exv10w1



 






Exhibit 10.1




CHANGE IN CONTROL AGREEMENT




           THIS CHANGE IN CONTROL AGREEMENT (this “Agreement”) is entered into as of the
27th day of October, 2005 by and between Swift Transportation Co., Inc., a Nevada
corporation (the “Company”), and Robert W. Cunningham (“Executive”).



W I T N E S S E T H




           WHEREAS, the Company considers the establishment and maintenance of a sound and vital
management to be essential to protecting and enhancing the best interests of the Company and its
stockholders; and



           WHEREAS, the Company recognizes that, as is the case with many publicly held corporations, the
possibility of a change in control may arise and that such possibility may result in the departure
or distraction of management personnel to the detriment of the Company and its stockholders; and



           WHEREAS, the Board (as defined in Section 1) has determined that it is in the best interests
of the Company and its stockholders to secure Executive’s continued services and to ensure
Executive’s continued dedication to his duties in the event of any threat or occurrence of a Change
in Control (as defined in Section 1) of the Company; and



           WHEREAS, the Board has authorized the Company to enter into this Agreement.



           NOW, THEREFORE, for and in consideration of the premises and the mutual covenants and
agreements herein contained, the Company and Executive hereby agree as follows:



           1. Definitions. As used in this Agreement, the following terms shall have the
respective meanings set forth below:



           (a) “Board” means the Board of Directors of the Company.



           (b) “Bonus Amount” means the highest annual incentive bonus earned by Executive from
the Company (or its affiliates) during the last three (3) completed fiscal years of the Company
immediately preceding Executive’s Date of Termination (annualized in the event Executive was not
employed by the Company (or its affiliates) for the whole of any such fiscal year), or, in the
event that Executive has not been employed by the Company for any part of a prior year at the
relevant time hereunder, the “Bonus Amount” will mean Executive’s target annual incentive bonus).
It is acknowledged that, as of the date of this Agreement, Executive is not entitled to an



 









 







annual incentive bonus pursuant to terms of the Employment Agreement between the Company and
Executive dated as of November 3, 2004 (the “Employment Agreement”).



           (c) “Cause” means (i) the willful and continued failure of Executive to perform
substantially his duties with the Company (other than any such failure resulting from Executive’s
incapacity due to physical or mental illness or any such failure subsequent to Executive being
delivered a notice of termination, pursuant to Section 9, without Cause by the Company or
delivering a notice of termination, pursuant to Section 9, for Good Reason to the Company) after a
written demand for substantial performance is delivered to Executive by the Board which
specifically identifies the manner in which the Board believes that Executive has not substantially
performed Executive’s duties, or (ii) the willful engaging by Executive in illegal conduct or gross
misconduct which is demonstrably and materially injurious to the Company or its affiliates. For
purpose of this paragraph (c), no act or failure to act by Executive shall be considered “willful”
unless done or omitted to be done by Executive in bad faith and without reasonable belief that
Executive’s action or omission was in the best interests of the Company or its affiliates. Any
act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the
Board, based upon the advice of counsel for the Company or upon the instructions of the Company’s
chief executive officer or another senior officer of the Company shall be conclusively presumed to
be done, or omitted to be done, by Executive in good faith and in the best interests of the
Company. Cause shall not exist unless and until the Company has delivered to Executive a copy of a
resolution duly adopted by three-quarters (3/4) of the entire Board (excluding Executive if
Executive is a Board member) at a meeting of the Board called and held for such purpose (after
reasonable notice to Executive and an opportunity for Executive, together with counsel, to be heard
before the Board), finding that in the good faith opinion of the Board an event set forth in
clauses (i) or (ii) has occurred and specifying the particulars thereof in detail.



           (d) “Change in Control” means the occurrence of any one of the following events:




     (i) individuals who, on the date of this Agreement, constitute the Board (the
“Incumbent Directors”) cease for any reason to constitute at least a majority of
the Board, provided that any person becoming a director subsequent to the date of this
Agreement, whose election or nomination for election was approved by a vote of at least
two-thirds of the Incumbent Directors then on the Board (either by a specific vote or by
approval of the proxy statement of the Company in which such person is named as a nominee
for director, without written objection to such nomination) shall be an Incumbent Director;
provided, however, that no individual initially elected or nominated as a
director of the Company as a result of an actual or threatened election contest with
respect to directors or as a result of any other actual or threatened solicitation of
proxies or consents by or on behalf of any person other than the Board shall be deemed to
be an Incumbent Director;



-2-









 






     (ii) any “person” (as such term is defined in Section 3(a)(9) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”) and as used in Sections
13(d)(3) and 14(d)(2) of the Exchange Act) is or becomes a “beneficial owner” (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company
representing more than 50% of the combined voting power of the Company’s then outstanding
securities eligible to vote for the election of the Board (the “Company Voting
Securities”); provided, however, that the event described in this
paragraph (ii) shall not be deemed to be a Change in Control by virtue of any of the
following acquisitions: (A) by the Company or any Subsidiary, (B) by any employee benefit
plan (or related trust) sponsored or maintained by the Company or any Subsidiary, or (C) by
any underwriter temporarily holding securities pursuant to an offering of such securities;




     (iii) the consummation of a merger, consolidation, statutory share exchange or similar
form of corporate transaction involving the Company or any of its Subsidiaries that
requires the approval of the Company’s stockholders, whether for such transaction or the
issuance of securities in the transaction (a “Business Combination”), unless
immediately following such Business Combination: (A) more than 50% of the total voting
power of (x) the corporation resulting from such Business Combination (the “Surviving
Corporation”), or (y) if applicable, the ultimate parent corporation that directly or
indirectly has beneficial ownership of at least 95% of the voting securities eligible to
elect directors of the Surviving Corporation (the “Parent Corporation”), is
represented by Company Voting Securities that were outstanding immediately prior to such
Business Combination (or, if applicable, is represented by shares into which such Company
Voting Securities were converted pursuant to such Business Combination), and such voting
power among the holders thereof is in substantially the same proportion as the voting power
of such Company Voting Securities among the holders thereof immediately prior to the
Business Combination, (B) no person (other than any employee benefit plan (or related
trust) sponsored or maintained by the Surviving Corporation or the Parent Corporation), is
or becomes the beneficial owner, directly or indirectly, of 50% or more of the total voting
power of the outstanding voting securities eligible to elect directors of the Parent
Corporation (or, if there is no Parent Corporation, the Surviving Corporation) and (C) at
least a majority of the members of the board of directors of the Parent Corporation (or, if
there is no Parent Corporation, the Surviving Corporation) following the consummation of
the Business Combination were Incumbent Directors at the time of the Board’s approval of
the execution of the initial agreement providing for such Business Combination (any
Business Combination which satisfies all of the criteria specified in (A), (B) and (C)
above shall be deemed to be a “Non-Qualifying Transaction”); or



-3-









 






     (iv) the stockholders of the Company approve a plan of complete liquidation or
dissolution of the Company or the consummation of a sale of all or substantially all of the
Company’s assets.



           (e) “Date of Termination” means (i) the effective date on which Executive’s employment
by the Company terminates as specified in a prior written notice by the Company or Executive, as
the case may be, to the other, delivered pursuant to Section 9 or (ii) if Executive’s employment by
the Company terminates by reason of death, the date of death of Executive.



           (f) “Disability” means termination of Executive’s employment by the Company due to
Executive’s absence from Executive’s duties with the Company on a full-time basis for at least one
hundred eighty (180) days in any two hundred seventy (270) day period as a result of Executive’s
incapacity due to physical or mental illness.



           (g) “Good Reason” means, without Executive’s express written consent, the occurrence
of any of the following events after a Change in Control:




     (i) (A) any change in the duties or responsibilities (including reporting
responsibilities) of Executive that is inconsistent in any material and adverse respect
with Executive’s position(s), duties, responsibilities or status with the Company
immediately prior to such Change in Control (including any material and adverse diminution
of such duties or responsibilities), including any change that is directly or indirectly a
result of the Company no longer being a publicly traded entity, or (B) a material and
adverse change in Executive’s titles or offices (including, if applicable, membership on
the Board) with the Company as in effect immediately prior to such Change in Control;




     (ii) a reduction by the Company in Executive’s rate of annual base salary or annual
target bonus opportunity (including any material and adverse change in the formula for such
annual bonus target) as in effect immediately prior to such Change in Control or as the
same may be increased from time to time thereafter;




     (iii) any requirement of the Company that Executive (A) be based anywhere more than
thirty-five (35) miles from Phoenix, AZ, or (B) travel on Company business to an extent
substantially greater than the travel obligations of Executive immediately prior to such
Change in Control;




     (iv) the failure of the Company to (A) continue in effect any employee benefit plan,
compensation plan, welfare benefit plan or material fringe benefit plan in which Executive
is participating immediately prior to such Change in Control or the taking of any action by
the Company which would adversely affect Executive’s participation in or reduce Executive’s
benefits under any such plan, unless Executive is permitted to participate in other plans
providing Executive with substantially equivalent benefits (at substantially equivalent
cost with respect



-4-









 







to welfare benefit plans), or (B) provide Executive with paid vacation in accordance
with the most favorable vacation policies of the Company as in effect for Executive
immediately prior to such Change in Control, including the crediting of all service for
which Executive had been credited under such vacation policies prior to the Change in
Control;




     (v) any purported termination of Executive’s employment which is not effectuated
pursuant to Section 9(b) (and which will not constitute a termination hereunder); or




     (vi) the failure of the Company to obtain the assumption (and, if applicable,
guarantee) agreement from any successor (and Parent Corporation) as contemplated in Section
8(b);




     (vii) the majority stockholder of the Company (or any affiliate of the Company,
including but not limited to any successor, Surviving Corporation or Parent Corporation) is
Jerry Moyes, any affiliate of Jerry Moyes, or any entity that is controlled by or under
common control with Jerry Moyes or any of his affiliates (including but not limited to a
trust).



           An isolated, insubstantial and inadvertent action taken in good faith and which is remedied by
the Company within ten (10) days after receipt of notice thereof given by Executive shall not
constitute Good Reason. Executive’s right to terminate employment for Good Reason shall not be
affected by Executive’s incapacities due to mental or physical illness.



           Executive and the Company agree that Executive will notify the Company of his intention to
resign for Good Reason (if Executive chooses to exercise such right), within fifty-five (55) days
of the first occurrence of the event or action which constitutes Good Reason hereunder, and shall
designate Executive’s effective date of resignation to be not later than seventy (70) days after
such event or action. The Executive’s failure to object to an event or action that constituted
Good Reason within this period will preclude Executive from relying on such event following this
period.



           (h) “Qualifying Termination” means a termination of Executive’s employment (i) by the
Company other than for Cause or (ii) by Executive for Good Reason. Termination of Executive’s
employment on account of death (other than death after the delivery of a valid notice of
termination without Cause or for Good Reason), Disability or Retirement shall not be treated as a
Qualifying Termination.



           (i) “Retirement” means Executive’s mandatory retirement (not including any mandatory
early retirement) in accordance with the Company’s retirement policy generally applicable to its
salaried employees, as in effect immediately prior to the Change in Control, or in accordance with
any retirement arrangement established with respect to Executive with Executive’s written consent.



-5-









 





           (j) “Subsidiary” means any corporation or other entity in which the Company has a
direct or indirect ownership interest of 50% or more of the total combined voting power of the then
outstanding securities or interests of such corporation or other entity entitled to vote generally
in the election of directors or in which the Company has the right to receive 50% or more of the
distribution of profits or 50% of the assets or liquidation or dissolution.



           (k) “Termination Period” means the period of time beginning with a Change in Control
and ending two (2) years following such Change in Control. Notwithstanding anything in this
Agreement to the contrary, if Executive’s employment is terminated prior to a Change in Control but
in connection with a potential Change in Control and after the Company or a third party had taken
affirmative steps to effectuate a Change in Control, for reasons that would have constituted a
Qualifying Termination if they had occurred following a Change in Control (other than as described
in Section 1(g)(vii)), then for purposes of this Agreement, the date immediately prior to the date
of such termination of employment or event constituting Good Reason shall be treated as a Change in
Control if and only if an actual Change of Control does, in fact, occur within one (1) year of such
termination. For purposes of determining the timing of payments and benefits to Executive
under Section 3, the date of the actual Change in Control shall be treated as Executive’s Date of
Termination under Section 1(e), and for purposes of determining the amount of payments and
benefits to Executive under Section 3, the date Executive’s employment is actually terminated shall
be treated as Executive’s Date of Termination under Section 1(e).



           2. Term of Agreement. This Agreement shall be effective on the date hereof and shall
continue in effect until the Company shall have given three (3) years’ written notice of
cancellation; provided, that, notwithstanding the delivery of any such notice, this
Agreement shall continue in effect for a period of two (2) years after a Change in Control, if such
Change in Control shall have occurred during the term of this Agreement. Notwithstanding anything
in this Section to the contrary, this Agreement shall terminate if Executive or the Company
terminates Executive’s employment prior to a Change in Control, except as provided in Section 1(k).



           3. Payments and Benefits Upon a Change in Control and Termination of Employment.



           (a) Severance Benefits. If during the Termination Period the employment of Executive
shall terminate pursuant to a Qualifying Termination, then the Company shall provide to Executive:




     (i) within ten (10) days following the Date of Termination a lump-sum cash amount
equal to the sum of (A) Executive’s base salary through the Date of Termination and any
bonus amounts which have become payable, to the extent not theretofore paid or deferred,
(B) a pro rata portion of Executive’s annual bonus for the fiscal year in
which Executive’s Date of Termination occurs



-6-









 






in an amount at least equal to (x) Executive’s Bonus Amount, multiplied by (y) a
fraction, the numerator of which is the number of days in the fiscal year in which the Date
of Termination occurs through the Date of Termination and the denominator of which is three
hundred sixty-five (365), and any accrued vacation pay, in each case to the extent not
theretofore paid; plus




     (ii)  all employee benefits as to which Executive may be entitled under the employee
benefit plans, programs and policies of the Company and its affiliates (the amounts and
benefits described in subsections (i) and (ii), the “Accrued Amounts”); plus




     (iii) within ten (10) days following the Date of Termination, a lump-sum cash amount
equal to the greater of: (1) (A) three (3) times Executive’s highest annual rate of base
salary during the 12-month period immediately prior to Executive’s Date of Termination,
plus (B) three (3) times Executive’s Bonus Amount, or (2) the amount payable to Executive
pursuant to Section 6(b)(iv) of the Employment Agreement (which, for purposes of clarity,
shall be payable in a lump sum hereunder notwithstanding the provisions of said Section
6(b)(iv).



           (b) Welfare Benefits. If during the Termination Period the employment of Executive
shall terminate pursuant to a Qualifying Termination, then the Company shall continue to provide,
for a period of two (2) years following Executive’s Date of Termination, Executive (and Executive’s
dependents, if applicable) with the same level of medical, dental, accident, disability and life
insurance benefits upon substantially the same terms and conditions (including contributions
required by Executive for such benefits) as existed immediately prior to Executive’s Date of
Termination (or, if more favorable to Executive, as such benefits and terms and conditions existed
immediately prior to the Change in Control); provided, that, if Executive cannot
continue to participate in the Company plans providing such benefits, the Company shall otherwise
provide such benefits on the same after-tax basis as if continued participation had been permitted.
Notwithstanding the foregoing, in the event Executive becomes reemployed with another employer and
becomes eligible to receive welfare benefits from such employer, the welfare benefits described
herein shall be secondary to such benefits during the period of Executive’s eligibility, but only
to the extent that the Company reimburses Executive for any increased cost and provides any
additional benefits necessary to give Executive the benefits provided hereunder.



           (c) Acceleration of Equity Compensation. Upon a Change in Control, any equity or
equity-based compensation or awards that have been granted to Executive by the Company or its
affiliates which remain unvested, or pursuant to which the restrictions have not lapsed, shall
become immediately vested, exercisable, and all restrictions thereon shall lapse.



           (d) Non-Qualifying Termination. If during the Termination Period the employment of
Executive shall terminate other than by reason of a Qualifying



-7-









 







Termination, then the Company shall pay to Executive within thirty (30) days following the
Date of Termination, the Accrued Amounts. The Company may make such additional payments, and
provide such additional benefits, to Executive as the Company and Executive may agree in writing.



           4. Certain Additional Payments by the Company.



           (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be
determined that any payment, award, benefit or distribution (or any acceleration of any payment,
award, benefit or distribution) by the Company (or any of its affiliated entities) or any entity
which effectuates a Change in Control (or any of its affiliated entities) to or for the benefit of
Executive (whether pursuant to the terms of this Agreement or otherwise, but determined without
regard to any additional payments required under this Section 4) (the “Payments”) would be
subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended
(the “Code”), or any interest or penalties are incurred by Executive with respect to such
excise tax (such excise tax, together with any such interest and penalties, are hereinafter
collectively referred to as the “Excise Tax”), then the Company shall pay to Executive an
additional payment (a “Gross-Up Payment”) in an amount such that, after payment by
Executive of all taxes (including, without limitation, any income taxes and any interest and
penalties imposed with respect thereto, and any excise tax) imposed upon the Gross-Up Payment,
Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the
Payments. For purposes of determining the amount of the Gross-Up Payment, Executive shall be
deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for
the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and
local income taxes at the highest marginal rate of taxation for the calendar year in which the
Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be
obtained from deduction of such state and local taxes.



           (b) Subject to the provisions of Section 4(a), all determinations required to be made under
this Section 4, including whether and when a Gross-Up Payment is required, the amount of such
Gross-Up Payment, the amount of any Option Redetermination (as defined below) and the assumptions
to be utilized in arriving at such determinations, shall be made by the public accounting firm that
is retained by the Company as of the date immediately prior to the Change in Control (the
“Accounting Firm”) which shall provide detailed supporting calculations both to the Company
and Executive within fifteen (15) business days of the receipt of notice from the Company or
Executive that there has been a Payment, or such earlier time as is requested by the Company
(collectively, the “Determination”). Notwithstanding the foregoing, in the event (i) the
Board shall determine prior to the Change in Control that the Accounting Firm is precluded from
performing such services under applicable auditor independence rules, (ii) the Audit Committee of
the Board determines that it does not want the Accounting Firm to perform such services because of
auditor independence concerns or (iii) the Accounting Firm is serving as accountant or auditor for
the person(s) effecting



-8-









 







the Change in Control, the Board shall appoint another nationally recognized public accounting
firm to make the determinations required hereunder (which accounting firm shall then be referred to
as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne
solely by the Company and the Company shall enter into any agreement requested by the Accounting
Firm in connection with the performance of the services hereunder. The Gross-Up Payment under this
Section 4 with respect to any Payments shall be made no later than thirty (30) days following such
Payment. If the Accounting Firm determines that no Excise Tax is payable by Executive, it shall
furnish Executive with a written opinion to such effect, and to the effect that failure to report
the Excise Tax, if any, on Executive’s applicable federal income tax return will not result in the
imposition of a negligence or similar penalty. The Determination by the Accounting Firm shall be
binding upon the Company and Executive. As a result of the uncertainty in the application of
Section 4999 of the Code at the time of the Determination, it is possible that Gross-Up Payments
which will not have been made by the Company should have been made (“Underpayment”) or
Gross-Up Payments are made by the Company which should not have been made (“Overpayment”),
consistent with the calculations required to be made hereunder. In the event the amount of the
Gross-Up Payment is less than the amount necessary to reimburse Executive for his Excise Tax, the
Accounting Firm shall determine the amount of the Underpayment that has occurred and any such
Underpayment (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code)
shall be promptly paid by the Company to or for the benefit of Executive. In the event the amount
of the Gross-Up Payment exceeds the amount necessary to reimburse Executive for his Excise Tax, the
Accounting Firm shall determine the amount of the Overpayment that has been made and any such
Overpayment (together with interest at the rate provided in Section 1274(b)(2) of the Code) shall
be promptly paid by Executive (to the extent Executive has received a refund if the applicable
Excise Tax has been paid to the Internal Revenue Service) to or for the benefit of the Company.
Executive shall cooperate, to the extent Executive’s expenses are reimbursed by the Company, with
any reasonable requests by the Company in connection with any contests or disputes with the
Internal Revenue Service in connection with the Excise Tax.



           5. Withholding Taxes. The Company may withhold from all payments due to Executive (or
his beneficiary or estate) hereunder all taxes which, by applicable federal, state, local or other
law, the Company is required to withhold therefrom.



           6. Reimbursement of Expenses. If any contest or dispute shall arise under this
Agreement involving termination of Executive’s employment with the Company or involving the failure
or refusal of the Company to perform fully in accordance with the terms hereof, the Company shall
reimburse Executive, on a current basis, for all reasonable legal fees and expenses, if any,
incurred by Executive in connection with such contest or dispute (regardless of the result
thereof), together with interest in an amount equal to the prime rate of interest from time to time
in effect, but in no event higher than the maximum legal rate permissible under applicable law,
such interest to accrue from the date the Company receives Executive’s statement for such fees



-9-









 







and expenses through the date of payment thereof, regardless of whether or not Executive’s
claim is upheld by a court of competent jurisdiction/arbitration panel; provided,
however, Executive shall be required to repay any such amounts to the Company to the extent
that a court/arbitration panel issues a final and non-appealable order setting forth the
determination that the position taken by Executive was frivolous or advanced by Executive in bad
faith.



           7. Scope of Agreement. Nothing in this Agreement shall be deemed to entitle Executive
to continued employment with the Company or its Subsidiaries, and if Executive’s employment with
the Company shall terminate prior to a Change in Control, Executive shall have no further rights
under this Agreement (except as otherwise provided hereunder); provided, however,
that any termination of Executive’s employment during the Termination Period shall be subject to
all of the provisions of this Agreement.



           8. Successors; Binding Agreement.



           (a) This Agreement shall not be terminated by any Business Combination. In the event of any
Business Combination, the provisions of this Agreement shall be binding upon the Surviving
Corporation, and such Surviving Corporation shall be treated as the Company hereunder.



           (b) The Company agrees that in connection with any Business Combination, it will cause any
successor entity to the Company unconditionally to assume (and for any Parent Corporation in such
Business Combination to guarantee), by written instrument delivered to Executive (or his
beneficiary or estate), all of the obligations of the Company hereunder. Failure of the Company to
obtain such assumption and guarantee prior to the effectiveness of any such Business Combination
that constitutes a Change in Control, shall be a breach of this Agreement and shall constitute Good
Reason hereunder and shall entitle Executive to compensation and other benefits from the Company in
the same amount and on the same terms as Executive would be entitled hereunder if Executive’s
employment were terminated following a Change in Control by reason of a Qualifying Termination.
For purposes of implementing the foregoing, the date on which any such Business Combination becomes
effective shall be deemed the date Good Reason occurs, and shall be the Date of Termination if
requested by Executive.



           (c) This Agreement shall inure to the benefit of and be enforceable by Executive’s personal or
legal representatives, executors, administrators, successors, heirs, distributees, devisees and
legatees. If Executive shall die while any amounts would be payable to Executive hereunder had
Executive continued to live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to such person or persons appointed in writing by
Executive to receive such amounts or, if no person is so appointed, to Executive’s estate.



-10-









 





           9. Notice. (a) For purposes of this Agreement, all notices and other communications
required or permitted hereunder shall be in writing and shall be deemed to have been duly given
when delivered or five (5) days after deposit in the United States mail, certified and return
receipt requested, postage prepaid, addressed as follows:



	 	 	 	 	 
	 

	 	If to Executive:
	 	To the address of the Executive on

the books and
records of the 
Company.
	 
	 

	 	If to the Company:
	 	Swift Transportation Co., Inc.
	 

	 	 	 	2200 South 75th Avenue
	 

	 	 	 	Phoenix, AZ 85043
	 

	 	 	 	Attn: Corporate Secretary





or to such other address as either party may have furnished to the other in writing in accordance
herewith, except that notices of change of address shall be effective only upon receipt.




           (b) A written notice of Executive’s Date of Termination by the Company or Executive, as the
case may be, to the other, shall (i) indicate the specific termination provision in this Agreement
relied upon, (ii) to the extent applicable, set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Executive’s employment under the
provision so indicated and (iii) specify the termination date (which date shall be not less than
fifteen (15) (thirty (30), if termination is by the Company for Disability) nor more than sixty
(60) days after the giving of such notice). The failure by Executive or the Company to set forth
in such notice any fact or circumstance which contributes to a showing of Good Reason or Cause
shall not waive any right of Executive or the Company hereunder or preclude Executive or the
Company from asserting such fact or circumstance in enforcing Executive’s or the Company’s rights
hereunder.



           10. Full Settlement; Resolution of Disputes and Costs.



           (a) The Company’s obligation to make any payments provided for in this Agreement and otherwise
to perform its obligations hereunder shall be in lieu and in full settlement of all other severance
payments to Executive under any other severance or employment agreement between Executive and the
Company, and any severance plan of the Company, including but not limited to the Employment
Agreement. The Company’s obligations hereunder shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action which the Company may have against Executive or
others. In no event shall Executive be obligated to seek other employment or take other action by
way of mitigation of the amounts payable to Executive under any of the



-11-









 







provisions of this Agreement and such amounts shall not be reduced whether or not Executive
obtains other employment.



           (b) Any dispute or controversy arising under or in connection with this Agreement shall be
settled exclusively by arbitration in Phoenix, Arizona by three arbitrators in accordance with the
commercial arbitration rules of the American Arbitration Association then in effect. Judgment may
be entered on the arbitrators’ award in any court having jurisdiction. The Company shall bear all
costs and expenses arising in connection with any arbitration proceeding pursuant to this Section.



           11. Employment with Subsidiaries. Employment with the Company for purposes of this
Agreement shall include employment with any Subsidiary.



           12. Survival. The respective obligations and benefits afforded to the Company and
Executive as provided in Sections 3, 4, 5, 6, 8, 9, 10, 13 and 15 shall survive the termination of
this Agreement.



           13. GOVERNING LAW; VALIDITY. THE INTERPRETATION, CONSTRUCTION AND PERFORMANCE OF THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF
THE STATE OF ARIZONA WITHOUT REGARD TO THE PRINCIPLE OF CONFLICTS OF LAWS. THE INVALIDITY OR
UNENFORCEABILITY OF ANY PROVISION OF THIS AGREEMENT SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY
OF ANY OTHER PROVISION OF THIS AGREEMENT, WHICH OTHER PROVISIONS SHALL REMAIN IN FULL FORCE AND
EFFECT.



           14. Counterparts. This Agreement may be executed in counterparts, each of which shall
be deemed to be an original and all of which together shall constitute one and the same instrument.



           15. Section 409A of the Code. If any payment(s) or benefit(s)under this Agreement
would be subject to the provisions of Section 409A of the Code, the Company agrees that this
Agreement shall be deemed reformed so that all such payments shall fully comply and meet the
requirements of Section 409A of the Code (such that Executive shall receive all payments and
benefits hereunder in the shortest amount of time from the date otherwise due, while no portion of
any payments to Executive hereunder shall be subject to the excise taxes of Section 409A of the
Code).



           16. Miscellaneous. No provision of this Agreement may be modified or waived unless
such modification or waiver is agreed to in writing and signed by Executive and by a duly
authorized officer of the Company. No waiver by either party hereto at any time of any breach by
the other party hereto of, or compliance with, any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time (except as otherwise set forth in the
definition of “Good Reason”



-12-









 







hereunder). Failure by Executive or the Company to insist upon strict compliance with any
provision of this Agreement or to assert any right Executive or the Company may have hereunder,
including without limitation, the right of Executive to terminate employment for Good Reason, shall
not be deemed to be a waiver of such provision or right or any other provision or right of this
Agreement. Except as otherwise specifically provided herein, the rights of, and benefits payable
to, Executive, his estate or his beneficiaries pursuant to this Agreement are in addition to any
rights of, or benefits payable to, Executive, his estate or his beneficiaries under any other
employee benefit plan or compensation program of the Company.



-13-









 





     IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by a duly authorized
officer of the Company and Executive has executed this Agreement as of the day and year first above
written.



	 	 	 	 	 
	 	SWIFT TRANSPORTATION CO., INC.

 	 
	 	By:  	/s/ Glynis Bryan
 	 
	 	 	Name:  	Glynis Bryan 	 
	 	 	Title:  	Chief Financial Officer 	 



	 	 	 	 	 
	 	/s/ Robert W. Cunningham
 	 
	 	Robert W. Cunningham 	 
	 	 	 
	 




-14-