Attached files
file | filename |
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10-K - FORM 10K - ADVANCE AUTO PARTS INC | aap10k.htm |
EX-31.1 - EXHIBIT 31.1 - ADVANCE AUTO PARTS INC | ex31-1.htm |
EX-31.2 - EXHIBIT 31.2 - ADVANCE AUTO PARTS INC | ex31-2.htm |
EX-23.1 - EXHIBIT 23-1 - ADVANCE AUTO PARTS INC | ex23-1.htm |
EX-21.1 - EXHIBIT 21-1 - ADVANCE AUTO PARTS INC | ex21-1.htm |
EX-32.1 - EXHIBIT 32-1 - ADVANCE AUTO PARTS INC | ex32-1.htm |
EX-10.41 - EXHIBIT 10.41 - ADVANCE AUTO PARTS INC | ex10-41.htm |
Exhibit 10.42
FIRST
AMENDMENT TO THE
ADVANCE
AUTO PARTS, INC.
DEFERRED
STOCK UNIT PLAN FOR NON-EMPLOYEE DIRECTORS AND SELECTED EXECUTIVES
(As
Amended and Restated Effective as of January 1, 2008)
WHEREAS,
Advance Auto Parts, Inc., a Delaware Corporation, (the “Company”), sponsors
the Advance Auto Parts, Inc. Deferred Stock Unit Plan for Non-Employee Directors
and Selected Executives (the “Plan”) to allow eligible individuals to elect
to defer the receipt and taxation of a portion of their compensation;
and
WHEREAS,
the Company previously maintained a form of incentive bonus known as a "Roll-up
Performance Bonus," which bonus, in part, was eligible to be deferred under the
Plan by eligible executives. The Roll-up Performance Bonus has been
replaced by a new "Annual Bonus," which is also eligible to be deferred in part
under the Plan. It is the desire of the Company that the Plan reflect
the change of the type of bonus awarded by the Company; and
WHEREAS,
it is the further desire of the Company to clarify:
·
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That
a delay in payment to a “specified employee” is required only if the
payment is made by reason of a separation from service;
and
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·
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The
Company’s right in regard to ensuring the fulfillment of its tax
withholding obligations with respect to a distribution from the Plan;
and
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WHEREAS,
the Company further desires to amend the Plan to provide for the treatment of
new types of grants of Deferred Stock Units to be deferred under the
Plan.
NOW,
THEREFORE, in consideration of the foregoing, the Plan is hereby amended in the
manner as prescribed below, effective for the Plan Year beginning on January 1,
2009, or as of such other indicated date.
A. Provisions Reflecting Change
in Bonus
1. Article
2 of the Plan is hereby amended by the modification and addition of the
definitions set forth below.
Section
2.18 Eligible
Compensation.
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(a)
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The
“Eligible Compensation” of any Eligible Executive for any period means the
Base Salary and Bonus Compensation, if any, otherwise payable to the
Eligible Executive for services performed or performances achieved during
such period.
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Page 1 - FIRST AMENDMENT TO THE DEFERRED STOCK UNIT PLAN FOR
NON-EMPLOYEE DIRECTORS AND SELECTED EXECUTIVES
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(b)
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The
“Eligible Compensation” of a Director for any period means the Retainer,
or portion thereof, payable to the Director for services performed during
such period.
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* * *
Section
2.32 Annual
Bonus. “Annual Bonus” means the bonus awarded to an Eligible
Executive for a calendar year performance period under an incentive plan
maintained by an Employer.
* * *
Section
2.38 Bonus
Compensation. "Bonus Compensation" for any Eligible Executive
for any period means any Quarterly Bonus or Annual Bonus awarded to such
Eligible Executive for services rendered or performance achieved for such
period.
2. Article
3 of the Plan is hereby amended by the modification of the provisions set forth
below.
Section
3.3 Deferral Election
Agreement.
* * *
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(b)
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For
each Plan Year, each Eligible Executive for that Plan Year will be
permitted to submit a separate Deferral Election Agreement with respect to
the Base Salary and Bonus Compensation (if any) otherwise payable to the
Eligible Executive for services performed or performance achieved during
the Plan Year. The submission of the Deferral Election
Agreement must be made in writing or otherwise in accordance with such
policies and procedures established by the Plan Administration Committee
and communicated to Eligible Individuals, which procedures may permit or
require elections to be made by electronic media. Eligible
Individuals who submit a Deferral Election Agreement will be provided
written or electronic confirmation of the terms of each Deferral Election
Agreement.
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* * *
Section
3.4 Deferred
Amount.
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(a)
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The
Deferral Election Agreement of a Participant for a Board Service Period or
Plan Year, as applicable, will designate the amount of each form of the
Eligible Compensation for the period that the Participant elects to have
deferred under the Plan (the “Deferred
Amount”).
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(i)
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A
Director may elect to defer up to 100% of his or her Retainer for a Board
Service Period.
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(ii)
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For
each Plan Year, an Eligible Executive will make a separate deferral
election for the Eligible Executive’s Base Salary and Bonus Compensation
for the Plan Year; provided, however, that the
Plan
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Page 2 - FIRST AMENDMENT TO THE DEFERRED STOCK UNIT PLAN FOR
NON-EMPLOYEE DIRECTORS AND SELECTED EXECUTIVES
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Administration
Committee in its discretion may permit separate elections to be made with
respect to an Eligible Executive’s Quarterly Bonuses and Annual Bonus,
respectively. The maximum or minimum amount of deferral that may be
elected by an Eligible Individual for a Plan Year with respect to each
form of Eligible Compensation will be established by the Plan
Administration Committee. The maximum or minimum amount may
differ as to Eligible Individuals or classes of Eligible
Individuals.
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* * *
Section
3.7 Deferral Election
Deadline.
* * *
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(b)
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A
Deferral Election pertaining to Base Salary or Bonus Compensation that may
otherwise become payable to an Eligible Executive for services performed
or performance achieved during a Plan Year, including in regard to the
Annual Bonus or the fourth quarter Quarterly Bonus for a Plan Year that
will be paid after the end of that Plan Year, must be submitted on or
before December 31 of the Plan Year immediately preceding the Plan
Year for which it is effective (a “Statutory Deadline”), or as of
such earlier submission date established by the Plan Administration
Committee.
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(c)
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Notwithstanding
subsection (b) above, the Plan Administration Committee in its discretion
may permit an Eligible Executive to submit the Deferral Election for the
Annual Bonus pertaining to any Plan Year on or before June 30 falling
within the applicable Plan Year (a “Statutory Deadline”), or as of
such earlier submission date established by the Plan Administration
Committee, subject to the following
conditions:
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(i)
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The
Annual Bonus for the Plan Year must be payable by reason of the Eligible
Executive’s satisfaction of organizational or individual performance
criteria that is measured on the basis of a calendar year performance
period or such other performance period of not less than
12 months;
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(ii)
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The
Eligible Executive must have performed services for the Employer
continuously during the period beginning on the later of the beginning of
the performance period or the date the applicable performance criteria are
established, and ending on the date the election is made;
and
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(iii)
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The
election must be made before the amount of the Annual Bonus becomes
readily ascertainable.
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Section
3.8 Election for First Year of
Eligibility. Notwithstanding Section 3.7 above, the provisions
of this Section 3.8 will apply with respect to an individual
Page 3 - FIRST AMENDMENT TO THE DEFERRED STOCK UNIT PLAN FOR
NON-EMPLOYEE DIRECTORS AND SELECTED EXECUTIVES
who
becomes an Eligible Executive or a Director, and who thereupon becomes eligible
to participate in the Plan, after the first day of a Plan Year.
(a)
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The
timing of the Eligible Individual’s initial Deferral Election will be
governed by the rules prescribed
below.
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(i)
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The
initial Deferral Election must be made within 30 days after the date
the individual becomes an Eligible Individual. Except as
provided in paragraph (ii) below, the Eligible Individual’s initial
Deferral Election, or the decision to not make an initial Deferral
Election, will become irrevocable as of the expiration of such 30-day
election period.
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(ii)
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Notwithstanding
paragraph (i) above, an initial Deferral Election by an Eligible
Individual that is affirmatively made and submitted under the Plan as of
the last day immediately preceding the date for which the Deferral
Election will first apply, and before the expiration of the otherwise
applicable 30-day election period, will become irrevocable as of such last
day.
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(iii)
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In
no event may the deadline for making an initial Deferral Election under
this Plan with respect to any Eligible Individual for any Plan Year be
subsequent to the deadline imposed on that Eligible Individual for making
a Deferral Election for such Plan Year under any other Aggregated
Plan.
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* * *
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(c)
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The
compensation to which such initial Deferral Election will apply will be
determined in accordance with the rules set forth
below.
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(i)
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The
Eligible Individual’s initial Deferral Election will apply only to the
Eligible Compensation otherwise payable for services performed by the
Eligible Individual subsequent to the date the Deferral Election has
become irrevocable pursuant to subsection (a)
above.
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(ii)
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For
purposes of paragraph (i) above, as with respect to a Deferral
Election by an Eligible Executive pertaining to Bonus Compensation (i.e.,
the Quarterly Bonuses and Annual Bonus), if the initial Deferral Election
is made after the beginning of the applicable bonus performance period,
the Deferral Election will apply to the total amount of the applicable
Bonus Compensation for the applicable performance period multiplied by a
fraction, the numerator of which is the number of days remaining in the
performance period after the election has become irrevocable, and the
denominator of which is the total number of days in the performance
period.
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(iii)
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The
formula prescribed in paragraph (ii) above will also apply in regard
to a Deferral Election pertaining to the deferral of the Eligible
Executive’s Base Salary, or to a Director’s Retainer, unless the
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Page 4 - FIRST AMENDMENT TO THE DEFERRED STOCK UNIT PLAN FOR
NON-EMPLOYEE DIRECTORS AND SELECTED EXECUTIVES
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amount
of the individual’s Eligible Compensation for the portion of a period
prior to the date of the irrevocability of the Deferral Election
(i.e., the amount of the Eligible Compensation that is not eligible
to be deferred under the Plan) can be readily
ascertained.
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B. Plan Clarification
Provisions
1. Subsection
5.6(a) of the Plan is amended to read as prescribed below.
Section
5.6 Restriction on Distributions
to Specified Employees.
(a)
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Notwithstanding
the provisions of Section 5.5 above, if a Participant becomes
entitled to a distribution from the Plan by reason of Retirement or other
Separation from Service, and if the Participant is a Specified Employee as
of the date of such Retirement or other Separation from Service, then the
amounts held in the Participant’s Deferral Accounts will become payable as
of the first day of the seventh month following the date of the
Participant’s Retirement or other Separation from Service (or, if earlier,
as of the date of the Participant’s
death).
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* * *
2. Subsection
5.12 of the Plan is amended to read as prescribed below.
Section
5.12 Withholding of
Taxes. Notwithstanding any other provision of this Plan, an
Employer has the right to withhold from payments made hereunder, or to require a
Participant to remit to the Employer, any amount required for the Employer to
satisfy all federal, state or local tax withholding obligations pertaining to
the Participant.
C. Treatment of New Types of
Deferred Stock Unit Grants
The
Plan is amended, effective as of May 26, 2009, by the addition of a new Article
XI set forth below.
ARTICLE
XI
TYPE 1 AND TYPE 2 DSU
SHARES
Section
11.1 Overview. For
each Board Service Period, the Company may grant to each Director one or both of
two categories of Deferred Stock Units (“DSUs”). For purposes of this
Article XI, these categories of DSUs are referred to as “Type 1 DSUs” and “Type
2 DSUs,” respectively. Except as may be required under the terms of a
written agreement, the Company is not obligated to award Type 1 or Type 2 DSUs
for any Board Service Period, and the number of DSUs awarded may increase or
decrease for subsequent Board Service Periods. The Type 1 and Type 2
DSUs will be held under
Page 5 - FIRST AMENDMENT TO THE DEFERRED STOCK UNIT PLAN FOR
NON-EMPLOYEE DIRECTORS AND SELECTED EXECUTIVES
the Plan, and will be subject to the terms and provisions of the
Plan except as otherwise specifically provided in this Article XI.
Section
11.2 Non-Elective
Deferrals. Each Type 1 and Type 2 DSU grant that is awarded to a Director
will be automatically deferred under the Plan on a non-elective basis, and will
be credited to the Director’s DSU Account.
Section
11.3 Vesting.
(a)
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A
Director will at all times be vested in the balance of each of his or her
DSU Accounts attributable to grants of Type 1
DSUs.
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(b)
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With
respect to the Type 2 DSUs that are granted to a Director for any Board
Service Period, unless a Director’s service as a member of the Board ends
prior to the one-year anniversary of the commencement of such Board
Service Period, then the Type 2 DSUs so granted will become vested on the
one-year anniversary date.
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If
Director’s service as a member of the Board ends prior to the one-year
anniversary of the commencement of the Board Service Period, then the Type 2 DSU
Shares granted to the Director for such Board Service Period will vest on the
cessation of service date on a pro-rata basis. The pro-rata vesting
will be based on a fraction: the numerator of which is the number of
full or partial months of the Director’s service on the Board prior to the
cessation of such service (measured from the date of commencement of the Board
Service Period), and the denominator of which is twelve.
(c)
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Notwithstanding
subsection (b) above, a Director whose service as a member of the Board
ends due to death or having become Disabled, or upon a Qualified Change in
Control Event, will become fully vested upon such cessation of
service.
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Section
11.4 Timing and Form of
Distributions. Distributions of amounts from a Director’s DSU
Account attributable to grants of Type 1 and Type 2 DSUs will be made as
prescribed in this Section 11.4, unless the provisions of Article V provide for
an earlier distribution date (such as in the event of the death or Disability of
the Director).
(a)
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The
value of a Director’s DSU Accounts pertaining to grants of Type 1 DSUs
will be distributed upon a Director’s
Retirement.
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(b)
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The
value of a Director’s DSU Accounts pertaining to a grant of Type 2 DSUs
for a Board Service Period will be distributed as of the three-year
anniversary of the commencement of such Board Service
Period.
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(c)
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Notwithstanding
subject (b) above, a Director may elect to extend the distribution date of
the Type 2 DSUs as prescribed in Section 5.8 of the
Plan.
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All such
distributions will be made in the form of a lump sum payment.
* * *
Page 6 - FIRST AMENDMENT TO THE DEFERRED STOCK UNIT PLAN FOR
NON-EMPLOYEE DIRECTORS AND SELECTED EXECUTIVES
Pursuant
to the authority granted by the Compensation Committee of the Board of Directors
of Advance Auto Parts, Inc. under its resolutions adopted on August _____, 2009,
the undersigned hereby executes this Advance Auto Parts, Inc. Deferred
Stock Unit Plan for Non-Employee Directors and Selected Executives on behalf of
Advance Auto Parts, Inc.
ADVANCE
AUTO PARTS, INC.
By:
Title:
Dated: ,
2009
Page 7 - FIRST AMENDMENT TO THE DEFERRED STOCK UNIT PLAN FOR
NON-EMPLOYEE DIRECTORS AND SELECTED EXECUTIVES