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Exhibit 10.19
THE J.H. HEAFNER COMPANY
1997 STOCK OPTION PLAN
1. Purpose.
The purpose of the 1997 Stock Option Plan (the "Plan") of The J.H.
Heafner Company, Inc., a North Carolina 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 any of the following: (i) the
acquisition by any person or entity not controlled by the Company's stockholders
of more than 50% of the shares of the common stock of the Company, (ii) the sale
of all or substantially all of the Company's assets, (iii) the majority of the
Board of Directors of the Company consisting of persons other than any member of
the Board of Directors of the Company on the Effective Date (a "Continuing
Director") and any other member of the Board of Directors who is recommended or
elected to succeed or become a Continuing Director by a majority of Continuing
Directors who are then members of the Board of Directors of the Company, (iv) a
transaction resulting in Ann Heafner Gaither, William H. Gaither, Susan Gaither
Jones and Thomas R. Jones owning, collectively, less than 50% of the combined
voting power of the then outstanding shares of common stock of the Company, or
(v) the issuance of common stock of the Company in a public offering.
(e) "Code" means the Internal Revenue Code of 1986, as amended
from time to time.
(f) "Committee" means the committee, consisting of at least
two members of the Board, established by the Board to administer the Plan.
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(g) "Company" means The J. H. Heafner Company, Inc., a
corporation organized under the laws of the State of North Carolina, or any
successor corporation.
(h) "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.
(i) "ISO" means any Option intended to be and designated as an
incentive stock option within the meaning of Section 422 of the Code.
(j) "NQSO" means any Option not designated as an ISO.
(k) "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 may be either an ISO or an NQSO, provided
that ISOs may be granted only to employees of the Company or a Subsidiary.
(l) "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.
(m) "Plan" means this J.H. Heafner Company, Inc. 1997 Stock
Option Plan, as amended from time to time.
(n) "Stock" means the common stock, par value $.01 per share,
of the Company.
(o) "Stock Option Agreement" means any written agreement,
contract, or other instrument or document evidencing an Option.
(p) "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.
(q) "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. 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.
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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 265,000 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. 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 5% of the aggregate
number of shares of Stock reserved for awards under the Plan.
In the event that the Committee shall determine, in its sole
discretion, that any dividend or other distribution (whether in the form of
cash, Stock, or other property), recapitalization, stock split, reverse split,
any reorganization, merger, consolidation, spin-off, combination, repurchase,
share exchange, license arrangement, strategic alliance or other similar
corporate transaction or event, affects the Stock such that an adjustment is
appropriate in order to prevent dilution or enlargement of the rights of any
Optionees under the Plan, then the Committee shall make such equitable changes
or adjustments as it deems necessary or appropriate to any or all of (i) the
number and kind of shares of Stock which may thereafter be issued in connection
with Options, (ii) the number and kind of shares of Stock issued or issuable in
respect of outstanding Options, and (iii) the exercise price, grant price, or
purchase price relating to any Option; provided that, with respect to ISOs, such
adjustment shall be made in accordance with Section 424(h) of the Code.
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
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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, (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 and in no event shall the exercise price for the
purchase of shares of Stock be less than par value. 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, 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 Company an agreement in
substantially the form of Exhibit A hereto or in such other
form as the Company may reasonably require.
iv) Payment of Cash or Stock Upon Exercise. Upon
exercise of an Option, the Company may, in the sole discretion
of the Committee, either (A) issue to the Optionee the shares
of Stock subject to the Option, or (B) in lieu of issuing
Stock, pay to the Optionee in cash an amount equal to the
excess, if any, of the aggregate Fair Market Value of the
shares of Stock subject to such Option as of the close of the
fiscal year in which exercise occurs over the aggregate
exercise price of the shares of Stock purchasable under such
Option. Notwithstanding the foregoing, if at the time of
exercise of the Option, the Company has issued Stock in a
public offering it will no longer have the right to pay cash
to an Optionee in lieu of issuing Stock.
v) 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.
vi) Nontransferability. Options shall not be
transferable by an Optionee except by will or the laws of
descent and distribution and shall be exercisable during the
lifetime of an Optionee only by such Optionee.
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vii) 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, any and all Options then outstanding shall
terminate, provided that all Options granted under the Plan shall, immediately
prior to the Change in Control, become fully vested and immediately exercisable
by the Optionee. 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.
(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.
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(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
North Carolina without giving effect to the conflict of laws principles thereof.
(i) Effective Date; Plan Termination. (i) 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.
(ii) The Board may terminate the Plan at any time with 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(h) will not affect the rights and obligations
of any Optionee with respect to Options granted prior to termination.
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