As filed with the Securities and Exchange Commission on November 29, 2001
Registration No. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
______________________
ADVANCE AUTO PARTS, INC.
(Exact name of registrant as specified in its charter)
Delaware 5531 54-2049910
(State or other jurisdiction of (Primary Standard Industrial (Employer Identification No.)
incorporation or organization) Classification Code Number)
5673 Airport Road, Roanoke, VA 24012
(540) 362-4911
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
ADVANCE AUTO PARTS, INC.
2001 EXECUTIVE STOCK OPTION PLAN
2001 SENIOR EXECUTIVE STOCK OPTION PLAN
2001 EMPLOYEE STOCK SUBSCRIPTION PLAN
2001 SENIOR EXECUTIVE STOCK SUBSCRIPTION PLAN
(Full title of the plans)
Jimmie L. Wade
President and Chief Financial Officer
5673 Airport Road, Roanoke, VA 24012
(540) 362-4911
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
______________________
Copies to:
Thomas M. Cleary, Esq.
Riordan & McKinzie
300 South Grand Avenue
29th Floor
Los Angeles, California 90071
CALCULATION OF REGISTRATION FEE
====================================================================================================================
Proposed Proposed
Title of each class of Amount Maximum Maximum Amount of
securities to be to be Offering Price Aggregate Registration
registered Registered Per Share Offering Price Fee
- --------------------------------------------------------------------------------------------------------------------
Common Stock, par value
$0.0001 per share 5,521,168(1) (2) $156,229,171(2) $37,338.77
====================================================================================================================
(1) Includes 3,600,000 shares issuable pursuant to the Registrant's 2001
Executive Stock Option Plan, 1,710,000 shares issuable pursuant to the
Registrant's 2001 Senior Executive Stock Option Plan, 120,668 shares
issuable upon future sales pursuant to the Registrant's 2001 Employee Stock
Subscription Plan, and 90,500 shares issuable upon future sales pursuant to
the Registrant's 2001 Senior Executive Stock Subscription Plan, as such
numbers of shares may be adjusted in accordance with said plans in the
event of a merger, consolidation, reorganization, liquidation,
recapitalization, stock dividend, stock split, or similar event involving
the Registrant.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h)(1) under the Securities Act of 1933, as amended,
based upon the exercise prices of options which have been granted and
subscription shares which have been purchased, and an estimated
exercise/purchase price of options and subscription shares reserved for
future grant and sale, respectively. Of the total number of shares
registered herein, a total of 1,925,905 shares are issuable pursuant to the
Registrant's stock option plans at a weighted average exercise price of
$19.34 per share ($37,247,002 in the aggregate), a total of 795,235 shares
are issuable pursuant to the Company's stock option plans at a weighted
average exercise price of $16.00 per share ($12,723,760 in the aggregate),
a total of 295,235 shares are issuable pursuant to the Company's stock
option plans at an exercise price of $10.00 per share ($2,952,350 in the
aggregate), a total of 574,765 shares are issuable pursuant to the
Company's stock option plans at a weighted average exercise price of $42.90
per share ($24,657,418 in the aggregate), a total of 1,718,860 are
available for future grant under such plans and are being registered herein
at $40.75 per share ($70,043,545 in the aggregate) and a total of 211,168
shares are available for future sales pursuant to the Registrant's stock
subscription plans and are being registered herein at $40.75 per share
($8,605,096 in the aggregate). The exercise/sale price of all shares
available for future issuance under these plans is based upon the fair
market value of the Registrant's common stock on the date hereof.
Therefore, the total amount of the offering being registered herein is the
sum of these aggregate amounts, or $156,229,171.
- -------------------------------------------------------------------------------
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which Advance Auto Parts, Inc. (the "Company") has
filed with the Securities and Exchange Commission (the "Commission") are
incorporated by reference into this registration statement:
(1) The Proxy Statement and Prospectus filed by the Company on November 8,
2001 (Commission File No. 333-68858) pursuant to Rule 424(b) of the
Securities Act of 1933, as amended, which contains audited and
consolidated financial statements of the Company (as successor in
interest to Advance Holding Corporation) for the fiscal year ended
December 30, 2000, the latest year for which such statements have been
filed; and
(2) The description of the Company's securities contained in the Company's
Registration Statement on Form 8-A (Commission File No. 001-16797)
filed with the Commission on November 28, 2001.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 and prior to the filing of a
post-effective amendment to the registration statement that indicates that all
securities offered hereby have been sold or that deregisters all such securities
remaining unsold, shall be deemed to be incorporated by reference herein and to
be a part hereof from the date of filing such documents. Any statement contained
herein or in any document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
registration statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed to constitute a part of this
registration statement, except as so modified or superseded.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company's certificate of incorporation and bylaws provide for
indemnification of the officers and directors of the Company 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 the director's
fiduciary duty, except (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) pursuant to Section 174 of the DGCL (providing for liability of directors
for unlawful payments of dividends or unlawful stock purchases or redemptions),
or (iv) 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 a manner be
reasonably believed to be in or not opposed to the corporation's best interests
II-1
and, for criminal proceedings, had no reasonable cause to believe that his
conduct was unlawful. A Delaware corporation may indemnify 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 is successful on the merits or otherwise in the defense of any
action referred to above, the corporation must indemnify him against the
expenses which such officer or director actually and reasonably incurred.
Item 7. Exemptions from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Form of Restated Certificate of Incorporation of the Company. (*)
4.2 Bylaws of the Company. (*)
5.1 Opinion of Riordan & McKinzie as to the legality of the common stock
registered hereby.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Ernst & Young LLP.
24.1 Power of Attorney (included on Page A-1 hereto).
99.1 Form of 2001 Executive Stock Option Plan. (*)
99.2 Form of 2001 Senior Executive Stock Option Plan. (*)
99.3 Form of 2001 Employee Stock Subscription Plan. (*)
99.4 Form of 2001 Senior Executive Stock Subscription Plan. (*)
(*) Filed as an exhibit to Registration Statement on Form S-4 of the Company
(Registration No. 333-68858) on August 31, 2001, as amended on October 15,
2001, November 6, 2001 and November 26, 2001, and as the same may be
subsequently amended (the "Registration Statement"). The Registration
Statement is hereby incorporated by reference and made a part hereof.
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided however, that paragraphs (i) and (ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
II-2
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities under the Securities Act of 1933
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Roanoke, Commonwealth of Virginia, on this 29th day
of November, 2001.
Advance Auto Parts, Inc.
By: /s/ Jimmie L. Wade
---------------------------------------
Jimmie L. Wade
President and Chief Financial Officer
II-4
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Lawrence P. Castellani, Jimmie L. Wade, and Mark
J. Doran, and each of them, his true and lawful attorneys-in-fact and agents
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments
(including post effective amendments) to this registration statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite or necessary to be done, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title(s) Date
--------- -------- ----
/s/ Lawrence P. Castellani Chief Executive Officer (Principal November 29, 2001
- ---------------------------------- Executive Officer)
Lawrence P. Castellani
/s/ Jimmie L. Wade President and Chief Financial Officer
- ---------------------------------- (Principal Financial and Accounting
Jimmie L. Wade Officer) November 29, 2001
/s/ Nicholas F. Taubman Chairman of the Board and Director November 29, 2001
- ----------------------------------
Nicholas F. Taubman
/s/ Garnett E. Smith Vice Chairman of the Board and Director November 29, 2001
- ----------------------------------
Garnett E. Smith
/s/ Timothy C. Collins Director November 29, 2001
- ----------------------------------
Timothy C. Collins
/s/ Mark J. Doran Director November 29, 2001
- ----------------------------------
Mark J. Doran
/s/ John M. Roth Director November 29, 2001
- ----------------------------------
John M. Roth
II-5
Signature Title(s) Date
--------- -------- ----
/s/ Ronald P. Spogli Director November 29, 2001
- ---------------------------
Ronald P. Spogli
/s/ William L. Salter Director November 29, 2001
- ---------------------------
William L. Salter
/s/ Jeffrey B. Conner Director November 29, 2001
- ---------------------------
Jeffrey B. Conner
/s/ Peter J. Fontaine Director November 29, 2001
- ---------------------------
Peter J. Fontaine
II-6
INDEX TO EXHIBITS
4.1 Form of Restated Certificate of Incorporation of the Company. (*)
4.2 Bylaws of the Company. (*)
5.1 Opinion of Riordan & McKinzie as to the legality of the common stock
registered hereby.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Ernst & Young LLP.
24.1 Power of Attorney (included on Page A-1 hereto).
99.1 Form of 2001 Executive Stock Option Plan. (*)
99.2 Form of 2001 Senior Executive Stock Option Plan. (*)
99.3 Form of 2001 Employee Stock Subscription Plan. (*)
99.4 Form of 2001 Senior Executive Stock Subscription Plan. (*)
(*) Filed as an exhibit to Registration Statement on Form S-4 of the
Company (Registration No. 333-68858) on August 31, 2001, as amended on
October 15, 2001 and November 6, 2001, and as the same may be
subsequently amended (the "Registration Statement"). The Registration
Statement is hereby incorporated by reference and made a part hereof.