Exhibit 10.19.4
OLD DOMINION FREIGHT LINE,
INC.
PHANTOM STOCK PLAN
ARTICLE 1.
PURPOSE. Old Dominion
Freight Line, Inc. (the “Company”) hereby adopts this
Phantom Stock Plan (the “Plan”). The Plan is intended
to qualify as a “top-hat” plan under ERISA, in that it
is intended to be an “employee pension benefit plan”
(as defined in Section 3(2) of ERISA) which is unfunded and
provides benefits only to a select group of management or highly
compensated employees of the Company. This is an amendment and
restatement of the Plan originally adopted effective May 16,
2005. The purposes of the Plan are:
(i) To promote the long-term
financial interests and growth of the Company by attracting and
retaining key management employees with the training, experience,
and ability to enable them to make a substantial contribution to
the success of the business of the Company;
(ii) To motivate personnel by means
of growth-related incentives to achieve long range
goals;
(iii) To further the identity of
interests of key management employees with those of the
Company’s shareholders; and
(iv) To allow each participant to
share in the increase in value of the Company following the date
such participant is granted Phantom Stock in accordance with the
terms of the Plan.
ARTICLE 2.
DEFINITIONS. Wherever
used in this Plan, including ARTICLE 1 and this ARTICLE 2, the
following terms shall have the meanings set forth below (unless
otherwise indicated by the context):
2.1.
“Administrator” means the Board of Directors or, upon its
delegation, a committee of the Board comprised of two or more
members of the Board, each of whom is a “non-employee
director,” as defined in Rule 16b-3 adopted under the
Exchange Act or otherwise in compliance with Rule 16b-3. Further,
to the extent required by Section 162(m) of the Code, the
committee shall be comprised of two or more “outside
directors” (as such term is defined in Section 162(m) of
the Code) or as may otherwise be permitted under
Section 162(m) of the Code.
2.2.
“Award” means
a grant of Phantom Stock.
2.3. “Award
Agreement” an
agreement entered into between the Company and the Participant
evidencing the terms of Phantom Stock.
2.4.
“Board” or
“Board of Directors” means the Board of
Directors of the Company.
2.5. “Change of
Control” means and
will be deemed to have occurred on the earliest of the following
dates which occurs after January 1, 2009:
(a) the date any person or group of
persons (as defined in Section 13(d) and 14(d) of the
Securities Exchange Act of 1934) together with its affiliates,
excluding employee benefit plans of the Company, is or becomes (or
publicly discloses that such person or group is or has become),
directly or indirectly, the “beneficial owner” (as
defined in Rule 13d-3 promulgated under the Securities Exchange Act
of 1934) of securities of the Company representing thirty-five
percent (35%) or more of the combined voting power of the
Company’s then outstanding voting securities; provided,
however, that the event described in this subparagraph
(a) shall not be deemed to be a Change of Control by virtue of
the beneficial ownership, or the acquisition of beneficial
ownership, of voting securities by (i) any employee benefit
plan sponsored or maintained by the Company or by a person
controlled by the Company; (ii) any underwriter (as such term
is defined in Section 2(a)(11) of the Securities Act of 1933)
that beneficially owns voting securities temporarily in connection
with an offering of such securities; or (iii) any member of
the family of Earl E. Congdon or John R. Congdon unless David S.
Congdon, acting in good faith, provides written notice to the
Company that David S. Congdon believes, and within twenty
(20) business days after the Company receipt of David S.
Congdon’s notice a majority of the independent members of the
Board of Directors determines, that the beneficial ownership of
voting securities by such family member creates a substantial
threat to corporate policy and effectiveness. For the purpose of
clause (iii) above, “family” means any lineal
descendent, including adoptive relationships, of Earl E. Congdon or
John R. Congdon, any spouse of the foregoing and any trust
established by or for the benefit of any of the foregoing, and
“independent” shall have the meaning set forth in the
corporate governance rules of the principal exchange on which the
Company’s common stock is listed; or
(b) the date when, as a result of a
tender offer or exchange offer for the purchase of securities of
the Company (other than such an offer by the Company for its own
securities), or as a result of a proxy contest, merger, share
exchange, consolidation or sale of assets, or as a result of any
combination of the foregoing, individuals who at the beginning of
any two (2) year period during the Term constitute the Board,
plus new directors whose election or nomination for election by the
Company’s shareholders is approved by a vote of at least
two-thirds (2/3) of the directors still in office who were
directors at the beginning of such two-year period
(“Continuing Directors”), cease for any reason during
such two-year period to constitute at least two-thirds
(2/3) of the members the Board; or
(c) the effective date of a merger,
share exchange or consolidation of the Company with any other
corporation or entity regardless of which entity is the survivor,
other than a merger, share exchange or consolidation which would
result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or being converted into voting securities of
the surviving or acquiring entity) at least sixty percent
(60%) of the combined voting power of the voting securities of
the Company or such surviving or acquiring entity outstanding
immediately after such merger or consolidation; or
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(d) the effective date of the sale
or disposition by the Company of all or substantially all of the
Company’s assets.
2.6.
“Code” means
the Internal Revenue Code of 1986, as amended, and rules and
regulations issued thereunder.
2.7. “Common
Stock” means
(i) the common stock of the Company, par value $0.10 per
share, as adjusted as provided in ARTICLE 7, or (ii) if
there is a merger or consolidation and the Company is not the
surviving corporation, the capital stock of the surviving
corporation given in exchange for such Common Stock of the
Company.
2.8.
“Company” means Old Dominion Freight Line, Inc., a
Virginia corporation with its principal offices at Thomasville,
North Carolina.
2.9. “Competitive
Activity” means
(i) the Participant’s participation in, engagement by,
possession of a financial or other interest in or filling a
position directly or indirectly with (whether individually or as an
employee, agent, partner, shareholder, consultant, or otherwise),
any enterprise or business if such enterprise or business competes
with the business of the Company in any state in which the Company
conducts its business; (ii) the solicitation by the
Participant of any other person to engage in any of the foregoing
activities; (iii) the solicitation of any employee of the
Company to leave the employ of the Company, or to do business with
any enterprise or business which competes with the business of the
Company; or (iv) the solicitation of any customer, vendor or
supplier of the Company. The ownership of an interest constituting
not more than (2) two percent of the outstanding debt or
equity in a company whose securities are traded on a recognized
stock exchange or traded on the over-the-counter market shall not
be deemed financial participation in a competitor even though that
company may be a competitor of the Company.
2.10. “Eligible Key
Employee” shall
mean an employee who is determined by the Administrator to
(i) be in a position to affect materially the continued growth
and prosperity of the Company by reason of the individual’s
duties, responsibilities, personal capabilities, performance,
potential or any combination of such factors, and (ii) be a
management or highly compensated employee of the Company. An
individual will be treated as an employee of the Company if there
exists between the individual and the Company the legal
relationship of employer and employee.
2.11.
“ERISA” means
the Employee Retirement Income Security Act of 1974, as amended,
and rules and regulations issued thereunder.
2.12. “Exchange
Act” means the
Securities Exchange Act of 1934, as amended, and any successor
statutes or regulations of similar purpose or effect.
2.13. “Fair Market
Value” of a share
of Common Stock as of a given date shall be (a) the closing
price of a share of Common Stock on the principal exchange on which
shares of Common Stock are then trading, if any (or as reported on
any composite index which includes such principal exchange), on the
trading day immediately preceding such date, or, if shares were not
traded on the trading day immediately preceding such
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date, then on the next preceding
date on which a trade occurred, or (b) if Common Stock is not
traded on an exchange but is quoted on Nasdaq or a successor
quotation system, the mean between the closing representative bid
and asked prices for the Common Stock on the trading day
immediately preceding such date as reported by Nasdaq or such
successor quotation system, or (c) if Common Stock is not
publicly traded on an exchange and not quoted on Nasdaq or a
successor quotation system, the Fair Market Value of a share of
Common Stock as established by the Administrator acting in good
faith.
2.14. “For
Cause” means one or
more of the following, in each case as determined by the
Administrator in its sole discretion: (i) the
Participant’s conviction by a court of competent jurisdiction
of, or pleading “guilty” or “no contest”
to, theft, fraud or embezzlement from the Company; (ii) the
Participant’s conviction by a court of competent jurisdiction
of, or pleading “guilty” or “no contest”
to, a felony which constitutes a crime involving moral turpitude
and results in material harm to the Company; (iii) willful and
continued failure by the Participant to substantially perform his
duties on behalf of the Company (other than any such failure
resulting from the Participant’s Total Disability) for a
period of at least thirty (30) consecutive days after a
written demand for substantial performance has been delivered to
the Participant by the Responsible Person (as defined below) which
specifically identifies the manner in which the Responsible Person
believes that the Participant has not substantially performed the
Participant’s duties; (iv) willful misconduct or gross
negligence by the Participant which is injurious to the Company; or
(v) any diversion by the Participant for his personal gain of
any clearly viable and significant business opportunity from the
Company (other than with the prior written consent of the Board).
For purposes of this Section 2.14, an act, or failure to act,
on the Participant’s part shall not be deemed
“willful” if done, or omitted to be done, by the
Participant in good faith and with reasonable belief that the
Participant’s act, or failure to act, was in the best
interest of the Company, and “Responsible Person” shall
mean the Chief Executive Officer of the Company or such other
executive officer of the Company who is the direct or indirect
supervisor of the Participant.
2.15. “Grant
Date” means the
date an Award is granted to a Participant.
2.16.
“Participant” means an Eligible Key Employee who has received
an Award that has not been settled, cancelled or
forfeited.
2.17.
“Person” means any individual, partnership, joint
venture, corporation, company, firm, group or other
entity.
2.18. “Phantom
Stock” means a
contractual right to receive an amount in cash equal to the Fair
Market Value of a share of Common Stock on the Settlement
Date.
2.19.
“Plan” means
the Old Dominion Freight Line, Inc. Phantom Stock Plan, as herein
set out, or as duly amended.
2.20. “Securities
Act” means the
Securities Act of 1933, as amended, and any successor statutes or
regulations of similar purpose or effect.
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2.21. “Settlement
Date” means the
earlier of:
(i) the date of the
Participant’s termination of employment on or after
attainment of age 55 for any reason other than death, Total
Disability or For Cause;
(ii) the date of the
Participant’s death while employed by the Company;
or
(iii) the date of the
Participant’s termination of employment as a result of his
Total Disability.
2.22. “Specified
Employee” shall
mean a Participant who is a key employee as described in Code
§ 416(i)(1)(A), disregarding Paragraph 5 thereof and using
compensation as defined under Treas. Reg. 1.415(C)(2)(a). A
Participant is not a Specified Employee unless any stock of the
Employer is publicly traded on an established securities market or
otherwise and the Participant is a Specified Employee on the date
of his or her Separation from Service.
2.23. “Total
Disability” means a
condition for which the Participant is determined to be disabled
under the Company’s long-term disability plan as in effect as
of the effective date of this Plan or as the same may be amended
from time to time.
ARTICLE 3.
ADMINISTRATION OF THE
PLAN.
3.1. Duties and Powers of the
Administrator. The
Plan shall be administered by the Administrator. Any action of the
Administrator may be taken by a written instrument signed by all of
the members of the Administrator and any action so taken by written
consent shall be as fully effective as if it had been taken by a
majority of the members at a meeting duly called and held. Subject
to the provisions of the Plan and to the extent necessary to
preserve the availability of an exemption under Rule 16b-3
promulgated under the Exchange Act, for transactions by persons
subject to Section 16 of the Exchange Act, the Administrator
shall have full and final authority, in its discretion, to take
action with respect to the Plan including, without limitation, the
authority to (i) determine the terms and provisions of Awards
made pursuant to the Plan; (ii) to establish, amend and
rescind rules and regulations for the administration of the Plan;
and (iii) to construe and interpret the Plan and Award
Agreements, the rules and regulations, and to make all other
determinations deemed necessary or advisable for administering the
Plan. Subject to the claims procedures described in ARTICLE 13, the
decisions and interpretations of the Administrator with respect to
any matter concerning the Plan or any Award shall be final,
conclusive, and binding on all parties who have an interest in the
Plan or such Award. Any such interpretations, rules, and
administration shall be consistent with the basic purposes of the
Plan. No member of the Administrator shall be liable while acting
as such for any action or determination made in good faith with
respect to the Plan or any Award. No individual member of the
Administrator shall have any right to vote or decide upon any
matter relating solely to himself or to any of his exclusive rights
or benefits under the Plan (except that such member may sign
unanimous written consent to resolutions adopted or other actions
taken without a meeting).
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3.2.
Delegation. Notwithstanding the other provisions of
Section 3.1, the Administrator may delegate to one or more
officers of the Company the authority to grant Awards, and to make
any or all of the determinations reserved for the Administrator of
the Plan and summarized in Section 3.1 with respect to such
Awards [subject to any restrictions imposed by Applicable Laws
(including, but not limited to, Rule 16b-3 adopted under
Section 16 of the Exchange Act and Section 162(m) of the
Code), and such terms and conditions as may be established by the
Administrator]. To the extent that the Administrator has delegated
authority to grant Awards pursuant to this Section 3.2 to one
or more officers of the Company, references to the Administrator
shall include references to such officer or officers, subject,
however, to the requirements of the Plan, Rule 16b-3,
Section 162(m) of the Code and other Applicable
Laws.
3.3. Expenses; Professional
Assistance. All
expenses and liabilities incurred by the Administrator in
connection with the administration of the Plan shall be borne by
the Company. The Administrator may employ attorneys, consultants,
accountants, appraisers, brokers, or other persons. The
Administrator, the Company and the officers and directors of the
Company shall be entitled to rely upon the advice, opinions, or
valuations of any such persons.
ARTICLE 4.
ELIGIBILITY. An Award
may be granted to an individual who satisfies each of the following
eligibility requirements on the Grant Date:
(i) The individual is an Eligible
Key Employee.
(ii) The individual is selected by
the Administrator as an individual to whom an Award shall be
granted.
ARTICLE 5.
AWARDS.
5.1. Phantom
Stock. The maximum
number of shares of Phantom Stock available for Awards under this
Plan shall be 250,000, subject to adjustment as provided in
ARTICLE 7. Any shares of Phantom Stock subject to an Award
which, for any reason, expires, is cancelled, is forfeited or is
otherwise terminated unexercised as to such shares may again be
subject to an Award granted under the Plan. No shares of Common
Stock shall be issued pursuant to the Plan and payments made under
the Plan, if at all, shall be made solely in cash.
5.2. Grant of
Awards. Subject to
the provisions of ARTICLES 10 and 15, the Administrator may, in its
sole and absolute discretion, at any time and from time to time
grant shares of Phantom Stock to any Eligible Key Employee who has
been selected by the Administrator to receive an Award. The
Administrator shall determine the number of shares of Phantom Stock
to be granted, which may, in its sole and absolute discretion, vary
for each Eligible Key Employee. Each Award shall be evidenced by an
Award Agreement containing such terms and conditions, not
inconsistent with the Plan, as the Administrator shall approve. An
Award shall become effective upon the execution by the Eligible Key
Employee of an Award Agreement, acknowledging the terms and
conditions of the Award.
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5.3. Unit
Accounts. Any shares
of Phantom Stock awarded to a Participant pursuant to an Award
shall be credited to a Phantom Stock account to be maintained on
behalf of such Participant. Such account shall be debited by the
number of shares of Phantom Stock with respect to which any
payments are made pursuant to ARTICLE 6.
5.4. Vesting.
Each Award shall vest on the earlier
to occur of the following:
(i) the date of a Change of
Control;
(ii
