EXHIBIT 10.39
ADVANCE STORES COMPANY, INCORPORATED
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT (this "Pledge Agreement") is made as of
September 20, 2001, between Garnett E. Smith as pledgor ("Pledgor"), and Advance
Stores Company, Incorporated, a Virginia corporation, as pledgee ("Pledgee").
R E C I T A L S:
- - - - - - - -
A. Pursuant to that certain Stock Purchase Agreement dated April 15,
1998 (the "Purchase Agreement") by and between Pledgee and Pledgor, Pledgor was
issued 250,000 shares (the "Shares") of common stock, $0.01 par value per share
of Pledgee in exchange for an aggregate purchase price of $2,500,000.00.
B. Pursuant to the terms of the Purchase Agreement and that certain
Secured Promissory Note in the amount of $1,300,000.00 of even date herewith
delivered by Pledgor to Pledgee (the "Note"), Pledgor has agreed to make
payments of principal and interest to Pledgee as provided in the Note.
C. Pursuant to the terms of the Purchase Agreement and the Note,
Pledgor is required to execute this Pledge Agreement to secure payment in full
of all obligations under the Note, whether for principal, interest, fees,
expenses or otherwise and to ensure compliance with the terms and conditions of
the Purchase Agreement and this Pledge Agreement.
A G R E E M E N T:
- - - - - - - - -
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants and conditions contained herein, the parties hereto agree as
follows:
1. Grant of Security Interest in the Shares. Pledgor hereby grants
----------------------------------------
to Pledgee a security interest in the Shares, pledges and hypothecates the
Shares to Pledgee, and deposits the certificates evidencing the Shares (the
"Certificates") with Pledgee as collateral security for the payment by Pledgor
of all obligations existing under the Note, whether for principal, interest,
fees, expenses or otherwise, and the satisfaction of all obligations of Pledgor
under the Purchase Agreement and this Pledge Agreement. The Certificates,
together with one or more stock assignments duly executed in blank with
signatures appropriately guaranteed or witnessed, are being delivered herewith
to Pledgee, to be retained by Pledgee as the pledgeholder for the Shares.
2. Representation and Warranty of Pledgor. Pledgor represents and
--------------------------------------
warrants
to Pledgee that the Shares are free and clear of all claims, mortgages, pledges,
liens and other encumbrances of any nature whatsoever, except (a) the liens and
restrictions set forth herein and in the Note, and (b) any restrictions upon
sale and distribution imposed by the Securities Act of 1933, as amended (the
"Act"), applicable state securities laws, and the Purchase Agreement.
3. Voting of Shares. So long as there shall exist no Event of
----------------
Default (as hereinafter defined), Pledgor shall be entitled to exercise, as
Pledgor deems proper but in a manner not inconsistent with the terms hereof,
Pledgor's rights to voting power with respect to the Shares. Pledgee, and not
Pledgor, shall be entitled to vote the Shares at any time that there exists an
Event of Default.
4. Dividends. So long as there shall exist no Event of Default,
---------
Pledgor shall be entitled to receive any dividend (ordinary or extraordinary,
whether paid in cash, stock or property) or other distribution with respect to
the Shares. If there exists an Event of Default, such dividend or other
distribution shall be delivered to Pledgee to be held as additional collateral
security under this Pledge Agreement.
5. Pledgee's Duties. So long as Pledgee exercises reasonable care
----------------
with respect to the Shares in its possession, Pledgee shall have no liability
for any loss or damage to such Shares, and in no event shall Pledgee have
liability for any diminution in value of the Shares occasioned by economic or
market conditions or events. Pledgee shall be deemed to have exercised
reasonable care within the meaning of the preceding sentence if the Shares in
its possession are accorded treatment substantially equal to that which Pledgee
accords its own property, it being understood that Pledgee shall not have any
responsibility under this Pledge Agreement for (a) ascertaining or taking action
with respect to calls, conversions, exchanges, maturities, tenders or other
matters relating to the Shares, whether or not Pledgee has or is deemed to have
knowledge of such matters, or (b) taking any necessary steps to preserve rights
against any person or entity with respect to the Shares.
6. Release from Pledge; Transfers to Permitted Transferees. In the
-------------------------------------------------------
event of a purchase by Pledgee of any or all of the Shares pursuant to Section 3
---------
of the Purchase Agreement, such Shares shall be released from this Pledge
Agreement. Pledgor hereby authorizes and directs Pledgee, upon receipt by
Pledgor of payment pursuant to Section 3 of the Purchase Agreement, to complete
---------
and execute the stock assignment or stock assignments delivered herewith to
effectuate such Transfer.
No Shares may be Transferred (as defined in the Purchase Agreement)
(except as set forth in the next sentence), unless Pledgor has made payment to
Pledgee of all unpaid obligations existing under the Note (whether or not then
due and payable), whether for principal, interest, fees, expenses or otherwise
and all unsatisfied obligations of Pledgor under the Purchase Agreement and this
Pledge Agreement. In the event of a Transfer pursuant to Section 5 of the
---------
Purchase Agreement, the Pledgor authorizes the Pledgee to cause the certificate
or certificates evidencing the Shares to be reissued in the name of the
Permitted Transferee (as defined in the Purchase Agreement) or Transferees;
provided, however, that (a) the Shares shall continue to be
subject to this Agreement and the Permitted Transferees shall execute an
undertaking agreeing to be bound by this Agreement in accordance with Section 5
---------
of the Purchase Agreement; (b) the reissued certificate or certificates shall
continue to be held by the Pledgee pursuant hereto; and (c) the Permitted
Transferee or Transferees shall execute and deliver to the Pledgee stock
assignments in blank with respect to the Shares. Upon receipt by Pledgee of the
payment as required by this paragraph, the Shares shall be released from this
Pledge Agreement.
7. Sale of Collateral. Upon the occurrence of any Event of Default
------------------
(as defined in Section 9 hereof), Pledgee shall have all the rights and remedies
---------
of a secured party under the applicable Uniform Commercial Code and also may,
without notice, except as specified below, at its option, sell all or any part
of the Shares, for cash, note or other property upon credit for future delivery
or upon such other terms as Pledgee may deem commercially reasonable. Upon such
sale, Pledgee, unless prohibited by a provision of any applicable statute, may
purchase all or any part of the Shares being sold, free from and discharged of
all trusts, claims, rights of redemption and equities of Pledgor. If the
proceeds of any sale of the Shares shall be insufficient to pay all amounts due
under the Notes and satisfy the obligations of Pledgor under the Purchase
Agreement and this Pledge Agreement, including collection costs and expenses of
such sale, Pledgor shall remain obligated and liable for any deficiency with
respect thereto. If, at any time when Pledgee shall determine to exercise its
rights to sell all or any part of the Shares pursuant to this Section 7, such
---------
Shares, or the part thereof to be sold, shall not be effectively registered
under the Act as then in effect or any similar statute then in force, subject to
the provisions of Section 9 hereof, Pledgee, in its sole and absolute
---------
discretion, is hereby expressly authorized to sell such Shares, or any part
thereof, by private sale in such manner and under such circumstances as Pledgee
may deem necessary or advisable in order that such sale may be effectuated
legally without such registration. Without limiting the generality of the
foregoing, Pledgee, in its sole and absolute discretion, may approach and
negotiate with a restricted number of potential purchasers to effectuate such
sale or restrict such sale to a purchaser or purchasers who shall represent and
agree that such purchaser or purchasers are purchasing for its or their own
account, for investment only, and not with a view to the distribution or sale of
such Shares or any part thereof. Any sale conducted in the manner described in
the foregoing sentence shall be deemed to be a sale conducted in a commercially
reasonable manner within the meaning of the applicable Uniform Commercial Code,
and Pledgor hereby consents and agrees that Pledgee shall incur no
responsibility or liability for selling all or any part of the Shares at a price
which is not unreasonably low, notwithstanding the possibility that a
substantially higher price might be realized if the sale were public. Pledgee
shall not be obligated to make any sale of the Shares regardless of notice of
sale having been given. Pledgee may adjourn any public or private sale from
time to time by announcement at the time and place fixed therefor, and any such
sale may, without further notice, be made at the time and place to which it was
so adjourned.
8. Redemption of Collateral. Notwithstanding any other provision of
------------------------
this Pledge Agreement, upon the occurrence of an Event of Default, Pledgee shall
give Pledgor written notice of the time and place of any public sale or of the
time on or after which any private sale or other Transfer is to be made at least
five (5) days before the date fixed for any public sale
or before the day on or after which any private sale or other Transfer is to be
made. Pledgor agrees that, to the extent notice of sale shall be required by
law, such five (5) days' notice shall constitute reasonable notification. This
notice shall also specify the aggregate outstanding monetary obligations of the
Pledgor to Pledgee at the date of such notice (the "Total Obligation"). At any
time during such five (5) day period, Pledgor shall have the right to redeem the
Shares by the payment by certified or bank cashier's check of an amount equal to
the Total Obligation.
9. Events of Default. At the option of Pledgee, the principal
-----------------
balance of the Note and all accrued and unpaid interest thereon, and all other
obligations of Pledgor to Pledgee thereunder, under the Purchase Agreement and
hereunder, shall become and be immediately due and payable, without notice of
default, presentment or demand for payment, protest or notice of nonpayment or
dishonor, or other notices or demands of any kind (all of which are hereby
expressly waived by Pledgor), upon the occurrence of any of the events set forth
below (individually, an "Event of Default"):
(a) Pledgor shall fail to make complete payment of any
installment of accrued interest under the Note on the date such installment of
accrued interest is due, after being given notice and an opportunity of at least
five (5) days to cure such nonpayment;
(b) Pledgor shall fail to make complete payment of principal when
due under the Note;
(c) Pledgor shall fail to make the prepayment of principal and
accrued interest on the Note as required by the fourth paragraph of the Note; or
(d) Pledgor shall commit a breach of or default under the
Purchase Agreement or this Pledge Agreement.
10. Termination. This Pledge Agreement shall terminate only upon (a)
-----------
payment to Pledgee of all unpaid obligations existing under the Note, whether
for principal, interest, fees, expenses or otherwise and all unsatisfied
obligations of Pledgor under the Purchase Agreement and this Pledge Agreement,
and (b) termination of the Purchase Agreement and all obligations thereunder
with respect to all Shares. Upon termination of this Pledge Agreement, Pledgor
shall be entitled to the return of the Certificates then held by Pledgee and any
other collateral security then held by Pledgee pursuant to Section 4 of this
---------
Pledge Agreement.
11. Cumulation of Remedies; Waiver of Rights. The remedies provided
----------------------------------------
herein in favor of Pledgee shall not be deemed exclusive but shall be cumulative
and shall be in addition to all of the remedies in favor of Pledgee existing at
law or in equity. Nothing in this Pledge Agreement shall require Pledgee to
proceed against or exhaust its remedies against the Shares before proceeding
against Pledgor or executing against any other security or collateral securing
performance of Pledgor's obligations to Pledgee under the Note, the Purchase
Agreement or this Pledge Agreement. No delay on the part of Pledgee in
exercising any of its
options, powers or rights, or the partial or single exercise thereof, shall
constitute a waiver thereof.
12. Execution of Endorsements, Assignments, Etc. Upon the occurrence
-------------------------------------------
of an Event of Default, Pledgee shall have the right for and in the name, place
and stead of Pledgor to execute endorsements, assignments or other instruments
of conveyance or transfer with respect to all or any of the Shares and any other
shares of the capital stock of Pledgee or other property which is held by
Pledgee as collateral security pursuant to this Pledge Agreement.
13. Miscellaneous.
-------------
(a) Further Assurances; Changes in Capitalization. Each party
---------------------------------------------
hereto agrees to perform any further acts and execute and deliver any documents
which may be reasonably necessary to carry out the intent of this Pledge
Agreement. The provisions of this Pledge Agreement shall apply to any and all
stock or other securities of the Pledgee or any successor or assign of the
Pledgee, which may be issued in respect of, in exchange for or in substitution
of, the Shares by reason of any split, reverse split, recapitalization,
reclassification, combination, merger, consolidation or otherwise, and such
Shares or other securities shall be encompassed within the term "Shares" for
purposes of this Pledge Agreement and the Pledgee shall have a security interest
in all such securities on the same terms set forth in this Pledge Agreement.
(b) Notice. Except as otherwise provided herein, all notices,
------
requests, demands and other communications under this Agreement shall be in
writing, and if by telegram or telecopy, shall be deemed to have been validly
served, given or delivered when sent, or if by personal delivery or messenger or
courier service, or by registered or certified mail, shall be deemed to have
been validly served, given or delivered upon actual delivery, at the following
addresses, telephone and facsimile numbers (or such other address(es), telephone
and facsimile numbers a party may designate for itself by like notice):
If to Pledgee:
Advance Stores Company, Incorporated
c/o Freeman Spogli & Co. Incorporated
599 Lexington Avenue, Suite 1800
New York, New York 10022
Attention: John M. Roth
Telephone: (212) 758-2555
Telecopy: (212) 758-7499
If to Pledgor:
Garnett E. Smith
1994 Merriman Way
Moneta, Virginia 24121
Telephone: (540) 721-8057
(c) Amendments. This Pledge Agreement may be amended only by a
----------
written agreement executed by the parties hereto.
(d) Governing Law. This Pledge Agreement shall be governed by
-------------
and construed in accordance with the laws of the Commonwealth of Virginia.
(e) Disputes. In the event of any dispute between the parties
--------
arising out of this Pledge Agreement, the prevailing party shall be entitled to
recover from the nonprevailing party the reasonable expenses of the prevailing
party including, without limitation, reasonable attorneys' fees.
(f) Entire Agreement. This Pledge Agreement constitutes the
----------------
entire agreement and understanding among the parties pertaining to the subject
matter hereof and supersedes any and all prior agreements, whether written or
oral, relating hereto.
(g) Successors and Assigns. Pledgee shall have the right to
----------------------
assign with absolute discretion any or all of its rights and/or obligations
and/or delegate any or all of its duties under this Agreement to any of its
affiliates, successors and/or assigns, including, without limitation (i) to any
of its banks or lending institutions as collateral security, or (ii) to any
entity succeeding the Pledgee by merger, consolidation or acquisition of all or
substantially all of the Pledgee's assets, and this Agreement shall inure to the
benefit of, and be binding upon, such respective affiliates, successors and/or
assigns of Pledgee in the same manner and to the same extent as if such
affiliates, successors and/or assigns were original parties hereto. Unless
specifically provided herein to the contrary, Pledgor may not assign any or all
of its rights and/or obligations and/or delegate any or all of its duties under
this Pledge Agreement without the prior written consent of Pledgee. Upon an
assignment of any or all of Pledgor's rights and/or obligations and/or a
delegation of any or all of its duties under this Pledge Agreement in accordance
with the terms of this Pledge Agreement, this Pledge Agreement shall inure to
the benefit of, and be binding upon, Pledgor's respective affiliates, successors
and/or assigns in the same manner and to the same extent as if such affiliates,
successors and/or assigns were original parties hereto.
(h) Headings. Introductory headings at the beginning of each
--------
section and subsection of this Pledge Agreement are solely for the convenience
of the parties and shall not be deemed to be a limitation upon or description of
the contents of any such section and subsection of this Pledge Agreement.
(i) Counterparts. This Agreement may be executed in two
------------
counterparts, each of which shall be deemed an original and both of which, when
taken together, shall constitute one and the same Pledge Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Pledge
Agreement as of the day and year first above written.
PLEDGEE:
Advance Stores Company, Incorporated,
a Virginia corporation
By: /s/ Lawrence P. Castellani
---------------------------
Lawrence P. Castellani
Chief Executive Officer
PLEDGOR:
/s/ Garnett E. Smith
--------------------
Garnett E. Smith