Exhibit 10.20
CONSOLIDATED FREIGHTWAYS CORPORATON
NON-EMPLOYEE DIRECTORS' EQUITY PLAN
1. Purposes.
(a) Eligible Option Recipients. The persons eligible to receive
Options are the Non-Employee Directors of the Company.
(b) Available Options. The purpose of the Plan is to provide a
means by which Non-Employee Directors' interests are more closely
aligned with those of the stockholders of the Company by giving
Non-Employee Directors an opportunity to benefit from increases
in value of the Common Stock through the granting of Nonstatutory
Stock Options.
(c) General Purpose. The Company, by means of the Plan, seeks
to retain the services of its Non-Employee Directors, to secure
and retain the services of new Non-Employee Directors and to
provide incentives for such persons to exert maximum efforts for
the success of the Company and its Affiliates.
2. Definitions.
(a) "Affiliate" means any parent corporation or subsidiary
corporation of the Company, whether now or hereafter existing, as
those terms are defined in Sections 424(e) and (f), respectively,
of the Code.
(b) "Annual Meeting" means the annual meeting of the
stockholders of the Company.
(c) "Basic Grant" means an Option granted to a Non-Employee
Director who meets the specified criteria pursuant to subsections
6(a) or 6(b) of the Plan.
(d) "Board" means the Board of Directors of the Company.
(e) "Code" means the Internal Revenue Code of 1986, as amended.
(f) "Common Stock" means the common stock of the Company.
(g) "Company" means Consolidated Freightways Corporation, a
Delaware corporation.
(h) "Consultant" means any person, including an advisor, (i)
engaged by the Company or an Affiliate to render consulting or
advisory services and who is compensated for such services or
(ii) who is a member of the Board of Directors of an Affiliate.
However, the term "Consultant" shall not include Directors of the
Company who are compensated solely by the Company for their
services as Directors.
(i) "Continuous Service" means that the Optionholder's service
with the Company or an Affiliate, whether as an Employee,
Director or Consultant, is not interrupted or terminated. The
Optionholder's Continuous Service shall not be deemed to have
terminated merely because of a change in the capacity in which
the Optionholder renders service to the Company or an Affiliate
as an Employee, Consultant or Director or a change in the entity
for which the Optionholder renders such service, provided that
there is no interruption or termination of the Optionholder's
Continuous Service. For example, a change in status from a Non-
Employee Director of the Company to a Consultant of an Affiliate
or an Employee of the Company will not constitute an interruption
of Continuous Service. The Board or the chief executive officer
of the Company, in that party's sole discretion, may determine
whether Continuous Service shall be considered interrupted in the
case of any leave of absence approved by that party, including
sick leave, military leave or any other personal leave.
(j) "Director" means a member of the Board of Directors of the
Company.
(k) "Employee" means any person employed by the Company or an
Affiliate. Mere service as a Director or payment of a director's
fee by the Company or an Affiliate shall not be sufficient to
constitute "employment" by the Company or an Affiliate.
(l) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(m) "Fair Market Value" means, as of any date, the value of the
Common Stock determined as follows:
(i) If the Common Stock is listed on any established stock
exchange or traded on the NASDAQ National Market or the NASDAQ
SmallCap Market, the Fair Market Value of a share of Common Stock
shall be the closing sales price for such stock (or the closing
bid, if no sales were reported) as quoted on such exchange or
market (or the exchange or market with the greatest volume of
trading in the Common Stock) on the last market trading day prior
to the day of determination, as reported in The Wall Street
Journal or such other source as the Board deems reliable.
(ii) In the absence of such markets for the Common Stock, the
Fair Market Value shall be determined in good faith by the Board.
(n) "Non-Employee Director" means a Director who is not an
Employee or Consultant.
(o) "Nonstatutory Stock Option" means an Option not intended to
qualify as an incentive stock option within the meaning of
Section 422 of the Code and the regulations promulgated
thereunder.
(p) "Officer" means a person who is an officer of the Company
within the meaning of Section 16 of the Exchange Act and the
rules and regulations promulgated thereunder.
(q) "Option" means a Nonstatutory Stock Option granted pursuant
to the Plan.
(r) "Option Agreement" means a written agreement between the
Company and an Optionholder evidencing the terms and conditions
of an individual Option grant. Each Option Agreement shall be
subject to the terms and conditions of the Plan.
(s) "Optionholder" means a person to whom an Option is granted
pursuant to the Plan or, if applicable, such other person who
holds an outstanding Option.
(t) "Plan" means this Consolidated Freightways Corporation 1999
Non-Employee Directors' Stock Option Plan.
(u) "Rule 16b-3" means Rule 16b-3 promulgated under the Exchange
Act or any successor to Rule 16b-3, as in effect from time to
time.
(v) "Securities Act" means the Securities Act of 1933, as
amended.
(x) "Special Grant" means an Option granted to a Non-
Employee Director who meets the specified criteria pursuant to
subsection 6(b) of the Plan.
3. Administration.
(a) Administration by Board. The Board shall administer the
Plan. The Board may delegate administration of the Plan to a
committee of the Board comprised of one or more Directors.
(b) Powers of Board. The Board shall have the power, subject
to, and within the limitations of, the express provisions of the
Plan:
(i) To determine the provisions of each Option to the extent not
specified in the Plan.
(ii) To construe and interpret the Plan and Options granted under
it, and to establish, amend and revoke rules and regulations for
its administration. The Board, in the exercise of this power,
may correct any defect, omission or inconsistency in the Plan or
in any Option Agreement, in a manner and to the extent it shall
deem necessary or expedient to make the Plan fully effective.
(iii) To amend the Plan or an Option as provided in Section
12.
(iv) Generally, to exercise such powers and to perform such acts
as the Board deems necessary or expedient to promote the best
interests of the Company which are not in conflict with the
provisions of the Plan.
4. Shares Subject to the Plan.
(a) Share Reserve. Subject to the provisions of Section 11
relating to adjustments upon changes in stock, the stock that may
be issued pursuant to Options shall not exceed in the aggregate
two hundred fifty thousand (250,000) shares of Common Stock.
(b) Reversion of Shares to the Share Reserve. If any Option
shall for any reason expire or otherwise terminate, in whole or
in part, without having been exercised in full, the stock not
acquired under such Option shall revert to and again become
available for issuance under the Plan.
(c) Source of Shares. The stock subject to the Plan may be
unissued shares or reacquired shares, bought on the market or
otherwise.
5. Eligibility.
Nondiscretionary Options as set forth in section 6 shall be
granted under the Plan to all Non-Employee Directors.
6. Non-Discretionary Grants.
Option Grants. Without any further action of the Board,
each Non-Employee Director shall be granted the following Options
(if such Non-Employee Director is then serving as a Non-Employee
Director on the date of grant of such Option):
(a) On May 11, 1999, the date following the May 10, 1999 Annual
Meeting, each person who is then a Non-Employee Director shall
automatically be granted a Basic Grant to purchase twenty five
thousand (25,000) shares of Common Stock on the terms and
conditions set forth herein. If, on that date, a Non-Employee
Director is also serving as Chairman of the Board, that Non-
Employee Director shall instead be granted a Basic Grant to
purchase fifty thousand (50,000) shares of Common Stock on the
terms and conditions set forth herein.
(b) After May 10, 1999, each person who is elected or appointed
for the first time to be a Non-Employee Director automatically
shall, upon the day following the first Annual Meeting following
the Non-Employee Director's appointment or election, be granted a
Basic Grant to purchase twenty five thousand (25,000) shares of
Common Stock multiplied by a fraction, the numerator of which is
that number of full or partial months left from the date of the
grant of such Basic Grant, until December 31, 2003 and the
denominator of which is forty eight (48). In no event shall this
fraction exceed one (1). In addition, a special grant of three
thousand (3,000) shares of Common Stock ("Special Grant") shall
be made to a new Non-Employee Director as an inducement to join
the Board.
(c) In addition to the Basic Grant described in subsection 6(b)
and the Special Grant, a person who first becomes a Non-Employee
Director after May 10, 1999 shall receive a supplemental Option
on the day following the first Annual Meeting following the Non-
Employee Director's appointment or election in the amount of
twenty-five thousand (25,000) shares of Common Stock multiplied
by a fraction, the numerator of which shall be the number of full
months after January 1, 2000, which such Director has served
between his or her appointment or election and the beginning of
the month in which the first Annual Meeting following his or her
appointment or election is held and the denominator of which is
forty eight (48).
(d) No Option shall be granted to purchase a fractional share of
Common Stock. Any calculations made under this Section 6 which
would otherwise result in the grant of a fractional share shall
be rounded to the nearest whole share (any result containing half
of a share shall be rounded up to the next higher number of whole
shares).
7. Option Provisions.
Each Option shall be in such form and shall contain such
terms and conditions as required by the Plan. Each Option shall
contain such additional terms and conditions, not inconsistent
with the Plan, as the Board shall deem appropriate. Each Option
shall include (through incorporation of provisions hereof by
reference in the Option or otherwise) the substance of each of
the following provisions:
(a) Term. No Option shall be exercisable after the expiration
of five (5) years from the date it was granted.
(b) Exercise Price. The exercise price of each Option shall be
one hundred percent (100%) of the Fair Market Value of the stock
subject to the Option on the date the Option is granted.
Notwithstanding the foregoing, an Option may be granted with an
exercise price lower than that set forth in the preceding
sentence if such Option is granted pursuant to an assumption or
substitution for another option in a manner satisfying the
provisions of Section 424(a) of the Code.
(c) Consideration. The purchase price of stock acquired
pursuant to an Option may be paid, to the extent permitted by
applicable statutes and regulations, in any combination of (i)
cash or check, (ii) delivery to the Company of other Common
Stock, (iii) deferred payment or (iv) any other form of legal
consideration that may be acceptable to the Board and provided in
the Option Agreement; provided, however, that at any time that
the Company is incorporated in Delaware, payment of the Common
Stock's "par value," as defined in the Delaware General
Corporation Law, shall not be made by deferred payment.
In the case of any deferred payment arrangement, interest
shall be compounded at least annually and shall be charged at the
minimum rate of interest necessary to avoid the treatment as
interest, under any applicable provisions of the Code, of any
amounts other than amounts stated to be interest under the
deferred payment arrangement.
(d) Transferability. An Option shall be transferable to the
extent provided in the option agreement. If the Option does not
provide for transferability, then the Option shall not be
transferable except by will or by the laws of descent and
distribution and shall be exercisable during the lifetime of the
Director only by the Director. Notwithstanding the foregoing
provisions of this subsection 7(d), the Director may, by
delivering written notice to the Company, in a form satisfactory
to the Company, designate a third party who, in the event of the
death of the Director, shall thereafter be entitled to exercise
the Option.
(e) Vesting Generally. Options shall vest and become exercisable
as follows:
(i) Basic Grants described in subsection 6(a) shall provide for
vesting monthly on a pro-rata basis over a 48-month period,
beginning on January 1, 2000 and ending on December 31, 2003.
Therefore, the first installment of monthly vesting for such a
Basic Grant would occur on January 31, 2000. For Non-Employee
Directors elected or appointed after the May 10, 1999 Annual
Meeting, monthly pro-rata vesting shall begin on the last day of
the month following the first Annual Meeting following such Non-
Employee Director's appointment or election and end on December
31, 2003.
(ii) Special Grants described in subsection 6(b) and supplemental
Options described in subsection 6(c) shall vest in their entirety
one year after the date of the grant.
(f) Termination of Continuous Service. In the event an
Optionholder's Continuous Service terminates for any reason
(including as a result of death or disability), the Optionholder
(or his or her successor in interest) may exercise the Option (to
the extent that the Optionholder was entitled to exercise it as
of the date of termination), but only within such period of time
ending on the earlier of (i) the date twenty-four (24) months
following the termination of the Optionholder's Continuous
Service, or (ii) the expiration of the term of the Option as set
forth in the Option Agreement. If, after termination, the
Optionholder (or his or her successor in interest) does not
exercise the Option within the time specified in the Option
Agreement, the Option shall terminate.
(g) Extension of Termination Date. If the exercise of the
Option following the termination of the Optionholder's Continuous
Service would be prohibited at any time solely because the
issuance of shares would violate the registration requirements
under the Securities Act, then the Option shall terminate on the
earlier of (i) the expiration of the term of the Option set forth
in subsection 7(a) or (ii) the expiration of a period of three
(3) months after the termination of the Optionholder's Continuous
Service during which the exercise of the Option would not be in
violation of such registration requirements, but in any event no
earlier than the Option would otherwise have expired under
subsection 7(f).
8. Covenants of the Company.
(a) Availability of Shares. During the terms of the Options,
the Company shall keep available at all times the number of
shares of Common Stock required to satisfy such Options.
(b) Securities Law Compliance. The Company shall seek to obtain
from each regulatory commission or agency having jurisdiction
over the Plan such authority as may be required to grant Options
and to issue and sell shares of Common Stock upon exercise of the
Options; provided, however, that this undertaking shall not
require the Company to register under the Securities Act the
Plan, any Option or any stock issued or issuable pursuant to any
such Option. If, after reasonable efforts, the Company is unable
to obtain from any such regulatory commission or agency the
authority which counsel for the Company deems necessary for the
lawful issuance and sale of stock under the Plan, the Company
shall be relieved from any liability for failure to issue and
sell stock upon exercise of such Options unless and until such
authority is obtained.
9. Use of Proceeds from Stock.
Proceeds from the sale of stock pursuant to Options shall
constitute general funds of the Company.
10. Miscellaneous.
(a) Stockholder Rights. No Optionholder shall be deemed to be
the holder of, or to have any of the rights of a holder with
respect to, any shares subject to such Option unless and until
such Optionholder has satisfied all requirements for exercise of
the Option pursuant to its terms.
(b) No Service Rights. Nothing in the Plan or any instrument
executed or Option granted pursuant thereto shall confer upon any
Optionholder any right to continue to serve the Company as a Non-
Employee Director or shall affect the right of the Company or an
Affiliate to terminate (i) the employment of an Employee with or
without notice and with or without cause, (ii) the service of a
Consultant pursuant to the terms of such Consultant's agreement
with the Company or an Affiliate or (iii) the service of a
Director pursuant to the Bylaws of the Company or an Affiliate,
and any applicable provisions of the corporate law of the state
in which the Company or the Affiliate is incorporated, as the
case may be.
(c) Investment Assurances. The Company may require an
Optionholder, as a condition of exercising or acquiring stock
under any Option, (i) to give written assurances satisfactory to
the Company as to the Optionholder's knowledge and experience in
financial and business matters and/or to employ a purchaser
representative reasonably satisfactory to the Company who is
knowledgeable and experienced in financial and business matters
and that he or she is capable of evaluating, alone or together
with the purchaser representative, the merits and risks of
exercising the Option; and (ii) to give written assurances
satisfactory to the Company stating that the Optionholder is
acquiring the stock subject to the Option for the Optionholder's
own account and not with any present intention of selling or
otherwise distributing the stock. The foregoing requirements,
and any assurances given pursuant to such requirements, shall be
inoperative if (iii) the issuance of the shares upon the exercise
or acquisition of stock under the Option has been registered
under a then currently effective registration statement under the
Securities Act or (iv) as to any particular requirement, a
determination is made by counsel for the Company that such
requirement need not be met in the circumstances under the then
applicable securities laws. The Company may, upon advice of
counsel to the Company, place legends on stock certificates
issued under the Plan as such counsel deems necessary or
appropriate in order to comply with applicable securities laws,
including, but not limited to, legends restricting the transfer
of the stock.
(d) Withholding Obligations. The Optionholder may satisfy any
federal, state or local tax withholding obligation relating to
the exercise or acquisition of stock under an Option by any of
the following means (in addition to the Company's right to
withhold from any compensation paid to the Optionholder by the
Company) or by a combination of such means: (i) tendering a cash
payment; (ii) authorizing the Company to withhold shares from the
shares of the Common Stock otherwise issuable to the Optionholder
as a result of the exercise or acquisition of stock under the
Option; or (iii) delivering to the Company owned and unencumbered
shares of the Common Stock.
11. Adjustments upon Changes in Stock.
(a) Capitalization Adjustments. If any change is made in the
stock subject to the Plan, or subject to any Option, without the
receipt of consideration by the Company (through merger,
consolidation, reorganization, recapitalization, reincorporation,
stock dividend, dividend in property other than cash, stock
split, liquidating dividend, combination of shares, exchange of
shares, change in corporate structure or other transaction not
involving the receipt of consideration by the Company), the Plan
will be appropriately adjusted in the class(es) and maximum
number of securities subject both to the Plan pursuant to
subsection 4(a) and to the nondiscretionary Options specified in
Section 6, and the outstanding Options will be appropriately
adjusted in the class(es) and number of securities and price per
share of stock subject to such outstanding Options. The Board
shall make such adjustments, and its determination shall be
final, binding and conclusive. (The conversion of any
convertible securities of the Company shall not be treated as a
transaction "without receipt of consideration" by the Company.)
(b) Change in Control. In the event of (i) a dissolution or
liquidation of the Company, (ii) a sale of all or substantially
all of the assets of the Company, (iii) a merger or consolidation
in which the Company is not the surviving corporation, (iv) a
reverse merger in which the Company is the surviving corporation
but the shares of Common Stock outstanding immediately preceding
the merger are converted by virtue of the merger into other
property, whether in the form of securities, cash or otherwise,
and in any of the above cases in which beneficial ownership of
securities of the Company representing at least fifty percent
(50%) of the combined voting power entitled to vote in the
election of directors has changed, (v) an acquisition by any
person, entity or group within the meaning of Section 13(d) or
14(d) of the Exchange Act, or any comparable successor provisions
(excluding any employee benefit plan, or related trust, sponsored
or maintained by the Company or an Affiliate) of the beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act, or comparable successor rule) of securities of the
Company representing at least fifty percent (50%) of the combined
voting power entitled to vote in the election of directors, or
(vi) that the individuals who, as of the date of the adoption of
this Plan, are members of the Board (the "Incumbent Board"),
cease for any reason to constitute at least fifty percent (50%)
of the Board, (if the election, or nomination for election, by
the Company's stockholders of any new director was approved by a
vote of at least fifty percent (50%) of the Incumbent Board, such
new director shall be considered as a member of the Incumbent
Board), any one of which events shall constitute a "Change in
Control", then any surviving corporation or acquiring corporation
shall assume any Options outstanding under the Plan or shall
continue or substitute similar options (including an option to
acquire the same consideration paid to the stockholders in the
transaction) for those outstanding under the Plan. In the event
any surviving corporation or acquiring corporation refuses to
assume such options or to continue or substitute similar Options
for those outstanding under the Plan, then with respect to
Options held by Directors whose Continuous Service has not
terminated, the vesting of such Options (and, if applicable, the
time during which such Options may be exercised) shall be
accelerated in full, and the Options shall terminate if not
exercised (if applicable) at or a reasonable time following such
event as shall be determined by the Board.
(c) Termination of Continuous Service upon a Change in Control.
If a Director's Continuous Service terminates for any reason upon
or within twenty-four (24) months after the occurrence of a
Change in Control, then any Options held by such Director shall
immediately become fully vested and exercisable, and any
repurchase right by the Company or its Affiliates with respect to
any shares of stock covered by such Options shall immediately
lapse.
12. Amendment of the Plan and Options.
(a) Amendment of Plan. The Board at any time, and from time to
time, may amend the Plan. However, except as provided in Section
11 relating to adjustments upon changes in stock, no amendment
shall be effective unless approved by the stockholders of the
Company to the extent stockholder approval is necessary to
satisfy the requirements of Rule 16b-3 or any NASDAQ or
securities exchange listing requirements.
(b) Stockholder Approval. The Board may, in its sole
discretion, submit any other amendment to the Plan for
stockholder approval.
(c) No Impairment of Rights. Rights under any Option granted
before amendment of the Plan shall not be impaired by any
amendment of the Plan unless (i) the Company requests the consent
of the Optionholder and (ii) the Optionholder consents in
writing.
(d) Amendment of Options. The Board at any time, and from time
to time, may amend the terms of any one or more Options;
provided, however, that the rights under any Option shall not be
impaired by any such amendment unless (i) the Company requests
the consent of the Optionholder and (ii) the Optionholder
consents in writing.
13. Termination or Suspension of the Plan.
(a) Plan Term. The Board may suspend or terminate the Plan at
any time. Unless sooner terminated, the Plan shall terminate on
December 31, 2003. No Options may be granted under the Plan
while the Plan is suspended or after it is terminated.
(b) No Impairment of Rights. Suspension or termination of the
Plan shall not impair rights and obligations under any Option
granted while the Plan is in effect except with the written
consent of the Optionholder.
14. Effective Date of Plan.
The Plan shall become effective on May 10, 1999, the date
the Plan is adopted by the stockholders of the Company.
15. Choice of Law.
All questions concerning the construction, validity and
interpretation of this Plan shall be governed by the law of the
State of Delaware, without regard to such state's conflict of
laws rules.