Exhibit 4.3
SWIFT TRANSPORTATION CO., INC.
1999 STOCK OPTION PLAN
(as amended through June 7, 2000)
1. PURPOSE OF THE PLAN. The purposes of this Swift Transportation Co., Inc.
1999 Stock Option Plan are to attract and retain the best available personnel
for positions of substantial responsibility, to provide successful management of
the Company's business, to provide additional incentive to certain key employees
of the Company, and to promote the success of the Company's business through the
grant of options to purchase shares of the Company's Common Stock.
Options granted hereunder may be either "Incentive Stock Options," as
defined in Section 422 of the Code, or "Non-Statutory Stock Options," at the
discretion of the Board and as reflected in the terms of the written option
agreement.
2. DEFINITIONS. As used herein, the following definitions shall apply:
(a) "BOARD" shall mean the Board of Directors of the Company or the
Committee, if one has been appointed.
(b) "CODE" shall mean the Internal Revenue Code of 1986, as amended,
and the rules and regulations promulgated thereunder.
(c) "COMMON STOCK" shall mean the common stock of the Company described
in the Company's Certificate of Incorporation, as amended.
(d) "COMPANY" shall mean Swift Transportation Co., Inc., a Nevada
corporation, and shall include any parent or subsidiary corporation of the
Company as defined in Section 424(e) and (f) of the Code.
(e) "COMMITTEE" shall mean the Committee appointed by the Board in
accordance with Section 4(a) of the Plan, if one is appointed.
(f) "EMPLOYEE" shall mean any person, including officers and directors,
employed by the Company. The payment of a director's fee by the Company shall
not be sufficient to constitute "employment" by the Company.
(g) "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
(h) "FAIR MARKET VALUE" shall mean, with respect to the date a given
Option is granted or exercised, the value of the Common Stock determined by the
Board in such manner as it may deem equitable for Plan purposes but, in the case
of an Incentive Stock Option, no less than is required by applicable laws or
regulations; provided, however, that where there is a public market for the
Common Stock, the Fair Market Value per Share shall mean, in the event the stock
is listed or admitted to trading on the National Association of Securities
Dealers Automated Quotation--National Market System, New York Stock Exchange or
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the American Stock Exchange, the closing price of the Common Stock on such
exchange on the date of grant as reported in THE WALL STREET JOURNAL, or, if the
Common Stock is not listed or admitted to trading on any such exchange, the last
quoted price or, if not quoted, the average of the closing bid and asked prices
as reported by National Association of Securities Dealers Automated Quotation
(NASDAQ), or such other system then in use, or if the Common Stock is not quoted
by any such organization, the average of the closing bid and asked prices in the
over-the-counter market as furnished by any New York Stock Exchange member firm
selected from time to time by the Company for that purpose.
(i) "INCENTIVE STOCK OPTION" shall mean an Option which is intended to
qualify as an incentive stock option within the meaning of Section 422 of the
Code.
(j) "NON-EMPLOYEE DIRECTOR" means a member of the Board who qualifies
as a "Non-Employee Director" as defined in Rule 16b-3(b)(3) of the Exchange Act,
or any successor definition adopted by the Board.
(k) "OPTION" shall mean a stock option granted under the Plan.
(l) "OPTIONED STOCK" shall mean the Common Stock subject to an Option.
(m) "OPTIONEE" shall mean an Employee of the Company who has been
granted one or more Options.
(n) "PARENT" shall mean a "parent corporation," whether now or
hereafter existing, as defined in Section 424(e) of the Code.
(o) "PLAN" shall mean this Swift Transportation Co., Inc. 1999 Stock
Option Plan.
(p) "SHARE" shall mean a share of the Common Stock, as adjusted in
accordance with Section 11 of the Plan.
(q) "STOCK OPTION AGREEMENT" shall mean the written Agreement
evidencing the grant of an Option, in substantially the form of APPENDIX A or
APPENDIX B hereto.
(r) "SUBSIDIARY" shall mean a "subsidiary corporation," whether now or
hereafter existing, as defined in Section 424(f) of the Code.
(s) "TAX DATE" shall mean the date an Optionee is required to pay the
Company an amount with respect to tax withholding obligations in connection with
the exercise of an Option.
3. COMMON STOCK SUBJECT TO THE PLAN.
(a) NUMBER OF SHARES. Subject to the provisions of Section 11 of the
Plan, the maximum aggregate number of shares which may be optioned and sold
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under the Plan is 2,250,000 Shares of Common Stock. The Shares may be
authorized, but unissued, or previously issued Shares acquired or to be acquired
by the Company and held in treasury.
(b) LAPSED OPTIONS. If an Option should expire or become unexercisable
for any reason without having been exercised in full, the unpurchased Shares
covered by such Option shall, unless the Plan shall have been terminated, be
available for future grants of Options.
(c) LIMITATION ON NUMBER OF SHARES SUBJECT TO OPTIONS. Notwithstanding
any provision in the Plan to the contrary, and subject to the adjustment in
Section 11, the maximum number of shares of Stock with respect to one or more
Options that may be granted to any one individual during the Company's fiscal
year is 100,000.
4. ADMINISTRATION OF THE PLAN.
(a) PROCEDURE.
(i) The Plan shall be administered by the Board in accordance with
Securities and Exchange Commission Rule 16b-3 ("Rule 16b-3"); provided, however,
that the Board may appoint a Committee to administer the Plan at any time or
from time to time. If the Board appoints a Committee, the Committee shall
consist of at least two individuals, each of whom qualifies as (i) a
Non-Employee Director, and (ii) an "outside director" under Code Section 162(m)
and the regulations issued thereunder. Reference to the Committee shall refer to
the Board if the Board does not appoint a Committee.
(ii) Once appointed, the Committee shall continue to serve until
otherwise directed by the Board. From time to time the Board may increase the
size of the Committee and appoint additional members thereof, remove members
(with or without cause), and appoint new members in substitution therefor, fill
vacancies however caused, or remove all members of the Committee and thereafter
directly administer the Plan.
(b) POWERS OF THE BOARD. Subject to the provisions of the Plan, the
Board shall have the authority, in its discretion: (i) to grant Incentive Stock
Options, in accordance with Section 422 of the Code and to grant "Non-Statutory
Stock Options;" (ii) to determine, upon review of relevant information and in
accordance with Section 2 of the Plan, the Fair Market Value of the Common
Stock; (iii) to determine the exercise price per Share of Options to be granted,
which exercise price shall be determined in accordance with Section 8(a) of the
Plan; (iv) to determine the Employees to whom, and the time or times at which
Options shall be granted and the number of shares to be represented by each
Option; (v) to interpret the Plan; (vi) to prescribe, amend and rescind rules
and procedures relating to the Plan; (vii) to determine the terms and provisions
of each Option granted (which need not be identical) and, with the consent of
the Optionee thereof, modify or amend each Option; (viii) to accelerate or defer
(with the consent of the Optionee) the exercise date of any Option; (ix) to
authorize any person to execute on behalf of the Company any instrument required
to effectuate the grant of an Option previously granted by the Board; (x) to
accept or reject the election made by an Optionee pursuant to Section 17 of the
Plan; and (xi) to make all other determinations deemed necessary or advisable
for the administration of the Plan.
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(c) EFFECT OF BOARD'S DECISION. All decisions, determinations and
interpretations of the Board shall be final and binding on all Optionees and any
other holders of any Options granted under the Plan.
5. ELIGIBILITY.
(a) GENERAL. Consistent with the Plan's purposes, Options may be
granted only to key Employees of the Company as determined by the Board. An
Employee who has been granted an Option may, if he is otherwise eligible, be
granted an additional Option or Options. Incentive Stock Options may be granted
only to those Employees who meet the requirements applicable under Section 422
of the Code. Notwithstanding anything contained herein to the contrary, Jerry
Moyes shall not be eligible to participate in this Plan.
(b) INCENTIVE STOCK OPTIONS. With respect to Incentive Stock Options
granted under the Plan, the aggregate Fair Market Value (determined at the time
the Incentive Stock Option is granted) of the Common Stock with respect to which
Incentive Stock Options are exercisable for the first time by the Employee
during any calendar year (under all plans of the Company and its Parent and
Subsidiary corporations) shall not exceed One Hundred Thousand Dollars
($100,000). To the extent that Incentive Stock Options are first exercisable by
an Employee in excess of such limitation, the excess shall be considered
Non-Statutory Stock Options.
(c) NO RIGHT TO CONTINUED EMPLOYMENT. The Plan shall not confer upon
any Optionee any right with respect to continuation of employment with the
Company, nor shall it interfere in any way with his right or the Company's right
to terminate his employment at any time.
6. SHAREHOLDER APPROVAL AND EFFECTIVE DATES. The Plan shall take effect on
May 20, 1999, the date on which the Board and all stockholders approve the Plan.
No Option may be granted after May 20, 2009 (ten years from the effective date
of the Plan); provided, however, that the Plan and all outstanding Options shall
remain in effect until such Options have expired or until such Options are
canceled.
7. TERM OF OPTION. Unless otherwise provided in the Stock Option Agreement,
the term of each Incentive Stock Option shall be five (5) years from the date of
grant thereof. In no case shall the term of any Incentive Stock Option exceed
ten (10) years from the date of grant. Unless otherwise provided in the Stock
Option Agreement, the term of each Option which is not an Incentive Stock Option
shall be ten years from the date of grant. Notwithstanding the above, in the
case of an Incentive Stock Option granted to an Employee who, at the time the
Incentive Stock Option is granted, owns ten percent (10%) or more of the Common
Stock as such amount is calculated under Section 422(b)(6) of the Code ("Ten
Percent Shareholder"), the term of the Incentive Stock Option shall be five (5)
years from the date of grant thereof or such shorter time as may be provided in
the Stock Option Agreement.
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8. EXERCISE PRICE AND PAYMENT.
(a) EXERCISE PRICE. The per Share exercise price for the Shares to be
issued pursuant to exercise of an Option shall be determined by the Board, but
in the case of an Incentive Stock Option shall be no less than one hundred
percent (100%) of the Fair Market Value per Share on the date of grant;
provided, further, that in the case of an Incentive Stock Option granted to an
Employee who, at the time of the grant of such Incentive Stock Option, is a Ten
Percent Shareholder, the per Share exercise price shall be no less than one
hundred ten percent (110%) of the Fair Market Value per Share on the date of
grant. In no event may the exercise price in the case of a Non-Statutory Stock
Option be less than eighty-five (85%) of the Fair Market Value per share on the
date of grant.
(b) PAYMENT. The price of an exercised Option and any taxes
attributable to the delivery of Common Stock under the Plan, or portion thereof,
shall be paid:
(i) In United States dollars in cash or by check, bank draft or
money order payable to the order of the Company; or
(ii) At the discretion of the Board, through the delivery of
shares of Common Stock (either actual tender or attestation), with an aggregate
Fair Market Value equal to the option price, provided that such shares of Common
Stock have been held by the Employee at least six months prior to the date of
delivery; or
(iii) By a combination of (i) and (ii) above.
The Board shall determine acceptable methods for tendering
Common Stock as payment upon exercise of an Option and may impose
such limitations and prohibitions on the use of Common Stock to
exercise an Option as it deems appropriate. With respect to
Non-Statutory Stock Options, at the election of the Optionee
pursuant to Section 17, the Company may satisfy its withholding
obligations by retaining such number of Shares of Common Stock
subject to the exercised Option which have an aggregate Fair
Market Value on the exercise date equal to the Company's
aggregate federal, state, local and foreign tax withholding and
FICA and FUTA obligations with respect to income generated by the
exercise of the Option by Optionee.
9. EXERCISE OF OPTION.
(a) PROCEDURE FOR EXERCISE; RIGHTS AS A SHAREHOLDER. Any Option granted
hereunder shall be exercisable at such times and under such conditions as
determined by the Board, including performance criteria with respect to the
Company and/or the Optionee, and as shall be permissible under the terms of the
Plan. Unless otherwise determined by the Board at the time of grant, an Option
may be exercised in whole or in part. An Option may not be exercised for a
fraction of a Share.
An Option shall be deemed to be exercised when written
notice of such exercise has been given to the Company in
accordance with the terms of the Option by the person entitled to
exercise the Option and full payment for the Shares with respect
to which the Option is exercised has been received by the
Company. Full payment may, as authorized by the Board, consist of
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any consideration and method of payment allowable under Section
8(b) of the Plan. Until the issuance (as evidenced by the
appropriate entry on the books of the Company or of a duly
authorized transfer agent of the Company) of the stock
certificate evidencing such Shares, no right to vote or receive
dividends or any other rights as a shareholder shall exist with
respect to the Optioned Stock, notwithstanding the exercise of
the Option. No adjustment will be made for a dividend or other
right for which the record date is prior to the date the stock
certificate is issued, except as provided in Section 11 of the
Plan.
Exercise of an Option in any manner shall result in a
decrease in the number of Shares which thereafter may be
available, both for purposes of the Plan and for sale under the
Option by the number of Shares as to which the Option is
exercised.
Notwithstanding anything contained in this Plan to the
contrary, the Board may establish certain restrictions on the
times at which an Option may be exercised after a number of
elapsed years together with cumulative exercise rights and may
retain certain rights with respect to a fixed repurchase price
for the Option Stock if the Employee voluntarily terminates his
employment with the Company within a certain period of time after
exercising the Option or whose employment is involuntarily
terminated for gross misconduct, fraud, embezzlement, theft,
breach of any fiduciary duty owed to the Company or for
nonperformance of duties.
(b) TERMINATION OF STATUS AS AN EMPLOYEE. Unless otherwise provided in
an Option Agreement relating to an Option that is not an Incentive Stock Option,
if an Employee's employment by the Company is terminated, except if such
termination is voluntary or occurs due to retirement with the consent of the
Board, death or disability, the Option, to the extent not exercised, shall cease
on the date on which Employee's employment by the Company is terminated. If an
Employee's termination is voluntary or occurs due to retirement with the consent
of the Board, then the Employee may, but only within thirty (30) days (or such
other period of time not exceeding three (3) months as is determined by the
Board) after the date he ceases to be an Employee of the Company, exercise his
Option to the extent that he was entitled to exercise it at the date of such
termination, but not later than the expiration of the term of the Option. To the
extent that he was not entitled to exercise the Option at the date of such
termination, or if he does not exercise such Option (which he was entitled to
exercise) within the time specified herein, the Option shall terminate.
(c) DISABILITY. Unless otherwise provided in an Option Agreement
relating to an Option that is not an Incentive Stock Option, notwithstanding the
provisions of Section 9(b) above, in the event an Employee is unable to continue
his employment with the Company as a result of his permanent and total
disability (as defined in Section 22(e)(3) of the Code), he may, but only within
three (3) months (or such other period of time not exceeding twelve (12) months
as it is determined by the Board) from the date of termination, exercise his
Option to the extent he was entitled to exercise it at the date of such
termination, but not later than the expiration of the term of the Option. To the
extent that he was not entitled to exercise the Option at the date of
termination, or if he does not exercise such Option (which he was entitled to
exercise) within the time specified herein, the Option shall terminate.
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(d) DEATH OF OPTIONEE. Unless otherwise provided in an Option Agreement
relating to an Option that is not an Incentive Stock Option, if Optionee dies
during the term of the Option and is at the time of his death an Employee of the
Company who shall have been in continuous status as an Employee since the date
of grant of the Option, the Option may be exercised at any time within one (1)
year following the date of death (or such other period of time as is determined
by the Board), by the Optionee's estate or by a person who acquired the right to
exercise the Option by bequest or inheritance, but only to the extent that
Optionee was entitled to exercise the Option on the date of death and not later
than the expiration of the term of the Option. To the extent that decedent was
not entitled to exercise the Option on the date of death, or if the Optionee's
estate, or person who acquired the right to exercise the Option by bequest or
inheritance, does not exercise such Option (which he was entitled to exercise)
within the time specified herein, the Option shall terminate.
10. NON-TRANSFERABILITY OF OPTION. Except as otherwise provided by the
Committee, an Option may not be sold, pledged, assigned, hypothecated,
transferred, or disposed of in any manner other than by will or by the laws of
descent or distribution and may be exercised, during the lifetime of the
Optionee, only by the Optionee or by his guardian or legal representative.
11. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR MERGER. Subject to any
required action by the shareholders of the Company, the number of shares of
Common Stock covered by each outstanding Option, and the number of shares of
Common Stock which have been authorized for issuance under the Plan but as to
which no Options have yet been granted or which have been returned to the Plan
upon cancellation or expiration of an Option, as well as the price per share of
Common Stock covered by each such outstanding Option, shall be proportionately
adjusted for any increase or decrease in the number of issued shares of Common
Stock resulting from a stock split, reverse stock split, consolidation,
subdivision, stock dividend, combination or reclassification of the Common
Stock, or any other increase or decrease in the number of issued shares of
Common Stock effected without receipt of consideration by the Company; provided,
however, that conversion of any convertible securities of the Company shall not
be deemed to have been "effected without receipt of consideration." Such
adjustment shall be made by the Board, whose determination in that respect shall
be final, binding and conclusive. Except as expressly provided herein, no
issuance by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class shall affect, and no adjustment by
reason thereof, shall be made with respect to the number or price of shares of
Common Stock subject to an Option.
In the event of a proposed dissolution or liquidation of the Company or the
proposed sale of all or substantially all of the assets of the Company, or the
merger of the Company with or into another corporation, all outstanding Options,
will become fully vested and exercisable except in the event that the surviving
or resulting entity agrees to assume the Options on terms and conditions that
substantially preserve the Optionee's rights and benefits of the Option then
outstanding. To the extent that this provision causes Incentive Stock Options to
exceed the dollar limitation set forth in Section 5(b), the excess Options will
be deemed to be non-qualified stock options. Upon, or in anticipation of, such
an event, the Committee may cause every Option outstanding hereunder to
terminate at a specific time in the future and will give each Optionee the right
to exercise Options during a period of time as the Committee, in its sole and
absolute discretion, will determine, except in the event that the surviving or
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resulting entity agrees to assume the Options on terms and conditions that
substantially preserve the Optionee's rights and benefits of the Options then
outstanding.
12. TIME OF GRANTING OPTIONS. The date of grant of an Option shall, for all
purposes, be the date on which the Board makes the determination granting such
Option. Notice of the determination shall be given to each Employee to whom an
Option is so granted within a reasonable time after the date of such grant.
13. AMENDMENT AND TERMINATION OF THE PLAN.
(a) AMENDMENT AND TERMINATION. The Board, or the Committee with the
Board's approval, may amend or terminate the Plan from time to time in such
respect as the Board may deem advisable; provided, however, that to the extent
necessary and desirable to comply with any applicable law, regulation, or stock
exchange rule, the Company shall obtain shareholder approval of any Plan
amendment in such a manner and to such a degree as required.
(b) EFFECT OF AMENDMENT OR TERMINATION. Any such amendment or
termination of the Plan shall not affect Options already granted and such
Options shall remain in full force and effect as if this Plan had not been
amended or terminated, unless mutually agreed otherwise between the Optionee and
the Board, which agreement must be in writing and signed by the Optionee and the
Company.
14. CONDITIONS UPON ISSUANCE OF SHARES. Shares shall not be issued pursuant
to the exercise of an Optionee unless the exercise of such Option and the
issuance and delivery of such Shares pursuant thereto shall comply with all
relevant provisions of law, including, without limitation, the Securities Act of
1933, as amended, the Exchange Act, the rules and regulations promulgated
thereunder, and the requirements of any stock exchange upon which the Share may
then be listed, and shall be further subject to the approval of counsel for the
Company with respect to such compliance.
As a condition to the exercise of an Option, the Company may require the
person exercising such Option to represent and warrant at the time of any such
exercise that the Shares are being purchased only for investment and without any
present intention to sell or distribute such Shares if, in the opinion of
counsel for the Company, such a representation is required by any of the
aforementioned relevant provisions of law.
Inability of the Company to obtain authority from any regulatory body
having jurisdiction, which authority is deemed by the Company's counsel to be
necessary to the lawful issuance and sale of any Shares hereunder, shall relieve
the Company of any liability in respect of the failure to issue or sell such
Shares as to which such requisite authority shall not have been obtained.
In the case of an Incentive Stock Option, any Optionee who disposes of
Shares of Common Stock acquired on the exercise of an Option by sale or exchange
(a) either within two (2) years after the date of the grant of the Option under
which the Common Stock was acquired or (b) within one (1) year after the
acquisition of such Shares of Common Stock shall notify the Company of such
disposition and of the amount realized upon such disposition.
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15. RESERVATION OF SHARES. The Company, during the term of this Plan, will
at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
16. OPTION AGREEMENT. Options shall be evidenced by written Stock Option
Agreement in such form as the Board shall approve.
17. WITHHOLDING TAXES. Subject to Section 4(b)(x) of the Plan and prior to
the Tax Date, the Optionee may make an irrevocable election to have the Company
withhold from those Shares that would otherwise be received upon the exercise of
any Non-Statutory Stock Option, a number of Shares having a Fair Market Value
equal to the minimum amount necessary to satisfy the Company's federal, state,
local and foreign tax withholding obligations and FICA and FUTA obligations with
respect to the exercise of such Option by the Optionee.
An Optionee who is also an officer of the Company must make the
above-described election:
(a) at least six months after the date of grant of the Option (except
in the event of death or disability); and
(b) either:
(i) six months prior to the Tax Date, or
(ii) prior to the Tax Date and during the period beginning on the
third business day following the date the Company releases its quarterly or
annual statement of sales and earnings and ending on the twelfth business day
following such date.
18. MISCELLANEOUS PROVISIONS
(a) PLAN EXPENSES. Any expenses of administering this Plan shall be
borne by the Company.
(b) USE OF EXERCISE PROCEEDS. The payment received from Optionees from
the exercise of Options shall be used for the general corporate purposes of the
Company.
(c) CONSTRUCTION OF PLAN. The place of administration of the Plan shall
be in the State of Arizona, and the validity, construction, interpretation,
administration and effect of the Plan and of its rules and regulations, and
rights relating to the Plan, shall be determined in accordance with the laws of
the State of Nevada and in accordance with the Code.
(d) INDEMNIFICATION. In addition to such other rights of
indemnification as they may have as members of the Board, the members of the
Board shall be indemnified by the Company against all costs and expenses
reasonably incurred by them in connection with any action, suit or proceeding to
which they or any of them may be a party by reason of any action taken or
failure to act under or in connection with the Plan or any Option, and against
all amounts paid by them in settlement thereof (provided such settlement is
approved by independent legal counsel selected by the Company) or paid by them
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in satisfaction of a judgment in any such action, suit or proceeding, except a
judgment based upon a finding of bad faith; provided that upon the institution
of any such action, suit or proceeding a Board member shall, in writing give the
Company notice thereof and an opportunity, at its own expense, to handle and
defend the same before such Board member undertakes to handle and defend it on
his own behalf.
(e) GENDER. For purposes of this Plan, words used in the masculine
gender shall include the feminine and neuter, and the singular shall include the
plural and vice versa, as appropriate.
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APPENDIX A
NON-STATUTORY STOCK OPTION AGREEMENT
BY THIS STOCK OPTION AGREEMENT ("Agreement") made and entered into this
_____ day of __________, _____ ("Grant Date"), SWIFT TRANSPORTATION CO., INC., a
Nevada corporation (the "Company"), and ___________________, a key employee of
the Company (the "Optionee") hereby state, confirm, represent, warrant and agree
as follows:
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RECITALS
1.1 The Company, through its Board of Directors (the "Board"), has
determined that in order to attract and retain the best available personnel for
positions of substantial responsibility to provide successful management of the
Company's business, it must offer a compensation package that provides key
employees of the Company a chance to participate financially in the success of
the Company by developing an equity interest in it.
1.2 As part of the compensation package, the Company has adopted the Swift
Transportation Co., Inc. 1999 Stock Option Plan (the "Plan") effective as of May
20, 1999.
1.3 Shareholders of the Company have adopted and approved the Plan on May
20, 1999.
1.4 By this Agreement, the Company and the Optionee desire to establish the
terms upon which the Company is willing to grant to the Optionee, and upon which
the Optionee is willing to accept from the Company, an option to purchase shares
of common stock of the Company ("Common Stock").
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AGREEMENTS
2.1 GRANT OF NON-STATUTORY STOCK OPTION. Subject to the terms and
conditions hereinafter set forth and those provisions set forth and those
contained in the Plan, the Company grants to the Optionee the right and option
(the "Option") to purchase from the Company all or any part of an aggregate
number of _____________ (_____) shares of Common Stock, authorized but unissued
or, at the option of the Company, treasury stock if available (the "Optioned
Shares").
2.2 EXERCISE OF OPTION. Subject to the terms and conditions of this
Agreement and those of the Plan, the Option may be exercised only by completing
and signing a written notice in substantially the following form:
I hereby exercise the Option granted to me by Swift Transportation Co.,
Inc. and elect to purchase __________ shares of $.001 par value Common
Stock of Swift Transportation Co., Inc. for the purchase price to be
determined under Paragraph 2.3 of this Stock Option Agreement.
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2.3 PURCHASE PRICE. The price to be paid for the Optioned Shares (the
"Purchase Price") shall be $______________ per share.
2.4 PAYMENT OF PURCHASE PRICE. Payment of the Purchase Price shall be made
as follows:
(a) In United States dollars in cash or by check, bank draft or money
order payable to the Company, or
(b) At the discretion of the Board, through the delivery of shares of
Common Stock with an aggregate fair market value at the date of such delivery,
equal to the Purchase Price, or
(c) By a combination of both (a) and (b) above.
The Board shall determine acceptable methods for rendering Common Stock as
payment upon exercise of an Option and may impose such limitations and
conditions on the use of Common Stock to exercise an Option as it deems
appropriate. At the election of the Optionee pursuant to Section 17 of the Plan,
and subject to the acceptance of such election by the Board, to satisfy the
Company's withholding obligations, it may retain such number of shares of Common
Stock subject to the exercised Option which have an aggregate Fair Market Value
(as defined in the Plan) on the date of exercise equal to the Company's
aggregate federal, state, local and foreign tax withholding and FICA and FUTA
obligations with respect to income generated by the exercise of the Option by
Optionee.
2.5 EXERCISABILITY OF OPTION. Subject to the provisions of Paragraph 2.6,
and except as otherwise provided in Paragraphs 2.8 and 2.9, the Option may be
exercised by the Optionee while in the employ of Company which shall include any
parent ("Parent") or subsidiary ("Subsidiary") corporation of the Company as
defined in Sections 425(e) and (f), respectively, of the Internal Revenue Code
of 1986, as amended ("Code"), in whole or in part from time to time, but only in
accordance with the following schedule:
CUMULATIVE PERCENTAGE OF
ELAPSED NUMBER OF YEARS SHARES SUBJECT TO OPTIONS AS TO
AFTER GRANT DATE WHICH OPTION MAY BE EXERCISED
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0-4 None
5 20%
6 40%
7 60%
8 80%
9 100%
For purposes of the foregoing schedule, a year is measured from the grant date
to the anniversary of the grant date and between anniversary dates thereof.
2.6 TERMINATION OF OPTION. Except as otherwise provided herein, the Option,
to the extent not heretofore exercised, shall terminate upon the first to occur
of the following dates:
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(a) The date on which the Optionee's employment by the Company is
terminated except if such termination is voluntary, or occurs due to retirement
with the consent of the Board, death or disability within the meaning of Section
22(e)(3) of the Code;
(b) Thirty (30) days after voluntary termination or termination due to
retirement with the consent of the Board;
(c) Six (6) months afar termination due to disability within the
meaning of Section 22(e)(3) of the Code;
(d) One (1) year after the Optionee's death; or
(e) __________________, (being the expiration of a term equal to or
less than ten (10) years from the Grant Date).
2.7 ADJUSTMENTS. In the event of any stock split, reverse stock split,
stock divided, combination or reclassification of shares of Common Stock or any
other increase or decrease in the number of issued shares of Common Stock, the
number and kind of Optioned Shares (including any Option outstanding after
termination of employment or deal) and the Purchase Price per share shall be
proportionately and appropriately adjusted without any change in the aggregate
Purchase Price to be paid therefor upon exercise of the Option. The
determination by the Board as to the terms of any of the foregoing adjustments
shall be conclusive and binding.
2.8 LIQUIDATION, SALE OF ASSETS OR MERGER. In the event of a proposed
dissolution or liquidation of the Company, the Option will terminate immediately
prior to the consummation of such proposed action, unless otherwise provided by
the Board. In the event of a proposed sale of all or substantially all of the
assets of the Company, or the merger of the Company with or into another
corporation, the option shall be assumed or an equivalent option shall be
substituted by such successor corporation, unless the Board determines that the
Optionee shall have the right to exercise the Option as to all of the Common
Stock subject to the Option. If the Board makes an Option fully exercisable, the
Board shall notify the Optionee that the Option shall be fully exercisable for a
period of thirty (30) days from the date of such notice (but not later than the
expiration of the Option term under Paragraph 2.6), and the Option will
terminate upon the expiration of such period. In the event the thirtieth (30th)
day referred to in this Paragraph shall fall on a day that is not a business
day, then the thirtieth (30th) day shall be the next following business day.
2.9 ACQUISITION. If any person, corporation or other entity or group
thereof (the "Acquiror"), acquires (an "Acquisition"), other than by merger or
consolidation or purchase from the Company, the beneficial ownership (as that
term is used in Section 13(d)(1) of the Securities Exchange Act of 1934 and the
rules and regulations promulgated thereunder) or shares of the Company's common
stock which, when added to any other shares the beneficial ownership of which is
held by the Acquiror, shall have more than 50% of the votes that are entitled to
be cast at meetings of shareholders, any portion of the Option that was not
currently exercisable pursuant to Section 2.5 prior to the date of the
Acquisition shall become immediately exercisable and the Optionee may elect,
during the period commencing on the date of the Acquisition and ending at the
close of business on the thirtieth (30th) day following the date of the
Acquisition (but not later than the expiration of the Option term under
Paragraph 2.6), to exercise the Option in whole or in part. In the event the
thirtieth (30th) day referred to in this Section shall fall on a day that is not
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<PAGE>
a business day, then the thirtieth (30th) day shall be deemed to be the next
following business day.
2.10 NOTICES. Any notice to be given under the terms of the Agreement
("Notice") shall be addressed to the Company in care of its secretary at 2200
South 75th Avenue, Phoenix, Arizona 85043, or at its then current corporate
headquarters. Notice to be given to the Optionee shall be addressed to him or
her at his or her then current residential address as appearing on the payroll
records.
Notice shall be deemed duly given when enclosed in a properly sealed
envelope and deposited by certified mail, return receipt requested, in a post
office or branch post office regularly maintained by the United States
Government.
2.11 TRANSFERABILITY OF OPTION. The Option shall not be transferable by the
Optionee otherwise than by the will or the laws of descent and distribution, and
may be exercised during the life of the Optionee only by the Optionee.
2.12 OPTIONEE NOT A SHAREHOLDER. The Optionee shall not be deemed for any
purposes to be a shareholder of the Company with respect to any of the Optioned
Shares except to the extent that the Option herein granted shall have been
exercised with respect thereto and a stock certificate issued therefor.
2.13 DISPUTES OR DISAGREEMENTS. As a condition of the granting of the
Option herein granted, the Optionee agrees, for himself and his personal
representatives, that any disputes or disagreement which may arise under or as a
result of or pursuant to this Agreement shall be determined by the Board in its
sole discretion, and that any interpretation by the Board of the terms of this
Agreement shall be final, binding and conclusive.
2.14 RIGHT TO REPURCHASE. In the event that:
(a) Optionee voluntarily terminates employment with the Company or if
Optionee's employment is involuntarily terminated for nonperformance of duties
and if Optionee subsequently becomes a sole proprietor, partner, stockholder,
officer, director, employee, independent contractor or consultant of or to any
business which is engaged in the contract of common carriage of goods; or
(b) if Optionee's employment is involuntarily terminated for gross
misconduct, fraud, embezzlement, theft or breach of any fiduciary duty owed to
the Company (the "Triggering Event"), then the Board, at its discretion may
elect to repurchase from Optionee Optioned Shares for which an Option was
granted to and exercised by Optionee, for the Purchase Price paid by Optionee
under Paragraph 2.3, if such Triggering Event occurs any time within five years
after the Option for such Optioned Shares has been exercised by Optionee. The
Company shall exercise its rights hereunder by written notification to the
Optionee to be given within 180 days after the Board becomes aware of the
Triggering Event.
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<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be executed
by its duly authorized officer, and the Optionee has hereunto affixed his or her
signature.
SWIFT TRANSPORTATION CO., INC., a
Nevada corporation
By:
---------------------------------------
Its: President
-------------------------------------------
"OPTIONEE"
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<PAGE>
APPENDIX B
INCENTIVE STOCK OPTION AGREEMENT
BY THIS INCENTIVE STOCK OPTION AGREEMENT ("Agreement") made and entered
into this _____ day of __________, _____ ("Grant Date"), SWIFT TRANSPORTATION
CO., INC., a Nevada corporation (the "Company"), and _______________, a key
employee of the Company (the "Optionee") hereby state, confirm, represent,
warrant and agree as follows:
I
RECITALS
1.1 The Company, through its Board of Directors (the "Board"), has
determined that in order to attract and retain the best available personnel for
positions of substantial responsibility to provide successful management of the
Company's business, it must offer a compensation package that provides key
employees of the Company a chance to participate financially in the success of
the Company by developing an equity interest in it.
1.2 As part of the compensation package, the Company had adopted the Swift
Transportation Co., Inc. 1999 Stock Option Plan (the "Plan") effective as of May
20, 1999.
1.3 Shareholders of the Company have adopted and approved the Plan on May
20, 1999.
1.4 By this Agreement, the Company and the Optionee desire to establish the
terms upon which the Company is willing to grant to the Optionee, and upon which
the Optionee is willing to accept from the Company, an option to purchase shares
of common stock of the Company ("Common Stock").
II
AGREEMENTS
2.1 GRANT OF INCENTIVE STOCK OPTION. Subject to the terms and conditions
hereinafter set forth and those provisions set forth and those contained in the
Plan, the Company grants to the Optionee the right and option (the "Option") to
purchase from the Company all or any part of an aggregate number of
_____________ (_____) shares of Common Stock, authorized but unissued or, at the
option of the Company, treasury stock if available (the "Optioned Shares").
2.2 EXERCISE OF OPTION. Subject to the terms and conditions of this
Agreement and those of the Plan, the Option may be exercised only by completing
and signing a written notice in substantially the following form:
I hereby exercise the Option granted to me by Swift Transportation Co.,
Inc. and elect to purchase __________ shares of $.001 par value Common
Stock of Swift Transportation Co., Inc. for the purchase price to be
determined under Paragraph 2.3 of this Stock Option Agreement.
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<PAGE>
2.3 PURCHASE PRICE. The price to be paid for the Optioned Shares (the
"Purchase Price") shall be $______________ per share, which was not less than
the fair market value of the Optioned Shares as determined by the Board on the
Grant Date, or, in the case of an Option granted to an employee who, on the
Grant Date owns ten percent (10%) or more of the Common Stock, as such amount is
calculated under Section 422(b)(6) of the Internal Revenue Code of 1986, as
amended (the "Code") not less than one hundred and ten percent (110%) of the
fair market value of the Optioned Stock.
2.4 PAYMENT OF PURCHASE PRICE. Payment of the Purchase Price shall be made
as follows:
(a) In United States dollars in cash or by check, bank draft or money
order payable to the Company, or
(b) At the discretion of the Board, through the delivery of shares of
Common Stock with an aggregate fair market value at the date of such delivery,
equal to the Purchase Price, or
(c) By a combination of both (a) and (b) above.
The Board shall determine acceptable methods for rendering Common Stock as
payment upon exercise of an Option and may impose such limitations and
conditions on the use of Common Stock to exercise an Option as it deems
appropriate. At the election of the Optionee pursuant to Section 17 of the Plan,
and subject to the acceptance of such election by the Board, to satisfy the
Company's withholding obligations, it may retain such number of shares of Common
Stock subject to the exercised Option which have an aggregate Fair Market Value
(as defined in the Plan) on the date of exercise equal to the Company's
aggregate federal, state, local and foreign tax withholding and FICA and FUTA
obligations with respect to income generated by the exercise of the Option by
Optionee.
2.5 EXERCISABILITY OF OPTION. Subject to the provisions of Paragraph 2.6,
and except as otherwise provided in Paragraphs 2.8 and 2.9, the Option may be
exercised by the Optionee while in the employ of Company which shall include any
parent ("Parent") or subsidiary ("Subsidiary") corporation of the Company as
defined in Sections 425(e) and (f), respectively, of the Internal Revenue Code
of 1986, as amended ("Code"), in whole or in part from time to time, but only in
accordance with the following schedule:
CUMULATIVE PERCENTAGE OF
ELAPSED NUMBER OF YEARS SHARES SUBJECT TO OPTIONS AS TO
AFTER GRANT DATE WHICH OPTION MAY BE EXERCISED
---------------- -----------------------------
0-4 None
5 20%
6 40%
7 60%
8 80%
9 100%
For purposes of the foregoing schedule, a year is measured from the grant date
to the anniversary of the grant date and between anniversary dates thereof.
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<PAGE>
2.6 TERMINATION OF OPTION. Except as otherwise provided herein, the Option,
to the extent not heretofore exercised, shall terminate upon the first to occur
of the following dates:
(a) The date on which the Optionee's employment by the Company is
terminated except if such termination is voluntary, or occurs due to retirement
with the consent of the Board, death or disability within the meaning of Section
22(e)(3) of the Code;
(b) Thirty (30) days after voluntary termination or termination due to
retirement with the consent of the Board;
(c) Six (6) months afar termination due to disability within the
meaning of Section 22(e)(3) of the Code;
(d) One (1) year after the Optionee's death; or
(e) __________________, (being the expiration of a term equal to or
less than ten (10) years from the Grant Date).
2.7 ADJUSTMENTS. In the event of any stock split, reverse stock split,
stock divided, combination or reclassification of shares of Common Stock or any
other increase or decrease in the number of issued shares of Common Stock, the
number and kind of Optioned Shares (including any Option outstanding after
termination of employment or deal) and the Purchase Price per share shall be
proportionately and appropriately adjusted without any change in the aggregate
Purchase Price to be paid therefor upon exercise of the Option. The
determination by the Board as to the terms of any of the foregoing adjustments
shall be conclusive and binding.
2.8 LIQUIDATION, SALE OF ASSETS OR MERGER. In the event of a proposed
dissolution or liquidation of the Company or the proposed sale of all or
substantially all of the assets of the Company, or the merger of the Company
with or into another corporation, the Option will become fully vested and
exercisable except in the event that the surviving entity or resulting entity
agrees to assume the Option. Upon or in anticipation of such event, the
Committee may cause the Option to terminate, but will provide the Optionee with
a period of time to exercise the Option prior to the termination.
2.9 ACQUISITION. If any person, corporation or other entity or group
thereof (the "Acquiror"), acquires (an "Acquisition"), other than by merger or
consolidation or purchase from the Company, the beneficial ownership (as that
term is used in Section 13(d)(1) of the Securities Exchange Act of 1934 and the
rules and regulations promulgated thereunder) or shares of the Company's common
stock which, when added to any other shares the beneficial ownership of which is
held by the Acquiror, shall have more than 50% of the votes that are entitled to
be cast at meetings of shareholders, any portion of the Option that was not
currently exercisable pursuant to Section 2.5 prior to the date of the
Acquisition shall become immediately exercisable and the Optionee may elect,
during the period commencing on the date of the Acquisition and ending at the
close of business on the thirtieth (30th) day following the date of the
Acquisition (but not later than the expiration of the Option term under
Paragraph 2.6), to exercise the Option in whole or in part. In the event the
thirtieth (30th) day referred to in this Section shall fall on a day that is not
a business day, then the thirtieth (30th) day shall be deemed to be the next
following business day.
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<PAGE>
2.10 NOTICES. Any notice to be given under the terms of the Agreement
("Notice") shall be addressed to the Company in care of its secretary at 2200
South 75th Avenue, Phoenix, Arizona 85043, or at its then current corporate
headquarters. Notice to be given to the Optionee shall be addressed to him or
her at his or her then current residential address as appearing on the payroll
records.
Notice shall be deemed duly given when enclosed in a properly sealed
envelope and deposited by certified mail, return receipt requested, in a post
office or branch post office regularly maintained by the United States
Government.
2.11 NOTIFICATION OF DISPOSITION OF SHARES. The Optionee hereby
acknowledges that a disposition of shares of Common Stock acquired upon the
exercise of the Option within two (2) years from the Grant Date or within one
(1) year after the transfer of such shares of Common Stock to him or her would
result in detrimental income tax consequences to the Optionee.
The Optionee hereby agrees to promptly notify the Company of any
disposition of shares of Common Stock within either of the above time
limitations.
2.12 MODIFICATION OF AGREEMENT. With the consent of Optionee, the Board may
at any time and from time to time direct that the Agreement be modified in such
respects deemed advisable in order that the Option shall constitute an incentive
stock option pursuant to Section 422 of the Code.
2.13 TRANSFERABILITY OF OPTION. The Option shall not be transferable by the
Optionee otherwise than by the will or the laws of descent and distribution, and
may be exercised during the life of the Optionee only by the Optionee.
2.14 OPTIONEE NOT A SHAREHOLDER. The Optionee shall not be deemed for any
purposes to be a shareholder of the Company with respect to any of the Optioned
Shares except to the extent that the Option herein granted shall have been
exercised with respect thereto and a stock certificate issued therefor.
2.15 DISPUTES OR DISAGREEMENTS. As a condition of the granting of the
Option herein granted, the Optionee agrees, for himself and his personal
representatives, that any disputes or disagreement which may arise under or as a
result of or pursuant to this Agreement shall be determined by the Board in its
sole discretion, and that any interpretation by the Board of the terms of this
Agreement shall be final, binding and conclusive.
2.16 RIGHT TO REPURCHASE. In the event that:
(a) Optionee voluntarily terminates employment with the Company or if
Optionee's employment is involuntarily terminated for nonperformance of duties
and if Optionee subsequently becomes a sole proprietor, partner, stockholder,
officer, director, employee, independent contractor or consultant of or to any
business which is engaged in the contract of common carriage of goods; or
(b) if Optionee's employment is involuntarily terminated for gross
misconduct, fraud, embezzlement, theft or breach of any fiduciary duty owed to
the Company (the "Triggering Event"), then the Board, at its discretion may
elect to repurchase from Optionee Optioned Shares for which an Option was
granted to and exercised by Optionee, for the Purchase Price paid by Optionee
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<PAGE>
under Paragraph 2.3, if such Triggering Event occurs any time within five years
after the Option for such Optioned Shares has been exercised by Optionee. The
Company shall exercise its rights hereunder by written notification to the
Optionee to be given within 180 days after the Board becomes aware of the
Triggering Event.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed
by its duly authorized officer, and the Optionee has hereunto affixed his or her
signature.
SWIFT TRANSPORTATION CO., INC., a
Nevada corporation
By
-----------------------------------------
Its: President
--------------------------------------------
"OPTIONEE"
B-5
