exv10w1



 





Exhibit 10.1




EMPLOYMENT AGREEMENT




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



RECITAL




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



AGREEMENT




     The parties agree as follows:



     1. Duties.



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



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



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



     3. Compensation.



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



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



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



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



     4. Benefits.



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



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



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



     5. Death or Disability.



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



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



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




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




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



     6. Termination by the Company.



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




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




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




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




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




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



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



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



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




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




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




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




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




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



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



     7. Termination by Employee.



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



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



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




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


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




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




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




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




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




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




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



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



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



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



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



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



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



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



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



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



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



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



	 	 	 	 	 
	

	 	(a)
	 	if to the Company:
	 
	 	 	 	 
	

	 	 	 	Swift Transportation Co., Inc.
	

	 	 	 	2200 South 75th Avenue
	

	 	 	 	Phoenix, Arizona 85043
	

	 	 	 	Attention: Secretary
	 
	 	 	 	 
	

	 	(b)
	 	if to Executive:
	 
	 	 	 	 
	

	 	 	 	14201 South Presario Trail
	

	 	 	 	Phoenix, Arizona 85048






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




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



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



	 	 	 	 	 
	 	 	EXECUTIVE:
	 
	 	 
	 
	 	/s/ Robert W. Cunningham
	 	 	

	 	 	Robert W. Cunningham
	 
	 	 	 	 
	 	 	COMPANY:
	 
	 	 	 	 
	 	 	SWIFT TRANSPORTATION CO., INC.
	 
	 	 	 	 
	 	 	By	 	/s/ Jerry Moyes
	

	 	 	 	

	 
	 	 	 	 
	 	 	Name:	 	Jerry Moyes
	

	 	 	 	

	 
	 	 	 	 
	 	 	Title:	 	Chief Executive Officer
	

	 	 	 	









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