EXHIBIT 10.4
SMITHWAY MOTOR XPRESS CORP.
2005 OMNIBUS STOCK PLAN
NON-STATUTORY STOCK OPTION AGREEMENT
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(DIRECTOR)
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Name of Optionee:
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No. of Shares Covered: 3,000 Date of Grant:
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Exercise Price Per Share: Expiration Date:
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Exercise Schedule (Cumulative): This Option shall vest as to all of the Shares
subject to this Option on the date of the next Annual Meeting of Stockholders
following the Date of Grant, immediately prior to such meeting.
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This is a Non-Statutory Stock Option Agreement (the "Agreement") between
Smithway Motor Xpress Corp., a Nevada corporation (the "Company"), and the
optionee identified above (the "Optionee") effective as of the date of grant
specified above.
RECITALS
WHEREAS, the Company maintains the Smithway Motor Xpress Corp. 2005
Omnibus Stock Plan (the "Plan"); and
WHEREAS, pursuant to the Plan, the Board of Directors of the Company (the
"Board") or a committee of two or more directors of the Company (the
"Committee") appointed by the Board administers the Plan and has the authority
to determine the awards to be granted under the Plan (if the Board has not
appointed a committee to administer the Plan, then the Board shall constitute
the Committee); and
WHEREAS, the Committee has determined that the Optionee is eligible to
receive an award under the Plan in the form of a non-statutory stock option (the
"Option");
NOW, THEREFORE, the Company hereby grants this Option to the Optionee
under the terms and conditions as follows.
TERMS AND CONDITIONS*
1. GRANT. The Optionee is granted this Option to purchase the number of
Shares specified at the beginning of this Agreement.
2. EXERCISE PRICE. The price to the Optionee of each Share subject to this
Option shall be the exercise price specified at the beginning of this
Agreement.
3. NON-STATUTORY STOCK OPTION. This Option is not intended to be an
"incentive stock option" within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code").
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* Unless the context indicates otherwise, terms that are not defined in this
Agreement shall have the meaning set forth in the Plan as it currently exists or
as it is amended in the future.
4. EXERCISE SCHEDULE. This Option shall vest and become exercisable as to all
of the Shares one year from the Date of Grant specified at the beginning
of this Agreement; provided that that Optionee is serving as a director of
the Company on such date. The exercise schedule shall be cumulative; thus,
to this extent this Option has not already been exercised and has not
expired, terminated or been cancelled, the Optionee or the person
otherwise entitled to exercise this Option as provided herein may at any
time, and from time to time, purchase all or any portion of the Shares
then purchasable under the exercise schedule.
This Option may also be exercised in full (notwithstanding the exercise
schedule) under the circumstances described in Section 8 of this Agreement
if it has not expired prior thereto.
5. EXPIRATION. This Option shall expire at 5:00 p.m. Central Time on the
earliest of:
(a) The expiration date specified at the beginning of this Agreement
(which date shall not be later than ten years after the date of
grant);
(b) The expiration of the period after the death of the Optionee within
which the Option can be exercised (as specified in Section 7 of this
Agreement); or
(c) The date (if any) fixed for cancellation pursuant to Section 17 of
the Plan.
In no event may anyone exercise this Option, in whole or in part, after it
has expired, notwithstanding any other provision of this Agreement.
6. PROCEDURE TO EXERCISE OPTION.
Notice of Exercise. This Option may be exercised by delivering written
notice of exercise to the Company at the principal executive office of the
Company, to the attention of the Company's Treasurer, in the form attached
to this Agreement. The notice shall state the number of Shares to be
purchased, and shall be signed by the person exercising this Option. If
the person exercising this Option is not the Optionee, he/she also must
submit appropriate proof of his/her right to exercise this Option.
Tender of Payment. Upon giving notice of any exercise hereunder, the
Optionee shall provide for payment of the purchase price of the Shares
being purchased through one or a combination of the following methods:
(a) Cash (including check, bank draft or money order);
(b) To the extent permitted by law, through a broker-assisted cashless
exercise in which the Optionee simultaneously exercises the Option
and sells all or a portion of the Shares thereby acquired pursuant
to a brokerage or similar relationship and uses the proceeds from
such sale to pay the purchase price of such Shares;
(c) By delivery to the Company of unencumbered Shares having an
aggregate Fair Market Value on the date of exercise equal to the
purchase price of such Shares; or
(d) By authorizing the Company to retain, from the total number of
Shares as to which the Option is exercised, that number of Shares
having a Fair Market Value on the date of exercise equal to the
purchase price for the total number of Shares as to which the Option
is exercised.
Notwithstanding the foregoing, the Optionee shall not be permitted to pay
any portion of the purchase price with Shares, or by authorizing the
Company to retain Shares upon exercise of the Option, if the Committee, in
its sole discretion, determines that payment in such manner is
undesirable.
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Delivery of Certificates. As soon as practicable after the Company
receives the notice and purchase price provided for above, it shall
deliver to the person exercising this Option, in the name of such person,
a certificate or certificates representing the Shares being purchased. The
Company shall pay any original issue or transfer taxes with respect to the
issue or transfer of the Shares and all fees and expenses incurred by it
in connection therewith. All Shares so issued shall be fully paid and
nonassessable. Notwithstanding anything to the contrary in this Agreement,
no certificate for Shares distributable under the Plan shall be issued and
delivered unless the issuance of such certificate complies with all
applicable legal requirements including, without limitation, compliance
with the provisions of applicable state securities laws, the Securities
Act of 1933, as amended (the "Securities Act") and the Exchange Act.
7. DEATH. This Option may be exercised only while the Optionee remains alive;
provided that this Option may be exercised within one year after the
Optionee's death, but only to the extent it was exercisable immediately
prior to the Optionee's death. Notwithstanding the preceding sentence, the
Option may not be exercised after it has expired.
8. ACCELERATION OF VESTING.
In the event of a Fundamental Change the Committee shall:
(a) if the Fundamental Change is a merger or consolidation or statutory
share exchange, make appropriate provision for the protection of
this Option by the substitution for this Option of options or voting
common stock of the corporation surviving any merger or
consolidation or, if appropriate, the parent corporation of the
Company or such surviving corporation; or
(b) at least ten days before the occurrence of the Fundamental Change,
declare, and provide written notice to the Optionee of the
declaration, that this Option, whether or not then exercisable,
shall be canceled at the time of, or immediately before the
occurrence of, the Fundamental Change (unless it shall have been
exercised prior to the occurrence of the Fundamental Change). In
connection with any such declaration, the Committee may, but shall
not be obligated to, cause payment to be made to the Optionee of
cash equal to, for each Share covered by the canceled Option, the
amount, if any, by which the Fair Market Value per share exceeds the
exercise price per Share covered by this Option. At the time of any
such declaration, this Option shall immediately become exercisable
in full and the Optionee shall have the right, during the period
preceding the time of cancellation of this Option, to exercise this
Option as to all or any part of the Shares covered by this Option.
In the event of a declaration pursuant to this subsection, to the
extent this Option has not been exercised prior to the Fundamental
Change, the unexercised part of this Option shall be canceled at the
time of, or immediately before, the Fundamental Change, as provided
in the declaration. Notwithstanding the foregoing, the holder of
this Option shall not be entitled to the payment provided for in
this subsection if this Option shall have expired pursuant to
Section 5 above or been cancelled. For purposes of this subsection
only, "Fair Market Value" per share has the meaning set forth in
Section 17 of the Plan.
Discretionary Acceleration. Notwithstanding any other provisions of this
Agreement to the contrary, the Committee may, in its sole discretion,
declare at any time that the Option shall be immediately exercisable.
9. LIMITATION ON TRANSFER. During the lifetime of the Optionee, only the
Optionee or his/her guardian or legal representative may exercise the
Option. The Option may not be assigned or transferred by the Optionee
otherwise than by will or the laws of descent and distribution or pursuant
to a qualified domestic relations order as defined by the Code or Title I
of the Employee Retirement Income Security Act, or the rules thereunder.
The Option held by any such transferee
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shall continue to be subject to the same terms and conditions that were
applicable to the Option immediately prior to its transfer and may be
exercised by such transferee as and to the extent that the Option has
become exercisable and has not terminated in accordance with the
provisions of the Plan and this Agreement.
10. NO SHAREHOLDER RIGHTS BEFORE EXERCISE. No person shall have any of the
rights of a shareholder of the Company with respect to any Share subject
to the Option until the Share actually is issued to him/her upon exercise
of the Option.
11. LOCK-UP PERIOD.
(a) The Optionee agrees that the Optionee will not offer, pledge, sell,
contract to sell, sell any option, sell any contract to purchase,
purchase any option, purchase any contract to sell, grant any
option, right, or warrant to purchase, lend, or otherwise transfer
or dispose of, directly or indirectly, any Shares (or any other
Company securities) or enter into any swap, hedging, or other
arrangement that transfers to another, in whole or in part, any of
the economic consequences of ownership of any Shares (or any other
Company securities) held by the Optionee (other than those included
in the registration) for a period specified by the representative of
the underwriters of Stock (or any other Company securities) not to
exceed 90 days (180 days in the case of an initial public offering)
after the effective date of any Company registration statement filed
under the Securities Act.
(b) The Optionee agrees to execute and deliver such other agreements as
may be reasonably requested by the Company or the underwriter to the
extent that such agreements are consistent with the foregoing or
that are necessary to give further effect to the provisions set
forth in Section 11(a). In addition, if requested by the Company or
the representative of the underwriters of Stock (or any other
Company securities), the Optionee will provide, within 10 days of
such request, such information as may be required by the Company or
such representative in connection with the completion of any public
offering of the Company's securities pursuant to a registration
statement filed under the Securities Act.
(c) The obligations described in this Section 11 will not apply to a
registration relating solely to employee benefit plans on Form S-1
or Form S-8 or similar forms that may be promulgated in the future,
or a registration relating solely to a Commission Rule 145
transaction on Form S-4 or similar forms that may be promulgated in
the future. The Company may impose stop-transfer instructions with
respect to the shares of Stock (or any other Company securities)
subject to the foregoing restriction until the end of such 90-day or
180-day period, as applicable.
12. DISCRETIONARY ADJUSTMENT. In the event of any reorganization, merger,
consolidation, recapitalization, liquidation, reclassification, stock
dividend, stock split, combination of shares, rights offering, or
extraordinary dividend or divestiture (including a spin-off), or any other
change in the corporate structure or Shares of the Company, the Committee
(or if the Company does not survive any such transaction, a comparable
committee of the Board of Directors of the surviving corporation) may,
without the consent of the Optionee, make such adjustment as it determines
in its discretion to be appropriate as to the number and kind of
securities subject to and reserved under the Plan and, in order to prevent
dilution or enlargement of rights of the Optionee, the number and kind of
securities issuable upon exercise of the Option and the exercise price
hereof.
13. TAX WITHHOLDING. Delivery of Shares upon exercise of the Option shall be
subject to any required withholding taxes. As a condition precedent to
receiving Shares upon exercise of the Option, the Optionee may be required
to pay to the Company, in accordance with the provisions of Section 14 of
the Plan, an amount equal to the amount of any required withholdings. In
lieu of
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all or any part of such a cash payment, a person exercising the Option may
cover all or any part of the required withholdings, and any additional
withholdings up to the amount needed to cover the individual's full FICA
and federal, state and local income tax liability with respect to income
arising from the exercise of the Option, through the delivery to the
Company of unencumbered Shares, through a reduction in the number of
Shares delivered to the person exercising the Option or through a
subsequent return to the Company of Shares delivered to the person
exercising the Option (in each case, such Shares having an aggregate Fair
Market Value on the date of exercise equal to the amount of the
withholding taxes being paid through such delivery, reduction or
subsequent return of Shares). Notwithstanding the foregoing, no person
shall be permitted to pay any such withholdings with Shares, or through a
reduction in the number of Shares to be delivered upon exercise of the
Option, if the Committee, in its sole discretion, determines that payment
in such manner is undesirable.
14. INTERPRETATION OF THIS AGREEMENT. All decisions and interpretations made
by the Committee with regard to any question arising hereunder or under
the Plan shall be binding and conclusive upon the Company and the
Optionee. If there is any inconsistency between the provisions of this
Agreement and the Plan, the provisions of the Plan shall govern.
15. DISCONTINUANCE OF EMPLOYMENT. This Agreement shall not give the Optionee a
right to continued employment with the Company or any parent or subsidiary
of the Company, and the Company or any such parent or subsidiary employing
the Optionee may terminate his/her employment at any time and otherwise
deal with the Optionee without regard to the effect it may have upon
him/her under this Agreement.
16. OPTION SUBJECT TO PLAN, ARTICLES OF INCORPORATION AND BY-LAWS. The
Optionee acknowledges that the Option and the exercise thereof is subject
to the Plan, the Articles of Incorporation, as amended from time to time,
and the By-Laws, as amended from time to time, of the Company, and any
applicable federal or state laws, rules or regulations.
17. OBLIGATION TO RESERVE SUFFICIENT SHARES. The Company shall at all times
during the term of the Option reserve and keep available a sufficient
number of Shares to satisfy this Agreement.
18. BINDING EFFECT. This Agreement shall be binding in all respects on the
heirs, representatives, successors and assigns of the Optionee.
19. CHOICE OF LAW. This Agreement is entered into under the laws of the State
of Iowa and shall be construed and interpreted thereunder (without regard
to its conflict of law principles).
IN WITNESS WHEREOF, the Optionee and the Company have executed this
Agreement as of the Date of Grant specified above.
OPTIONEE
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SMITHWAY MOTOR XPRESS CORP.
By_____________________________________
Its__________________________________
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__________________, 20__
Smithway Motor Xpress Corp.
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Ladies and Gentlemen:
I hereby exercise the following option (the "Option") granted to me under
the Smithway Motor Xpress Corp. 2005 Omnibus Stock Plan (the "Plan") with
respect to the number of shares of Common Stock of Smithway Motor Xpress Corp.
(the "Company") indicated below:
NAME: ______________________________
DATE OF GRANT OF OPTION: ______________________________
EXERCISE PRICE PER SHARE: ______________________________
NUMBER OF SHARES WITH RESPECT TO
WHICH THE OPTION IS HEREBY EXERCISED: ______________________________
TOTAL EXERCISE PRICE: ______________________________
[ ] Enclosed with this letter is a check, bank draft or money order in
the amount of the Total Exercise Price.
[ ] I hereby agree to pay the Total Exercise Price within five
business days of the date hereof and, as stated in the attached
Broker's Letter, I have delivered irrevocable instructions to
_________________________________ to promptly deliver to the Company
the amount of sale or loan proceeds from the Shares to be issued
pursuant to this exercise necessary to satisfy my obligation
hereunder to pay the Total Exercise Price.
[ ] Enclosed with this letter is a certificate evidencing unencumbered
Shares (duly endorsed in blank) having an aggregate Fair Market
Value (as defined in the Plan) equal to or in excess of the Total
Exercise Price.
[ ] I elect to pay the Total Exercise Price through a reduction in the
number of Shares delivered to me upon this exercise of the Option as
provided in Section 9 of the Plan.
If I am enclosing Shares with this letter, I hereby represent and warrant
that I am the owner of such Shares free and clear of all liens, security
interests and other restrictions or encumbrances. I agree that I will pay any
required withholding taxes in connection with this exercise.
Please issue a certificate (the "Certificate") for the number of Shares
with respect to which the Option is being exercised in the name of the person
indicated below and deliver the Certificate to the address indicated below:
NAME IN WHICH TO ISSUE CERTIFICATE: _________________________
ADDRESS TO WHICH CERTIFICATE SHOULD BE
DELIVERED: _________________________
_________________________
_________________________
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PRINCIPAL MAILING ADDRESS FOR HOLDER OF
THE CERTIFICATE (IF DIFFERENT FROM ABOVE):
_________________________
_________________________
_________________________
____________
Very truly yours,
_______________________________
Signature
_______________________________
Name, please print
_______________________________
Social Security Number
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__________________, 20__
Smithway Motor Xpress Corp.
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Ladies and Gentlemen:
NAME OF OPTIONEE: ____________________________
DATE OF GRANT OF OPTION: ____________________________
EXERCISE PRICE PER SHARE: ____________________________
NUMBER OF SHARES WITH RESPECT TO WHICH
THE OPTION IS TO BE EXERCISED: ____________________________
TOTAL EXERCISE PRICE: ____________________________
The above Optionee has requested that we finance the exercise of the above
Option to purchase Shares of Common Stock of Smithway Motor Xpress Corp. (the
"Company") and has given us irrevocable instructions to promptly deliver to the
Company the amount of sale or loan proceeds from the Shares to be issued
pursuant to such exercise to satisfy the Optionee's obligation to pay the Total
Exercise Price.
Very truly yours,
________________________________
Broker Name
By______________________________