EXHIBIT 10.21
AMERICAN TIRE DISTRIBUTORS, INC.
2002 STOCK OPTION PLAN
1. Purpose.
The purpose of this 2002 Stock Option Plan (the "Plan") of American
Tire Distributors, Inc., a Delaware corporation (the "Company"), is to attract
and retain employees (including officers), directors and independent contractors
of the Company, or any Subsidiary or Affiliate which now exists or hereafter is
organized or acquired, and to furnish additional incentives to such persons to
enhance the value of the Company over the long term by encouraging them to
acquire a proprietary interest in the Company.
2. Definitions.
For purposes of the Plan, the following terms shall be defined as set
forth below:
(a) "Affiliate" means any entity if, at the time of granting
of an Option, (i) the Company, directly, owns at least 20% of the combined
voting power of all classes of stock of such entity or at least 20% of the
ownership interests in such entity or (ii) such entity, directly or indirectly,
owns at least 20% of the combined voting power of all classes of stock of the
Company.
(b) "Beneficiary" means the person, persons, trust or trusts
which have been designated by an Optionee in his or her most recent written
beneficiary designation filed with the Company to receive the Optionee's rights
under the Plan upon the Optionee's death, or, if there is no such designation or
no such designated person survives the Optionee, then the person, persons, trust
or trusts entitled by will or applicable law to receive such rights or, if no
such person has such right then the Optionee's executor or administrator.
(c) "Board" means the Board of Directors of the Company.
(d) "Change in Control" means the first to occur of any of the
following: (i) the sale (including by merger, consolidation or sale of stock of
subsidiaries or any other method) of all or substantially all of the assets of
the Company and its consolidated subsidiaries (taken as a whole) to any person
or entity not directly or indirectly controlled by the holders of at least 50%
of the Combined Voting Power of the then outstanding shares of capital stock of
the Company (excluding shares owned by employees of the Company as of the date
of determination), (ii) at any time prior to the consummation of an initial
public offering of Stock of the Company or other common stock of the Company
having the voting power to elect directors, a transaction (except pursuant to
such initial public offering) resulting in the Principal Shareholders owning,
collectively, less than 50% of the Combined Voting Power of the then outstanding
shares of capital stock of the Company (excluding shares owned by employees of
the Company as of the date of determination), (iii) at any time after the
consummation of an initial public offering of Stock of the Company or other
common stock of the Company having the voting power to elect directors, the
acquisition (except pursuant to such initial public offering) by any person or
entity (other than the Principal Shareholders) not directly or indirectly
controlled by the Company's stockholders of more than 30% of the Combined Voting
Power of the then outstanding shares of capital stock of the Company (excluding
shares owned by employees of the Company as of the date of determination), (iv)
individuals serving as directors of the Company on the Effective Date and who
were nominated or selected to serve as directors by one or more Principal
Shareholders (together with any new directors whose election was approved by a
vote of (A) such individuals or directors whose election was
previously so approved or (B) Principal Shareholders holding a majority of the
aggregate voting power of the capital stock of the Company held by all Principal
Shareholders) cease for any reason to constitute a majority of the Board of the
Company, (v) the adoption of a plan relating to the liquidation or dissolution
of the Company in connection with an equity investment or sale or a business
combination transaction or (vi) any other event or transaction that the Board of
the Company deems to be a Change in Control.
(e) "Code" means the Internal Revenue Code of 1986, as amended
from time to time.
(f) "Combined Voting Power" with respect to capital stock of
the Company means the number of votes such stock is normally entitled (without
regard to the occurrence of any contingency) to vote in an election of directors
of the Company.
(g) "Committee" means the committee, consisting of at least
two members of the Board, established by the Board to administer the Plan.
(h) "Company" means American Tire Distributors, Inc.,
(formerly known as Heafner Tire Group, Inc.) a corporation organized under the
laws of the State of Delaware, or any successor corporation.
(i) "Effective Date" is defined in Section 8(i).
(j) "Fair Market Value" means, with respect to Stock or other
property, the fair market value of such Stock or other property determined by
such methods or procedures as shall be established from time to time by the
Board acting in its sole discretion and in good faith.
(k) "ISO" means any Option (or portion thereof) intended to be
and designated as an incentive stock option within the meaning of Section 422 of
the Code.
(l) "NQSO" means any Option not designated as an ISO.
(m) "Option" means a right, granted to an Optionee under
Section 6(b) of the Plan, to purchase shares of Stock, subject to the terms and
conditions of this Plan. An Option (or portion thereof) may be either an ISO or
an NQSO, provided that ISOs may be granted only to employees of the Company or a
Subsidiary.
(n) "Optionee" means a person who, as an employee, director or
independent contractor of the Company, a Subsidiary or an Affiliate, has been
granted an Option.
(o) "Plan" means this American Tire Distributors, Inc. 2002
Stock Option Plan, as amended from time to time.
(p) "Principal Shareholders" means (i) Charlesbank Equity Fund
IV, Limited Partnership and the investors in such fund, (ii) Charlesbank Equity
Fund IV G.P. Limited Partnership, (iii) Charlesbank Capital Partners, LLC (and
any other fund managed by Charlesbank Capital Partners, LLC), (iv) any investor
(other than The 1818 Mezzanine Fund, L.P.) whose investment in the Company is
approved by the representative of management on the board of the Company, (v)
any new investors in the Company designated as Principal Shareholders by
Charlesbank Capital Partners, LLC within one year of the initial investment by
Charlesbank Equity Fund IV, Limited Partnership, and (vi) any corporation,
partnership, limited liability company or other entity a majority of the capital
stock or other ownership interests of which are directly or indirectly owned by
any of the foregoing.
(q) "Stock" means the Common Stock, par value $.01 per share,
of the Company.
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(r) "Stock Option Agreement" means any written agreement,
contract, or other instrument or document evidencing an Option.
(s) "Subsidiary" means any corporation in which the Company,
directly or indirectly, owns stock possessing 50% or more of the total combined
voting power of all classes of stock of such corporation.
(t) "Ten Percent Shareholder" means a person or persons who
own, directly or indirectly, more than 10% of the total combined voting power of
all classes of stock of the Company or any of its Subsidiaries.
3. Administration.
The Plan shall be administered by the Committee which shall consist of
a committee of not less than two persons appointed by the Board. Notwithstanding
the foregoing, following the first registration of any equity security of the
Company pursuant to Section 12 of the 1934 Act, the composition of the Committee
may, in the discretion of the Board of Directors, be adjusted to the extent
required in order for the Company to rely on the exemptive relief provided under
Rule 16b-3, as it may be amended from time to time, promulgated pursuant to
Section 16 of the 1934 Act, and to comply with the requirements of Section
162(m) of the Code and the regulations promulgated thereunder. The Committee
shall have full power to construe and interpret the Plan, to establish rules for
its administration and to grant Options. The Committee may establish rules
setting forth terms and conditions for a specified group of Options. The
Committee may act by a majority of a quorum (a quorum being a majority of the
members of such Committee) present at a called meeting or by unanimous written
consent of all of its members. All actions taken and decisions made by the Board
or the Committee pursuant to the Plan shall be binding and conclusive on all
persons interested in the Plan.
4. Eligibility.
Options may be granted in the discretion of the Committee to employees
(including officers), directors and independent contractors of the Company and
its present or future Subsidiaries and Affiliates. In determining the persons to
whom Options shall be granted and the type of Options granted (including the
number of shares to be covered by such Options), the Committee shall take into
account such factors as the Committee shall deem relevant in connection with
accomplishing the purposes of the Plan.
5. Stock Subject to the Plan.
The maximum number of shares of Stock reserved for the grant of Options
under the Plan shall be 2,269,889 shares of Stock, subject to adjustment as
provided herein. Such shares may, in whole or in part, be authorized but
unissued shares or shares that shall have been or may be reacquired by the
Company in private transactions or otherwise. The number of shares of Stock
available for issuance under the Plan shall be reduced by the number of shares
of Stock subject to outstanding Options. To the fullest extent permitted under
Section 422 of the Code, if any shares subject to an Option are forfeited,
canceled, exchanged or surrendered or if an Option otherwise terminates or
expires without a distribution of shares to the Optionee, the shares of Stock
with respect to such Option shall, to the extent of any such forfeiture,
cancellation, exchange, surrender, termination or expiration, again be available
for Options under the Plan. In no event shall any Optionee acquire, pursuant to
any awards of Options under this Plan, more than 80% of the aggregate number of
shares of Stock reserved for awards under the Plan.
In the event of any change in corporate capitalization (including, but
not limited to, a change in the number of shares of Stock outstanding), such as
a stock split or a corporate transaction, such as any
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merger, consolidation, separation, including a spin-off, or other distribution
of stock or property of the Company, any reorganization (whether or not such
reorganization comes within the definition of such term in Section 368 of the
Code) or any partial or complete liquidation of the Company, the Committee or
Board may make such substitution or adjustments in the aggregate number and kind
of shares reserved for issuance under the Plan and the maximum limitation upon
Options to be granted to any Optionee, in the number, kind and option price of
shares subject to outstanding Options and/or such other equitable substitution
or adjustments as it may determine to be appropriate in its sole discretion;
provided, however, that the number of shares subject to any Option shall always
be a whole number. In the event of a corporate merger, consolidation,
acquisition of property or stock, separation, reorganization or liquidation, the
Board shall be authorized to cause the Company to issue or assume stock options,
whether or not in transaction to which Section 424(a) of the Code applies, by
means of substitution of new stock options for previously issued stock options
or an assumption of previously issued stock options. In such event, the
aggregate number of shares of the Stock available for issuance under this
Section 5 will be increased to reflect such substitution or assumption.
6. Specific Terms of Options.
(a) General. Options may be granted at the discretion of the
Committee. The term of each Option shall be for such period as may be determined
by the Committee. The Committee may make rules relating to Options, and may
impose on any Option or the exercise thereof, at the date of grant or
thereafter, such additional terms and conditions, not inconsistent with the
provisions of the Plan, as the Committee shall determine.
(b) Options. The Committee is authorized to grant Options to
Optionees on the following terms and conditions:
(i) Type of Option. The Stock Option Agreement
evidencing the grant of an Option under the Plan shall
designate the Option as an ISO (in the event its terms, and
the individual to whom it is granted, satisfy the requirements
for ISOs under the Code), or an NQSO.
(ii) Exercise Price. The exercise price per share of
Stock purchasable under an Option shall be determined by the
Committee; provided that, in the case of an ISO, (i) such
exercise price shall be not less than the Fair Market Value of
a share of Stock on the date of grant of such Option or such
other exercise price as may be required by the Code, and (ii)
if the Optionee is a Ten Percent Shareholder, such exercise
price shall not be less than 110% of the Fair Market Value of
a share of Stock on the date of grant of such Option, in no
event shall the exercise price for the purchase of shares of
Stock be less than par value and the term of the Option shall
be no more than five years. Options shall be exercised by (i)
giving written notice thereof to the Company, and (ii) paying
the exercise price. In addition to any other method of payment
which may be acceptable to the Committee, if permitted by the
Committee in its sole discretion at the time of exercise,
payment may be effected, either in whole or in part, by the
surrender to the Company of outstanding Stock. Any Stock so
surrendered shall be valued at the Fair Market Value on the
date on which such shares are surrendered.
(iii) Term and Exercisability of Options. The date on
which the Committee adopts a resolution expressly granting an
Option shall be considered the day on which such Option is
granted. Options shall be exercisable over the exercise period
(which shall not exceed ten years from the date of grant), at
such times and upon such conditions as the Committee may
determine, as reflected in the Stock Option Agreement. As a
condition to exercising any Option, the Optionee shall
exercise and deliver to the
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Company an agreement in substantially the form of Exhibit A
hereto or in such other form as the Company may reasonably
require.
(iv) Termination of Employment, etc. An Option may
not be exercised unless the Optionee is then in the employ or
a director of, or then maintains an independent contractor
relationship with, the Company or any Subsidiary or Affiliate
(or a company or a parent or subsidiary company of such
company issuing or assuming the Option in a transaction to
which Section 424(a) of the Code applies), and unless the
Optionee has continuously maintained any of such relationships
since the date of grant of the Option; provided that, the
Stock Option Agreement may contain provisions extending the
exercisability of Options, in the event of specified
terminations, to a date not later than the expiration date of
such Option. The Committee may establish a period during which
the Beneficiaries of an Optionee who died while an employee,
director or independent contractor of the Company or any
Subsidiary or Affiliate or during any extended period referred
to in the immediately preceding proviso may exercise those
Options which were exercisable on the date of the Optionee's
death; provided that no Option shall be exercisable after its
expiration date.
(v) Transferability. Except as otherwise provided in
this Section 6(b)(v), Options are not transferable other than
as designated by the Optionee, in his or her most recently
filed Beneficiary designation filed with the Company, or if
there is no such designation or no such designated person
survives the Optionee, as designated by the Optionee by will
or by the laws of descent and distribution, and during the
Optionee's life, may be exercised only by the Optionee.
However, an Optionee, with the approval of the Committee, may
transfer Options for no consideration to or for the benefit of
the Optionee's Immediate Family or to a partnership or limited
liability company for one or more members of the Optionee's
Immediate Family, subject to such limits as the Committee may
establish, and the transferee shall remain subject to all the
terms and conditions applicable to Options prior to such
transfer. The foregoing right to transfer Options shall apply
to the right to consent to amendments to the Stock Option
Agreement and, in the discretion of the Committee, shall also
apply to the right to transfer ancillary rights associated
with Options. The term "Immediate Family" shall mean the
Optionee's spouse, parents, children, stepchildren, adoptive
relationships, sisters, brothers, nieces, nephews and
grandchildren (and, for this purpose, shall also include the
Optionee).
(vi) Other Provisions. Options may be subject to such
other conditions as the Committee may prescribe in its
discretion.
7. Change in Control Provisions.
Upon a Change in Control, the treatment of each Option issued under the
Plan shall be as set forth in the applicable Stock Option Agreement. Nothing
contained herein shall prevent the substitution of a new option by the Company
after a Change in Control.
8. General Provisions.
(a) Fair Market Value of Common Stock. In determining the Fair
Market Value of the Stock for purposes of the Plan, the Board may rely on a
valuation report by an investment banking or valuation firm selected by the
Board. In the event the Stock becomes listed on any national stock exchange or
quoted on the national market quotations system, the Fair Market Value of the
Stock shall, as of any day, be the closing price for the immediately preceding
trading day.
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(b) Compliance with Legal and Exchange Requirements. The Plan,
the granting and exercising of Options thereunder, and the other obligations of
the Company under the Plan and any Stock Option Agreement, shall be subject to
all applicable federal and state laws, rules and regulations, and to such
approvals by any regulatory or governmental agency as may be required. The
Company, in its discretion, may postpone the issuance or delivery of Stock under
any Option until completion of such stock exchange listing or registration or
qualification of such Stock or other required action under any state, federal or
foreign law, rule or regulation as the Company may consider appropriate, and may
require any Optionee to make such representations and furnish such information
as it may consider appropriate in connection with the issuance or delivery of
Stock in compliance with applicable laws, rules and regulations.
(c) No Right to Continued Employment, etc. Nothing in the Plan
or in any Option granted or Stock Option Agreement entered into pursuant to the
Plan shall confer upon any Optionee the right to continue in the employ of, or
to continue as a director of or an independent contractor to, the Company, any
Subsidiary or any Affiliate, as the case may be, or to be entitled to any
remuneration or benefits not set forth in the Plan or such Stock Option
Agreement or to interfere with or limit in any way the right of the Company or
any such Subsidiary or Affiliate to terminate such Optionee's employment,
directorship or independent contractor relationship.
(d) Taxes. The Company or any Subsidiary or Affiliate is
authorized to withhold from any Option granted, any payment relating to an
Option under the Plan (including from a distribution of Stock), or any other
payment to an Optionee, amounts of withholding and other taxes due in connection
with any transaction involving an Option, and to take such other action as the
Committee may deem advisable to enable the Company and an Optionee to satisfy
obligations for the payment of withholding taxes and other tax obligations
relating to any Option. This authority shall include authority to withhold or
receive Stock or other property and to make cash payments in respect thereof in
satisfaction of an Optionee's tax obligations.
(e) Amendment and Termination of the Plan. The Board may at
any time and from time to time alter, amend, suspend, or terminate the Plan in
whole or in part. Notwithstanding the foregoing, no amendment shall affect
adversely any of the rights of any Optionee, without such Optionee's consent,
under any Option theretofore granted under the Plan.
(f) No Rights to Options; No Stockholder Rights. No person
shall have any claim to be granted any Option under the Plan, and there is no
obligation for uniformity of treatment of Optionees. Except as provided
specifically herein, an Optionee or a transferee of an Option shall have no
rights as a stockholder with respect to any shares covered by the Option until
the date of the issuance of a stock certificate to such Optionee for such
shares.
(g) Unfunded Status of Options. The Plan is intended to
constitute an "unfunded" plan for incentive and deferred compensation. Nothing
contained in the Plan or any Option shall give any such Optionee any rights that
are greater than those of a general creditor of the Company.
(h) Governing Law. The Plan and all determinations made and
actions taken pursuant hereto shall be governed by the laws of the State of
Delaware without giving effect to the conflict of laws principles thereof.
(i) Effective Date; Plan Termination. (1) The Plan shall take
effect upon its adoption by the Board (the "Effective Date"), but the Plan (and
any grants of Options made prior to the stockholder approval mentioned herein),
shall be subject to the approval of the holder(s) of a majority of the issued
and outstanding shares of voting securities of the Company entitled to vote,
which approval must occur within twelve months of the date the Plan is adopted
by the Board. In the absence of such approval, such Options shall be null and
void; (2) The Board may terminate the Plan at any time with
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respect to any shares of Stock that are not subject to Options. Unless
terminated earlier by the Board, the Plan shall terminate ten years after the
Effective Date and no Options shall be granted under the Plan after such date.
Termination of the Plan under this Section 8(i) will not affect the rights and
obligations of any Optionee with respect to Options granted prior to
termination.
(j) No Restriction on Right of Company to Effect Corporate
Changes. The Plan shall not affect in any way the right or power of the Company
or its stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the capital structure or
business of the Company, or any merger or consolidation of the Company, or any
issue of stock or of options, warrants or rights to purchase stock or of bonds,
debentures, preferred or prior preference stocks whose rights are superior to or
affect the Stock or the rights thereof or which are convertible into or
exchangeable for Stock, or the dissolution or liquidation of the Company, or any
sale or transfer of all or any part of the assets or business of the Company, or
any other corporate act or proceeding, whether of a similar character or
otherwise.
(k) 1934 Act. Notwithstanding anything contained in the Plan
or any Stock Option Agreement to the contrary, if the consummation of any
transaction under the Plan would result in the possible imposition of liability
on an Optionee pursuant to Section 16(b) of the 1934 Act, the Committee shall
have the right, in its sole discretion, but shall not be obligated, to defer
such transaction to the extent necessary to avoid such liability, but in no
event for a period in excess of 180 days.
(l) Compliance with Legal and Exchange Requirements. The Plan,
the granting and exercising of Options thereunder, and the other obligations of
the Company under the Plan and any Stock Option Agreement, shall be subject to
all applicable federal and state laws, rules and regulations, and to such
approvals by any regulatory or governmental agency as may be required. The
Company, in its discretion, may postpone the issuance or delivery of Stock under
any Option until completion of such stock exchange listing or registration or
qualification of such Stock or other required action under any state, federal or
foreign law, rule or regulation as the Company may consider appropriate, and may
require any Optionee to make such representations and furnish such information
as it may consider appropriate in connection with the issuance or delivery of
Stock in compliance with applicable laws, rules and regulations.
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