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EXHIBIT 10
CHANGE-IN-CONTROL AGREEMENT
AGREEMENT entered into as of _______________, 200_ by and
between
Smithway Motor Xpress Corp., an Iowa
corporation (the "Company"), and
_______________ (the "Executive").
WITNESSETH:
WHEREAS, the Executive is a key member of the management of the
Company and has heretofore devoted
substantial skill and effort to the affairs
of the Company; and
WHEREAS, it is desirable and in the best interests of the
Company
and its shareholders to continue to obtain
the benefits of the Executive's
services and attention to the affairs of
the Company; and
WHEREAS, it is desirable and in the best interests of the
Company
and its shareholders to provide inducement
for the Executive (A) to remain in
the service of the Company in the event of
any proposed or anticipated change in
control of the Company and (B) to remain in
the service of the Company in order
to facilitate an orderly transition in the
event of a change in control of the
Company; and
WHEREAS, it is desirable and in the best interests of the
Company
and its shareholders that the Executive be
in a position to make judgments and
advise the Company with respect to proposed
changes in control of the Company;
and
WHEREAS, the Executive desires to be protected in the event of
certain changes in control of the Company;
and
WHEREAS, for the reasons set forth above, the Company and the
Executive desire to enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual
covenants and agreements contained herein,
the Company and the Executive agree
as follows:
1.
Employment. The purpose of this Agreement is to provide Executive
with
certain amounts or benefits under certain
circumstances and on the terms set
forth herein if an Event shall be deemed to
have occurred as contemplated by
Section 2. This Agreement does not
otherwise affect the terms of Executive's
employment.
2. Events.
No amounts or benefits shall be payable or provided for
pursuant to this Agreement unless an Event
shall occur during the Term of this
Agreement.
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(a) For purposes of this Agreement, an "Event" shall be deemed
to
have
occurred if any of the following occur:
(i) Any "person" (as defined in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended, or any
successor
statute thereto (the "Exchange Act")) acquires or becomes a
"beneficial owner" (as defined in Rule 13d-3 or any successor
rule
under the Exchange Act), directly or indirectly, of securities
of
the Company representing 35% or more of the combined voting power
of
the Company's then outstanding securities entitled to vote
generally
in the election of directors ("Voting Securities"), provided,
however, that the following shall not constitute an Event
pursuant
to this Section 2(a)(i):
(A) any acquisition or beneficial ownership by the
Company or a subsidiary of the Company;
(B) any acquisition or beneficial ownership by any
employee benefit plan (or related trust) sponsored or
maintained by the Company or one or more of its subsidiaries;
(C) any acquisition or beneficial ownership by any
corporation (including without limitation an acquisition in a
transaction of the nature described in Section 2(a)(iii)) with
respect to which, immediately following such acquisition, more
than 65%, respectively, of (x) the combined voting power of
the Company's then outstanding Voting Securities and (y) the
Company's then outstanding common stock (the "Common Stock")
is then beneficially owned, directly or indirectly, by all or
substantially all of the persons who beneficially owned Voting
Securities and Common Stock, respectively, of the Company
immediately prior to such acquisition in substantially the
same proportions as their ownership of such Voting Securities
and Common Stock, as the case may be, immediately prior to
such acquisition;
(D) any acquisition of Voting Securities or Common Stock
directly from the Company;
(E) any acquisition or beneficial ownership of Voting
Securities or Common Stock by Willaim G. Smith, Marlys L.
Smith or trusts controlled by either;
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(ii) Continuing Directors shall not constitute a majority of
the members of the Board of Directors of the Company. For
purposes
of this Section 2(a)(ii), "Continuing Directors" shall mean:
(A)
individuals who, on the date hereof, are directors of the
Company,
(B) individuals elected as directors of the Company subsequent
to
the date hereof for whose election proxies shall have been
solicited
by the Board of Directors of the Company or (C) any individual
elected or appointed by the Board of Directors of the Company
to
fill vacancies on the Board of Directors of the Company caused
by
death or resignation (but not by removal) or to fill
newly-created
directorships, provided that a "Continuing Director" shall not
include an individual whose initial assumption of office occurs as
a
result of an actual or threatened election contest with respect
to
the threatened election or removal of directors (or other actual
or
threatened solicitation of proxies or consents) by or on behalf
of
any person other than the Board of Directors of the Company;
(iii) Consummation by the Company of a reorganization, merger
or consolidation of the Company or a statutory exchange of
outstanding Voting Securities of the Company, unless
immediately
following such reorganization, merger, consolidation or
exchange,
all or substantially all of the persons who were the beneficial
owners, respectively, of Voting Securities and Common Stock
immediately prior to such reorganization, merger, consolidation
or
exchange beneficially own, directly or indirectly, more than 65%
of,
respectively, (x) the combined voting power of the then
outstanding
voting securities entitled to vote generally in the election of
directors and (y) the then outstanding shares of common stock of
the
corporation resulting from such reorganization, merger,
consolidation or exchange in substantially the same proportions
as
their ownership, immediately prior to such reorganization,
merger,
consolidation or exchange, of the Voting Securities and Common
Stock, as the case may be;
(iv) (x) Complete liquidation or dissolution of the Company or
(y) the sale or other disposition of all or substantially all of
the
assets of the Company (in one or a series of transactions),
other
than to a corporation with respect to which, immediately
following
such sale or other disposition, more than 65% of, respectively,
(1)
the combined voting power of the then outstanding voting
securities
of such
corporation entitled to vote generally in the election of
directors and (2) the then outstanding shares of common stock
of
such corporation is then beneficially owned, directly or
indirectly,
by all or substantially all of the persons who were the
beneficial
owners, respectively, of the Voting Securities and Common Stock
immediately prior to such sale or other disposition in
substantially
the same proportions as their ownership,
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immediately prior to such sale or other disposition, of the
Voting
Securities and Common Stock, as the case may be.
Notwithstanding anything stated in this Section 2(a), an Event
shall not
be deemed
to occur with respect to the Executive if (x) the acquisition
or
beneficial
ownership of the 35% or greater interest referred to in Section
2(a)(i) is
by the Executive or by a group, acting in concert, that
includes
the Executive or (y) a majority of the then combined voting
power
of the
then outstanding voting securities (or voting equity interests)
of
the
surviving corporation or of any corporation (or other entity)
acquiring
all or substantially all of the assets of the Company shall,
immediately after a reorganization, merger, consolidation, exchange
or
disposition of assets referred to in Section 2(a)(iii) or 2(a)(iv),
be
beneficially owned, directly or indirectly, by the Executive or by
a
group,
acting in concert, that includes the Executive.
(b) For purposes of this Agreement, a "subsidiary" of the
Company
shall mean
any entity of which securities or other ownership interests
having
general voting power to elect a majority of the board of
directors
or other
persons performing simi
