EXHIBIT 10.24
THIS DOCUMENT CONSTITUTES PART OF A PROSPECTUS COVERING SECURITIES THAT
ARE TO BE REGISTERED UNDER THE SECURITIES ACT OF 1933.
[ ]
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT ("Agreement") is made as of [ ] ("Grant
Date"), between Smithway Motor Xpress Corp., a Nevada corporation (the
"Company"), and [ ], a key employee of one of the Company's operating
subsidiaries (the "Optionee").
BACKGROUND
The Company has determined that to attract and retain the best
available personnel for positions of substantial responsibility and to provide
successful management of the Company's business in a manner consistent with the
interests of all stockholders, it should offer a compensation package that
provides key employees being recruited to the Company a chance to participate
financially in the success of the Company by developing an equity interest in
it. To accomplish the foregoing, the Company adopted its New Employee Incentive
Stock Plan (the "Plan") pursuant to resolutions of the Board of Directors dated
August 6, 2001. The Board of Directors has forwarded adoption of the Plan to the
Company's stockholders for approval at the Company's next annual meeting. By
this Agreement, the Company and the Optionee desire to establish the terms upon
which the Company is willing to grant to the Optionee, and upon which the
Optionee is willing to accept from the Company, an option to purchase shares of
Class A Common Stock of the Company ("Common Stock"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings ascribed in the
Plan.
AGREEMENTS
1. Grant of Stock Option. Subject to the terms and conditions herein and
in the Plan, the Company grants to the Optionee the right and option (the
"Option") to purchase from the Company all or any part of an aggregate [ ]
shares of Common Stock, authorized but unissued or, at the option of the
Company, treasury stock if available (the "Option Shares"). To the extent
allowable, the grant of Option Shares is intended to qualify as an incentive
stock option, as such term is defined under Section 422 of the Internal Revenue
Code of 1986, as amended. The exercise price for the Option Shares shall be
[ ] per share (the "Purchase Price"), the closing price of the Common Stock
on [ ].
2. Exercise of Option. Subject to the terms and conditions of this
Agreement and the Plan, the Option may be exercised only by completing and
signing a written notice in substantially the following form:
I hereby exercise [all/part of] the Option granted to me by
Smithway Motor Xpress Corp. on [ ], and elect to purchase
_____________________ shares of the Company's Class A Common
Stock for [ ] per share, representing the Fair Market Value
on the date of grant.
3. Payment of Purchase Price. Payment of the Purchase Price may be made
as follows:
a. In United States dollars in cash or by check, bank draft, or money
order payable to the Company;
b. At the sole discretion of the Board, through the delivery of
shares of Common Stock with an aggregate Fair Market Value at the date
of such delivery equal to the Purchase Price;
c. At the sole discretion of the Board, through the surrender of part
of the Option or other exercisable options having a difference between
(i) the exercise price of such surrendered Options and (ii) the Fair
Market Value of the Common Stock equal to the Purchase Price.
d. At the sole discretion of the Board, in any combination of a., b.,
and c. above.
The Board in its sole discretion shall determine acceptable methods for
surrendering Common Stock or options as payment upon exercise of the Option and
may impose such limitations and conditions on the use of Common Stock or options
to exercise the Option as it deems appropriate. Among other factors, the Board
shall consider the restrictions of Rule 16b-3 under the Securities Exchange Act
of 1934 or any successor rule.
4. Vesting. Subject to the provisions of Paragraphs 5, 7, and 8, the
Option shall vest and become exercisable in whole or in part from time to time,
but only in accordance with the following schedule:
-------------------------------- -----------------------------------------------
Number of Shares Subject to Options as to
Date which Option may be Exercised
-------------------------------- -----------------------------------------------
-------------------------------- -----------------------------------------------
-------------------------------- -----------------------------------------------
-------------------------------- -----------------------------------------------
-------------------------------- -----------------------------------------------
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No vesting shall occur in the event of termination of Optionee's status as an
employee of the Company or if the Option has otherwise terminated under this
Agreement prior to such date.
5. Termination of Option. The Option, to the extent not already
exercised, shall terminate upon the first to occur of the following dates:
a. The date on which the Optionee's employment by the Company is
terminated, provided, that if such termination (i) is voluntary, or (ii)
occurs due to (x) retirement with the consent of the Board, (y) death,
or (z) disability (which for all ISOs shall have the meanings ascribed
in Section 22(e) of the Code) the Option shall terminate as set forth in
Paragraphs c., d., and e., respectively.
b. Immediately upon the occurrence of any Triggering Event (as
defined in Paragraph 13 below);
c. Thirty (30) days after voluntary termination;
d. Three (3) years after termination due to retirement with the
consent of the Board or disability (provided, that Optionee recognizes
that he or she may not receive ISO tax treatment as to any part of the
Option exercised more than twelve (12) months after termination of
employment due to disability or three (3) months after termination due
to retirement);
e. Twelve (12) months after the Optionee's death; or
f. Notwithstanding any other provision herein, on October 2013 (being
the expiration of a term equal to ten (10) years from the Grant Date).
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6. Adjustments. In the event of any stock split, reverse stock split,
stock dividend, business combination, reclassification, or similar event, the
number of Optioned Shares (including any Option outstanding after termination of
employment or death) and the Purchase Price per share shall be proportionately
and appropriately adjusted without any change in the aggregate Purchase Price to
be paid therefor upon exercise of the Option. The determination by the Board as
to the terms of any of the foregoing adjustments shall be conclusive and
binding.
7. Dissolution or Liquidation. In the event of a proposed dissolution or
liquidation of the Company, the Option will terminate immediately prior to the
consummation of such proposed action, unless otherwise provided by the Board.
8. Acquisition. If (i) there is a sale of all or substantially all of
the assets of the Company; (ii) there is any merger, consolidation,
recapitalization, reorganization, or other similar transaction or series of
transactions, whether or not the Company is the surviving corporation, in which
▇▇▇▇▇▇▇ ▇. and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (the "Smiths") together beneficially own shares
having the power to cast less than twenty percent (20%) of the votes entitled to
be cast at meetings of stockholders; or (iii) as a result of any sale of stock,
tender offer, or other transaction or series of transactions any person,
corporation or other entity or group thereof other than the Smiths (the
"Acquiror"), acquires the beneficial ownership of shares of the Company's stock
which, when added to any other shares, the beneficial ownership of which is held
by the Acquiror, shall have more than fifty percent (50%) of the votes that are
entitled to be cast at meetings of stockholders (the events described in (i),
(ii), and (iii) being referred to as an "Acquisition"), any portion of the
Option that was not currently exercisable prior to the date of the Acquisition
shall become fully vested and immediately exercisable on the date of
consummation of the Acquisition. In the event of any Acquisition where the
Company is not the surviving corporation, the unexercised portion of Option
shall be assumed, or an equivalent option shall be substituted, by the successor
corporation. For the purposes of this Agreement, the term "beneficial ownership"
and derivations thereof shall have the meaning defined in Section 13(d)(1) of
the Securities Exchange Act of 1934 and the rules and regulations promulgated
thereunder.
9. Notices. Any notice to be given under the terms of the Agreement
("Notice") shall be addressed to the Company in care of its Chief Executive
Officer at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, or at its then current
corporate headquarters. Notice to be given to the Optionee shall be addressed to
him or her by hand delivery or at his or her then current residential address as
appearing on the payroll records. Notice shall be deemed duly given when
enclosed in a properly sealed envelope and deposited by certified mail, return
receipt requested, in a post office or branch post office regularly maintained
by the United States Government.
10. Transferability of Option. The Option shall not be transferable by
the Optionee, except with Board approval and otherwise in accordance with
applicable provisions of the Internal Revenue Code and SEC rules and
regulations, and may be exercised during the life of the Optionee only by the
Optionee or such approved transferee.
11. Optionee Not a Stockholder. The Optionee shall not be deemed for any
purposes to be a stockholder of the Company with respect to any of the Option
Shares except to the extent that the Option has been exercised, payment made,
and a stock certificate issued.
12. Disputes or Disagreements. The Optionee agrees, for himself and his
personal representatives, that any disputes or disagreements which arise under
or as a result of this Agreement shall be determined by the Board in its sole
discretion, and that any interpretation by the Board of the terms of this
Agreement shall be final, binding, and conclusive.
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13. Right to Repurchase. The Board may repurchase the Option Shares for
the Purchase Price if a Triggering Event, as defined below, occurs any time
within five years after the Option for such Option Shares was exercised by
Optionee. The Company shall exercise its rights hereunder by written
notification to the Optionee to be given within 180 days after the Board becomes
aware of the Triggering Event. A "Triggering Event" shall mean:
a. Optionee voluntarily terminates employment with the Company or if
Optionee's employment is involuntarily terminated for nonperformance of
duties and if Optionee subsequently becomes, directly or indirectly, a
sole proprietor, partner, stockholder, officer, director, employee,
member, manager, independent contractor, or consultant of or to any
business which is related to the contract or common carriage of goods;
or
b. Optionee's employment is involuntarily terminated for (or
voluntarily terminates because of) gross misconduct, fraud,
embezzlement, theft, or breach of any fiduciary duty to the Company.
14. Refund of Benefit. Unless approved in writing by the Board, if a
Triggering Event occurs and Optionee has already disposed of all or some of the
Option Shares, the Board may demand, and Optionee shall pay to the Company, the
difference between the Purchase Price and the Fair Market Value of the Option
Shares on the date of exercise.
15. Withholding. The Optionee acknowledges that under certain
circumstances, including but not limited to a "disqualifying disposition" of an
ISO under Section 422(a)(i) of the Code, Optionee may recognize ordinary income
which, for tax purposes, is considered payment of wages for services. As a
result, the Company may have certain tax withholding and reporting obligations.
The Company shall not be obligated to issue any stock certificate upon the
exercise of the right to purchase, or the transfer of, Option Shares until the
Optionee has delivered sufficient funds to cover all income, FICA, FUTA, and
other applicable tax withholding. Optionee shall notify the Company of any
disqualifying disposition of Option Shares (currently, any disposition within
two (2) years of the Grant Date or one year of the exercise date) and take all
actions necessary for the Company to obtain a tax deduction if compensation
income is deemed to result from any exercise or disposition. Optionee shall
indemnify and hold the Company harmless against any loss it may experience as a
result of Optionee's failure to comply with this paragraph. At the Board's sole
discretion, to satisfy the Company's withholding obligations, the Company may
retain such number of shares of Common Stock subject to the exercised Option
which have an aggregate Fair Market Value (as defined in the Plan) on the date
of exercise equal to the Company's aggregate federal, state, local, and foreign
tax withholding obligations as a result of the exercise of the Option by
Optionee.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed by its duly authorized officer, and the Optionee has hereunto affixed
his or her signature.
Smithway Motor Xpress Corp.,
a Nevada corporation
By:
----------------------------------- --------------------------------------
"OPTIONEE", NAME
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