EXHIBIT 4.7
AMENDMENT NO. 1
TO
AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
THIS AMENDMENT NO. 1 TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (this
"Agreement") is made and entered into as of December ___, 2001, by and among
Advance Holding Corporation, a Virginia corporation ("Holding"), Advance Auto
Parts, Inc., a Delaware corporation (the "Company"), FS Equity Partners IV,
L.P., a Delaware limited partnership ("FSEP IV" or the "FS Stockholder"),
Ripplewood Partners, L.P. ("Ripplewood Partners"), Ripplewood Advance Auto Parts
Employee Fund I L.L.C. ("Ripplewood Employee Fund" and, together with Ripplewood
Partners, the "Ripplewood Stockholder"), Xxxxxxxx X. Xxxxxxx and the Xxxxxx
Xxxxxxx Trust dated July 13, 1964 (the "Trust") (Xx. Xxxxxxx and the Trust
collectively, the "Existing Stockholders" and each individually, an "Existing
Stockholder"), WA Holding Co., a Delaware corporation (the "Sears Stockholder")
and Xxxxx X. Xxxxxxxx ("Xxxxxxxx"), Xxxxxxxx Industries Limited Partnership (the
"Xxxxxxxx Partnership") and the Xxxxx X. Xxxxxxxx Revocable Trust (the "Xxxxxxxx
Trust").
RECITALS
A. On November 2, 1998, Holding, the Existing Stockholders, the FS
Stockholder, the Ripplewood Stockholder and the Sears Stockholder entered into
an Amended and Restated Stockholders Agreement (the "Restated Agreement").
B. Pursuant to an Agreement and Plan of Merger dated as of August 7, 2001
by and between Holding and the Company, the parties agreed that Holding will
merge with and into the Company, with the Company continuing as the surviving
corporation (the "Reincorporation Merger").
C. On August 1, 2001, the boards of directors of Holding and the Company
approved a resolution stating that following the Reincorporation Merger the
rights and obligations of the stockholders of Holding to each other and to
Holding shall be preserved and become the rights and obligations of the
stockholders of the Company, including without limitation the rights and
obligations under the Restated Agreement.
D. Pursuant to an Agreement and Plan of Merger dated as of August 7, 2001
(the "Merger Agreement") by and among Holding, Advance Stores Company,
Incorporated, the Company, AAP Acquisition Corporation ("Merger Sub") and
Discount Auto Parts, Inc. ("Discount"), the parties agreed that Merger Sub, a
wholly-owned subsidiary of the Company, will merge with and into Discount, with
Discount continuing as the surviving corporation in such merger (the "Discount
Merger").
E. Pursuant to the Merger Agreement, the parties thereto agreed to amend
the Restated Agreement to, among other things, provide Xxxxxxxx with certain
registration rights and to provide for Xxxxxxxx'x election as a member of the
Board of Directors of the Company upon the terms and conditions as more fully
set forth in this Agreement.
F. Under Sections 7.1 and 12 of the Restated Agreement, the Restated
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Agreement may be amended to add the terms and conditions set forth in this
Agreement in connection with the Discount Merger.
G. The parties hereto intend that this Agreement shall become effective
upon and only upon the consummation of the Reincorporation Merger and the
contemporaneous Discount Merger.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
contained herein and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
1. Definitions. The definitions of Common Stock, Company, and Initial
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Shares as set forth in Section 1.1 of the Restated Agreement are hereby amended
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in their entirety as follows, and seven new definitions, the Agreement, Discount
Merger, Xxxxxxxx Partnership, Xxxxxxxx Stockholder, Xxxxxxxx Trust, Xx.
Xxxxxxxx, and Reincorporation Merger, are hereby added to Section 1.1 as
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follows:
"Agreement: that certain Amended and Restated Stockholders Agreement
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dated as of November 2, 1998 by and among Advance Holding Corporation, the FS
Stockholder, the Ripplewood Stockholder, the Existing Stockholders, and the
Sears Stockholder, , as amended to date and as it may be amended from time to
time."
"Common Stock: The Common Stock, par value $0.0001 per share, of the
------------
Company."
"Company: Advance Auto Parts, Inc., a Delaware corporation."
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"Discount Merger: The merger of AAP Acquisition Corporation, a wholly
owned subsidiary of the Company, with and into Discount Auto Parts, Inc.,
with Discount Auto Parts, Inc. continuing as the surviving corporation in
such merger, all pursuant to an Agreement and Plan of Merger dated as of
August 7, 2001 by and among the Company, Advance Stores Company,
Incorporated, Advance Holding Corporation, Discount Auto Parts, Inc., and
AAP Acquisition Corporation.
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"Xxxxxxxx Partnership: Xxxxxxxx Industries Limited Partnership, a
Nevada limited partnership."
"Xxxxxxxx Stockholder: The Xxxxxxxx Partnership and its Permitted
--------------------
Transferees."
"Xxxxxxxx Trust: The Xxxxx X. Xxxxxxxx Revocable Trust."
"Initial Shares: The 28,472,660 shares of Common Stock of the Company
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issued and outstanding upon consummation of the Reincorporation Merger and
the Discount Merger and held beneficially and of record by the Stockholders
and the Xxxxxxxx Stockholder and any Option Shares as follows:
Options to
Purchase
Common Common
Stockholder Stock Stock
------------------------------------------------------------- ----------- ---------------
FS Equity Partners IV, L.P. ............................... 11,022,652 -
Ripplewood Partners, L.P. ................................. 2,763,110 -
Ripplewood Advance Auto Parts Employee Fund I L.L.C. ..... 128,685 -
Xxxxxxxx X. Xxxxxxx........................................ 1,148,632 250,000
The Xxxxxx Xxxxxxx Trust dated July 13, 1964............... 898,633 250,000
WA Holding Co. ............................................ 11,474,606 -
Xxxxxxxx Industries Limited Partnership.................... 1,036,342 - "
"Xx. Xxxxxxxx: Xxxxx X. Xxxxxxxx."
"Reincorporation Merger: The merger of Advance Holding Corporation with
and into the Company, with the Company continuing as the surviving
corporation, all pursuant to an Agreement and Plan of Merger dated as of
August 7, 2001 by and between Advance Holding Corporation and the Company."
2. Xxxxxxxx Permitted Transferee. With respect to the Xxxxxxxx
-----------------------------
Partnership, notwithstanding any other provision to the contrary in the Restated
Agreement or this Agreement, the term "Permitted Transferee" shall mean (i) the
Xxxxxxxx Trust, (ii) Xx. Xxxxxxxx or his spouse, children, grandchildren or
other living descendants, or a trust or family partnership of which there are no
principal (i.e., corpus) beneficiaries or partners other than the grantor or one
or more of Xx. Xxxxxxxx, his spouse or described relatives and provided, in the
case of a trust, that the existing beneficiaries and/or trustee(s) and/or
grantor(s) of such trust have the power to act with respect to the trust's
assets without court approval and, in the case of a family partnership, that the
partners thereof have the power to act with respect to the partnership's assets
without court approval and the partnership is not permitted to (a) distribute
assets to Persons who are not among the relatives listed above or (b) have
partners who are not among the relatives listed above or (iii) a legal
representative of Xx. Xxxxxxxx in the event Xx. Xxxxxxxx becomes
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mentally incompetent or to Xx. Xxxxxxxx'x personal representative following the
death of Xx. Xxxxxxxx. Such Permitted Transferee shall be bound by all of the
obligations of the Xxxxxxxx Partnership hereunder.
3. Registration Rights; Acquisitions of Common Stock.
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(a) The first sentence of Section 6.1 of the Restated Agreement is
-----------
hereby amended in its entirety as follows:
"6.1 Registration Rights. FS Stockholder, the Sears Stockholder, the
-------------------
Ripplewood Stockholder, the Existing Stockholders and the Xxxxxxxx
Partnership shall be entitled to certain registration rights with respect
to their shares of Common Stock (the "Registration Rights").
(b) A new sentence shall be added at the end of Section 6.1 as
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follows:
"The Xxxxxxxx Partnership may not assign its Registration Rights
except to a Permitted Transferee (provided that any Permitted Transferee of
the Xxxxxxxx Partnership who is not Xx. Xxxxxxxx or the Xxxxxxxx Trust
shall deliver to the Company a power-of-attorney appointing Xx. Xxxxxxxx
(or an individual he designates if he is unable to act due to death or
disability) as such Permitted Transferee's attorney-in-fact for purposes of
exercising such Permitted Transferee's Registration Rights and fulfilling
such Permitted Transferee's obligations under this Section 6)."
4. Section 6.2 of the Restated Agreement is hereby amended in its entirety
-----------
as follows:
"6.2 Acquisition of Common Stock. After consummation of an Initial
---------------------------
Public Offering, neither the Stockholders nor the Xxxxxxxx Stockholder
shall purchase or permit its Affiliates to purchase or otherwise acquire,
or agree or offer to purchase or otherwise acquire (subject, in the case of
the Trust, to Section 5.1(a)), beneficial ownership of additional shares of
Common Stock or Securities."
5. Election to Board of Xxxxx Xxxxxxxx. The first two paragraphs of
-----------------------------------
Section 7.1 of the Restated Agreement are hereby amended in their entirety as
-----------
follows:
"7.1 The Board.
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At each annual or special meeting of stockholders of the Company, or
in any written consent executed in lieu of a stockholder meeting, at or
pursuant to which persons are being elected to fill positions on the Board,
the FS Stockholder, the Sears Stockholder, the Ripplewood Stockholder, the
Existing Stockholders
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and the Xxxxxxxx Stockholder agree to exercise, or cause to be exercised,
voting rights with respect to the shares of Voting Securities then held of
record or beneficially owned by them, in such a manner that (i) three (3)
candidates nominated by FS Stockholder, (ii) Xx. Xxxxxxx or, in the event
of his death or disability, his representative designated in writing, (iii)
one (1) candidate nominated by the Ripplewood Stockholder, (iv) the Chief
Executive Officer of the Company, (v) three (3) candidates nominated by the
Sears Stockholder, and (vi) Xx. Xxxxxxxx, shall be elected to fill and
continue to hold positions on the Board.
The FS Stockholder may require the Board to nominate, and the
Stockholders to vote their shares in favor of electing, up to three (3)
independent members of the Board of Directors (such persons being mutually
acceptable to FS Stockholder and Sears Stockholder), and each Stockholder
shall take all actions necessary in connection therewith. Upon
consummation of the Discount Merger, or as soon as practicable thereafter,
the Company shall have at least three (3) independent members of the Board
of Directors (such persons being mutually acceptable to FS Stockholder and
Sears Stockholder), as may be required by applicable law or stock exchange
requirements or by the National Association of Securities Dealers in
connection with the Discount Merger, and each Stockholder shall take all
actions necessary in connection therewith. Neither Xx. Xxxxxxx (or his
representative) nor Xx. Xxxxxxxx may be removed from the Board without
cause. In addition, Xx. Xxxxxxx shall not be disqualified from being a
director by virtue of his age. The Board of Directors shall have no fewer
than ten (10) and no more than fourteen (14) directors and the Stockholders
shall vote to have the Bylaws provide that the Company shall have no fewer
than ten (10) nor more than fourteen (14) directors. Notwithstanding the
preceding sentence, in the event of an acquisition by the Company where
more than 10% of the Voting Securities are issued to the seller, and as an
important element of the transaction additional Board seats are required
(an "Acquisition Event"), the Stockholders will use reasonable best efforts
to make such Board seats available including, without limitation, taking
all necessary actions to amend this Agreement and the Bylaws and cause
their respective nominees to the Board to approve an increase in the size
of the Board, necessary amendments to this Agreement, and the election of
new members of the Board."
6. Termination of Xxxxxxxx'x Rights. The following two sentences are
--------------------------------
hereby added to the end of Section 7.4 of the Restated Agreement:
-----------
"Xx. Xxxxxxxx'x rights to be elected to fill and continue to hold a
position on the Board pursuant to Section 7.1 shall terminate upon the
-----------
earliest to occur of the following events (each, a "Termination Event"):
(a) January 1, 2004, (b) his submission of a voluntary resignation from the
Board, (c) his removal from the Board for cause, (d) his ceasing to have
beneficial interest in at least 50% of the
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Initial Shares beneficially owned by him upon the consummation of the
Discount Merger and the Reincorporation Merger, (e) the expiration of the
voting rights of the Stockholders and the Xxxxxxxx Stockholder to the
Restated Agreement, or (f) his death. If the voting rights of the
Stockholders and the Xxxxxxxx Stockholder to the Restated Agreement expire
after Xx. Xxxxxxxx has been so elected, the Company shall thereafter
continue to nominate Xx. Xxxxxxxx for a position on the Board of Directors
until the occurrence of a Termination Event."
7. Restrictions on Amendments and Waivers. The first sentence of Section
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12 of the Restated Agreement is hereby amended by inserting the following clause
--
in line 10 thereof after the words "Ripplewood Stockholder":
"and to the extent the terms of the specific Registration Rights of
the Xxxxxxxx Partnership or board rights of Xx. Xxxxxxxx would be
prejudiced thereby, the written consent of the Xxxxxxxx Partnership or Xx.
Xxxxxxxx, as the case may be, shall be required to amend, modify or waive
compliance with this Agreement,"
8. Notice. Section 14 of the Restated Agreement is hereby amended by
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adding the following clause between the end of clause (vi) and the parenthetical
clause that begins, "or at such other address . . .":
"and (vii) if to Xxxxxxxx, the Xxxxxxxx Partnership or the Xxxxxxxx
Trust, to Xxxxx X. Xxxxxxxx, 00 Xxxxxxx Xxxx, Xxxxxxxxx, XX 00000,
facsimile: (000) 000-0000; with a copy to the Xxxxxxxx Industries
Limited Partnership, 0000 Xxxx Xxxxxx Xxxxxxxx Xxxx, #00, Xxx Xxxxx,
XX 00000, Attention: Xxxxx X. Xxxxxxxx"
9. Registration Rights of the Xxxxxxxx Partnership. Exhibit A of the
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Restated Agreement is hereby amended as follows:
(a) The sentence preceding Section 1 of Exhibit A of the Restated
Agreement is hereby amended in its entirety as follows:
"Capitalized terms used herein and not otherwise defined shall have
the respective meanings given such terms in the Amended and Restated
Stockholders Agreement (as amended to date and as it may be further amended
from time to time) (the "Agreement") to which this Exhibit A is attached."
(b) The definition of Holder in Section 1.1 of Exhibit A of the
----------- ---------
Restated Agreement is hereby amended in its entirety as follows:
"Holder" means the FS Stockholder, the Sears Stockholder, the
Ripplewood Stockholder, any Existing Stockholder, and/or the Xxxxxxxx
Partnership (or any Permitted Transferee or permitted assignee thereof);
provided,
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that the Xxxxxxxx Stockholder shall not be deemed to be a "Holder" for
purposes of the first sentence of Section 2.1(a) of Exhibit A (i.e., the
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Xxxxxxxx Stockholder shall not be entitled to rights to Demand
Registrations as defined in Section 2.1(a))."
---------------
(c) (The fourth sentence of Section 2.1(a) of Exhibit A of the
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Restated Agreement is hereby amended in its entirety as follows:
"The first time an Existing Stockholder or the Ripplewood Stockholder
requests a Demand Registration, the FS Stockholder and the Sears
Stockholder (or their Permitted Transferees or permitted assignees) shall
each be entitled to submit to the Company, within ten (10) days after
receipt of notice of such Existing Stockholder's or Ripplewood
Stockholder's request for a Demand Registration, a written request for a
Demand Registration (the "Simultaneous Registration") and shall thereby
join in the request of such Existing Stockholder or the Ripplewood
Stockholder, and thereupon each of the Existing Stockholders, Ripplewood
Stockholder, the Xxxxxxxx Partnership, Sears Stockholder and FS Stockholder
shall be entitled to include Registrable Securities in such Demand
Registration on a pro rata basis, determined based on the number of
Registrable Securities then sought to be included by the FS Stockholder,
the Sears Stockholder, all Existing Stockholders, the Ripplewood
Stockholder and the Xxxxxxxx Partnership (in each case including any
Permitted Transferees or permitted assignees) and other Persons entitled to
include shares therein pursuant to Demand Registration rights,
respectively, up to the number of Registrable Securities proposed to be
sold in such Demand Registration and, for purposes of Section 2.3, prior to
------------
any person including Registrable Securities under Section 2.2 or other
-----------
Piggy-Back Registration Rights."
(d) The seventh sentence of Section 2.1(a) of Exhibit A of the
-------------- ---------
Restated Agreement is hereby amended in its entirety as follows:
"The first time the Ripplewood Stockholder requests a Demand
Registration, if (i) within the 10-day period set forth in the fourth
sentence of this Section 2.1(a), neither the FS Stockholder nor the Sears
Stockholder requests a Simultaneous Registration, and (ii) the Existing
Stockholder has not previously requested a Demand Registration counted
under Section 2.1(b), then, by giving notice within three (3) business days
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of the end of said 10-day period, the Existing Stockholders may request a
Simultaneous Registration with the Ripplewood Stockholder, and if such a
request is made, thereupon the Existing Stockholders, the Ripplewood
Stockholder and the Xxxxxxxx Partnership shall be entitled to include
Registrable Securities in such Demand Registration on a pro rata basis,
determined based on the number of Registrable Securities then sought to be
included by the Ripplewood Stockholder, all Existing Stockholders, the
Xxxxxxxx Partnership (in each case including Permitted Transferees) and
other Persons
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entitled to include shares therein pursuant to Demand Registration rights
(it being understood that each of the FS Stockholder and the Sears
Stockholder shall have waived its right to participate therein except
pursuant to Section 2.2), respectively, up to the number of Registrable
------------
Securities proposed to be sold in such Demand Registration and, for
purposes of Section 2.3, prior to any Person including Registrable
-----------
Securities under Section 2.2 or other Piggy-Back Registration Rights. The
-----------
first time an Existing Stockholder requests a Demand Registration, if (i)
within the 10-day period set forth in the fourth sentence of this Section
2.1(a), neither the FS Stockholder nor the Sears Stockholder requests a
Simultaneous Registration, and (ii) the Existing Stockholder has not
previously requested a Demand Registration counted under Section 2.1(b),
then, by giving notice within three (3) business days of the end of said
10-day period, the Xxxxxxxx Partnership may request a Simultaneous
Registration with the Existing Stockholder, and if such a request is made,
thereupon the Existing Stockholders and the Xxxxxxxx Partnership shall be
entitled to include Registrable Securities in such Demand Registration on a
pro rata basis, determined based on the number of Registrable Securities
then sought to be included by the all Existing Stockholders, the Xxxxxxxx
Partnership (in each case including Permitted Transferees) and other
Persons entitled to include shares therein pursuant to Demand Registration
rights (it being understood that each of the FS Stockholder and the Sears
Stockholder shall have waived its right to participate therein except
pursuant to Section 2.2), respectively, up to the number of Registrable
Securities proposed to be sold in such Demand Registration and, for
purposes of Section 2.3, prior to any Person including Registrable
Securities under Section 2.2 or other Piggy-Back Registration Rights."
(e) Section 2.3(a) of Exhibit A of the Restated Agreement is hereby
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amended in its entirety as follows:
"SECTION 2.3 Reduction of Offering.
---------------------
(a) Notwithstanding anything contained herein, if the managing
Underwriter or Underwriters of an offering described in Section 2.1 or 2.2
----------- ---
determine that the size of the offering that the Holders, the Company or
any other Persons intend to make is such that the success of the offering
would be adversely affected by inclusion of the Registrable Securities
requested to be included, then (i) with respect to a Demand Registration,
if the size of the offering is the basis of such Underwriter's or
Underwriters' determination, the Company shall not include in such
registration an amount of Registrable Securities requested to be included
in such offering equal to the Excess Amount, such reduction first to be
allocated pro rata among the Holders or other Persons who did not initiate
the request for a Demand Registration according to the number of
Registrable Securities requested for inclusion, with the Holder or Holders
or other Persons who initiated the request for a Demand Registration
entitled to include shares therein to the
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maximum extent possible provided that if such Holders cannot include all
their shares in such offering, the amount of Registrable Securities to be
registered shall be reduced pro rata among the initiating Holders (provided
further that if the Sears Stockholder or the FS Stockholder initiates a
Demand Registration pursuant to Section 2.1(a) and an Existing Stockholder
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or the Ripplewood Stockholder or the Xxxxxxxx Partnership requests to
participate in such Demand Registration, the FS Stockholder or Sears
Stockholder (or both in the case of a Simultaneous Registration by them),
and such Existing Stockholder, the Ripplewood Stockholder or the Xxxxxxxx
Partnership and each of them participating shall be treated pari passu with
----------
respect to a reduction under this Section 2.3 and (ii) in the case of a
-----------
Piggy-Back Registration, if securities are being offered for the account of
other Persons as well as the Company, the securities the Company seeks to
include shall have priority over securities sought to be included by any
other Person (including the Holders) and, with respect to the Registrable
Securities intended to be offered by Holders, the proportion by which the
amount of such class of securities intended to be offered by Holders is
reduced shall not exceed the proportion by which the amount of such class
of securities intended to be offered by such other Persons is reduced (it
being understood that with respect to the Holders and third parties such
reduction may be all of such class of securities)."
(f) Section 2.4 of Exhibit A of the Restated Agreement is hereby
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amended in its entirety as follows:
"SECTION 2.4 Additional Rights. The Company shall not grant to any
-----------------
Person registration rights on terms which are more favorable to such Person
than or which otherwise interferes with (it being understood that the
granting of registration rights to other stockholders shall not by itself
be deemed to so interfere) those accorded to the Ripplewood Stockholder,
the Existing Stockholders or the Xxxxxxxx Partnership."
10. Deletion of Schedule 1. Schedule 1 to the Restated Agreement is
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hereby deleted in its entirety.
11. Effectiveness. This Agreement shall become effective upon and only
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upon the consummation of the Reincorporation Merger and the contemporaneous
Discount Merger and shall terminate and be of no force and effect upon
termination of the Merger Agreement in accordance with its terms.
12. Governing Law. This Agreement shall be governed by and construed and
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enforced in accordance with the laws of the State of Delaware without regard to
the conflicts of laws rules thereof.
13. Representations and Warranties.
------------------------------
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(a) Each Stockholder and the Xxxxxxxx Partnership represents and
warrants (i) that it has full power, capacity, right and authority, and any
requisite approvals or consents to enter into and perform this Agreement; (ii)
that this Agreement and the performance of its obligations hereunder have been
duly authorized, and that this Agreement has been duly executed and delivered by
it and is a valid and binding agreement, enforceable against it in accordance
with its terms; (iii) that upon the consummation of the Reincorporation Merger
and the Discount Merger, it will own beneficially and of record the shares of
Common Stock and the rights, options or warrants to purchase any capital stock
of the Company set forth opposite its name under the definition of Initial
Shares, free and clear of any lien, claim, charge, option, security interest,
restriction or encumbrance other than applicable restrictions set forth in this
Agreement; and (iv) that it does not own beneficially or of record any other
securities or rights, options or warrants to purchase any securities of the
Company.
(b) The Trust further represents and warrants that it is a trust duly
organized, validly existing and in good standing under the laws of the
Commonwealth of Virginia. The sole living Trust beneficiaries are: Xxxxxxxx X.
Xxxxxxx (during his lifetime) and, upon the death of Xxxxxxxx X. Xxxxxxx, his
children then living (presently his children are Xxxx X. Xxxxxxx and Xxxx X.
Xxxxxxx). The execution, delivery and performance of this Agreement will not
violate any trust document establishing or governing the Trust.
Xx. Xxxxxxxx, in his individual capacity and as trustee of the Xxxxxxxx
Trust, further represents and warrants that as of the date hereof, (i) the
Xxxxxxxx Trust is the record and beneficial owner of all of the general
partnership interests of the Xxxxxxxx Partnership, (ii) the Xxxxxxxx Trust and
Xxxxxxxx are the record and beneficial owners of all of the limited partnership
interests of the Xxxxxxxx Partnership, and (iii) the Xxxxxxxx Trust and Xxxxxxxx
own such partnership interests (general and limited) free and clear of all
security interests, liens, claims, pledges, options, rights of first refusal,
agreements, limitations on voting rights, charges and other encumbrances of any
nature whatsoever (except for any encumbrance arising under the limited
partnership agreement of the Xxxxxxxx Partnership)
14. Severability. If any term or other provision of this Agreement is
------------
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect to the maximum extent permitted by applicable
law. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in a mutually acceptable manner in order that
this Agreement be enforced as originally contemplated to the greatest extent
possible.
15. Entire Agreement. This Agreement together with the Company's Articles
----------------
of Incorporation and Bylaws as in effect on the date hereof constitute the
entire agreement and understanding among the parties pertaining to the subject
matter hereof and supersede any and all prior agreements, whether written or
oral, relating hereto.
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16. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
ADVANCE HOLDING CORPORATION,
a Virginia corporation
By: ________________________________
Its: ________________________________
ADVANCE AUTO PARTS, INC.,
a Delaware corporation
By: ________________________________
Its: ________________________________
XXXXXXXX X. XXXXXXX
_____________________________________
THE XXXXXX XXXXXXX TRUST DATED JULY 13, 1964
By: _______________________________
Trustee
RIPPLEWOOD PARTNERS, L.P.,
a Delaware limited partnership
By: ________________________________
Its: ________________________________
RIPPLEWOOD ADVANCE AUTO PARTS
EMPLOYEE FUND I L.L.C.,
a Delaware limited liability company
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By: ________________________________
Its: ________________________________
FS EQUITY PARTNERS IV, L.P.,
a Delaware limited partnership
By: FS Capital Partners, LLC
Its: General Partner
By: ________________________________
Its: ________________________________
WA HOLDING CO., formerly
WESTERN AUTO HOLDING CO.,
a Delaware corporation
By: ____________________________________
Its: ____________________________________
For purposes of the last sentence of Section 12 of the
Agreement only:
SEARS, XXXXXXX AND CO.,
a New York corporation
By: ___________________________________
Its: ___________________________________
XXXXX X. XXXXXXXX,
an individual
________________________________________
XXXXXXXX INDUSTRIES LIMITED PARTNERSHIP,
a Nevada limited partnership
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By: Xxxxx X. Xxxxxxxx Revocable Trust
Its: General Partner
__________________________________
By: Xxxxx X. Xxxxxxxx
Its: Trustee
XXXXX X. XXXXXXXX REVOCABLE TRUST,
a Florida revocable trust
________________________________________
By: Xxxxx X. Xxxxxxxx
Its: Trustee
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