EXHIBIT 10.9.1
FIRST AMENDMENT
TO
NONQUALIFIED DEFERRED COMPENSATION AGREEMENT
THIS FIRST AMENDMENT TO NONQUALIFIED DEFERRED COMPENSATION AGREEMENT (this
"Amendment") is made and entered into this 19th day of October 2004, between
Swift Transportation Co., Inc., an Arizona corporation ("Swift"), and Xxxxxxx X.
Xxxxx, III, a resident of Phoenix, Arizona ("Xxxxx").
RECITALS
WHEREAS, the parties to this Amendment previously entered into that
certain Nonqualified Deferred Compensation Agreement with an effective date of
March 14, 2000 (the "Agreement").
WHEREAS, the parties to this Amendment desire to amend the Agreement to
shorten the vesting period and to expand upon the types of investments that are
permissible within the investment account established pursuant to the Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Contingent Deposits. Section 1.a. of the Agreement is hereby deleted in
its entirety and replaced with the following:
a. Contingent Deposits. Swift shall deposit each month, from March,
2000, through June, 2006, the sum of $50,738.67 into an investment account
(the "Account") held by a National Association of Securities Dealers, Inc.
member broker dealer designated by Swift's Board of Directors (the
"Board") for the benefit of Swift. Such deposits shall occur on the 24th
day of each month commencing March 24, 2000, or the next succeeding
business day. The final deposit shall be made on June 24, 2006; provided,
however, that Swift's obligation to make such deposits shall be contingent
upon Xxxxx'x continued employment with Swift through March 24, 2005 (the
"Vesting Date"); such that Xxxxx'x death, permanent disability, or
termination (with or without cause) prior to the Vesting Date would
terminate Swift's obligation to make any additional deposits.
2. Designating Investments. Section 1.b. of the Agreement is hereby
deleted in its entirety and replaced with the following:
b. Designating Investments. Xxxxx, for so long as funds remain in
the Account, shall be entitled to direct the investment of funds in the
Account toward any combination of mutual funds, bonds, publicly-traded
stocks, and money market accounts. If requested to do so by Xxxxx, the
Board may engage investment advisers or brokers that offer these
investment choices, and all costs of such services and administering the
Account shall be charged against the Account. Xxxxx shall be entitled to
make investment designations at reasonable intervals approved by Swift's
Chief Executive Officer, or, in the absence of such approval, quarterly.
In addition to the foregoing, Xxxxx may make a one-time election to
have a portion of the funds applied toward the purchase of certain
commercial real estate of Xxxxx'x choosing (the "Commercial Property").
Swift shall at all times retain title to and beneficial ownership of the
Commercial Property, but shall lease the Commercial Property to such
persons or
entities and on such terms as Xxxxx shall direct. Swift shall deposit all
income derived from the Commercial Property (other than so much thereof as
shall be needed by Swift to pay necessary expenses of operation,
including, without limitation, any tax liabilities) into the Account. At
such time as Xxxxx ceases to be employed by Swift, whether as a result of
his death, permanent disability, or termination (with or without cause),
the Board shall authorize and direct Swift to sell the Commercial Property
(if any) and deposit the net proceeds from such sale (after deducting
amounts necessary to pay any taxes on gains and any expenses properly
attributable to such sale) into the Account. The sale of the Commercial
Property shall be subject, in all respects, to Xxxxx'x option to purchase
the Commercial Property pursuant to paragraph e. of Section 3 of this
Agreement.
2. Termination Without Cause. Section 2.d. of the Agreement is hereby
deleted in its entirety and replaced with the following:
d. Termination Without Cause. Except as provided for in paragraph b.
of this Section 2, in the event Xxxxx is terminated other than for Cause
prior to the Vesting Date, the Board shall authorize and direct the
payment of funds to Xxxxx as follows: Xxxxx shall be entitled to receive
(i) an amount equal to 50% of the net proceeds from the sale of the
Commercial Property (after deducting amounts necessary to pay any taxes on
gains and any expenses properly attributable to such sale), plus (ii) an
amount equal to 50% of the value of the Account on the immediately
preceding December 31st, plus (iii) $398,129.31 if Xxxxx is terminated
other than for Cause on or before December 31, 2004 or $501,989.13 if
Xxxxx is terminated other than for Cause after December 31, 2004 ((i),
(ii), and (iii) collectively, the "Termination Without Cause Amount"). In
determining the Termination Without Cause Amount, Swift shall calculate
the value of the funds in the Account on such date, net of taxes on
earnings or gains and any expenses properly chargeable to the Account as
referenced in Section 1.c. The Termination Without Cause Amount shall be
paid to Xxxxx net of federal or state payroll tax or other required
withholdings, in the manner and at the time(s) prescribed for payment of
Deferred Compensation in paragraph e. of this Section 2.
3. Miscellaneous. The Agreement is hereby amended by adding the following
new Section 3.e.:
e. Option to Purchase the Commercial Property. Swift hereby grants
Xxxxx an option to purchase the Commercial Property for the price Swift
paid for it. Such option shall be valid so long as Swift owns the
Commercial Property and shall be immediately exercisable. Xxxxx may
exercise such option by delivering written notice to Swift of his intent
to exercise such option. Upon receipt of such notice of intent to
exercise, Swift shall make all necessary arrangements to have title to the
Commercial Property immediately transferred to Xxxxx, or to such other
entity as Xxxxx shall direct, upon Swift's receipt of the required
payment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed on the date first above written.
SWIFT TRANSPORTATION CO., INC.
By: /s/ Xxxxx Xxxxx /s/ Xxxxxxx X. Xxxxx, III
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Xxxxx Xxxxx, President Xxxxxxx X. Xxxxx, III, individually
