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EXHIBIT 10.23
THE J.H. HEAFNER COMPANY, INC.
1997 RESTRICTED STOCK PLAN
1. Purpose.
The purpose of the 1997 Restricted Stock Plan (the "Plan") of The J.H.
Heafner Company, Inc., a North Carolina corporation (the "Company"), is to
attract and retain officers (including non-employee officers), employees,
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 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 Restricted Stock, (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) "Board" means the Board of Directors of the Company.
(c) "Cause" means (A) a Participant's conviction of any crime
or offense constituting a felony under applicable law or any other crime or
offense constituting fraud, embezzlement, theft, larceny or misappropriation,
(B) a Participant's breach or violation of the agreement between the Company and
such Participant setting forth the terms and conditions of an award of
Restricted Stock under the Plan, (C) a Participant's frequent and unjustifiable
absenteeism, other than solely by reason of illness or physical or mental
disability and (D) a Participant's willful misconduct or gross negligence in the
performance of such Participant's services to the Company or a Subsidiary, as
determined by the Board acting in its sole discretion and good faith.
(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 80% of the Company's then outstanding Stock, (ii) the sale of all
or substantially all of the Company's assets, or (iii) the merger of the Company
with or into a corporation that is not an Affiliate.
(e) "Code" means the Internal Revenue Code of 1986, as amended
from time to time.
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(f) "Committee" means the committee, consisting of at least
two member of the Board established by the Board to administer the Plan.
(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 good faith.
(i) "Participant" means any officer, employee, director or
independent contractor of the Company, a Subsidiary or an Affiliate designated
by the Committee to receive Restricted Stock under the Plan.
(j) "Plan" means this J.H. Heafner Company, Inc. 1997
Restricted Stock Plan, as amended from time to time.
(k) "Restricted Period" means the period during which shares
of Restricted Stock are subjected to forfeiture and restrictions on
transferability pursuant to Section 6 of the Plan.
(l) "Restricted Stock" means Stock granted to a Participant
pursuant to the Plan which is subject to forfeiture and restrictions on
transferability in accordance with Section 6 of the Plan.
(m) "Stock" means the common stock, par value $100 per share,
of the Company.
(n) "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.
3. Administration.
The Plan shall be administered by the Committee. The Committee shall
have the authority in its discretion, subject to and not inconsistent with the
express provisions of the Plan, to administer the Plan and to exercise all the
powers and authorities either specifically granted to it under the Plan or
necessary or advisable in the administration of the Plan, including, without
limitation, the authority to grant awards of Restricted Stock; to determine the
persons to whom and the time or times at which awards of Restricted Stock should
be granted; to determine the number of shares of Restricted Stock to be granted
and the terms, conditions and restricted relating to any awards of Restricted
Stock; to determine whether, to what extent and under what circumstances awards
of Restricted Stock may be canceled, forfeited, exchanged or surrendered; to
make adjustments in the terms and conditions of, and the criteria included in,
awards of
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Restricted Stock in recognition of unusual or non-recurring events affecting the
Company or any Subsidiary, or in response to changes in applicable laws,
regulations or accounting principles; to construe and interpret the Plan and any
awards of Restricted Stock; to prescribe, amend and rescind rules and
regulations relating to the Plan; to determine the terms and provisions of the
Restricted Stock Agreements (which need not be identical for each Participant);
and to make all other determinations deemed necessary or advisable for the
administration of the Plan.
The Committee may appoint a chairperson and a secretary and may make
such rules and regulations for the conduct of its business as it shall deem
advisable, and shall keep minutes of its meetings. All determinations of the
Committee shall be made by a majority of its members either present in person or
participating by conference telephone at a meeting or by written consent. The
Committee may delegate to one or more of its members or to one or more agents
such administrative duties as it may deem advisable, and the Committee or any
person to whom it has delegated duties as aforesaid may employ one or more
persons to render advice with respect to any responsibility the Committee or
such person may have under the Plan. All decisions, determinations and
interpretations of the Committee shall be final and binding on all persons,
including the Company and any Subsidiary or Participant (or any person claiming
any rights under the Plan from or through any Participant) and any stockholder.
No member of the Board or Committee shall be liable for any action
taken or determination made in good faith with respect to the Plan or any award
of Restricted Stock granted hereunder.
4. Granting and Establishing Terms of Awards.
The Committee shall have authority, subject to the terms of the Plan,
to determine the officers, employees, directors and independent contractors of
the Company or any Subsidiary or Affiliate eligible for awards of Restricted
Stock and those to whom Restricted Stock shall be granted, the number of shares
of Stock to be covered by each award of Restricted Stock, the time or times at
which Restricted Stock shall be granted, the terms and provisions of the
instruments by which Restricted Stock shall be evidenced; and to determine the
period of time during which restrictions on Restricted Stock shall remain in
effect. The grant of Restricted Stock to any Participant shall neither entitle
such Participant to, nor disqualify him from, participation in any other award
of Restricted Stock.
5. Stock Subject to the Plan.
The maximum number of shares of Stock reserved for the award of
Restricted Stock under the Plan shall be 250,000 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. If any shares of
Restricted Stock are forfeited, canceled, exchanged or surrendered, the shares
of Restricted Stock shall, to the extent of any such forfeiture, cancellation,
exchange, surrender, termination or expiration, again be available under the
Plan. In no event shall any Participant acquire, pursuant
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to any awards of Restricted Stock under this Plan, more than 20% 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
Participants in the Plan, then the Committee shall make such equitable changes
or adjustments as it deems necessary or appropriate to (i) the number and kind
of shares of Stock which may thereafter be issued in accordance with the Plan,
or, (ii) the number and kind of shares of Stock issued or issuable in respect of
the Plan.
6. Specific Terms of Grants of Restricted Stock.
(a) Grant of Restricted Stock. Any award made hereunder of
Restricted Stock shall be subject to the terms and conditions of the Plan and to
any other terms and conditions not inconsistent with the Plan (including, but
not limited to, requiring the Participant to pay the Company an amount equal to
at least the par value per share for each share of Restricted Stock awarded) as
shall be prescribed by the Committee in its sole discretion. The Committee may
require that, as a condition to any award of Restricted Stock under the Plan,
the Participant shall have entered into an agreement with the Company setting
forth the terms and conditions of such award and such other matters as the
Committee, in its sole discretion, shall have determined. As determined by the
Committee, the Company shall either (i) transfer or issue to each Participant to
whom an award of Restricted Stock has been made the number of shares of
Restricted Stock specified by the Committee or (ii) hold such shares of
Restricted Stock for the benefit of the Participant for the Restricted Period.
(b) Restrictions on Transferability. Shares of Restricted
Stock may not be sold, assigned, transferred, pledged, hypothecated or otherwise
encumbered by the Participant during the Restricted Period, except as
hereinafter provided.
(c) Rights as a Shareholder. Except for the restrictions set
forth herein and unless otherwise determined by the Committee, the Participant
shall have all the rights of a shareholder with respect to Restricted Stock,
including, without limitation, the right to vote and the right to receive
dividends.
(d) Lapse of Restricted Period. Unless the Committee shall
otherwise determine at the date an award of Restricted Stock is made to the
Participant, the Restricted Period shall commence upon the date of grant and
shall lapse with respect to the shares of Restricted Stock on the earlier of:
(a) the tenth anniversary of the date of grant or (b) the date of a Change of
Control, unless sooner terminated as otherwise provided herein.
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(e) Legend. Each certificate issued to a Participant in
respect of shares of Restricted Stock awarded under the Plan shall be registered
in the name of the Participant and shall bear the following (or similar) legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS AND CANNOT BE SOLD OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO REGISTRATION UNDER
SAID ACT OR IN COMPLIANCE WITH AN EXEMPTION THEREFROM.
ADDITIONALLY, THE SALE, TRANSFER, ASSIGNMENT, PLEDGE, OR
ENCUMBRANCE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE
ARE SUBJECT TO THE TERMS AND CONDITIONS OF THE J.H. HEAFNER
COMPANY, INC. 1997 RESTRICTED STOCK PLAN AND AN AGREEMENT
BETWEEN J.H. HEAFNER COMPANY, INC. AND THE HOLDER OF RECORD OF
THIS CERTIFICATE PURSUANT TO SUCH PLAN, AND NO TRANSFER OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE IN CONTRAVENTION OF
SUCH PLAN OR SUCH AGREEMENT SHALL BE VALID OR EFFECTIVE.
COPIES OF SUCH PLAN AND SUCH AGREEMENT MAY BE OBTAINED BY
WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THE
CERTIFICATE TO THE SECRETARY OF J.H. HEAFNER COMPANY, INC."
(f) Death or Termination of Employment, Etc. Unless the
Committee shall otherwise determine at the date of grant, if a Participant
ceases to be an officer of, in the employ of, a director of, or maintain an
independent contractor relationship with, the Company or any Subsidiary or
Affiliate by reason of death, the Restricted Period covering all shares of
Restricted Stock issued to such Participant under the Plan shall immediately
lapse. Except as set forth in the immediately preceding sentence, unless the
Committee shall otherwise determine at the date of grant, if a Participant
ceases to be an officer of, in the employ of, a director of, or maintain an
independent contractor relationship with, the Company or any Subsidiary or
Affiliate for any reason other than for Cause, all shares of Restricted Stock
issued to such Participant shall remain subject to the restrictions on
transferability pursuant to Section 6(b) until the lapse of the Restricted
Period pursuant to Section 6(d).
(g) Termination for Cause. Unless the Committee shall
otherwise determine at the date of grant, if a Participant's service as an
officer, employee, director or independent contractor with the Company or any
Subsidiary is terminated for Cause at any time prior to the date when the
Restricted Period lapses, all shares of Restricted Stock owned by such
Participant shall revert back to the Company upon the such termination.
(h) Issuance of New Certificates. Upon the lapse of the
Restricted Period with respect to any shares of Restricted Stock, such shares
shall no longer be subject to the restrictions
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imposed under Section 6 and the Company shall issue or have issued new share
certificates without the legend described in Section 6 in exchange for those
previously issued.
7. General Provisions.
(a) Compliance with Legal and Exchange Requirements. The Plan,
the granting and exercising of Restricted Stock thereunder, and the other
obligations of the Company under the Plan and any Restricted Stock 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 until completion of 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 Participant 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.
(b) No Right to Continued Employment, etc. Nothing in the Plan
or in any Stock granted or Restricted Stock Agreement entered into pursuant to
the Plan shall confer upon any Participant the right to continue as an officer
of, in the employ of, 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 Restricted
Stock Agreement or to interfere with or limit in any way the right of the
Company or any Subsidiary to terminate such Participant's service with the
Company, any Subsidiary or any Affiliate.
(c) Taxes. The Company, or any Subsidiary is authorized to
withhold from any payment relating to Restricted Stock under the Plan or any
other payment to a Participant, amounts of withholding and other taxes due in
connection with any transaction involving Restricted Stock, and to take such
other action as the Committee may deem advisable to enable the Company and a
Participant to satisfy obligations for the payment of withholding taxes and
other tax obligations relating to Restricted Stock. This authority shall include
authority to withhold or receive Stock or other property and to make cash
payments in respect thereof in satisfaction of a Participant's tax obligations.
(d) Amendment and Termination of the Plan. The Board or
Committee may terminate the Plan, in whole or in part, may suspend the Plan, in
whole or in part from time to time, and may amend the Plan from time to time,
including the adoption of amendments deemed necessary or desirable to qualify
the grants of Restricted Stock under the laws of various states (including tax
laws), or to correct any defect or supply an omission or reconcile any
inconsistency in the Plan or in any grant of Restricted Stock thereunder,
without the approval of the shareholders of the Company; provided, however, that
no action shall be taken without the approval of the shareholders of the Company
to increase the number of shares of Stock that may be awarded hereunder,
increase the benefits accruing to Participants under the Plan, change the
requirements as to eligibility to participate in the Plan, withdraw
administration from the Committee, or permit any person while a member of the
Committee to be eligible to receive or
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hold a grant of Restricted Stock under the Plan. No amendment or termination or
modification of the Plan shall in any manner affect grants of Restricted Stock
without the consent of the Participants, unless the Committee has made a
determination that an amendment or modification is in the best interest of all
persons to whom grants have been made. The Plan shall terminate when all shares
of Stock subject to awards of Restricted Stock under the Plan have been issued
and are no longer subject to forfeiture under the terms hereof unless earlier
terminated by the Board or the Committee.
(e) No Rights to Stock. No Participant shall have any claim to
be granted any Restricted Stock under the Plan, and there is no obligation for
uniformity of treatment of Participants.
(f) Governing Law. The Plan and all determinations made and
actions taken pursuant hereto shall be governed by the laws of the State of New
York without giving effect to the conflict of laws principles thereof.
(g) Effective Date. The Plan shall take effect upon its
adoption by the Board (the "Effective Date"), but the Plan (and any grants of
Restricted Stock 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 Effective Date. In the absence
of such approval, such grant of Restricted Stock shall be null and void.
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