STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of August 7, 2001, among Advance Holding
Corporation, a Virginia corporation ("Holding"), Advance Stores Company,
Incorporated, a Virginia corporation and wholly-owned subsidiary of the Holding
("ASCI"), Xxxxxxxx Industries Limited Partnership (the "Stockholder"), the Xxxxx
X. Xxxxxxxx Revocable Trust (the "Xxxxxxxx Trust") and Xxxxx X. Xxxxxxxx in his
individual capacity ("Xxxxxxxx").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, immediately prior to the execution of this Agreement, Holding,
ASCI, Advance Auto Parts, Inc., a Delaware corporation ("New Holding"), AAP
Acquisition Corporation, a Florida corporation ("Merger Sub") and Discount Auto
Parts, Inc., a Florida corporation (the "Company"), have entered into an
Agreement and Plan of Merger (as such agreement may hereafter be amended from
time to time, the "Merger Agreement"), pursuant to which Merger Sub will be
merged with and into the Company (the "Merger");
WHEREAS, prior to the execution of the Merger Agreement, the Board of
Directors of the Company has taken all actions necessary such that no "fair
price", "business combination", "control share acquisition" or similar statute
will be applicable to the transactions contemplated by this Agreement or the
Merger Agreement;
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Holding and ASCI have required that the Stockholder agrees, and the
Stockholder has agreed, to enter into this Agreement; and
WHEREAS, as of the date hereof, the Xxxxxxxx Trust is the sole general
partner of the Stockholder, and the Xxxxxxxx Trust and Xxxxxxxx own all of the
limited partnership interests in the Stockholder.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises,
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound hereby, agree as follows:
1. Certain Definitions. Capitalized terms used and not defined herein
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have the respective meanings ascribed to them in the Merger Agreement. For
purposes of this Agreement:
(a) "Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), including pursuant to any agreement, arrangement
or understanding, whether or not in writing. Without duplicative counting of the
same securities by the same holder, securities Beneficially
Owned by a Person shall include securities Beneficially Owned by all other
Persons with whom such Person would constitute a "group" within the meaning of
Section 13(d) of the Exchange Act.
(b) "Business Day" means any day on which banking institutions in New
York, New York and Lakeland, Florida are open for business.
(c) "Company Common Stock" shall mean at any time the common stock,
$.01 par value, of the Company.
(d) "Person" shall mean an individual, corporation, limited liability
company, partnership, joint venture, association, trust, unincorporated
organization or other entity.
2. Grant of Stock Option. In order to induce Holding and ASCI to enter
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into the Merger Agreement, the Stockholder hereby grants to ASCI an irrevocable
option (a "Stock Option") to purchase all (but not less than all) of the
4,021,509, fully paid and nonassessable shares of Company Common Stock owned by
the Stockholder (the "Option Shares") at a purchase price per share equal to the
sum of (i) $15.00 (the "Base Amount") and (ii) 25% of the Excess Amount (the
"Shared Excess Amount") (collectively, the "Purchase Price"). For these
purposes, the "Excess Amount" shall equal the amount, if any, by which the fair
market value of the per share consideration paid under an Acquisition Proposal
exceeds the Base Amount. The number of shares of Company Common Stock that may
be received upon the exercise of the Stock Option is subject to adjustment as
herein set forth.
3. Exercise of Stock Option.
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(a) Any time or from time to time prior to the expiration of the Stock
Option, ASCI (or its designee) may exercise the Stock Option, in whole but not
in part, if on or after the date hereof:
(i) any Person other than Holding or ASCI or any of their
respective "affiliates" (as defined in the Exchange Act) (a "Third Party"),
will have:
(A) commenced a bona fide tender offer or exchange offer for
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any shares of Common Stock, the consummation of which would result in
Beneficial Ownership by such Third Party (together with all such Third
Party's affiliates and "associates" (as defined in the Exchange Act)) of
50% or more of the then outstanding voting equity of the Company (either on
a primary or a fully diluted basis);
(B) acquired Beneficial Ownership of shares of Common Stock
that, when aggregated with any shares of Common Stock already owned by such
Third Party, its affiliates and associates, would result in the aggregate
Beneficial Ownership by such Third Party, its affiliates and associates
being 15% or more of the then outstanding voting equity of the Company
(either on a primary or a fully diluted basis); provided, however, that
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"Third Party" for purposes of this clause (B) does not include any
corporation, partnership, person other entity or group that Beneficially
Owns more than 15% of the outstanding voting equity of the Company (either
on a primary or a fully
diluted basis) as of the date hereof and that does not, after the date
hereof, increase such ownership percentage by more than an additional 1% of
the outstanding voting equity of the Company (either on a primary or a
fully diluted basis);
(C) entered into an agreement with the Company that
contemplates the acquisition of (x) assets constituting 15% or more of the
total assets of the Company taken as a whole or (y) Beneficial Ownership of
15% or more of the outstanding voting equity of the Company;
(ii) any of the events described in Section 9. 1(e) of the Merger
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Agreement that would allow Holding to terminate the Merger Agreement has
occurred (but without the necessity of Holding having terminated the Merger
Agreement); or
(iii) there has been an Acquisition Proposal prior to the Outside
Date (as the same may be extended), the Driver Meeting has not been held,
Holding would be permitted to terminate the Merger Agreement pursuant to
Section 9.1(b) and either Holding or the Company shall have terminated
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the Merger Agreement pursuant to Section 9.1(b).
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(iv) the Company shall have terminated the Merger Agreement
pursuant to Section 9.01(g).
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(b) In the event that ASCI wishes to exercise the Stock Option, ASCI
shall give written notice (the "Option Notice", with the date of the Option
Notice being hereinafter called the "Notice Date") to the Stockholder (with a
copy to the Company) specifying the place and date (not earlier than three nor
later than 20 Business Days from the Notice Date) for closing such purchase (a
"Closing"). Upon the giving by ASCI to the Stockholder of the Option Notice and
the tender of the aggregate Purchase Price (or the aggregate Base Amount and a
written commitment to pay the aggregate Shared Excess Amount upon closing of the
Acquisition Proposal) at the closing so specified, ASCI shall be deemed to be
the holder of record of the shares of Company Common Stock purchased upon such
exercise, notwithstanding that the stock transfer books of the Company shall
then be closed or that certificates representing such shares of Company Common
Stock shall not then be actually delivered to ASCI. ASCI's obligation to
purchase the Shares upon any exercise of the Stock Option and the Stockholder's
obligation to sell the Shares upon any exercise of the Stock Option are subject
(at the election of ASCI and the Stockholder, respectively) to the conditions
that (i) no preliminary or permanent injunction or other order against the
purchase, issuance or delivery of the Shares issued by any federal, state or
foreign court of competent jurisdiction will be in effect and (ii) any
applicable waiting period under the HSR Act will have expired. ASCI's obligation
to purchase the Shares upon exercise of the Stock Option is further subject (at
ASCI's election) to the condition that there will have been no material breach
of the representations, warranties, covenants or agreements of the Stockholder
contained in this Agreement or of the Company contained in the Merger Agreement.
Notwithstanding the foregoing, any failure by ASCI to purchase the Shares upon
exercise of the Stock Option at any Closing as a result of the non-satisfaction
of any of the foregoing conditions shall not affect or prejudice ASCI's right to
purchase the Shares upon the subsequent satisfaction of such conditions. The
Stockholder's obligation to sell the Shares upon exercise of the Stock Option
are subject (at the Stockholder's election) to the further conditions that,
during the time the Merger Agreement is or was in effect, there will have been
no material breach of the
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representations, warranties, covenants or agreements of ASCI or Holding
contained in this Agreement or the Merger Agreement, which breach has not been
cured within 30 days of the receipt of written notice thereof from the
Stockholder.
(c) At the Closing, (i) the Stockholder shall deliver to ASCI the
certificate or certificates representing the Shares in proper form for transfer
upon exercise of the Stock Option in the denominations designated by ASCI in the
Option Notice and (ii) ASCI shall pay the aggregate purchase price for the
Shares by wire transfer of immediately available funds to an account designated
in writing to ASCI within five days after execution of this Agreement in the
amount equal to the product of the Purchase Price and the number of the Shares.
(d) In the event that Holding or ASCI pays a price with an agreed upon
aggregate per share value higher than $15.00 per share for shares of Company
Common Stock under the Merger Agreement, the Base Amount shall be increased to
equal such higher price.
(e) The Stockholder has granted the Stock Option to ASCI in order to
induce ASCI and Holding to enter into and consummate the transactions
contemplated by the Merger Agreement.
4. Representations, Warranties and Covenants of the Stockholder.
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(a) Authority Relative to This Agreement. The Stockholder have all
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necessary power and authority to execute and deliver this Agreement, to perform
its obligations hereunder and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by the Stockholder and the
consummation by the Stockholder of the transactions contemplated hereby have
been duly and validly authorized by all necessary action on the part of the
Stockholder. This Agreement has been duly and validly executed and delivered by
the Stockholder and, assuming the due authorization, execution and delivery by
ASCI and Holding, constitutes a legal, valid and binding obligation of the
Stockholder, enforceable against the Stockholder in accordance with its terms.
(b) No Conflict. The execution and delivery of this Agreement by the
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Stockholder do not, and the performance of this Agreement by the Stockholder
will not, (i) require any consent, approval, authorization or permit of, or
filing with or notification to (other than pursuant to the HSR Act (as defined
in the Merger Agreement)), any governmental or regulatory authority, domestic or
foreign, (ii) conflict with or violate any law, rule, regulation, order,
judgment or decree applicable to the stockholder or by which any property or
assets of the Stockholder is bound or affected, or (iii) conflict with, result
in any breach of or constitute a default (or an event which with notice or lapse
of time or both would become a default) under, or give to others any right of
termination, amendment, acceleration or cancellation of, or result in the
creation of a lien or other encumbrance of any nature whatsoever on any property
or asset of the Stockholder pursuant to, any voting agreement, stockholders
agreement, voting trust, trust agreement, pledge agreement, loan or credit
agreement, note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which the Stockholder is
a party (individually or collectively) or by which the Stockholder or any
property or asset of the Stockholder is bound or affected.
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(c) Title to the Shares. As of the date hereof, the Stockholder is
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the record and beneficial owner of that number of shares of Company Common Stock
set forth beside the Stockholder's name on Exhibit A attached hereto, which are
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all the securities of the Company owned, either of record or beneficially, by
the Stockholder. The Stockholder owns all such shares of Company Common Stock
free and clear of all security interests, liens, claims, pledges, options,
rights of first refusal, agreements, limitations on the Stockholder's voting
rights, charges and other encumbrances of any nature whatsoever (except for any
encumbrance arising hereunder or under that separate Irrevocable Proxy and
Voting Agreement with Holding and ASCI of even date herewith), and, except as
provided in this Agreement, the Stockholder has not appointed or granted any
proxy, which appointment or grant is still effective, with respect to such
shares. The Stockholder has the sole or shared right and power to vote and
dispose of the shares of Company Common Stock. None of such shares of Company
Common Stock are subject to any voting trust or other agreement, arrangement or
restriction with respect to the voting or transfer thereof, except as
contemplated by this Agreement or by that separate Irrevocable Proxy and Voting
Agreement with Holding and ASCI of even date herewith.
(d) Company Stock Options. The Stockholder does not own, as of the
---------------------
date hereof, and will not acquire prior to the Effective Date, any Company Stock
Options.
(e) Brokers. No broker, finder or investment banker is entitled to
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any brokerage, finder's or other fee or commission in connection with the
transactions contemplated hereby based upon arrangements made by or on behalf of
the Stockholder (other than as expressly disclosed in the Merger Agreement
relative to the fee payable by the Company with respect to the Merger).
(f) Pre-Closing Transfer Restrictions. The Stockholder agrees that
---------------------------------
until the earlier of the Effective Date or the termination of this Agreement and
except as contemplated hereby or in the separate Irrevocable Proxy and Voting
Agreement with Holding and ASCI of even date hereof and in accordance with the
terms and conditions of this Agreement, the Stockholder, directly or indirectly,
will not (i) sell, hypothecate, transfer, tender, pledge, encumber, assign or
otherwise dispose of (including by gift), or create or permit to exist any
security interest, lien, claim, pledge, right of first refusal agreement, charge
or other encumbrance of any nature whatsoever (collectively, "Transfer"), or
enter into any contract, option, put, call or other arrangement or understanding
(including any profit sharing arrangement) with respect to the Transfer of any
of the Shares to any Person, (ii) trade or take any position, hedge or
otherwise, with respect to the Shares, (iii) enter into any voting agreement,
arrangement or understanding, directly or indirectly, whether by proxy, voting
agreement or otherwise, with respect to any of the Shares or deposit any Shares
into a voting trust or (iv) take any action that would make any of the
representations or warranties contained herein untrue or incorrect or have the
effect of preventing or impeding the Stockholder from performing any of its
obligations under this Agreement. Nothing herein shall prohibit the
conversion of the Shares by operation of law pursuant to a merger, share
exchange or other comparable transaction approved by the Company's stockholders,
with the understanding that upon such conversion, the provisions of Section 6
will be operative to extend the Stock Option, for the balance of the term of
such Stock Option, to the other securities or property into which the Shares are
so converted.
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(g) Fiduciary Duty. Notwithstanding anything to the contrary contained
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in this Agreement, the Stockholder shall be free to act in his capacity as a
member of the Board of Directors of the Company and to discharge his fiduciary
duty as such.
5. Representations and Warranties of Holding and ASCI. Holding and ASCI
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hereby represent and warrant to the Stockholder, jointly and severally, as
follows:
(a) Organization. Each of Holding and ASCI is a corporation duly
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organized, validly existing and in good standing under the laws of the State of
Virginia, has all requisite corporate power or other power and authority to
execute and deliver this Agreement and perform their respective obligations
hereunder. The execution and delivery by Holding and ASCI of this Agreement and
the performance by Holding and ASCI of their obligations hereunder has been duly
and validly authorized by the Board of Directors of each of Holding and ASCI and
no other corporate proceedings on the part of either are necessary to authorize
the execution, delivery or performance of this Agreement or the consummation of
the transactions contemplated hereby.
(b) Corporate Authorization. This Agreement has been duly and validly
-----------------------
executed and delivered by Holding and ASCI and constitutes a valid and binding
agreement of each, enforceable against each in accordance with its terms, except
to the extent that enforceability may be limited by applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting the enforcement
of creditors' rights generally and by general principles of equity, regardless
of whether such enforceability is considered in a proceeding in equity or at
law.
(c) No Conflicts. Except for filings, authorizations, consents and
------------
approvals as may be required under the HSR Act, the Exchange Act and the
Securities Act (each as defined in the Merger Agreement) (i) no filing with, and
no permit, authorization, consent or approval of, any state or federal public
body or authority is necessary for the execution of this Agreement by Holding
and ASCI and the consummation by Holding and ASCI of the transactions
contemplated hereby and (ii) none of the execution and delivery of this
Agreement by Holding and ASCI , the consummation by Holding and ASCI of the
transactions contemplated hereby or compliance by Holding and ASCI with any of
the provisions hereof shall (A) conflict with or result in any breach of any
applicable organizational documents applicable to Holding or ASCI, (B) result in
a violation or breach of, or constitute (with or without notice or lapse of time
or both) a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the terms,
conditions or provisions of any material note, loan agreement, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding, agreement
or other instrument or obligation of any kind to which either is a party or by
which either or any of their respective properties or assets may be bound, or
(C) violate any order, writ, injunction, decree, judgment, statute, rule or
regulation applicable to either or any of their respective properties or assets.
6. Adjustment Upon Changes in Capitalization. In the event of any change
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in Company Common Stock by reason of stock dividends, split-ups, mergers,
reorganizations, recapitalizations, combinations, exchanges of shares or the
like, the type and number of shares of Company Common Stock or other securities
or property subject to the Stock Option and the Purchase Price shall be
appropriately adjusted and proper provision shall be made so that ASCI shall
receive upon exercise of the Stock Option the number and class of shares or
other securities or property that ASCI would have received in respect of the
Option Shares if the Stock Option
6
had been exercised immediately prior to such event or the record date therefore,
as applicable. Nothing contained in this Section 6 shall be deemed to authorize
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the Company to breach any provision of the Merger Agreement.
7. Termination. This Agreement shall terminate, and ASCI's right to
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exercise the Stock Option shall expire, on the earliest to occur of (i) the
Effective Time (as defined in the Merger Agreement), (ii) the termination of
this Agreement by the mutual written agreement of the parties, (iii) the
termination of the Merger Agreement pursuant to Section 9.1(a), 9.1(b) (subject
to clause (vii)), 9.1(c) or 9.1(h), or the termination by the Company of the
Merger Agreement under Section 9.1(f), (iv) the first Business Day following the
120th day after the termination of the Merger Agreement pursuant to Section
9.1(d), but only if there has been an Acquisition Proposal prior to the Driver
Meeting, (v) the first Business Day following the 120th day after the
termination of the Merger Agreement pursuant to Section 9.1(e) or 9.1(g), (vi)
the first Business Day following the 60th day after the termination by Holding
of the Merger Agreement under Section 9.1(f), or (vii) the first Business Day
following the 60th day after the termination of the Merger Agreement pursuant to
Section 9.1(b) provided that there has been an Acquisition Proposal prior to
such termination and Holding would be permitted to terminate the Merger
Agreement pursuant to Section 9.1(b).
8. Miscellaneous.
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(a) Expenses. Except as otherwise provided herein or in the Merger
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Agreement, all costs and expenses incurred in connection with the transactions
contemplated by this Agreement shall be paid by the party incurring such
expenses.
(b) Further Assurances. The Stockholder, the Xxxxxxxx Trust,
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Xxxxxxxx, ASCI and Holding will execute and deliver all such further documents
and instruments and take all such further action as may be necessary in order to
consummate the transactions contemplated hereby.
(c) Specific Performance. The parties hereto agree that irreparable
--------------------
damage would occur in the event any provision of this Agreement was not
performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
(d) Entire Agreement. This Agreement, together with a Irrevocable
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Proxy and Voting Agreement dated of even date herewith, constitutes the entire
agreement among Holding, ASCI, the Stockholder, the Xxxxxxxx Trust and Xxxxxxxx
with respect to the subject matter hereof and supersedes all prior agreements
and understandings, both written and oral, among Holding, ASCI, the Stockholder,
the Xxxxxxxx Trust and Xxxxxxxx with respect to the subject matter hereof.
(e) Assignment. This Agreement shall not be assigned by operation of
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law or otherwise, except that Holding and ASCI may assign all or any of their
rights hereunder (but not their obligations hereunder) to any affiliate of ASCI
or Holding.
(f) Obligations of Successors; Parties in Interest. This Agreement
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shall be binding upon, inure solely to the benefit of, and be enforceable by,
the parties hereto and their successors, permitted assigns, heirs and
beneficiaries. Nothing in this Agreement, express or
7
implied, is intended to or shall confer upon any other person any right, benefit
or remedy of any nature whatsoever under or by reason of this Agreement.
(g) Amendment; Waiver. This Agreement may not be amended except by an
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instrument in writing signed by the parties hereto.
(h) Severability. If any term or other provision of this Agreement is
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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 so long as the economic or legal substance of
this Agreement is not affected in any manner materially adverse to any party.
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 the terms of
this Agreement remain as originally contemplated to the fullest extent possible.
(i) Notices. All notices, requests, claims, demands and other
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communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by telecopy,
reputable overnight courier or by registered or certified mail (postage prepaid,
return receipt requested) to the respective parties at the following addresses
(or at such other address for a party as shall be specified in a notice given in
accordance with this Section 4.9):
if to Holding or ASCI:
Advance Stores Company, Incorporated
0000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxxxxxx, Chief Executive Officer
Telecopier: (000) 000-0000
with a copy to:
Xxxxxxx & XxXxxxxx
000 X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
Telecopier: (000) 000-0000
if to the Stockholder, the Xxxxxxxx Trust or Xxxxxxxx:
Xxxxx X. Xxxxxxxx
00 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
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and
Xxxxxxxx Industries Limited Partnership
0000 X. Xxxxxx Xxxxxxxx Xx. #00
Xxx Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
(j) Governing Law. The validity and interpretation of this Agreement
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shall be governed by the laws of the State of Florida, without reference to the
conflicts of law principles thereof.
(k) Headings. The descriptive headings contained in this Agreement
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are included for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
(l) Counterparts. This Agreement may be executed in one or more
------------
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement. The signatures of the
parties on this Agreement may be delivered by facsimile and any such facsimile
signature shall be deemed an original.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers or
representatives as of the day and year first written above.
HOLDING:
Advance Holding Corporation
By: /s/ Xxxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxxx X. Xxxxxxxxxx
Title: Chief Executive Officer
ASCI:
Advance Stores Company, Incorporated
By: /s/ Xxxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxxx X. Xxxxxxxxxx
Title: Chief Executive Officer
STOCKHOLDER:
Xxxxxxxx Industries Limited Partnership
By: Xxxxx X. Xxxxxxxx Revocable Trust,
its general partner
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx, Trustee
XXXXXXXX TRUST:
Xxxxx X. Xxxxxxxx Revocable Trust
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx, Trustee
XXXXXXXX:
/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx, in his individual capacity
S-1
EXHIBIT A
STOCKHOLDER
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Shares Owned of Shares Beneficially
Entity Record Owned
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Xxxxxxxx Industries Limited Partnership 4,021,509 4,021,509
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