AMERICAN FREIGHTWAYS CORPORATION
AMENDED AND RESTATED
EMPLOYEE STOCK PURCHASE PLAN
WHEREAS, American Freightways Corporation (the "Company"),
desires to adopt an Employee Stock Purchase Plan (the "Plan")
providing for the grant of options to purchase common stock of the
Company to eligible employees who are employed by the Company or
its subsidiaries;
Now, therefore, the Company hereby establishes the Plan, the
terms of which shall be as follows:
1. Purpose
The purpose of this Employee Stock Purchase Plan is to give
only eligible employees of American Freightways Corporation, an
Arkansas corporation, and its Subsidiaries, an opportunity to
acquire shares of its Common Stock, $.01 par value, and to continue
to promote its best interests and enhance the long-term performance
of such Employees.
2. Definitions
Wherever used herein, the following words and phrases shall
have the meanings stated below unless a different meaning is
plainly required by the context:
(a) "Act" means the Securities Act of 1933, as amended.
(b) "Board" means the Board of Directors of the Company.
(c) "Code" means the Internal Revenue Code of 1986, as amended.
(d) "Committee" means a committee appointed by the Board and
composed of not less than three members of the Board to which
the Board may delegate its powers with respect to
administration of the Plan pursuant to Section 3 hereof.
(e) "Common Stock" means shares of the common stock of the
Company, $.01 par value.
(f) "Company" means American Freightways Corporation, an Arkansas
corporation, and, unless the context hereof requires
otherwise, the Subsidiaries.
(g) "Eligible Employee" for the purposes of Section 5 hereof shall
mean each person who, on the applicable Grant Date, is
employed by the Company or a Subsidiary as follows:
1) An Employee who has been employed for more than one
year;
2) An Employee whose customary employment is for more
than five months in any calendar year; and
3) An Employee who is not a Highly Compensated
Employee.
Determination of the Committee as to eligible employees shall
be conclusive and binding in all parties.
(h) "Grant Period" means a period of 12 months commencing on the
first day of grant of an Option hereunder.
(i) "Fair Market Value" of Common Stock as of the applicable Grant
Date shall mean:
(1) If the Common stock is listed on a national
securities exchange or market or is traded in the over-
the-counter market and sales prices are regularly
reported for the Common Stock, the average of the mean
bid and mean ask prices of the Common Stock as of the
Grant Date or, if applicable, the closing sales price of
the Common Stock as reported by such national exchange or
market, or if not quoted on such because it is a
Saturday, Sunday or holiday, or because no trades
occurred on the Grant Date, then on the business day for
which such quotations are available that immediately
precedes such Grant Date, and
(2) If the Common Stock is neither listed on a national
securities exchange nor traded on the over-the-counter
market, such value as the Board, in good faith, shall
determine.
Notwithstanding any provision of the Plan to the contrary, no
determination made with respect to the Fair Market Value of
Common Stock subject to an Option shall be inconsistent with
Section 423 of the Code (or successor provision) or
regulations thereunder.
(j) "Fair Market Value of Common Stock" as of any Purchase Date
shall mean:
(1) If the Common Stock is listed on a national
securities exchange or market system, or is traded in the
over-the-counter market and sales prices are regularly
reported for the Common Stock, the average of the mean
bid and mean ask price of the Common Stock on the date
immediately preceding the Purchase Date, or if
applicable, the closing sales price of the Common Stock
as reported by such national securities exchange or
market; or if not quoted on such because no trades
occurred on such date, then on the business day for which
such quotations are available immediately preceding such
date; and
(2) If the Common Stock is neither listed on a national
securities exchange nor traded on the over-the-counter
market, such value as the Board, in good faith, shall
determine.
Notwithstanding any provision of the Plan to the contrary, no
determination made with respect to the Fair Market Value of
Common Stock subject to an Option shall be inconsistent with
Section 423 of the Code or regulations thereunder.
(k) "Grant Date" means any date on which the Committee elects to
grant options hereunder, it being within the scope of this
Plan that any number of Grant Dates may occur within any one
year.
(l) "Highly Compensated Employee" means an employee who meets
Section 414(q) of the Code.
(m) "Option" means an option granted hereunder that will entitle
an Eligible Employee to purchase shares of Common Stock on the
applicable Purchase Date.
(n) "Option Price" means the lower of:
(1) 85% of the Fair Market Value per share of Common
Stock as set forth in Section 2(i) hereof; or
(2) 85% of the Fair Market Value per share of Common
Stock as set forth in Section 2(j) hereof.
(o) "Plan" means the American Freightways Corporation Employee
Stock Purchase Plan as set forth herein.
(p) "Purchase Date" means the date which is one calendar year,
less one day, from the applicable Grant Date. If the Purchase
Date falls upon a date which the Company is not open for
business, then the Purchase Date shall be the next preceding
date in which the Company is open for business.
(q) "Subsidiary" or "Subsidiaries" means a corporation or
corporations of which stock possessing at least 51% of the
total combined voting power of all classes of stock entitled
to vote is owned by the Company or by any other Subsidiary or
Subsidiaries.
3. Administration of the Plan
The Plan shall be administered by the Compensation Committee
(the "Committee") of the Board of Directors of the Company (the
"Board") consisting of not less than three (3) members appointed by
the Board and serving at the Board's pleasure. Each member of the
Committee shall be both a member of the Board who is a
"disinterested person" within the meaning of Rule 16b-3 under the
Securities Exchange Act of 1934 (Exchange Act) or any successor
rule or regulation. Any vacancy occurring in the membership of the
Committee shall be filled by appointment by the Board. The
Committee may appoint a Plan Administrator who may or may not be an
employee or affiliate of the Company to assist in the day-to-day
administration of the Plan.
The Committee may interpret the Plan, prescribe, amend, and
rescind any rules and regulations necessary or appropriate for the
administration of the Plan, and take such other action as it deems
necessary or advisable, except as otherwise expressly reserved to
the Board in the Plan. All decisions and actions made by the
Committee pursuant to the provisions of the Plan shall be made by a
majority of its members. Any decision reduced to writing and
signed by a majority of the members shall be fully effective as if
it had been made by a majority at a meeting duly held. Any
interpretation, determination or other action made or taken by the
Committee shall be final, binding and conclusive.
4. Maximum Limitations
The total number of shares of Common Stock available for grant
as Options pursuant to Section 5 shall not exceed 1,100,000,
subject to adjustment pursuant to Section 9 hereof. Shares of
Common Stock granted pursuant to the Plan may be authorized but
unissued shares of Common Stock or shares now or hereafter held by
or on behalf of the Company. In the event that any Option granted
pursuant hereto expires or is terminated, surrendered or cancelled
without being exercised, in whole or in part, for any reason, the
number of shares of Common Stock theretofore subject to such Option
shall again be available for grant as an Option hereunder and shall
not reduce the total number of shares of Common Stock available for
grant.
5. Basis of Participation and Granting of Options
(a) Each person who is an Eligible Employee on a Grant Date,
subject to earlier termination of the Plan pursuant to Section
13(c) hereof, ending with the last Grant Date on which shares
of Common Stock are available for grant within the limitation
set forth in Section 4, will be granted an Option hereunder
which will entitle such Eligible Employee at the discretion of
such Eligible Employee to purchase on the Purchase Date, at
the Option Price per share, a whole number of shares of Common
Stock having a Fair Market Value at the Grant Date of no less
than $100 and no more than the greater of (i) the Fair Market
Value at the Grant Date of 200 shares of Common Stock, or (ii)
$1,200. The Grant Date applicable to an Option granted
pursuant to this Section 5 shall be the date of the grant of
such Option.
(b) If the number of shares of Common Stock for which Options are
granted pursuant to this Section 5 exceeds the number of
shares set forth and calculated pursuant to Section 4 hereof,
then outstanding, unexercised Options shall, in a
nondiscriminatory manner, be reduced.
6. Terms of Options.
(a) Each Option granted under Section 5 and exercised by
delivering written notice and payment thereof as provided in
Section 7 shall, unless sooner expired pursuant to Section 6,
become exercisable on the Purchase Date. Each Option not
exercised on the Purchase Date next succeeding the Grant Date
shall terminate and expire.
(b) Each Option granted under Section 5 and exercised by electing
to authorize a payroll deduction as provided in Section 7
shall, unless sooner expired pursuant to Section 6, become
exercisable on the Purchase Date. Each Option not exercised
on the Purchase Date next succeeding the Grant Date shall
terminate and expire.
(c) Notwithstanding the foregoing, an Option shall expire on the
date that the employment of the Eligible Employee with the
Company and its Subsidiaries terminates (as such date is
determined by the Board or the Committee in its discretion)
for any reason other than death or disability of such Eligible
Employee.
(d) Notwithstanding the foregoing, if the employment of the
Eligible Employee with the Company and its Subsidiaries
terminates by reason of the death of such Eligible Employee,
outstanding Option(s) held by such Employee shall expire on
the Purchase Date as set forth in the subject Option.
(e) Notwithstanding the foregoing, if the employment of the
Eligible Employee with the Company and its subsidiaries
terminates by reason of the full or permanent disability of
such Eligible Employee (as defined in the Code), outstanding
Option(s) held by such Employee shall become exercisable on
the 90th calendar day following the date on which such
disability occurs (as such dates are determined by the Board
or the Committee); thereafter, such Options shall terminate
and expire.
7. Manner of Exercise of Options and Parents for Common Stock
(a) An Option may be exercised by an optionee by:
(i) delivering written notice to the Secretary of the
Company stating the number of shares of Common Stock with
respect to which the Option is being exercised (within
the maximum and minimum number of such shares set forth
in the Option or in Section 5 hereto) and tendering
payment therefor in full in cash or by certified check on
the Purchase Date. Written notice hereunder will be
effective if it is delivered pursuant to Section 13(i) at
or before 5:00 P.M. at the principal executive offices of
the Company either on the date immediately preceding the
Purchase Date or on the Purchase Date. A written notice
hereunder delivered prior to the date immediately
preceding the Purchase Date will not become effective
until the date immediately preceding the Purchase Date
and, until effective, may be revoked by the optionee by
delivery of a written revocation to the Secretary of the
Company; or
(ii) electing to authorize a payroll deduction made by
the Company of the Option Price times the number of
shares of Common Stock which the Optionee anticipates
purchasing upon the exercise of the Option by the
optionee. Such amount is to be equally divided by the
number of payroll periods in a twelve month period. Such
payroll deductions will be credited, without interest, to
an account under the Plan. As of the Purchase Date, the
amount of each participating employee's account is
totaled. If a participating employee has sufficient
funds in his account to purchase any whole number of full
shares of the Common Stock at the Option Price, such
employee shall be deemed to have exercised his option to
purchase shares (to the full extent of funds in his
account as of the Purchase Date) at the Option Price and
his account shall be charged for the amount of the
purchase. Any unused balance in a participating
employee's account at the Purchase Date due to
insufficient funds for the purchase of any whole share or
due any limitation on the grant or exercise of options
expressed herein will be refunded without interest. If
on or as of the Purchase Date the optionee elects in
writing to acquire a number of shares of Common Stock
having an aggregate Option Price in excess of amounts
reserved in his or her payroll deduction account, then,
at the option of such optionee, such optionee may, on the
Purchase Date remit to the Company the total amount of
such excess in cash or cashier's check.
(b) An Eligible Employee may decrease his payroll deduction amount
up to four times (once per quarter) during the Grant Period.
Such decrease will become effective on the next pay period
following the receipt by the Company of written notice of the
decrease from the employee. Decreases in payroll deductions
shall proportionally reduce the number of shares of Common
Stock into which the subject Option shall be exercisable. An
Eligible Employee may not increase his payroll deduction once
an authorization for payroll deduction becomes effective.
(c) Prior to an applicable Purchase Date, an Eligible Employee may
make total withdrawals of unused payroll deductions credited
to his account under the Plan by providing proper notice to
the Company. Unused balances shall be paid to such employee,
without interest, after the timely receipt of the notice, and
no further payroll deductions may be made for the remainder of
the Grant Period. The number of shares of Common Stock into
which the Option is exercisable shall be reduced to the extent
of an Eligible Employee's withdrawal from his or her payroll
deduction account.
As soon as possible following such exercise, a certificate
representing the shares of Common Stock purchased, in the name of
the optionee, shall be issued in the name of the optionee and
delivered to the optionee or his designee.
8. Transferability
No Option may be transferred, assigned, pledged, or
hypothecated (whether by operation of law or otherwise), except as
provided by will or the applicable laws of descent or distribution,
and no Option shall be subject to execution, attachment or similar
process. Any attempted assignment, transfer, pledge, hypothecation
or other disposition of any Option, or levy of attachment or
similar process upon the Option not specifically permitted herein
shall be null and void and without effect. An Option may be
exercised only by the Eligible Employee during his or her lifetime,
or pursuant to Section 6, by his or her estate or the person who
acquires the right to exercise such Option upon his or her death by
bequest or inheritance.
Any shares issued upon exercise of an Option shall, unless
subject to a registration statement that is effective under the
Act, bear a legend restricting transfer thereof, containing
substantially the following language:
The securities represented by this certificate have not
been registered under federal or state securities laws.
These securities may not be sold, transferred or assigned
in the absence of an effective registration statement for
the securities under applicable federal or state
securities laws or an opinion of counsel satisfactory to
the issuer to the effect that such sale, transfer or
assignment is exempt from registration thereunder.
9. Adjustment Provisions
The aggregate number of shares of Common Stock with respect to
which all Options may be granted hereunder (as set forth in Section
4 hereof), the aggregate number of shares of Common Stock subject
to each outstanding Option, and the Option Price per share of each
Option may all be appropriately adjusted as the Board may determine
for any increase or decrease in the number of shares of issued
Common Stock resulting from a subdivision or consolidation of
shares, whether through reorganization, recapitalization, stock
split-up, stock distribution or combination of shares, or the
payment of a share dividend or other increase or decrease in the
number of shares outstanding effected without receipt of
consideration by the Company. Adjustments under this Section 9
shall be made according to the sole discretion of the Board, and
its decision shall be binding and conclusive.
10. Dissolution, Merger, Consolidation
Upon the dissolution or liquidation of the Company, or upon a
merger or consolidation of the Company pursuant to which the
Company is not the surviving corporation, each Option granted
hereunder shall expire as of the effective date of such
transaction; provided, however, that the Board shall give at least
30 days' prior written notice of the intended date in which such
event is to be consummated to each optionee during which time he or
she shall have a right to exercise his or her wholly or partially
unexercised Option and, subject to prior expiration pursuant to
Section 6, each Option shall be exercisable after receipt of such
written notice and prior to the effective date of such transaction.
11. Effectiveness and Termination of the Plan
The effective date of the Plan is March 1, 1994, as amended
January 23, 1996 and January 9, 1997. Unless terminated sooner
pursuant to the provisions contained herein, the Plan shall
terminate on March 1, 1999.
12. Limitation on Options
Notwithstanding any other provisions of the Plan:
(a) The Company intends that Options granted and Common Stock
issued under the Plan shall be treated for all purposes as
granted and issued under an employee stock purchase plan
within the meaning of Section 423 of the Code and regulations
issued thereunder. Any provisions required to be included in
the Plan under said Section and regulations issued thereunder
are hereby included as fully as though set forth in the Plan
at length.
(b) No Eligible Employee shall be granted an Option under the Plan
if, immediately after the Option was granted, the Eligible
Employee would own stock constituting 5% or more of the total
combined voting power or total value of all classes of stock
of the Company or of any parent or Subsidiary of the Company.
For purposes of this Section 12(b), stock ownership of an
individual shall be as determined under the rules of Section
425(d) of the Code and stock which the Eligible Employee may
purchase under outstanding Options shall be treated as stock
owned by the Eligible Employee.
(c) No Eligible Employee shall be granted an Option under the Plan
which permits his or her rights to purchase stock under all
employee stock purchase plans (as defined in Section 423 of
the Code) of the Company and any parent or Subsidiary of the
Company to accrue at a rate which exceeds $25,000 of Fair
Market Value of such stock (determined at the time of the
grant of such Option) for each calendar year in which such
Option is outstanding at any time. Any Option granted under
the Plan shall be deemed to be reduced or otherwise modified
to the extent necessary to satisfy this paragraph (c).
13. General
(a) Legal and Other Requirements. The obligations of the Company
to sell and deliver Common Stock under the Plan shall be
subject to all applicable laws, regulations, rules and
approvals, including, but not by way of limitation, the
effectiveness of a registration statement under the Securities
Act of 1933 if deemed necessary or appropriate by the Company.
Certificates for shares of Common Stock issued hereunder may
bear any legend as the Board or the Committee shall in its
discretion deem appropriate.
(b) No Obligation To Exercise. The granting of an Option shall
impose no obligation upon an optionee to exercise such Option.
(c) Termination and Amendment of Plan. The Board may from time to
time alter, amend or suspend the Plan or any Option granted
hereunder or may at any time terminate the Plan, except that
it may not effect a change inconsistent with Section 423 of
the Code or regulations issued thereunder. No action taken by
the Board under this Section may materially and adversely
affect any outstanding Option without the consent of the
holder thereof.
(d) Withholding Taxes. Upon the exercise of any Option under the
Plan, the Company shall have the right to require the optionee
to remit to the Company an amount sufficient to satisfy all
federal, state and local withholding tax requirements prior to
the delivery of any certificate or certificates for shares of
Common Stock.
(e) Right to Terminate Employment. Nothing in the Plan or any
agreement entered into pursuant to the Plan shall confer upon
any Eligible Employee or other optionee the right to continue
in the employment of the Company or any Subsidiary or affect
any right which the Company or any Subsidiary may have to
terminate the employment of such Eligible Employee or other
optionee.
(f) Rights as a Shareholder. No holder of options shall, as such,
have any right as a shareholder unless and until certificates
for shares of Common Stock are issued to him.
(g) Leaves of Absence and Disability. The Board or the Committee
shall be entitled to make such rules, regulations and
determinations as it deems appropriate under the Plan in
respect of any leave of absence taken by or disability of any
Eligible Employee. Without limiting the generality of the
foregoing, the Board or the Committee shall be entitled to
determine (i) whether or not any such leave of absence shall
constitute a termination of employment within the meaning of
the Plan, and (ii) the impact, if any, of any such leave of
absence on Options under the Plan theretofore granted to any
Eligible Employee who takes such leave of absence.
(h) Notices. Every direction, revocation or notice authorized or
required by the Plan shall be deemed delivered to the Company
(1) on the date it is personally delivered to the Secretary of
the Company at its principal executive offices or (2) three
business days after it is sent by registered or certified
mail, postage prepaid, addressed to the Secretary at such
offices; and shall be deemed delivered to an optionee (1) on
the date it is personally delivered to him or her or (2) three
business days after it is sent by registered or certified
mail, postage prepaid, addressed to him or her at the last
address shown for him on the records of the Company or of any
Subsidiary.
(i) Waiver of Notice. Any person entitled to notice hereunder may
waive such notice.
(j) Company Records. Records of the Company regarding the
participant's period of employment, termination of employment
and the reason therefor, leaves of absence, reemployment and
other matters shall be conclusive for all purposes hereunder,
unless determined by the Committee to be incorrect.
(k) Information. The Company shall, upon request or as may be
specifically required hereunder, furnish or cause to be
furnished, all of the information or documentation which is
necessary or required by the Committee to perform its duties
and functions under this Plan.
(l) No Liability of Company. The Company assumes no obligation or
responsibility to the participant (or such participant's
successors and assigns by operation of law) for any act of, or
failure to act on the part of, the Committee.
(m) Elimination of Fractional Shares. If under any provision of
the Plan which requires a computation of the number of shares
of Common Stock subject to an Option and the number so
computed is not a whole number of shares of Common Stock, such
number of shares of Common Stock shall be rounded down to the
next whole number.
(n) Corporation Action. Any action required of the Company shall
be by resolution of the Board or the Committee or by any other
person authorized to so act by resolution of the Board.
(o) Successors. This Plan shall be binding upon the Eligible
Employee, the Company, the Committee and each of their
permitted successors and assigns.
(p) Headings. The titles and headings of Sections are included
for convenience of reference only and are not to be considered
in construction of the provisions hereof.
(q) Governing Law. All questions arising with respect to the
provisions of this Plan shall be determined by application of
the laws of the State of Arkansas to the extent not
inconsistent with Section 423 of the Code and regulations
hereunder and except to the extent Arkansas law is preempted
by federal law. The decision by the Company to deliver Stock
hereunder is subject to applicable laws and to the approval of
any governmental authority required in connection with the
authorization, issuance, sale or delivery of such Stock.
IN WITNESS WHEREOF, the undersigned has caused this Amended
and Restated Plan to be executed as of this 9th day of January,
1997.
AMERICAN FREIGHTWAYS CORPORATION
By: /s/Tom Garrison
Its: Tom Garrison, Secretary/Treasurer