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UNITED STATES SCHEDULE 13D Under the Securities Exchange Act of 1934 AutoNation, Inc. (Name of Issuer) Common Stock, par value $0.01 per share (Title of Class of Securities) 05329W102 (CUSIP Number) Amanda N. Persaud Wachtell, Lipton, Rosen & Katz 51 West 52nd Street New York, New York 10019 (212) 403-1000 (Name, Address and Telephone Number of Person Authorized to June 2, 2010 (Date of Event Which Requires Filing of This Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f), or 240.13d-1(g), check the following box: ¨ Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7 for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting persons initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be filed for the purpose of Section 18 of the Securities Exchange Act of 1934 (the Act) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
Page 1 of 17 CUSIP No. 05329W102 Page 2 of 17 1 NAME OF REPORTING PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP 3 SEC USE ONLY 4 SOURCE OF FUNDS 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) 6 CITIZENSHIP OR PLACE OF ORGANIZATION NUMBER OF 7 SOLE VOTING POWER 8 SHARED VOTING POWER 9 SOLE DISPOSITIVE POWER 10 SHARED DISPOSITIVE POWER 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 14 TYPE OF REPORTING PERSON CUSIP No. 05329W102 Page 3 of 17 1 NAME OF REPORTING PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP 3 SEC USE ONLY 4 SOURCE OF FUNDS 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) 6 CITIZENSHIP OR PLACE OF ORGANIZATION NUMBER OF 7 SOLE VOTING POWER 8 SHARED VOTING POWER 9 SOLE DISPOSITIVE POWER 10 SHARED DISPOSITIVE POWER 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 14 TYPE OF REPORTING PERSON CUSIP No. 05329W102 Page 4 of 17 1 NAME OF REPORTING PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP 3 SEC USE ONLY 4 SOURCE OF FUNDS 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) 6 CITIZENSHIP OR PLACE OF ORGANIZATION NUMBER OF 7 SOLE VOTING POWER 8 SHARED VOTING POWER 9 SOLE DISPOSITIVE POWER 10 SHARED DISPOSITIVE POWER 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 14 TYPE OF REPORTING PERSON CUSIP No. 05329W102 Page 5 of 17 1 NAME OF REPORTING PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP 3 SEC USE ONLY 4 SOURCE OF FUNDS 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) 6 CITIZENSHIP OR PLACE OF ORGANIZATION NUMBER OF 7 SOLE VOTING POWER 8 SHARED VOTING POWER 9 SOLE DISPOSITIVE POWER 10 SHARED DISPOSITIVE POWER 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 14 TYPE OF REPORTING PERSON CUSIP No. 05329W102 Page 6 of 17 1 NAME OF REPORTING PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP 3 SEC USE ONLY 4 SOURCE OF FUNDS 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) 6 CITIZENSHIP OR PLACE OF ORGANIZATION NUMBER OF 7 SOLE VOTING POWER 8 SHARED VOTING POWER 9 SOLE DISPOSITIVE POWER 10 SHARED DISPOSITIVE POWER 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 14 TYPE OF REPORTING PERSON CUSIP No. 05329W102 Page 7 of 17 1 NAME OF REPORTING PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP 3 SEC USE ONLY 4 SOURCE OF FUNDS 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) 6 CITIZENSHIP OR PLACE OF ORGANIZATION NUMBER OF 7 SOLE VOTING POWER 8 SHARED VOTING POWER 9 SOLE DISPOSITIVE POWER 10 SHARED DISPOSITIVE POWER 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 14 TYPE OF REPORTING PERSON CUSIP No. 05329W102 Page 8 of 17 1 NAME OF REPORTING PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP 3 SEC USE ONLY 4 SOURCE OF FUNDS 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) 6 CITIZENSHIP OR PLACE OF ORGANIZATION NUMBER OF 7 SOLE VOTING POWER 8 SHARED VOTING POWER 9 SOLE DISPOSITIVE POWER 10 SHARED DISPOSITIVE POWER 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 14 TYPE OF REPORTING PERSON CUSIP No. 05329W102 Page 9 of 17 1 NAME OF REPORTING PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP 3 SEC USE ONLY 4 SOURCE OF FUNDS 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) 6 CITIZENSHIP OR PLACE OF ORGANIZATION NUMBER OF 7 SOLE VOTING POWER 8 SHARED VOTING POWER 9 SOLE DISPOSITIVE POWER 10 SHARED DISPOSITIVE POWER 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 14 TYPE OF REPORTING PERSON CUSIP No. 05329W102 Page 10 of 17 1 NAME OF REPORTING PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP 3 SEC USE ONLY 4 SOURCE OF FUNDS 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) 6 CITIZENSHIP OR PLACE OF ORGANIZATION NUMBER OF 7 SOLE VOTING POWER 8 SHARED VOTING POWER 9 SOLE DISPOSITIVE POWER 10 SHARED DISPOSITIVE POWER 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 14 TYPE OF REPORTING PERSON CUSIP No. 05329W102 Page 11 of 17 1 NAME OF REPORTING PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP 3 SEC USE ONLY 4 SOURCE OF FUNDS 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) 6 CITIZENSHIP OR PLACE OF ORGANIZATION NUMBER OF 7 SOLE VOTING POWER 8 SHARED VOTING POWER 9 SOLE DISPOSITIVE POWER 10 SHARED DISPOSITIVE POWER 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 14 TYPE OF REPORTING PERSON CUSIP No. 05329W102 Page 12 of 17 1 NAME OF REPORTING PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP 3 SEC USE ONLY 4 SOURCE OF FUNDS 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) 6 CITIZENSHIP OR PLACE OF ORGANIZATION NUMBER OF 7 SOLE VOTING POWER 8 SHARED VOTING POWER 9 SOLE DISPOSITIVE POWER 10 SHARED DISPOSITIVE POWER 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 14 TYPE OF REPORTING PERSON Page 13 of 17 This Amendment No. 27 to Schedule 13D (this Amendment No. 27) relates to shares of common stock, par value $0.01 per share (Shares), of AutoNation, Inc. (the Issuer). This Amendment No. 27 supplementally amends the statement on Schedule 13D, as amended, filed by a group consisting of ESL Partners, L.P., a Delaware limited partnership (ESL), ESL Institutional Partners, L.P., a Delaware limited partnership (Institutional), ESL Investors, L.L.C., a Delaware limited liability company (Investors), ESL Investments, Inc., a Delaware corporation (Investments), CBL Partners, L.P., a Delaware limited partnership (CBL), Tynan, LLC, a Delaware limited liability company (Tynan), ESL Investment Management, L.P., a Delaware limited partnership (ESLIM), RBS Partners, L.P., a Delaware li
mited partnership (RBS), RBS Investment Management, L.L.C., a Delaware limited liability company (RBSIM), Edward S. Lampert and William C. Crowley, both United States citizens, by furnishing the information set forth below. ESL, Institutional, Investors, Investments, CBL, Tynan, ESLIM, RBS, RBSIM, Mr. Lampert and Mr. Crowley are collectively defined in this Amendment No. 27 as the Filing Persons. Unless set forth below, all previous Items are unchanged. Capitalized terms used herein which are not defined herein have the meanings given to them in the Schedule 13D, as amended, previously filed with the Securities and Exchange Commission. The Filing Persons are filing this Amendment No. 27 to report that there has been an internal reorganization among the Filing Persons that has redistributed the direct ownership, but not the overall beneficial ownership, of Shares held by the Filing Persons. Item 3. Source and Amount of Funds or Other Consideration Item 3 is hereby amended to add the following: As part of an internal restructuring by the Filing Persons that occurred on June 2, 2010, ESL distributed 665,660 Shares to RBS, its general partner, following which RBS immediately distributed 575,973 of these Shares to Mr. Lampert and 89,687 of these Shares to Mr. Crowley. In addition, as part of the internal restructuring, on June 2, 2010, CBL distributed 482,090 Shares to Mr. Lampert and 9,839 Shares to Mr. Crowley. Item 4. Purpose of Transaction Item 4 is hereby amended to add the following: The information set forth in Item 3 is hereby incorporated herein by reference. The internal restructuring transactions described herein, including the distribution of Shares by ESL and the distribution of Shares by CBL, will result in direct ownership by Mr. Lampert and Mr. Crowley of a portion of their respective indirect ownership interests in the Shares. Specifically, ESL is making a partial distribution to RBS based on RBSs pro rata share of the assets of ESL. Of that distribution, a portion of the Shares indirectly owned by Mr. Lampert will initially be retained by ESL and, upon expiration or termination of the waiting period under the Hart-Scott Rodino Antitrust Improvements Act of 1976, as amended (HSR Approval), will be distributed to RBS, which in turn will make a distribution to Mr. Lampert. Filing for HSR Approval is expected to be made shortly. As a result of this internal restructuring, both after the distribution of Shares reflected in this filing, and after the additional distribution of Shares to Mr. Lampert upon receiving HSR Approval, the combined direct and indirect ownership of Mr. Lampert and Mr. Crowley in the Issuer, and the pecuniary interest of each of Mr. Lampert and Mr. Crowley in the Issuer, will not change. In connection with the internal restructuring, on June 2, 2010, each of Mr. Lampert and Mr. Crowley entered into a letter agreement with ESL (each, a Lock-Up Agreement) that restricts the purchases and sales by Mr. Lampert and Mr. Crowley of the Shares. Pursuant to the Lock-Up Agreements, Mr. Lampert and Mr. Crowley generally are required to sell Shares and purchase additional Shares on a pro rata basis with the sales and purchases of Shares made by ESL, and generally must make such sales and purchases on substantially the same terms and conditions as ESL (subject to certain legal, tax, accounting or regulatory considerations). Mr. Lampert and Mr. Crowley are also restricted from certain sales of Shares or purchases of additional Shares except in accordance with the Lock-Up Agreements. The foregoing summary of the Lock-Up Agreements does not pur
port to be complete and is
qualified in its entirety by reference to the Lock-Up Agreements, which are incorporated by reference as Exhibit 7 and Exhibit 8 and are incorporated herein by reference.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
(Amendment No. 27)*
Receive Notices and Communications)
ESL Partners, L.P.
(a) x
(b) ¨
N/A
¨
Delaware
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
58,775,840
0
58,775,840
0
81,117,306
¨
50.2%
PN
ESL Institutional Partners, L.P.
(a) x
(b) ¨
N/A
¨
Delaware
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
6,704
0
6,704
0
81,117,306
¨
50.2%
PN
ESL Investors, L.L.C.
(a) x
(b) ¨
N/A
¨
Delaware
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
12,882,401
0
12,882,401
0
81,117,306
¨
50.2%
OO
ESL Investments, Inc.
(a) x
(b) ¨
N/A
¨
Delaware
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
76,885,099
0
76,885,099
0
81,117,306
¨
50.2%
CO
CBL Partners, L.P.
(a) x
(b) ¨
N/A
¨
Delaware
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
5,220,154
0
5,220,154
0
81,117,306
¨
50.2%
PN
Tynan, LLC
(a) x
(b) ¨
N/A
¨
Delaware
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
152,315
0
62,628
0
81,117,306
¨
50.2%
OO
ESL Investment Management, L.P.
(a) x
(b) ¨
N/A
¨
Delaware
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
0
0
0
0
81,117,306
¨
50.2%
PN
RBS Partners, L.P.
(a) x
(b) ¨
N/A
¨
Delaware
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
71,658,241
0
71,658,241
0
81,117,306
¨
50.2%
PN
RBS Investment Management, L.L.C.
(a) x
(b) ¨
N/A
¨
Delaware
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
6,704
0
6,704
0
81,117,306
¨
50.2%
OO
Edward S. Lampert
(a) x
(b) ¨
N/A
¨
United States
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
80,754,991
0
80,179,018
0
81,117,306
¨
50.2%
IN
William C. Crowley
(a) x
(b) ¨
N/A
¨
UNITED STATES
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
362,315
0
272,628
0
81,117,306
¨
50.2%
IN
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Page 14 of 17 |
Item 5. Interest in Securities of the Issuer
Item 5 is hereby amended and restated in its entirety to read as follows:
(a)-(b) As of June 2, 2010, after giving effect to the internal restructuring described above, the Filing Persons may be deemed to beneficially own an aggregate of 81,117,306 Shares (approximately 50.2% of the outstanding Shares based on the Issuer having 161,527,965 Shares outstanding on May 20, 2010, as disclosed in the Issuers Current Report on Form 8-K filed May 20, 2010, plus 210,000 Shares issuable upon the exercise of director stock options held by Mr. Crowley).
REPORTING PERSON |
NUMBER OF SHARES BENEFICIALLY OWNED |
PERCENTAGE OF OUTSTANDING SHARES |
SOLE VOTING POWER |
SHARED VOTING POWER |
SOLE DISPOSITIVE POWER |
SHARED DISPOSITIVE POWER |
ESL Partners, L.P. |
81,117,306 (1) |
50.2% |
58,775,840 |
0 |
58,775,840 |
0 |
ESL Institutional Partners, L.P. |
81,117,306 (1) |
50.2% |
6,704 |
0 |
6,704 |
0 |
ESL Investors, L.L.C. |
81,117,306 (1) |
50.2% |
12,882,401 |
0 |
12,882,401 |
0 |
ESL Investments, Inc. |
81,117,306 (1) |
50.2% |
76,885,099 (2) |
0 |
76,885,099 (2) |
0 |
CBL Partners, L.P. |
81,117,306 (1) |
50.2% |
5,220,154 |
0 |
5,220,154 |
0 |
Tynan, LLC |
81,117,306 (1) |
50.2% |
152,315 |
0 |
62,628 (3) |
0 |
ESL Investment Management |
81,117,306 (1) |
50.2% |
0 |
0 |
0 |
0 |
RBS Partners, L.P. |
81,117,306 (1) |
50.2% |
71,658,241 (4) |
0 |
71,658,241 (4) |
0 |
RBS Investment Management, L.L.C. |
81,117,306 (1) |
50.2% |
6,704 (5) |
0 |
6,704 (5) |
0 |
Edward S. Lampert |
81,117,306 (1) |
50.2% |
80,754,991 (6) |
0 |
80,179,018 (7) |
0 |
William C. Crowley |
81,117,306 (1) |
50.2% |
362,315 (8) |
0 |
272,628 (9) |
0 |
(1) This number consists of 58,775,840 Shares held by ESL, 6,704 Shares held by Institutional, 12,882,401 Shares held in an account established by the investment member of Investors, 5,220,154 Shares held by CBL, 152,315 Shares held by Tynan, 3,869,892 Shares held by Mr. Lampert and 210,000 Shares issuable upon the exercise of director stock options held by Mr. Crowley.
(2) This number consists of 58,775,840 Shares held by ESL, 6,704 Shares held by Institutional, 12,882,401 Shares held in an account established by the investment member of Investors and 5,220,154 Shares held by CBL.
(3) This number excludes Shares subject to the Lock-Up Agreement described herein.
(4) This number consists of 58,775,840 Shares held by ESL and 12,882,401 Shares held in an account established by the investment member of Investors.
(5) This number consists of 6,704 Shares held by Institutional.
(6) This number consists of 58,775,840 Shares held by ESL, 6,704 Shares held by Institutional, 12,882,401 Shares held in an account established by the investment member of Investors, 5,220,154 Shares held by CBL and 3,869,892 Shares held by Mr. Lampert.
(7) This number excludes Shares subject to the Lock-Up Agreement described herein
(8) This number consists of 152,315 Shares held by Tynan and 210,000 Shares issuable upon the exercise of director stock options held by Mr. Crowley.
(9) This number excludes Shares subject to the Lock-Up Agreement described herein.
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Page 15 of 17 |
(c) Except as set forth herein, there have been no transactions in Shares by any of the Filing Persons in the past sixty days.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
Item 6 is hereby amended to add the following:
The information set forth in Item 4 is hereby incorporated herein by reference.
Item 7. Materials to be Filed as Exhibits
Item 7 is hereby amended to add the following:
Exhibit 7: Letter Agreement, dated June 2, 2010, by and between ESL Partners, L.P. and Edward S. Lampert.
Exhibit 8: Letter Agreement, dated June 2, 2010, by and between ESL Partners, L.P. and William C. Crowley.
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Page 16 of 17 |
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Dated: June 2, 2010
ESL PARTNERS, L.P.
By: RBS Partners, L.P., as its general partner
By: ESL Investments, Inc., as its general partner
By: /s/ Adrian J. Maizey
Name: Adrian J. Maizey
Title: Chief Financial Officer
ESL INSTITUTIONAL PARTNERS, L.P.
By: RBS Investment Management, L.L.C., as its general partner
By: ESL Investments, Inc., as its manager
By: /s/ Adrian J. Maizey
Name: Adrian J. Maizey
Title: Chief Financial Officer
ESL INVESTORS, L.L.C.
By: RBS Partners, L.P., as its manager
By: ESL Investments, Inc., as its general partner
By: /s/ Adrian J. Maizey
Name: Adrian J. Maizey
Title: Chief Financial Officer
ESL INVESTMENTS, INC.
By: /s/ Adrian J. Maizey
Name: Adrian J. Maizey
Title: Chief Financial Officer
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Page 17 of 17 |
CBL PARTNERS, L.P.
By: ESL Investments, Inc., as its general partner
By: /s/ Adrian J. Maizey
Name: Adrian J. Maizey
Title: Chief Financial Officer
TYNAN, LLC
By: /s/ William C. Crowley
Name: William C. Crowley
Title: Member
ESL INVESTMENT MANAGEMENT, L.P.
By: ESL Investment Management (GP), L.L.C., as its general partner
By: /s/ Edward S. Lampert
Name: Edward S. Lampert
Title: Managing Member
RBS PARTNERS, L.P.
By: ESL Investments, Inc., as its general partner
By: /s/ Adrian J. Maizey
Name: Adrian J. Maizey
Title: Chief Financial Officer
RBS INVESTMENT MANAGEMENT, L.L.C.
By: ESL Investments, Inc., as its manager
By: /s/ Adrian J. Maizey
Name: Adrian J. Maizey
Title: Chief Financial Officer
EDWARD S. LAMPERT
/s/ Edward S. Lampert
Edward S. Lampert
WILLIAM C. CROWLEY
/s/ William C. Crowley
William C. Crowley
Exhibit 7
ESL Partners, L.P.
June 2, 2010
Edward S. Lampert
200 Greenwich Avenue
Greenwich, CT 06830
Re: Lock-Up Agreement
This letter agreement (this Agreement) sets out terms and conditions upon which the securities, cash and cash equivalents set forth on the books and records of ESL Partners, L.P. (ESL Partners) shall be distributed by ESL Partners to the undersigned no later than July 30, 2010 (any such date of distribution, the Distribution Date). The undersigned hereby agrees that, for so l ong as the undersigned, directly or indirectly, holds the Lock-Up Securities (the Lockup Period), the undersigned will not, directly or indirectly, pledge, offer or contract to sell, sell, or otherwise dispose of or transfer any Lock-Up Securities (Dispose, and Disposition shall have a correlative meaning) or use Cash except pursuant to the terms of this Agreement.
Section 1. Additional Definitions.
Affiliate shall mean a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person.
Cash shall mean the amount of cash and cash equivalents distributed by ESL Partners to the undersigned on the Distribution Date, as reduced by the expenditure of such cash and cash equivalents pursuant to this Agreement.
Lock-Up Issuer shall mean a Person that has issued any Lock-Up Securities.
Lock-Up Securities shall mean the securities distributed by ESL Partners to the undersigned on the Distribution Date, together with any additional securities purchased by the undersigned with Cash pursuant to this Agreement.
Person shall be construed broadly and shall include, without limitation, an individual, a partnership, a limited liability company, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof.
Purchase shall mean to offer or contract to purchase, purchase or otherwise acquire for value.
Section 2. Equal Treatment Upon Purchase or Disposition.
(i) In the event that ESL Partners desires to effect any Disposition of Lock-Up Securities to, or Purchase of additional securities from, a Lock-Up Issuer or any other third party, as applicable, (excluding, for the avoidance of doubt, any Affiliate of ESL Partners) in any transaction (a Disposition/Purchase Transaction), ESL Partners shall give prior written notice to the undersigned.
(ii) In any Disposition/Purchase Transaction, subject to the provisions of Section 2(iii), the undersigned and ESL Partners shall Dispose of their respective proportionate share of Lock-Up Securities, or use their respective proportionate share of Cash to Purchase additional securities, including securities of a Lock-Up Issuer, on substantially the same terms and conditions (but in any event at the same price per share and form of consideration), subject to legal, tax, accounting or regulatory considerations; provided that (i) any differences in economic terms and conditions or timing of Disposition/Purchase Transaction resulting from such considerations shall not have an adverse affect on ESL Partners and (ii) prior notice of the Disposition/Purchase Transaction shall be given to the limited partners of ESL Partners to the extent that any Disposition/Purchase Transaction will not be completed by the undersigned at the same time and upon the same terms due to legal, tax, accounting or regulatory consideration, as such transaction is completed by ESL Partners.
(iii) For the avoidance of doubt, and subject to applicable securities laws and regulations, the undersigned may Dispose of any Lock-Up Securities or use Cash in the same manner and on the same terms and conditions to which the undersigned would have been entitled had the Lock-Up Securities or Cash, as applicable, been held directly or indirectly by the undersigned through ESL Partners and then had been distributed, directly or indirectly, to the undersigned pursuant to the terms of the Sixth Amended and Restated Limited Partnership Agreement of ESL Partners, as amended from time to time (the Partnership A greement) (but, for purposes of this Section 2(iii), not incorporating the terms of Amendment No. 4 to the Partnership Agreement), including, without limitation, any required notices thereunder.
Section 3. No Dispositions or Purchases. Except as set forth in Section 2(iii), without the prior written consent of ESL Partners, the undersigned shall not make any Disposition of Lock-Up Securities or use Cash to make any Purchase, whether directly or indirectly. Any Disposition or Purchase, or attempted Disposition or Purchase, in breach of this Agreement shall be void ab initio and of no effect.
Section 4. Use of Cash. Pursuant to the terms of Section 2(ii) and Section 3, and except as set forth in Section 2(iii), the undersigned shall use the Cash received on the Distribution Date to invest in additional securities, including securities of the Lock-Up Issuer, as ESL Partners buys additional securities or, at the discretion of the General Partner of ESL Partners, shall use the Cash to reinvest such proceeds into ESL Partners in the event that any limited partner of ESL Partners seeks to redeem or transfer its limited partnership interests in ESL Partners. Notwithstanding the foregoing, the undersigned may use Cash to pay taxes, if any, resulting from the distribution of Lock-Up Securities and Cash to the undersigned. Any use of Cash in breach of this Agreement shall be void ab initio and of no effect.
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Section 5. Amendment. This Agreement may be amended, modified, supplemented or waived from time to time by an instrument in writing signed by the parties hereto. The limited partners of ESL Partners shall receive notice of any amendment to this Agreement.
Section 6. Effective Date. This Agreement shall be effective as of the Distribution Date.
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Very truly yours,
Signature: /s/ Edward S. Lampert
Print Name: Edward S. Lampert
Date: June 2, 2010
Received and Acknowledged By:
ESL Partners, L.P.
By: RBS Partners, L.P.,
its General Partner
By: ESL Investments, Inc.
its General Partner
By: /s/ Adrian J. Maizey ______________
Adrian J. Maizey, Chief Financial Officer
&nb sp; |
[Signature Page to Lock-Up Agreement ]
Exhibit 8
ESL Partners, L.P.
June 2, 2010
William C. Crowley
200 Greenwich Avenue
Greenwich, CT 06830
Re: Lock-Up Agreement
This letter agreement (this Agreement) sets out terms and conditions upon which the securities, cash and cash equivalents set forth on the books and records of ESL Partners, L.P. (ESL Partners) shall be distributed by ESL Partners to the undersigned no later than July 30, 2010 (any such date of distribution, the Distribution Date). The undersigned hereby agrees that, for so l ong as the undersigned, directly or indirectly, holds the Lock-Up Securities (the Lockup Period), the undersigned will not, directly or indirectly, pledge, offer or contract to sell, sell, or otherwise dispose of or transfer any Lock-Up Securities (Dispose, and Disposition shall have a correlative meaning) or use Cash except pursuant to the terms of this Agreement.
Section 1. Additional Definitions.
Affiliate shall mean a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person.
Cash shall mean the amount of cash and cash equivalents distributed by ESL Partners to the undersigned on the Distribution Date, as reduced by the expenditure of such cash and cash equivalents pursuant to this Agreement.
Lock-Up Issuer shall mean a Person that has issued any Lock-Up Securities.
Lock-Up Securities shall mean the securities distributed by ESL Partners to the undersigned on the Distribution Date, together with any additional securities purchased by the undersigned with Cash pursuant to this Agreement.
Person shall be construed broadly and shall include, without limitation, an individual, a partnership, a limited liability company, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof.
Purchase shall mean to offer or contract to purchase, purchase or otherwise acquire for value.
Section 2. Equal Treatment Upon Purchase or Disposition.
(i) In the event that ESL Partners desires to effect any Disposition of Lock-Up Securities to, or Purchase of additional securities from, a Lock-Up Issuer or any other third party, as applicable, (excluding, for the avoidance of doubt, any Affiliate of ESL Partners) in any transaction (a Disposition/Purchase Transaction), ESL Partners shall give prior written notice to the undersigned.
(ii) In any Disposition/Purchase Transaction, subject to the provisions of Section 2(iii), the undersigned and ESL Partners shall Dispose of their respective proportionate share of Lock-Up Securities, or use their respective proportionate share of Cash to Purchase additional securities, including securities of a Lock-Up Issuer, on substantially the same terms and conditions (but in any event at the same price per share and form of consideration), subject to legal, tax, accounting or regulatory considerations; provided that (i) any differences in economic terms and conditions or timing of Disposition/Purchase Transaction resulting from such considerations shall not have an adverse affect on ESL Partners and (ii) prior notice of the Disposition/Purchase Transaction shall be given to the limited partners of ESL Partners to the extent that any Disposition/Purchase Transaction will not be completed by the undersigned at the same time and upon the same terms due to legal, tax, accounting or regulatory consideration, as such transaction is completed by ESL Partners.
(iii) For the avoidance of doubt, and subject to applicable securities laws and regulations, the undersigned may Dispose of any Lock-Up Securities or use Cash in the same manner and on the same terms and conditions to which the undersigned would have been entitled had the Lock-Up Securities or Cash, as applicable, been held directly or indirectly by the undersigned through ESL Partners and then had been distributed, directly or indirectly, to the undersigned pursuant to the terms of the Sixth Amended and Restated Limited Partnership Agreement of ESL Partners, as amended from time to time (the Partnership A greement) (but, for purposes of this Section 2(iii), not incorporating the terms of Amendment No. 4 to the Partnership Agreement), including, without limitation, any required notices thereunder.
Section 3. No Dispositions or Purchases. Except as set forth in Section 2(iii), without the prior written consent of ESL Partners, the undersigned shall not make any Disposition of Lock-Up Securities or use Cash to make any Purchase, whether directly or indirectly. Any Disposition or Purchase, or attempted Disposition or Purchase, in breach of this Agreement shall be void ab initio and of no effect.
Section 4. Use of Cash. Pursuant to the terms of Section 2(ii) and Section 3, and except as set forth in Section 2(iii), the undersigned shall use the Cash received on the Distribution Date to invest in additional securities, including securities of the Lock-Up Issuer, as ESL Partners buys additional securities or, at the discretion of the General Partner of ESL Partners, shall use the Cash to reinvest such proceeds into ESL Partners in the event that any limited partner of ESL Partners seeks to redeem or transfer its limited partnership interests in ESL Partners. Notwithstanding the foregoing, the undersigned may use Cash to pay taxes, if any, resulting from the distribution of Lock-Up Securities and Cash to the undersigned. Any use of Cash in breach of this Agreement shall be void ab initio and of no effect.
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Section 5. Amendment. This Agreement may be amended, modified, supplemented or waived from time to time by an instrument in writing signed by the parties hereto. The limited partners of ESL Partners shall receive notice of any amendment to this Agreement.
Section 6. Effective Date. This Agreement shall be effective as of the Distribution Date.
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Very truly yours,
Signature: /s/ William C. Crowley
Print Name: William C. Crowley
Date: June 2, 2010
Received and Acknowledged By:
ESL Partners, L.P.
By: RBS Partners, L.P.,
its General Partner
By: ESL Investments, Inc.
its General Partner
By: /s/ Adrian J. Maizey ______________
Adrian J. Maizey, Chief Financial Officer
&nb sp; |
[Signature Page to Lock-Up Agreement ]