UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of report (Date of earliest event reported): November 3, 2004
SWIFT TRANSPORTATION CO., INC.
(Exact Name of Registrant as Specified in Charter)
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| Nevada | | 0-18605 | | 86-0666860 |
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| (State or Other Jurisdiction | | (Commission File | | (IRS Employer |
| of Incorporation) | | Number) | | Identification No.) |
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| | 2200 South 75th Avenue, Phoenix, Arizona | | 85043 | |
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| | (Address of Principal Executive Offices) | | (Zip Code) | |
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| (602) 269-9700 |
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| (Registrant’s telephone number, including area code) |
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| (Former Name or Former Address, if Changed Since Last Report) |
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (seeGeneral Instruction A.2. below): |
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| | o | | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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| | o | | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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| | o | | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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| | o | | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
TABLE OF CONTENTS
ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT
ITEM 5.02 DEPARTURE OF DIRECTORS OR PRINCIPAL OFFICERS; ELECTION OF DIRECTORS; APPOINTMENT OF PRINCIPAL OFFICERS
On November 3, 2004, the Company announced that it has:
| • | | hired Robert Cunningham as its President and Chief Operating Officer, and appointed him to the Board of Directors as a Class I Director; |
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| • | | to facilitate consensus management, created an executive committee (titled the “Office of the Chairman”), consisting of Jerry Moyes, the Company’s CEO, Bill Riley, the Company’s Senior Executive Vice President, and Mr. Cunningham; |
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| • | | appointed Jock Patton as the Company’s lead director, to serve as an official liaison between the Board and management; and |
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| • | | recently adopted a new, more stringent related party transaction policy. |
Swift also announced a formal senior management transition schedule, which provides for Mr. Cunningham to take over as CEO by December 31, 2005. Jerry Moyes will remain as CEO until Mr. Cunningham takes over, and is expected to remain as Chairman of the Board for the foreseeable future.
In addition, Swift announced that Gary Enzor, the Company’s Chief Financial Officer, has accepted a position with another company. Bill Riley, the Company’s Senior Executive Vice President who serves as Swift’s Chief Financial Officer from 1990 to 2002, has agreed to serve as the CFO while Swift conducts an executive search.
Robert Cunningham, 49, served as Executive Vice President of Sales & Marketing for Swift from 1985 to 1997. Since that time, Mr. Cunningham has owned and operated one of the nation’s most successful commercial truck dealerships. Cunningham Commercial Vehicles is the Arizona Freightliner, Sterling and Western Star franchise operating out of two locations with annual revenues in excess of $300 million. Mr. Cunningham has worked in the transportation industry for his entire career beginning in 1973 with IML Freight Lines and six years as a Vice President with Motor Cargo prior to joining Swift. Married to Shelley Cunningham for 26 years and the father of five children, Mr. Cunningham is a 1976 graduate of the University of Utah with a BS in Marketing.
Cunningham Commercial Vehicles sells trucks and parts to Swift Transportation. Gross commissions earned in calendar year 2003 were approximately $2,372,040 and year-to-date through October 2004, $945,265. Mr. Cunningham is actively pursuing a buyer for his business to eliminate any future related party transactions.
In connection with his appointment as President and Chief Operating Officer, Robert Cunningham entered into an employment agreement with the Company effective November 3, 2004. The employment agreement is for a term of five years and provides for an annual salary of $400,000 (which will be increased to $800,000 upon the sale of his existing Freightliner business) and the grant of an option to acquire 500,000 shares of Swift Common Stock. The employment agreement stipulates that Mr. Cunningham will be appointed as Chief Executive Officer on or prior to December 31, 2005.
In addition, the employment agreement provides that if Mr. Cunningham is discharged without “cause” or resigns with “good reason” (as defined in the employment agreement) he will receive severance payments equal to his then current salary for a period of twenty-four months or, if greater, the remaining term of his employment, as well as immediate acceleration of all his stock options.
A copy of Mr. Cunningham’s employment agreement and stock option award are attached to this Form 8-K as Exhibit 10.1 and 10.2, respectively.
A copy of the press release announcing these events is attached to this Form 8-K as Exhibit 99.1
ITEM 5.03 AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS; CHANGES IN FISCAL YEAR
On November 3, 2004, the Board of Directors amended and restated Article IV of Swift’s bylaws effective immediately. The bylaws were amended to create a senior management committee referred to as the “Office of the Chairman” and to clarify the authority of the offices of Chief Executive Officer, President and Chief Operating Officer in the management of Swift’s operations and affairs.
A copy of Article IV of Swift’s bylaws, as amended and restated, is attached to this Form 8-K as Exhibit 3.1.
ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS
| (a) | | Not applicable. |
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| (b) | | Not applicable. |
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| (c) | | Exhibits. |
| 3.1 | | Amended Article IV to Bylaws of Swift Transportation Co., Inc. |
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| 10.1 | | Employment Agreement for Robert Cunningham |
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| 10.2 | | Non-Statutory Stock Option Agreement, dated November 3, 2004, between Swift Transportation Co., Inc. and Robert W. Cunningham |
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| 99.1 | | Press Release dated November 3, 2004 |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: November 3, 2004
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| | SWIFT TRANSPORTATION CO., INC.
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| | /s/ Jerry Moyes | |
| | By: Jerry Moyes | |
| | Chief Executive Officer | |
Exhibit Index
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| Exhibit | | |
Number
| | Description
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| 3.1 | | Amended Article IV to Bylaws of Swift Transportation Co., Inc. |
| 10.1 | | Employment Agreement for Robert Cunningham |
| 10.2 | | Non-Statutory Stock Option Agreement, dated November 3, 2004, between Swift Transportation Co., Inc. and Robert W. Cunningham |
| 99.1 | | Press Release dated November 3, 2004 |
