Exhibit 10.19
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 5,000,000 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 discretion, deems equitable or
appropriate, including, without limi
