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EXHIBIT 10.4
SMITHWAY MOTOR XPRESS CORP.
2005 OMNIBUS STOCK PLAN
NON-STATUTORY STOCK OPTION AGREEMENT
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(DIRECTOR)
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Name of Optionee:
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No. of Shares Covered: 3,000
Date of Grant:
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Exercise Price Per Share:
Expiration Date:
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Exercise Schedule (Cumulative): This Option
shall vest as to all of the Shares
subject to this Option on the date of the
next Annual Meeting of Stockholders
following the Date of Grant, immediately
prior to such meeting.
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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.
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").
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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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4. EXERCISE SCHEDULE.
This Option shall vest and become exercisable as to all
of the
Shares one year from the Date of Grant specified at the
beginning
of this
Agreement; provided that that Optionee is serving as a director
of
the
Company on such date. 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 death of the Optionee within
which the Option can be exercised (as specified in Section 7 of
this
Agreement); or
(c)
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 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.
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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. DEATH. This Option may
be exercised only while the Optionee remains alive;
provided
that this Option may be exercised within one year after the
Optionee's
death, but only to the extent it was exercisable immediately
prior to
the Optionee's death. Notwithstanding the preceding sentence,
the
Option may
not be exercised after it has expired.
8. ACCELERATION OF
VESTING.
In the
event of a Fundamental Change the Committee shall:
(a)
if the
Fundamental Change is a merger or consolidation or statutory
share exchange, make appropriate provision for the protection
of
this Option by the substitution for this Option of options or
voting
common stock of the corporation surviving any merger or
consolidation or, if appropriate, the parent corporation of the
Company or such surviving corporation; or
(b)
at least ten
days before the occurrence of the Fundamental Change,
declare, and provide written notice to the Optionee of the
declaration, that this Option, whether or not then exercisable,
shall be canceled at the time of, or immediately before the
occurrence of, the Fundamental Change (unless it shall have
been
exercised prior to the occurrence of the Fundamental Change).
In
connection with any such declaration, the Committee may, but
shall
not be obligated to, cause payment to be made to the Optionee
of
cash equal to, for each Share covered by the canceled Option,
