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EXHIBIT 10.3
SMITHWAY MOTOR XPRESS CORP.
2005 OMNIBUS STOCK PLAN
NON-STATUTORY STOCK OPTION AGREEMENT
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(EMPLOYEE)
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Name of Optionee:
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No. of Shares Covered:
Date of Grant:
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Exercise Price Per Share:
Expiration Date:
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Exercise Schedule (Cumulative):
Date(s) of
No. of Shares as to Which
Exercisability
Option Becomes Exercisable
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This is a
Non-Statutory Stock Option Agreement (the "Agreement") between
Smithway Motor Xpress Corp., a Nevada
corporation (the "Company"), and the
optionee identified above (the "Optionee")
effective as of the date of grant
specified above.
RECITALS
WHEREAS,
the Company maintains the Smithway Motor Xpress Corp. 2005
Omnibus Stock Plan (the "Plan"); and
WHEREAS,
pursuant to the Plan, the Board of Directors of the Company
(the
"Board") or a committee of two or more
directors of the Company (the
"Committee") appointed by the Board
administers the Plan and has the authority
to determine the awards to be granted under
the Plan (if the Board has not
appointed a committee to administer the
Plan, then the Board shall constitute
the Committee); and
WHEREAS,
the Committee has determined that the Optionee is eligible to
receive an award under the Plan in the form
of a non-statutory stock option (the
"Option");
NOW,
THEREFORE, the Company hereby grants this Option to the
Optionee
under the terms and conditions as
follows.
TERMS AND CONDITIONS*
1. GRANT. The Optionee is
granted this Option to purchase the number of
Shares
specified at the beginning of this Agreement.
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* Unless the
context indicates otherwise, terms that are not defined in this
Agreement shall have the meaning set forth
in the Plan as it currently exists or
as it is amended in the future.
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2. EXERCISE PRICE. The
price to the Optionee of each Share subject to this
Option
shall be the exercise price specified at the beginning of this
Agreement.
3. NON-STATUTORY STOCK
OPTION. This Option is not intended to be an
"incentive
stock option" within the meaning of Section 422 of the Internal
Revenue
Code of 1986, as amended (the "Code").
4. EXERCISE SCHEDULE.
This Option shall vest and become exercisable as to the
number of Shares and
on the dates specified in the exercise schedule at
the
beginning of this Agreement. The exercise schedule shall be
cumulative; thus, to this extent this Option has not already
been
exercised
and has not expired, terminated or been cancelled, the Optionee
or the
person otherwise entitled to exercise this Option as provided
herein may
at any time, and from time to time, purchase all or any portion
of the
Shares then purchasable under the exercise schedule.
This
Option may also be exercised in full (notwithstanding the
exercise
schedule)
under the circumstances described in Section 8 of this
Agreement
if it has
not expired prior thereto.
5. EXPIRATION. This
Option shall expire at 5:00 p.m. Central Time on the
earliest
of:
(a)
The expiration
date specified at the beginning of this Agreement
(which date shall not be later than ten years after the date of
grant);
(b)
The expiration
of the period after the termination of employment of
the Optionee within which the Option can be exercised (as
specified
in Section 7 of this Agreement);
(c)
Termination of
the Optionee's employment for Cause. "Cause" shall be
deemed to exist upon (i) an act or acts of dishonesty undertaken
by
Optionee and intended to result in substantial gain or personal
enrichment of Optionee at the expense of the Company; (ii)
unlawful
conduct or gross misconduct that is willful and deliberate on
Optionee's part and that, in either event, is materially
injurious
to the Company; (iii) the conviction of Optionee of a felony;
or
(iv) material breach by Optionee of any terms and conditions of
any
employment or non-competition/non-solicitation agreement between
the
Optionee and the Company not caused by the Company, which breach
has
not been cured by Optionee within ten days after written notice
thereof to Optionee from the Company; or
(d)
The date (if
any) fixed for cancellation pursuant to Section 17 of
the Plan.
In no
event may anyone exercise this Option, in whole or in part, after
it
has expired,
notwithstanding any other provision of this Agreement.
6. PROCEDURE TO EXERCISE
OPTION.
Notice of
Exercise. This Option may be exercised by delivering written
notice of
exercise to the Company at the principal executive office of
the
Company,
to the attention of the Company's Treasurer, in the form
attached
to this
Agreement. The notice shall state the number of Shares to be
purchased,
and shall be signed by the person exercising this Option. If
the person
exercising this Option is not the Optionee, he/she also must
submit
appropriate proof of his/her right to exercise this Option.
Tender of
Payment. Upon giving notice of any exercise hereunder, the
Optionee
shall provide for payment of the purchase price of the Shares
being
purchased through one or a combination of the following
methods:
(a)
Cash (including
check, bank draft or money order);
(b)
To the extent
permitted by law, through a broker-assisted cashless
exercise in which the Optionee simultaneously exercises the
Option
and sells all or a portion of the Shares
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thereby acquired pursuant to a brokerage or similar relationship
and
uses the proceeds from such sale to pay the purchase price of
such
Shares;
(c)
By delivery to
the Company of unencumbered Shares having an
aggregate Fair Market Value on the date of exercise equal to
the
purchase price of such Shares; or
(d)
By authorizing
the Company to retain, from the total number of
Shares as to which the Option is exercised, that number of
Shares
having a Fair Market Value on the date of exercise equal to the
purchase price for the total number of Shares as to which the
Option
is exercised.
Notwithstanding the foregoing, the Optionee shall not be permitted
to pay
any
portion of the purchase price with Shares, or by authorizing
the
Company to
retain Shares upon exercise of the Option, if the Committee, in
its sole
discretion, determines that payment in such manner is
undesirable.
Delivery
of Certificates. As soon as practicable after the Company
receives
the notice and purchase price provided for above, it shall
deliver to
the person exercising this Option, in the name of such person,
a
certificate or certificates representing the Shares being
purchased. The
Company shall pay any
original issue or transfer taxes with respect to the
issue or
transfer of the Shares and all fees and expenses incurred by it
in
connection therewith. All Shares so issued shall be fully paid
and
nonassessable. Notwithstanding anything to the contrary in this
Agreement,
no
certificate for Shares distributable under the Plan shall be issued
and
delivered
unless the issuance of such certificate complies with all
applicable
legal requirements including, without limitation, compliance
with the
provisions of applicable state securities laws, the Securities
Act of
1933, as amended (the "Securities Act") and the Exchange Act.
7. EMPLOYMENT
REQUIREMENT. This Option may be exercised only while the
Optionee
remains employed with the Company or a parent or subsidiary
thereof,
and only if the Optionee has been continuously so employed
since
the date
of this Agreement; provided that:
(a)
This Option may
be exercised for three months following the day of
the Optionee's employment by the Company ceases if such cessation
of
employment is for a reason other than death or disability, but
only
to the extent that it was exercisable immediately prior to
termination of employment, provided that if termination of the
Optionee's employment shall have been for Cause, the Option
shall
expire, and all rights to purchase Shares hereunder shall
terminate,
immediately upon such termination.
(b)
This Option may
be exercised within one year after the Optionee's
employment by the Company ceases if such cessation of employment
is
because of death or disability of the Optionee, but only to the
extent it was exercisable immediately prior to the cessation of
employment.
(c)
If the
Optionee's employment terminates after a declaration made
pursuant to Section 17 of the Plan in connection with a
Fundamental
Change, the Option may be exercised at any time permitted by
such
declaration.
Notwithstanding the above, the Option may not be exercised after it
has
expired.
8. ACCELERATION OF
VESTING.
In the
event of a Fundamenta
