exv4w1






Exhibit 4.1




EXPRESS-1 EXPEDITED SOLUTIONS, INC.



AMENDED AND RESTATED

2001 STOCK OPTION PLAN




ARTICLE 1.

Establishment, Objectives, and Duration




     1.1 Establishment of the Plan. Express-1 Expedited Solutions, Inc., a Delaware
corporation (hereinafter referred to as the “Company”), hereby establishes an incentive
compensation plan to be known as 2001 Stock Option Plan (hereinafter referred to as the “Plan”), as
set forth in this document. Subject to the provisions of Article 12 hereof, the Plan shall become
effective as of October 29, 2001 (the “Effective Date”) and shall remain in effect as provided in
Section 1.3 hereof.



     1.2 Purpose of the Plan. The purpose of this Plan is to benefit the Company and its
subsidiaries by enabling the Company to offer to certain present and future Employees, Directors,
and consultants (including sales associates) stock based incentives in the Company, thereby giving
them a stake in the growth and prosperity of the Company and encouraging the continuance of their
services with the Company or subsidiaries.



     1.3 Duration of the Plan. The Plan shall commence on the Effective Date and shall
remain in effect, subject to the right of the Board of Directors to amend or terminate the Plan at
any time pursuant to Article 9 hereof, until all Shares subject to it shall have been purchased or
acquired according to the Plan’s provisions.



ARTICLE 2.

Definitions




     Whenever used in the Plan, the following terms shall have the meanings set forth below, and
when the meaning is intended, the initial letter of the word shall be capitalized:



     “Beneficial Owner” or “Beneficial Ownership” shall have the meaning ascribed to such term in
Rule 13d-3 of the General Rules and Regulations under the Exchange Act.



     “Board” or “Board of Directors” means the Board of Directors of the Company.



     “Change of Control” of the Company shall mean:



          (a) The Company is merged or consolidated or reorganized into or with another corporation or
other legal person (an “Acquiror”) and as a result of such merger, consolidation or reorganization
less than 75% of the outstanding voting securities or other capital interests of the surviving,
resulting or acquiring corporation or other legal person are owned in the aggregate by the
stockholders of the Company, directly or indirectly, immediately prior to such merger,
consolidation or reorganization, other than by the Acquiror or any corporation or other legal
person controlling, controlled by or under common control with the Acquiror;







 









 








          (b) The Company sells all or substantially all of its business and/or assets to an Acquiror,
of which less than 75% of the outstanding voting securities or other capital interests are owned in
the aggregate by the stockholders of the Company, directly or indirectly, immediately prior to such
sale, other than by any corporation or other legal person controlling, controlled by or under
common control with the Acquiror; or




          (c) During any period of two consecutive years, individuals who at the beginning of any such
period constitute the directors of the Company cease for any reason to constitute at least a
majority thereof unless the election, or the nomination for election by the Company’s stockholders,
of each new director of the Company was approved by a vote of at least two-thirds of such directors
of the Company then still in office who were directors of the Company at the beginning of any such
period.




          “Code” means the Internal Revenue Code of 1986, as amended from time to time, or any successor
legislation thereto.




          “Committee” means the Committee as specified in Article 3 herein appointed by the Board to
administer the Plan with respect to grants of Options.




          “Common Stock” means the common stock, par value $.001 of the Company.




          “Company” means Express-1 Expedited Solutions, Inc., a Delaware corporation, as well as any
successor to such entity as provided in Article 11 herein.




          “Director” means any individual who is a member of the Board of Directors of the Company.




          “Disability” shall have the meaning ascribed to such term in the Participant’s governing
long-term disability plan. If no long term disability plan is in place with respect to a
Participant, then with respect to that Participant, Disability shall mean: for the first 24 months
of disability, that the Participant is unable to perform his or her job; thereafter, that the
Participant is unable to perform any and every duty of any gainful occupation for which the
Participant is reasonably suited by training, education or experience.




          “Effective Date” shall have the meaning ascribed to such term in Section 1.1 hereof.




          “Employee” means any employee of the Company or any Subsidiary.




          “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, or any
successor act thereto.




          “Fair Market Value” shall (i) for purposes of setting any Option Price, unless otherwise
required by any applicable provision of the Code or any regulations issued thereunder, or unless
the Committee otherwise determines, mean as of the date of grant of the Option, a). the average of
the high and low sales prices of the Common Stock on the applicable stock exchange (as reported in
The Wall Street Journal) on the trading date immediately preceding such date of grant or the “book
value” of such Shares (if the Company is not traded on any stock exchange, as






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determined by the Company’s regularly employed accountants whose determination shall be
binding or at the discretion of the Board of directors, by an independent appraiser selected by the
Board, in either case giving due consideration to recent transactions involving such stock, if any,
the Company’s net worth and book value, as determined in accordance with generally accepted
accounting procedures; and (ii) for purposes of the valuation of any Shares delivered in payment of
the Option Price upon the exercise of an Option, for purposes of the valuation of any Shares
withheld to pay taxes due in connection with the exercise of an Option, mean the average of the
high and low sales prices of the Common Stock on the American Stock Exchange (as reported in The
Wall Street Journal) on the date of exercise (or if the date of exercise is not a trading day, on
the trading day next preceding the date of exercise).





	 	 	“Incentive Stock Option” or “ISO” means an option to purchase Shares granted under Article 6
herein and which is designated as an Incentive Stock Option and which is intended to meet the
requirements of Code Section 422.
	 
	 	 	“Insider” shall mean an individual who is, on the relevant date, an officer, director or more
than ten percent (10%) beneficial owner of any class of the Company’s equity securities that is
registered pursuant to Section 12 of the Exchange Act, all as defined under Section 16 of the
Exchange Act and the regulations promulgated thereunder.
	 
	 	 	“Named Executive Officer” means a Participant who is one of the group of covered employees as
defined in the regulations promulgated under Code Section 162(m), or any successor statute.
	 
	 	 	“Nonqualified Stock Option” or “NQSO” means an option to purchase Shares granted under Article
6 herein and which is not intended to meet the requirements of Code Section 422.
	 
	 	 	“Option” means an Incentive Stock Option or a Nonqualified Stock Option, as described in
Article 6 herein.
	 
	 	 	“Option Agreement” means writing provided by the Company to each Participant setting forth the
terms and provisions applicable to Options granted under this Plan. The Participant’s acceptance of
the terms of the Option Agreement shall be evidenced by the continued rendering by the Participant
of services on behalf of the Company or its subsidiaries without written objection before any
exercise of the Option. If the Participant objects in writing, the grant of the Option shall be
revoked.
	 
	 	 	“Option Price” means the price at which a Share may be purchased by a Participant pursuant to
an Option.
	 
	 	 	“Participant” means an Employee, a Director or a consultant (including a sales associate) who
has outstanding an Option granted under the Plan.
	 
	 	 	“Performance-Based Exception” means the exception for performance-based compensation from the
tax deductibility limitations of Code Section 162(m).




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          “Retirement” means the Participant’s termination of employment with the Company or its
Subsidiaries on or after the date on which the Participant becomes eligible to receive normal or
early retirement benefits under the Company’s 401(k) Retirement Plan, or such successor plan as may
be implemented in the future. If the Participant is not a participant in the 401(k) Retirement
Plan, then retirement may occur on or after the date the Participant has achieved the minimum age
or combination of age and service with the Company and its Subsidiaries that would be required to
receive an immediate annuity from the 401(k) Retirement Plan if he or she were a participant.
Notwithstanding the foregoing, the Committee may, in its sole discretion, determine that a
Participant has met the criteria for a Retirement termination from the Company.




          “Shares” means shares of Common Stock of the Company.




          “Subsidiary” means any corporation, partnership, joint venture, affiliate, or other entity in
which the Company is the direct or indirect beneficial owner of not less than 20% of all issued and
outstanding equity interests.




ARTICLE 3.

Administration




     3.1 The Committee. The Plan shall be administered by the Stock Option Committee of the
Board, or by any other Committee appointed by the Board. If and to the extent that no Committee
exists that has the authority to administer the Plan, the functions of the Committee shall be
exercised by the full Board. Notwithstanding the foregoing, no option shall be granted to any
member of the Committee unless such grant is approved by the unanimous vote of the Board (which may
be by written consent), and with respect to any such Options to be granted to a member of the
Committee, any reference to the Committee in this Plan shall instead refer to the full Board.



     3.2 Authority of the Committee. Except as limited by law or by the Certificate of
Incorporation or Bylaws of the Company, and subject to the provisions herein, the Committee shall
have full power to select Employees, Directors and consultants (including sales associates) who
shall participate in the Plan; determine the sizes and types of Options; determine the terms and
conditions of Options in a manner consistent with the Plan; construe and interpret the Plan and any
agreement or instrument entered into under the Plan; establish, amend, or waive rules and
regulations for the Plan’s administration; and (subject to the provisions of Article 9 herein)
amend the terms and conditions of any outstanding Option to the extent such terms and conditions
are within the discretion of the Committee as provided in the Plan. Further, the Committee shall
make all other determinations which may be necessary or advisable for the administration of the
Plan. As permitted by law, the Committee may delegate the authority granted to it herein.



     3.3 Decisions Binding. All determinations and decisions made by the Committee pursuant
to the provisions of the Plan and all related orders and resolutions of the Board shall be final,
conclusive and binding on all persons, including the Company, its stockholders, Employees,
consultants (including sales associates) Participants, and their estates and beneficiaries.



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ARTICLE 4.

Shares Subject to the Plan and Maximum Number of Shares Subject to Options




     4.1 Shares Available for Options. The aggregate number of Shares which may be issued
or used for reference purposes under this Plan or with respect to which Options may be granted
shall not exceed 5,600,000 Shares (subject to adjustment as provided in Section 4.3), which may be
either authorized and unissued Shares or Shares held in or acquired for the treasury of the
Company. Upon:



          (a) a cancellation, termination, expiration, forfeiture, or lapse for any reason of any
Option; or




          (b) payment of an Option Price and/or payment of any taxes arising upon exercise of an Option
with previously acquired Shares or by withholding Shares which otherwise would be acquired on
exercise, then the number of Shares underlying any such Option which were not issued as a result of
any of the foregoing actions shall again be available for the purposes of Options thereafter
granted under the Plan.




     4.2 Individual Participant Limitations. Unless and until the Committee determines that
an Option to a Named Executive Officer shall not be designed to comply with the Performance-Based
Exception, and subject to adjustment as provided in Section 4.3 herein, the maximum aggregate
number of Options that may be granted in any one fiscal year to a Participant shall be 100,000 or
15% of the remaining options available for issue at the time of issuance, whichever is greater.



     4.3 Adjustments in Authorized Shares. In the event of any change in corporate
capitalization, such as a stock split, or a corporate transaction, such as any merger,
consolidation, separation, including a spin-off, or other distribution of stock or property of the
Company, any reorganization (whether or not such reorganization comes within the definition of such
term in Code Section 368) or any partial or complete liquidation of the Company, such adjustment
shall be made in the number and class of Shares available for Options, the number and class of
and/or price of Shares subject to outstanding Options granted under the Plan and the number of
Shares set forth in Sections 4.1 and 4.2, as may be determined to be appropriate and equitable by
the Committee, in its sole discretion, to prevent dilution or enlargement of rights; provided,
however, that the number subject to any Option shall always be a whole number.



ARTICLE 5.

Eligibility and Participation




     5.1 Eligibility. Persons eligible to participate in this Plan include all officers and
other employees of the Company and its Subsidiaries, Directors and consultants (including Advisory
Board Members and sales associates) of the Company and its Subsidiaries, as determined by the
Committee.



     5.2 Actual Participation. Subject to the provisions of the Plan, the Committee may,
from time to time, select from all eligible Employees, Directors and consultants (including sales
associates), those to whom Options shall be granted and shall determine the terms, conditions and
amount of each Option.



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ARTICLE 6.

Granting of Stock Options




     6.1 Grant of Options. Subject to the terms and provisions of the Plan, Options may be
granted to one or more Participants in such number, and upon such terms, and at any time and from
time to time as shall be determined by the Committee. The Committee may grant Nonqualified Stock
Options or Incentive Stock Options. The Committee shall have complete discretion in determining the
number of Options granted to each Participant (subject to Article 4 herein).



     6.2 Option Agreement. Each Option grant shall be evidenced by an Option Agreement that
shall specify the Option Price, the duration of the Option, the number of Shares to which the
Option pertains, and such other provisions as the Committee shall determine. The Option Agreement
with respect to the Option also shall specify whether the Option is intended to be an ISO within
the meaning of Code Section 422, or an NQSO whose grant is intended not to fall under the
provisions of Code Section 422.



     6.3 Option Price. The Committee shall designate the Option Price for each grant of an
Option under this Plan which Option Price shall be at least equal to one hundred percent (100%) of
the Fair Market Value of a Share on the date the Option is granted, and which Option Price may not
be subsequently changed by the Committee except pursuant to Section 4.3 hereof or to the extent
provided in the Option Agreement.



     6.4 Duration of Options. Each Option granted to a Participant shall expire at such
time as the Committee shall determine at the time of grant; provided, however, that unless
otherwise designated by the Committee at the time of grant, no Option shall be exercisable later
than the tenth (10th) anniversary date of its grant.



     6.5 Exercise of Options. Options granted under this Article 6 shall be exercisable at
such times and be subject to such restrictions and conditions as the Committee shall in each
instance approve, which need not be the same for each grant or for each Participant.



     6.6 Payment. Options granted under this Article 6 shall be exercised by the delivery
of a written notice of exercise to the Company, setting forth the number of Shares with respect to
which the Option is to be exercised, accompanied by full payment for the Shares. The Option Price
upon exercise of any Option shall be payable to the Company in full either:



          (a) in cash or its equivalent,




          (b) by tendering previously acquired Shares having an aggregate Fair Market Value at the time
of exercise equal to the total Option Price, or




          (c) by a combination of (a) and (b).




          The Committee also may allow cashless exercises as permitted under Federal Reserve Board’s
Regulation T, subject to applicable securities law restrictions, or by any other means which the
Committee determines to be consistent with the Plan’s purpose and applicable law. As soon as
practicable after receipt of a written notification of exercise and full payment,






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the Company shall deliver to the Participant, in the Participant’s name, Share certificates in
an appropriate amount based upon the number of Shares purchased under the Option(s).




          In connection with the exercise of options granted under the Plan, the Company may make loans
to the Participants as the Committee, in its discretion, may determine. Such loans shall be subject
to the following terms and conditions and such other terms and conditions as the Committee shall
determine not inconsistent with the Plan. Such loans shall bear interest at such rates as the
Committee shall determine from time to time, which rates may be below then current market rates or
may be made without interest. In no event may any such loan exceed the Fair Market Value, at the
date of exercise, of the shares covered by the Option, or portion thereof, exercised by the
Optionee. No loan shall have an initial term exceeding two years, but any such loan may be
renewable at the discretion of the Committee. When a loan shall have been made, Shares having a
fair market value at least equal to 150 percent of the principal amount of the loan shall be
pledged by the Participant to the Company as security for payment of the unpaid balance of the
loan.




     6.7 Restrictions on Share Transferability/Restrictions Applicable Until the Company is Subject
to Federal Reporting Requirements. a) The Committee may impose such restrictions on any Shares
acquired pursuant to the exercise of an Option granted under this Article 6 as it may deem
advisable, including, without limitation, restrictions under applicable federal securities laws,
under the requirements of any stock exchange or market upon which such Shares are then listed
and/or traded, and under any blue sky or state securities laws applicable to such Shares, and b)
Notwithstanding any other provisions of this Plan, unless and until the Company has become a
reporting company with respect to any class of its equity securities under the Securities Exchange
Act of 1934, as amended: (1) no option granted under this Plan may be exercised prior to the
calendar month in which that option is scheduled to expire by its terms (without regard to any
provisions for premature termination or cancellation); prior to that calendar month in which that
option is scheduled to expire by its terms, the Company has the right, exercisable in it
discretion, to cancel and purchase any such option for an amount in excess, if any of the Fair
Market Value of the stock subject to that option over its exercise price on the date the Company
exercises such right.



     6.8 Termination of Employment, Director Relationship or Consulting Arrangement. Each
Option Agreement shall set forth the extent to which the Participant shall have the right to
exercise the Option following termination of the Participant’s employment, service on the Board of
Directors, or consulting arrangement with the Company and/or its Subsidiaries. Such provisions
shall be determined in the sole discretion of the Committee, shall be included in the Option
Agreement entered into with each Participant, need not be uniform among all Options issued pursuant
to the Plan, and may reflect distinctions based on the reasons for termination of employment,
director relationship or consulting agreement, including, but not limited to, termination of
employment for cause or good reason, or reasons relating to the breach or threatened breach of
restrictive covenants. Subject to Article 8, in the event that a Participant’s Option Agreement
does not set forth such termination provisions, the following termination provisions shall apply:



          (a) In the event a Participant’s employment, director relationship or consulting arrangement
with the Company and/or its Subsidiaries is terminated for any reason other than






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death, Disability or Retirement, all Options held by the Participant shall expire and all
rights to purchase Shares thereunder shall terminate immediately; provided, however, that
notwithstanding the foregoing, all Options to which the Participant has a vested right immediately
prior to such termination shall be exercisable for the lesser of (i) 30 days following the date of
termination or (ii) the expiration date of the Option.




          (b) In the event a Participant’s employment, director relationship or consulting arrangement
with the Company and/or its Subsidiaries is terminated due to death or Disability, all Options
shall immediately become fully vested on the date of termination.




          (c) Subject to Article 8, in the event of termination of the Participant’s employment,
director relationship or consulting arrangement, due to death or Disability, all Options in which
the Participant has a vested right upon termination shall be exercisable for a period of one (1)
year following such termination, or until the expiration date of the Option, whichever is later.




          (d) Subject to Article 8, in the event of termination of the Participant’s employment director
relationship or consulting arrangement due to Retirement, all Options in which the Participant has
a vested right upon termination shall be exercisable until the date which is (i) three years
following the date of termination or (ii) the expiration date of the Option, whichever is earlier.




     6.9 Nontransferability of Options.



          (a) Incentive Stock Options. No ISO granted under the Plan may be sold, transferred,
pledged, assigned, or otherwise alienated or hypothecated, other than by will or by the laws of
descent and distribution. Further, all ISOs granted to a Participant under the Plan shall be
exercisable during his or her lifetime only by such Participant.




          (b) Nonqualified Stock Options. Except as otherwise provided in a Participant’s Option
Agreement, no NQSO granted under this Article 6 may be sold, transferred, pledged, assigned, or
otherwise alienated or hypothecated, other than by will or by the laws of descent and distribution.
Further, except as otherwise provided in a Participant’s Option Agreement, all NQSOs granted to a
Participant under this Article 6 shall be exercisable during his or her lifetime only by such
Participant.




ARTICLE 7.

Rights of Employees, Directors and Consultants




     7.1 Employment or Consulting Arrangement. Nothing in the Plan shall interfere with or
limit in any way the right of the Company to terminate any Participant’s employment or consulting
arrangement at any time, nor confer upon any Participant any right to continue in the employ of or
consulting arrangement with the Company or any Subsidiary, nor interfere with or limit in any way
the right of the Board to remove any Participant who is a Director from service on the Board at any
time in accordance with the provisions of the Company’s By-laws and applicable law.



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          For purposes of this Plan, temporary absence from employment because of illness, vacation,
approved leaves of absence, and transfers of employment among the Company and its Subsidiaries,
shall not be considered to terminate employment or to interrupt continuous employment. Temporary
cessation of the provision of consulting services because of illness, vacation or any other reason
approved in advance by the Company shall not be considered a termination of the consulting
arrangement or an interruption of the continuity thereof. Conversion of a Participant’s employment
relationship to a consulting arrangement or from a consulting arrangement to an employment
relationship shall not result in termination of previously granted Options.




     7.2 Participation. No Employee, Director or consultant shall have the right to be
selected to receive an Option under this Plan, or, having been so selected, to be selected to
receive a future Option.



ARTICLE 8.

Change of Control




     Upon the occurrence of a Change of Control, unless otherwise specifically prohibited under
applicable laws, or by the rules and regulations of any governing governmental agencies or national
securities exchanges, any and all Options granted hereunder shall become immediately exercisable,
and shall remain exercisable throughout their entire term.



ARTICLE 9.

Amendment, Modification, and Termination




     9.1 Amendment, Modification, and Termination. The Board may at any time and from time
to time, alter, amend, suspend or terminate the Plan in whole or in part, subject to any
requirement of stockholder approval imposed by applicable law, rule or regulation.



     9.2 Options Previously Granted. No termination, amendment, or modification of the Plan
shall adversely affect in any material way any Option previously granted under the Plan, without
the written consent of the Participant holding such Option.



ARTICLE 10.

Withholding




     10.1 Tax Withholding. The Company shall have the power and the right to deduct or
withhold, or require a Participant to remit to the Company, an amount sufficient to satisfy
federal, state, and local taxes, domestic or foreign, required by law or regulation to be withheld
with respect to any taxable event arising as a result of the Plan.



     10.2 Share Withholding. With respect to withholding required upon the exercise of
Options, Participants may elect, subject to the approval of the Committee, to satisfy the
withholding requirement, in whole or in part, by having the Company withhold Shares having a Fair
Market Value on the date the tax is to be determined equal to the minimum statutory total tax which
would be imposed on the transaction. All such elections shall be irrevocable, made in writing,
signed by the Participant, and shall be subject to any restrictions or limitations that the
Committee, in its sole discretion, deems appropriate.



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ARTICLE 11.

Successors




     All obligations of the Company under the Plan with respect to Options granted hereunder shall
be binding on any successor to the Company, whether the existence of such successor is the result
of a direct or indirect merger, consolidation, purchase of all or substantially all of the business
and/or assets of the Company or otherwise.



ARTICLE 12.

Shareholder Ratification




     This Plan was initially adopted by the Board of Directors and Shareholders on May 16, 2000,
and was amended and restated by the Board of Directors and Shareholders on June 17, 2005.



ARTICLE 13.

Legal Construction




     13.1 Gender and Number. Except where otherwise indicated by the context, any masculine
term used herein also shall include the feminine; the plural shall include the singular and the
singular shall include the plural.



     13.2 Severability. In the event any provision of the Plan shall be held illegal or
invalid for any reason, the illegality or invalidity shall not affect the remaining parts of the
Plan, and the Plan shall be construed and enforced as if the illegal or invalid provision had not
been included.



     13.3 Requirements of Law. The granting of Options and the issuance of Shares under the
Plan shall be subject to all applicable laws, rules, and regulations, and to such approvals by any
governmental agencies or national securities exchanges as may be required.



     13.4 Securities Law Compliance. With respect to Insiders, transactions under this Plan
are intended to comply with all applicable conditions of Rule 16b-3 or its successors under the
Exchange Act. To the extent any provision of the Plan or action by the Committee fails to so
comply, it shall be deemed null and void, to the extent permitted by law and deemed advisable by
the Committee.



     13.5 Governing Law. To the extent not preempted by federal law, the Plan, and all
agreements hereunder, shall be construed in accordance with and governed by the laws of the State
of Delaware.



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