SWIFT TRANSPORTATION CO., INC. 2003 STOCK INCENTIVE PLAN NON-STATUTORY STOCK OPTION AGREEMENT
Exhibit 10.1
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:
I .
RECITALS
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. 2003 Stock Incentive Plan (the “Plan”) effective as of May 22, 2003.
1.3 Shareholders of the Company have adopted and approved the Plan on May 22, 2003 authorizing
5,000,000 shares for issuance.
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” or
“Shares”).
II .
AGREEMENTS
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 (such number being subject to
adjustment as provided in Section 2.7 hereof and Article 11 of the Plan) 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 setting up an account and electronically
signing this Agreement through the administrator, Etrade Financial.
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 may be made as follows:
(a) In United States dollars in cash, or by check, promissory note or other
property acceptable to the Company, or
(b) At the discretion of the Board, through the delivery of shares of Common
Stock held for longer than six (6) months with an aggregate “Fair Market Value” (as
defined in the Plan) 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 Article 13 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 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 Paragraph 2.8 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 424(e) and (f), respectively, of the Internal
Revenue Code of 1986, as amended (the “Code”), in whole or in part from time to time, but only in
accordance with the following schedule:
| Elapsed Number of Years | Cumulative Percentage of | |||
| After Grant Date Which Option May Be Exercised | Shares Subject to Options As To | |||
1
|
20 | % | ||
2
|
40 | % | ||
3
|
60 | % | ||
4
|
80 | % | ||
5
|
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:
(a) The termination of the Optionee’s employment for “Cause” (as defined in the
Plan);
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(b) Thirty (30) days after the termination of the Optionee’s employment other
than for Cause, death or Disability (as defined in the Plan);
(c) Termination of the Optionee’s employment on account of Disability before
the Option lapses, unless it is previously exercised, on the earlier of (i) the
scheduled termination date of the Option; or (ii) 12 months after the date of the
Optionee’s termination of employment on account of Disability. Upon the Optionee’s
Disability, any Options exercisable at the Optionee’s Disability may be exercised by
the Optionee’s legal representative or representatives;
(d) One year after the Optionee’s death; or
(e) Ten years from the Grant Date, except in the event of death.
2.7 Adjustments. In the event of any stock split, reverse stock split, stock
dividend, 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 death) 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 Change of Control. If a “Change of Control” (as defined in the Plan) occurs,
options subject to this Agreement are converted, assumed, or replaced by a successor, and the
Optionee’s employment with the Company is terminated without Cause within 18 months following the
date of the Change of Control, all outstanding options subject to this Agreement shall become fully
exercisable. If a Change of Control occurs and options subject to this Agreement are not
converted, assumed, or replaced by a successor, all outstanding options subject to this Agreement
shall become fully exercisable.
2.9 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 0000 Xxxxx 00xx Xxxxxx, Xxxxxxx, Xxxxxxx
00000, 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.
2.10 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.
2.11 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.
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2.12 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.
2.13 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 or common carriage of goods; or
(b) If Optionee’s employment is involuntarily terminated for Cause
(the “Triggering Event”), then the Board, at its discretion may elect to repurchase from Optionee
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.
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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