EXHIBIT 10.25
CONSULTING AND NON-COMPETITION AGREEMENT
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THIS CONSULTING AND NON-COMPETITION AGREEMENT (the "Agreement") is made and
entered into as of the 15th day of April, 1998 by and among Advance Holding
Corporation, a Virginia corporation (the "Corporation"), Advance Stores Company,
Incorporated, a Virginia corporation ("ASCI") and Nicholas F. Taubman
("Consultant").
W I T N E S S E T H:
WHEREAS, the Corporation, AHC Corporation, a Virginia corporation
("Investor"), FS Equity Partners III, L.P., a Delaware limited Partnership, FS
Equity Partners IV, L.P. (collectively, "FS Equity Partners"), and FS Equity
International, L.P., a Delaware limited partnership (collectively with FS Equity
Partners, "Guarantor"), have entered into an Agreement and Plan of Merger, dated
as of March 4, 1998 (the "Merger Agreement"), pursuant to which Investor has,
effective as of the time of execution and delivery of this Agreement, merged
with and into the Corporation with the Corporation as the surviving corporation
in the merger (the "Merger"); and
WHEREAS, pursuant to the Merger Agreement, (a) Consultant and the Arthur
Taubman Trust dated July 13, 1964 (the "1964 Trust") became the owners of a
total of 1,750,000 shares of common stock of the Corporation as of the effective
time of the Merger (the "Effective Time") and (b) Consultant and the 1964 Trust
have been granted at the Effective Time options to purchase in the aggregate
500,000 shares of common stock of the Corporation; and
WHEREAS, ASCI, a wholly-owned subsidiary of the Corporation, is engaged in
the highly competitive business of retail marketing and sale of automotive
parts, accessories and services, with stores in 12 states as of the date hereof;
and
WHEREAS, Consultant is recognized as a leading company owner and executive
with significant expertise in the retail automotive parts and accessories
industry. Consultant's industry experience and knowledge is greatly valued by
the Corporation and would be extremely valuable to competitors of ASCI.
Accordingly, Guarantor is unwilling to cause Investor to consummate the Merger
unless Consultant enters into this Agreement, which is a material inducement to
Guarantor to cause Investor to merge with and into the Corporation; and
WHEREAS, pursuant to the Merger Agreement, it is a condition to the
Corporation's and Investor's respective obligations
to consummate the Merger that Consultant and the Corporation enter into this
Agreement as of the Effective Time; and
WHEREAS, each of Consultant and the Corporation are sophisticated parties
experienced in business transactions of this type, and fully understand (a) the
ramifications of the non-competition, non-solicitation and confidentiality
provisions of this Agreement and (b) that the laws of each state with respect to
the enforceability of such provisions vary. The parties are specifically
selecting the internal laws of the Commonwealth of Virginia to govern this
Agreement in order that it be enforceable against all of them; and
WHEREAS, to provide Guarantor with the full value of its investment in the
Corporation through the Merger, particularly the goodwill of the Corporation
represented thereby, in consideration of the Corporation's entering into a
consulting relationship with Consultant with a three-year term, and as a
material inducement to the Corporation to enter into this Agreement and to
consummate the transactions contemplated hereby, the Merger Agreement requires
that the Consultant execute and deliver this consulting and noncompetition
agreement with the Corporation immediately effective upon the effective date of
the Merger and that the obligation of Investor to consummate the Merger is
conditioned upon the Consultant entering into this Agreement; and
WHEREAS, in consideration for the payments to be made to Consultant
pursuant hereto and the covenants of Consultant hereunder, each of the
Corporation and Consultant desires to enter into this Agreement;
NOW, THEREFORE, in consideration of the mutual terms and conditions set
forth below, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Consulting Services and Term.
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(a) Term. Consultant shall make himself available to render
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consulting services, on the terms and conditions set forth in this Agreement,
for the period beginning at the Effective Time and ending on the third
anniversary thereof (the "Term").
(b) Nature and Time of Rendering Services. During the Term,
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Consultant shall render such services as may be requested from time to time by
the Board of Directors of the Corporation (the "Board") and/or the Chief
Executive Officer of the Corporation, subject to the following provisions of
this
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Section 1(b). Consultant's services shall be performed at such time and
locations as shall be mutually convenient to Consultant and the Corporation;
provided, however, that in no event shall Consultant be required to render
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consulting services hereunder (i) for more than twenty (20) hours in any one
week during the period from the Effective Time to the six-month anniversary
thereof, (ii) for more than ten (10) hours in any one week during the period
from the day following the six-month anniversary of the Effective Time to the
one-year anniversary thereof, (iii) for more than ten (10) hours in any month
during the period from the day following the one-year anniversary of the
Effective Time to the two-year anniversary thereof or (iv) for more than five
(5) hours in any month during the period from the day following the two-year
anniversary of the Effective Time through the remainder of the Term; and
provided, further, that Consultant shall be excused from rendering consulting
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services hereunder during reasonable vacation periods. For purposes of
determining the number of hours of service rendered during the periods covered
by clauses (iii) and (iv) above, Consultant shall be deemed to have rendered the
greater of (x) five hours and (y) the actual number of hours of service
rendered, on any day during which he is required to render consulting services
hereunder.
(c) Compensation. The Corporation or ASCI shall pay Consultant an
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annual consulting and noncompetition fee equal to $300,000 payable in equal
monthly installments. The annual fee may, at the option of the Board, be
subject to annual increases upon review by the Board. Any such review will be
made after completion of the Corporation's fiscal year, and shall be at the sole
discretion of the Board.
(d) Expense Reimbursement. Consultant shall be reimbursed in
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accordance with the generally applicable policies of the Corporation as adopted
by the Board from time to time for his reasonable travel, entertainment,
business, meeting and similar expenditures, incurred for the benefit of the
Corporation and subject to approval of the Chief Executive Officer of the
Corporation or the Board. As an additional condition to the reimbursement of
such expenses by the Corporation to Consultant, Consultant shall provide the
Corporation with copies of all available invoices and receipts, and otherwise
account to the Corporation in sufficient detail and with adequate documentation
to allow the Corporation to confirm the business nature of the expenses and
claim an income tax deduction for such paid items, if such items are deductible.
(e) Bonus Program and Other Benefits. Consultant shall be eligible to
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participate in a manner commensurate with
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the senior management executives of the Corporation in all benefits or other
programs available, to the extent such exist or are sponsored by the
Corporation. Without limiting the generality of the foregoing, Consultant shall
participate in an incentive bonus program which shall provide for a payout to
Consultant of a minimum of $300,000 annually upon the achievement of targeted
annual earnings goals for the Corporation determined by the Board and applicable
to the senior management executives of the Corporation no later than the first
quarter of each fiscal year.
(f) COBRA Benefits. Consultant shall have the option to convert and
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continue his health insurance on or after the Effective Time as may be required
or authorized by law under the Consolidated Omnibus Budget Reconciliation Act of
1985, and shall be entitled after the Effective Time to participate in all
health, accident, disability or other insurance policies and programs provided
to retirees of the Corporation generally for which he is eligible. Consultant
acknowledges and agrees that, except as set forth in this Agreement, no other
health, accident, disability or other insurance policies (other than directors'
and officers' insurance as provided in the Indemnity Agreement between the
Corporation and Consultant) will be provided for him by the Corporation after
the Effective Time.
(g) Taxes. Consultant agrees to accept liability, to the extent
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Consultant is liable under the law, for the payment of all federal and state
taxes or contributions for unemployment insurance or old age pensions or
annuities or social security payments which in each case are measured by
payments to Consultant for the performance of his obligations under this
Agreement. Consultant further agrees to comply with all valid administrative
regulations applicable to Consultant respecting liability for such taxes and
contributions. Consultant and the Corporation each agree that (i) the services
provided by Consultant pursuant to this Section 1 are services provided by an
independent contractor, (ii) the consideration described in this Section 1 is
the entire consideration for the services to be rendered by Consultant pursuant
to this Section 1 and for Consultant's noncompetition covenants pursuant to
Section 2 and (iii) except as otherwise required by a "determination" within the
meaning of Section 1313(a) of the Internal Revenue Code of 1986, as amended,
each of Consultant and the Corporation will take no action inconsistent with the
treatments described in clauses (i) and (ii).
2. Non-Competition.
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(a) General. During the Term, Consultant shall not directly or
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indirectly carry on or participate in any business
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in competition with the Business (whether conducted by the Corporation or ASCI
or any subsidiary or controlled Affiliate of the Corporation or ASCI, all of
whom collectively are sometimes called the "Protected Entities"). The "Business"
as used in this Section 2 means the sale of automotive parts and accessories at
retail or wholesale or by catalogue and the rendering of services relating
thereto. In furtherance and not in limitation of the foregoing covenant,
Consultant shall not, subject to the last proviso of Section 2(d), carry on or
participate in the business of selling automotive parts or accessories or
rendering services relating thereto including, without limitation, carrying on
or participating in the business of any chain of retail automotive parts and
accessories stores, any chain of automotive service facilities, any wholesale or
catalog operation or retail chain that is engaged as a significant line of
business in the distribution or sale of automotive parts or accessories or
rendering services relating thereto. For purposes of this Section 2, a
significant line of business is one that constitutes 10% or more of consolidated
revenues.
(b) Agreement Not to Compete Nationally. Consultant acknowledges that
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the Corporation intends to extend ASCI's business operations throughout the
United States of America. Therefore, during the Term, Consultant agrees that he
shall not directly or indirectly carry on or participate in the Business
anywhere within the United States of America.
(c) Agreement Not to Compete Where the Corporation Does Business.
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Independent of the preceding provision, Consultant agrees that, during the Term,
Consultant shall not directly or indirectly carry on or participate in the
Business (in competition with the Corporation) within any United States county
or United States city in which the Corporation, during the Term, maintains a
retail store, distribution center or other facility.
(d) Prohibited Activities. The term "directly or indirectly carry on
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or participate in any business in competition with the Business" shall include
Consultant, directly or indirectly, doing any of the following listed acts
within the geographic areas specified in Sections 2(b) and 2(c):
(i) Whether or not for compensation, directly or indirectly
engaging in the Business, or any part thereof, or assisting any other
Person (defined below) in such Person's conduct of the Business in the
Covenant Area, whether as a director, officer, employee, consultant,
adviser, independent contractor or otherwise; or
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(ii) Holding legal or beneficial interest in any Person
that is engaged in the Business, whether such interest is as an owner,
investor, partner or joint venturer or otherwise; provided, however,
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that Consultant may acquire and own up to five percent (5%) of the
outstanding securities of any class of securities of any corporation
which is a publicly traded reporting corporation under the Securities
Exchange Act of 1934, as amended (together with the rules and
regulations promulgated thereunder, the "Exchange Act"); or
(iii) As agent or principal, carrying on or engaging in any
activities or negotiations with respect to the acquisition or the
disposition of any business engaged in the Business; or
(iv) Engaging in giving advice to any other Person, firm or
association engaging in the Business; or
(v) Lending or allowing his name or reputation to be used
in any such Business; or
(vi) On behalf of a competitor, soliciting, diverting or
attempting to divert from the Protected Entities any business
constituting, or any customer of, or any supplier to, any part of the
Business then conducted by the Protected Entities; or
(vii) Using his skill, knowledge or experience in the
Business for the benefit of any Person;
provided, however, that nothing herein shall prevent Consultant from (i) being
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or becoming a passive investor in any LBO or similar fund or any privately owned
Person so long as he does not hold or assume a management position therein, (ii)
collecting, trading, investing in or engaging in any other activity relating to
the collection of, antique or otherwise collectible automobiles or automotive
parts, (iii) making any non-directed blind investment, (iv) selling, leasing or
exchanging any real estate or pursuing the remedies of a lessor with respect to
any such real estate, other than sales, leases or exchanges to a competitor of
the Corporation engaged in the Business, (v) rendering consulting services
hereunder or taking any action in his capacity as a director of the Corporation,
or (vi) serving in any otherwise proscribed capacity or taking any otherwise
proscribed action with respect to a Person where the Business of such Person
does not constitute and does not propose to constitute a significant line of
business.
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(e) Non-Solicitation. Independent of the foregoing provisions,
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Consultant shall not, during the Term, induce or attempt to induce any Person
(i) engaged or employed currently or within the prior 12 months (whether part-
time or full-time) by the Corporation or ASCI or their subsidiaries (an
"Employee"), whether as an officer, employee, consultant, agent, adviser or
independent contractor, to leave the employ of or engagement with the
Corporation, ASCI or their controlled Affiliates, as the case may be, or to
cease providing the services to or on behalf of the Corporation or ASCI or their
controlled Affiliates, as the case may be, then provided by such Person;
provided, that the prohibitions contained in this clause (i) shall not apply
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with respect to any Employee whose engagement or employment is terminated by the
Corporation, ASCI or any of their controlled Affiliates or by the Employee
because of a significant reduction in his or her compensation, benefits,
responsibilities or employment level or because of a significant relocation of
his or her place of work; and provided further, that, subject to the foregoing
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proviso, Consultant agrees that, during the Term, he will not in any manner seek
to engage or employ (whether or not for compensation) any of the Corporation's
officers who will be receiving a bonus (as described in the Merger Agreement),
or other persons holding substantially similar ranking in the Corporation, as an
officer, employee, consultant, agent, adviser or independent contractor for any
Person other than the Corporation; or (ii) that is then or has been within the
prior 12 months a customer or supplier to the Protected Entities with respect to
the Business to do business with any other Person or to interfere, in any way,
directly or indirectly, with the business relationship between the Corporation
or ASCI or their Affiliates and any such customer or supplier (including selling
or offering to sell any automotive parts or accessories to any Person who is a
customer of the Corporation); provided, that the prohibitions contained in this
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clause (ii) shall not apply to the extent any such inducement to do business is
with respect to any business other than the Business.
(f) Other Definitions. For the purpose of this Agreement:
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(i) "Affiliate" shall mean an affiliate as such term is
defined in Rule 12b-2 under the Exchange Act; and
(ii) "Person" means any corporation, partnership, joint
venture, trust, sole proprietorship, limited liability company,
unincorporated business association, natural person and any other
entity that may be treated as a person under applicable law.
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(g) Scope and Reasonableness. Consultant has carefully reviewed the
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restrictive covenants contained in this Agreement and considered all of its
terms, and agrees that its scope, duration and terms are reasonable. Consultant
represents and warrants that this Agreement constitutes the legal, valid and
binding obligation of Consultant. The parties agree that it is not their
intention to violate any public policy or statutory or common law. The parties
intend that the provisions of this Agreement be enforced to the fullest extent
permissible under applicable laws and public policies. The parties intend that
the non-competition covenants contained in this Section 2 be construed as a
series of separate covenants by Consultant, one covenant for each area, or
portion thereof, included in the geographic areas specified in Sections 2(b) and
2(c), and for each year, or portion thereof, included in the Term. Accordingly,
to the extent that the covenants hereunder shall be adjudicated to be invalid or
unenforceable with respect to any one such area, this Agreement shall be deemed
amended to delete therefrom or reform the portion thus adjudicated to be invalid
or unenforceable, such deletion or reformation to apply only with respect to the
operation of the particular section or provision of this Agreement with respect
to the particular area for which such adjudication is made.
3. Trade Secrets; Confidential Information.
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(a) General. Consultant recognizes and acknowledges that Consultant
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will have access to certain highly sensitive, special, unique information of the
Corporation that is confidential or proprietary. Consultant recognizes and
acknowledges that the Confidential Information (as defined herein) which he will
acquire in the course of his engagement is utilized by the Corporation in all
geographic areas in which the Corporation does business. Further, the
Confidential Information will also be utilized in all geographic areas into
which the Corporation expands its business. Thus, Consultant acknowledges that
he will be a formidable competitor in all areas where the Corporation conducts
business. Consultant also acknowledges that the restrictive covenants in this
Agreement serve to protect the Corporation's investment in the Confidential
Information. Consultant hereby covenants and agrees during the term of this
Agreement and for two years thereafter not to disclose any Confidential
Information (as hereinafter defined) or trade secrets except for the benefit of
the Corporation and to authorized representatives of the Corporation or except
as required by any governmental or judicial authority; provided, however, that
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the foregoing restrictions shall not apply to items that, through no fault of
Consultant's, have entered the public domain.
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(b) Confidential Information. For purposes of this Agreement,
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"Confidential Information" means any data or information with respect to the
business conducted by the Corporation, that is material to the Corporation and
not generally known by the public. To the extent consistent with the foregoing
definition, Confidential Information includes without limitation: (A) reports,
pricing, sales manuals and training manuals, selling and pricing procedures, and
financing methods of the Corporation, together with any techniques utilized by
the Corporation in designing, developing, manufacturing, testing or marketing
its products, designing stores, locating stores, product mix and supplier
information or in performing services for clients, customers and accounts of the
Corporation; and (B) the business plans and financial statements, reports and
projections of the Corporation.
(c) Ownership Return. Consultant acknowledges that all trade secrets
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and Confidential Information are and shall remain the sole, exclusive and
valuable property of the Corporation and that Consultant has and shall acquire
no right, title or interest therein. Any and all printed, typed, written or
other material which Consultant may have or obtain with respect to trade secrets
or Confidential Information (including without limitation all copyrights
therein) shall be and remain the exclusive property of the Corporation, and all
material (including any copies) with respect to trade secrets or Confidential
Information which is in Consultant's possession shall, upon request of the
Corporation, be promptly delivered by Consultant to the Corporation.
(d) Assignment. Consultant hereby assigns to the Corporation all
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right, title and interest in and to any inventions, original works or
authorship, developments, improvements or trade secrets relating specifically to
the Business which Consultant solely or jointly with an employee
of the Corporation, as part of Consultant's engagement hereunder, has conceived
or reduced to practice, or will conceive or reduce to practice, or cause to be
conceived or reduced to practice, during the Covenant Period. All original
works of authorship which are made by Consultant (solely or jointly with
employees of the Corporation) as part of Consultant's engagement hereunder and
relating specifically to the Business and which are protectable by copyright
shall constitute "works made for hire," as that term is defined in the United
States Copyright Act.
(e) Validity of Covenants. Consultant agrees that the restrictive
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covenants contained in this Agreement are reasonably necessary to protect the
legitimate business and other interests of the Corporation, and reasonable with
respect to
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time and territory, and do not interfere with the interests of the public.
4. Specific Performance. Consultant acknowledges that it would be
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impossible to determine the amount of damages that would result from any breach
of any of the provisions of this Agreement and that the remedy at law for any
breach, or threatened breach, of any of the provisions of this Agreement would
likely be inadequate and, accordingly, agrees that the Corporation and its
Affiliates shall, in addition to any other rights or remedies which they may
have, be entitled to seek such equitable and injunctive relief as may be
available from any court of competent jurisdiction to restrain Consultant from
violating any of the provisions of this Agreement. In connection with any
action or proceeding for injunctive relief, Consultant hereby waives the claim
or defense that a remedy at law alone is adequate and agrees, to the maximum
extent permitted by law, to have each provision of this Agreement specifically
enforced against him, without the necessity of posting bond or other security
against him and consents to the entry of injunctive relief against him enjoining
or restraining any breach or threatened breach of this Agreement.
5. Independent Contractor Relationship. This Agreement establishes
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between the Consultant and the Corporation an independent contractor
relationship and all the terms and conditions of this Agreement shall be
interpreted in light of that relationship. There is no intention to create, by
way of this Agreement, an employer-employee relationship with Consultant.
Consultant hereby covenants that he will not take any action in his capacity as
Chairman of the Board of the Corporation that is beyond the authority granted to
him by the Board.
6. Indemnity Agreement. The Corporation and Consultant are
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simultaneously herewith entering into an indemnity agreement in the form
attached hereto as Exhibit A indemnifying Consultant under the terms and
conditions set forth therein for acts taken or omitted to be taken by him while
an officer or director of the Corporation at or after the Effective Time.
7. Governing Law; Consent to Jurisdiction. This Agreement shall be
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subject to and governed by the laws of the Commonwealth of Virginia. Each of
the parties hereto hereby irrevocably and unconditionally consents to submit to
the exclusive jurisdiction of the courts of the Commonwealth of Virginia and of
the United States of America, in each case located in the City of Roanoke or in
the County of Roanoke, for any action, proceeding or investigation in any court
or before any governmental authority ("Litigation") arising out of or relating
to this Agreement and the transactions contemplated hereby
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and agrees that any such Litigation shall be brought in such courts. Each party
further agrees that service of any process, summons, notice or document by
United States mail to his or its respective address set forth in this Agreement
shall be effective service of process for any Litigation brought against him or
it in any such court. Each of the parties hereto hereby irrevocably and
unconditionally waives any objection to the laying of venue of any Litigation
arising out of this Agreement or the transactions contemplated hereby in the
courts of the Commonwealth of Virginia or the United States of America, in each
case located in the City of Roanoke or the County of Roanoke, and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such Litigation brought in any such court has been brought
in an inconvenient forum. In the event of a legal or arbitral dispute, claim or
controversy arising out of this Agreement, the court or arbitrator, as the case
may be, shall award reasonable expenses (including reimbursement of court costs
and attorneys' fees and expenses) to the prevailing party upon application
therefor.
8. Independent Remedies. Nothing herein shall in any way affect
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Consultant's or the Corporation's respective rights, or his or its ability to
pursue any claim or cause of action against the other party or any of its
Affiliates, successors or assigns under, the Stockholders Agreement dated the
date hereof among Consultant, the 1964 Trust, Investor and Guarantor, the Option
Agreement between the Corporation and Consultant dated the date hereof, any
lease between the Corporation or any Affiliate of the Corporation and Consultant
or any of his Affiliates, or any other agreement to which Consultant is a party,
whether such agreement is in effect on the date hereof or shall thereafter
become effective.
9. Termination. (a) The Corporation may terminate this Agreement in the
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event that Consultant (i) fails to materially perform the consulting services
contemplated by Section 1, or materially breaches any other provisions of this
Agreement, including without limitation the non-competition covenants, and such
material nonperformance or material breach continues for 30 days after written
notice thereof by the Corporation to Consultant, by written notice thereof to
Consultant accompanied by the Corporation's payment, if any, of any accrued and
unpaid amounts payable pursuant to Section 1 hereof; (ii) is convicted of or
pleads guilty or nolo contendere to criminal conduct which is demonstrably and
materially injurious to the Corporation, including fraud, embezzlement or other
illegal conduct; or (iii) is convicted of, or enters a pleading of guilty or
nolo contendere to any crime involving moral turpitude or any felony which is
demonstrably and materially injurious to the
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Corporation; provided, that in the event of Consultant's death or disability
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this Agreement shall remain in full force and effect.
(b) Consultant may terminate this Agreement in the event that the
Corporation fails to materially perform its obligations under Section 1, or
materially breaches any other provisions of this Agreement, and such material
nonperformance or material breach continues for 30 days after written notice
thereof by Consultant to the Corporation, by written notice thereof to the
Corporation.
(c) Unless earlier terminated pursuant to Section 9(a) or Section
9(b), this Agreement shall terminate on the third anniversary of the Effective
Time.
10. Miscellaneous.
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(a) Notices. Any and all notices, designations, consents, offers,
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acceptances, or any other communications provided for herein shall be given in
writing by express mail or other similar overnight delivery or by facsimile or
if hand delivered and shall be deemed given on the date actually received, which
shall be addressed as set forth below:
If to the Corporation:
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Advance Holding Corporation
c/o Freeman Spogli & Co. Incorporated
599 Lexington Avenue
New York, NY 10022
Facsimile: (212) 758-7499
Attention: John M. Roth
with a copy to:
Riordan & McKinzie
300 South Grand Avenue,
29th Floor
Los Angeles, CA 90071
Facsimile: (213) 229-8550
Attention: Richard J. Welch
If to Consultant:
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Nicholas F. Taubman
2818 Avenham Avenue
Roanoke, Virginia 24014
Facsimile: (540) 342-5455
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with a copy to:
Flippin, Densmore, Morse, Rutherford & Jessee
300 First Campbell Square
Drawer 1200
Roanoke, Virginia 24006
Facsimile: (540) 510-3050
Attention: Douglas W. Densmore
(b) No Waiver; Amendment. The failure by any party to enforce any of
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its rights hereunder shall not be deemed to be a waiver of such rights, unless
such waiver is in writing and signed by the waiving party, and, in the case of
any corporation, approved by its Board of Directors, or in the case of a
partnership, approved by the Board of Directors of its corporate general
partner. Waiver of any one breach shall not be deemed to be a waiver of any
other breach of the same or any other provision hereof. This Agreement can be
amended only by a written agreement executed by each party hereto.
(c) Definitions; Headings. A term defined in any part of this
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Agreement shall have the defined meaning wherever such term is used herein. The
headings contained in this Agreement are for reference purposes only and shall
not affect in any manner the meaning or interpretation of this Agreement.
(d) No Construction Against Any Party. This Agreement was reviewed by
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legal counsel for Consultant and the Corporation. This Agreement is the product
of informed negotiations among Consultant, the Corporation and Freeman Spogli &
Co. Incorporated and if any part of this Agreement is deemed to be unclear or
ambiguous, it shall be construed as if it were drafted jointly by all parties.
Moreover, Consultant and the Corporation each acknowledge that no party was in a
superior bargaining position regarding the substantive terms of this Agreement.
(e) Invalid Provision. Whenever possible, each provision and term of
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this Agreement shall be interpreted in such a manner as to be effective and
valid under applicable law, but if any provision or term of this Agreement shall
be held to be prohibited by or wholly invalid under such applicable law, then
such provision or term shall be ineffective only to the extent of such provision
or invalidity, without invalidating or affecting in any manner whatsoever the
remainder of such provision or term or the remaining provisions or terms of this
Agreement. The restrictive covenants contained in this Agreement are separate
and independent contractual provisions. The invalidity or unenforceability of
any particular restrictive covenant or any other provision of this Agreement
shall not
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affect the other provisions hereof, and this Agreement shall be construed in all
respects as if such invalid or unenforceable provision were omitted.
(f) Successors. This Agreement shall be binding upon and inure to the
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benefit of the Corporation and Consultant and their respective heirs, legal
representatives, executors, administrators and successors. Neither the
Corporation nor Consultant may assign its obligations hereunder.
(g) Entire Agreement. This Agreement constitutes the entire agreement
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among the parties with respect to the subject matter hereof and supersedes any
and all other agreements, either oral or in writing, among the parties hereto
with respect to the subject matter hereof.
IN WITNESS WHEREOF, this Agreement has been duly executed on the day and
year set forth above.
ADVANCE HOLDING CORPORATION
By: /s/ Garnett E. Smith
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Title: President
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ADVANCE STORES COMPANY, INCORPORATED
By: /s/ Garnett E. Smith
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Title: President
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CONSULTANT
/s/ Nicholas F. Taubman
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Nicholas F. Taubman
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