AMENDMENT NO. 1 TO STOCKHOLDER RIGHTS AGREEMENT
THIS AMENDMENT (this "Amendment") is made and entered into on and effective
as of the 7th day of August, 2001 by and between DISCOUNT AUTO PARTS, INC., a
Florida corporation (the "Company" or "DAP"), and MELLON INVESTOR SERVICES LLC,
formerly known as CHASEMELLON SHAREHOLDER SERVICES, L.L.C., a New Jersey limited
liability company (the "Rights Agent") with respect to that certain STOCKHOLDER
RIGHTS AGREEMENT dated the 21st day of November, 2000 by and between DAP and the
Rights Agent (the "Rights Agreement").
WHEREAS, DAP, Advance Auto Parts, Inc., a Delaware corporation ("New
Holding") and AAP Acquisition Corporation, a Florida corporation and a direct,
wholly-owned subsidiary of New Holding ("Merger Sub"), among others, intend to
enter into an Agreement and Plan of Merger (the "Merger Agreement") pursuant to
which Merger Sub will merge with and into DAP (the "Merger"); and
WHEREAS, simultaneously with the execution and delivery of the Merger
Agreement, Xxxxxxxx Industries Limited Partnership (the "Principal Stockholder),
Xxxxx X. Xxxxxxxx, and the Xxxxx X. Xxxxxxxx Revocable Trust intend to enter
into (i) an agreement (the "Xxxxxxxx Voting Agreement") pursuant to which the
Principal Stockholder will agree to, among other things, vote in favor of the
Merger and to grant a proxy to Advance Stores Company, Incorporated, a Virginia
corporation ("ASCI"), (ii) an agreement (the "Stock Option Agreement") pursuant
to which the Principal Stockholder will grant to ASCI an option to purchase
shares of the Common Stock of DAP owned by it;
WHEREAS, simultaneously with the execution and delivery of the Merger
Agreement, Advance Holding Corporation, a Virginia corporation, ("Holding") and
certain of the stockholders of Holding intend to enter into an agreement (the
"Advance Voting Agreement") pursuant to which the parties to the Advance Voting
Agreement will agree, among other things, to vote in favor of the adoption and
approval of the Merger Agreement and the transactions contemplated thereby;
WHEREAS, pursuant to and in compliance with the Rights Agreement, DAP and
the Rights Agent desire to amend the Rights Agreement as set forth in this
Amendment to reflect and permit the foregoing.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
set forth herein and in the Rights Agreement, the parties hereto hereby agree as
follows:
1. Section 1(a) of the Rights Agreement is hereby amended to add the
following at the end of the existing definition of "Acquiring Person"
thereunder:
Anything in this Agreement to the contrary notwithstanding, "Acquiring
Person" shall not include either Advance Holding
Amendment to Stockholder Rights Agreement Page 2
Corporation, a Virginia corporation ("Holding"), Advance Auto Parts, Inc., a
Delaware corporation ("New Holding"), AAP Acquisition Corporation, a Florida
corporation and a direct, wholly-owned subsidiary of New Holding ("Merger
Sub"), Advance Stores Company, Incorporated, a Virginia corporation and a
direct, wholly-owned subsidiary of Holding ("ASCI"), any party to the
Advance Voting Agreement or the Xxxxxxxx Voting Agreement, or any Affiliate
or Associate of any of them, by virtue of the approval, execution, delivery,
or performance of the Operative Documents or the consummation of the
transactions contemplated thereby, including without limitation the purchase
of Common Stock through the exercise of any option granted pursuant to the
Option Agreement or the acquisition or exercise of voting power pursuant to
the Xxxxxxxx Voting Agreement or the Advance Voting Agreement.
2. Section 1 of the Rights Agreement is hereby amended to add the following new
Sections 1(y), 1(z), 1(aa), 1(bb), and 1(cc) immediately after Section 1(x)
(y) "Advance Voting Agreement" shall mean that certain Voting Agreement
dated as of August 7, 2001 by and among Holding and certain of the
stockholders of Holding.
(z) "Xxxxxxxx Voting Agreement" shall mean that certain Irrevocable Proxy
and Voting Agreement dated as of August 7, 2001 by and among Xxxxxxxx
Industries Limited Partnership, Xxxxx Xxxxxxxx, the Xxxxx Xxxxxxxx
Revocable Trust, Holding, and ASCI.
(aa) "Merger Agreement" shall mean that certain Agreement and Plan of
Merger, dated as of August 7, 2001 by and among the Company, Holding,
New Holding, Merger Sub, and ASCI.
(bb) "Operative Documents" shall mean the Merger Agreement, the Option
Agreement, the Xxxxxxxx Voting Agreement, and the Advance Voting
Agreement, including any document, instrument or agreement executed,
delivered or entered into pursuant to or contemplated by the Merger
Agreement, the Option Agreement, the Xxxxxxxx Voting Agreement, or the
Advance Voting Agreement.
Amendment to Stockholder Rights Agreement Page 3
(cc) "Option Agreement" shall mean that certain Stock Option Agreement dated
as of August 7, 2001 by and among Xxxxxxxx Industries Limited
Partnership, Xxxxx X. Xxxxxxxx, the Xxxxx Xxxxxxxx Revocable Trust,
Holding, and ASCI.
3. Section 3(c) of the Rights Agreement is hereby amended by substituting in
place of the first sentence and inset legend therein the following:
Certificates issued for Common Stock (including, without limitation, upon
transfer of outstanding Common Stock, disposition of Common Stock out of
treasury stock or issuance or reissuance of Common Stock out of authorized
but unissued shares) after the Record Date but prior to the earliest of the
Distribution Date, the Redemption Date or the Final Expiration Date shall
have impressed on, printed on, written on or otherwise affixed to them a
legend substantially as follows:
This certificate also evidences and entitles the holder hereof to certain
rights as set forth in a Stockholder Rights Agreement between the
Corporation and Mellon Investor Services LLC, formerly known as
ChaseMellon Shareholder Services, L.L.C., dated as of November 21, 2000
and as amended as of August 7, 2001, as the same may be further amended
from time to time (the "Rights Agreement"), the terms of which are hereby
incorporated herein by reference and a copy of which is on file at the
principal executive offices of the Corporation. Under certain
circumstances, as set forth in the Rights Agreement, such Rights will be
evidenced by separate certificates and will no longer be evidenced by
this certificate. The Corporation will mail to the holder of this
certificate a copy of the Rights Agreement without charge after receipt
of a written request therefor. Under certain circumstances, as set forth
in the Rights Agreement, Rights owned by or transferred to any Person who
becomes an Acquiring Person (as defined in the Rights Agreement) and
certain transferees thereof will become null and void and will no longer
be transferable.
4. Section 7(a) of the Rights Agreement is hereby amended and restated as
follows:
(a) Except as otherwise provided herein, the Rights shall become exercisable
on the Distribution Date, and thereafter the registered
Amendment to Stockholder Rights Agreement Page 4
holder of any Right Certificate may, subject to Section 11(a)(ii) hereof
and except as otherwise provided herein, exercise the Rights evidenced
thereby in whole or in part upon surrender of the Right Certificate,
with the form of election to purchase on the reverse side thereof duly
and properly executed, to the Rights Agent at the office or agency of
the Rights Agent designated for such purpose, together with payment of
the Purchase Price for each one one-hundredth of a share of Preferred
Stock as to which the Rights are exercised, at any time which is both
after the Distribution Date and prior to the earliest of (i) the Close
of Business on December 13, 2010 (the "Final Expiration Date"), (ii) the
time at which the Rights are redeemed as provided in Section 23 hereof
(the "Redemption Date"), (iii) the time at which such Rights are
exchanged as provided in Section 24 hereof, or (iv) immediately before
the effective time of the merger of Merger Sub with and into the Company
pursuant to the Merger Agreement.
5. The Rights Agreement is hereby amended to add a new Section 35 which
shall read in its entirety as follows:
Anything in this Agreement to the contrary notwithstanding, neither (A)
the announcement, approval, execution, delivery, or performance of any
of the Operative Documents, (B) the acquisition of Beneficial Ownership
of the Common Stock of the Company (i) as a result of the merger of
Merger Sub with and into the Company pursuant to the Merger Agreement or
(ii) pursuant to any of the Operative Documents nor (C) the consummation
of any transaction contemplated by any of the Operative Documents shall
directly or indirectly, immediately or with the passage of time (i)
cause Holding, New Holding, Merger Sub, ASCI, any party to the Xxxxxxxx
Voting Agreement, any party to the Advance Voting Agreement, or any
Affiliate or Associate of any of them, to be deemed an Acquiring Person,
(ii) give rise to a Distribution Date or a Stock Acquisition Date, or
(iii) result in any Right becoming exercisable.
6. The Form of Right Certificate attached to the Rights Agreement as
Exhibit A is hereby amended by changing the phrase "dated as of November
21, 2000 as the same may be amended from time to time" appearing in the
first paragraph in the body thereof to read "dated as of November 21,
2000, as amended as of August 7, 2001 and as the same may be further
amended from time to time."
Amendment to Stockholder Rights Agreement Page 5
7. Exhibits B and C to the Rights Agreement shall be deemed amended in a
manner consistent with this Amendment.
8. This Amendment shall be deemed to be a contract made under the laws of
the State of Florida and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to
contracts to be made and performed entirely within such State; provided,
however, that all provisions regarding the rights, duties and obligations
of the Rights Agent shall be governed by and construed in accordance with
the laws of the State of New York applicable to contracts made and to be
performed entirely within such state.
9. This Amendment may be executed in any number of counterparts and each of
such counterparts shall for all purposes be deemed to be an original, and
all such counterparts shall together constitute but one and the same
instrument.
10. Except as expressly set forth herein, this Amendment shall not by
implication or otherwise alter, modify, amend, or in any way affect any
of the terms, conditions, obligations, covenants or agreements contained
in the Rights Agreement, all of which are ratified and affirmed in all
respects and shall continue in full force and effect.
11. Capitalized terms used without other definition in this Amendment shall
be used as defined in the Rights Agreement.
12. This Amendment shall be effective as of, and immediately prior to, the
execution and delivery of the Merger Agreement, and all references to the
Rights Agreement shall, from and after such time, be deemed to be
references to the Rights Agreement as amended hereby.
Amendment to Stockholder Rights Agreement Page 6
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and attested, all as of the day and year first above written.
DISCOUNT AUTO PARTS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
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Title: CEO
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MELLON INVESTOR SERVICES LLC
(f/k/a ChaseMellon Shareholder Services,
L.L.C.)
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
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Title: Vice President
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