Exhibit 10.3
AMERICAN FREIGHTWAYS CORPORATION
AMENDED AND RESTATED
1993 STOCK OPTION PLAN
Effective Date: January 23, 1996
and as amended on January 20, 1999 and April 15, 1999
AMERICAN FREIGHTWAYS AMENDED AND RESTATED
1993 STOCK OPTION PLAN
Article Page
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I. Purposes 1
II. Shares Subject to the Plan 1
III. Administration 2
IV. Eligibility 4
V. Maximum Allotment of Incentive Options 5
VI. Option Price and Payment 5
VII. Use of Proceeds 7
VIII. Term of Options and Limitations on
the Right of Exercise 7
IX. Exercise of Options 7
X. Stock Appreciation Rights 8
XI. Nontransferability of Options and
Stock Appreciation Rights 10
XII. Termination of Employment 10
XIII. Adjustment of Shares; Effect of
Certain Transactions 11
XIV. Right to Terminate Employment 12
XV. Purchase for Investment 12
XVI. Issuance of Certificates;
Legends; Payment of Expenses 13
XVII. Withholding Taxes 14
XVIII. Listing of Shares and Related Matters 14
XIX. Amendment of the Plan 14
XX. Termination or Suspension of the Plan 15
XXI. Governing Law 15
XXII. Effective Date 15
AMERICAN FREIGHTWAYS AMENDED AND RESTATED
1993 STOCK OPTION PLAN
I. PURPOSES
--------
American Freightways Corporation (the "Company") desires to
afford certain of its key employees and key employees of any
subsidiary corporation or parent corporation now existing or
hereafter formed or acquired who are responsible for the
continued growth of the Company an opportunity to acquire a
proprietary interest in the Company, and thus to create in such
key employees an increased interest in and a greater concern for
the welfare of the Company.
The stock options ("Options") and stock appreciation rights
("Rights") offered pursuant to this Freightways Stock Option Plan
(the "Plan") are a matter of separate inducement and are not in
lieu of any salary or other compensation for the services of any
key employee.
The Company, by means of the Plan, seeks to retain the
services of persons now holding key positions and to secure the
services of persons capable of filling such positions.
The Options granted under the Plan are intended to be either
incentive stock options ("Incentive Options") within the meaning
of Section 422 of the Internal Revenue Code of 1986, as it may
from time to time be amended (the "Code"), or options that do not
meet the requirements for Incentive Options ("Nonqualified
Options"), but the Company makes no warranty as to the
qualification of any Option as an Incentive Option.
II. SHARES SUBJECT TO THE PLAN
--------------------------
The total number of common shares of the Company which
either may be purchased pursuant to the exercise of Options
granted under the Plan or acquired pursuant to the exercise of
Rights granted under the Plan shall not exceed, in the aggregate,
4,000,000 of the presently authorized common shares, $.01 par
value per share, of the Company (the "Shares"). Accordingly, the
sum of (a) the number of Shares subject at any one time to
Options or Rights granted under the Plan and (b) the number of
Shares then outstanding pursuant to exercises of Options or
Rights granted under the Plan, shall not exceed 4,000,000 Shares.
If and to the extent that Options granted under the Plan expire
or terminate without having been exercised, new Options or Rights may be
granted with respect to the Shares covered by such expired
or terminated Options or Rights, provided that the grant and the
terms of such new Options or Rights shall in all respects comply
with the provisions of the Plan. The term "Shares" shall include
any securities, cash or other property into which Shares may be
changed through merger, consolidation, reorganization,
recapitalization, stock dividend, stock split, split-up,
split-off, spin-off, combination of Shares, exchange of Shares,
issuance of rights to subscribe or change in capital structure.
Shares which are subject to Rights and related Options shall be
counted only once in determining whether the maximum number of
Shares which may be purchased or acquired under the Plan has been
exceeded.
Shares which may be acquired under the Plan may be either
authorized but unissued Shares, Shares of issued stock held in
the Company's treasury, or both, at the discretion of the
Company.
The Company may, from time to time during the period
beginning February 1, 1993 (the "Effective Date") and ending
February 1, 2003 (the "Termination Date"), grant to certain key
employees of the Company, or of any subsidiary corporation or
parent corporation of the Company now existing or hereafter
formed or acquired, Options, Rights or both Options and Rights,
under the terms hereinafter set forth provided, however, that any
such grants shall not be effective until this Plan shall have
been approved by stockholder vote at the 1993 Annual Meeting of
Stockholders.
Provisions of the Plan which pertain to Options or Rights
granted to an employee shall apply to Options, Rights or a
combination thereof.
As used in the Plan, the terms "subsidiary corporation" and
"parent corporation" shall mean, respectively, a corporation
coming within the definition of such terms contained in Sections
424(f) and 424(e) of the Code.
No one person participating in the Plan may receive Options,
Stock Appreciation Rights or any combination thereof for more
than 100,000 shares of Company stock in any one year.
III. ADMINISTRATION
--------------
The Board of Directors of the Company (the "Board of
Directors") hereby designates the Compensation Committee (the
"Committee") as the Committee of the Board of Directors
authorized to administer the Plan. The Committee shall consist
of no fewer than two members of the Board of Directors, each of
whom shall be a "disinterested person" within the meaning of Rule
16b-3 (or any successor rule or regulation, hereafter "Rule 16b-
3") promulgated under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"). A majority of the members of the
Committee shall constitute a quorum, and the act of a majority of
the members of the Committee shall be the act of the Committee.
Any member of the Committee may be removed at any time either
with or without cause by resolution adopted by the Board of
Directors, and any vacancy on the Committee may at any time be
filled by resolution adopted by the Board of Directors.
Subject to the express provisions of the Plan, the Committee
shall have authority, in its discretion, to determine the
employees to whom Options or Rights shall be granted, the time
when such Options or Rights shall be granted to employees, the
number of Shares which shall be subject to each Option or Right,
the purchase price of each Share which shall be subject to each
Option or Right, the period(s) during which such Options or
Rights shall be exercisable (whether in whole or in part), and
the other terms and provisions thereof. In determining the
employees to whom Options or Rights shall be granted, the
Committee shall consider the length of service, the amount of
earnings, the responsibilities and duties of such employees and
such other factors as it reasonably determines to be relevant to
any such employees contribution to the Company; provided,
however, that no employee shall be granted Incentive Options in
any calendar year to purchase shares of stock in the Company or
in any subsidiary corporation or parent corporation of the
Company which exceeds the maximum allotment prescribed in Article
V.
Subject to the express provisions of the Plan, the Committee
also shall have authority to construe the Plan and Options and
Rights granted thereunder, to amend the Plan and Options and
Rights granted thereunder, to prescribe, amend and rescind rules
and regulations relating to the Plan, to determine the terms and
provisions of the respective Options and Rights (which need not
be identical) and to make all other determinations necessary or
advisable for administering the Plan. Any decision of the
Committee reduced to writing and signed by all members of the
Committee shall be effective as a meeting of the Committee. The
Committee also shall have the authority to require, in its
discretion, that the employee agree, promptly after the grant of
an Option or Right, (i) not to sell or otherwise dispose of
Shares acquired pursuant to the exercise of an Option or Right
granted under the Plan for a period of six (6) months following
the date of grant or exercise of the Option or Right; and (ii)
that in the event of termination of employment of such employee,
other than as a result of dismissal without cause, such employee
will not, for a period to be fixed at the time of the grant of
the Option or Right, enter into any other employment, or
participate directly or indirectly in any other business or
enterprise, which is competitive with the business of the Company
or any subsidiary corporation or parent corporation of the
Company, or enter into any employment in which such employee will
be called upon to utilize special knowledge and information
obtained through employment with the Company or any subsidiary
corporation or parent corporation thereof. The determination of
the Committee on matters referred to in this Article III shall be
conclusive.
Whether or not a Committee is separately designated by the
Board of Directors, any or all powers and functions of the
Committee may at any time and from time to time be exercised by
the Board of Directors; provided, however, that, with respect to
the participation in the Plan of employees who are members of the
Board of Directors, such powers and functions of the Committee
may be exercised by the Board of Directors only if, at the time
of such exercise, each of the members of the entire Board of
Directors are "disinterested persons" within the meaning of Rule
16b-3 (or any successor rule or regulation) promulgated under the
Exchange Act.
The Committee may employ such legal counsel, consultants and
agents as it may deem desirable for the administration of the
Plan and may rely upon any opinion received from any such counsel
or consultant and any computation received from any such
consultant or agent. Expenses incurred by the Board of Directors
or the Committee in the engagement of such counsel, consultant or
agent shall be paid by the Company. No member or former member
of the Committee or of the Board of Directors shall be liable for
any action or determination made in good faith with respect to
the Plan or any Option or Right granted hereunder.
IV. ELIGIBILITY
-----------
Options and Rights may be granted only to salaried key
employees of the Company or of any subsidiary corporation or
parent corporation of the Company, except members of the
Committee and except as hereinafter provided, and shall not be
granted to any officer or director who is not also a salaried key
employee.
An Incentive Option shall not be granted to any person who,
at the time such Option is granted, owns shares of the Company or
any subsidiary corporation or parent corporation of the Company
who possesses more than ten percent (10%) of the total combined
voting power of all classes of shares of the Company or of any
subsidiary corporation or parent corporation of the Company,
unless (i) the exercise price per share is not less than one
hundred and ten percent (110%) of the fair market value per share
on the date such Option is granted and (ii) such Option by its
terms is not exercisable after the expiration of five (5) years
from the date such Option is granted. In determining share
ownership of an employee, the rules of Section 424(d) of the Code
shall be applied, and the Committee may rely on representations
of fact made to it by the employee and believed by it to be true.
V. MAXIMUM ALLOTMENT OF INCENTIVE OPTIONS
--------------------------------------
To the extent that the aggregate fair market value of shares
as to which Incentive Options (determined without regard to this
Article V) are exercisable for the first time by an employee
during any calendar year exceeds $100,000, such options shall be
treated as Nonqualified Options.
VI. OPTION PRICE AND PAYMENT
------------------------
The price for each Share purchasable under any Option
granted hereunder shall be such amount as the Committee shall, in
its best judgment, determine on the basis of facts and
circumstances to be not less than (i) one hundred percent (100%)
of the fair market value per Share with respect to Incentive
Options, and (ii) one hundred percent (100% ) of the fair market
value per Share with respect to Nonqualified Options, at the date
any such Option is granted; provided, however, that, in the case
of an Incentive Option granted to a person who, at the time such
Option is granted, owns shares of the Company who possesses more
than ten percent (10%) of the total combined voting power of all
classes of shares of the Company, the purchase price for each
share shall be such amount as the Committee, in its best
judgment, shall determine to be not less than one hundred and ten
percent (110%) of the fair market value per Share at the date the
Option is granted.
If the Shares of the Company are listed on a national
securities exchange (including the New York, American or NASDAQ
National Market System) in the United States on the date any
Option is granted, the fair market value per Share shall be
deemed to be the average of the high and
low sale prices per
share of such Shares of the Company on such national securities
exchange in the United States on such date, as published by the
Wall Street Journal or other reliable publication, but if the
Shares of the Company are not traded on such date or such
national securities exchange is not open for business on such
date, the fair market value per Share shall be the average of
such high and low sale prices on the last preceding date on which
such exchange shall have been open for business and the Shares of
the Company were traded. If the Shares of the Company are listed
on more than one national securities exchange in the United
States on the date any such Option is granted, the Committee
shall determine, in its discretion, which national securities
exchange shall be used for the purpose of determining the fair
market value per Share.
If at the date any Option is granted a public market exists
for the Shares of the Company but such Shares are not listed on a
national securities exchange in the United States, the fair
market value per Share shall be deemed to be the mean between the
closing bid and asked quotations in the over-the-counter market
for such Shares of the Company in the United States on the date
such Option is granted. If there are no bid and asked quotations
for such Shares on such date, the fair market value per Share
shall be deemed to be the mean between the closing bid and asked
quotations in the over-the-counter market in the United States
for such Shares of the Company on the closest date preceding the
date such Option is granted, for which such quotations are
available.
The Company shall cause such Share certificates to be issued
only when it shall have received the full purchase price for the
Shares in cash; provided, however, that in lieu of cash, the
holder of an Option may, if the terms of such Option so provide
in the discretion of the Committee and to the extent permitted by
applicable law, exercise his Option, in whole or in part, by
delivering to the Company common shares of the Company (in proper
form for transfer and accompanied by all requisite stock transfer
tax stamps or cash in lieu thereof) owned by such holder having a
fair market value equal to the cash exercise price applicable to
that portion of the Option being exercised by the delivery of
such shares. The fair market value of the shares so delivered to
be determined on the exercise date in the same manner as provided
for the determination of the fair market value on the date of
grant, or as may be required in order to comply with or to
conform to the requirements of any applicable laws or
regulations. For this provision, the exercise date is the date
on which shares are received pursuant to the Option and payment
is made therefor.
VII. USE OF PROCEEDS
---------------
Any cash proceeds of the sale of Shares subject to the
Options granted hereunder are to be added to the general funds of
the Company and used for its general corporate purposes as the
Board of Directors shall determine. Shares received by the
Company as payment, in whole or in part, for the exercise of any
Option may, in the discretion of the Board of Directors, be
retained as treasury shares or returned and cancelled.
VIII. TERM OF OPTIONS AND LIMITATIONS
ON THE RIGHT OF EXERCISE
------------------------
Unless the Committee shall determine otherwise (in which
event, the instrument evidencing the Option granted hereunder
shall so specify), and subject to the provisions of Article IV,
any Option granted hereunder shall be exercisable during a period
of not more than ten (10) years from the date of grant of such
Option at such times and in such amounts as the Committee shall
determine at such date of grant.
Any Nonqualified Option granted hereunder shall be
exercisable at such times, in such amounts and during such period
or periods as the Committee, with the Board of Directors
approval, shall determine at the date of the grant of such
Option.
The Committee shall have the right to accelerate, in whole
or in part, from time to time, conditionally or unconditionally,
rights to exercise any Option granted hereunder.
To the extent that an Option is not exercised within the
period of exercisability specified therein, it shall expire as to
the then unexercised part. If any Option granted hereunder shall
terminate prior to the Termination Date, the Committee shall have
the right to use the Shares as to which such Option shall not
have been exercised to grant one or more additional Options to
any eligible employee, but any such grant of an additional Option
shall be made prior to the close of business on the Termination
Date.
In no event shall an Option granted hereunder be exercised
for a fraction of a share.
IX. EXERCISE OF OPTIONS
-------------------
Options granted under the Plan shall be exercised by the
optionee as to all or part of the Shares covered thereby by the
giving of written notice of the exercise thereof to the Corporate
Secretary of the Company at the principal business office of the
Company, specifying the number of Shares to be purchased and
accompanied by payment of the purchase price.
X. STOCK APPRECIATION RIGHTS
-------------------------
In the discretion of the Committee, a Right may be granted
(i) alone, (ii) simultaneously with the grant of an Option
(either Incentive or Nonqualified) and in conjunction therewith
or in the alternative thereto or (iii) subsequent to the grant of
a Nonqualified Option and in conjunction therewith or in the
alternative thereto.
The exercise price of a Right granted alone shall be
determined by the Committee, but shall not be less than one
hundred percent (100%) of the fair market value of one Share on
the date of grant of such Right. A Right granted simultaneously
with or subsequent to the grant of an Option and in conjunction
therewith or in the alternative thereto shall have the same
exercise price as the related Option, shall be transferable only
upon the same terms and conditions as the related Option, and
shall be exercisable only to the same extent as the related
Option; provided, however, that a Right, by its terms, shall be
exercisable only when the fair market value of the Shares subject
to the Right exceeds the exercise price thereof.
Any Right shall be exercisable upon such additional terms
and conditions as may from time to time be prescribed by the
Committee.
A Right shall entitle the holder to receive from the
Company, upon a written request filed with the Corporate
Secretary of the Company at its principal offices (the
"Request"), a number of Shares as specified in the Request (with
or without restrictions as to substantial risk of forfeiture and
transferability, as determined by the Committee in its sole
discretion), an amount of cash, or any combination of Shares and
cash, as set forth in the Request (but subject to the approval of
the Committee, in its sole discretion, at any time up to and
including the time of payment, as to the making of any cash
payment), having an aggregate value equal to the product of (i)
the excess of the fair market value on the day of such Request of
one Share over the exercise price per Share specified in such
Right or its related Option, multiplied by (ii) the number of
Shares for which such Right shall be exercised; provided,
however, that the Committee, in its discretion, may impose a
maximum limitation on the amount of cash, the fair market value
of Shares, or a combination thereof, which may be received by a
holder upon exercise of a Right.
Any election by a holder of a Right to receive cash in full
or partial settlement of such Right, and any exercise of such
Right for cash, may be made only by a Request filed with the
Corporate Secretary of the Company either (i) six months prior to
the proposed settlement date for such Right, or (ii) during the
period beginning on the third business day following the date of
release for publication by the Company of quarterly or annual
summary statements of sales and earnings and ending on the
twelfth business day following such date. Within sixty (60) days
of the receipt by the Company of a Request to receive cash in
full or partial settlement of a Right or to exercise such Right
for cash, the Committee shall, in its sole discretion, either
consent to or disapprove, in whole or in part, such Request.
If the Committee disapproves in whole or in part any
election by a holder to receive cash in full or partial
settlement of a Right or to exercise such Right for cash, such
disapproval shall not affect such holder's right to exercise such
Right at a later date, to the extent that such Right shall be
otherwise exercisable, or to elect the form of payment at a later
date, provided that an election to receive cash upon such later
exercise shall be subject to the approval of the Committee.
Additionally, such disapproval shall not affect such holder's
right to exercise any related Option or Options granted to such
holder under the Plan.
A holder of a Right shall not receive cash or Shares of the
Company stock in full or partial settlement of such Right, or
upon the full or partial exercise of such Right, if such Right or
the related Option shall have been exercised during the first six
(6) months of its respective term; provided, however, that such
prohibition shall not apply if the holder of such Right dies or
becomes disabled (within the meaning of Section 105(d)(4) of the
Code) prior to the expiration of such six-month period, or if
such holder is not a director, officer or a beneficial owner of
more than ten percent (10%) of any class of equity security of
the Company as described in Section 16(a) of the Exchange Act.
A Right shall be deemed exercised on the last day of its
term, if not otherwise exercised by the holder thereof, provided
that the fair market value of the Shares subject to the Right
exceeds the exercise price thereof on such date.
XI. NONTRANSFERABILITY OF OPTIONS
AND STOCK APPRECIATION RIGHTS
-----------------------------
Neither an Option nor a Right granted hereunder shall be
transferable otherwise than by will or the laws of descent and
distribution, and any Option or Right granted hereunder shall be
exercisable, during the lifetime of the holder, only by such
holder.
XII. TERMINATION OF EMPLOYMENT
-------------------------
If an employee's employment with the Company shall be
terminated by reason of retirement, the Employee shall have the
right to exercise the vested portions of such Option in no event
later than (i) in respect of Incentive Stock Options, 90 days
after the retirement date, and (ii) with respect to other Options
the date the Option would have expired had it not been for such
retirement.
If an employee's employment shall be terminated by reason of
death or disability, the employee shall have the right to
exercise vested portions of such Options for one year following
the termination of the employee's employment. During such one
year period following death or disability, Options held by
employee shall continue to vest. Such vesting shall not continue
after such one year period and Options not vested shall expire
and terminate.
If an employee's employment shall terminate for reasons
other than death, disability or retirement, any Option or Right
previously granted to the employee, unless otherwise specified by
the committee in the Option or Right, shall, to the extent not
theretofore vested, terminate and become null and void. Employee
shall be entitled to exercise any vested portion of an Option or
Right for 90 days following termination.
If applicable to an Option or Right granted hereunder,
whenever such Option or Right shall be exercised by the legal
representative of a deceased employee or former employee, or by a
person who acquired an Option or Right granted hereunder by
bequest or inheritance or by reason of the death of any employee
or former employee, written notice of such exercise shall be
accompanied by a certified copy of letters testamentary or
equivalent proof of the right of such legal representative or
other person to exercise such Option or Right.
For the purposes of the Plan, an employment relationship
shall be deemed to exist between an individual and a corporation
if, at the time of the termination, the individual was an "employee"
of such corporation for purposes of Section 422(a) of
the Code. If an individual is on leave of absence taken with the
consent of the corporation by which such individual was employed,
or is on active military service, and is determined to be an
"employee" for purposes of the exercise of an Option or Right,
such individual shall not be entitled to exercise such Option or
Right during such period and while the employment relationship is
treated as continuing intact unless such individual shall have
obtained the prior written consent of such corporation, which
consent shall be signed by the Chairman of the Board, the
President, a Vice-President or other duly authorized officer of
such corporation.
A termination of employment shall not be deemed to occur by
reason of (i) the transfer of an employee from employment by the
Company to employment by a subsidiary corporation or a parent
corporation of the Company or (ii) the transfer of an employee
from employment by a subsidiary corporation or a parent
corporation of the Company to employment by the Company or by
another subsidiary corporation or parent corporation of the
Company.
XIII. ADJUSTMENT OF SHARES; EFFECT
OF CERTAIN TRANSACTIONS
-----------------------
Notwithstanding any other provision contained herein, in the
event of any change in the Shares subject to the Plan or to any
Option or Right granted under the Plan (through merger,
consolidation, reorganization, recapitalization, stock dividend,
stock split, split-up, split-off, spin-off, combination of
shares, exchange of shares, issuance of rights to subscribe, or
change in capital structure) appropriate adjustments shall be
made by the Committee as to the maximum number of Shares subject
to the Plan, the maximum number of Shares for which Options or
Rights may be granted to any one employee and the number of
Shares and price per Share subject to outstanding Options or
Rights which may be granted to any one employee, and the number
of Shares and price per Share subject to outstanding Options or
Rights as shall be equitable to prevent dilution or enlargement
of rights under Options or Rights, and the determination of the
Committee as to these matters shall be conclusive; provided,
however, that (i) any such adjustment with respect to an
Incentive Option and any related Right shall comply with the
rules of Section 424(a) of the Code, and (ii) in no event shall
any adjustment be made which would render any Incentive Option
granted hereunder other than an Incentive Option for purposes of
Section 422 of the Code.
The Committee may determine, in its discretion, that Options
and Rights may become immediately exercisable upon the occurrence
of a transaction involving a "change in control" of the Company,
which transactions shall be as defined in the Option Agreement or
other document pursuant to which Options or Rights are granted.
A "change in control" transaction may include a merger or
consolidation of the Company, a sale of all or substantially all
of its assets, or the acquisition of a significant percentage of
the voting power of the Company, or such other form of
transaction as the Committee determines to constitute a change in
control.
The Committee, in its discretion, may also determine that,
upon the occurrence of such a "change in control" transaction,
each Option or Right outstanding hereunder shall terminate within
a specified number of days after notice to the holder, and such
holder shall receive, with respect to each Share subject to such
Option or Right, an amount equal to the excess of the fair market
value of the Shares immediately prior to the occurrence of such
transaction over the exercise price of such Option or Right; such
amount shall be payable in cash, in one or more of the kinds of
property payable in such transaction, or in a combination
thereof, as the Committee in its discretion shall determine.
XIV. RIGHT TO TERMINATE EMPLOYMENT
-----------------------------
The Plan shall not impose any obligation on the Company or
on any subsidiary corporation or parent corporation thereof to
continue the employment of any holder of an Option or Right; it
shall not impose any obligation on the part of any holder of an
Option or Right to remain in the employ of the Company or of any
subsidiary corporation or parent corporation thereof.
XV. PURCHASE FOR INVESTMENT
-----------------------
Except as hereafter provided, the holder of an Option or
Right granted hereunder shall, upon any exercise hereof, execute
and deliver to the Company a written statement, in form
satisfactory to the Company, in which such holder represents and
warrants that such holder is purchasing or acquiring the Shares
acquired thereunder for such holder's own account, for investment
only and not with a view to the resale or distribution of any of
such Shares. Any resale or distribution of such Shares shall be
made only pursuant to either (a) a Registration Statement on an
appropriate form under the Securities Act of 1933, as amended
(the "Securities Act"), which Registration
Statement shall have
become effective and is then current with regard to the Shares
being sold, or (b) a specific exemption from the registration
requirements of the Securities Act, but in claiming such
exemption the holder shall, prior to any offer of sale or sale of
such Shares, obtain a prior favorable written opinion, in form
and substance satisfactory to the Company, from counsel for or
approved by the Company, as to the application of such exemption
thereto. The foregoing restriction shall not apply to (i)
issuances by the Company so long as the Shares being issued are
registered under the Securities Act and a prospectus in respect
thereof is current or (ii) reofferings of Shares by affiliates of
the Company (as defined in Rule 405 or any successor rule or
regulation promulgated under the Securities Act) if the Shares
being reoffered are registered under the Securities Act and a
prospectus in respect thereof is current.
XVI. ISSUANCE OF CERTIFICATES;
LEGENDS; PAYMENT OF EXPENSES
----------------------------
Upon any exercise of an Option or Right which may be granted
hereunder and, in the case of an Option, payment of the purchase
price, a certificate or certificates for the Shares as to which
the Option or Right has been exercised shall be issued by the
Company in the name of the person exercising the Option or Right
and shall be delivered to or upon the order of such person or
persons, as permitted by state or federal securities law.
The Company may place such legend or legends upon the
certificates for Shares issued upon exercise of an Option or
Right granted hereunder, and the Committee may issue such "stop
transfer" instructions to its transfer agent in respect of such
Shares, as the Committee, in its discretion, determines to be
necessary or appropriate to (i) prevent a violation of, or to
perfect an exemption from, the registration requirements of the
Securities Act, (ii) implement the provisions of any agreement
between the Company and the optionee or grantee with respect to
such Shares, or (iii) permit the Company to determine the
occurrence of a disqualifying disposition, as described in
Section 421(b) of the Code, of Shares transferred upon exercise
of an Incentive Option granted under the Plan.
The Company shall pay all issue or transfer taxes with
respect to the issuance or transfer of shares, as well as all
fees and expenses necessarily incurred by the Company in
connection with such issuance or transfer, except fees and
expenses which may be necessitated by the filing or
amending of a Registration Statement under the Securities Act, which
fees and expenses shall be borne by the recipient of the Shares unless
such Registration Statement has been filed by the Company for its
own corporate purposes (and the Company so states) in which event
the recipient of the Shares shall bear only such fees and
expenses as are attributable solely to the inclusion of such
Shares in the Registration Statement.
All Shares issued as provided herein shall be fully paid and
non-assessable to the extent permitted by law.
XVII. WITHHOLDING TAXES
-----------------
Upon exercise of a Right or an Option and the issuance of
Shares hereunder, the Optionee shall remit to the Company an
amount of cash (in the form of a cashiers' check) sufficient to
satisfy any taxes required by any government to be withheld or
otherwise deducted and paid by the Company in respect of such
issuance of Shares.
XVIII. LISTING OF SHARES AND RELATED MATTERS
-------------------------------------
If at any time the Board of Directors shall determine in its
discretion that the listing, registration or qualification of the
Shares covered by the Plan upon any national securities exchange
or under any state or federal law, or the consent or approval of
any governmental regulatory body, is necessary or desirable as a
condition of, or in connection with, the sale or purchase of
Shares under the Plan, no Shares shall be delivered unless and
until such listing, registration, qualification, consent or
approval shall have been effected or obtained, or otherwise
provided for, free of any conditions not acceptable to the Board
of Directors.
XIX. AMENDMENT OF THE PLAN
---------------------
The Board of Directors may, from time to time, amend the
Plan, provided that no amendment shall be effective, without the
approval of the holders of a majority of the voting stock of the
Company present in person or by proxy at a meeting thereof (or
pursuant to a written consent in lieu of such a meeting), if such
approval is necessary to maintain compliance with the provisions
of Rule 16b-3. The Committee shall be authorized to amend the
Plan and the Options granted thereunder to permit the Options
granted thereunder to qualify as incentive stock options under
Section 422 of the Code and the Treasury regulations promulgated
thereunder and, to the extent permitted under applicable laws,
rules, and regulations, to include a cashless exercise provision
of Article VI. The rights and obligations under any Option or
Right granted before amendment of the Plan or any unexercised
portion of such Option or Right shall not be adversely affected
by amendment of the Plan or the Option or Right without the
consent of the holder of the Option or
Right.
XX. TERMINATION OR SUSPENSION OF THE PLAN
-------------------------------------
The Board of Directors may at any time suspend or terminate
the Plan. The Plan, unless sooner terminated under Article XXII
or by action of the Board of Directors, shall terminate at the
close of business on the Termination Date. An Option or Right
may not be granted while the Plan is suspended or after it is
terminated; provided, however, that options or rights previously
issued and unexpired shall continue to exist and may be validly
exercised, pursuant to the provisions of the Plan, until each
option and/or right individually expires. Rights and obligations
under any Option or Right granted while the Plan is in effect
shall not be altered or impaired by suspension or termination of
the Plan, except upon the consent of the person to whom the
Option or Right was granted. The power of the Committee to
construe and administer any Options or Rights granted prior to
the termination or suspension of the Plan under Article III shall
nevertheless continue after such termination or during such
suspension.
XXI. GOVERNING LAW
--------------
The Plan, such Options and Rights as may be granted
thereunder and all related matters shall be governed by, and
construed and enforced in accordance with, the laws of the State
of Arkansas from time to time obtaining.
XXII. EFFECTIVE DATE
--------------
The Plan shall become effective at 3:00 P.M., Central
Standard time, on the Effective Date, the date on which the Plan
was adopted by the Board or Directors. Grants of Option or
Rights made prior to shareholder approval as required under
Section II hereof shall be effective upon the date of such
shareholder approval.
CERTIFICATE
-----------
I, Will Garrison, Secretary of American Freightways
Corporation, certify that the foregoing is a true and correct
copy of the American Freightways Corporation Amended and
Substituted Stock Option Plan as adopted by the board of
directors of the corporation January 20, 1999, and authorized by
its shareholders April 15, 1999.
/s/Will Garrison
----------------------