EXHIBIT 10.2
AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT
THIS AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT (this
"AGREEMENT") is entered into as of the ___ day of July, 2006 by and between
Swift Transportation Co., Inc., a Nevada corporation (the "COMPANY"), and
_____________ ("EXECUTIVE").
W I T N E S S E T H
WHEREAS, the Company considers the establishment and maintenance of
a sound and vital management to be essential to protecting and enhancing the
best interests of the Company and its stockholders; and
WHEREAS, the Company recognizes that, as is the case with many
publicly held corporations, the possibility of a change in control may arise and
that such possibility may result in the departure or distraction of management
personnel to the detriment of the Company and its stockholders; and
WHEREAS, the Board (as defined in Section 1) has determined that it
is in the best interests of the Company and its stockholders to secure
Executive's continued services and to ensure Executive's continued dedication to
his duties in the event of any threat or occurrence of a Change in Control (as
defined in Section 1) of the Company;
WHEREAS, the Company and Executive entered into a Change in Control
Agreement dated as of October 27, 2005 (the "ORIGINAL AGREEMENT"); and
WHEREAS, the Board has authorized the Company to amend and restate
the Original Agreement as set forth in this Agreement.
NOW, THEREFORE, for and in consideration of the premises and the
mutual covenants and agreements herein contained, the Company and Executive
hereby agree that the Original Agreement be amended and restated as follows:
1. Definitions. As used in this Agreement, the following terms shall
have the respective meanings set forth below:
(a) "BOARD" means the Board of Directors of the Company.
(b) "BONUS AMOUNT" means the highest annual incentive bonus earned
by Executive from the Company (or its affiliates) during the last three (3)
completed fiscal years of the Company immediately preceding Executive's Date of
Termination (annualized in the event Executive was not employed by the Company
(or its affiliates) for the whole of any such fiscal year), or, in the event
that Executive has not
been employed by the Company for any part of a prior year at the relevant time
hereunder, the "Bonus Amount" will mean Executive's target annual incentive
bonus).
(c) "CAUSE" means (i) the willful and continued failure of Executive
to perform substantially his duties with the Company (other than any such
failure resulting from Executive's incapacity due to physical or mental illness
or any such failure subsequent to Executive being delivered a notice of
termination, pursuant to Section 9, without Cause by the Company or delivering a
notice of termination, pursuant to Section 9, for Good Reason to the Company)
after a written demand for substantial performance is delivered to Executive by
the Board which specifically identifies the manner in which the Board believes
that Executive has not substantially performed Executive's duties, or (ii) the
willful engaging by Executive in illegal conduct or gross misconduct which is
demonstrably and materially injurious to the Company or its affiliates. For
purpose of this paragraph (c), no act or failure to act by Executive shall be
considered "willful" unless done or omitted to be done by Executive in bad faith
and without reasonable belief that Executive's action or omission was in the
best interests of the Company or its affiliates. Any act, or failure to act,
based upon authority given pursuant to a resolution duly adopted by the Board,
based upon the advice of counsel for the Company or upon the instructions of the
Company's chief executive officer or another senior officer of the Company shall
be conclusively presumed to be done, or omitted to be done, by Executive in good
faith and in the best interests of the Company. Cause shall not exist unless and
until the Company has delivered to Executive a copy of a resolution duly adopted
by three-quarters (3/4) of the entire Board (excluding Executive if Executive is
a Board member) at a meeting of the Board called and held for such purpose
(after reasonable notice to Executive and an opportunity for Executive, together
with counsel, to be heard before the Board), finding that in the good faith
opinion of the Board an event set forth in clauses (i) or (ii) has occurred and
specifying the particulars thereof in detail.
(d) "CHANGE IN CONTROL" means the occurrence of any one of the
following events:
(i) individuals who, on the date of this Agreement, constitute the
Board (the "INCUMBENT DIRECTORS") cease for any reason to constitute at
least a majority of the Board, provided that any person becoming a
director subsequent to the date of this Agreement, whose election or
nomination for election was approved by a vote of at least two-thirds of
the Incumbent Directors then on the Board (either by a specific vote or by
approval of the proxy statement of the Company in which such person is
named as a nominee for director, without written objection to such
nomination) shall be an Incumbent Director; provided, however, that (i) no
individual elected or nominated as a director of the Company as a result
of an actual or threatened election contest with respect to directors or
as a result of any other actual or threatened solicitation of proxies or
consents by or on behalf of any person other than the Board (any such
election or proxy contest, a "PROXY CONTEST"), and (ii) no Incumbent
Director who engages in a Proxy Contest shall be deemed to be an Incumbent
Director;
-2-
(ii) any "person" (as such term is defined in Section 3(a)(9) of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT") and as
used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act) is or becomes
a "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company representing more
than 50% of the combined voting power of the Company's then outstanding
securities eligible to vote for the election of the Board (the "COMPANY
VOTING SECURITIES"); provided, however, that the event described in this
paragraph (ii) shall not be deemed to be a Change in Control by virtue of
any of the following acquisitions: (A) by the Company or any Subsidiary,
(B) by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any Subsidiary, or (C) by any underwriter
temporarily holding securities pursuant to an offering of such securities;
(iii) the consummation of a merger, consolidation, statutory share
exchange or similar form of corporate transaction involving the Company or
any of its Subsidiaries that requires the approval of the Company's
stockholders, whether for such transaction or the issuance of securities
in the transaction (a "BUSINESS COMBINATION"), unless immediately
following such Business Combination: (A) more than 50% of the total voting
power of (x) the corporation resulting from such Business Combination (the
"SURVIVING CORPORATION"), or (y) if applicable, the ultimate parent
corporation that directly or indirectly has beneficial ownership of at
least 95% of the voting securities eligible to elect directors of the
Surviving Corporation (the "PARENT CORPORATION"), is represented by
Company Voting Securities that were outstanding immediately prior to such
Business Combination (or, if applicable, is represented by shares into
which such Company Voting Securities were converted pursuant to such
Business Combination), and such voting power among the holders thereof is
in substantially the same proportion as the voting power of such Company
Voting Securities among the holders thereof immediately prior to the
Business Combination, (B) no person (other than any employee benefit plan
(or related trust) sponsored or maintained by the Surviving Corporation or
the Parent Corporation), is or becomes the beneficial owner, directly or
indirectly, of 50% or more of the total voting power of the outstanding
voting securities eligible to elect directors of the Parent Corporation
(or, if there is no Parent Corporation, the Surviving Corporation) and (C)
at least a majority of the members of the board of directors of the Parent
Corporation (or, if there is no Parent Corporation, the Surviving
Corporation) following the consummation of the Business Combination were
Incumbent Directors at the time of the Board's approval of the execution
of the initial agreement providing for such Business Combination (any
Business Combination which satisfies all of the criteria specified in (A),
(B) and (C) above shall be deemed to be a "NON-QUALIFYING TRANSACTION");
or
-3-
(iv) the stockholders of the Company approve a plan of complete
liquidation or dissolution of the Company or the consummation of a sale of
all or substantially all of the Company's assets.
(e) "DATE OF TERMINATION" means (i) the effective date on which
Executive's employment by the Company terminates as specified in a prior written
notice by the Company or Executive, as the case may be, to the other, delivered
pursuant to Section 9 or (ii) if Executive's employment by the Company
terminates by reason of death, the date of death of Executive.
(f) "DISABILITY" means termination of Executive's employment by the
Company due to Executive's absence from Executive's duties with the Company on a
full-time basis for at least one hundred eighty (180) days in any two hundred
seventy (270) day period as a result of Executive's incapacity due to physical
or mental illness.
(g) "GOOD REASON" means, without Executive's express written
consent, the occurrence of any of the following events after a Change in
Control:
(i) (A) any change in the duties or responsibilities (including
reporting responsibilities) of Executive that is inconsistent in any
material and adverse respect with Executive's position(s), duties,
responsibilities or status with the Company immediately prior to such
Change in Control (including any material and adverse diminution of such
duties or responsibilities), including any change that is directly or
indirectly a result of the Company no longer being a publicly traded
entity, or (B) a material and adverse change in Executive's titles or
offices (including, if applicable, membership on the Board) with the
Company as in effect immediately prior to such Change in Control;
(ii) a reduction by the Company in Executive's rate of annual base
salary or annual target bonus opportunity (including any material and
adverse change in the formula for such annual bonus target) as in effect
immediately prior to such Change in Control or as the same may be
increased from time to time thereafter;
(iii) any requirement of the Company that Executive (A) be based
anywhere more than thirty-five (35) miles from Phoenix, AZ, or (B) travel
on Company business to an extent substantially greater than the travel
obligations of Executive immediately prior to such Change in Control;
(iv) the failure of the Company to (A) continue in effect any
employee benefit plan, compensation plan, welfare benefit plan or material
fringe benefit plan in which Executive is participating immediately prior
to such Change in Control or the taking of any action by the Company which
would adversely affect Executive's participation in or reduce Executive's
benefits under any such plan, unless Executive is permitted to participate
in other plans providing Executive with substantially equivalent benefits
(at substantially equivalent cost with respect
-4-
to welfare benefit plans), or (B) provide Executive with paid vacation in
accordance with the most favorable vacation policies of the Company as in
effect for Executive immediately prior to such Change in Control,
including the crediting of all service for which Executive had been
credited under such vacation policies prior to the Change in Control;
(v) unless any such action by the Board or its members was approved
by a vote of at least a majority of the Incumbent Directors then on the
Board, (A) the Executive being overruled by the Board or any members
thereof on any decision of the Executive which is consistent with
Executive's job, position and/or duties as in effect prior to the date of
the Change in Control, so long as the Executive's decision that is being
overruled was a bona fide decision, or (B) the Board or the members
thereof making a decision that materially undermines Executive's authority
over the officers and/or other employees of the Company, as relevant,
despite Executive's bona fide objection to such decision;
(vi) any purported termination of Executive's employment which is
not effectuated pursuant to Section 9(b) (and which will not constitute a
termination hereunder);
(vii) the failure of the Company to obtain the assumption (and, if
applicable, guarantee) agreement from any successor (and Parent
Corporation) as contemplated in Section 8(b);
(viii) the termination of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇'▇ employment as Chief
Executive Officer of the Company either (A) by ▇▇. ▇▇▇▇▇▇▇▇▇▇ for "Good
Reason" (as such term is defined in the written change in control
agreement between the Company and ▇▇. ▇▇▇▇▇▇▇▇▇▇ dated October 27, 2005,
as amended (the "▇▇▇▇▇▇▇▇▇▇ AGREEMENT")) or (B) by the Company other than
for "Cause" (as such term is defined in the ▇▇▇▇▇▇▇▇▇▇ Agreement) unless
the Company's decision to terminate ▇▇. ▇▇▇▇▇▇▇▇▇▇'▇ employment as Chief
Executive Officer of the Company was approved by a vote of at least a
majority of the Incumbent Directors then on the Board; or
(ix) any "person" (as such term is defined in Section 3(a)(9) of the
Exchange Act and as used in Sections 13(d)(3) and 14(d)(2) of the Exchange
Act) is or becomes a "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Company
representing more than 50% of the combined voting power of the Company's
then outstanding securities eligible to vote for the election of the Board
and such "person" is or includes ▇▇▇▇▇ ▇▇▇▇▇, any affiliate of ▇▇▇▇▇
▇▇▇▇▇, or any entity that is controlled by or under common control with
▇▇▇▇▇ ▇▇▇▇▇ or any of his affiliates (including but not limited to a
trust).
Notwithstanding anything herein to the contrary, the termination of
Executive's employment by Executive for any reason or no reason during the
30-day
-5-
period commencing on the six (6) month anniversary of the date of a Change in
Control shall be deemed for all purposes to be a termination for Good Reason. An
isolated, insubstantial and inadvertent action taken in good faith and which is
remedied by the Company within ten (10) days after receipt of notice thereof
given by Executive shall not constitute Good Reason. Executive's right to
terminate employment for Good Reason shall not be affected by Executive's
incapacities due to mental or physical illness.
Executive and the Company agree that Executive will notify the
Company of his intention to resign for Good Reason (if Executive chooses to
exercise such right), within fifty-five (55) days of the first occurrence of the
event or action which constitutes Good Reason hereunder, and shall designate
Executive's effective date of resignation to be not later than seventy (70) days
after such event or action. The Executive's failure to object to an event or
action that constituted Good Reason within this period will preclude Executive
from relying on such event following this period.
(h) "QUALIFYING TERMINATION" means a termination of Executive's
employment (i) by the Company other than for Cause or (ii) by Executive for Good
Reason. Termination of Executive's employment on account of death (other than
death after the delivery of a valid notice of termination without Cause or for
Good Reason), Disability or Retirement shall not be treated as a Qualifying
Termination.
(i) "RETIREMENT" means Executive's mandatory retirement (not
including any mandatory early retirement) in accordance with the Company's
retirement policy generally applicable to its salaried employees, as in effect
immediately prior to the Change in Control, or in accordance with any retirement
arrangement established with respect to Executive with Executive's written
consent.
(j) "SUBSIDIARY" means any corporation or other entity in which the
Company has a direct or indirect ownership interest of 50% or more of the total
combined voting power of the then outstanding securities or interests of such
corporation or other entity entitled to vote generally in the election of
directors or in which the Company has the right to receive 50% or more of the
distribution of profits or 50% of the assets or liquidation or dissolution.
(k) "TERMINATION PERIOD" means the period of time beginning with a
Change in Control and ending two (2) years following such Change in Control.
Notwithstanding anything in this Agreement to the contrary, if Executive's
employment is terminated prior to a Change in Control but in connection with a
potential Change in Control and after the Company or a third party had taken
affirmative steps to effectuate a Change in Control, for reasons that would have
constituted a Qualifying Termination if they had occurred following a Change in
Control (other than as described in Section 1(g)(vii)), then for purposes of
this Agreement, the date immediately prior to the date of such termination of
employment or event constituting Good Reason shall be treated as a Change in
Control if and only if an actual Change of Control does, in fact, occur within
one (1) year of such termination. For purposes of determining the timing of
payments
-6-
and benefits to Executive under Section 3, the date of the actual Change in
Control shall be treated as Executive's Date of Termination under Section 1(e),
and for purposes of determining the amount of payments and benefits to Executive
under Section 3, the date Executive's employment is actually terminated shall be
treated as Executive's Date of Termination under Section 1(e).
2. Term of Agreement. This Agreement shall be effective on the date
hereof and shall continue in effect until the Company shall have given three (3)
years' written notice of cancellation; provided, that, notwithstanding the
delivery of any such notice, this Agreement shall continue in effect for a
period of two (2) years after a Change in Control, if such Change in Control
shall have occurred during the term of this Agreement. Notwithstanding anything
in this Section to the contrary, this Agreement shall terminate if Executive or
the Company terminates Executive's employment prior to a Change in Control,
except as provided in Section 1(k).
3. Payments and Benefits Upon a Change in Control and Termination of
Employment.
(a) Severance Benefits. If during the Termination Period the
employment of Executive shall terminate pursuant to a Qualifying Termination,
then the Company shall provide to Executive:
(i) within ten (10) days following the Date of Termination a
lump-sum cash amount equal to the sum of (A) Executive's base salary
through the Date of Termination and any bonus amounts which have become
payable, to the extent not theretofore paid or deferred, (B) a pro rata
portion of Executive's annual bonus for the fiscal year in which
Executive's Date of Termination occurs in an amount at least equal to (x)
Executive's Bonus Amount, multiplied by (y) a fraction, the numerator of
which is the number of days in the fiscal year in which the Date of
Termination occurs through the Date of Termination and the denominator of
which is three hundred sixty-five (365), and any accrued vacation pay, in
each case to the extent not theretofore paid; plus
(ii) all employee benefits as to which Executive may be entitled
under the employee benefit plans, programs and policies of the Company and
its affiliates (the amounts and benefits described in subsections (i) and
(ii), the "ACCRUED AMOUNTS"); plus
(iii) within ten (10) days following the Date of Termination, a
lump-sum cash amount equal to (A) three (3) times Executive's highest
annual rate of base salary during the 12-month period immediately prior to
Executive's Date of Termination, plus (B) three (3) times Executive's
Bonus Amount.
(b) Welfare Benefits. If during the Termination Period the
employment of Executive shall terminate pursuant to a Qualifying Termination,
then the Company shall continue to provide, for a period of two (2) years
following Executive's
-7-
Date of Termination, Executive (and Executive's dependents, if applicable) with
the same level of medical, dental, accident, disability and life insurance
benefits upon substantially the same terms and conditions (including
contributions required by Executive for such benefits) as existed immediately
prior to Executive's Date of Termination (or, if more favorable to Executive, as
such benefits and terms and conditions existed immediately prior to the Change
in Control); provided, that, if Executive cannot continue to participate in the
Company plans providing such benefits, the Company shall otherwise provide such
benefits on the same after-tax basis as if continued participation had been
permitted. Notwithstanding the foregoing, in the event Executive becomes
reemployed with another employer and becomes eligible to receive welfare
benefits from such employer, the welfare benefits described herein shall be
secondary to such benefits during the period of Executive's eligibility, but
only to the extent that the Company reimburses Executive for any increased cost
and provides any additional benefits necessary to give Executive the benefits
provided hereunder.
(c) Acceleration of Equity Compensation. Upon a Change in Control,
any equity or equity-based compensation or awards that have been granted to
Executive by the Company or its affiliates which remain unvested, or pursuant to
which the restrictions have not lapsed, shall become immediately vested,
exercisable, and all restrictions thereon shall lapse.
(d) Non-Qualifying Termination. If during the Termination Period the
employment of Executive shall terminate other than by reason of a Qualifying
Termination, then the Company shall pay to Executive within thirty (30) days
following the Date of Termination, the Accrued Amounts. The Company may make
such additional payments, and provide such additional benefits, to Executive as
the Company and Executive may agree in writing.
4. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary notwithstanding, in
the event it shall be determined that any payment, award, benefit or
distribution (or any acceleration of any payment, award, benefit or
distribution) by the Company (or any of its affiliated entities) or any entity
which effectuates a Change in Control (or any of its affiliated entities) to or
for the benefit of Executive (whether pursuant to the terms of this Agreement or
otherwise, but determined without regard to any additional payments required
under this Section 4) (the "PAYMENTS") would be subject to the excise tax
imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the
"CODE"), or any interest or penalties are incurred by Executive with respect to
such excise tax (such excise tax, together with any such interest and penalties,
are hereinafter collectively referred to as the "EXCISE TAX"), then the Company
shall pay to Executive an additional payment (a "GROSS-UP PAYMENT") in an amount
such that, after payment by Executive of all taxes (including, without
limitation, any income taxes and any interest and penalties imposed with respect
thereto, and any excise tax) imposed upon the Gross-Up Payment, Executive
retains an amount of the Gross-Up Payment equal to the Excise
-8-
Tax imposed upon the Payments. For purposes of determining the amount of the
Gross-Up Payment, Executive shall be deemed to (i) pay federal income taxes at
the highest marginal rates of federal income taxation for the calendar year in
which the Gross-Up Payment is to be made, and (ii) pay applicable state and
local income taxes at the highest marginal rate of taxation for the calendar
year in which the Gross-Up Payment is to be made, net of the maximum reduction
in federal income taxes which could be obtained from deduction of such state and
local taxes.
(b) Subject to the provisions of Section 4(a), all determinations
required to be made under this Section 4, including whether and when a Gross-Up
Payment is required, the amount of such Gross-Up Payment, the amount of any
Option Redetermination (as defined below) and the assumptions to be utilized in
arriving at such determinations, shall be made by the public accounting firm
that is retained by the Company as of the date immediately prior to the Change
in Control (the "ACCOUNTING FIRM") which shall provide detailed supporting
calculations both to the Company and Executive within fifteen (15) business days
of the receipt of notice from the Company or Executive that there has been a
Payment, or such earlier time as is requested by the Company (collectively, the
"DETERMINATION"). Notwithstanding the foregoing, in the event (i) the Board
shall determine prior to the Change in Control that the Accounting Firm is
precluded from performing such services under applicable auditor independence
rules, (ii) the Audit Committee of the Board determines that it does not want
the Accounting Firm to perform such services because of auditor independence
concerns or (iii) the Accounting Firm is serving as accountant or auditor for
the person(s) effecting the Change in Control, the Board shall appoint another
nationally recognized public accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to as the Accounting
Firm hereunder). All fees and expenses of the Accounting Firm shall be borne
solely by the Company and the Company shall enter into any agreement requested
by the Accounting Firm in connection with the performance of the services
hereunder. The Gross-Up Payment under this Section 4 with respect to any
Payments shall be made no later than thirty (30) days following such Payment. If
the Accounting Firm determines that no Excise Tax is payable by Executive, it
shall furnish Executive with a written opinion to such effect, and to the effect
that failure to report the Excise Tax, if any, on Executive's applicable federal
income tax return will not result in the imposition of a negligence or similar
penalty. The Determination by the Accounting Firm shall be binding upon the
Company and Executive. As a result of the uncertainty in the application of
Section 4999 of the Code at the time of the Determination, it is possible that
Gross-Up Payments which will not have been made by the Company should have been
made ("UNDERPAYMENT") or Gross-Up Payments are made by the Company which should
not have been made ("OVERPAYMENT"), consistent with the calculations required to
be made hereunder. In the event the amount of the Gross-Up Payment is less than
the amount necessary to reimburse
-9-
Executive for his Excise Tax, the Accounting Firm shall determine the amount of
the Underpayment that has occurred and any such Underpayment (together with
interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be
promptly paid by the Company to or for the benefit of Executive. In the event
the amount of the Gross-Up Payment exceeds the amount necessary to reimburse
Executive for his Excise Tax, the Accounting Firm shall determine the amount of
the Overpayment that has been made and any such Overpayment (together with
interest at the rate provided in Section 1274(b)(2) of the Code) shall be
promptly paid by Executive (to the extent Executive has received a refund if the
applicable Excise Tax has been paid to the Internal Revenue Service) to or for
the benefit of the Company. Executive shall cooperate, to the extent Executive's
expenses are reimbursed by the Company, with any reasonable requests by the
Company in connection with any contests or disputes with the Internal Revenue
Service in connection with the Excise Tax.
5. Withholding Taxes. The Company may withhold from all payments due
to Executive (or his beneficiary or estate) hereunder all taxes which, by
applicable federal, state, local or other law, the Company is required to
withhold therefrom.
6. Reimbursement of Expenses. If any contest or dispute shall arise
under this Agreement involving termination of Executive's employment with the
Company or involving the failure or refusal of the Company to perform fully in
accordance with the terms hereof, the Company shall reimburse Executive, on a
current basis, for all reasonable legal fees and expenses, if any, incurred by
Executive in connection with such contest or dispute (regardless of the result
thereof), together with interest in an amount equal to the prime rate of
interest from time to time in effect, but in no event higher than the maximum
legal rate permissible under applicable law, such interest to accrue from the
date the Company receives Executive's statement for such fees and expenses
through the date of payment thereof, regardless of whether or not Executive's
claim is upheld by a court of competent jurisdiction/arbitration panel;
provided, however, Executive shall be required to repay any such amounts to the
Company to the extent that a court/arbitration panel issues a final and
non-appealable order setting forth the determination that the position taken by
Executive was frivolous or advanced by Executive in bad faith.
7. Scope of Agreement. Nothing in this Agreement shall be deemed to
entitle Executive to continued employment with the Company or its Subsidiaries,
and if Executive's employment with the Company shall terminate prior to a Change
in Control, Executive shall have no further rights under this Agreement (except
as otherwise provided hereunder); provided, however, that any termination of
Executive's employment during the Termination Period shall be subject to all of
the provisions of this Agreement.
8. Successors; Binding Agreement.
(a) This Agreement shall not be terminated by any Business
Combination. In the event of any Business Combination, the provisions of this
Agreement shall be binding upon the Surviving Corporation, and such Surviving
Corporation shall be treated as the Company hereunder.
-10-
(b) The Company agrees that in connection with any Business
Combination, it will cause any successor entity to the Company unconditionally
to assume (and for any Parent Corporation in such Business Combination to
guarantee), by written instrument delivered to Executive (or his beneficiary or
estate), all of the obligations of the Company hereunder. Failure of the Company
to obtain such assumption and guarantee prior to the effectiveness of any such
Business Combination that constitutes a Change in Control, shall be a breach of
this Agreement and shall constitute Good Reason hereunder and shall entitle
Executive to compensation and other benefits from the Company in the same amount
and on the same terms as Executive would be entitled hereunder if Executive's
employment were terminated following a Change in Control by reason of a
Qualifying Termination. For purposes of implementing the foregoing, the date on
which any such Business Combination becomes effective shall be deemed the date
Good Reason occurs, and shall be the Date of Termination if requested by
Executive.
(c) This Agreement shall inure to the benefit of and be enforceable
by Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If Executive shall die
while any amounts would be payable to Executive hereunder had Executive
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to such person or persons
appointed in writing by Executive to receive such amounts or, if no person is so
appointed, to Executive's estate.
9. Notice. (a) For purposes of this Agreement, all notices and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given when delivered or five (5) days after deposit in
the United States mail, certified and return receipt requested, postage prepaid,
addressed as follows:
If to Executive: To the address of the Executive on
the books and records of the Company.
If to the Company: Swift Transportation Co., Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Corporate Secretary
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
(b) A written notice of Executive's Date of Termination by the
Company or Executive, as the case may be, to the other, shall (i) indicate the
specific
-11-
termination provision in this Agreement relied upon, (ii) to the extent
applicable, set forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of Executive's employment under the provision
so indicated and (iii) specify the termination date (which date shall be not
less than fifteen (15) (thirty (30), if termination is by the Company for
Disability) nor more than sixty (60) days after the giving of such notice). The
failure by Executive or the Company to set forth in such notice any fact or
circumstance which contributes to a showing of Good Reason or Cause shall not
waive any right of Executive or the Company hereunder or preclude Executive or
the Company from asserting such fact or circumstance in enforcing Executive's or
the Company's rights hereunder.
10. Full Settlement; Resolution of Disputes and Costs.
(a) The Company's obligation to make any payments provided for in
this Agreement and otherwise to perform its obligations hereunder shall be in
lieu and in full settlement of all other severance payments to Executive under
any other severance or employment agreement between Executive and the Company,
and any severance plan of the Company, including but not limited to the offer
letter from the Company to Executive dated as of March 23, 2005. The Company's
obligations hereunder shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action which the Company may have
against Executive or others. In no event shall Executive be obligated to seek
other employment or take other action by way of mitigation of the amounts
payable to Executive under any of the provisions of this Agreement and such
amounts shall not be reduced whether or not Executive obtains other employment.
(b) Any dispute or controversy arising under or in connection with
this Agreement shall be settled exclusively by arbitration in Phoenix, Arizona
by three arbitrators in accordance with the commercial arbitration rules of the
American Arbitration Association then in effect. Judgment may be entered on the
arbitrators' award in any court having jurisdiction. The Company shall bear all
costs and expenses arising in connection with any arbitration proceeding
pursuant to this Section.
11. Employment with Subsidiaries. Employment with the Company for
purposes of this Agreement shall include employment with any Subsidiary.
12. Survival. The respective obligations and benefits afforded to
the Company and Executive as provided in Sections 3, 4, 5, 6, 8, 9, 10, 13 and
15 shall survive the termination of this Agreement.
13. GOVERNING LAW; VALIDITY. THE INTERPRETATION, CONSTRUCTION AND
PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ARIZONA WITHOUT REGARD TO THE
PRINCIPLE OF CONFLICTS OF LAWS. THE INVALIDITY OR UNENFORCEABILITY OF ANY
PROVISION OF THIS AGREEMENT SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF
ANY OTHER PROVISION
-12-
OF THIS AGREEMENT, WHICH OTHER PROVISIONS SHALL REMAIN IN FULL FORCE AND EFFECT.
14. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original and all of which together shall
constitute one and the same instrument.
15. Section 409A of the Code. If any payment(s) or benefit(s)under
this Agreement would be subject to the provisions of Section 409A of the Code,
the Company agrees that this Agreement shall be deemed reformed so that all such
payments shall fully comply and meet the requirements of Section 409A of the
Code (such that Executive shall receive all payments and benefits hereunder in
the shortest amount of time from the date otherwise due, while no portion of any
payments to Executive hereunder shall be subject to the excise taxes of Section
409A of the Code).
16. Miscellaneous. No provision of this Agreement may be modified or
waived unless such modification or waiver is agreed to in writing and signed by
Executive and by a duly authorized officer of the Company. No waiver by either
party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time (except as otherwise
set forth in the definition of "Good Reason" hereunder). Failure by Executive or
the Company to insist upon strict compliance with any provision of this
Agreement or to assert any right Executive or the Company may have hereunder,
including without limitation, the right of Executive to terminate employment for
Good Reason, shall not be deemed to be a waiver of such provision or right or
any other provision or right of this Agreement. Except as otherwise specifically
provided herein, the rights of, and benefits payable to, Executive, his estate
or his beneficiaries pursuant to this Agreement are in addition to any rights
of, or benefits payable to, Executive, his estate or his beneficiaries under any
other employee benefit plan or compensation program of the Company.
-13-
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by a duly authorized officer of the Company and Executive has executed
this Agreement as of the day and year first above written.
SWIFT TRANSPORTATION CO., INC.
By: ____________________________________
Name: ______________________________
Title:______________________________
-14-