UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-K

(Mark One)
x
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended January 1, 2011
OR
o
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from ________ to ________.

Commission file number 001-16797


ADVANCE AUTO PARTS, INC.
(Exact name of registrant as specified in its charter)
 

 
 
Delaware
(State or other jurisdiction of
incorporation or organization)
 
54-2049910
(I.R.S. Employer
Identification No.)
 
5008 Airport Road
Roanoke, Virginia
(Address of Principal Executive Offices)
 
24012
(Zip Code)
 
(540) 362-4911
(Registrant’s telephone number, including area code)
 
Securities Registered Pursuant to Section 12(b) of the Act:
Title of each class
Common Stock
($0.0001 par value)
Name of each exchange on which registered
New York
Stock Exchange
 
Securities Registered Pursuant to Section 12(g) of the Act: None
 
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes x No o

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes o No x

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No o

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).      x Yes  ¨ No
 
 
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. o

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
 
Large accelerated filer x   Accelerated filer o
     
Non-accelerated filer o   (Do not check if a smaller  reporting company)   Smaller reporting company o
 
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
Yes o No x

As of July 16, 2010, the last business day of the registrant’s most recently completed second fiscal quarter, the aggregate market value of the 83,856,893 shares of Common Stock held by non-affiliates of the registrant was $4,296,827,197, based on the last sales price of the Common Stock on July 16, 2010, as reported by the New York Stock Exchange.

As of February 26, 2011, the registrant had outstanding 80,060,288 shares of Common Stock, par value $0.0001 per share (the only class of common equity of the registrant outstanding).

Documents Incorporated by Reference:

Portions of the definitive proxy statement of the registrant to be filed within 120 days of January 1, 2011, pursuant to Regulation 14A under the Securities Exchange Act of 1934, for the 2011 Annual Meeting of Stockholders to be held on May 17, 2011, are incorporated by reference into Part III.

 
 
 
TABLE OF CONTENTS
     
Page
       
Part I.    
       
  Business
2
       
  Risk Factors
10
       
  Unresolved Staff Comments
14
       
  Properties
15
       
  Legal Proceedings
16
       
  Reserved
16
       
Part II.    
       
  Market for the Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
17
       
  Selected Consolidated Financial Data
18
       
  Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations
20
       
  Item 7A. Quantitative and Qualitative Disclosures About Market Risks
36
       
  Item 8. Financial Statements and Supplementary Data
36
       
  Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
36
       
  Item 9A. Controls and Procedures
37
       
  Other Information
37
       
Part III.      
       
  Item 10. Directors, Executive Officers and Corporate Governance
38
       
  Executive Compensation
38
       
 
38
       
  Item 13. Certain Relationships and Related Transactions, and Director Independence
38
       
  Item 14. Principal Accountant Fees and Services
38
       
 
 
       
  Exhibits, Financial Statement Schedules
39
 
 
 
FORWARD-LOOKING STATEMENTS

Certain statements in this report are "forward-looking statements" within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. Forward-looking statements are usually identified by the use of words such as "anticipate," "believe," "could," "estimate," "expect," "forecast," "intend," "likely," "may," "plan," "position," "possible," "potential," "probable," "project," "projection," "should," "strategy," "will," or similar expressions.   We intend for any forward-looking statements to be covered by, and we claim the protection under, the safe harbor provisions for forward-looking statements contained in the Private Securities Litigation Reform Act of 1995.

These forward-looking statements are based upon assessments and assumptions of management in light of historical results and trends, current conditions and potential future developments that often involve judgment, estimates, assumptions and projections. Forward-looking statements reflect current views about our plans, strategies and prospects, which are based on information currently available.

Although we believe that our plans, intentions and expectations as reflected in or suggested by any forward-looking statements are reasonable, we do not guarantee or give assurance that such plans, intentions or expectations will be achieved.  Actual results may differ materially from our anticipated results described or implied in our forward-looking statements, and such differences may be due to a variety of factors. Our business could also be affected by additional factors that are presently unknown to us or that we currently believe to be immaterial to our business.

Listed below and discussed elsewhere in further detail in this report are some important risks, uncertainties and contingencies which could cause our actual results, performance or achievements to be materially different from any forward-looking statements made or implied in this report. These include, but are not limited to, the following:

 
·  
a decrease in demand for our products;
·  
competitive pricing and other competitive pressures;
·  
our ability to implement our business strategy;
·  
our ability to expand our business, including the location of available and suitable real estate for new store locations, the integration of any acquired businesses and the continued increase in supply chain capacity and efficiency;
·  
our ability to attract and retain qualified employees, or Team Members;
·  
deterioration in general macro-economic conditions, including unemployment, inflation or deflation, consumer debt levels, high fuel and energy costs, uncertain credit markets or other recessionary type conditions could have a negative impact on our business, financial condition, results of operations and cash flows;
·  
regulatory and legal risks, such as environmental or OSHA risks, including being named as a defendant in administrative investigations or litigation, and the incurrence of legal fees and costs, the payment of fines or the payment of sums to settle litigation cases or administrative investigations or proceedings;
·  
business interruptions due to the occurrence of natural disasters, extended periods of unfavorable weather, computer system malfunction, wars or acts of terrorism;
·  
the impact of global climate change or legal and regulatory responses to such change; and
·  
other statements that are not of historical fact made throughout this report, including the sections entitled “Business,” "Management's Discussion and Analysis of Financial Condition and Results of Operations" and "Risk Factors."
 
We assume no obligations to update publicly any forward-looking statements, whether as a result of new information, future events or otherwise. In evaluating forward-looking statements, you should consider these risks and uncertainties, together with the other risks described from time to time in our other reports and documents filed with the Securities and Exchange Commission, or SEC, and you should not place undue reliance on those statements.
 

PART I

Item 1 .                       Business.

Unless the context otherwise requires, “Advance,” “we,” “us,” “our,” and similar terms refer to Advance Auto Parts, Inc., its predecessor, its subsidiaries and their respective operations. Our fiscal year consists of 52 or 53 weeks ending on the Saturday closest to December 31st of each year. Fiscal 2008 included 53 weeks of operations. All other fiscal years presented include 52 weeks of operations.

Overview

We are a leading specialty retailer of automotive aftermarket parts, accessories, batteries and maintenance items primarily operating within the United States. Our stores carry an extensive product line for cars, vans, sport utility vehicles and light trucks. We serve both "do-it-yourself," or DIY, and “do-it-for-me,” or Commercial, customers.

We were founded in 1929 as Advance Stores Company, Incorporated and operated as a retailer of general merchandise until the 1980s. During the 1980s, we sharpened our focus to target sales of automotive parts and accessories to DIY customers. From the 1980s to the present, we have grown significantly as a result of comparable store sales growth, new store openings and strategic acquisitions. We began our Commercial delivery program in 1996 and have significantly increased our sales to Commercial customers since 2000. Our parent company, Advance Auto Parts, Inc., a Delaware corporation, was incorporated in 2001 in conjunction with the acquisition of Discount Auto Parts, Inc., or Discount. At January 1, 2011, our 2010 fiscal year-end, we operated 3,563 total stores.

Our Internet address is www.AdvanceAutoParts.com . We make available free of charge through our Internet website our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and amendments to those reports filed or furnished pursuant to the Securities Exchange Act of 1934 as soon as reasonably practicable after we electronically file such material with, or furnish them to, the SEC. The SEC maintains a website that contains reports, proxy statements and other information regarding issuers that file electronically with the SEC. These materials may be obtained electronically by accessing the SEC's website at   www.sec.gov.

Operating Segments

We operate in two reportable segments: Advance Auto Parts, or AAP, and Autopart International, Inc., or AI. The AAP segment is comprised of our store operations within the Northeastern, Southeastern and Midwestern regions of the United States, Puerto Rico and the Virgin Islands which operate under the trade names “Advance Auto Parts,” “Advance Discount Auto Parts” and “Western Auto.” The AI segment consists solely of the operations of AI. AI’s business operates under the “Autopart International” trade name and primarily serves the Commercial market from its store locations in the Northeastern and Mid-Atlantic regions of the United States and Florida. We acquired AI in September 2005.

Financial information on our segments is included in Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations , of this Annual Report on Form 10-K. In addition, selected financial data for our segments is available in Note 21, Segment and Related Information, of the Notes to Consolidated Financial Statements, included in Item 15. Exhibits, Financial Statement Schedules, of this Annual Report on Form 10-K.

AAP Segment

At January 1, 2011, we operated 3,369 AAP stores within the United States, Puerto Rico and the Virgin Islands. We operated 3,343 AAP stores throughout 39 states in the Northeastern, Southeastern and Midwestern regions of the United States. These stores operated under the “Advance Auto Parts” trade name except for certain stores in the state of Florida, which operated under the “Advance Discount Auto Parts” trade name. These stores offer a broad selection of brand name and private label automotive replacement parts, accessories, batteries and maintenance items for domestic and imported cars and light trucks. In addition, we operated 26 AAP stores under the “Advance Auto Parts” and “Western Auto” trade names, located in Puerto Rico and the Virgin Islands, or Offshore. Through
 
 
an integrated operating approach to our store operations, we are focused on both the acceleration of Commercial sales and more stable growth of DIY sales based on market dynamics.

We also provide our customers online shopping at www.AdvanceAutoParts.com and access to over 100,000 stock keeping units, or SKUs, of the same product carried in our stores as well as other product offerings and services. Our current website was launched in October 2009 as part of our e-commerce strategy to provide an online shopping capability to both our DIY and Commercial customers. Our online website allows our DIY customers to pick up merchandise at a conveniently located store or have their purchases shipped directly to their home or business. Our online website provides our Commercial customers an opportunity to conveniently place their orders online.

AAP Stores

Store Overview .   Our stores generally are located in freestanding buildings in areas with high vehicle traffic counts, good visibility and easy access to major roadways and to our Commercial customers. We believe that our stores exhibit a customer-friendly format with the majority of our stores featuring an updated exterior and interior, bright lighting, and a well-designed and easily navigated floor plan. The average size of our stores is 7,300 square feet with the size of our typical new stores ranging from approximately 6,000 to 7,000 square feet. Our stores generally are open from 7:30 a.m. to 9:00 p.m. six days a week and 9:00 a.m. to 9:00 p.m. on Sundays and most holidays to meet the needs of our DIY and Commercial customers.

Our stores carry a product offering of approximately 17,500 SKUs, generally consisting of a custom mix of product by store based on the respective market. Additionally, a majority of our stores carry an additional customized assortment of 12,000 SKUs for same-day or next-day delivery to other select stores within the respective service area. We refer to these stores as HUB stores. Our stores are replenished from one of our eight distribution centers once per week on average.

We also utilize a network of Parts Delivered Quickly, or PDQ ® , facilities and one Master PDQ ® facility to ensure our stores have the right product at the right time to meet our customers’ needs. Our PDQ ® and Master PDQ ® network of facilities provide our customers with an additional assortment of approximately 96,000 less common SKUs on a same-day or overnight basis. Lastly, our customers have access to over 300,000 SKUs by ordering directly from one of our vendors for delivery to a particular store or other destination as chosen by the customer.

We strive to be the leader in the automotive aftermarket industry by fulfilling our promise, ‘Service is our best part SM ,’ through our Service Leadership and Superior Availability strategies.  We offer our customers quality products which are backed by a solid warranty. Many of our products are offered at a good, better or best recommendation differentiated by price and quality. Store Team Members utilize our proprietary point-of-sale, or POS, system, including a fully integrated electronic parts catalog to identify and suggest the appropriate quality and price options for the SKUs we carry, as well as the related products, tools or additional information that is required by our customers to complete their automotive repair projects properly and safely.

The primary categories of product we offer in our stores include:

·  
Parts , including alternators, batteries, chassis parts, clutches, engines and engine parts, radiators, starters, transmissions and water pumps;
·  
Accessories , including floor mats, mirrors, vent shades, MP3 and cell phone accessories, and seat and steering wheel covers;
·  
Chemicals , including antifreeze, freon, fuel additives and car washes and waxes;
·  
Oil and other automotive petroleum products; and
·  
Other miscellaneous offerings.
 
The product in our stores is generally arranged in a uniform and consistent manner based on standard store formats and merchandise presentation.  The parts inventory is generally located on shelves behind the customer service counter with the remaining product, or front room merchandise, arranged on the sales floor to provide easy customer access, maximum selling space and to prominently display high-turnover products and accessories to customers. We utilize aisle displays to feature high-demand or seasonal merchandise, new items and advertised specials, including bilingual signage
 
 
based on the demographics in each store’s geographic area.

We also provide a variety of services free of charge to our customers including:
 
·  
Battery & wiper installation
·  
Battery charging
·  
Check engine light reading where allowed by law
·  
Electrical system testing, including batteries, starters, alternators and sensors
·  
“How-To” Video Clinics & Project Brochures
·  
Oil and battery recycling
·  
Loaner tool program
 
Our stores are 100% company operated and are divided into three geographic areas. Each geographic area is managed by a senior vice president, who is supported by regional and district management. District Leaders have direct responsibility for store operations in a specific district, which typically consists on average of 12 stores. Depending on store size and sales volume, each store is staffed by approximately 8 to 16 Team Members, under the leadership of a General Manager. Store Team Members are comprised of full and part-time Team Members. A majority of our stores include at least two parts professionals, or parts pros, who have an extensive technical knowledge of automotive replacement parts and other related applications to better serve our Commercial and DIY customers. Many of our stores include bilingual Team Members to better serve our diverse customer base. We offer training to all of our Team Members, including formal classroom workshops, e-learning and certification by the National Institute for Automotive Service Excellence, or ASE. ASE is broadly recognized for training certification in the automotive industry.

Commercial Sales.   Our Commercial sales consist of sales to both our walk-in and delivery customers, which represented approximately 31% of our AAP sales in Fiscal 2010. Since 2000, we have aggressively expanded our sales to Commercial customers through our Commercial delivery program. For delivered sales, we utilize our Commercial delivery fleet to deliver product from our store locations to our Commercial customers’ place of business, including independent garages, service stations and auto dealers. Our stores are supported by a Commercial sales team who are dedicated to the development of our national, regional and local Commercial customers. Our Commercial sales management is closely aligned with our store management as part of our overall integrated store operation.

We have concentrated a significant amount of our investments over the past three years on increasing our Commercial sales at a faster rate in light of the favorable market dynamics.  We have added key product brands in our stores that are well recognized by our Commercial customers, as well as increased the parts knowledge of our store Team Members. We have increased the size of our sales force by approximately 45% for a greater emphasis on acquiring new Commercial customers and increasing our share of existing commercial customers’ purchases. In 2010, we continued our incremental investments in additional parts professionals, delivery trucks and drivers for approximately half of our AAP stores with Commercial programs, and added a business-to-business platform to our e-commerce capability. We believe these investments and the commitment to consistent delivery times and order accuracy will enable us to gain more Commercial customers as well as increase our sales to existing customers who will use us as their “first call” supplier. At January 1, 2011, 3,018 AAP stores, or 90% of total AAP stores, had Commercial delivery programs, a slight increase from 88% at January 2, 2010.

Store Development.   Our store development program has historically focused on adding new stores within existing markets where we can achieve a larger presence, remodeling or relocating existing stores and entering new markets. The addition of new stores, along with strategic acquisitions, has played a significant role in our growth and success. We believe the opening of new stores, and their strategic location in relation to our DIY and Commercial customers, will continue to play a significant role in our future growth and success.

We open and operate stores in both large, densely populated markets and small, less densely populated areas. We complete substantial research prior to entering a new market. Key factors in selecting new site and market locations include population, demographics, vehicle profile, number and strength of competitors’ stores and the cost of real estate.

 
Our 3,369 AAP stores were located in the following states and territories at January 1, 2011:

   
Number of
     
Number of
     
Number of
Location
 
Stores
 
Location
 
Stores
 
Location
 
Stores
                     
Alabama
 
120
 
Maryland
 
77
 
Pennsylvania
 
173
Arkansas
 
28
 
Massachusetts
 
65
 
Puerto Rico
 
25
Colorado
 
49
 
Michigan
 
106
 
Rhode Island
 
10
Connecticut
 
39
 
Minnesota
 
14
 
South Carolina
 
128
Delaware
 
7
 
Mississippi
 
56
 
South Dakota
 
7
Florida
 
460
 
Missouri
 
43
 
Tennessee
 
138
Georgia
 
232
 
Nebraska
 
21
 
Texas
 
172
Illinois
 
96
 
New Hampshire
 
13
 
Vermont
 
8
Indiana
 
104
 
New Jersey
 
58
 
Virgin Islands
 
1
Iowa
 
27
 
New Mexico
 
1
 
Virginia
 
172
Kansas
 
25
 
New York
 
129
 
West Virginia
 
66
Kentucky
 
99
 
North Carolina
 
241
 
Wisconsin
 
49
Louisiana
 
61
 
Ohio
 
201
 
Wyoming
 
3
Maine
 
14
 
Oklahoma
 
31
       
 
The following table sets forth information concerning increases in the total number of our AAP stores during the past five years:
 
   
2010
   
2009
   
2008
   
2007
   
2006
 
Beginning Stores
    3,264       3,243       3,153       2,995       2,810  
New Stores (1)
    110       75       109       175       190  
Stores Closed
    (5 )     (54 )     (19 )     (17 )     (5 )
Ending Stores (2)
    3,369       3,264       3,243       3,153       2,995  
 
(1)   
Does not include stores that opened as relocations of previously existing stores within the same general market area or substantial renovations of stores.
(2)   
Includes 2 stores not operating at December 30, 2006, primarily due to hurricane damage.
 
Store Technology.   Our store-based information systems, which are designed to improve the efficiency of our operations and enhance customer service, are comprised of a proprietary POS system and electronic parts catalog, or EPC, system.  Information maintained by our POS system is used to formulate pricing, marketing and merchandising strategies and to replenish inventory accurately and rapidly. Our POS system is fully integrated with our EPC system and enables our store Team Members to assist our customers in their parts selection and ordering based on the year, make, model and engine type of their vehicles. Our centrally-based EPC data management system enables us to reduce the time needed to (i) exchange data with our vendors and (ii) catalog and deliver updated, accurate parts information.

Our EPC system also contains enhanced search engines and user-friendly navigation tools that enhance our Team Members’ ability to look up any needed parts as well as additional products the customer needs to complete an automotive repair project. If a hard-to-find part or accessory is not available at one of our stores, the EPC system can determine whether the part is carried and in-stock through our PDQ Ò system. Available parts and accessories are then ordered electronically from another store, PDQ Ò or Master PDQ Ò with immediate confirmation of price, availability and estimated delivery time.

We also support our store operations with additional proprietary systems and customer driven labor scheduling capabilities. Our store-level inventory management system provides real-time inventory tracking at the store level.
 
With the store-level system, store Team Members can check the quantity of on-hand inventory for any SKU, adjust stock levels for select items for store specific events, automatically process returns and defective merchandise, designate SKUs for cycle counts and track merchandise transfers. Our stores use radio frequency hand-held devices to help ensure the accuracy of our inventory. Our standard operating procedure, or SOP, system is a web-based, electronic data management system that provides our Team Members with instant access to any of our standard operating procedures through a comprehensive on-line search function.  All of these systems are tightly integrated and provide real-time, comprehensive information to store personnel, resulting in improved customer service levels, Team Member productivity and in-stock availability.

Store Support Center

Merchandising.   Purchasing for virtually all of the merchandise for our stores is handled by our merchandise teams located in three primary locations:

·  
Store support center in Roanoke, Virginia,
·  
Regional office in Minneapolis, Minnesota; and
·  
Global sourcing office in Taipei, Taiwan.

Our Roanoke team is primarily responsible for the parts categories and our Minnesota team is primarily responsible for accessories, oil and chemicals. Our global sourcing team works closely with both teams.

In Fiscal 2010, we purchased merchandise from approximately 450 vendors, with no single vendor accounting for more than 8% of purchases. Our purchasing strategy involves negotiating agreements with most of our vendors to purchase merchandise over a specified period of time along with other terms, including pricing, payment terms and volume.

The merchandising team has developed strong vendor relationships in the industry and, in a collaborative effort with our vendor partners, utilizes a category management process. The merchandising team continues to refine its category management process, including the ongoing multi-phase implementation of a best-in-class category management system. We believe this process, which develops a customer-focused business plan for each merchandise category, and our global sourcing operation are critical to improving comparable store sales, gross margin and inventory turns.
 
Our merchandising strategy is to carry a broad selection of high quality and reputable brand name automotive parts and accessories which we believe will generate DIY customer traffic and also appeal to our Commercial customers. Some of these brands include Bosch ® , Castrol ® , Dayco ® , Federal-Mogul Moog ® , or Moog ® , Monroe ® , Prestone ® , Purolator ® , T rico ® and Wagner ® . In addition to these branded products, we stock a wide selection of high quality private label products that appeal to value-conscious customers. These lines of merchandise include chemicals, interior automotive accessories, batteries and parts under various private label names such as Autocraft ® , Driveworks ® , Tough One ® and Wearever ® .

Supply Chain.   Our supply chain consists of centralized inventory management and transportation functions which support a supply chain network of distribution centers, PDQ ® warehouses, HUB’s and stores. Our inventory management team utilizes a replenishment system to monitor the distribution center, PDQ ® warehouse, HUB and store inventory levels and orders additional product when appropriate while streamlining handling costs. Our replenishment system utilizes the most up-to-date information from our POS system as well as inventory movement forecasting based upon sales history, sales trends by SKU, seasonality (and weather patterns) and demographic shifts in demand. Our replenishment system combines these factors with service level goals, vendor lead times and cost of inventory assumptions to determine the timing and size of purchase orders. The vast majority of our purchase orders are sent to our merchandise vendors via electronic data interchange.

Our transportation team utilizes a transportation management system to efficiently manage incoming shipments to our distribution centers and from our distribution centers to our stores. Benefits from this system include (i) reduced vendor to distribution center freight costs, (ii) visibility of purchase orders and shipments for the entire supply chain, (iii) a reduction in distribution center inventory, or safety stock, due to consistent transit times, (iv) decreased third party freight and billing service costs, (v)

 

decreased distribution center to store freight costs and (vi) higher store in-stock position. We utilize two reputable dedicated carriers to ship product from our distribution centers to our stores.

We currently operate eight distribution centers. All of these distribution centers are equipped with our distribution center management system, or DCMS. Our DCMS provides real-time inventory tracking through the processes of receiving, picking, shipping and replenishing inventory at our distribution centers. The DCMS, integrated with technologically advanced material handling equipment, significantly reduces warehouse and distribution costs, while improving efficiency. This equipment includes carousels, “pick-to-light” systems, radio frequency technology, voice technology and automated sorting systems. We have ongoing supply chain initiatives in our distribution centers to further increase the efficient utilization of our distribution capacity. We believe our current supply chain network, including a new distribution center projected to open in Indiana in late 2011, provides ample capacity for our projected growth in the foreseeable future.

Store inventories are replenished from our eight distribution centers. We currently offer approximately 59,000 SKUs to support all of our retail stores via our 22 stand-alone PDQ ® warehouses and/or our eight distribution centers (all of which stock PDQ ® items). Stores have system visibility to inventory in their respective PDQ Ò warehouses and distribution centers and can place orders to these facilities, or as an alternative, through an online ordering system to virtually any of the other facilities. Ordered parts are delivered to substantially all stores on a same day or next day basis through our dedicated PDQ ® trucking fleet and third-party carriers. Supplementing the inventory on-hand at our stores, our HUB stores stock an additional 12,000 less common SKUs which are available to our stores within the HUB stores’ respective service area on a same day or next day basis.  In addition, we operate a Master PDQ ® warehouse that stocks approximately 29,000 incremental SKUs of harder-to-find automotive parts and accessories and utilizes our existing PDQ ® distribution infrastructure and/or third party arrangements to provide next day service to substantially all of our stores.

Marketing & Advertising.     We have a marketing and advertising program designed to drive awareness and consideration of the Advance Auto Parts brand by positioning AAP as the service leader in the aftermarket auto parts category.  We strive to exceed consumers’ expectations through our free and value-added services, extensive parts assortment and quality merchandise offerings.   We market our brand through a mix of media including television, direct mail, promotional event signage, outdoor billboards, online advertising, social media and AdvanceAutoParts.com.

In early 2011, we launched our ‘Service is our best part SM ’ campaign.   The campaign was developed based on extensive research with our customers and Team Members and brings to life a new brand promise for Advance.  This campaign was successfully tested in certain markets during 2010 before being rolled out nationwide in 2011.  The campaign targets core DIY and Commercial customers and emphasizes our commitment to provide market-leading service to our customers.

Our multi-channel marketing communication plan is built around television, direct marketing, online, radio, and local marketing.  The plan is supported by public relations, in-store and event signage as well as mobile and social media through Facebook.   The television advertising is a combination of national and regional media in sports, entertainment and DIY-themed programming.  Radio advertising airs primarily during peak drive times and on weekends.  We also use Spanish-language television, radio and outdoor advertising to reach our Hispanic customers.

A final and key component of our advertising is our local marketing program highlighted by our title sponsorship of the Advance Auto Parts Monster Jam, a live family-oriented monster truck event tour and television show.  Our brand is affixed to the show, is present throughout each host arena and comes alive through the Advance Auto Parts Grinder monster trucks.  We are able to capitalize on the sponsorship at a store level through Grinder and other monster truck appearances and through store-based customer events in conjunction with the show.  In addition, AAP also sponsors various other grass-root level events intended to positively impact the individual communities we serve, including Hispanic and other ethnic communities, and to drive awareness and repeated store visits.


AI Segment

AI’s business primarily serves the Commercial market, with an emphasis on parts for imported cars, from its store locations located throughout the Northeastern and Mid-Atlantic regions of the United States and Florida. In addition, its North American Sales Division serves warehouse distributors and jobbers throughout North America. We believe AI provides a high level of service to its Commercial customers by providing quality parts, unsurpassed customer service and efficient parts delivery. As a result of its extensive sourcing network, AI is able to serve its customers in search of replacement parts for both domestic and imported cars and light trucks with a greater focus on imported parts. The vast majority of AI’s product is sold under its own proprietary brand. The AI stores offer approximately 24,000 SKUs with access to an additional 100,000 SKUs through its supply chain and local sourcing networks.

AI has significantly increased its store count since our acquisition of AI in September 2005. At January 1, 2011, we operated 194 stores under the “Autopart International” trade name in the following states:
 
   
Number of
     
Number of
     
Number of
Location
 
Stores
 
Location
 
Stores
 
Location
 
Stores
                     
Connecticut
 
17
 
Massachusetts
 
32
 
Pennsylvania
 
23
Delaware
 
1
 
New Hampshire
 
8
 
Rhode Island
 
4
Florida
 
38
 
New Jersey
 
16
 
Vermont
 
1
Maine
 
4
 
New York
 
25
 
Virginia
 
12
Maryland
 
13
               
 
The following table sets forth information concerning increases in the total number of our AI stores:

   
2010
   
2009
   
2008
   
2007
   
2006
 
Beginning Stores
    156       125       108       87       62  
New Stores
    38       32       18       21       25  
Stores Closed
    -       (1 )     (1 )     -       -  
Ending Stores
    194       156       125       108       87  
                                         

Seasonality

Our business is somewhat seasonal in nature, with the highest sales occurring in the spring and summer months. In addition, our business can be affected by weather conditions. While unusually heavy precipitation tends to soften sales as elective maintenance is deferred during such periods, extremely hot or cold weather tends to enhance sales by causing automotive parts to fail at an accelerated rate.

Team Members

At February 26, 2011, we employed approximately 29,000 full-time Team Members and approximately 22,000 part-time Team Members. Our workforce consisted of 90% of our Team Members employed in store-level operations, 7% employed in distribution and 3% employed in our corporate offices. We have never experienced any labor disruption and are not party to any collective bargaining agreements. We believe that our Team Member relations are good.



Intellectual Property

We own a number of trade names and own and have federally registered several service marks and trademarks, including “Advance Auto Parts,” “Advance Discount Auto Parts,” “Western Auto,” “Parts America,” “Autopart International” and “PDQ ® ” for use in connection with the automotive parts retailing business. In addition, we own and have registered a number of trademarks for our private label brands. We believe that these trade names, service marks and trademarks are important to our merchandising strategy. We do not know of any infringing uses that would materially affect the use of these trade names and marks, and we actively defend and enforce them.

Competition

We operate in both the DIY and Commercial markets of the automotive aftermarket industry. Our primary competitors are (i) both national and regional retail chains of automotive parts stores, including AutoZone, Inc., O'Reilly Automotive, Inc. and The Pep Boys–Manny, Moe & Jack, (ii) discount stores and mass merchandisers that carry automotive products, (iii) wholesalers or jobber stores, including those associated with national parts distributors or associations, such as NAPA and Carquest, (iv) independent operators and (v) automobile dealers that supply parts. We believe that chains of automotive parts stores that, like us, have multiple locations in one or more markets, have competitive advantages in customer service, marketing, inventory selection, purchasing and distribution as compared to independent retailers and jobbers that are not part of a chain or associated with other retailers or jobbers. The principal methods of competition in our business include customer service, product offerings, availability, quality, price and store location.

Environmental Matters

We are subject to various federal, state and local laws and governmental regulations relating to the operation of our business, including those governing recycling of automotive lead-acid batteries and used automotive oil, and ownership and operation of real property. We sell consumer products containing hazardous materials as part of our business. In addition, our customers may bring automotive lead-acid batteries or used automotive oil onto our properties. We currently provide collection and recycling programs for used lead-acid batteries and used oil at substantially all of our stores as a service to our customers. Pursuant to agreements with third party vendors, lead-acid batteries and used oil are collected by our Team Members, deposited onto pallets or into vendor supplied containers and stored by us until collected by the third party vendors for recycling or proper disposal. The terms of our contracts with third party vendors provide that they are in compliance with all applicable laws and regulations. Persons who arrange for the removal, disposal, treatment or other handling of hazardous or toxic substances may be liable for the costs of removal or remediation at any affected disposal, treatment or other site affected by such substances. Based on our experience, we do not believe that there are any material environmental costs associated with the current business practice of accepting lead-acid batteries and used oil as these costs are borne by the respective third party vendors.

We own and lease real property. Under various environmental laws and regulations, a current or previous owner or operator of real property may be liable for the cost of removal or remediation of hazardous or toxic substances on, under or in such property. These laws often impose joint and several liability and may be imposed without regard to whether the owner or operator knew of, or was responsible for, the release of such hazardous or toxic substances. Other environmental laws and common law principles also could be used to impose liability for releases of hazardous materials into the environment or work place, and third parties may seek recovery from owners or operators of real properties for personal injury or property damage associated with exposure to released hazardous substances. From time to time, we receive notices from the Environmental Protection Agency and state environmental authorities indicating that there may be contamination on properties we own, lease or operate or may have owned, leased or operated in the past or on adjacent properties for which we may be responsible.  Compliance with these laws and regulations has not had a material impact on our operations to date.



Item 1A . Risk Factors.

Our business is subject to a variety of risks, both known and unknown. Our business, financial condition, results of operations and cash flows could be negatively impacted by the following risk factors. These risks are not the only risks that may impact our business.

If overall demand for products sold by our stores slows or declines, our business, financial condition, results of operations and cash flows will suffer. Decreased demand could also negatively impact our stock price.

Overall demand for products sold by our stores depends on many factors and may slow or decrease due to any number of reasons, including:

·  
the economy , because during periods of declining economic conditions, as mentioned above, both DIY and Commercial customers may defer vehicle maintenance or repair; conversely, during periods of favorable economic conditions, more of our DIY customers may pay others to repair and maintain their cars or they may purchase new cars;
·  
changing weather patterns along with increased frequency or duration of extreme weather conditions , as elective vehicle maintenance may be deferred during periods of unfavorable weather;
·  
our vendors, because if any of our key vendors do not supply us with products on terms that are favorable to us or fail to develop new products we may not be able to meet the demands of our customers and our results of operations could be negatively affected;
·  
our reputation and our brands, because our reputation is critical to our continued success.  If we fail to maintain high standards for, or receive negative publicity whether through social media or normal media channels relating to, product safety, quality or integrity, it could reduce demand for our products.  The product we sell is branded both in brands of our vendors and in our own private label brands.  If the perceived quality or value of the brands we sell declines, in the eyes of our customers, our results of operations could be negatively affected;
·  
the average duration of manufacturer warranties and the decrease in the number of annual miles driven, because newer cars typically require fewer repairs and will be repaired by the manufacturer’s dealer network using dealer parts; and lower vehicle mileage decreases the need for maintenance and repair (while higher miles driven increases the need);
·  
the quality of vehicles manufactured , because vehicles that have low part failure rates will require less frequent repairs using aftermarket parts; and
·  
the refusal of vehicle manufacturers to make available diagnostic, repair and maintenance information to the automotive aftermarket industry that our DIY and Commercial customers require to diagnose, repair and maintain their vehicles , because this may force consumers to have all diagnostic work, repairs and maintenance performed by the vehicle manufacturers’ dealer network.

If any of these factors cause overall demand for the products we sell to decline, our business, financial condition, results of operations and cash flows could be negatively impacted.

If we are unable to compete successfully against other companies in the automotive aftermarket industry we may lose customers, our revenues may decline, and we may be less profitable or potentially unprofitable.

The sale of automotive parts, accessories and maintenance items is highly competitive in many ways, including name recognition, location, price, quality, product availability and customer service. We compete in both the DIY and Commercial categories of the automotive aftermarket industry, primarily with: (i) national and regional retail automotive parts chains, (ii) discount stores and mass merchandisers that carry automotive products, (iii) wholesalers or jobber stores, (iv) independent operators and (v) automobile dealers that supply parts. These competitors and the level of competition vary by market. Some of our competitors may possess advantages over us in certain markets we share, including a greater amount of marketing activities, a larger number of stores, store locations, store layouts, longer operating histories, greater name recognition, larger and more established customer bases, lower prices, and better product warranties. Our response to these competitive disadvantages may require us to reduce our prices below our normal selling prices or increase our promotional spending, which would lower our
 
 
revenue and profitability. Competitive disadvantages may also prevent us from introducing new product lines, require us to discontinue current product offerings, or change some of our current operating strategies. If we do not have the resources or expertise, or otherwise fail to develop successful strategies to address these competitive disadvantages, we may lose customers, our revenues and profit margins may decline and we may be less profitable or potentially unprofitable.
 
We may not be able to successfully implement our business strategy, including increasing comparable store sales, enhancing our margins and increasing our return on invested capital, which could adversely affect our business, financial condition, results of operations and cash flows.

We have implemented numerous initiatives as part of our business strategy to increase comparable store sales, enhance our margins and increase our return on invested capital in order to increase our earnings and cash flow. If we are unable to implement these initiatives efficiently and effectively, or if these initiatives are unsuccessful, our business, financial condition, results of operations and cash flows could be adversely affected.

Successful implementation of our business strategy also depends on factors specific to the retail automotive parts industry and numerous other factors that may be beyond our control. In addition to the aforementioned risk factors, adverse changes in the following factors could undermine our business strategy and have a material adverse affect on our business, financial condition, results of operations and cash flow:

·  
the competitive environment in the automotive aftermarket parts and accessories retail sector that may force us to reduce prices below our desired pricing level or increase promotional spending;
·  
our ability to anticipate changes in consumer preferences and to meet customers’ needs for automotive products (particularly parts availability) in a timely manner;
·  
our ability to maintain and eventually grow DIY market share; and
·  
our ability to continue our Commercial sales growth.

For that portion of our inventory manufactured outside the United States, geopolitical changes, changes in trade regulations, currency fluctuations, shipping related issues, natural disasters, pandemics and other factors beyond our control may increase the cost of items we purchase or create shortages which could have a material adverse effect on our sales and profitability.

We will not be able to expand our business if our growth strategy is not successful, including the availability of suitable locations for new store openings, the successful integration of any acquired businesses or the continued increase in supply chain capacity and efficiency, which could adversely affect our business, financial condition, results of operations and cash flows.
 
New Store Openings
 
We have increased our store count significantly from 1,729 stores at the end of Fiscal 2000 to 3,563 stores at January 1, 2011. We intend to continue to increase the number of our stores and expand the markets we serve as part of our growth strategy, primarily by opening new stores. We may also grow our business through strategic acquisitions. We do not know whether the implementation of our growth strategy will be successful. The actual number of new stores to be opened and their success will depend on a number of factors, including, among other things:

·   the availability of potential store locations;
·   the negotiation of acceptable lease or purchase terms for new locations;
·   the availability of financial resources, including access to capital at cost-effective interest rates; and
·   our ability to manage the expansion and hire, train and retain qualified sales associates.

We are unsure whether we will be able to open and operate new stores on a timely or sufficiently profitable basis, or that opening new stores in markets we already serve will not harm existing store profitability or comparable store sales. The newly opened and existing stores' profitability will depend on the competition we face as well as our ability to properly merchandise, market and price the products desired by customers in these markets.


 
Supply Chain

Our store inventories are primarily replenished by shipments from our network of distribution centers, PDQ ® warehouses and HUB stores.  As we service our growing store base, we will need to increase the capacity of our supply chain network in order to provide the added parts availability under our Superior Availability strategy while maintaining productivity and profitability expectations. We cannot be assured of the availability of potential locations on lease or purchase terms that would be acceptable to us, of our ability to integrate those new locations into our existing supply chain network or of our ability to increase the productivity and efficiency of our overall supply chain network to desired levels.
 
We depend on the services of many qualified Team Members, whom we may not be able to attract and retain.

Our success depends to a significant extent on the continued services and experience of our Team Members. At February 26, 2011, we employed approximately 51,000 Team Members. We may not be able to retain our current qualified Team Members or attract and retain additional qualified Team Members that may be needed in the future. Our ability to maintain an adequate number of qualified Team Members is highly dependent on an attractive and competitive compensation and benefits package. If we fail or are unable to maintain such a package, our customer service and execution levels could suffer by reason of a declining quality of our workforce, which could adversely affect our business, financial condition, results of operations and cash flows.

Deterioration in general macro-economic conditions, including unemployment, inflation or deflation, consumer debt levels, high fuel and energy costs, uncertain credit markets or other recessionary type conditions could have a negative impact on our business, financial condition, results of operations and cash flows.

Deterioration in general macro-economic conditions impacts us through (i) potential adverse effects from deteriorating and uncertain credit markets (ii) the negative impact on our suppliers and customers and (iii) an increase in operating costs from higher energy prices.

Impact of Credit Market Uncertainty
 
Significant deterioration in the financial condition of large financial institutions in 2008 and 2009 resulted in a severe loss of liquidity and available credit in global credit markets and in more stringent borrowing terms.  Our overall credit rating may be negatively impacted by deteriorating and uncertain credit markets. The interest rates on our revolving credit facility are linked directly to our credit ratings. Accordingly, any negative impact on our credit rating would likely result in higher interest rates and interest expense on borrowed funds and less favorable terms on other operating and financing arrangements. Additionally, we may be limited in our ability to borrow additional funds to finance our operations. It is possible that one or more of the banks that provide us with financing under our revolving credit facility may fail to honor the terms of our existing credit facility or be financially unable to provide the unused credit. An inability to obtain sufficient financing at cost-effective rates could have a materially adverse affect on our business, financial condition, results of operations and cash flows.
 
Impact on our Suppliers

Our business depends on developing and maintaining close relationships with our suppliers and on our suppliers' ability and/or willingness to sell quality products to us at favorable prices and terms. Many factors outside of our control may harm these relationships and the ability or willingness of these suppliers to sell us products on favorable terms.  One such factor is a general decline in the economy and economic conditions and prolonged recessionary conditions.  These events could negatively affect our suppliers’ operations and make it difficult for them to obtain the credit lines or loans necessary to finance their operations in the short-term or long-term and meet our product requirements.  Financial or operational difficulties that some of our suppliers may face could also increase the cost of the products we purchase from them or our ability to source product from them. We might not be able to pass our increased costs onto our customers. In addition, the trend towards consolidation among automotive parts suppliers as well as the off-shoring of manufacturing capacity to foreign countries may disrupt or end our relationship with some suppliers, and could lead to less competition and result in higher prices.  We could also be negatively impacted by suppliers who might experience bankruptcies, work stoppages, labor strikes or other
 
 
interruptions to or difficulties in the manufacture or supply of the products we purchase from them.

Impact on our Customers

Deterioration in macro-economic conditions may have a negative impact on our customers’ net worth, financial resources and disposable income. This impact could reduce their willingness or ability to pay for accessories, maintenance or repair of their vehicles, which results in lower sales in our stores. Higher fuel costs may also reduce the overall number of miles driven by our customers resulting in less parts failures and elective maintenance required to be completed.

Impact on Operating Expenses

Rising energy prices could directly impact our operating costs, including our merchandise distribution, commercial delivery, utility and product costs.

Because we are involved in litigation from time to time, and are subject to numerous laws and governmental regulations, we could incur substantial judgments, fines, legal fees and other costs.

We are sometimes the subject of complaints or litigation from customers, employees or other third parties for various actions. From time to time, we are involved in litigation involving claims related to, among other things, breach of contract, tortious conduct, employment law matters, payment of wages, asbestos exposure, real estate, and product defects. The damages sought against us in some of these litigation proceedings are substantial. Although we maintain liability insurance for some litigation claims, if one or more of the claims were to greatly exceed our insurance coverage limits or if our insurance policies do not cover a claim, this could have a material adverse affect on our business, financial condition, results of operations and cash flows.

Additionally, we are subject to numerous federal, state and local laws and governmental regulations relating to environmental protection, product quality standards, building and zoning requirements, as well as employment law matters. If we fail to comply with existing or future laws or regulations, we may be subject to governmental or judicial fines or sanctions, while incurring substantial legal fees and costs. In addition, our capital expenses could increase due to remediation measures that may be required if we are found to be noncompliant with any existing or future laws or regulations.

Business interruptions may negatively impact our store hours, operability of our computer systems and the availability and cost of merchandise which may adversely impact our sales and profitability.
 
War or acts of terrorism, hurricanes, tornados, earthquakes or other natural disasters, or the threat of any of these calamities or others, may have a negative impact on our ability to obtain merchandise available for sale in our stores, result in certain of our stores being closed for an extended period of time, negatively affect the lives of our customers or team members, or otherwise negatively impact our operations. Some of our merchandise is imported from other countries. If imported goods become difficult or impossible to import into the United States, and if we cannot obtain such merchandise from other sources at similar costs, our sales and profit margins may be negatively affected.

In the event that commercial transportation is curtailed or substantially delayed, our business may be adversely impacted, as we may have difficulty receiving merchandise from our suppliers and shipping it to our stores.

Terrorist attacks, war in the Middle East, or war within or between any oil producing country would likely result in an abrupt increase in the price of crude oil, gasoline, diesel fuel and energy costs. Such price increases would increase the cost of doing business for us and our suppliers, and also would negatively impact our customers' disposable income and have an adverse impact on our business, sales, profit margins and results of operations.

We rely extensively on our computer systems and the systems of our business partners to manage inventory, process transactions and report results.  Any such systems are subject to damage or interruption from power outages, telecommunication failures, computer viruses, security breaches and catastrophic events.  If our computer systems or those of our business partners fail we may experience loss of critical data and interruptions or delays in our ability to

 
process transactions and manage inventory.  Any such loss, if widespread or extended, could adversely affect the operation of our business and our results of operations.

We may be affected by global climate change or by legal, regulatory, or market responses to such change.

The growing political and scientific sentiment is that global weather patterns are being influenced by increased levels of greenhouse gases in the earth’s atmosphere. This growing sentiment and the concern over climate change have led to legislative and regulatory initiatives aimed at reducing greenhouse gas emissions. For example, proposals that would impose mandatory requirements on greenhouse gas emissions continue to be considered by policy makers in the United States. Laws enacted that directly or indirectly affect our suppliers (through an increase in the cost of production or their ability to produce satisfactory products) or our business (through an impact on our inventory availability, cost of sales, operations or demand for the products we sell) could adversely affect our business, financial condition, results of operations and cash flows.  Significant increases in fuel economy requirements or new federal or state restrictions on emissions of carbon dioxide that may be imposed on vehicles and automobile fuels could adversely affect demand for vehicles, annual miles driven or the products we sell or lead to changes in automotive technology.  Compliance with any new or more stringent laws or regulations, or stricter interpretations of existing laws, could require additional expenditures by us or our suppliers. Our inability to respond to changes in automotive technology could adversely impact the demand for our products and our business, financial condition, results of operations or cash flows.

Item 1B . Unresolved Staff Comments.

None.


Item 2 . Properties.

The following table sets forth certain information relating to our distribution and other principal facilities:

Facility
 
Opening
Date
 
Area Served
 
Size
(Sq. ft.) (1)
 
Nature of
Occupancy
                   
Main Distribution Centers:
               
 
Roanoke, Virginia
 
1988
 
Mid-Atlantic
 
     433,681
 
Leased
 
Lehigh, Pennsylvania
 
2005
 
Northeast
 
     655,991
 
Owned
 
Lakeland, Florida
 
1982
 
South, Offshore
 
     552,796
 
Owned
 
Gastonia, North Carolina
 
1969
 
North Carolina, South Carolina
 
     634,472
 
Owned
 
Gallman, Mississippi
 
1999
 
Southwest, Midwest
 
     388,168
 
Owned
 
Salina, Kansas
 
1971
 
West, Midwest
 
     413,500
 
Owned
 
Delaware, Ohio
 
1972
 
Midwest
 
     480,100
 
Owned
 
Thomson, Georgia
 
1999
 
Southeast
 
     374,400
 
Owned
                   
Master PDQ® Warehouse:
               
 
Andersonville, Tennessee
 
1998
 
All
 
     113,300
 
Leased
                   
PDQ® Warehouses:
               
 
Youngwood, Pennsylvania
 
1998
 
East
 
       48,320
 
Leased
 
Riverside, Missouri
 
1999
 
West
 
       43,912
 
Leased
 
Temple, Texas
 
1999
 
Southwest
 
       61,343
 
Leased
 
Altamonte Springs, Florida
 
1996
 
Central and Northeast Florida
 
       10,000
 
Owned
 
Jacksonville, Florida
 
1997
 
Southeastern Georgia
 
       12,712
 
Owned
 
Tampa, Florida
 
1997
 
West Central Florida
 
       10,000
 
Owned
 
Hialeah, Florida
 
1997
 
South Florida
 
       12,500
 
Owned
 
West Palm Beach, Florida
 
1998
 
Southeastern  Florida, South
 
       13,300
 
Leased
         
Alabama and Southeastern Mississippi
   
 
Mobile, Alabama
 
1998
 
Florida Panhandle
 
       10,000
 
Owned
 
Atlanta, Georgia
 
1999
 
Georgia
 
       16,786
 
Leased
 
Tallahassee, Florida
 
1999
 
Northwest Florida
 
       10,000
 
Owned
 
Fort Myers, Florida
 
1999
 
Southwest Florida
 
       14,330
 
Owned
 
Brooklyn Heights, Ohio
 
2008
 
Cleveland, Ohio
 
       22,000
 
Leased
 
Chicago, Illinois
 
2009
 
Mid-West
 
       42,600
 
Leased
 
Rochester, New York
 
2009
 
Northeast
 
       40,000
 
Leased
 
Leicester, Massachussetts
 
2009
 
Northeast
 
       34,200
 
Leased
 
Washington, DC
 
2009
 
East
 
       33,124
 
Leased
 
Houston, Texas
 
2009
 
Southwest
 
       36,340
 
Leased
 
Denver, Colorado
 
2009
 
West
 
       25,400
 
Leased
 
West Deptford, New Jersey
 
2009
 
East
 
       33,029
 
Leased
 
Indianapolis, Indiana
 
2010
 
Mid-West
 
       37,850
 
Leased
 
Durham, North Carolina
 
2010
 
East
 
       41,652
 
Leased
                   
Corporate/Administrative Offices:
               
 
Roanoke, Virginia
 
2002
 
All
 
     256,391
 
Leased
 
Minneapolis, Minnesota
 
2008
 
All
 
       51,674
 
Leased
                   
AI Properties:
               
 
Norton, Massachusetts
 
2006
 
AI corporate office
 
       30,000
 
Leased
 
Norton, Massachusetts
 
2006
 
Primarily Northeast and
 
     317,500
 
Leased
         
Mid-Atlantic
       
 
(1)   
Square footage amounts exclude adjacent office space.


 
At January 1, 2011, we owned 696 of our stores and leased 2,867 stores. The expiration dates, including the exercise of renewal options, of the store leases are summarized as follows:

Years
 
AAP Stores
 
AI Stores
 
Total
2010-2011
 
                      21
 
                     7
 
                28
2012-2016
 
                    223
 
                   72
 
              295
2017-2021
 
                    634
 
                   68
 
              702
2022-2031
 
                    745
 
                   47
 
              792
2032-2041
 
                    925
 
                      -
 
              925
2042-2069
 
                    125
 
                      -
 
              125
   
                 2,673
 
                 194
 
           2,867

Item 3 . Legal Proceedings.

We currently and from time to time are involved in litigation incidental to the conduct of our business, including litigation arising from claims of employment discrimination or other types of employment matters as a result of claims by current and former employees. Although we diligently defend against these claims, we may enter into discussions regarding settlement of these and other lawsuits, and may enter into settlement agreements, if we believe settlement is in the best interests of the Company and our shareholders. The damages claimed against us in some of these proceedings are substantial. Although the amount of liability that may result from these matters cannot be ascertained, we do not currently believe that, in the aggregate, they will result in liabilities material to our consolidated financial condition, future results of operations or cash flow.

Our Western Auto subsidiary, together with other defendants including automobile manufacturers, automotive parts manufacturers and other retailers, has been named as a defendant in lawsuits alleging injury as a result of exposure to asbestos-containing products. We and some of our other subsidiaries also have been named as defendants in many of these lawsuits. The plaintiffs have alleged that these products were manufactured, distributed and/or sold by the various defendants. These products have primarily included brake parts. Many of the cases pending against us or our subsidiaries are in the early stages of litigation. The damages claimed against the defendants in some of these proceedings are substantial. Additionally, some of the automotive parts manufacturers named as defendants in these lawsuits have declared bankruptcy, which will limit plaintiffs’ ability to recover monetary damages from those defendants. Although we diligently defend against these claims, we may enter into discussions regarding settlement of these and other lawsuits, and may enter into settlement agreements, if we believe settlement is in the best interests of the Company and our shareholders. We also believe that many of these claims are at least partially covered by insurance. Based on discovery to date, we do not believe the cases currently pending will have a material adverse effect on us. However, if we were to incur an adverse verdict in one or more of these claims and were ordered to pay damages that were not covered by insurance, these claims could have a material adverse effect on our operating results, financial position and liquidity. If the number of claims filed against us or any of our subsidiaries alleging injury as a result of exposure to asbestos-containing products increases substantially, the costs associated with concluding these claims, including damages resulting from any adverse verdicts, could have a material adverse effect on our operating results, financial position and liquidity in future periods.

Item 4 . Reserved.

None.


PART II

Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities.

Our common stock is listed on the New York Stock Exchange, or NYSE, under the symbol "AAP." The table below sets forth the high and low sale prices per share for our common stock, as reported by the NYSE, for the fiscal periods indicated.

   
High
   
Low
 
Fiscal Year Ended January 1, 2011
           
Fourth Quarter
  $ 69.51     $ 58.28  
Third Quarter
  $ 60.21     $ 51.30  
Second Quarter
  $ 53.21     $ 42.19  
First Quarter
  $ 46.34     $ 38.38  
Fiscal Year Ended January 2, 2010
               
Fourth Quarter
  $ 41.77     $ 36.11  
Third Quarter
  $ 47.41     $ 37.31  
Second Quarter
  $ 45.59     $ 40.50  
First Quarter
  $ 44.64     $ 29.50  
 
The closing price of our common stock on February 26, 2011 was $62.63. At February 26, 2011, there were 321 holders of record of our common stock (which does not include the number of individual beneficial owners whose shares were held on their behalf by brokerage firms in street name).

Our Board of Directors has declared a $0.06 per share quarterly cash dividend since its inception in Fiscal 2006. Any payments of dividends in the future will be at the discretion of our Board of Directors and will depend upon our results of operations, cash flows, capital requirements and other factors deemed relevant by our Board of Directors.

The following table sets forth information with respect to repurchases of our common stock for the quarter ended January 1, 2011 (amounts in thousands, except per share amounts);

Period
 
Total Number of Shares Purchased
   
Average Price Paid per Share (1)
   
Total Number of Shares Purchased as Part of Publicly Announced Plans or Programs (2)
   
Maximum Dollar Value that May Yet Be Purchased Under the Plans or Programs (2)(3)
 
                         
October 10, 2010, to November 6, 2010
    1     $ 64.94       -     $ 279,336  
November 7, 2010, to December 4, 2010
    1,398       66.44       1,375       187,938  
December 5, 2010, to January 1, 2011
    990       67.07       990       121,564  
                                 
Total
    2,389     $ 66.70       2,365     $ 121,564  
 
(1)   
In addition to the shares of common stock we repurchased under our $300 million stock repurchase program, we repurchased 24,000 shares of our common stock at an aggregate cost of $1.6 million in connection with the net settlement of shares issued as a result of the vesting of restricted stock during the twelve weeks ended January 1, 2011.
(2)   
Except as noted in footnote 1 above, all of the above repurchases were made on the open market at prevailing market rates plus related expenses under our stock repurchase program, which authorized the repurchase of up to $300 million in common stock. Our stock repurchase program was authorized by our Board of Directors and publicly announced on August 10, 2010. Our $300 million stock repurchase program replaced our prior $500 million stock repurchase program.



Stock Price Performance

The following graph shows a comparison of the cumulative total return on our common stock, the Standard & Poor’s 500 Index and the Standard & Poor’s 500 Specialty Retail Index. The graph assumes that the value of an investment in our common stock and in each such index was $100 on December 31, 2005, and that any dividends have been reinvested. The comparison in the graph below is based solely on historical data and is not intended to forecast the possible future performance of our common stock.

COMPARISON OF CUMULATIVE TOTAL RETURN AMONG
ADVANCE AUTO PARTS, INC., S&P 500 INDEX
AND S&P 500 SPECIALTY RETAIL INDEX
SNPCHARG2010
 
Company / Index
 
     Dec 31, 2005
   
     Dec 30, 2006
   
     Dec 29, 2007
   
       Jan 3, 2009
   
       Jan 2, 2010
   
      Jan 1, 2011
 
Advance Auto Parts
  $ 100     $ 82.36     $ 88.96     $ 80.11     $ 95.56     $ 156.86  
S&P 500 Index
    100       115.79       123.00       79.39       97.34       112.00  
S&P 500 Specialty Retail Index
    100       106.64       84.66       67.36       86.26       104.75  

Item 6 .                       Selected Consolidated Financial Data.

The following table sets forth our selected historical consolidated statement of operations, balance sheet and other operating data. Included in this table are key metrics and operating results used to measure our financial progress. The selected historical consolidated financial and other data at January 1, 2011 and January 2, 2010 and for the three years ended January 1, 2011 have been derived from our audited consolidated financial statements and the related notes included elsewhere in this report. The historical consolidated financial and other data at January 3, 2009, December 29, 2007 and December 30, 2006 and for the years ended December 29, 2007 and December 30, 2006 have been derived from our audited consolidated financial statements and the related notes that have not been included in this report. You should read this data along with "Management's Discussion and Analysis of Financial Condition and Results of Operations," and our consolidated financial statements and the related notes included elsewhere in this report.
 
 
 
 
   
Fiscal Year (1)
 
                               
   
2010
   
2009
   
2008
   
2007
   
2006
 
   
(in thousands, except per share data, store data and ratios)
 
                               
Statement of Operations Data:
                             
Net sales
  $ 5,925,203     $ 5,412,623     $ 5,142,255     $ 4,844,404     $ 4,616,503  
Cost of sales (2)
    2,963,888       2,768,397       2,743,131       2,585,665       2,472,203  
Gross profit
    2,961,315       2,644,226       2,399,124       2,258,739       2,144,300  
Selling, general and administrative expenses
    2,376,382       2,189,841       1,984,197       1,842,310       1,740,950  
Operating income
    584,933       454,385       414,927       416,429       403,350  
Interest expense
    (26,861 )     (23,337 )     (33,729 )     (34,809 )     (35,992 )
Gain on extinguishment of debt
    -       -       -       -       986  
Other income (expense), net
    (1,017 )     607       (506 )     1,014       1,571  
Income before provision
                                       
     for income taxes
    557,055       431,655       380,692       382,634       369,915  
Income tax expense
    211,002       161,282       142,654       144,317       138,597  
Net income
    346,053       270,373       238,038       238,317       231,318  
                                         
Per Share Data:
                                       
Net income per basic share
  $ 4.00     $ 2.85     $ 2.51     $ 2.29     $ 2.18  
Net income per diluted share
  $ 3.95     $ 2.83     $ 2.49     $ 2.28     $ 2.16  
Cash dividends declared per basic share
  $ 0.24     $ 0.24     $ 0.24     $ 0.24     $ 0.24  
Weighted average basic shares outstanding
    86,082       94,459       94,655       103,826       106,129  
Weighted average diluted shares outstanding
    87,155       95,113       95,205       104,637       107,124  
                                         
Cash flows provided by (used in):
                                       
Operating activities
  $ 666,159     $ 699,690     $ 478,739     $ 410,542     $ 333,604  
Investing activities
    (199,350 )     (185,539 )     (181,609 )     (202,143 )     (258,642 )
Financing activities
    (507,618 )     (451,491 )     (274,426 )     (204,873 )     (104,617 )
                                         
Balance Sheet and Other Financial Data:
                                       
Cash and cash equivalents
  $ 59,209     $ 100,018     $ 37,358     $ 14,654     $ 11,128  
Inventory
  $ 1,863,870     $ 1,631,867     $ 1,623,088     $ 1,529,469     $ 1,463,340  
Inventory turnover (3)
    1.70       1.70       1.74       1.73       1.75  
Inventory per store (4)
  $ 523     $ 477     $ 482     $ 469     $ 475  
Accounts payable to inventory ratio (5)
    71.0 %     61.2 %     57.2 %     55.1 %     53.2 %
Net working capital (6)
  $ 276,222     $ 421,591     $ 442,632     $ 456,897     $ 498,553  
Capital expenditures
  $ 199,585     $ 192,934     $ 184,986     $ 210,600     $ 258,586  
Total assets
  $ 3,354,217     $ 3,072,963     $ 2,964,065     $ 2,805,566     $ 2,682,681  
Total debt
  $ 301,824     $ 204,271     $ 456,164     $ 505,672     $ 477,240  
Total net debt (7)
  $ 252,171     $ 113,781     $ 439,394     $ 521,018     $ 500,318  
Total stockholders' equity
  $ 1,039,374     $ 1,282,365     $ 1,075,166     $ 1,023,795     $ 1,030,854  
                                         
Selected Store Data and Performance Measures:
                                       
Comparable store sales growth (8)
    8.0 %     5.3 %     1.5 %     0.7 %     1.6 %
Number of stores at beginning of year
    3,420       3,368       3,261       3,082       2,872  
   New stores
    148       107       127       196       215  
   Closed stores
    (5 )     (55 )     (20 )     (17 )     (5 )
Number of stores, end of period
    3,563       3,420       3,368       3,261       3,082  
Relocated stores
    12       10       10       29       47  
Stores with commercial delivery program, end of period
    3,212       3,024       2,880       2,712       2,526  
Total commercial sales, as a percentage of total sales (in 000s)
    34.2 %     32.0 %     29.5 %     26.6 %     25.0 %
Average net sales per store (in 000s) (9)
  $ 1,697     $ 1,595     $ 1,551     $ 1,527     $ 1,551  
Operating income per store (in 000s) (10)
  $ 168     $ 134     $ 125     $ 131     $ 135  
Gross margin return on inventory (11)
  $ 5.05     $ 3.98     $ 3.47     $ 3.29     $ 3.29  
Total store square footage, end of period (in 000s)
    25,950       24,973       24,711       23,982       22,753  
 
(1)   
Our fiscal year consists of 52 or 53 weeks ending on the Saturday nearest to December 31 st . All fiscal years presented are 52 weeks, with the exception of Fiscal 2008 which consisted of 53 weeks.
(2)   
Cost of sales includes a non-cash inventory adjustment of $37,500 recorded in Fiscal 2008 due to a change in our inventory management approach for slow moving inventory.
(3)   
Inventory turnover is calculated as cost of sales divided by the average of beginning and ending inventories.

 
 
(4)   
Inventory per store is calculated as ending inventory divided by ending store count.
(5)   
Accounts payable to inventory ratio is calculated as ending accounts payable divided by ending inventory. We aggregate financed vendor accounts payable with accounts payable to calculate our accounts payable to inventory ratio.
(6)   
Net working capital is calculated by subtracting current liabilities from current assets.
(7)   
Net debt includes total debt and bank overdrafts, less cash and cash equivalents.
(8)   
Comparable store sales growth is calculated based on the change in net sales starting once a store has been open for 13 complete accounting periods (each period represents four weeks). Relocations are included in comparable store sales growth from the original date of opening. Beginning in Fiscal 2008, we include in comparable store sales growth the net sales from stores operated Offshore and AI stores. The comparable periods have been adjusted accordingly. Fiscal 2008 comparable store sales growth excludes sales from the 53 rd week.
(9)   
Average net sales per store is calculated as net sales divided by the average of the beginning and the ending number of stores for the respective period. Excluding the net sales impact of the 53 rd week of Fiscal 2008 of approximately $88,800, average net sales per store in Fiscal 2008 was $1,524.
(10)   
Operating income per store is calculated as operating income divided by the average of beginning and ending total store count for the respective period. Operating income per store for Fiscal 2009 was $142 excluding the $26,100 impact of store divestitures. Excluding the operating income impact of the 53 rd week of Fiscal 2008 of approximately $15,800 and a $37,500 non-cash inventory adjustment, operating income per store in Fiscal 2008 was $132.
(11)   
Gross margin return on inventory is calculated as gross profit divided by an average of beginning and ending inventory, net of accounts payable and financed vendor accounts payable. Excluding the gross profit impact of the 53 rd week of Fiscal 2008 of approximately $44,000 and a $37,500 non-cash inventory adjustment, gross margin return on inventory in Fiscal 2008 was $3.37.

Item 7 .   Management's Discussion and Analysis of Financial Condition and Results of Operations.

The following discussion and analysis of financial condition and results of operations should be read in conjunction with "Selected Consolidated Financial Data," our consolidated historical financial statements and the notes to those statements that appear elsewhere in this report. Our discussion contains forward-looking statements based upon current expectations that involve risks and uncertainties, such as our plans, objectives, expectations and intentions. Actual results and the timing of events could differ materially from those anticipated in these forward-looking statements as a result of a number of factors, including those set forth under the sections entitled “Forward-Looking Statements” and "Risk Factors" elsewhere in this report.

Our fiscal year ends on the Saturday nearest December 31st of each year, which results in an extra week every several years (Fiscal 2008 contained 53 weeks). Our first quarter consists of 16 weeks, and the other three quarters consist of 12 weeks, with the exception of the fourth quarter of Fiscal 2008 which contained 13 weeks due to our 53-week Fiscal 2008.


Introduction

We are a leading specialty retailer of automotive aftermarket parts, accessories, batteries and maintenance items primarily operating within the United States. Our stores carry an extensive product line for cars, vans, sport utility vehicles and light trucks. We serve both DIY and Commercial customers. At January 1, 2011, we operated 3,563 stores throughout 39 states, Puerto Rico and the Virgin Islands.

We operate in two reportable segments: Advance Auto Parts, or AAP, and Autopart International Inc., or AI.  The AAP segment is comprised of our store operations within the United States, Puerto Rico and the Virgin Islands which operate under the trade names “Advance Auto Parts,” “Advance Discount Auto Parts” and “Western Auto.” At January 1, 2011, we operated 3,369 stores in the AAP segment, of which 3,343 stores operated under the trade names “Advance Auto Parts” and “Advance Discount Auto Parts” throughout 39 states in the Northeastern, Southeastern and Midwestern regions of the United States. These stores offer automotive replacement parts, accessories and maintenance items.  In addition, we operated 26 stores under the “Advance Auto Parts” and “Western Auto” trade names, located in Puerto Rico and the Virgin Islands, or Offshore.
 

 
 
At January 1, 2011, we operated 194 stores in the AI segment under the “Autopart International” trade name. We acquired AI in September 2005. AI’s business primarily serves the Commercial market from its store locations in the Northeastern and Mid-Atlantic regions of the United States and Florida. In addition, its North American Sales Division services warehouse distributors and jobbers throughout North America.

Management Overview

During Fiscal 2010, we produced favorable financial results primarily due to strong comparable store sales growth, an increase in our gross profit rate and the repurchase of shares of our common stock resulting in earnings per diluted share, or diluted EPS, of $3.95 compared to $2.83 in Fiscal 2009. Our strong earnings and favorable management of working capital during Fiscal 2010 have generated significant operating cash flow that allowed us to invest in business initiatives related to our key strategies and repurchase shares of our common stock.

Although we have presented our financial results in this Form 10-K in conformity with accounting principles generally accepted in the United States (GAAP), our financial results for Fiscal 2009 and Fiscal 2008 include the impact of the following significant items. Our Fiscal 2009 results were reduced by an EPS impact of $0.17 resulting from the closure of 45 stores in connection with our store divestiture plan. Our Fiscal 2008 financial results included an extra week of operations (53rd week) as well as a non-cash obsolete inventory write-down of $37.5 million due to a change in inventory management approach for slow moving inventory, or non-cash inventory adjustment. The impact of the Fiscal 2008 items was a net reduction in EPS of $0.15.

Fiscal 2010 Highlights

Highlights from our Fiscal 2010 include:

Financial
 
·  
Total sales during Fiscal 2010 increased 9.5% to $5,925.2 million as compared to Fiscal 2009, primarily driven by an 8.0% increase in comparable store sales.

·  
Our gross profit rate increased 113 basis points as compared to Fiscal 2009.

·  
Our selling, general and administrative, or SG&A, expense rate decreased 35 basis points as compared to Fiscal 2009, and increased 13 basis points when excluding the impact of store divestiture expenses in Fiscal 2009.

·  
We generated operating cash flow of $666.2 million during Fiscal 2010, and used available cash to repurchase 13.0 million shares of our common stock under our stock repurchase plans at a cost of $633.9 million, or an average price of $48.67 per share.

Other

·  
We issued $300 million of senior unsecured notes in April 2010 with an interest of 5.75% due in 2020.
 
·  
Subsequent to the end of Fiscal 2010, we repurchased 1.9 million shares of our common stock, which completed the availability under our $300 million stock repurchase program.  On February 8, 2011 our Board of Directors authorized a new $500 million stock repurchase program.
 
Business Update

Our positive financial results in Fiscal 2010 are a result of the investments we have made in each of our four key strategies over the past three years, the successful execution of the initiatives supporting each of our strategies and favorable conditions in the automotive aftermarket. Our initial focus on our Commercial Acceleration and Availability Excellence strategies has resulted in consistent double-digit increases in our Commercial comparable store sales and strong overall gross profit improvement over this timeframe. Through our DIY Transformation and
 
 
Superior Experience strategies, our DIY sales have also improved throughout Fiscal 2010 as a result of a renewed focus on customer service. In Fiscal 2010, we narrowed our focus on fewer customer facing initiatives to ensure we consistently execute these initiatives in an effort to provide better customer service while decelerating our pace of incremental spending. In Fiscal 2011, we have begun to focus on differentiating Advance from our competition through our commitment to exceptional service which is reflected in our new promise, ‘Service is our best part SM ’ and the convergence of our four key strategies into two strategies – Service Leadership and Superior Availability. Through these two strategies, we believe we can continue to build on the initiatives discussed below and produce favorable financial results.

Our comparable store sales results for Fiscal 2010 were comprised of favorable Commercial and DIY sales results. Our Commercial sales, as a percentage of total sales, increased to 34% for Fiscal 2010 as compared to 32% for Fiscal 2009. Over the past three years we have completed incremental investments in additional parts professionals, delivery trucks and drivers in approximately half of our AAP stores with Commercial programs. We decelerated our pace of completing these investments during the second half of Fiscal 2010 and will continue to roll out these investments to the entire store chain at a more moderate rate over the next two years. Our growth in Commercial is dependent on the previous investments we have made and plan on making in the future and maintaining successful relationships with our existing customers and attracting new customers. If we succeed in these strategies, we anticipate the pace of our growth in Commercial to continue to exceed the pace of DIY growth. Our e-commerce website is also expected to contribute to our Commercial sales due to the completion of the roll out of our business-to-business platform during the fourth quarter of Fiscal 2010. The continued growth in our Commercial sales emphasizes our focus on an integrated service model and our goal of achieving a 50/50 mix of Commercial and DIY sales.
 
Our DIY initiatives include the ongoing improvement of our customer driven staffing model, rollout of more effective training programs and a number of marketing strategies. We are utilizing a more focused marketing approach to better target our highest potential customers and our underserved customers, which has resulted in a more effective use of our advertising spending.  Our re-launched e-commerce website has been operational for five complete fiscal quarters and is beginning to contribute favorably to our DIY sales results. On an ongoing basis, we closely monitor independent customer satisfaction scores for both Commercial and DIY customers, as a measure of customer service and product availability, and have experienced improvement since the program’s inception.

Both our Commercial and DIY sales have benefitted from our added parts availability and merchandising initiatives. We added many new brands to our parts offering in Fiscal 2009 and we continued to rollout custom assortments of product in our stores in Fiscal 2010. We continue to complete additions to our supply chain network to increase our ability to get the right product to our customers. As of January 1, 2011, we were supporting multiple daily deliveries to a majority of our stores from our 176 HUB stores and 31 Parts Delivered Quickly, or PDQ ® ,   facilities. Our HUB stores are larger stores that stock a wider selection and greater supply of inventory. In addition to driving sales, we believe these initiatives are responsible for the continued improvement in our gross profit rate.  Our gross profit rate for Fiscal 2010 increased 113 basis points compared to Fiscal 2009.  We experienced gross profit rate improvements in both parts and non-parts categories resulting from the custom mix availability, price optimization and other merchandising capabilities and the impact of our growing global sourcing operation. We plan to continue increasing the amount of product we source globally which is expected to provide us significant gross profit improvement and allow us to more quickly source the products our customers need.

Automotive Aftermarket Industry

The automotive aftermarket industry benefitted in 2010 from the economic environment as people kept their vehicles longer. Other favorable industry dynamics which existed throughout most of 2010 included:

·  
modest increase in miles driven;
·  
increase in number and average age of vehicles; and
·  
relatively stable gas prices.

Many of these favorable industry dynamics are continuing into 2011. We anticipate miles driven will continue to increase over the long-term future based on historical trends and the increasing number of vehicles on the road; however, there is the potential of market pressure from the recent increase in gas prices and the rebound of new car
 
 
sales. We believe that our focus on differentiating through our strategies of Service Leadership and Superior Availability will allow us to continue to increase our share of the total automotive aftermarket with a higher growth potential driven by the more fragmented Commercial market.

Store Development by Segment

The following table sets forth the total number of new, closed and relocated stores and stores with Commercial delivery programs during Fiscal 2010, 2009 and 2008. We lease approximately 80% of our stores.
 
AAP
 
   
Fiscal Year
 
   
2010
   
2009
   
2008
 
Number of stores at beginning of year
    3,264       3,243       3,153  
   New stores
    110       75       109  
   Closed stores
    (5 )     (54 )     (19 )
Number of stores, end of period
    3,369       3,264       3,243  
Relocated stores
    9       6       10  
Stores with commercial delivery programs
    3,018       2,868       2,755  
                         
AI
 
   
Fiscal Year
 
      2010       2009       2008  
Number of stores at beginning of year
    156       125       108  
   New stores
    38       32       18  
   Closed stores
    -       (1 )     (1 )
Number of stores, end of period
    194       156       125  
Relocated stores
    3       4       -  
Stores with commercial delivery programs
    194       156       125  
 
During Fiscal 2011, we anticipate adding 110 to 120 AAP and 10 to 20 AI stores and closing approximately 10 total stores.

Components of Statement of Operations

Net Sales
 
Net sales consist primarily of merchandise sales from our retail store locations to both our DIY and Commercial customers. Our total sales growth is comprised of both comparable store sales and new store sales. We calculate comparable store sales based on the change in store sales starting once a store has been opened for 13 complete accounting periods (approximately one year). We include sales from relocated stores in comparable store sales from the original date of opening. Beginning in Fiscal 2008, we began including in comparable store sales the net sales from the Offshore and AI stores. The comparable periods have been adjusted accordingly. Fiscal 2008 comparable store sales exclude the effect of the 53 rd week.

Cost of Sales

Our cost of sales consists of merchandise costs, net of incentives under vendor programs; inventory shrinkage, defective merchandise and warranty costs; and warehouse and distribution expenses. Gross profit as a percentage of net sales may be affected by (i) variations in our product mix, (ii) price changes in response to competitive factors and fluctuations in merchandise costs, (iii) vendor programs, (iv) inventory shrinkage, (v) defective merchandise and warranty costs and (v) warehouse and distribution costs. We seek to minimize fluctuations in merchandise costs and instability of supply by entering into long-term purchasing agreements, without minimum purchase volume requirements, when we believe it is advantageous. Our gross profit may not be comparable to those of our


competitors due to differences in industry practice regarding the classification of certain costs. See Note 2 to our consolidated financial statements elsewhere in this report for additional discussion of these costs.

Selling, General and Administrative Expenses

SG&A expenses consist of store payroll, store occupancy (including rent and depreciation), advertising expenses, Commercial delivery expenses, other store expenses and general and administrative expenses, including salaries and related benefits of store support center Team Members, share-based compensation expense, store support center administrative office expenses, data processing, professional expenses, self-insurance costs, closed store expense, impairment charges, if any, and other related expenses. See Note 2 to our consolidated financial statements for additional discussion of these costs.

Consolidated Results of Operations

The following table sets forth certain of our operating data expressed as a percentage of net sales for the periods indicated.

   
Fiscal Year Ended
 
   
January 1,
   
January 2,
   
January 3,
 
   
2011
   
2010
   
2009
 
                   
Net sales
    100.0 %     100.0 %     100.0 %
Cost of sales
    50.0       51.1       53.3  
Gross profit
    50.0       48.9       46.7  
Selling, general and administrative expenses
    40.1       40.5       38.6  
Operating income
    9.9       8.4       8.1  
Interest expense
    (0.5 )     (0.4 )     (0.7 )
Other income, net
    (0.0 )     0.0       (0.0 )
Income tax expense
    3.6       3.0       2.8  
Net income
    5.8       5.0       4.6  
 
Fiscal 2010 Compared to Fiscal 2009

Net Sales

Net sales for Fiscal 2010 were $5,925.2 million, an increase of $512.6 million, or 9.5%, over net sales for Fiscal 2009. This growth was primarily due to an increase in comparable store sales and sales from new AAP and AI stores opened within the last year.

AAP produced sales of $5,691.1 million, an increase of $472.8 million, or 9.1%, over Fiscal 2009. The AAP comparable store sales increase was driven by an increase in average ticket sales as well as an increase in overall customer traffic. AI produced sales of $249.5 million, an increase of $46.9 million, or 23.2%, over Fiscal 2009.

   
2010
   
2009
 
   
AAP
   
AI
   
Total
   
AAP
   
AI
   
Total
 
Comp Store Sales %
    8.1%       7.0%       8.0%       5.1%       9.9%       5.3%  
Net Stores Opened
    105       38       143       21       31       52  

Gross Profit

Gross profit for Fiscal 2010 was $2,961.3 million, or 50.0% of net sales, as compared to $2,644.2 million, or 48.9% of net sales, in Fiscal 2009, or an increase of 113 basis points. This increase in gross profit as a percentage of net sales was driven by improved merchandising and pricing capabilities (such as price optimization), improved parts availability and supply chain efficiencies. We believe the added parts availability has been a primary driver of our increase in parts sales, which generally contribute a higher gross profit. Favorable product costs from global
 
 
 
sourcing are beginning to drive improvements in our gross profit on accessories.

SG&A Expenses

SG&A expenses for Fiscal 2010 were $2,376.4 million, or 40.1% of net sales, as compared to $2,189.8 million, or 40.5% of net sales, for Fiscal 2009, representing a decrease of 35 basis points. This overall decrease in SG&A expenses was primarily due to the absence of store divestiture costs in Fiscal 2010, leverage in occupancy and other fixed costs driven by our 8.0% comparable store sales increase in Fiscal 2010 and a planned decrease in incremental spending on our strategic capabilities, partially offset by increased incentive compensation and advertising.

Operating Income

Operating income for Fiscal 2010 was $584.9 million, representing 9.9% of net sales, as compared to $454.4 million, or 8.4% of net sales, for Fiscal 2009, or an increase of 148 basis points. This increase in operating income, as a percentage of net sales, reflects a significant increase in sales and gross profit rate combined with a slightly lower SG&A expense rate.

AAP produced operating income of $580.4 million, or 10.2% of net sales, for Fiscal 2010 as compared to $446.8 million, or 8.6% of net sales, for Fiscal 2009. AI generated operating income for Fiscal 2010 of $4.5 million as compared to $7.6 million for Fiscal 2009. AI’s operating income decreased during Fiscal 2010 primarily due to a lower gross profit rate as well as higher SG&A expenses associated with the acceleration of new store openings.

Interest Expense

Interest expense for Fiscal 2010 was $26.9 million, or 0.5% of net sales, as compared to $23.3 million, or 0.4% of net sales, in Fiscal 2009. The increase in interest expense as a percentage of sales is primarily a result of the amortization of previously recorded unrecognized losses in accumulated other comprehensive loss over the remaining life of interest rate swaps. The swaps are associated with bank debt which we repaid near the beginning of the second quarter.

Income Taxes

Income tax expense for Fiscal 2010 was $211.0 million, as compared to $161.3 million for Fiscal 2009. Our effective income tax rate was 37.9% and 37.4% for Fiscal 2010 and Fiscal 2009, respectively.

Net Income

Net income was $346.1 million, or $3.95 per diluted share, for Fiscal 2010 as compared to $270.4 million, or $2.83 per diluted share, for Fiscal 2009. As a percentage of net sales, net income for Fiscal 2010 was 5.8%, as compared to 5.0% for Fiscal 2009. The increase in diluted earnings per share was primarily due to growth in our operating income and the decrease in our average share count as a result of our repurchase of 13.0 million shares of our common stock over the last year.

Fiscal 2009 Compared to Fiscal 2008

Net Sales

Net sales for Fiscal 2009 were $5,412.6 million, an increase of $270.4 million, or 5.3%, over net sales for Fiscal 2008. Excluding the $88.8 million impact of the 53 rd week in Fiscal 2008, our sales increase was 7.1%. This growth was primarily due to an increase in comparable store sales of 5.3% and sales from the net addition of 52 new AAP and AI stores opened within the last year.

AAP produced sales of $5,218.3 million, an increase of $241.7 million, or 4.9%, over Fiscal 2008. Excluding the $86.5 million impact of the 53 rd week in Fiscal 2008, AAP’s sales increase was 6.7%. This growth was primarily due to a 5.1% comparable store sales increase and sales from the net addition of 21 new stores opened within the last year. The AAP comparable store sales increase was driven by an increase in average ticket sales and overall customer traffic.
 
 
 
AI produced sales of $202.6 million, an increase of $36.9 million, or 22.3%, over Fiscal 2008. Excluding the $2.3 million impact of the 53 rd week in Fiscal 2008, AI’s sales increase was 24.0%.  This growth was primarily reflective of a 9.9% comparable store sales increase and sales from the net addition of 31 new stores opened within the last year.

Gross Profit

Gross profit for Fiscal 2009 was $2,644.2 million, or 48.9% of net sales, as compared to $2,399.1 million, or 46.7% of net sales, in Fiscal 2008, or an increase of 220 basis points. Excluding the impacts of the $37.5 million non-cash inventory adjustment and the 53 rd week in Fiscal 2008, the increase in gross profit rate was 149 basis points. This increase in gross profit as a percentage of net sales was primarily due to continued investments in pricing and merchandising capabilities (including global sourcing), increased parts availability resulting in the sale of more parts which generally contribute a higher gross profit and improved store execution partially offset by decreased inventory shrink.

SG&A Expenses

SG&A expenses for Fiscal 2009 were $2,189.8 million, or 40.5% of net sales, as compared to $1,984.2 million, or 38.6% of net sales, for Fiscal 2008, or an increase of 187 basis points. Store divestiture expenses comprised 48 basis points of the increase in SG&A expenses as a percentage of net sales. The remaining increase was primarily due to:

·  
increased investments in store labor and Commercial sales force;
·  
higher incentive compensation driven by the favorable financial results in fiscal 2009; and
·  
continued investments to improve our gross profit rate and to operate our new e-commerce operation.

These increases were partially offset by lower advertising expenses and occupancy expense leverage. Excluding store divestitures, this increase in SG&A expenses is primarily linked to the targeted investments we are making to support each of our four key strategies which have already begun to yield benefits in our sales and gross profit results. While our transformation will require continued investments in areas such as Commercial, e-commerce and global sourcing, management plans to balance increases in fixed and variable SG&A expenses relative to our sales growth.

Operating Income

Operating income for Fiscal 2009 was $454.4 million, or 8.4% of net sales, as compared to $414.9 million, or 8.1% of net sales, in Fiscal 2008, or an increase of 33 basis points. This increase in operating income, as a percentage of net sales, reflects an increase in gross profit partially offset by higher SG&A expenses. The increase in SG&A expenses reflects many of the investments we are making in our business with short-term benefits already being realized in net sales and gross profit resulting in an overall net increase in profitability. The Fiscal 2009 increase in our operating income also benefited from the $37.5 million non-cash inventory adjustment, partially offset by the approximately $15.8 million impact from the 53 rd week, in Fiscal 2008.

AAP produced operating income of $446.8 million, or 8.6% of net sales, for Fiscal 2009 as compared to $410.7 million, or 8.3% of net sales, in Fiscal 2008. AI generated operating income for Fiscal 2009 of $7.6 million as compared to $4.2 million in Fiscal 2008. AI’s operating income increased primarily due to its positive sales results for the year and leverage of supply chain costs as a percentage of net sales.

Interest Expense

Interest expense for Fiscal 2009 was $23.3 million, or 0.4% of net sales, as compared to $33.7 million, or 0.7% of net sales, in Fiscal 2008. The decrease in interest expense as a percentage of sales is primarily a result of lower outstanding borrowings and increased sales during Fiscal 2009.



Income Taxes

Income tax expense for Fiscal 2009 was $161.3 million, as compared to $142.7 million for Fiscal 2008. Our effective income tax rate was 37.4% and 37.5% for Fiscal 2009 and Fiscal 2008, respectively.

Net Income

Net income was $270.4 million, or $2.83 per diluted share, for Fiscal 2009, as compared to $238.0 million, or $2.49 per diluted share, for Fiscal 2008. As a percentage of net sales, net income for Fiscal 2009 was 5.0%, as compared to 4.6% for Fiscal 2008. The increase in diluted earnings per share was primarily due to growth in our operating income.


Quarterly Consolidated Financial Results (in thousands, except per share data)

   
16-Weeks
   
12-Weeks
   
12-Weeks
   
12-Weeks
   
16-Weeks
   
12-Weeks
   
12-Weeks
   
12-Weeks
 
   
Ended
   
Ended
   
Ended
   
Ended
   
Ended
   
Ended
   
Ended
   
Ended
 
   
4/25/2009
   
7/18/2009
   
10/10/2009
   
1/2/2010
   
4/24/2010
   
7/17/2010
   
10/9/2010
   
1/1/2011
 
Net sales
  $ 1,683,636     $ 1,322,844     $ 1,262,576     $ 1,143,567     $ 1,830,606     $ 1,417,956     $ 1,406,511     $ 1,270,130  
Gross profit
    821,988       652,650       621,459       548,129       910,777       715,268       707,785       627,485  
Net income
    93,585       80,330       61,979       34,479       109,431       100,911       87,598       48,113  
                                                                 
Net income per share:
                                                               
        Basic
  $ 0.99     $ 0.84     $ 0.65     $ 0.37     $ 1.20     $ 1.18     $ 1.04     $ 0.58  
        Diluted
  $ 0.98     $ 0.83     $ 0.65     $ 0.36     $ 1.19     $ 1.16     $ 1.03     $ 0.57  

Liquidity and Capital Resources

Overview of Liquidity

Our primary cash requirements to maintain our current operations include payroll and benefits, the purchase of inventory, contractual obligations and capital expenditures as well as the payment of quarterly cash dividends and income tax payments. In addition, we have used available funds to repay borrowings under our revolving credit facility and periodically repurchase shares of our common stock under our stock repurchase program. We have funded these requirements primarily through cash generated from operations, supplemented by borrowings under our credit facilities as needed. We believe funds generated from our   expected   results of   operations, available cash and cash equivalents, and available borrowings under our revolving credit facility will be sufficient to fund our primary obligations for the next fiscal year.

At January 1, 2011, our cash and cash equivalents balance was $59.2 million, a decrease of $40.8 million compared to January 2, 2010 (the end of Fiscal 2009). This decrease in cash primarily resulted from the use of our available cash from operations and long-term borrowings to purchase property and equipment and repurchase shares of our common stock. Additional discussion of our cash flow results, including the comparison of Fiscal 2010 activity to Fiscal 2009, is set forth in the Analysis of Cash Flows section.

At January 1, 2011, our outstanding indebtedness was $301.8 million, or $97.6 million higher when compared to January 2, 2010, and consisted of borrowings of $298.8 million under our senior unsecured notes, $2.6 million outstanding on an economic development note and $0.4 million outstanding under other financing arrangements. Additionally, we had $92.6 million in letters of credit outstanding, which reduced our total availability under our revolving credit facility to $657.4 million. The letters of credit serve as collateral for our self-insurance policies and our routine purchases of imported merchandise.



Capital Expenditures

Our primary capital requirements have been the funding of our continued new store openings, store relocations, maintenance of existing stores, the construction and upgrading of distribution centers, and the development of both proprietary and purchased information systems. Our capital expenditures were $199.6 million in Fiscal 2010, or $6.7 million more than Fiscal 2009. During Fiscal 2010, we opened 110 AAP stores and 38 AI stores, remodeled 9 AAP stores and relocated 9 AAP and 3 AI stores.

Our future capital requirements will depend in large part on the number of and timing for new stores we open within a given year and the investments we make in information technology and supply chain networks. We anticipate adding approximately 110 to 120 AAP and 10 to 20 AI stores and closing approximately 10 total stores during Fiscal 2011. We expect to relocate and remodel existing stores only in the normal course of business.

We also plan to make continued investments in the maintenance of our existing stores and supply chain network and to invest in new information systems to support our key strategies. In Fiscal 2011, we anticipate that our capital expenditures will be approximately $275.0 million to $300.0 million. The increase in capital expenditures over Fiscal 2010 will be primarily driven by supply chain investments as part of our Superior Availability strategy. These expenditures include a new warehouse management system and costs associated with the completion of our Remington, IN distribution center scheduled to open in late 2011.

Stock Repurchase Program

Our stock repurchase program allows us to repurchase our common stock on the open market or in privately negotiated transactions from time to time in accordance with the requirements of the SEC.

During Fiscal 2010, we repurchased an aggregate of 13.0 million shares of our common stock at a cost of $633.9 million, or an average price of $48.67 per share. Of these, we repurchased 2.7 million shares at a cost of $178.4 million under our $300 million stock repurchase program authorized by our Board of Directors on August 10, 2010, and 10.3 million shares at a cost of $455.5 million under our $500 million stock repurchase program authorized by our Board of Directors on February 16, 2010. At January 1, 2011, we had $121.6 million remaining under the $300 million stock repurchase program.

At January 1, 2011, 0.2 million shares repurchased during Fiscal 2010 at a cost of $15.0 million had not settled.  These shares settled subsequent to January 1, 2011.

Additionally, we repurchased 0.1 million shares of our common stock at an aggregate cost of $3.5 million in connection with the net settlement of shares issued as a result of the vesting of restricted stock.

Subsequent to January 1, 2011, we repurchased 1.9 million shares of our common stock at an aggregate cost of $121.6 million, or an average price of $62.72 per share, which completed the availability under our $300 million stock repurchase program. On February 8, 2011 our Board of Directors authorized a new $500 million stock repurchase program.

Dividend

Our Board of Directors has approved the payment of quarterly dividends of $0.06 per share to stockholders of record since Fiscal 2006. Subsequent to January 1, 2011, our Board of Directors declared a quarterly dividend of $0.06 per share to be paid on April 8, 2011 to all common stockholders of record as of March 25, 2011.

Other Liquidity

During the last two years, we have transitioned certain of our merchandise vendors from a vendor financing program to a customer-managed services arrangement, or vendor program. Under this vendor program, a third party provides an accounts payable tracking system which facilitates the participating suppliers’ ability to finance our payment obligations with designated third-party financial institutions. Participating suppliers may, at their sole discretion, make offers to participating financial institutions to finance one or more of our payment obligations prior
 
 
to their scheduled due dates at a discounted price. Our obligations to suppliers, including amounts due and scheduled payment dates, are not impacted by suppliers’ decisions to finance our accounts payable due to them under this arrangement. Our goal in entering into this arrangement is to capture overall supply chain savings in the form of pricing, payment terms or vendor funding, created by facilitating our suppliers’ ability to finance payment obligations at more favorable discount rates, while providing them with greater working capital flexibility.

Any deterioration in the credit markets could adversely impact our ability to secure funding for any of these programs, which would reduce our anticipated savings, including but not limited to, causing us to increase our borrowings under our revolving credit facility.

Analysis of Cash Flows

A summary and analysis of our cash flows for Fiscal 2010, 2009 and 2008 is reflected in the table and following discussion.

   
Fiscal Year
 
   
2010
   
2009
   
2008
 
   
(in millions)
 
Cash flows from operating activities
  $ 666.2     $ 699.7     $ 478.7  
Cash flows from investing activities
    (199.4 )     (185.5 )     (181.6 )
Cash flows from financing activities
    (507.6 )     (451.5 )     (274.4 )
Net (decrease) increase in cash and
                       
   cash equivalents
  $ (40.8 )   $ 62.7     $ 22.7  

Operating Activities

For Fiscal 2010, net cash provided by operating activities decreased $33.5 million to $666.2 million. This net decrease in operating cash flow was driven primarily by:

·  
a $72.3 million decrease in cash flows from inventory, net of accounts payable, primarily due to the Fiscal 2009 addition of certain vendors to our vendor program partially offset by an increase in our accounts payable ratio in Fiscal 2010;
·  
a $26.1 million decrease in deferred income taxes; and
·  
a $21.2 million decrease in cash flows resulting from routine fluctuations in other working capital.
 
Partially offsetting the decrease in cash flows was an increase in net income of $75.7 million.

For Fiscal 2009, net cash provided by operating activities increased $221.0 million over the prior year to $699.7 million. This net increase in operating cash was driven primarily by:

·  
a $32.3 million increase in net income, $23.6 million of which represented a non-cash inventory adjustment in Fiscal 2008 (net of tax);
·  
a $69.3 million increase in deferred income taxes;
·  
a $194.5 million increase in cash flows from inventory, net of accounts payable, reflective of our slow down in inventory growth combined with the addition of vendors to our new vendor program (this increase is partially offset by the reduction of financed vendor accounts payable included under Financing Activities as a result of our vendor program transition); and
·  
a $56.6 million decrease in cash flows resulting from an increase in other working capital, including a $64.0 million decrease in cash flows resulting from the timing of the payment of accrued operating expenses.



Investing Activities

For Fiscal 2010, net cash used in investing activities increased by $13.8 million to $199.4 million. The increase in cash used was primarily due to an increase in new store development expenditures, information technology investments, and a decrease in proceeds from sales of property and equipment.

For Fiscal 2009, net cash used in investing activities increased by $3.9 million over the prior year to $185.5 million. The increase in cash used was primarily due to an increase in routine spending on our existing stores and information technology investments, partially offset by fewer stores opened and the timing of store development expenditures.

Financing Activities

For Fiscal 2010, net cash used in financing activities increased by $56.1 million to $507.6 million. Cash used in financing activities increased as result of a $522.4 million increase in the repurchase of common stock under our stock repurchase programs. This was partially offset by a decrease in cash provided by financing activities as a result of:

·  
a decrease of $345.7 million in net debt payments, comprised of $251.5 million of net debt repayments made in Fiscal 2009 and payoff of our $200.0 million term loan in Fiscal 2010 partially offset by proceeds from the issuance of $294.2 million in senior unsecured notes in Fiscal 2010, net of debt related costs; and
·  
a $103.9 million decrease in cash flow from financed vendor accounts payable (is primarily offset in operating activities above as a result of the our vendor program transition in Fiscal 2009).

For Fiscal 2009, net cash used in financing activities increased by $177.1 million over the prior year to $451.5 million. Cash used in financing activities increased as result of:

·  
a $202.0 million increase in net debt repayments, primarily under our revolving credit facility; and
·  
a $87.1 million decrease in financed vendor accounts payable driven by the transition of our vendors from our vendor financing program to our vendor program.

This increase was partially offset by a decrease in cash used in financing activities as a result of a decrease of $119.4 million in repurchases of common stock under our stock repurchase program.

Long Term Debt

Senior Unsecured Notes

On April 29, 2010, we sold $300 million aggregate principal amount of 5.75% senior unsecured notes due May 1, 2020, or the Notes, at a public offering price of 99.587% of the principal amount per note. We served as the issuer of the Notes with each of our domestic subsidiaries serving as subsidiary guarantors. The terms of the Notes are governed by an indenture and supplemental indenture (which we refer to collectively as the Indenture), dated as of April 29, 2010, among us, the subsidiary guarantors and Wells Fargo Bank, National Association, as Trustee.

The net proceeds from the offering of the Notes were approximately $294.2 million, after deducting underwriting discounts and commissions and offering expenses of $4.6 million payable by us.  We used the net proceeds from this offering to repay indebtedness outstanding under our revolving credit facility and term loan. Amounts repaid under our revolving credit facility may be reborrowed from time to time for operational purposes, working capital needs, capital expenditures and other general corporate purposes. As of January 1, 2011, we had $298.8 million outstanding under our Notes.

The Notes bear interest at a rate of 5.75% per year payable semi-annually in arrears on May 1 and November 1 of each year, commencing on November 1, 2010. We may redeem some or all of the Notes at any time or from time to time, at the redemption price described in the Indenture. In addition, in the event of a Change of Control Triggering Event (as defined in the Indenture), we will be required to offer to repurchase the Notes at a price equal to 101% of the principal amount thereof, plus accrued and unpaid interest to the repurchase date. The Notes are currently fully and unconditionally guaranteed, jointly and severally, on an unsubordinated and unsecured basis by
 
 
each of the subsidiary guarantors. We will be permitted to release guarantees without the consent of holders of the Notes under the circumstances described in the Indenture.

The Indenture contains customary provisions for events of default including for (i) failure to pay principal or interest when due and payable, (ii) failure to comply with covenants or agreements in the Indenture or the Notes and failure to cure or obtain a waiver of such default upon notice, (iii) a default under any debt for money borrowed by us or any of our subsidiaries that results in acceleration of the maturity of such debt, or failure to pay any such debt within any applicable grace period after final stated maturity, in an aggregate amount greater than $25.0 million without such debt having been discharged or acceleration having been rescinded or annulled within 10 days after receipt by us of notice of the default by the Trustee or holders of not less than 25% in aggregate principal amount of the Notes then outstanding, and (iv) events of bankruptcy, insolvency or reorganization affecting us and certain of our subsidiaries. In the case of an event of default, the principal amount of the Notes plus accrued and unpaid interest may be accelerated. The Indenture also contains covenants limiting the ability of us and our subsidiaries to incur debt secured by liens and to enter into sale and lease back transactions.

Bank Debt

We have a $750 million unsecured five-year revolving credit facility with our wholly-owned subsidiary, Advance Stores Company, Incorporated, or Stores, serving as the borrower. In connection with the offering of the Notes, we also amended our revolving credit facility to add all of our domestic subsidiaries as guarantors. The subsidiary guarantees related to our revolving credit facility and Notes are full and unconditional and joint and several. The revolving credit facility also provides for the issuance of letters of credit with a sub limit of $300 million, and swingline loans in an amount not to exceed $50 million. We may request, subject to agreement by one or more lenders, that the total revolving commitment be increased by an amount not exceeding $250 million (up to a total commitment of $1 billion) during the term of the credit agreement. Voluntary prepayments and voluntary reductions of the revolving balance are permitted in whole or in part, at our option, in minimum principal amounts as specified in the revolving credit facility. The revolving credit facility matures on October 5, 2011.

As of January 1, 2011, we had no amount outstanding under our revolving credit facility. We had letters of credit outstanding of $92.6 million, which reduced the availability under the revolving credit facility to $657.4 million. (The letters of credit generally have a term of one year or less.) A commitment fee is charged on the unused portion of the revolving credit facility, payable in arrears. The current commitment fee rate is 0.125% per annum.

Subsequent to January 1, 2011, we borrowed against our revolving credit facility due to the repurchases of our common stock and seasonality of our business. As of February 26, 2011 we had $145.0 million outstanding under our revolving credit facility. Our remaining availability under our revolving credit facility was $512.4 million.

Our revolving credit facility contains covenants restricting our ability to, among other things:  (1) create, incur or assume additional debt (including hedging arrangements), (2) incur liens or engage in sale-leaseback transactions, (3) make loans and investments, (4) guarantee obligations, (5) engage in certain mergers, acquisitions and asset sales, (6) change the nature of our business and the business conducted by our subsidiaries and (7) change our status as a holding company. We are also required to comply with financial covenants with respect to a maximum leverage ratio and a minimum consolidated coverage ratio. We were in compliance with these covenants at January 1, 2011 and January 2, 2010. Our revolving credit facility also provides for customary events of default, covenant defaults and cross-defaults to our other material indebtedness.

The interest rate on borrowings under the revolving credit facility is based, at our option, on an adjusted LIBOR rate, plus a margin, or an alternate base rate, plus a margin. The current margin is 0.625% and 0.0% per annum for the adjusted LIBOR and alternate base rate borrowings, respectively. Under the terms of the revolving credit facility, the interest rate and commitment fee are based on our credit rating.

As of January 1, 2011, we had fully repaid all amounts which had been outstanding under our unsecured four-year term loan with proceeds from the above mentioned Notes offering.



Other

As of January 1, 2011, we had $3.0 million outstanding under an economic development note and other financing arrangements.

As of January 1, 2011, we had a credit rating from Standard & Poor’s of BBB- and from Moody’s Investor Service of Baa3. The current outlooks by Standard & Poor’s and Moody’s are both stable. The current pricing grid used to determine our borrowing rate under our revolving credit facility is based on our credit ratings. If these credit ratings decline, our interest rate on outstanding balances may increase. Conversely, if these credit ratings improve, our interest rate may decrease. In addition, if our credit ratings decline, our access to financing may become more limited.

Off-Balance-Sheet Arrangements

As of January 1, 2011, we had no off-balance-sheet arrangements as defined in Regulation S-K Item 303 of the SEC regulations. We include other off-balance-sheet arrangements in our contractual obligations table including operating lease payments, interest payments on our credit facility and letters of credit outstanding.

Contractual Obligations

In addition to our Notes and revolving credit facility, we utilize operating leases as another source of financing. The amounts payable under these operating leases are included in our schedule of contractual obligations. Our future contractual obligations related to long-term debt, operating leases and other contractual obligations at January 1, 2011 were as follows:

         
Payments Due by Period
 
         
Less than
               
More Than
 
Contractual Obligations
 
Total
   
1 Year
   
1 - 3 Years
   
3 - 5 Years
   
5 Years
 
    (in thousands)  
Long-term debt (1)
  $ 301,824     $ 973     $ 1,502     $ 525     $ 298,824  
Interest payments (2)
    182,028       26,689       34,577       34,512       86,250  
Operating leases (3)
    2,089,874       297,315       505,253       399,598       887,708  
Other long-term liabilities (4)
    165,943       -       -       -       -  
    $ 2,739,669     $ 324,977     $ 541,332     $ 434,635     $ 1,272,782  

Note: For additional information refer to Note 6, Long-term Debt ; Note 14, Income Taxes ; Note 15, Lease Commitments ; Note 16, Store Closures and Impairment ; Note 17, Contingencies ; and Note 18, Benefit Plans , in the Notes to Consolidated Financial Statements, included in Item 15, Exhibits, Financial Statement Schedules, of this Annual Report on Form 10-K.

(1)   
Long-term debt represents primarily the principal amount due under our 5.75% Notes, which become due in Fiscal 2020.
(2)   
Interest payments in Fiscal 2011 include $9,357 in net payments related to our interest rate swaps which mature in October 2011.
(3)   
We lease certain store locations, distribution centers, office space, equipment and vehicles. Our property leases generally contain renewal and escalation clauses and other concessions. These provisions are considered in our calculation of our minimum lease payments which are recognized as expense on a straight-line basis over the applicable lease term. Any lease payments that are based upon an existing index or rate are included in our minimum lease payment calculations.
(4)   
Primarily includes deferred income taxes,  self-insurance liabilities, unrecognized income tax benefits, closed store liabilities and obligations for employee benefit plans for which no contractual payment schedule exists and we expect the payments to occur beyond 12 months from January 1, 2011. Accordingly, the related balances have not been reflected in the "Payments Due by Period" section of the table.



Critical Accounting Policies
 
 
Our financial statements have been prepared in accordance with accounting policies generally accepted in the United States of America. Our discussion and analysis of the financial condition and results of operations are based on these financial statements. The preparation of these financial statements requires the application of accounting policies in addition to certain estimates and judgments by our management. Our estimates and judgments are based on currently available information, historical results and other assumptions we believe are reasonable. Actual results could differ materially from these estimates.

The preparation of our financial statements included the following significant estimates and exercise of judgment.

Vendor Incentives

We receive incentives in the form of reductions to amounts owed and/or payments from vendors related to cooperative advertising allowances, volume rebates and other promotional considerations. Many of these incentives are under long-term agreements (terms in excess of one year), while others are negotiated on an annual basis or less (short-term). Both cooperative advertising allowances and volume rebates are earned based on inventory purchases and initially recorded as a reduction to inventory. These deferred amounts are included as a reduction to cost of sales as the inventory is sold since these payments do not represent reimbursements for specific, incremental and identifiable costs. Total deferred vendor incentives included in inventory was $72.0 million and $46.3 million at January 1, 2011 and January 2, 2010, respectively.

Similarly, we recognize other promotional incentives earned under long-term agreements as a reduction to cost of sales. However, these incentives are recognized based on the cumulative net purchases as a percentage of total estimated net purchases over the life of the agreement. Our margins could be impacted positively or negatively if actual purchases or results from any one year differ from our estimates; however, the impact over the life of the agreement would be the same. Short-term incentives (terms less than one year) are generally recognized as a reduction to cost of sales over the duration of any short-term agreements.

Amounts received or receivable from vendors that are not yet earned are reflected as deferred revenue. Management's estimate of the portion of deferred revenue that will be realized within one year of the balance sheet
date is included in Other current liabilities. Earned amounts that are receivable from vendors are included in Receivables, net except for that portion expected to be received after one year, which is included in Other assets, net.

Inventory Reserves

Our inventory reserves consist of reserves for projected losses related to shrink and for potentially excess and obsolete inventory. An increase (or decrease) to our inventory reserves is recorded as an increase (or decrease) to our cost of sales. Our inventory reserves for Fiscal 2010, 2009 and 2008 were $18.2 million, $28.5 million and $62.9 million, respectively.

Shrink may occur due to theft, loss or inaccurate records for the receipt of merchandise, among other things.
We establish reserves for estimated store shrink based on results of completed independent physical inventories, results from other targeted inventory counts and historical and current loss trends. We perform cycle counts in the distribution facilities throughout the year to measure actual shrink and to estimate reserve requirements.  If estimates of our shrink reserves are inaccurate based on the inventory counts, we may be exposed to losses or gains that could be material.
 
We establish reserves for potentially excess and obsolete inventories based on (i) current inventory levels, (ii) the historical analysis of product sales and (iii) current market conditions. We also provide reserves when less than full credit is expected from a vendor or when liquidating product will result in retail prices below recorded costs. At the end of Fiscal 2008, we reviewed our inventory productivity and changed our inventory management approach for slow moving inventory. As a result, we increased our reserve for excess and obsolete inventories by $34.1
 
 
million, and a related LIFO and warehousing cost impact of $3.4 million. This non-cash expense was presented as an increase to cost of goods sold in our Fiscal 2008 consolidated statement of operations. Following this change in inventory management approach, we have been more effectively managing slow moving inventory, and we intend to continue to utilize vendor return privileges when necessary.

Our total inventory reserves decreased by $10.3 million in Fiscal 2010 primarily due to the continued development of our physical inventory program combined with the increased emphasis on counting specific product categories to drive improved on-hand accuracy. The decrease in our inventory reserves in Fiscal 2009 was primarily related to the entire utilization of our reserve for slow moving inventory established in Fiscal 2008 in connection with the change in approach for slow moving inventory. Future changes by vendors in their policies or willingness to accept returns of excess inventory, changes in our inventory management approach for excess and obsolete inventory or failure by us to effectively manage the lifecycle of our inventory could require us to revise our estimates of required reserves and result in a negative impact on our consolidated statement of operations. A 10% difference in actual inventory reserves at January 1, 2011 would have affected net income by approximately $1.1 million for the fiscal year ended January 1, 2011.

Warranty Reserves

We offer limited warranties on certain products that range from 30 days to lifetime warranties; the warranty obligation on the majority of merchandise sold by us with a manufacturer’s warranty is borne by our vendors.  However, we have an obligation to provide customers free replacement of merchandise or merchandise at a prorated cost if under a warranty and not covered by the manufacturer.  Merchandise sold with warranty coverage by us primarily includes batteries but may also include other parts such as brakes and shocks.  We estimate and record a reserve for future warranty claims at the time of sale based on the historical return experience of the respective product sold. If claims experience differs from historical levels, revisions in our estimates may be required, which could have an impact on our consolidated statement of operations. To the extent vendors provide upfront allowances in lieu of accepting the obligation for warranty claims and the allowance is in excess of the related warranty expense, the excess is recorded as a reduction to cost of sales.

A 10% change in the warranty reserves at January 1, 2011 would have affected net income by approximately $2.3 million for the fiscal year ended January 1, 2011.

Self-Insurance Reserves

We are self-insured for general and automobile liability, workers' compensation and the health care claims of our Team Members, although we maintain stop-loss coverage with third-party insurers to limit our total liability exposure. Our self-insurance program started in 2001. Our self-insurance reserves for Fiscal 2010, 2009 and 2008 were $97.3 million, $93.7 million and $90.6 million, respectively. Generally, claims for automobile and general liability and workers’ compensation take several years to settle. The increase in our total self-insurance reserves has remained consistent over the last two years and is reflective of our continued growth, including an increase in total stores, team members and Commercial delivery vehicles.

Our self-insurance reserves consist of the estimated exposure for claims filed, claims incurred but not yet reported and projected future claims and is established using actuarial methods followed in the insurance industry and our historical claims experience. Specific factors include, but are not limited to, assumptions about health care costs, the severity of accidents and the incidence of illness and the average size of claims.

Effective January 1, 2011, we classified $50.3 million of our self-insurance liability as long-term because the timing of future payments is now more predictable based on the historical patterns and maturity of the program and is relied upon in determining the current portion of these liabilities. While we do not expect the amounts ultimately paid to differ significantly from our estimates, our self-insurance reserves and corresponding SG&A could be affected if future claim experience differs significantly from historical trends and actuarial assumptions. A 10% change in our self-insurance liabilities at January 1, 2011 would have affected net income by approximately $6.0 million for the fiscal year ended January 1, 2011.



Goodwill and Intangible Assets

We evaluate goodwill and indefinite-lived intangibles for impairment annually during our fiscal fourth quarter or whenever events or changes in circumstances indicate the carrying value of the goodwill or other intangible asset may not be recoverable. We complete our impairment evaluation by combining information from our internal valuation analyses by reporting units, considering other publicly available market information and using an independent valuation firm.  We determine fair value using widely accepted valuation techniques, including discounted cash flows and market multiple analyses. These types of analyses contain uncertainties because they require management to make assumptions as a marketplace participant would and to apply judgment to estimate industry economic factors and the profitability of future business strategies of our company and our reporting units. These assumptions and estimates are a major component of the derived fair value of our reporting units.  The margin of calculated fair value over the respective carrying value of our reporting units may not be indicative of the total company due to differences in the individual reporting units, including but not limited to size and projected growth.

It is our policy to conduct impairment testing based on our current business strategy in light of present industry and economic conditions, as well as our future expectations. We have not made any material changes in the accounting methodology we use to assess impairment loss during the past three fiscal years. We do not believe there is a reasonable likelihood there will be a material change in the future estimates or assumptions we use to test for impairment losses on goodwill. However, if actual results are not consistent with our estimates or assumptions, we may be exposed to an impairment charge that could be material. A 10% change in our total goodwill and intangible assets outstanding at January 1, 2011 would have affected net income by approximately $3.7 million for the fiscal year ended January 1, 2011.

Tax Reserves

The determination of our income tax liabilities is based upon the tax law, codes, regulations, pronouncements and court cases for the taxing jurisdictions in which we do business. Our income tax returns are periodically examined by those jurisdictions. These examinations include, among other things, auditing our filing positions, the timing of deductions and allocation of income among the various jurisdictions. At any particular time, multiple years are subject to examination by various taxing authorities.

In evaluating our income tax positions, we record a reserve when a tax benefit cannot be recognized and measured in accordance with the authoritative guidance on uncertain tax positions. These tax reserves are adjusted in the period actual developments give rise to such change. Those developments could be, but are not limited to: settlement of tax audits, expiration of the statute of limitations, the evolution of tax law, codes, regulations and court cases, along with varying applications of tax policy and administration within those jurisdictions.

These tax reserves contain uncertainties because management is required to make assumptions and apply judgment to estimate exposures associated with our various filing positions. Although management believes that the judgments and estimates are reasonable, actual results could differ and we may be exposed to gains or losses that could be material. To the extent that actual results differ from our estimates, the effective tax rate in any particular period could be materially affected. Favorable tax developments would be recognized as a reduction in our effective tax rate in the period of resolution. Unfavorable tax developments would require an increase in our effective tax rate and a possible use of cash in the period of resolution. A 10% change in the tax reserves at January 1, 2011 would have affected net income by approximately $1.2 million for the fiscal year ended January 1, 2011.

New Accounting Pronouncements

For a description of recently announced accounting standards, including the expected dates of adoption and estimated effects, if any, on our consolidated financial statements, see New Accounting Pronouncements in Note 2 to the Consolidated Financial Statements in this Report on Form 10-K.



Item 7A . Quantitative and Qualitative Disclosures about Market Risks.

On April 29, 2010, we issued $300 million of senior unsecured notes with an interest rate of 5.75% due in 2020 and repaid $275 million outstanding under our revolving credit facility and term loan with the proceeds from the notes offering. Our revolving credit facility currently remains in place and matures in October 2011. Therefore, we may be exposed to cash flow risk due to changes in LIBOR in the event we borrow under our revolving credit facility.

Historically we have used interest rate swaps to mitigate the impact that movements in LIBOR would have on the interest from our bank debt. As we have paid off our bank debt, these interest rate swaps now present their own exposure to movements in LIBOR.
 
The table below presents principal cash flows and related weighted average interest rates on our interest rate swaps outstanding at January 1, 2011, by expected maturity dates. The table includes the impact of the anticipated average pay and receive rates of our interest rate swaps through their maturity dates. Expected maturity dates approximate contract terms. Weighted average variable rates are based on implied forward rates in the yield curve at January 1, 2011. Implied forward rates should not be considered a predictor of actual future interest rates.

                                             
Fair
 
   
Fiscal
   
Fiscal
   
Fiscal
   
Fiscal
   
Fiscal
               
Market
 
   
2011
   
2012
   
2013
   
2014
   
2015
   
Thereafter
   
Total
   
Liability
 
   
(dollars in thousands)
 
                                                 
Interest rate swap:
                                               
                                                 
Variable to fixed (1)
  $ 275,000     $ -     $ -     $ -       -       -       275,000     $ 9,321  
Weighted average pay rate
    4.4 %     -       -       -       -       -       4.4 %     -  
Weighted average receive rate
    -       -       -       -       -       -       -       -  

 (1) Amounts presented may not be outstanding for the entire year.

Item 8 . Financial Statements and Supplementary Data.

See financial statements included in Item 15 “Exhibits, Financial Statement Schedules” of this annual report.

Item 9 . Changes in and Disagreements with Accountants on Accounting and Financial Disclosure.

None.



Item 9A . Controls and Procedures.

Disclosure Controls and Procedures

Disclosure controls and procedures are our controls and other procedures that are designed to ensure that information required to be disclosed by us in our reports that we file or submit under the Securities Exchange Act of 1934 is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed by us in our reports that we file or submit under the Securities Exchange Act of 1934 is accumulated and communicated to our management, including our principal executive officer and principal financial officer, as appropriate to allow timely decisions regarding required disclosure. Our management evaluated, with the participation of our principal executive officer and principal financial officer, the effectiveness of our disclosure controls and procedures as of the end of the period covered by this report in accordance with Rule 13a-15(b) under the Exchange Act.  Based on this evaluation, our principal executive officer and our principal financial officer have concluded that, as of the end of the period covered by this report, our disclosure controls and procedures were effective.

Management's Report on Internal Control over Financial Reporting

 Management’s Report on Internal Control over Financial Reporting is set forth in Part IV, Item 15 of this annual report.

Changes in Internal Control Over Financial Reporting

There were no changes in our internal control over financial reporting that occurred during the quarter ended January 1, 2011 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

Item 9B . Other Information.

None.



PART III

Item 10 .     Directors, Executive Officers and Corporate Governance.

For a discussion of our directors, executive officers and corporate governance, see the information set forth in the sections entitled “Proposal No. 1 – Election of Directors,” “Corporate Governance,” “Meetings and Committees of the Board,” “Information Concerning Our Executive Officers,” “Audit Committee Report,” and “Section 16(a) Beneficial Ownership Reporting Compliance” in our proxy statement for the 2011 annual meeting of stockholders to be filed with the SEC within 120 days after the end of the fiscal year ended January 1, 2011 (the “2011 Proxy Statement”), which is incorporated herein by reference.

Item 11 . Executive Compensation .

See the information set forth in the sections entitled “Meetings and Committees of the Board – Compensation Committee Interlocks and Insider Participation,” “Compensation Committee Report,” “Compensation Discussion and Analysis,” “Additional Information Regarding Executive Compensation” and “Non-Management Director Compensation” in the 2011 Proxy Statement, which is incorporated herein by reference.

Item 12 . Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters .
 
See the information set forth in the sections entitled “Equity Compensation Plan Information” and "Security Ownership of Certain Beneficial Owners and Management" in the 2011 Proxy Statement, which is incorporated herein by reference.

Item 13 . Certain Relationships and Related Transactions, and Director Independence .

See the information set forth in the sections entitled "Related-Party Transactions,” “Director Independence,” and “Committees of the Board” in the 2011 Proxy Statement, which is incorporated herein by reference.

Item 14 . Principal Accountant Fees and Services .

See the information set forth in the section entitled “2010 and 2009 Audit Fees” in the 2011 Proxy Statement, which is incorporated herein by reference.



 

Item 15 .     Exhibits, Financial Statement Schedules.
     
 
 
(a) (1)  Financial Statements
 
       
 
Audited Consolidated Financial Statements of Advance Auto Parts, Inc. and Subsidiaries for the years ended January 1, 2011, January 2, 2010 and January 3, 2009:
 
F-1
 
F-2
 
F-4
 
F-5
 
F-6
  Consolidated Statements of Cash Flows
F-7
  Notes to the Consolidated Financial Statements
F-9
       
  (2)  Financial Statement Schedules
 
       
  Report of Independent Registered Public Accounting Firm  
F-42
  Schedule I - Condensed Financial Information of the Registrant
F-43
  Schedule II - Valuation and Qualifying Accounts  
F-49
       
  (3)  Exhibits
 
       
  The Exhibit Index following the signatures for this report is incorporated herein by reference.  



MANAGEMENT’S REPORT ON INTERNAL CONTROL OVER
FINANCIAL REPORTING


Management of Advance Auto Parts, Inc. and its subsidiaries (collectively the “Company”) is responsible for establishing and maintaining adequate internal control over financial reporting as defined in Rule 13(a) – 15(f) under the Securities Exchange Act of 1934, as amended. The Company’s internal control over financial reporting is a process designed under the supervision of the Company’s principal executive officer and principal financial officer, and effected by the Company’s Board of Directors, management and other personnel, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of the Company’s financial statements for external purposes in accordance with accounting principles generally accepted in the United States of America.

Our internal control over financial reporting includes policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the Company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with accounting principles generally accepted in the United States of America, and that receipts and expenditures of the Company are being made only in accordance with authorizations of management and directors of the Company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the Company’s assets that could have a material effect on the financial statements.

As of January 1, 2011, management, including the Company’s principal executive officer and principal financial officer, assessed the effectiveness of the Company’s internal control over financial reporting based on the criteria established in Internal Control – Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). Based on this assessment, management has determined that the Company’s internal control over financial reporting as of January 1, 2011 is effective. Because of the inherent limitations of internal control over financial reporting, including the possibility of collusion or improper management override of controls, material misstatements due to error or fraud may not be prevented or detected on a timely basis.  Also, projections of any evaluation of the effectiveness of the internal control over financial reporting to future periods are subject to the risk that the controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

Deloitte & Touche LLP, the Company’s independent registered public accounting firm who audited the Company’s consolidated financial statements, has issued an attestation report on the Company’s internal control over financial reporting as of January 1, 2011 which is included on page F-3 herein.
 

 

/s/ Darren R. Jackson    /s/ Michael A. Norona  
Darren R. Jackson   Michael A. Norona  
Chief Executive Officer and Director
Executive Vice President and Chief Financial Officer
       
March 1, 2011




 
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

To the Board of Directors and Stockholders of
Advance Auto Parts, Inc. and Subsidiaries
Roanoke, Virginia

We have audited the accompanying consolidated balance sheets of Advance Auto Parts, Inc. and subsidiaries (the "Company") as of January 1, 2011 and January 2, 2010, and the related consolidated statements of operations, changes in stockholders’ equity, and cash flows for each of the three years in the period ended January 1, 2011. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits.

We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

In our opinion, such consolidated financial statements present fairly, in all material respects, the financial position of Advance Auto Parts, Inc. and subsidiaries as of January 1, 2011 and January 2, 2010, and the results of their operations and their cash flows for each of the three years in the period ended January 1, 2011, in conformity with accounting principles generally accepted in the United States of America.

We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the Company's internal control over financial reporting as of January 1, 2011, based on the criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission and our report dated March 1, 2011 expressed an unqualified opinion on the Company's internal control over financial reporting.


/s/ Deloitte & Touche LLP

Richmond, VA
March 1, 2011





REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

To the Board of Directors and Stockholders of
Advance Auto Parts, Inc. and Subsidiaries
Roanoke, Virginia

We have audited the internal control over financial reporting of Advance Auto Parts, Inc. and subsidiaries (the "Company") as of January 1, 2011 based on criteria established in Internal Control — Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission. The Company's management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting, included in the accompanying Management’s Report on Internal Control over Financial Reporting.   Our responsibility is to express an opinion on the Company's internal control over financial reporting based on our audit.

We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the design and operating effectiveness of internal control based on the assessed risk, and performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.

A company's internal control over financial reporting is a process designed by, or under the supervision of, the company's principal executive and principal financial officers, or persons performing similar functions, and effected by the company's board of directors, management, and other personnel to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company's internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company's assets that could have a material effect on the financial statements.

Because of the inherent limitations of internal control over financial reporting, including the possibility of collusion or improper management override of controls, material misstatements due to error or fraud may not be prevented or detected on a timely basis. Also, projections of any evaluation of the effectiveness of the internal control over financial reporting to future periods are subject to the risk that the controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
In our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of January 1, 2011, based on the criteria established in Internal Control — Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission.

We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated financial statements as of and for the year ended January 1, 2011 of the Company and our report dated March 1, 2011 expressed an unqualified opinion on those financial statements.


/s/ Deloitte & Touche LLP
 
Richmond, VA
March 1, 2011
 
 
 
ADVANCE  AUTO PARTS, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
January 1, 2011 and January 2, 2010
(in thousands, except per share data)
 
   
January 1,
   
January 2,
 
Assets
 
2011
   
2010
 
             
Current assets:
           
Cash and cash equivalents
  $ 59,209     $ 100,018  
Receivables, net
    124,227       92,560  
Inventories, net
    1,863,870       1,631,867  
Other current assets
    76,965       63,173  
          Total current assets
    2,124,271       1,887,618  
Property and equipment, net of accumulated depreciation of
               
$927,564 and $914,045
    1,143,170       1,100,338  
Assets held for sale
    1,472       1,492  
Goodwill
    34,387       34,387  
Intangible assets, net
    25,360       26,419  
Other assets, net
    25,557       22,709  
    $ 3,354,217     $ 3,072,963  
Liabilities and Stockholders' Equity
               
Current liabilities:
               
Current portion of long-term debt
  $ 973     $ 1,344  
Financed vendor accounts payable
    31,648       32,092  
Accounts payable
    1,292,113       966,274  
Accrued expenses
    404,086       393,060  
Other current liabilities
    119,229       73,257  
          Total current liabilities
    1,848,049       1,466,027  
Long-term debt
    300,851       202,927  
Other long-term liabilities
    165,943       121,644  
Commitments and contingencies
               
Stockholders' equity:
               
Preferred stock, nonvoting, $0.0001 par value,
               
   10,000 shares authorized; no shares issued or outstanding
    -       -  
Common stock, voting, $0.0001 par value, 200,000 shares authorized;
               
   105,682 shares issued and 81,956 outstanding at January 1, 2011
               
   and 104,251 shares issued and 93,623 outstanding at January 2, 2010
    11       10  
Additional paid-in capital
    456,645       392,962  
Treasury stock, at cost, 23,726 and 10,628 shares
    (1,028,612 )     (391,176 )
Accumulated other comprehensive loss
    (1,597 )     (6,699 )
Retained earnings
    1,612,927       1,287,268  
          Total stockholders' equity
    1,039,374       1,282,365  
    $ 3,354,217     $ 3,072,963  
 
The accompanying notes to the consolidated financial statements
are an integral part of these statements.
 

 
ADVANCE  AUTO PARTS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
For the Years Ended January 1, 2011, January 2, 2010 and January 3, 2009
(in thousands, except per share data)


   
Fiscal Years
 
   
2010
   
2009
   
2008
 
   
(52 weeks)
   
(52 weeks)
   
(53 weeks)
 
                   
Net sales
  $ 5,925,203     $ 5,412,623     $ 5,142,255  
Cost of sales, including purchasing and warehousing costs
    2,963,888       2,768,397       2,743,131  
         Gross profit
    2,961,315       2,644,226       2,399,124  
Selling, general and administrative expenses
    2,376,382       2,189,841       1,984,197  
         Operating income
    584,933       454,385       414,927  
Other, net:
                       
     Interest expense
    (26,861 )     (23,337 )     (33,729 )
     Other (expense) income, net
    (1,017 )     607       (506 )
         Total other, net
    (27,878 )     (22,730 )     (34,235 )
Income before provision for income taxes
    557,055       431,655       380,692  
Provision for income taxes
    211,002       161,282       142,654  
Net income
  $ 346,053     $ 270,373     $ 238,038  
                         
Basic earnings per share
  $ 4.00     $ 2.85     $ 2.51  
                         
Diluted earnings per share
  $ 3.95     $ 2.83     $ 2.49  
                         
Average common shares outstanding
    86,082       94,459       94,655  
                         
Average common shares outstanding - assuming dilution
    87,155       95,113       95,205  
 
The accompanying notes to the consolidated financial statements
are an integral part of these statements.

 
 
ADVANCE  AUTO PARTS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY
For the Years Ended January 1, 2011, January 2, 2010 and January 3, 2009
(in thousands)
 
   
Preferred Stock
   
Common Stock
   
Additional
Paid-in
   
Treasury Stock,
at cost
   
Accumulated
Other
Comprehensive
   
Retained
   
Total
Stockholders'
 
   
Shares
   
Amount
   
Shares
   
Amount
   
Capital
   
Shares
   
Amount
   
Income (Loss)
   
Earnings
   
Equity
 
Balance, December 29, 2007
    -     $ -       101,072     $ 10     $ 274,659       2,012     $ (74,644 )   $ (701 )   $ 824,471     $ 1,023,795  
Net income
                                                                    238,038       238,038  
Changes in net unrecognized other postretirement benefit costs, net of $52 tax
                                                            81               81  
Unrealized loss on hedge arrangement, net of $5,605 tax
                                                            (8,729 )             (8,729 )
   Comprehensive income
                                                                            229,390  
Issuance of shares upon the exercise of stock options
                    1,421               31,989                                       31,989  
Tax benefit from share-based compensation
                                    8,405                                       8,405  
Issuance of restricted stock, net of forfeitures
                    427                                                       -  
Amortization of restricted stock balance
                                    4,661                                       4,661  
Share-based compensation
                                    13,046                                       13,046  
Stock issued under employee stock purchase plan
                    80               2,801                                       2,801  
Treasury stock purchased
                                            6,136       (216,470 )                     (216,470 )
Cash dividends
                                                                    (22,881 )     (22,881 )
Other
                                    430                                       430  
Balance, January 3, 2009
    -     $ -       103,000     $ 10     $ 335,991       8,148     $ (291,114 )   $ (9,349 )   $ 1,039,628     $ 1,075,166  
Net income
                                                                    270,373       270,373  
Changes in net unrecognized other postretirement benefit costs, net of $246 tax
                                                            (384 )             (384 )
Unrealized gain on hedge arrangement, net of $1,815 tax
                                                            3,034               3,034  
   Comprehensive income
                                                                            273,023  
Issuance of shares upon the exercise of stock options
                    1,090               32,723                                       32,723  
Tax benefit from share-based compensation
                                    1,887                                       1,887  
Issuance of restricted stock, net of forfeitures
                    110                                                       -  
Amortization of restricted stock balance
                                    7,287                                       7,287  
Share-based compensation
                                    12,395                                       12,395  
Stock issued under employee stock purchase plan
                    51               2,010                                       2,010  
Treasury stock purchased
                                            2,480       (100,062 )                     (100,062 )
Cash dividends
                                                                    (22,733 )     (22,733 )
Other
                                    669                                       669  
Balance, January 2, 2010
    -     $ -       104,251     $ 10     $ 392,962       10,628     $ (391,176 )   $ (6,699 )   $ 1,287,268     $ 1,282,365  
Net income
                                                                    346,053       346,053  
Changes in net unrecognized other postretirement benefit costs, net of $282 tax
                                                            (439 )             (439 )
Amortization of unrecognized losses on interest rate swaps, net of $3,137 tax
                                                            5,541               5,541  
   Comprehensive income
                                                                            351,155  
Issuance of shares upon the exercise of stock options
                    1,328       1       33,944                                       33,945  
Tax benefit from share-based compensation
                                    5,259                                       5,259  
Issuance of restricted stock, net of forfeitures
                    62                                                       -  
Amortization of restricted stock balance
                                    9,514                                       9,514  
Share-based compensation
                                    12,797                                       12,797  
Stock issued under employee stock purchase plan
                    41               2,091                                       2,091  
Treasury stock purchased
                                            13,098       (637,436 )                     (637,436 )
Cash dividends
                                                                    (20,394 )     (20,394 )
Other
                                    78                                       78  
Balance, January 1, 2011
    -     $ -       105,682     $ 11     $ 456,645       23,726     $ (1,028,612 )   $ (1,597 )   $ 1,612,927     $ 1,039,374  
 
The accompanying notes to the consolidated financial statements
are an integral part of these statements.

 
ADVANCE  AUTO PARTS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
For the Years Ended January 1, 2011, January 2, 2010 and January 3, 2009
(in thousands)
 
   
Fiscal Years
 
   
2010
   
2009
   
2008
 
   
(52 weeks)
   
(52 weeks)
   
(53 weeks)
 
Cash flows from operating activities:
                 
Net income
  $ 346,053     $ 270,373     $ 238,038  
Adjustments to reconcile net income to net cash provided by
                       
operating activities:
                       
Depreciation and amortization
    164,437       150,917       146,580  
Share-based compensation
    22,311       19,682       17,707  
Loss on property and equipment, net
    6,534       8,975       2,232  
Other
    1,106       360       360  
Provision (benefit) for deferred income taxes
    40,503       66,622       (2,702 )
Excess tax benefit from share-based compensation
    (7,260 )     (3,219 )     (9,047 )
Inventory write-down for change in inventory management approach
    -       -       37,484  
Net (increase) decrease in:
                       
Receivables, net
    (31,667 )     4,643       (11,943 )
Inventories, net
    (232,003 )     (8,779 )     (130,657 )
Other assets
    (13,105 )     (15,694 )     (6,178 )
Net increase in:
                       
Accounts payable
    325,839       174,944       102,360  
Accrued expenses
    38,715       20,778       84,806  
Other liabilities
    4,696       10,088       9,699  
Net cash provided by operating activities
    666,159       699,690       478,739  
Cash flows from investing activities:
                       
Purchases of property and equipment
    (199,585 )     (192,934 )     (184,986 )
Proceeds from sales of property and equipment
    235       7,395       6,790  
Other
    -       -       (3,413 )
Net cash used in investing activities
    (199,350 )     (185,539 )     (181,609 )
Cash flows from financing activities:
                       
Increase (decrease) in bank overdrafts
    28       (11,060 )     (9,412 )
Decrease in financed vendor accounts payable
    (444 )     (104,294 )     (17,163 )
Issuance of senior unsecured notes
    298,761       -       -  
Payment of debt related costs
    (4,572 )     -       -  
Early extinguishment of debt
    (200,000 )     -       -  
Borrowings under credit facilities
    75,000       173,400       438,600  
Payments on credit facilities
    (75,000 )     (424,900 )     (488,100 )
Payments on note payable
    (704 )     (685 )     (666 )
Dividends paid
    (21,051 )     (22,803 )     (23,181 )
Proceeds from the issuance of common stock, primarily exercise
                       
of stock options
    36,113       35,402       35,220  
Excess tax benefit from share-based compensation
    7,260       3,219       9,047  
Repurchase of common stock
    (622,442 )     (100,062 )     (219,429 )
Other
    (567 )     292       658  
Net cash used in financing activities
    (507,618 )     (451,491 )     (274,426 )
Net (decrease) increase in cash and cash equivalents
    (40,809 )     62,660       22,704  
Cash and cash equivalents , beginning of period
    100,018       37,358       14,654  
Cash and cash equivalents , end of period
  $ 59,209     $ 100,018     $ 37,358  
 
The accompanying notes to the consolidated financial statements
are an integral part of these statements.

 
ADVANCE AUTO PARTS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS - (Continued)
For the Years Ended January 1, 2011, January 2, 2010 and January 3, 2009
(in thousands)
   
Fiscal Years
 
   
2010
   
2009
   
2008
 
                   
   
(52 weeks)
   
(52 weeks)
   
(53 weeks)
 
Supplemental cash flow information:
                 
Interest paid
  $ 15,782     $ 18,935     $ 27,224  
Income tax payments, net
    164,987       126,391       106,715  
Non-cash transactions:
                       
Accrued purchases of property and equipment
    43,365       28,838       26,299  
Repurchases of common stock not settled
    14,994       -       -  
Changes in other comprehensive income (loss)
    5,102       2,650       (8,648 )
Declared but unpaid cash dividends
    4,930       5,587       5,657  
 
The accompanying notes to the consolidated financial statements
are an integral part of these statements.


ADVANCE  AUTO PARTS, INC. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
January 1, 2011, January 2, 2010 and January 3, 2009
(in thousands, except per share data)
 
1. Organization and Description of Business:

Advance Auto Parts, Inc. (“Advance”) conducts all of its operations through its wholly owned subsidiary, Advance Stores Company, Incorporated (“Stores”) and its subsidiaries (collectively, the “Company”).  The Company operates 3,563 stores within the United States, Puerto Rico and the Virgin Islands. The Company operates 3,343 stores throughout 39 states in the Northeastern, Southeastern and Midwestern regions of the United States under the “Advance Auto Parts” trade name except for certain stores in the State of Florida which operate under the “Advance Discount Auto Parts” trade name. These stores offer a broad selection of brand name and proprietary automotive replacement parts, accessories and maintenance items for domestic and imported cars and light trucks to do-it-yourself, or DIY, and do-it-for-me, or Commercial, customers. The Company’s Commercial customers consist primarily of delivery customers as well as walk-in customers. For Commercial sales to delivery customers, the Company utilizes a fleet of vehicles to deliver product from its 3,018 store locations with delivery service to Commercial customers’ places of business, including independent garages, service stations and auto dealers. In addition, the Company operates 26 stores located in Puerto Rico and the Virgin Islands under the “Advance Auto Parts” and “Western Auto” trade names.  Autopart International (“AI”) is a subsidiary of Stores and operates 194 stores under the “Autopart International” trade name located throughout the Northeastern and Mid-Atlantic regions of the United States and Florida.

2. Summary of Significant Accounting Policies:

Accounting Period

The Company's fiscal year ends on the Saturday nearest the end of December, which results in an extra week every several years. Accordingly, our fiscal year ended January 3, 2009, or Fiscal 2008, included 53 weeks of operations. All other fiscal years presented included 52 weeks of operations.

Principles of Consolidation

The consolidated financial statements include the accounts of Advance and its wholly owned subsidiaries. All intercompany balances and transactions have been eliminated in consolidation.

Use of Estimates

The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ materially from those estimates.
 
Cash, Cash Equivalents and Bank Overdrafts
 
Cash and cash equivalents consist of cash in banks and money market funds with original maturities of three months or less. Included in cash equivalents are credit card and debit card receivables from banks, which generally settle within two to four business days. Credit and debit card receivables included in Cash and cash equivalents at January 1, 2011 and January 2, 2010 were $21,149 and $24,308, respectively. Bank overdrafts consist of outstanding checks not yet presented to a bank for settlement, net of cash held in accounts with right of offset. Bank overdrafts of $9,556 and $9,528 are included in Other current liabilities at January 1, 2011 and January 2, 2010, respectively.

Receivables

Receivables, net consist primarily of accounts receivables from vendors and commercial customers. Vendor receivables are recorded based on amounts owed by the Company’s suppliers as provided in incentive agreements and other overall terms of the Company’s purchase agreements. The Company provides an allowance for doubtful
 
 
F-9

 
ADVANCE AUTO PARTS, INC. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
January 1, 2011, January 2, 2010 and January 3, 2009
(in thousands, except per share data)
 
accounts based upon   factors related to the credit risk of specific customers or vendors, historical payment trends, current economic conditions and other relevant information regarding the debtor’s ability to pay.  The Company also extends credit to certain Commercial customers through a third-party provider of private label credit cards. Receivables under the private label credit card program are transferred to a third-party provider with the majority under no recourse.

Inventory

Inventory amounts are stated at the lower of cost or market. The cost of the Company’s merchandise inventory is determined using the last-in, first-out ("LIFO") method. Under the LIFO method, the Company’s cost of sales reflects the costs of the most recently purchased inventories, while the inventory carrying balance represents the costs relating to prices paid in prior years.

Vendor Incentives

The Company receives incentives in the form of reductions to amounts owed and/or payments from vendors related to cooperative advertising allowances, volume rebates and other promotional considerations. Many of these incentives are under long-term agreements (terms in excess of one year), while others are negotiated on an annual basis or less (short-term). Both cooperative advertising allowances and volume rebates are earned based on inventory purchases and initially recorded as a reduction to inventory. These deferred amounts are included as a reduction to cost of sales as the inventory is sold since these payments do not represent reimbursements for specific, incremental and identifiable costs. Total deferred vendor incentives included in Inventory, net was $71,999 and $46,294 at January 1, 2011 and January 2, 2010, respectively.

Similarly, the Company recognizes other promotional incentives earned under long-term agreements as a reduction to cost of sales. However, these incentives are recognized based on the cumulative net purchases as a percentage of total estimated net purchases over the life of the agreement. The Company's margins could be impacted positively or negatively if actual purchases or results from any one year differ from its estimates; however, the impact over the life of the agreement would be the same. Short-term incentives (terms less than one year) are generally recognized as a reduction to cost of sales over the duration of any short-term agreements.

Amounts received or receivable from vendors that are not yet earned are reflected as deferred revenue in the accompanying consolidated balance sheets. Management's estimate of the portion of deferred revenue that will be realized within one year of the balance sheet date has been included in Other current liabilities in the accompanying consolidated balance sheets. Total deferred revenue was $8,018 and $11,695 at January 1, 2011 and January 2, 2010, respectively. Earned amounts that are receivable from vendors are included in Receivables, net except for that portion expected to be received after one year, which is included in Other assets, net on the accompanying consolidated balance sheets.

Preopening Expenses

Preopening expenses, which consist primarily of payroll and occupancy costs related to the opening of new stores, are expensed as incurred.

Income Taxes

The Company accounts for income taxes under the asset and liability method which requires the recognition of deferred tax assets and liabilities for the expected future tax consequences of events that have been included in the financial statements. Under the asset and liability method, deferred tax assets and liabilities are determined based on the differences between the financial statements and tax basis of assets and liabilities using enacted tax rates in effect for the year in which the differences are expected to reverse. The effect of a change in tax rates on deferred tax assets and liabilities is recognized in income in the period of the enactment date.

 
F-10

 
ADVANCE AUTO PARTS, INC. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
January 1, 2011, January 2, 2010 and January 3, 2009
(in thousands, except per share data)
 
The Company recognizes tax benefits and/or tax liabilities for uncertain income tax positions based on a two-step process. The first step is to evaluate the tax position for recognition by determining if the weight of available evidence indicates that it is more likely than not that the position will be sustained on audit, including resolution of related appeals or litigation processes, if any. The second step requires the Company to estimate and measure the tax benefit as the largest amount that is more than 50% likely to be realized upon ultimate settlement. It is inherently difficult and subjective to estimate such amounts, as the Company must determine the probability of various possible outcomes.

The Company reevaluates these uncertain tax positions on a quarterly basis or when new information becomes available to management. The reevaluations are based on many factors, including but not limited to, changes in facts or circumstances, changes in tax law, successfully settled issues under audit, expirations due to statutes of limitations, and new federal or state audit activity. Any change in either the Company’s recognition or measurement could result in the recognition of a tax benefit or an increase to the tax accrual. 

The Company also follows guidance provided on derecognition of benefits, classification, interest and penalties, accounting in interim periods, disclosure and transition.  Refer to Note 15 for a further discussion of income taxes.

Advertising Costs

The Company expenses advertising costs as incurred. Gross advertising expense incurred was approximately $78,809, $65,431 and $75,321 in Fiscal 2010, 2009 and 2008, respectively.

Self-Insurance

The Company is self-insured for general and automobile liability, workers' compensation and health care claims of its employees, or Team Members, while maintaining stop-loss coverage with third-party insurers to limit its total liability exposure. Expenses associated with these liabilities are calculated for (i) claims filed, (ii) claims incurred but not yet reported and (iii) projected future claims using actuarial methods followed in the insurance industry as well as the Company’s historical claims experience. Effective January 1, 2011, the Company classified $50,292 of its total self-insurance reserve as long-term because the timing of future payments is now more predictable based on the historical patterns and maturity of the program and is relied upon in determining the current portion of these liabilities. The Company includes the current and long-term portions of its self-insurance reserve in Accrued expenses and Other long-term liabilities, respectively.

The following table presents changes in the Company’s total self-insurance reserves:

   
January 1,
   
January 2,
   
January 3,
 
   
2011
   
2010
   
2009
 
                   
Self-insurance reserves, beginning of period
  $ 93,706     $ 90,554     $ 85,523  
Additions to self-insurance reserves
    113,859       102,571       89,315  
Reserves utilized
    (110,495 )     (99,419 )     (84,284 )
Self-insurance reserves, end of period
  $ 97,070     $ 93,706     $ 90,554  

Warranty Liabilities

The warranty obligation on the majority of merchandise sold by the Company with a manufacturer’s warranty is the responsibility of the Company’s vendors.  However, the Company has an obligation to provide customers free replacement of merchandise or merchandise at a prorated cost if under a warranty and not covered by the manufacturer. Merchandise sold with warranty coverage by the Company primarily includes batteries but may also include other parts such as brakes and shocks. The Company estimates its warranty obligation at the time of sale based on the historical return experience, sales level and cost of the respective product sold. To the extent vendors provide upfront allowances in lieu of accepting the obligation for warranty claims and the allowance is in excess of

 
F-11

 
ADVANCE AUTO PARTS, INC. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
January 1, 2011, January 2, 2010 and January 3, 2009
(in thousands, except per share data)
 
the related warranty expense, the excess is recorded as a reduction to cost of sales.
 
Revenue Recognition

The Company recognizes revenue at the time the sale is made, and at which time the Company’s walk-in customers take immediate possession of the merchandise or same-day delivery is made to the Company’s commercial delivery customers. Sales are recorded net of discounts, sales taxes and estimated allowances. The Company estimates returns based on current sales levels and the Company’s historical return experience on a specific product basis. The Company’s reserve for sales returns and allowances was not material at January 1, 2011 and January 2, 2010.
 
Share-Based Payments

The Company provides share-based compensation to its employees and board of directors. The Company is required to exercise judgment and make estimates when determining the projected (i) fair value of each award granted and (ii) number of awards expected to vest. The Company uses the Black-Scholes option-pricing model to value all share-based awards at the date of grant and the straight-line method to amortize this fair value as compensation cost over the requisite service period.

Derivative Instruments and Hedging Activities
 
The Company’s accounting policy for derivative financial instruments is based on whether the instruments meet the criteria for designation as cash flow or fair value hedges. The criteria for designating a derivative as a hedge includes the assessment of the instrument’s effectiveness in risk reduction, matching of the derivative instrument to its underlying transaction and the probability that the underlying transaction will occur. For derivatives with cash flow hedge designation, the Company reports the after-tax gain or loss from the effective portion of the hedge as a component of accumulated other income (loss) and reclassifies it into earnings in the same period or periods in which the hedged transaction affects earnings, and within the same income statement line item as the impact of the hedged transaction. For derivatives with fair value hedge accounting designation, the Company would recognize gains or losses from the change in the fair value of these derivatives, as well as the offsetting change in the fair value of the underlying hedged item, in earnings.

Accumulated Other Comprehensive Income (Loss)

The purpose of reporting Accumulated comprehensive income (loss) is to report a measure of   all   changes   in   equity   of an   enterprise that result from transactions and other economic events   of   the   period. The changes in accumulated comprehensive income are reported as other comprehensive income   and refer to revenues, expenses, gains, and losses that are included in other comprehensive income but excluded from net income.

The Company’s Accumulated other comprehensive loss is comprised of the unamortized portion of the previously recorded unrecognized loss on interest rate swaps and the net unrealized gain associated with the Company’s postretirement benefit plan. The interest rate swaps, which mature in October 2011, are associated with bank debt which we repaid near the beginning of the second quarter of Fiscal 2010.

Goodwill and Other Intangible Assets

Goodwill is the excess of the purchase price over the fair value of identifiable net assets acquired in business combinations accounted for under the purchase method. The Company tests goodwill and indefinite-lived intangible assets for impairment annually as of the first day of the fiscal fourth quarter, or when indications of potential impairment exist. These indicators would include a significant change in operating performance, the business climate, legal factors, competition, or a planned sale or disposition of a significant portion of the business, among other factors.

 

 
 
F-12

 
ADVANCE AUTO PARTS, INC. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
January 1, 2011, January 2, 2010 and January 3, 2009
(in thousands, except per share data)
 
Testing for impairment is a two-step process. The first step is a review for potential impairment, while the second step measures the amount of impairment, if any. Under the first step, the Company compares the fair value of its reporting units with their respective carrying amounts, including goodwill. If the fair value of a reporting unit exceeds its carrying amount, goodwill of the reporting unit is considered not impaired and the second step of the impairment test is unnecessary. If the carrying amount of the reporting unit exceeds its fair value, the second step of the impairment test must be performed to measure the amount of impairment loss to be recognized, if any. An impairment loss is recognized when the fair value of goodwill or other intangible asset is below its carrying value.
 
Valuation of Long-Lived Assets

The Company evaluates the recoverability of its long-lived assets whenever events or changes in circumstances indicate that the carrying amount of an asset might not be recoverable and exceeds its fair value.

Significant factors, which would trigger an impairment review, include the following:

·  
Significant decrease in the market price of a long-lived asset (asset group);
·  
Significant changes in how assets are used or are planned to be used;
·  
Significant adverse change in legal factors or business climate, including adverse regulatory action;
·  
Significant negative industry trends;
·  
An accumulation of costs significantly in excess of the amount originally expected for the acquisition or construction of a long-lived asset (asset group);
·  
Significant changes in technology;
·  
A current-period operating or cash flow loss combined with a history of operating or cash flow losses, or a projection or forecast that demonstrates continuing losses associated with the use of a long-lived asset (asset group); or
·  
A current expectation that, more likely than not, a long-lived asset (asset group) will be sold or otherwise disposed of significantly before the end of its previously estimated useful life.

When such an event occurs, the Company estimates the undiscounted future cash flows expected to result from the use of the long-lived asset (asset group) and its eventual disposition. These impairment evaluations involve estimates of asset useful lives and future cash flows. If the undiscounted expected future cash flows are less than the carrying amount of the asset and the carrying amount of the asset exceeds its fair value, an impairment loss is recognized. When an impairment loss is recognized, the carrying amount of the asset is reduced to its estimated fair value based on quoted market prices or other valuation techniques (e.g., discounted cash flow analysis).

Financed Vendor Accounts Payable

The Company is party to a short-term financing program with a bank allowing it to extend its payment terms on certain merchandise purchases. The substance of the program is for the Company to borrow money from the bank to finance purchases from vendors.   The Company records any discount given by the vendor to its inventory and accretes this discount to the resulting short-term payable to the bank through interest expense over the extended term. At January 1, 2011 and January 2, 2010, $31,648 and $32,092, respectively, was payable to the bank by the Company under this program and is included in the accompanying consolidated balance sheets as Financed vendor accounts payable.

Earnings per Share

The Company uses the two-class method to calculate earnings per share. Under the two-class method, unvested share-based payment awards that contain non-forfeitable rights to dividends or dividend equivalents (whether paid or unpaid) are considered participating securities and are included in the computation of earnings per share. Certain of the Company’s shares granted to employees in the form of restricted stock are considered participating securities.

Accordingly, earnings per share is computed by dividing net income attributable to the Company’s common
 

 
F-13

 
ADVANCE AUTO PARTS, INC. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
January 1, 2011, January 2, 2010 and January 3, 2009
(in thousands, except per share data)
 
shareholders by the weighted-average common shares outstanding during the period. The two-class method is an earnings allocation formula that determines income per share for each class of common stock and participating security according to dividends declared and participation rights in undistributed earnings. Diluted income per common share reflects the more dilutive earnings per share amount calculated using the treasury stock method or the two-class method.
 
Basic earnings per share of common stock has been computed based on the weighted-average number of common shares outstanding during the period, which is reduced by stock held in treasury and shares of nonvested restricted stock. Diluted earnings per share of common stock reflects the weighted-average number of shares of common stock outstanding, outstanding deferred stock units and the impact of outstanding stock options, and stock appreciation rights (collectively “share-based awards”).  Share-based awards containing performance conditions are included in the dilution impact as those conditions are met.  Diluted earnings per share are calculated by including the effect of dilutive securities.

Lease Accounting

The Company leases certain store locations, distribution centers, office space, equipment and vehicles. Initial terms for facility leases are typically 10 to 15 years, with renewal options at five year intervals, and may include rent escalation clauses. The total amount of the minimum rent is expensed on a straight-line basis over the initial term of the lease unless external economic factors exist or become existent such that renewals are reasonably assured, in which case the Company would include the renewal period in its amortization period. In those instances, the renewal period would be included in the lease term for purposes of establishing an amortization period and determining if such lease qualified as a capital or operating lease. In addition to minimum fixed rental payments, some leases provide for contingent facility rentals. Contingent facility rentals are determined on the basis of a percentage of sales in excess of stipulated minimums for certain store facilities as defined in the individual lease agreements. Most of the leases provide that the Company pay taxes, maintenance, insurance and certain other expenses applicable to the leased premises. Management expects that in the normal course of business leases that expire will be renewed or replaced by other leases.

Property and Equipment

Property and equipment are stated at cost, less accumulated depreciation. Expenditures for maintenance and repairs are charged directly to expense when incurred; major improvements are capitalized. When items are sold or retired, the related cost and accumulated depreciation are removed from the account balances, with any gain or loss reflected in the consolidated statements of operations.

Depreciation of land improvements, buildings, furniture, fixtures and equipment, and vehicles is provided over the estimated useful lives, which range from 2 to 30 years, of the respective assets using the straight-line method. Depreciation of building and leasehold improvements is provided over the shorter of the original useful lives of the respective assets or the term of the lease using the straight-line method. The term of the lease is generally the initial term of the lease unless external economic factors exist such that renewals are reasonably assured, in which case the renewal period would be included in the lease term for purposes of establishing an amortization period.

Closed Store Liabilities

The Company continually reviews the operating performance of its existing store locations and closes or relocates certain stores identified as underperforming or delivering strategically or financially unacceptable results. Expenses pertaining to closed store exit activities are included in the Company’s closed store liabilities. Closed store liabilities include the present value of the remaining lease obligations and management’s estimate of future costs of insurance, property tax and common area maintenance expenses (reduced by the present value of estimated revenues from subleases and lease buyouts) and new provisions are established by a charge to selling, general and administrative expenses, or SG&A, in the accompanying consolidated statements of operations at the time the facilities actually close.

 
 

 
F-14

 
ADVANCE AUTO PARTS, INC. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
January 1, 2011, January 2, 2010 and January 3, 2009
(in thousands, except per share data)
 
From time to time closed store liability estimates require revisions, primarily due to changes in assumptions associated with revenue from subleases. The effect of changes in estimates for our closed store liabilities impact both our income statement and balance sheet: (i) they are included in SG&A in the accompanying consolidated statements of operations, and (ii) they are recorded in Accrued expenses (current portion) and Other long-term liabilities (long-term portion) in the accompanying consolidated balance sheets.

The Company also evaluates and determines if the results from the closure of store locations should be reported as discontinued operations based on the elimination of the operations and associated cash flows from the Company’s ongoing operations. The Company does not include in its evaluation of discontinued operations those operations and associated cash flows transferred to another store in the local market.

Cost of Sales and Selling, General and Administrative Expenses

The following table illustrates the primary costs classified in each major expense category:
 
Cost of Sales
   
SG&A
 
               
Total cost of merchandise sold including:
 
Payroll and benefit costs for retail and corporate
 
Freight expenses associated with moving
   
team members;
   
merchandise inventories from our vendors to
 
Occupancy costs of retail and corporate facilities;
   
our distribution center,
 
Depreciation related to retail and corporate assets;
 
Vendor incentives, and
 
Advertising;
 
Cash discounts on payments to vendors;
 
Costs associated with our commercial delivery
Inventory shrinkage;
   
program, including payroll and benefit costs,
Defective merchandise and warranty costs;
   
and transportation expenses associated with moving
Costs associated with operating our distribution
   
merchandise inventories from our retail stores to
 
network, including payroll and benefit costs,
   
our customer locations;
 
occupancy costs and depreciation; and
 
Self-insurance costs;
Freight and other handling costs associated with
 
Professional services;
 
moving merchandise inventories through our
 
Other administrative costs, such as credit card
 
supply chain
   
service fees, supplies, travel and lodging;
 
From our distribution centers to our retail
 
Closed store expenses; and
   
store locations, and
 
Impairment charges, if any.
 
From certain of our larger stores which stock a
       
   
wider variety and greater supply of inventory, or
       
   
HUB stores, and Parts Delivered Quickly warehouses,
     
   
or PDQ ® s, to our retail stores after the customer
       
   
has special-ordered the merchandise.
       

New Accounting Pronouncements

In January 2010, the Financial Accounting Standards Board, or FASB, issued ASU No. 2010-06 “Fair Value Measurements and Disclosures – Improving Disclosures about Fair Value Measurements.” ASU 2010-06 requires new disclosures for significant transfers in and out of Level 1 and 2 of the fair value hierarchy and the activity within Level 3 of the fair value hierarchy. The updated guidance also clarifies existing disclosures regarding the level of disaggregation of assets or liabilities and the valuation techniques and inputs used to measure fair value. The updated guidance is effective for interim and annual reporting periods beginning after December 15, 2009, with the exception of the new Level 3 activity disclosures, which are effective for interim and annual reporting periods beginning after December 15, 2010.  The adoption of the new Level 1 and 2 guidance had no impact on the Company’s consolidated financial statements. The adoption of the new Level 3 guidance is not expected to have a material impact on the Company’s consolidated financial statements.

 
 
 
 
ADVANCE AUTO PARTS, INC. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
January 1, 2011, January 2, 2010 and January 3, 2009
(in thousands, except per share data)
 
In December 2009, the FASB issued ASU No. 2009-16, “Transfers and Servicing (Topic 860) Accounting for Transfers of Financial Assets,” which amends the ASC for the issuance of SFAS No. 166, “Accounting for Transfers of Financial Assets – an amendment of FASB Statement No. 140.” The amendments in this ASU clarify the requirements for isolation and limitations on portions of financial assets that are eligible for sale accounting and r equire enhanced disclosures about the risks that a transferor continues to be exposed to because of its continuing involvement in transferred financial assets. ASU 2009-16 is effective for the Company’s fiscal year beginning after November 15, 2009. The adoption of ASU 2009-16 had no impact on the Company's financial statements.
 
3. Inventories, net:

Merchandise Inventory

The Company uses the LIFO method of accounting for approximately 95% of inventories at January 1, 2011 and January 2, 2010, respectively. The Company’s overall costs to acquire inventory for the same or similar products have generally decreased historically as the Company has been able to leverage its continued growth. Additionally, the Company’s inventory costs have decreased in recent years as a result of the Company’s execution of merchandise strategies and realization of supply chain efficiencies. As a result of utilizing LIFO, the Company recorded a reduction to cost of sales of $29,554 and $16,040 for Fiscal 2010 and Fiscal 2009, respectively. The Company recorded an increase to cost of sales of $12,555 for Fiscal 2008 primarily due to commodity inflation experienced in Fiscal 2008.

Product Cores

The remaining inventories are comprised of product cores, the non-consumable portion of certain parts and batteries, which are valued under the first-in, first-out ("FIFO") method. Product cores are included as part of the Company’s merchandise costs and are either passed on to the customer or returned to the vendor. Because product cores are not subject to frequent cost changes like the Company’s other merchandise inventory, there is no material difference when applying either the LIFO or FIFO valuation method.

Inventory Overhead Costs

Purchasing and warehousing costs included in inventory, at FIFO, at January 1, 2011 and January 2, 2010, were $103,989 and $104,761, respectively.

Inventory Balances and Inventory Reserves

Inventory balances at year-end for Fiscal 2010 and Fiscal 2009 were as follows:

   
January 1,
   
January 2,
 
   
2011
   
2010
 
Inventories at FIFO, net
  $ 1,737,059     $ 1,534,610  
Adjustments to state inventories at LIFO
    126,811       97,257  
Inventories at LIFO, net
  $ 1,863,870     $ 1,631,867  
 
Inventory quantities are tracked through a perpetual inventory system. The Company uses a cycle counting program in all distribution centers and PDQ ® s to ensure the accuracy of the perpetual inventory quantities of both merchandise and product core inventory. For our retail stores, the Company completes physical inventories in addition to other targeted inventory counts to ensure the accuracy of the perpetual inventory quantities of both merchandise and core inventory in these locations. The Company establishes reserves for estimated shrink based on results of completed physical inventories and other targeted inventory counts in its retail stores, results from recent cycle counts in its ditribution centers and historical and current loss trends.

 
 
 
 
ADVANCE AUTO PARTS, INC. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
January 1, 2011, January 2, 2010 and January 3, 2009
(in thousands, except per share data)
 
The Company also establishes reserves for potentially excess and obsolete inventories based on (i) current inventory levels, (ii) the historical analysis of product sales and (iii) current market conditions. The Company provides reserves when less than full credit is expected from a vendor or when liquidating product will result in retail prices below recorded costs. At the end of Fiscal 2008, the Company reviewed its inventory productivity and changed its inventory management approach for slow moving inventory. As a result, the Company increased its reserve for excess and obsolete inventories by $34,084, and a LIFO and warehousing cost impact of $3,400. With this change in inventory management approach, the Company has been more effectively managing its slow moving inventory and intends to continue utilizing vendor return privileges when necessary. During Fiscal 2009, the Company utilized substantially all of the reserve established in Fiscal 2008 for its change in approach for slow moving inventory.

The following table presents changes in the Company’s inventory reserves for years ended January 1, 2011, January 2, 2010 and January 3, 2009:
 
   
January 1,
   
January 2,
   
January 3,
 
   
2011
   
2010
   
2009
 
                   
Inventory reserves, beginning of period
  $ 28,486     $ 62,898     $ 35,565  
Additions to inventory reserves
    70,510       63,133       113,605  
Reserves utilized
    (80,846 )     (97,545 )     (86,272 )
Inventory reserves, end of period
  $ 18,150     $ 28,486     $ 62,898  

4. Goodwill and Intangible Assets:

Goodwill

The following table reflects the carrying amount of goodwill pertaining to the Company’s two segments, and the changes in goodwill carrying amounts, for the years ended January 1, 2011 and January 2, 2010, respectively:

   
AAP Segment
   
AI Segment
   
Total
 
                   
Balance at January 3, 2009
  $ 16,093     $ 18,510     $ 34,603  
Fiscal 2009 activity
    -       (216 )     (216 )
Balance at January 2, 2010
    16,093       18,294       34,387  
Fiscal 2010 activity
    -       -       -  
Balance at January 1, 2011
  $ 16,093     $ 18,294     $ 34,387  
 
AI recorded a reduction of $216 in Fiscal 2009 in connection with a previous acquisition of a small retail chain.

 

 
ADVANCE AUTO PARTS, INC. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
January 1, 2011, January 2, 2010 and January 3, 2009
(in thousands, except per share data)
 
 Intangible Assets Other Than Goodwill

The carrying amount and accumulated amortization of acquired intangible assets as of January 1, 2011 and January 2, 2010 are comprised of the following:
 
   
Acquired intangible assets
       
   
Subject to Amortization
   
Not Subject
to Amortization
       
   
Customer
Relationships
   
Other
   
Trademark and
Tradenames
   
Intangible
Assets, net
 
Gross:
                       
Gross carrying amount at January 3, 2009
  $ 9,800     $ 885     $ 20,550     $ 31,235  
Additions
    -       -       -       -  
Gross carrying amount at January 2, 2010
    9,800       885       20,550       31,235  
Additions
    -       -       -       -  
Gross carrying amount at January 1, 2011
  $ 9,800     $ 885     $ 20,550     $ 31,235  
                                 
Net:
                               
Net carrying amount at January 3, 2009
  $ 6,566     $ 451     $ 20,550     $ 27,567  
Additions
    -       -       -       -  
2009 amortization
    (1,023 )     (125 )     -       (1,148 )
Net carrying amount at January 2, 2010
    5,543       326       20,550       26,419  
Additions
    -       -       -       -  
2010 amortization
    (965 )     (94 )     -       (1,059 )
Net carrying amount at January 1, 2011
  $ 4,578     $ 232     $ 20,550     $ 25,360  
 
Amortization expense for Fiscal 2010, 2009 and 2008 was $1,059, $1,148, and $1,227, respectively.

Future Amortization Expense

The table below shows expected amortization expense for the next five years for acquired intangible assets recorded as of January 1, 2011:

Fiscal Year
 
Amount
 
2011
  $ 967  
2012
    967  
2013
    967  
2014
    967  
2015
    751  


 
 
ADVANCE AUTO PARTS, INC. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
January 1, 2011, January 2, 2010 and January 3, 2009
(in thousands, except per share data)
5. Receivables, net:
 
Receivables consist of the following:
 
   
January 1,
   
January 2,
 
   
2011
   
2010
 
             
Trade
  $ 17,371     $ 16,389  
Vendor
    105,082       79,006  
Other
    6,590       2,801  
Total receivables
    129,043       98,196  
Less:  Allowance for doubtful accounts
    (4,816 )     (5,636 )
Receivables, net
  $ 124,227     $ 92,560  

6.  Long-term Debt:

Long-term debt consists of the following:

   
January 1, 2011
   
January 2, 2010
 
Revolving facility at variable interest rates
           
due October 2011
  $ -     $ -  
Term loan at variable interest rates
               
(1.31% at January 2, 2010)
               
repaid April 2011 (1)
    -       200,000  
5.75% Senior Unsecured Notes
               
(net of unamortized discount of
               
$1,176 at January 1, 2011) due May 1, 2020
    298,824       -  
Other
    3,000       4,271  
      301,824       204,271  
Less: Current portion of long-term debt
    (973 )     (1,344 )
Long-term debt, excluding current portion
  $ 300,851     $ 202,927  
(1) The original maturity of the Term loan was October 2011.
               
 
At January 1, 2011, the aggregate future annual maturities of long-term debt instruments are as follows:

Fiscal Year
 
Amount
 
2011
  $ 973  
2012
    813  
2013
    689  
2014
    525  
2015
    -  
Thereafter
    298,824  
    $ 301,824  


 
ADVANCE AUTO PARTS, INC. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
January 1, 2011, January 2, 2010 and January 3, 2009
(in thousands, except per share data)

Senior Unsecured Notes

On April 29, 2010, the Company sold $300,000 aggregate principal amount of 5.75% senior unsecured notes due May 1, 2020, or the Notes, at a public offering price of 99.587% of the principal amount per note. The parent company, or Advance, served as the issuer of the Notes with each of Advance’s domestic subsidiaries serving as a subsidiary guarantor. The terms of the Notes are governed by an indenture and supplemental indenture (collectively the “Indenture”), dated as of April 29, 2010, among the Company, the subsidiary guarantors and Wells Fargo Bank, National Association, as Trustee.

The net proceeds from the offering of the Notes were $294,189, after deducting underwriting discounts and commissions and offering expenses of $4,572 (collectively “deferred financing costs”) payable by the Company. The Company is amortizing the deferred financing costs over the term of the Notes. The Company used the net proceeds from this offering to repay indebtedness outstanding under its revolving credit facility and term loan. Amounts repaid under the Company’s revolving credit facility may be reborrowed from time to time for operational purposes, working capital needs, capital expenditures and other general corporate purposes.

The Notes bear interest at a rate of 5.75% per year payable semi-annually in arrears on May 1 and November 1 of each year, commencing on November 1, 2010. The Company may redeem some or all of the Notes at any time or from time to time, at the redemption price described in the Indenture. In addition, in the event of a Change of Control Triggering Event (as defined in the Indenture), the Company will be required to offer to repurchase the notes at a price equal to 101% of the principal amount thereof, plus accrued and unpaid interest to the repurchase date. The Notes are currently fully and unconditionally guaranteed, jointly and severally, on an unsubordinated and unsecured basis by each of the subsidiary guarantors. The Company will be permitted to release guarantees without the consent of holders of the Notes under the circumstances described in the Indenture.

The Indenture contains customary provisions for events of default including for (i) failure to pay principal or interest when due and payable, (ii) failure to comply with covenants or agreements in the Indenture or the Notes and failure to cure or obtain a waiver of such default upon notice, (iii) a default under any debt for money borrowed by the Company or any of its subsidiaries that results in acceleration of the maturity of such debt, or failure to pay any such debt within any applicable grace period after final stated maturity, in an aggregate amount greater than $25,000 without such debt having been discharged or acceleration having been rescinded or annulled within 10 days after receipt by the Company of notice of the default by the Trustee or holders of not less than 25% in aggregate principal amount of the Notes then outstanding, and (iv) events of bankruptcy, insolvency or reorganization affecting the Company and certain of its subsidiaries. In the case of an event of default, the principal amount of the Notes plus accrued and unpaid interest may be accelerated. The Indenture also contains covenants limiting the ability of the Company and its subsidiaries to incur debt secured by liens and to enter into sale and lease-back transactions.

Bank Debt

The Company has a $750,000 unsecured five-year revolving credit facility with Stores serving as the borrower. The revolving credit facility also provides for the issuance of letters of credit with a sub-limit of $300,000, and swingline loans in an amount not to exceed $50,000. The Company may request, subject to agreement by one or more lenders, that the total revolving commitment be increased by an amount not exceeding $250,000 (up to a total commitment of $1,000,000) during the term of the credit agreement. Voluntary prepayments and voluntary reductions of the revolving balance are permitted in whole or in part, at the Company’s option, in minimum principal amounts as specified in the revolving credit facility. The revolving credit facility matures on October 5, 2011.

As of January 1, 2011, the Company had no amount outstanding under its revolving credit facility, and had letters of credit outstanding of $92,571, which reduced the availability under the revolving credit facility to $657,429. (The letters of credit generally have a term of one year or less.) A commitment fee is charged on the unused portion of the revolving credit facility, payable in arrears. The current commitment fee rate is 0.125% per annum.
 
 
 
ADVANCE AUTO PARTS, INC. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
January 1, 2011, January 2, 2010 and January 3, 2009
 
 
In connection with the offering of the Notes, the Company amended its revolving credit facility to add each of the Company’s domestic subsidiaries as guarantors. The subsidiary guarantees related to the Company’s revolving credit facility and Notes are full and unconditional and joint and several, and there are no restrictions on the ability of Advance to obtain funds from its subsidiaries. Also, Advance has no independent assets or operations, and the subsidiaries not guaranteeing the revolving credit facility and Notes are minor as defined by the SEC.

The Company’s revolving credit facility contains covenants restricting its ability to, among other things:  (1) create, incur or assume additional debt (including hedging arrangements), (2) incur liens or engage in sale-leaseback transactions, (3) make loans and investments, (4) guarantee obligations, (5) engage in certain mergers, acquisitions and asset sales, (6) change the nature of the Company’s business and the business conducted by its subsidiaries and (7) change Advance’s status as a holding company. The Company is also required to comply with financial covenants with respect to a maximum leverage ratio and a minimum consolidated coverage ratio. The Company was in compliance with these covenants at January 1, 2011 and January 2, 2010. The Company’s revolving credit facility also provides for customary events of default, covenant defaults and cross-defaults to its other material indebtedness.

The interest rate on borrowings under the revolving credit facility is based, at the Company’s option, on an adjusted LIBOR rate, plus a margin, or an alternate base rate, plus a margin. The current margin is 0.625% and 0.0% per annum for the adjusted LIBOR and alternate base rate borrowings, respectively. Under the terms of the revolving credit facility, the interest rate and commitment fee are based on the Company’s credit rating.

On April 29, 2010, the Company fully repaid the outstanding balance under its unsecured four-year term loan with proceeds from the offering of the senior unsecured notes.

Other

As of January 1, 2011, the Company had $3,000 outstanding under an economic development note and other financing arrangements.


7.  Derivative Instruments and Hedging Activities:

The Company had previously entered into interest rate swap agreements as a hedge to the variable rate interest payments on its bank debt.  Effective April 24, 2010, the Company’s outstanding interest rate swaps no longer qualified for hedge accounting as a result of the Company’s intent to pay off its bank debt with the proceeds from the offering of the Notes. Accordingly, the Company has recorded all subsequent changes in the fair value of the interest rate swaps through earnings and will amortize the previously recorded unrecognized loss in accumulated other comprehensive loss over the remaining life of the swaps which mature in October 2011. As of January 1, 2011, the Company had interest rate swaps with an aggregate notional value of $275,000 at rates ranging from 4.01% to 4.98%.

 
 
ADVANCE AUTO PARTS, INC. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
January 1, 2011, January 2, 2010 and January 3, 2009
(in thousands, except per share data)
 
The table below presents the fair value of the Company’s derivative financial instruments as well as their classification on the consolidated balance sheets as of January 1, 2011 and January 2, 2010:
 
 
Liability Derivatives
 
 
Balance Sheet
Location
 
Fair Value as of
January 1, 2011
   
Fair Value as of
January 2, 2010
 
Derivatives designated as hedging
             
instruments:
             
Interest rate swaps
Accrued expenses
  $ 9,321     $ 10,700  
Interest rate swaps
Other long-term liabilities
    -       6,644  
      $ 9,321     $ 17,344  
 
The table below presents the effect of the Company’s derivative financial instruments on the statement of operations for Fiscal 2010, 2009 and 2008, respectively:

Interest rate swaps
 
Amount of
Gain or
(Loss)
Recognized
in OCI on
Derivative,
net of tax
(Effective
Portion)
 
Location of Gain
or (Loss)
Reclassified from
Accumulated OCI
into Income
(Effective Portion)
 
Amount of
Gain or
(Loss)
Reclassified
from
Accumulated
OCI into
Income, net
of tax
(Effective
Portion)
 
Location of Gain or
(Loss) Recognized in
Income on Derivative
(Ineffective Portion
and Amount Excluded
from Effectiveness
Testing)
 
Amount of
Gain or
(Loss)
Recognized in
Income on
Derivative, net
of tax
(Ineffective
Portion and
Amount
Excluded from
Effectiveness
Testing)
 
                       
2010
  $ 597  
Interest expense
  $ (7,179 )
Other income (expense), net
  $ (1,174 )
                             
2009
  $ 3,034  
Interest expense
  $ (6,618 )
Other income (expense), net
  $ (130 )
                             
2008
  $ (8,729 )
Interest expense
  $ (2,152 )
Interest expense
  $ -  

8. Fair Value Measurements:

The Company’s financial assets and liabilities measured at fair value are grouped in three levels. The levels prioritize the inputs used to measure the fair value of these assets or liabilities. These levels are:

·  
Level 1 – Unadjusted quoted prices that are available in active markets for identical assets or liabilities at the measurement date.
·  
Level 2 – Inputs other than quoted prices that are observable for assets and liabilities at the measurement date, either directly or indirectly. These inputs include quoted prices for similar assets or liabilities in active markets, quoted prices for identical or similar assets or liabilities in markets that are less active, and inputs other than quoted prices that are observable for the asset or liability or corroborated by other observable market data.
·  
Level 3 – Unobservable inputs for assets or liabilities that are not able to be corroborated by observable market data and reflect the use of a reporting entity’s own assumptions.   These values are generally
 
 
 
ADVANCE AUTO PARTS, INC. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
January 1, 2011, January 2, 2010 and January 3, 2009
(in thousands, except per share data)

  
determined using pricing models for which the assumptions utilize management’s estimates of market participant assumptions.

Assets and Liabilities Measured at Fair Value on a Recurring Basis

The fair value hierarchy requires the use of observable market data when available. In instances where inputs used to measure fair value fall into different levels of the fair value hierarchy, the fair value measurement has been determined based on the lowest level input that is significant to the fair value measurement in its entirety. Our assessment of the significance of a particular item to the fair value measurement in its entirety requires judgment, including the consideration of inputs specific to the asset or liability.

The following table sets forth the Company’s financial liabilities that were measured at fair value on a recurring basis as of January 1, 2011 and January 2, 2010:
 
 
       
Fair Value Measurements at Reporting Date Using
 
         
Level 1
   
Level 2
   
Level 3
 
                         
   
Fair Value
   
Quoted Prices in
Active Markets for
Identical Assets
   
Significant Other
Observable Inputs
   
Significant
Unobservable
Inputs
 
                         
As of January 1, 2011
                       
Interest rate swaps
  $ 9,321     $ -     $ 9,321     $ -  
                                 
As of January 2, 2010
                               
Interest rate swaps
  $ 17,344     $ -     $ 17,344     $ -  
 
The fair values of our interest rate swaps represent the estimated amounts that the Company would receive or pay to terminate the agreements taking into consideration the difference between the contract rate of interest and rates currently quoted for agreements of similar terms and maturities (based on the forward yield curve).

The carrying amount of the Company’s cash and cash equivalents, accounts receivable, bank overdrafts, financed vendor accounts payable, accounts payable, accrued expenses and current portion of long term debt approximate their fair values due to the relatively short term nature of these instruments. As of January 1, 2011 and January 2, 2010, the fair value of the Company’s long-term debt with a carrying value of $300,851 and $202,927, respectively, was approximately $316,000 and $195,000, respectively.  The fair value of the Company’s senior unsecured notes was determined based on quoted market prices. The Company believes that the carrying value of its other long-term debt and certain long-term liabilities approximate fair value.

Non-Financial Assets and Liabilities Measured at Fair Value on a Non-Recurring Basis

Certain assets and liabilities are measured at fair value on a nonrecurring basis; that is, the assets and liabilities are not measured at fair value on an ongoing basis but are subject to fair value adjustments in certain circumstances (e.g., when there is evidence of impairment). At January 1, 2011, the Company had no significant non-financial assets or liabilities that had been adjusted to fair value subsequent to initial recognition. The Company recorded an impairment charge of $4,936 during Fiscal 2009 to reduce certain store assets in its store divestiture plan to their estimated fair value of zero. The fair values were determined based on the income approach, in which the Company utilized internal cash flow projections over the life of the underlying lease agreements discounted based on a risk-free rate of return. These measures of fair value, and related inputs, are considered a level 3 approach under the fair value hierarchy. There were no other changes related to level 3 assets.


 
ADVANCE AUTO PARTS, INC. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
January 1, 2011, January 2, 2010 and January 3, 2009
(in thousands, except per share data)

9.  Property and Equipment:

Property and equipment consists of the following:
 
 
Original
Useful Lives
 
January 1,
2011
   
January 2,
2010
 
Land and land improvements
0 - 10 years
  $ 330,962     $ 313,938  
Buildings
30 years
    376,268       363,992  
Building and leasehold improvements
3 - 30 years
    272,300       245,137  
Furniture, fixtures and equipment
2 - 20 years
    952,435       972,817  
Vehicles
2 - 10 years
    23,701       24,424  
Construction in progress
      103,605       82,837  
Other
      11,463       11,238  
        2,070,734       2,014,383  
Less - Accumulated depreciation
      (927,564 )     (914,045 )
Property and equipment, net
    $ 1,143,170     $ 1,100,338  
 
Depreciation expense was $163,378, $149,769 and $145,353 for Fiscal 2010, 2009 and 2008, respectively. The Company capitalized approximately $4,875, $4,657 and $2,388 incurred for the development of internal use computer software during Fiscal 2010, 2009 and 2008, respectively. These costs are included in the furniture, fixtures and equipment category above and are depreciated on the straight-line method over three to five years.

10.  Accrued Expenses:

Accrued expenses consist of the following:

   
January 1,
   
January 2,
 
   
2011
   
2010
 
Payroll and related benefits
  $ 106,843     $ 90,493  
Warranty reserves
    36,352       30,387  
Capital expenditures
    43,365       28,838  
Self-insurance reserves
    46,778       93,706  
Taxes payable
    55,662       54,861  
Other
    115,086       94,775  
Total accrued expenses
  $ 404,086     $ 393,060  
 
The following table presents changes in the Company’s warranty reserves:
 
   
January 1,
   
January 2,
   
January 3,
 
   
2011
   
2010
   
2009
 
                   
Warranty reserves, beginning of period
  $ 30,387     $ 28,662     $ 17,757  
Additions to warranty reserves
    45,741       36,440       38,459  
Reserves utilized
    (39,776 )     (34,715 )     (27,554 )
Warranty reserves, end of period
  $ 36,352     $ 30,387     $ 28,662  
 

 
 
ADVANCE AUTO PARTS, INC. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
January 1, 2011, January 2, 2010 and January 3, 2009
(in thousands, except per share data)
 
11.  Other Long-term Liabilities:

Other long-term liabilities consist of the following:

   
January 1,
   
January 2,
 
   
2011
   
2010
 
Deferred income taxes
  $ 51,117     $ 54,982  
Self-insurance reserves
    50,292       -  
Other
    64,534       66,662  
Total long-term liabilities
  $ 165,943     $ 121,644  

12.  Stock Repurchase Program:

The Company’s stock repurchase program allows it to repurchase its common stock on the open market or in privately negotiated transactions from time to time in accordance with the requirements of the SEC.

During Fiscal 2010, the Company repurchased an aggregate of 13,025 shares of its common stock at a cost of $633,911, or an average price of $48.67 per share. Of the total shares repurchased, the Company repurchased 2,746 shares at a cost of $178,436 under its $300,000 stock repurchase program authorized by its Board of Directors on August 10, 2010, and 10,279 shares at a cost of $455,475 under its $500,000 stock repurchase program authorized by its Board of Directors on February 16, 2010. At January 1, 2011, the Company had $121,564 remaining under the $300,000 stock repurchase program.
 
At January 1, 2011, 225 shares repurchased during Fiscal 2010 at a cost of $14,994 had not settled.  These shares settled subsequent to January 1, 2011.

Additionally, the Company repurchased 72 shares of its common stock at an aggregate cost of $3,525 in connection with the net settlement of shares issued as a result of the vesting of restricted stock.

During Fiscal 2009, the Company repurchased 2,467 shares of its common stock at an aggregate cost of $99,567, or an average price of $40.36 per share, under its $250,000 stock repurchase program leaving $89,406 remaining under this program at January 2, 2010. Since the inception of the $250,000 stock repurchase program, the Company repurchased 4,040 shares of its common stock at an aggregate cost of $160,594, or an average price of $39.75, excluding related expenses. Additionally, the Company repurchased 12 shares of its common stock in Fiscal 2009 at an aggregate cost of $495 in connection with the net settlement of shares issued from the lapse of restricted stock.

Subsequent to January 1, 2011, the Company repurchased 1,938 shares of its common stock at an aggregate cost of $121,562, or an average price of $62.72 per share, which completed the availability under its $300,000 stock repurchase program. On February 8, 2011 the Company’s Board of Directors authorized a new $500,000 stock repurchase program.
 
 
ADVANCE AUTO PARTS, INC. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
January 1, 2011, January 2, 2010 and January 3, 2009
(in thousands, except per share data)
 
13.  Earnings per Share:

Certain of the Company’s shares granted to employees in the form of restricted stock are considered participating securities, which requires the use of the two-class method for the computation of basic and diluted earnings per share. For Fiscal 2010, 2009 and 2008, earnings of $1,552, $1,382 and $875, respectively, were allocated to the participating securities.

Diluted earnings per share are calculated by including the effect of dilutive securities. Share-based awards to purchase approximately 3, 1,224 and 2,747 shares of common stock that had an exercise price in excess of the average market price of the common stock during Fiscal 2010, 2009 and 2008, respectively, were not included in the calculation of diluted earnings per share because they are anti-dilutive.

The following table illustrates the computation of basic and diluted earnings per share for Fiscal 2010, 2009 and 2008, respectively:
 
   
Fiscal Year Ended
 
   
January 1,
   
January 2,
   
January 3,
 
   
2011
   
2010
   
2009
 
Numerator
 
(52 weeks)
   
(52 weeks)
   
(53 weeks)
 
Net income applicable to common shares
  $ 346,053     $ 270,373     $ 238,038  
Participating securities' share in earnings
    (1,552 )     (1,382 )     (875 )
Net income applicable to common shares
  $ 344,501     $ 268,991     $ 237,163  
Denominator
                       
Basic weighted average common shares
    86,082       94,459       94,655  
Dilutive impact of share based awards
    1,073       654       550  
Diluted weighted average common shares
    87,155       95,113       95,205  
                         
Basic earnings per common share
                       
Net income applicable to common stockholders
  $ 4.00     $ 2.85     $ 2.51  
Diluted earnings per common share
                       
Net income applicable to common stockholders
  $ 3.95     $ 2.83     $ 2.49  


 
ADVANCE AUTO PARTS, INC. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
January 1, 2011, January 2, 2010 and January 3, 2009
(in thousands, except per share data)
14. Income Taxes:

Provision for Income Taxes

Provision (benefit) for income taxes for Fiscal 2010, 2009 and 2008 consists of the following:
 
     
Current
   
Deferred
   
Total
 
2010-               
  Federal
    $ 151,639     $ 34,553     $ 186,192  
  State       18,860       5,950       24,810  
        $ 170,499     $ 40,503     $ 211,002  
2009-                  
  Federal     $ 87,198     $ 58,085     $ 145,283  
  State       7,462       8,537       15,999  
        $ 94,660     $ 66,622     $ 161,282  
2008-                  
  Federal     $ 128,952     $ (1,435 )   $ 127,517  
  State       16,404       (1,267 )     15,137  
        $ 145,356     $ (2,702 )   $ 142,654  
 
The provision (benefit) for income taxes differed from the amount computed by applying the federal statutory income tax rate due to:

   
2010
   
2009
   
2008
 
Income before provision (benefit) for income taxes
                 
  at statutory U.S. federal income tax rate (35%)
  $ 194,970     $ 151,079     $ 133,242  
State income taxes, net of federal
   income tax benefit
    16,127       10,400       9,839  
Non-deductible expenses
    3,200       3,077       2,177  
Valuation allowance
    -       (614 )     491  
Other, net
    (3,295 )     (2,660 )     (3,095 )
 
  $ 211,002     $ 161,282     $ 142,654  


 
ADVANCE AUTO PARTS, INC. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
January 1, 2011, January 2, 2010 and January 3, 2009
(in thousands, except per share data)
 
Deferred Income Tax Assets/(Liabilities)

Deferred tax assets and liabilities are determined based on the differences between the financial statements and tax basis of assets and liabilities using enacted tax rates in effect for the year in which the differences are expected to reverse. Deferred income taxes reflect the net income tax effect of temporary differences between the basis of assets and liabilities for financial reporting purposes and for income tax reporting purposes. Net deferred income tax balances are comprised of the following:
 
   
January 1,
   
January 2,
 
   
2011
   
2010
 
Deferred income tax assets
  $ 110,953     $ 104,078  
Valuation allowance
    (1,141 )     (1,273 )
Deferred income tax liabilities
    (256,601 )     (209,658 )
Net deferred income tax liabilities
  $ (146,789 )   $ (106,853 )
 
At January 1, 2011 and January 2, 2010, the Company had cumulative net deferred income tax liabilities of $146,789 and $106,853, respectively. The deferred income tax assets also include state net operating loss carry-forwards, or NOLs, of approximately $1,513 and $2,057, respectively. These NOLs may be used to reduce future taxable income and expire periodically through Fiscal 2027. Due to uncertainties related to the realization of certain deferred tax assets for NOLs in certain jurisdictions, the Company recorded a valuation allowance of $1,141 as of January 1, 2011 and $1,273 as of January 2, 2010. The amount of deferred income tax assets realizable, however, could change in the future if projections of future taxable income change.

Temporary differences which give rise to significant deferred income tax assets (liabilities) are as follows:

   
January 1,
   
January 2,
 
   
2011
   
2010
 
Current deferred income tax assets (liabilities):
           
Inventory valuation differences
  $ (149,992 )   $ (114,510 )
Accrued medical and workers compensation
    11,760       30,015  
Accrued expenses not currently deductible for tax
    30,630       26,674  
Net operating loss carryforwards
    241       445  
Interest rate swaps
    7,309       4,184  
Other, net
    749       984  
Total current deferred income tax assets (liabilities)
  $ (99,303 )   $ (52,208 )
                 
Long-term deferred income tax assets (liabilities):
               
Property and equipment
    (106,609 )     (95,148 )
Postretirement benefit obligation
    2,931       3,042  
Share-based compensation
    16,546       19,872  
Accrued medical and workers compensation
    19,663       -  
Closed store related
    4,242       5,428  
Net operating loss carryforwards
    1,272       1,612  
Straight-line rent
    12,495       10,029  
Valuation allowance
    (1,141 )     (1,273 )
Other, net
    3,115       1,793  
Total long-term deferred income tax assets (liabilities)
  $ (47,486 )   $ (54,645 )
 
These amounts are recorded in Other current liabilities and Other long-term liabilities in the accompanying consolidated balance sheets, as appropriate.
 
 
 
ADVANCE AUTO PARTS, INC. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
January 1, 2011, January 2, 2010 and January 3, 2009
 
 
Unrecognized Tax Benefits

The following table lists each category and summarizes the activity of the Company’s gross unrecognized tax benefits for the fiscal years ended January 1, 2011, January 2, 2010 and January 3, 2009:
 
   
January 1,
   
January 2,
   
January 3,
 
   
2011
   
2010
   
2009
 
Unrecognized tax benefits, beginning of period
  $ 11,113     $ 13,797     $ 14,145  
Increases related to prior period tax positions
    6       896       514  
Decreases related to prior period tax positions
    -       (711 )     (1,280 )
Increases related to current period tax positions
    2,201       1,475       1,882  
Settlements
    -       (3,527 )     (317 )
Expiration of statute of limitations
    (367 )     (817 )     (1,147 )
Unrecognized tax benefits, end of period
  $ 12,953     $ 11,113     $ 13,797  
 
As of January 1, 2011, the entire amount of unrecognized tax benefits, if recognized, would reduce the Company’s annual effective tax rate.

The Company provides for potential interest and penalties associated with uncertain tax positions as a part of income tax expense. During Fiscal 2010, the Company recorded potential interest and penalties of $916 and $28, respectively, related to unrecognized tax benefits. During Fiscal 2009, the Company recorded potential interest and penalties of $1,066 and $18, respectively. During Fiscal 2008, the Company recorded potential interest and penalties of $1,550 and $207. As of January 1, 2011, the Company had recorded a liability for potential interest and penalties of $4,668 and $467, respectively. As of January 2, 2010, the Company had recorded a liability for potential interest and penalties of $3,918 and $442, respectively. As of January 3, 2009, the Company had recorded a liability for potential interest and penalties of $5,022 and $1,743, respectively, which was included in the above table. The Company has not provided for any penalties associated with tax contingencies unless considered probable of assessment. The Company does not expect its unrecognized tax benefits to change significantly over the next 12 months.

During the next 12 months, it is possible the Company could conclude on approximately $2,000 to $3,000 of the contingencies associated with unrecognized tax uncertainties due mainly to the conclusion of audits and the expiration of statutes of limitations. The majority of these resolutions would be achieved through the completion of current income tax examinations.

The Company files U.S. and state income tax returns in jurisdictions with varying statutes of limitations. The Company’s 2008 federal income tax return is currently under examination by the Internal Revenue Service. The 2009 and 2010 years remain open and subject to examination. The Company has no state examinations open for tax years prior to 2005. With limited exceptions, Fiscal 2006 and subsequent years remain subject to examination by state tax authorities. 

 
 
ADVANCE AUTO PARTS, INC. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
January 1, 2011, January 2, 2010 and January 3, 2009
(in thousands, except per share data)
15.  Lease Commitments:

At January 1, 2011, future minimum lease payments due under non-cancelable operating leases with lease terms ranging from 1 year to 30 years through the year 2039 for all open stores are as follows:
 
Fiscal Year
 
Amount
 
2011
  $ 297,315  
2012
    265,680  
2013
    239,573  
2014
    210,722  
2015
    188,876  
Thereafter
    887,708  
    $ 2,089,874  
 
The Company anticipates its future minimum lease payments will be partially off-set by future minimum sub-lease income. At January 1, 2011 and January 2, 2010, future minimum sub-lease income to be received under non-cancelable operating leases is $8,589 and $4,266, respectively.

Net Rent Expense

Net rent expense for Fiscal 2010, 2009 and 2008 was as follows:

   
2010
   
2009
   
2008
 
Minimum facility rentals
  $ 279,099     $ 272,686     $ 261,315  
Contingent facility rentals
    1,115       729       642  
Equipment rentals
    5,372       4,738       4,338  
Vehicle rentals
    19,903       21,403       17,202  
      305,489       299,556       283,497  
Less:  Sub-lease income
    (3,813 )     (3,652 )     (3,940 )
    $ 301,676     $ 295,904     $ 279,557  
 
Rent expense associated with closed locations is included in SG&A.
 
 
16. Store Closures and Impairment:

The Company closed 5 and relocated 12 stores during Fiscal 2010 and closed 55 stores and relocated 10 stores during Fiscal 2009. During Fiscal 2009, 45 of the store closures were designated under the store divestiture plan. The remaining store closures were part of the Company’s routine review and closure of underperforming stores at or near the end of their respective lease terms. The store divestiture plan consisted of a review of operating stores to identify locations for potential closing based on both financial and operating factors. These factors included cash flow, profitability, strategic market importance, store full potential and current lease rates.

During Fiscal 2010 and 2009, the Company recognized $3,678 and $27,725 of total expense associated with its closed store activities, respectively. The closed store expense in Fiscal 2009 included $26,057 of expense which was divestiture related, or divestiture expense.  These divestiture expenses included closed store exit costs of $21,121. The closed store exit costs primarily included the establishment of the liability for future lease obligations as well as severance. Closed store liabilities include the present value of the remaining lease obligations and management’s estimate of future costs of insurance, property tax and common area maintenance (reduced by the present value of
 
 
ADVANCE AUTO PARTS, INC. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
January 1, 2011, January 2, 2010 and January 3, 2009
(in thousands, except per share data)
 
estimated revenues from subleases and lease buyouts). New provisions are established by a charge to SG&A in the accompanying consolidated statements of operations at the time the facilities actually close. The Company utilizes its reserve for closed store expenses primarily as payments are made under the respective lease obligations.
 
A summary of the Company’s closed store liabilities, which are recorded in Accrued expenses (current portion) and Other long-term liabilities (long-term portion) in the accompanying consolidated balance sheet, are presented in the following table:

   
Lease Obligations
   
Severance and Other Exit
   
Total
 
For the fifty-two weeks ended January 2, 2010:
                 
                   
Closed Store Liabilities, January 3, 2009
  $ 5,067     $ -     $ 5,067  
Reserves established
    20,739       777       21,516  
Change in estimates
    (365 )     -       (365 )
Reserves utilized
    (5,070 )     (777 )     (5,847 )
Closed Store Liabilities, January 2, 2010
  $ 20,371     $ -     $ 20,371  
                         
For the fifty-two weeks ended January 1, 2011:
                       
                         
Closed Store Liabilities, January 2, 2010
  $ 20,371     $ -     $ 20,371  
Reserves established
    1,756       -       1,756  
Change in estimates
    (340 )     -       (340 )
Reserves utilized
    (5,047 )     -       (5,047 )
Closed Store Liabilities, January 1, 2011
  $ 16,740     $ -     $ 16,740  
 
The Company recognized impairment charges of $317 and $4,936 during Fiscal 2010 and 2009, respectively. These charges primarily consisted of the impairment of certain store assets contained in leased store locations of the AAP segment identified as part of the store divestiture plan.  The Company evaluates the recoverability of its long-lived assets whenever events or changes in circumstances indicate that the carrying amount of an asset might not be recoverable and exceeds its fair value. Accordingly, the Company determined that the carrying amounts of the assets were considered to not be recoverable based on the stores’ closure and/or projected inability to produce sufficient cash flows.

The impairment was determined based on the excess of the assets’ carrying value as compared to their fair value as determined by the income approach.  Under this approach, the Company utilized internal cash flow projections over the life of the underlying lease agreements discounted based on a risk-free rate of return. Impairment charges are included in SG&A of the accompanying consolidated statements of operations.


17. Contingencies:

In the case of all known contingencies, the Company accrues for an obligation, including estimated legal costs, when it is probable and the amount is reasonably estimable. As facts concerning contingencies become known to the Company, the Company reassesses its position with respect to accrued liabilities and other potential exposures. Estimates that are particularly sensitive to future change include legal matters, which are subject to change as events evolve, and as additional information becomes available during the administrative and litigation process.
 
The Company’s Western Auto subsidiary, together with other defendants including automobile manufacturers, automotive parts manufacturers and other retailers, has been named as a defendant in lawsuits alleging injury as a result of exposure to asbestos-containing products. The Company and some of its subsidiaries also have been named as defendants in many of these lawsuits. The plaintiffs have alleged that these products were manufactured,
 
 
 
ADVANCE AUTO PARTS, INC. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
January 1, 2011, January 2, 2010 and January 3, 2009
(in thousands, except per share data)
 
distributed and/or sold by the various defendants. These products have primarily included brake parts. Many of the cases pending against the Company or its subsidiaries are in the early stages of litigation. The damages claimed against the defendants in some of these proceedings are substantial. Additionally, some of the automotive parts manufacturers named as defendants in these lawsuits have declared bankruptcy, which will limit plaintiffs’ ability to recover monetary damages from those defendants. Although the Company diligently defends against these claims, the Company may enter into discussions regarding settlement of these and other lawsuits, and may enter into settlement agreements, if it believes settlement is in the best interests of the Company’s shareholders. The Company believes that many of these claims are at least partially covered by insurance. Based on discovery to date, the Company does not believe the cases currently pending will have a material adverse effect on the Company’s operating results, financial position or liquidity. However, if the Company was to incur an adverse verdict in one or more of these claims and was ordered to pay damages that were not covered by insurance, these claims could have a material adverse affect on its operating results, financial position and liquidity. If the number of claims filed against the Company or any of its subsidiaries alleging injury as a result of exposure to asbestos-containing products increases substantially, the costs associated with concluding these claims, including damages resulting from any adverse verdicts, could have a material adverse effect on its operating results, financial position or liquidity in future periods.

The Company is involved in various types of legal proceedings arising from claims of employment discrimination or other types of employment matters as a result of claims by current and former employees.  The damages claimed against the Company in some of these proceedings are substantial. Because of the uncertainty of the outcome of such legal matters and because the Company’s liability, if any, could vary widely, including the size of any damages awarded if plaintiffs are successful in litigation or any neg otiated settlement, the Company cannot reasonably estimate the possible loss or range of loss which may arise.  The Compan y is also involved in various other claims and legal proceedings arising in the normal course of business. Although the final outcome of these legal matters cannot be determined, based on the facts presently known, it is management’s opinion that the final outcome of such claims and lawsuits will not have a material adverse effect on the Company’s financial position, results of operations or liquidity.


18.  Benefit Plans:

401(k) Plan

The Company maintains a defined contribution benefit plan, which covers substantially all Team Members after one year of service and who have attained the age of 21. The plan allows for Team Member salary deferrals, which are matched at the Company’s discretion. Company contributions were $10,104, $9,277 and $9,117 in Fiscal 2010, 2009 and 2008, respectively.
 
Deferred Compensation

The Company maintains a non-qualified deferred compensation plan for certain Team Members. This plan provides for a minimum and maximum deferral percentage of the Team Member’s base salary and bonus, as determined by the Retirement Plan Committee. The Company establishes and maintains a deferred compensation liability for this plan. At January 1, 2011 and January 2, 2010 these liabilities were $10,311 and $6,966, respectively.
 
Postretirement Plan

The Company provides certain health and life insurance benefits for eligible retired Team Members through a postretirement plan, or Plan. These benefits are subject to deductibles, co-payment provisions and other limitations. The Plan has no assets and is funded on a cash basis as benefits are paid.

 
 
ADVANCE AUTO PARTS, INC. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
January 1, 2011, January 2, 2010 and January 3, 2009
(in thousands, except per share data)
Funded Status of Benefit Obligations

The following table provides a reconciliation of the accrued postretirement benefit obligation recorded, included in Other long-term liabilities in the accompanying consolidated balance sheets, and the funded status of the Plan as of January 1, 2011 and January 2, 2010:
 
   
2010
   
2009
 
Change in benefit obligation:
           
Benefit obligation at beginning of the year
  $ 7,112     $ 7,750  
Interest cost
    336       456  
Benefits paid
    (621 )     (1,047 )
Actuarial loss (gain)
    38       (47 )
Benefit obligation at end of the year
    6,865       7,112  
Change in plan assets:
               
Fair value of plan assets at beginning of the year
    -       -  
Employer contributions
    621       1,047  
Participant contributions
    783       743  
Benefits paid
    (1,404 )     (1,790 )
Fair value of plan assets at end of year
    -       -  
Funded status of plan
  $ (6,865 )   $ (7,112 )
 
Net periodic postretirement benefit cost is as follows:

   
2010
   
2009
   
2008
 
                   
Service cost
  $ -     $ -     $ -  
Interest cost
    336       456       581  
Amortization of the prior service cost
    (581 )     (581 )     (677 )
Amortization of recognized net gains
    (103 )     (96 )     (16 )
    $ (348 )   $ (221 )   $ (112 )
 
The health care cost trend rate was assumed to be 8.7% for 2011, 8.4% for 2012, 8.0% for 2013, 7.7% for 2014, 7.3% for 2015, 6.9% for 2016 and 6.6% to 4.5% for 2017 and thereafter. If the health care cost were increased 1% for all future years the accumulated postretirement benefit obligation would have increased by $160 as of January 1, 2011. The effect of this change on the combined service and interest cost would have been an increase of $8 for Fiscal 2010. If the health care cost were decreased 1% for all future years the accumulated postretirement benefit obligation would have decreased by $145 as of January 1, 2011. The effect of this change on the combined service and interest cost would have been a decrease of $7 for Fiscal 2010.

The postretirement benefit obligation and net periodic postretirement benefit cost was computed using the following weighted average discount rates as determined by the Company’s actuaries for each applicable year:

   
2010
   
2009
 
             
Postretirement benefit obligation
    5.00%       6.25%  
Net periodic postretirement benefit cost
    4.50%       5.00%  


 
ADVANCE AUTO PARTS, INC. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
January 1, 2011, January 2, 2010 and January 3, 2009
(in thousands, except per share data)

The Company expects plan contributions to completely offset benefits paid. The following table summarizes the Company's expected benefit payments (net of retiree contributions) to be paid for each of the following fiscal years:
 
   
Amount
 
2011
  $ 811  
2012
    816  
2013
    806  
2014
    819  
2015
    799  
2016-2020
    1,956  
 
At January 1, 2011, the net unrealized gain on the Plan consists of an unrealized gain of $3,532 related to prior service cost and an unrealized net gain of $1,659 related to actuarial gains. Approximately $581 of the unrealized gain related to prior service cost and $92 related to the actuarial loss are expected to be recognized as a component of Net periodic postretirement benefit cost in Fiscal 2011. The Company reserves the right to change or terminate the employee benefits or Plan contributions at any time.


19.  Share-Based Compensation:

Overview

The Company grants share-based compensation awards to its employees and members of its Board of Directors as provided for under the Company’s 2004 Long-Term Incentive Plan, or LTIP. The Company currently grants share-based compensation in the form of stock appreciation rights, or SARs, restricted stock (considered nonvested stock under ASC Topic 718) and deferred stock units, or DSUs. The Company also has outstanding stock options granted prior to Fiscal 2007.

General Terms of Awards

Time Vested Awards

The SARs generally vest over a three-year period in equal annual installments beginning on the first anniversary of the grant date. All SARs granted are non-qualified, terminate on the seventh anniversary of the grant date and contain no post-vesting restrictions other than normal trading black-out periods prescribed by the Company’s corporate governance policies.

During the vesting period, holders of restricted stock are entitled to receive dividends and voting rights. The shares are restricted until they vest and cannot be sold by the recipient until the restriction has lapsed at the end of the three-year period. All restricted stock granted generally vests over a three-year period in equal annual installments beginning on the first anniversary of the grant date.

Performance-Based Awards

Beginning in Fiscal 2008, each grant of share-based compensation is comprised of SARs and restricted stock, including a 75% time-service portion and 25% performance-based portion which collectively represent the target award. Each performance award may vest following a three-year period subject to the Company’s achievement of certain financial goals. The performance restricted stock awards do not have dividend equivalent rights and do not have voting rights until earned and issued following the end of the applicable performance period. Depending on the Company’s results during the three-year performance period, the actual number of shares vesting at the end of the period may range from 0% to 200% of the target shares.
 
 
ADVANCE AUTO PARTS, INC. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
January 1, 2011, January 2, 2010 and January 3, 2009
(in thousands, except per share data)
Share-Based Compensation Expense & Cash Flows

The expense the Company has incurred annually related to the issuance of share-based compensation is included in SG&A. The Company receives cash upon the exercise of stock options, as well as when employees purchase stock under the employee stock purchase plan, or ESPP. Total share-based compensation expense and cash received included in the Company’s consolidated statements of operations and consolidated statement of cash flows, respectively, are reflected in the table below, including the related income tax benefits, for fiscal years ended January 1, 2011, January 2, 2010 and January 3, 2009 as follows:    
 
   
2010
   
2009
   
2008
 
Share-based compensation expense
  $ 22,311     $ 19,682     $ 17,707  
Deferred income tax benefit
    8,456       7,361       6,640  
                         
Cash received upon exercise and from ESPP
    36,113       35,402       35,220  
Excess tax benefit share-based compensation
    7,260       3,219       9,047  
 
As of January 1, 2011, there was $29,521 of unrecognized compensation expense related to all share-based awards that is expected to be recognized over a weighted average period of 1.2 years.
 
The fair value of each SAR was estimated on the date of grant using the Black-Scholes option-pricing model with the following weighted average assumptions:

Black-Scholes Option Valuation Assumptions (1)
 
2010
   
2009
   
2008
 
                   
Risk-free interest rate (2)
    0.9 %     1.6 %     2.5 %
Expected dividend yield
    0.4 %     0.6 %     0.8 %
Expected stock price volatility (3)
    36.3 %     39.2 %     32.3 %
Expected life of awards (in months) (4)
    50       50       50  
 
(1)   
Forfeitures are based on historical experience.
(2)   
The risk-free interest rate is based on the U.S. Treasury constant maturity interest rate having term consistent with the expected life of the award.
(3)   
Expected volatility is determined using a blend of historical and implied volatility.
(4)   
The expected life of the Company’s awards represents the estimated period of time until exercise and is based on historical experience of previously granted awards.


 
ADVANCE AUTO PARTS, INC. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
January 1, 2011, January 2, 2010 and January 3, 2009
(in thousands, except per share data)

Time-Based Share Awards

Stock Appreciation Rights and Stock Options

The following table summarizes the time-vested stock option and time-vested SARs activity for the fiscal year ended January 1, 2011:

   
Number of
Awards
   
Weighted-
Average
Exercise Price
   
Weighted-
Average
Remaining
Contractual
Term (in years)
   
Aggregate
Intrinsic Value
 
                         
Outstanding at January 2, 2010
    5,276     $ 35.20              
Granted
    430       65.08              
Exercised
    (1,934 )     34.81              
Forfeited
    (84 )     33.92              
Outstanding at January 1, 2011
    3,688     $ 38.93       4.14     $ 100,395  
                                 
Vested and expected to vest
    3,621     $ 38.59       4.10     $ 99,787  
                                 
Outstanding and exercisable
    2,319     $ 35.79       3.32     $ 70,393  
 
The weighted average fair value of SARs granted during the fiscal years ended January 1, 2011, January 2, 2010 and January 3, 2009, was $19.10, $12.98 and $8.66 per share, respectively. The aggregate intrinsic value reflected in the table is based on the Company’s closing stock price of $66.15 as of the last trading day of the period ended January 1, 2011. The aggregate intrinsic value of stock options and SARs (the amount by which the market price of the stock on the date of exercise exceeded the exercise price) exercised during the fiscal years ended January 1, 2011, January 2, 2010 and January 3, 2009, was $35,447, $12,704 and $25,890, respectively.

Restricted Stock

The following table summarizes the restricted stock activity for the fiscal year ended January 1, 2011:

   
Number of
Awards
 
Weighted-Average Grant Date Fair Value
         
Nonvested at January 2, 2010
 
            559
 
 $                 35.40
Granted
 
              82
 
                    64.58
Vested
 
           (237)
 
                    35.16
Forfeited
 
             (20)
 
                    34.80
Nonvested at January 1, 2011
 
            384
 
 $                 41.86
 
The fair value of each share of restricted stock is determined based on the market price of the Company’s common stock on the date of grant. The weighted average fair value of shares granted during Fiscal 2010, 2009 and 2008 was $64.58, $39.53 and $32.21 per share, respectively. The total grant date fair value of shares vested during Fiscal 2010, 2009 and 2008 was approximately $8,317, $3,238 and $53, respectively.

 
 
ADVANCE AUTO PARTS, INC. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
January 1, 2011, January 2, 2010 and January 3, 2009
(in thousands, except per share data)

Performance-Based Awards

Performance shares granted in the following tables represent the performance portion of awards granted during Fiscal 2010 at the target level, as achievement of the target level was deemed probable as of the respective grant date. Change in units based on performance in the following tables represents the change in number of awards previously granted that the Company believes will ultimately vest based on the Company’s probability assessment as of January 1, 2011.
 
Compensation expense for performance-based awards of $5,916 and $4,276 in Fiscal 2010 and 2009, respectively, was determined based on management’s estimate of the probable vesting outcome. During Fiscal 2008, the Company did not recognize compensation expense for performance-based awards since vesting was not considered probable as of January 3, 2009.
 
Performance-Based SARs

The following table summarizes the performance-based SARs activity for the fiscal year ended January 1, 2011:

   
Number of
Awards
   
Weighted-
Average
Exercise Price
   
Weighted-
Average
Remaining
Contractual
Term (in years)
   
Aggregate
Intrinsic Value
 
                         
Outstanding at January 2, 2010
    1,211     $ 29.13              
Granted
    143       65.08              
Change in units based on performance
    144       39.00              
Exercised
    (2 )     25.81              
Forfeited
    (258 )     29.71              
Outstanding at January 1, 2011
    1,238     $ 33.34       5.25     $ 40,609  
                                 
Expected to vest
    1,143     $ 32.37       5.19     $ 38,602  
 
The weighted average fair value of performance-based SARs granted during the fiscal years ended January 1, 2011, January 2, 2010, and January 3, 2009 was $19.10, $12.98, and $8.66 per share, respectively. There were no exercisable performance-based SARs at January 1, 2011. At January 1, 2011, the maximum potential payout under the Company’s currently outstanding performance-based SAR awards was 2,274 units.

Performance-Based Restricted Stock

The following table summarizes the performance-based restricted stock activity for the fiscal year ended January 1, 2011:

   
Number of
Awards
 
Weighted-Average Grant Date Fair Value
         
Nonvested at January 2, 2010
 
            254
 
 $                 29.08
Granted
 
              27
 
                    64.74
Change in units based on performance     30   39.04
Vested
 
           -
 
                    -
Forfeited
 
             (58)
 
                    30.36
Nonvested at January 1, 2011
 
            253
 
 $                 32.84
 
 
 
 
 
 
ADVANCE AUTO PARTS, INC. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
January 1, 2011, January 2, 2010 and January 3, 2009
 
The fair value of each share of performance-based restricted stock is determined based on the market price of the Company’s common stock on the date of grant.  The weighted average fair value of shares granted during Fiscal 2010, 2009 and 2008 was $64.74, $39.53 and $32.21 per share, respectively. At January 1, 2011, the maximum potential payout under the Company’s currently outstanding performance-based restricted stock awards was 487 shares.
 
Deferred Stock Units

The Company grants share-based awards annually to its Board of Directors in connection with its annual meeting of stockholders. The Company grants DSUs as provided for in the Advance Auto Parts, Inc. Deferred Stock Unit Plan for Non-Employee Directors and Selected Executives, or the DSU Plan. Each DSU is equivalent to one share of common stock of the Company. The DSUs vest evenly over a twelve-month period following the grant date.  Prior to Fiscal 2009, the DSUs vested immediately upon issuance. The DSUs are held on behalf of the director until he or she ceases to be a director. The DSUs are then distributed to the director following his or her last date of service. Additionally, the DSU Plan provides for the deferral of compensation as earned in the form of (i) an annual retainer for directors, and (ii) wages for certain highly compensated employees of the Company. These deferred stock units are settled in common stock with the participants at a future date, or over a specified time period as elected by the participants in accordance with the DSU Plan.

The Company granted 23 DSUs in Fiscal 2010. The weighted average fair value of DSUs granted during Fiscal 2010, 2009, and 2008 was $49.27, $44.18, and $38.94, respectively. The DSUs are awarded at a price equal to the market price of the Company’s underlying stock on the date of the grant. For Fiscal 2010, 2009, and 2008, respectively, the Company recognized a total of $1,064, $850, and $480 on a pre-tax basis, in compensation expense for these DSU grants.

LTIP Availability

At January 1, 2011, there were 2,348 shares of common stock currently available for future issuance under the 2004 Plan and was based on management’s current estimate of the probable vesting outcome for performance-based awards. The Company issues new shares of common stock upon exercise of stock options and SARs. Availability is determined net of forfeitures and is reduced by an additional 0.7 availability factor for restricted stock and DSUs in accordance with the LTIP. Availability includes shares which became available for reissuance in connection with the exercise of SARs.

Employee Stock Purchase Plan

The Company also offers an ESPP. Eligible Team Members may purchase the Company’s common stock at 95% of its fair market value on the date of purchase. There are annual limitations on Team Member elections of either $25 per Team Member or ten percent of compensation, whichever is less. Under the plan, Team Members acquired 41, 51 and 80 shares in Fiscal 2010, 2009 and 2008, respectively. At January 1, 2011, there were 1,236 shares available to be issued under the plan.

 
 
ADVANCE AUTO PARTS, INC. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
January 1, 2011, January 2, 2010 and January 3, 2009
(in thousands, except per share data)
 
20.  Accumulated Other Comprehensive Income (Loss):

Comprehensive income is computed as net earnings plus certain other items that are recorded directly to stockholders’ equity during the accounting period. In addition to net earnings, comprehensive income also includes changes in unrealized gains or losses on hedge arrangements and postretirement plan benefits, net of tax. Accumulated other comprehensive income (loss), net of tax, for Fiscal 2008, 2009 and 2010 consisted of the following:

   
Unrealized Gain
(Loss) on Hedging
Arrangements
   
Unrealized Gain (Loss)
on Postretirement
Plan
   
Accumulated
Other
Comprehensive
Income (Loss)
 
Balance, December 29, 2007
  $ (4,653 )   $ 3,952     $ (701 )
Fiscal 2008 activity
    (8,729 )     81       (8,648 )
Balance, January 3, 2009
  $ (13,382 )   $ 4,033     $ (9,349 )
Fiscal 2009 activity
    3,034       (384 )     2,650  
Balance, January 2, 2010
  $ (10,348 )   $ 3,649     $ (6,699 )
Fiscal 2010 activity
    5,541       (439 )     5,102  
Balance, January 1, 2011
  $ (4,807 )   $ 3,210     $ (1,597 )
 
21.  Segment and Related Information:
 
 
The Company has the following two reportable segments: AAP, and AI. The AAP segment is comprised of 3,369 stores as of January 1, 2011, which operated in the United States, Puerto Rico and the Virgin Islands under the trade names “Advance Auto Parts,” “Advance Discount Auto Parts” and “Western Auto.” These stores offer a broad selection of brand name and proprietary automotive replacement parts, accessories and maintenance items for domestic and imported cars and light trucks.

The AI segment consists solely of the operations of Autopart International, and operates stores under the “Autopart International” trade name. AI mainly serves the Commercial market from its 194 stores as of January 1, 2011, located in the Northeastern and Mid-Atlantic regions of the United States and Florida. In addition, its North American Sales Division services warehouse distributors and jobbers throughout North America.

The Company evaluates each of its segment’s financial performance-based on net sales and operating profit for purposes of allocating resources and assessing performance. The accounting policies of the reportable segments are the same as those described in the summary of significant accounting policies in Note 2.

The following table summarizes financial information for each of the Company's business segments for the years ended January 1, 2011, January 2, 2010 and January 3, 2009, respectively.
 
 
 
ADVANCE AUTO PARTS, INC. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
January 1, 2011, January 2, 2010 and January 3, 2009
(in thousands, except per share data)

   
2010
   
2009
   
2008
 
Net Sales
                 
AAP
  $ 5,691,081     $ 5,218,317     $ 4,976,603  
AI
    249,514       202,575       165,652  
Eliminations (1)
    (15,392 )     (8,269 )     -  
Total net sales
  $ 5,925,203     $ 5,412,623     $ 5,142,255  
                         
Percentage of Sales, by Product Group
                       
in AAP Segment (2)
                       
Parts and Batteries
    61 %     60 %     58 %
Accessories
    15 %     15 %     17 %
Chemicals
    11 %     11 %     12 %
Oil
    10 %     10 %     9 %
Other
    3 %     4 %     4 %
Total
    100 %     100 %     100 %
                         
Income before provision for
                       
 income taxes
                       
AAP
  $ 552,565     $ 424,075     $ 376,464  
AI
    4,490       7,580       4,228  
Total income before provision for
                       
 income taxes
  $ 557,055     $ 431,655     $ 380,692  
                         
Provision for income taxes
                       
AAP
  $ 209,545     $ 158,386     $ 140,838  
AI
    1,457       2,896       1,816  
Total provision for income taxes
  $ 211,002     $ 161,282     $ 142,654  
                         
Segment assets
                       
AAP
  $ 3,141,828     $ 2,902,646     $ 2,807,486  
AI
    212,389       170,317       156,579  
Total segment assets
  $ 3,354,217     $ 3,072,963     $ 2,964,065  
                         
Depreciation and amortization
                       
AAP
  $ 158,738     $ 145,506     $ 141,202  
AI
    5,699       5,411       5,378  
Total depreciation and amortization
  $ 164,437     $ 150,917     $ 146,580  
                         
Capital expenditures
                       
AAP
  $ 191,193     $ 186,607     $ 180,623  
AI
    8,392       6,327       4,363  
Total capital expenditures
  $ 199,585     $ 192,934     $ 184,986  
 
(1)  
For Fiscal 2010, eliminations represented net sales of $6,933 from AAP to AI and $8,459 from AI to AAP. For Fiscal 2009, eliminations represented net sales of $3,764 from AAP to AI and $4,505 from AI to AAP.
(2)  
Sales by product group are not available for the AI segment.


 
ADVANCE AUTO PARTS, INC. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
January 1, 2011, January 2, 2010 and January 3, 2009
(in thousands, except per share data)
 
22. Quarterly Financial Data (unaudited):

The following table summarizes quarterly financial data for Fiscal 2010 and 2009:
 
2010
 
First
   
Second
   
Third
   
Fourth
 
   
(16 weeks)
   
(12 weeks)
   
(12 weeks)
   
(12 weeks)
 
Net sales
  $ 1,830,606     $ 1,417,956     $ 1,406,511     $ 1,270,130  
Gross profit
    910,777       715,268       707,785       627,485  
Net income
    109,431       100,911       87,598       48,113  
                                 
Basic earnings per share
    1.20       1.18       1.04       0.58  
Diluted earnings per share
    1.19       1.16       1.03       0.57  
                                 
2009
 
First
   
Second
   
Third
   
Fourth
 
   
(16 weeks)
   
(12 weeks)
   
(12 weeks)
   
(12 weeks)
 
Net sales
  $ 1,683,636     $ 1,322,844     $ 1,262,576     $ 1,143,567  
Gross profit
    821,988       652,650       621,459       548,129  
Net income
    93,585       80,330       61,979       34,479  
                                 
Basic earnings per share
    0.99       0.84       0.65       0.37  
Diluted earnings per share
    0.98       0.83       0.65       0.36  
 
Note:  Quarterly and year-to-date computations of per share amounts are made independently.  Therefore, the sum of per share amounts for the quarters may not round to per share amounts for the year.




REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

To the Board of Directors and Stockholders of
Advance Auto Parts, Inc. and Subsidiaries
Roanoke, Virginia

We have audited the consolidated financial statements of Advance Auto Parts, Inc. and subsidiaries (the "Company") as of January 1, 2011 and January 2, 2010, and for each of the three years in the period ended January 1, 2011, and the Company's internal control over financial reporting as of January 1, 2011, and have issued our reports thereon dated March 1, 2011; such consolidated financial statements and reports are included elsewhere in this Form 10-K.  Our audits also included the financial statement schedules of the Company listed in the accompanying index at Item 15.  These consolidated financial statement schedules are the responsibility of the Company's management. Our responsibility is to express an opinion based on our audits. In our opinion, such consolidated financial statement schedules, when considered in relation to the basic consolidated financial statements taken as a whole, present fairly, in all material respects, the information set forth therein.


/s/ Deloitte & Touche LLP
 
Richmond, Virginia
March 1, 2011








ADVANCE  AUTO PARTS, INC.
SCHEDULE I -  CONSOLIDATED FINANCIAL INFORMATION OF THE REGISTRANT
Condensed Parent Company Balance Sheets
January 1, 2011 and January 2, 2010
(in thousands, except per share data)

   
January 1,
   
January 2,
 
   
2011
   
2010
 
Assets
           
Cash and cash equivalents
  $ 23     $ 23  
Other current assets
    1,256       6,321  
Property and equipment, net of accumulated depreciation
    5       8  
Other assets, net
    12,130       1,086  
Investment in subsidiary
    2,579,371       2,212,221  
Total assets
  $ 2,592,785     $ 2,219,659  
                 
Liabilities and stockholders' equity
               
Accrued expenses
  $ 10,417     $ 8,107  
Dividends payable
    4,930       5,587  
Long-term debt
    298,824       -  
Intercompany payable, net
    1,239,240       923,600  
Total liabilities
    1,553,411       937,294  
Stockholders' equity
               
Preferred stock, nonvoting, $0.0001 par value,
               
10,000 shares authorized; no shares issued or outstanding
    -       -  
Common stock, voting $0.0001 par value; 200,000
               
shares authorized; 105,682 shares issued and 81,956 outstanding
               
in 2010 and 104,251 issued and 93,623 outstanding in 2009
    11       10  
Additional paid-in capital
    456,645       392,962  
Treasury stock, at cost, 23,726 and 10,628 shares
    (1,028,612 )     (391,176 )
Accumulated other comprehensive loss
    (1,597 )     (6,699 )
Retained earnings
    1,612,927       1,287,268  
Total stockholders' equity
    1,039,374       1,282,365  
Total liabilities and stockholders' equity
  $ 2,592,785     $ 2,219,659  
 
 
The accompanying notes to the condensed parent company financial information
are an integral part of this schedule.

 
 
ADVANCE AUTO PARTS, INC.
SCHEDULE I -  CONSOLIDATED FINANCIAL INFORMATION OF THE REGISTRANT
Condensed Parent Company Statements of Operations
For the Years Ended January 1, 2011, January 2, 2010 and January 3, 2009
(in thousands, except per share data)

   
Fiscal Years
 
   
2010
   
2009
   
2008
 
   
(52 Weeks)
   
(52 Weeks)
   
(53 Weeks)
 
Selling, general and administrative expenses
  $ 35,017     $ 30,228     $ 23,761  
Other income, net
    36,918       31,438       24,551  
Income before (benefit) provision for income taxes
    1,901       1,210       790  
Income tax provision (benefit)
    1,761       (208 )     714  
Income before equity in earnings of subsidiaries
    140       1,418       76  
Equity in earnings of subsidiaries
    345,913       268,955       237,962  
Net income
  $ 346,053     $ 270,373     $ 238,038  
                         
Basic earnings per share
  $ 4.00     $ 2.85     $ 2.51  
Diluted earnings per share
  $ 3.95     $ 2.83     $ 2.49  
                         
Average common shares outstanding
    86,082       94,459       94,655  
Average common shares outstanding - assuming dilution
    87,155       95,113       95,205  
 
 
 
 
 
The accompanying notes to the condensed parent company financial information
are an integral part of this schedule.


 
ADVANCE AUTO PARTS, INC.
SCHEDULE I -  CONSOLIDATED FINANCIAL INFORMATION OF THE REGISTRANT
Condensed Parent Company Statements of Cash Flows
For the Years Ended January 1, 2011, January 2, 2010 and January 3, 2009
(in thousands)
 

   
Fiscal Years
 
   
2010
   
2009
   
2008
 
   
(52 Weeks)
   
(52 Weeks)
   
(53 Weeks)
 
Cash flows from operating activities:
                 
Net income
  $ 346,053     $ 270,373     $ 238,038  
Adjustments to reconcile net income to net cash
                       
(used in) provided by operations:
                       
Equity in earnings of subsidiary
    (345,913 )     (268,955 )     (237,962 )
Depreciation and amortization
    66       29       30  
Net (increase) decrease in working capital
    (206 )     585       85  
Net cash (used in) provided by operating activities
    -       2,032       191  
Cash flows from investing activities:
                       
Net cash used in investing activities
    -       (2,032 )     (191 )
Cash flows from financing activities:
     -        -        -  
Net increase (decrease) in cash and cash equivalents
    -       -       -  
Cash and cash equivalents, beginning of year
    23       23       23  
Cash and cash equivalents, end of year
  $ 23     $ 23     $ 23  
                         
Supplemental cash flow information:
                       
Interest paid
  $ 8,721     $ -     $ -  
Income taxes paid, net
    -       -       -  
Noncash transactions:
                       
     Issuance of senior unsecured notes with proceeds received 
                       
         by Stores   $  298,761     $  -     $  -  
    Payment of debt related costs by Stores       4,572        -        -  
Repurchase of Parent's common stock by Stores
    622,442       100,062       219,429  
Repurchase of Parent's common stock by Stores not settled
    14,994       -       -  
Proceeds received by Stores from stock transactions under the
                       
Parent's stock subscription plan and Stores' stock option plan
    36,113       35,402       35,220  
Cash dividends paid by Stores on behalf of Parent
    21,051       22,803       23,181  
Changes in other comprehensive income (loss)
    5,102       2,650       (8,648 )
Declared but unpaid cash dividends
    4,930       5,587       5,657  

 
The accompanying notes to the condensed parent company financial information
are an integral part of this schedule.
 
 

 
ADVANCE AUTO PARTS, INC.
SCHEDULE I -  CONSOLIDATED FINANCIAL INFORMATION OF THE REGISTRANT
Notes to the Condensed Parent Company Statements
January 1, 2011 and January 2, 2010
(in thousands, except per share data)

1. Organization and Basis of Presentation
 
Advance Auto Parts, Inc. (“the Company”) is a holding company, which is the 100% shareholder of Advance Stores Company, Incorporated and its subsidiaries ("Stores"), and conducts substantially all of its business operations through Stores. The parent/subsidiary relationship between the Company and Stores includes certain related party transactions. These transactions consist primarily of intercompany advances and interest on intercompany advances, dividends, capital contributions and allocations of certain costs. Deferred income taxes have not been provided for financial reporting and tax basis differences on the undistributed earnings of the subsidiaries.

These condensed financial statements have been prepared pursuant to the rules and regulations of the Securities and Exchange Commission. Certain information and note disclosures normally included in annual financial statements prepared in accordance with accounting principles generally accepted in the United States of America have been condensed or omitted pursuant to those rules and regulations, although management believes that the disclosures made are adequate to make the information presented not misleading. Under a “parent-only” presentation, the investment of the Company in Stores is presented under the equity method of accounting. These parent-only financial statements should be read in conjunction with the consolidated financial statements of the Company included in Item 15 “Exhibits, Financial Statement Schedules” of this Annual Report on Form 10-K (“consolidated financial statements”).

2. Summary of Significant Accounting Policies

Accounting Period

The Company's fiscal year ends on the Saturday nearest the end of December, which results in an extra week every several years. Accordingly, our fiscal year ended January 3, 2009, or Fiscal 2008, included 53 weeks of operations. All other fiscal years presented included 52 weeks of operations.
 
Use of Estimates

The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ materially from those estimates.
 
Cash and Cash Equivalents
 
Cash and cash equivalents consist of cash in banks and money market funds with original maturities of three months or less.

Share-Based Payments

The Company grants share-based compensation awards to certain executive-level employees and members of its Board of Directors as provided for under its 2004 Long-Term Incentive Plan. The Company’s accounting policy for share-based payments is the same as for the consolidated company which is described in the summary of significant accounting policies in Note 2 of the consolidated financial statements.
 
 
 
See Notes to the Consolidated Financial Statements for Additional Disclosures.
 
ADVANCE AUTO PARTS, INC.
SCHEDULE I -  CONSOLIDATED FINANCIAL INFORMATION OF THE REGISTRANT
Notes to the Condensed Parent Company Statements
January 1, 2011 and January 2, 2010
(in thousands, except per share data)

Earnings per Share

The Company uses the two-class method to calculate earnings per share. Under the two-class method, unvested share-based payment awards that contain non-forfeitable rights to dividends or dividend equivalents (whether paid or unpaid) are considered participating securities and are included in the computation of earnings per share. Certain of the Company’s shares granted to employees in the form of restricted stock are considered participating securities.

Accordingly, earnings per share is computed by dividing net income attributable to the Company’s common shareholders by the weighted-average common shares outstanding during the period. The two-class method is an earnings allocation formula that determines income per share for each class of common stock and participating security according to dividends declared and participation rights in undistributed earnings. Diluted income per common share reflects the more dilutive earnings per share amount calculated using the treasury stock method or the two-class method.

Basic earnings per share of common stock has been computed based on the weighted-average number of common shares outstanding during the period, which is reduced by stock held in treasury and shares of nonvested restricted stock. Diluted earnings per share of common stock reflects the weighted-average number of shares of common stock outstanding, outstanding deferred stock units and the impact of outstanding stock options, and stock appreciation rights (collectively “share-based awards”).  Share-based awards containing performance conditions are included in the dilution impact as those conditions are met.  Diluted earnings per share are calculated by including the effect of dilutive securities.

New Accounting Pronouncements

In January 2010, the Financial Accounting Standards Board, or FASB, issued ASU No. 2010-06 “Fair Value Measurements and Disclosures – Improving Disclosures about Fair Value Measurements”. ASU 2010-06 requires new disclosures for significant transfers in and out of Level 1 and 2 of the fair value hierarchy and the activity within Level 3 of the fair value hierarchy. The updated guidance also clarifies existing disclosures regarding the level of disaggregation of assets or liabilities and the valuation techniques and inputs used to measure fair value. The updated guidance is effective for interim and annual reporting periods beginning after December 15, 2009, with the exception of the new Level 3 activity disclosures, which are effective for interim and annual reporting periods beginning after December 15, 2010. The adoption of the new Level 1 and 2 guidance had no impact on the Company’s condensed consolidated financial statements. The adoption of the new Level 3 guidance is not expected to have a material impact on the Company’s condensed consolidated financial statements.

3. Long-Term Debt

Senior Unsecured Notes

On April 29, 2010, the Company sold $300,000 aggregate principal amount of 5.75% senior unsecured notes due May 1, 2020, or the Notes, at a public offering price of 99.587% of the principal amount per note. The Company, or Advance, served as the issuer of the Notes with each of Advance’s domestic subsidiaries serving as a subsidiary guarantor. The terms of the Notes are governed by an indenture and supplemental indenture (collectively the “Indenture”), dated as of April 29, 2010, among the Company, the subsidiary guarantors and Wells Fargo Bank, National Association, as Trustee.

The net proceeds from the offering of the Notes were $294,189, after deducting underwriting discounts and commissions and offering expenses of $4,572 (collectively “deferred financing costs”) payable by the Company. The Company is amortizing the deferred financing costs over the term of the Notes. The Company used the net proceeds from this offering to repay indebtedness outstanding under its revolving credit facility and term loan. Amounts repaid under the Company’s revolving credit facility may be reborrowed from time to time for operational purposes, working capital needs, capital expenditures and other general corporate purposes.
 
 
 
See Notes to the Consolidated Financial Statements for Additional Disclosures.
 

 
 
ADVANCE AUTO PARTS, INC.
SCHEDULE I -  CONSOLIDATED FINANCIAL INFORMATION OF THE REGISTRANT
Notes to the Condensed Parent Company Statements
January 1, 2011 and January 2, 2010
(in thousands, except per share data)
 
The Notes bear interest at a rate of 5.75% per year payable semi-annually in arrears on May 1 and November 1 of each year, commencing on November 1, 2010. The Company may redeem some or all of the Notes at any time or from time to time, at the redemption price described in the Indenture. In addition, in the event of a Change of Control Triggering Event (as defined in the Indenture), the Company will be required to offer to repurchase the notes at a price equal to 101% of the principal amount thereof, plus accrued and unpaid interest to the repurchase date. The Notes initially will be fully and unconditionally guaranteed, jointly and severally, on an unsubordinated and unsecured basis by each of the subsidiary guarantors. The Company will be permitted to release guarantees without the consent of holders of the Notes under the circumstances described in the Indenture.

The Indenture contains customary provisions for events of default including for (i) failure to pay principal or interest when due and payable, (ii) failure to comply with covenants or agreements in the Indenture or the Notes and failure to cure or obtain a waiver of such default upon notice, (iii) a default under any debt for money borrowed by the Company or any of its subsidiaries that results in acceleration of the maturity of such debt, or failure to pay any such debt within any applicable grace period after final stated maturity, in an aggregate amount greater than $25,000 without such debt having been discharged or acceleration having been rescinded or annulled within 10 days after receipt by the Company of notice of the default by the Trustee or holders of not less than 25% in aggregate principal amount of the Notes then outstanding, and (iv) events of bankruptcy, insolvency or reorganization affecting the Company and certain of its subsidiaries. In the case of an event of default, the principal amount of the Notes plus accrued and unpaid interest may be accelerated. The Indenture also contains covenants limiting the ability of the Company and its subsidiaries to incur debt secured by liens and to enter into sale and lease-back transactions.

Bank Debt

The Company fully and unconditionally guarantees the revolving credit facility of Stores. The revolving credit agreement does not contain restrictions on the payment of dividends, loans or advances between the Company and Stores and Stores’ subsidiaries. Therefore, there are no such restrictions as of January 1, 2011 and January 2, 2010.


4. Commitments and Contingencies

The Company has indirect commitments and contingencies through Stores. For a discussion of the commitments and contingencies of the consolidated company, see Notes 15 and 17 of the consolidated financial statements.


 

See Notes to the Consolidated Financial Statements for Additional Disclosures.

 

ADVANCE  AUTO PARTS, INC.
SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS
(in thousands)
 
Allowance for doubtful accounts receivable:
 
Balance at
Beginning of
Period
   
Charges to
Expenses
   
Deductions
     
Other
   
Balance at
End of
Period
 
January 3, 2009
  $ 3,987     $ 3,340     $ (2,297 ) (1)   $ -     $ 5,030  
January 2, 2010
    5,030       3,444       (2,838 ) (1)     -       5,636  
January 1, 2011
    5,636       2,066       (2,886 ) (1)     -       4,816  
 
(1)   
Accounts written off during the period. These amounts did not impact the Company’s statement of operations for any year presented.


Note : Other valuation and qualifying accounts have not been reported in this schedule because they are either not applicable or because the information has been included elsewhere in this report .
 
 

 
SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
 

Dated: March 1, 2011        
         
         
 
 
ADVANCE AUTO PARTS, INC.  
    By:  
/s/ Michael A. Norona 
 
 
Michael A. Norona
Executive Vice President and Chief Financial Officer
 

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
 
Signature
 
Title
Date
       
/s/ Darren R. Jackson
 
Chief Executive Officer
March 1, 2011
Darren R. Jackson
 
   and Director (Principal
 
   
   Executive Officer)
 
       
/s/ Michael A. Norona
 
Executive Vice President and Chief
March 1, 2011
Michael A. Norona
 
   Financial Officer (Principal
 
   
   Financial and Accounting Officer)
 
       
/s/ John C. Brouillard
 
Chairman and Director
March 1, 2011
John C. Brouillard
     
       
/s/ John F. Bergstrom
 
Director
March 1, 2011
John F. Bergstrom
     
       
/s/ Fiona P. Dias
 
Director
March 1, 2011
Fiona P. Dias
     
       
/s/ Frances X. Frei
 
Director
March 1, 2011
Frances X. Frei
     
       
/s/ William S. Oglesby
 
Director
March 1, 2011
William S. Oglesby
     
       
/s/ Gilbert T. Ray
 
Director
March 1, 2011
Gilbert T. Ray
     
       
/s/ J. Paul Raines   Director 
March 1, 2011
  J. Paul Raines      
       
/s/ Carlos A. Saladrigas
 
Director
March 1, 2011
Carlos A. Saladrigas
     
       
/s/ Francesca M. Spinelli
 
Director
March 1, 2011
Francesca M. Spinelli
     
       

 
 
EXHIBIT INDEX
 
       
Incorporated by Reference
 
Filed
Exhibit No.
 
Exhibit Description
 
Form
 
Exhibit
 
Filing Date
 
Herewith
3.1
 
Restated Certificate of Incorporation of Advance Auto Parts, Inc. (“Advance Auto”).
10-Q
 
3.1
 
8/16/2004
   
3.2
 
Amended and Restated Bylaws of Advance Auto. (effective August 12, 2009).
 
8-K
 
3.2
 
8/17/2009
   
4.1
 
Indenture, dated as of April 29, 2010, among Advance Auto Parts, Inc., each of the Subsidiary Guarantors from time to time party thereto and Wells Fargo Bank, National Association, as Trustee.
8-K
 
4.1
 
4/29/2010
   
4.2
 
First Supplemental Indenture, dated as of April 29, 2010, among Advance Auto Parts, Inc., each of the Subsidiary Guarantors from time to time party thereto and Wells Fargo Bank, National Association, as Trustee.
8-K
 
4.2
 
4/29/2010
   
4.3
 
Form of 5.750% Note due 2020.
 
8-K
 
4.3
 
4/29/2010
   
10.1
 
Credit Agreement dated as of October 5, 2006 among Advance Auto, Advance Stores Company, Incorporated (“Advance Stores”), as borrower, the lenders party hereto and JPMorgan Chase Bank, N.A., as administrative agent.
10-Q
 
10.1
 
8/25/2010
   
10.2
 
Advance Auto 2001 Senior Executive Stock Option Plan.
 
S-4
 
10.11
 
11/6/2001
   
10.3
 
Form of Advance Auto 2001 Senior Executive Stock Option Agreement.
 
S-4
 
10.12
 
11/6/2001
   
10.4
 
Advance Auto 2001 Executive Stock Option Plan.
 
S-4
 
10.13
 
11/6/2001
   
10.5
 
Form of Advance Auto 2001 Stock Option Agreement.
 
S-4
 
10.15
 
11/6/2001
   
10.6
 
Form of Indemnity Agreement between each of the directors of Advance Auto and Advance Auto, as successor in interest to Advance Holding.
8-K
 
10.19
 
5/20/2004
   
10.7
 
Purchase Agreement dated as of October 31, 2001 among Advance Stores, Advance Trucking Corporation, LARALEV, INC., Western Auto Supply Company, J.P. Morgan Securities Inc., Credit Suisse First Boston Corporation and Lehman Brothers Inc.
S-4
 
10.41
 
11/6/2001
   
10.8 (1)
 
Joinder to the Purchase Agreement dated as of November 28, 2001 by and among Advance Aircraft Company, Inc., Advance Merchandising Company, Inc., WASCO Insurance Agency, Inc., Western Auto of Puerto Rico, Inc., Western Auto of St. Thomas, Inc., Discount, DAP Acceptance Corporation, J.P. Morgan Securities, Inc., Credit Suisse First Boston Corporation and Lehman Brothers Inc.
S-4
 
10.33
 
1/22/2002
   
10.9 (2)
 
Form of Master Lease dated as of February 27, 2001 by and between Dapper Properties I, II and III, LLC and Discount.
10-Q
 
10.28
 
4/2/2001
   
10.10 (1)
 
Form of Amendment to Master Lease dated as of December 28, 2001 between Dapper Properties I, II and III, LLC and Discount.
S-4
 
10.39
 
1/22/2002
   
10.11 (2)
 
Form of Sale-Leaseback Agreement dated as of February 27, 2001 by and between Dapper Properties I, II and III, LLC and Discount.
10-Q
 
10.29
 
4/2/2001
   
10.12 (1)
 
Substitution Agreement dated as of November 28, 2001 by and among GE Capital Franchise Finance Corporation, Washington Mutual Bank, FA, Dapper Properties I, II and III, LLC, Autopar Remainder I, II and III, LLC, Discount and Advance Stores.
S-4
 
10.41
 
1/22/2002
   
10.13 (1)
 
First Amendment to Substitution Agreement dated as of December 28, 2001 by and among GE Capital Franchise Finance Corporation, Washington Mutual Bank, FA, Dapper Properties I, II and III, LLC, Autopar Remainder I, II and III, LLC, Discount, Advance Stores and Western Auto Supply Company.
S-4
 
10.42
 
1/22/2002
   
10.14
 
Advance Auto Parts, Inc. 2004 Long-Term Incentive Plan (as amended April 17, 2008).
10-Q
 
10.19
 
5/29/2008
   
10.15
 
Form of Advance Auto Parts, Inc. 2004 Long-Term Incentive Plan Stock Option Agreement.
10-Q
 
10.38
 
8/16/2004
   
10.16
 
Form of Advance Auto Parts, Inc. 2004 Long-Term Incentive Plan Award Notice.
10-Q
 
10.39
 
8/16/2004
   



       
Incorporated by Reference
 
Filed
Exhibit No.
 
Exhibit Description
 
Form
 
Exhibit
 
Filing Date
 
Herewith
10.17
 
Advance Auto Parts, Inc. Deferred Stock Unit Plan for Non-Employee Directors and Selected Executives (as amended January 1, 2008), including  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, 2009) and Second 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, 2010).
           
X
10.18
 
Amended Advance Auto Parts, Inc. Employee Stock Purchase Plan.
  10-K  
10.34
 
3/16/2006
   
10.19
 
Advance Auto Parts, Inc. Deferred Compensation Plan (as amended January 1, 2008), including First Amendment to the Advance Auto Parts, Inc. Deferred Compensation Plan (as amended and restated effective as of January 1, 2009) and   Second Amendment to the Advance Auto Parts, Inc. Deferred Compensation Plan (as amended and restated effective as of January 1, 2010).
 
 
 
 
 
  X
10.20
 
Release and Termination Agreement dated as of October 5, 2006, among Advance Auto, Advance Stores Company, Incorporated and JPMorgan Chase Bank, N.A., as administrative agent.
8-K
 
10.38
 
10/12/2006
   
10.21
 
Form of Advance Auto Parts, Inc. 2007 Restricted Stock Award.
 
8-K
 
10.39
 
2/26/2007
   
10.22
 
Form of Advance Auto Parts, Inc. 2007 Stock Appreciation Right Award.
 
8-K
 
10.40
 
2/26/2007
   
10.23
 
Term Loan Credit Agreement dated as of December 4, 2007 among Advance Auto Parts, Inc., Advance Stores Company, Incorporated, as borrower, the lenders party hereto and JPMorgan Chase Bank, N.A. as administrative agent.
10-Q
 
10.30
 
8/25/2010
   
10.24
 
Guarantee Agreement dated as of December 4, 2007 among Advance Auto Parts, Inc. and JPMorgan Chase Bank, N.A., as administrative agent for the lenders.
8-K
 
10.31
 
12/10/2007
   
10.25
 
Employment Agreement effective January 7, 2008 between Advance Auto Parts, Inc., and Darren R. Jackson.
8-K
 
10.25
 
1/11/2008
   
10.26
 
Advance Auto Parts, Inc. Executive Incentive Plan.
 
DEF 14A
 
Appendix B
 
4/11/2007
   
10.27    First Amendment to Employment Agreement effective June 4, 2008 between Advance Auto Parts, Inc. and Darren R. Jackson.  8-K    10.32   6/4/2008    
10.28
 
Form of Employment Agreement effective June 4, 2008 between Advance Auto Parts, Inc., and Kevin P. Freeland, Michael A. Norona, and Jimmie L. Wade.
8-K
 
10.33
 
6/4/2008
   
10.29
 
Attachment C to Employment effective June 4, 2008 between Advance Auto Parts, Inc., and Kevin P. Freeland.
8-K
 
10.34
 
6/4/2008
   
10.30
 
Attachment C to Employment Agreement effective June 4, 2008 between Advance Auto Parts, Inc., and Michael A. Norona.
8-K
 
10.35
 
6/4/2008
   
10.31
 
Attachment C to Employment Agreement effective June 4, 2008 between Advance Auto Parts, Inc., and Jimmie L. Wade.
8-K
 
10.36
 
6/4/2008
   
10.32
 
Form of Senior Vice President Loyalty Agreements.
 
10-Q
 
10.37
 
11/12/2008
   
10.33
 
Form of Advance Auto Parts, Inc. Stock Appreciation Rights Award Agreement dated November 17, 2008.
8-K
 
10.38
 
11/21/2008
   
10.34
 
Form of Advance Auto Parts, Inc. Restricted Stock Award Agreement dated November 17, 2008.
8-K
 
10.39
 
11/21/2008
   
10.35
 
Second Amendment to Employment Agreement effective January 1, 2010 between Advance Auto Parts, Inc. and Darren R. Jackson.
10-Q
 
10.43
 
6/2/2010
   
10.36
 
Form of First Amendment to Employment Agreement effective January 1, 2010 between Advance Auto Parts, Inc. and Jimmie L. Wade, Kevin P. Freeland and Michael A. Norona.
10-Q
 
10.44
 
6/2/2010
   
10.37
 
Employment Agreement effective January 1, 2010 between Advance Auto Parts, Inc. and Tamara A. Kozikowski.
10-Q
 
10.45
 
6/2/2010
   
10.38
 
Amendment to the Credit Agreement, dated December 4, 2007, among Advance Stores, Advance Auto Parts, Inc., the lenders party hereto and JPMorgan Chase Bank, N.A., as administrative agent.
10-Q
 
10.46
 
8/25/2010
   
10.39
 
Second Amendment to the Credit Agreement, dated April 15,  2010, among Advance Stores, Advance Auto Parts, Inc., the lenders party hereto and JPMorgan Chase Bank, N.A., as administrative agent.
10-Q
 
10.47
 
8/25/2010
   



       
Incorporated by Reference
 
Filed
Exhibit No.
 
Exhibit Description
 
Form
 
Exhibit
 
Filing Date
 
Herewith
10.40  
Third Amendment to Employment Agreement effective September 1, 2010 between Advance Auto Parts, Inc. and Darren R. Jackson.
  10-Q  
10.48
 
11/17/2010
   
10.41  
Fourth Amendment to Employment Agreement effective January 7, 2011 between Advance Auto Parts, Inc. and Darren R. Jackson.
             
X
10.42    Form of Advance Auto Parts, Inc. 2011 SARS Award Agreement and Restricted Stock Award Agreement between Advance Auto Parts, Inc. and Darren R. Jackson                X
12.1
 
Statement Regarding Computation of Ratio of Earnings to Fixed Charges.
     
X
21.1
 
Subsidiaries of Advance Auto.
     
X
23.1
 
Consent of Deloitte & Touche LLP.
     
X
31.1
 
Certification of Chief Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
     
X
31.2
 
Certification of Chief Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
     
X
32.1
 
Certifications of Chief Executive Officer and Chief Financial Officer Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
             
X
101.INS (3)
 
XBRL Instance Document
               
101.SCH (3)
 
XBRL Taxonomy Extension Schema Document
               
101.CAL (3)
 
XBRL Taxonomy Extension Calculation Linkbase Document
               
101.LAB (3)
 
XBRL Taxonomy Extension Labels Linkbase Document
               
101.PRE (3)
 
XBRL Taxonomy Extension Presentation Linkbase Document
               
101.DEF (3)
 
XBRL Taxonomy Extension Definition Linkbase Document
               
 
(1)   
Filed an exhibit to Registration Statement on Form S-4 (No. 333-81180) of Advance Stores Company, Incorporated.
(2)   
Filed as an exhibit to the Quarterly Report on Form 10-Q (No. 001-11276) of Discount.
(3)   
In accordance with Rule 406T of Regulation S-T, the XBRL related information in Exhibit 101 to this Annual Report on Form 10-K shall not be deemed to be “filed” for purposes of Section 18 of the Exchange Act, or otherwise subject to the liability of that section, and shall not be part of any registration statement or other document filed under the Securities Act or the Exchange Act, except to the extent expressly set forth by specific reference in such filing.
 
 
 

 
Exhibit 10.17
 
 
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)
 
 
 
 
 
 
 

 
 

 

TABLE OF CONTENTS
Page
 
ARTICLE I    GENERAL 
1
Section 1.1      Purpose
1
Section 1.2      Status of Plan
1
Section 1.3      Effective Date
1
Section 1.4      Pre-2005 Deferrals
1
       
 
ARTICLE II    DEFINITIONS 
2
Section 2.1      Affiliated Company
2
Section 2.2      Aggregated Plans 
2
Section 2.3      Base Salary 
2
Section 2.4      Beneficiary 
2
Section 2.5      Board 
2
Section 2.6      Board Service Period 
3
Section 2.7      Code 
3
Section 2.8      Company 
3
Section 2.9      Compensation Committee 
3
Section 2.10      Deferral Election Agreement 
3
Section 2.11     Deferral Period 
3
Section 2.12      Deferred Amount 
3
Section 2.13      Deferred Stock Unit or DSU 
3
Section 2.14      Deferred Stock Unit Account or DSU Account 
3
Section 2.15     Director 
3
Section 2.16      Disabled 
3
Section 2.17      Dividend Equivalents 
4
Section 2.18      Eligible Compensation 
4
Section 2.19      Eligible Executive 
4
Section 2.20      Eligible Individual 
4
Section 2.21      Employee 
4
Section 2.22      Employer 
4
Section 2.23      ERISA 
4
Section 2.24      Participant 
4
Section 2.25      Plan 
5
Section 2.26      Plan Administration Committee 
5
Section 2.27      Plan Year 
5
Section 2.28      Qualified Change in Control Event 
5
Section 2.29      Quarterly Bonus 
5
Section 2.30      Retainer 
5
Section 2.31      Retirement 
5
Section 2.32      Roll-up Performance Bonus 
5
Section 2.33      Separation from Service 
5
Section 2.34      Share 
6
Section 2.35      Shares Grant 
6
Section 2.36      Specified Employee 
6
Section 2.37      Specified Time 
7
       
 
ARTICLE III    PARTICIPATION AND DEFERRAL ELECTIONS 
8
Section 3.1      Eligibility 
8
Section 3.2      Duration of Participation 
8
Section 3.3
    Deferral Election Agreement 
8
Section 3.4      Deferred Amount 
9
Section 3.5      Designated Payment Event 
9
Section 3.6      Form of Payment 
10
Section 3.7      Deferral Election Deadline 
10
Section 3.8      Election for First Year of Eligibility 
11
Section 3.9      Irrevocability of Election 
12
 
 
 
i

 
 
 
Section 3.10     Evergreen Elections
13
Section 3.11     Non-Elective LTIP Shares Grant Deferrals
14
       
 
ARTICLE IV   MAINTENANCE AND INVESTMENT OF ACCOUNTS 
15
Section 4.1      DSU Accounts
15
Section 4.2      Dividend Equivalent Credits
15
Section 4.3      Capital Adjustments
15
Section 4.4      Vesting
15
Section 4.5      Statement of Accounts
15
Section 4.6      Hypothetical Nature of Accounts and Investments
16
       
 
ARTICLE V    DISTRIBUTIONS 
17
Section 5.1      Eligibility for Distributions
17
Section 5.2     Retirement Distributions
17
Section 5.3     Specified Time Distributions
17
Section 5.4      Other Payment Events
17
Section 5.5      Designated Payment Date
17
Section 5.6      Restriction on Distributions to Specified Employees
18
Section 5.7     No Acceleration of Scheduled Distributions
19
Section 5.8      Extension of Specified Time Deferral Period
19
Section 5.9      Delay of Payments Under Certain Circumstances
20
Section 5.10      Payment Medium
20
Section 5.11      Unforeseeable Emergency Withdrawal
21
Section 5.12      Withholding of Taxes
22
Section 5.13      USERRA Rights
22
       
 
ARTICLE VI    PLAN TERMINATION PAYMENTS UPON QUALIFIED CHANGE IN CONTROL EVENT 
23
Section 6.1      Termination of Plan Upon Change in Control 
23
Section 6.2      Qualified Change in Control Event
23
Section 6.3      Change in the Ownership of a Corporation
23
Section 6.4      Change in the Effective Control of a Corporation
24
Section 6.5      Change in the Ownership of Substantial Portion of Assets
24
Section 6.6      Definitions and Operating Rules
25
Section 6.7      Special Rule for Certain Delayed Payments
26
       
 
ARTICLE VII    BENEFICIARY DESIGNATION 
27
Section 7.1      Beneficiary Designation
27
Section 7.2      No Beneficiary Designation
27
       
 
ARTICLE VIII    ADMINISTRATION OF PLAN 
28
Section 8.1      Named Fiduciaries
28
Section 8.2      Claim Procedure 
30
       
 
ARTICLE IX    AMENDMENT AND TERMINATION OF PLAN 
32
Section 9.1
    Amendment
32
Section 9.2      Company’s Right to Terminate
32
       
 
ARTICLE X    MISCELLANEOUS 
34
Section 10.1      Unfunded Plan
34
Section 10.2     Nonassignability
34
Section 10.3      Validity and Severability
34
Section 10.4      Governing Law 
34
Section 10.5      Employment Status 
34
Section 10.6      No Stockholder Rights Conferred 
35
Section 10.7      Underlying Incentive Plans and Programs 
35
Section 10.8      Funding and Financial Health Restrictions 
35
 

 
ii

 

ARTICLE I
 
GENERAL
 
 
Section 1.1  Purpose .  It is the intention of Advance Auto Parts, Inc. (the “Company”) to continue to maintain and provide for the administration of the Advance Auto Parts, Inc. Deferred Stock Unit Plan for Non-Employee Directors and Selected Executives (the “Plan”) in accordance with the provisions of Section 409A of the Code, and in accordance with other provisions of law relating to non-qualified deferred compensation plans.  The purpose of the Plan is to provide an additional mechanism to encourage stock ownership, as well as to provide a means to allow eligible individuals to defer the receipt of compensation that would otherwise be currently payable to the individual.
 
 
Section 1.2 Status of Plan .  The Plan is maintained by the Company primarily for the purpose of providing deferred compensation to non-employee members of the Company’s Board of Directors, and to members of a select group of management or highly compensated employees within the meaning of Title I of the Employee Retirement Income Security Act of 1974, as amended (ERISA).  It is the intention of the Company that the Plan be unfunded for tax purposes and for purposes of Title I of ERISA.  The Plan constitutes a mere promise by the Company to make deferred compensation payments in the future.  As to such deferred compensation benefits, Participants under the Plan have the status of a general, unsecured creditors of the Company.  The benefits provided under this Plan to Eligible Executives are in addition to those made available under the Advance Auto Parts, Inc. Deferred Compensation Plan.
 
 
Section 1.3  Effective Date .  The Plan is a continuation of the Plan that was originally adopted effective as of May 19, 2004.  Except as may be expressly provided otherwise, the Plan is hereby amended and restated effective as of January 1, 2008 for the purpose of becoming compliant with final Code Section 409A regulations issued by the Internal Revenue Service
 
 
Section 1.4  Pre-2005 Deferrals .  Deferrals made under the Plan for periods occurring on or before December 31, 2004 shall be administered in accordance with the terms of this Plan as herein restated.
 

 
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ARTICLE II
 
DEFINITIONS
 
 
For the purposes of this Plan, the following words and phrases shall have the meanings indicated, unless the context clearly indicates otherwise:
 
Section 2.1  Affiliated Company .  “Affiliated Company” means the Company and each other corporation or enterprise, which as of a given date, is then a member of the same controlled group of corporations or the same group of trades or businesses under common control, determined in accordance with Sections 414(b) and (c) of the Code, as is the Company.
 
Section 2.2  Aggregated Plans .  “Aggregated Plans” means the Advance Auto Parts, Inc. Deferred Compensation Plan, and any other account balance form of deferred compensation plan allowing elective deferrals that is sponsored by an Affiliated Company, and which  is required to be aggregated with this Plan pursuant to IRS Regulation §1.409A-1(c)(2).
 
Section 2.3  Base Salary .
 
(a)  
The “Base Salary” of an Eligible Executive for a Plan Year means the base rate of cash compensation otherwise payable by an Employer to or for the benefit of the Eligible Executive for services rendered or labor performed while that Eligible Executive is a Participant in this Plan for such Plan Year, including the base pay that an Eligible Executive could have received in cash in lieu of:
 
 
(i)
Compensation deferrals elected to be made under this Plan or the Advance Auto Parts, Inc. Deferred Compensation Plan, or under any other non-qualified deferred compensation plan maintained by the Company or other Affiliated Company; and
 
 
(ii)
Contributions made by or on the Eligible Executive’s behalf to any qualified retirement plan, or to any Code Section 125 cafeteria plan or other employee benefit plan maintained by the Company or other Affiliated Company.
 
(b)  
Any compensation paid to an Eligible Executive after the last day of a Plan Year solely for services performed during the final payroll period (as described in Code Section 3401(b)) containing the last day of the Plan Year shall be treated as compensation for services performed in the subsequent Plan Year.  For example, if a payroll period begins on December 23 of Year 1 and ends on January 5 of Year 2, then the compensation for that payroll period shall be treated as Year 2 compensation.
 
Section 2.4  Beneficiary .  “Beneficiary” means the person, persons or entity designated by the Participant or by the terms of the Plan to receive any benefits payable under the Plan pursuant to Article VII.
 
Section 2.5  Board .  Except as provided in Section 6.1, “Board” means the Board of Directors of the Company as constituted from time to time.
 
 
 
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Section 2.6  Board Service Period .  “Board Service Period” means, with respect to a Director, the period beginning on the date of each annual meeting of the Board (or, in the case of a newly-elected Director, beginning on the first day of the Director’s membership on the Board) and ending on the date immediately preceding the following annual meeting of the Board, or such other designated annual period of service as a member of the Board.
 
Section 2.7  Code .  “Code” shall mean the Internal Revenue Code of 1986, as amended.  References to any provision of the Code or regulation (including a proposed regulation) thereunder shall include any successor provisions or regulations.
 
Section 2.8  Company .  “Company” means Advance Auto Parts, Inc., its successors, and any organization into which or with which Advance Auto Parts, Inc. may merge or consolidate or to which all or substantially all of its assets may be transferred.
 
Section 2.9  Compensation Committee .  “Compensation Committee” means the Compensation Committee of the Board, or any successor to such committee.
 
Section 2.10  Deferral Election Agreement .  “Deferral Election Agreement” (sometimes referred to simply as a “Deferral Election”) means the agreement governing an Eligible Individual’s deferral of the receipt of Eligible Compensation as submitted by the Eligible Individual under the Plan in accordance with Section 3.3.
 
Section 2.11  Deferral Period .  “Deferral Period” means the period defined in Section 3.5.
 
Section 2.12  Deferred Amount .  “Deferred Amount” means the amount defined in Section 3.4.
 
Section 2.13  Deferred Stock Unit or DSU .  “Deferred Stock Unit” or “DSU” shall mean a bookkeeping entry that represents the right to receive one Share at a future date.  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.
 
Section 2.14  Deferred Stock Unit Account or DSU Account .  “Deferred Stock Unit Account” or “DSU Account” means an account in which Deferred Amounts are valued as if they were invested in Company stock.
 
Section 2.15  Director .  “Director” shall mean a member of the Board.
 
Section 2.16  Disabled .  A Participant shall be considered to be or have become “Disabled” for purposes of the Plan if, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve months, the Participant:
 
 
(a)
Is unable to engage in any substantial gainful activity; or
 
 
(b)
Is receiving, and has received for a period of not less than three months, income replacement benefits under another accident and health plan covering employees of the Participant’s Employer.
 
 
 
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A Participant will be deemed to be Disabled if the Participant has been determined to be disabled (i) by the Social Security Administration, or (ii) under a disability insurance program having a definition of disability that satisfies the standard prescribed above.
 
Section 2.17  Dividend Equivalents .  “Dividend Equivalents” shall mean an amount equal to the regular cash dividends paid by the Company upon one Share.
 
Section 2.18  Eligible Compensation .
 
 
(a)
The “Eligible Compensation” of any Eligible Executive for any period means the Base Salary, Quarterly Bonus or Roll-up Performance Bonus, if any, otherwise payable to the Eligible Executive for services performed during such period.
 
 
(b)
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.
 
Section 2.19  Eligible Executive .  “Eligible Executive” means an Employee of an Employer who with respect to the Plan Year at issue:
 
(a)  
Holds a position with the Company, or an Affiliated Company, of a Senior Vice President, or a position senior to, or recognized as being equivalent to, a Senior Vice President; and
 
(b)  
Satisfies any such other eligibility requirements as the Compensation Committee may establish from time to time.
 
Section 2.20  Eligible Individual .  “Eligible Individual” for a Plan Year means a Director or Eligible Executive who is eligible to participate in the Plan for that Plan Year.
 
Section 2.21  Employee .  “Employee” shall mean any employee of the Company or any Affiliated Company.
 
Section 2.22  Employer .  “Employer” means each Affiliated Company having Employees who are eligible to participate in the Plan.  An Affiliated Company qualifying as an Employer as of January 1, 2005 shall continue as such, subject to the provisions of the Plan.  For periods on and after January 1, 2005, if an Affiliated Company acquires a corporation or other trade or business, and if the acquired entity is thereupon maintained as a separate Employer or operating unit with respect an Affiliated Company in general, then such entity shall not be deemed to be an Employer with respect to the Plan, and the Employees employed by that entity shall not be eligible to participate in the Plan, unless and until the Company directly, or acting through the Plan Administration Committee, affirmatively designates the acquired entity as an Employer.
 
Section 2.23  ERISA .  “ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
 
Section 2.24  Participant .  “Participant” means a Director or an Eligible Executive who has elected to participant in the Plan by filing a Deferral Election Agreement as provided in Article III.  Each Director who is awarded Shares Grants shall also be a Participant with respect to such awards.
 
 
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Section 2.25  Plan .  “Plan” means this Deferred Stock Unit Plan for Non-Employee Directors and Selected Executives, as may be amended from time to time.
 
Section 2.26  Plan Administration Committee .  “Plan Administration Committee” means the committee that is responsible for the operation and administration of the Plan, as identified in Section 8.1(c).
 
Section 2.27  Plan Year .  “Plan Year” means a 12-month period beginning January 1 and ending the following December 31.
 
Section 2.28  Qualified Change in Control Event .  “Qualified Change in Control Event” is a change in control of an Employer, as more fully prescribed in Article VI.
 
Section 2.29  Quarterly Bonus .  “Quarterly Bonus” means the amount awarded to an Eligible Executive for each quarterly performance period within a Plan Year pursuant to any approved incentive plan maintained by an Employer.
 
Section 2.30  Retainer .  “Retainer” means any retainers payable to a Director for services performed for the Board during a Board Service Period, exclusive of any supplemental Board meeting fees, chair fees or committee meeting fees payable to the Director.
 
Section 2.31  Retirement .  “Retirement” or “Retired” means:
 
(a)  
In the case of a Participant who is an Eligible Executive, the Participant’s Separation from Service after both attaining age 55 and completing at least 10 continuous years of service with the Affiliated Companies; and
 
(b)  
In the case of a Participant who is a Director, the Participant’s Separation from Service.
 
Section 2.32  Roll-up Performance Bonus .  “Roll-up Performance Bonus” means the bonus of the same name that is awarded to an Eligible Executive under an incentive plan maintained by an Employer.  Under the terms of the incentive plan, a Roll-up Performance Bonus is (i) contingent upon the satisfaction of organizational or individual performance criteria, and (ii) measured on the basis of a performance period of 12 months (being the Plan Year).  A performance bonus payable to an Eligible Executive that does not satisfy both of the above conditions will be treated under the Plan as a Quarterly Bonus.
 
Section 2.33  Separation from Service .
 
(a)  
In the case of a Participant who is a Director, a Separation from Service will occur when the Director ceases to be a member of the Board; provided that (i) the cessation constitutes a good-faith and complete termination of the Director’s service relationship with the Company, and (ii) it is not anticipated that the services of the Director will be renewed, either as a Director, or as an independent contractor or an Employee of the Company or another Affiliated Company.
 
(b)  
Subject to the further provisions of this Section 2.33, a Participant who is an Eligible Executive will incur a Separation from Service for purposes of the Plan if the Eligible Executive dies, retires, or otherwise has a termination of employment as to all the  Affiliated Companies.
 
 
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(c)  
An Eligible Executive’s employment relationship with an Affiliated Company will be treated as continuing intact, and thus the Eligible Executive will not be deemed to have incurred a Separation from Service, while the Eligible Executive is on military leave, sick leave or other bona fide leave of absence if the period of such leave does not exceed six months, or if longer, so long as the Eligible Executive retains a right to reemployment with the Affiliated Company under an applicable statute or by contract.  A leave of absence constitutes a bona fide leave of absence only if there is a reasonable expectation that the Eligible Executive will return to perform services for the Affiliated Company.  If the period of leave exceeds six months and the Eligible Executive does not retain a right to reemployment under an applicable statute or by contract, the employment relationship is deemed to terminate on the first day immediately following such six-month period.
 
(d)  
Whether a termination of employment has occurred is determined based on whether the facts and circumstances indicate that the Affiliated Company and the Eligible Executive reasonably anticipated that no further services would be performed after a certain date, or that the level of bona fide services the Eligible Executive would perform after such date (whether as an Employee or as an independent contractor) would permanently decrease to no more than 20 percent of the average level of bona fide services performed  (whether as an Employee or an independent contractor) over the immediately preceding 36-month period (or the full period of services to the Affiliated Companies if the Eligible Executive has been providing services to the Affiliated Companies less than 36 months).  An Eligible Executive is presumed to have incurred a Separation from Service where the level of bona fide services performed decreases to a level equal to 20 percent or less of the average level of services performed by the Eligible Executive during the immediately preceding 36-month period.  An Eligible Executive will be presumed not to have incurred a Separation from Service where the level of bona fide services performed continues at a level that is 50 percent or more of the average level of service performed by the Eligible Executive during the immediately preceding 36-month period.  No presumption applies to a decrease in the level of bona fide services performed to a level that is more than 20 percent, and less than 50 percent, of the average level of bona fide services performed during the immediately preceding 36-month period.
 
Section 2.34  Share .  “Share” shall mean a share of common stock of the Company, par value $.0001 per share.
 
Section 2.35  Shares Grant .  “Shares Grant” means the grant of Shares, if any, awarded by the Company to a Director as authorized by the Company’s 2004 Long-Term Incentive Plan (“2004 LTIP”).
 
Section 2.36  Specified Employee .
 
(a)  
Each Participant who is an Eligible Executive, or an Employee serving as a Director, shall be deemed to be a Specified Employee for purposes of the Plan, and therefore shall be subject to distribution restrictions prescribed under Section 5.6 of the Plan.
 
(b)  
A Participant who is not an Eligible Executive, or an Employee serving as a Director, (i.e., an “outside” Director) is not a Specified Employee, and therefore is not a Specified Employee for purposes of the Plan.
 
 
 
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Section 2.37  Specified Time .  “Specified Time” means a designated Deferral Period with respect to a DSU Account that based on a stated number of years, as prescribed in Section 3.5(b).
 
 
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ARTICLE III
 
 
PARTICIPATION AND DEFERRAL ELECTIONS
 
Section 3.1  Eligibility .
 
(a)  
Each Director and Eligible Executive who was a Participant in the Plan as of December 31, 2007 shall continue as such, subject to the provisions of the Plan.
 
(b)  
On or after January 1, 2008, each individual who becomes a Director or an Eligible Executive shall be immediately eligible to become a Participant in the Plan.
 
(c)  
An Eligible Executive who is transferred from an Employer to employment with an Affiliated Company that is not an Employer with respect to the Plan, or who while continuing in the employ of an Employer ceases to be an Eligible Executive (a “Transferred Participant”), shall not be considered to have incurred a Separation from Service.  The Transferred Participant shall continue to be eligible to make deferrals under the Plan through the end of the Plan Year in which such transfer occurs, or for such additional period as may be permitted by the Compensation Committee.
 
Section 3.2  Duration of Participation .  Each Participant shall remain a Participant under the Plan until the balance of all of the Participant’s DSU Accounts has been distributed to the Participant or the Participant’s Beneficiary.
 
Section 3.3  Deferral Election Agreement .
 
(a)  
For each Board Service Period, each Director shall be permitted to submit a Deferral Election Agreement with respect to the Retainer otherwise payable to the Director for services performed during the Board Service Period.
 
(b)  
For each Plan Year, each Eligible Executive for that Plan Year shall be permitted to submit a separate Deferral Election Agreement with respect to each of the forms of Eligible Compensation otherwise payable to the Eligible Executive for services performed during the Plan Year.  The forms of Eligible Compensation for a Plan Year consist of Base Salary, Quarterly Bonuses and Roll-up Performance Bonus.  For administrative convenience, the Plan Administration Committee can direct that the elections for two or more forms of the Eligible Compensation be combined on a single form.  The submission of the Deferral Election Agreement must be made 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.
 
(c)  
The Deferral Election Agreement with respect to each form of Eligible Compensation shall include the elections and descriptions prescribed below.
 
 
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(i)  
The amount of the Participant’s Eligible Compensation to be deferred for the Board Service Period or Plan Year, as applicable (i.e., the “Deferred Amount,” as described more fully in Section 3.4);
 
(ii)  
The designated payment event for such Deferred Amount, as described more fully in Section 3.5; and
 
(iii)  
The form in which the Deferred Amount is elected to be paid, as described more fully in Section 3.6.
 
Section 3.4  Deferred Amount .
 
 
(a)
The Deferral Election Agreement of a Participant for a Board Service Period or Plan Year, as applicable, shall 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”).
 
 
(i)
A Director may elect to defer up to 100% of his or her Retainer for a Board Service Period.
 
 
(ii)
An Eligible Executive shall make a separate deferral election for each form of the Eligible Executive’s Eligible Compensation (i.e., Base Salary, Quarterly Bonus and Roll-up Performance Bonus) for the Plan Year.  The maximum or minimum amount of deferral that may be elected by an Eligible Executive for a Plan Year with respect to each form of Eligible Compensation shall be established by the Plan Administration Committee.
 
 
(b)
The aspect of a Deferral Election Agreement regarding the elected Deferred Amount shall not apply to any pay period for which the amount of the Eligible Compensation remaining to be paid to the Participant (but for the deferral election), after making any other deductions or withholdings of income, would be less than the Deferred Amount prescribed in the Deferral Election Agreement.
 
Section 3.5  Designated Payment Event .  A Participant’s Deferral Election Agreement must designate the event that will give rise to the payment of the Deferred Amount.  The period of the deferral through the date of the event giving rise to the payment of the Deferred Amount is sometimes referred to herein as the “Deferral Period.”  Subject to the terms of the Plan, including Section 5.6 (regarding the restriction on distributions to Specified Employees), a Participant may elect to have the Deferred Amount pertaining to services performed in any Board Service Period or Plan Year, as applicable, become payable upon either of the following alternative events:
 
 
(a)
The Participant’s Retirement or other Separation from Service; or
 
 
(b)
The last day of a future calendar year; provided, however, that such designated calendar year cannot be earlier than the second calendar year following the calendar year in which falls the first day of the Board Service Period or Plan Year, as applicable, to which the deferred compensation pertains (i.e., as of a “Specified Time”).  For example, a Director may elect the designated payment event for a DSU Account pertaining to the Board
 
 
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Service Period beginning as of the annual Board meeting held in May of Year 1 to be December 31 of Year 3, or the last day of any subsequent calendar year.
 
Notwithstanding the terms of a Deferral Election Agreement, a Participant’s Retirement shall be a designated payment event with respect to each of the Participant’s DSU Accounts.  Accordingly, if such Retirement occurs prior to the occurrence of the Specified Time designated in any Deferral Election Agreement for any DSU Account, then the Retirement shall supplant the Specified Time election with respect to that  DSU Account.
 
Section 3.6  Form of Payment .  A Participant’s Deferral Election Agreement shall designate the form in which the Deferred Amount will be paid if such payments arise by reason of a designated payment event prescribed in Section 3.5 above.  The permissive forms of payment are:
 
 
(a)
A lump sum; or
 
 
(b)
Substantially equal annual installments over a period (as the Participant shall designate) of not less than two years and not more than 10 years.
 
Section 3.7  Deferral Election Deadline.
 
 
(a)  
A Deferral Election pertaining to a Director’s Retainer that may otherwise become payable to the Director for services performed to the Board during a Board Service Period must be filed on or before December 31 of the Plan Year immediately preceding the beginning of the Board Service Period for which it is effective (a “Statutory Deadline”), or as of such earlier submission date established by the Plan Administration Committee.
 
 
(b)  
A Deferral Election pertaining to any Base Salary or Quarterly Bonuses that may otherwise become payable to an Eligible Executive for services performed during a Plan Year, including in regard to 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.
 
 
(c)  
A Deferral Election pertaining to any Roll-up Performance Bonus that may otherwise become payable to an Eligible Executive for services performed during a Plan Year must be submitted on or before December 31 of the Plan Year immediately preceding the Plan Year performance period for which it is effective (a “Statutory Deadline”), or as of such earlier submission date established by the Plan Administration Committee.  Notwithstanding the foregoing, the Compensation Committee in its discretion may permit Eligible Executives to submit the Deferral Election for the Roll-up Performance 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:
 
 
(i)  
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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(ii)  
The election is made before the amount of the Roll-up Performance Bonus becomes readily ascertainable.
 
Section 3.8  Election for First Year of Eligibility .  Notwithstanding Section 3.7 above, the provisions of this Section 3.8 shall apply in regard to an individual who becomes an Eligible Executive or a Director, and thereupon becomes eligible to participate in the Plan, after the first day of a Plan Year.
 
(a)  
The timing of the Eligible Individual’s initial Deferral Election shall be governed by the rules prescribed below.
 
 
(i)  
The initial Deferral Election must be made within 30 days after the date the individual becomes such 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, shall become irrevocable as of the expiration of such 30-day election period.
 
 
(ii)  
Notwithstanding paragraph (i) above, an initial Deferral Election by an Eligible Executive with respect to a Quarterly Bonus or a Roll-up Performance Bonus that is affirmatively made and submitted under the Plan by the last day of the quarter or Plan Year preceding the quarter or Plan Year for which the Deferral Election will first apply, and before the expiration of the otherwise applicable 30-day election period, shall become irrevocable as of the last day of such preceding quarter or Plan Year.
 
 
(iii)  
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.
 
(b)  
A former Participant who has again become an Eligible Individual shall be treated as first becoming eligible to participate in the Plan, and thus shall be subject to the special election rules of this Section 3.8, under either of the following circumstances:
 
 
(i)  
The former Participant has been paid all amounts deferred under the Plan and all other Aggregated Plans, and the Participant ceased to be eligible to elect to continue to participate in the Plan or an Aggregated Plan on or before the date of the last such payment; or
 
 
(ii)  
The former Participant was not eligible to participate in the Plan or an Aggregated Plan during the 24-month period ending on the date of again becoming eligible to participate in the Plan or an Aggregated Plan.
 
(c)  
The compensation to which such initial Deferral Election will apply shall be determined in accordance with the rules set forth below.
 
 
(i)  
The Eligible Individual’s initial Deferral Election shall apply only to the Eligible Compensation otherwise payable for services performed by the Eligible Individual
 
 
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subsequent to the date the Deferral Election has become irrevocable pursuant to subsection (a) above.
 
 
(ii)  
For purposes of paragraph (i) above, as with respect to a Deferral Election by an Eligible Executive pertaining to a Quarterly or Roll-up Performance Bonus, if the initial Deferral Election is made after the beginning of the applicable bonus performance period, the Deferral Election shall apply to the total amount of Eligible 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.
 
 
(iii)  
The formula prescribed in paragraph (ii) above shall 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 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.
 
Section 3.9  Irrevocability of Election .
 
(a)  
Once the applicable Statutory Deadline to make a Deferral Election for any form of Eligible Compensation with respect to any Board Service Period or Plan Year, as applicable, has passed, as prescribed in Section 3.7, or once the deadline for making an initial Deferral Election pursuant to Section 3.8 above has expired, the Deferral Election shall generally become irrevocable.  The consequences of such include the following:
 
 
(i)  
The amount of the Eligible Compensation that the Participant elected to defer for the Board Service Period or Plan Year, as applicable, or the election not to defer any amount, cannot be canceled or modified;
 
 
(ii)  
The form of payment for the DSU Account to which the Deferred Election applies cannot be modified; and
 
 
(iii)  
The designated date of payment for the DSU Account to which the Deferred Election applies cannot be modified, except as provided in Section 5.8.
 
(b)  
Notwithstanding subsection (a) above, an Eligible Executive who receives a hardship withdrawal from a Section 401(k) plan maintained by the Company or another Affiliated Company, and who is thereupon suspended from making elective deferrals under all qualified and non-qualified plans of the Affiliated Companies pursuant to IRS Regulation § 1.401(k)-1(d)(3) and the terms of the 401(k) plan, shall have his or her Deferral Election under this Plan thereupon canceled on a prospective basis.  Such Deferral Election cancellation rule shall be subject to the following:
 
 
(i)  
An Eligible Executive’s Deferral Election shall not be canceled upon the hardship withdrawal if the 401(k) plan does not require the suspension of elective deferrals; and
 
 
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(ii)  
An Eligible Executive whose Deferral Election is canceled pursuant to the above, and who thereafter becomes eligible to resume making deferrals under this Plan, shall nevertheless remain subject to the general election deadline rules prescribed under this Section 3.9.  Accordingly, the Eligible Executive shall not be permitted to resume making elective deferrals under this Plan for any period prior to the first day of the Plan Year following the expiration of the elective deferral suspension period under the applicable 401(k) plan.
 
(c)  
Further notwithstanding subsection (a) above, the Deferral Election of a Participant who receives an Unforeseeable Emergency withdrawal from the Plan pursuant to Section 5.11 shall be cancelled on a prospective basis.  Such cancellation shall continue in effect for the remainder of the Plan Year in which the withdrawal is made.  The Participant, if otherwise so eligible, shall be permitted to elect to make elective deferrals under the Plan for the subsequent Plan Year.
 
Section 3.10  Evergreen Elections .
 
(a)  
Prior to each Deferral Election Agreement submission deadline, each Eligible Individual shall be provided information regarding the Eligible Individual’s deferral rights under the Plan for the following Plan Year or other applicable period.  The Eligible Individual shall then be permitted to affirmatively elect or decline to enter into a Deferral Election Agreement for the applicable period.  In the event that an Eligible Individual fails to timely submit a Deferral Election Agreement, or fails to affirmatively decline to enter into a Deferral Election Agreement, for any period, then the Eligible Individual shall be deemed to have made the same Deferral Election (or election declination) as had most recently been made for the form of Eligible Compensation at issue.
 
(b)  
Subject to Section 3.9(b) above (regarding the cancellation of a Deferred Election upon a 401(k) plan hardship withdrawal), a deemed election shall become irrevocable as of the applicable Statutory Deadline (as prescribed in Section 3.7).  For example, an Eligible Executive who fails to make or affirmatively decline a Deferral Election Agreement in regard to Base Salary payable for Year 2 will be deemed to have made the same Base Salary Deferral Election, or election declination, as in effect for Year 1.  An Eligible Individual who is first eligible to make a Deferral Election for any form of Eligible Compensation, but fails to timely make such election, shall be deemed to have declined such Deferral Election.  Subject to subsection (c) below, this deemed evergreen election shall apply to all aspects of an Eligible Individual’s Deferral Election, including in regard to the designated Deferral Period.
 
(c)  
The Deferral Period applicable to a evergreen election deemed to be made under this Section 3.10 with respect to any form of Eligible Compensation shall be determined as prescribed below.
 
 
(i)  
If the most recent Deferral Election for the form of Eligible Compensation at issue designated a Deferral Period extending to the Eligible Individual’s Retirement or other Separation from Service, then that same designation shall apply to the deemed evergreen election.
 
 
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(ii)  
If the most recent Deferral Election for the form of Eligible Compensation designated a deferral of payment for a Specified Time, then that Specified Time shall be deemed to have also been elected; provided, however, if that Specified Time is not the end of at least two full calendar years following the beginning of the Board Service Period or Plan Year, as applicable, to which the deemed evergreen election applies, then the Deferral Period for a Deferred Amount that is the subject of the deemed election shall be the end of such second future calendar year.
 
Section 3.11  Non-Elective LTIP Shares Grant Deferrals .
 
(a)  
Each Shares Grant awarded to a Director under the 2004 LTIP shall be automatically deferred under the Plan on a non-elective basis, and shall be credited to the Director’s DSU Account.
 
(b)  
A Director who receives a Shares Grant for any Board Service Period shall be deemed to have made the same election as to the timing and form of payment of the DSU Account to which the Shares Grant is credited as the election that was made (or which was deemed to have been made pursuant to Section 3.10 above) in connection with the deferral of the Director’s Retainer for such Board Service Period.  In the event the Director did not make (and is not deemed to have made) a Deferral Election for such Board Service Period, then the Director shall be deemed to have elected to have the balance of the DSU Account pertaining to such Shares Grant paid in a lump sum upon Retirement.
 

 
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ARTICLE IV
 
MAINTENANCE AND INVESTMENT OF ACCOUNTS
 
 
Section 4.1  DSU Accounts .
 
(a)  
Separate DSU Accounts shall be maintained for each Participant.  An amount equal to that the Eligible Compensation deferred by or on behalf of the Participant under the Plan shall be credited to the applicable DSU Accounts.  More than one DSU Account may be maintained for a Participant as necessary to reflect separate Deferral Election Agreements specifying different Deferral Periods or forms of payment.
 
(b)  
A Participant’s DSU Accounts shall be utilized solely as a device for the measurement and determination of the amounts to be paid to the Participant pursuant to this Plan, and shall not constitute or be treated as a trust fund of any kind.
 
(c)  
A DSU Account will be credited with the number of DSUs calculated to the nearest thousandth of a DSU, determined by dividing the Deferred Amount on the date of deferral by the closing market price of the Company’s common stock as reported on the Consolidated Tape of the New York Stock Exchange listed shares on such date of deferral.
 
Section 4.2  Dividend Equivalent Credits .  To the extent the Company pays dividends, on each dividend payment date, a Participant’s DSU Account will be credited with Dividend Equivalents in additional DSUs determined by multiplying the number of DSUs in the Participant’s DSU Account on the related dividend record date by any per share cash dividends declared by the Company on its own common stock and dividing the product by the closing market price of the Company’s common stock as reported on the Consolidated Tape of the New York Stock Exchange listed shares on such dividend payment date.  At the Compensation Committee’s discretion, the DSU Accounts may also be credited with DSUs by multiplying the number of DSUs in a Participant’s DSU Account by any stock dividends declared by the Company on its common stock, unless the DSU Accounts are adjusted pursuant to Section 4.3
 
Section 4.3  Capital Adjustments .  The number of DSUs in a Participant’s DSU Account shall be adjusted, as the Board or Compensation Committee deems appropriate, to reflect stock dividends, stock splits, reclassifications, spinoffs, and other extraordinary distributions, as if those DSUs were actual Shares.
 
Section 4.4  Vesting .  A Participant shall be 100% vested in the balance of each of his or her DSU Accounts at all times.
 
Section 4.5  Statement of Accounts .  The Plan Administration Committee shall submit to each Participant quarterly statements of his or her DSU Accounts, in such form as the Plan Administration Committee deems desirable, setting forth the balance to the credit of such Participant in his or her DSU Accounts as of the end of the most recently completed quarter.
 
 
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Section 4.6  Hypothetical Nature of Accounts and Investments .  Each DSU Account established under this Article IV shall be maintained for bookkeeping purposes only.  Neither the Plan nor any of the DSU Accounts established under the Plan shall hold any actual funds or assets.  The DSU Accounts established hereunder shall be used solely to determine the amounts to be paid hereunder, shall not be or represent an equity security of the Company, shall not be convertible into or otherwise entitle a Participant to acquire an equity security of the Company and shall not carry any voting rights.
 

 
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ARTICLE V
 
DISTRIBUTIONS
 
 
Section 5.1  Eligibility for Distributions .  Except as otherwise provided herein, a distribution from a Participant’s DSU Account may be made only on account of one of the following events incurred by or with respect to the Participant:
 
(a)  
The Participant’s Separation from Service.  In this regard, a distribution by reason of a Participant’s Retirement shall be permitted only if the Retirement constitutes a Separation from Service;
 
(b)  
The Participant becoming Disabled;
 
(c)  
The Participant’s death;
 
(d)  
A Specified Time, as prescribed under the Participant’s Deferral Election Agreement;
 
(e)  
An Unforeseeable Emergency, as prescribed in Section 5.11 below; or
 
(f)  
The termination of the Plan, or portion of the Plan, prescribed in Section 9.2.
 
Section 5.2  Retirement Distributions .  Subject to Section 5.6 below, in either of the circumstances described below, upon a Participant’s Retirement, the value of the Participant’s DSU Accounts shall be then distributed to the Participant in installments or in a lump sum as designated in the applicable Deferral Election Agreement.
 
(a)  
The  Participant had elected to receive payment of a DSU Account upon Retirement; or
 
(b)  
The Deferral Period elected by the Participant for that DSU Account was a Specified Time, but the Participant Retires before the end of that Specified Time.
 
Section 5.3  Specified Time Distributions .  Subject to Sections 5.6 and 5.8 below, if the Deferral Period elected by a Participant with respect to a DSU Account is a Specified Time, and the Participant did not Retire before the end of that Specified Time, then upon the end of that Specified Time, the value of the DSU Account at issue shall be distributed to the Participant in installments or in a lump sum as designated in the applicable Deferral Election Agreement.
 
Section 5.4  Other Payment Events .  Notwithstanding the provisions of any Deferral Election Agreement, if prior to Retirement a Participant dies, becomes Disabled but remains employed, or incurs a Separation from Service, the entire balance of all of the Participant’s DSU Accounts shall be distributed to the Participant or the Participant’s Beneficiary or Beneficiaries (as the case may be) in a lump sum payment.
 
Section 5.5  Designated Payment Date .
 
(a)  
The designated date as of which the value of a Participant’s DSU Account is to be distributed, or shall commence being distributed, shall be as prescribed below.
 
 
 
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(i)  
The designated payment date with respect to a DSU Account to be distributed in a lump sum payment, including with respect to a lump sum payment made to a Participant’s Beneficiary upon the Participant’s death, shall be the first day following the date of the event giving rise to the lump sum payment (or, if later, the date as of which the final deferral with respect to the Deferral Election Agreement pertaining to the DSU Account is withheld from the Participant’s paycheck).
 
(ii)  
In the case of distributions to be made to a Participant in the form of installment payments, the designated payment dates shall be the first day of the month following the date of the event that gives rise to the payment, and each annual anniversary of that initial designated payment date.
 
(iii)  
The designated payment date with respect to amounts in a Director’s DSU Account that are attributable to deferrals of Shares Grants shall be paid to the Director in a lump sum within 90 days after the date of the Director’s Separation from Service of the Board.
 
(iv)  
The designated payment date with respect to a withdrawal due to an Unforeseeable Emergency pursuant to Section 5.9 below shall be the date as of which the withdrawal request is approved by the Plan Administration Committee.
 
(b)  
For purposes of the administrative provisions of this Plan, a payment shall be treated as having been made upon the date specified under subsection (a) above if the payment is made:
 
(i)  
On such date or a later date within the same calendar year; or
 
(ii)  
If later, by the 15 th day of the third calendar month following the date so specified.
 
Notwithstanding the foregoing, if calculation of the amount of the payment is not administratively practicable due to events beyond the control of the Participant (or the Participant’s estate), the payment will be treated as made upon the specified date if the payment is made during the first calendar year in which the payment is administratively practicable.
 
For purposes of administrative convenience, payment may be made to a Participant no earlier than 30 days before the designated payment date prescribed in subsection (a) above.
 
In no event shall a Participant be permitted, directly or indirectly, to designate the taxable year of the distribution.
 
Section 5.6  Restriction on Distributions to Specified Employees .
 
(a)  
Notwithstanding the provisions of Section 5.5 above, if a Participant is a Specified Employee as of the date of the Participant’s Retirement or other Separation from Service, then, by reason of such event, the amounts held in the Participant’s DSU Accounts shall become payable as of the first day of the seventh month following the date of the
 
 
18

 
 
  
 Participant’s Retirement or other Separation from Service (or, if earlier, as of the date of the Participant’s death).
 
(b)  
If the distributions to the Specified Employee are to be made in annual installments, the delay in payment prescribed in subsection (a)(ii) above shall apply solely to the first installment payment.  Each subsequent installment payment shall be made as of the date such payment otherwise would have been made pursuant to Section 5.5.
 
(c)  
The distribution restrictions prescribed in subsection (a)(ii) above shall not apply to a payment to be made pursuant to Section 5.7(b)(i) or (ii) (regarding the payment of employment taxes and compensation deferred under the Plan or a certificate of divesture compliance distributions), or Section 10.2(b) (regarding domestic relations orders).
 
Section 5.7  No Acceleration of Scheduled Distributions .
 
(a)  
Except as otherwise provided in the Plan, the time or schedule of any distribution of any portion of a Participant’s DSU Accounts shall not be permitted to be accelerated, either at the election of the Participant or at the discretion of the Compensation Committee or the Plan Administration Committee.
 
(b)  
Notwithstanding the foregoing, distributions may be made to or on behalf of a Participant prior to the otherwise applicable designated payment date in the following situations:
 
(i)  
As may be necessary to comply with a certificate of divestiture (as defined in Code Section 1043(b)(2));
 
(ii)  
To pay FICA taxes on amounts deferred under the Plan, or income taxes on additional charges arising from the Employer’s payment of FICA taxes or for amounts attributable to the pyramiding of wages and taxes; or
 
(iii)  
If the Plan at any time fails to meet the requirements of Code Section 409A and the underlying regulations.  In that event, however, the accelerated payment may not exceed the amount required to be included in the Participant’s income as a result of the Plan’s failure to comply with the Code Section 409A requirements.
 
Section 5.8  Extension of Specified Time Deferral Period .  Section 3.5(b) of the Plan permits a Participant to select a Deferral Period of a stated period of calendar years (i.e., a “Specified Time Deferral Period”).  In this connection, a Participant shall be permitted to extend a Specified Time Deferral Period with respect to a DSU Account, subject to the conditions set forth below.
 
(a)  
An election to extend the Specified Time Deferral Period with respect to any DSU Account must be submitted under the Plan in accordance with the Plan Administration Committee’s established procedures.
 
(b)  
Any such election shall not take effect under the Plan until 12 months after the date on which the election is properly submitted.
 
 
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(c)  
An election to extend a Specified Time Deferral Period must provide for the lengthening of the Specified Time Deferral Period for a period of not less than an additional five years.
 
(d)  
Any election to extend a Specified Time Deferral Period must be made at least 12 months prior to the designated payment date (as prescribed in Section 5.5(a)) for the first scheduled payment from the applicable DSU Account.
 
(e)  
For purposes of this Section 5.8:
 
(i)  
The entitlement to installment payments shall be treated as the entitlement to a single payment; and
 
(ii)  
The applicable designated payment date otherwise applicable to a Specified Time Deferral Period shall be determined without regard to the restrictions on distributions to Specified Employees prescribed in Section 5.6.
 
Section 5.9  Delay of Payments Under Certain Circumstances .  Notwithstanding any provision of the Plan to the contrary, payment to a Participant will be delayed to a date after the designated payment date otherwise prescribed under Section 5.5 under any of the circumstances prescribed below.
 
(a)  
A payment to a Participant will be delayed where the Compensation Committee reasonably anticipates that the Company’s or other Affiliated Company’s income tax deduction with respect to such payment otherwise would be limited or eliminated by application of Code Section 162(m); provided, however, that in such event, the payment shall be made either at the earliest date at which the Compensation Committee reasonably anticipates that the deduction of the payment of the amount will not be limited or eliminated by application of Code Section 162(m), or the calendar year in which the Participant Separates from Service.
 
(b)  
A payment to a Participant will be delayed where the Compensation Committee reasonably anticipates that the making of the payment will violate federal securities laws or other applicable law; provided, however, that in such event, the payment to be made at the earliest date at which the Company or other Affiliated Company reasonably anticipates that the making of the payment will not cause such violation.  For purposes of this subsection (c), the making of a payment that would cause inclusion in gross income or other application of any penalty provision or other provision of the Code is not treated as a violation of applicable law.
 
(c)  
A payment to a Participant will be delayed upon such other events and conditions as may be prescribed in generally applicable guidance issued by the Internal Revenue Service.
 
Section 5.10  Payment Medium .
 
(a)  
All payments to a Participant (or to a Participant’s Beneficiary) with respect to the Participant’s DSU Account shall be paid in Shares, unless the Compensation Committee in its discretion directs that such amounts be paid in cash.  If Shares are not traded on The New York Stock Exchange on any day on which a payment of Shares is to be made under the Plan, then that payment shall be made on the next day on which Shares are traded on
 
 
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the New York Stock Exchange.  Shares paid from this Plan will be drawn from shareholder-approved stock incentive plans.
 
(b)  
The value of any fractional Shares otherwise payable with respect to a Participant shall be paid in cash.  Such value shall be determined as of the last business day of the month immediately preceding the date of the payment or final payment, as the case may be.
 
Section 5.11  Unforeseeable Emergency Withdrawal .  A Participant who incurs an Unforeseeable Emergency (as defined below) may submit a request to the Plan Administration Committee for a withdrawal equal to that portion (or all) of the Participant’s DSU Accounts as is then needed to alleviate the financial hardship resulting therefrom.  Such withdrawals shall be subject to the following provisions of this Section 5.11.
 
(a)  
For purposes of this Section 5.11:
 
(i)  
An “Unforeseeable Emergency” means a severe financial hardship to a Participant resulting from an illness or accident of the Participant, or of the spouse, a dependent (as defined in Code Section 152(a)) or a primary beneficiary (as defined below) of the Participant; the loss of the Participant’s property due to casualty; or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant; and
 
(ii)  
A ”primary beneficiary” of a Participant is an individual who is named as a Beneficiary of the Participant under the Plan, and who has an unconditional right to all, or a portion of, the balance of the Participant’s DSU Account upon the death of the Participant.
 
(b)  
The circumstances that will constitute an Unforeseeable Emergency will depend upon the facts of each case.  Examples of circumstances that may qualify as an Unforeseeable Emergency (provided that the other conditions of this Section 5.11 are satisfied) are:
 
(i)  
The imminent foreclosure of, or eviction from, the Participant’s primary residence;
 
(ii)  
The need to pay for medical expenses, including non-refundable deductibles or the cost of prescription drugs; and
 
(iii)  
The need to pay for the funeral expenses of the spouse, or dependent or primary beneficiary of the Participant.
 
The purchase of a home and the payment of college tuition are not Unforeseeable Emergencies for purposes of this Plan.
 
(c)  
A withdrawal shall not be permitted under this Section 5.11 to the extent that the hardship resulting from the Unforeseeable Emergency is, or may be, relieved:
 
(i)  
Through the reimbursement or compensation by insurance or otherwise;
 
 
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(ii)  
By the liquidation of the Participant’s assets, to the extent the liquidation of such assets would not itself cause severe financial hardship; or
 
(iii)  
By the cessation of deferrals under the Plan.
 
(d)  
The amount of any Unforeseeable Emergency withdrawal shall be limited to that which the Plan Administration Committee determines is reasonably necessary to alleviate the hardship resulting from the occurrence of the Unforeseeable Emergency (which may include any amount necessary to pay any federal or state income taxes or penalties reasonably anticipated to result from the distribution).  The determination of the amount reasonably necessary to satisfy the emergency need must take into account any additional compensation that is available to the Participant upon cancellation of the Participant’s deferral election due to the Unforeseeable Emergency withdrawal that is effected pursuant to Section 3.9(c).  However, such determination is not required to take into account any additional Unforeseeable Emergency withdrawal that is available under another nonqualified deferred compensation plan, but which has not actually been paid from that other plan.
 
(e)  
After reviewing each Unforeseeable Emergency withdrawal request, the Plan Administration Committee shall make a determination as to whether the circumstances satisfy the Unforeseeable Emergency standards prescribed above, and will thereupon notify the requesting Participant of the determination.  If the request is approved, the Plan Administration Committee shall process payment of the withdrawal
 
(f)  
The Plan Administration Committee may establish a policy and procedures regarding the order in which Unforeseeable Emergency withdrawals are to be charged against the particular DSU Accounts of a Participant.
 
Section 5.12  Withholding of Taxes . Notwithstanding any other provision of this Plan, an Employer shall withhold from payments made hereunder any amounts required to be so withheld by any applicable law or regulation.
 
Section 5.13  USERRA Rights .  Notwithstanding any provision of this Article V to the contrary, the Plan shall permit a Participant to elect a change in the time or the form of payment as may be required to comply with the Uniformed Services Employment and Reemployment Rights Act (USERRA).
 
 
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ARTICLE VI
 
PLAN TERMINATION PAYMENTS UPON QUALIFIED CHANGE IN CONTROL EVENT
 
 
Section 6.1  Termination of Plan Upon Change in Control .  Notwithstanding any provision of the Plan to the contrary, upon the occurrence of a Qualified Change in Control Event involving the Company or other Relevant Employer (as defined in Section 6.6(a) below), the Board as constituted immediately prior to the event may in its discretion terminate the Plan, or the portion of the Plan pertaining to the Relevant Employer, and cause to be distributed to each affected Participant the entire balance of all of the Participant’s DSU Accounts.  The termination by such Board must occur within the 30 days preceding, or within the 12-month period following, the Qualified Change in Control Event.  Such Plan termination distributions shall be permitted only if:
 
(a)  
All substantially similar non-qualified deferred compensation programs maintained by the Company and all other Affiliated Companies are terminated upon such Qualified Change in Control Event; and
 
(b)  
All compensation deferred and held under each such deferred compensation program is distributed to Participants within 12 months of the date of termination of the applicable program.
 
Section 6.2  Qualified Change in Control Event .  For purposes of this Article VI, a “Qualified Change in Control Event” with respect to any Participant means any of the following events:
 
(a)  
A Qualified change in the ownership of a corporation that is a Relevant Employer (as prescribed in Section 6.3);
 
(b)  
A Qualified change in effective control of a corporation that is a Relevant Employer (as prescribed in Section 6.4); and
 
(c)  
A Qualified Change in the ownership of a substantial portion of the assets of a corporation that is a Relevant Employer (as prescribed in Section 6.5).
 
Section 6.3  Change in the Ownership of a Corporation .
 
(a)  
For purposes of this Article VI, a change in the ownership of a corporation occurs on the date that any one person, or more than one person acting as a group, acquires ownership of stock of the corporation that, together with stock held by such person or group, constitutes more than 50 percent of the total fair market value or total voting power of the stock of such corporation.  If any one person, or more than one person acting as a group, is considered to own more than 50 percent of the total fair market value or total voting power of the stock of a corporation, the acquisition of additional stock by the same person or persons is not considered to cause a change in the ownership of the corporation (or to cause a change in the effective control of the corporation within the meaning of Section 6.4 below).
 
 
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(b)  
For purposes of this Section 6.3, an increase in the percentage of stock owned by any one person, or by persons acting as a group, as a result of a transaction in which the corporation acquires its stock in exchange for property will be treated as an acquisition of stock.
 
 
(c)
In all regards, for purposes of this Section 6.3, a change in the ownership of a corporation will be deemed to have occurred only when there is a transfer of stock of a corporation (or issuance of stock of a corporation), and stock in such corporation remains outstanding after the transaction.
 
Section 6.4  Change in the Effective Control of a Corporation .
 
(a)  
For purposes of this Article VI, a change in the effective control of a corporation occurs on the date that either:
 
(i)  
A majority of members of the Company’s Board is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of the Company’s Board prior to the date of the appointment or election; or
 
(ii)  
Any one person, or more than one person acting as a group acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) ownership of stock of the applicable corporation possessing 30 percent or more of the total voting power of the stock of such corporation.
 
(b)  
A change in effective control of a corporation may also occur in any transaction in which either of the two corporations involved in the transaction incurs a change in control event described under Section 6.3 or 6.5.
 
Section 6.5  Change in the Ownership of Substantial Portion of Assets
 
(a)  
For purposes of this Article VI, a change in the ownership of a substantial portion of a corporation's assets occurs on the date that any one person, or more than one person acting as a group acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) assets from the corporation that have a total gross fair market value equal to or more than 40 percent of the total gross fair market value of all of the assets of the corporation immediately prior to such acquisition or acquisitions. For this purpose, gross fair market value means the value of the assets of the corporation, or the value of the assets being disposed of, determined without regard to any liabilities associated with such assets.
 
(b)  
A transfer of assets by a corporation shall not be treated as a change in the ownership of such assets, and such transfer shall thus not constitute a Qualified Change in Control Event, if the assets are transferred to:
 
(i)  
A shareholder of the corporation (immediately before the asset transfer) in exchange for or with respect to its stock;
 
 
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(ii)  
An entity, 50 percent or more of the total value or voting power of which is owned, directly or indirectly, by the corporation;
 
(iii)  
A person, or more than one person acting as a group, that owns, directly or indirectly, 50 percent or more of the total value or voting power of all the outstanding stock of the corporation; or
 
(iv)  
An entity, at least 50 percent of the total value or voting power of which is owned, directly or indirectly, by a person described in paragraph (iii).
 
(c)  
For purposes of subsection (b) above, a person's status is determined immediately after the transfer of the assets.  Thus, for example, a transfer to a corporation in which the transferor corporation has no ownership interest before the transaction, but which is a majority-owned subsidiary of the transferor corporation after the transaction is not treated as a change in the ownership of the assets of the transferor corporation.
 
Section 6.6  Definitions and Operating Rules .  The following definitions and operating rules shall apply for purposes of this Article VI.
 
(i)  
Relevant Employer .  To constitute a Qualified Change in Control Event as to the particular Participant, the event must relate to one of the following corporate employers:
 
(i)  
The Company;
 
(ii)  
A subsidiary corporate Employer for whom the Participant is performing services at the time of the Qualified Change in Control Event; or
 
(iii)  
A subsidiary corporate Employer that is a majority shareholder of an Employer identified in paragraph (ii) above, or any corporate Employer in a chain of corporations in which each corporation is a majority shareholder of another corporation in the chain, ending in a corporation identified in paragraph (ii) above.  For purposes of this paragraph (iii), a majority shareholder of a corporate Employer is a shareholder owning more than 50% of the total fair market value and total voting power of such Employer.
 
(ii)  
Persons Acting as a Group .  Persons will not be considered to be acting as a group solely because they purchase or own stock of the same corporation at the same time, or as a result of the same public offering. However, persons will be considered to be acting as a group if they are owners of a corporation that enters into a merger, consolidation, purchase or acquisition of stock, or similar business transaction with the corporation. If a person, including an entity, owns stock in both corporations that enter into a merger, consolidation, purchase or acquisition of stock, or similar transaction, such shareholder is considered to be acting as a group with other shareholders in a corporation prior to the transaction giving rise to the change and not with respect to the ownership interest in the other corporation.
 
(iii)  
Ownership Attribution .  The ownership attribution rules of Code Section 318(a) shall apply to determine stock ownership.  Stock underlying a vested option is considered owned by the individual who holds the vested option (and the stock underlying an unvested option is
 
 
25

 
 
  
not considered owned by the individual who holds the unvested option).  For purposes of the preceding sentence, however, if a vested option is exercisable for stock that is not substantially vested (as defined in IRS Regulation § 1.83-3(b) and (j)), the stock underlying the option is not treated as owned by the individual who holds the option.
 
Section 6.7  Special Rule for Certain Delayed Payments .  Payment from a Participant’s DSU Accounts that are calculated by reference to the value of Company stock shall be treated as paid at a specified time or pursuant to a fixed schedule in conformity with the requirements of the Plan if such amounts are paid on the same schedule and under the same terms and conditions as payments to shareholders generally pursuant to a Qualified Change in Control Event described in Section 6.3 above (i.e., a change in the ownership of a corporation) or as payments to the Participant pursuant to a Qualified Change in Control Event  described in Section 6.5 above (i.e., a change in the ownership of a substantial portion of a corporation’s assets).  Any amounts paid pursuant to such a schedule and such terms and conditions will not be treated as violating the initial or subsequent deferral election rules, to the extent that such amounts are paid not later than five years after the Qualified Change in Control Event.
 

 
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ARTICLE VI I
 
BENEFICIARY DESIGNATION
 
 
Section 7.1  Beneficiary Designation . Each Participant shall have the right, at any time, to designate any person, persons or entity as his Beneficiary or Beneficiaries. A Beneficiary designation shall be made, and may be amended, by the Participant by filing a written designation with the Plan Administration Committee, on such form and in accordance with such procedures as the Plan Administration Committee shall establish from time to time.
 
Section 7.2  No Beneficiary Designation . If a Participant fails to designate a Beneficiary as provided above, or if all designated Beneficiaries predecease the Participant, then the Participant’s Beneficiary shall be the Participant’s estate.
 

 
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ARTICLE VIII
 
ADMINISTRATION OF PLAN
 
 
 
 
Section 8.1  Named Fiduciaries .  The persons identified in this Section 8.1 are named as fiduciaries under this Plan and shall be the only named fiduciaries with respect to the Plan.
 
(a)  
The Company, as Plan sponsor, shall be responsible for all fiduciary functions under the Plan except insofar as any such authority or responsibility is assigned by or pursuant to the Plan to another named fiduciary, or is delegated to another fiduciary pursuant to subsection (b) below.  In that regard, the Company shall be the “Administrator” of the Plan within the meaning of ERISA.  The authority and responsibility reserved or assigned to the Company shall be exercised by its Compensation Committee or other authorized officers, and shall include the authority and responsibility in regard to the following:
 
(i)  
The design of the Plan, including the right to amend and to terminate the Plan;
 
(ii)  
Establishing the criteria for Employees who are to be designated as Eligible Executives for any Plan Year; and
 
(iii)  
Considering and reviewing all appeals of claims which have been denied.
 
(b)  
The Compensation Committee may delegate to a committee or to any officer of the Company or any Affiliated Company any authority or responsibility reserved or assigned to the Company pursuant to the Plan.  In the event of any such delegation, then any references to the authority, right or power of the Company to act which are contained in any notice, disclosure or communication made with a view toward effectuating the purposes of the Plan shall be construed to include authority for such actions by the committee or officer to whom the Compensation Committee has delegated its authority.  Notwithstanding any other provision of the Plan, in the event that an action or direction of any person to whom authority reposed with the Company under the Plan has been delegated by the Compensation Committee conflicts with an action or direction of the Board of Directors, then the authority of the Compensation Committee shall supersede that of the delegate with respect to such action or direction.
 
(c)  
A Plan Administration Committee shall have the responsibility and authority to control the operation and administration of the Plan in accordance with the terms of the Plan.
 
(i)  
The members of the Plan Administration Committee shall be the individuals serving in the roles of, respectively, the Senior Vice President of Human Resources and the Vice President, Compensation and Benefits for the Employers, and such other individuals who are appointed to the Plan Administration Committee by such Senior Vice President of Human Resources (or, in the event of a vacancy in such position, by the Vice President, Compensation and Benefits).
 
 
 
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(ii)  
The Plan Administration Committee may designate one of its members as a chairperson, and may retain and supervise outside providers, third party administrators, record keepers and professionals (including in-house professionals) to perform any or all of the duties delegated to it hereunder.
 
(d)  
The Plan Administration Committee shall be responsible for the administration of this Plan and shall have all powers necessary to administer this Plan, including discretionary authority to determine eligibility for benefits and to decide claims under the terms of this Plan, except to the extent that any such powers are vested in any other person administering this Plan by the Compensation Committee. The Plan Administration Committee may from time to time establish rules for the administration of this Plan, and it shall have the exclusive right to interpret this Plan and to decide any matters arising in connection with the administration and operation of this Plan. All rules, interpretations and decisions of the Plan Administration Committee shall be conclusive and binding on the Company, the Employers, Participants and Beneficiaries.
 
(e)  
The Plan Administration Committee is expressly reposed with the discretionary authority and powers in regard to all facets of any claims for benefits made under the Plan.  In turn, the Compensation Committee is expressly reposed with the discretionary authority and powers in regard to all facets of the review of a denied claim for benefits.  Such authority and powers include, but are not limited to, the following:
 
(i)  
Construing and interpreting the terms of the Plan and of any documents pertaining to the Plan;
 
(ii)  
Construing and interpreting all laws and regulations as applicable to any claims for benefits made under the Plan;
 
(iii)  
Making any factual determinations, and applying such determinations to the terms of the Plan and issues arising under the Plan; and
 
(iv)  
Otherwise deciding all questions regarding an individual’s benefit entitlements under the Plan, and the manner and timing of any payments to be made to or with respect to any individual under the Plan.
 
(f)  
No member of the Board, Compensation Committee or Plan Administration Committee shall be liable for any act or action hereunder, whether of omission or commission, by any other member or Employee or by any agent to whom duties in connection with the administration of this Plan have been delegated or for anything done or omitted to be done in connection with this Plan.
 
(g)  
The Company shall, to the fullest extent permitted by law, indemnify each director, officer or Employee of the Company or any Affiliated Company (including the heirs, executors, administrators and other personal representatives of such person), each member of the Compensation Committee and Plan Administration Committee against expenses (including attorneys’ fees), judgments, fines, amounts paid in settlement, actually and reasonably incurred by such person in connection with any threatened, pending or actual suit, action or proceeding (whether civil, criminal, administrative or investigative in nature or otherwise)
 
 
29

 
 
 
in which such person may be involved by reason of the fact that he or she is or was serving this Plan in any capacity at the request of the Company or any other Affiliated Company, the Compensation Committee or the Plan Administration Committee.
 
(h)  
Any expense incurred by the Company, an Employer, the Compensation Committee or the Plan Administration Committee relative to the administration of this Plan shall be paid by the Company or other Affiliated Company and/or may be deducted from the DSU Accounts of the Participants as determined by the Compensation Committee.
 
(i)  
Any member of the Compensation Committee or the Plan Administration Committee may also be a Participant, but no committee member shall have power to take part in any discretionary decision or action affecting his own interest as a Participant under this Plan unless such decision or action is upon a matter which affects all other Participants similarly situated and confers no special right, benefit or privilege not simultaneously conferred upon all other such Participants.
 
Section 8.2  Claim Procedure .
 
(a)  
If a Participant or Beneficiary makes a written request alleging a right to receive payments under this Plan or alleging a right to receive an adjustment in benefits being paid under this Plan, such actions shall be treated as a claim for benefits. All claims for benefits under this Plan shall be sent to the Plan Administration Committee.
 
(b)  
If the Plan Administration Committee determines that any individual who has claimed a right to receive benefits, or different benefits, under this Plan is not entitled to receive all or any part of the benefits claimed, the Plan Administration Committee shall inform the claimant in writing of such determination and the reasons thereof in terms calculated to be understood by the claimant. The notice shall be sent within 90 days of the claim unless the Plan Administration Committee determines that additional time, not exceeding 90 days, is needed and so notifies the Participant. The notice shall make specific reference to the pertinent Plan provisions on which the denial is based, and shall describe any additional material or information that is necessary. Such notice shall, in addition, inform the claimant of the procedure that the claimant should follow to take advantage of the review procedures set forth below in the event the claimant desires to contest the denial of the claim, and the right of the claimant to bring a civil action under ERISA if the claim is denied upon further review.  Upon request, and free of charge, the claimant will be provided with reasonable access to, and copies of, all documents, records and other information relevant to the claim for benefits.
 
(c)  
The claimant may within 90 days thereafter submit in writing to the Plan Administration Committee a notice that the claimant contests the denial of his or her claim and desires a further review of the denied claim.  The request for review will be directed to the Compensation Committee, which will review the claim and authorize the claimant to review pertinent documents and submit issues and comments relating to the claim. The Compensation Committee will render a final decision with specific reasons thereof in writing and will transmit it to the claimant within 60 days of the written request for review, unless the Compensation Committee determines that additional time, not exceeding
 
 
30

 
 
 
60 days, is needed, and so notifies the Participant.  If the claim is to be denied in whole or in part upon review, the written notice to the claimant will include the following:
 
(i)  
The specific reason or reasons for the denial;
 
(ii)  
Reference to the specific Plan provisions upon which the denial is based;
 
(iii)  
A statement that the claimant is entitled to receive, upon request, and free of charge, reasonable access to, and copies of, all documents, records and other information relevant to the claim appeal; and
 
(iv)  
A statement of the claimant’s right to file a civil lawsuit under ERISA.
 
(d)  
Notwithstanding subsection (c) above, if the Compensation Committee holds regularly scheduled meetings at least quarterly, the Compensation Committee shall make a claim review determination no later than the date of the meeting of the committee that immediately follows the Plan’s receipt of a request for review, unless the request for review is filed within 30 days preceding the date of such meeting.  In such case, a claim review determination may be made by no later than the date of the second meeting following the Plan’s receipt of the request for review.  If special circumstances (such as the need to hold hearing) require a further extension of time for processing, a determination shall be rendered not later than the third meeting of the committee following the Plan’s receipt of the request for review.  If such an extension of time for review is required because of special circumstances, the claimant shall be provided with written notice of the extension, describing the special circumstances and the date as of which the claim review determination will be made, prior to the commencement of the extension.  The claimant shall be notified of the claim review determination as soon as possible, but not later than five days after the determination is made.
 

 
31

 

ARTICLE IX
 
AMENDMENT AND TERMINATION OF PLAN
 
 
Section 9.1  Amendment . The Board or the Compensation Committee may at any time amend this Plan in whole or in part, provided, however, that no amendment shall be effective to decrease the balance in, or otherwise alter the election made with respect to, any DSU Account as accrued at the time of such amendment, nor shall any amendment otherwise have a retroactive effect.  In addition, any amendment that has the effect of changing the time or form of payment under the Plan with respect to any Participant shall be subject to the provisions of Sections 5.7 and 5.8 (regarding the prohibition against the acceleration of payments and the restrictions on changes in the time or form of payments).
 
Section 9.2  Company’s Right to Terminate .  The Board or the Compensation Committee may at any time terminate the Plan with respect to future Deferral Election Agreements.  However, the Plan cannot otherwise be terminated, and DSU Accounts thereupon distributed, except as provided below.
 
(a)  
The Plan may be terminated and distributions thereupon made upon a Qualified Change in Control Event, as prescribed in Section 6.1.
 
(b)  
The Plan may be terminated and distributions thereupon made within 12 months of the Company’s corporate dissolution taxed under Code Section 331, or with the approval of a bankruptcy court pursuant to 11 USC § 503(b)(1)(A), provided that the amounts deferred under the Plan are distributed for inclusion in the gross income of the Participant in the latest of:
 
(i)  
The calendar year in which the Plan termination occurs;
 
(ii)  
The calendar year in which the deferred amount is no longer subject to a substantial risk of forfeiture; or
 
(iii)  
The first calendar year in which the termination distribution is administratively practicable.
 
(c)  
The Plan may be terminated and distributions thereupon made if the conditions prescribed below are satisfied.
 
(i)  
Each other “account balance” deferred compensation plan maintained by the Company and any other Affiliated Company that also covers any Participant in this Plan is concurrently terminated;
 
(ii)  
No payments (other than payments that would be payable under the terms of the terminated programs if the terminations had not occurred) are made within 12 months of the termination of the programs;
 
(iii)  
All payments are made within 24 months of the termination of the applicable programs; and
 
 
32

 
 
(iv)  
During the three-year period following the termination of the Plan, neither the Company, nor any other Affiliated Company, adopts an account balance deferred compensation program covering any individual who was a Participant in the Plan upon its termination.
 

 
33

 

 
ARTICLE X
 
 
MISCELLANEOUS
 
 
Section 10.1  Unfunded Plan . This Plan is intended to be an unfunded plan.  All payments pursuant to the Plan shall be made from the general funds of the Employers and no special or separate fund shall be established or other segregation of assets made to assure payment. No Participant or other person shall have under any circumstances any interest in any particular property or assets of the Employers as a result of participating in the Plan. Notwithstanding the foregoing, the Employers may (but shall not be obligated to) create one or more grantor trusts, the assets of which are subject to the claims of the Employers’ creditors, to assist it in accumulating funds to pay its obligations under the Plan.
 
Section 10.2  Nonassignability .
 
(a)  
Except as specifically set forth in the Plan with respect to the designation of Beneficiaries, neither a Participant nor any other person shall have any right to commute, sell, assign, transfer, pledge, anticipate, mortgage or otherwise encumber, transfer, hypothecate or convey in advance of actual receipt the amounts, if any, payable hereunder, or any part thereof, which are, and all rights to which are, expressly declared to be unassignable and non-transferable. No part of the amounts payable shall, prior to actual payment, be subject to seizure or sequestration for the payment of any debts, judgments, alimony or separate maintenance owed by a Participant or any other person, nor be transferable by operation of law in the event of a Participant’s or any other person’s bankruptcy or insolvency.
 
(b)  
Notwithstanding the foregoing, the balance of a Participant’s DSU Accounts, or any portion thereof, shall be distributed in accordance with the terms of any domestic relations order which the Plan Administration Committee determines to be a qualified domestic relations order (QDRO) described in Section 414(p) of the Code.
 
Section 10. 3  Validity and Severability .  The invalidity or unenforceability of any provision of this Plan shall not affect the validity or enforceability of any other provision of this Plan, which shall remain in full force and effect, and any prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
 
Section 10.4  Governing Law . The validity, interpretation, construction and performance of this Plan shall in all respects be governed by the laws of the State of Virginia, without reference to principles of conflict of law, except to the extent preempted by federal law.
 
Section 10.5  Employment Status . This Plan does not constitute a contract of employment or impose on the Participant or any Employer any obligation for the Participant to remain an Employee of the Employer or change the status of the Participant’s employment or the policies of the Employer and its affiliates regarding termination of employment.  The establishment or existence of the Plan also does not constitute a contract of employment and shall not confer upon any individual the right to be continued as a Director.
 
 
34

 
 
Section 10.6  No Stockholder Rights Conferred .  Nothing contained in the Plan will confer upon any Participant or Beneficiary any rights of a stockholder of the Company, unless and until Shares are in fact issued or transferred to such Participant or Beneficiary in accordance with Article V.
 
Section 10.7  Underlying Incentive Plans and Programs . Nothing in this Plan shall prevent the Company or other Employer from modifying, amending or terminating the compensation or the incentive plans and programs pursuant to which cash awards are earned and which are deferred under this Plan.
 
Section 10.8  Funding and Financial Health Restrictions .  In no event shall any amounts attributable to any DSU Account be held in an offshore trust within the meaning of Code Section 409A(b)(1).  In addition, the assets of any Affiliated Company shall not be restricted to the payment of benefits under the Plan upon a change in the Affiliated Company’s financial health within the meaning of Code Section 409A(b)(2).
 
 
*           *           *
 
Pursuant to the authority granted by the Compensation Committee of the Board of Directors of Advance Auto Parts, Inc. under its resolutions adopted on November_______, 2007, 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:                                                                         
Its:                                                                         
Dated: November , 2007

 
35

 

 

 
 
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:
 
·  
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
 
·  
The Company’s right in regard to ensuring the fulfillment of its tax withholding obligations with respect to a distribution from the Plan; and
 
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 .
 
 
 
(a)
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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(b)
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.
 
*           *           *
 
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 .
 
*             *           *
 
 
(b)
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.
 
*           *           *
 
Section 3.4                       Deferred Amount .
 
 
(a)
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”).
 
 
(i)
A Director may elect to defer up to 100% of his or her Retainer for a Board Service Period.
 
 
 
(ii)
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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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.
 
*           *           *
 
Section 3.7                       Deferral Election Deadline .
 
*           *           *
 
 
(b)
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.
 
 
(c)
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:
 
 
(i)
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;
 
 
(ii)
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
 
 
(iii)
The election must be made before the amount of the Annual Bonus becomes readily ascertainable.
 
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
 
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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)  
The timing of the Eligible Individual’s initial Deferral Election will be governed by the rules prescribed below.
 
(i)  
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.
 
(ii)  
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.
 
(iii)  
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.
 
*           *           *
 
 
(c)
The compensation to which such initial Deferral Election will apply will be determined in accordance with the rules set forth below.
 
(i)  
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.
 
(ii)  
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.
 
(iii)  
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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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.
 
 
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)  
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).
 
*           *           *
 
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
 
 
 
 
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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)  
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.
 
(b)  
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.
 
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)  
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.
 
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)  
The value of a Director’s DSU Accounts pertaining to grants of Type 1 DSUs will be distributed upon a Director’s Retirement.
 
(b)  
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.
 
(c)  
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.
 
All such distributions will be made in the form of a lump sum payment.
 
 
*           *           *
 
 
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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
 
 
 

 
 


SECOND 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, it is the desire of the Company to amend the Plan to prescribe default rules to apply in the event that a participant fails to designate the time or form of a distribution from the Plan.
 
NOW, THEREFORE, in consideration of the foregoing, Section 3.10 of the Plan is hereby amended to read as prescribed below, effective as of the Plan Year beginning on January 1, 2010.
 
Section 3.10                       Evergreen and Default Elections .
 
 
(a)  
Prior to each Deferral Election Agreement submission deadline, each Eligible Individual will be provided information regarding the Individual’s deferral rights under the Plan for the following Plan Year or other applicable period.  The Eligible Individual will then be permitted to affirmatively elect or decline to enter into a Deferral Election Agreement for the applicable period.  In the event that an Eligible Individual fails to timely submit a Deferral Election Agreement, or fails to affirmatively decline to enter into a Deferral Election Agreement, for any period, then the Eligible Individual will be deemed to have made the same Deferral Election (or election declination) as had most recently been made for the form of Eligible Compensation at issue.
 
(b)  
Subject to Section 3.9(b) above (regarding the cancellation of a Deferred Election upon a 401(k) plan hardship withdrawal), a deemed election will become irrevocable as of the applicable Statutory Deadline (as prescribed in Section 3.7).  For example, an Eligible Executive who fails to make, or affirmatively declines, a Deferral Election in regard to Base Salary payable for Year 2 will be deemed to have made the same Base Salary Deferral Election, or election declination, as in effect for Year 1.  An Eligible Individual who is first eligible to make a Deferral Election for any form of Eligible Compensation, but fails to timely make such election, will be deemed to have declined such Deferral Election.  Subject to subsection (c) below, this deemed evergreen election will apply to all aspects of an Eligible Individual’s Deferral Election, including in regard to the designated Deferral Period.
 
(c)  
The Deferral Period applicable to a evergreen election deemed to have been made under this Section 3.10 with respect to any form of Eligible Compensation will be determined as prescribed below.
 
(i)  
If the most recent Deferral Election for the form of Eligible Compensation at issue designated a Deferral Period extending to the Eligible Individual’s Retirement or other Separation from Service, then that same designation will apply to the deemed evergreen election.
 
 
 

 
 
(ii)  
If the most recent Deferral Election for the form of Eligible Compensation designated a deferral of payment for a Specified Time, (or if the default election made pursuant to subsection (d) below provides for a deemed Specified Time Deferral Period), then that Specified Time will be deemed to have also been elected; provided, however, if that Specified Time is not the end of at least two full calendar years following the beginning of the Plan Year to which the deemed evergreen election applies, then the Deferral Period for a Deferred Amount that is the subject of the deemed election will be the end of such second future calendar year.
 
 
(d)  
If an Eligible Individual has made a Deferral Election, but did not specify a form of distribution, or did not specify a Deferral Period (in which case, one or both of the evergreen Deferral Election rules of subsection (c) above would not be implicated), then the default rules prescribed below will apply.
 
(i)  
If the Eligible Individual did not specify a form of payment, then the default form of payment pertaining to the Deferral Election is a lump sum.
 
(ii)  
If the Eligible Individual did not specify a Deferral Period, then the Deferral Period pertaining to the Deferral Election will be the expiration of two full calendar years following the calendar year in which falls the first day of the Board Service Period or Plan Year, as applicable, to which the deferred compensation pertains.  For example, the default Deferral Period for an Eligible Executive pertaining to Year 1 compensation is the period ending on December 31 of Year 3.
 
Notwithstanding the foregoing, as generally prescribed in Section 3.5, a Participant’s Retirement is the designated payment event with respect to each of the Participant’s Deferral Accounts.  Accordingly, if such Retirement occurs prior to the occurrence of the deemed Specified Time Deferral Election for any Deferral Account, then the Retirement will supplant the deemed Specified Time Deferral Election with respect to that Deferral Account.
 
 
*           *           *
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 _____, 2010, 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: ____________________________________ , 2010
 

Exhibit 10.19

 
ADVANCE AUTO PARTS, INC.

DEFERRED COMPENSATION PLAN

(As Amended and Restated Effective as of January 1, 2008)















 
 

 

TABLE OF CONTENTS
Page
 
ARTICLE I    GENERAL 
1
Section 1.1      Purpose
1
Section 1.2      Status of Plan
1
Section 1.3      Effective Date
1
Section 1.4      Pre-2005 Deferrals
1
       
 
ARTICLE II    DEFINITIONS 
2
Section 2.1      Affiliated Company
2
Section 2.2      Aggregated Plans 
2
Section 2.3      Base Salary 
2
Section 2.4      Beneficiary 
2
Section 2.5      Board 
2
Section 2.6     Code 
3
Section 2.7      Company 
3
Section 2.8      Compensation Committee 
3
Section 2.9      Deferral Account 
3
Section 2.10     Deferral Election Agreement 
3
Section 2.11     Deferral Period 
3
Section 2.12      Deferred Amount 
3
Section 2.13     Disabled 
3
Section 2.14     Eligible Compensation 
4
Section 2.15     Employer 
4
Section 2.16     ERISA 
4
Section 2.17      Hypothetical Investment Benchmark 
4
Section 2.18      Matching Contribution 
4
Section 2.19      Matching Contribution Account 
4
Section 2.20     Participant 
4
Section 2.21      Plan 
4
Section 2.22      Plan Administration Committee 
4
Section 2.23      Plan Year 
4
Section 2.24      Qualified Change in Control Event 
4
Section 2.25      Quarterly Bonus 
4
Section 2.26     Retirement 
4
Section 2.27     Roll-up Performance Bonus 
4
Section 2.28      Separation from Service 
5
Section 2.29     Specified Employee 
5
Section 2.30     Specified Time 
6
Section 2.31      Team Member 
6
       
 
ARTICLE III    PARTICIPATION AND DEFERRAL ELECTIONS 
7
Section 3.1      Participation
7
Section 3.2      Duration of Participation 
8
Section 3.3
    Deferral Election Agreement 
8
Section 3.4      Deferred Amount 
8
Section 3.5      Designated Payment Event 
9
Section 3.6      Form of Payment 
9
Section 3.7      Deferral Election Deadline 
10
Section 3.8      Election for First Year of Eligibility 
10
Section 3.9      Irrevocability of Election 
12
Section 3.10       Evergreen Elections 
13
Section 3.11       Non-Elective LTIP Shares Grant Deferrals 
13
         
ARTICLE IV    MAINTENANCE AND INVESTMENT OF ACCOUNTS
15
Section 4.1       Maintenance of Deferral Accounts  
15
Section 4.2      Crediting of Deferred Compensation
15
 
 
 
i

 
 
 
Section 4.3     Vesting
15
Section 4.4      Hypothetical Investment Benchmarks
16
Section 4.5      Statement of Accounts
16
       
 
ARTICLE V    DISTRIBUTIONS 
17
Section 5.1      Eligibility for Distributions
17
Section 5.2     Retirement Distributions
17
Section 5.3     Specified Time Distributions
17
Section 5.4      Other Payment Events
17
Section 5.5      Designated Payment Date
17
Section 5.6      Restriction on Distributions to Specified Employees
18
Section 5.7     No Acceleration of Scheduled Distributions
19
Section 5.8      Extension of Specified Time Deferral Period
19
Section 5.9      Delay of Payments Under Certain Circumstances
20
Section 5.10      Cash Payments
20
Section 5.11      Unforeseeable Emergency Withdrawals
21
Section 5.12      Withholding of Taxes
22
Section 5.13      USERRA Rights
22
       
 
ARTICLE VI    PAYMENTS UPON QUALIFIED CHANGE IN CONTROL EVENT
23
Section 6.1      Termination of Plan Upon Change in Control 
23
Section 6.2      Qualified Change in Control Event
23
Section 6.3      Change in the Ownership of a Corporation
23
Section 6.4      Change in the Effective Control of a Corporation
24
Section 6.5      Change in the Ownership of Substantial Portion of Assets
24
Section 6.6      Definitions and Operating Rules
25
       
 
ARTICLE VII    BENEFICIARY DESIGNATION 
27
Section 7.1      Beneficiary Designation
27
Section 7.2      No Beneficiary Designation
27
       
 
ARTICLE VIII    ADMINISTRATION OF PLAN 
28
Section 8.1      Named Fiduciaries
28
Section 8.2      Claim Procedure 
30
       
 
ARTICLE IX    AMENDMENT AND TERMINATION OF PLAN 
32
Section 9.1
    Amendment
32
Section 9.2      Company’s Right to Terminate
32
       
 
ARTICLE X    MISCELLANEOUS 
34
Section 10.1      Unfunded Plan
34
Section 10.2     Nonassignability
34
Section 10.3      Validity and Severability
34
Section 10.4      Governing Law 
34
Section 10.5      Employment Status 
34
Section 10.6      Underlying Incentive Plans and Programs 
35
Section 10.7      Funding and Financial Health Restrictions 
35
         
APPENDIX A       
36 
         
ADDENDUM       
37
 

 
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ARTICLE I

GENERAL

Section 1.1  Purpose .  It is the intention of Advance Auto Parts, Inc. (the “Company”) to continue to maintain and provide for the administration of the Advance Auto Parts, Inc. Deferred Compensation Plan (the “Plan”) in accordance with the provisions of Section 409A of the Code, and in accordance with other provisions of law relating to non-qualified deferred compensation plans.  The purpose of the Plan is to allow eligible Team Members to elect to defer the receipt of a portion of the compensation that would otherwise be currently payable to the Team Member.
 
Section 1.2  Status of Plan .  The Plan is maintained by the Company primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees within the meaning of Title I of the Employee Retirement Income Security Act of 1974, as amended (ERISA).  It is the intention of the Company that the Plan be unfunded for tax purposes and for purposes of Title I of ERISA.  The Plan constitutes a mere promise by the Company to make deferred compensation payments in the future.  As to such deferred compensation benefits, Participants under the Plan have the status of a general, unsecured creditors of the Company.
 
Section 1.3  Effective Date .  The Plan is a continuation of the Plan that was originally adopted effective as of June 1, 2003.  Except as may be expressly provided otherwise, the Plan is hereby amended and restated effective as of January 1, 2008 for the purpose of becoming compliant with final Code Section 409A regulations issued by the Internal Revenue Service.
 
Section 1.4  Pre-2005 Deferrals .  Deferrals made under the Plan on or before December 31, 2004, which were earned and not subject to a substantial risk of forfeiture as of such date, shall be segregated and administered solely in accordance with the Addendum to this Plan.
 

 
1

 

ARTICLE II

DEFINITIONS

For the purposes of this Plan, the following words and phrases shall have the meanings indicated, unless the context clearly indicates otherwise:
 
Section 2.1  Affiliated Company .  “Affiliated Company” means the Company and each other corporation or enterprise, which as of a given date, is then a member of the same controlled group of corporations or the same group of trades or businesses under common control, determined in accordance with Sections 414(b) and (c) of the Code, as is the Company.
 
Section 2.2  Aggregated Plans .  “Aggregated Plans” means the Advance Auto Parts, Inc. Deferred Stock Unit Plan for Non-Employee Directors and Selected Executives, and any other account balance form of deferred compensation plan allowing elective deferrals that is sponsored by an Affiliated Company, and which  is required to be aggregated with this Plan pursuant to IRS Regulation §1.409A-1(c)(2).
 
Section 2.3  Base Salary .
 
(a)  
The “Base Salary” of a Team Member for a Plan Year means the base rate of cash compensation otherwise payable by an Employer to or for the benefit of the Team Member for services rendered or labor performed while that Team Member is a Participant in this Plan for such Plan Year, including the base pay that the Team Member could have received in cash in lieu of:
 
(i)  
Compensation deferrals elected to be made under this Plan, or under any other non-qualified deferred compensation plan maintained by the Company or other Affiliated Company; and
 
 
(ii)  
Contributions made by or on the Team Member’s behalf to any qualified retirement plan, or to any Code Section 125 cafeteria plan or other employee benefit plan maintained by the Company or other Affiliated Company.
 
(b)  
Any compensation paid to a Team Member after the last day of a Plan Year solely for services performed during the final payroll period (as described in Code Section 3401(b)) containing the last day of the Plan Year shall be treated as compensation for services performed in the subsequent Plan Year.  For example, if a payroll period begins on December 23 of Year 1 and ends on January 5 of Year 2, then the compensation for that payroll period shall be treated as Year 2 compensation.
 
Section 2.4  Beneficiary .  “Beneficiary” means the person, persons or entity designated by the Participant or by the terms of the Plan to receive any benefits payable under the Plan pursuant to Article VII.
 
Section 2.5  Board .  Except as provided in Section 6.1, “Board” means the Board of Directors of the Company as constituted from time to time.
 
 
2

 
 
Section 2.6  Code .  “Code” shall mean the Internal Revenue Code of 1986, as amended.  References to any provision of the Code or regulation (including a proposed regulation) thereunder shall include any successor provisions or regulations.
 
Section 2.7  Company .  “Company” means Advance Auto Parts, Inc., its successors, and any organization into which or with which Advance Auto Parts, Inc. may merge or consolidate or to which all or substantially all of its assets may be transferred.
 
Section 2.8  Compensation Committee .  “Compensation Committee” means the Compensation Committee of the Board, or any successor to such committee.
 
Section 2.9  Deferral Account .  “Deferral Account” means each account established and maintained on behalf of each Participant pursuant to Section 4.1.  Where the context so implies, reference to a Participant’s Deferral Account shall include the Participant’s Matching Contribution Account (if any).
 
Section 2.10  Deferral Election Agreement .  “Deferral Election Agreement” (sometimes referred to simply as a “Deferral Election”) means a Team Member’s agreement to defer the receipt of Eligible Compensation as submitted by the Team Member under the Plan in accordance with Section 3.3.
 
Section 2.11  Deferral Period .  “Deferral Period” means the period defined in Section 3.5.
 
Section 2.12  Deferred Amount .  “Deferred Amount” means the amount defined in Section 3.4.
 
Section 2.13  Disabled .  A Participant shall be considered to be or have become “Disabled” for purposes of the Plan if, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve months, the Participant:
 
 
(a)
Is unable to engage in any substantial gainful activity; or
 
 
(b)
Is receiving, and has received for a period of not less than three months, income replacement benefits under another accident and health plan covering employees of the Participant’s Employer.
 
A Participant will be deemed to be Disabled if the Participant has been determined to be disabled (i) by the Social Security Administration, or (ii) under a disability insurance program having a definition of disability that satisfies the standard prescribed in subsection (a) above.
 
Section 2.14  Eligible Compensation .  “Eligible Compensation” for any Team Member for any period means the Base Salary, Quarterly Bonus or Roll-up Performance Bonus, if any, otherwise payable to the Team Member for services performed during such period.
 
Section 2.15  Employer .  “Employer” means each Affiliated Company having any Team Members who are Participants under the Plan. An Affiliated Company qualifying as an Employer as of January 1, 2005 shall continue as such, subject to the provisions of the Plan.  For periods on and after January 1, 2005, if an Affiliated Company acquires a corporation or other trade or business, and if the acquired entity is thereupon maintained as a separate Employer or operating unit with respect an Affiliated Company in general, then such entity shall not be deemed to be an Employer with respect to the Plan, and the
 
 
3

 
 
Employees employed by that entity shall not be eligible to participate in the Plan, unless and until the Company directly, or acting through the Plan Administration Committee, affirmatively designates the acquired entity as an Employer.
 
Section 2.16  ERISA .  “ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
 
Section 2.17  Hypothetical Investment Benchmark .  “Hypothetical Investment Benchmark” means the phantom investment benchmarks that are used to measure the earnings credited to a Participant’s Deferral Account.
 
Section 2.18  Matching Contribution .  “Matching Contribution” means the amount of matching or other non-elective employer contribution that an Employer may make to the Plan on behalf of eligible Team Members for any Plan Year, as prescribed in Section 3.9.
 
Section 2.19  Matching Contribution Account .  “Matching Contribution Account” means a notational account established to reflect the crediting of any Matching Contributions or other non-elective Employer contributions made on account of a Participant, including the deemed earnings thereon.
 
Section 2.20  Participant .  “Participant” means any eligible Team Member who has elected to participant in the Plan by filing a Deferral Election Agreement as provided in Article III.
 
Section 2.21  Plan .  “Plan” means this Advance Auto Parts, Inc. Deferred Compensation Plan, as may be amended from time to time.
 
Section 2.22  Plan Administration Committee .  “Plan Administration Committee” means the committee that is responsible for the operation and administration of the Plan, as identified in Section 8.1(c).
 
Section 2.23  Plan Year .  “Plan Year” means a 12-month period beginning January 1 and ending the following December 31.
 
Section 2.24  Qualified Change in Control Event .  “Qualified Change in Control Event” is a change in control of an Employer, as more fully prescribed in Article VI.
 
Section 2.25  Quarterly Bonus .  “Quarterly Bonus” means the amount awarded to a Team Member for each quarterly performance period within a Plan Year pursuant to any approved incentive plan maintained by an Employer.
 
Section 2.26  Retirement .  “Retirement” or “Retired” means a Participant’s Separation from Service after both attaining age 55 and completing at least 10 continuous years of service with the Affiliated Companies.
 
Section 2.27  Roll-up Performance Bonus .  “Roll-up Performance Bonus” means the bonus of the same name that is awarded to a Team Member under an incentive plan maintained by an Employer.  Under the terms of the incentive plan, such Roll-up Performance Bonus is payable by reason of the Team Member’s satisfaction of organizational or individual performance criteria, and is measured on the basis of a performance period of 12 months (being the Plan Year).  A performance bonus payable to a Team Member that does not satisfy both of the above conditions will be treated under the Plan as a Quarterly Bonus.
 
 
4

 
 
Section 2.28  Separation from Service .
 
(a)  
Subject to the further provisions of this Section 2.28, a Participant will incur a Separation from Service for purposes of the Plan if the Participant dies, Retires, or otherwise has a termination of employment as to all the Affiliated Companies.
 
(b)  
An Participant’s employment relationship with an Affiliated Company will be treated as continuing intact, and thus the Participant will not be deemed to have incurred a Separation from Service, while the Participant is on military leave, sick leave or other bona fide leave of absence if the period of such leave does not exceed six months, or if longer, so long as the Participant retains a right to reemployment with the Affiliated Company under an applicable statute or by contract.  A leave of absence constitutes a bona fide leave of absence only if there is a reasonable expectation that the Participant will return to perform services for the Affiliated Company.  If the period of leave exceeds six months and the Participant does not retain a right to reemployment under an applicable statute or by contract, the employment relationship is deemed to terminate on the first day immediately following such six-month period.
 
(c)  
Whether a termination of employment has occurred is determined based on whether the facts and circumstances indicate that the Affiliated Company and the Participant reasonably anticipated that no further services would be performed after a certain date, or that the level of bona fide services the Participant would perform after such date (whether as an Employee or as an independent contractor) would permanently decrease to no more than 20 percent of the average level of bona fide services performed  (whether as an Employee or an independent contractor) over the immediately preceding 36-month period (or the full period of services to the Affiliated Companies if the Participant has been providing services to the Affiliated Companies less than 36 months).  A Participant is presumed to have incurred a Separation from Service where the level of bona fide services performed decreases to a level equal to 20 percent or less of the average level of services performed by the Participant during the immediately preceding 36-month period.  A Participant will be presumed not to have incurred a Separation from Service where the level of bona fide services performed continues at a level that is 50 percent or more of the average level of service performed by the Participant during the immediately preceding 36-month period.  No presumption applies to a decrease in the level of bona fide services performed to a level that is more than 20 percent, and less than 50 percent, of the average level of bona fide services performed during the immediately preceding 36-month period).
 
Section 2.29  Specified Employee .
 
(a)  
For purposes of this Plan, a “Specified Employee” means a Participant who is:
 
(i)  
A five-percent owner of an Affiliated Company; or
 
(ii)  
A one-percent owner of an Affiliated Company having annual compensation of more than $150,000; or
 
 
5

 
 
(iii)  
An officer of an Affiliated Company, regardless of the level of the officer’s annual compensation for the Plan Year at issue.  In this regard, an “officer” means a Team Member whose position is that of a Vice-President or higher.
 
(b)  
A Participant’s status as a Specified Employee will be determined as of December 31 of each Plan Year (the “Identification Date”).  If applicable, such a determination will be based on the compensation earned by the Participant from the Affiliated Companies for the 12-month period ending on the Identification Date.
 
(c)  
A Participant who is determined to be a Specified Employee as of an Identification Date shall be treated as a Specified Employee for purposes of the distribution restrictions prescribed under Section 5.6 of the Plan for the 12-month period beginning on the first day of the month following the Identification Date (i.e., for the calendar year immediately following the Identification Date).
 
(d)  
If a publicly-traded corporation is acquired by, or merges into, the Company or other Affiliated Company, then any Team Member of the acquired or merged corporation who as of December 31 (the Identification Date) immediately following the corporation transaction, has become an officer of an Affiliated Company (as defined in paragraph (a)(iii) above), or who is an owner described in paragraph (a)(i) or (ii) above, will be treated as a Specified Employee for purposes of this Plan through the last day of calendar year that is coincident with or next follows the date of the corporation transaction.  Thereafter, the Team Member’s status as a Specified Employee will be determined as prescribed above.  Notwithstanding the foregoing, the Company may elect to use any reasonable method to determine the Specified Employees for purposes of the Plan for periods immediately after the corporate transaction, provided that such method is adopted no later than 90 days after the corporate transaction and applied prospectively from the date the method is adopted.
 
(e)  
If a company that is not publicly-traded is acquired by or merges into the Company or other Affiliated Company, then the Team Members of the acquired or merged company will not be treated as Specified Employees for purposes of this Plan until the first day of the calendar year next following the acquisition.  Thereafter, the Team Member’s status as a Specified Employee shall be determined as prescribed above.
 
(f)  
A Participant who is not a current or former Team Member of the Company or any other Affiliated Company (i.e., an “outside” Director) is not a key employee, and therefore not a Specified Employee for purposes of the Plan.
 
Section 2.30  Specified Time .  “Specified Time” means a designated Deferral Period with respect to a Deferral Account that based on a stated number of years, as prescribed in Section 3.5(b).
 
Section 2.31  Team Member .  “Team Member” means an employee of the Company or other Affiliated Company.
 
 
6

 
 
ARTICLE III

PARTICIPATION AND DEFERRAL ELECTIONS

 
Section 3.1  Participation .
 
(a)  
Each Team Member who was a Participant in the Plan as of December 31, 2007 shall continue as such, subject to the provisions of the Plan.
 
(b)  
Effective on and after January 1, 2008, a Team Member shall be eligible to participate in the Plan with respect to any Plan Year if:
 
(i)  
The Plan Administration Committee concludes that for such Plan Year, the Team Member is:
 
(A)  
Expected to be compensated in an amount such that the sum of the Team Member’s Base Salary plus 75% of the Team Member’s anticipated incentive bonuses for the Plan Year will equal or exceed $100,000;
 
(B)   
A “highly-compensated employee” for the Plan Year at issue under a Section 401(k) plan maintained by an Employer by reason of the Team Member’s compensation for the prior Plan Year; or
 
(C)
A newly-hired Team Member, and is expected to receive compensation from the Employer at a level which, if annualized, will equal or exceed the dollar amount that will be used to establish a person’s status as a “highly compensated employee” under Code Section 414(q) for the following year.
 
(ii)  
As of the first day of the Plan Year, the Team Member is at least 21 years of age and has completed at least one year of continuous service (1,000 hours) with the Affiliated Companies; and
 
(iii)  
The Team Member commits to make elective deferrals to a qualified Section 401(k) plan maintained by an Employer at the maximum rate allowed with respect to such Team Member under the Section 401(k) plan.  This condition applies only if the Team Member is eligible to participate in such a Section 401(k) plan.
 
(c)  
A Participant who is transferred from an Employer to employment with an Affiliated Company that is not an Employer with respect to the Plan, or who while continuing in the employ of an Employer ceases to be an eligible Team Member (a “Transferred Participant”), shall not be considered to have incurred a Separation from Service.  The Transferred Participant shall continue to be eligible to make deferrals under the Plan through the end of the Plan Year in which such transfer occurs, or for such additional period as may be permitted by the Compensation Committee.
 
 
7

 
 
Section 3.2  Duration of Participation .  Each Participant shall remain a Participant under the Plan until the balance of all of the Participant’s Deferral Accounts has been distributed to the Participant or the Participant’s Beneficiary.
 
Section 3.3  Deferral Election Agreement .
 
(a)  
For each Plan Year, each eligible Team Member shall be permitted to submit a separate Deferral Election Agreement with respect to each of the forms of Eligible Compensation otherwise payable to the Team Member for services performed during the Plan Year.  The forms of Eligible Compensation for a Plan Year consist of Base Salary, Quarterly Bonuses and Roll-up Performance Bonus.  For administrative convenience, the Plan Administration Committee can combine the elections for two or more forms of the Eligible Compensation on a single form.  The submission of the Deferral Election Agreement must be made in accordance with such policies and procedures established by the Plan Administration Committee and communicated to eligible Team Members, which procedures may permit or require elections to be made by electronic media.
 
(b)  
The Deferral Election Agreement with respect to each form of Eligible Compensation shall include the elections and descriptions prescribed below.
 
(i)  
The amount of the Team Member’s Eligible Compensation to be deferred for the Plan Year (the “Deferred Amount”), as described more fully in Section 3.4;
 
(ii)  
The designated payment event for such Deferred Amount, as described more fully in Section 3.5;
 
(iii)  
The form in which the Deferred Amount is elected to be paid, as described more fully in Section 3.6; and
 
(iv)  
The manner in which the Deferred Amount shall be deemed to be invested, as described in Section 4.4.
 
Section 3.4  Deferred Amount .
 
 
(a)
The Deferral Election Agreement of an eligible Team Member for a Plan Year shall designate the amount of each form of the Eligible Compensation for the Plan Year that the Team Member elects to have deferred under the Plan (the “Deferred Amount”).  An eligible Team Member shall make a separate deferral election for each form of the Team Member’s Eligible Compensation (i.e., Base Salary, Quarterly Bonus and Roll-up Performance Bonus) for the Plan Year.  The maximum or minimum amount of deferral that may be elected by a Team Member for a Plan Year with respect to each form of Eligible Compensation shall be established by the Plan Administration Committee.
 
 
(b)
The aspect of a Deferral Election Agreement regarding the elected Deferred Amount shall not apply to any pay period for which the amount of the Eligible Compensation remaining to be paid to the Team Member (but for the deferral election), after making any other deductions or withholdings of income, would be less than the Deferred Amount prescribed in the Deferral Election Agreement
 
 
8

 
 
(c)  
Notwithstanding an eligible Team Member’s election to the contrary, if the Team Member is eligible to make elective deferrals under a Code Section 401(k) plan maintained by an Employer for any period for which the Team Member is eligible to participate in the Plan, the Team Member’s deferral election with respect to the Plan for a Plan Year, or for any period during a Plan Year, shall not apply unless and until the Team Member has made the maximum elective deferrals to the Section 401(k) plan permitted by Code Section 402(g), or has made the maximum elective deferrals for a period permitted under the terms of the Section 401(k) plan.
 
Section 3.5  Designated Payment Event .  A Team Member’s Deferral Election Agreement must designate the event that will give rise to the payment of the Deferred Amount.  The period of the deferral through the date of the event giving rise to the payment of the Deferred Amount is sometimes referred to herein as the “Deferral Period.”  Subject to the terms of the Plan, including Section 5.6 (regarding the restriction on distributions to Specified Employees), a Team Member may elect to have the Deferred Amount pertaining to services performed in any Plan Year become payable upon (i.e., to be deferred until) either of the following alternative events:
 
(a)  
The Team Member’s Retirement or other Separation from Service; or
 
(b)  
The expiration of a stated number of full calendar years, not less than two, following the Plan Year to which the deferred compensation pertains (i.e., as of a “Specified Time”).  For example, a Team Member may elect to have a Deferral Account pertaining to Year 1 compensation be deferred for the period ending on December 31 of Year 3, or until the last day of any subsequent calendar year.
 
Notwithstanding the terms of a Deferral Election Agreement, a Participant’s Retirement shall be a designated payment event with respect to each of the Participant’s Deferral Accounts.  Accordingly, if such Retirement occurs prior to the occurrence of the Specified Time designated in any Deferral Election Agreement for any Deferral Account, then the Retirement shall supplant the Specified Time election with respect to that  Deferral Account.
 
Section 3.6  Form of Payment .
 
(a)  
A Participant’s Deferral Election Agreement shall designate the form in which the Deferred Amount will be paid if such payments arise by reason of a designated payment event prescribed in Section 3.5 above.  The permissive forms of payment are:
 
(i)  
A lump sum; or
 
(ii)  
Substantially equal annual installments over a period (as the Participant shall designate) of not less than two years and not more than 10 years.
 
(b)  
If the distribution of a Participant’s Deferral Account is to be made in annual installments, then the annual cash payments to be made from the Participant’s Deferral Account shall be determined by reference to a  fraction, the numerator of which is one and the denominator of which is the number of remaining installments (including the installment being paid).  Each installment shall be deemed to be made on a pro rata basis from each
 
 
9

 
 
 
of the different deemed investments of the Deferral Account (if there is more than one such deemed investment).
 
 
Section 3.7  Deferral Election Deadline .
 
(a)  
A Deferral Election pertaining to any Base Salary or Quarterly Bonuses that may otherwise become payable to a Participant for services performed during a Plan Year, including in regard to 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.
 
(b)  
A Deferral Election pertaining to any Roll-up Performance Bonus that may otherwise become payable to a Participant for services performed during a Plan Year must be submitted on or before December 31 of the Plan Year immediately preceding the Plan Year performance period for which it is effective (a “Statutory Deadline”), or as of such earlier submission date established by the Plan Administration Committee.  Notwithstanding the foregoing, the Compensation Committee in its discretion may permit Participants to submit the Deferral Election for the Roll-up Performance 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:
 
(i)  
The Participant 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
 
(ii)  
The election is made before the amount of the Roll-up Performance Bonus becomes readily ascertainable.
 
Section 3.8  Election for First Year of Eligibility .  Notwithstanding Section 3.7 above, the provisions of this Section 3.8 shall apply with respect to a Team Member who becomes eligible to participate in the Plan after the first day of a Plan Year.
 
(a)  
The timing of the eligible Team Member’s initial Deferral Election shall be governed by the rules prescribed below.
 
(i)  
The initial Deferral Election must be made within 30 days after the date the individual becomes such an eligible Team Member.  Except as provided in paragraph (ii) below, the eligible Team Member’s initial Deferral Election, or the decision to not make an initial Deferral Election, shall become irrevocable as of the expiration of such 30-day election period.
 
(ii)  
Notwithstanding paragraph (i) above, an initial Deferral Election by an eligible Team Member with respect to a Quarterly Bonus or a Roll-up Performance Bonus that is affirmatively made and submitted under the Plan by the last day of the quarter or Plan Year preceding the quarter or Plan Year for which the Deferral
 
 
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Election will first apply, and before the expiration of the otherwise applicable 30-day election period, shall become irrevocable as of the last day of such preceding quarter or Plan Year.
 
(iii)  
In no event may the deadline for making an initial Deferral Election under this Plan with respect to any eligible Team Member 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.
 
(b)  
A former Participant who has again become an eligible Team Member shall be treated as first becoming eligible to participate in the Plan, and thus shall be subject to the special election rules of this Section 3.8, under either of the following circumstances:
 
(i)  
The former Participant has been paid all amounts deferred under the Plan and all other Aggregated Plans, and the Participant ceased to be eligible to elect to continue to participate in the Plan or an Aggregated Plan on or before the date of the last such payment; or
 
(ii)  
The former Participant was not eligible to participate in the Plan or an Aggregated Plan during the 24-month period ending on the date of again becoming eligible to participate in the Plan or an Aggregated Plan.
 
(c)  
The compensation to which such initial Deferral Election will apply shall be determined in accordance with the rules set forth below.
 
(i)  
The eligible Team Member’s initial Deferral Election shall apply only to the Eligible Compensation otherwise payable for services performed by the eligible Team Member subsequent to the date the Deferral Election has become irrevocable pursuant to subsection (a) above.
 
(ii)  
For purposes of paragraph (i) above, as with respect to a Deferral Election by an eligible Team Member pertaining to a Quarterly or Roll-up Performance Bonus, if the initial Deferral Election is made after the beginning of the applicable bonus performance period, the Deferral Election shall apply to the total amount of Eligible 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.
 
(iii)  
The formula prescribed in paragraph (ii) above shall also apply in regard to a Deferral Election pertaining to the deferral of the eligible Team Member’s Base Salary, unless the 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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Section 3.9  Irrevocability of Election .
 
(a)  
Once the applicable Statutory Deadline to make a Deferral Election for any form of Eligible Compensation with respect to any Plan Year has passed, as prescribed in Section 3.7, or once the deadline for making an initial Deferral Election pursuant to Section 3.8 above has expired, the Deferral Election shall generally become irrevocable.  The consequences of such include the following:
 
(i)  
The amount of the Eligible Compensation that the Participant elected to defer for the Plan Year, or the election not to defer any amount, cannot be canceled or modified;
 
(ii)  
The form of payment for the Deferral Account to which the Deferred Election applies cannot be modified; and
 
(iii)  
The designated date of payment for the Deferral Account to which the Deferred Election applies cannot be modified, except as provided in Section 5.8.
 
(b)  
Notwithstanding subsection (a) above, an eligible Team Member who receives a hardship withdrawal from a Section 401(k) plan maintained by the Company or another Affiliated Company, and who is thereupon suspended from making elective deferrals under all qualified and non-qualified plans of the Affiliated Companies pursuant to IRS Regulation § 1.401(k)-1(d)(3) and the terms of the 401(k) plan, shall have his or her Deferral Election under this Plan thereupon canceled on a prospective basis.  Such Deferral Election cancellation rule shall be subject to the following:
 
(i)  
An eligible Team Member’s Deferral Election shall not be canceled upon the hardship withdrawal if the 401(k) plan does not require the suspension of elective deferrals; and
 
(ii)  
An eligible Team Member whose Deferral Election is canceled pursuant to the above, and who thereafter becomes eligible to resume making deferrals under this Plan, shall nevertheless remain subject to the general election deadline rules prescribed under this Section 3.9.  Accordingly, the eligible Team Member shall not be permitted to resume making elective deferrals under this Plan for any period prior to the first day of the Plan Year following the expiration of the elective deferral suspension period under the applicable 401(k) plan.
 
(c)  
Further notwithstanding subsection (a) above, the Deferral Election of a Participant who receives an Unforeseeable Emergency withdrawal from the Plan pursuant to Section 5.11 shall be cancelled on a prospective basis.  Such cancellation shall continue in effect for the remainder of the Plan Year in which the withdrawal is made.  The Participant, if otherwise so eligible, shall be permitted to elect to make elective deferrals under the Plan for the subsequent Plan Year.
 
 
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Section 3.10  Evergreen Elections .
 
(a)  
Prior to each Deferral Election Agreement submission deadline, each eligible Team Member shall be provided information regarding the eligible Team Member’s deferral rights under the Plan for the following Plan Year or other applicable period.  The eligible Team Member shall then be permitted to affirmatively elect or decline to enter into a Deferral Election Agreement for the applicable period.  In the event that an eligible Team Member fails to timely submit a Deferral Election Agreement, or fails to affirmatively decline to enter into a Deferral Election Agreement, for any period, then the Eligible Individual shall be deemed to have made the same Deferral Election (or election declination) as had most recently been made for the form of Eligible Compensation at issue.
 
(b)  
Subject to Section 3.9(b) above (regarding the cancellation of a Deferred Election upon a 401(k) plan hardship withdrawal), a deemed election shall become irrevocable as of the applicable Statutory Deadline (as prescribed in Section 3.7).  For example, an eligible Team Member who fails to make or affirmatively decline a Deferral Election Agreement in regard to Base Salary payable for Year 2 will be deemed to have made the same Base Salary Deferral Election, or election declination, as in effect for Year 1.  An eligible Team Member who is first eligible to make a Deferral Election for any form of Eligible Compensation, but fails to timely make such election, shall be deemed to have declined such Deferral Election.  Subject to subsection (c) below, this deemed evergreen election shall apply to all aspects of an eligible Team Member’s Deferral Election, including in regard to the designated Deferral Period.
 
(c)  
The Deferral Period applicable to a evergreen election deemed to be made under this Section 3.10 with respect to any form of Eligible Compensation shall be determined as prescribed below.
 
(i)  
If the most recent Deferral Election for the form of Eligible Compensation at issue designated a Deferral Period extending to the eligible Team Member’s Retirement or other Separation from Service, then that same designation shall apply to the deemed evergreen election.
 
(ii)  
If the most recent Deferral Election for the form of Eligible Compensation designated a deferral of payment for a Specified Time, then that Specified Time shall be deemed to have also been elected; provided, however, if that Specified Time is not the end of at least two full calendar years following the beginning of the Plan Year to which the deemed evergreen election applies, then the Deferral Period for a Deferred Amount that is the subject of the deemed election shall be the end of such second future calendar year.
 
Section 3.11  Non-Elective Employer Deferrals .
 
(a)  
An Employer may, at any time and in its complete discretion, make Matching Contributions or other non-elective employer deferrals on behalf of any eligible Team Member for any Plan Year.
 
 
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(b)  
Any non-elective employer deferrals made by an Employer with respect to an eligible Team Member shall be maintained in a separate Deferral Account established on the Team Member’s behalf.
 
(c)  
Except as otherwise prescribed under the Plan, a Team Member’s Deferral Account pertaining to non-elective employer deferrals for any Plan Year shall become payable at such time, and in such form, as prescribed in the Deferral Election Agreement made (or deemed to have been made) by the Team Member with respect to the Team Member’s Base Salary for the Plan Year at issue; provided, however, that the specified payment date for such Deferral Account shall not precede the last day of the Plan Year as of which such Deferral Account has become vested pursuant to Section 4.3(b) below.
 
(d)  
Non-elective employer deferrals pertaining to any Plan Year shall be invested pursuant to the same Hypothetical Investment Benchmarks and in the same proportion as prescribed in the deferrals of the Team Member’s Base Salary for such Plan Year.
 

 
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ARTICLE IV

MAINTENANCE AND INVESTMENT OF ACCOUNTS

 
Section 4.1  Maintenance of Deferral Accounts .  Separate Deferral Accounts shall be maintained for each Participant. More than one Deferral Account may be maintained for a Participant as necessary to reflect various Hypothetical Investment Benchmarks, or separate Deferral Election Agreements specifying different Deferral Periods and/or forms of payment.  A Participant’s Deferral Accounts shall be utilized solely as a device for the measurement and determination of the amounts to be paid to the Participant pursuant to this Plan, and shall not constitute or be treated as a trust fund of any kind. The Plan Administration Committee shall determine the balance of each Deferral Account, as of each Valuation Date, by adjusting the balance of such Deferral Account as of the immediately preceding Valuation Date to reflect changes in the value of the deemed investments thereof, credits and debits pursuant to Section 4.2 and Section 4.4 and distributions pursuant to Article V with respect to such Deferral Account since the preceding Valuation Date.
 
Section 4.2  Crediting of Deferred Compensation .  The Deferred Amount of a Participant with respect to each Plan Year of participation in the Plan shall be credited to the Participant’s Deferral Account as and when such Deferred Amount would otherwise have been paid to the Participant.  To the extent that an Employer is required to withhold any taxes or other amounts from the Deferred Amount pursuant to any state, Federal or local law, such amounts shall be taken out of other compensation eligible to be paid to the Participant that is not deferred under this Plan.
 
Section 4.3  Vesting .
 
(a)  
Except as provided in subsection (b) below, a Participant shall be 100% vested in the balance of each of his or her Deferral Accounts at all times.
 
(b)  
A Participant shall become vested in a Deferral Account pertaining to Matching Contributions or other non-elective employer contributions made for any Plan Year (a “Matching Contribution Deferral Account”) as of the earliest to occur of the following:
 
(i)  
The passage of two Plan Years following the Plan Year to which such non-elective employer contributions pertain during each of which the Participant completes at least 1,000 hours of service;
 
(ii)  
The date as of which the Participant, while employed by an Employer or other Affiliated Company, dies or becomes Disabled; and
 
(iii)  
The date as of which the Participant Retires.
 
Notwithstanding the foregoing, the Company, in its sole discretion, may waive or reduce the foregoing vesting standard for the Matching Contribution Deferral Account of any Participant.
 
 
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(c)
Amounts held in a Matching Contribution Deferral Account of a Participant who terminates employment prior to becoming vested such account as prescribed in subsection (b) above shall be forfeited and used to pay the administrative expenses of the Plan.
 
Section 4.4  Hypothetical Investment Benchmarks .  Each Participant shall be entitled to direct the manner in which his/her Deferral Accounts will be deemed to be invested, selecting among the Hypothetical Investment Benchmarks specified in Appendix A hereto, as amended from time to time, and in accordance with such rules, regulations and procedures as the Plan Administration Committee may establish from time to time. Notwithstanding anything to the contrary herein, earnings and losses based on a Participant’s investment elections shall begin to accrue as of the date the  Participant’s Deferred  Amounts are credited to his or her Deferral Accounts.
 
Section 4.5  Statement of Accounts .  Each Participant shall be provided quarterly statements of his or her Deferral Accounts, in such form as the Plan Administration Committee deems desirable, setting forth the balance to the credit of such Participant in his or her Deferral Accounts as of the end of the most recently completed quarter.
 

 
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ARTICLE V

DISTRIBUTIONS

 
Section 5.1  Eligibility for Distributions .  Except as otherwise provided herein, a distribution from a Participant’s Deferral Account may be made only on account of one of the following events incurred by or with respect to the Participant:
 
(a)  
The Participant’s Separation from Service.  In this regard, a distribution by reason of a Participant’s Retirement shall be permitted only if the Retirement constitutes a Separation from Service;
 
(b)  
The Participant becoming Disabled;
 
(c)  
The Participant’s death;
 
(d)  
A Specified Time, as prescribed under the Participant’s Deferral Election Agreement;
 
(e)  
The occurrence of an Unforeseeable Emergency, as prescribed in Section 5.10; or
 
(f)  
The termination of the Plan, or portion of the Plan, prescribed in Section 9.2.
 
Section 5.2  Retirement Distributions .  Subject to Section 5.6 below, in either of the circumstances described below, upon a Participant’s Retirement, the value of the Participant’s Deferral Accounts shall be then distributed to the Participant in installments or in a lump sum as designated in the applicable Deferral Election Agreement.
 
(a)  
The  Participant had elected to receive payment of a Deferral Account upon Retirement; or
 
(b)  
The Deferral Period elected by the Participant for that Deferral Account was a Specified Time, but the Participant Retires before the end of that Specified Time.
 
Section 5.3  Specified Time Distributions .  Subject to Sections 5.6 and 5.8 below, if the Deferral Period elected by a Participant with respect to a Deferral Account is a Specified Time, and the Participant did not Retire before the end of that Specified Time, then upon the end of that Specified Time, the value of the Deferral Account at issue shall be distributed to the Participant in installments or in a lump sum as designated in the applicable Deferral Election Agreement.
 
Section 5.4  Other Payment Events .  Notwithstanding the provisions of any Deferral Election Agreement, if prior to Retirement a Participant dies, becomes Disabled but remains employed, or incurs a Separation from Service, the entire balance of all of the Participant’s Deferral Accounts shall be distributed to the Participant or the Participant’s Beneficiary or Beneficiaries (as the case may be) in a lump sum payment.
 
Section 5.5  Designated Payment Date .
 
(a)  
The designated date as of which the value of a Participant’s Deferral Account is to be distributed, or shall commence being distributed, shall be as prescribed below.
 
 
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(i)  
The designated payment date with respect to a Deferral Account to be distributed in a lump sum payment, including with respect to a lump sum payment made to a Participant’s Beneficiary upon the Participant’s death, shall be the first day following the date of the event giving rise to the lump sum payment (or, if later, the date as of which the final deferral with respect to the Deferral Election Agreement pertaining to the Deferral Account is withheld from the Participant’s paycheck).
 
(ii)  
In the case of distributions to be made to a Participant in the form of installment payments, the designated payment dates shall be the first day of the month following the event that gives rise to the payment, and each annual anniversary of that initial designated payment date.
 
(iii)  
The designated payment date with respect to a withdrawal due to an Unforeseeable Emergency pursuant to Section 5.9 below shall be the date as of which the withdrawal request is approved by the Plan Administration Committee.
 
(b)  
For purposes of the administrative provisions of this Plan, a payment shall be treated as having been made upon the date specified under subsection (a) above if the payment is made:
 
(i)  
On such date or a later date within the same calendar year; or
 
(ii)  
If later, by the 15 th day of the third calendar month following the date so specified.
 
Notwithstanding the foregoing, if calculation of the amount of the payment is not administratively practicable due to events beyond the control of the Participant (or the Participant’s estate), the payment will be treated as made upon the specified date if the payment is made during the first calendar year in which the payment is administratively practicable.
 
For purposes of administrative convenience, payment may be made to a Participant no earlier than 30 days before the designated payment date prescribed in subsection (a) above.
 
In no event shall a Participant be permitted, directly or indirectly, to designate the taxable year of the distribution.
 
(c)  
The amount to be distributed to a Participant shall be determined on the basis of the value of the applicable Deferral Account as of the designated payment date with respect to the distribution at issue.
 
Section 5.6  Restriction on Distributions to Specified Employees .
 
(a)  
Notwithstanding the provisions of Section 5.5 above, if a Participant is a Specified Employee as of the date of the Participant’s Retirement or other Separation from Service, then, by reason of such event, the amounts held in the Participant’s Deferral Accounts shall become payable as of the first day of the seventh month following the date of the
 
 
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Participant’s Retirement or other Separation from Service (or, if earlier, as of the date of the Participant’s death).
 
(b)  
If the distributions to the Specified Employee are to be made in annual installments, the delay in payment prescribed in subsection (a)(ii) above shall apply solely to the first installment payment.  Each subsequent installment payment shall be made as of the date such payment otherwise would have been made pursuant to Section 5.5.
 
(c)  
The distribution restrictions prescribed in subsection (a)(ii) above shall not apply to a payment to be made pursuant to Section 5.7(b)(i) or (ii) (regarding the payment of employment taxes and compensation deferred under the Plan or a certificate of divesture compliance distributions), or Section 10.2(b) (regarding domestic relations orders).
 
Section 5.7  No Acceleration of Scheduled Distributions .
 
(a)  
Except as otherwise provided in the Plan, the time or schedule of any distribution of any portion of a Participant’s Deferral Accounts shall not be permitted to be accelerated, either at the election of the Participant or at the discretion of the Compensation Committee.
 
(b)  
Notwithstanding the foregoing, distributions may be made to or on behalf of a Participant prior to the otherwise applicable designated payment date in the following situations:
 
(i)  
As may be necessary to comply with a certificate of divestiture (as defined in Code Section 1043(b)(2));
 
(ii)  
To pay FICA taxes on amounts deferred under the Plan, or income taxes on additional charges arising from the Employer’s payment of FICA taxes or for amounts attributable to the pyramiding of wages and taxes; or
 
(iii)  
If the Plan at any time fails to meet the requirements of Code Section 409A and the underlying regulations.  In that event, however, the accelerated payment may not exceed the amount required to be included in the Participant’s income as a result of the Plan’s failure to comply with the Code Section 409A requirements.
 
Section 5.8  Extension of Specified Time Deferral Period .  Section 3.5(b) of the Plan permits a Participant to select a Deferral Period of a stated period of calendar years (i.e., a “Specified Time Deferral Period”).  In this connection, a Participant shall be permitted to extend a Specified Time Deferral Period with respect to a Deferral Account, subject to the conditions set forth below.
 
(a)  
An election to extend the Specified Time Deferral Period with respect to any Deferral Account must be submitted to the Plan Administration Committee in accordance with its established procedures.
 
(b)  
Any such election shall not take effect under the Plan until 12 months after the date on which the election is submitted to the Plan Administration Committee.
 
(c)  
An election to extend a Specified Time Deferral Period must provide for the lengthening of the Specified Time Deferral Period for a period of not less than an additional five years.
 
 
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(d)  
Any election to extend a Specified Time Deferral Period must be made at least 12 months prior to the designated payment date (as prescribed in Section 5.5(a)) for the first scheduled payment from the applicable  Deferral Account.
 
(e)  
For purposes of this Section 5.8:
 
(i)  
The entitlement to installment payments shall be treated as the entitlement to a single payment; and
 
(ii)  
The applicable designated payment date otherwise applicable to a Specified Time Deferral Period shall be determined without regard to the restrictions on distributions to Specified Employees prescribed in Section 5.6.
 
Section 5.9  Delay of Payments Under Certain Circumstances .  Notwithstanding any provision of the Plan to the contrary, payment to a Participant will be delayed to a date after the designated payment date otherwise prescribed under Section 5.5 under any of the circumstances prescribed below.
 
(a)  
A payment to a Participant will be delayed where the Compensation Committee reasonably anticipates that the Company’s or other Affiliated Company’s income tax deduction with respect to such payment otherwise would be limited or eliminated by application of Code Section 162(m); provided, however, that in such event, the payment shall be made either at the earliest date at which the Compensation Committee reasonably anticipates that the deduction of the payment of the amount will not be limited or eliminated by application of Code Section 162(m), or the calendar year in which the Participant Separates from Service.
 
(b)  
A payment to a Participant will be delayed where the Compensation Committee reasonably anticipates that the making of the payment will violate a term of a loan agreement , or other similar contract, to which the Company or any other Affiliated Company is a party, and such violation will cause material harm to the Company or other Affiliated Company; provided, however, that in such event, the payment shall be made at the earliest date at which the Compensation Committee reasonably anticipates that the making of the payment will not cause such violation, or such violation will not cause material harm to the Company or other Affiliated Company.
 
(c)  
A payment to a Participant will be delayed where the Compensation Committee reasonably anticipates that the making of the payment will violate federal securities laws or other applicable law; provided, however, that in such event, the payment to be made at the earliest date at which the Company or other Affiliated Company reasonably anticipates that the making of the payment will not cause such violation.  For purposes of this subsection (c), the making of a payment that would cause inclusion in gross income or other application of any penalty provision or other provision of the Code is not treated as a violation of applicable law.
 
(d)  
A payment to a Participant will be delayed upon such other events and conditions as may be prescribed in generally applicable guidance issued by the Internal Revenue Service.
 
Section 5.10  Cash  Payments .  All distributions under the Plan shall be paid in cash.
 
 
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Section 5.11  Unforeseeable Emergency Withdrawals .  A Participant who incurs an Unforeseeable Emergency (as defined below) may submit a request to the Plan Administration Committee for a withdrawal equal to that portion (or all) of the Participant’s Deferral Accounts as is then needed to alleviate the financial hardship resulting therefrom.  Such withdrawals shall be subject to the following provisions of this Section 5.11.
 
(a)  
For purposes of this Section 5.11:
 
(i)  
An “Unforeseeable Emergency” means a severe financial hardship to a Participant resulting from an illness or accident of the Participant, or of the spouse, a dependent (as defined in Code Section 152(a)) or a primary beneficiary (as defined below) of the Participant; the loss of the Participant’s property due to casualty; or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant; and
 
(ii)  
A ”primary beneficiary” of a Participant is an individual who is named as a Beneficiary of the Participant under the Plan, and who has an unconditional right to all, or a portion of, the balance of the Participant’s Deferral Account upon the death of the Participant.
 
(b)  
The circumstances that will constitute an Unforeseeable Emergency will depend upon the facts of each case.  Examples of circumstances that may qualify as an Unforeseeable Emergency (provided that the other conditions of this Section 5.11 are satisfied) are:
 
(i)  
The imminent foreclosure of, or eviction from, the Participant’s primary residence;
 
(ii)  
The need to pay for medical expenses, including non-refundable deductibles or the cost of prescription drugs; and
 
(iii)  
The need to pay for the funeral expenses of the spouse, or dependent or primary beneficiary of the Participant.
 
The purchase of a home and the payment of college tuition are not Unforeseeable Emergencies for purposes of this Plan.
 
(c)  
A withdrawal shall not be permitted under this Section 5.11 to the extent that the hardship resulting from the Unforeseeable Emergency is, or may be, relieved:
 
(i)  
Through the reimbursement or compensation by insurance or otherwise;
 
(ii)  
By the liquidation of the Participant’s assets, to the extent the liquidation of such assets would not itself cause severe financial hardship; or
 
(iii)  
By the cessation of deferrals under the Plan.
 
(d)  
The amount of any Unforeseeable Emergency withdrawal shall be limited to that which the Plan Administration Committee determines is reasonably necessary to alleviate the hardship resulting from the occurrence of the Unforeseeable Emergency (which may
 
 
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include any amount necessary to pay any federal or state income taxes or penalties reasonably anticipated to result from the distribution).  The determination of the amount reasonably necessary to satisfy the emergency need must take into account any additional compensation that is available to the Participant upon cancellation of the Participant’s deferral election due to the Unforeseeable Emergency withdrawal that is effected pursuant to Section 3.9(c).  However, such determination is not required to take into account any additional Unforeseeable Emergency withdrawal that is available under another nonqualified deferred compensation plan, but which has not actually been paid from that other plan.
 
(e)  
After reviewing each Unforeseeable Emergency withdrawal request, the Plan Administration Committee shall make a determination as to whether the circumstances satisfy the Unforeseeable Emergency standards prescribed above, and will thereupon notify the requesting Participant of the determination.  If the request is approved, the Plan Administration Committee shall process payment of the withdrawal
 
(f)  
The Plan Administration Committee may establish a policy and procedures regarding the order in which Unforeseeable Emergency withdrawals are to be charged against the particular Deferral Accounts of a Participant.
 
Section 5.12  Withholding of Taxes . Notwithstanding any other provision of this Plan, the Employer shall withhold from payments made hereunder any amounts required to be so withheld by any applicable law or regulation.
 
Section 5.13  USERRA Rights .  Notwithstanding any provision of this Article V to the contrary, the Plan shall permit a Participant to elect a change in the time or the form of payment as may be required to comply with the Uniformed Services Employment and Reemployment Rights Act (USERRA).
 

 
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ARTICLE VI

PAYMENTS UPON QUALIFIED CHANGE IN CONTROL EVENT

 
Section 6.1  Termination of Plan upon Change in Control .  Notwithstanding any provision of the Plan to the contrary, upon the occurrence of a Qualified Change in Control Event involving the Company or other Relevant Employer (as defined in Section 6.6(a) below), the Board as constituted immediately prior to the event may in its discretion terminate the Plan, or the portion of the Plan pertaining to the Relevant Employer, and cause to be distributed to each affected Participant the entire balance of all of the Participant’s Deferral Accounts (including the balance of any non-vested Matching Contribution Accounts).  The termination by such Board must occur within the 30 days preceding, or within the 12-month period following, the Qualified Change in Control Event.  Such Plan termination distributions shall be permitted only if:
 
(a)  
All substantially similar non-qualified deferred compensation programs maintained by the Company and all other Affiliated Companies are terminated upon such Qualified Change in Control Event; and
 
(b)  
All compensation deferred and held under each such deferred compensation program is distributed to Participants within 12 months of the date of termination of the applicable program.
 
Section 6.2  Qualified Change in Control Event .  For purposes of this Article VI, a “Qualified Change in Control Event” with respect to any Participant means any of the following events:
 
(a)  
A Qualified change in the ownership of a corporation that is a Relevant Employer (as prescribed in Section 6.3);
 
(b)  
A Qualified change in effective control of a corporation that is a Relevant Employer (as prescribed in Section 6.4); and
 
(c)  
A Qualified Change in the ownership of a substantial portion of the assets of a corporation that is a Relevant Employer (as prescribed in Section 6.5).
 
Section 6.3  Change in the Ownership of a Corporation .
 
(a)  
For purposes of this Article VI, a change in the ownership of a corporation occurs on the date that any one person, or more than one person acting as a group, acquires ownership of stock of the corporation that, together with stock held by such person or group, constitutes more than 50 percent of the total fair market value or total voting power of the stock of such corporation.  If any one person, or more than one person acting as a group, is considered to own more than 50 percent of the total fair market value or total voting power of the stock of a corporation, the acquisition of additional stock by the same person or persons is not considered to cause a change in the ownership of the corporation (or to cause a change in the effective control of the corporation within the meaning of Section 6.4 below).
 
 
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(b)  
For purposes of this Section 6.3, an increase in the percentage of stock owned by any one person, or by persons acting as a group, as a result of a transaction in which the corporation acquires its stock in exchange for property will be treated as an acquisition of stock.
 
(c)  
In all regards, for purposes of this Section 6.3, a change in the ownership of a corporation will be deemed to have occurred only when there is a transfer of stock of a corporation (or issuance of stock of a corporation), and stock in such corporation remains outstanding after the transaction.
 
Section 6.4  Change in the Effective Control of a Corporation .
 
(a)  
For purposes of this Article VI, a change in the effective control of a corporation occurs on the date that either:
 
(i)  
A majority of members of the Company’s Board is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of the Company’s Board prior to the date of the appointment or election; or
 
(ii)  
Any one person, or more than one person acting as a group acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) ownership of stock of the applicable corporation possessing 30 percent or more of the total voting power of the stock of such corporation.
 
(b)  
A change in effective control of a corporation may also occur in any transaction in which either of the two corporations involved in the transaction incurs a change in control event described under Section 6.3 or 6.5.
 
Section 6.4  Change in the Ownership of Substantial Portion of Assets .
 
(a)  
For purposes of this Article VI, a change in the ownership of a substantial portion of a corporation's assets occurs on the date that any one person, or more than one person acting as a group acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) assets from the corporation that have a total gross fair market value equal to or more than 40 percent of the total gross fair market value of all of the assets of the corporation immediately prior to such acquisition or acquisitions. For this purpose, gross fair market value means the value of the assets of the corporation, or the value of the assets being disposed of, determined without regard to any liabilities associated with such assets.
 
(b)  
A transfer of assets by a corporation shall not be treated as a change in the ownership of such assets, and such transfer shall thus not constitute a Qualified Change in Control Event, if the assets are transferred to:
 
(i)  
A shareholder of the corporation (immediately before the asset transfer) in exchange for or with respect to its stock;
 
 
24

 
 
(ii)  
An entity, 50 percent or more of the total value or voting power of which is owned, directly or indirectly, by the corporation;
 
(iii)  
A person, or more than one person acting as a group, that owns, directly or indirectly, 50 percent or more of the total value or voting power of all the outstanding stock of the corporation; or
 
(iv)  
An entity, at least 50 percent of the total value or voting power of which is owned, directly or indirectly, by a person described in paragraph (iii).
 
(c)  
For purposes of subsection (b) above, a person's status is determined immediately after the transfer of the assets.  Thus, for example, a transfer to a corporation in which the transferor corporation has no ownership interest before the transaction, but which is a majority-owned subsidiary of the transferor corporation after the transaction is not treated as a change in the ownership of the assets of the transferor corporation.
 
Section 6.6  Definitions and Operating Rules .  The following definitions and operating rules shall apply for purposes of this Article VI.
 
(a)  
Relevant Employer .  To constitute a Qualified Change in Control Event as to the particular Participant, the event must relate to one of the following corporate employers:
 
(i)  
The Company;
 
(ii)  
A subsidiary corporate Employer for whom the Participant is performing services at the time of the Qualified Change in Control Event; or
 
(iii)  
A subsidiary corporate Employer that is a majority shareholder of an Employer identified in paragraph (ii) above, or any corporate Employer in a chain of corporations in which each corporation is a majority shareholder of another corporation in the chain, ending in a corporation identified in paragraph (ii) above.  For purposes of this paragraph (iii), a majority shareholder of a corporate Employer is a shareholder owning more than 50% of the total fair market value and total voting power of such Employer.
 
(b)  
Persons Acting as a Group .  Persons will not be considered to be acting as a group solely because they purchase or own stock of the same corporation at the same time, or as a result of the same public offering. However, persons will be considered to be acting as a group if they are owners of a corporation that enters into a merger, consolidation, purchase or acquisition of stock, or similar business transaction with the corporation. If a person, including an entity, owns stock in both corporations that enter into a merger, consolidation, purchase or acquisition of stock, or similar transaction, such shareholder is considered to be acting as a group with other shareholders in a corporation prior to the transaction giving rise to the change and not with respect to the ownership interest in the other corporation.
 
(c)  
Ownership Attribution .  The ownership attribution rules of Code Section 318(a) shall apply to determine stock ownership.  Stock underlying a vested option is considered owned by the individual who holds the vested option (and the stock underlying an unvested option is
 
 
25

 
 
 
not considered owned by the individual who holds the unvested option).  For purposes of the preceding sentence, however, if a vested option is exercisable for stock that is not substantially vested (as defined in IRS Regulation § 1.83-3(b) and (j)), the stock underlying the option is not treated as owned by the individual who holds the option.
 

 
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ARTICLE VI I

BENEFICIARY DESIGNATION

 
Section 7.1  Beneficiary Designation . Each Participant shall have the right, at any time, to designate any person, persons or entity as his Beneficiary or Beneficiaries. A Beneficiary designation shall be made, and may be amended, by the Participant by filing a written designation with the Plan Administration Committee, on such form and in accordance with such procedures as the Plan Administration Committee shall establish from time to time.
 
Section 7.2  No Beneficiary Designation . If a Participant fails to designate a Beneficiary as provided above, or if all designated Beneficiaries predecease the Participant, then the Participant’s Beneficiary shall be deemed to be the Participant’s estate.
 

 
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ARTICLE VIII

ADMINISTRATION OF PLAN

 
Section 8.1 Named Fiduciaries .  The persons identified in this Section 8.1 are named as fiduciaries under this Plan and shall be the only named fiduciaries with respect to the Plan.
 
(a)  
The Company, as Plan sponsor, shall be responsible for all fiduciary functions under the Plan except insofar as any such authority or responsibility is assigned by or pursuant to the Plan to another named fiduciary, or is delegated to another fiduciary pursuant to subsection (b) below.  In that regard, the Company shall be the “Administrator” of the Plan within the meaning of ERISA.  The authority and responsibility reserved or assigned to the Company shall be exercised by its Compensation Committee or other authorized officers, and shall include the authority and responsibility in regard to the following:
 
(i)  
The design of the Plan, including the right to amend and to terminate the Plan; and
 
(ii)  
Considering and reviewing all appeals of claims which have been denied.
 
(b)  
The Compensation Committee may delegate to a committee or to any officer of the Company or any Affiliated Company any authority or responsibility reserved or assigned to the Company pursuant to the Plan.  In the event of any such delegation, then any references to the authority, right or power of the Company to act which are contained in any notice, disclosure or communication made with a view toward effectuating the purposes of the Plan shall be construed to include authority for such actions by the committee or officer to whom the Compensation Committee has delegated its authority.  Notwithstanding any other provision of the Plan, in the event that an action or direction of any person to whom authority reposed with the Company under the Plan has been delegated by the Compensation Committee conflicts with an action or direction of the Board of Directors, then the authority of the Compensation Committee shall supersede that of the delegate with respect to such action or direction.
 
(c)  
A Plan Administration Committee shall have the responsibility and authority to control the operation and administration of the Plan in accordance with the terms of the Plan.
 
(i)  
The members of the Plan Administration Committee shall be the individuals serving in the roles of, respectively, the Senior Vice President of Human Resources and the Vice President, Compensation and Benefits for the Employers, and such other individuals who are appointed to the Plan Administration Committee by such Senior Vice President of Human Resources (or, in the event of a vacancy in such position, by the Vice President, Compensation and Benefits).
 
(ii)  
The Plan Administration Committee may designate one of its members as a chairperson, and may retain and supervise outside providers, third party administrators, record keepers and professionals (including in-house professionals) to perform any or all of the duties delegated to it hereunder.
 
 
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(d)  
The Plan Administration Committee shall be responsible for the administration of this Plan and shall have all powers necessary to administer this Plan, including discretionary authority to determine eligibility for benefits and to decide claims under the terms of this Plan, except to the extent that any such powers are vested in any other person administering this Plan by the Compensation Committee. The Plan Administration Committee may from time to time establish rules for the administration of this Plan, and it shall have the exclusive right to interpret this Plan and to decide any matters arising in connection with the administration and operation of this Plan. All rules, interpretations and decisions of the Plan Administration Committee shall be conclusive and binding on the Company, the Employers, Participants and Beneficiaries.
 
(e)  
The Plan Administration Committee is expressly reposed with the discretionary authority and powers in regard to all facets of any claims for benefits made under the Plan.  In turn, the Compensation Committee is expressly reposed with the discretionary authority and powers in regard to all facets of the review of a denied claim for benefits.  Such authority and powers include, but are not limited to, the following:
 
(i)  
Construing and interpreting the terms of the Plan and of any documents pertaining to the Plan;
 
(ii)  
Construing and interpreting all laws and regulations as applicable to any claims for benefits made under the Plan;
 
(iii)  
Making any factual determinations, and applying such determinations to the terms of the Plan and issues arising under the Plan; and
 
(iv)  
Otherwise deciding all questions regarding an individual’s benefit entitlements under the Plan, and the manner and timing of any payments to be made to or with respect to any individual under the Plan.
 
(f)  
No member of the Board, Compensation Committee or Plan Administration Committee shall be liable for any act or action hereunder, whether of omission or commission, by any other member or Employee or by any agent to whom duties in connection with the administration of this Plan have been delegated or for anything done or omitted to be done in connection with this Plan.
 
(g)  
The Company shall, to the fullest extent permitted by law, indemnify each director, officer or Employee of the Company or any Affiliated Company (including the heirs, executors, administrators and other personal representatives of such person), each member of the Compensation Committee and Plan Administration Committee against expenses (including attorneys’ fees), judgments, fines, amounts paid in settlement, actually and reasonably incurred by such person in connection with any threatened, pending or actual suit, action or proceeding (whether civil, criminal, administrative or investigative in nature or otherwise) in which such person may be involved by reason of the fact that he or she is or was serving this Plan in any capacity at the request of the Company or any other Affiliated Company,  the Compensation Committee or the Plan Administration Committee.
 
 
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(h)  
Any expense incurred by the Company, an Employer, the Compensation Committee or the Plan Administration Committee relative to the administration of this Plan shall be paid by the Company or other Affiliated Company and/or may be deducted from the Deferral Accounts of the Participants as determined by the Compensation Committee.
 
(i)  
Any member of the Compensation Committee or the Plan Administration Committee may also be a Participant, but no committee member shall have power to take part in any discretionary decision or action affecting his own interest as a Participant under this Plan unless such decision or action is upon a matter which affects all other Participants similarly situated and confers no special right, benefit or privilege not simultaneously conferred upon all other such Participants.
 
Section 8.2  Claim Procedure .
 
(a)  
If a Participant or Beneficiary makes a written request alleging a right to receive payments under this Plan or alleging a right to receive an adjustment in benefits being paid under this Plan, such actions shall be treated as a claim for benefits. All claims for benefits under this Plan shall be sent to the Plan Administration Committee.
 
(b)  
If the Plan Administration Committee determines that any individual who has claimed a right to receive benefits, or different benefits, under this Plan is not entitled to receive all or any part of the benefits claimed, the Plan Administration Committee shall inform the claimant in writing of such determination and the reasons thereof in terms calculated to be understood by the claimant. The notice shall be sent within 90 days of the claim unless the Plan Administration Committee determines that additional time, not exceeding 90 days, is needed and so notifies the Participant. The notice shall make specific reference to the pertinent Plan provisions on which the denial is based, and shall describe any additional material or information that is necessary. Such notice shall, in addition, inform the claimant of the procedure that the claimant should follow to take advantage of the review procedures set forth below in the event the claimant desires to contest the denial of the claim, and the right of the claimant to bring a civil action under ERISA if the claim is denied upon further review.  Upon request, and free of charge, the claimant will be provided with reasonable access to, and copies of, all documents, records and other information relevant to the claim for benefits.
 
(c)  
The claimant may within 90 days thereafter submit in writing to the Plan Administration Committee a notice that the claimant contests the denial of his or her claim and desires a further review of the denied claim.  The request for review will be directed to the Compensation Committee, which will review the claim and authorize the claimant to review pertinent documents and submit issues and comments relating to the claim. The Compensation Committee will render a final decision with specific reasons thereof in writing and will transmit it to the claimant within 60 days of the written request for review, unless the Compensation Committee determines that additional time, not exceeding 60 days, is needed, and so notifies the Participant.  If the claim is to be denied in whole or in part upon review, the written notice to the claimant will include the following:
 
(i)  
The specific reason or reasons for the denial;
 
 
30

 
 
(ii)  
Reference to the specific Plan provisions upon which the denial is based;
 
(iii)  
A statement that the claimant is entitled to receive, upon request, and free of charge, reasonable access to, and copies of, all documents, records and other information relevant to the claim appeal; and
 
(iv)  
A statement of the claimant’s right to file a civil lawsuit under ERISA.
 
(d)  
Notwithstanding subsection (c) above, if the Compensation Committee holds regularly scheduled meetings at least quarterly, the Compensation Committee shall make a claim review determination no later than the date of the meeting of the committee that immediately follows the Plan’s receipt of a request for review, unless the request for review is filed within 30 days preceding the date of such meeting.  In such case, a claim review determination may be made by no later than the date of the second meeting following the Plan’s receipt of the request for review.  If special circumstances (such as the need to hold hearing) require a further extension of time for processing, a determination shall be rendered not later than the third meeting of the committee following the Plan’s receipt of the request for review.  If such an extension of time for review is required because of special circumstances, the claimant shall be provided with written notice of the extension, describing the special circumstances and the date as of which the claim review determination will be made, prior to the commencement of the extension.  The claimant shall be notified of the claim review determination as soon as possible, but not later than five days after the determination is made.
 
 
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ARTICLE IX
 

AMENDMENT AND TERMINATION OF PLAN

 
Section 9.1  Amendment . The Board or the Compensation Committee may at any time amend this Plan in whole or in part, provided, however, that no amendment shall be effective to decrease the balance in, or otherwise alter the election made with respect to, any Deferral Account as accrued at the time of such amendment, nor shall any amendment otherwise have a retroactive effect.  In addition, any amendment that has the effect of changing the time or form of payment under the Plan with respect to any Participant shall be subject to the provisions of Sections 5.7 and 5.8 (regarding the prohibition against the acceleration of payments and the restrictions on changes in the time or form of payments).
 
Section 9.2  Company’s Right to Terminate .  The Board or the Compensation Committee may at any time terminate the Plan with respect to future Deferral Election Agreements.  However, the Plan cannot otherwise be terminated, and Deferral Accounts thereupon distributed, except as provided below.
 
(a)  
The Plan may be terminated and distributions thereupon made upon a Qualified Change in Control Event, as prescribed in Section 6.1.
 
(b)  
The Plan may be terminated and distributions thereupon made within 12 months of the Company’s corporate dissolution taxed under Code Section 331, or with the approval of a bankruptcy court pursuant to 11 USC § 503(b)(1)(A), provided that the amounts deferred under the Plan are distributed for inclusion in the gross income of the Participant in the latest of:
 
(v)  
The calendar year in which the Plan termination occurs;
 
(vi)  
The calendar year in which the deferred amount is no longer subject to a substantial risk of forfeiture; or
 
(vii)  
The first calendar year in which the termination distribution is administratively practicable.
 
(c)  
The Plan may be terminated and distributions thereupon made if the conditions prescribed below are satisfied.
 
(i)  
Each other “account balance” deferred compensation plan maintained by the Company and any other Affiliated Company that also covers any Participant in this Plan is concurrently terminated;
 
(ii)  
No payments (other than payments that would be payable under the terms of the terminated programs if the terminations had not occurred) are made within 12 months of the termination of the programs;
 
(iii)  
All payments are made within 24 months of the termination of the applicable programs; and
 
 
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(iv)  
During the three-year period following the termination of the Plan, neither the Company, nor any other Affiliated Company, adopts an account balance deferred compensation program covering any individual who was a Participant in the Plan upon its termination.
 

 
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ARTICLE X

MISCELLANEOUS

 
Section 10.1  Unfunded Plan . This Plan is intended to be an unfunded plan maintained primarily for the purpose of providing deferred compensation for a select group of highly compensated Team Members, within the meaning of Sections 201, 301 and 401 of ERISA.  All payments pursuant to the Plan shall be made from the general funds of the Employers and no special or separate fund shall be established or other segregation of assets made to assure payment. No Participant or other person shall have under any circumstances any interest in any particular property or assets of the Employers as a result of participating in the Plan. Notwithstanding the foregoing, the Employers may (but shall not be obligated to) create one or more grantor trusts, the assets of which are subject to the claims of the Employers’ creditors, to assist it in accumulating funds to pay its obligations under the Plan.
 
Section 10.2  Nonassignability .
 
(a)  
Except as specifically set forth in the Plan with respect to the designation of Beneficiaries, neither a Participant nor any other person shall have any right to commute, sell, assign, transfer, pledge, anticipate, mortgage or otherwise encumber, transfer, hypothecate or convey in advance of actual receipt the amounts, if any, payable hereunder, or any part thereof, which are, and all rights to which are, expressly declared to be unassignable and non-transferable. No part of the amounts payable shall, prior to actual payment, be subject to seizure or sequestration for the payment of any debts, judgments, alimony or separate maintenance owed by a Participant or any other person, nor be transferable by operation of law in the event of a Participant’s or any other person’s bankruptcy or insolvency.
 
(b)  
Notwithstanding the foregoing, the balance of a Participant’s Deferral Accounts, or any portion thereof, shall be distributed in accordance with the terms of any domestic relations order which the Plan Administration Committee determines to be a qualified domestic relations order (QDRO) described in Section 414(p) of the Code.
 
Section 10. 3  Validity and Severability .  The invalidity or unenforceability of any provision of this Plan shall not affect the validity or enforceability of any other provision of this Plan, which shall remain in full force and effect, and any prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
 
Section 10.4  Governing Law . The validity, interpretation, construction and performance of this Plan shall in all respects be governed by the laws of the State of Virginia, without reference to principles of conflict of law, except to the extent preempted by federal law.
 
Section 10.5  Employment Status . This Plan does not constitute a contract of employment or impose on the Participant or any Employer any obligation for the Participant to remain employed by the Employer or change the status of the Participant’s employment or the policies of the Employer and its affiliates regarding termination of employment.
 
 
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Section 10.6  Underlying Incentive Plans and Programs . Nothing in this Plan shall prevent the Company or other Employer from modifying, amending or terminating the compensation or the incentive plans and programs pursuant to which cash awards are earned and which are deferred under this Plan.
 
Section 10.7  Funding and Financial Health Restrictions .  In no event shall any amounts attributable to any Deferral Account be held in an offshore trust within the meaning of Code Section 409A(b)(1).  In addition, the assets of any Affiliated Company shall not be restricted to the payment of benefits under the Plan upon a change in the Affiliated Company’s financial health within the meaning of Code Section 409A(b)(2).
 

*           *           *


Pursuant to the authority granted by the Compensation Committee of the Board of Directors of Advance Auto Parts, Inc. under its resolutions adopted on November ________, 2007, the undersigned hereby executes this Advance Auto Parts, Inc. Deferred Compensation Plan on behalf of Advance Auto Parts, Inc.


ADVANCE AUTO PARTS, INC.


By:                                                                         

Its:                                                                         

Dated: November , 2007



 
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Appendix A
 
Advance Auto Parts, Inc. MONY Deferred Compensation Plan Investment Funds

Enterprise Total Return
MFS Total Return
Dreyfus Stock Index
MFS New Discovery
Dreyfus Appreciation
Janus Aspen Capital Appreciation
MONY Money Market Fund
T. Rowe Price Int'l Stock


 
36

 

ADDENDUM TO
ADVANCE AUTO PARTS, INC. DEFERRED COMPENSATION PLAN
(As Amended and Restated Effective as of January 1, 2008)

 
PREAMBLE
 
The purpose and effect of this Addendum (the “Addendum”) to the Advance Auto Parts, Inc. Deferred Compensation Plan (the “Plan”) is to preserve the terms of the Plan that were in effect as of December 31, 2004 (the “2004 Plan Terms”), and to continue to apply such 2004 Plan Terms to compensation deferred under the Plan on or before December 31, 2004, without regard to the standards of Code Section 409A as enacted under the American Jobs Creation Act of 2004 (“AJCA”).
 
 
SCOPE OF ADDENDUM
 
This Addendum shall apply solely to a Participant’s Deferral Accounts under the Plan attributable to the deferral of any compensation for services performed by the Participant for the Company or an Affiliated Company (or for Discount Auto Parts, Inc., which was acquired by the Company in 2003) on or before December 31, 2004, provided that the compensation was earned and not subject to a substantial risk of forfeiture as of that date.  Such accounts are hereinafter referred to as “Pre-2005 Deferrals.”  The accounts maintained for such deferrals are referred to as “Pre-2005 Deferral Accounts.”
 
For purposes of greater preciseness, the Pre-2005 Deferral Accounts are those pertaining to:
 
1.  
A Participant’s “Base Salary” Deferrals for 2003 and 2004;
 
2.  
A Participant’s “Quarterly Bonus” Deferrals for 2003 and for the first three quarters of 2004;
 
3.  
A Participant’s Roll-up Performance Bonus for 2003; and
 
4.  
A Participant’s DAP SEP Account, as described in Section 4.02 of this Addendum.
 
Entitlement to both the Quarterly Bonus for the fourth quarter of 2004, and for the 2004 Roll-up Performance Bonus, generally required that a Participant have been employed by the Company as of a post- December 31, 2004 payment date.  These bonuses, and the underlying deferrals of such bonuses, were therefore generally subject to a substantial risk of forfeiture as of such date.  Consequently, such bonus deferrals are subject to the Code Section 409A standards that become effective as of January 1, 2005, and thus shall be governed by the Basic Plan Document, unless the bonuses were in fact paid to the applicable Participant on or before December 31, 2004.
 
EFFECT OF AMENDMENTS AND DISCRETIONARY ACTIONS
 
It is intended that the 2004 Plan terms be strictly preserved for purposes of this Addendum.  In that regard, no amendment to the Basic Plan Document, and no exercise of any discretion by the Plan Administration  Committee under the terms of the Basic Plan Document, shall apply to the Pre-2005 Deferral Accounts to which this Addendum pertains unless such amendment or exercise of discretion expressly provides that it is to be applied to such Pre-2005 Deferral Accounts.
 
 
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Notwithstanding the foregoing, the Plan Administration Committee may change or add a Hypothetical Investment Benchmarks made available with respect to Pre-2005 Deferral Accounts.
 
2004 PLAN TERMS
 
ARTICLE I
 
APPLICATION
 
Notwithstanding any provision of the Plan to the contrary, the following provisions of this Addendum shall apply to a Participant’s Pre-2005 Deferral Accounts as previously defined.
 
ARTICLE II
 
 
DEFINITIONS
 
For the purposes of this Addendum, the words and phrases set forth below shall have the meanings indicated, unless the context clearly indicates otherwise.  Other words and phrases within this Addendum shall have the same meaning as defined under the Basic Plan Document.
 
Basic Plan Document .  “Basic Plan Document” means the document governing the terms of the Plan as in effect on and after January 1, 2005, as may be amended from time to time.
 
Pre-2005 Deferrals .  “Pre-2005 Deferrals” means the elective deferrals described in the “Scope of Addendum” Section of this Addendum.
 
Pre-2005 Deferral Account. “Pre-2005 Deferral Account” means the account maintained under the Plan for each Participant who has made Pre-2005 Deferrals to the Plan.
 
Deferral Period. “Deferral Period” as applied under this Addendum is defined in Section 3.03 below.
 
Deferred Amount. “Deferred Amount” as applied under this Addendum is defined in Section 3.03 below.
 
Disability. “Disability” means eligibility for disability benefits under the terms of the Long-Term Disability Plan maintained by the Company.
 
Form of Payment.   “Form of Payment” means payment in one lump sum or in substantially equal annual installments over a period of up to 10 years.
 
Participation Agreement . “Participation Agreement” means an agreement filed by a Participant as described in Section 3.01 of this Addendum.
 
Retirement. “Retirement” means retirement of a Participant from the Company and all Affiliated Companies after attaining both age 55 and completing at least ten continuous years of service.
 
Termination of Employment.   “Termination of Employment” means the cessation of a Participant’s services as a full-time team member of the Company and all Affiliated Companies for any reason other than Retirement.
 
 
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Unforeseeable Emergency. “Unforeseeable Emergency” means severe financial hardship to the Participant resulting from a sudden and unexpected illness or accident of the Participant or a dependent of the Participant, loss of the Participant’s property due to casualty, or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant.
 
 
ARTICLE III
 
PLAN TERMS
 
Section 3.01
 
Maintenance of Accounts.   Separate Pre-2005 Deferral Accounts shall be maintained for each Participant. More than one Pre-2005 Deferral Account may be maintained for a Participant as necessary to reflect (a) various Hypothetical Investment Benchmarks; and/or (b) separate Participation Agreements specifying different Deferral Periods and/or forms of payment pertaining to such Pre-2005 Deferral Accounts.
 
Section 3.02
 
Vesting of Deferral Account. Except as provided in Section 3.10 below (regarding a forfeiture upon a voluntary early withdrawal), a Participant shall be 100% vested in his or her Pre-2005 Deferral Accounts at all times.
 
Section 3.03
 
Participation Agreement.   Each Participant for whom a Pre-2005 Deferral Account is maintained shall have previously entered into a Participation Agreement that set forth the following:
 
(a)  
The amount of Eligible Compensation for the Plan Year or performance period to which the Participation Agreement relates that was to be deferred under the Plan (the “Deferred Amount”);
 
(b)  
The period after which payment of the Deferred Amount is to be made or begin to be made (the “Deferral Period”), which shall be the earlier of (i) a number of full years, not less than two (i.e., for a “Specified Time”), and (ii) the period ending upon the Retirement or prior termination of employment of the Participant; and
 
(c)  
The form in which payments are to be made, which may be a lump sum or in substantially equal annual installments over a period of up to 10 years.
 
Section 3.04
 
Modification of Deferral Period Election by Participant.   A Participant who elected a Deferral Period for any Pre-2005 Deferrals based on a Specified Time may elect to extend that Specified Time period (in increments of full calendar years) by submitting an amended Participation Agreement to the Plan Administration Committee at least one full calendar year before the end of Deferral Period (as in effect before such amendment); provided, that only one such amendment may be filed with respect to each Participation Agreement.  Under no circumstances may a Participant’s elected Deferral Period be shortened or reduced.
 
 
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Section 3.05
 
Time and Form of Payment .
 
(a)  
At the end of the Deferral Period for each Pre-2005 Deferral Account, the value of such Pre-2005 Deferral Account shall be paid to the Participant at the time or times elected by the Participant in the applicable Participation Agreement.
 
(b)  
If the Participant has elected to receive payments from a Pre-2005 Deferral Account in a lump sum, the Company shall pay the value of such Pre-2005 Deferral Account (determined as of the most recent Valuation Date preceding the end of the Deferral Period) in a lump sum in cash as soon as practicable after the end of the Deferral Period.
 
(c)  
If the Participant has elected to receive payments from a Pre-2005 Deferral Account in installments, the Company shall make annual cash payments from such Pre-2005 Deferral Account, each of which shall consist of an amount equal to (i) the balance of such Pre-2005 Deferral Account as of the most recent Valuation Date preceding the payment date times (ii) a fraction, the numerator of which is one and the denominator of which is the number of remaining installments (including the installment being paid). The first such installment shall be paid as soon as practicable after the end of the Deferral Period and each subsequent installment shall be paid on or about the anniversary of such first payment. Each such installment shall be deemed to be made on a pro rata basis from each of the different deemed investments of the Pre-2005 Deferral Account (if there is more than one such deemed investment).
 
Section 3.06
 
Retirement.   If a Participant had elected to have a Pre-2005 Deferral Account distributed upon Retirement, then the value of such Pre-2005 Deferral Account (determined as of the most recent Valuation Date preceding such Retirement) shall be distributed to the Participant upon Retirement in installments or a lump sum as elected in the Participation Agreement, and as generally described in Section 3.05 above.
 
Section 3.07
 
Specified Time  Distributions.   If a Participant elected a Deferral Period with respect to a Pre-2005 Deferral Account that is a stated number of years (i.e., for a Specified Time), then upon the expiration of such Specified Time, the value of such Pre-2005 Deferral Account (determined as of the most recent Valuation Date preceding such Deferral Period) shall be distributed in installments or a lump sum as elected in the Participation Agreement, and as generally described in Section 3.05 above.
 
Section 3.08
 
Other Than Retirement.   Notwithstanding the provisions of any Participation Agreement, if a Participant dies, has a Termination of Employment or Disability prior to Retirement and prior to receiving full payment of a Pre-2005 Deferral Account, the Company shall pay the remaining balance (determined as of the most recent Valuation Date preceding such event) to the Participant or the Participant’s Beneficiary or Beneficiaries (as the case may be) in a lump sum as soon as practicable following the occurrence of such event, unless the Plan Administration Committee in its sole discretion determines otherwise.
 
 
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Section 3.09
 
Hardship Withdrawals.
 
(a)  
Notwithstanding the foregoing provisions of this Article III and any Participation Agreement, a Participant shall be entitled to elect to withdraw all or part of the balance of a Pre-2005 Deferral Account in the event of an Unforeseeable Emergency, in accordance with this Section 3.09.
 
(b)  
A hardship withdrawal pursuant to this Section 3.09 may only be made to the extent reasonably needed to satisfy the Unforeseeable Emergency need, and may not be made if such need is or may be relieved (i) through reimbursement or compensation by insurance or otherwise; (ii) by liquidation of the Participant’s assets to the extent such liquidation would not itself cause severe financial hardship; or (iii) by cessation of participation in the Plan.
 
(c)  
An application for a hardship withdrawal under this Section 3.09 shall be made to the Plan Administration Committee in such form and in accordance with such procedures as the Plan Administration Committee shall determine from time to time. The determination of whether, and in what amount and form, a hardship withdrawal will be permitted pursuant to this Section 3.09 shall be made by the Plan Administration Committee.
 
Section 3.10
 
Voluntary Early Withdrawal .  Notwithstanding the foregoing provisions of this Article III and any Participation Agreement, a Participant shall be entitled to elect to withdraw the entire balance of his or her Pre-2005 Deferral Accounts in accordance with this Section 3.10 by filing with the Plan Administration Committee such forms, in accordance with such procedures, as the Plan Administration Committee shall determine from time to time. As soon as practicable after receipt of such form by the Plan Administration Committee, the Company shall pay an amount equal to ninety percent of the balance in such Pre-2005 Deferral Accounts (determined as of the most recent Valuation Date preceding the date such election is filed) to the electing Participant in a lump sum in cash, and the Participant shall forfeit the remainder of such Pre-2005 Deferral Accounts.  A Participant who elects to make a voluntary early withdrawal under this Section 3.10 shall not be entitled to file any Deferral Agreements under the Plan for post-2004 deferrals pertaining to compensation to be earned in the first Plan Year that begins after such voluntary early withdrawal election is made.
 
Section 3.11
 
Change of Control.   In the event of a Change of Control that is recommended for approval to the shareholders by the Board, no immediate special payment shall be made to any Participant and the terms and conditions of the Plan shall remain in full force and effect. Notwithstanding anything contained in this Plan to the contrary, upon a hostile Change of Control, the Company shall immediately pay to each Participant in a lump sum in cash the balance in the Participant’s Pre-2005 Deferral Accounts (determined as of the most recent Valuation Date preceding the Change of Control) including any Company Matching Contributions. A “Hostile Change of Control” is a Change of Control of the Company (as defined under the terms of the Plan in effect on December 31, 2004), which is not recommended for approval to the shareholders by the Board.
 
 
41

 
 
Section 3.12
 
Company’s Right to Terminate.   The Board or the Compensation Committee may at any time terminate the portion of the Plan pertaining to Pre-2005 Deferral Accounts at any time for any reason, including without limitation if, in its judgment, the continuance of such portion of the Plan, the tax, accounting, or other effects thereof, or potential payments thereunder would not be in the best interests of the Company, and upon any such termination, the Company shall immediately pay to each Participant in a lump sum the accrued balance in the Participant’s Pre-2005  Deferral Account (determined as of the most recent Valuation Date preceding the termination date).
 
 
ARTICLE IV
 
MERGED DISCOUNT AUTO PARTS PLAN
 
Section 4.01
 
Overview .  Discount Auto Parts, Inc. (“Discount Auto Parts”) was acquired by, and is now a subsidiary of, the Company.  Discount Auto Parts had maintained the Discount Auto Parts Plan, Inc. Supplemental Executive Profit Sharing Plan (the “DAP SEP”), a deferred compensation plan, for the benefit of its eligible employees.  The DAP SEP was merged with and into the Plan, effective on or about November 1, 2003 (which effective date is hereby referred to as the “Merger Date”).  For purposes of this Appendix A, a “DAP SEP Participant” means any current or former employee of Discount Auto Parts for whom an account was maintained under the DAP SEP as of the Merger Date.  A DAP SEP Participant is a Participant in the Plan, but only with respect to the rights associated with the Participant’s DAP SEP Account established pursuant to Section 4.02 below, unless and to the extent the individual has become a general Participant in the Plan pursuant to its terms.
 
Section 4.02
 
Separate DAP SEP Account .  The value of each DAP SEP Participant’s accrued benefit under the DAP SEP was transferred to and became a liability of the Plan as of the Merger Date.  Such amount is maintained in a separate DAP SEP Account established for the benefit of the DAP SEP Participant.  A DAP SEP Participant shall at all times be fully vested and have a nonforfeitable interest in the value of his or her DAP SEP Account.
 
Section 4.03
 
Investment of Accounts .  A DAP SEP Participant shall be entitled to direct the manner in which his or her DAP SEP Account will be deemed to be invested by selecting among the Hypothetical Investment Benchmarks specified from time to time in Appendix A of the Basic Plan Document.
 
Section 4.04
 
Payment of Benefits .
 
(a)  
Upon a DAP SEP Participant’s termination of employment with the Company and all Affiliated Companies, or, if earlier, upon such Participant’s attainment of age 65 (the “Normal Retirement Age” under the DAP SEP), the DAP SEP Participant shall become
 
 
42

 
 
  
entitled to receive payment of the value of the balance of his or her DAP SEP Account determined as of the date of such event.  Payment of such benefit shall be made in a lump sum within 120 days after the occurrence of the event giving rise to the DAP SEP Participant’s right to receive payment.
 
(b)  
A DAP SEP Participant shall not be entitled to elect to receive any portion of his or her DAP SEP Account prior to terminating employment or attaining age 65.  Consequently, the Specified Time distribution, hardship withdrawal and voluntary early withdrawal provisions of Article III of this Addendum shall not apply to a Participant’s DAP SEP Account.
 
(c)  
The timing of the payment of a Participant’s DAP SEP Account shall not be affected by the timing of any other benefits that the DAP SEP Participant may be entitled to receive as a general Participant in the Plan.
 
Section 4.05
 
Death Benefits .  Any beneficiary designation filed under the DAP SEP by a DAP SEP Participant whose death had occurred prior to the Merger Date became null and void as of the Merger date.  Accordingly, a DAP SEP Participant who is not a general Participant in the Plan as of the Merger Date may designate a Beneficiary or Beneficiaries as generally prescribed under the Plan.  In the event of the DAP SEP Participant’s death prior to payment of his or her DAP SEP Account, the Participant’s interest in that Account shall be paid to the Participant’s Beneficiary as designated or prescribed under the Plan.
 

 
43

 

 
 
 
FIRST AMENDMENT TO THE
ADVANCE AUTO PARTS, INC.
DEFERRED COMPENSATION PLAN
(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 Compensation Plan (the “Plan”) to allow eligible Team Members 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 that a delay in payment to a “specified employee” is required only if the payment is made by reason of a separation from service.
 
NOW, THEREFORE, in consideration of the foregoing, the Plan is hereby amended, effective for the Plan Year beginning on January 1, 2009, in the manner as prescribed below.
 
1.   Article 2 of the Plan is hereby amended by the modification and addition of the definitions set forth below.
 
Section 2.14                                 Eligible Compensation .  “Eligible Compensation” for any Team Member for any period means the Base Salary and Bonus Compensation, if any, otherwise payable to the Team Member for services performed or performances achieved during such period.
 
*           *           *
 
Section 2.27                                 Annual Bonus .  “Annual Bonus” means the bonus awarded to a Team Member for a calendar year performance period under an incentive plan maintained by an Employer.
 
*           *           *
 
Section 2.32                                 Bonus Compensation .  "Bonus Compensation" for any Team Member for any period means any Quarterly Bonus or Annual Bonus awarded to such Team Member 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 .
 
 
(a)
For each Plan Year, each eligible Team Member 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 Team Member 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 Team Members, which procedures may permit or require elections to be made by electronic media.  The Team Member will be provided written or electronic confirmation of the terms of each Deferral Election Agreement.
 
*           *           *
 
Section 3.4                       Deferred Amount .
 
 
(a)
The Deferral Election Agreement of an eligible Team Member for a Plan Year will designate the amount of each form of the Eligible Compensation for the Plan Year that the Team Member elects to have deferred under the Plan (the “Deferred Amount”).  For each Plan Year, an eligible Team Member will make a separate deferral election for the Team Member’s Base Salary and Bonus Compensation for the Plan Year; provided, however, that the Plan Administration Committee in its discretion may permit separate elections to be made with respect to a Team Member's Quarterly Bonuses and Annual Bonus, respectively.  The maximum or minimum amount of deferral that may be elected by a Team Member 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 Team Members or classes of Team Members.
 
*           *           *
 
Section 3.7                       Deferral Election Deadline .
 
(a)  
A Deferral Election pertaining to Base Salary or Bonus Compensation that may otherwise become payable to a Team Member 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.
 
Page 2 - FIRST AMENDMENT TO THE DEFERRED COMPENSATION PLAN
 
 

 
 
(b)  
Notwithstanding subsection (a) above, the Plan Administration Committee in its discretion may permit a Team Member 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:
 
 
(i)
The Annual Bonus for the Plan Year must be payable by reason of the Team Member’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;
 
 
(ii)
The Team Member 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
 
 
(iii)
The election must be made before the amount of the Annual Bonus becomes readily ascertainable.
 
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 a Team Member who becomes eligible to participate in the Plan after the first day of a Plan Year.
 
(a)  
The timing of the eligible Team Member’s initial Deferral Election will be governed by the rules prescribed below.
 
 
(i)
The initial Deferral Election must be made within 30 days after the date the individual becomes an eligible Team Member.  Except as provided in paragraph (ii) below, the eligible Team Member’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.
 
 
(ii)
Notwithstanding paragraph (i) above, an initial Deferral Election by an eligible Team Member 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.
 
 
(iii)
In no event may the deadline for making an initial Deferral Election under this Plan with respect to any eligible Team Member for any Plan Year be subsequent to the deadline imposed on that Team Member for making a Deferral Election for such Plan Year under any other Aggregated Plan.
 
*           *           *
 
Page 3 - FIRST AMENDMENT TO THE DEFERRED COMPENSATION PLAN
 
 

 
 
 
(c)
The compensation to which such initial Deferral Election will apply will be determined in accordance with the rules set forth below.
 
 
(i)
The eligible Team Member’s initial Deferral Election will apply only to the Eligible Compensation otherwise payable for services performed by the eligible Team Member subsequent to the date the Deferral Election has become irrevocable pursuant to subsection (a) above.
 
 
(ii)
For purposes of paragraph (i) above, as with respect to a Deferral Election by an eligible Team Member 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.
 
 
(iii)
The formula prescribed in paragraph (ii) above will also apply in regard to a Deferral Election pertaining to the deferral of the Team Member’s Base Salary, unless the 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.
 
3.   Subsection 5.6(a) of the Plan is amended to read as prescribed below.
 
Section 5.6                       Restriction on Distributions to Specified Employees .
 
(a)  
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).
 
*           *           *
 
*           *           *
 
 
 
 
Page 4 - FIRST AMENDMENT TO THE DEFERRED COMPENSATION PLAN
 
 

 
 
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 Compensation Plan on behalf of Advance Auto Parts, Inc.
 
 
ADVANCE AUTO PARTS, INC.
 
By:                                                                         
 
Title:                                                                         
 
Dated: , 2009
 

 
 
 
 
 
 
 
 
 
Page 5 - FIRST AMENDMENT TO THE DEFERRED COMPENSATION PLAN
 
 
 
 
 

 
 
 
 


SECOND AMENDMENT TO THE
ADVANCE AUTO PARTS, INC.
DEFERRED COMPENSATION PLAN
(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 Compensation Plan (the “Plan”) to allow eligible Team Members to elect to defer the receipt and taxation of a portion of their compensation; and
 
WHEREAS, it is the desire of the Company to amend the Plan to prescribe default rules to apply in the event that an eligible Team Member fails to designate the time or form of a distribution from the Plan.
 
NOW, THEREFORE, in consideration of the foregoing, Section 3.10 of the Plan is hereby amended to read as prescribed below, effective as of the Plan Year beginning on January 1, 2010.
 
Section 3.10                       Evergreen and Default Elections .
 
 
(a)  
Prior to each Deferral Election Agreement submission deadline, each eligible Team Member will be provided information regarding the Team Member’s deferral rights under the Plan for the following Plan Year or other applicable period.  The eligible Team Member will then be permitted to affirmatively elect or decline to enter into a Deferral Election Agreement for the applicable period.  In the event that an eligible Team Member fails to timely submit a Deferral Election Agreement, or fails to affirmatively decline to enter into a Deferral Election Agreement, for any period, then the eligible Team Member will be deemed to have made the same Deferral Election (or election declination) as had most recently been made for the form of Eligible Compensation at issue.
 
(b)  
Subject to Section 3.9(b) above (regarding the cancellation of a Deferred Election upon a 401(k) plan hardship withdrawal), a deemed election will become irrevocable as of the applicable Statutory Deadline (as prescribed in Section 3.7).  For example, an eligible Team Member who fails to make, or affirmatively declines, a Deferral Election in regard to Base Salary payable for Year 2 will be deemed to have made the same Base Salary Deferral Election, or election declination, as in effect for Year 1.  An eligible Team Member who is first eligible to make a Deferral Election for any form of Eligible Compensation, but fails to timely make such election, will be deemed to have declined such Deferral Election.  Subject to subsection (c) below, this deemed evergreen election will apply to all aspects of an eligible Team Member’s Deferral Election, including in regard to the designated Deferral Period.
 
(c)  
The Deferral Period applicable to an evergreen election deemed to have been made under this Section 3.10 with respect to any form of Eligible Compensation will be determined as prescribed below.
 
(i)  
If the most recent Deferral Election for the form of Eligible Compensation at issue designated a Deferral Period extending to the eligible Team Member’s Retirement or other Separation from Service, then that same designation will apply to the deemed evergreen election.
 
 
 

 
 
(ii)  
If the most recent Deferral Election for the form of Eligible Compensation designated a deferral of payment for a Specified Time, (or if the default election made pursuant to subsection (d) below provides for a deemed Specified Time Deferral Period), then that Specified Time will be deemed to have also been elected; provided, however, if that Specified Time is not the end of at least two full calendar years following the beginning of the Plan Year to which the deemed evergreen election applies, then the Deferral Period for a Deferred Amount that is the subject of the deemed election will be the end of such second future calendar year.
 
 
(d)  
If an eligible Team Member has made a Deferral Election, but did not specify a form of distribution, or did not specify a Deferral Period (in which case, one or both of the evergreen Deferral Election rules of subsection (c) above would not be implicated), then the default rules prescribed below will apply.
 
 
(i)  
If the Team Member did not specify a form of payment, then the default form of payment pertaining to the Deferral Election is a lump sum.
 
 
(ii)  
If the Team Member did not specify a Deferral Period, then the Deferral Period pertaining to the Deferral Election will be the expiration of two full calendar years following the Plan Year to which the deferred compensation pertains.  For example, the default Deferral Period pertaining to Year 1 compensation is the period ending on December 31 of Year 3.
 
 
Notwithstanding the foregoing, as generally prescribed in Section 3.5, a Participant’s Retirement is the designated payment event with respect to each of the Participant’s Deferral Accounts.  Accordingly, if such Retirement occurs prior to the occurrence of the deemed Specified Time Deferral Election for any Deferral Account, then the Retirement will supplant the deemed Specified Time Deferral Election with respect to that Deferral Account.
 
 
*           *           *
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 _____, 2010, the undersigned hereby executes this Advance Auto Parts, Inc. Deferred Compensation Plan on behalf of Advance Auto Parts, Inc.
 
 
ADVANCE AUTO PARTS, INC.
 
By: ___________________________                                                                        
 
Title:___________________________
 
Dated: ___________________________ , 2010
 

Exhibit 10.41
 
 
EMPLOYMENT AGREEMENT
 
Fourth Amendment
 
FOURTH AMENDMENT, dated as of December 15, 2010 (“Fourth Amendment”) to the EMPLOYMENT AGREEMENT, dated as of January 7, 2008, and previously  amended as of June 4, 2008, January 1, 2010, and September 1, 2010 between Advance Auto Parts, Inc. (“Advance” or the “Company”), a Delaware corporation, and Darren R. Jackson (the “Executive”) (the “Agreement”).
 
The Company and the Executive agree as follows:
 
1.              Amendment of Section 1 of the Agreement .  Effective January 7, 2011, Section 1 of the Agreement is hereby amended by revising the second paragraph thereof to read as follows:
 
“The term of Executive’s employment by the Company pursuant to this Fourth Amendment to the Agreement shall commence on January 7, 2011 (“Commencement Date”) and shall end on the day prior to the first anniversary of the Commencement Date, unless sooner terminated under the provisions of Paragraph 4 below (“Employment Term”); provided, however, that commencing on the first anniversary of the Commencement Date the Employment Term shall be automatically extended for an additional period of one year unless, not later than 90 days prior to such automatic extension date, either party shall have given notice to the other that it does not wish to extend the Employment Term, in which case the Employment Term shall end on the day prior to the third anniversary of the Commencement Date; and on each anniversary thereafter the Employment Term shall be automatically extended for an additional period of one year unless, not later than 90 days prior to such automatic extension date, either party shall have given notice to the other that it does not wish to extend the Employment Term, in which case the Employment Term shall end 90 days following such notice.”
 
2.             Amendment of Section 2(a) of the Agreement .  Effective January 7, 2011, Section 2(a) of the Agreement is hereby amended by amending the second paragraph thereof to read in its entirety as follows:
 
“Executive shall have use of the Company airplane to travel to and from charitable board meetings as necessary, subject to the Advance Auto Parts, Inc. and Subsidiaries Policy For Personal Use of Corporate Airplane.  Executive’s principal office location shall be the Company’s Store Support Center located in Minneapolis, MN.”
 
3.     Amendment of Section 3 of the Agreement .  Effective January 7, 2011, Section 3 of the Agreement is hereby amended by deleting Subsections 3(c) and 3(d) thereof in their entirety and by revising Subsection 3(a) to read as follows:
 

 
 

 
 
“3.   Compensation .
 
(a)      Base Salary .   During the Employment Term, the Company shall pay to the Executive a salary of $700,000 per annum, payable consistent with the Company’s standard payroll practices then in effect (“Base Salary”).  Such Base Salary shall be reviewed by the Compensation Committee of Advance’s Board of Directors (hereinafter the “Compensation Committee”) at least annually, with any changes taking into account, among other factors, the Company and individual performance.”
 
4.             Full Force and Effect .   Except for those terms and provisions amended herein, all other terms and conditions in the Agreement shall remain unchanged and in full force and effect.
 

 
IN WITNESS WHEREOF, the Company and Executive have executed this Fourth Amendment to the Agreement as of the date first written above.
 

 
IN WITNESS WHEREOF, the Company and Executive have executed this Agreement as of the date first written above.
 
 
Advance Auto Parts, Inc.
 
             
  By:         (SEAL)   
             
  Print Name:    
             
  Title:     
       
  Address:     
       
       
             
             
             
  Executive  
             
  Print Name:  Darren R. Jackson  
             
  Signature:     
             
  Address:     
  Address:     
       
             
 
 
 
 
Exhibit 10.42

 




ADVANCE AUTO PARTS, INC.
2011 SARS AWARD AGREEMENT
(STOCK SETTLED)

Award Date
Number of Shares at Target Level
Time-vested Shares
Performance Shares at Target Level
Grant Price
Expiration Date
December 1, 2010
110,523
82,893
27,630
$66.15
December 1, 2017

THIS CERTIFIES THAT Advance Auto Parts, Inc. (the “Company”) has on the Award Date specified above granted to

Darren R Jackson

(“Participant”) Stock Appreciation Rights (the “SARs”) with respect to the number of shares of Advance Auto Parts, Inc. Common Stock, $.0001 par value per share (“Common Stock”), indicated above in the box labeled “Number of Shares at Target Level” (the “Shares”). The initial value of each Share is indicated above in the box labeled “Grant Price.”  The SARs that this Certificate represents shall vest and become exercisable in accordance with the vesting schedule, all as set forth in Section 2 below, and upon vesting shall be fully exercisable until the Expiration Date. This Award is subject to the terms and conditions set forth below and in the Advance Auto Parts, Inc. 2004 Long-Term Incentive Plan (the “Plan”). A copy of the Plan is available on the Intranet or upon request. In the event of any conflict between the terms of the Plan and this Award, the terms of the Plan shall govern. Any terms not defined herein shall have the meaning set forth in the Plan.

* * * * *

1. Duration of SARs.   Subject to the following, these SARs shall expire on the Expiration Date.  However, if your employment or other association with the Company and its Affiliates ends before that date, these SARs shall expire on Expiration Date or, if earlier, the date specified in whichever of the following applies:

(a) If your employment or other association is terminated on account of retirement, the time-vested SARs, as defined in Section 2 below, will expire ninety (90) days after the date on which all of your SARs are exercisable.  If your employment or other association is terminated prior to March 1, 2014, on account of retirement, your performance SARs, as described in Section 2 below, will expire ninety (90) days after March 1, 2014. If all of your SARs are exercisable as of the date of your retirement, your SARs will expire ninety (90) days after the date your employment or other association ends on account of retirement.  For all purposes of this Award, “retirement” means termination of employment or other association upon the attainment of at least age 55 and at least 10 years of service, of which the last three must be consecutive years with the Company.  If, after termination of your employment or other association on account of retirement and prior to March 1, 2014, you are employed by a competitor of the Company, defined for these purposes as AutoZone Inc., O'Reilly Automotive Inc., Pep Boys, Genuine Parts Company and/or NAPA Auto Parts, CarQuest Auto Parts, Fisher Auto Parts or Parts Depot Inc., all future vesting rights for SARs that have not yet vested as of the date of the commencement of such employment shall be immediately and irrevocably forfeited.

(b) If the termination of your employment or other association is on account of Disability, your time-vested SARs will expire ninety (90) days after the date of the termination of your employment or other association on account of Disability.  If your employment or other association is terminated prior to March 1, 2014, on account of Disability, your performance-based SARs, as described in Section 2 below, will expire ninety (90) days after March 1, 2014.  If all of your SARs are exercisable as of the date of the termination of your employment or other association on account of Disability, your SARs will expire ninety (90) days after the date your employment or other association ends.  For all purposes of this Award, “Disability” shall have the same meaning as that term is defined in your loyalty agreement with the Company in effect as of the date of this Award Agreement.

(c) If the termination of your employment or other association is on account of death, or you die within ninety (90) days of the termination of your employment or other association (other than when terminated for cause), your time-vested SARs will expire on the date that is twelve (12) months after your death.  Your performance-based SARs will expire on the date that is the later of twelve (12) months after the date of your death or ninety (90) days after March 1, 2014.

(d) If the termination of your employment or other association is for cause, as determined in good faith by the Committee, the date your employment ends.
 
 
 

 
 
(e) If within four months following the effective date of this Award you are determined to have unacceptable job performance based upon your performance evaluation for the fiscal year in which this Award was granted, the Company’s Chief Executive Officer and Senior Vice President of Human Resources may cancel this Award in its entirety.

(f) In all other cases, ninety (90) days after your employment or other association ends.

Notwithstanding any contrary provision of this Award, as to any SARs which have not then become exercisable, the Company may cancel these SARs at any time and without prior notice, and as to SARs which are then exercisable the Company may cancel these SARs at any time on ninety (90) days prior notice to you, in response to actions taken by you that could be considered detrimental to the Company or any of its Affiliates.  Whether any of your actions could be considered detrimental will be determined by the Compensation Committee of the Board of Directors (the “Committee”) consistent with the definition of Cause as defined in your employment agreement.

2. Exercise of SARs.   The Shares shall be divided into two portions for vesting:
(a) Time-vested SARs: Seventy-five percent (75%) of the number of shares at target level will vest in equal annual installments on each December 1 over a consecutive three-year period, with the first installment vesting on December 1, 2011, until fully vested.

(b)  Performance SARs:  Except in the case that your employment or other association is terminated or there is a Change in Control prior to March 1, 2014, as set forth below, the remaining twenty-five percent (25%) of the number of shares at target level will vest on March 1, 2014, following certification by the Committee of the performance of the Company based on the level of the Company’s net operating profit after taxes (“NOPAT”) less a charge for the Company’s weighted average cost of capital (“WACC”), in the aggregate for the 2011 through 2013 fiscal years. If the Company’s EPA growth is above the threshold level and meets or exceeds the median performance of the peer group for the three-year performance period, the remaining 25 percent (25%) of the shares will vest and become exercisable on March 1, 2014.  If the Company’s performance meets the minimum specified performance threshold level but falls below the peer group median EPA, a portion of the performance-based grants of SARs will vest on a pro-rata basis.   If the Company’s performance exceeds the median EPA performance level, you may receive additional SARs up to a maximum of 150 percent (150%) of the target level award.

i)   If your employment or other association is terminated prior to March 1, 2014, on account of your death, Disability or retirement, your performance SARs will vest on March 1, 2014, on a pro-rata basis for the time that you were employed during the performance period, provided that the pro-rata amount of performance SARs that will vest on March 1, 2014, will be no fewer than the total shares at target level less the previously vested portion of the time-vested SARs.

ii) If your employment or other association is terminated prior to March 1, 2014, by the Company other than for Due Cause, as that term is defined in your loyalty agreement, your performance SARs will vest immediately as of the date of the termination of your employment or other association at the target level and in the same ratio as your the time-vested SARs.  For example, if you had completed two years of employment following the date of grant, two-thirds of your time-vested awards would be vested, and two-thirds of your performance SARs at target level will also vest.

iii) Upon Change in Control, as defined in the Plan, any remaining time-vested SARs will immediately become exercisable. Your performance SARs will vest immediately on a pro-rata basis based on the actual performance of the Company over the completed portion of the performance period prior to the Change in Control event, provided that the pro-rata amount of performance SARs that will vest will be no fewer than the total shares at target level less the previously vested portion of the time-based share awards.

(c)  Subject to the provisions of this Section 2, until these SARs expire, you may exercise them as to the number of SARs identified in the table below, in full or in part, at any time on or after the applicable Exercise Date or dates identified in the following table:

Number of Time-Vested Shares
in Each Installment
Initial Exercise Date
for Shares in Installment
 
27,631
December 1, 2011
27,631
December 1, 2012
27,631
December 1, 2013

(d) No shares of Common Stock shall be issued to Participant prior to the date on which the SARs are exercised in accordance with this Section 2. Upon exercise of the SARs, the Participant shall be entitled to receive a number of Issued Shares for each share with respect to which the Stock Appreciation Rights are exercised equal to (i) the excess of the Fair Market Value of one share on the date of exercise over the Grant Price, divided by (ii) the Fair Market Value of one share on the date of exercise. The Issued Shares shall be
 
 
 
 

 
 
issued in book-entry form, registered in Participant’s name or in the name of Participant’s legal representatives, beneficiaries or heirs, as the case may be. The Company will not deliver any fractional share of Common Stock but will pay, in lieu thereof, cash equal to the Fair Market Value of such fractional share;

(e)  Except as otherwise provided in this Section 2, during any period that any of  these SARs remain outstanding after your employment or other association with the Company and its Affiliates ends, you may exercise them only to the extent they were exercisable immediately prior to the end of your employment or other association.   In no event may any of these SARs be exercised after they expire as determined in accordance with Section 2.

(f)  At any time, you may exercise these SARs by delivery to the Company at its principal executive offices (the date such delivery occurs is hereinafter referred to as, the “Exercise Date”) a notice which shall state that Participant elects to exercise the SARs as to the number of shares specified in the notice as of the date specified in the notice. Such notice should be made to the stock administrator at the Company headquarters or its designee.  All notices will be acknowledged and validated by the Company prior to actual exercise of a SAR.

(g)  You are required to hold all net profit shares resulting from an exercise for a period of not less than one year after the exercise date.

3. Transfer of SAR. You may not transfer any or all of these SARs except by will or the laws of descent and distribution, and, during your lifetime, only you (or in the event of your disability, your legal guardian or representative) may exercise these SARs.  Any attempt to sell, pledge, assign, hypothecate, transfer or otherwise dispose of the SARs granted by this Award in contravention of this Award or the Plan shall be void.

4. No Rights as a Stockholder.   You shall have no rights as a stockholder of any Stock covered by these SARs until the Exercise Date and entry evidencing such ownership is made in the stock transfer books of the Company.  Except as may be provided under Section 4(c) of the Plan, the Company will make no adjustment for dividends (ordinary or extraordinary whether in cash, securities or other property) or distributions or other rights for which the record date is prior to the Exercise Date.

5. Notices.   Except as otherwise provided herein, all notices, requests, demands and other communications under this Award shall be in writing, and if by telecopy, shall be deemed to have been validly served, given or delivered when sent, or if by personal delivery or messenger or courier service, shall be deemed to have been validly served, given or delivered upon actual delivery (but in no event may notice be given by deposit in the United States mail), at the following addresses, telephone and facsimile numbers (or such other address(es), telephone and facsimile numbers a party may designate for itself by like notice):

If to the Company:  Advance Auto Parts, Inc. located at 5008 Airport Road, Roanoke, Virginia, 24012, Attention: General Counsel or by telephone at (540) 561-3225 or telecopy at (540) 561-1448;

With copy to: Advance Auto Parts, Inc. located at 5008 Airport Road, Roanoke, Virginia, 24012, Attention: Senior Vice President, Human Resources or by telephone at (540) 561-6841 or telecopy at (540) 561-6918;

If to you, the Participant, to your home address on record at Advance Auto Parts or your business address at Advance Auto Parts.

6.   Miscellaneous.
(a)  This Award is made under the provisions of the Plan and shall be interpreted in a manner consistent with it.  To the extent that any provision in this Award is inconsistent with the Plan, the provisions of the Plan shall control.  The interpretation of the Committee of any provision of the Plan, the SARs or this Award, and any determination with respect thereto or hereto by the Committee, shall be binding on all parties.

(b) Nothing contained in this Agreement shall confer, intend to confer or imply any rights to an employment relationship or rights to a continued employment relationship with the Company or any Affiliate in your favor or limit the ability of the Company or an Affiliate, as the case may be, to terminate, with or without cause, in its sole and absolute discretion, your employment relationship with the Company or such Affiliate, subject to the terms of any written employment agreement to which your are a party;

(c)  Neither the Plan nor this Award shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company or any Affiliate and Participant or any other Person. To the extent that any Person acquires a right to receive payments from the Company or any Affiliate pursuant to an Award, such right shall be no greater than the right of any unsecured creditor of the Company or any Affiliate;
 
 
 

 

 
(d)  The Company shall not be required to deliver any shares of Common Stock upon exercise of any Stock Appreciation Rights until the requirements of any federal or state securities laws, rules or regulations or other laws or rules (including the rules of any securities exchange) as may be determined by the Company to be applicable are satisfied;

(e)  The Company shall not be required to deliver any shares of Common Stock upon exercise of any Stock Appreciation Rights until the requirements of any federal or state securities laws, rules or regulations or other laws or rules (including the rules of any securities exchange) as may be determined by the Company to be applicable are satisfied;

(f)  Capitalized terms used but not defined herein shall have the meaning assigned under the Plan.

(g)  This Award is intended to be consistent with your employment agreement with the Company in effect on the date first written above.  To the extent that any provision of this Award Agreement is inconsistent with the terms of your employment agreement h the Company in effect of the date first written above, the provisions of this Award Agreement shall control with respect to this Award.

7.   Income Tax Matters.   The Company makes no representation or warranty as to the tax treatment of your receipt or exercise of these SARs or upon your sale or other disposition of the shares acquired through the exercise of the SARs.  You should rely on your own tax advisors for such advice.  In order to comply with all applicable federal or state income tax laws or regulations, the Company may take such action as it deems appropriate to ensure that all applicable federal or state payroll, withholding, income or other taxes, which are your sole and absolute responsibility, are withheld or collected from you at the time of your exercise of the SARs. The Company will inform you of alternative methods to settle any applicable taxes due prior to the first vesting date of your Award.

In Witness Whereof, this Award has been executed by the Company as of the date first above written.

ADVANCE AUTO PARTS, INC.


By:   ___________________________________
Tami Kozikowski, Chief Development Officer





 
 

 

ADVANCE AUTO PARTS, INC.
2011 RESTRICTED STOCK AWARD AGREEMENT

Award Date
Number of Shares at Target Level
Time-vested Shares
Performance Shares at Target Level
Vesting Date
December 1, 2010
10,771
8,079
2,692
December 1, 2013

THIS CERTIFIES THAT Advance Auto Parts, Inc. (the “Company”) has on the Award Date specified above granted to

Darren R Jackson

(“Participant”) an award (the “Award”) of that number of shares (the “Shares”) of Advance Auto Parts, Inc. Common Stock, $.0001 par value per share (the “Common Stock”), indicated above in the box labeled “Number of Shares at Target Level,” subject to certain restrictions and on the terms and conditions contained in this Award Statement and the Advance Auto Parts, Inc. 2004 Long-Term Incentive Plan (the “Plan”).  A copy of the Plan is available on the Intranet or upon request. In the event of any conflict between the terms of the Plan and this Award, the terms of the Plan shall govern. Any terms not defined herein shall have the meaning set forth in the Plan.

* * * * *

1. Your Rights with Respect to the Shares.   You shall have all of the rights of a shareholder of the Common Stock on and after the Award Date and until the date on which the Shares vest and the restrictions with respect to the Shares lapse in accordance with Section 2 or 3 of this Award Statement, including the right to vote the time-vested Shares, as described below, and the right to receive dividends thereon, unless and until the Shares are forfeited pursuant to Section 3 or 6 of this Award Statement.  Your rights with respect to the Shares shall remain forfeitable at all times prior to the date or dates on which such rights become vested, and the restrictions with respect to the Shares lapse, in accordance with Section 2 or 3 of this Award Statement.

2.  Vesting. Subject to the terms and conditions of this Award, the Shares shall vest, and the restrictions with respect to the time-vested Shares shall lapse over three years from the Award Date according to the dates identified in the following table if you remain continuously employed by the Company until the respective vesting date.  You are required to hold all shares delivered to you upon vesting, net of any shares withheld to satisfy applicable withholding taxes, for a period of not less than one year after the vesting date.

Number of Time-Vested Shares
in Each Installment
Initial Vesting Date
for Shares in Installment
Required Holding Period
 
2,693
December 1, 2011
December 1, 2012
2,693
December 1, 2012
December 1, 2013
2,693
December 1, 2013
December 1, 2014

3. Stock Award Duration.   The Shares shall be divided into two portions for vesting:
 (a) Time-vested Shares: Seventy-five percent (75%) of the number of shares at target level will vest in equal annual installments on each December 1 over a consecutive three-year period, with the first installment vesting on December 1, 2011, until fully vested.

(b) Performance Shares:  Except in the case that your employment or other association is terminated or there is a Change in Control prior to March 1, 2014, as set forth below, the remaining twenty-five percent (25%) of the number of shares at target level will vest on March 1, 2014, following certification by the Committee of the performance of the Company based on the level of the Company’s net operating profit after taxes (“NOPAT”) less a charge for the Company’s weighted average cost of capital (“WACC”), in the aggregate for the 2011 through 2013 fiscal years. If the Company’s performance target is met for the three-year performance period, the remaining 25 percent (25%) of the shares will vest and become exercisable on March 1, 2014.  If the Company’s performance meets the minimum specified performance threshold level but falls below the median performance level of the peer group level, a portion of the performance shares will vest on a pro-rata basis.   If the Company’s performance exceeds the median performance level, you may receive additional Shares up to a maximum of 150 percent (150%) of the target level award.

 (c) If, prior to vesting of the Shares pursuant to Section 2 or 3 of this Award Statement, your employment or other association with the Company and its Affiliates ends for any reason (voluntary or involuntary), then your rights to unvested Shares shall be immediately and irrevocably forfeited, except as follows:

i) If the termination of your employment or other association is on account of retirement, defined as termination of employment or other association upon the attainment of at least age 55 and at least 10 years of service, of which the last three must be
 
 
 
 

 
 
consecutive years with the Company, then your rights with respect to the time-vested Shares will continue under this Award; provided, however, that if, after termination of your employment (or other association on account of retirement and prior to March 1, 2014, you are employed by a competitor of the Company, defined for these purposes as AutoZone Inc., O'Reilly Automotive Inc., Pep Boys, Genuine Parts Company and/or NAPA Auto Parts, CarQuest Auto Parts, Fisher Auto Parts or Parts Depot Inc. any shares that have not vested as of the date of the commencement of such employment shall be immediately and irrevocably forfeited.

ii) If the termination of your employment is on account of death or Disability, as defined in your loyalty agreement, then any previously unvested time-vested Shares will vest immediately.

iii) If your employment or other association is terminated prior to March 1, 2014, on account of your or retirement, death, or Disability,  your performance Shares will vest on March 1, 2014, on a pro-rata basis for the time that you were employed during the performance period, provided that the pro-rata amount of performance Shares that will vest on March 1, 2014, will be no fewer than the total shares at target level less the previously vested portion of the time-vested Shares.

iv) If your employment or other association is terminated prior to March 1, 2014, by the  Company other than for Due Cause, as that term is defined in your loyalty agreement, your performance Shares will vest immediately as of the date of the termination of your employment or other association at the target level and in the same ratio as your the time-vested Shares.  For example, if you had completed two years of employment following the date of grant, two-thirds of your time-vested awards would be vested, and two-thirds of your performance Shares at target level will also vest.

v) Upon Change in Control, as defined in the Plan, any remaining previously unvested time-vested Shares will immediately vest. Your performance Shares will vest immediately on a pro-rata basis based on the actual performance of the Company over the completed portion of the performance period prior to the Change in Control event, provided that the pro-rata amount of performance Shares that will vest will be no fewer than the total shares at target level less the previously vested portion of the time-vested share awards.

vi) If the termination of your employment or other association is for cause, as determined in good faith by the Committee, and as defined in your employment agreement, the date your employment ends.

(d) If within four months following the effective date of this Award you are determined to have unacceptable job performance based upon your performance evaluation for the fiscal year in which this Award was granted, the Company’s Chief Executive Officer and Senior Vice President of Human Resources may cancel this Award in its entirety.

Notwithstanding any contrary provision of this Award, the Company may cancel this Award at any time on ninety (90) days prior notice to you in response to actions taken by you that could be considered detrimental to the Company or any of its Affiliates.  Whether any of your actions could be considered detrimental will be determined by the Compensation Committee of the Board of Directors (the “Committee”) in its sole discretion for Cause as defined in your employment agreement.

4.  Transfer of Award. Until the Shares vest pursuant to Section 2 or 3 of this Award Statement, the Shares may not be sold, assigned, transferred, pledged, hypothecated or otherwise disposed of or encumbered, and no attempt to transfer unvested Shares, whether voluntary or involuntary, by operation of law or otherwise, shall vest the transferee with any interest or right in or with respect to the Shares. Notwithstanding the foregoing, you may, in the manner established by the Committee, designate a beneficiary or beneficiaries to exercise your rights to receive any property distributable with respect to the Shares upon your death.

5.  Issuing Shares. Effective as of the Award Date, the Company shall cause the Shares to be issued in book-entry form, registered in the Participant’s name.  The Shares shall be subject to an appropriate stop-transfer order. After any of the Shares vest pursuant to Section 2 or 3 of this Award Statement and following payment of the applicable withholding taxes pursuant to Section 7 below, the Company promptly shall cause the stop-transfer order to be removed with respect to such vested Shares.

6.  Share Adjustments.
(a) In the event that any dividend or other distribution (whether in the form of cash,  shares of Common Stock, other securities or other property), recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase or exchange of Common Stock or other securities of the Company or other similar corporate transaction or event affecting the Common Stocks would be reasonably likely to result in the diminution or enlargement of any of the benefits or potential benefits intended to be made available under the Award (including, without limitation, the benefits or potential benefits of provisions relating to the vesting of the Shares), the Committee shall, in such manner as it shall deem equitable or appropriate in order to prevent such diminution or enlargement of any such benefits or potential benefits, make adjustments to the Award, including adjustments in the number and type of Shares you would
 
 
 

 
 
 
have received; provided, however, that the number of shares covered by the Award shall always be a whole number. The Company will not deliver any fractional Share but will pay, in lieu thereof, the Fair Market Value of such fractional Share.

(b) Any additional shares of Stock, any other securities of the Company and any other property (except for cash dividends or other cash distributions) distributed with respect to the Shares prior to the date or dates the Shares vest shall be subject to the same restrictions, terms and conditions as the Shares and shall be promptly deposited with the Company or a custodian designated by the Company.

(c) Any cash dividends or other cash distributions payable with respect to the Shares shall be distributed at the time cash dividends or other cash distributions are generally distributed to stockholders of the Company, net of any applicable federal or state payroll, withholding, income or other taxes, which are your sole and absolute responsibility.

7.  Income Tax Matters.
(a) The Company makes no representation or warranty as to the tax treatment of your receipt or vesting of the Shares or upon your sale or other disposition of the Shares.  You should rely on your own tax advisors for such advice. In order to comply with all applicable federal or state income tax laws or regulations, the Company may take such action as it deems appropriate to ensure that all applicable federal or state payroll, withholding, income or other taxes, which are your sole and absolute responsibility, are withheld or collected from you at the time of vesting.

(b) In accordance with the terms of the Plan, and such rules as may be adopted by the Committee under the Plan, you may elect to satisfy required federal and state income tax withholding obligations arising from the receipt of, or the lapse of restrictions relating to, the Shares by (i) delivering cash or equivalent payable to the Company, (ii) having the Company withhold a portion of the Shares otherwise to be delivered having a Fair Market Value equal to the amount of such taxes, or (iii) delivering to the Company shares of Common Stock already owned by you having a Fair Market Value equal to the amount of such taxes. Any shares already owned by you referred to in the preceding sentence must have been owned by you for no less than six months prior to the date delivered to the Company if such shares were acquired upon the exercise of an option, stock appreciation right, or upon the vesting of restricted stock. Your tax payment election choice must be made on or before the date that the amount of tax to be withheld is determined.

8.  Miscellaneous.
(a) This Award does not confer on you any right with respect to the continuance of any relationship with the Company or its subsidiaries, nor will it interfere in any way with the right of the Company to terminate such relationship at any time.

(b)  Neither the Plan nor this Award shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company or any Affiliate and You or any other Person. To the extent that any Person acquires a right to receive payments from the Company or any Affiliate pursuant to an Award, such right shall be no greater than the right of any unsecured creditor of the Company or any Affiliate.

(c) The Company shall not be required to deliver any Shares until the requirements of any federal or state securities laws, rules or regulations or other laws or rules (including the rules of any securities exchange) as may be determined by the Company to be applicable are satisfied.

(d) An original record of this Award and all the terms hereof, executed by the Company, is held on file by the Company. To the extent there is any conflict between the terms contained in this Award and the terms contained in the original held by the Company, the terms of the original held by the Company shall control.

In Witness Whereof, this Award has been executed by the Company as of the date first above written.

ADVANCE AUTO PARTS, INC.

By:   ___________________________________
Tami Kozikowski, Chief Development Officer

Exhibit 12.1
 

Advance Auto Parts, Inc.
                             
Statement Regarding Computation of Ratio of Earnings to Fixed Charges
             
In Thousands, Except Ratio Data
                             
                               
    Fiscal Year (1)  
   
2010
   
2009
   
2008
   
2007
   
2006
 
Earnings:
                             
Earnings Before Income Taxes
  $ 557,055     $ 431,655     $ 380,692     $ 382,634     $ 369,915  
Add: Fixed Charges
    177,045       165,557       169,559       154,043       142,023  
Less: Capitalized Interest
    (854 )     (186 )     (2,062 )     (1,384 )     (821 )
Adjusted Earnings
  $ 733,246     $ 597,026     $ 548,189     $ 535,293     $ 511,117  
                                         
Fixed Charges:
                                       
Interest Expense (2)
    27,715       23,523       35,791       36,193       36,813  
Portion of rent estimated to represent interest
    149,330       142,034       133,768       117,850       105,210  
Total Fixed Charges
  $ 177,045     $ 165,557     $ 169,559     $ 154,043     $ 142,023  
                                         
Ratio of Earnings to Fixed Charges
    4.1       3.6       3.2       3.5       3.6  
                                         
                                         
(1) Our fiscal year consists of 52 or 53 weeks ending on the Saturday nearest December 31st. All fiscal years presented are 52 weeks, with the exception of Fiscal 2008 which consisted of 53 weeks.
 
(2) Including amortization of debt discount and debt issuance costs.  


 
Exhibit 21.1
Subsidiaries
 
Advance Stores Company, Incorporated 
Virginia  
Advance Trucking Corporation 
Virginia  
Western Auto Supply Company (Western Auto Supply Company
operates auto parts stores through two wholly-owned subsidiaries
organized in Delaware) 
Delaware  
Discount Auto Parts, LLC
Florida  
Advance Auto Innovations, LLC 
Virginia  
Advance Aircraft Company, Inc. 
Virginia  
Advance Auto of Puerto Rico, Inc.
Delaware  
Advance Patriot, Inc. 
Delaware  
Autopart International, Inc. 
Massachusetts  
Advance Auto Business Support, LLC 
Virginia  
E-Advance, LLC  Virginia  
Crossroads Global Trading Corporation  Virginia  
Exhibit 23.1
 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
 
We consent to the incorporation by reference in the Registration Statement No. 333-166291 on Form S-3ASR and Registration Statement Nos. 333-155449 and 333-89154 on Form S-8 of our reports dated March 1, 2011, relating to the consolidated financial statements and financial statement schedules of Advance Auto Parts, Inc. and subsidiaries and the effectiveness of Advance Auto Parts, Inc. and subsidiaries’ internal control over financial reporting, appearing  in the Annual Report on Form 10-K of Advance Auto Parts, Inc. and its subsidiaries for the year ended January 1, 2011.
 
 
/s/ Deloitte & Touche LLP

Richmond, Virginia
March 1, 2011


Exhibit 31.1
 
CERTIFICATION OF CHIEF EXECUTIVE OFFICER
PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002


I, Darren R. Jackson, certify that:

1.  
I have reviewed this annual report on Form 10-K of Advance Auto Parts, Inc.;
2.  
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.  
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.  
The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-1 5(e)  and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a)  
Designed such disclosure controls and procedures , or caused such disclosure controls and procedures to be designed under our supervision,  to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)  
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c)  
Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures , as of the end of the period covered by this report based on such evaluation; and
(d)  
Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
5.  
The registrant ' s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
(a)  
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably  likely to  adversely affect the registrant's ability to record, process, summarize and report financial information; and
(b)  
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control  over financial reporting.
 

Date: March 1 , 2011


 
/s/ Darren R. Jackson                                                    
 
Darren R. Jackson
 
Chief Executive Officer and Director

Exhibit 31.2
 
CERTIFICATION OF CHIEF FINANCIAL OFFICER
PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002


I, Michael A. Norona, certify that:

1.  
I have reviewed this annual report on Form 10-K of Advance Auto Parts, Inc.;
2.  
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.  
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.  
The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-1 5(e)  and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a)  
Designed such disclosure controls and procedures , or caused such disclosure controls and procedures to be designed under our supervision,  to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)  
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c)  
Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures , as of the end of the period covered by this report based on such evaluation; and
(d)  
Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
5.  
The registrant ' s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
(a)  
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably  likely to  adversely affect the registrant's ability to record, process, summarize and report financial information; and
(b)  
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control  over financial reporting.


Date: March 1 , 2011


 
/s/ Michael A. Norona                                                     
 
Michael A. Norona
 
Executive Vice President and Chief Financial Officer

Exhibit 32.1
 
CERTIFICATION OF CHIEF EXECUTIVE OFFICER AND CHIEF FINANCIAL OFFICER
PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

I, Darren R. Jackson, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to my knowledge, the Annual Report on Form 10-K of Advance Auto Parts, Inc. for the year ended January 1, 2011 fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and that the information contained in such Annual Report on Form 10-K fairly presents in all material respects the financial condition and results of operations of Advance Auto Parts, Inc. The foregoing certification is being furnished to the Securities and Exchange Commission as part of the accompanying report on Form 10-K. A signed original of this statement has been provided to Advance Auto Parts, Inc. and will be retained by Advance Auto Parts, Inc. and furnished to the Securities and Exchange Commission or its staff upon request.

 
Date: March 1, 2011       By: /s/ Darren R. Jackson 

       Name:  Darren R. Jackson
        Title:    Chief Executive Officer and Director

 
I, Michael A. Norona, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to my knowledge, the Annual Report on Form 10-K of Advance Auto Parts, Inc. for the year ended January 1, 2011 fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and that the information contained in such Annual Report on Form 10-K fairly presents in all material respects the financial condition and results of operations of Advance Auto Parts, Inc. The foregoing certification is being furnished to the Securities and Exchange Commission as part of the accompanying report on Form 10-K. A signed original of this statement has been provided to Advance Auto Parts, Inc. and will be retained by Advance Auto Parts, Inc. and furnished to the Securities and Exchange Commission or its staff upon request.

 
Date: March 1, 2011       By: /s/ Michael A. Norona 

       Name:  Michael A. Norona
        Title:    Executive Vice President and Chief Financial Officer