Exhibit 10.34
May 23,
2002
ADVANCE AUTO PARTS, INC.
EMPLOYEE STOCK PURCHASE PLAN
PLAN
DOCUMENT
Amended January 1, 2006
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TABLE
OF CONTENTS
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Page
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Section
1
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PURPOSE OF
PLAN
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1
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Section
2
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DEFINITIONS
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1
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2.1
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Account
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1
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2.2
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Authorization
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1
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2.3
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Beneficiary
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1
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2.4
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Board
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1
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2.5
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Code
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1
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2.6
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Committee
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1
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2.7
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Company
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1
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2.8
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Compensation
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1
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2.9
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Custodial
Account
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1
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2.10
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Custodian
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1
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2.11
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Eligible
Employee
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1
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2.12
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Enrollment
Period
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2
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2.13
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Fair Market
Value
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2
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2.14
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Offering
Date
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2
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2.15
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Offering
Period
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2
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2.16
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Participating
Employee
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2
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2.17
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Participating
Employer
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2
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2.18
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Plan
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2
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2.19
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Purchase
Date
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2
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2.20
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Purchase
Price
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2
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2.21
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Stock
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2
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2.22
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Subsidiary
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2
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Section
3
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SHARES
AVAILABLE UNDER THE PLAN
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2
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Section
4
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OFFERING
PERIODS
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2
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Section
5
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ADMINISTRATION
OF THE PLAN
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2
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Section
6
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PARTICIPATION
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3
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6.1
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Requirements
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3
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6.2
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Continuity
Authorization
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3
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6.3
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Termination
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3
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Section
7
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PURCHASE OF
SHARES; LIMITATIONS
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3
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7.1
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General
Rule
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3
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7.2
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Statutory
Limitation
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3
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7.3
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Insufficient
Number of Shares of Stock
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3
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Section
8
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METHOD OF
PAYMENT
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8.1
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Authorization
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4
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8.2
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Continuing
Authorization
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4
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8.3
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Authorization
Amendment
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4
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8.4
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Cancellation of
Election to Purchase
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4
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8.5
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Account
Credits, General Assets and Taxes
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4
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8.6
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No Cash
Payments
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4
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Section
9
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EXERCISE OF
PURCHASE RIGHT
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5
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9.1
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General
Rule
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5
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9.2
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Fractional
Shares
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5
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9.3
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Delivery of
Stock
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5
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9.4
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Dividends
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5
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Section
10
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TERMINATION OF
EMPLOYMENT
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5
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10.1
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General
Rule
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5
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10.2
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Death
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5
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Section
11
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NON-TRANSFERABILITY
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5
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Section
12
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ADJUSTMENT
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6
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Section
13
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SECURITIES
REGISTRATION
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6
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Section
14
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AMENDMENT OR
TERMINATION
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6
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Section
15
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MISCELLANEOUS
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6
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15.1
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Shareholder
Rights
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7
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15.2
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No Contract of
Employment
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7
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15.3
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Withholding
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7
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15.4
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Construction
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7
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15.5
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Costs
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7
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15.6
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Liability for
Taxes
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7
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15.7
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Rule
16b-3
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7
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Section
16
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EFFECTIVE DATE;
TERM OF PLAN
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7
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Section
1
PURPOSE OF THE
PLAN
The purpose of the Advance Auto Parts, Inc.
Employee Stock Purchase Plan is to encourage and enable Eligible
Employees of Advance Auto Parts, Inc. (“the Company”)
and its participating Subsidiaries the opportunity to acquire a
proprietary interest in the Company through the purchase of the
Company’s Stock at a discount. The Company believes that
employees who participate in this Plan will have a closer
identification with the Company by virtue of their ability as
stockholders to participate in the Company’s growth and
earnings. It is the intention of the Company to have this Plan
qualify as an “employee stock purchase plan” under
Section 423 of the Code, as amended. Accordingly, the provisions of
this Plan shall be construed in a manner consistent with the
requirements of that Section 423 of the Code. Any provision of the
Plan inconsistent with Section 423 of the Code will, without
further act or amendment by the Company, be deemed reformed to
comply with Code Section 423.
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2.1
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“Account” -- means for each Offering Period the separate
bookkeeping account which shall be established for each
Participating Employee to record the payroll deductions made on his
or her behalf to purchase Stock under this Plan.
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2.2
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“Authorization”
-- means the participation election
and payroll deduction authorization form which an Eligible Employee
shall be required to properly complete (either in writing or via
electronic submission) and timely file with the Human Resources
Department before the end of an Enrollment Period in order to
participate in this Plan for the related Offering
Period.
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2.3
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“Beneficiary”
-- means a person to whom all or a
portion of the shares or cash amounts due to the Participating
Employee under the Plan will be paid if the Participating Employee
dies before receiving such shares or cash amounts.
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2.4
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“Board” -- means the Board of Directors of the
Company.
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2.5
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“Code” -- means the Internal Revenue Code of 1986, as
amended, and any successor thereto.
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2.6
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“Committee” -- means the committee appointed by the Board to
administer the Plan or in the absence of such a committee, then the
Board itself.
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2.7
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“Company” -- means Advance Auto Parts, Inc. (including any
entity that is directly or indirectly wholly-owned by Advance Auto
Parts, Inc. and disregarded as an entity separate from Advance Auto
Parts, Inc. under Section 7701 of the Code and the treasury
regulations issued thereunder).
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2.8
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“ Compensation” -- means total base pay (which includes regular
pay, overtime, and shift premiums, but excludes bonuses, and any
compensation related to stock options or any other remuneration
paid to the Participating Employee) for services rendered by
Participating Employee to the Company during the applicable period
specified in the Plan.
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2.9
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“Custodial Account ” -- means the non-interest bearing
bookkeeping account maintained on behalf of the Participating
Employee to which shares purchased under Section 9 and dividends
(net of withholding) shall be allocated and from which Shares
and/or cash shall be distributed.
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2.10
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“Custodian” -- means the custodian for the Plan appointed by
the Committee.
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2.11
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“Eligible Employee”
--- means each employee (as defined
for purposes of Section 423 of the Code) of a Participating
Employer who has been employed by such employer at least thirty
days prior to the beginning of each period and who is customarily
employed to work 20 or more hours per week, except:
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(a)
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an employee who
customarily is employed (within the meaning of Section
423(b)(4)(B)) of the Code 20 hours or less per week by the Company
or such Subsidiary.
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(b)
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an employee who
would own (immediately after the grant of an option under this
Plan) stock possessing 5% or more of the total combined voting
power or value of all classes of stock of the Company based on the
rules set forth in Section 423(b)(3) and Section 424 of the
Code.
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(c)
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a highly
compensated employee (as defined under Section 414(q) of the Code)
who is required to file statements under Section 16(a) of the
Securities Exchange Act of 1934 or who otherwise falls within a
category of highly compensated employees that the Committee has
determined in its discretion to exclude under this Plan for a
particular Offering Period.
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2.12
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“Enrollment Period”
-- means the period set by the
Committee which precedes the beginning of the related Offering
Period and which shall continue for no more than 30
days.
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2.13
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“Fair
Market Value” ---
means (1) the closing price on a given date for a share of Stock
quoted on the New York Stock Exchange system or listed on a
national securities exchange as reported by The Wall Street
Journal or, if The Wall Street Journal no longer reports
such closing price, such closing price as reported by a newspaper
or trade journal selected by the Committee or, if no such closing
price is available on such date, (2) such closing price as so
reported for the immediately preceding business day, or, if no
newspaper or trade journal reports such closing price or if no such
price quotation is available, (3) the price which the Committee
acting in good faith determines through any reasonable valuation
method that a share of such Stock might change hands between a
willing buyer and a willing seller, neither being under any
compulsion to buy or to sell and both having reasonable knowledge
of the relevant facts.
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2.14
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“Offering Date”
-- means for each Offering Period
the first day of such Offering Period.
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2.15
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“Offering Period”
-- means a period of approximately 3
months duration commencing on the first day of each calendar year
(or at such other times as may be determined by the Committee) for
each year for which this Plan is in effect.
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2.16
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“Participating Employee”
-- means for each Offering Period
each Eligible Employee who has satisfied the requirements set forth
in Section 6 of this Plan for such Offering Period.
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2.17
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“Participating Employer”
-- means for each Offering Period
the Company and each Subsidiary that the Committee designates as a
Participating Employer for such Offering Period.
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2.18
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“Plan” -- means this Advance Auto Parts, Inc. Employee
Stock Purchase Plan.
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2.19
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“Purchase Date”
-- means for each Offering Period
the last day of such Offering Period.
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2.20
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“Purchase Price”
-- means for each Offering Period
95% of the Fair Market Value of a share of Stock on the
“Purchase Date.”
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2.21
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“Subsidiary” -- means each corporation which is a subsidiary
of the Company (within the meaning of Section 424(f) of the
Code).
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Section
3
SHARES OFFERED UNDER THE
PLAN
There shall be a total of 700,000 shares of
Stock available for purchase under this Plan subject to any
adjustment as provided in Section 12. All such shares of Stock
shall be reserved to the extent that the Company deems appropriate
from authorized but unissued shares of Stock or from shares of
Stock that have been reacquired by the Company.
Section
4
OFFERING PERIODS
This Plan shall be implemented by a series of
consecutive Offering Periods, with a new Offering Period commencing
on or after the first day of the calendar quarter (or at such other
times as may be determined by the Committee, but not exceeding 27
months) for each year for which this Plan is in effect.
Section
5
ADMINISTRATION OF THE
PLAN
The Committee shall supervise and administer
this Plan. The Committee acting in its absolute discretion shall
exercise such powers and take such action as expressly called for
under this Plan and, further, the Committee shall have the power
and the discretion to interpret this Plan and to take such other
action in the administration and operation of this Plan as the
Committee deems equitable under the circumstances, which action
shall be binding on the Company, on each affected Participating
Employee and Participating Employer and on each other person
directly or indirectly affected by such action. The
Committee in
its discretion may delegate, in whole or in part, its power and
authority to another person or entity.
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6.1
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Requirements . Each Eligible Employee who is employed by a
Participating Employer on the first day of an Enrollment Period
shall satisfy the requirements to be a Participating Employee for
the related Offering Period if:
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(a)
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he or she has
properly completed and filed an Authorization with the Committee
(or its delegate) on or before the last day of such Enrollment
Period to purchase shares of Stock under this Plan, and
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(b)
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his or her
employment as an Eligible Employee continues uninterrupted
throughout the period which begins on the first day of such
Enrollment Period and ends on the first day of the related Offering
Period, and no Eligible Employee's employment shall be treated as
interrupted by a transfer directly between the Company and any
Subsidiary or between one Subsidiary and another
Subsidiary.
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6.2
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Continuity
Authorization . An
Authorization shall continue in effect until amended under Section
8.3 or cancelled under Section 8.4.
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6.3
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Termination . A Participating Employee's status as such
shall terminate for an Offering Period (for which he or she has an
effective Authorization) at such time as his or her Account is
withdrawn in full under Section 8.4(a) or his or her employment
terminates under Section 10.1.
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