treasurer, perform the duties and exercise the powers of the Treasurer and shall perform
such other duties and have such other powers as the Board of Directors may from time to time
prescribe.
ARTICLE V.
CERTIFICATES OF STOCK
Section 1. The shares of stock of the Corporation may either be represented by certificates or
be uncertificated, as provided in section 78.235 of the Revised Nevada Statutes. Every holder of
stock of the Corporation that is represented by a certificate shall be entitled to have a
certificate signed by, or in the name of the Corporation by, the Chairman or Vice Chairman of the
Board of Directors, or the President or a Vice President, and by the Secretary or an Assistant
Secretary, or the Treasurer or an Assistant Treasurer of the Corporation, certifying the number of
shares represented by the certificate owned by such stockholder in the Corporation. Shares of stock
of the Corporation may also be evidenced by registration in the holder’s name in uncertificated
form and represented by an electronic record on the books of the Corporation in accordance with a
Direct Registration System approved by the Securities and Exchange Commission and by the New York
Stock Exchange or any securities exchange on which the stock of the Corporation may from time to
time be traded.
Section 2. Any or all of the signatures on the certificate may be a facsimile. In case any
officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such
certificate is issued, it may be issued by
the Corporation with the same effect as if he were such officer, transfer agent, or registrar
at the date of issue.
Section 3. If the Corporation shall be authorized to issue more than one class of stock or
more than one series of any class, the voting powers, designations, preferences, limitations,
restrictions and relative rights of each class of stock or series thereof and the qualification,
limitations or restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of any certificates which the Corporation may issue to represent
such class or series of stock, provided that, except as otherwise provided in section 78.195 of the
Revised Nevada Statutes, in lieu of the foregoing requirements, there may be set forth on the face
or back of any certificates which the Corporation may issue a statement setting forth the office or
agency of the Corporation from which the stockholders may obtain a copy of a statement setting
forth in full or summarizing the voting powers, designations, preferences, limitations,
restrictions and relative rights of each class of stock or series thereof that the Corporation will
furnish without charge to each stockholder who so requests. Within a reasonable time after the
issuance or transfer of uncertificated stock, the informational statement sent to the holder of
such stock shall contain, in addition to the information required by section 78.235 of the Nevada
Revised Statutes, a statement setting forth the office or agency of the Corporation from which the
stockholders may obtain a copy of a statement setting forth in full or summarizing the voting
powers, designations, preferences, limitations, restrictions and relative rights of each class of
stock or series thereof that the Corporation will furnish without charge to each stockholder who so
requests.
LOST, STOLEN OR DESTROYED CERTIFICATES
Section 4. The Board of Directors may direct a new certificate or certificates or
uncertificated shares to be issued in place of any certificate or certificates theretofore issued
by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit
of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated shares, the Board of
Directors may, in its discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate or certificates, or his legal representative,
to advertise the same in such manner as it shall require and/or to give the Corporation a bond in
such sum as it may direct as indemnity against any claim that may be made against the Corporation
with respect to the certificate alleged to have been lost, stolen or destroyed.
TRANSFERS OF STOCK
Section 5. Upon surrender to the Corporation, or the transfer agent of the Corporation, of a
certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation
or authority to transfer, it shall be the duty of the Corporation to issue a new certificate or
evidence of the issuance of uncertificated shares to the person entitled thereto, cancel the old
certificate and record the transaction upon its books. Nothing in this Section 5 shall require the
Corporation to issue a new certificate if the
Corporation has determined that such shares of stock shall be uncertificated. Uncertificated
shares shall be transferable only upon compliance with the customary procedures for transferring
shares in uncertificated form recorded electronically on a Direct Registration System.
FIXING RECORD DATE
Section 6. In order that the Corporation may determine the stockholders entitled to notice of
or to vote at any meeting of the stockholders, or any adjournment thereof, or to express consent to
corporate action in writing without a meeting, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of
Directors may fix a record date which shall not be more than sixty nor less than ten days before
the date of such meeting, nor more than sixty days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to
any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
REGISTERED STOCKHOLDERS
Section 7. The Corporation shall be entitled to treat the holder of record of any share or
shares of stock as the holder in fact thereof and accordingly shall not be bound to recognize any
equitable or other claim or interest in such share on the part of any other person, whether or not
it shall have express or other notice thereof, save as expressly provided by the laws of the State
of Nevada.
ARTICLE VI.
GENERAL PROVISIONS
DISTRIBUTIONS
Section 1. Distributions upon the capital stock of the Corporation, subject to the provisions
of the Articles of Incorporation, if any, may be declared by the Board of Directors at any regular
or special meeting, pursuant to law.
Section 2. Before payment of any distribution there may be set aside out of any funds of the
Corporation available for distributions such sum or sums as the directors from time to time, in
their absolute discretion, think proper as a reserve fund to meet contingencies, or for equalizing
distributions, or for repairing or maintaining any property of the Corporation, or for such other
purpose as the directors shall think conducive to the interests of the Corporation, and the
directors may abolish any such reserve.
CHECKS
Section 3. All checks or demands for money and notes of the Corporation shall be signed by
such officer or officers, or such other persons, as the Board of Directors may from time to time
designate.
FISCAL YEAR
Section 4. The fiscal year of the Corporation shall be fixed by resolution of the Board of
Directors.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of the Corporation and the
words “Corporate Seal, Nevada”. Said seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
NOTICES
Section 6. Whenever, under the provisions of the statutes or of the Articles of Incorporation
or of these By-Laws, notice is required to be given to any director or stockholder, it shall not be
construed to mean personal notice, but such notice may be given in any manner as may be permitted
by law reasonably intended to give actual notice, to such address, physical or electronic, as
appears on the records of the Corporation, with any required postage prepaid. Notice to any
director may be by any reasonable means, including, without limitation, mail, personal delivery,
facsimile, or electronic communication. All notices shall be deemed given when sent.
Section 7. Whenever any notice is required to be given under the provisions of the statutes or
of the Articles of Incorporation or of these By-Laws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent thereto.
ARTICLE VII.
AMENDMENTS
Section 1. Except as otherwise restricted in the Articles of Incorporation or these By-Laws:
(a) Any provision of these By-Laws may be altered, amended or repealed at the annual or any
regular meeting of the Board of Directors without prior notice, or at any special meeting of the
Board of Directors if notice of such alteration or repeal be contained in the notice of such
special meeting.
(b) These By-Laws may also be altered, amended or repealed at a duly convened meeting of the
stockholders by the affirmative vote of the holders of a majority of the voting power of the
Corporation’s stock. The stockholders may provide by resolution that any
By-law provision repealed, amended, adopted or altered by them may not be repealed, amended,
adopted or altered by the Board of Directors.
I, Harry L. Goldsmith, hereby certify that the foregoing Fourth Amended and Restated By-Laws
of AutoZone, Inc., were duly adopted at a meeting of the Board of Directors of AutoZone, Inc., on
September 26, 2007.
| /s/ Harry L. Goldsmith | ||||
| Harry L. Goldsmith | ||||
| Secretary | ||||