Exhibit 10.18.3
OLD DOMINION FREIGHT LINE,
INC.
DIRECTOR PHANTOM STOCK
PLAN
ARTICLE 1.
PURPOSE . Old Dominion
Freight Line, Inc. (as defined below, the “Company”)
hereby adopts this Director Phantom Stock Plan (as defined below,
the “Plan”). The purposes of the Plan are to
(a) attract and retain Eligible Directors by having a portion
of the total cash compensation payable to such Eligible Directors
based on the value of the Common Stock of the Company; and
(b) promote the growth and profitability of the Company by
further aligning the interests of Eligible Directors with those of
the Company and its shareholders.
ARTICLE 2.
DEFINITIONS . In
addition to other terms which may be defined herein, 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 of authority to
administer the Plan to the Committee, the Committee.
2.2. “Affiliate” means any parent
or subsidiary (as such terms are defined in Code
Section 424(e) and Section 424(f), respectively) of the
Company, and also includes any other business entity which is
controlled by, under common control with or controls the
Company.
2.3. “ Annual Award ” means an
Award granted to an Eligible Director pursuant to
Section 6.1(a) herein.
2.4. “Applicable Law” or
“Applicable Laws” means any applicable laws, rules
or regulations (or similar guidance), including but not limited to
the Securities Act, the Exchange Act and the Code.
2.5. “Award” means a grant of
shares of Phantom Stock. An Award may be an Annual Award and/or a
Discretionary Award, as further described in Section 6.1
herein.
2.6. “Award Agreement” an award
agreement entered into between the Company and the Participant
evidencing the terms of an Award of Phantom Stock.
2.7. “Board” or “Board of
Directors” means the Board of Directors of the
Company.
2.8. “Change of Control” means the
earliest of the following dates which occurs after the Effective
Date of this Plan:
(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 Exchange Act) 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) 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 and/or John R. Congdon. For the purpose of clause
(iii) above, “family” means Earl E. Congdon, John
R. Congdon and 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; 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-year period during the term of the Plan 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
(d) the effective date of a complete
liquidation or winding-up of the Company; or
(e) the effective date of the sale
or disposition by the Company of all or substantially all of the
Company’s assets; or
(f) the date of a filing of a
petition in bankruptcy of the Company, whether voluntary or
involuntary.
2.9. “Code” means the Internal
Revenue Code of 1986, as amended, and rules, regulations and other
guidance issued thereunder.
2.10. “Committee” means the
Compensation Committee of the Board which may be appointed to
administer the Plan.
2.11. “Common Stock” means
(a) the common stock of the Company, par value $0.10 per
share, (b) 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, or (c) any successor securities to the
securities
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referenced in Section 2.11(a)
and (b) herein, in each case as adjusted as provided in
ARTICLE 9.
2.12. “Company” means Old Dominion
Freight Line, Inc., a Virginia corporation with its principal
offices at Thomasville, North Carolina, and any successor company
thereto.
2.13. “Director” means a member of
the Board of Directors.
2.14. “ Discretionary Award ” means
an Award granted to an Eligible Director pursuant to
Section 6.1(b) herein.
2.15. “Effective Date” means
May 28, 2008, the effective date of the Plan.
2.16. “Eligible Director” means a
Director who is not an Employee of the Company or an Affiliate on
the Grant Date and who is eligible to receive an Award pursuant to
ARTICLE 6 herein.
2.17. “Employee” means any person
who is an employee of the Company or any Affiliate (including
entities which become Affiliates after the Effective Date of the
Plan). For this purpose, an individual shall be considered to be an
Employee only if there exists between the individual and the
Company or an Affiliate the legal and bona fide relationship of
employer and employee.
2.18. “Exchange Act” means the
Securities Exchange Act of 1934, as amended, and any successor
statutes or regulations of similar purpose or effect.
2.19. “Fair Market Value” per share
of the Common Stock shall be established in good faith by the
Administrator and, unless otherwise determined by the
Administrator, the Fair Market Value shall be determined in
accordance with the following provisions: (a) if the shares of
Common Stock are listed for trading on the New York Stock Exchange,
the American Stock Exchange or the NASDAQ Stock Market, LLC
(“NASDAQ Stock Market”), the Fair Market Value shall be
the closing sales price per share of the shares on the New York
Stock Exchange, the American Stock Exchange or the NASDAQ Stock
Market (as applicable) on the date immediately preceding the Grant
Date, Settlement Date or other date a determination is made (such
date of determination being referred to herein as a “
valuation date ”), or, if there is no transaction on
such date, then on the trading date nearest preceding the valuation
date for which closing price information is available, and,
provided further, if the shares are not listed for trading on the
New York Stock Exchange, the American Stock Exchange or the NASDAQ
Stock Market, the Fair Market Value shall be the average between
the highest bid and lowest asked prices for such stock on the date
immediately preceding the valuation date as reported on the Nasdaq
OTC Bulletin Board Service or by the National Quotation Bureau,
Incorporated or a comparable service; or (B) if the shares of
Common Stock are not listed or reported in any of the foregoing,
then the Fair Market Value shall be determined by the Administrator
based on such valuation measures or other factors as it deems
appropriate.
2.20. “Grant Date” means the date
an Award is granted to a Participant.
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2.21. “Participant” means an
Eligible Director who has received an Award that has not been
settled, cancelled or forfeited.
2.22. “Person” means any
individual, partnership, joint venture, corporation, company, firm,
group or other entity.
2.23. “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.
2.24. “Plan” means the Old Dominion
Freight Line, Inc. Director Phantom Stock Plan, as herein set out,
or as duly amended and/or restated.
2.25. “Securities Act” means the
Securities Act of 1933, as amended, and any successor statutes or
regulations of similar purpose or effect.
2.26. “Settlement Date” means the
date on which an Award or Awards of vested shares of Phantom Stock
shall first become payable to a Participant, which date shall be
the date of the Participant’s termination of service as a
Director for any reason (including but in no way limited to
termination of service due to death or Total Disability); provided,
however, that any such termination of service shall also constitute
a “separation from service” under Code
Section 409A.
2.27. “Total Disability” means that
the Participant is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental
impairment that can be expected to result in death or can be
expected to last for a continuous period of not less than 12
months. The Administrator shall have discretion to determine
whether a Total Disability has occurred.
ARTICLE 3.
ADMINISTRATION OF THE PLAN
.
3.1. Duties and Powers of the
Administrator .
(a) The Plan shall be administered
by the Board unless the Board elects to delegate all (other than
the powers reserved for the Board in ARTICLE 12) or part of its
administrative authority to the Committee. Unless the Board
determines otherwise, the Committee shall be comprised solely of
two or more “non-employee directors,” as such term is
defined in Rule 16b-3 under the Exchange Act, or as may otherwise
be permitted under Rule 16b-3. For the purposes of the Plan, the
term “Administrator” shall refer to the Board and, upon
its delegation to the Committee of all or part of its authority to
administer the Plan, to the Committee.
(b) Subject to the provisions of the
Plan, the Administrator shall have full and final authority in its
discretion to take any action with respect to the Plan including,
without limitation, the authority (i) to determine all matters
relating to Awards, (ii) to prescribe the form or forms of
Award Agreements evidencing any Awards granted under the Plan;
(iii) to establish, amend and rescind rules and regulations
for the administration of the Plan; and (iv) to construe and
interpret the Plan, Awards and Award Agreements made under the
Plan, to interpret rules and regulations for administering the Plan
and to make all other determinations deemed
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necessary or advisable for
administering the Plan. Except to the extent otherwise required
under Code Section 409A, the Administrator shall have
authority in its discretion to accelerate or modify vesting of
Awards granted to any Participant (but not to accelerate or modify
distribution of such Awards, unless such accelerated or modified
distribution would be in compliance with Code Section 409A).
In addition to action by meeting in accordance with Applicable
Laws, any action of the Administrator with respect to the Plan may
be taken by a written instrument signed by all of the members of
the Board or Committee, as appropriate, and any such 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 held and
called. 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. No member of the Board or Committee, as
applicable, shall be liable while acting as Administrator for any
action or determination made in good faith with respect to the
Plan, an Award or an Award Agreement. The members of the Board and
the Committee, as applicable, shall be entitled to indemnification
and reimbursement in the manner provided in the Company’s
articles of incorporation and bylaws and/or under Applicable Laws.
No individual member of the Board or Committee, as applicable,
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 (provided, however, that such member may sign
unanimous written consents to resolutions adopted or other actions
taken without a meeting and may vote or decide upon matters that
apply generally to Participants, and not solely to the Director,
under the Plan).
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
make decisions with respect to technical matters regarding Plan
administration (such as determination of the Fair Market Value on
the Settlement Date or calculation of the amount of installment
payments), subject to any restrictions imposed by Applicable Laws
(including but not limited to Rule 16b-3 adopted under the Exchange
Act) and such terms and conditions as may be established by the
Administrator. To the extent that the Administrator has delegated
authority 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 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 in accordance with Applicable
Laws.
ARTICLE 4.
ELIGIBILITY . An Award
may be granted to an individual who is an Eligible Director on the
Grant Date.
ARTICLE 5.
PHANTOM STOCK SHARES SUBJECT
TO PLAN . Shares of Phantom Stock available for Awards
under this Plan shall be subject to adjustment as provided in
ARTICLE 9. Any shares of Phantom Stock subject to an Award
which, for any reason, expires, is cancelled, is
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forfeited or is otherwise terminated without
settlement with respect 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. References to shares of Common
Stock are for valuation (or similar) purposes only, and not to
grant any voting or other rights associated with ownership of
Common Stock (other than dividend equivalent rights which may be
granted pursuant to ARTICLE 8).
ARTICLE 6
. GRANT AND VESTING OF AWARDS;
FORFEITURE .
6.1. Grant of Awards . Each Eligible
Director shall be eligible to receive Annual Awards of Phantom
Stock as provided in Section 6.1(a) herein and Discretionary
Awards as provided in Section 6.1(b) herein. The grant of
Awards under the Plan shall not in any way restrict the authority
of the Company to provide other compensation to Directors, whether
through the payment of regular fees or otherwise. Each Award shall
be evidenced by an Award Agreement containing such terms and
conditions, not inconsistent with the Plan, as the Administrator
shall approve.
(a) Annual Awards : On the
fifth business day following the date of each annual meeting of the
shareholders of the
