EXHIBIT 10.15
ADVANCE AUTO PARTS, INC.
2001 STOCK OPTION AGREEMENT
THIS 2001 STOCK OPTION AGREEMENT (this "Agreement") is entered into as of
______________, 2001 by and between Advance Auto Parts, Inc., a Delaware
corporation (the "Company"), and ____________ ("Optionee"), pursuant to the
Advance Auto Parts, Inc. 2001 Executive Stock Option Plan (the "Plan"). All
capitalized terms not otherwise defined herein shall have the meanings set forth
in the Plan.
R E C I T A L S:
- - - - - - - -
A. Optionee is an employee of the Company and/or of a direct or indirect
subsidiary of the Company (individually, a "Subsidiary" and collectively, the
"Subsidiaries") and the Company considers it desirable to give Optionee an added
incentive to advance the Company's and the Subsidiaries' interests.
B. The Committee has determined to grant Optionee the right to purchase
shares of common stock of the Company pursuant to the terms and conditions of
this Agreement and the Plan.
A G R E E M E N T:
- - - - - - - - -
NOW, THEREFORE, in consideration of the covenants hereinafter set forth,
the parties agree as follows:
1. Options; Number of Shares. The Company hereby grants to Optionee the
-------------------------
right to purchase (the "Options") up to ____________________ (______) shares
(the "Shares") of common stock, par value $.0001 per share, of the Company at
the following prices per share (the "Purchase Price"):
(a) Options to purchase ____________________ (_____) Shares at a price
equal to ____________ ($_____) per share (the "Fixed Price Service Options");
(b) Options to purchase ________________________ (______) Shares at a
price equal to the amount set forth opposite the date of exercise of the Option
on Schedule A attached hereto (the "Variable Price Service Options"); and
----------
(c) Options to purchase ________________________ (_______) Shares at a
price equal to _____________ ($______) per share (the "Performance Options").
The Fixed Price Service Options, the Variable Price Service Options and the
Performance Options are sometimes hereinafter collectively referred to as the
"Options" and individually as an "Option." The Options and the right to
purchase all or any portion of the Shares are subject to the terms and
conditions stated in this Agreement and in the Plan, including, without
limitation, the provisions of Section 4, Section 6, Section 10, Section 13(b),
--------- --------- ---------- -------------
Section 14 and Section 19 of the Plan and Section 3 and Section 4 hereof. Upon
---------- ---------- --------- ---------
exercise of an Option and payment of the Purchase Price, Optionee shall become a
stockholder of the Company, with all rights and privileges of a stockholder of
the Company in respect of any shares of common stock of the Company issuable
upon such exercise. It is intended that the Options will not qualify for
treatment as an incentive stock option under Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code").
2. Exercise Criteria. The Variable Price Service Options shall become
-----------------
exercisable as set forth on Schedule A. The Fixed Price Service Options shall
----------
become exercisable, in whole or in part, over time as set forth on Schedule B
----------
attached hereto. The Performance Options shall become exercisable, in whole or
in part, as set forth on Schedule C attached hereto.
----------
3. Term of Agreement. Except for the rights conferred upon the Company
-----------------
pursuant to Section 7 below, the Options, and Optionee's right to exercise the
Options, shall terminate when the first of the following occurs:
(a) termination of the Options pursuant to Section 6, Section 13 or
--------- ----------
Section 14 of the Plan or Section 2 hereof;
---------- ---------
(b) the expiration of seven (7) years from the date hereof;
(c) ninety (90) days after the date of termination of Optionee's
employment or other relationship with the Company and all of the Subsidiaries,
unless such termination results from Optionee's death or disability (within the
meaning of Section 22(e)(3) of the Code, or Optionee dies within ninety (90)
days after the date of termination of Optionee's employment or other
relationship with the Company and all of the Subsidiaries, in which case this
Agreement and the Option shall terminate one hundred twenty (120) days after the
date of termination of Optionee's employment or other relationship with the
Company and all of the Subsidiaries; or
(d) on the date of termination of Optionee's employment or other
relationship with the Company and all of the Subsidiaries if such termination
was for cause (as determined in good faith by the Board of Directors of the
Company (the "Board")).
4. Termination of Employment or Other Relationship. The termination for
-----------------------------------------------
any reason of Optionee's employment or other relationship with the Company and
all of the Subsidiaries shall not accelerate the vesting of the Options. The
Options may only be exercised with respect to that number of Shares which could
have been made under the Options had such Options been exercised by Optionee on
the date of such termination.
2
5. Death of Optionee; No Assignment. The rights of Optionee under this
--------------------------------
Agreement may not be assigned or transferred except by will, by the laws of
descent or distribution and may be exercised during the lifetime of Optionee
only by such Optionee; provided, however, that in the event of disability
(within the meaning of Section 22(e)(3) of the Code) of Optionee, a designee of
Optionee (or the Optionee's legal representative if Optionee has not designated
anyone) may exercise the Options on behalf of Optionee (provided the Options
would have been exercisable by Optionee) until the right to exercise the Options
expires pursuant to Section 3 hereof. Any attempt to sell, pledge, assign,
---------
hypothecate, transfer or otherwise dispose of the Options in contravention of
this Agreement or the Plan shall be void. If Optionee should die while Optionee
is engaged in an employment relationship with the Company and/or any Subsidiary
or within ninety (90) days after termination of such relationship, and provided
Optionee's rights hereunder shall have vested, in whole or in part, pursuant to
Section 2 hereof, Optionee's designee, legal representative, or legatee, the
---------
successor trustee of Optionee's inter vivos trust or the person who acquired the
right to exercise the Options by reason of the death of Optionee (individually,
a "Successor") shall succeed to Optionee's rights under this Agreement. After
the death of Optionee, only a Successor may exercise the Options.
6. Exercise of Options. No option granted under this Agreement shall be
-------------------
exercisable until it has vested. On or after the vesting of the Options in
accordance with Section 2 hereof and until termination of the Options in
---------
accordance with Section 3 hereof, the Options may be exercised by Optionee (or
---------
such other person specified in Section 5 hereof) to the extent exercisable as
---------
determined under Section 2 hereof, upon delivery of the following to the Company
---------
at its principal executive offices (the date such delivery occurs is hereinafter
referred to as, the "Exercise Date"):
(a) a written notice of exercise which identifies this Agreement, the
type of Option to be exercised, and states the number of Shares to be purchased
(which shall be no less than 100 Shares unless the number of Shares remaining
available for purchase hereunder is less than 100 Shares and the entire
remainder of the Option is being exercised);
(b) a check, cash or any combination thereof in the amount of the
aggregate Purchase Price (or payment of the aggregate Purchase Price in such
other form of lawful consideration as the Committee may approve from time to
time under the provisions of Section 7 of the Plan);
(c) a check or cash in the amount reasonably requested by the Company
to satisfy the Company's withholding obligations under federal, state or other
applicable tax laws with respect to the taxable income, if any, recognized by
Optionee in connection with the exercise, in whole or in part, of the Options
(unless the Company and Optionee shall have made other arrangements for
deductions or withholding from Optionee's wages, bonus or other income paid to
Optionee by the Company or any Subsidiary, provided, however, such arrangements
must satisfy the requirements of all applicable tax laws);
(d) a written representation and undertaking, in such form and
substance as the Company may require, that the Shares underlying the Option are
being acquired by Optionee
3
for Optionee's personal account, for investment purposes only, and not with a
view to the distribution, resale or other disposition thereof;
(e) a written representation and undertaking, in such form and
substance as the Company may require, setting forth the investment intent of
Optionee, or a Successor, as the case may be, and such other agreements,
representations and undertakings as described in the Plan, including an
acknowledgment that Optionee has reviewed the memorandum regarding Section 83(b)
of the Internal Revenue Code of 1986, as amended, attached hereto as Exhibit A;
---------
and
(f) such further acts as may be necessary to register Optionee as a
stockholder of the Company.
7. Restriction on Transfer of Shares; Right of First Refusal; Drag Along
---------------------------------------------------------------------
Rights.
------
(a) Restriction on Transfer of the Shares.
-------------------------------------
(i) Except as otherwise provided herein, Optionee may not sell,
transfer, assign, pledge, hypothecate or otherwise dispose of (collectively,
"Transfer") any of the Shares, or any right, title or interest therein prior to
the fifth anniversary of the Closing Date and, thereafter, any Transfer must be
in compliance with Section 7 and Section 9 hereof. Any purported Transfer or
--------- ---------
Transfers (including involuntary Transfers initiated by operation of legal
process) of any of the Shares or any right, title or interest therein, except in
strict compliance with the terms and conditions of this Agreement, shall be null
and void.
(ii) Permitted Transfers. Optionee may, at any time or times,
-------------------
Transfer any or all of the Shares: (a) inter vivos to Optionee's spouse or
issue, a trust for their benefit, or pursuant to any will or testamentary trust;
or (b) upon Optionee's death, to any person in accordance with the laws of
descent and/or testamentary distribution (such persons described in clauses (a)
and (b) hereof are collectively referred to herein as "Permitted Transferees").
Notwithstanding the foregoing, Shares shall not be Transferred until the
Permitted Transferee executes a valid undertaking, in form and substance
reasonably satisfactory to the Company, to the effect that the Permitted
Transferee and the Shares so Transferred shall thereafter remain subject to all
of the provisions of this Agreement (including the Repurchase Option), as though
the Permitted Transferee were a party to this Agreement, bound in every respect
in the same way as Optionee. Transfers made in accordance with this clause (ii)
-------
shall not be subject to the provisions of Section 7(b) of this Agreement.
---------
(b) Right of First Refusal.
----------------------
(i) Sales; Notice. At any time on or after the fifth
-------------
anniversary of this Agreement, Optionee may transfer for cash (and only for such
form of consideration) any or all of the Shares to any third party ("Transfer")
subject to the provisions of this Section 7 and Section 10(b), provided that
this Section 7(b) shall not apply to any transfers that constitute a Public
Market Sale (as defined below). Prior to any such intended Transfer, Optionee
shall first
4
give at least thirty (30) days' advance written notice (the "Notice") to the
Company specifying (i) Optionee's bona fide intention to sell such Shares; (ii)
the name(s) and address(es) of the proposed transferee(s); (iii) the number of
Shares Optionee proposes to Transfer (individually, an "Offered Share," and
collectively, the "Offered Shares"); (iv) the price for which Optionee proposes
to Transfer each Offered Share (the "Proposed Purchase Price"); (v) such
evidence as the Company may reasonably request to demonstrate the ability of the
proposed transferee(s) to pay the Proposed Purchase Price; and (vi) all other
material terms and conditions of the proposed transfer.
(ii) Election by the Company. Within twenty (20) days after
-----------------------
receipt of the Notice, the Company may elect to purchase any or all of the
Offered Shares at the price and on the terms and conditions set forth in the
Notice by delivery of written notice of such election to Optionee, specifying a
day, which shall not be more than twenty (20) days after such notice is
delivered, on or before which Optionee shall surrender (if Optionee has not
already done so) the certificate or certificates representing the Offered Shares
(duly endorsed in blank for transfer) at the administrative office of the
Company. Within twenty (20) days after delivery of such notice to Optionee, the
Company shall deliver to Optionee a check, payable to Optionee or to such person
as Optionee shall request, in the amount equal to the product of the Proposed
Purchase Price multiplied by the number of Offered Shares (the "First Refusal
Price") in exchange for the Offered Shares. If Optionee fails to so surrender
such certificate or certificates on or before such date, from and after such
date the Offered Shares shall be deemed to be no longer outstanding, and
Optionee shall cease to be a Shareholder with respect to such Shares and shall
have no rights with respect thereto except only the right to receive payment of
the First Refusal Price, without interest, upon surrender of the certificate or
certificates therefor (duly endorsed in blank for Transfer). Notwithstanding
the foregoing, if any Outstanding Amount (as defined in that certain Stock
Subscription Agreement between the Company and the Optionee dated __________) is
owed to the Company by Optionee, the First Refusal Price shall be reduced (to an
amount not less than zero) by such Outstanding Amount, which reduction shall be
specified in reasonable detail in the Company's written notice of election to
purchase the Offered Shares. If the Company does not elect to purchase all of
the Offered Shares, Optionee shall be entitled to Transfer the Offered Shares to
the transferee(s) named in the Notice at the Proposed Purchase Price, or at a
higher price, and on the terms and conditions set forth in the Notice; provided,
however, that such Transfer must be consummated within ninety (90) days after
the date of the Notice and any proposed Transfer after such ninety (90) day
period may be made only by again complying with the procedures set forth in this
Section 7(b). This right of first refusal shall terminate upon an underwritten
------------
public offering of Common Stock by the Company registered under the Act (as
defined below) (other than an offering registered on Form S-4 or Form S-8 or any
substitute for such forms) resulting in gross proceeds to the Company in excess
of $25 million (an "Initial Public Offering").
(c) Obligation to Sell Shares. If FS Equity Partners IV, L.P., a
-------------------------
Delaware limited partnership ("FSEP IV"), finds a third-party buyer for all the
shares of common stock of the Company held by it (whether such sale is by way of
purchase, exchange, merger or other form of transaction), upon the request of
FSEP IV, Optionee shall sell all of Optionee's Shares for the same per share
consideration (which may be less than the exercise price for any Share)
5
and otherwise on the same terms and conditions as apply to a FSEP IV sale. In
addition, FSEP IV may require Optionee to Transfer this Option to such buyer for
the same per share consideration (less the then aggregate Purchase Price of this
Option) and otherwise pursuant to the terms and conditions applicable to FSEP IV
for the sale of its shares of common stock. In the event the per share
consideration for the common stock is less than the Purchase Price applicable at
the time a binding agreement with respect to such transaction is entered into,
this Option shall be canceled without payment to Optionee. Optionee hereby
consents to any sale, transfer, reorganization, exchange, merger, combination or
other form of transaction covered under this Section 7(c) and agrees to execute
such agreements, powers of attorney, voting proxies or other documents and
instruments as may be necessary or desirable to consummate such sale, transfer,
reorganization, exchange, merger, combination or other form of transaction.
Optionee further agrees to timely take such other actions as FSEP IV may
reasonably request in connection with the approval of the consummation of such
sale, transfer, reorganization, exchange, merger, combination or other form of
transaction, including voting as a stockholder to approve any such sale,
transfer, reorganization, exchange, merger, combination or other form of
transaction and waiving any appraisal rights Optionee may have in connection
therewith. The obligations of Optionee pursuant to this Section shall be
binding on any transferee of this Option (other than a transferee in a Public
Market Sale, as defined below), and Optionee (and any of his transferees) shall
obtain and deliver to the Company and FSEP IV prior to any Transfers (other than
Transfers constituting a Public Market Sale) a written commitment, in form and
substance satisfactory to the Company and FSEP IV, from a subsequent transferee
to be bound by such provisions. The term "Public Market Sale" means a sale of
common stock after the Company's shares of common stock are registered under
Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amended, which
is made pursuant to Rule 144 promulgated under the Act or which is made pursuant
to a registration statement filed with and declared effective by the Securities
and Exchange Commission. Any Transfer effected in violation of this provision
shall be void. Optionee's obligations pursuant to this Section, and the
obligations of any such transferee, shall survive the expiration or non-vesting
of any portion of the Options.
8. Tag Along Rights. If FSEP IV finds a third-party buyer (other than a
----------------
buyer that is an investment fund or partnership affiliated with FSEP IV, a
general or limited partner of FSEP IV, or, for the period ending one year from
the date hereof, an unaffiliated institutional investor or merchant banking firm
(each, a "FS Permitted Transferee") or is a transferee in a Public Market Sale),
for all or part of the shares of Common Stock held by FSEP IV (whether such sale
is by way of purchase, exchange, merger or other form of transaction), the
Purchaser shall have the right to sell, on the terms set forth in a written
notice (the "Offering Notice") delivered by FSEP IV to the Optionee describing
the terms of the proposed sale (including the minimum sale price for the shares
of Common stock that FSEP IV plans to sell), that amount of the Shares he then
owns which constitute the same percentage of his Shares as the percentage of
Common Stock sold by FSEP IV. Each such right shall be exercisable by
delivering written notice to FSEP IV within 15 days after receipt of the
Offering Notice. Failure to exercise such right within such 15-day period shall
be regarded as a waiver of such rights. The obligations of FSEP IV under this
Section 8 shall terminate upon an Initial Public Offering.
6
9. Repurchase Option Upon Termination.
----------------------------------
(a) In the event that Optionee's employment or other relationship with
the Company and all of its Subsidiaries terminates for any reason (including,
without limitation, by reason of Optionee's death, disability, retirement,
voluntary resignation or dismissal by the Company or any of its Subsidiaries,
with or without cause), the Company shall have the option (the "Repurchase
Option") to purchase from Optionee all or any portion of the Shares acquired by
Optionee pursuant to this Option Agreement for a period of six (6) months after
the effective date of such termination (the effective date of termination is
hereinafter referred to as the "Termination Date"); provided, however, that such
six-month period shall be extended to a date 10 days after the six-month
anniversary of the date on which Optionee purchased any Shares pursuant to this
Option Agreement after the Termination Date.
(b) The purchase price (the "Repurchase Price") for each Share to be
purchased pursuant to the Repurchase Option shall equal (a) the greater of the
applicable exercise price of such Share and Book Value (as defined herein) if
the Termination Date occurs within the two (2) year period commencing on the
date hereof and (b) the greater of the applicable exercise price of such Share
and Fair Market Value (as defined herein) thereof (subject to adjustment as set
forth herein) thereafter after the initial two (2) year period described
previously in subsection (a) hereof. The "Book Value" of a Share shall equal
$10.00 per Share (subject to adjustment as set forth in Section 9(c) below) plus
the net income or minus the net loss per share to the end of the fiscal quarter
immediately preceding the Termination Date, as determined by the Board, acting
in good faith and based upon the books and records of the Company prepared in
accordance with generally accepted accounting principles consistently applied.
The "Fair Market Value" of a Share shall be the fair market value of a Share as
of the Termination Date, as determined by the Board, acting in good faith and
based upon the best available evidence, which determination shall be final and
binding.
(c) The Repurchase Price for any Shares to be purchased pursuant to
the Repurchase Option shall be increased or decreased appropriately to reflect
any distribution of stock or other securities of the Company or any successor or
assign of the Company which is made in respect of, in exchange for or in
substitution of the Shares by reason of any split, reverse split, combination,
recapitalization, reclassification, merger, consolidation or otherwise.
(d) The Repurchase Option shall be exercised by the Company by
delivery to Optionee, within the six-month period specified above, of (a) a
written notice specifying the number of Shares to be purchased and (b) a day,
which shall not be more than 30 days after the date such notice is delivered, on
or before which Optionee shall surrender the certificate or certificates
representing the Shares to be purchased pursuant to the Repurchase Option (duly
endorsed in blank for Transfer) at the principal office of the Company in
exchange for a check, payable to Optionee, in the amount equal to the Repurchase
Price, calculated as provided in this Section 9, multiplied by the number of the
Shares to be purchased. If Optionee fails to so surrender such certificate or
certificates on or before such date, from and after such date the Shares which
the Company elected to repurchase shall be deemed to be no longer outstanding,
and Optionee shall cease to be a stockholder with respect to such Shares and
shall have no rights
7
with respect thereto except only the right to receive payment of the Repurchase
Price, without interest, upon surrender of the certificate or certificates
therefor (duly endorsed in blank for Transfer).
(e) This Repurchase Option shall terminate upon an Initial Public
Offering.
10. Representations and Warranties of Optionee.
------------------------------------------
(a) Optionee represents and warrants that the Options are being
acquired by Optionee for Optionee's personal account, for investment purposes
only, and not with a view to the distribution, resale or other disposition
thereof.
(b) Optionee acknowledges that the Company may issue Shares upon the
exercise of the Options without registering such securities under the Securities
Act of 1933, as amended (the "Act"), on the basis of certain exemptions from
such registration requirements. Accordingly, Optionee agrees that Optionee's
exercise of the Options may be expressly conditioned upon Optionee's delivery to
the Company of such representations and undertakings as the Company may
reasonably require in order to secure the availability of such exemptions,
including a representation that Optionee is acquiring the Shares for investment
and not with a present intention of selling or otherwise disposing of such
Shares. Optionee acknowledges that, because Shares received upon exercise of an
Option may be unregistered, Optionee may be required to hold the Shares
indefinitely unless they are subsequently registered for resale under the Act or
an exemption from such registration requirements is available.
(c) Optionee acknowledges receipt of this Agreement granting the
Options, and the Plan, and understands that all rights and liabilities connected
with the Options are set forth herein and in the Plan.
11. No Rights as a Stockholder. Optionee shall have no rights as a
--------------------------
stockholder of any shares of common stock of the Company covered by the Options
until the Exercise Date and entry evidencing such ownership is made in the stock
transfer books of the Company. Except as my be provided under Section 10 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.
12. Limitation of Company's Liability for Nonissuance. Inability of the
-------------------------------------------------
Company to obtain, from any regulatory body having jurisdiction, authority
reasonably deemed by the Company's counsel to be necessary for the lawful
issuance and sale of any Shares hereunder and under the Plan shall relieve the
Company of any liability in respect of the nonissuance or sale of such Shares as
to which such requisite authority shall not have been obtained.
13. This Agreement Subject to Plan. This Agreement 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 Agreement is inconsistent with the
Plan, the provisions of the Plan shall control. The
8
interpretation of the Committee of any provision of the Plan, the Options or
this Agreement, and any determination with respect thereto or hereto by the
Committee, shall be binding on all parties.
14. Restrictive Legends. Optionee hereby acknowledges that federal
-------------------
securities laws and the securities laws of the state in which Optionee resides
or works may require the placement of certain restrictive legends upon the
Shares issued upon exercise of the Options, and Optionee hereby consents to the
placing of any such legends upon certificates evidencing the Shares as the
Company, or its counsel, may reasonably deem necessary; provided, however, that
any such legend or legends shall be removed when no longer applicable. Any and
all certificates now or hereafter issued evidencing the Shares shall have
endorsed upon them a legend substantially as follows:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS UPON TRANSFER AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF, EXCEPT IN ACCORDANCE
WITH THE TERMS AND CONDITIONS OF THAT CERTAIN OPTION AGREEMENT DATED
AS OF APRIL 15, 1998, BY AND BETWEEN ADVANCE AUTO PARTS, INC., A
DELAWARE CORPORATION, AND THE ORIGINAL PURCHASER HEREOF, A COPY OF
WHICH AGREEMENT IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF
ADVANCE AUTO PARTS, INC."
15. Notices. Except as otherwise provided herein, all notices, requests,
-------
demands and other communications under this Agreement shall be in writing, and
if by telegram or 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.
c/o Xxxxxxx Xxxxxx & Co. Incorporated
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
9
If to Optionee:
___________________________
___________________________
___________________________
16. Not an Employment Agreement. 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 and/or any
Subsidiary in favor of Optionee or limit the ability of the Company and/or any
Subsidiary to terminate, with or without cause, in its sole and absolute
discretion, the employment relationship with Optionee, subject to the terms of
any written employment agreement to which Optionee is a party.
17. Governing Law. This Agreement shall be construed under and governed
-------------
by the laws of the State of Delaware without regard to the conflict of law
provisions thereof.
18. Counterparts. This Agreement may be executed in counterparts, each of
------------
which shall be deemed an original and both of which together shall be deemed one
Agreement.
19. Amendments. This Agreement may be amended only by a written agreement
----------
executed by both of the parties hereto and by FSEP IV.
20. Recapitalizations or Exchanges Affecting the Company's Capital. The
--------------------------------------------------------------
provisions of this Agreement shall apply to any and all stock or other
securities of the Company or any successor or assign of the Company, which may
be issued in respect of, in exchange for or in substitution of, the Shares by
reason of any split, reverse split, recapitalization, reclassification,
combination, merger, consolidation or otherwise, and such Shares or other
securities shall be encompassed within the term "Shares" for purposes of this
Agreement.
21. Disclosure. The Company shall have no duty or obligation to
----------
affirmatively disclose to Optionee, and Optionee shall have no right to be
advised of, any material information regarding the Company or any of its
Subsidiaries at any time prior to, upon or in connection with the Company's
repurchase of the Shares under this Agreement at the cessation or termination of
Optionee's employment with the Company and/or any of its Subsidiaries.
22. Successors and Assigns. The Company may assign with absolute
----------------------
discretion any or all of its rights and/or obligations and/or delegate any of
its duties under this Agreement to any of its affiliates, successors and/or
assigns and this Agreement shall inure to the benefit of, and be binding upon,
such respective affiliates, successors and/or assigns of the Company in the same
manner and to the same extent as if such affiliates, successors and/or assigns
were original parties hereto. Without limiting the foregoing, the Company may
assign the Repurchase Option and/or the right of first refusal provided for in
Section 9 and Section 7(b) of this Agreement, respectively, to any of its
--------- ---------
affiliates, successors and/or assigns. FSEP IV may assign its rights under
Section 7(c) to any FS Permitted Transferee or to a purchaser of shares of
------------
common stock then owned by FSEP IV. For purposes of this Agreement, the term
"Shares" shall include shares
10
of capital stock or other securities of the Company or any successor or assign
of the Company, which are issued in respect of, in exchange for or in
substitution of the Shares by reason of any split, reverse split,
recapitalization, reclassification, combination, merger, exchange or
consolidation. Unless specifically provided herein to the contrary, Optionee
may not assign any or all of its rights and/or obligations and/or delegate any
or all its duties under this Agreement without the prior written consent of the
Company and FSEP IV. Upon an assignment of any or all of Optionee's rights
and/or obligations and/or a delegation of any or all of its duties under this
Agreement in accordance with the terms of this Agreement, this Agreement shall
inure to the benefit of, and be binding upon, Optionee's respective affiliates,
successors and/or assigns in the same manner and to the same extent as if such
affiliates, successors and/or assigns were original parties hereto.
11
IN WITNESS WHEREOF, the Company and Optionee have executed this
Agreement as of the date first above written.
THE COMPANY:
Advance Auto Parts, Inc., a Delaware corporation
By: ____________________________________________
Name:
Title:
OPTIONEE:
_________________________________________________
Name:
12
SCHEDULE A
EXERCISE PRICE (VARIABLE PRICE SERVICE OPTIONS)
-----------------------------------------------
The Variable Price Service Options granted pursuant to this Agreement shall
become exercisable in equal, annual installments of ___% of the aggregate number
of Variable Price Service Options granted on _____________ and ______________,
and when exercised shall be exercised at the price as set forth in the table
below based on the date the Purchase Price (as defined) is received by the
Company with a notice of exercise. Such vesting installments shall be
cumulative, such that the Variable Price Service Options may be exercised as to
any or all Shares covered by an installment at any time or times after that
installment becomes exercisable and until the Variable Price Service Options
expire or terminate under this Agreement or otherwise.
Date of Exercise Exercise Price
---------------- --------------
13
SCHEDULE B
VESTING SCHEDULE (FIXED PRICE SERVICE OPTIONS)
----------------------------------------------
The Fixed Price Service Options granted pursuant to this Agreement shall
vest and become exercisable in equal, annual installments of ____% of the
aggregate number of Fixed Price Service Options granted on each anniversary date
of this Agreement for fiscal years ending ____, ____ and ____. Such vesting
installments shall be cumulative, such that the Fixed Price Service Options may
be exercised as to any or all Shares covered by an installment at any time or
times after that installment becomes exercisable and until the Fixed Price
Service Options expire or terminate under this Agreement or otherwise.
14
SCHEDULE C
VESTING SCHEDULE (PERFORMANCE OPTIONS)
--------------------------------------
All Performance Options granted pursuant to this Agreement shall vest and
become exercisable in equal annual installments of ___% of the aggregate number
of Performance Options granted on each of December 31, ____, ____, ____ and
____, if, and only if, (i) Optionee is employed by the Company at that date;
---------------
(ii) the Company has completed an initial public offering or an Extraordinary
Event (as defined in the Plan); and (iii) the Performance Criteria set forth
---
below are achieved (and only to the extent achieved as calculated below).
I. Annual Awards
-------------
To determine whether and to what extent the Performance Criteria have been
achieved, the first four Measurement Periods shall be the _____ fiscal years of
the Company beginning with fiscal year ____ and ending with fiscal year ____.
The Performance Criteria for such Measurement Periods shall be the target levels
of earnings before interest, taxes, depreciation and amortization for the
Company ("EBITDA") depicted on the following chart. For each fiscal year in
which the EBITDA that the Company achieves (the "Actual EBITDA") equals or
exceeds the Maximum EBITDA for such year, the Option shall become exercisable
with respect to ___% of the Shares (the "Annual Maximum"). For each year in
which the Actual EBITDA equals the Minimum EBITDA for such fiscal year, the
Option shall become exercisable with respect to ____% of the Shares. For each
year in which the Actual EBITDA is more than the Minimum EBITDA for such fiscal
year and less than the Maximum EBITDA for such fiscal year, the Option shall
become exercisable with respect to the percentage portion of the Annual Maximum
determined by the following formula:
Actual EBITDA - Minimum EBITDA
10% + 90% x --------------------------------------------
Maximum EBITDA - Minimum EBITDA
E.g., if the Company achieved an Annual EBITDA of $80.1 million for fiscal
year 2001, the Option would become exercisable with respect to _____% of the
Shares.) Except as provided herein below, no portion of the Option shall become
exercisable with respect to any year in which the Company fails to achieve the
Minimum EBITDA.
The Minimum EBITDA and Maximum EBITDA for the Measurement Periods are:
Year Minimum EBITDA Maximum EBITDA
---- -------------- --------------
15
II. Cumulative Award
----------------
The final Measurement Period shall be the _____ year period that terminates
at the end of the Company's fiscal year ____. The Performance Criteria for such
period shall be the cumulative actual EBITDA achieved by the Company during such
period (the "Cumulative EBITDA"). If the Cumulative EBITDA is equal to or
greater than $_____ million, then the Option shall become exercisable in full,
regardless of the extent to which the Option has become fully exercisable due to
the achievement of annual target levels of EBITDA. If, at the end of fiscal
year _____, the Cumulative EBITDA is equal to $_____ million, then the Option
shall become exercisable with respect to a percentage equal to the difference of
(i) ___% minus (ii) the total percentage of the Option exercisable under the
calculation made under Section I (the Annual Awards). If the Cumulative EBITDA
is more than $_____ million and less than $_____ million, then the Option shall
become exercisable with respect to the percentage portion of the Option equal to
the difference of:
Cumulative EBITDA - $_____ million minus (ii) the total
percentage of the Option
(i) __% + __% x ------------------------------ exercisable under Section I
$ ____ million
In no event shall any calculation under this Section II result in any portion of
any Option that previously vested under Section I to become unvested. To the
extent that all or a portion of the Option does not become exercisable based on
the above calculation with respect to Cumulative EBITDA, it shall to that extent
automatically terminate and cease to be exercisable notwithstanding the stated
term during which it otherwise may have been exercised.
The Committee shall determine the extent to which the Company has achieved the
performance criteria set forth above following the conclusion of each
measurement period and, consequently, the extent, if at all, that the Option has
become exercisable. The performance criteria set forth above may be modified
from time to time as set forth in Section 6 of the Plan. To the extent the
---------
Option is not exercisable at the conclusion of the final measurement period, it
shall to that extent automatically terminate and cease to be exercisable
notwithstanding the stated term during which it otherwise may have been
exercised.
16
