-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, DbN/bhT9GMHbICx9IPQ+tj6w5tYlY4x/+sqvmKTxvbNbEDCatl4mO3WySZMlNjWD QCEHCn26G0+m/0m5mJriAA== 0000950147-01-501233.txt : 20010712 0000950147-01-501233.hdr.sgml : 20010712 ACCESSION NUMBER: 0000950147-01-501233 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 9 FILED AS OF DATE: 20010711 EFFECTIVENESS DATE: 20010711 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SWIFT TRANSPORTATION CO INC CENTRAL INDEX KEY: 0000863557 STANDARD INDUSTRIAL CLASSIFICATION: TRUCKING (NO LOCAL) [4213] IRS NUMBER: 860666860 STATE OF INCORPORATION: NV FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-64910 FILM NUMBER: 1679010 BUSINESS ADDRESS: STREET 1: 1455 HUDA WAY CITY: SPARKS STATE: NV ZIP: 89431 BUSINESS PHONE: 6022699700 MAIL ADDRESS: STREET 1: 2200 SOUTH 75TH AVENUE CITY: PHOENIX STATE: AZ ZIP: 85043 S-8 1 e-7100.txt FORM S-8 OF SWIFT TRANSPORTATION CO., INC. As filed with the Securities and Exchange Commission on July 11, 2001 Registration No. 333-______ ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 SWIFT TRANSPORTATION CO., INC. (Exact name of Registrant as specified in its charter) NEVADA 86-0666860 (State or other jurisdiction (I.R.S. Employer incorporation or organization) Identification No.) 2200 SOUTH 75TH AVENUE PHOENIX, ARIZONA 85043 (602) 269-9700 (Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices) M.S. CARRIERS, INC. INCENTIVE STOCK OPTION PLAN M.S. CARRIERS, INC. 1993 STOCK OPTION PLAN M.S. CARRIERS, INC. NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN M.S. CARRIERS, INC. 1996 STOCK OPTION PLAN (Full title of the Plans) Jerry Moyes, President Swift Transportation Co., Inc. 2200 South 75th Avenue Phoenix, Arizona 85043 (602) 269-9700 (Name, address, including zip code, and telephone number, including area code, of agent for service) COPIES TO: Steven D. Pidgeon, Esq. Snell & Wilmer L.L.P. One Arizona Center Phoenix, Arizona 85004-2202 (602) 382-6000 CALCULATION OF REGISTRATION FEE
============================================================================================================ PROPOSED MAXIMUM PROPOSED MAXIMUM TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF SECURITIES TO BE REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) REGISTRATION FEE(2) - ------------------------------------------------------------------------------------------------------------ M.S. Carriers, Inc. 236,958 $10.77 $ 2,552,038 $ 638 Incentive Stock Option Plan Common Stock, $.001 par value M.S. Carriers, Inc. 615,592 $11.98 $ 7,374,792 $1,844 1993 Stock Option Plan Common Stock, $.001 par value M.S. Carriers, Inc. 12,750 $15.18 $ 193,545 $ 48 Non-Employee Directors Stock Option Plan Common Stock, $.001 par value M.S. Carriers, Inc. 1,587,018 $14.17 $22,488,045 $5,622 1996 Stock Option Plan Common Stock, $.001 par value TOTAL 2,452,318 $32,608,420 $8,152 ============================================================================================================
(1) Represents shares of the Registrant's common stock issuable upon exercise of stock options granted pursuant to the plans. In connection with the Registrant's acquisition of M.S. Carriers, Inc., the Registrant has assumed the obligation to issue shares of common stock upon exercise of the stock options issued under the plans. (2) Estimated in accordance with Rule 457 under the Securities Act of 1933 solely for the purpose of calculating the registration fee. In accordance with Rule 457(h), the computation is based upon the weighted average exercise price of the options covered under each plan. ================================================================================ EXPLANATORY NOTE Swift Transportation Co., Inc. (the "Registrant") hereby files this Registration Statement on Form S-8 relating to its Common Stock, par value $.001 per share, which may be issued upon the exercise of options (collectively, "Options") granted or to be granted under the option plans listed below (collectively, the "Option Plans"). Pursuant to the merger (the "Merger") provided for in the Merger Agreement, dated as of December 11, 2000, among the Registrant, M.S. Carriers, Inc. ("M.S. Carriers"), and Sun Merger, Inc. ("Merger Sub"), Merger Sub was merged into M.S. Carriers. As a result, M.S. Carriers became a wholly owned subsidiary of the Registrant. In addition, pursuant to the Merger, the Registrant assumed the obligations of M.S. Carriers under the Option Plans and each option to purchase M.S. Carriers common stock outstanding immediately prior to the effective time of the Merger became an option to acquire a number of shares of the Registrant's Common Stock equal to the product of 1.7 multiplied by the number of shares of M.S. Carriers common stock that were purchasable under such option immediately prior to the effective time (rounded down to the nearest whole share) at a price per share (rounded up to the nearest whole cent) equal to the per share exercise price specified in each such option divided by 1.7. This Registration Statement relates to the Common Stock of the Registrant issuable upon exercise of the Options pursuant to the Option Plans as follows: * 236,958 shares subject to the M.S. Carriers, Inc. Incentive Stock Option Plan, * 615,592 shares subject to the M.S. Carriers, Inc. 1993 Stock Option Plan, * 12,750 shares subject to the M.S. Carriers, Inc. Non-Employee Directors Stock Option Plan, and * 1,587,018 shares subject to the M.S. Carriers, Inc. 1996 Stock Option Plan. PART I INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS The document(s) containing the information specified in Part I of Form S-8 will be sent or given to participating employees as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended. These documents are not being filed with the Securities and Exchange Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424. These documents and the documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents filed with the Securities and Exchange Commission by the Registrant pursuant to the Securities Exchange Act of 1934 are hereby incorporated by reference in this Registration Statement and shall be deemed to be a part hereof: (a) the Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 2000, as amended on April 30, 2001; (b) the Registrant's Quarterly Report on Form 10-Q for the quarter ended March 31, 2001; 1 (c) the Registrant's Current Reports on Form 8-K, including exhibits, filed with the Commission on March 14, 2001, March 23, 2001, June 8, 2001 and July 6, 2001; and (d) the description of the Registrant's Common Stock contained in the Registrant's Registration Statement on Form 8-A, filed with the Commission on May 22, 1990, including any amendment or report filed to update such description. All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been sold or which removes from registration all such securities then remaining unsold shall be deemed to be incorporated herein by reference and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. ITEM 4. DESCRIPTION OF SECURITIES Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS Article XI of the Registrant's Articles of Incorporation states that, to the fullest extent permitted by Nevada law, any officer or director of the Registrant shall not be liable to the corporation or its stockholders for monetary or other damages for breach of fiduciary duties as an officer or director. Article XI also provides that no amendment, repeal or modification thereof will eliminate or reduce its effect with respect to any act or omission of an officer or director occurring prior to such amendment, repeal or modification. Section 78.037 of the Nevada Revised Statutes provides that a provision eliminating or limiting the personal liability of an officer or director to a corporation or its shareholders may not eliminate or limit liability for (i) acts or omissions involving intentional misconduct, fraud or a knowing violation of the law or (ii) the payment of unlawful distributions to stockholders. Section 78.7502 of the Nevada Revised Statutes provides that a corporation is required to indemnify an officer, director, employee or agent against costs and expenses actually and reasonably incurred in connection with the defense of an action, suit or proceeding to the extent such person has been successful on the merits or otherwise in defense of such action, suit or proceeding, or in defense of any claim, issue or matter therein. Sections 78.7502 and 78.751 of the Nevada Revised Statutes also provide, in general, that a corporation is permitted to indemnify an officer, director, employee or agent against costs and expenses actually and reasonably incurred in connection with the defense of an action, suit or proceeding if such person acted in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, he or she had no reasonable cause to believe his or her conduct was unlawful. Notwithstanding the foregoing, in an action by or in the right of the corporation, no indemnification may be made in respect of any claim, issue or matter as to which such person is adjudged to be liable to the corporation unless and to the extent a court of competent jurisdiction determines that in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnification. Section 78.751 of the Nevada Revised Statutes provides that the expenses of a corporation's officers and directors incurred in defending a civil or criminal action, suit or proceeding may be paid by the corporation as they are incurred and in advance of the final disposition of the action, suit or proceeding, upon receipt of an undertaking by or on behalf of the officer or director to repay such amounts if it is ultimately determined by a court of competent jurisdiction that he or she is not entitled to be indemnified by the corporation. 2 Article VIII of the Registrant's Articles of Incorporation states that the Registrant must indemnify any person who incurs expenses, claims, damages or liability by reason of the fact that he or she is or was an officer, director, employee or agent of the Registrant to the fullest extent allowed under Nevada law. The specific terms of such indemnification are provided in Article X of the Registrant's Bylaws, which generally provides that, to the extent required or permitted by Nevada law, the Registrant shall indemnify and advance expenses to any person who was or is a party or who is threatened to be made a party to any threatened, pending or completed action, suit or proceeding by reason of the fact that he or she is or was an officer, director, employee or agent of the Registrant. The indemnification provided by Article X continues as to a person who has ceased to be a director, officer, employee or agent of and inures to the benefit of his or her heirs, executors and administrators. Article VIII also provides that no amendment or repeal thereof will affect the indemnification rights of any director, officer, employee or agent if such rights come into existence by virtue of acts or omissions of such director, officer, employee or agent prior to such amendment or repeal. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons pursuant to the foregoing or otherwise, the Company has been advised that, in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. The foregoing statements are subject to the detailed provisions of the Nevada Revised Statutes, Article VIII and Article XI of the Articles of Incorporation of the Registrant and Article X of the Bylaws of the Registrant. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not Applicable. ITEM 8. EXHIBITS The exhibits listed on the accompanying Exhibit Index are filed or incorporated by reference as part of this Registration Statement. ITEM 9. UNDERTAKINGS (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made of the securities registered hereby, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the registration statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act that are incorporated by reference in this Registration Statement. 3 (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned Registrant hereby further undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act (and, where applicable, each filing of the annual report of the employee benefit plan pursuant to Section 15(d) of the Securities Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. 4 SIGNATURES Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Phoenix, Arizona on the 11th day of July, 2001. SWIFT TRANSPORTATION CO., INC. By: /s/ William F. Riley III -------------------------------------- William F. Riley III, Senior Executive Vice President, Secretary and Chief Financial Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below, hereby constitutes and appoints Jerry Moyes and William F. Riley III and each of them, either one of whom may act without joinder of the other, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all pre- and post-effective amendments to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and conforming all that said attorneys-in-fact and agents, and each of them, or the substitute or substitutes of any or all of them, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated. SIGNATURE TITLE DATE --------- ----- ---- /s/ Jerry Moyes Chairman of the Board, President July 11, 2001 - ---------------------------- and Chief Executive Officer (Jerry Moyes) /s/ William F. Riley, III Senior Executive Vice President, July 11, 2001 - ---------------------------- Secretary, Chief Financial Officer (William F. Riley, III) and Director /s/ Stephen J. Lyding Chief Accounting Officer July 11, 2001 - ---------------------------- (Stephen J. Lyding) Executive Vice President /s/ Rodney K. Sartor and Director July 11, 2001 - ---------------------------- (Rodney K. Sartor) /s/ Alphonse E. Frei Director July 11, 2001 - ---------------------------- (Alphonse E. Frei) /s/ Lou A. Edwards Director July 11, 2001 - ---------------------------- (Lou A. Edwards) /s/ Earl H. Scudder, Jr. Director July 11, 2001 - ---------------------------- (Earl H. Scudder, Jr.) 5 EXHIBIT INDEX EXHIBIT NUMBER DESCRIPTION - ------ ----------- 4.1 Amended and Restated Articles of Incorporation of the Registrant (Incorporated by reference to Exhibit 4.1 of the Registrant's Registration Statement on Form S-8 (Registration No. 333-85940)) 4.2 Bylaws of the Registrant (Incorporated by reference to Exhibit 3.2 of the Registrant's Registration Statement on Form S-3 (Registration No. 33-66034)) 4.3 Specimen of Common Stock Certificate (incorporated by reference to Exhibit 4 of the Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 1992) 4.4 M.S. Carriers, Inc. Incentive Stock Option Plan 4.5 Amendment to M.S. Carriers, Inc. Incentive Stock Option Plan dated February 19, 1987 4.6 Amendment to M.S. Carriers, Inc. Incentive Stock Option Plan dated December 11, 1995 4.7 M.S. Carriers, Inc. 1993 Stock Option Plan 4.8 M.S. Carriers, Inc. Non-Employee Directors Stock Plan 4.9 M.S. Carriers, Inc. 1996 Stock Option Plan 5 Opinion of Snell & Wilmer L.L.P. 23.1 Consent of Snell & Wilmer L.L.P. (included in Exhibit 5) 23.2 Consent of KPMG LLP 24 Powers of Attorney (included on signature page) EX-4.4 2 ex4-4.txt M.S. CARRIERS, INC. INCENTIVE STOCK OPTION PLAN Exhibit 4.4 M. S. CARRIERS, INC. INCENTIVE STOCK OPTION PLAN THIS IS THE INCENTIVE STOCK OPTION PLAN (the "Plan"), of M. S. CARRIERS, INC., a Tennessee corporation (the "Company"), under which options may be granted from time to time to eligible employees of the Company to purchase shares of the Company's common stock, $.0l par value, subject to the limitations, provisions and requirements hereinafter stated. The Plan is as follows: 1. PURPOSES. The purposes of the M. S. Carriers, Inc. Incentive Stock Option Plan (the "Plan") are as follows: (a) To further the growth, success, and interest of M. S. Carriers, Inc. (the "Company") and its shareholders by enabling key employees of the Company, who have been or will be given substantial responsibility for the direction and management of the Company, to acquire shares of the Company's common stock under the terms and conditions and in the manner contemplated by this Plan, thereby increasing their personal involvement in the Company, providing them with an additional incentive to promote its success and encouraging them to remain in its employ; and (b) To provide an incentive stock option plan which qualifies for treatment under ss. 422(A) of the Internal Revenue Code to transfers of common stock made pursuant to it. The term "Option" shall mean an incentive stock option granted pursuant to the Plan. 2. ADMINISTRATION OF PLAN. This Plan shall be administered by a Committee consisting of three directors who shall be appointed by the Company's Board of Directors for the purposes of this Plan. This Committee shall interpret the Plan in a manner consistent with its purposes; and, subject to the terms of the Plan, will have discretion to determine who shall participate in the Plan and how many shares shall be sold to each participant. All actions and determinations of the Committee taken in connection with the Plan, including the awarding of Options, shall be final and conclusive. The Committee may adopt rules from time to time for carrying out the Plan. 3. TIME OF GRANT. Any and all Options granted pursuant to this Plan must be granted within ten (10) years from the date of the adoption of the Plan by the Board of Directors. An Option shall be deemed to have been granted on the date on which the Committee awards the Option. 4. ELIGIBLE EMPLOYEES. Key employees, including officers, of the Company whom the Committee selects shall be eligible to receive Options; provided that such key employees must agree, in writing, to remain in the employ of, and render services to, the Company for a period of at least two (2) years from the date of the granting of the Option. No member of the Board of Directors of the Company shall be eligible to receive Options unless he is also an employee of the Company, and no member of the Committee shall be eligible to receive Options hereunder. Further, no employee who owns more than ten percent (10%) of the total combined voting power of all classes of stock of the Company shall be eligible to receive Options except in compliance with paragraph 8 below. 5. STOCK SUBJECT TO PLAN. An aggregate of 200,000 shares of the common stock, $.0l par value, of the Company shall be subject to this Plan either from authorized but previously unissued shares or from shares reacquired by the Company, including shares purchased in the open market. If prior to the termination of the Plan, shares issued under it shall have been repurchased by the Company in connection with the restrictions imposed on such shares pursuant to this Plan, such repurchased shares shall again become available for reissuance under the Plan. 6. GRANTING OF OPTIONS. The Company hereby grants Options to the following key employees: J.W. Welch, M.J. Barrow and Robert P. Hurt, as provided in separate Incentive Stock Option Agreements between the Company and these respective key employees. Thereafter, from time to time until termination of the Plan, the Committee shall determine if and when a key employee is to be granted an Option and shall determine the number of shares to be covered by each Option, subject to the provision regarding continuous employment set forth in paragraph 4. The selection of a key employee to be a recipient of an Option shall not be deemed to entitle such key employee to such Option prior to the time it is granted by the Committee. 7. TERMS AND CONDITIONS OF OPTIONS. Options shall be evidenced by Stock Option Agreements in such form not inconsistent with this Plan as the Committee shall from time to time determine, provided that the substance of the following shall be included therein: (a) NUMBER OF SHARES. The number of shares to which the Option pertains shall be stated. (b) OPTION PRICE. The option price shall not be less than 100% of the fair market value of the stock on the date the Option is granted. The fair market value of the stock shall be determined in good faith by the Committee. If the stock is traded in the over-the-counter market, such fair market value shall be deemed to be the mean between the asked and the bid prices on the date of grant as reported by NASDAQ. If the stock is traded on an exchange, such fair market value shall be deemed to be the mean of the high and low prices at which it is quoted or traded on the exchange on the date of grant. (c) METHOD OF EXERCISE. Shares purchased under Options shall at the time of purchase be paid for in full. To the extent that the right to purchase shares has accrued thereunder, Options may be exercised from time to time by the key employee (or other person entitled to exercise the Option) (the "optionee") giving written notice to the Company stating the number of shares with respect to which the Option is being exercised and the time of the delivery thereof. Time of delivery shall be at least 15 days after the giving of such notice unless an earlier date shall have been mutually agreed upon. At the time specified in such notice, the Company shall, without transfer or issue tax to the optionee deliver to the optionee at the main office of the Company, or such other place as shall be mutually acceptable, a certificate or certificates for such shares out of theretofore authorized but unissued or reacquired common shares as the Company may elect. The shares shall be paid for by certified or bank cashier's check or the equivalent thereof acceptable to the Company. If the 2 optionee fails to accept delivery of and pay for all or any part of the number of shares specified in such notice under tender of delivery thereof, his right to exercise the Option with respect to such undelivered shares may be terminated. (d) OPTION TERM. All Options issued hereunder shall be for such period as the Committee shall determine but for not more than ten (10) years from the date the Option is granted. (e) EXERCISE OF OPTIONS. Each Option granted under this Plan shall become exercisable only after two (2) years of continuous employment of the key employee with the Company immediately following the date the Option is granted. An Option shall be exercisable in the manner set out in subparagraph 7(c) according to the following terms. Except as otherwise provided herein, no Option shall be exercisable until the second anniversary of the grant thereof when it shall become exercisable for one-third (1/3) of the shares covered thereby. Thereafter, an Option shall be exercisable for an additional one-third (1/3) of the shares covered thereby on each of the third and fifth anniversaries of the date of grant thereof. Thereafter, an Option may be exercised at any time and from time to time, within its terms, in whole or in part, but it shall not be exercisable after the expiration of ten (10) years from the date on which it became exercisable or after the earlier termination of the Option as provided for in subparagraph 7(g) below. The Committee may, in its discretion, alter such exercise schedule in any particular Option granted and such Option shall reflect the exercise schedule approved by the Committee; provided, however, each Option granted under this Plan shall become immediately exercisable if Michael S. Starnes is not serving in any of the following capacities: Chairman of the Board, Chief Executive Officer or President of the Company. (f) NONASSIGNABILITY OF OPTION RIGHTS. No Option shall be assignable or transferable by a key employee except by will or by the laws of descent and distribution. During the life of a key employee, the Option shall be exercisable only by him. (g) EFFECT OF TERMINATION OF EMPLOYMENT, DISABILITY, OR DEATH. In the event a key employee terminates his employment by reason of (i) discharge for cause or (ii) voluntary termination by the key employee, any Option or Options theretofore granted to him under this Plan to the extent not theretofore exercised by him shall immediately terminate; provided, however, the employee shall have thirty (30) days from the date on which he ceases to be an employee to exercise any Option or portion thereof which was exercisable at the date of his termination. In the event a key employee during his life ceases to be an employee of the Company for any other reason, including retirement, other than total disability, any Option or unexercised portion thereof granted to him shall immediately become exercisable and employee shall have thirty (30) days from the date on which he ceases to be an employee to exercise such Option or any portion thereof. In the event a key employee ceases to be an employee of the Company by reason of his total disability, as defined in ss. 105(d)(4) of the Internal Revenue Code, an Option or unexercised portion thereof granted to him shall terminate one (1) year after the date on which he ceases to be an employee. In the event of the death of a key employee during his employment, any Option or unexercised portion thereof granted to him may be exercised by his personal representatives, heirs, or legatees at any time prior to the earlier of one (1) year after the date of his death or the expiration of the term of the Option. If a key employee's employment ceases on account of his disability or death, all restrictions hereunder shall be waived and all Options heretofore granted shall immediately be exercisable. 3 (h) RIGHTS AS SHAREHOLDER. The key employee shall have no rights as a shareholder with respect to any shares covered by his Option until the date of issuance of a certificate to him for such shares. No adjustment shall be made for dividends or other rights for which the record date is prior to the date such certificate is issued. (i) AMOUNT OF OPTIONS. The aggregate fair market value of the stock determined as of the date on which an Option is granted, for which a key employee may be granted Options in any calendar year, shall not exceed $100,000 plus any unused limit carryover. "Unused limit carryover" shall mean one-half of the amount by which $100,000 exceeds the aggregate fair market value of the stock of which a key employee was granted Options in any calendar year. The unused limit carryover may be used in the three years next succeeding the year it occurs but shall be reduced by the amount used each such year. (j) OTHER OUTSTANDING OPTIONS. No Option granted under this Plan may be exercised while there is outstanding any other Option to purchase stock in the Company which was granted before the granting of such Option and which has not been exercised in full or which has not expired by reason of lapse of time. 8. GREATER THAN 10% SHAREHOLDER. A key employee who owns more than 10% of the total combined voting power of all classes of stock of the Company may be granted an Option pursuant to this Plan, if and only if, in addition to the other terms and restrictions of the Plan, the following restrictions are complied with: (i) the option price is at least 110% of the fair market value of the stock subject to the Option on the date the Option is granted; and (ii) such Option is not exercisable after five (5) years from the date the Option is granted. 9. ADJUSTMENTS. In the event of the declaration of any stock dividend on the stock, or in the event of any reorganization, merger, consolidation, acquisition, separation, recapitalization, split-up, combination or exchange of shares of stock, or like adjustment, the number of shares of stock pursuant to this Plan, and the option prices, may be adjusted by appropriate changes in this Plan and in any Options outstanding pursuant to this Plan. Any such adjustment to the Plan or to Options or option prices shall be made by action of the Committee, whose determination shall be conclusive. 10. STOCK PURCHASED FOR INVESTMENT. At the discretion of the Committee, an option agreement may provide that the option holder shall, by accepting an Option, represent and agree, for himself and his transferees by will or by the laws of descent and distribution that all shares of stock purchased upon exercise of the Option will be acquired for investment and not for resale or distribution, and that upon each exercise of any portion of an Option, the person entitled to exercise the same shall furnish evidence satisfactory to the Company (including a written and signed representation) to the effect that the shares are being acquired in good faith for investment and not for resale or distribution. 4 11. REGISTRATION REQUIREMENTS. No shares shall be issued and delivered upon exercise of any Option, unless and until, in the opinion of counsel for the Company, any applicable registration requirements of the Securities Act of 1933, as amended, any applicable listing requirements of any national securities exchange on which stock of the same class is then listed, and any other requirements of law or of any regulatory bodies having jurisdiction over such issuance and delivery, shall have been fully complied with. 12. SHAREHOLDER APPROVAL. This Plan shall be approved by at least a majority of the shareholders of the Company entitled to vote at a meeting of the shareholders of the Company held within twelve (12) months of the date the Plan is adopted by the Company's Board of Directors. 13. RESTRICTIONS ON TRANSFER OF SHARES. Shares purchased under Options may not be sold or transferred within one (1) year after the transfer of the shares to the optionee. 14. AMENDMENT OF PLAN. The Board of Directors may at any time amend the Plan, provided that, without the approval of the shareholders, there shall be, except by operation of the provisions of paragraph 9 above, no increase in the total number of shares covered by the Plan, there shall be no change in the class of employees eligible to receive Options granted under the Plan, there shall be no reduction in the option price, there shall be no extension of the latest date upon which Options may be exercised and, provided further, that no amendment may affect any then outstanding Options or any unexercised portions thereof. 15. USE OF PROCEEDS. The proceeds from the sale of shares pursuant to Options granted under this Plan shall constitute general funds of the Company. 16. TERMINATION. This Plan shall terminate and no further shares shall be sold or issued hereunder on February 28, 1996, which is ten (10) years from the date on which the Plan was originally approved by the Board of Directors of the Company, or such earlier date as may be determined by the Committee. The termination of this Plan, however, shall not affect the continued existence of rights created under Options issued pursuant to this Plan and outstanding on said date which by their terms extend beyond said date. /s/ M.J Barrow ---------------------------------------- Secretary 5 EX-4.5 3 ex4-5.txt AMENDMENT TO M.S. CARRIERS INCENTIVE STK OP. PLAN Exhibit 4.5 AMENDMENT TO M.S. CARRIERS, INC. INCENTIVE STOCK OPTION PLAN WHEREAS, the Incentive Stock Option Plan (the "Plan") of M.S. Carriers, Inc., a Tennessee corporation, under which options may be granted from time to time eligible employees of the Company, was adopted on February 28, 1986; WHEREAS, the Company desires to amend the Plan in order that the provisions of the Plan will comply with the Tax Reform Act of 1986. NOW, THEREFORE, the Incentive Stock Option Plan of M.S. Carriers, Inc. is hereby amended, effective January 1, 1987, in the following manner: 1. Section 7(i) is hereby deleted in its entirety and the following is substituted in its place: (i) AMOUNT OF OPTIONS. The aggregate fair market value of stock (determined as of the date on which an Option is granted) for which Options are exercisable for the first time under the terms of this Plan by any employee during any calendar year cannot exceed $100,000. 2. Section 7(j) is hereby deleted in its entirety. IN WITNESS WHEREOF, this Amendment has been executed this 19 day of February, 1987. M.S. CARRIERS, INC. By: /s/ M.J. Barrow ------------------------------------ M.J. Barrow, Secretary EX-4.6 4 ex4-6.txt AMENDMENT TO M.S. CARRIERS STOCK OPTION PLAN Exhibit 4.6 AMENDMENT TO M.S. CARRIERS, INC. INCENTIVE STOCK OPTION PLAN WHEREAS, the M.S. Carriers, Inc. Incentive Stock Option Plan (the "Plan") was adopted by M.S. Carriers, Inc. (the "Company") on February 28, 1986, under which options may be granted from time to time to eligible employees of the Company; WHEREAS, the Company desires to amend the Plan in order to provide for continued disinterested administration of the Plan to allow for grants of options under the Plan to be exempt from Section 16(b) of the Securities Exchange Act of 1934; and WHEREAS, the Company desires to document the prior elimination of any restriction on the transfer of shares purchased under the Plan. NOW, THEREFORE, the M.S. Carriers, Inc. Incentive Stock Option Plan is hereby amended in the following manner: I. Section 2. ADMINISTRATION OF THE PLAN. is hereby deleted in its entirety and the following is substituted in its place: 2. ADMINISTRATION. The Plan shall be administered by the members of the Executive Compensation Committee of the Board of Directors who are not employees of the Company (the "Committee"), which committee shall consist of not less than two members. Meetings will beheld at such times and places as shall be determined by the Committee. A majority of the members of the Committee shall constitute a quorum for the transaction of business, and the vote of a majority of those members present at any meeting shall decide any question brought before that meeting. In addition, the Committee may take any action otherwise proper under the Plan by the unanimous written consent of its members. No member of the Committee shall be liable for any act or omission of any other member of the Committee or for any act or omission on his own part, including but not limited to, the exercise of any power or discretion given to him under the Plan, except those resulting from his own gross negligence or willful misconduct. All questions of interpretation and application of the Plan, or of options granted hereunder shall be subject to the determination, which shall be final and binding, of a majority of the Committee. II. Section 13. RESTRICTION ON TRANSFER OF SHARES. is hereby deleted in its entirety. IN WITNESS WHEREOF, this Amendment has been executed this 11th day of December, 1995. M.S. Carriers, Inc. By: /s/ M. J. Barrow ------------------------------------ M. J. Barrow, Secretary EX-4.7 5 ex4-7.txt M.S. CARRIERS, INC. 1993 STOCK OPTION PLAN Exhibit 4.7 M.S. CARRIERS, INC. 1993 STOCK OPTION PLAN 1. PURPOSE. The 1993 Stock Option Plan (the "Plan") is to benefit M.S. Carriers, Inc. (the "Company") through the maintenance and development of its management by offering certain executive officers and other employees a favorable opportunity to become owners of the Common Stock , $.01 par value, of the Company and is intended to advance the best interests of the Company by providing such persons with additional incentive by increasing their proprietary interest in the success of the Company. 2. ADMINISTRATION. Except as provided in Paragraph 4, the Plan shall be administered by the members of the Executive Compensation Committee of the Board of Directors who are not employees of the Company (the "Committee'), which committee shall consist of not less than two members. Meetings shall be held at such times and places as shall be determined by the Committee. A majority of the members of the Committee shall constitute a quorum for the transaction of business, and the vote of a majority of those members present at any meeting shall decide any question brought before that meeting. In addition, the Committee may take any action otherwise proper under the Plan by the unanimous written consent of its members. No member of the Committee shall be liable for any act or omission of any other member of the Committee or for any act or omission on his own part, including but not limited to the exercise of any power or discretion given to him under the Plan, except those resulting from his own gross negligence or willful misconduct. All questions of interpretation and application of the Plan, or of options granted hereunder (the "Options"), shall be subject to the determination, which shall be final and binding, of a majority of the Committee. 3. OPTION SHARES. The stock subject to the Options and other provisions of the Plan shall be shares of the Company's Commons Stock, $.0l par value, (the "Stock"). The total amount of the Stock with respect to which Options may be granted under this Plan shall not exceed in the aggregate Five Hundred Thousand (500,000) shares; provided, that the class and aggregate number of shares of Stock which may be subject to Options granted hereunder shall be subject to adjustment in accordance with the provisions of Paragraph 16 hereof. Such shares of Stock may be treasury shares or authorized but unissued shares of Stock. In the event that any outstanding Option for any reason shall expire or is terminated or canceled, the shares of Stock allocable to the unexercised portion of such Option may again be subject to an Option under the Plan. 4. AUTHORITY TO GRANT OPTIONS. Options granted under the Plan may, in the discretion of the Committee, be either incentive stock options as defined in Section 422A of the Internal Revenue Code of 1986, as amended (the "Code"), or non-qualified stock options. Each stock option agreement shall specifically state, for each Option granted thereunder, whether the Option is an incentive stock option or a non-qualified option, but any Option not designated by the Committee as an incentive stock option shall be a non-qualified stock option. In no event, however, shall both an incentive stock option and a non-qualified stock option be granted together under the Plan in such a manner that the exercise of one Option affects the right to exercise the other. No Options shall be granted under the Plan subsequent to March 24, 2003. Except as provided in Paragraph 6, all provisions of this Plan apply to both incentive and non-qualified options. The only Options under the Plan which may be granted are those which either (i) are granted after adoption of the Plan and are conditioned upon approval of the Plan by the stockholders of the Company within twelve months of such adoption or (ii) are granted after both adoption of the Plan and approval thereof by the stockholders of the Company within twelve months after the date of such adoption, all as provided in Paragraph 20 hereof. 5. ELIGIBILITY FOR STOCK OPTIONS. Individuals who shall be eligible to receive Options under the Plan shall be all executive officers and other employees of the Company. 6. PROVISIONS APPLICABLE TO INCENTIVE STOCK OPTIONS. The following provisions shall apply only to incentive stock options granted under the Plan: (i) Incentive stock options granted to any employee must have an exercise price equal to at least 100% of the fair market value of the Stock (determined in accordance with Paragraph 7) subject to the Option. (ii) No incentive stock option shall be granted to any employee who, at the time such Option is granted, owns, within the meaning of Section 422A(b)(6) of the Code, stock possessing more than 10 percent of the total combined voting power of all classes of Stock of the Company or any of its subsidiaries, except that such an Option may be granted to such an employee if at the time the Option is granted the option price is at least 110 percent of the fair market value of the Stock (determined in accordance with Paragraph 7) subject to the Option, and the Option by its terms is not exercisable after the expiration of five years from the date the Option is granted. (iii) To the extent that the aggregate fair market value of stock with respect to which incentive stock options (without regard to this subparagraph) are exercisable for the first time by any individual during any calendar year (under all plans of the Company) exceeds $100,000, such Options shall be treated as Options which are not incentive stock options. This subparagraph shall be applied by taking Options into account in the order in which they were granted. If some but not all Options granted on any one day are subject to this subparagraph, then such Options shall be apportioned between incentive stock option and non-qualified stock option treatment in such manner as the Committee shall determine. For purposes of the subparagraph, the fair market value of any Stock shall be determined, in accordance with Paragraph 7, as of the date the option with respect to such Stock is granted. (iv) No incentive stock option granted under the Plan shall be exercisable any sooner than one year from the date of grant. 7. OPTION PRICE; FAIR MARKET VALUE. Subject to Paragraph 6, the price at which shares of Stock may be purchased pursuant to an Option shall be not less than fifty percent (50%) of the fair market value of the shares of Stock on the date the Option is granted, and the Committee in its discretion may provide that 2 the price at which shares may be so purchased shall be more than such fair market value. For all purposes of this Plan, the "fair market value" of the Stock shall be the mean of the highest and lowest selling prices of the Stock as reported in The Wall Street Journal for the last trading day before the date as of which such fair market value is to be determined. 8. DURATION OF OPTIONS. Subject to Paragraph 6(ii), no Option shall be exercisable after the expiration of ten years from the date such Option is granted. An Option shall expire immediately following the last day on which such Option is exercisable pursuant to this Paragraph 8 or any decision of the Committee made pursuant to Paragraph 9. 9. AMOUNT EXERCISABLE. Subject to Paragraph 6(iv), the Committee in its discretion may provide that an Option shall be exercisable throughout the term of the Option or during any lesser period of time commencing on or after the date of grant of the Option and ending upon or before the expiration of the term. Each Option may be exercised, so long as it is valid and outstanding, from time to time in part or as a whole, subject to any limitations with respect to the number of shares for which the Option may be exercised at a particular time and to such other conditions as the Committee in its discretion may specify upon such granting the Option. 10. EXERCISE OF OPTIONS. Options shall be exercised by the delivery of written notice to the Company setting forth the number of shares of Stock with respect to which the Option is to be exercised, together with cash, certified check, bank draft or postal or express money order payable to the order of the Company for an amount equal to the Option price of such shares of Stock, or at the election of the Optionee, unless the terms of the Option provide to the contrary, by exchanging shares of Stock owned by the Optionee, so long as the exchanged shares of Stock plus cash (or certified check) paid, if any, have a total fair market value (determined in accordance with Paragraph 7, as of the date of exercise) equal to the purchase prices for such shares to be acquired upon exercise of said Option, and, specifying the address to which the certificates for such shares are to be mailed. Whenever an Option is exercised by exchanging shares of Stock theretofore owned by the Optionee: (1) no shares of Stock received upon exercise of that Option thereafter may be exchanged to pay the Option price for additional shares of Stock within the following six months; and (2) the Optionee shall deliver to the Company certificates registered in the name of such Optionee representing a number of shares of Stock legally and beneficially owned by such Optionee, free of all liens, claims, and encumbrances or every kind, accompanied by stock powers duly endorsed in blank by the record holder of the shares represented by such certificates, with signature guaranteed by a commercial bank or trust company or by a brokerage firm having a membership on a registered national stock exchange. Such notice may be delivered in person to the Secretary of the Company, or may be sent by mail to the Secretary of the Company, in which case delivery shall be deemed made on the date such notice is received. As promptly as practicable after receipt of such written notification and payment, the Company shall deliver to the Optionee certificates for the number of shares with respect to which such option has been so exercised, issued in the Optionee's name; provided, that such delivery shall be deemed effected for all purposes when a stock transfer agent of the company shall have deposited such certificates in the United States mail, addressed to the Optionee, at the address specified pursuant to this Paragraph 10. The delivery of certificates upon the exercise of Options may, in the discretion of the Committee, be subject to any reasonable conditions, including, but not limited to (a) payment to the Company by the person exercising such 3 Option of the amount, determined by the Company, of any tax liability of the Company (including but not limited to employment taxes required to be withheld) resulting from such exercise, or from a sale or other disposition of the stock issued upon exercise of such Option and (b) agreement by the person exercising such Option to provide the Company with such information as the Company might reasonably request pertaining to such exercise, sale or other disposition. In its discretion, the Committee may provide that the Optionee may elect to have the Company accept or retain Stock as payment of an Optionee's liability to the Company, as set forth in (a) above. 11. TRANSFERABILITY OF OPTIONS. Options shall not be transferable by the Optionee other than by will or under the laws of descent and distribution, and shall be exercisable, during the Optionee's lifetime, only by the Optionee. 12. TERMINATION OF EMPLOYMENT OF OPTIONEE. Except as may be otherwise expressly provided herein, Options shall terminate on such date as shall be selected by the Committee in its discretion and specified in the option agreement. If an Optionee and the Company sever their employment relationship for any reason (except as otherwise provided for herein), the Option shall terminate not later than one day less than three months following the severance of the employment relationship. Whether authorized leave of absence, or absence on military or government service, shall constitute severance of the employment relationship between the Company and the Optionee, shall be determined by the Committee at the time thereof. If, before the date of expiration of the Option, the Optionee shall be retired in good standing from the employ of the company for reasons of age or disability under the then established rules of the Company, the Option shall terminate on the earlier of such date of expiration or one year after the date of such retirement. In the event of such retirement, the Optionee shall have the right prior to the termination of such Option to exercise the Option to the extent to which he was entitled to exercise such Option immediately prior to such retirement; however, in the event that the Optionee has retired on or after attaining the age of sixty-two (62) years, the Optionee shall be entitled to exercise all or any part of such Option. Upon the death of the Optionee, his executors, administrators, or any person or persons to whom his Option may be transferred by will or by the laws of descent and distribution, shall have the right, at any time prior to the earlier of the date of expiration or one year following the date of such death, to exercise the Option, in whole or in part (without regard to any limitations imposed pursuant to Paragraph 9 hereof) . In the event that the Committee grants an Option designating it as an incentive stock option, and the Optionee's employment status changes, but such person continues as a director or an affiliate of the Company, then the Company in its discretion may, upon request of the Optionee, elect that the Option previously granted shall continue in full force and effect as a non-qualified stock option. In the event that the Committee grants an Option designating it as a non-qualified stock option, and the person's status with the Company or its subsidiary corporations changes, but such person continues as an affiliate of the Company, then the Company in its discretion may elect that the Option previously granted shall continue in full force and effect. The Committee shall be permitted, in its discretion, to grant to any employee an Option which is an incentive stock option or a non-qualified stock option with a provision that the Option shall continue in full force and effect as non-qualified stock option if the person's status with the Company or its subsidiary changes, but such person continues as an affiliate of the Company. 4 13. REQUIREMENTS OF LAW. The Company shall not be required to sell or issue any shares under any Option if the issuance of such shares shall constitute a violation by the Optionee or the Company of any provisions of any law or regulation of any governmental authority. In addition, in connection with the Securities Act of 1933 (as now in effect and hereafter amended), upon exercise of any Option, the Company shall not be required to issue Stock unless the Committee has received evidence satisfactory to it to the effect that the holder of such Option will not transfer such shares except pursuant to a registration statement in effect under such Act or unless a reasonably satisfactory opinion of counsel addressed to the Company has been received by the Company to the effect that such registration is not required. Any determination in this connection by the Committee shall be final, binding and conclusive. In the event the shares issuable on exercise of an Option are not registered under the Securities Act of 1933, the Company may imprint the following legend or any other legend which counsel for the Company considers necessary or advisable to comply with the Securities Act of 1933: "The shares of stock represented by this certificate have not been registered under the Securities Act of 1933 or under the securities laws of any State and may not be sold or transferred except upon such registration or upon receipt by the Corporation of an opinion of counsel satisfactory to the Corporation, in form and substance satisfactory to the Corporation, that registration is not required for such sale or transfer." The Company may, but shall in no event be obligated to, register any securities covered hereby pursuant to the Securities Act of 1933 (as now in effect or as hereafter amended); and in the event any shares are so registered, the Company may remove any legend on certificates representing such shares. The Company shall not be obligated to take any other affirmative action in order to cause the exercise of an Option or the issuance of shares pursuant thereto to comply with any law or regulation of any governmental authority. 14. NO RIGHTS AS STOCKHOLDER. No Optionee shall have rights as a stockholder with respect to shares covered by any Option until the date of issuance of a stock certificate for such shares; and, except as otherwise provided in Paragraph 16 hereof, no adjustment for dividends, or otherwise, shall be made if the record date thereof is prior to the date of issuance of such certificate. 15. NO EMPLOYMENT OBLIGATION. The granting of any Option shall not impose upon the Company any obligation to employ or continue to employ any Optionee; and the right of the Company to terminate the employment of any employee shall not be diminished or affected by reason of the fact that an Option has been granted to the employee. 16. CHANGES IN THE COMPANY'S CAPITAL STRUCTURE. The existence of outstanding Options shall not affect in any way the right or power of the Company or its stockholders to make or authorize any or all adjustments, recapitalizations, reorganizations or other changes in the Company's capital structure or its business, or any merger or consolidation of the Company, or any issue of bonds, debentures, preferred or prior preference stock ahead of or affecting the Stock or the rights thereof, or the dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise. 5 If the Company shall effect a subdivision or consolidation of shares or other capital readjustment, the payment of a stock dividend, or other increase or reduction of the number of shares of the Stock outstanding, without receiving compensation thereof or in money, services or property, then (a) the number, class, and per share price of shares of stock subject to outstanding Options hereunder shall be appropriately adjusted in such a manner as to entitle an Optionee to receive upon exercise of an Option, for the same aggregate cash consideration, the same total number and class of shares as he would have received had he exercised his Option in full immediately prior to the event requiring the adjustment; and (b) the number and class of shares then reserved for issuance under the Plan shall be adjusted by substituting for the total nwnber and class of shares of stock that would have been received by the owner of an equal number of outstanding shares of each class of Stock as the result of the event requiring the adjustment. After a merger of one or more corporations into the Company, or after a consolidation of the Company and one or more corporations in which the Company shall be the surviving corporation, each holder of an outstanding Option shall, at no additional cost, be entitled upon exercise of such Option to receive (subject to any required action by stockholders) in lieu of the number and class of shares as to which such Option would have been so exercisable in the absence of such event, the number and class of shares of stock or other securities to which such holder would have been entitled pursuant to the terms of the agreement of merger or consolidation if, immediately prior to such merger or consolidation, such holder had been the holder of record of the number and class of shares of Stock equal to the number and class as to which such Option shall be so exercised. If the Company is merged into or consolidated with another corporation under circumstances where the Company is not the surviving corporation, or if the Company sells or otherwise disposes of substantially all its assets to another corporation and is liquidated while unexercised Options remain outstanding under the plan, (i) subject to the provisions of clause (iii) below, after the effective date of such merger, consolidation or sale and liquidation, as the case may be, each holder of an outstanding Option shall be entitled, upon exercise of such Option, to receive, in lieu of shares of the Stock, shares of such stock or other securities as the holders of shares of such class of Stock received pursuant to the terms of the merger, consolidation or sale; (ii) the Board of Directors may waive any limitations imposed pursuant to Paragraph 9 hereof so that all Options, from and after a date prior to the effective date of such merger, consolidation, or sale and liquidation, as the case may be, specified by the Board, shall be exercisable in full; and (iii) all outstanding Options may be canceled by the Board of Directors as of the effective date of any such merger, consolidation or sale and liquidation provided that (x) notice of such cancellation shall be given to each holder of an Option and (y) each holder of an Option shall have the right to exercise such Option in full (without regard to any limitations imposed pursuant to Paragraph 9 hereof) during a 30-day period preceding the effective date of such merger, consolidation or sale and liquidation. Except as hereinbefore expressly provided, the issue by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, for cash or property, or for labor or services either upon direct sale or upon the exercise of rights or warrants to subscribe therefor, or upon 6 conversion of shares or obligations of the Company convertible into such shares or other securities, shall not affect, and no adjustment by reason thereof shall be made with respect to, the number, class or price of shares of Stock then subject to outstanding Options. 17. AMENDMENT OR TERMINATION OF PLAN. The Board of Directors may modify, revise or terminate this Plan at any time and from time to time; provided, however, that without the further approval of the holders of at least a majority of the shares of stock of the Company present in person or by proxy and entitled to vote on the election of directors, the Board may not increase the aggregate number of shares which may be issued under Options pursuant to provisions of the Plan, change the class of employees eligible under the Plan, or materially increase the benefits accruing to participants under the Plan. Consistent with the foregoing limitations, the Committee shall determine whether and to what extent any amendment, modification, revision or termination will affect any outstanding Options. 18. WRITTEN AGREEMENT. Each Option granted hereunder shall be embodied in a written option agreement, which shall be subject to the terms and conditions prescribed above and shall be signed by the Optionee and by the Chairman of the Board, the President or any Vice President of the Company for and in the name and on behalf of the Company. Such an option agreement shall contain such other provisions as the Committee in its discretion shall deem advisable. 19. INDEMNIFICATION OF COMMITTEE. The Company shall indemnify each present and future member of the Committee against, and each member of the Committee shall be entitled without further act on his part to indemnify from the Company for, all expenses (including the amount of judgments and the amount of approved settlements made with a view to the curtailment of costs of litigation, other than amounts paid to the Company itself) reasonably incurred by him in connection with or arising out of any action, suit or proceeding in which he may be involved by reason of his being or having been a member of the Committee at the time of incurring such expenses; provided, however, that such indemnity shall not include any expenses incurred by any such member of the Committee (a) in respect of matters as to which he shall be finally adjudged in any such action, suit or proceeding to have been guilty of gross negligence or willful misconduct in the performance of his duty as such member of the Committee, or (b) in respect of any matter in which any settlement is effected, to an amount in excess of the amount approved by the Company on the advice of its legal counsel; and provided further, that no right of indemnification under the provisions set forth herein shall be available to or enforceable by any such member of the Committee unless, within sixty (60) days after institution of any such action, suit or proceeding, he shall have offered the Company, in writing, the opportunity to handle and defend same at its own expense. The foregoing right of indemnification shall inure to the benefit of the heirs, executors or administrators of each such member of the Committee and shall be in addition to all other rights to which such member of the Committee may be entitled as a matter of law, contract, or otherwise. 20. ADOPTION, APPROVAL AND EFFECTIVE DATE OF PLAN. The Plan shall be considered adopted and shall become effective on the date the Plan is approved by the Board of Directors of the Company; provided, however, that the Plan and any grants of Options thereunder, shall be void, if the stockholders of the Company shall not have approved adoption of the Plan within twelve months after such effective date. Adopted By The Board of Directors By Resolution dated March 25, 1993 /s/ M.J. Barrow ---------------------------------------- M.J. Barrow, Secretary 7 EX-4.8 6 ex4-8.txt M.S. CARRIERS, INC. NON-EMPLOYEE DIR. STOCK PLAN Exhibit 4.8 M.S. CARRIERS, INC. NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN 1. PURPOSE The purpose of the M.S. Carriers, Inc. Non-Employee Directors Stock Option Plan (the "Plan") is, by the means of stock options, to encourage ownership in M.S. Carriers, Inc. (the "Company") by non-employee directors of the Company whose continued services are considered essential to the Company's growth and progress and to provide non-employee directors with a further incentive to continue as directors of the Company. 2. ADMINISTRATION (a) The Plan shall be administered by the board of directors of the Company (the "Board"). (b) Grants of options under the Plan and the amount and nature of such grants shall be automatic in accordance with Section 4 hereof. (c) All questions regarding the operation of the Plan shall be referred to the Board and all decisions of the Board shall be final and conclusive. 3. PARTICIPATION IN THE PLAN Each non-employee member of the Board shall be a participant in the Plan. No person who is also an employee of the Company or one of its subsidiaries shall be a participant except with respect to any options received prior to becoming such an employee. 4. STOCK OPTIONS (a) EXISTING NON-EMPLOYEE DIRECTORS. On the effective date of this Plan, each non-employee director currently serving the Company shall be granted an option to purchase 2500 shares of the Company's common stock, $.0l par value per share ("Common Stock"). (b) NEW NON-EMPLOYEE DIRECTORS. Each non-employee director elected to the Board subsequent to the effective date of this Plan shall be granted on the first business day following his or her election to the Board, an option to purchase 2500 shares of the Company's Common Stock. 5. DETERMINATION OF OPTION PRICE The option price of a share of Common Stock covered by each stock option shall be 100% of the fair market value of Common Stock on the date of grant of such stock option. Such fair market value shall be the average of the high and low selling prices of a share of Common Stock as reported by The Wall Street Journal on the date of grant of the stock option. 6. OPTION TERM The term within which each stock option is exercisable shall be ten years from the date of the grant of an option. While an optionee is a director of the Company and in the case of an optionee who ceases to be a director of the Company by reason of death or total disability, an option may be exercised prior to its expiration only by the optionee or, in the case of death, by the executor or administrator of optionee's estate or by a person who acquired the right to exercise such option by bequest or inheritance. All option privileges continue for one (1) year after death or total disability, but not after the expiration of the option term. Otherwise, an option may only be exercised within the thirty day period after an optionee ceases to be a director of the Company. 7. VESTING OP OPTIONS The stock options granted hereunder shall vest and become exercisable, subject to the provisions of paragraph 8, in five (5) equal annual installments on the anniversary dates of the date of grant as follows: First anniversary date - 500 shares Second anniversary date - 500 additional shares Third anniversary date - 500 additional shares Fourth anniversary date - 500 additional shares Fifth anniversary date - 500 additional shares ------------------------ 2500 total shares Stock options that become exercisable in accordance with the foregoing shall remain exercisable, subject to the provisions contained in the Plan, until the expiration of the term of the stock option as set forth in Paragraph 6. 8. TERMINATION OF DIRECTORSHIP (a) If a non-employee director ceases to be a director of the Company for any reason other than death or disability, all stock options previously granted to him shall immediately terminate; provided, however, the non-employee director shall have thirty (30) days from the date on which he ceased to be a non-employee director to exercise any option or portion thereof which was exercisable on the date that the non-employee director ceased to be a director of the Company. (b) If a non-employee director dies during his directorship or ceases to be a director of the Company by reason of his total disability, as defined in section 105(a)(4) of the Internal Revenue Code of 1986, as amended ("Internal Revenue Code"), all options previously granted to the non-employee director shall immediately vest and become exercisable; provided, however, all options must be exercised by the non-employee director or his personal representative, heirs or legatees prior to the earlier of (i) one (1) year after the date on which the non-employee director dies or ceases to be a director of the Company, or (ii) the expiration of the term of the options. 2 (c) Notwithstanding anything contained in this Plan to the contrary, no stock option granted hereunder shall become exercisable prior to the expiration of a six-month period following the date that such option is deemed acquired by the non-employee director pursuant to Rule 16b-3 under the Securities Exchange Act of 1934 (The "1934 Act"). 9. OPTION AGREEMENTS Each stock option shall be evidenced by a written option agreement containing such terms and conditions, consistent with the provisions of the Plan, as the Board shall from time to time determine. 10. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION In the event of changes in the Common Stock by reason of stock dividends, split-ups, recapitalizations, mergers, consolidations, combination or exchanges of shares and the like, the maximum number of shares of Common Stock subject to the Plan and the number of shares and option price per share of all stock subject to outstanding options shall be adjusted as necessary to maintain the proportionate interest of the optionees and preserve, without exceeding, the value of the options. 11. TRANSFERABILITY OP OPTIONS Options under the Plan shall not be assignable or transferable, or subject to encumbrance or charge of any nature, otherwise than by will or the laws of descent and distribution. A stock option may be exercised, during the lifetime of a non-employee director to whom such option was granted, only by such director. 12. AMENDMENT AND TERMINATION The Board may at any time and from time to time amend, suspend or terminate the Plan in whole or in part; provided, however, that the Board may not amend the Plan without the approval of the Company's stockholders if such approval is required to comply with Rule 16b-3 under the 1934 Act or the Tennessee Business Corporation Act or any applicable rules of the National Association of Securities Dealers, Inc. or the New York Stock Exchange; and provided further, that the Plan shall not be amended more than once every six months other than to comport with changes in the Internal Revenue Code, the Employee Retirement Income Security Act, or the rules thereunder. No such amendment, suspension or termination may, without the consent of a director to whom an option shall theretofore have been granted, adversely affect the rights of such directors under such option. 13. COMMON STOCK RESERVED FOR PLAN Subject to adjustment under Section 10, the aggregate number of shares of Common Stock which may be issued under options and which shall be reserved for purposes of the Plan shall be 20,000. Authorized but unissued shares or treasury shares or both may be utilized for purposes of the Plan. Such number of reserved shares shall be reduced if and to the extent that treasury shares rather than authorized but unissued shares of Common Stock shall be utilized for purposes of the Plan. If any stock option shall expire or terminate for any reason without having been exercised in full, the unpurchased shares under such option shall again become available for purposes of the Plan. 3 14. MANNER OF EXERCISE AND PAYMENT (a) Stock options shall be exercised by delivery of written notice to the Secretary of the Company setting forth the number of shares of Common Stock with respect to which the option is to be exercised. (b) Payment for all shares shall be made in cash or with Common Stock or a combination of both delivered at the time that an option, or any part thereof, is exercised. No shares shall be issued until full payment thereof or has been made. Common Stock used as payment shall have been owned by the optionee not less than six months preceding the date the option is exercised and shall be valued at its fair market value on the date of payment. 15. MISCELLANEOUS PROVISIONS (a) The grant of stock options under the Plan shall not confer upon any director any of the rights of a shareholder until exercise of the director's stock option and until the director shall have received a certificate or certificates therefor. (b) The grant of stock options under the Plan shall not be deemed to create any obligation on the part of the Board to nominate any director for re-election by the Company's shareholders or to limit the Board's authority to remove any director. 16. DURATION OF PLAN The Plan shall expire on the tenth anniversary of the earlier of approval of the Board or the stockholders of the Company unless earlier terminated, and no stock option shall be granted after expiration or termination but stock options previously granted shall remain outstanding in accordance with their applicable terms and conditions and the terms and conditions of the Plan. 17. SECTION 16(B) COMPLIANCE It is the intention of the Company that the Plan shall comply in all respects with Rule l6-b3 under the 1934 Act and, if any Plan provision is later found not to be in compliance with Section 16 of the 1934 Act, the provision shall be deemed null and void, and in all events the Plan shall be construed in favor of its meeting the requirements of Rule 16b-3. 18. ADOPTION, APPROVAL AND EFFECTIVE DATE OF PLAN The Plan shall be considered adopted and shall become effective on the date the Plan is approved by the Board of Directors of the Company; provided, however, that the Plan and any grants of Options thereunder, shall be void, if the stockholders of the Company shall not have approved adoption of the Plan within twelve months after each effective date. Adopted By The Board of Directors By Resolution dated September 14, 1994 /s/ M.J. Barrow ---------------------------------------- M.J. Barrow, Secretary 4 EX-4.9 7 ex4-9.txt M.S. CARRIERS, INC. 1996 STOCK OPTION PLAN Exhibit 4.9 M. S. CARRIERS, INC. 1996 STOCK OPTION PLAN 1. PURPOSE. The 1996 Stock Option Plan (the "Plan") is to benefit M.S. Carriers, Inc. (the "Company") in attracting and retaining outstanding personnel by offering to its employees a favorable opportunity to become owners of the Common Stock , $.01 par value, of the Company and is intended to advance the best interests of the Company by providing employees with additional incentive by enabling them to obtain a proprietary interest in the success of the Company. 2. ADMINISTRATION. Except as provided in Paragraph 4, the Plan shall be administered by the members of the Executive Compensation Committee of the Board of Directors who are not employees of the Company (the "Committee"), which committee shall consist of not less than two members. Meetings shall be held at such times and places as shall be determined by the Committee. A majority of the members of the Committee shall constitute a quorum for the transaction of business, and the vote of a majority of those members present at any meeting shall decide any question brought before that meeting. In addition, the Committee may take any action otherwise proper under the Plan by the unanimous written consent of its members. No member of the Committee shall be liable for any act or omission of any other member of the Committee or for any act or omission on his own part, including but not limited to the exercise of any power or discretion given to him under the Plan, except those resulting from his own gross negligence or willful misconduct. All questions of interpretation and application of the Plan, or of options granted hereunder (the "Options"), shall be subject to the determination, which shall be final and binding, of a majority of the Committee. 3. OPTION SHARES. The stock subject to the Options and other provisions of the Plan shall be shares of the Company's Commons Stock, $.01 par value, (the "Stock"). The total amount of the Stock with respect to which Options may be granted under this Plan shall not exceed in the aggregate One Million Five Hundred Thousand (1,500,000) shares; provided, that the class and aggregate number of shares of Stock which may be subject to Options granted hereunder shall be subject to adjustment in accordance with the provisions of Paragraph 16 hereof. Such shares of Stock may be treasury shares or authorized but unissued shares of Stock. In the event that any outstanding Option for any reason shall expire or is terminated or canceled, the shares of Stock allocable to the unexercised portion of such Option may again be subject to an Option under the Plan. 4. AUTHORITY TO GRANT OPTIONS. Options granted under the Plan may, in the discretion of the Committee, be either incentive stock options as defined in Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"), or non-qualified stock options. Each stock option agreement or other appropriate documentation shall specifically state, for each Option granted thereunder, whether the Option is an incentive stock option or a non-qualified option, but any Option not designated by the Committee as an incentive stock option shall be a non-qualified stock option. In no event, however, shall both an incentive stock option and a non-qualified stock option be granted together under the Plan in such a manner that the exercise of one Option affects the right to exercise the other. No Options shall be granted under the Plan subsequent to March 25, 2006. Except as provided in Paragraph 6, all provisions of this Plan apply to both incentive and non-qualified options. The only Options under the Plan which may be granted are those which either (i) are granted after adoption of the Plan and are conditioned upon approval of the Plan by the stockholders of the Company within twelve months of such adoption or (ii) are granted after both adoption of the Plan and approval thereof by the stockholders of the Company within twelve months after the date of such adoption, all as provided in Paragraph 20 hereof. 5. ELIGIBILITY FOR STOCK OPTIONS. Individuals who shall be eligible to receive Options under the Plan shall be all employees of the Company. 6. PROVISIONS APPLICABLE TO INCENTIVE STOCK OPTIONS. The following provisions shall apply only to incentive stock options granted under the Plan: (i) Incentive stock options granted to any employee must have an exercise price equal to at least 100% of the fair market value of the Stock (determined in accordance with Paragraph 7) subject to the Option. (ii) No incentive stock option shall be granted to any employee who, at the time such Option is granted, owns, within the meaning of Section 422(b)(6) of the Code, stock possessing more than 10 percent of the total combined voting power of all classes of Stock of the Company or any of its subsidiaries, except that such an Option may be granted to such an employee if at the time the Option is granted the option price is at least 110 percent of the fair market value of the Stock (determined in accordance with Paragraph 7) subject to the Option, and the Option by its terms is not exercisable after the expiration of five years from the date the Option is granted. (iii) To the extent that the aggregate fair market value of stock with respect to which incentive stock options (without regard to this subparagraph) are exercisable for the first time by any individual during any calendar year (under all plans of the Company) exceeds $100,000, such Options shall be treated as Options which are not incentive stock options. This subparagraph shall be applied by taking Options into account in the order in which they were granted. If some but not all Options granted on any one day are subject to this subparagraph, then such Options shall be apportioned between incentive stock option and non-qualified stock option treatment in such manner as the Committee shall determine. For purposes of the subparagraph, the fair market value of any Stock shall be determined, in accordance with Paragraph 7, as of the date the option with respect to such Stock is granted. (iv) No incentive stock option granted under the Plan shall be exercisable any sooner than one year from the date of grant. 7. OPTION PRICE; FAIR MARKET VALUE. Subject to Paragraph 6, the price at which shares of Stock may be purchased pursuant to an Option shall be not less than one hundred percent (100%) of the fair market value of the shares of Stock 2 on the date the Option is granted, and the Committee in its discretion may provide that the price at which shares may be so purchased shall be more than such fair market value. For all purposes of this Plan, the "fair market value" of the Stock shall be the mean of the highest and lowest selling prices of the Stock as reported in The Wall Street Journal on the applicable date or, if there were no sales of Common Stock reported for such date, for the last trading day before the date as of which such fair market value is to be determined. 8. DURATION OF OPTIONS. Subject to Paragraph 6(ii), no Option shall be exercisable after the expiration of ten years from the date such Option is granted. An Option shall expire immediately following the last day on which such Option is exercisable pursuant to this Paragraph 8 or any decision of the Committee made pursuant to Paragraph 9. 9. AMOUNT EXERCISABLE. Subject to Paragraph 6(iv), the Committee in its discretion may provide that an Option shall be exercisable throughout the term of the Option or during any lesser period of time commencing on or after the date of grant of the Option and ending upon or before the expiration of the term. Each Option may be exercised, so long as it is valid and outstanding, from time to time in part or as a whole, subject to any limitations with respect to the number of shares for which the Option may be exercised at a particular time and to such other conditions as the Committee in its discretion may specify upon such granting the Option. 10. EXERCISE OF OPTIONS. Options shall be exercised by the delivery of written notice to the Company setting forth the number of shares of Stock with respect to which the Option is to be exercised, together with cash, certified check, bank draft or postal or express money order payable to the order of the Company for an amount equal to the Option price of such shares of Stock, or, if allowed by the terms of the Option, by exchanging shares of Stock owned by the Optionee, so long as the exchanged shares of Stock plus cash (or certified check) paid, if any, have a total fair market value (determined in accordance with Paragraph 7, as of the date of exercise) equal to the purchase prices for such shares to be acquired upon exercise of said Option, and specifying the address to which the certificates for such shares are to be mailed. Whenever an Option is exercised by exchanging shares of Stock theretofore owned by the Optionee: (1) no shares of Stock received upon exercise of that Option thereafter may be exchanged to pay the Option price for additional shares of Stock within the following six months; and (2) the Optionee shall deliver to the Company certificates registered in the name of such Optionee representing a number of shares of Stock legally and beneficially owned by such Optionee, free of all liens, claims, and encumbrances or every kind, accompanied by stock powers duly endorsed in blank by the record holder of the shares represented by such certificates, with signature guaranteed by a commercial bank or trust company or by a brokerage firm having a membership on a registered national stock exchange. Such notice may be delivered in person to the Secretary of the Company, or may be sent by mail to the Secretary of the Company, in which case delivery shall be deemed made on the date such notice is received. As promptly as practicable after receipt of such written notification and payment, the Company shall deliver to the Optionee certificates for the number of shares with respect to which such option has been so exercised, issued in the Optionee's name; provided, that such delivery shall be deemed effected for all purposes when a stock transfer agent of the company shall have deposited such certificates in the United States mail, addressed to the Optionee, at the address specified pursuant to this Paragraph 10. The delivery of certificates upon the exercise of Options may, in the discretion of the Committee, be subject 3 to any reasonable conditions, including, but not limited to (a) payment to the Company by the person exercising such Option of the amount, determined by the Company, of any tax liability of the Company (including but not limited to employment taxes required to be withheld) resulting from such exercise, or from a sale or other disposition of the stock issued upon exercise of such Option and (b) agreement by the person exercising such Option to provide the Company with such information as the Company might reasonably request pertaining to such exercise, sale or other disposition. In its discretion, the Committee may provide that the Optionee may elect to have the Company accept or retain Stock as payment of an Optionee's liability to the Company, as set forth in (a) above. 11. TRANSFERABILITY OF OPTIONS. Options shall not be transferable by the Optionee other than by will or under the laws of descent and distribution, and shall be exercisable, during the Optionee's lifetime, only by the Optionee. 12. TERMINATION OF EMPLOYMENT OF OPTIONEE. Except as may be otherwise expressly provided herein, Options shall terminate on such date as shall be selected by the Committee in its discretion and specified in the option agreement. If an Optionee and the Company sever their employment relationship for any reason (except as otherwise provided for herein) , the Option shall terminate not later than one day less than three months following the severance of the employment relationship. Whether authorized leave of absence, or absence on military or government service, shall constitute severance of the employment relationship between the Company and the Optionee, shall be determined by the Committee at the time thereof. If, before the date of expiration of the Option, the Optionee shall be retired in good standing from the employ of the Company for reasons of age or disability under the then established rules of the Company, the Option shall terminate on the earlier of such date of expiration or one year after the date of such retirement. In the event of such retirement, the Optionee shall have the right prior to the termination of such Option to exercise the Option to the extent to which he was entitled to exercise such Option immediately prior to such retirement; however, in the event that the Optionee has retired on or after attaining the age of sixty-two (62) years, the Optionee shall be entitled to exercise all or any part of such Option. Upon the death of the Optionee, his executors, administrators, or any person or persons to whom his Option may be transferred by will or by the laws of descent and distribution, shall have the right, at any time prior to the earlier of the date of expiration or one year following the date of such death, to exercise the Option, in whole or in part (without regard to any limitations imposed pursuant to Paragraph 9 hereof) In the event that the Committee grants an Option designating it as an incentive stock option, and the Optionee's employment status changes, but such person continues as a director or an affiliate of the Company, then the Company in its discretion may, upon request of the Optionee, elect that the Option previously granted shall continue in full force and effect as a non-qualified stock option. In the event that the Committee grants an Option designating it as a non-qualified stock option, and the person's status with the Company or its subsidiary corporations changes, but such person continues as an affiliate of the Company, then the Company in its discretion may elect that the Option previously granted shall continue in full force and effect. The Committee shall be permitted, in its discretion, to grant to any employee an Option which is an incentive stock option or a non-qualified stock option with a provision that the Option shall continue in full force and effect as non-qualified stock option if the person's status with the Company or its subsidiary changes, but such person continues as an affiliate of the Company. 4 13. REQUIREMENTS OF LAW. The Company shall not be required to sell or issue any shares under any Option if the issuance of such shares shall constitute a violation by the Optionee or the Company of any provisions of any law or regulation of any governmental authority. In addition, in connection with the Securities Act of 1933 (as now in effect and hereafter amended), upon exercise of any Option, the Company shall not be required to issue Stock unless the Committee has received evidence satisfactory to it to the effect that the holder of such Option will not transfer such shares except pursuant to a registration statement in effect under such Act or unless a reasonably satisfactory opinion of counsel addressed to the Company has been received by the Company to the effect that such registration is not required. Any determination in this connection by the Committee shall be final, binding and conclusive. In the event the shares issuable on exercise of an Option are not registered under the Securities Act of 1933, the Company may imprint the following legend or any other legend which counsel for the Company considers necessary or advisable to comply with the Securities Act of 1933: "The shares of stock represented by this certificate have not been registered under the Securities Act of 1933 or under the securities laws of any State and may not be sold or transferred except upon such registration or upon receipt by the Corporation of an opinion of counsel satisfactory to the Corporation, in form and substance satisfactory to the Corporation, that registration is not required for such sale or transfer." The Company may, but shall in no event be obligated to, register any securities covered hereby pursuant to the Securities Act of 1933 (as now in effect or as hereafter amended); and in the event any shares are so registered, the Company may remove any legend on certificates representing such shares. The Company shall not be obligated to take any other affirmative action in order to cause the exercise of an Option or the issuance of shares pursuant thereto to comply with any law or regulation of any governmental authority. 14. NO RIGHTS AS STOCKHOLDER. No Optionee shall have rights as a stockholder with respect to shares covered by any option until the date of issuance of a stock certificate for such shares; and, except as otherwise provided in Paragraph 16 hereof, no adjustment for dividends, or otherwise, shall be made if the record date thereof is prior to the date of issuance of such certificate. 15. NO EMPLOYMENT OBLIGATION. The granting of any Option shall not impose upon the Company any obligation to employ or continue to employ any Optionee; and the right of the Company to terminate the employment of any employee shall not be diminished or affected by reason of the fact that an Option has been granted to the employee. 16. CHANGES IN THE COMPANY'S CAPITAL STRUCTURE. The existence of outstanding Options shall not affect in any way the right or power of the Company or its stockholders to make or authorize any or all adjustments, recapitalizations, reorganizations or other changes in the Company s capital structure or its business, or any merger or consolidation of the Company, or any issue of bonds, debentures, preferred or prior preference stock ahead of or affecting the Stock or the rights thereof, or the dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise. 5 If the Company shall effect a subdivision or consolidation of shares or other capital readjustment, the payment of a stock dividend, or other increase or reduction of the number of shares of the Stock outstanding, without receiving compensation therefor in money, services or property, then (a) the number, class, and per share price of shares of stock subject to outstanding Options hereunder shall be appropriately adjusted in such a manner as to entitle an Optionee to receive upon exercise of an Option, for the same aggregate cash consideration, the same total number and class of shares as he would have received had he exercised his Option in full immediately prior to the event requiring the adjustment; and (b) the number and class of shares then reserved for issuance under the Plan shall be adjusted by substituting for the total number and class of shares of stock that would have been received by the owner of an equal number of outstanding shares of each class of Stock as the result of the event requiring the adjustment. After a merger of one or more corporations into the Company, or after a consolidation of the Company and one or more corporations in which the Company shall be the surviving corporation, each holder of an outstanding Option shall, at no additional cost, be entitled upon exercise of such Option to receive (subject to any required action by stockholders) in lieu of the number and class of shares as to which such Option would have been so exercisable in the absence of such event, the number and class of shares of stock or other securities to which such holder would have been entitled pursuant to the terms of the agreement of merger or consolidation if, immediately prior to such merger or consolidation, such holder had been the holder of record of the number and class of shares of Stock equal to the number and class as to which such Option shall be so exercised. If the Company is merged into or consolidated with another corporation under circumstances where the Company is not the surviving corporation, or if the Company sells or otherwise disposes of substantially all its assets to another corporation and is liquidated while unexercised Options remain outstanding under the Plan, (i) subject to the provisions of clause (iii) below, after the effective date of such merger, consolidation or sale and liquidation, as the case may be, each holder of an outstanding Option shall be entitled, upon exercise of such Option, to receive, in lieu of shares of the Stock, shares of such stock or other securities as the holders of shares of such class of Stock received pursuant to the terms of the merger, consolidation or sale; (ii) the Board of Directors may waive any limitations imposed pursuant to Paragraph 9 hereof so that all Options, from and after a date prior to the effective date of such merger, consolidation, or sale and liquidation, as the case may be, specified by the Board, shall be exercisable in full; and (iii) all outstanding Options may be canceled by the Board of Directors as of the effective date of any such merger, consolidation or sale and liquidation provided that (x) notice of such cancellation shall be given to each holder of an Option and (y) each holder of an Option shall have the right to exercise such Option in full (without regard to any limitations imposed pursuant to Paragraph 9 hereof) during a 30-day period preceding the effective date of such merger, consolidation or sale and liquidation. Except as hereinbefore expressly provided, the issue by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, for cash or property, or for labor or services either upon direct sale or upon the exercise of rights or warrants to subscribe therefor, or upon 6 conversion of shares or obligations of the Company convertible into such shares or other securities, shall not affect, and no adjustment by reason thereof shall be made with respect to, the number, class or price of shares of Stock then subject to outstanding Options. 17. AMENDMENT OR TERMINATION OF PLAN. The Board of Directors may modify, revise or terminate this Plan at any time and from time to time; provided, however, that without the further approval of the holders of at least a majority of the shares of stock of the Company present in person or by proxy and entitled to vote on the election of directors, the Board may not increase the aggregate number of shares which may be issued under Options pursuant to provisions of the Plan, change the class of employees eligible under the Plan, or materially increase the benefits accruing to participants under the Plan. Consistent with the foregoing limitations, the Committee shall determine whether and to what extent any amendment, modification, revision or termination will affect any outstanding Options. 18. WRITTEN DOCUMENTATION. Each Option granted hereunder shall be embodied in a written option agreement or such other appropriate documentation as the Committee in its discretion shall deem advisable. 19. INDEMNIFICATION OF COMMITTEE. The Company shall indemnify each present and future member of the Committee against, and each member of the Committee shall be entitled without further act on his part to indemnify from the Company for, all expenses (including the amount of judgments and the amount of approved settlements made with a view to the curtailment of costs of litigation, other than amounts paid to the Company itself) reasonably incurred by him in connection with or arising out of any action, suit or proceeding in which he may be involved by reason of his being or having been a member of the Committee at the time of incurring such expenses; provided, however, that such indemnity shall not include any expenses incurred by any such member of the Committee (a) in respect of matters as to which he shall be finally adjudged in any such action, suit or proceeding to have been guilty of gross negligence or willful misconduct in the performance of his duty as such member of the Committee, or (b) in respect of any matter in which any settlement is effected, to an amount in excess of the amount approved by the Company on the advice of its legal counsel; and provided further, that no right of indemnification under the provisions set forth herein shall be available to or enforceable by any such member of the Committee unless, within sixty (60) days after institution of any such action, suit or proceeding, he shall have offered the Company, in writing, the opportunity to handle and defend same at its own expense. The foregoing right of indemnification shall inure to the benefit of the heirs, executors or administrators of each such member of the Committee and shall be in addition to all other rights to which such member of the Committee may be entitled as a matter of law, contract, or otherwise. 20. ADOPTION, APPROVAL AND EFFECTIVE DATE OF PLAN. The Plan shall be considered adopted and shall become effective on the date the Plan is approved by the Board of Directors of the Company; provided, however, that the Plan and any grants of Options thereunder, shall be void, if the stockholders of the Company shall not have approved adoption of the Plan within twelve months after such effective date. Adopted By The Board of Directors By Resolution dated March 26, 1996 /s/ M.J. Barrow ---------------------------------------- M.J. Barrow, Secretary 8 EX-5 8 ex5.txt OPINION AND CONSENT OF SNELL & WILMER L.L.P. Exhibit 5 [SNELL & WILMER LETTERHEAD] July 11, 2001 Swift Transportation Co., Inc. 220 South 75th Avenue Phoenix, Arizona 85043 Re: Registration Statement on Form S-8 Ladies and Gentlemen: We have acted as counsel to Swift Transportation Co., Inc., a Nevada corporation (the "Company"), in connection with the preparation of a Registration Statement on Form S-8 to be filed with the Securities and Exchange Commission (the "Registration Statement"), with respect to the registration under the Securities Act of 1933, as amended, of 2,452,318 shares of the Company's common stock, par value $.001 per share (the "Shares"), subject to issuance upon exercise of options granted under M.S. Carriers, Inc.'s Incentive Stock Option Plan, 1993 Stock Option Plan, Non-Employee Directors Stock Option Plan, and 1996 Stock Option Plan (the "Plans"), as assumed by the Company pursuant to the terms of the Merger Agreement, dated as of December 11, 2000, among the Company, Sun Merger, Inc. and M.S. Carriers, Inc. We have examined the Registration Statement, the Company's Articles of Incorporation and Bylaws, as amended, and such other documents, records, certificates, memoranda, and other instruments as we deem necessary as a basis for this opinion. We have assumed the genuineness and authenticity of all documents submitted to us as originals, the conformity of originals of all documents submitted to us as copies thereof, and the due execution and delivery of all documents where due execution and delivery are a prerequisite to the effectiveness thereof. We express no opinion as to the applicability or compliance with or effect of federal law or the law of any jurisdiction other than the Nevada General Corporation Law. Based upon our examination, subject to the assumptions stated above and relying on the statements in the documents we have examined, we are of the opinion that, when issued in accordance with the terms of the Plans, the Shares will be validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion as an exhibit to the above-referenced Registration Statement and to the use of our name wherever it appears in the Registration Statement. In giving such consent, we do not consider that we are "experts" within the meaning of such term as used in the Swift Transportation Co., Inc. July 11, 2001 Page 2 Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission issued thereunder, with respect to any part of the Registration Statement, including this opinion as an exhibit or otherwise. Very truly yours, SNELL & WILMER L.L.P. EX-23.2 9 ex23-2.txt CONSENT OF KPMG LLP Exhibit 23.2 INDEPENDENT AUDITORS' CONSENT The Board of Directors Swift Transportation Co., Inc.: We consent to the use of our reports incorporated herein by reference in Form S-8. /s/ KPMG LLP Phoenix, Arizona July 10, 2001 -----END PRIVACY-ENHANCED MESSAGE-----