INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
This Registration Statement on Form S-8 relates to shares of the Common Stock, par value $0.0001 per share (the “Common Stock”), of Advance Auto Parts, Inc. (the “Registrant”), which may be issued under the Registrant’s 2004 Long-Term Incentive Plan, as amended (the “Plan”). Pursuant to General Instruction E of Form S-8, the Registrant hereby incorporates by reference the contents of the Registrant’s Registration Statement on Form S-8 (File No. 333-115772), as filed with the Securities and Exchange Commission (the “Commission”) on May 21, 2004, and the Registrant’s Post-Effective Amendment No. 1 to Registration Statement on Form S-8 (File No. 333-115772), as filed with the Commission on May 25, 2004, covering an aggregate of 5,746,847 shares of Common Stock that may be issued pursuant to the Plan. This Registration Statement is being filed to register an additional 3,000,000 shares of the Registrant's Common Stock subject to issuance under the Plan.
Item 6. Indemnification of Directors and Officers.
The Registrant’s Restated Certificate of Incorporation, as amended, provides for the limitation of the personal liability of the directors of the Registrant to the fullest extent permitted by law and the Registrant’s bylaws provide for indemnification of the officers and directors of the Registrant to the fullest extent permitted by law. Section 102(b)(7) of the Delaware General Corporation Law (the “DGCL”) provides that a Delaware corporation has the power to eliminate or limit the personal liability of a director for violations of a director’s fiduciary duty, except (a) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (c) pursuant to Section 174 of the DGCL (providing for liability of directors for unlawful payments of dividends or unlawful stock purchases or redemptions), or (d) for any transaction from which a director derived an improper personal benefit.
Section 145 of the DGCL provides that a corporation may indemnify any persons, including officers and directors, who are, or are threatened to be made, parties to any threatened, pending or completed legal action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person was a director, officer, employee or agent of such corporation, or is or was serving at the request of such corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided such person acted in a manner the person reasonably believed to be in or not opposed to the corporation’s best interests and, for criminal proceedings, had no reasonable cause to believe that his conduct was unlawful. A Delaware corporation may indemnify any person, including officers and directors, in an action by or in the right of the corporation under the same conditions, except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify the officer or director against the expenses which such officer or director actually and reasonably incurred.
The Registrant, is a party to an indemnification agreement with each of its directors (the form of which is filed as an exhibit to the Registrant’s Current Report on Form 8-K filed with the SEC on May 19, 2004) which provides for indemnification by the Registrant and its subsidiaries to the fullest extent permitted by law.
The Registrant has also purchased insurance for its directors and officers against liabilities arising out of their service in their capacities as directors and officers of the Registrant.
