Exhibit 4.1
ADVANCE AUTO PARTS,
INC.
2004 LONG-TERM INCENTIVE
PLAN
(Amended and Restated as of April
17, 2008)
SECTION
1. PURPOSE. The purposes of the 2004 Long-Term
Incentive Plan (the “Plan”) are to encourage selected
Employees and Directors of Advance Auto Parts, Inc., a Delaware
corporation (“Advance Auto” or the
“Company”), and its Affiliates to acquire a proprietary
and vested interest in the growth, development and financial
success of the Company, to generate an increased incentive to
contribute to the Company’s future success and prosperity,
thus enhancing the value of the Company for the benefit of
stockholders, and to enhance the ability of the Company and its
Affiliates to attract and retain individuals of exceptional
managerial talent upon whom, in large measure, the sustained
progress, growth and profitability of the Company
depends.
The Company has
previously adopted the Advance Auto Parts, Inc. 2001 Executive
Stock Option Plan and the Advance Auto Parts, Inc. 2001 Senior
Executive Stock Option Plan (collectively, the “Predecessor
Plans”), which were established to provide similar
equity-based compensation incentives through the grant of stock
options. Effective upon the adoption of the Plan by stockholders of
the Company, the Predecessor Plans will be merged into this Plan,
thereby making available for the grant of awards under this Plan
any authorized but unused Shares (as herein defined) not already
used for such purpose under the Predecessor Plans. All outstanding
option grants under the Predecessor Plans shall continue in full
force and effect, subject to their original terms, after the
Predecessor Plans are merged into the Plan under the terms and
conditions noted above.
SECTION
2. DEFINITIONS . As used in the Plan, the following
terms shall have the meanings as set forth below:
(a) “Affiliate”
shall mean (i) any Person that directly, or through one or more
intermediaries, controls, or is controlled by, or is under common
control with, the Company or (ii) any entity in which the
Company has a significant equity interest, as determined by the
Committee.
(b) “Award”
shall mean any Option, SAR, Restricted Stock Award, Performance
Share, Performance Unit, Deferred Stock Unit, Dividend Equivalent,
Other Stock Unit Award or any other right, interest or option
relating to Shares or other property granted pursuant to the
provisions of the Plan.
(c) “Award
Agreement” shall mean any written agreement, contract or
other instrument or document evidencing any Award granted by the
Committee hereunder, which may, but need not, be executed or
acknowledged by both the Company and the Participant.
(d) “Board”
shall mean the Board of Directors of the Company.
(e) “Change
in Control” shall mean the happening of any of the following
events:
(i) an
acquisition by any individual, entity or group (within the meaning
of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (an
“Entity”) of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of 25% or more of
either (A) the then outstanding Shares (the “Outstanding
Company Common Stock”) or (B) the combined voting power of
the then outstanding voting securities of the Company entitled to
vote generally in the election of directors (the “Outstanding
Company Voting Securities”); excluding, however, the
following: (1) any acquisition directly from the
Company, other than an acquisition by virtue of the exercise of a
conversion privilege unless the security being so converted was
itself acquired directly from the Company, (2) any acquisition by
the Company, (3) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company or any
corporation controlled by the Company, or (4) any acquisition by
any corporation pursuant to a transaction that complies with
clauses (A), (B) and (C) of Section 2(e)(iii);
(ii) a
change in the composition of the Board on the Plan’s
effective date such that the individuals who, as of the effective
date, constitute the Board (such Board shall be hereinafter
referred to as the “Incumbent Board”) cease for any
reason to constitute at least a majority of the Board; provided,
however, that for purposes of this definition, any individual who
becomes a member of the Board subsequent to the effective date,
whose election, or nomination for election, by the
Company’s
stockholders was approved by a vote of at least a majority of those
individuals who are members of the Board and who were also members
of the Incumbent Board (or deemed to be such pursuant to this
proviso) shall be considered as though such individual were a
member of the Incumbent Board; and provided further, however, that
any such individual whose initial assumption of office occurs as a
result of or in connection with either an actual or threatened
solicitation with respect to the election of directors (as such
terms are used in Rule 14a-12(c) of Regulation 14A promulgated
under the Exchange Act) or other actual or threatened solicitation
of proxies or consents by or on behalf of an Entity other than the
Board shall not be so considered as a member of the Incumbent
Board;
(iii) the
consummation of a merger, reorganization or consolidation or sale
or other disposition of all or substantially all of the assets of
the Company (each, a “Corporate Transaction”),
excluding however, any Corporate Transaction pursuant to which
(A) all or substantially all of the individuals and entities
who are the beneficial owners, respectively, of the Outstanding
Company Common Stock and Outstanding Company Voting Securities
immediately prior to such Corporate Transaction will beneficially
own, directly or indirectly, more than 50% of, respectively, the
outstanding shares of common stock, and the combined voting power
of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the
corporation resulting from such Corporate Transaction (including,
without limitation, a corporation or other Person that as a result
of such transaction owns the Company or all or substantially all of
the Company’s assets either directly or through one or more
subsidiaries (a “Parent Company”)) in substantially the
same proportions as their ownership, immediately prior to such
Corporate Transaction, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be,
(B) no Entity (other than the Company, any employee benefit
plan (or related trust) of the Company, such corporation resulting
from such Corporate Transaction or, if reference was made to equity
ownership of any Parent Company for purposes of determining whether
clause (A) above is satisfied in connection with the
applicable Corporate Transaction, such Parent Company) will
beneficially own, directly or indirectly, 25% or more of,
respectively, the outstanding shares of common stock of the
corporation resulting from such Corporate Transaction or the
combined voting power of the outstanding voting securities of such
corporation entitled to vote generally in the election of directors
unless such ownership resulted solely from ownership of securities
of the Company prior to the Corporate Transaction, and
(C) individuals who were members of the Incumbent Board will
immediately after the consummation of the Corporate Transaction
constitute at least a majority of the members of the board of
directors of the corporation resulting from such Corporate
Transaction (or, if reference was made to equity ownership of any
Parent Company for purposes of determining whether clause (A)
above is satisfied in connection with the applicable Corporate
Transaction, of the Parent Company); or
(iv) the
approval by the stockholders of the Company of the complete
liquidation or dissolution of the Company.
(f) “Change
in Control Price” means, with respect to a Share, the higher
of (A) the highest reported sales price, regular way, of such
Share in any transaction reported on the New York Stock Exchange
Composite Tape or other national exchange on which such Shares are
listed or on the NASDAQ National Market during the 60-day period
prior to and including the date of a Change in Control or
(B) if the Change in Control is the result of a tender or
exchange offer or a Corporate Transaction, the highest price per
such Share paid in such tender or exchange offer or Corporate
Transaction. To the extent the consideration paid in any
such transaction described above consists all or in part of
securities or other noncash consideration, the value of such
securities or other non-cash consideration shall be determined in
the sole discretion of the Board.
(g) “Code”
shall mean the Internal Revenue Code of 1986, as amended from time
to time, and any successor thereto.
(h) “Committee”
shall mean the Compensation Committee of the Board, or any
successor to such committee, composed of no fewer than two
directors, each of whom is a non-employee Director within the
meaning of Rule 16b-3(b)(3) of the Exchange Act and an
“outside director” within the meaning of
Section 162(m) of the Code, or any successor provision
thereto.
(i) “Company”
shall mean Advance Auto Parts, Inc. a Delaware
corporation.
(j) “Covered
Employee” shall mean a “covered employee” within
the meaning of Section 162(m)(3) of the Code, or any successor
provision thereto.
(k) “Deferred
Stock Unit” or “DSU” shall mean a bookkeeping
entry that represents the right to receive one Share at a future
date. DSUs may be granted outright by the Committee or
may be granted in exchange for cash compensation deferred by a
Participant. To the extent the Company pays a dividend, DSUs will
include the right to receive Dividend Equivalents,
which are
credited in the form of additional DSUs.
(l) “Director”
shall mean a member of the Board who is not an Employee.
(m) “Dividend
Equivalent” shall mean an amount equal to the cash paid by
the Company upon one Share, either as a freestanding Award, or in
connection with the grant of Restricted Units, Performance Shares,
Options, and/or SARs or Other Stock Unit Awards.
(n) “Employee”
shall mean any employee of the Company or any
Affiliate. Unless otherwise determined by the Committee
in its sole discretion, for purposes of the Plan, an Employee shall
be considered to have terminated employment or services and to have
ceased to be an Employee if his or her employer ceases to be an
Affiliate, even if he or she continues to be employed by such
employer.
(o) “Exchange
Act” shall mean the Securities Exchange Act of 1934, as
amended.
(p) “Fair
Market Value” shall mean, with respect to any property other
than Shares, the market value of such property determined by such
methods or procedures as shall be established from time to time by
the Committee. Unless otherwise determined by the
Committee, the Fair Market Value of Shares as of any date shall be
closing price for the Shares as reported on the New York Stock
Exchange (or on any national securities exchange on which the
Shares are then listed) for that date or, if no such prices are
reported for that date, the closing price on the next preceding
date for which such prices were reported.
(q) “Option”
shall mean any right granted to a Participant under the Plan
allowing such Participant to purchase Shares at such price or
prices and during such period or periods as the Committee shall
determine.
(r) “Other
Stock Unit Award” shall mean any right granted to a
Participant by the Committee pursuant to Section 6(f).
(s) “Participant”
shall mean an Employee or Director who is selected by the Committee
to receive an Award under the Plan. Participant shall
also mean a consultant selected by the Committee who provides
services to the Company or any Affiliate, so long as such person
(i) renders bona fide services that are not in connection with
the offer and sale of the Company’s securities in a
capital-raising transaction and (ii) does not directly or
indirectly promote or maintain a market for the Company’s
securities.
(t) “Performance
Award” shall mean any Award of Performance Shares or
Performance Units granted pursuant to Section 6(d).
(u) “Performance
Period” shall mean that period established by the Committee
at the time any Performance Award is granted or at any time
thereafter during which any performance goals specified by the
Committee with respect to such Award are to be measured.
(v) “Performance
Share” shall mean any grant pursuant to Section 6(d) of a
unit valued by reference to a designated number of Shares, which
value may be paid to the Participant by delivery of such property
as the Committee shall determine, including, without limitation,
cash, Shares, other property, or any combination thereof, upon
achievement of such performance goals during the Performance Period
as the Committee shall establish at the time of such grant or
thereafter.
(w) “Performance
Unit” shall mean any grant pursuant to Section 6(d) of a unit
valued by reference to a designated amount of property other than
Shares, which value may be paid to the Participant by delivery of
such property as the Committee shall determine, including, without
limitation, cash, Shares, other property, or any combination
thereof, upon achievement of such performance goals during the
Performance Period as the Committee shall establish at the time of
such grant or thereafter.
(x) “Person”
shall mean any individual, corporation, partnership, association,
limited liability company, joint-stock company, trust,
unincorporated organization or government or political subdivision
thereof.
(y) “Restricted
Stock” shall mean any Share issued with the restriction that
the holder may not sell, transfer, pledge or
assign such
Share and with such other restrictions as the Committee, in its
sole discretion, may impose (including, without limitation, any
restriction on the right to vote such Share, and the right to
receive any cash dividends), which restrictions may lapse
separately or in combination at such time or times, in installments
or otherwise, as the Committee may deem appropriate.
(z) “Restricted
Stock Award” shall mean an award of Restricted Stock under
Section 6(c).
(aa) “Restricted
Stock Unit” is a bookkeeping entry that represents the right
to receive one share of Common Stock at a future date, and which is
subject to the restriction that the holder may not sell, transfer,
pledge or assign such unit and other restrictions as the Committee,
in its sole discretion, may impose (including, without limitation,
any restriction on the right to receive any Dividend Equivalents,
if dividends are paid by the Company), which restrictions may lapse
separately or in combination at such time or times, in installments
or otherwise, as the Committee may deem appropriate.
(bb) “Shares”
shall mean the shares of common stock of the Company, par value
$.0001 per share.
(cc) “Stock
Appreciation Right” or “SAR” shall mean any right
granted to a Participant pursuant to Section 6(b) to receive, upon
exercise by the Participant, the excess of (i) the Fair Market
Value of one Share on the date of exercise or at any time during a
specified period before the date of exercise over (ii) the
grant price of the right on the date of grant, or if granted in
connection with an outstanding Option on the date of grant of the
related Option, as specified by the Committee in its sole
discretion, which, except in the case of Substitute Awards or in
connection with an adjustment provided in Section 4(c), shall not
be less than the Fair Market Value of one Share on such date of
grant of the right or the related Option, as the case may
be. Any payment by the Company in respect of such right
may be made in cash, Shares, other property, or any combination
thereof, as the Committee, in its sole discretion, shall
determine.
(dd) “Subsidiary”
shall mean any corporation (other than the Company) in an unbroken
chain of corporations beginning with the Company if, at the time of
the granting of the Award, each of the corporations other than the
last corporation in the unbroken chain owns stock possessing 50% or
more of the total combined voting power of all classes of stock in
one of the other corporations in the chain.
(ee) “Substitute
Awards” shall mean Awards granted or Shares issued by the
Company in assumption of, or in substitution or exchange for,
awards previously granted, or the right or obligation to make
future awards, by a company acquired by the Company or with which
the Company combines.
SECTION
3. ADMINISTRATION. The Committee shall have full power,
discretion, and authority, subject to such orders or resolutions
not inconsistent with the provisions of the Plan as may from time
to time be adopted by the Board, to
(a) select
the Participants to whom Awards may from time to time be granted
hereunder;
(b) determine
the type or types of Award to be granted to each Participant
hereunder;
(c) determine
the number of Shares to be covered by each Award granted
hereunder;
(d) determine
the terms and conditions, not inconsistent with the provisions of
the Plan, of any Award granted hereunder;
(e) determine
whether, to what extent and under what circumstances Awards may be
settled in cash, Shares or other property or canceled or
suspended;
(f) determine
whether, to what extent, and under what circumstances cash, Shares,
other property and other amounts payable with respect to an Award
made under the Plan shall be deferred either automatically or at
the election of the Participant;
(g) interpret
and administer the Plan and any instrument or agreement entered
into under the Plan;
(h) establish
such rules and regulations and appoint such agents as it shall deem
appropriate for the proper
administration
of the Plan; and
(i) make
any other determination and take any other action that the
Committee deems necessary or desirable for administration of the
Plan.
Actions of the
Committee shall be final, conclusive and binding on all Persons,
including the Company, any Participant, any stockholder and
any Employee of the Company or any Affiliate. A majority
of the members of the Committee may act on behalf of the Committee
and may fix the time and place of its
meetings. Notwithstanding the foregoing or anything else
to the contrary in the Plan, any action or determination by the
Committee specifically affecting or relating to an Award to a
Director shall be approved and ratified by the Board. In
addition, no member of the Board or any of its Committees, as the
case may be, shall be liable for any action or determination made
in good faith with respect to the Plan or any Award granted under
it.
SECTION
4. SHARES SUBJECT TO THE PLAN
(a) Effective
as of May 19, 2004, and subject to adjustment as provided in
Section 4(c), a total of 4,500,000 Shares shall be
authorized for grant or issuance under the Plan plus any remaining
Shares available for awards under the Predecessor Plans as of the
effective date of the merger of the Predecessor Plans with this
Plan. Effective as of May 16, 2007, and subject to
adjustment as provided in Section 4(c), an additional 3,000,000
Shares shall be authorized for grant or issuance under the
Plan. Any Shares issued in connection with Awards other
than Options and SARs shall be counted against this limit as 1.7
Shares for every one Share issued.
(i) If
any Shares subject to an Award or to an award under the
Company’s Predecessor Plans are forfeited or if any Award or
award under the Predecessor Plans based on Shares is settled for
cash, or expires or otherwise is terminated without issuance of
such Shares, the Shares subject to such Award shall, to the extent
of such cash settlement, forfeiture or termination, again be
available for Awards under the Plan.
(ii) In
the event that any Option or other Award granted hereunder is
exercised through the tendering of Shares (either actually or by
attestation), by cashless exercise through the Company, or in the
event that withholding tax liabilities arising from such Option or
other Award are satisfied by the tendering of Shares or by the
withholding of Shares by the Company, only the number of Shares
issued net of the Shares tendered or withheld shall be counted for
purposes of determining the maximum number of Shares available for
issuance under the Plan.
(iii) In
the event that any option or award granted under the Predecessor
Plans is exercised through the tendering of Shares (either actually
or by attestation), or in the event that withholding tax
liabilities arising from such options or awards are satisfied by
the tendering of Shares or the withholding of Shares by the
Company, the Shares so tendered or withheld shall again be
available for Awards under the Plan.
(iv) Shares
reacquired by the Company on the open market using the cash
proceeds received by the Company from the exercise of Options
granted under the Plan or options granted under the Predecessor
Plans that are exercised after the effective date of the Plan shall
be available for Awards under the Plan.
(v) Substitute
Awards shall not reduce the Shares authorized for issuance under
the Plan or authorized for grant to a Participant in any calendar
year.
(vi) Deferred
Stock Units granted as a result of a voluntary election by a
Participant to defer cash or other compensation otherwise payable
to the Participant shall not reduce the Shares authorized for
issuance under the Plan or authorized for grant to a Participant in
any calendar year.
(vii) In
the event that a company acquired by the Company or with which the
Company combines has shares available under a pre-existing plan not
adopted in contemplation of such acquisition or combination, the
shares available for grant pursuant to the terms of such
pre-existing plan (as adjusted, to the extent appropriate, using
the exchange ratio or other adjustment or valuation ratio or
formula used in such acquisition or combination to determine the
consideration payable to the holders of common stock of the
entities party to such acquisition or combination) may be used for
Awards under the Plan and shall not reduce the Shares authorized
for issuance under the Plan; provided that Awards using such
available shares
shall not be
made after the date awards or grants could have been made under the
terms of the pre-existing plan, absent the acquisition or
combination, and shall only be made to individuals who were not
Employees or Directors of the Company or an Affiliate prior to such
acquisition or combination.
(b) Any
Shares issued hereunder may consist, in whole or in part, of
authorized and unissued shares, treasury shares or shares purchased
in the open market or otherwise.
(c) In
the event of any merger, reorganization, consolidation,
recapitalization, stock dividend, stock split, reverse stock split,
spin-off or similar transaction or other change in corporate
structure affecting the Shares, such adjustments and other
substitutions shall be made to the Plan and to Awards as the
Committee, in its sole dis
