EXHIBIT 10.13
ADVANCE HOLDING CORPORATION
1998 SENIOR EXECUTIVE STOCK OPTION AGREEMENT
THIS 1998 SENIOR EXECUTIVE STOCK OPTION AGREEMENT (this "Agreement")
is entered into as of ________, 1998 by and between Advance Holding Corporation,
a Virginia corporation (the "Company"), and ________________ ("Optionee"),
pursuant to the Advance Holding Corporation 1998 Senior Executive Stock Option
Plan (the "Plan"). All capitalized terms not otherwise defined herein shall
have the meanings set forth in the Plan.
R E C I T A L S:
- - - - - - - -
A. Optionee is a senior executive of the Company and/or of a direct
or indirect subsidiary of the Company (individually, a "Subsidiary" and
collectively, the "Subsidiaries") and the Company considers it desirable to give
Optionee an added incentive to advance the Company's and the Subsidiaries'
interests.
B. The Committee has determined to grant Optionee the right to
purchase shares of common stock of the Company pursuant to the terms and
conditions of this Agreement and the Plan.
A G R E E M E N T:
- - - - - - - - -
NOW, THEREFORE, in consideration of the covenants hereinafter set
forth, the parties agree as follows:
1. Options; Number of Shares. The Company hereby grants to Optionee
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the right to purchase (the "Options") up to
_____________________________________________ (_______) shares (the "Shares") of
$0.01 par value common stock of the Company at the following prices per share
(the "Purchase Price"):
(a) Options to purchase __________________________________ (______)
Shares at a price equal to ten dollars ($10.00) per Share (the "Fixed Price
Service Options");
1.
(b) Options to purchase ________________________________________
(_______) Shares at a price equal to the amount set forth opposite the date of
exercise of the Option on Schedule A attached hereto (the "Variable Price
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Service Options"); and
(c) Options to purchase _________________________________ (_______)
Shares at a price equal to ten dollars ($10.00) per Share (the "Performance
Options").
The Fixed Price Service Options, Variable Price Service Options and the
Performance Options are sometimes hereinafter collectively referred to as the
"Options" and individually as an "Option." The Options and the right to purchase
all or any portion of the Shares are subject to the terms and conditions stated
in this Agreement and in the Plan, including, without limitation, the provisions
of Section 4, Section 6, Section 10, Section 13(b), Section 14 and Section 19 of
the Plan and Section 3 and Section 4 hereof. Upon exercise of an Option and
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payment of the Purchase Price, Optionee shall become a shareholder of the
Company, with all rights and privileges of a shareholder of the Company in
respect of any shares of common stock of the Company issuable upon such
exercise. It is intended that the Options will not qualify for treatment as an
incentive stock option under Section 422 of the Internal Revenue Code of 1986,
as amended (the "Code").
2. Exercise Criteria. The Variable Price Service Options shall
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become exercisable as set forth on Schedule A. The Fixed Price Service Options
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shall become exercisable, in whole or in part, over time as set forth on
Schedule B attached hereto. The Performance Options shall become exercisable,
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in whole or in part, as set forth on Schedule C attached hereto.
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3. Term of Agreement. Except for the rights conferred upon the
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Company pursuant to Section 7 below, the Options, and Optionee's right to
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exercise the Options, shall terminate when the first of the following occurs:
(a) termination of the Options pursuant to Section 6, Section 13 or
Section 14 of the Plan or Section 2 hereof;
(b) the expiration of seven (7) years from the date hereof;
(c) ninety (90) days after the date of termination of Optionee's
employment or other relationship with the Company and all of the Subsidiaries,
unless such termination results from Optionee's death or disability (within the
meaning of Section 22(e)(3) of the Code, or Optionee dies within ninety (90)
days after the date of termination of Optionee's employment or other
relationship with the Company and all of the Subsidiaries, in which case this
Agreement and the Option shall terminate one hundred twenty (120) days after the
date of
2.
termination of Optionee's employment or other relationship with the Company and
all of the Subsidiaries; or
(d) on the date of termination of Optionee's employment or other
relationship with the Company and all of the Subsidiaries if such termination
was for cause (as determined in good faith by the Board of Directors of the
Company).
4. Termination of Employment or Other Relationship. The termination
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for any reason of Optionee's employment or other relationship with the Company
and all of the Subsidiaries shall not accelerate the vesting of the Options.
The Options may only be exercised with respect to that number of Shares which
could have been made under the Options had such Options been exercised by
Optionee on the date of such termination.
5. Death of Optionee; No Assignment. The rights of Optionee under
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this Agreement may not be assigned or transferred except by will, by the laws of
descent or distribution and may be exercised during the lifetime of Optionee
only by such Optionee; provided, however, that in the event of disability
(within the meaning of Section 22(e)(3) of the Code) of Optionee, a designee of
Optionee (or the Optionee's legal representative if Optionee has not designated
anyone) may exercise the Options on behalf of Optionee (provided the Options
would have been exercisable by Optionee) until the right to exercise the Options
expires pursuant to Section 3 hereof. Any attempt to sell, pledge, assign,
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hypothecate, transfer or otherwise dispose of the Options in contravention of
this Agreement or the Plan shall be void. If Optionee should die while Optionee
is engaged in an employment relationship with the Company and/or any Subsidiary
or within ninety (90) days after termination of such relationship, and provided
Optionee's rights hereunder shall have vested, in whole or in part, pursuant to
Section 2 hereof, Optionee's designee, legal representative, or legatee, the
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successor trustee of Optionee's inter vivos trust or the person who acquired the
right to exercise the Options by reason of the death of Optionee (individually,
a "Successor") shall succeed to Optionee's rights under this Agreement. After
the death of Optionee, only a Successor may exercise the Options.
6. Exercise of Options. No option granted under this Agreement shall be
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exercisable until it has vested. On or after the vesting of the Options in
accordance with Section 2 hereof and until termination of the Options in
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accordance with Section 3 hereof, the Options may be exercised by Optionee (or
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such other person specified in Section 5 hereof) to the extent exercisable as
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determined under Section 2 hereof, upon delivery of the following to the Company
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at its principal executive offices:
(a) a written notice of exercise which identifies this Agreement, the
type of Option to be exercised, and states the number of Shares to be purchased;
3.
(b) a check, cash or any combination thereof in the amount of the
aggregate Purchase Price (or payment of the aggregate Purchase Price in such
other form of lawful consideration as the Committee may approve from time to
time under the provisions of Section 7 of the Plan);
(c) a check or cash in the amount reasonably requested by the Company
to satisfy the Company's withholding obligations under federal, state or other
applicable tax laws with respect to the taxable income, if any, recognized by
Optionee in connection with the exercise, in whole or in part, of the Options
(unless the Company and Optionee shall have made other arrangements for
deductions or withholding from Optionee's wages, bonus or other income paid to
Optionee by the Company or any Subsidiary, provided, however, such arrangements
must satisfy the requirements of all applicable tax laws);
(d) a written representation and undertaking, in such form and
substance as the Company may require, that the Shares underlying the Option are
being acquired by Optionee for Optionee's personal account, for investment
purposes only, and not with a view to the distribution, resale or other
disposition thereof;
(e) a written representation and undertaking, in such form and
substance as the Company may require, setting forth the investment intent of
Optionee, or a Successor, as the case may be, and such other agreements,
representations and undertakings as described in the Plan, including an
acknowledgment that Optionee has reviewed the memorandum regarding Section 83(b)
of the Internal Revenue Code of 1986, as amended, attached hereto as Exhibit A;
and
(f) such further acts as may be necessary to register Optionee as
a shareholder of the Company.
7. Restriction on Transfer of Shares; Right of First Refusal; Drag Along
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Rights.
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(a) Restriction on Transfer of the Shares.
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(i) Except as otherwise provided herein, Optionee may not sell,
transfer, assign, pledge, hypothecate or otherwise dispose of (collectively,
"Transfer") any of the Shares, or any right, title or interest therein prior to
the third anniversary of the Closing Date and, thereafter, any Transfer must be
in compliance with Section 7 and Section 9 hereof. Any purported Transfer or
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Transfers (including involuntary Transfers initiated by operation of legal
process) of any of the Shares or any right, title or interest therein, except in
strict compliance with the terms and conditions of this Agreement, shall be null
and void.
4.
(ii) Permitted Transfers. Optionee may, at any time or times,
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transfer any or all of the Shares: (a) inter vivos to Optionee's spouse or
issue, a trust for their benefit, or pursuant to any will or testamentary trust;
or (b) upon Optionee's death, to any person in accordance with the laws of
descent and/or testamentary distribution (such persons described in clauses (a)
and (b) hereof are collectively referred to herein as "Permitted Transferees").
Notwithstanding the foregoing, Shares shall not be Transferred until the
Permitted Transferee executes a valid undertaking, in form and substance
reasonably satisfactory to the Company, to the effect that the Permitted
Transferee and the Shares so Transferred shall thereafter remain subject to all
of the provisions of this Agreement (including the Repurchase Option), as though
the Permitted Transferee were a party to this Agreement, bound in every respect
in the same way as Optionee. Transfers made in accordance with this clause (ii)
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shall not be subject to the provisions of Section 7(b) of this Agreement.
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(b) Right of First Refusal.
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(i) Sales; Notice. At any time on or after the third anniversary
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of this Agreement, Optionee may transfer for cash (and only for such form of
consideration) any or all of the Shares to any third party ("Transfer") subject
to the provisions of this Section 7 and Section 10(b). Prior to any such
intended Transfer, Optionee shall first give at least thirty (30) days' advance
written notice (the "Notice") to the Company specifying (i) Optionee's bona fide
intention to sell such Shares; (ii) the name(s) and address(es) of the proposed
transferee(s); (iii) the number of Shares Optionee proposes to Transfer
(individually, an "Offered Share," and collectively, the "Offered Shares"); (iv)
the price for which Optionee proposes to Transfer each Offered Share (the
"Proposed Purchase Price"); (v) such evidence as the Company may reasonably
request to demonstrate the ability of the proposed transferee(s) to pay the
Proposed Purchase Price; and (vi) all other material terms and conditions of the
proposed transfer.
(ii) Election by the Company. Within twenty (20) days after
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receipt of the Notice, the Company may elect to purchase any or all of the
Offered Shares at the price and on the terms and conditions set forth in the
Notice by delivery of written notice of such election to Optionee, specifying a
day, which shall not be more than twenty (20) days after such notice is
delivered, on or before which Optionee shall surrender (if Optionee has not
already done so) the certificate or certificates representing the Offered Shares
(duly endorsed in blank for transfer) at the administrative office of the
Company. Within twenty (20) days after delivery of such notice to Optionee, the
Company shall deliver to Optionee a check, payable to Optionee or to such person
as Optionee shall request, in the amount equal to the product of the Proposed
Purchase Price multiplied by the number of Offered Shares (the "First Refusal
Price") in exchange for the Offered Shares. If Optionee fails to so surrender
such certificate or certificates on or before such date, from and after such
date the Offered Shares shall be deemed to be no longer outstanding, and
Optionee shall cease to be a Shareholder with respect to such Shares and shall
have no rights with respect thereto except only the right to receive payment of
the First Refusal
5.
Price, without interest, upon surrender of the certificate or certificates
therefor (duly endorsed in blank for Transfer). Notwithstanding the foregoing,
if any Outstanding Amount (as defined in that certain Stock Subscription
Agreement between the Company and the Optionee dated April 15, 1998) is owed to
the Company by Optionee, the First Refusal Price shall be reduced (to an amount
not less than zero) by such Outstanding Amount, which reduction shall be
specified in reasonable detail in the Company's written notice of election to
purchase the Offered Shares. If the Company does not elect to purchase all of
the Offered Shares, Optionee shall be entitled to Transfer the Offered Shares to
the transferee(s) named in the Notice at the Proposed Purchase Price, or at a
higher price, and on the terms and conditions set forth in the Notice; provided,
however, that such Transfer must be consummated within ninety (90) days after
the date of the Notice and any proposed Transfer after such ninety (90) day
period may be made only by again complying with the procedures set forth in this
Section 7(b). This right of first refusal shall terminate upon an underwritten
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public offering of Common Stock by the Company registered under the Act (as
defined below) (other than an offering registered on Form S-4 or Form S-8 or any
substitute for such forms) resulting in gross proceeds to the Company in excess
of $25 million (an "Initial Public Offering").
(c) Obligation to Sell Shares. If FS Equity Partners IV, L.P., a
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Delaware limited partnership ("FSEP IV"), finds a third-party buyer for all the
shares of common stock of the Company held by it (whether such sale is by way of
purchase, exchange, merger or other form of transaction), upon the request of
FSEP IV, Optionee shall sell all of Optionee's Shares for the same per share
consideration (which may be less than the exercise price for any Share) and
otherwise on the same terms and conditions as apply to FSEP IV sale. In
addition, FSEP IV may require Optionee to Transfer this Option to such buyer for
the same per share consideration (less the then aggregate Purchase Price of this
Option) and otherwise pursuant to the terms and conditions applicable to FSEP IV
for the sale of its shares of common stock. In the event the per share
consideration for the common stock is less than the Purchase Price applicable at
the time a binding agreement with respect to such transaction is entered into,
this Option shall be canceled without payment to Optionee. Optionee hereby
consents to any sale, transfer, reorganization, exchange, merger, combination or
other form of transaction covered under this Section 7(c) and agrees to execute
such agreements, powers of attorney, voting proxies or other documents and
instruments as may be necessary or desirable to consummate such sale, transfer,
reorganization, exchange, merger, combination or other form of transaction.
Optionee further agrees to timely take such other actions as FSEP IV may
reasonably request in connection with the approval of the consummation of such
sale, transfer, reorganization, exchange, merger, combination or other form of
transaction, including voting as a stockholder to approve any such sale,
transfer, reorganization, exchange, merger, combination or other form of
transaction and waiving any appraisal rights Optionee may have in connection
therewith. The obligations of Optionee pursuant to this Section shall be
binding on any transferee of this Option (other than a transferee in a Public
Market Sale, as defined below), and Optionee (and any of his transferees) shall
obtain and deliver to the Company and FSEP IV prior to any Transfers (other than
Transfers
6.
constituting a Public Market Sale) a written commitment, in form and substance
satisfactory to the Company and FSEP IV, from a subsequent transferee to be
bound by such provisions. The term "Public Market Sale" means sale of Common
Stock after the Initial Public Offering which is made pursuant to Rule 144
promulgated under the Act or which is made pursuant to a registration statement
filed with the declared effective by the Securities and Exchange Commission. Any
Transfer effected in violation of this provision shall be void. Optionee's
obligations pursuant to this Section, and the obligations of any such
transferee, shall survive the expiration or non-vesting of any portion of the
Options.
8. Tag Along Rights. If FSEP IV finds a third-party buyer (other
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than a buyer that is an investment fund or partnership affiliated with FSEP IV,
a general or limited partner of FSEP IV, or, for the period ending one year from
the date hereof, an unaffiliated institutional investor or merchant banking firm
(each, a "FS Permitted Transferee") or is a transferee in a Public Market Sale),
for all or part of the shares of Common Stock held by FSEP IV (whether such sale
is by way of purchase, exchange, merger or other form of transaction), the
Purchaser shall have the right to sell, on the terms set forth in a written
notice (the "Offering Notice") delivered by FSEP IV to the Optionee describing
the terms of the proposed sale (including the minimum sale price for the shares
of Common stock that FSEP IV plans to sell), that amount of the Shares he then
owns which constitute the same percentage of his Shares as the percentage of
Common Stock sold by FSEP IV. Each such right shall be exercisable by
delivering written notice to FSEP IV within 15 days after receipt of the
Offering Notice. Failure to exercise such right within such 15-day period shall
be regarded as a waiver of such rights. The obligations of FSEP IV under this
Section 8 shall terminate upon an Initial Public Offering.
9. Repurchase Option Upon Termination.
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(a) In the event that Optionee's employment or other relationship
with the Company and all of its Subsidiaries terminates for any reason
(including, without limitation, by reason of Optionee's death, disability,
retirement, voluntary resignation or dismissal by the Company or any of its
Subsidiaries, with or without cause), the Company shall have the option (the
"Repurchase Option") to purchase from Optionee all or any portion of the Shares
acquired by Optionee pursuant to this Option Agreement for a period of six (6)
months after the effective date of such termination (the effective date of
termination is hereinafter referred to as the "Termination Date"); provided,
however, that such six-month period shall be extended to a date 10 days after
the six-month anniversary of the date on which Optionee purchased any Shares
pursuant to this Option Agreement after the Termination Date.
(b) The purchase price (the "Repurchase Price") for each Share to
be purchased pursuant to the Repurchase Option shall equal (a) the greater of
the applicable exercise price of such Share and Book Value (as defined herein)
if the Termination Date occurs within the two (2) year period commencing on the
date hereof and (b) the greater of the applicable exercise
7.
price of such Share and Fair Market Value (as defined herein) thereof (subject
to adjustment as set forth herein) thereafter after the initial two (2) year
period described previously in subsection (a) hereof. The "Book Value" of a
Share shall equal $10.00 per Share (subject to adjustment as set forth in
Section 9(c)) below plus the net income or minus the net loss per share to the
end of the fiscal quarter immediately preceding the Termination Date, as
determined by the Board, acting in good faith and based upon the books and
records of the Company prepared in accordance with generally accepted accounting
principles consistently applied. The "Fair Market Value" of a Share shall be
determined in accordance with clause (e) below.
(c) The Repurchase Price for any Shares to be purchased pursuant
to the Repurchase Option shall be increased or decreased appropriately to
reflect any distribution of stock or other securities of the Company or any
successor or assign of the Company which is made in respect of, in exchange for
or in substitution of the Shares by reason of any split, reverse split,
combination, recapitalization, reclassification, merger, consolidation or
otherwise.
(d) The Repurchase Option shall be exercised by the Company by
delivery to Optionee, within the six-month period specified above, of (a) a
written notice specifying the number of Shares to be purchased and (b) a day,
which shall not be more than 30 days after the date such notice is delivered, on
or before which Optionee shall surrender the certificate or certificates
representing the Shares to be purchased pursuant to the Repurchase Option (duly
endorsed in blank for Transfer) at the principal office of the Company in
exchange for a check, payable to Optionee, in the amount equal to the Repurchase
Price, calculated as provided in this Section 9, multiplied by the number of the
Shares to be purchased. If Optionee fails to so surrender such certificate or
certificates on or before such date, from and after such date the Shares which
the Company elected to repurchase shall be deemed to be no longer outstanding,
and Optionee shall cease to be a stockholder with respect to such Shares and
shall have no rights with respect thereto except only the right to receive
payment of the Repurchase Price, without interest, upon surrender of the
certificate or certificates therefor (duly endorsed in blank for Transfer).
(e) As used herein, the "Fair Market Value" of a Share shall be
determined as follows: the board of directors of the Company shall act in good
faith to determine the Fair Market Value of each Share as of the Termination
Date (the "Initial Valuation"). All costs incurred in connection with the
Initial Valuation shall be borne by the Company. The Initial Valuation shall be
set forth in a written notice (the "Valuation Notice") delivered by the Company
to Purchaser at least 20 days prior to the repurchase date specified in the
notice of exercise. If Purchaser shall not have disputed the Initial Valuation
by delivery of a written notice of said dispute to the Company within 20 days
after the Company's delivery of the Valuation Notice, the Initial Valuation
shall be binding upon the parties as the Fair Market Value to be used for
calculating the Repurchase Price. In the event that Purchaser shall dispute the
Initial Valuation within such 20-day period, Purchaser shall, at his sole
expense, retain an appraiser (the "Second
8.
Appraiser") of his own choosing to make a second appraisal (the "Second
Appraisal") of the Fair Market Value of each Share. If the Second Appraisal is
less than the Initial Valuation, the Initial Valuation shall be binding upon the
parties. If the Second Appraisal exceeds the Initial Valuation by an amount not
greater than 10% of the Initial Valuation, the Fair Market Value of each vested
share shall be the average of the sum of the Initial Valuation and the Second
Appraisal. In the event that the Second Appraisal exceeds the Initial Valuation
by an amount greater than 10% of the Initial Valuation, the Board and the Second
Appraiser shall act in good faith to select a third appraiser who shall conduct
a third appraisal (the "Third Appraisal") which shall be final and binding upon
the parties. If the Third Appraisal of the Fair Market Value of each Share
determines an amount which is closer to the amount determined by the Second
Appraisal than to the amount determined by the Initial Valuation then the
Company shall reimburse the Purchaser for the cost of the Second Appraisal. All
costs with respect to the fees and expenses paid or payable to the appraiser
that issues the Third Appraisal shall be shared equally by the Company and
Purchaser. All other costs incurred in connection with the Third Appraisal shall
be borne by the party incurring such costs.
(f) This Repurchase Option shall terminate upon an Initial Public
Offering.
10. Representations and Warranties of Optionee.
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(a) Optionee represents and warrants that the Options are being
acquired by Optionee for Optionee's personal account, for investment purposes
only, and not with a view to the distribution, resale or other disposition
thereof.
(b) Optionee acknowledges that the Company may issue Shares upon
the exercise of the Options without registering such securities under the
Securities Act of 1933, as amended (the "Act"), on the basis of certain
exemptions from such registration requirements. Accordingly, Optionee agrees
that Optionee's exercise of the Options may be expressly conditioned upon
Optionee's delivery to the Company of such representations and undertakings as
the Company may reasonably require in order to secure the availability of such
exemptions, including a representation that Optionee is acquiring the Shares for
investment and not with a present intention of selling or otherwise disposing of
such Shares. Optionee acknowledges that, because Shares received upon exercise
of an Option may be unregistered, Optionee may be required to hold the Shares
indefinitely unless they are subsequently registered for resale under the Act or
an exemption from such registration requirements is available.
(c) Optionee acknowledges receipt of this Agreement granting the
Options, and the Plan, and understands that all rights and liabilities connected
with the Options are set forth herein and in the Plan.
9.
11. No Rights as a Stockholder. Optionee shall have no rights as a
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stockholder of any shares of common stock of the Company covered by the Options
until the Exercise Date and entry evidencing such ownership is made in the stock
transfer books of the Company. Except as my be provided under Section 10 of the
Plan, the Company will make no adjustment for dividends (ordinary or
extraordinary whether in cash, securities or other property) or distributions or
other rights for which the record date is prior to the Exercise Date.
12. Limitation of Company's Liability for Nonissuance. Inability of
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the Company to obtain, from any regulatory body having jurisdiction, authority
reasonably deemed by the Company's counsel to be necessary for the lawful
issuance and sale of any Shares hereunder and under the Plan shall relieve the
Company of any liability in respect of the nonissuance or sale of such Shares as
to which such requisite authority shall not have been obtained.
13. This Agreement Subject to Plan. This Agreement is made under the
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provisions of the Plan and shall be interpreted in a manner consistent with it.
To the extent that any provision in this Agreement is inconsistent with the
Plan, the provisions of the Plan shall control. The interpretation of the
Committee of any provision of the Plan, the Options or this Agreement, and any
determination with respect thereto or hereto by the Committee, shall be binding
on all parties.
14. Restrictive Legends. Optionee hereby acknowledges that federal
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securities laws and the securities laws of the state in which Optionee resides
or works may require the placement of certain restrictive legends upon the
Shares issued upon exercise of the Options, and Optionee hereby consents to the
placing of any such legends upon certificates evidencing the Shares as the
Company, or its counsel, may reasonably deem necessary; provided, however, that
any such legend or legends shall be removed when no longer applicable. Any and
all certificates now or hereafter issued evidencing the Shares shall have
endorsed upon them a legend substantially as follows:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS UPON TRANSFER AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF, EXCEPT IN ACCORDANCE
WITH THE TERMS AND CONDITIONS OF THAT CERTAIN OPTION AGREEMENT DATED
AS OF ________, 1998, BY AND BETWEEN ADVANCE HOLDING CORPORATION, A
VIRGINIA CORPORATION, AND THE ORIGINAL PURCHASER HEREOF, A COPY OF
WHICH AGREEMENT IS ON FILE AT
10.
THE PRINCIPAL EXECUTIVE OFFICES OF ADVANCE HOLDING CORPORATION."
15. Notices. Except as otherwise provided herein, all notices,
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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, shall be deemed to have been validly served, given or delivered
upon actual delivery (but in no event may notice be given by deposit in the
United States mail), 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 the Company:
Advance Holding Corporation
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 Optionee:
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Telephone: (___) ___-____
Fax: (___) ___-____
With a copy to:
John G. Rocovich, Jr., Esq.
Moss & Rocovich
4415 Electric Road
Roanoke, Virginia 24035-4014
Telephone: (540) 774-8800
Fax: (540) 774-8808
16. Not an Employment Agreement. Nothing contained in this Agreement
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shall confer, intend to confer or imply any rights to an employment relationship
or rights to a continued employment relationship with the Company and/or any
Subsidiary in favor of Optionee or limit
11.
the ability of the Company and/or any Subsidiary to terminate, with or without
cause, in its sole and absolute discretion, the employment relationship with
Optionee, subject to the terms of any written employment agreement to which
Optionee is a party.
17. Governing Law. This Agreement shall be construed under and
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governed by the laws of the Commonwealth of Virginia without regard to the
conflict of law provisions thereof.
18. Counterparts. This Agreement may be executed in counterparts,
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each of which shall be deemed an original and both of which together shall be
deemed one Agreement.
19. Amendments. This Agreement may be amended only by a written
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agreement executed by both of the parties hereto and by FSEP IV.
20. Recapitalizations or Exchanges Affecting the Company's Capital.
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The provisions of this Agreement shall apply to any and all stock or other
securities of the Company or any successor or assign of the Company, 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
Agreement.
21. Disclosure. Except in connection with Optionee's exercise of
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rights under Section 9(e), the Company shall have no duty or obligation to
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affirmatively disclose to Optionee, and Optionee shall have no right to be
advised of, any material information regarding the Company or any of its
Subsidiaries at any time prior to, upon or in connection with the Company's
repurchase of the Shares under this Agreement at the cessation or termination of
Optionee's employment with the Company and/or any of its Subsidiaries. The
Company shall have no obligation to provide confidential information to the
Optionee in connection with Section 9(e) unless the Purchaser shall execute a
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confidentiality agreement with respect to such information.
22. Successors and Assigns. The Company may assign with absolute
----------------------
discretion any or all of its rights and/or obligations and/or delegate any of
its duties under this Agreement to any of its affiliates, successors and/or
assigns and this Agreement shall inure to the benefit of, and be binding upon,
such respective affiliates, successors and/or assigns of the Company in the same
manner and to the same extent as if such affiliates, successors and/or assigns
were original parties hereto. Without limiting the foregoing, the Company may
assign the Repurchase Option and/or the right of first refusal provided for in
Section 9 and Section 7(b) of this Agreement, respectively, to any of its
- --------- ------------
affiliates, successors and/or assigns. FSEP IV may assign its rights under
Section 7(c) to any FS Permitted Transferee or to a purchaser of shares of
- ------------
Common Stock
12.
then owned by FSEP IV. For purposes of this Agreement, the term "Shares" shall
include shares of capital stock or other securities of the Company or any
successor or assign of the Company, which are issued in respect of, in exchange
for or in substitution of the Shares by reason of any split, reverse split,
recapitalization, reclassification, combination, merger, exchange or
consolidation. Unless specifically provided herein to the contrary, Optionee may
not assign any or all of its rights and/or obligations and/or delegate any or
all its duties under this Agreement without the prior written consent of the
Company and FSEP IV. Upon an assignment of any or all of Optionee's rights
and/or obligations and/or a delegation of any or all of its duties under this
Agreement in accordance with the terms of this Agreement, this Agreement shall
inure to the benefit of, and be binding upon, Optionee'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.
IN WITNESS WHEREOF, the Company and Optionee have executed this
Agreement as of the date first above written.
THE COMPANY:
Advance Holding Corporation,
a Virginia corporation
-----------------------------
J. O'Neil Leftwich
Chief Financial Officer
OPTIONEE:
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[ ]
13.