EXHIBIT 10.17
ADVANCE HOLDING CORPORATION
SENIOR EXECUTIVE STOCK SUBSCRIPTION AGREEMENT
THIS SENIOR EXECUTIVE STOCK SUBSCRIPTION AGREEMENT (this "Agreement")
is made and entered into as of ________, 1998, by and between Advance Holding
Corporation, a Virginia corporation (the "Company"), and ________________
("Purchaser").
R E C I T A L S:
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A. The Company now desires to sell to Purchaser, who is a senior
executive of the Company and/or any directly or indirectly majority or wholly-
owned entities of the Company (individually, a "Subsidiary" and collectively,
the "Subsidiaries"), and Purchaser desires to purchase from the Company, Shares
(as hereinafter defined) of the Company, subject to the terms and conditions set
forth in this Agreement. The date on which such sale and purchase occur shall
be referred to herein as the "Closing Date."
B. In order to induce the Company to sell the Shares to the
Purchaser, Purchaser agrees to hold such shares subject to the restrictions and
interests created by this Agreement.
A G R E E M E N T:
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NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants and conditions contained herein, the parties agree as follows:
1. Sales and Purchase of Shares. The Company hereby agrees to sell
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to Purchaser, subject to the conditions and restrictions contained in this
Agreement, and Purchaser hereby agrees to purchase from the Company,
__________________________ (_______) shares of common stock $0.01 par value per
share (individually, a "Share," and collectively, the "Shares") of the Company,
at a price of $10.00 per Share, for an aggregate purchase price of
__________________________________Dollars ($________) (the "Purchase Price").
The Purchase Price shall be payable by delivery of cash or Purchaser's check in
the amount of _______________________________ Dollars ($_________). Purchaser
shall deliver the cash or check, to the Company prior to the Closing Date, each
dated as of the Closing Date. In connection with the purchase of Shares
hereunder, Purchaser acknowledges that he or she has reviewed the memorandum
regarding Section 83(b) of the Internal Revenue Code of 1986, as amended,
attached hereto as Exhibit C.
2. Restriction on Transfer of the Shares. Except as otherwise
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provided herein, Purchaser 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 4 and
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Section 9 hereof. All Transfers also must comply with Section 6 of the Pledge
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Agreement. Any purported Transfer or 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.
3. Repurchase Option Upon Termination.
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(a) In the event that Purchaser's employment or other
relationship with the Company and all of its Subsidiaries terminates for any
reason (including, without limitation, by reason of Purchaser'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 Purchaser all or any portion of the
Shares acquired by Purchaser under this 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").
(b) The purchase price (the "Repurchase Price") for each Share to
be purchased pursuant to the Repurchase Option shall equal (a) the greater of
Purchase Price 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 Purchase Price and the Fair Market Value (as defined herein) thereof
(subject to adjustment as set forth herein) thereafter. The "Book Value" of a
Share shall equal $10.00 per Share (subject to adjustment as set forth in
Section 3(c)) 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, which determination shall be final and binding. The "Fair
Market Value" of a Share shall be determined as set forth in 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 Purchaser, within the six-month period specified above, of a written
notice specifying (a) 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 Purchaser 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,
2.
payable to Purchaser in the amount equal to the Repurchase Price, calculated as
provided in this Section 3, multiplied by the number of the Shares to be
purchased. If Purchaser 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 Purchaser
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). Notwithstanding the
foregoing in this Section 3(d), in the event any principal, interest, fees,
expenses or other amounts due on or in connection with the Note (the
"Outstanding Amount") are owed to the Company by Purchaser, the Repurchase Price
for the number of the Shares to be repurchased hereunder 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
exercise the Repurchase Option. If the Outstanding Amount exceeds the Repurchase
Price for the number of the Shares to be repurchased, Purchaser shall remain
obligated and liable to the Company for the unpaid balance thereof.
(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 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.
3.
(f) This Repurchase Option shall terminate upon an underwritten
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").
4. Right of First Refusal.
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(a) Sales; Notice. At any time on or after the third
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anniversary of the Closing Date, Purchaser may Transfer for cash (and only for
such form of consideration) any or all of the Shares to any third party subject
to the provisions of Section 4, Section 7(c), Section 9 and Section 12(a)
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hereof, and subject to Section 6 of the Pledge Agreement. Prior to any such
intended Transfer, Purchaser shall first give at least thirty (30) days' advance
written notice (the "Notice") to the Company specifying (i) Purchaser'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 Purchaser proposes to
Transfer (individually, an "Offered Share," and collectively, the "Offered
Shares"); (iv) the price for which Purchaser 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.
(b) 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 Purchaser, specifying a
day, which shall not be more than twenty (20) days after such notice is
delivered, on or before which Purchaser shall surrender (if Purchaser 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 Purchaser, the
Company shall deliver to Purchaser a check, payable to Purchaser or to such
person as Purchaser 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 Purchaser 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 Purchaser 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 Price, without interest, upon surrender of the
certificate or certificates therefor (duly endorsed in blank for Transfer).
Notwithstanding the foregoing, if any Outstanding Amount is owed to the Company
by Purchaser, 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, Purchaser shall be entitled to Transfer the Offered Shares, subject to
Section 9 of this Agreement and Section 6 of the Pledge Agreement, to the
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transferee(s) named in the Notice at the Proposed Purchase Price, or at a higher
price, and on the terms and
4.
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 4. This right of first
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refusal terminates upon an Initial Public Offering.
5. Permitted Transfers. Subject to and upon full compliance with
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Section 6 of the Pledge Agreement, Purchaser may, at any time or times, transfer
any or all of the Shares: (a) inter vivos to Purchaser's spouse or issue, a
trust for their benefit, or pursuant to any will or testamentary trust; or (b)
upon Purchaser'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 in this Section 5, Shares shall not be Transferred
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pursuant to this Section 5 until the Permitted Transferee executes a valid
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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) and the Pledge Agreement, as though the Permitted
Transferee were a party to this Agreement and the Pledge Agreement, bound in
every respect in the same way as Purchaser. Transfers made in accordance with
this Section 5 shall not be subject to the provisions of Section 4 of this
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Agreement.
6. Security for Performance. The Company and Purchaser hereby
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acknowledge (a) that Purchaser has agreed to pledge the Shares to secure the
payment of all obligations existing under the Note whether for principal,
interest, fees, expenses or otherwise and/or to ensure Purchaser's compliance
with the terms and conditions of this Agreement and the Pledge Agreement and (b)
that in connection with such pledge, Purchaser shall enter into the Pledge
Agreement as of the Closing Date requiring that the certificates evidencing the
Shares (the "Certificates") be held by the Company as security for the payment
of all obligations existing under the Note, whether for principal, interest,
fees, expenses or otherwise, and for Purchaser's compliance with the terms and
conditions of this Agreement and the Pledge Agreement. Subject to compliance
with the terms and conditions of this Agreement and of the Pledge Agreement,
Purchaser shall exercise all rights and privileges of the registered holder of
the Shares held by the Company pursuant to the Pledge Agreement and shall be
entitled to receive any dividend or other distribution thereon.
7. Investment Representations. Purchaser represents and warrants to
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the Company as follows:
(a) Purchaser's Own Account. Purchaser is acquiring the Shares
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for Purchaser's own account and not with a view to or for sale in connection
with any distribution of the Shares.
(b) Access to Information. Purchaser (i) is familiar with the
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business of the Company and its Subsidiaries; (ii) has had an opportunity to
discuss with representatives
5.
of the Company and its Subsidiaries the condition of and prospects for the
continued operation and financing of the Company and its Subsidiaries and such
other matters as Purchaser has deemed appropriate in considering whether to
invest in the Shares; and (iii) has been provided access to all available
information about the Company and its Subsidiaries reasonably requested by
Purchaser.
(c) Shares Not Registered. Purchaser understands that the
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Shares have not been registered under the Act or registered or qualified under
the securities laws of any state and that Purchaser may not Transfer the Shares
unless they are subsequently registered under the Act and registered or
qualified under applicable state securities laws, or unless an exemption is
available which permits Transfers without such registration and qualification.
8. Partial Termination. This Agreement shall terminate with respect
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to those Shares which are (a) acquired by the Company pursuant to Section 3(b)
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hereof upon such acquisition; or (b) acquired by the Company pursuant to Section
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4 hereof, upon such acquisition.
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9. Obligation to Sell Securities.
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(a) If FS Equity Partners IV, L.P., a Delaware limited
partnership, ("FSEP IV") finds a third-party buyer for all 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, the
Purchaser shall sell all of Purchaser's Shares for the same per share
consideration (which may be less than the Purchase Price per share paid by
Purchaser), and otherwise pursuant to the terms and conditions applicable to the
FSEP IV for the sale of its shares of its common stock of the Company.
(b) Purchaser hereby consents to any sale, transfer,
reorganization, exchange, merger, combination or other form of transaction
described in Section 9(a) 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. Purchaser 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 that Purchaser may have in connection therewith.
(c) The obligations of Purchaser pursuant to this Section 9
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shall be binding on any transferee (other than a transferee in a Public Market
Sale, as defined below) of any of the Shares and Purchaser and any of his
transferees shall obtain and deliver to FSEP IV a written commitment to be bound
by such provisions from a subsequent transferee prior to any Transfer (other
than Transfers constituting a Public Market Sale). The Purchaser's obligations
pursuant to this Section 9, and the obligations of any such transferee, shall
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survive the partial
6.
termination of this Agreement pursuant to Section 8 hereof. Any transfer
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effected in violation of this provision shall be void. The term "Public Market
Sale" means any sale of Common Stock after the Initial Public Offering which is
made pursuant to Rule 144 promulgated under the Securities Act or which is made
pursuant to a registration statement filed with the declared effective by the
Securities and Exchange Commission.
10. 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 Purchaser 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 10 shall terminate upon an Initial Public Offering.
11. Put Option. Until the third anniversary of the date of this
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Agreement, or, if later, the termination of the Employment and Noncompetition
Agreement dated the date hereof by and between the Purchaser and the Company
(including any renewals thereof), upon the death or disability (as such term is
defined in Section 22(e)(3) of the Code) of Purchaser, Purchaser's designee,
legal representative or legatee, the successor trustee of Purchaser's inter
vivos trust or the person who acquired the right to such Shares by reason of the
death of Purchaser (collectively, the Successor") may elect to cause the Company
to repurchase all or part of the Shares of Purchaser acquired under this
Agreement and under that certain Option Agreement dated as of the date hereof by
Purchaser for cash (the "Put Option"); provided, however, such election must be
made no earlier than 30 days and no later than 180 days after such death or
disability (the "Option Period"); and provided further that such repurchase is
permitted by the Company's debt agreements. If the Company's debt agreements do
not permit such repurchase, the Company's obligations under this Section 11
shall continue until 120 days after the date such repurchase shall be permitted;
provided that such obligations shall terminate in any event on the fourth
anniversary of this Agreement. The Put Option shall be exercised by the
Successor by (a) delivery to the Company within the Option Period a written
notice specifying the number of shares to be repurchased by the Company (the
"Notice"), and (b) surrendering to the Company, or its agent, the certificates,
properly endorsed for transfer, representing the Shares to which the Put Option
is being exercised within fifteen (15) days of delivery of the Notice to the
Company. The Notice Date shall be the day the Company receives the Notice. The
purchase price (the "Option Price") for each Share to be purchased pursuant to
the Put Option shall equal (A) the greater of the Purchase Price or the
applicable exercise price (in the case of Option Shares) (without interest)
7.
and the Book Value (as defined in Section 3 of this Agreement) if the Notice
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Date occurs within the two (2) year period commencing with the effective date
hereof or, alternatively, (B) the greater of the Purchase Price or the
applicable exercise price (in the case of Option Shares) and the Fair Market
Value (as defined in Section 3 of this Agreement) thereof (subject to adjustment
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as set forth herein) thereafter. Within thirty (30) days of the Notice Date, the
Company shall deliver to Purchaser a check in the amount of the Option Price,
calculated as provided in this Section 11, for all Shares to be repurchased by
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the Company, provided, that if the Board of Directors determines in good faith
that it is in the best interests of the Company and its Stockholders to defer
payment, the Company may deliver 25% of such amount in cash and the remainder in
the form of a note due in three equal annual installments, bearing interest at
the prime rate. Nothing in this section shall require the Company to take any
action contrary to laws respecting limits on redemptions of outstanding
securities. The obligations of the Company under this Section 11 shall terminate
upon an Initial Public Offering.
12. Miscellaneous.
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(a) Legends on Certificates. Any and all certificates now or
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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 STOCK PURCHASE 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 THE PRINCIPAL
EXECUTIVE OFFICES OF ADVANCE HOLDING CORPORATION."
Such certificates shall also bear such legends and shall be subject to such
restrictions on transfer as may be necessary to comply with all applicable
federal and state securities laws and regulations.
(b) Further Assurances. Each party hereto agrees to perform any
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further acts and execute and deliver any documents which may be reasonably
necessary to carry out the intent of this Agreement.
(c) 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,
8.
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 Purchaser:
________________
________________
________________
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
(d) 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.
(e) Governing Law. This Agreement shall be governed by and
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construed in accordance with the laws of the Commonwealth of Virginia.
(f) Disputes. In the event of any dispute among the parties
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arising out of this 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.
9.
(g) Entire Agreement. This Agreement constitutes the entire
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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.
(h) Recapitalizations or Exchanges Affecting the Company's
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Capital. The provisions of this Agreement shall apply to any and all stock or
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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 and the Pledge Agreement.
(i) No Rights as an Employee. Nothing in this Agreement shall
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affect in any manner whatsoever the rights of the Company or any of its
Subsidiaries to terminate Purchaser's employment for any reason, with or without
cause, subject to the terms and conditions of any employment agreement to which
Purchaser may be a party.
(j) Disclosure. Except in connection with Purchaser's exercise
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of rights under Section 3(e), the Company shall have no duty or obligation to
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affirmatively disclose to Purchaser, and Purchaser 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
Purchaser's employment with the Company and/or any of its Subsidiaries. The
Company shall have no obligation to provide confidential information to the
Purchaser in connection with Section 3(e) unless the Purchaser shall execute a
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confidentiality agreement with respect to such information.
(k) 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 3 and Section 4 of this Agreement, respectively, to any of its
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affiliates, successors and/or assigns. FSEP IV may assign its rights under
Section 9 to any FS Permitted Transferee or to a purchaser of shares of Common
Stock 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, Purchaser
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
10.
of any or all of Purchaser'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, Purchaser'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.
(l) Headings. Introductory headings at the beginning of each
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section and subsection of this 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 Agreement.
(m) Counterparts. This Agreement may be executed in two
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counterparts, each of which shall be deemed an original and both of which, when
taken together, shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
THE COMPANY:
Advance Holding Corporation,
a Virginia corporation
By:
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J. O'Neil Leftwich
Chief Financial Officer
PURCHASER:
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11.