ex10-41.htm


    Exhibit 10.41

     

     

    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  The Roll-up Performance Bonus has been replaced by a new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