Attached files
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S-1 - FORM S-1 - Knight-Swift Transportation Holdings Inc. | c58386sv1.htm |
EX-10.7 - EX-10.7 - Knight-Swift Transportation Holdings Inc. | c58386exv10w7.htm |
EX-10.4 - EX-10.4 - Knight-Swift Transportation Holdings Inc. | c58386exv10w4.htm |
EX-10.3 - EX-10.3 - Knight-Swift Transportation Holdings Inc. | c58386exv10w3.htm |
EX-10.9 - EX-10.9 - Knight-Swift Transportation Holdings Inc. | c58386exv10w9.htm |
EX-10.8 - EX-10.8 - Knight-Swift Transportation Holdings Inc. | c58386exv10w8.htm |
EX-23.1 - EX-23.1 - Knight-Swift Transportation Holdings Inc. | c58386exv23w1.htm |
EX-21.1 - EX-21.1 - Knight-Swift Transportation Holdings Inc. | c58386exv21w1.htm |
EX-10.6 - EX-10.6 - Knight-Swift Transportation Holdings Inc. | c58386exv10w6.htm |
Exhibit 10.5
SWIFT CORPORATION
2007 OMNIBUS INCENTIVE PLAN
ARTICLE I
PURPOSE AND EFFECTIVE DATE
PURPOSE AND EFFECTIVE DATE
Section 1.1. Purpose. The purpose of the Plan is to provide incentives to certain
Employees, Directors, and Consultants of the Company in a manner designed to reinforce the
Companys performance goals; to link a significant portion of Participants compensation to the
achievement of such goals; and to continue to attract, motivate, and retain key personnel on a
competitive basis.
Section 1.2. Effective Date. The Plan was adopted by Swifts Board of Directors and
stockholders on October 10, 2007.
ARTICLE II
DEFINITIONS AND CONSTRUCTION
DEFINITIONS AND CONSTRUCTION
Section 2.1. Certain Defined Terms. As used in this Plan, unless the context
otherwise requires, the following terms shall have the following meanings:
(a) Award means any form of stock option, stock appreciation right, Stock Award,
Restricted Stock Unit Award, performance unit, Performance Award, or other incentive award granted
under the Plan, whether singly, in combination, or in tandem, to a Participant by the Committee
pursuant to such terms, conditions, restrictions, and/or limitations, if any, as the Committee may
establish by the Award Notice or otherwise.
(b) Award Notice means the document establishing the terms, conditions,
restrictions, and/or limitations of an Award in addition to those established by this Plan and by
the Committees exercise of its administrative powers. The Committee will establish the form of the
document in the exercise of its sole and absolute discretion.
(c) Board means the Board of Directors of Swift.
(d) CEO means the Chief Executive Officer of Swift.
(e) Code means the Internal Revenue Code of 1986, as amended from time to time,
including the regulations thereunder and any successor provisions and the regulations thereto.
(f) Committee means (i) the Board, and (ii) the Compensation Committee of the Board,
or such other Board committee as may be designated by the Board to administer the Plan; provided
that following an Initial Public Offering the Committee shall consist of two or more Directors, all
of whom are both a Non-Employee Director within the meaning of Rule 16b-3 under the Exchange Act
and an outside director within the meaning of the definition of such term as contained in
Treasury Regulation Section 1.162-27(e)(3), or any successor definition adopted under
Section 162(m) of the Code.
(g) Common Stock means the Common Stock, par value $0.001 per share, of Swift.
(h) Company means Swift Corporation, a Nevada corporation, and its Subsidiaries.
(i) Consultants means the consultants, advisors, and independent contractors
retained by the Company.
(j) Covered Employee means an Employee who is a covered employee within the
meaning of Section 162(m) of the Code.
(k) Director means a member of the Board who is not an Employee.
(l) Effective Date means the date an Award is determined to be effective by the
Committee upon its grant of such Award, which date shall be set forth in the applicable Award
Notice.
(m) Employee means any person employed by the Company on a full or part-time basis.
(n) Exchange Act means the Securities Exchange Act of 1934, as amended from time to
time, including the rules thereunder and any successor provisions and the rules thereto.
(o) Fair Market Value means the closing price of the Common Stock on the principal
national securities exchange on which the Common Stock is then listed or admitted to trading, and
the closing price shall be the last reported sale price, regular way, on such date (or, if no sale
takes place on such date, the last reported sale price, regular way, on the next preceding date on
which such sale took place), as reported by such exchange. If the Common Stock is not then so
listed or admitted to trading on a national securities exchange, then Fair Market Value shall be
the closing price (the last reported sale price regular way) of the Common Stock in the
over-the-counter market as reported by the National Association of Securities Dealers Automated
Quotation System (NASDAQ), if the closing price of the Common Stock is then reported by
NASDAQ. If the Common Stock closing price is not then reported by NASDAQ, then Fair Market Value
shall be the mean between the representative closing bid and closing asked prices of the Common
Stock in the over-the-counter market as reported by NASDAQ. If the Common Stock bid and asked
prices are not then reported by NASDAQ, then Fair Market Value shall be the quote furnished by any
member of the National Association of Securities Dealers, Inc. selected from time to time by Swift
for that purpose. If no member of the National Association of Securities Dealers, Inc. then
furnishes quotes with respect to the Common Stock and the Common Stock is not listed or admitted to
trading on a national securities exchange, then Fair Market Value shall be the value determined by
the Committee in good faith by applying any reasonable valuation method permitted under Section
409A of the Code to determine fair market value in accordance with Section 409A of the Code.
(p) Initial Public Offering means an initial public offering of the Common Stock of
Swift or another company, with substantially the same ownership, which assumes Swifts obligation
hereunder.
(q) Negative Discretion means the discretion authorized by the Plan to be applied by
the Committee in determining the size of a Performance Award for a Performance Period if, in the
Committees sole judgment, such application is appropriate. Negative Discretion may only be used by
the Committee to eliminate or reduce the size of a Performance Award. In no event shall any
discretionary authority granted to the Committee by the Plan, including, but not limited to
Negative Discretion, be used to: (a) grant Performance Awards for a Performance Period if the
Performance Goals for such Performance Period have not been attained under the applicable
Performance Formula; or (b) increase a Performance Award above the maximum amount payable under
Section 6.3 of the Plan.
(r) Participant means either an Employee, Director, or Consultant to whom an Award
has been granted under the Plan.
(s) Performance Awards means the Stock Awards and performance units granted pursuant
to Article VII. Performance Awards are intended to qualify as performance-based compensation
under Section 162(m) of the Code, if such provision is applicable to Swift.
(t) Performance Criteria means the one or more criteria that the Committee shall
select for purposes of establishing the Performance Goal(s) for a Performance Period. The
Performance Criteria that will be used to establish such Performance Goal(s) shall be expressed in
terms of the attainment of specified levels of one or any variation or combination of the
following: revenues (including, without limitation, measures such as revenue per mile (loaded or
total) or revenue per tractor), net revenues, fuel surcharges, accounts receivable collection or
days sales outstanding, cost reductions and savings (or limits on cost increases), safety and
claims (including, without limitation, measures such as accidents per million miles and number of
significant accidents), operating income, operating ratio, income before taxes, net income,
earnings before interest and taxes (EBIT), earnings before interest, taxes, depreciation, and
amortization (EBITDA), adjusted net income, earnings per share, adjusted earnings per share, stock
price, working capital measures, return on assets, return on revenues, debt-to-equity or
debt-to-capitalization (in each case with or without lease adjustment), productivity and efficiency
measures (including, without limitation, measures such as driver turnover, trailer to tractor
ratio, and tractor to non-driver ratio), cash position, return on stockholders equity, return on
invested capital, cash flow measures (including, without limitation, free cash flow), market share,
stockholder return, economic value added, or completion of acquisitions (either with or without
specified size). In addition, the Committee may establish, as additional Performance Criteria, the
attainment by a Participant of one or more personal objectives and/or goals that the Committee
deems appropriate, including but not limited to implementation of Company policies, negotiation of
significant corporate transactions, development of long-term business goals or strategic plans
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for the Company, or the exercise of specific areas of managerial responsibility. Each of the
Performance Criteria may be expressed on an absolute and/or relative basis with respect to one or
more peer group companies or indices, and may include comparisons with past performance of the
Company (including one or more divisions thereof, if any) and/or the current or past performance of
other companies.
(u) Performance Formula means, for a Performance Period, the one or more objective
formulas (expressed as a percentage or otherwise) applied against the relevant Performance Goal(s)
to determine, with regard to the Award of a particular Participant, whether all, some portion but
less than all, or none of the Award has been earned for the Performance Period.
(v) Performance Goals means, for a Performance Period, the one or more goals
established by the Committee for the Performance Period based upon the Performance Criteria. Any
Performance Goal shall be established in a manner such that a third party having knowledge of the
relevant performance results could calculate the amount to be paid to the Participant. For any
Performance Period, the Committee is authorized at any time during the initial time period
permitted by Section 162(m) of the Code, or at any time thereafter, in its sole and absolute
discretion, to adjust or modify the calculation of a Performance Goal for such Performance Period
in order to prevent the dilution or enlargement of the rights of Participants (i) in the event of,
or in anticipation of, any unusual or extraordinary corporate item, transaction, event, or
development; (ii) in recognition of, or in anticipation of, any other unusual or nonrecurring
events affecting the Company, or the financial statements of the Company, or in response to, or in
anticipation of, changes in applicable laws, regulations, accounting principles, or business
conditions; and (iii) in view of the Committees assessment of the business strategy of the
Company, performance of comparable organizations, economic and business conditions, and any other
circumstances deemed relevant.
(w) Performance Period means the one or more periods of time, which may be of
varying and overlapping durations, as the Committee may select, over which the attainment of one or
more Performance Goals will be measured for the purpose of determining a Participants right to and
the payment of a Performance Award.
(x) Plan means this 2007 Omnibus Incentive Plan, as amended from time to time.
(y) Restricted Stock Unit Award means an Award granted pursuant to Article XI in the
form of a right to receive shares of Common Stock on a future date.
(z) Securities Act means the Securities Act of 1933, as amended from time to time,
including the rules thereunder and any successor provisions and the rules thereto.
(aa) Stock Award means an award granted pursuant to Article X in the form of shares
of Common Stock, restricted shares of Common Stock, and/or units of Common Stock.
(bb) Subsidiary means a corporation or other business entity in which Swift directly
or indirectly has an ownership interest of twenty percent (20%) or more, except that with respect
to incentive stock options, Subsidiary shall mean subsidiary corporation as defined in
Section 424(f) of the Code.
(cc) Swift means Swift Corporation, a Nevada corporation, or any successor thereto
(whether by reincorporation, merger, or otherwise) as provided in Section 15.8.
Section 2.2. Other Defined Terms. Unless the context otherwise requires, all other
capitalized terms shall have the meanings set forth in the other Articles and Sections of this
Plan.
Section 2.3. Construction. In any necessary construction of a provision of this Plan,
the masculine gender may include the feminine, and the singular may include the plural, and vice
versa.
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ARTICLE III
ELIGIBILITY
ELIGIBILITY
Section 3.1. In General. Subject to Section 3.2 and Article IV, all Employees,
Directors, and Consultants are eligible to participate in the Plan. The Committee may select, from
time to time, Participants from those Employees, Directors, and Consultants.
Section 3.2. Incentive Stock Options. Only Employees shall be eligible to receive
incentive stock options (within the meaning of Section 422 of the Code).
ARTICLE IV
PLAN ADMINISTRATION
PLAN ADMINISTRATION
Section 4.1. Responsibility. The Committee shall have total and exclusive
responsibility to control, operate, manage, and administer the Plan in accordance with its terms.
Section 4.2. Authority of the Committee. The Committee shall have all the authority
that may be necessary or helpful to enable it to discharge its responsibilities with respect to the
Plan. Without limiting the generality of the preceding sentence, the Committee shall have the
exclusive right to:
(a) determine eligibility for participation in the Plan;
(b) select the Participants and determine the type of Awards to be made to Participants, the
number of shares subject to Awards and the terms, conditions, restrictions, and limitations of the
Awards, including, but not by way of limitation, restrictions on the transferability of Awards and
conditions with respect to continued employment, performance criteria, confidentiality, and
non-competition;
(c) interpret the Plan;
(d) construe any ambiguous provision, correct any default, supply any omission, and reconcile
any inconsistency of the Plan;
(e) issue administrative guidelines as an aid to administer the Plan and make changes in such
guidelines as it from time to time deems proper;
(f) make regulations for carrying out the Plan and make changes in such regulations as it from
time to time deems proper;
(g) to the extent permitted under the Plan, grant waivers of Plan terms, conditions,
restrictions, and limitations;
(h) promulgate rules and regulations regarding treatment of Awards of a Participant under the
Plan in the event of such Participants death, disability, retirement, termination from the
Company, or breach of agreement by the Participant, or in the event of a change of control of
Swift;
(i) accelerate the vesting, exercise, or payment of an Award or the Performance Period of an
Award when such action or actions would be in the best interest of the Company;
(j) establish such other types of Awards, besides those specifically enumerated in Article V
hereof, which the Committee determines are consistent with the Plans purpose;
(k) subject to Section 4.3, grant Awards in replacement of Awards previously granted under
this Plan or any other executive compensation plan of the Company;
(l) establish and administer the Performance Goals and certify whether, and to what extent,
they have
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been attained;
(m) determine the terms and provisions of any agreements entered into hereunder;
(n) take any and all other action it deems necessary or advisable for the proper operation or
administration of the Plan; and
(o) make all other determinations it deems necessary or advisable for the administration of
the Plan, including factual determinations.
The decisions of the Committee and its actions with respect to the Plan shall be final, binding,
and conclusive upon all persons having or claiming to have any right or interest in or under the
Plan.
Section 4.3. Option Repricing. Except for adjustments pursuant to Section 6.2, the
Committee shall not reprice any stock options and/or stock appreciation rights unless such action
is approved by Swifts stockholders. For purposes of the Plan, the term reprice shall mean the
reduction, directly or indirectly, in the per-share exercise price of an outstanding stock
option(s) and/or stock appreciation right(s) issued under the Plan by amendment, cancellation, or
substitution.
Section 4.4. Section 162(m) of the Code. Throughout this Plan, certain references are
made to Section 162(m) of the Code. Such provisions shall only apply where Section 162(m) of the
Code is applicable to Swift. With regard to Awards issued to Covered Employees that are intended
to qualify as performance-based compensation for purposes of Section 162(m) of the Code, the Plan
shall, for all purposes, be interpreted and construed with respect to such Awards in the manner
that would result in such interpretation or construction satisfying the exemptions available under
Section 162(m) of the Code.
Section 4.5. Action by the Committee. Except as otherwise provided by Section 4.6, the
Committee may act only by a majority of its members. Any determination of the Committee may be
made, without a meeting, by a writing or writings signed by all of the members of the Committee.
Section 4.6. Allocation and Delegation of Authority. The Committee may allocate all or
any portion of its responsibilities and powers under the Plan to any one or more of its members,
the CEO, or other senior members of management as the Committee deems appropriate, and may delegate
all or any part of its responsibilities and powers to any such person or persons; provided, that
any such allocation or delegation be in writing; provided, further, that following an Initial
Public Offering only the Committee, or other committee consisting of two or more Directors, all of
whom are both Non-Employee Directors within the meaning of Rule 16b-3 under the Exchange Act and
outside directors within the meaning of the definition of such term as contained in Treasury
Regulation Section 1.162-27(e)(3), or any successor definition adopted under Section 162(m) of the
Code, may select and grant Awards to Participants who are subject to Section 16 of the Exchange Act
or are Covered Employees. The Committee may revoke any such allocation or delegation at any time
for any reason with or without prior notice.
ARTICLE V
FORM OF AWARDS
FORM OF AWARDS
Section 5.1. In General. Awards may, at the Committees sole discretion, be paid in
the form of Performance Awards pursuant to Article VII, stock options pursuant to Article VIII,
stock appreciation rights pursuant to Article IX, Stock Awards pursuant to Article X, Restricted
Stock Unit Awards pursuant to Article XI, performance units pursuant to Article XII, any form
established by the Committee pursuant to Section 4.2(j), or a combination thereof. Each Award
shall be subject to the terms, conditions, restrictions, and limitations of the Plan and the Award
Notice for such Award. Awards under a particular Article of the Plan need not be uniform and Awards
under two or more Articles may be combined into a single Award Notice. Any combination of Awards
may be granted at one time and on more than one occasion to the same Participant.
Section 5.2. Foreign Jurisdictions.
(a) Special Terms. In order to facilitate the making of any Award to Participants who
are employed or retained by the Company outside the United States as Employees, Directors, or
Consultants (or who are foreign nationals temporarily within the United States), the Committee may
provide for such modifications and additional terms and conditions
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(Special Terms) in Awards as the Committee may consider necessary or appropriate to
accommodate differences in local law, policy, or custom or to facilitate administration of the
Plan. The Special Terms may provide that the grant of an Award is subject to (i) applicable
governmental or regulatory approval or other compliance with local legal requirements and/or
(ii) the execution by the Participant of a written instrument in the form specified by the
Committee, and that in the event such conditions are not satisfied, the grant shall be void. The
Special Terms may also provide that an Award shall become exercisable or redeemable, as the case
may be, if an Employees employment or Director or Consultants relationship with the Company ends
as a result of workforce reduction, realignment, or similar measure and the Committee may designate
a person or persons to make such determination for a location. The Committee may adopt or approve
sub-plans, appendices or supplements to, or amendments, restatements, or alternative versions of,
the Plan as it may consider necessary or appropriate for purposes of implementing any Special
Terms, without thereby affecting the terms of the Plan as in effect for any other purpose;
provided, however, no such sub-plans, appendices or supplements to, or amendments, restatements, or
alternative versions of, the Plan shall: (x) increase the limitations contained in Section 6.3;
(y) increase the number of available shares under Section 6.1; or (z) cause the Plan to cease to
satisfy any conditions of Rule 16b-3 under the Exchange Act.
(b) Currency Effects. Unless otherwise specifically determined by the Committee, all
Awards and payments pursuant to such Awards shall be determined in United States currency. The
Committee shall determine, in its discretion, whether and to the extent any payments made pursuant
to an Award shall be made in local currency, as opposed to United States dollars. In the event
payments are made in local currency, the Committee may determine, in its discretion and without
liability to any Participant, the method and rate of converting the payment into local currency.
ARTICLE VI
SHARES SUBJECT TO PLAN
SHARES SUBJECT TO PLAN
Section 6.1. Available Shares. The maximum aggregate number of shares of Common Stock
which shall be available for the grant of Awards under the Plan (including incentive stock options)
during its term shall not exceed ten million (10,000,000) (the Share Reserve). The Share
Reserve shall be subject to adjustment as provided in Section 6.2. Any shares of Common Stock
related to Awards that terminate by expiration, forfeiture, cancellation, or otherwise without the
issuance of such shares, are settled in cash in lieu of Common Stock, or are exchanged with the
Committees permission for Awards not involving Common Stock shall be available again for grant
under the Plan. Moreover, if the exercise price of any Award granted under the Plan or the tax
withholding requirements with respect to any Award granted under the Plan are satisfied by
tendering shares of Common Stock to Swift (by either actual delivery or by attestation), only the
number of shares of Common Stock issued net of the shares of Common Stock tendered will be deemed
delivered for purposes of determining the Share Reserve available for delivery under the Plan. The
shares of Common Stock available for issuance under the Plan may be authorized and unissued shares
or treasury shares, including shares purchased in open market or private transactions. For the
purpose of computing the total number of shares of Common Stock granted under the Plan, where one
or more types of Awards, both of which are payable in shares of Common Stock, are granted in tandem
with each other such that the exercise of one type of Award with respect to a number of shares
cancels an equal number of shares of the other, the number of shares granted under both Awards
shall be deemed to be equivalent to the number of shares under one of the Awards.
Section 6.2. Adjustment Upon Certain Events. In the event that there is, with respect
to Swift, a stock dividend or split, reorganization, recapitalization, merger, consolidation,
spin-off, combination, or transaction or exchange of Common Stock or other corporate exchange, or
any distribution to stockholders of Common Stock or other property or securities (other than
regular cash dividends), or any transaction similar to the foregoing or other transaction that
results in a change to Swifts capital structure, then the Committee shall make substitutions
and/or adjustments to the maximum number of shares available for issuance under the Plan, the
maximum Award payable under Section 6.3, the number of shares to be issued pursuant outstanding
Awards, the option prices, exercise prices or purchase prices of outstanding Awards and/or any
other affected terms of an Award or the Plan as the Committee, in its sole discretion and without
liability to any person, deems equitable or appropriate. Unless the Committee determines otherwise,
in no event shall an Award to any Participant that is intended to qualify as performance-based
compensation for purposes of Section 162(m) of the Code be adjusted pursuant to this Section 6.2
to the extent such adjustment would cause such Award to fail to qualify as performance-based
compensation under Section 162(m) of the Code.
Section 6.3. Maximum Award Payable. Subject to Section 6.2, and notwithstanding any
provision contained in the Plan to the contrary, the maximum number of shares of Common Stock
payable (or granted, if applicable) to any one Participant under the Plan with respect to all
Awards granted to such Participants for a calendar year is one million (1,000,000) shares of Common
Stock.
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ARTICLE VII
PERFORMANCE AWARDS
PERFORMANCE AWARDS
Section 7.1. Purpose. For purposes of Performance Awards issued to Employees,
Directors, and Consultants that are intended to qualify as performance-based compensation for
purposes of Section 162(m) of the Code, the provisions of this Article VII shall apply in addition
to and, where necessary, in lieu of the provisions of Article X, Article XI, and Article XII. The
purpose of this Article is to provide the Committee the ability to qualify the Stock Awards
authorized under Article X, the Restricted Stock Unit Awards authorized under Article XI, and the
performance units under Article XII as performance-based compensation under Section 162(m) of the
Code. The provisions of this Article VII shall control over any contrary provision contained in
Article X, Article XI, or Article XII.
Section 7.2. Eligibility. For each Performance Period, the Committee will, in its
sole discretion, designate within the initial period allowed under Section 162(m) of the Code which
Employees, Directors, and Consultants will be Participants for such period. However, designation
of an Employee, Director, or Consultant as a Participant for a Performance Period shall not in any
manner entitle the Participant to receive an Award for the period. The determination as to whether
or not such Participant becomes entitled to an Award for such Performance Period shall be decided
solely in accordance with the provisions of this Article VII. Moreover, designation of an Employee,
Director, or Consultant as a Participant for a particular Performance Period shall not require
designation of such Employee, Director, or Consultant as a Participant in any subsequent
Performance Period, and designation of one Employee, Director, or Consultant as a Participant shall
not require designation of any other Employee, Director, or Consultant as a Participant in such
period or in any other period.
Section 7.3. Discretion of Committee with Respect to Performance Awards. The
Committee shall have the authority to determine which Covered Employees or other Employees,
Directors, or Consultants shall be Participants of a Performance Award. With regard to a particular
Performance Period, the Committee shall have full discretion to select the length of such
Performance Period, the type(s) of Performance Awards to be issued, the Performance Criteria that
will be used to establish the Performance Goal(s), the kind(s) and/or level(s) of the Performance
Goal(s), whether the Performance Goal(s) is (are) to apply to the Company or any one or more
subunits thereof and the Performance Formula. For each Performance Period, with regard to the
Performance Awards to be issued for such period, the Committee will, within the initial period
allowed under Section 162(m) of the Code, if applicable, exercise its discretion with respect to
each of the matters enumerated in the immediately preceding sentence of this Section 7.3 and record
the same in writing.
Section 7.4. Payment of Performance Awards.
(a) Condition to Receipt of Performance Award. Unless otherwise provided in the
relevant Award Notice, a Participant must be employed by the Company on the last day of a
Performance Period to be eligible for a Performance Award for such Performance Period.
(b) Limitation. A Participant shall be eligible to receive a Performance Award for a
Performance Period only to the extent that: (1) the Performance Goals for such period are achieved;
and (2) the Performance Formula as applied against such Performance Goals determines that all or
some portion of such Participants Performance Award has been earned for the Performance Period.
(c) Certification. Following the completion of a Performance Period, the Committee
shall meet to review and certify in writing whether, and to what extent, the Performance Goals for
the Performance Period have been achieved and, if so, to also calculate and certify in writing the
amount of the Performance Awards earned for the period based upon the Performance Formula. The
Committee shall then determine the actual size of each Participants Performance Award for the
Performance Period and, in so doing, shall apply Negative Discretion, if and when it deems
appropriate.
(d) Negative Discretion. In determining the actual size of an individual Performance
Award for a Performance Period, the Committee may reduce or eliminate the amount of the Performance
Award earned under the Performance Formula for the Performance Period through the use of Negative
Discretion, if in its sole judgment, such reduction or elimination is appropriate.
(e) Timing of Award Payments. The Awards granted for a Performance Period shall be
paid to Participants as soon as administratively practicable following completion of the
certifications required by Section 7.4(c).
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ARTICLE VIII
STOCK OPTIONS
STOCK OPTIONS
Section 8.1. In General. Awards may be granted in the form of stock options. These
stock options may be incentive stock options within the meaning of Section 422 of the Code or
non-qualified stock options (i.e., stock options which are not incentive stock options), or a
combination of both. All Awards under the Plan issued to Covered Employees in the form of
non-qualified stock options shall qualify as performance-based compensation under Section 162(m)
of the Code, if such section is applicable to Swift.
Section 8.2. Terms and Conditions of Stock Options. An option shall be exercisable in
accordance with such terms and conditions and at such times and during such periods as may be
determined by the Committee. The price at which Common Stock may be purchased upon exercise of a
stock option shall be not less than one hundred percent (100%) of the Fair Market Value of the
Common Stock, as determined by the Committee, on the Effective Date of the options grant (or such
other exercise price required by the Code). In addition, the term of a stock option may not exceed
ten (10) years (or such other term required by the Code).
Section 8.3. Restrictions Relating to Incentive Stock Options. Stock options issued
in the form of incentive stock options shall, in addition to being subject to the terms and
conditions of Section 8.2, comply with Section 422 of the Code. Accordingly, the aggregate Fair
Market Value (determined at the time the option was granted) of the Common Stock with respect to
which incentive stock options are exercisable for the first time by a Participant during any
calendar year (under this Plan or any other plan of the Company) shall not exceed $100,000 (or such
other limit as may be required by Section 422 of the Code).
Section 8.4. Exercise. Upon exercise, the option price of a stock option may be paid
in cash, or, to the extent permitted by the Committee, by tendering, by either actual delivery of
shares or by attestation, shares of Common Stock, a combination of the foregoing, or such other
consideration as the Committee may deem appropriate. The Committee shall establish appropriate
methods for accepting Common Stock, whether restricted or unrestricted, and may impose such
conditions as it deems appropriate on the use of such Common Stock to exercise a stock option.
Stock options awarded under the Plan may also be exercised by way of a broker-assisted stock option
exercise program, if any, provided such program is available at the time of the options exercise.
Notwithstanding the foregoing or the provision of any Award Notice, a Participant may not pay the
exercise price of a stock option using shares of Common Stock if, in the opinion of counsel to
Swift, (i) there is a substantial likelihood that the use of such form of payment or the timing of
such form of payment would subject the Participant to a substantial risk of liability under Section
16 of the Exchange Act, or (ii) there is a substantial likelihood that the use of such form of
payment would result in accounting treatment to the Company under generally accepted accounting
principles that the Committee reasonably determines is adverse to the Company.
ARTICLE IX
STOCK APPRECIATION RIGHTS
STOCK APPRECIATION RIGHTS
Section 9.1. In General. Awards may be granted in the form of stock appreciation
rights (SARs). SARs entitle the Participant to receive a payment equal to the
appreciation in a stated number of shares of Common Stock from the exercise price to the Fair
Market Value of the Common Stock on the date of exercise. The exercise price for a particular SAR
shall be defined in the Award Notice for that SAR. An SAR may be granted in tandem with all or a
portion of a related stock option under the Plan (Tandem SARs), or may be granted
separately (Freestanding SARs). A Tandem SAR may be granted either at the time of the
grant of the related stock option or at any time thereafter during the term of the stock option.
All Awards under the Plan issued to Covered Employees in the form of a SAR shall qualify as
performance-based compensation under Section 162(m) of the Code.
Section 9.2. Terms and Conditions of Tandem SARs. A Tandem SAR shall be exercisable
to the extent, and only to the extent, that the related stock option is exercisable, and the
exercise price of such an SAR (the base from which the value of the SAR is measured at its
exercise) shall be the option price under the related stock option. However, at no time shall a
Tandem SAR be issued if the option price of its related stock option is less than the Fair Market
Value of the Common Stock, as determined by the Committee, on the Effective Date of the Tandem
SARs grant. If a related stock option is exercised as to some or all of the shares covered by the
Award, the related Tandem SAR, if any, shall be canceled automatically to the extent of the number
of shares covered by the stock option exercise. Upon exercise of a Tandem SAR as to some or all of
the shares
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covered by the Award, the related stock option shall be canceled automatically to the extent
of the number of shares covered by such exercise. Moreover, all Tandem SARs shall expire not later
than ten (10) years from the Effective Date of the SARs grant.
Section 9.3. Terms and Conditions of Freestanding SARs. Freestanding SARs shall be
exercisable or automatically mature in accordance with such terms and conditions and at such times
and during such periods as may be determined by the Committee. The exercise price of a Freestanding
SAR shall be not less than one hundred percent (100%) of the Fair Market Value of the Common Stock
on the Effective Date of the Freestanding SARs grant. Moreover, all Freestanding SARs shall expire
not later than ten (10) years from the Effective Date of the Freestanding SARs grant.
Section 9.4. Deemed Exercise. The Committee may provide that an SAR shall be deemed
to be exercised at the close of business on the scheduled expiration date of such SAR if at such
time the SAR by its terms remains exercisable and, if so exercised, would result in a payment to
the holder of such SAR.
Section 9.5. Payment. Unless otherwise provided in an Award Notice, an SAR may be
paid in cash, Common Stock or any combination thereof, as determined by the Committee, in its sole
and absolute discretion, at the time that the SAR is exercised.
ARTICLE X
STOCK AWARDS
STOCK AWARDS
Section 10.1. Grants. Awards may be granted in the form of Stock Awards. Stock Awards
shall be awarded in such numbers and at such times during the term of the Plan as the Committee
shall determine.
Section 10.2. Performance Criteria. For Stock Awards conditioned, restricted, and/or
limited based on Performance Goals, the length of the Performance Period, the Performance Goals to
be achieved during the Performance Period, and the measure of whether and to what degree such
Performance Goals have been attained shall be conclusively determined by the Committee in the
exercise of its absolute discretion. Performance Goals may be revised by the Committee, at such
times as it deems appropriate during the Performance Period, in order to take into consideration
any unforeseen events or changes in circumstances.
Section 10.3. Rights as Stockholders. During the period in which any restricted
shares of Common Stock are subject to any restrictions, the Committee may, in its sole discretion,
deny a Participant to whom such restricted shares have been awarded all or any of the rights of a
stockholder with respect to such shares, including, but not by way of limitation, limiting the
right to vote such shares or the right to receive dividends on such shares.
Section 10.4. Evidence of Award. Any Stock Award granted under the Plan may be
evidenced in such manner as the Committee deems appropriate, including, without limitation,
book-entry registration or issuance of a stock certificate or certificates, with such restrictive
legends and/or stop transfer instructions as the Committee deems appropriate.
ARTICLE XI
RESTRICTED STOCK UNIT AWARDS
RESTRICTED STOCK UNIT AWARDS
Section 11.1. Grants. Awards may be granted in the form of Restricted Stock Unit
Awards. Restricted Stock Unit Awards shall be awarded in such numbers and at such times during the
term of the Plan as the Committee shall determine.
Section 11.2. Rights as Stockholders. Until the shares of Common Stock to be received
upon the vesting of such Restricted Stock Unit Award are actually received by a Participant, the
Participant shall have no rights as a stockholder with respect to such shares.
Section 11.3. Evidence of Award. A Restricted Stock Unit Award granted under the Plan
may be recorded on the books and records of Swift in such manner as the Committee deems
appropriate.
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ARTICLE XII
PERFORMANCE UNITS
PERFORMANCE UNITS
Section 12.1. Grants. Awards may be granted in the form of performance units.
Performance units, as that term is used in this Plan, shall refer to units valued by reference to
designated criteria established by the Committee, other than Common Stock.
Section 12.2. Performance Criteria. Performance units shall be contingent on the
attainment during a Performance Period of certain Performance Goals. The length of the Performance
Period, the Performance Goals to be achieved during the Performance Period, and the measure of
whether and to what degree such Performance Goals have been attained shall be conclusively
determined by the Committee in the exercise of its absolute discretion. Performance Goals may be
revised by the Committee, at such times as it deems appropriate during the Performance Period, in
order to take into consideration any unforeseen events or changes in circumstances.
ARTICLE
XIII
PAYMENT OF AWARDS
PAYMENT OF AWARDS
Section 13.1. Payment. Absent a Plan or Award Notice provision to the contrary,
payment of Awards may, at the discretion of the Committee, be made in cash, Common Stock, a
combination of cash and Common Stock, or any other form of property as the Committee shall
determine. In addition, payment of Awards may include such terms, conditions, restrictions, and/or
limitations, if any, as the Committee deems appropriate, including, in the case of Awards paid in
the form of Common Stock, restrictions on transfer and forfeiture provisions; provided, however,
such terms, conditions, restrictions, and/or limitations are not inconsistent with the Plan.
Section 13.2. Withholding Taxes. The Company shall be entitled to deduct from any
payment under the Plan, regardless of the form of such payment, the amount of all applicable income
and employment taxes required by law to be withheld with respect to such payment or may require the
Participant to pay to it the amount of such tax prior to and as a condition of the making of such
payment. In accordance with any applicable administrative guidelines it establishes, the Committee
may allow a Participant to pay the amount of taxes required by law to be withheld from an Award by
withholding from any payment of Common Stock due as a result of such Award, or by permitting the
Participant to deliver to Swift, shares of Common Stock having a Fair Market Value equal to the
minimum amount of such required withholding taxes. Notwithstanding the foregoing or the provision
of any Award Notice, a Participant may not pay the amount of taxes required by law to be withheld
using shares of Common Stock if, in the opinion of counsel to Swift, (i) there is a substantial
likelihood that the use of such form of payment or the timing of such form of payment would subject
the Participant to a substantial risk of liability under Section 16 of the Exchange Act, or
(ii) there is a substantial likelihood that the use of such form of payment would result in adverse
accounting treatment to the Company under generally accepted accounting principles.
ARTICLE XIV
DIVIDEND AND DIVIDEND EQUIVALENTS
DIVIDEND AND DIVIDEND EQUIVALENTS
If an Award is granted in the form of a Stock Award or stock option, or in the form of any
other stock-based grant, the Committee may choose, at the time of the grant of the Award or any
time thereafter up to the time of the Awards payment, to include as part of such Award an
entitlement to receive dividends or dividend equivalents, subject to such terms, conditions,
restrictions, and/or limitations, if any, as the Committee may establish. Dividends and dividend
equivalents shall be paid in such form and manner (i.e., lump sum or installments), and at such
time(s) as the Committee shall determine. All dividends or dividend equivalents which are not paid
currently may, at the Committees discretion, accrue interest, be reinvested into additional shares
of Common Stock or, in the case of dividends or dividend equivalents credited in connection with
Stock Awards, be credited as additional Stock Awards and paid to the Participant if and when, and
to the extent that, payment is made pursuant to such Award.
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ARTICLE XV
MISCELLANEOUS
MISCELLANEOUS
Section 15.1. Nonassignability. Except as otherwise provided in an Award Notice, no
Awards or any other payment under the Plan shall be subject in any manner to alienation,
anticipation, sale, transfer (except by will or the laws of descent and distribution), assignment,
or pledge, nor shall any Award be payable to or exercisable by anyone other than the Participant to
whom it was granted.
Section 15.2. Regulatory Approvals and Listings. Notwithstanding anything contained
in this Plan to the contrary, Swift shall have no obligation to issue or deliver certificates of
Common Stock evidencing Stock Awards or any other Award resulting in the payment of Common Stock
prior to (a) the obtaining of any approval from any governmental agency which Swift shall, in its
sole discretion, determine to be necessary or advisable, (b) the admission of such shares to
listing on the stock exchange or quotation system on which the Common Stock may be listed, and
(c) the completion of any registration or other qualification of said shares under any state or
federal law or ruling of any governmental body which Swift shall, in its sole discretion, determine
to be necessary or advisable.
Section 15.3. No Right to Continued Employment or Grants. Participation in the Plan
shall not give any Participant the right to remain in the employ or other service of the Company.
The Company reserves the right to terminate the employment or other service of a Participant at any
time. Further, the adoption of this Plan shall not be deemed to give any Employee, Director, or any
other individual any right to be selected as a Participant or to be granted an Award. In addition,
no Employee, Director, or any other individual having been selected for an Award, shall have at any
time the right to receive any additional Awards.
Section 15.4. Amendment/ Termination. The Committee may suspend or terminate the Plan
at any time for any reason with or without prior notice. In addition, the Committee may, from time
to time for any reason and with or without prior notice, amend the Plan in any manner, but may not
without stockholder approval adopt any amendment which would require the vote of the stockholders
of Swift if such approval is necessary or deemed advisable with respect to tax, securities, or
other applicable laws or regulations, including, but not limited to, the listing requirements of
the stock exchanges or quotation systems on which the securities of Swift are listed.
Notwithstanding the foregoing, without the consent of a Participant (except as otherwise provided
in Section 6.2), no amendment may materially and adversely affect any of the rights of such
Participant under any Award theretofore granted to such Participant under the Plan.
Section 15.5. Governing Law. The Plan shall be governed by and construed in accordance
with the laws of the State of Nevada, except as superseded by applicable federal law, without
giving effect to its conflicts of law provisions.
Section 15.6. No Right, Title, or Interest in Company Assets. No Participant shall
have any rights as a stockholder as a result of participation in the Plan until the date of
issuance of a stock certificate in his or her name, and, in the case of restricted shares of Common
Stock, such rights are granted to the Participant under the Plan. To the extent any person acquires
a right to receive payments from the Company under the Plan, such rights shall be no greater than
the rights of an unsecured creditor of the Company and the Participant shall not have any rights in
or against any specific assets of the Company. All of the Awards granted under the Plan shall be
unfunded.
Section 15.7. No Guarantee of Tax Consequences. No person connected with the Plan in
any capacity, including, but not limited to, the Company and its directors, officers, agents, and
employees, makes any representation, commitment, or guaranty that any tax treatment, including, but
not limited to, federal, state, and local income, estate, and gift tax treatment, will be
applicable with respect to the tax treatment of any Award, any amounts deferred under the Plan, or
paid to or for the benefit of a Participant under the Plan, or that such tax treatment will apply
to or be available to a Participant on account of participation in the Plan.
Section 15.8. Successors. All obligations of the Company under this Plan with respect
to Awards granted hereunder shall be binding on any successor to the Company, whether the existence
of such successor is the result of a direct or indirect purchase, merger, consolidation,
reincorporation, or otherwise, of all or substantially all of the business and/or assets of the
Company.
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Section 15.9 Code Section 409A. Notwithstanding any provision in this Plan to the
contrary, without the consent of the affected Participant, no action shall be taken or omitted by
the Board, Committee or Company which would (a) with respect to an Award that is subject to (and
not exempt from) Code Section 409A, cause the Award to violate any applicable provision of Code
Section 409A or (b) with respect to an Award that is not subject to (or is exempt from) Code
Section 409A, cause the Award to (i) become subject to Code Section 409A and (ii) violate any
applicable provision of Code Section 409A.
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