VOTING AGREEMENT
Exhibit 2.2
EXECUTION VERSION
THIS VOTING AGREEMENT (this “Agreement”) is dated as of January 19, 2007, by and
between Swift Transportation Co., Inc., a Nevada corporation (the “Company”), and the
Persons executing this Agreement as “Stockholders” on the signature page hereto (each, a
“Stockholder” and collectively, the “Stockholders”).
RECITALS
WHEREAS, simultaneously with the execution of this Agreement, Saint Corporation, a Nevada
corporation (“Parent”), Saint Acquisition Corporation, a Nevada corporation and wholly-owned
subsidiary of Parent (“MergerCo”), and the Company have entered into an Agreement and Plan
of Merger, as it may be amended, supplemented, modified or waived from time to time (the
“Merger Agreement”), which provides, among other things, for the Merger of MergerCo with
and into the Company, upon the terms and subject to the conditions set forth therein;
WHEREAS, each Stockholder is the Beneficial Owner of, and has the right to vote and dispose of
(i) with respect to the Moyes Children’s Limited Partnership, 9,018,353 Shares and (ii) with
respect to the other Stockholders, the number of Shares as reflected on Schedule 13D/A filed on
November 17, 2006; and
WHEREAS, as an inducement to the Company entering into the Merger Agreement and incurring the
obligations therein, the Company has required that each Stockholder enter into this Agreement.
NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as follows:
I. CERTAIN DEFINITIONS
Section 1.1 Capitalized Terms. Capitalized terms used in this Agreement and not
defined herein have the meanings ascribed to such terms in the Merger Agreement.
Section 1.2 Other Definitions. For the purposes of this Agreement:
(a) “Beneficial Owner” or “Beneficial Ownership” with respect to any
securities means having “beneficial ownership” of such securities (as determined pursuant to Rule
13d-3 under the Exchange Act).
(b) “Owned Shares” has the meaning set forth in Section 2.1.
(c) “Representative” means, with respect to any particular Person, any director,
officer, employee, consultant, accountant, legal counsel, investment banker or other representative
of such Person.
(d) “Shares” has the meaning ascribed thereto in the Merger Agreement, and will also
include for purposes of this Agreement all shares or other voting securities into which Shares may
be reclassified, sub-divided, consolidated or converted and any rights and benefits
arising therefrom, including any dividends or distributions of securities which may be
declared in respect of the Shares and entitled to vote in respect of the matters contemplated by
Article II.
(e) “Transfer” means, with respect to a security, the sale, grant, assignment,
transfer, pledge, encumbrance or other disposition of such security or the Beneficial Ownership
thereof (including by operation of Law), or the entry into any Contract to effect any of the
foregoing, including, for purposes of this Agreement, the transfer or sharing of any voting power
of such security or other rights in or of such security.
(f) “Permitted Encumbrance” means bona fide pledges of Shares as collateral in
connection with third-party, commercially reasonable indebtedness, which pledges shall be released
in connection with the repayment of such indebtedness; provided, however, that any such pledges
entered into after the date hereof shall include the retention of all voting rights by Stockholder
so long as no default in the underlying indebtedness shall have been declared.
II. AGREEMENT TO VOTE
Section 2.1 Agreement to Vote.
Subject to the terms and conditions hereof, each Stockholder severally and not jointly, irrevocably
and unconditionally agrees that from and after the date hereof and until the earliest to occur of
(i) the Effective Time and (ii) the termination of the Merger Agreement in accordance with its
terms (such earlier occurrence being the “Expiration Time”), at any meeting (whether annual or
special, and at each adjourned or postponed meeting) of the Company’s stockholders, however called,
or in connection with any written consent of the Company’s stockholders (a “Stockholder
Meeting”), each Stockholder will (x) appear at such meeting or otherwise cause its Owned Shares
(as defined below) to be counted as present thereat for purposes of calculating a quorum, and
respond to each request by the Company for written consent, if any and (y) vote, or instruct to be
voted (including by written consent, if applicable), all of such Shares Beneficially Owned by such
Stockholder as of the relevant time (“Owned Shares”) (A) in favor of the adoption of the
Merger Agreement and the approval of the transactions contemplated thereby, including the Merger,
(B) in favor of the approval of any other matter that is required by applicable Law or a
Governmental Entity to be approved by the stockholders of the Company to consummate the
transactions contemplated by the Merger Agreement, including the Merger, (C) against any Takeover
Proposal, (D) against any proposal made in opposition to, or in competition or inconsistent with,
the Merger or the Merger Agreement, including the adoption thereof or the consummation thereof, (E)
against any action or agreement that may reasonably be expected to result in any condition to the
consummation of the Merger set forth in Article VI of the Merger Agreement not being fulfilled,
and (F) against any other action that may reasonably be expected to impede, interfere with, delay,
postpone or attempt to discourage the consummation of the transactions contemplated by the Merger
Agreement, including the Merger, or result in a breach of any of the covenants, representations,
warranties or other obligations or agreements of the Company, Parent or MergerCo under the Merger
Agreement, which would materially and adversely affect the Company, Parent or MergerCo or their
respective abilities to consummate the transactions contemplated by the Merger Agreement within the
time periods contemplated thereby.
- 2 -
Section 2.2 Additional Shares. Each Stockholder severally and not jointly hereby
agrees, while this Agreement is in effect, to promptly notify the Company of the number of any new
Shares with respect to which Beneficial Ownership is acquired by such Stockholder, if any, after
the date hereof and before this Agreement is terminated pursuant to Section 5.1. Any such Shares
shall automatically become subject to the terms of this Agreement as though owned by such
Stockholder as of the date hereof.
Section 2.3 Restrictions on Transfer, Etc. Except as provided for herein, as
contemplated by the Merger Agreement and the Equity Rollover Commitments with respect to the
rollover of Shares of certain Stockholders and except for Permitted Encumbrances, each Stockholder
severally and not jointly agrees, from the date hereof until this Agreement is terminated pursuant
to Section 5.1, not to (i) directly or indirectly Transfer any Owned Shares or (ii) grant any proxy
with respect to such Stockholder’s Owned Shares, deposit such Stockholder’s Owned Shares into a
voting trust, enter into a voting agreement with respect to any of such Stockholder’s Owned Shares
or otherwise restrict the ability of such Stockholder freely to exercise all voting rights with
respect thereto. Any action attempted to be taken in violation of the preceding sentence will be
null and void. Notwithstanding the foregoing, each Stockholder may (i) make Transfers of Owned
Shares for estate planning or similar purposes so long as such Stockholder retains control over the
voting and disposition of such Owned Shares for bona fide estate planning to his, her, or its
Affiliates or immediate family members, (ii) make Transfers to other Stockholders, or (iii) in the
case of the Moyes Children’s Limited Partnership, Transfers of Owned Shares to its partners or a
newly-formed qualified subchapter S trust owned by such partners; provided that as a condition to
such Transfer contemplated in clauses (i), (ii) and (iii), such Affiliate, immediate family member,
Stockholder, partner or qualified subchapter S trust shall execute an agreement that is identical
to this Agreement (except to reflect the change of the Transferee) and to the extent such
transferring Stockholder is a party to the Guarantee an agreement that is identical to the
Guarantee (except to reflect the change of the Transferee) and provided, further that the
transferring Stockholder shall remain jointly and severally liable for the breaches of any of his,
her or its Affiliates or immediate family members of the terms hereof. Each Stockholder further
agrees to authorize and request the Company to notify the Company’s transfer agent that this
Agreement places limits on the voting and transfer of the Owned Shares.
Section 2.4 Proxies. Each Stockholder will, if requested by the Company, (i) with
respect to Owned Shares for which it is the record owner, grant a proxy appointing Xxxxxx X.
Xxxxxxxxxx and Xxxxxx Xxxxx collectively, but each with full power of substitution, as such
Stockholder’s attorney-in-fact and proxy, for and in such Stockholder’s name, to be counted as
present and to vote in favor of the adoption of the Merger Agreement and the approval of the
transactions contemplated thereby, including the Merger, and (ii) with respect to Owned Shares for
which it is not the record owner, seek a “legal proxy” from the record owner to vote in favor of
the adoption of the Merger Agreement and the approval of the transactions contemplated thereby,
including the Merger. The proxy granted by each Stockholder shall be automatically revoked upon
termination of this Agreement in accordance with its terms.
- 3 -
III. REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of Stockholders. Each Stockholder,
severally and not jointly, represents and warrants to the Company as of the date of this Agreement,
as of the date of any Company Stockholders Meeting (and as of the date of any adjournment or
postponement thereof) and as of the date of the execution of any written Stockholder consent or any
proxy permitted under this Agreement or consented to by the Company, as follows:
(a) Such Stockholder has the requisite capacity and authority to execute and deliver this
Agreement and to fulfill and perform such Stockholder’s obligations hereunder. This Agreement has
been duly and validly executed and delivered by such Stockholder and constitutes a legal, valid and
binding agreement of such Stockholder enforceable against such Stockholder in accordance with its
terms.
(b) Such Stockholder is the Beneficial Owner (unless such shareholder is a trust in which case
the beneficiaries of each such trust are the Beneficial Owners), free and clear of any Liens (other
than those arising under this Agreement, the Equity Rollover Commitments and Permitted
Encumbrances) of the Owned Shares, which, as of the date hereof, are set forth below such
Stockholder’s name on the signature page hereto and, except for Permitted Encumbrances and except
as provided in this Agreement and the Equity Rollover Commitments has full and unrestricted power
to dispose of and vote all of such Stockholder’s Owned Shares without the consent or approval of,
or any other action on the part of, any other Person, and has not granted any proxy inconsistent
with this Agreement that is still effective or entered into any voting or similar agreement with
respect to, such Stockholder’s Owned Shares. The Owned Shares set forth below such Stockholder’s
name on the signature page hereto constitute all of the capital stock of the Company that is
Beneficially Owned by such Stockholder as of the date hereof, and, except for such Stockholder’s
Owned Shares and the Owned Shares owned by the other Stockholders who are parties to this Agreement
and with respect to Xxxxx Xxxxx, approximately 7,000 shares held in his personal individual
retirement account, such Stockholder and such Stockholder’s Affiliates do not Beneficially Own or
have any right to acquire (whether currently, upon lapse of time, following the satisfaction of any
conditions, upon the occurrence of any event or any combination of the foregoing), any Shares or
any securities convertible into Shares (including Stock Options).
(c) Other than the filing by such Stockholder of any reports with the SEC required by Sections
13(d) or 16(a) of the Exchange Act, none of the execution and delivery of this Agreement by such
Stockholder, the consummation by such Stockholder of the transactions contemplated hereby or
compliance by such Stockholder with any of the provisions hereof (i) requires, other than with
respect to Permitted Encumbrances, any consent or other Permit of, or filing with or notification
to, any Governmental Entity or any other Person by such Stockholder, (ii) results in a violation or
breach of, or constitutes (with or without notice or lapse of time or both) a default (or gives
rise to any third party right of termination, cancellation, material modification or acceleration)
under any of the terms, conditions or provisions of any organizational document or Contract to
which such Stockholder is a party or by which such Stockholder or any of such Stockholder’s
properties or assets (including such Stockholder’s Owned Shares) may be bound, (iii) violates any
Order or Law applicable to such Stockholder or
- 4 -
any of such Stockholder’s properties or assets (including such Stockholder’s Owned Shares), or
(iv) results in a Lien upon any of such Stockholder’s properties or assets (including such
Stockholder’s Owned Shares).
IV. ADDITIONAL COVENANTS OF THE STOCKHOLDERS AND THE COMPANY
Section 4.1 Disclosure. Each Stockholder, severally and not jointly, hereby
authorizes Parent, MergerCo and the Company to publish and disclose in any announcement or
disclosure required by the SEC, including the Company Proxy Statement and the Schedule 13E-3 such
Stockholder’s identity and ownership of the Owned Shares and the nature of such Stockholder’s
obligation under this Agreement, provided that such Stockholder is provided with a reasonable
opportunity to review and comment on such disclosure.
Section 4.2 Non-Interference; Further Assurances. Each Stockholder, severally and not
jointly, agrees that prior to the termination of this Agreement, such Stockholder shall not take
any action that would make any representation or warranty of such Stockholder contained herein
untrue or incorrect or have the effect of preventing, impeding, interfering with or adversely
affecting the performance by such Stockholder of its obligations under this Agreement. Each
Stockholder (for and on behalf of such Stockholder only) agrees, without further consideration, to
execute and deliver such additional documents and to take such further actions as necessary or
reasonably requested by the Company to confirm and assure the rights and obligations set forth in
this Agreement or to consummate the transactions contemplated by this Agreement.
Section 4.3 Standstill. Each Stockholder, severally and not jointly, agrees that if
the Merger Agreement is terminated in any circumstance where a Termination Fee (as defined in the
Merger Agreement) is required to be paid by Parent to the Company, then beginning upon the
termination of the Merger Agreement until twelve months following such termination (or, with
respect to clause (b) below, the later of twelve months following such termination and June 30,
2008), except as the Company’s Board of Directors shall otherwise specifically request in writing
in advance, such Stockholder will not (and such Stockholder will not assist or form a group within
the meaning of Section 13(d)(3) of the Exchange Act, act in concert or participate with or
encourage other persons to) directly or indirectly, (a) acquire or offer, seek, propose or agree to
acquire, by means of a purchase, tender or exchange offer, merger, business combination or in any
other manner, beneficial ownership of any securities, or assets of the Company, including, without
limitation, rights or options to acquire such ownership, (b) submit a notice of nomination of
directors pursuant to Article III, Section 14 of the bylaws of the Company to nominate one or more
directors to the Company’s board, (c) conduct a solicitation of proxies (as such terms are defined
in Rule 14a-1 of Regulation 14A promulgated pursuant to Section 14 of the Exchange Act,
disregarding clause (iv) of Rule 14a-1(l)(2) and including any otherwise exempt solicitation
pursuant to Rule 14a-2(b)), or participate in any election contest, or (d) make a request to amend
or waive this provision or any other provision of this paragraph which requires public disclosure;
provided, however, the Stockholders shall not be prohibited from taking such actions covered by
clause (a) above,
(i) if the Company or any of its Subsidiaries, or its or its Subsidiaries’ Representatives
(A) participate or engage in any substantive discussions or negotiations with, or furnish or
disclose any non-public information relating to the Company or any of its Subsidiaries to,
- 5 -
or otherwise knowingly cooperate with or knowingly assist any Person in connection with a
Takeover Proposal, or (B) enter into any confidentiality agreement, letter of intent,
agreement in principle, merger agreement, acquisition agreement, option agreement or other
similar agreement relating to a Takeover Proposal; or
(ii) if the Company’s Board of Directors receives any Takeover Proposal or if any Takeover
Proposal is publicly announced.
Section 4.4 Annual Meeting. The Company agrees that (i) it will not hold, give notice
of, or disclose a date for, its 2007 annual meeting of stockholders for the purpose of electing
directors (“2007 Annual Meeting”) while the Merger Agreement is in effect, (ii) if the Merger
Agreement is terminated, it will not hold the 2007 Annual Meeting prior to June 30, 2007, and (iii)
it will not modify or amend Article III, Section 14 of the bylaws of the Company. The Stockholders
(severally and not jointly with any other party hereto), Parent and MergerCo agree that, while the
Merger Agreement is in effect, none of such Persons will take any of the actions prohibited by
Section 4.3(b) hereof.
V. TERMINATION
Section 5.1 Termination. Subject to Section 5.2, this Agreement (i) may be terminated
by the mutual written consent of the parties hereto or (ii) shall terminate without further action
at the Expiration Time, provided however, that Section 4.4 shall survive such termination and
Section 4.3 shall survive such termination if the Merger Agreement is terminated in any
circumstance where a Termination Fee (as defined in the Merger Agreement) is required to be paid by
Parent to the Company.
Section 5.2 Effect of Termination. Upon termination of this Agreement, the rights and
obligations of all the parties will terminate and become void without further action by any party
except for the provisions of this Sections 4.3, 4.4 and 5.2 and Article VI, which will survive such
termination. For the avoidance of doubt, the termination of this Agreement shall not relieve any
party of liability for any willful breach of this Agreement prior to the time of termination.
VI. GENERAL
Section 6.1 Notices. Any notice, request, instruction or other communication under
this Agreement will be in writing and delivered by hand or overnight courier service or by
facsimile, (i) if to a Stockholder, to the address set forth below such Stockholder’s name on the
signature page hereto, and (ii) if to the Company, in accordance with Section 8.7 of the Merger
Agreement, or to such other Persons, addresses or facsimile numbers as may be designated in writing
by the Person entitled to receive such communication as provided above. Each such communication
will be effective (A) if delivered by hand or overnight courier service, when such delivery is made
at the address specified in this Section 6.1, or (B) if delivered by facsimile, when such facsimile
is transmitted to the facsimile number specified in this Section 6.1 and appropriate confirmation
is received.
- 6 -
Section 6.2 No Third Party Beneficiaries, Etc. This Agreement is not intended to
confer any rights or remedies upon any Person other than the parties to this Agreement, or to make
any Stockholder responsible for any of the Company’s or MergerCo’s obligations under the Merger
Agreement.
Section 6.3 Governing Law. This Agreement will be governed by, and construed in
accordance with, the Laws of the State of New York (other than with respect to proxies and other
matters governed by Nevada Revised Statutes with respect to which Nevada Revised Statutes shall
apply), without giving effect to any applicable principles of conflict of laws that would cause the
Laws of another State to otherwise govern this Agreement.
Section 6.4 Severability. The provisions of this Agreement are severable and the
invalidity or unenforceability of any provision will not affect the validity or enforceability of
the other provisions of this Agreement. If any provision of this Agreement, or the application of
that provision to any Person or any circumstance, is invalid or unenforceable, (i) a suitable and
equitable provision will be substituted for that provision in order to carry out, so far as may be
valid and enforceable, the intent and purpose of the invalid or unenforceable provision and (ii)
the remainder of this Agreement and the application of that provision to other Persons or
circumstances will not be affected by such invalidity or unenforceability, nor will such invalidity
or unenforceability affect the validity or enforceability of that provision, or the application of
that provision, in any other jurisdiction.
Section 6.5 Assignment. Neither this Agreement nor any right, interest or obligation
hereunder may be assigned by any party hereto, in whole or part (whether by operation of Law or
otherwise), without the prior written consent of the other parties hereto and any attempt to do so
will be null and void.
Section 6.6 Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and permitted assigns.
Section 6.7 Interpretation. The headings in this Agreement are for reference only and
do not affect the meaning or interpretation of this Agreement. Definitions apply equally to both
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
includes the corresponding masculine, feminine and neuter forms. All references in this Agreement
to Articles and Sections refer to Articles and Sections of this Agreement unless the context
requires otherwise. The words “include,” “includes” and “including” are not limiting and will be
deemed to be followed by the phrase “without limitation.” The phrases “herein,” “hereof,”
“hereunder” and words of similar import shall be deemed to refer to this Agreement as a whole and
not to any particular provision of this Agreement. The word “or” shall be inclusive and not
exclusive unless the context requires otherwise. Unless the context requires otherwise, any
agreements, documents, instruments or Laws defined or referred to in this Agreement will be deemed
to mean or refer to such agreements, documents, instruments or Laws as from time to time amended,
modified or supplemented, including (i) in the case of agreements, documents or instruments, by
waiver or consent and (ii) in the case of Laws, by succession of comparable successor statutes.
All references in this Agreement to any particular Law will be deemed to refer also to any rules
and regulations promulgated under that Law. References to a Person will refer to its predecessors
and successors and permitted assigns.
- 7 -
Section 6.8 Amendments. This Agreement may not be amended except by written agreement
signed by all of the parties to this Agreement.
Section 6.9 Extension; Waiver. At any time prior to the Effective Time, the Company,
on the one hand, and the Stockholders, on the other hand, may (i) extend the time for the
performance of any of the obligations of the other party, (ii) waive any inaccuracies in the
representations and warranties of the other party contained in this Agreement or in any document
delivered under this Agreement or (iii) unless prohibited by applicable Laws, waive compliance with
any of the covenants or conditions contained in this Agreement. Any agreement on the part of a
party to any extension or waiver will be valid only if set forth in an instrument in writing signed
by such party. The failure of any party to assert any of its rights under this Agreement or
otherwise will not constitute a waiver of such rights.
Section 6.10 Fees and Expenses. Except as expressly provided in this Agreement, each
party is responsible for its own fees and expenses (including the fees and expenses of financial
consultants, investment bankers, accountants and counsel) in connection with the entry into of this
Agreement and the consummation of the transactions contemplated hereby.
Section 6.11 Entire Agreement. This Agreement constitutes the entire agreement and
supersedes all other prior agreements, understandings, representations and warranties, both written
and oral, among the parties to this Agreement with respect to the subject matter of this Agreement.
Section 6.12 Rules of Construction. The parties to this Agreement have been
represented by counsel during the negotiation and execution of this Agreement and waive the
application of any Laws or rule of construction providing that ambiguities in any agreement or
other document will be construed against the party drafting such agreement or other document.
Section 6.13 Remedies Cumulative. Except as otherwise provided in this Agreement, any
and all remedies expressly conferred upon a party to this Agreement will be cumulative with, and
not exclusive of, any other remedy contained in this Agreement, at law or in equity. The exercise
by a party to this Agreement of any one remedy will not preclude the exercise by it of any other
remedy.
Section 6.14 Counterparts; Effectiveness; Execution. This Agreement may be executed
in any number of counterparts, all of which are one and the same agreement. This Agreement will
become effective and binding upon each Stockholder when executed by such Stockholder and the
Company. This Agreement may be executed by facsimile signature by any party and such signature is
deemed binding for all purposes hereof, without delivery of an original signature being thereafter
required.
Section 6.15 Specific Performance. The parties to this Agreement agree that
irreparable damage would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It is accordingly
agreed that the parties to this Agreement will be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and
- 8 -
provisions of this Agreement in any court of the United States or any state having
jurisdiction, this being in addition to any other remedy to which they are entitled at law or in
equity.
Section 6.16 Submission to Jurisdiction. Each of the parties hereto irrevocably
agrees that any legal action or proceeding with respect to this Agreement and the rights and
obligations arising hereunder, or for recognition and enforcement of any judgment in respect of
this Agreement and the rights and obligations arising hereunder brought by the other party hereto
or its successors or assigns shall be brought and determined exclusively in the State and Federal
courts located in the Borough of Manhattan, in the City of New York. Each of the parties hereto
agrees that mailing of process or other papers in connection with any such action or proceeding in
the manner provided in Section 6.1 or in such other manner as may be permitted by applicable Laws,
will be valid and sufficient service thereof. Each of the parties hereto hereby irrevocably
submits with regard to any such action or proceeding for itself and in respect of its property,
generally and unconditionally, to the personal jurisdiction of the aforesaid courts and agrees that
it will not bring any action relating to this Agreement or any of the transactions contemplated by
this Agreement in any court or tribunal other than the aforesaid courts. Each of the parties
hereto hereby irrevocably waives, and agrees not to assert, by way of motion, as a defense,
counterclaim or otherwise, in any action or proceeding with respect to this Agreement and the
rights and obligations arising hereunder, or for recognition and enforcement of any judgment in
respect of this Agreement and the rights and obligations arising hereunder (i) any claim that it is
not personally subject to the jurisdiction of the above named courts for any reason other than the
failure to serve process in accordance with this Section 6.16, (ii) any claim that it or its
property is exempt or immune from jurisdiction of any such court or from any legal process
commenced in such courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise) and (iii) to the
fullest extent permitted by the applicable Law, any claim that (x) the suit, action or proceeding
in such court is brought in an inconvenient forum, (y) the venue of such suit, action or proceeding
is improper or (z) this Agreement, or the subject matter hereof, may not be enforced in or by such
courts.
Section 6.17 Waiver of Jury Trial. Each party acknowledges and agrees that any
controversy which may arise under this Agreement is likely to involve complicated and difficult
issues and, therefore, each such party irrevocably and unconditionally waives any right it may have
to a trial by jury in respect of any Legal Action arising out of or relating to this Agreement or
the transactions contemplated by this Agreement. Each party to this Agreement certifies and
acknowledges that (i) no Representative of any other party has represented, expressly or otherwise,
that such other party would not seek to enforce the foregoing waiver in the event of a Legal
Action, (ii) such party has considered the implications of this waiver, (iii) such party makes this
waiver voluntarily and (iv) such party has been induced to enter into this Agreement by, among
other things, the mutual waivers and certifications in this Section 6.17.
Section 6.18 Action in Stockholder Capacity Only. The parties acknowledge that this
Agreement is entered into by each Stockholder solely in such Stockholder’s capacity as the
Beneficial Owner of such Stockholder’s Owned Shares and nothing in this Agreement shall way
restricts or limits any action taken by such Stockholder in his capacity as a director or officer
of the Company (but solely in such capacities and not on his own behalf) and the taking of any
actions solely in his or her capacity as an officer or director of the Company and not in violation
- 9 -
of the Merger Agreement will not be deemed to constitute a breach of this Agreement,
regardless of the circumstances related thereto.
[Remainder of page intentionally left blank. Signature Page Follows.]
- 10 -
IN WITNESS WHEREOF, each party hereto has caused this Agreement to be signed as of the date
first above written.
| [SWIFT TRANSPORTATION CO., INC.] |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| [Xxxxx Xxxxx] |
||||
| By: | ||||
| Xxxxx Xxxxx | ||||
| [Xxxxxx Xxxxx] |
||||
| By: | ||||
| Xxxxxx Xxxxx | ||||
| [THE XXXXX AND XXXXXX XXXXX FAMILY TRUST DATED 12/11/87] |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Signature Page to Voting and Support Agreement]
| [SME INDUSTRIES, INC.] |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| [VJM INVESTMENTS, LLC] |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| [MOYES CHILDREN’S LIMITED PARTNERSHIP] |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Signature Page to Voting and Support Agreement]
