8-K

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

FORM 8-K

CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of report (Date of earliest event reported): November 3, 2004

SWIFT TRANSPORTATION CO., INC.

(Exact Name of Registrant as Specified in Charter)

Nevada	0-18605	86-0666860
(State or Other Jurisdiction	(Commission File	(IRS Employer
of Incorporation)	Number)	Identification No.)

2200 South 75th Avenue, Phoenix, Arizona	85043
(Address of Principal Executive Offices)	(Zip Code)

(602) 269-9700

(Registrant’s telephone number, including area code)

(Former Name or Former Address, if Changed Since Last Report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

TABLE OF CONTENTS

Exhibit 3.1

Exhibit 10.1

Exhibit 10.2

Exhibit 99.1

ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT

ITEM 5.02 DEPARTURE OF DIRECTORS OR PRINCIPAL OFFICERS; ELECTION OF DIRECTORS; APPOINTMENT OF PRINCIPAL OFFICERS

     On November 3, 2004, the Company announced that it has:

• hired Robert Cunningham as its President and Chief Operating Officer, and appointed him to the Board of Directors as a Class I Director;

• to facilitate consensus management, created an executive committee (titled the “Office of the Chairman”), consisting of Jerry Moyes, the Company’s CEO, Bill Riley, the Company’s Senior Executive Vice President, and Mr. Cunningham;

• appointed Jock Patton as the Company’s lead director, to serve as an official liaison between the Board and management; and

• recently adopted a new, more stringent related party transaction policy.

     Swift also announced a formal senior management transition schedule, which provides for Mr. Cunningham to take over as CEO by December 31, 2005. Jerry Moyes will remain as CEO until Mr. Cunningham takes over, and is expected to remain as Chairman of the Board for the foreseeable future.

     In addition, Swift announced that Gary Enzor, the Company’s Chief Financial Officer, has accepted a position with another company. Bill Riley, the Company’s Senior Executive Vice President who serves as Swift’s Chief Financial Officer from 1990 to 2002, has agreed to serve as the CFO while Swift conducts an executive search.

     Robert Cunningham, 49, served as Executive Vice President of Sales & Marketing for Swift from 1985 to 1997. Since that time, Mr. Cunningham has owned and operated one of the nation’s most successful commercial truck dealerships. Cunningham Commercial Vehicles is the Arizona Freightliner, Sterling and Western Star franchise operating out of two locations with annual revenues in excess of $300 million. Mr. Cunningham has worked in the transportation industry for his entire career beginning in 1973 with IML Freight Lines and six years as a Vice President with Motor Cargo prior to joining Swift. Married to Shelley Cunningham for 26 years and the father of five children, Mr. Cunningham is a 1976 graduate of the University of Utah with a BS in Marketing.

     Cunningham Commercial Vehicles sells trucks and parts to Swift Transportation. Gross commissions earned in calendar year 2003 were approximately $2,372,040 and year-to-date through October 2004, $945,265. Mr. Cunningham is actively pursuing a buyer for his business to eliminate any future related party transactions.

     In connection with his appointment as President and Chief Operating Officer, Robert Cunningham entered into an employment agreement with the Company effective November 3, 2004. The employment agreement is for a term of five years and provides for an annual salary of $400,000 (which will be increased to $800,000 upon the sale of his existing Freightliner business) and the grant of an option to acquire 500,000 shares of Swift Common Stock. The employment agreement stipulates that Mr. Cunningham will be appointed as Chief Executive Officer on or prior to December 31, 2005.

     In addition, the employment agreement provides that if Mr. Cunningham is discharged without “cause” or resigns with “good reason” (as defined in the employment agreement) he will receive severance payments equal to his then current salary for a period of twenty-four months or, if greater, the remaining term of his employment, as well as immediate acceleration of all his stock options.

     A copy of Mr. Cunningham’s employment agreement and stock option award are attached to this Form 8-K as Exhibit 10.1 and 10.2, respectively.

     A copy of the press release announcing these events is attached to this Form 8-K as Exhibit 99.1

ITEM 5.03 AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS; CHANGES IN FISCAL YEAR

     On November 3, 2004, the Board of Directors amended and restated Article IV of Swift’s bylaws effective immediately. The bylaws were amended to create a senior management committee referred to as the “Office of the Chairman” and to clarify the authority of the offices of Chief Executive Officer, President and Chief Operating Officer in the management of Swift’s operations and affairs.

     A copy of Article IV of Swift’s bylaws, as amended and restated, is attached to this Form 8-K as Exhibit 3.1.

ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS

(a)	Not applicable.
(b)	Not applicable.
(c)	Exhibits.

3.1	Amended Article IV to Bylaws of Swift Transportation Co., Inc.
10.1	Employment Agreement for Robert Cunningham
10.2	Non-Statutory Stock Option Agreement, dated November 3, 2004, between Swift Transportation Co., Inc. and Robert W. Cunningham
99.1	Press Release dated November 3, 2004

SIGNATURES

     Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Dated: November 3, 2004

SWIFT TRANSPORTATION CO., INC.
 

/s/  Jerry Moyes  

By: Jerry Moyes 

       Chief Executive Officer 

Exhibit Index

Exhibit
Number	Description
3.1	Amended Article IV to Bylaws of Swift Transportation Co., Inc.
10.1	Employment Agreement for Robert Cunningham
10.2	Non-Statutory Stock Option Agreement, dated November 3, 2004, between Swift Transportation Co., Inc. and Robert W. Cunningham
99.1	Press Release dated November 3, 2004

EX-3.1

Exhibit 3.1

ARTICLE IV

OFFICERS

1. Number.

     The Corporation shall have the following officers: a Chairman of the Board, a Chief Executive Officer, a President and Chief Operating Officer, Vice Presidents, a Secretary and a Treasurer. At the discretion of the Board of Directors, the Corporation may have multiple levels of Vice Presidents, one or more Assistant Vice Presidents, one or more Assistant Secretaries and one or more Assistant Treasurers.

2. Election and Term of Office.

     The officers of the Corporation shall be elected annually by the Board of Directors or at any special or regular meeting of the Board of Directors. Each such officer shall hold office until his or her successor is duly elected or until his or her earlier death or resignation or removal in the manner hereinafter provided.

3. Agents.

     In addition to the officers mentioned in Section 1 of this Article IV, the Board of Directors may appoint such agents as the Board of Directors may deem necessary or advisable, each of which agents shall have such authority and perform such duties as are provided in these Bylaws or as the Board of Directors may from time to time determine. The Board of Directors may delegate to any officer or to any committee the power to appoint or remove any such agents.

4. Removal.

     Any officer may be removed, with or without cause, at any time by resolution adopted by a majority of the whole Board of Directors.

5 Resignations.

     Any officer may resign at any time by giving written notice of his or her resignation to the Board of Directors, the Chairman of the Board, the Chief Executive Officer, the President and Chief Operating Officer, or the Secretary. Any such resignation shall take effect at the times specified therein, or, if the time when it shall become effective is not specified therein, it shall take effect immediately upon its receipt by the Board of Directors, the Chairman of the Board, the Chief Executive Officer, the President and Chief Operating Officer, or the Secretary; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

6. Vacancies.

     A vacancy in any office due to death, resignation, removal, disqualification or any other cause may be filled for the unexpired portion of the term thereof by the Board of Directors.

7. Office of the Chairman.

     There shall be an Office of the Chairman which shall have, subject to the control of the Board of Directors, general and active supervision and direction over the business and affairs of the Corporation and over its other officers. The Office of the Chairman shall consist of such officers as the Board shall from time to time appoint, with the initial members consisting of the Chief Executive Officer, the President and Chief Operating Officer, and the Senior Executive Vice President. The Office shall act by consensus to the extent feasible, and shall make all material decisions relating to the Corporation not reserved to or made by the Board of Directors. The powers of the following officers are subject to the Board of Directors and the Office of the Chairman of the Board.

8. Chairman of the Board.

     The Chairman of the Board shall: (a) preside at all meetings of the stockholders and at all meetings of the Board of Directors; (b) make a report of the state of the business of the Corporation at each annual meeting of the stockholders; (c) have the right to sign, execute and deliver in the name of the Corporation all deeds, mortgages, bonds, contracts or other instruments authorized by the Board of Directors, except in cases where the signing, execution or delivery thereof is expressly delegated by the Board of Directors or by these Bylaws to some other officer or agent of the Corporation or where any of them are required by law otherwise to be signed, executed or delivered; and (d) have the right to cause the corporate seal, if any, to be affixed to any instrument which requires it.

9. Chief Executive Officer.

     The Chief Executive Officer shall have, as part of the Office of the Chairman and subject to the control of the Board of Directors, general and active supervision and direction over the business and affairs of the Corporation and its several officers, other than the President and Chief Operating Officer. If at any time the Corporation has no Chief Executive Officer, the duties and responsibilities designated for such position shall be performed by the President and Chief Operating Officer, or by an officer of the Corporation designated by the Board of Directors. The Chief Executive Officer shall: (a) see that all orders and resolutions of the Board of Directors are carried into effect; (b) sign, with the Secretary or an Assistant Secretary, certificates for stock of the Corporation; (c) have the right to sign, execute and deliver in the name of the Corporation all deeds, mortgages, bonds, contracts or other instruments authorized by the Board of Directors, except in cases where the signing, execution or delivery thereof is expressly delegated by the Board of Directors or by these Bylaws to some other officer or agent of the Corporation or where any of them are required by law otherwise to be signed, executed or delivered; and (d) have the right to cause the corporate seal, if any, to be affixed to any instrument which requires it.

10. President and Chief Operating Officer.

     The President and the Chief Operating Officer shall have, as part of the Office of the Chairman and subject to the control of the Board of Directors, general and active supervision and direction over the business and affairs of the Corporation and its several officers, other than the Chief Executive Officer. If at any time the Corporation has no President and Chief Operating

2

Officer, the duties and responsibilities designated for such position shall be performed by the Chief Executive Officer, or by an officer of the Corporation designated by the Board of Directors. The President and Chief Operating Officer shall: (a) see that all orders and resolutions of the Board of Directors are carried into effect; (b) have the right to sign, execute and deliver in the name of the Corporation all deeds, mortgages, bonds, contracts or other instruments authorized by the Board of Directors, except in cases where the signing, execution or delivery thereof is expressly delegated by the Board of Directors or by these Bylaws to some other officer or agent of the Corporation or where any of them are required by law otherwise to be signed, executed or delivered; and (c) have the right to cause the corporate seal, if any, to be affixed to any instrument which requires it.

11. Vice President.

     The Vice President and any additional Vice Presidents shall have such powers and perform such duties as the Office of Chairman, or any individual member thereof, or the Board of Directors may from time to time prescribe and shall perform such other duties as may be prescribed by these Bylaws.

12. Secretary.

     The Secretary shall: (a) record all the proceedings of the meetings of the stockholders, the Board of Directors and the Executive Committee, if any, in one or more books kept for that purpose; (b) see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law; (c) be the custodian of all contracts, deeds, documents, all other indicia of title to properties owned by the Corporation and of its other corporate records (except accounting records) and of the corporate seal, if any, and affix such seal to all documents the execution of which on behalf of the Corporation under its seal is duly authorized; (d) sign, with the Chief Executive Officer or other appropriate officer, certificates for stock of the Corporation; (e) have charge, directly or through the transfer clerk or transfer clerks, transfer agent or transfer agents and registrar or registrars appointed as provided in Section 3 of Article VII of these Bylaws, of the issue, transfer and registration of certificates for stock of the Corporation and of the records thereof, such records to be kept in such manner as to show at any time the amount of the stock of the Corporation issued and outstanding, the manner in which and the time when such stock was paid for, the names, alphabetically arranged, and the addresses of the holders of record thereof, the number of shares held by each, and the time when each became a holder of record; (f) upon request, exhibit or cause to be exhibited at all reasonable times to any Director such records of the issue, transfer and registration of the certificates for stock of the Corporation; (g) see that the books, reports, statements, certificates and all other documents and records required by law are properly kept and filed; and (h) see that the duties prescribed by Section 7 of Article II of these Bylaws are performed. In general, the Secretary shall perform all duties incident to the office of Secretary and such other duties as from time to time may be assigned to him or her by the Office of Chairman, any individual member thereof, or the Board of Directors.

13. Treasurer.

     If required by the Board of Directors, the Treasurer shall give a bond for the faithful discharge of his or her duties in such sum and with such surety or sureties as the Board of

3

Directors shall determine. The Treasurer shall: (a) have charge and custody of, and be responsible for, all funds, securities, notes and valuable effects of the Corporation; (b) receive and give receipt for moneys due and payable to the Corporation from any sources whatsoever; (c) deposit all such moneys to the credit of the Corporation or otherwise as the Board of Directors, the Office of Chairman, or any individual member thereof, shall direct in such banks, trust companies or other depositories as shall be selected in accordance with the provisions of Article VI of these Bylaws; (d) cause such funds to be disbursed by checks or drafts on the authorized depositories of the Corporation signed as provided in Article VI of these Bylaws; (e) be responsible for the accuracy of the amounts of, and cause to be preserved proper vouchers for, all moneys so disbursed; (f) have the right to require from time to time reports or statements giving such information as he or she may desire with respect to any and all financial transactions of the Corporation from the officers or agents transacting the same; (g) render to the Board of Directors, the Office of Chairman or any individual member thereof, whenever they, respectively, shall request him or her so to do, an account of the financial condition of the Corporation and of all his or her transactions as Treasurer; and (h) upon request; exhibit or cause to be exhibited at all reasonable times the cash books and other records to the Office of Chairman, or any individual member thereof, or any of the Directors of the Corporation. In general, the Treasurer shall perform all duties incident to the office of Treasurer and such other duties as from time to time may be assigned to him or her by the Office of Chairman or any individual member thereof, or the Board of Directors.

14. Assistant Officers.

     Any persons elected as assistant officers shall assist in the performance of the duties of the duties of the designated office and such other duties as shall be assigned to them by any Vice President, the Secretary or the Treasurer, as the case may be, or by the Board of Directors, the Office of Chairman or any individual member thereof.

15. Combination of Offices.

     Any two of the offices hereinabove enumerated may be held by one and the same person, if such person is so elected or appointed, except the offices of the President and Secretary.

16. Compensation.

     The salaries of all officers and agents of the Corporation shall be fixed by the Board of Directors, and no officer shall be prevented from receiving such salary by reason of the fact that he is also a Director of the Corporation.

4

EX-10.1

Exhibit 10.1

EMPLOYMENT AGREEMENT

     This Employment Agreement (this “Agreement”) is made November 3, 2004, between Robert W. Cunningham (“Executive”) and Swift Transportation Co., Inc. (the “Company”), a Nevada corporation.

RECITAL

     The Company desires to employ Executive in the capacities and on the terms and conditions hereinafter set forth, and Executive is willing to accept such employment on such terms and conditions.

AGREEMENT

     The parties agree as follows:

     1. Duties.

          (a) The Company does hereby hire, engage, and employ Executive in the following capacities: (i) from November 3, 2004 (“Effective Date”) through the Transition Date (as defined below) as President and Chief Operating Officer and (ii) after the Transition Date, as Chief Executive Officer. Executive does hereby accept and agree to such hiring, engagement, and employment. Executive shall serve the Company in such positions in conformity with the provisions of this Agreement, directives of the Board of Directors of the Company (the “Board”), and the corporate policies of the Company as they presently exist and as such policies may be amended, modified, changed, or adopted from time to time. Executive will be elected to the Board at the soonest practicable date, and, subject to the recommendations of the Company’s nominating and governance committees and shareholder vote, shall continue to serve on the Board during his employment hereunder. Executive shall not receive additional compensation for such Board service.

          (b) Throughout his employment, Executive shall devote his time, energy, and skill to the performance of his duties for the Company, vacations and other leave authorized under this Agreement and the Company’s policies excepted. During his employment hereunder, Executive shall not serve on the board of any other publicly traded company without first receiving the written consent of the Board. The foregoing notwithstanding, it is understood and agreed that Executive may (i) prior to the disposition thereof, devote such time and attention as may be reasonably required in connection with the sale of the stock or assets of Cunningham Commercial Vehicles, Ltd. (the “Existing Business”) and the operation of such Existing Business pending sale, (ii) own for investment purposes 5% or less of any class of publicly traded equity securities of any entity, provided that Executive is not employed by, engaged as a consultant or otherwise participating in the management, operation or control of such person or entity (other than the Company), and (iii) devote such time and attention as may be reasonably required in connection with his investment in or his participation in the management, operation or control of any person or entity controlled by Executive and/or members of Executive’s immediate family and his and their lineal descendents for family financial or estate planning purposes, provided that such activities otherwise permitted under this clause (iii) do not materially interfere with the performance of Executive’s duties hereunder.

-1-

     2. Term. The initial term of this Agreement shall commence on the Effective Date and shall terminate on the five-year anniversary of the Effective Date. If Executive’s employment with the Company is not terminated pursuant to either Section 6 or Section 7 before the end of the initial term or any renewal term of this Agreement, then Executive’s employment with the Company shall be automatically renewed for an additional one year term unless either Executive or the Company elects not to renew such employment for such additional one year by giving written notice of nonrenewal to the other party at least ninety (90) days before the expiration of the initial term or the then current renewal term, as the case may be.

     3. Compensation.

          (a) Salary. Commencing on the Effective Date and through the Sale Date (as defined below), Executive’s salary shall be $400,000 annually. After the Sale Date, Executive’s salary shall be increased to $800,000 annually. After Executive is promoted to the office of Chief Executive Officer of the Company, Executive’s salary shall be increased to an amount that Executive and the Company shall agree upon. Executive’s salary thereafter shall be reviewed at least annually by the Board and may be increased by the Board after any such review. Executive’s salary shall be paid in accordance with the Company’s regular payroll practices, but not less than bi-monthly, and shall be subject to applicable withholding and other deductions of general application. For purposes of this Agreement, “Sale Date” shall mean the earlier to occur of (i) the date that the entire Existing Business is sold or (ii) the date that Executive provides written notice to the Company of his undertaking to perform his duties hereunder on a full time basis in accordance with the terms hereof.

          (b) Bonus. Executive will not be entitled to bonus compensation.

          (c) Equity-Based Compensation. Executive shall receive 500,000 shares of nonqualified stock options at fair market value on the Effective Date. On an annual basis thereafter, Executive also shall be eligible to receive up to an additional 50,000 shares of nonqualified stock options at fair market value as of the date of grant in accordance with the Company’s option granting processes and procedures then applicable to senior executives of the Company. All of such options shall have a five (5) year vesting period, with one-fifth (1/5) of such options vesting on the one year anniversary of the date granted and one-fifth (1/5) on each anniversary date thereafter until fully vested. In addition, in accordance with the terms of Sections 6 and 7 of this Agreement, all such options shall be one hundred percent (100%) vested upon either (i) the Company’s termination of Executive’s employment with Company other than for Cause, or (ii) Executive’s termination of Executive’s employment with Company for Good Reason. All of such options otherwise shall be granted under and subject to the Swift Transportation Co., Inc. 2003 Stock Incentive Plan effective May 22, 2003, except (i) the vesting schedule shall be as provided above, and (ii) the purchase price may be paid through the delivery of common stock of the Company held for longer than six (6) months, at Executive’s sole discretion; and (iii) the term cause shall have the same meaning as provided in this Agreement; and (iv) Executive shall have a period of thirty (30) days after termination of his Employment by the Company for Cause in which to exercise any of his options, and (v) the Company shall have no right to repurchase any of such shares from Executive upon the termination of his employment with the Company for any reason, and (vi) all shares issued to Executive upon the exercise of any such options and the payment of the purchase price therefore shall be registered shares under the Securities Act of 1933 and all applicable state’s securities

-2-

laws and subject to the restrictions of Rule 144 (it being understood and agreed that the Company shall have to obligation hereunder to provide for any resale registration with respect to such shares).

     4. Benefits.

          (a) Health, Welfare And Pension. Executive shall be entitled to participate, on the same terms and at the same level as other senior executives, in all health and welfare benefit plans and programs and all retirement, deferred compensation and similar plans and programs generally available to other executives or employees of the Company as in effect from time to time, subject to any legally required restrictions specified in such plans and programs. Without limiting the generality of the foregoing, during Executive’s employment, the Company shall provide and maintain, at the Company’s sole cost and expense, term life insurance insuring Executive’s life and for Executive in a face amount of $5,000,000, subject to all necessary medical information and qualifying tests as are required by the insurance provider in order to secure such coverage. Executive shall have the sole right to designate the beneficiary or beneficiaries of such policy. Upon the termination of Executive’s employment with the Company for any reason, the Company shall assign the ownership of such policy to Executive without any payment by Executive for such assignment; provided, however, that Executive shall be solely responsible for the payment of any premiums due from and after the date of such termination.

          (b) Vacation And Other Leave. Executive shall receive five (5) weeks paid vacation per year. Such vacation shall be scheduled and taken in accordance with the Company’s standard vacation policies applicable to Company executives. Executive shall also be entitled to all other holiday and leave pay generally available to other executives of the Company.

          (c) Expense Reimbursements. During Executive’s employment, the Company shall, pursuant to the Company’s expense reimbursement policies, promptly reimburse Executive for reasonable expenses incurred in connection with performance of his duties for the Company.

     5. Death or Disability.

          (a) Definition Of Permanently Disabled And Permanent Disability. For purposes of this Agreement, the terms “Disabled” or “Disability” shall mean Executive’s inability, because of physical or mental illness or injury, to perform the essential functions of his customary duties pursuant to this Agreement, even with a reasonable accommodation, and the continuation of such disabled condition for a period of one hundred twenty (120) continuous days, or for not less than two hundred ten (210) days during any continuous twenty-four (24) month period.

          (b) Termination Due To Death Or Disability. If Executive dies, Executive’s employment shall automatically cease and terminate as of the date of Executive’s death. If Executive becomes Disabled during his employment, the Company may thereafter terminate Executive’s employment upon fifteen (15) days written notice to Executive. In the event of the

-3-

termination of employment hereunder due to Executive’s death or Disability, the Company shall pay to Executive or his estate:

               (i) a lump sum cash payment, payable on the termination of Executive’s employment, equal to the sum of any accrued but unpaid salary as of the date of Executive’s termination of employment hereunder (“Accrued Salary”); and

               (ii) such employee benefits, if any, as to which Executive may be entitled under the employee benefit plans and arrangements of the Company.

     6. Termination by the Company.

          (a) Termination For Cause. The Company may, by providing written notice to Executive indicating the principal reasons therefor, terminate Executive’s employment hereunder for Cause at any time. The term “Cause” shall mean:

               (i) Executive’s conviction of, or entrance of a plea of guilty or nolo contendere to, a felony; or

               (ii) fraudulent conduct by Executive in connection with the business affairs of the Company; or

               (iii) theft, embezzlement, or other criminal misappropriation of funds by Executive from the Company; or

               (iv) Executive’s bad faith refusal to (a) perform the duties of his position, or (b) follow the lawful orders of the Board of Directors; or

               (v) Executive’s willful misconduct, which has, or would if generally known, materially adversely affect the good will, business, or reputation of the Company.

          If Executive’s employment is terminated for Cause, the termination shall take effect on the effective date of written notice of such termination to Executive and Executive shall be entitled to receive: (i) payment of Accrued Salary on the effective date of Executive’s termination; and (ii) such employee benefits, if any, as to which Executive may be entitled under the employee benefit plans and arrangements of the Company; provided, however, that Executive may elect to continue his existing health and medical insurance coverage, at the sole cost and expense of Executive, for the remainder of the then current term plus an additional twenty-four (24) months.

          If the Company attempts to terminate Executive’s employment pursuant to this Section 6(a) and it is ultimately determined that the Company lacked Cause, the provisions of Section 6(b) (“Termination by the Company-Termination Without Cause”) shall apply and Executive shall be entitled to receive the payments called for by Section 6(b) (“Termination by the Company-Termination Without Cause”).

-4-

          (b) Termination Without Cause. The Company may, with or without reason, terminate Executive’s employment hereunder without Cause at any time by providing Executive thirty (30) days written notice of such termination. In the event of the termination of Executive’s employment hereunder by the Company without Cause (other than due to Executive’s death or Disability), the Company shall pay to Executive:

               (i) the Accrued Salary on the effective date of Executive’s termination; and

               (ii) such employee benefits, if any, as to which Executive may be entitled under the employee benefit plans and arrangements of the Company; and

               (iii) continuation of Executive’s health and medical insurance coverage at the Company’s sole cost and expense for the remainder of the then current term plus an additional twenty-four (24) months; and

               (iv) continued payment of Executive’s then current salary, in the Company’s normal payroll cycle for the greater of twenty-four (24) months or the remainder of the then current term; and

               (v) full vesting of any unvested or partially vested equity-based compensation granted to Executive.

     If Executive’s employment is terminated by the Company without Cause, the termination shall take effect on the effective date of written notice of such termination to Executive.

     7. Termination by Employee.

          (a) Termination Upon Notice. Executive may, with or without reason, terminate Executive’s employment hereunder without Good Reason (as defined below) at any time by providing thirty (30) days written notice of such termination to the Company. A termination by Executive without Good Reason pursuant to this Section 7(a) shall be treated for all purposes of this Agreement as a termination by the Company for Cause and the provisions of Section 6(a) shall apply.

          (b) Termination With Good Reason. Executive may terminate Executive’s employment hereunder for Good Reason at any time by providing written notice of such termination to the Company stating the principal reasons therefore, which termination shall be effective upon delivery of such notice. Any such termination by Executive for Good Reason shall be treated for all purposes of this Agreement as a termination by the Company without Cause and the provisions of Section 6(b) shall apply.

          (c) Good Reason. For purposes of this Agreement, “Good Reason” shall include the following circumstances:

               (i) if the Company assigns duties to Executive that are materially inconsistent with, or constitute a material reduction of powers or functions associated with, Executive’s position, duties, or responsibilities with the

-5-

Company, or constitute a material adverse change in Executive’s titles, authority, or reporting responsibilities, or in the conditions of Executive’s employment; or

               (ii) if Executive’s salary is reduced; or

               (iii) if the Company fails to cause any successor to the Company to expressly assume and agree to be bound by the terms of this Agreement; or

               (iv) if the Company relieves Executive of his duties other than for Cause; or

               (v) if Executive is not promoted to the position of Chief Executive Officer as such time as the current holder of such position ceases to hold such position or if Executive is not promoted to the position of Chief Executive Officer on or prior to December 31, 2005 (such date or time being referred to herein as the “Transition Date”); or

               (vi) if Executive is not nominated or fails to be elected to the Board during the initial term or any extended term hereunder, except in case of his resignation or refusal to stand for reelection; or

               (vii) the Company’s material breach of this Agreement, which breach remains uncured for a period of 30 days following the delivery of written notice thereof by Executive.

     8. Additional Termination and Effect of Termination on Board Membership.

          (a) In addition to the provisions of Section 6 and Section 7, in the event the Sale Date does not occur by December 31, 2005, then the Company may terminate Executive’s employment with the Company hereunder by providing written notice of such termination to Executive within ninety (90) days after such date. In such event, the provisions of Section 5(b) shall apply as if Executive were then deceased.

          (b) Executive agrees that any termination of Executive’s employment hereunder by either Executive or the Company shall, unless otherwise agreed in writing by Executive and the Company (duly authorized by the Board), effect a resignation of Executive from the Board concurrent with the termination date.

     9. Assignment. This Agreement is personal in its nature and neither of the parties hereto shall, without the written consent of the other, assign or transfer this Agreement or any rights or obligations hereunder; provided, however, that, in the event of a merger, consolidation, or transfer or sale of all or substantially all of the assets of the Company with or to any other individual(s) or entity, this Agreement shall, subject to the provisions hereof, be binding upon and inure to the benefit of such successor and such successor shall discharge and perform all the promises, covenants, duties, and obligations of the Company hereunder.

-6-

     10. Governing Law. This Agreement and the legal relations hereby created between the parties hereto shall be governed by and construed under and in accordance with the internal laws of the State of Arizona, without regard to conflicts of laws principles thereof.

     11. Entire Agreement. This Agreement embodies the entire agreement of the parties hereto respecting the matters within its scope. This Agreement supersedes all prior agreements of the parties hereto on the subject matter hereof. Any prior negotiations, correspondence, agreements, proposals, or understandings relating to the subject matter hereof shall he deemed to be merged into this Agreement and to the extent inconsistent herewith, such negotiations, correspondence, agreements, proposals, or understandings shall be deemed to be of no force or effect. There are no representations, warranties, or agreements, whether express or implied, or oral or written, with respect to the subject matter hereof, except as set forth herein.

     12. Modifications. This Agreement shall not be modified by any oral agreement, either express or implied, and all modifications hereof shall be in writing and signed by the parties hereto and, in the case of the Company, duly authorized by the Board.

     13. Waiver. Failure to insist upon strict compliance with any of the terms, covenants, or conditions hereof shall not be deemed a waiver of such term, covenant, or condition, nor shall any waiver or relinquishment of, or failure to insist upon strict compliance with, any right or power hereunder at any one or more times be deemed a waiver or relinquishment of such right or power at any other time or times.

     14. Arbitration. Any dispute, controversy, or claim, whether contractual or non-contractual, between the parties hereto arising directly or indirectly out of or connected with this Agreement, relating to the breach or alleged breach of any representation, warranty, agreement, or covenant under this Agreement, unless mutually settled by the parties hereto, shall be resolved by binding arbitration in accordance with the Employment Arbitration Rules of the American Arbitration Association (the “AAA”). Any arbitration shall be conducted by arbitrators approved by the AAA and mutually acceptable to Company and Executive. All such disputes, controversies, or claims shall be conducted by a single arbitrator, unless the dispute involves more than $50,000 in the aggregate in which case the arbitration shall be conducted by a panel of three arbitrators. If the parties hereto are unable to agree on the arbitrator(s), then the AAA shall select the arbitrator(s). The resolution of the dispute by the arbitrator(s) shall be final, binding, nonappealable, and fully enforceable by a court of competent jurisdiction under the Federal Arbitration Act. The arbitrator(s) shall award damages to the prevailing party. The arbitration award shall be in writing and shall include a statement of the reasons for the award. The arbitration shall be held in Phoenix, Arizona. The arbitrator(s) shall award reasonable attorneys’ fees and costs to the prevailing party.

     15. Severability. In the event that a court of competent jurisdiction determines that any portion of this Agreement is in violation of any statute or public policy, then only the portions of this Agreement which violate such statute or public policy shall be stricken, and all portions of this Agreement which do not violate any statute or public policy shall continue in full force and effect. Furthermore, any court order striking any portion of this Agreement shall modify the stricken terms as narrowly as possible to give as much effect as possible to the intentions of the parties under this Agreement.

-7-

     16. Notices. All notices under this Agreement shall be in writing and shall be either personally delivered or mailed postage prepaid, by registered or certified mail, return receipt requested:

(a)	if to the Company:
	Swift Transportation Co., Inc.
	2200 South 75th Avenue
	Phoenix, Arizona 85043
	Attention: Secretary
(b)	if to Executive:
	14201 South Presario Trail
	Phoenix, Arizona 85048

Notice shall be effective when personally delivered, or five (5) business days after being so mailed.

     17. Board Approval. The Company represents and warrants to Executive that the Board has duly approved this Agreement, including without limitation the grant of the nonqualified stock options pursuant to Section 3(c) and has authorized the officer identified below to execute and deliver this Agreement on behalf of the Company.

     IN WITNESS WHEREOF, the Company and Executive have executed this Employment Agreement as of the date first above written.

EXECUTIVE:
/s/ Robert W. Cunningham
Robert W. Cunningham
COMPANY:
SWIFT TRANSPORTATION CO., INC.
By	/s/ Jerry Moyes
Name:	Jerry Moyes
Title:	Chief Executive Officer

-8-

EX-10.2

Exhibit 10.2

SWIFT TRANSPORTATION CO., INC.
2003 STOCK INCENTIVE PLAN
NON-STATUTORY STOCK OPTION AGREEMENT

     BY THIS STOCK OPTION AGREEMENT (“Agreement”) made and entered into this 3rd day of November, 2004 (“Grant Date”), SWIFT TRANSPORTATION CO., INC., a Nevada corporation (the “Company”) and Robert W. Cunningham, a key employee of the Company (the “Optionee”) hereby state, confirm, represent, warrant and agree as follows:

I.
RECITALS

     1.1 The Company, through its Board of Directors (the “Board”), has determined that in order to attract and retain the best available personnel for positions of substantial responsibility to provide successful management of the Company’s business, it must offer a compensation package that provides key employees of the Company a chance to participate financially in the success of the Company by developing an equity interest in it.

     1.2 As part of the compensation package, the Company had adopted the Swift Transportation Co., Inc. 2003 Stock Incentive Plan (the “Plan”) effective as of May 22, 2003.

     1.3 Shareholders of the Company have adopted and approved the Plan on May 22, 2003 authorizing 5,000,000 shares for issuance.

     1.4 By this Agreement, the Company and the Optionee desire to establish the terms upon which the Company is willing to grant to the Optionee, and upon which the Optionee is willing to accept from the Company an option to purchase shares of common stock of the Company (“Common Stock” or “Shares”).

II.
AGREEMENTS

     2.1 Grant of Non-Statutory Stock Option. Subject to the terms and conditions hereinafter set forth and those provisions set forth and those contained in the Plan, the Company grants to the Optionee the right and option (the “Option”) to purchase from the Company all or any part of an aggregate number of Five Hundred Thousand (500,000) shares (such number being subject to adjustment as provided in Section 2.7 hereof and Article 11 of the Plan) of Common Stock authorized but unissued or, at the option of the Company, treasury stock if available (the “Optioned Shares”).

     2.2 Exercise of Option. Subject to the terms and conditions of this Agreement and those of the Plan, the Option may be exercised only by setting up an account and electronically signing this Agreement through the administrator, Etrade Financial.

     2.3 Purchase Price. The price to be paid for the Optioned Shares (the “Purchase Price”) shall be $19.13 per share.

     2.4 Payment of Purchase Price. Payment of the Purchase Price may be made as follows:

     (a) In United States dollars in cash, or by check, promissory note or other property acceptable to the Company, or

     (b) At the election of the Optionee, through the delivery of shares of Common Stock held for longer than six (6) months with an aggregate “Fair Market Value” (as defined in the Plan) at the date of such delivery, equal to the Purchase Price, or

     (c) By a combination of both (a) and (b) above.

The Board shall determine acceptable methods for rendering Common Stock as payment upon exercise of an Option and may impose such limitations and conditions on the use of Common Stock to exercise an Option as it deems appropriate. At the election of the Optionee pursuant to Article 13 of the Plan, and subject to the acceptance of such election by the Board, to satisfy the Company’s withholding obligations, it may retain such number of shares of Common Stock subject to the exercised Option which have an aggregate Fair Market Value on the date of exercise equal to the Company’s aggregate federal, state, local and foreign tax withholding and FICA and FUTA obligations with respect to income generated by the exercise of the Option by Optionee.

     2.5 Exercisability of Option. Subject to the provisions of Paragraph 2.8, and except as otherwise provided in Paragraph 2.8 the Option may be exercised by the Optionee while in the employ of Company which shall include any parent (“Parent”) or subsidiary (“Subsidiary”) corporation of the Company as defined in Sections 424(e) and (f), respectively, of the Internal Revenue Code of 1986, as amended (the “Code”), in whole or in part from time to time, but only in accordance with the following schedule:

Elapsed Number of Years	Cumulative Percentage of
After Grant Date Which Option May Be Exercised	Shares Subject to Options As To
1		20	%
2		40	%
3		60	%
4		80	%
5		100	%

For purposes of the foregoing schedule, a year is measured from the Grant Date to the anniversary of the Grant Date and between anniversary dates thereof. In accordance with Paragraph 2.8(b) hereof, the Options shall be one hundred percent (100%) vested upon the termination of Optionee’s employment by the Company without cause (as that term is defined in the Employment Agreement, dated of even date herewith, between the Company and Optionee, or pursuant to the applicable provisions of any amendment thereto or replacement employment agreement (such employment agreement or replacement thereof, as the same may be amended from time to time, being referred to herein as, the “Employment Agreement”)) or upon termination of Optionee’s employment by Optionee for good reason (as that term is defined in the Employment Agreement).

     2.6 Termination of Option. Except as otherwise provided herein, the Option, to the extent not heretofore exercised, shall terminate upon the first to occur of the following dates:

     (a) Thirty (30) days after the termination of the Optionee’s employment other than for death or Disability (as defined in the Plan);

2

     (b) Termination of the Optionee’s employment on account of Disability before the Option lapses, unless it is previously exercised, on the earlier of (i) the scheduled termination date of the Option; or (ii) 12 months after the date of the Optionee’s termination of employment on account of Disability. Upon the Optionee’s Disability, any Options exercisable at the Optionee’s Disability may be exercised by the Optionee’s legal representative or representatives;

     (c) One year after the Optionee’s death; or

     (d) Ten years from the Grant Date, except in the event of death.

     2.7 Adjustments. In the event of any stock split, reverse stock split, stock dividend, combination or reclassification of shares of Common Stock or any other increase or decrease in the number of issued shares of Common Stock, the number and kind of Optioned Shares (including any Option outstanding after termination of employment or death) and the Purchase Price per share shall be proportionately and appropriately adjusted without any change in the aggregate Purchase Price to be paid therefor upon exercise of the Option. The determination by the Board as to the terms of any of the foregoing adjustments shall be conclusive and binding.

     2.8 Change of Control; Other Acceleration.

     (a) If a “Change of Control” (as defined in the Plan) occurs, options subject to this Agreement are converted, assumed, or replaced by a successor, and the Optionee’s employment with the Company is terminated without Cause within 18 months following the date of the Change of Control, all outstanding options subject to this Agreement shall become fully exercisable. If a Change of Control occurs and options subject to this Agreement are not converted, assumed, or replaced by a successor, all outstanding options subject to this Agreement shall become fully exercisable.

     (b) In addition and notwithstanding the foregoing, all outstanding options subject to this Agreement shall become fully exercisable if and to the extent provided pursuant to the terms of the Employment Agreement.

     2.9 Notices. Any notice to be given under the terms of the Agreement (“Notice”) shall be addressed to the Company in care of its secretary at 2200 South 75th Avenue, Phoenix, Arizona 85043, or at its then current corporate headquarters. Notice to be given to the Optionee shall be addressed to him or her at his or her then current residential address as appearing on the payroll records. Notice shall be deemed duly given when enclosed in a properly sealed envelope and deposited by certified mail, return receipt requested, in a post office or branch post office regularly maintained by the United States Government.

     2.10 Transferability of Option. The Option shall not be transferable by the Optionee otherwise than by the will or the laws of descent and distribution, and may be exercised during the life of the Optionee only by the Optionee.

3

     2.11 Optionee Not a Shareholder. The Optionee shall not be deemed for any purposes to be a shareholder of the Company with respect to any of the Optioned Shares except to the extent that the Option herein granted shall have been exercised with respect thereto and a stock certificate issued therefor.

     2.12 Disputes or Disagreements. As a condition of the granting of the Option herein granted, the Optionee agrees, for himself and his personal representatives, that any disputes or disagreement which may arise under or as a result of or pursuant to this Agreement shall be determined by the Board in its sole discretion, and that any interpretation by the Board of the terms of this Agreement shall be final, binding and conclusive.

     IN WITNESS WHEREOF, the Company has caused this instrument to be executed by its duly authorized officer, and the Optionee has hereunto affixed his or her signature.

SWIFT TRANSPORTATION CO., INC., a
Nevada corporation
By	/s/ Jerry Moyes
Its: Chief Executive Officer
/s/ Robert W. Cunningham
“OPTIONEE”

4

EX-99.1

Exhibit 99.1

SWIFT TRANSPORTATION CO., INC. ANNOUNCES
NEW PRESIDENT AND CHIEF OPERATING OFFICER

Phoenix, AZ – November 3, 2004 — Swift Transportation Co., Inc. (NASDAQ-NMS: SWFT) announced today that it has hired Robert W. Cunningham as its President and Chief Operating Officer, and added him to the Board of Directors, effective immediately. He was previously a senior executive of Swift from 1985 to 1997. It is anticipated that Mr. Cunningham will become the Swift CEO by December 31, 2005.

In connection with his hiring, Mr. Cunningham stated: “I am delighted to be back at Swift. My goal is to help lead our team to a new level of excellence in our collective quest to remain as a top operator in the truckload sector. I am actively seeking to sell my Freightliner business so I can devote full time to this task, as well as to create some personal liquidity to make a substantial investment in Swift stock.”

Mr. Moyes, Chairman of Swift, stated “I have personally known Bob for over 20 years and welcome him back to Swift’s management team. In his former position as Executive Vice President of Sales & Marketing, he was instrumental in the Company’s consistent expansion of our revenues and profitability. His previous Swift experience, combined with his running of a very successful truck business, shows his executive strength and talent.”

Mr. Cunningham currently owns Cunningham Commercial Vehicles which is the distributor of Freightliner, Sterling and Western Star Trucks in the state of Arizona. To eliminate any related party transactions with Swift, Mr. Cunningham is in the process of selling the business. Swift operates Freightliner trucks, among others. Mr. Cunningham will start immediately with Swift, and work on a transition basis until the franchise is sold.

In addition, to facilitate consensus management, the Company announced that it has created an “Office of the Chairman”, consisting of Jerry Moyes, the Company’s Chairman and CEO, Bill Riley, the Company’s Senior Executive Vice President, and Mr. Cunningham. Furthermore, the Board appointed Jock Patton as the Company’s lead director, to serve as an official liaison between the Board and management.

The Company also announced that Mr. Gary Enzor, the Company’s Chief Financial Officer, has accepted a position with another company. Mr. Enzor stated “I was presented with an opportunity to become the Chief Operating Officer of another company and felt it was the right decision for my family and my career. I have a great deal of respect for Swift and the addition of Bob as the President and Chief Operating Officer is a great step for the future.” Mr. William Riley, the Company’s Senior Executive Vice President who served as Swift’s Chief Financial Officer from 1990 to 2002, has agreed to serve as the Chief Financial Officer while the Company conducts an executive search for a new Chief Financial Officer.

Swift is the holding company for Swift Transportation Co., Inc., a truckload carrier headquartered in Phoenix, Arizona. Swift’s trucking subsidiary operates the largest fleet of truckload carrier equipment in the United States with regional operations throughout the continental United States.

“Safe Harbor” statement under the Private Securities Litigation Reform Act of 1995: Statements in this press release which are not historical facts are “forward-looking statements” that involve risks and uncertainties. These statements are based upon the current beliefs and expectations of our management

and are subject to significant risks and uncertainties. Actual results may differ from those set forth in the forward-looking statements.

Contact: Jerry Moyes or Bill Riley of Swift Transportation Co., Inc.
(602) 269-9700