0001341004-12-000186.txt : 20120208 0001341004-12-000186.hdr.sgml : 20120208 20120208105735 ACCESSION NUMBER: 0001341004-12-000186 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20120208 DATE AS OF CHANGE: 20120208 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: PEP BOYS MANNY MOE & JACK CENTRAL INDEX KEY: 0000077449 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-AUTO & HOME SUPPLY STORES [5531] IRS NUMBER: 230962915 STATE OF INCORPORATION: PA FISCAL YEAR END: 0202 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-18769 FILM NUMBER: 12580316 BUSINESS ADDRESS: STREET 1: 3111 W ALLEGHENY AVE CITY: PHILADELPHIA STATE: PA ZIP: 19132 BUSINESS PHONE: 2152299000 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: BlackRock Inc. CENTRAL INDEX KEY: 0001364742 STANDARD INDUSTRIAL CLASSIFICATION: SECURITY BROKERS, DEALERS & FLOTATION COMPANIES [6211] IRS NUMBER: 320174431 STATE OF INCORPORATION: DE FISCAL YEAR END: 0226 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 55 EAST 52ND STREET CITY: NEW YORK STATE: NY ZIP: 10055 BUSINESS PHONE: 212-810-5300 MAIL ADDRESS: STREET 1: 55 EAST 52ND STREET CITY: NEW YORK STATE: NY ZIP: 10055 FORMER COMPANY: FORMER CONFORMED NAME: BlackRock, Inc. DATE OF NAME CHANGE: 20060929 FORMER COMPANY: FORMER CONFORMED NAME: New BlackRock, Inc. DATE OF NAME CHANGE: 20060601 SC 13D 1 sc13d.htm SCHEDULE 13D sc13d.htm


SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

SCHEDULE 13D
(Rule 13d-101)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO § 240.13d-1(a) AND AMENDMENTS THERETO FILED
PURSUANT TO § 240.13d-2(a)

UNDER THE SECURITIES EXCHANGE ACT OF 1934

THE PEP BOYS – MANNY, MOE & JACK
--------------------------------------------------------
(Name of Issuer)

Common Stock
--------------------------------------------------------
(Title of Class of Securities)

713278109
--------------------------------------------------------
(CUSIP Number)

Daniel R. Waltcher
Deputy General Counsel
BlackRock, Inc.
55 East 52nd Street
New York, NY 10055
(212) 810-5300
--------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

January 29, 2012
--------------------------------------------------------
(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. [X]

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 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 (“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).

 
 
 
 
CUSIP No.  713278109
Page 2 of 6 Pages


1
NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
 
BLACKROCK, INC. (TIN: 32-0174431)
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o
(b) x
 
3
SEC USE ONLY
 
 
4
SOURCE OF FUNDS
 
OO - Funds of investment advisory clients.
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
  o
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
Delaware
 
 
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
7
SOLE VOTING POWER
 
8
SHARED VOTING POWER
4,450,274
 
9
SOLE DISPOSITIVE POWER
 
10
SHARED DISPOSITIVE POWER
4,450,274
 
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,450,274
 
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) See Item 5 herein.  Excludes 1,200,000 shares beneficially owned by The Gores Group, LLC and/or its affiliates.
 x
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.4%
 
14
TYPE OF REPORTING PERSON
 
HC
 
 
 
 
 
CUSIP No.  713278109
Page 3 of 6 Pages


Item 1.    Security and Issuer
 
This Schedule 13D (this “Schedule”) relates to the common stock, par value $1.00 per share (“Common Stock”) of The Pep Boys – Manny, Moe & Jack, a Pennsylvania corporation (the “Issuer”).
 
The principal executive offices of the Issuer are located at 3111 W. Allegheny Ave. Philadelphia, PA 19132.
 
Item 2.    Identity and Background
 
This Schedule is being filed by BlackRock, Inc. (the “Reporting Person”).  The Reporting Person is a Delaware corporation that, through its subsidiaries, provides diversified investment management directly and indirectly through various investment products to institutions, intermediaries and individual investors. Investment management services primarily consist of the management of equity, fixed income, multi-asset class, alternative investment and cash management products. The Reporting Person, through its subsidiaries, offers its investment products in a variety of accounts, including open-end and closed-end mutual funds, iShares® exchange-traded funds, collective investment trusts and separate accounts. In addition, the Reporting Person, through its subsidiaries, provides market risk management, financial markets advisory and enterprise investment system services to a broad base of clients. Financial markets advisory services include valuation services relating to illiquid securities, dispositions and workout assignments (including long-term portfolio liquidation assignments), risk management and strategic planning and execution.  The principal office and business address of the Reporting Person is 55 East 52nd Street, New York, NY 10055.
 
Certain of the securities reported herein were previously included in a statement on Schedule 13G filed by the Reporting Person on December 31, 2009 as amended most recently on February 8, 2011.  The Reporting Person does not believe it is required to file a Schedule 13D in respect of the Common Stock of the Issuer pursuant to Rule 13d-1 under the Securities Exchange Act of 1934, as amended (the “Act”), because the investment intent of the Reporting Person and its subsidiaries that may be deemed to beneficially own the shares of Common Stock to which this Schedule relates has not changed such that the Reporting Person would cease to be permitted to make use of Schedule 13G pursuant to Rule 13d-1(b).  However, the Reporting Person is voluntarily filing this Schedule because certain of its affiliates entered into the transaction described in Item 4 below.  Neither the filing of this Schedule nor any of its contents shall be deemed to constitute an admission by the Reporting Person that it is the beneficial owner of any of the Common Stock beneficially owned by The Gores Group, LLC (“Gores”) and/or its affiliates for purposes of Section 13(d) of the Act or for any other purpose, and such beneficial ownership is expressly disclaimed.
 
(a) – (c) and (f) For information required by Instruction C to Schedule 13D with respect to the officers and directors of the Reporting Person (collectively, the “Covered Persons”), reference is made to Schedule A annexed hereto and incorporated herein by reference.
 
(d) During the last five years, neither the Reporting Person nor, to the knowledge of the Reporting Person, any of the Covered Persons has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).
 
(e) During the last five years, neither the Reporting Person nor, to the knowledge of the Reporting Person, any of the Covered Persons was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
 
Neither the present filing nor anything contained herein shall be construed as an admission that the Reporting Person constitutes a “person” for any purposes other than Section 13(d) of the Securities Exchange Act of 1934.

Item 3.    Source and Amount of Funds or Other Consideration
 
The aggregate purchase price of the 4,450,274 shares of Common Stock of the Issuer beneficially owned by the Reporting Person is $49,662,119. The shares were acquired with available funds of the applicable customer funds and investment accounts for which certain of the Reporting Person’s subsidiaries act as investment advisers.

Item 4.    Purpose of Transaction
 
All of the shares of Common Stock of the Issuer were acquired for investment purposes by funds and accounts for which certain of the Reporting Person’s subsidiaries act as investment advisers.
 
On January 29, 2012, Portfolio Administration & Management Ltd. (“PAM”), a subsidiary of the Reporting Person, on behalf of certain funds managed by subsidiaries of the Reporting Person, entered into an Equity Commitment Letter Agreement (the

 
 
 
 
CUSIP No.  713278109
Page 4 of 6 Pages


“Commitment Letter”) with Gores.  Pursuant to the Commitment Letter, PAM, on behalf of such funds, irrevocably committed, on the terms and subject to the conditions set forth therein, to purchase, with funds to be provided by such funds, $80,000,000 dollars of equity interests in Auto Co-Investors, LLC, a Delaware limited liability company (“Holdco”) which has been formed for the purpose of acquiring Auto Acquisition Company, LLC, a Delaware limited liability company (“Parent”), which, in turn, was formed to acquire, together with a special purpose vehicle owned by Gores Capital Partners III, L.P. and affiliates of Gores, the Issuer pursuant to that certain Agreement and Plan of Merger, dated on or about January 29, 2012 (the “Merger Agreement”), by and among Parent, Auto Mergersub, Inc., a Pennsylvania corporation (“Merger Sub”), and the Issuer, on the terms and subject to the conditions set forth in the Merger Agreement (the “Transaction”).  The Merger Agreement provides that Merger Sub will merge with and into the Issuer (the “Merger”) on the terms and subject to the conditions set forth therein, with the Issuer surviving the Merger as a wholly owned subsidiary of Parent, and the Common Stock of the Issuer issued and outstanding immediately prior to the effectiveness of the Merger being converted into the right to receive $15 per share in cash, without interest.  The Merger Agreement provides for various closing conditions including approval of a majority of the outstanding shares of Common Stock of the Issuer, regulatory approvals and other closing conditions.
 
PAM’s entry into the Commitment Letter on behalf of certain funds managed by subsidiaries of the Reporting Person will not have an impact on the Reporting Person’s subsidiaries’ exercise of investment or voting power with respect to the shares of Common Stock of the Issuer to which this Schedule relates.
 
Except as set forth in this Schedule, the Reporting Person has no present plans or proposals that relate to or would result in any of the actions described in Item 4(a) through (j) of Schedule 13D.  Each of the Reporting Person’s advisory subsidiaries may evaluate on a continuing basis its client accounts’ investment in the Issuer and the Reporting Person expects that such subsidiaries may from time to time acquire or dispose of shares of Common Stock or other securities of the Issuer on behalf of such client accounts.  Any acquisitions or dispositions will depend upon (i) the price and availability of the Issuer’s securities; (ii) subsequent developments concerning the Issuer’s business and prospects and the industry in which the Issuer operates; (iii) the Reporting Person’s advisory subsidiaries’ general investment policies with respect to the applicable accounts managed by the Reporting Person’s advisory subsidiaries; (iv) other investment and business opportunities available to the Reporting Person’s advisory subsidiaries on behalf of their clients; (v) general market and economic conditions; (vi) tax considerations and (vii) such other factors as the Reporting Person’s advisory subsidiaries may consider relevant.  Any such acquisitions or dispositions may be made, subject to applicable law, in open market transactions or privately negotiated transactions.

Item 5.    Interest in Securities of the Issuer
 
(a) − (b) The responses of the Reporting Person to Rows (7) through (11) of the cover page of this Schedule are incorporated herein by reference.  In addition, pursuant to Section 13(d)(3) of the Act, the Reporting Person and Gores and/or its affiliates may on the basis of the facts described elsewhere herein be considered to be a “group”.  The Reporting Person disclaims any membership or participation in a “group” with Gores and/or its affiliates and further disclaims beneficial ownership of any shares of Common Stock beneficially owned by Gores and/or its affiliates, including 1,200,000 shares of Common Stock believed to be beneficially owned by Gores and/or its affiliates on the date hereof.
 
The shares of Common Stock of the Issuer beneficially owned by the Reporting Person include shares of Common Stock beneficially owned by subsidiaries of the Reporting Person including BlackRock Asset Management Australia Limited, BlackRock Japan Co Ltd, BlackRock Asset Management Canada Limited, BlackRock Asset Management Ireland Limited, BlackRock International Limited, BlackRock Investment Management, LLC, BlackRock Advisors, LLC, BlackRock Institutional Trust Company, N.A., and BlackRock Fund Advisors, none of which beneficially owns in excess of 5% of the outstanding Common Stock of the Issuer.
 
Except as set forth herein, neither the Reporting Person nor, to the knowledge of the Reporting Person, the Covered Persons beneficially owned any shares of Common Stock of the Issuer as of February 3, 2012, the nearest practicable date prior to the filing of this Schedule.
 
(c) Schedule B sets forth transactions in the Common Stock of the Issuer that were effected during the sixty day period ending February 3, 2012, the nearest practicable date prior to the filing of this Schedule.  The transactions in the Common Stock described on Schedule B were effected on the New York Stock Exchange or privately negotiated, as indicated therein.
 
(d) Except for investment advisory clients of the Reporting Person’s subsidiaries who may have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, shares of Common Stock, no other person is known by the Reporting Person to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, any shares of Common Stock of the Issuer beneficially owned by the Reporting Person.

 
 
 
 
CUSIP No.  713278109
Page 5 of 6 Pages


The information set forth in Rows 7 through 13 of the cover page of this Schedule for the Reporting Person is incorporated herein by reference.  The percentage amount set forth in Row 13 of the cover page of this Schedule is calculated based upon the 52,720,713 Shares issued and outstanding as reported by the Issuer as of November 25, 2011 in its most recently filed Form 10-Q for the quarterly period ended October 29, 2011.

Item 6.    Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
 
The information set forth in Item 4 is hereby incorporated herein by reference.
 
Except as set forth in this Schedule, there are no contracts, arrangements, understandings or relationships between the Reporting Person and any other person with respect to any securities of the Issuer or among the investment advisory subsidiaries of the Reporting Person, including but not limited to transfer or voting of any securities of the Issuer, finder’s fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies.

Item 7.    Material to Be Filed as Exhibits

Exhibit No.
  
Description
     
1.
  
Commitment Letter, dated January 29, 2012, by and between Portfolio Administration & Management Ltd. on behalf of private equity funds, and The Gores Group LLC.
2.
  
Power of Attorney, dated December 14, 2009, relating to BlackRock, Inc. (incorporated by reference to Exhibit B to Schedule 13G filed by BlackRock, Inc. on January 29, 2010 (SEC file number 005-18769)), hereby incorporated herein.
 
 
 
 
 
CUSIP No.  713278109
Page 6 of 6 Pages


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: February 8, 2012
   
 
BLACKROCK, INC.
   
 
By:
  
/s/ Matthew J. Fitzgerald
 
Name:
  
Matthew J. Fitzgerald
 
Title:
  
Attorney-In-Fact
 
 
 
 

Schedule A
 
The following is a list of the executive officers and directors of the Reporting Person, setting forth the present principal occupation or employment and the name, principal business and address of any corporation or other organization in which such employment is conducted and citizenship for each such person.

BlackRock, Inc.

Executive Officers
Name
Business Address
Present Principal Occupation or Employment / Name and Address of Any Other Corporation
Citizenship
Laurence D. Fink
55 East 52nd Street
New York, NY 10055
Chief Executive Officer
U.S.
Robert S. Kapito
55 East 52nd Street
New York, NY 10055
President
U.S.
Robert W. Fairbairn
55 East 52nd Street
New York, NY 10055
Senior Managing Director, Head of Global Client Group
U.S.
Bennett W. Golub
55 East 52nd Street
New York, NY 10055
Chief Risk Officer and Senior Managing Director
U.S.
Charles S. Hallac
55 East 52nd Street
New York, NY 10055
Chief Operating Officer and Senior Managing Director
U.S.
J. Richard Kushel
55 East 52nd Street
New York, NY 10055
Senior Managing Director, Head of Portfolio Managing Group
U.S.
Ann Marie Petach
55 East 52nd Street
New York, NY 10055
Chief Financial Officer and Senior Managing Director
U.S.
Linda Gosden Robinson
55 East 52nd Street
New York, NY 10055
Senior Managing Director and Head of Marketing and Communications
U.S.
Susan L. Wagner
55 East 52nd Street
New York, NY 10055
Vice Chairman
U.S.
Kendrick R. Wilson, III
55 East 52nd Street
New York, NY 10055
Vice Chairman
U.S.
Joseph Feliciani
55 East 52nd Street
New York, NY 10055
Chief Accounting Officer
U.S.
N. James Charrington
33 King William Street,
London, England,
EC4R 9AS,
United Kingdom
Senior Managing Director
British
Mark McCombe
2 Queen’s Road Central Cheung
Kong Center
Hong Kong, China
Senior Managing Director, Chairman of Asia-Pacific
British
Jeffrey A. Smith
55 East 52nd Street
New York, NY 10055
Senior Managing Director and Head of Human Resources
U.S.
 
 
 
 

Directors
Name
Business Address
Present Principal Occupation or Employment / Name and Address of Any Other Corporation
Citizenship
Laurence D. Fink
BlackRock, Inc.
55 East 52nd Street
New York, NY 10055
Chief Executive Officer
U.S.
Robert S. Kapito
BlackRock, Inc.
55 East 52nd Street
New York, NY 10055
President
U.S.
Abdlatif Al-Hamad
Arab Fund for Economic & Social Development,
Airport Boulevard
Shuwaikh, Kuwait
Arab Fund for Economic & Social Development - Chairman, Director General
Kuwaiti
Mathis Cabiallavetta
Swiss Reinsurance Company Ltd.
Mythenquai 50/60  CH-8022
Zurich, Switzerland
Swiss Reinsurance Company Ltd. - Vice Chairman
Swiss
Dennis D. Dammerman
BlackRock, Inc.
55 East 52nd Street
New York, NY 10055
Retired
U.S.
William S. Demchak
PNC Financial Services Group Inc.
One PNC Plaza Avenue
Pittsburgh, PA 15222
PNC Financial Services Group Inc. - Senior Vice Chairman
U.S.
Robert E. Diamond, Jr.
Barclays Capital
745 7th Avenue
New York, NY 10019
Barclays Capital - Chief Executive Officer
U.S.
Murry S. Gerber
BlackRock, Inc.
55 East 52nd Street
New York, NY 10055
Retired
U.S.
James Grosfeld
BlackRock, Inc.
55 East 52nd Street
New York, NY 10055
Retired
U.S.
David H. Komansky
BlackRock, Inc.
55 East 52nd Street
New York, NY 10055
Retired
U.S.
Sir Deryck Maughan
Kohlberg Kravis Roberts & Co.
9 West 57th Street
Suite 4200
New York, NY 10019
Kohlberg Kravis Roberts & Co. – Head of Financial Institutions Group
British
Thomas K. Montag
Bank of America
One Bryant Park
4th Floor
New York, NY 10036
Bank of America - Co-Chief Operating Officer
U.S.
 
 
 
 

Name
Business Address
Present Principal Occupation or Employment / Name and Address of Any Other Corporation
Citizenship
Thomas H. O’Brien
BlackRock, Inc.
55 East 52nd Street
New York, NY 10055
Retired
U.S.
James E. Rohr
The PNC Financial Services Group, Inc.
One PNC Plaza,
249 Fifth Avenue,
2nd Floor
Pittsburgh, PA 15222
The PNC Financial Services Group, Inc. – Chief Executive Officer and Chairman
U.S.
Ivan G. Seidenberg
BlackRock, Inc.
55 East 52nd Street
New York, NY 10055
Retired
U.S.
Marco Antonio Slim Domit
Grupo Financiero Inbursa, S.A.B. de C.V.
Av. Paseo de las Palmas #736
Floor 1
Colonia Lomas de Chapultepec
C.P. 11000, Mexico P.F.
Grupo Financiero Inbursa, S.A.B. de C.V. – Chairman and Chief Executive Officer
Mexican
John S. Varley
BlackRock, Inc.
55 East 52nd Street
New York, NY 10055
Retired
British
 
 
 
 

Schedule B

Transactions in Common Stock
 
Legal Entity
Trade Date
Amount
Trade Price
BUY/SELL
Execution Type
BlackRock Advisors, LLC
21-Dec-11
1,848
10.93
BUY
NYSE
BlackRock Advisors, LLC
21-Dec-11
6,952
10.93
BUY
NYSE
BlackRock Advisors, LLC
28-Dec-11
3,254
11.00
BUY
NYSE
BlackRock Advisors, LLC
28-Dec-11
12,247
11.00
BUY
NYSE
BlackRock Advisors, LLC
30-Dec-11
1,231
11.00
SELL
NYSE
BlackRock Advisors, LLC
30-Dec-11
25,200
11.01
SELL
NYSE
BlackRock Advisors, LLC
6-Jan-12
17,600
10.90
BUY
NYSE
BlackRock Advisors, LLC
6-Jan-12
67,600
10.90
BUY
NYSE
BlackRock Advisors, LLC
18-Jan-12
463
10.89
SELL
NYSE
BlackRock Asset Management Canada Limited
7-Dec-11
707
10.81
SELL
NYSE
BlackRock Asset Management Ireland Limited
5-Dec-11
618
11.86
BUY
NYSE
BlackRock Asset Management Ireland Limited
5-Dec-11
618
11.86
BUY
NYSE
BlackRock Asset Management Ireland Limited
12-Dec-11
620
11.06
SELL
NYSE
BlackRock Asset Management Ireland Limited
13-Dec-11
310
10.77
SELL
NYSE
BlackRock Fund Advisors
5-Dec-11
13,098
11.86
BUY
PRIVATE
BlackRock Fund Advisors
5-Dec-11
1,770
11.86
BUY
PRIVATE
BlackRock Fund Advisors
5-Dec-11
2,655
11.86
BUY
PRIVATE
BlackRock Fund Advisors
5-Dec-11
13,098
11.86
BUY
PRIVATE
BlackRock Fund Advisors
5-Dec-11
10,089
11.86
BUY
PRIVATE
BlackRock Fund Advisors
5-Dec-11
1,770
11.86
SELL
PRIVATE
BlackRock Fund Advisors
5-Dec-11
1,770
11.86
SELL
PRIVATE
BlackRock Fund Advisors
5-Dec-11
28,320
11.86
SELL
PRIVATE
BlackRock Fund Advisors
5-Dec-11
1,570
11.86
BUY
PRIVATE
BlackRock Fund Advisors
5-Dec-11
3,840
11.86
SELL
PRIVATE
BlackRock Fund Advisors
6-Dec-11
10,797
11.19
BUY
PRIVATE
BlackRock Fund Advisors
6-Dec-11
9,735
11.19
BUY
PRIVATE
BlackRock Fund Advisors
6-Dec-11
7,080
11.19
SELL
PRIVATE
BlackRock Fund Advisors
6-Dec-11
6,549
11.19
SELL
PRIVATE
BlackRock Fund Advisors
6-Dec-11
10,620
11.19
SELL
PRIVATE
BlackRock Fund Advisors
6-Dec-11
7,080
11.19
SELL
PRIVATE
BlackRock Fund Advisors
6-Dec-11
314
11.19
BUY
PRIVATE
BlackRock Fund Advisors
6-Dec-11
1,884
11.19
BUY
PRIVATE
BlackRock Fund Advisors
6-Dec-11
384
11.19
BUY
PRIVATE
BlackRock Fund Advisors
7-Dec-11
5,310
10.81
BUY
PRIVATE
BlackRock Fund Advisors
7-Dec-11
21,240
10.81
SELL
PRIVATE
BlackRock Fund Advisors
7-Dec-11
5,133
10.81
SELL
PRIVATE
BlackRock Fund Advisors
7-Dec-11
2,826
10.81
BUY
PRIVATE
BlackRock Fund Advisors
7-Dec-11
1,884
10.81
SELL
PRIVATE
BlackRock Fund Advisors
7-Dec-11
56
10.81
SELL
PRIVATE
 
 
 
 
 
Legal Entity
Trade Date
Amount
Trade Price
BUY/SELL
Execution Type
BlackRock Fund Advisors
7-Dec-11
4,469
10.81
BUY
NYSE
BlackRock Fund Advisors
7-Dec-11
790
10.81
BUY
NYSE
BlackRock Fund Advisors
7-Dec-11
447
10.81
BUY
NYSE
BlackRock Fund Advisors
8-Dec-11
708
10.73
BUY
PRIVATE
BlackRock Fund Advisors
8-Dec-11
3,363
10.73
BUY
PRIVATE
BlackRock Fund Advisors
8-Dec-11
885
10.73
BUY
PRIVATE
BlackRock Fund Advisors
8-Dec-11
5,310
10.73
BUY
PRIVATE
BlackRock Fund Advisors
8-Dec-11
8,673
10.73
SELL
PRIVATE
BlackRock Fund Advisors
8-Dec-11
3,186
10.73
SELL
PRIVATE
BlackRock Fund Advisors
8-Dec-11
6,195
10.73
SELL
PRIVATE
BlackRock Fund Advisors
8-Dec-11
19,293
10.73
SELL
PRIVATE
BlackRock Fund Advisors
8-Dec-11
3,860
10.73
BUY
PRIVATE
BlackRock Fund Advisors
9-Dec-11
23
11.10
BUY
PRIVATE
BlackRock Fund Advisors
9-Dec-11
7,611
11.10
BUY
PRIVATE
BlackRock Fund Advisors
9-Dec-11
18,054
11.10
BUY
PRIVATE
BlackRock Fund Advisors
9-Dec-11
5,310
11.10
BUY
PRIVATE
BlackRock Fund Advisors
9-Dec-11
14,160
11.10
BUY
PRIVATE
BlackRock Fund Advisors
9-Dec-11
2,301
11.10
BUY
PRIVATE
BlackRock Fund Advisors
9-Dec-11
942
11.10
BUY
PRIVATE
BlackRock Fund Advisors
9-Dec-11
2,796
11.10
BUY
NYSE
BlackRock Fund Advisors
12-Dec-11
708
11.06
BUY
PRIVATE
BlackRock Fund Advisors
12-Dec-11
10,620
11.06
SELL
PRIVATE
BlackRock Fund Advisors
12-Dec-11
11,859
11.06
SELL
PRIVATE
BlackRock Fund Advisors
12-Dec-11
8,850
11.06
SELL
PRIVATE
BlackRock Fund Advisors
12-Dec-11
3,009
11.06
SELL
PRIVATE
BlackRock Fund Advisors
12-Dec-11
42
11.06
BUY
PRIVATE
BlackRock Fund Advisors
12-Dec-11
42
11.06
BUY
PRIVATE
BlackRock Fund Advisors
12-Dec-11
386
11.06
BUY
PRIVATE
BlackRock Fund Advisors
12-Dec-11
386
11.06
BUY
PRIVATE
BlackRock Fund Advisors
13-Dec-11
8,142
10.53
BUY
PRIVATE
BlackRock Fund Advisors
13-Dec-11
6,903
10.53
BUY
PRIVATE
BlackRock Fund Advisors
13-Dec-11
1,239
10.53
SELL
PRIVATE
BlackRock Fund Advisors
13-Dec-11
1,902
10.53
BUY
PRIVATE
BlackRock Fund Advisors
13-Dec-11
951
10.53
BUY
PRIVATE
BlackRock Fund Advisors
13-Dec-11
1,158
10.53
BUY
PRIVATE
BlackRock Fund Advisors
13-Dec-11
1,930
10.53
BUY
PRIVATE
BlackRock Fund Advisors
13-Dec-11
2,316
10.53
BUY
PRIVATE
BlackRock Fund Advisors
14-Dec-11
4,956
10.51
SELL
PRIVATE
BlackRock Fund Advisors
14-Dec-11
9,204
10.51
SELL
PRIVATE
BlackRock Fund Advisors
14-Dec-11
18,762
10.51
SELL
PRIVATE
BlackRock Fund Advisors
14-Dec-11
2,655
10.51
SELL
PRIVATE
BlackRock Fund Advisors
14-Dec-11
31
10.51
BUY
PRIVATE
 
 
 
 

Legal Entity
Trade Date
Amount
Trade Price
BUY/SELL
Execution Type
BlackRock Fund Advisors
14-Dec-11
17,370
10.51
BUY
PRIVATE
BlackRock Fund Advisors
14-Dec-11
42,174
10.51
BUY
PRIVATE
BlackRock Fund Advisors
15-Dec-11
8,142
10.69
BUY
PRIVATE
BlackRock Fund Advisors
15-Dec-11
2,301
10.69
SELL
PRIVATE
BlackRock Fund Advisors
15-Dec-11
1,268
10.69
BUY
PRIVATE
BlackRock Fund Advisors
15-Dec-11
42
10.69
BUY
PRIVATE
BlackRock Fund Advisors
15-Dec-11
62
10.69
BUY
PRIVATE
BlackRock Fund Advisors
15-Dec-11
3,088
10.69
BUY
PRIVATE
BlackRock Fund Advisors
15-Dec-11
1,562
10.69
SELL
PRIVATE
BlackRock Fund Advisors
16-Dec-11
8,142
10.83
BUY
PRIVATE
BlackRock Fund Advisors
16-Dec-11
2,124
10.83
BUY
PRIVATE
BlackRock Fund Advisors
16-Dec-11
2,124
10.83
SELL
PRIVATE
BlackRock Fund Advisors
16-Dec-11
7,434
10.83
SELL
PRIVATE
BlackRock Fund Advisors
16-Dec-11
20,001
10.83
SELL
PRIVATE
BlackRock Fund Advisors
16-Dec-11
951
10.83
SELL
PRIVATE
BlackRock Fund Advisors
16-Dec-11
2,855
10.83
SELL
PRIVATE
BlackRock Fund Advisors
16-Dec-11
5,404
10.83
BUY
PRIVATE
BlackRock Fund Advisors
16-Dec-11
847
10.82
BUY
NYSE
BlackRock Fund Advisors
16-Dec-11
1,742
10.83
BUY
PRIVATE
BlackRock Fund Advisors
16-Dec-11
17,954
10.83
SELL
PRIVATE
BlackRock Fund Advisors
19-Dec-11
7,434
10.44
BUY
PRIVATE
BlackRock Fund Advisors
19-Dec-11
3,960
10.44
SELL
PRIVATE
BlackRock Fund Advisors
19-Dec-11
6,726
10.44
SELL
PRIVATE
BlackRock Fund Advisors
19-Dec-11
4,071
10.44
BUY
PRIVATE
BlackRock Fund Advisors
19-Dec-11
1,570
10.44
BUY
PRIVATE
BlackRock Fund Advisors
19-Dec-11
1,770
10.44
SELL
PRIVATE
BlackRock Fund Advisors
19-Dec-11
10,620
10.44
BUY
PRIVATE
BlackRock Fund Advisors
19-Dec-11
28,320
10.44
BUY
PRIVATE
BlackRock Fund Advisors
20-Dec-11
3,894
11.09
BUY
PRIVATE
BlackRock Fund Advisors
20-Dec-11
16,107
11.09
SELL
PRIVATE
BlackRock Fund Advisors
20-Dec-11
7,080
11.09
BUY
PRIVATE
BlackRock Fund Advisors
20-Dec-11
628
11.09
SELL
PRIVATE
BlackRock Fund Advisors
20-Dec-11
5,310
11.09
SELL
PRIVATE
BlackRock Fund Advisors
20-Dec-11
396
11.09
SELL
PRIVATE
BlackRock Fund Advisors
20-Dec-11
354
11.09
BUY
PRIVATE
BlackRock Fund Advisors
20-Dec-11
31
11.09
BUY
PRIVATE
BlackRock Fund Advisors
20-Dec-11
22,656
11.09
BUY
PRIVATE
BlackRock Fund Advisors
20-Dec-11
396
11.09
BUY
PRIVATE
BlackRock Fund Advisors
20-Dec-11
177
11.09
BUY
PRIVATE
BlackRock Fund Advisors
20-Dec-11
4,425
11.09
BUY
PRIVATE
BlackRock Fund Advisors
20-Dec-11
25,665
11.09
BUY
PRIVATE
BlackRock Fund Advisors
21-Dec-11
3,540
11.26
BUY
PRIVATE
 
 
 
 

Legal Entity
Trade Date
Amount
Trade Price
BUY/SELL
Execution Type
BlackRock Fund Advisors
21-Dec-11
12,390
11.26
SELL
PRIVATE
BlackRock Fund Advisors
21-Dec-11
1,980
11.26
SELL
PRIVATE
BlackRock Fund Advisors
21-Dec-11
1,770
11.26
BUY
PRIVATE
BlackRock Fund Advisors
21-Dec-11
942
11.26
BUY
PRIVATE
BlackRock Fund Advisors
21-Dec-11
4,602
11.26
BUY
PRIVATE
BlackRock Fund Advisors
21-Dec-11
8,673
11.26
BUY
PRIVATE
BlackRock Fund Advisors
22-Dec-11
6,195
11.17
BUY
PRIVATE
BlackRock Fund Advisors
22-Dec-11
942
11.17
BUY
PRIVATE
BlackRock Fund Advisors
22-Dec-11
3,894
11.17
BUY
PRIVATE
BlackRock Fund Advisors
22-Dec-11
2,490
11.17
BUY
PRIVATE
BlackRock Fund Advisors
22-Dec-11
21,771
11.17
BUY
PRIVATE
BlackRock Fund Advisors
22-Dec-11
4,071
11.17
BUY
PRIVATE
BlackRock Fund Advisors
22-Dec-11
3,894
11.17
BUY
PRIVATE
BlackRock Fund Advisors
22-Dec-11
2,160
11.17
SELL
NYSE
BlackRock Fund Advisors
22-Dec-11
4,509
11.17
SELL
NYSE
BlackRock Fund Advisors
17-Jan-12
31,534
10.49
SELL
NYSE
BlackRock Fund Advisors
17-Jan-12
4,205
10.49
SELL
NYSE
BlackRock Fund Advisors
17-Jan-12
7,708
10.49
SELL
NYSE
BlackRock Fund Advisors
17-Jan-12
9,110
10.49
SELL
NYSE
BlackRock Fund Advisors
17-Jan-12
12,614
10.49
SELL
NYSE
BlackRock Fund Advisors
17-Jan-12
2,803
10.49
SELL
NYSE
BlackRock Fund Advisors
17-Jan-12
2,102
10.49
SELL
NYSE
BlackRock Institutional Trust Company, N.A.
5-Dec-11
1,544
11.82
BUY
NYSE
BlackRock Institutional Trust Company, N.A.
5-Dec-11
1,804
11.86
SELL
PRIVATE
BlackRock Institutional Trust Company, N.A.
6-Dec-11
376
11.19
SELL
NYSE
BlackRock Institutional Trust Company, N.A.
8-Dec-11
660
10.73
BUY
NYSE
BlackRock Institutional Trust Company, N.A.
12-Dec-11
284
11.06
SELL
NYSE
BlackRock Institutional Trust Company, N.A.
12-Dec-11
252
11.06
SELL
NYSE
BlackRock Institutional Trust Company, N.A.
13-Dec-11
1,871
10.53
SELL
NYSE
BlackRock Institutional Trust Company, N.A.
16-Dec-11
1,000
10.83
BUY
PRIVATE
BlackRock Institutional Trust Company, N.A.
16-Dec-11
9,303
10.83
BUY
NYSE
BlackRock Institutional Trust Company, N.A.
16-Dec-11
19,130
10.83
BUY
PRIVATE
BlackRock Institutional Trust Company, N.A.
30-Dec-11
4,060
11.00
SELL
PRIVATE
BlackRock Institutional Trust Company, N.A.
9-Jan-12
2,861
10.72
BUY
PRIVATE
BlackRock Institutional Trust Company, N.A.
9-Jan-12
2,861
10.72
SELL
NYSE
BlackRock Institutional Trust Company, N.A.
11-Jan-12
18,497
10.89
SELL
PRIVATE
BlackRock Institutional Trust Company, N.A.
11-Jan-12
743
10.89
SELL
PRIVATE
BlackRock Institutional Trust Company, N.A.
11-Jan-12
18,497
10.89
BUY
PRIVATE
BlackRock Institutional Trust Company, N.A.
25-Jan-12
4,500
11.94
BUY
PRIVATE
BlackRock Institutional Trust Company, N.A.
26-Jan-12
84
12.00
SELL
NYSE
BlackRock Institutional Trust Company, N.A.
31-Jan-12
1,812
15.00
SELL
PRIVATE
BlackRock Institutional Trust Company, N.A.
31-Jan-12
4,500
15.00
SELL
NYSE
 
 
 
 

Legal Entity
Trade Date
Amount
Trade Price
BUY/SELL
Execution Type
BlackRock Institutional Trust Company, N.A.
5-Dec-11
862
11.82
SELL
NYSE
BlackRock Institutional Trust Company, N.A.
5-Dec-11
14,400
11.73
SELL
PRIVATE
BlackRock Institutional Trust Company, N.A.
29-Dec-11
1,513
11.04
BUY
PRIVATE
BlackRock Institutional Trust Company, N.A.
29-Dec-11
1,513
11.04
SELL
NYSE
BlackRock Investment Management, LLC
9-Dec-11
269
11.10
SELL
NYSE
BlackRock Investment Management, LLC
16-Dec-11
239
10.82
BUY
NYSE
BlackRock Investment Management, LLC
16-Dec-11
490
10.83
BUY
PRIVATE
BlackRock Investment Management, LLC
16-Dec-11
191
10.83
SELL
PRIVATE
BlackRock Investment Management, LLC
16-Dec-11
62
10.83
BUY
NYSE
BlackRock Investment Management, LLC
16-Dec-11
129
10.83
BUY
PRIVATE
BlackRock Investment Management, LLC
16-Dec-11
524
10.83
SELL
PRIVATE
BlackRock Investment Management, LLC
16-Dec-11
16
10.83
BUY
NYSE
BlackRock Investment Management, LLC
16-Dec-11
33
10.83
BUY
PRIVATE
BlackRock Investment Management, LLC
19-Dec-11
186
10.69
SELL
NYSE
BlackRock Investment Management, LLC
27-Dec-11
340
11.14
SELL
NYSE
BlackRock Investment Management, LLC
27-Dec-11
1,654
11.14
SELL
NYSE
BlackRock Investment Management, LLC
27-Dec-11
708
11.14
SELL
NYSE
BlackRock Investment Management, LLC
28-Dec-11
502
11.02
SELL
NYSE
BlackRock Investment Management, LLC
28-Dec-11
759
11.02
SELL
NYSE
BlackRock Investment Management, LLC
28-Dec-11
1,628
11.04
SELL
NYSE
BlackRock Investment Management, LLC
29-Dec-11
371
11.00
SELL
NYSE
BlackRock Investment Management, LLC
12-Jan-12
460
10.78
SELL
NYSE
BlackRock Investment Management, LLC
13-Jan-12
419
10.71
SELL
NYSE

 

 
 EX-99 2 ex1.htm EXHIBIT 1 ex1.htm
 
Exhibit 1
 
 
EXECUTION VERSION
CONFIDENTIAL
 
 

January 29, 2012


The Gores Group, LLC (“Gores”)
10877 Wilshire Boulevard, 18th Floor
Los Angeles, CA 90024


Ladies and Gentlemen:

This commitment letter sets forth the commitment of the undersigned co-investor (the “Investor”) to purchase an Interest (as defined below) in Auto Co-Investors, LLC, a Delaware limited liability company (“Holdco”), which has been formed for the purpose of acquiring Auto Acquisition Company, LLC, a Delaware limited liability company (“Parent”), which, in turn, was formed to acquire, together with a special purpose vehicle owned by Gores Capital Partners, III, L.P. and affiliates of Gores (the “Sponsor”), The Pep Boys – Manny, Moe & Jack, a Pennsylvania corporation (the “Company”) pursuant to that certain Agreement and Plan of Merger, dated on or about January [__], 2012 (the “Merger Agreement”), by and among Parent, Auto Mergersub, Inc., a Pennsylvania corporation (“Merger Sub”), and the Company, on the terms and subject to the conditions set forth in the Merger Agreement (the “Transaction”).  Capitalized terms used but not defined herein have the respective meanings ascribed to them in the Limited Liability Company Agreement of Holdco (“Holdco Operating Agreement”).
 
1.       Commitment.  This commitment letter confirms the commitment of the Investor, subject to the terms and satisfaction of each of the conditions set forth herein, to purchase, immediately prior to the closing of the Transaction, an Interest for an aggregate purchase price equal to the dollar amount set forth on the Investor’s signature page hereto, which amount may not be reduced by Gores (the “Commitment”).  Holdco shall use all proceeds from the Commitment solely to purchase a Shareholder Interest (as defined in the Limited Liability Company Agreement of Parent (“Parent Operating Agreement”)) of Parent, and Parent shall use all proceeds from the Commitment solely for the purpose of funding, and to the extent necessary to fund, a portion of the aggregate consideration for the Transaction and related expenses.  The proceeds from the Commitment may be used for no other purpose.  The Investor shall not, under any circumstances, be obligated pursuant to this commitment letter to contribute to Holdco more than the Commitment or to make any other contribution to any other Person.  The Investor’s purchase of an Interest in Holdco shall be at an equivalent price, and shall entitle the Investor to an equivalent proportionate indirect ownership of the Company, to the Sponsor’s purchase of its Shareholder Interest in Parent.
 
 
 
 

2.       Conditions.  The Investor’s obligations to fund the Commitment pursuant to this commitment letter are conditioned upon:
 
(a)      the satisfaction of all conditions precedent to the obligations of Parent and Merger Sub (as defined in the Merger Agreement, which is attached as Exhibit A hereto) to consummate the Transaction set forth in the Merger Agreement (without any waiver of any such condition or amendment of the Merger Agreement except waivers or amendments in which Parent, Merger Sub and the Investor concur in writing);
 
(b)      the contemporaneous purchase (i) by any other co-investor or other entities of Interests in Holdco at an equivalent price and on the same economic terms as the purchase by the Investor of its Interest in Holdco and (ii) by the Sponsor of its Shareholder Interest in Parent at an equivalent price and on the same economic terms as the purchase by Holdco of its Shareholder Interest in Parent, which Shareholder Interests, in the aggregate, are sufficient to fund the Merger Consideration (as defined in the Merger Agreement) less the amount of the Debt Financing (as defined in the Merger Agreement); provided, that the economic terms with respect to the Sponsor shall not include differences attributable to the payment of any transaction fees or monitoring fees paid or payable to the Sponsor or its affiliates as of or following the consummation of the Transaction, which monitoring fees shall not exceed the amount set forth on Schedule A hereto; provided, further, that upon the consummation of the Transaction, the Investor shall share in such transaction fees in the manner and amount set forth on Schedule A hereto;
 
(c)      the substantially contemporaneous funding of the Debt Financing or any alternative debt financing (on terms that are not materially less favorable from the standpoint of Parent and Merger Sub than, those previously disclosed in the Debt Commitment Letters (as defined in the Merger Agreement)) (subject only to receipt of the Commitment); and
 
(d)      Gores having executed or caused to be executed, and having delivered or caused to be delivered to the Investor, each of the Subscription Agreement for Holdco (the “Subscription Agreement”), the Holdco Operating Agreement, the Parent Operating Agreement and the Side Letter (as defined below) in accordance with Section 4 hereof.
 
3.       Funding.  Subject to the satisfaction of the conditions set forth herein, the Investor shall be obligated to fund the Commitment on the Contemplated Closing Date (as defined below).  The Investor shall fund the Commitment to an account of Holdco or, pursuant to a funding direction letter, an account of Gores (the “Funding Account”).  For purposes of this commitment letter, the term “Contemplated Closing Date” shall mean the date on which the Sponsor expects to consummate the Transaction
 
 
 
 

and on which the Sponsor funds, or causes to be funded, to the Funding Account its commitment to purchase a Shareholder Interest in order to fund its portion of the Merger Consideration.  Gores will notify the Investor of the Contemplated Closing Date at least ten (10) Business Days prior thereto.  In the event that the Transaction is not consummated within ten (10) Business Days of the Contemplated Closing Date, or to the extent that Gores does not use the Commitment to fund the Investor’s proportionate share of the Merger Consideration and related expenses in accordance with this letter agreement, Gores will return the unused portion of the Investor’s funded Commitment, together with the interest accrued thereon (net of any applicable withholding taxes), at the earliest reasonably practicable time, which time shall be no later than the date on which the Sponsor’s funded commitment is returned (and, in any event, within ten (10) Business Days after the date of the Contemplated Closing Date), provided that the closing of the Transaction has not occurred prior to such time.
 
4.       Equity Documents.  On the Contemplated Closing Date, the Investor will become a Member of Holdco by simultaneously entering into the Subscription Agreement and the Holdco Operating Agreement.  On the Contemplated Closing Date, Holdco will become a Shareholder (as defined in the Parent Operating Agreement) of Parent by entering into the Parent Operating Agreement.  The Subscription Agreement will be in the form attached as Exhibit B hereto.  The Holdco Operating Agreement will be in the form attached as Exhibit C hereto.  The Parent Operating Agreement will be in the form attached as Exhibit D hereto.  The Side Letter to the Holdco Operating Agreement and the Parent Operating Agreement, by and among the Investor, Holdco, Parent and Gores (the “Side Letter”), will be in the form attached as Exhibit E hereto and will provide the Investor with a board appointee right that is, in all material respects, as follows:
 
For so long as the Investor continues to own at least 50% of the Interests owned by it on the date of the Holdco Operating Agreement, Gores shall take all necessary action to (a) cause Gores Auto Investors, LLC (“Gores SPV”), to appoint one individual designated by the Investor and reasonably acceptable to Gores to the board of directors of Parent and (b) cause Parent (and, as necessary, any intermediate subsidiaries of Parent) to appoint one individual designated by the Investor and reasonably acceptable to Gores to the board of directors of the Company, but, in the case of (b), only to the extent the board of directors of the Company includes a director who is an affiliate (except in such person’s role as a director of the Company), officer, director, employee or appointee of Gores.  Notwithstanding anything to the contrary contained in the Parent Operating Agreement or the organizational documents of the Company, (a) the Investor may remove its directors, fill replacements and designate alternative directors at any time, and (b) any director designated by the Investor may be removed only for cause.  Any director designated by the Investor shall be entitled to exculpation to the maximum extent
 
 
 
 

permitted by law and to exculpation, indemnification and insurance coverage on the same terms and subject to the same conditions as the exculpation, indemnification and insurance coverage afforded to Gores SPV appointees to the boards of directors of Parent and the Company (in their capacities as directors of Parent and the Company).  If Parent or the Company, or any of their respective successors or assignees, consolidates with or merges into any other entity and is not the continuing or surviving entity of such consolidation or merger, then proper provision shall be made so that the successors and assignees of Parent or the Company, as the case may be, assume the obligations of Parent or the Company with respect to indemnification of members of the board of directors and maintain directors’ and officers’ insurance coverage on terms not less favorable than those in effect immediately before such consolidation or merger.
 
5.       Termination.  This commitment letter, including, but not limited to, the Investor’s obligation to fund the Commitment, shall terminate automatically, immediately and in its entirety upon the earliest of (a) the termination of the Merger Agreement, (b) the date on which the Equity Commitment Letter (as defined in the Merger Agreement) terminates and (c) the date on which the Investor has funded the Commitment in full in accordance with Section 3 hereof.  The parties hereto acknowledge that the Investor neither has any right to receive any portion of the Termination Fee (as defined in the Merger Agreement), nor has any obligation to pay any portion of the Parent Termination Fee (as defined in the Merger Agreement), in the event of the Merger Agreement’s termination.  The parties hereto further acknowledge that the Investor shall not be liable for, and its Commitment shall not be used for, any portion of any fees or expenses incurred by Gores, the Sponsor, Holdco, Parent or any affiliate thereof in the event that the Transaction is not consummated, including, without limitation, the Parent Termination Fee or any other amounts, if such fees or expenses are paid or payable pursuant to the Merger Agreement or otherwise.
 
6.       Assignment.  The Investor’s obligation to fund the Commitment may not be assigned, except as permitted in this Section 6.  The Investor may assign all or a portion of its obligations to fund the Commitment to any of its affiliates; provided, however, that any such assignment shall not relieve the undersigned of its obligations under Section 1 hereof.
 
7.       Recourse.  This commitment letter relates to the obligations of the Investor to provide financing to Holdco as set forth above, and is not a guaranty of collection or the performance of any other obligations of Holdco, Parent or any other Person.  Creditors of Gores, Holdco, Parent or of their respective affiliates shall have no right to enforce this commitment letter or to cause Gores to enforce this commitment letter.  Notwithstanding anything that may be expressed or implied in this commitment letter, by its acceptance hereof, Gores acknowledges and agrees for itself and its affiliates
 
 
 
 

from time to time (including Holdco, Parent and, after the closing of the Transaction, the Company and each of its subsidiaries) that (a) no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any officer, agent or employee of the Investor, any direct or indirect holder of any equity interests or securities of the Investor (whether such holder is a limited or general partner, member, stockholder or otherwise), any affiliate of the Investor or any direct or indirect affiliate, director, officer, employee, partner, member, controlling person or representative of any of the foregoing Persons (any such Person, a “Related Person”), whether by the enforcement of any judgment or assessment, or by any legal or equitable proceeding, or by virtue of any statute, regulation or other applicable law and (b) no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by Related Persons under this commitment letter or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or by their creation.
 
8.       Parties in Interest.  No Person other than Holdco shall be entitled to rely upon this commitment letter.  This commitment letter shall be binding upon and inure solely to the benefit of each party hereto and nothing herein, express or implied, is intended to, or shall, confer upon any other Person any rights, benefits or remedies whatsoever under or by reason of this commitment letter.  Notwithstanding the foregoing, the parties hereto acknowledge and agree that Holdco shall be an express third-party beneficiary to the agreements made in this commitment letter, with full and complete rights to enforce the terms and conditions hereof.
 
9.       Representations of Investor. The Investor hereby represents and warrants to Gores that:
 
(a)      the Investor has all corporate power and authority to execute, deliver and perform this commitment letter;
 
(b)      the execution, delivery and performance of this commitment letter by the Investor has been duly and validly authorized and approved by all necessary corporate action by the Investor;
 
(c)      this commitment letter has been duly and validly executed and delivered by the Investor and (assuming this commitment letter’s valid execution and delivery by Gores) constitutes a valid and legally binding obligation of the Investor, enforceable against the Investor in accordance with its terms, except as such enforceability (i) may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally and (ii) is subject to general principles of equity;
 
(d)      the execution, delivery and performance of this commitment letter by the Investor does not and shall not conflict with, violate the terms of, or
 
 
 
 

result in the acceleration of an obligation under (i) any material contract, commitment or other material instrument to which the Investor is a party or is bound or (ii) any provision of the Investor’s organizational documents; and
 
(e)      the Investor has uncalled capital commitments equal to the Commitment.
 
10.     Representations of Gores.  Gores hereby represents and warrants to the Investor that:
 
(a)      Gores has all limited liability company power and authority to execute, deliver and perform this commitment letter;
 
(b)      the execution, delivery and performance of this commitment letter by Gores has been duly and validly authorized and approved by all necessary limited liability company action by Gores;
 
(c)      this commitment letter has been duly and validly executed and delivered by Gores and (assuming this commitment letter’s valid execution and delivery by the Investor) constitutes a valid and legally binding obligation of Gores, enforceable against Gores in accordance with its terms, except as such enforceability (i) may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally and (ii) is subject to general principles of equity;
 
(d)      the execution, delivery and performance of this commitment letter by the Investor does not and shall not conflict with, violate the terms of, or result in the acceleration of an obligation under (i) any material contract, commitment or other material instrument to which Holdco is a party or is bound or (ii) any provision of Holdco’s organizational documents;
 
(e)      Holdco and Parent each is duly organized, validly existing and in good standing under the laws and regulations of its jurisdiction of organization, and has all requisite power and authority to conduct its business as currently conducted or proposed to be conducted; and each of  Holdco and Parent (i) is a newly formed entity created for the purpose of owning equity securities of Parent and the Company, respectively, (ii) has not prior to the date hereof engaged in any business or other activity and (iii) as of the date hereof, has no assets and no liabilities other than any liabilities incidental to formation;
 
(f)       Parent will be an “operating company” within the meaning of 29 CFR 2510.3-101, engaged, directly or through at least majority-owned
 
 
 
 

subsidiaries, in the production or sale of a product or service other than the investment of capital;
 
(g)      Neither Holdco nor any of its “affiliates” (as defined in Section VI(c) of Prohibited Transaction Class Exemption 84-14, as amended) has or will have the authority either to (i) appoint or terminate BlackRock Investment Management, LLC as a manager of any assets of any employee benefit plan involved in the purchase of the Interest or (ii) negotiate the terms of a management agreement with BlackRock Investment Management, LLC on behalf of any employee benefit plan (including renewals or modifications thereof) with respect to such plan assets; and
 
(h)      As of the effective time of the Transaction’s closing, (a) the Shareholder Interests in Parent will be wholly-owned by (i) the Sponsor, (ii) Holdco, and (iii) certain Company rollover stockholders; and (b) all direct and indirect subsidiaries of Parent will be wholly-owned by Parent, except for certain equity interests in Parent granted to certain management of the Company and its wholly-owned subsidiaries.
 
11.     Confidentiality.  Subject to compliance with applicable law, regulation and rules of self-regulatory organizations, the terms of this commitment letter are strictly confidential and shall not be disclosed to anyone outside of the Investor, the Investor’s funds and accounts under management, Gores, Holdco, Parent, and each of the foregoing Persons’ respective affiliates, auditors and financial and legal advisors.
 
12.     Other Investors.  The terms of investment of any other investors in Holdco, or any other investment vehicle with respect to the Transaction, and the rights and benefits established in favor of such investors are not more favorable in any material respect to such investors than such terms, rights and benefits established in favor of the Investor.
 
13.     This Letter Agreement is being entered into by Portfolio Administration & Management Ltd. (“PAM”) on behalf of one or more of the following investment funds: SONJ Private Opportunities Fund II, L.P., BR/ERB Co-Investment Fund, L.P., Red River Direct Investment Fund, L.P., BlackRock Private Equity Onshore Holdings IV, L.P., DivPEP IV Offshore Holdings, L.P., Vesey Street Fund IV (ERISA), L.P. and Vesey Street Employee Fund IV, L.P. Notwithstanding the other provisions of this letter agreement, PAM shall cause the applicable investment funds to execute equity commitment letters (in identical form to this letter but excluding this Section 13) reflecting commitment amounts, in the aggregate, equal to the amount of the Commitment, and upon delivery of such equity commitment letters and acceptance thereof by Gores, this Letter Agreement shall be deemed terminated and have no force or effect, except with respect to any default by PAM arising out of any event occurring prior to the receipt of the foregoing equity commitment letters.
 
 
 
 

If the foregoing is acceptable to you, please sign and return a copy of this commitment letter, whereupon this commitment letter shall constitute the binding obligation of the Investor to provide the aforementioned Commitment to Holdco and Parent on the terms and conditions set forth herein.  This commitment letter and the obligations hereunder shall be governed by and construed in accordance with the laws of the State of New York.  This commitment letter constitutes the entire agreement with respect to the subject matter hereof, and supersedes all prior agreements, understandings and statements, both written and oral, between or among Holdco, Parent and the Investor or any of its affiliates.  This commitment letter may not be amended, except by an instrument in writing signed by each of the parties hereto.  This commitment letter may be executed in counterparts, each of which, when so executed, shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
 

 

 
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Very truly yours,
   
 
PORTFOLIO ADMINISTRATION & MANAGEMENT LTD.
   
 
On behalf of funds under management
   
   
   
 
By:
  
/s/ Arslan Mian
     
Name:
  
Arslan Mian
     
Title:
  
Vice President
           
           
 
Commitment Amount: $80,000,000






 
 
 

Agreed to and accepted
this 29th day of January, 2012.

THE GORES GROUP, LLC
 
By:
  
/s/ Eric R. Hattler
  
   
Name: 
Eric R. Hattler
   
Title:
Managing Director & General Counsel