STOCKHOLDER PROTECTION RIGHTS AGREEMENT dated as of July 18, 2006 between SWIFT TRANSPORTATION CO., INC. and MELLON INVESTOR SERVICES LLC, as Rights Agent
EXHIBIT
1
dated as of
July 18, 2006
between
SWIFT TRANSPORTATION CO., INC.
and
MELLON INVESTOR XXXXXXXX XXX,
as Rights Agent
Table of Contents
| Page | ||||||
| ARTICLE I | ||||||
| DEFINITIONS | ||||||
1.1
|
Definitions | 2 | ||||
| ARTICLE II | ||||||
| THE RIGHTS | ||||||
2.1
|
Summary of Rights | 14 | ||||
2.2
|
Legend on Common Stock Certificates | 15 | ||||
2.3
|
Exercise of Rights; Separation of Rights | 16 | ||||
2.4
|
Adjustments to Exercise Price; Number of Rights | 19 | ||||
2.5
|
Date on Which Exercise is Effective | 21 | ||||
2.6
|
Execution, Authentication, Delivery and Dating of Rights Certificates | 21 | ||||
2.7
|
Registration, Registration of Transfer and Exchange | 22 | ||||
2.8
|
Mutilated, Destroyed, Lost and Stolen Rights Certificates | 23 | ||||
2.9
|
Persons Deemed Owners | 24 | ||||
2.10
|
Delivery and Cancellation of Certificates | 25 | ||||
2.11
|
Agreement of Rights Holders | 25 | ||||
| ARTICLE III | ||||||
| ADJUSTMENTS TO THE RIGHTS IN THE EVENT OF CERTAIN TRANSACTIONS | ||||||
3.1
|
Flip-in | 26 | ||||
3.2
|
Flip-over | 30 | ||||
| ARTICLE IV | ||||||
| THE RIGHTS AGENT | ||||||
4.1
|
General | 31 | ||||
4.2
|
Merger or Consolidation or Change of Name of Rights Agent | 32 | ||||
4.3
|
Duties of Rights Agent | 33 | ||||
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| Page | ||||||
4.4
|
Change of Rights Agent | 35 | ||||
| ARTICLE V | ||||||
| MISCELLANEOUS | ||||||
5.1
|
Redemption | 37 | ||||
5.2
|
Expiration | 39 | ||||
5.3
|
Issuance of New Rights Certificates | 40 | ||||
5.4
|
Supplements and Amendments | 41 | ||||
5.5
|
Fractional Shares | 41 | ||||
5.6
|
Rights of Action | 41 | ||||
5.7
|
Holder of Rights Not Deemed a Stockholder | 42 | ||||
5.8
|
Notice of Proposed Actions | 42 | ||||
5.9
|
Notices | 43 | ||||
5.10
|
Suspension of Exercisability | 44 | ||||
5.11
|
Costs of Enforcement | 44 | ||||
5.12
|
Successors | 44 | ||||
5.13
|
Benefits of this Agreement | 44 | ||||
5.14
|
Determination and Actions by the Board of Directors, etc | 45 | ||||
5.15
|
Descriptive Headings; Section References | 45 | ||||
5.16
|
GOVERNING LAW | 45 | ||||
5.17
|
Counterparts | 46 | ||||
5.18
|
Severability | 46 | ||||
| EXHIBITS |
||
Exhibit A
|
Form of Rights Certificate (Together with Form of Election to Exercise) | |
Exhibit B
|
Form of Certificate of Designation and Terms of Participating Preferred Stock | |
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STOCKHOLDER PROTECTION RIGHTS AGREEMENT (as amended from time to time, this “Agreement”),
dated as of July 18, 2006, between Swift Transportation Co., Inc., a Nevada corporation (the
“Company”), and Mellon Investor Services LLC, as Rights Agent (the “Rights Agent”, which term shall
include any successor Rights Agent hereunder).
WITNESSETH:
WHEREAS, the Board of Directors of the Company has (a) authorized and declared a dividend of
one right (“Right”) in respect of each share of Common Stock (as hereinafter defined) held of
record as of the Close of Business (as hereinafter defined) on July 31, 2006 (the “Record Time”)
and (b) as provided in Section 2.4, authorized the issuance of one Right in respect of each share
of Common Stock issued after the Record Time and prior to the Separation Time (as hereinafter
defined) and, to the extent provided in Section 5.3, each share of Common Stock issued after the
Separation Time;
WHEREAS, subject to the terms and conditions hereof, each Right entitles the holder thereof,
after the Separation Time, to purchase securities or assets of the Company (or, in certain cases,
securities of certain other entities) pursuant to the terms and subject to the conditions set forth
herein; and
WHEREAS, the Company desires to appoint the Rights Agent to act on behalf of the Company, and
the Rights Agent is willing so to act, in connection with the issuance, transfer, exchange and
replacement of Rights Certificates (as hereinafter defined), the exercise of Rights and other
matters referred to herein;
NOW THEREFORE, in consideration of the premises and the respective agreements set forth
herein, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. For purposes of this Agreement, the following terms have the
meanings indicated:
“Acquiring Person” shall mean any Person who is or becomes the Beneficial Owner of 20% or more
of the outstanding shares of Common Stock; provided, however, that the term
“Acquiring Person” shall not include any Person (i) who is the Beneficial Owner of 20% or more of
the outstanding shares of Common Stock on the date of this Agreement and who has continuously been
since the date of this Agreement the Beneficial Owner of 20% or more of the outstanding shares of
Common Stock until such time hereafter as such Person shall become the Beneficial Owner (other than
by means of a stock dividend or stock split) of an additional .01% of the outstanding shares of
Common Stock, (ii) who shall become the Beneficial Owner of 20% or more of the outstanding shares
of Common Stock solely as a result of an acquisition by the Company of shares of Common Stock until
such time thereafter as such Person shall become the Beneficial Owner (other than by means of a
stock dividend or stock split of an additional .01% of the outstanding shares of Common Stock while
such Person is or as a result of which such Person becomes the Beneficial Owner of 20% or more of
the outstanding shares of Common Stock, (iii) who becomes the Beneficial Owner of 20% or more of
the outstanding shares of Common Stock but who acquired Beneficial Ownership of shares of Common
Stock without any plan or intention to seek or affect control of the Company, if such Person
promptly divests, or promptly enters into an agreement with, and satisfactory to, the Company, in
its sole discretion, to divest, and subsequently divests in accordance with the terms of such
agreement (without exercising or retaining any power, including voting power, with respect to such
shares), sufficient shares of Common Stock (or securities convertible into, exchangeable into or
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exercisable for Common Stock) so that such Person ceases to be the Beneficial Owner of 20% or
more of the outstanding shares of Common Stock or (iv) who Beneficially Owns shares of Common Stock
consisting solely of one or more of (A) shares of Common Stock Beneficially Owned pursuant to the
grant or exercise of an option granted to such Person (an “Option Holder”) by the Company in
connection with an agreement to merge with, or acquire, the Company entered into prior to a Flip-in
Date, (B) shares of Common Stock (or securities convertible into, exchangeable into or exercisable
for Common Stock) Beneficially Owned by such Option Holder or its Affiliates or Associates at the
time of grant of such option and (C) shares of Common Stock (or securities convertible into,
exchangeable into or exercisable for Common Stock) acquired by Affiliates or Associates of such
Option Holder after the time of such grant which, in the aggregate, amount to less than 1% of the
outstanding shares of Common Stock. In addition, the Company, any Subsidiary of the Company and
any employee stock ownership or other employee benefit plan of the Company or a Subsidiary of the
Company (or any entity or trustee holding shares of Common Stock for or pursuant to the terms of
any such plan or for the purpose of funding any such plan or funding other employee benefits for
employees of the Company or of any Subsidiary of the Company) shall not be an Acquiring Person.
“Affiliate” and “Associate” shall have the respective meanings ascribed to such terms in Rule
12b-2 under the Exchange Act, as such Rule is in effect on the date of this Agreement.
“Agreement” shall have the meaning set forth in the Preamble.
A Person shall be deemed the “Beneficial Owner”, and to have “Beneficial Ownership” of, and to
“Beneficially Own”, any securities as to which such Person or any of such
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Person’s Affiliates or Associates is or may be deemed to be the beneficial owner of pursuant
to Rule 13d-3 and 13d-5 under the Exchange Act, as such Rules are in effect on the date of this
Agreement, as well as any securities as to which such Person or any of such Person’s Affiliates or
Associates has the right to become Beneficial Owner (whether such right is exercisable immediately
or only after the passage of time or the occurrence of conditions) pursuant to any agreement,
arrangement or understanding (other than customary agreements with and between underwriters and
selling group members with respect to a bona fide public offering of securities), or upon the
exercise of conversion rights, exchange rights, rights (other than the Rights), warrants or
options, or otherwise; provided, however, that a Person shall not be deemed the
“Beneficial Owner”, or to have “Beneficial Ownership” of, or to “Beneficially Own”, any security
(i) solely because such security has been tendered pursuant to a tender or exchange offer made by
such Person or any of such Person’s Affiliates or Associates until such tendered security is
accepted for payment or exchange or (ii) solely because such Person or any of such Person’s
Affiliates or Associates has or shares the power to vote or direct the voting of such security
pursuant to a revocable proxy or consent given in response to a public proxy or consent
solicitation made to more than ten holders of shares of a class of stock of the Company registered
under Section 12 of the Exchange Act and pursuant to, and in accordance with, the applicable rules
and regulations under the Exchange Act, except if such power (or the arrangements relating thereto)
is then reportable under Item 6 of Schedule 13D under the Exchange Act (or any similar provision of
a comparable or successor statement). For purposes of this Agreement, in determining the
percentage of the outstanding shares of Common Stock with respect to which a Person is the
Beneficial Owner, all shares as to which such Person is deemed the Beneficial Owner shall be deemed
outstanding.
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“Business Day” shall mean any day other than a Saturday, Sunday or a day on which banking
institutions in Phoenix, Arizona, the State of New York or the State of New Jersery are generally
authorized or obligated by law or executive order to close.
“Close of Business” on any given date shall mean 5:00 p.m. New Jersey time on such date or, if
such date is not a Business Day, 5:00 p.m. New Jersey time on the next succeeding Business Day.
“Common Stock” shall mean the shares of Common Stock, par value $0.001 per share, of the
Company.
“Company” shall have the meaning set forth in the preamble.
“Election to Exercise” shall have the meaning set forth in Section 2.3(d).
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
“Exchange Ratio” shall have the meaning set forth in Section 3.1(c).
“Exchange Time” shall mean the time at which the right to exercise the Rights shall terminate
pursuant to Section 3.1(c).
“Exemption Date” shall have the meaning set forth in Section 5.1(c).
“Exercise Price” shall mean, as of any date, the price at which a holder may purchase the
securities issuable upon exercise of one whole Right. Until adjustment thereof in accordance with
the terms hereof, the Exercise Price shall equal $150.
“Expansion Factor” shall have the meaning set forth in Section 2.4(a).
“Expiration Time” shall mean the earliest of (i) the Exchange Time, (ii) the Redemption Time
and (iii) the Close of Business on the third anniversary of the date of this Agreement.
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“Flip-in Date” shall mean the tenth business day after any Stock Acquisition Date or such
earlier or later date and time as the Board of Directors of the Company may from time to time fix
by resolution adopted prior to the Flip-in Date that would otherwise have occurred.
“Flip-over Entity,” for purposes of Section 3.2, shall mean (i) in the case of a Flip-over
Transaction or Event described in clause (i) of the definition thereof, the Person issuing any
securities into which shares of Common Stock are being converted or exchanged and, if no such
securities are being issued, the other Person that is a party to such Flip-over Transaction or
Event and (ii) in the case of a Flip-over Transaction or Event referred to in clause (ii) of the
definition thereof, the Person receiving the greatest portion of the (A) assets or, if (A) is not
readily determinable, (B) operating income or cash flow being transferred in such Flip-over
Transaction or Event, provided in all cases if such Person is a Subsidiary of another Person, the
ultimate parent entity of such Person shall be the Flip-over Entity.
“Flip-over Stock” shall mean the capital stock (or similar equity interest) with the greatest
voting power in respect of the election of directors (or other persons similarly responsible for
the direction of the business and affairs) of the Flip-over Entity.
“Flip-over Transaction or Event” shall mean a transaction or series of transactions, on or
after a Flip-in Date, in which, directly or indirectly, (i) the Company shall consolidate or merge
or participate in a statutory share exchange with any other Person if, at the time of consummation
of the consolidation, merger or statutory share exchange or at the time the Company enters into any
agreement with respect to any such consolidation, merger or statutory share exchange, the Acquiring
Person is the Beneficial Owner of 90% or more of the outstanding shares of Common Stock or controls
the Board of Directors of the Company and either (A) any term of or arrangement concerning the
treatment of shares of capital stock in such consolidation,
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merger or statutory share exchange relating to the Acquiring Person is not identical to the
terms and arrangements relating to other holders of the Common Stock or (B) the Person with whom
the transaction or series of transactions occurs is the Acquiring Person or an Affiliate or
Associate of the Acquiring Person or (ii) the Company shall sell or otherwise transfer (or one or
more of its Subsidiaries shall sell or otherwise transfer) assets (A) aggregating more than 50% of
the assets (measured by either book value or fair market value) or (B) generating more than 50% of
the operating income or cash flow, of the Company and its Subsidiaries (taken as a whole) to any
Person (other than the Company or one or more of its wholly owned Subsidiaries) or to two or more
such Persons which are Affiliates or Associates or are otherwise acting in concert, if, at the time
of the entry by the Company (or any such Subsidiary) into an agreement with respect to such sale or
transfer of assets, the Acquiring Person or any of its Affiliates or Associates controls the Board
of Directors of the Company. For purposes of the foregoing description, the term “Acquiring
Person” shall include any Acquiring Person and its Affiliates and Associates, counted together as a
single Person. An Acquiring Person shall be deemed to control the Company’s Board of Directors
when, on or following a Stock Acquisition Date, the persons who were directors of the Company (or
persons nominated and/or appointed as directors by vote of a majority of such persons) before the
Stock Acquisition Date shall cease to constitute a majority of the Company’s Board of Directors.
“Market Price” per share of any securities on any date shall mean the average of the daily
closing prices per share of such securities (determined as described below) on each of the 20
consecutive Trading Days through and including the Trading Day immediately preceding such date;
provided, however, that if any event described in Section 2.4, or any analogous
event, shall have caused the closing prices used to determine the Market Price on any Trading Days
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during such period of 20 Trading Days not to be fully comparable with the closing price on
such date, each such closing price so used shall be appropriately adjusted in order to make it
fully comparable with the closing price on such date. The closing price per share of any
securities on any date shall be the last reported sale price, regular way, or, in case no such sale
takes place or is quoted on such date, the average of the closing bid and asked prices, regular
way, for each share of such securities, in either case in the principal consolidated transaction
reporting system with respect to securities listed on the principal national securities exchange on
which the securities are listed or admitted to trading, or as reported in the principal
consolidated transaction reporting system with respect to securities listed or admitted to trading
on the New York Stock Exchange, Inc. or, if the securities are not listed or admitted to trading on
any national securities exchange or on the New York Stock Exchange, Inc., as reported by the
National Association of Securities Dealers, Inc. Automated Quotation System or such other system
then in use, or, if on any such date the securities are not listed or admitted to trading on any
national securities exchange or quoted by any such organization, the average of the closing bid and
asked prices as furnished by a professional market maker making a market in the securities selected
by the Board of Directors of the Company; provided, however, that if on any such
date the securities are not listed or admitted to trading on a national securities exchange or
traded in the over-the-counter market, the closing price per share of such securities on such date
shall mean the fair value per share of such securities on such date as determined in good faith by
the Board of Directors of the Company, after consultation with a nationally recognized investment
banking firm, and set forth in a certificate delivered to the Rights Agent.
“Option Holder” shall have the meaning set forth in the definition of Acquiring Person.
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“Outside Meeting Date” shall have the meaning set forth in Section 5.1(c).
“Person” shall mean any individual, firm, partnership, limited liability company, association,
group (as such term is used in Rule 13d-5 under the Exchange Act, as such Rule is in effect on the
date of this Agreement), corporation or other entity, and shall include any successor (by merger or
otherwise) thereof or thereto.
“Preferred Stock” shall mean the series of Participating Preferred Stock, $0.001 par value, of
the Company created by a Certificate of Designation and Terms in substantially the form set forth
in Exhibit B hereto appropriately completed.
“Qualifying Offer” shall mean an offer determined by the Board of Directors of the Company to
have, to the extent required for the type of offer specified, each of the following
characteristics:
(a) a fully financed all-cash tender offer or an exchange offer, made by an offeror that is
not an Acquiring Person or an Affiliate or Associate of an Acquiring Person, offering shares of
common stock of the offeror, or a combination thereof, in each such case for any and all of the
outstanding shares of Common Stock;
(b) an offer that has commenced within the meaning of Rule 14d-2(a) under the Exchange Act and
has not been terminated;
(c) if the offer includes shares of common stock of the offeror, an offer pursuant to which
the offeror shall permit representatives of the Company, including, without limitation, a
nationally recognized investment banking firm retained by the Board of Directors of the Company and
legal counsel designated by the Company to have access to such offeror’s books, records,
management, accountants and other appropriate outside advisers for the purposes of permitting such
representatives to conduct a due diligence review of the offeror in order to
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allow the Board of Directors of the Company to evaluate the offer and make an informed
recommendation to the stockholders and to permit, among other things, such investment banking firm
(relying as appropriate on the advice of such legal counsel) to be able to render an opinion to the
Board of Directors of the Company with respect to the consideration being offered to the
Stockholders;
(d) an offer that is subject only to the minimum tender condition described below in item (g)
of this definition and other customary terms and conditions, which conditions shall not include any
requirements with respect to the offeror or its agents being permitted any due diligence with
respect to the books, records, management, accountants and other outside advisers of the Company;
(e) an offer pursuant to which the Company and its stockholders have received an irrevocable
written commitment of the offeror that the offer will remain open for not less than 120 Business
Days and, if a Special Meeting Demand (as defined in Section 5.1(c)) is duly delivered to the Board
of Directors in accordance with Section 5.1(c), for at least 10 Business Days after the date of the
Special Meeting or, if no Special Meeting (as defined in Section 5.1(c)) is held within the Special
Meeting Period (as defined in Section 5.1(c)), for at least 10 Business Days following such Special
Meeting Period (the “Qualifying Offer Period”);
(f) an offer pursuant to which the Company has received an irrevocable written commitment by
the offeror that, in addition to the minimum time periods specified in item (e) of this definition,
the offer, if it is otherwise to expire prior thereto, will be extended for at least 20 Business
Days after any increase in the price offered, and after any bona fide alternative offer from
Another Person is commenced within the meaning of Rule 14d-2(a) of the Exchange Act;
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(g) an offer that is conditioned on a minimum of at least a majority of the outstanding shares
of the Common Stock beneficially owned by Persons other than the offeror and any Affiliates or
Associates of the offeror being tendered and not withdrawn as of the offer’s expiration date, which
condition shall not be waivable;
(h) an offer pursuant to which the Company and its shareholders have received an irrevocable
written commitment by the offeror to consummate as promptly as practicable upon successful
completion of the offer a second step transaction whereby all shares of the Common Stock not
tendered into the offer will be acquired at the same consideration per share actually paid pursuant
to the offer, subject to stockholders’ statutory appraisal rights, if any;
(i) an offer pursuant to which the Company and its shareholders have received an irrevocable
written commitment of the offeror that no amendments will be made to the offer to reduce the offer
consideration, or otherwise change the terms of the offer in a way that is materially adverse to a
tendering stockholder (other than extensions of the offer consistent with the terms thereof);
(j) an offer pursuant to which the Company has received the written representation and
certification of the offeror and, in their individual capacities, the written representations and
certifications of the offeror’s Chief Executive Officer and Chief Financial Officer, that (i) all
facts about the offeror that would be material to making a investor’s decision to accept the offer
have been fully and accurately disclosed as of the date of the commencement of the offer within the
meaning of Rule 14d-2(a) of the Exchange Act, and (ii) all such new facts will be fully and
accurately disclosed on a prompt basis during the entire period during which the
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offer remains open, and all required Exchange Act reports will be filed by the offeror in a
timely manner during such period; and
(k) if the offer includes shares of stock of the offeror, (i) it must consist solely of common
stock of an offeror that is a publicly owned United States corporation, and whose common stock is
freely tradable and is listed or admitted to trading on either the New York Stock Exchange, Inc. or
the NASDAQ National Market System, (ii) no stockholder approval of the offeror is required to issue
such common stock, or, if required, has already been obtained, (iii) no Person (including such
Person’s Affiliates and Associates) beneficially owns more than 20% of the voting stock of the
offeror at the time of commencement of the offer or at any time during the term of the offer, and
(iv) no other class of voting stock of the offeror is outstanding, and the offeror meets the
registrant eligibility requirements for use of Form S-3 for registering securities under the
Securities Act; including, without limitation, the filing of all required Exchange Act reports in a
timely manner during the 12 calendar months prior to the date of commencement of the offer.
For the purposes of the definition of Qualifying Offer, “fully financed” shall mean that the
offeror has sufficient funds for the offer and related expenses which shall be evidenced by (i)
firm, unqualified, written commitments from responsible financial institutions having the necessary
financial capacity, accepted by the offeror, to provide funds for such offer subject only to
customary terms and conditions, (ii) cash or cash equivalents then available to the offeror, set
apart and maintained solely for the purpose of funding the offer with an irrevocable written
commitment being provided by the offeror to the Board of Directors of the Company to maintain such
availability until the offer is consummated or withdrawn, or (iii) a combination of the foregoing;
which evidence has been provided to the Company prior to, or upon,
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commencement of the offer. If an offer becomes a Qualifying Offer in accordance with this
definition but subsequently ceases to be a Qualifying Offer as a result of the failure at a later
date to continue to satisfy any of the requirements of this definition, such offer shall cease to
be a Qualifying Offer and the provisions of Section 5.1(c) shall no longer be applicable to such
offer.
“Qualifying Offer Resolution” shall have the meaning set forth in Section 5.1(c).
“Record Time” shall have the meaning set forth in the Recitals.
“Redemption Price” shall mean an amount equal to one cent, $0.01.
“Redemption Time” shall mean the time at which the right to exercise the Rights shall
terminate pursuant to Section 5.1.
“Right” shall have the meaning set forth in the Recitals.
“Rights Agent” shall have the meaning set forth in the Preamble.
“Rights Certificate” shall have the meaning set forth in Section 2.3(c).
“Rights Register” shall have the meaning set forth in Section 2.7(a).
“SEC” shall mean the Securities Exchange Commission.
“Securities Act” shall mean the Securities Act of 1933, as amended.
“Separation Time” shall mean the earlier of (i) the Close of Business on the tenth Business
Day (or such later date as the Board of Directors of the Company may from time to time fix by
resolution adopted prior to the Separation Time that would otherwise have occurred) after the date
on which any Person commences a tender or exchange offer which, if consummated, would result in
such Person’s becoming an Acquiring Person and (ii) the time of the first event causing a Flip-in
Date to occur; provided, that if the foregoing results in the Separation Time being prior
to the Record Time, the Separation Time shall be the Record Time and provided
further, that if any tender or exchange offer referred to in clause (i) of this
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paragraph is cancelled, terminated or otherwise withdrawn prior to the Separation Time without
the purchase of any shares of Common Stock pursuant thereto, such offer shall be deemed, for
purposes of this paragraph, never to have been made.
“Special Meeting” shall have the meaning set forth in Section 5.1(c).
“Special Meeting Demand” shall have the meaning set forth in Section 5.1(c).
“Special Meeting Period” shall have the meaning set forth in Section 5.1(c).
“Stock Acquisition Date” shall mean the earlier of (i) the first date on which there shall be
a public announcement by the Company (by any means) that a Person has become an Acquiring Person;
and (ii) the date and time on which any Acquiring Person becomes the Beneficial Owner of more than
50% of the outstanding shares of Common Stock.
“Subsidiary” of any specified Person shall mean any corporation or other entity of which a
majority of the voting power of the equity securities or a majority of the equity or membership
interest is Beneficially Owned, directly or indirectly, by such Person.
“Trading Day,” when used with respect to any securities, shall mean a day on which the New
York Stock Exchange, Inc. is open for the transaction of business or, if such securities are not
listed or admitted to trading on the New York Stock Exchange, Inc., a day on which the principal
national securities exchange on which such securities are listed or admitted to trading is open for
the transaction of business or, if such securities are not listed or admitted to trading on any
national securities exchange, a Business Day.
ARTICLE II
THE RIGHTS
2.1 Summary of Rights. As soon as practicable after the Record Time, the Company will
mail a letter summarizing the terms of the Rights to each holder of record of
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Common Stock as of the Record Time, at such holder’s address as shown by the records of the
Company.
2.2 Legend on Common Stock Certificates. Certificates for the Common Stock issued on
or after the Record Time but prior to the Separation Time shall evidence one Right for each share
of Common Stock represented thereby and shall have impressed on, printed on, written on or
otherwise affixed to them a legend substantially in the following form:
Until the Separation Time (as defined in the Rights Agreement referred to below), this
certificate also evidences and entitles the holder hereof to certain Rights as set forth in
a Rights Agreement, dated as of July 18, 2006 (as such may be amended from time to time, the
“Rights Agreement”), between Swift Transportation Co., Inc. (the “Company”) and Mellon
Investor Services LLC, as Rights Agent, the terms of which are hereby incorporated herein by
reference and a copy of which is on file at the principal executive offices of the Company.
Under certain circumstances, as set forth in the Rights Agreement, such Rights may be
redeemed, may become exercisable for securities or assets of the Company or securities of
another entity, may be exchanged for shares of Common Stock or other securities or assets of
the Company, may expire, may become void (if they are “Beneficially Owned” by an “Acquiring
Person” or an “Affiliate” or “Associate” thereof, as such terms are defined in the Rights
Agreement, or by any transferee of any of the foregoing) or may be evidenced by separate
certificates and may no longer be evidenced by this certificate. The Company will mail or
arrange for the mailing of a copy of the Rights Agreement to the holder of this certificate
without charge after the receipt of a written request therefor.
Certificates representing shares of Common Stock that are issued and outstanding at the Record Time
shall, together with the letter mailed pursuant to Section 2.1, evidence one Right for each share
of Common Stock evidenced thereby notwithstanding the absence of the foregoing legend.
If the Common Stock issued after the Record Time but prior to the Separation Time shall be
uncertificated, the registration of such Common Stock on the stock transfer books of the Company
shall evidence one Right for each share of Common Stock represented thereby and the Company shall
mail to every Person that holds such Common Stock a confirmation of the registration of such Common
Stock on the stock transfer books of the Company, which confirmation will have impressed, printed,
written or stamped thereon or otherwise affixed
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thereto the above legend. The Company shall mail or arrange for the mailing of a copy of this
Agreement to any Person that holds Common Stock, as evidenced by the registration of the Common
Stock in the name of such Person on the stock transfer books of the Company, without charge after
the receipt of a written request therefor.
2.3 Exercise of Rights; Separation of Rights. (a) Subject to Sections 3.1, 5.1 and
5.10 and subject to adjustment as herein set forth, each Right will entitle the holder thereof, at
or after the Separation Time and prior to the Expiration Time, to purchase, for the Exercise Price,
one one-hundredth of a share of Preferred Stock.
(b) Until the Separation Time, and subject to Section 5.10, (i) no Right may be exercised and
(ii) each Right will be evidenced by the certificate for the associated share of Common Stock (or,
if the Common Stock shall be uncertificated, by the registration of the associated Common Stock on
the stock transfer books of the Company and the confirmation thereof provided for in Section 2.2),
together, in the case of certificates issued prior to the Record Time, with the letter mailed to
the record holder thereof pursuant to Section 2.1, and will be transferable only together with, and
will be transferred by a transfer (whether with or without such letter or confirmation) of, such
associated share.
(c) Subject to the terms and conditions hereof, at or after the Separation Time and prior to
the Expiration Time and receipt by the Rights Agent of a written notice thereof, the Rights (i) may
be exercised and (ii) may be transferred independent of shares of Common Stock. Promptly following
the Separation Time, the Rights Agent will mail to each holder of record of Common Stock as of the
Separation Time (other than any Person whose Rights have become void pursuant to Section 3.1(b)),
at such holder’s address as shown by the records of the Company (the Company hereby agreeing to
furnish copies of such records to the Rights Agent
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for this purpose), (x) a certificate (a “Rights Certificate”) in substantially the form of
Exhibit A hereto appropriately completed, representing the number of Rights held by such holder at
the Separation Time and having such marks of identification or designation and such legends,
summaries or endorsements printed thereon as the Company may deem appropriate and as are not
inconsistent with the provisions of this Agreement, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or regulation of any national
securities exchange or quotation system on which the Rights may from time to time be listed or
traded, or to conform to usage, and (y) a disclosure statement describing the Rights.
(d) Subject to the terms and conditions hereof, Rights may be exercised on any Business Day on
or after the Separation Time and prior to the Expiration Time by submitting to the Rights Agent the
Rights Certificate evidencing such Rights with an Election to Exercise (an “Election to Exercise”)
substantially in the form attached to the Rights Certificate duly executed and properly completed,
accompanied by payment in cash, or by certified or official bank check or money order payable to
the order of the Company, of a sum equal to the Exercise Price multiplied by the number of Rights
being exercised and a sum sufficient to cover any tax or charge which may be payable in respect of
any transfer involved in the transfer or delivery of Rights Certificates or the issuance or
delivery of certificates (or, if uncertificated, the registration on the stock transfer books of
the Company) for shares or depositary receipts (or both) in a name other than that of the holder of
the Rights being exercised.
(e) Upon receipt of a Rights Certificate, with an Election to Exercise accompanied by payment
as set forth in Section 2.3(d), and subject to the terms and conditions hereof, the Rights Agent
will thereupon promptly (i)(A) requisition from a transfer agent stock certificates evidencing such
number of shares or other securities to be purchased or, in the case
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of uncertificated shares or other securities, requisition from a transfer agent a notice
setting forth such number of shares or other securities to be purchased for which registration will
be made on the stock transfer books of the Company (the Company hereby irrevocably authorizing its
transfer agents to comply with all such requisitions), and (B) if the Company elects pursuant to
Section 5.5 not to issue certificates (or effect registrations on the stock transfer books of the
Company) representing fractional shares, requisition from the depositary selected by the Company
depositary receipts representing the fractional shares to be purchased or requisition from the
Company the amount of cash to be paid in lieu of fractional shares in accordance with Section 5.5
and (ii) after receipt of such certificates, depositary receipts, notices and/or cash, deliver the
same to or upon the order of the registered holder of such Rights Certificate, registered (in the
case of certificates, depositary receipts or notices) in such name or names as may be designated by
such holder.
(f) In case the holder of any Rights shall exercise less than all the Rights evidenced by such
holder’s Rights Certificate, a new Rights Certificate evidencing the Rights remaining unexercised
will be issued by the Rights Agent to such holder or to such holder’s duly authorized assigns.
(g) The Company covenants and agrees that it will (i) take all such action as may be necessary
to ensure that all shares delivered (or evidenced by registration on the stock transfer books of
the Company) upon exercise of Rights shall, at the time of delivery of the certificates (or
registration) for such shares (subject to payment of the Exercise Price), be duly and validly
authorized, executed, issued and delivered (or registered) and fully paid and nonassessable; (ii)
take all such action as may be necessary to comply with any applicable requirements of the
Securities Act and the Exchange Act, and the rules and regulations
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thereunder, and any other applicable law, rule or regulation, in connection with the issuance
of any shares upon exercise of Rights; and (iii) pay when due and payable any and all taxes and
charges which may be payable in respect of the original issuance or delivery of the Rights
Certificates or of any shares issued upon the exercise of Rights, provided, that the
Company shall not be required to pay any tax or charge which may be payable in respect of any
transfer involved in the transfer or delivery of Rights Certificates or the issuance or delivery of
certificates (or the registration) for shares in a name other than that of the holder of the Rights
being transferred or exercised.
2.4 Adjustments to Exercise Price; Number of Rights. (a) In the event the Company
shall at any time after the Record Time and prior to the Separation Time (i) declare or pay a
dividend on Common Stock payable in Common Stock, (ii) subdivide the outstanding Common Stock or
(iii) combine the outstanding Common Stock into a smaller number of shares of Common Stock, (x) the
Exercise Price in effect after such adjustment will be equal to the Exercise Price in effect
immediately prior to such adjustment divided by the number of shares of Common Stock including any
fractional shares in lieu of which such holder received cash (the “Expansion Factor”) that a holder
of one share of Common Stock immediately prior to such dividend, subdivision or combination would
hold thereafter as a result thereof and (y) each Right held prior to such adjustment will become
that number of Rights equal to the Expansion Factor, and the adjusted number of Rights will be
deemed to be distributed among the shares of Common Stock with respect to which the original Rights
were associated (if they remain outstanding) and the shares issued in respect of such dividend,
subdivision or combination, so that each such share of Common Stock will have exactly one Right
associated with it. Each
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adjustment made pursuant to this paragraph shall be made as of the payment or effective date
for the applicable dividend, subdivision or combination.
In the event the Company shall at any time after the Record Time and prior to the Separation
Time issue any shares of Common Stock otherwise than in a transaction referred to in the preceding
paragraph, each such share of Common Stock so issued shall automatically have one new Right
associated with it, which Right shall be evidenced by the certificate representing such share (or,
if the Common Stock shall be uncertificated, such Right shall be evidenced by the registration of
such Common Stock on the stock transfer books of the Company and the confirmation thereof provided
for in Section 2.2). Rights shall be issued by the Company in respect of shares of Common Stock
that are issued or sold by the Company after the Separation Time only to the extent provided in
Section 5.3.
(b) In the event the Company shall at any time after the Record Time and prior to the
Separation Time issue or distribute any securities or assets in respect of, in lieu of or in
exchange for Common Stock (other than pursuant to any non-extraordinary periodic cash dividend or a
dividend paid solely in Common Stock) whether by dividend, in a reclassification or
recapitalization (including any such transaction involving a merger, consolidation or statutory
share exchange), or otherwise, the Company shall make such adjustments, if any, in the Exercise
Price, number of Rights and/or securities or other property purchasable upon exercise of Rights as
the Board of Directors of the Company, in its sole discretion, may deem to be appropriate under the
circumstances in order to adequately protect the interests of the holders of Rights generally, and
the Company and the Rights Agent shall amend this Agreement as necessary to provide for such
adjustments.
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(c) Each adjustment to the Exercise Price made pursuant to this Section 2.4 shall be
calculated to the nearest cent. Whenever an adjustment to the Exercise Price is made pursuant to
this Section 2.4, the Company shall (i) promptly prepare a certificate setting forth such
adjustment and a brief statement of the facts accounting for such adjustment and (ii) promptly file
with the Rights Agent and with each transfer agent for the Common Stock a copy of such certificate.
(d) Rights Certificates shall represent the right to purchase the securities purchasable under
the terms of this Agreement, including any adjustment or change in the securities purchasable upon
exercise of the Rights, even though such certificates may continue to express the securities
purchasable at the time of issuance of the initial Rights Certificates.
2.5 Date on Which Exercise is Effective. Each Person in whose name any certificate
for shares is issued (or registration on the stock transfer books is effected) upon the exercise of
Rights shall for all purposes be deemed to have become the holder of record of the shares
represented thereby on the date upon which the Rights Certificate evidencing such Rights was duly
surrendered and payment of the Exercise Price for such Rights (and any applicable taxes and other
governmental charges payable by the exercising holder hereunder) was made; provided,
however, that if the date of such surrender and payment is a date upon which the stock
transfer books of the Company are closed, such Person shall be deemed to have become the record
holder of such shares on, and such certificate (or registration) shall be dated, the next
succeeding Business Day on which the stock transfer books of the Company are open.
2.6 Execution, Authentication, Delivery and Dating of Rights Certificates. (a) The
Rights Certificates shall be executed on behalf of the Company by its President or one of its
Executive Vice Presidents, under its corporate seal reproduced thereon attested by its Secretary
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or one of its Assistant Secretaries. The signature of any of these officers on the Rights
Certificates may be manual or facsimile.
Rights Certificates bearing the manual or facsimile signatures of individuals who were at any
time the proper officers of the Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the countersignature and
delivery of such Rights Certificates.
Promptly after the Separation Time, the Company will notify the Rights Agent in writing of
such Separation Time and will deliver Rights Certificates executed by the Company to the Rights
Agent for counter-signature, and, subject to Section 3.1(b), the Rights Agent shall manually
countersign and deliver such Rights Certificates to the holders of the Rights pursuant to Section
2.3(c). No Rights Certificate shall be valid for any purpose unless manually countersigned by the
Rights Agent.
(b) Each Rights Certificate shall be dated the date of countersignature thereof.
2.7 Registration, Registration of Transfer and Exchange. (a) After the Separation
Time, the Company will cause to be kept a register (the “Rights Register”) in which, subject to
such reasonable regulations as it may prescribe, the Company will provide for the registration and
transfer of Rights. The Rights Agent is hereby appointed “Rights Registrar” for the purpose of
maintaining the Rights Register for the Company and registering Rights and transfers of Rights
after the Separation Time as herein provided. In the event that the Rights Agent shall cease to be
the Rights Registrar, the Rights Agent will have the right to examine the Rights Register at all
reasonable times after the Separation Time.
After the Separation Time and prior to the Expiration Time, upon surrender for registration of
transfer or exchange of any Rights Certificate, and subject to the provisions of
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Sections 2.7(c) and (d), the Company will execute, and the Rights Agent will countersign and
deliver, in the name of the holder or the designated transferee or transferees, as required
pursuant to the holder’s instructions, one or more new Rights Certificates evidencing the same
aggregate number of Rights as did the Rights Certificate so surrendered.
(b) Except as otherwise provided in Section 3.1(b), all Rights issued upon any registration of
transfer or exchange of Rights Certificates shall be the valid obligations of the Company, and such
Rights shall be entitled to the same benefits under this Agreement as the Rights surrendered upon
such registration of transfer or exchange.
(c) Every Rights Certificate surrendered for registration of transfer or exchange shall be
duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the
Company or the Rights Agent, as the case may be, duly executed by the holder thereof or such
holder’s attorney duly authorized in writing. As a condition to the issuance of any new Rights
Certificate under this Section 2.7, the Company may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation thereto.
(d) The Company shall not register the transfer or exchange of any Rights which have become
void under Section 3.1(b), been exchanged under Section 3.1(c) or been redeemed under Section 5.1.
2.8 Mutilated, Destroyed, Lost and Stolen Rights Certificates. (a) If any mutilated
Rights Certificate is surrendered to the Rights Agent prior to the Expiration Time, then, subject
to Sections 3.1(b), 3.1(c) and 5.1, the Company shall execute and the Rights Agent shall
countersign and deliver in exchange therefor a new Rights Certificate evidencing the same number of
Rights as did the Rights Certificate so surrendered.
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(b) If there shall be delivered to the Company and the Rights Agent prior to the Expiration
Time (i) evidence to their satisfaction of the destruction, loss or theft of any Rights Certificate
and (ii) such security or indemnity as may be required by them to save each of them and any of
their agents harmless, then, subject to Sections 3.1(b), 3.1(c) and 5.1 and in the absence of
notice to the Company or the Rights Agent that such Rights Certificate has been acquired by a
bona fide purchaser, the Company shall execute and upon its request the Rights
Agent shall countersign and deliver, in lieu of any such destroyed, lost or stolen Rights
Certificate, a new Rights Certificate evidencing the same number of Rights as did the Rights
Certificate so destroyed, lost or stolen.
(c) As a condition to the issuance of any new Rights Certificate under this Section 2.8, the
Company may require the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the fees and expenses of
the Rights Agent) connected therewith.
(d) Every new Rights Certificate issued pursuant to this Section 2.8 in lieu of any destroyed,
lost or stolen Rights Certificate shall evidence an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Rights Certificate shall be at any time
enforceable by anyone, and, subject to Section 3.1(b) shall be entitled to all the benefits of this
Agreement equally and proportionately with any and all other Rights duly issued hereunder.
2.9 Persons Deemed Owners. Prior to due presentment of a Rights Certificate (or,
prior to the Separation Time, the associated Common Stock certificate or notice of transfer, if
uncertificated) for registration of transfer, the Company, the Rights Agent and any agent of the
Company or the Rights Agent may deem and treat the Person in whose name such Rights
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Certificate (or, prior to the Separation Time, such Common Stock certificate or Common Stock
registration, if uncertificated) is registered as the absolute owner thereof and of the Rights
evidenced thereby for all purposes whatsoever, including the payment of the Redemption Price and
neither the Company nor the Rights Agent shall be affected by any notice to the contrary. As used
in this Agreement, unless the context otherwise requires, the term “holder” of any Rights shall
mean the registered holder of such Rights (or, prior to the Separation Time, the associated shares
of Common Stock).
2.10 Delivery and Cancellation of Certificates. All Rights Certificates surrendered
upon exercise or for registration of transfer or exchange shall, if surrendered to any Person other
than the Rights Agent, be delivered to the Rights Agent and, in any case, shall be promptly
cancelled by the Rights Agent. The Company may at any time deliver to the Rights Agent for
cancellation any Rights Certificates previously countersigned and delivered hereunder which the
Company may have acquired in any manner whatsoever, and all Rights Certificates so delivered shall
be promptly cancelled by the Rights Agent. No Rights Certificates shall be countersigned in lieu
of or in exchange for any Rights Certificates cancelled as provided in this Section 2.10, except as
expressly permitted by this Agreement. The Rights Agent shall destroy all cancelled Rights
Certificates and deliver to the Company a certificate attesting to such destruction.
2.11 Agreement of Rights Holders. Every holder of Rights by accepting the Rights,
consents and agrees with the Company and the Rights Agent and with every other holder of Rights
that:
(a) prior to the Separation Time, each Right will be transferable only together with, and will
be transferred by a transfer of, the associated share of Common Stock;
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(b) after the Separation Time, the Rights Certificates will be transferable only on the Rights
Register as provided herein;
(c) prior to due presentment of a Rights Certificate (or, prior to the Separation Time, the
associated Common Stock certificate or Common Stock registration, if uncertificated) for
registration of transfer, the Company, the Rights Agent and any agent of the Company or the Rights
Agent may deem and treat the Person in whose name the Rights Certificate (or, prior to the
Separation Time, the associated Common Stock certificate or Common Stock registration, if
uncertificated) is registered as the absolute owner thereof and of the Rights evidenced thereby for
all purposes whatsoever, and neither the Company nor the Rights Agent shall be affected by any
notice to the contrary;
(d) Rights Beneficially Owned by certain Persons will, under the circumstances set forth in
Section 3.1(b), become void; and
(e) this Agreement may be supplemented or amended from time to time pursuant to Section 2.4(b)
or 5.4.
ARTICLE III
ADJUSTMENTS TO THE RIGHTS IN
THE EVENT OF CERTAIN TRANSACTIONS
THE EVENT OF CERTAIN TRANSACTIONS
3.1 Flip-in. (a) In the event that prior to the Expiration Time a Flip-in Date shall
occur, except as provided in this Section 3.1, each Right shall constitute the right to purchase
from the Company, upon exercise thereof in accordance with the terms hereof (but subject to Section
5.10), that number of shares of Common Stock having an aggregate Market Price on the Stock
Acquisition Date that gave rise to the Flip-in Date equal to twice the Exercise Price for an amount
in cash equal to the Exercise Price (such right to be appropriately adjusted in order to protect
the interests of the holders of Rights generally in the event that on or after such
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Stock Acquisition Date any of the events described in Section 2.4(a) or (b), or any analogous
event, shall have occurred with respect to the Common Stock).
(b) Notwithstanding the foregoing, any Rights that are or were Beneficially Owned on or after
the Stock Acquisition Date by an Acquiring Person or an Affiliate or Associate thereof or by any
transferee, direct or indirect, of any of the foregoing shall become void and any holder of such
Rights (including transferees) shall thereafter have no right to exercise or transfer such Rights
under any provision of this Agreement. If any Rights Certificate is presented for assignment or
exercise and the Person presenting the same will not complete the certification set forth at the
end of the form of assignment or notice of election to exercise and provide such additional
evidence of the identity of the Beneficial Owner and its Affiliates and Associates (or former
Beneficial Owners and their Affiliates and Associates) as the Company shall reasonably request,
then the Company shall be entitled conclusively to deem the Beneficial Owner thereof to be an
Acquiring Person or an Affiliate or Associate thereof or a transferee of any of the foregoing and
accordingly will deem the Rights evidenced thereby to be void and not transferable or exercisable.
(c) The Board of Directors of the Company may, at its option, at any time after a Flip-in Date
and prior to the time that an Acquiring Person becomes the Beneficial Owner of more than 50% of the
outstanding shares of Common Stock, elect to exchange all (but not less than all) the then
outstanding Rights (which shall not include Rights that have become void pursuant to the provisions
of Section 3.1(b)) for shares of Common Stock at an exchange ratio of one share of Common Stock per
Right, appropriately adjusted in order to protect the interests of holders of Rights generally in
the event that after the Separation Time any of the events described in Section 2.4(a) or (b), or
any analogous event, shall have occurred with respect to the
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Common Stock (such exchange ratio, as adjusted from time to time, being hereinafter referred
to as the “Exchange Ratio”).
Immediately upon the action of the Board of Directors of the Company electing to exchange the
Rights, without any further action and without any notice, the right to exercise the Rights will
terminate and each Right (other than Rights that have become void pursuant to Section 3.1(b)),
whether or not previously exercised, will thereafter represent only the right to receive a number
of shares of Common Stock equal to the Exchange Ratio. Promptly after the action of the Board of
Directors electing to exchange the Rights, the Company shall give written notice thereof
(specifying the steps to be taken to receive shares of Common Stock in exchange for Rights) to the
Rights Agent and the holders of the Rights (other than Rights that have become void pursuant to
Section 3.1(b)) outstanding immediately prior thereto by mailing such notice in accordance with
Section 5.9.
Each Person in whose name any certificate for shares is issued (or for whom any registration
on the stock transfer books of the Company is made) upon the exchange of Rights pursuant to this
Section 3.1(c) or Section 3.1(d) shall for all purposes be deemed to have become the holder of
record of the shares represented thereby on, and such certificate (or registration on the stock
transfer books of the Company) shall be dated (or registered as of), the date upon which the Rights
Certificate evidencing such Rights was duly surrendered and payment of any applicable taxes and
other charges payable by the holder was made; provided, however, that if the date
of such surrender and payment is a date upon which the stock transfer books of the Company are
closed, such Person shall be deemed to have become the record holder of such shares on, and such
certificate (or registration on the stock transfer books of the Company) shall
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be dated (or registered as of), the next succeeding Business Day on which the stock transfer
books of the Company are open.
(d) Whenever the Company shall become obligated under Section 3.1(a) or (c) to issue shares of
Common Stock upon exercise of or in exchange for Rights, the Company, at its option, may substitute
therefor shares of Preferred Stock, at a ratio of one one-hundredth of a share of Preferred Stock
for each share of Common Stock so issuable.
(e) In the event that there shall not be sufficient treasury shares or authorized but
unissued shares of Common Stock or Preferred Stock of the Company to permit the exercise or
exchange in full of the Rights in accordance with Section 3.1(a) or if the Company so elects to
make the exchange referred to in Section 3.1(c), the Company shall either (i) call a meeting of
stockholders seeking approval to cause sufficient additional shares to be authorized (provided that
if such approval is not obtained the Company will take the action specified in clause (ii) of this
sentence) or (ii) take such action as shall be necessary to ensure and provide, as and when and to
the maximum extent permitted by applicable law and any agreements or instruments in effect on the
Stock Acquisition Date (and remaining in effect) to which it is a party, that each Right shall
thereafter constitute the right to receive, (x) at the Company’s option, either (A) in return for
the Exercise Price, debt or equity securities or other assets (or a combination thereof) having a
fair value equal to twice the Exercise Price, or (B) without payment of consideration (except as
otherwise required by applicable law), debt or equity securities or other assets (or a combination
thereof) having a fair value equal to the Exercise Price, or (y) if the Board of Directors of the
Company elects to exchange the Rights in accordance with Section 3.1(c), debt or equity securities
or other assets (or a combination thereof) having a fair value equal to the product of the Market
Price of a share of Common Stock on the Flip-in Date times the Exchange
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Ratio in effect on the Flip-in Date, where in any case set forth in (x) or (y) above the fair
value of such debt or equity securities or other assets shall be as determined in good faith by the
Board of Directors of the Company, after consultation with a nationally recognized investment
banking firm.
3.2 Flip-over. (a) Prior to the Expiration Time, the Company shall not enter into
any agreement with respect to, consummate or permit to occur any Flip-over Transaction or Event
unless and until it shall have entered into a supplemental agreement with the Flip-over Entity, for
the benefit of the holders of the Rights, providing that, upon consummation or occurrence of the
Flip-over Transaction or Event (i) each Right shall thereafter constitute the right to purchase
from the Flip-over Entity, upon exercise thereof in accordance with the terms hereof, that number
of shares of Flip-over Stock of the Flip-over Entity having an aggregate Market Price on the date
of consummation or occurrence of such Flip-over Transaction or Event equal to twice the Exercise
Price for an amount in cash equal to the Exercise Price (such right to be appropriately adjusted in
order to protect the interests of the holders of Rights generally in the event that after such date
of consummation or occurrence any of the events described in Section 2.4(a) or (b), or any
analogous event, shall have occurred with respect to the Flip-over Stock) and (ii) the Flip-over
Entity shall thereafter be liable for, and shall assume, by virtue of such Flip-over Transaction or
Event and such supplemental agreement, all the obligations and duties of the Company pursuant to
this Agreement. The provisions of this Section 3.2 shall apply to successive Flip-over
Transactions or Events.
(b) Prior to the Expiration Time, unless the Rights will be redeemed pursuant to Section 5.1
pursuant to an agreement entered into by the Company prior to a Flip-in Date, the Company shall not
enter into any agreement with respect to, consummate or permit to occur any
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Flip-over Transaction or Event if at the time thereof there are any rights, warrants or
securities outstanding or any other arrangements, agreements or instruments that would eliminate or
otherwise diminish in any material respect the benefits intended to be afforded by this Rights
Agreement to the holders of Rights upon consummation of such transaction.
ARTICLE IV
THE RIGHTS AGENT
4.1 General. (a) The Company hereby appoints the Rights Agent to act as agent for
the Company in accordance with the terms and conditions hereof, and the Rights Agent hereby accepts
such appointment. The Company agrees to pay to the Rights Agent reasonable compensation for all
services rendered by it hereunder and, from time to time, on demand of the Rights Agent, its
reasonable expenses and counsel fees and other disbursements incurred in the preparation,
negotiation, delivery, amendment, administration and execution of this Agreement and the exercise
and performance of its duties hereunder. The Company also agrees to indemnify the Rights Agent
for, and to hold it harmless against, any loss, liability, damage, judgment, fine, penalty, claim,
demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel),
incurred without gross negligence, bad faith or willful misconduct (each as determined by the final
non-appealable order of a court of competent jurisdiction) on the part of the Rights Agent, for
anything done, omitted to be done or suffered by the Rights Agent in connection with the acceptance
and administration of this Agreement, including the costs and expenses of defending against any
claim of liability. The indemnity provided in this Section 4.1(a) shall survive the expiration of
the Rights and the termination of this Agreement. The costs and expenses incurred in enforcing
this right of indemnification shall be paid by the Company.
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(b) The Rights Agent shall be authorized and protected and shall incur no liability for or in
respect of any action taken, suffered or omitted by it in connection with its acceptance and
administration of this Agreement in reliance upon any certificate for securities (or registration
on the stock transfer books of the Company) purchasable upon exercise of Rights, Rights
Certificate, certificate for other securities of the Company, instrument of assignment or transfer,
power of attorney, endorsement, affidavit, letter, notice, direction, consent, certificate,
statement, or other paper or document believed by it to be genuine and to be signed, executed and,
where necessary, verified or acknowledged, by the proper Person or Persons or otherwise upon the
advice of counsel set forth in Section 4.3. The Rights Agent shall not be deemed to have knowledge
of any event of which it was supposed to have received notice hereunder, and the Rights Agent shall
be fully protected and shall incur no liability for failing to take any action in connection
therewith unless and until it has received such notice.
4.2 Merger or Consolidation or Change of Name of Rights Agent. (a) Any Person into
which the Rights Agent or any successor Rights Agent may be merged or with which it may be
consolidated, or any Person resulting from any merger or consolidation to which the Rights Agent or
any successor Rights Agent is a party, or any Person succeeding to the shareholder services
business of the Rights Agent or any successor Rights Agent, will be the successor to the Rights
Agent under this Agreement without the execution or filing of any paper or any further act on the
part of any of the parties hereto, provided that such Person would be eligible for appointment as a
successor Rights Agent under the provisions of Section 4.4. In case at the time such successor
Rights Agent succeeds to the agency created by this Agreement any of the Rights Certificates have
been countersigned but not delivered, any such successor Rights Agent may adopt the
countersignature of the predecessor Rights Agent and deliver such Rights
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Certificates so countersigned; and in case at that time any of the Rights Certificates have
not been countersigned, any successor Rights Agent may countersign such Rights Certificates either
in the name of the predecessor Rights Agent or in the name of the successor Rights Agent; and in
all such cases such Rights Certificates will have the full force provided in the Rights
Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent is changed and at such time any of the
Rights Certificates shall have been countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Rights Certificates so countersigned; and in case
at that time any of the Rights Certificates shall not have been countersigned, the Rights Agent may
countersign such Rights Certificates either in its prior name or in its changed name; and in all
such cases such Rights Certificates shall have the full force provided in the Rights Certificates
and in this Agreement.
4.3 Duties of Rights Agent. The Rights Agent undertakes the duties and obligations
imposed by this Agreement upon the following terms and conditions, by all of which the Company and
the holders of Rights Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the
Company), and the advice or opinion of such counsel will be full and complete authorization and
protection to the Rights Agent as to any action taken, suffered or omitted by it, without bad
faith, in accordance with such advice or opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent deems it
necessary or desirable that any fact or matter be proved or established by the Company prior to
taking, suffering or omitting to take any action hereunder, such fact or matter (unless other
evidence in respect thereof be herein specifically prescribed) may be
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deemed to be conclusively proved and established by a certificate signed by a person believed
by the Rights Agent to be the the President or any Executive Vice President and by the Secretary or
any Assistant Secretary of the Company and delivered to the Rights Agent; and such certificate will
be full authorization and protection to the Rights Agent for any action taken, suffered or omitted
without bad faith by it under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent will be liable hereunder only for its own gross negligence, bad faith or
willful misconduct (each as determined by the final non-appealable order of a court of competent
jurisdiction). Anything to the contrary herein notwithstanding, in no event shall the Rights Agent
be liable for special, punitive, indirect, consequential or incidental loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Rights Agent has been advised
of the likelihood of such damage. Any liability of the Rights Agent under this Agreement will be
limited to the amount of annual fees paid by the Company to the Rights Agent pursuant hereto.
(d) The Rights Agent will not be liable for or by reason of any of the statements of fact or
recitals contained in this Agreement or in the certificates, if any, for securities purchasable
upon exercise of Rights or the Rights Certificates (except its countersignature thereof) or be
required to verify the same, but all such statements and recitals are and will be deemed to have
been made by the Company only.
(e) The Rights Agent will not be under any responsibility in respect of the validity of this
Agreement or the execution and delivery hereof (except the due authorization, execution and
delivery hereof by the Rights Agent) or in respect of the validity or execution of any certificate,
if any, for securities purchasable upon exercise of Rights or Rights Certificate
-34-
(except its countersignature thereof); nor will it be responsible for any breach by the
Company of any covenant or condition contained in this Agreement or in any Rights Certificate; nor
will it be responsible for any change in the exercisability of the Rights (including the Rights
becoming void pursuant to Section 3.1(b)) or any adjustment required under the provisions of
Section 2.4, 3.1 or 3.2 or responsible for the manner, method or amount of any such adjustment or
the ascertaining of the existence of facts that would require any such adjustment (except with
respect to the exercise of Rights after receipt of the certificate contemplated by Section 2.4
describing any such adjustment); nor will it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any securities purchasable
upon exercise of Rights or any Rights or as to whether any securities purchasable upon exercise of
Rights will, when issued, be duly and validly authorized, executed, issued and delivered and fully
paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and deliver or cause to be
performed, executed, acknowledged and delivered all such further and other acts, instruments and
assurances as may reasonably be required by the Rights Agent for the carrying out or performing by
the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to
the performance of its duties hereunder from any person believed by the Rights Agent to be the
President or any Executive Vice President or the Secretary or any Assistant Secretary of the
Company, and to apply to such persons for advice or instructions in connection with its duties, and
such instructions shall be full authorization and protection to the Rights Agent and the Rights
Agent shall not be liable for any action taken, suffered or omitted by it without bad faith in
accordance with instructions of any such officer or for any delay in acting
-35-
while awaiting those instructions. The Rights Agent shall be fully authorized and protected
in relying upon the most recent instructions received by any such officer. Any application by the
Rights Agent for written instructions from the Corporation may, at the option of the Rights Agent,
set forth in writing any action proposed to be taken, suffered or omitted by the Rights Agent under
this Agreement and the date on and/or after which such action shall be taken or suffered or such
omission shall be effective. The Rights Agent shall not be liable for any action taken, suffered
or omitted by the Rights Agent in accordance with a proposal included in any such application on or
after the date specified in such application (which date shall not be less than five Business Days
after the date any officer of the Corporation actually receives such application, unless any such
officer shall have consented in writing to an earlier date) unless, prior to taking or suffering
any such action (or the effective date in the case of an omission), the Rights Agent shall have
received written instructions in response to such application specifying the action to be taken,
suffered or omitted.
(h) The Rights Agent and any stockholder, director, officer, affiliate or employee of the
Rights Agent may buy, sell or deal in Common Stock, Rights or other securities of the Company or
become pecuniarily interested in any transaction in which the Company may be interested, or
contract with or lend money to the Company or otherwise act as fully and freely as though it were
not Rights Agent under this Agreement. Nothing herein shall preclude the Rights Agent from acting
in any other capacity for the Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it
or perform any duty hereunder either itself or by or through its attorneys or agents, and the
Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of
any such attorneys or agents or for any loss to the Company resulting from any
-36-
such act, default, neglect or misconduct, absent gross negligence, bad faith or willful
misconduct (each as determined by the final non-appealable order of a court of competent
jurisdiction) by the Rights Agent in the selection and continued employment of such attorney or
agents.
(j) The Rights Agent undertakes only the express duties and obligations imposed on it by this
Agreement and no implied duties or obligations shall be read into this Agreement against the Rights
Agent.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of its duties hereunder
or in the exercise of its rights if there shall be reasonable grounds for believing that repayment
of such funds or adequate indemnification against such risk or liability is not reasonably assured
to it.
4.4 Change of Rights Agent. The Rights Agent may resign and be discharged from its
duties under this Agreement upon 30 days’ notice (or such lesser notice as is acceptable to the
Company) in writing mailed to the Company and to each transfer agent of Common Stock known to the
Rights Agent by registered or certified mail, and to the holders of the Rights in accordance with
Section 5.9. The Company may remove the Rights Agent upon 30 days’ notice in writing, mailed to
the Rights Agent and to each transfer agent of the Common Stock by registered or certified mail,
and to the holders of the Rights in accordance with Section 5.9. If the Rights Agent should resign
or be removed or otherwise become incapable of acting, the Company will appoint a successor to the
Rights Agent. If the Company fails to make such appointment within a period of 30 days after such
removal or after it has been notified in writing of such resignation or incapacity by the resigning
or incapacitated Rights Agent or by the holder of any Rights (which holder shall, with such notice,
submit such holder’s Rights Certificate for
-37-
inspection by the Company), then the holder of any Rights may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent. Any successor Rights Agent, whether
appointed by the Company or by such a court, shall be a Person organized and doing business under
the laws of the United States or any state of the United States, in good standing, which is
authorized under such laws to exercise the powers of the Rights Agent contemplated by this
Agreement and is subject to supervision or examination by federal or state authority and which has
at the time of its appointment as Rights Agent a combined capital and surplus of at least
$50,000,000. After appointment, the successor Rights Agent will be vested with the same powers,
rights, duties and responsibilities as if it had been originally named as Rights Agent without
further act or deed; but the predecessor Rights Agent shall deliver and transfer to the successor
Rights Agent any property at the time held by it hereunder, and execute and deliver any further
assurance, conveyance, act or deed necessary for the purpose. Not later than the effective date of
any such appointment, the Company will file notice thereof in writing with the predecessor Rights
Agent and each transfer agent of the Common Stock, and mail a notice thereof in writing to the
holders of the Rights. Failure to give any notice provided for in this Section 4.4, however, or
any defect therein, shall not affect the legality or validity of the resignation or removal of the
Rights Agent or the appointment of the successor Rights Agent, as the case may be.
ARTICLE V
MISCELLANEOUS
5.1 Redemption. (a) The Board of Directors of the Company may, at its option, at any
time prior to the Close of Business on the Flip-in Date, elect to redeem all (but not less than
all) of the then outstanding Rights at the Redemption Price and the Company, at its option, may pay
the Redemption Price either in cash or shares of Common Stock or other
-38-
securities of the Company deemed by the Board of Directors, in the exercise of its sole
discretion, to be at least equivalent in value to the Redemption Price.
(b) A committee of independent directors of the Company will evaluate the Agreement annually
to determine whether it continues to be in the best interests of the Company’s stockholders or,
rather, if the Rights should be redeemed.
(c) In the event the Company receives a Qualifying Offer and the Board of Directors has not
redeemed the outstanding Rights or exempted such offer from the terms of the Agreement or called a
special meeting of stockholders by the end of the 90 Business Days following the commencement (or,
if later, the first existence of) a Qualifying Offer for the purpose of voting on whether or not to
exempt such Qualifying Offer from the terms of this Agreement, holders of record (or their duly
authorized proxy) (other than the offeror and its Affiliates and Associates) that hold in the
aggregate at least 10% of the shares of Common Stock then outstanding may submit to the Board of
Directors, not earlier than 90 Business Days nor later than 120 Business Days following the
commencement (or, if later, the first existence) of such Qualifying Offer, a written demand
complying with the terms of this Section 5.1(c) (the “Special Meeting Demand”) directing the Board
of Directors of the Company to submit to a vote of stockholders at a special meeting of the
stockholders of the Company (a “Special Meeting”) a resolution exempting such Qualifying Offer from
the provisions of this Agreement (the “Qualifying Offer Resolution”). For purposes of a Special
Meeting Demand, the record date for determining holders of record eligible to make a Special
Meeting Demand shall be the 90th Business Day following commencement (or, of later, the
first existence) of a Qualifying Offer. The Board of Directors of the Company shall take such
actions as are necessary or desirable to cause the Qualifying Offer Resolution to be so submitted
to a vote of stockholders at a Special
-39-
Meeting within 90 Business Days following the Special Meeting Demand (the “Special Meeting
Period”). A Special Meeting Demand must be delivered to the Secretary of the Company at the
principal executive offices of the Company and must set forth as to the stockholders of record
executing the request (x) the name and address of such stockholders, as they appear on the
Company’s books and records, (y) the class and number of shares of Common Stock which are owned of
record by each of such stockholders, and (z) in the case of Common Stock that is owned beneficially
by another Person, an executed certification by the holder of record that such holder has executed
such Special Meeting Notice only after obtaining instructions to do so from such beneficial owner
and attaching evidence thereof. Subject to the requirements of applicable law, the Board of
Directors of the Company may take a position in favor of or opposed to the adoption of the
Qualifying Offer Resolution, or no position with respect to the Qualifying Offer Resolution, as it
determines to be appropriate in the exercise of its duties. In the event that no Person has become
an Acquiring Person prior to the redemption date referred to in this Section 5.1(c), and the
Qualifying Offer continues to be a Qualifying Offer and either (i) the Special Meeting is not
convened on or prior to the end of the Special Meeting Period (the “Outside Meeting Date”), or (ii)
if, at the Special Meeting, the holders of at least a majority of the outstanding shares of Common
Stock beneficially owned by Persons other than the offeror and any Affiliates or Associates of the
offeror that were entitled to vote as of the record date for the Special Meeting selected by the
Board of Directors of the Company shall vote in favor of the Qualifying Offer Resolution, then the
Board of Directors shall take such action as would prevent the existence of the Rights from
interfering with the consummation of the Qualifying Offer, effective not more than 10 days after
(i) the Outside Meeting Date or (ii) the date on which the results of the vote on the Qualifying
Offer Resolution at the Special Meeting are certified as
-40-
official by the appointed inspectors of election for the Special Meeting, as the case may be
(the “Exemption Date”). Notwithstanding anything herein to the contrary, no action or vote,
including action by written consent, by shareholders not in compliance with the provisions of this
Section 5.1(c) shall have any effect on this Agreement or the operation of the Rights hereunder.
(d) Immediately upon the action of the Board of Directors of the Company electing to redeem
the Rights pursuant to Section 5.1(a) (or, if the resolution of the Board of Directors electing to
redeem the Rights states that the redemption will not be effective until the occurrence of a
specified future time or event, upon the occurrence of such future time or event), without any
further action and without any notice, the right to exercise the Rights will terminate and each
Right, whether or not previously exercised, will thereafter represent only the right to receive the
Redemption Price in cash or securities, as determined by the Board of Directors. Promptly after
the Rights are redeemed, the Company shall give notice of such redemption to the Rights Agent and
the holders of the then outstanding Rights by mailing such notice in accordance with Section 5.9.
(e) Immediately upon the close of business on the Exemption Date, without any further action
and without any notice, the right to exercise the Rights, only to the extent that such action would
interfere with the consummation of the Qualifying Offer, will terminate.
5.2 Expiration. The Rights and this Agreement shall expire at the Expiration Time and
no Person shall have any rights pursuant to this Agreement or any Right after the Expiration Time,
except, if the Rights are exchanged or redeemed, as provided in Section 3.1 or 5.1, respectively.
-41-
5.3 Issuance of New Rights Certificates. Notwithstanding any of the provisions of
this Agreement or of the Rights to the contrary, the Company may, at its option, issue new Rights
Certificates evidencing Rights in such form as may be approved by its Board of Directors to reflect
any adjustment or change in the number or kind or class of shares of stock purchasable upon
exercise of Rights made in accordance with the provisions of this Agreement. In addition, in
connection with the issuance or sale of shares of Common Stock by the Company following the
Separation Time and prior to the Expiration Time pursuant to the terms of securities convertible or
redeemable into shares of Common Stock (other than any securities issued or issuable in connection
with the exercise or exchange of Rights) or to options, in each case issued or granted prior to,
and outstanding at, the Separation Time, the Company shall issue to the holders of such shares of
Common Stock, Rights Certificates representing the appropriate number of Rights in connection with
the issuance or sale of such shares of Common Stock; provided, however, in each
case, (i) no such Rights Certificate shall be issued, if, and to the extent that, the Company shall
be advised by counsel that such issuance would create a significant risk of material adverse tax
consequences to the Company or to the Person to whom such Rights Certificates would be issued, (ii)
no such Rights Certificates shall be issued if, and to the extent that, appropriate adjustment
shall have otherwise been made in lieu of the issuance thereof, and (iii) the Company shall have no
obligation to distribute Rights Certificates to any Acquiring Person or Affiliate or Associate of
an Acquiring Person or any transferee of any of the foregoing.
5.4 Supplements and Amendments. The Company and the Rights Agent may, subject to the
terms of this Agreement, from time to time supplement or amend this Agreement without the approval
of any holders of Rights (i) prior to the Flip-in Date, in any respect and (ii)
-42-
on or after the Flip-in Date, to make any changes that the Company may deem necessary or
desirable and which shall not materially adversely affect the interests of the holders of Rights
generally or in order to cure any ambiguity or to correct or supplement any provision contained
herein which may be inconsistent with any other provisions herein or otherwise defective. The
Rights Agent will duly execute and deliver any supplement or amendment hereto requested by the
Company which satisfies the terms of the preceding sentence, provided that any supplement or
amendment shall become effective immediately upon execution by the Company, whether or not also
executed by the Rights Agent. Notwithstanding anything contained in this Agreement to the
contrary, the Rights Agent may, but shall not be obligated to, enter into any supplement or
amendment that affects the Rights Agent’s own rights, duties, obligations or immunities under this
Agreement and the Rights Agent shall not be bound by supplements or amendments not executed by it.
Notwithstanding anything contained in this Agreement to the contrary, no supplement or amendment
that changes the rights and duties of the Rights Agent under this Agreement shall be effective
without the consent of the Rights Agent.
5.5 Fractional Shares. If the Company elects not to issue certificates representing
(or register on the stock transfer books of the Company) fractional shares upon exercise,
redemption or exchange of Rights, the Company shall, in lieu thereof, in the sole discretion of the
Board of Directors, either (a) evidence such fractional shares by depositary receipts issued
pursuant to an appropriate agreement between the Company and a depositary selected by it, providing
that each holder of a depositary receipt shall have all of the rights, privileges and preferences
to which such holder would be entitled as a beneficial owner of such fractional share, or (b) pay
to the registered holder of such Rights the appropriate fraction of the Market Price per share in
cash.
-43-
5.6 Rights of Action. Subject to the terms of this Agreement (including Sections
3.1(b) and 5.14), rights of action in respect of this Agreement, other than rights of action vested
solely in the Rights Agent, are vested in the respective holders of the Rights; and any holder of
any Rights, without the consent of the Rights Agent or of the holder of any other Rights, may, on
such holder’s own behalf and for such holder’s own benefit and the benefit of other holders of
Rights, enforce, and may institute and maintain any suit, action or proceeding against the Company
to enforce, or otherwise act in respect of, such holder’s right to exercise such holder’s Rights in
the manner provided in such holder’s Rights Certificate and in this Agreement. Without limiting
the foregoing or any remedies available to the holders of Rights, it is specifically acknowledged
that the holders of Rights would not have an adequate remedy at law for any breach of this
Agreement and will be entitled to specific performance of the obligations under, and injunctive
relief against actual or threatened violations of, the obligations of any Person subject to this
Agreement.
Notwithstanding anything in this Agreement to the contrary, neither the Company nor the Rights
Agent shall have any liability to any holder of a Right or other Person as a result of its
inability to perform any of its obligations under this Agreement by reason of any preliminary or
permanent injunction or other order, judgment, decree or ruling (whether interlocutory or final)
issued by a court or by a governmental, regulatory, self-regulatory or administrative agency or
commission, or any statute, rule, regulation or executive order promulgated or enacted by any
governmental authority, prohibiting or otherwise restraining performance of such obligation;
provided, however, that the Company must use all reasonable efforts to have any such injunction,
order, judgment, decree or ruling lifted or otherwise overturned as soon as possible.
-44-
5.7 Holder of Rights Not Deemed a Stockholder. No holder, as such, of any Rights
shall be entitled to vote, receive dividends or be deemed for any purpose the holder of shares or
any other securities which may at any time be issuable on the exercise of such Rights, nor shall
anything contained herein or in any Rights Certificate be construed to confer upon the holder of
any Rights, as such, any of the rights of a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to stockholders at any meeting thereof, or to
give or withhold consent to any corporate action, or to receive notice of meetings or other actions
affecting stockholders (except as provided in Section 5.8), or to receive dividends or subscription
rights, or otherwise, until such Rights shall have been exercised or exchanged in accordance with
the provisions hereof.
5.8 Notice of Proposed Actions. In case the Company shall propose at or after the
Separation Time and prior to the Expiration Time (i) to effect or permit a Flip-over Transaction or
Event or (ii) to effect the liquidation, dissolution or winding up of the Company, then, in each
such case, the Company shall give to each holder of a Right, in accordance with Section 5.9, a
notice of such proposed action, which shall specify the date on which such Flip-over Transaction or
Event, liquidation, dissolution, or winding up is to take place, and such notice shall be so given
at least 20 Business Days prior to the date of the taking of such proposed action.
5.9 Notices. Notices or demands authorized or required by this Agreement to be given
or made by the Rights Agent or by the holder of any Rights to or on the Company shall be
sufficiently given or made if delivered or sent by first-class mail, postage prepaid, addressed
(until another address is filed in writing with the Rights Agent) as follows:
Swift Transportation Co., Inc.
0000 Xxxxx 00xx Xxxxxx
0000 Xxxxx 00xx Xxxxxx
-00-
Xxxxxxx, Xxxxxxx 00000
Attention: Secretary
Attention: Secretary
Any notice or demand authorized or required by this Agreement to be given or made by the Company or
by the holder of any Rights to or on the Rights Agent shall be sufficiently given or made if
delivered or sent by first-class mail, postage prepaid, addressed (until another address is filed
in writing with the Company) as follows:
Mellon Investor Services LLC
[Address for relationship manager]
Attention: Relationship Manager
[Address for relationship manager]
Attention: Relationship Manager
With a copy to:
Mellon Investor Services LLC
00 Xxxxxxxxxx Xxxx
Xxxxxxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: General Counsel
00 Xxxxxxxxxx Xxxx
Xxxxxxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: General Counsel
Notices or demands authorized or required by this Agreement to be given or made by the Company or
the Rights Agent to or on the holder of any Rights shall be sufficiently given or made if delivered
or sent by first-class mail, postage prepaid, addressed to such holder at the address of such
holder as it appears upon the registry books of the Rights Agent or, prior to the Separation Time,
on the registry books of the transfer agent for the Common Stock. Any notice which is mailed in
the manner herein provided shall be deemed given, whether or not the holder receives the notice.
5.10 Suspension of Exercisability. Notwithstanding any provisions in this Agreement
to the contrary, to the extent that the Company determines in good faith that some action will or
need be taken pursuant to Section 3.1 or to comply with federal or state securities laws, the
Company may suspend the exercisability of the Rights for a reasonable period in order
-46-
to take such action or comply with such laws. In the event of any such suspension, the
Company shall issue as promptly as practicable a public announcement stating that the
exercisability or exchangeability of the Rights has been temporarily suspended. Written notice
thereof pursuant to Section 5.9 shall be promptly given to the Rights Agent.
5.11 Costs of Enforcement. The Company agrees that if the Company or any other Person
the securities of which are purchasable upon exercise of Rights fails to fulfill any of its
obligations pursuant to this Agreement, then the Company or such Person will reimburse the holder
of any Rights for the costs and expenses (including legal fees) incurred by such holder in actions
to enforce such holder’s rights pursuant to any Rights or this Agreement.
5.12 Successors. All the covenants and provisions of this Agreement by or for the
benefit of the Company or the Rights Agent shall bind and inure to the benefit of their respective
successors and assigns hereunder.
5.13 Benefits of this Agreement. Nothing in this Agreement shall be construed to give
to any Person other than the Company, the Rights Agent and the holders of the Rights any legal or
equitable right, remedy or claim under this Agreement and this Agreement shall be for the sole and
exclusive benefit of the Company, the Rights Agent and the holders of the Rights.
5.14 Determination and Actions by the Board of Directors, etc. The Board of Directors
of the Company shall have the exclusive power and authority to administer this Agreement and to
exercise all rights and powers specifically granted to the Board or to the Company, or as may be
necessary or advisable in the administration of this Agreement, including, without limitation, the
right and power to (i) interpret the provisions of this Agreement
-47-
and (ii) make all determinations and calculations deemed necessary or advisable for the
administration of this Agreement. All such actions, interpretations and determinations (including,
for purposes of clause (y) below, all omissions with respect to the foregoing) done or made by the
Board, shall (x) be final, conclusive and binding on the Company, the Rights Agent, the holders of
the Rights and all other parties, and (y) not subject the Board of Directors of the Company to any
liability to the holders of the Rights. Unless otherwise notified, the Rights Agent shall always
be entitled to assume that the Board of Directors of the Company acted in good faith and the Rights
Agent shall be fully protected and shall incur no liability in reliance thereon.
5.15 Descriptive Headings; Section References. Descriptive headings appear herein for
convenience only and shall not control or affect the meaning or construction of any of the
provisions hereof. Where a reference in this Agreement is made to a Section, such reference shall
be to a Section of this Agreement unless otherwise indicated.
5.16 GOVERNING LAW. THIS AGREEMENT AND EACH RIGHT ISSUED HEREUNDER SHALL BE DEEMED TO
BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEVADA AND FOR ALL PURPOSES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE APPLICABLE TO CONTRACTS TO BE MADE AND
PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED, HOWEVER, THAT THE RIGHTS AND OBLIGATIONS OF THE
RIGHTS AGENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK APPLICABLE TO CONTRACTS TO BE MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE.
-48-
5.17 Counterparts. This Agreement may be executed in any number of counterparts and
each of such counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same instrument.
5.18 Severability. If any term or provision hereof or the application thereof to any
circumstance shall, in any jurisdiction and to any extent, be invalid or unenforceable, such term
or provision shall be ineffective as to such jurisdiction to the extent of such invalidity or
unenforceability without invalidating or rendering unenforceable the remaining terms and provisions
hereof or the application of such term or provision to circumstances other than those as to which
it is held invalid or unenforceable.
-49-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as
of the date first above written.
| SWIFT TRANSPORTATION CO., INC. | ||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: Xxxxxx X. Xxxxx | ||||
| Title: Chief Financial Officer | ||||
| MELLON INVESTOR SERVICES LLC | ||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: Xxxxxxx Xxxxxx | ||||
| Title: VP, CRE | ||||
-50-
EXHIBIT A
[FORM OF RIGHTS CERTIFICATE]
| Certificate No. W- | Rights |
THE RIGHTS ARE SUBJECT TO REDEMPTION OR MANDATORY EXCHANGE, AT THE
OPTION OF THE COMPANY, ON THE TERMS SET FORTH IN THE RIGHTS
AGREEMENT. RIGHTS BENEFICIALLY OWNED BY “ACQUIRING PERSONS” OR
“AFFILIATES” OR “ASSOCIATES” THEREOF (AS SUCH TERMS ARE DEFINED IN
THE RIGHTS AGREEMENT) OR TRANSFEREES OF ANY OF THE FOREGOING WILL
BE VOID.
RIGHTS CERTIFICATE
SWIFT TRANSPORTATION CO., INC.
This certifies that , or its registered assigns, is the registered holder
of the number of Rights set forth above, each of which entitles the registered holder thereof,
subject to the terms, provisions and conditions of the Stockholder Protection Rights Agreement,
dated as of July ___, 2006 (as amended from time to time, the “Rights Agreement”), between Swift
Transportation Co., Inc., a Nevada corporation (the “Company”), and Mellon Investor Service LLC, as
Rights Agent (the “Rights Agent”, which term shall include any successor Rights Agent under the
Rights Agreement), to purchase from the Company at any time after the Separation Time (as such term
is defined in the Rights Agreement) and prior to the Close of Business (as such term is defined in
the Rights Agreement) on July ___, 2009, one one-hundredth of a fully
A-1
paid share of Participating Preferred Stock, $0.001 par value (the “Preferred Stock”), of the
Company (subject to adjustment as provided in the Rights Agreement) at the Exercise Price referred
to below, upon presentation and surrender of this Rights Certificate with the Form of Election to
Exercise duly executed at the office of the Rights Agent designated for such purpose. The Exercise
Price shall initially be $ per Right and shall be subject to adjustment in certain events as
provided in the Rights Agreement.
In certain circumstances described in the Rights Agreement, the Rights evidenced hereby may
entitle the registered holder thereof to purchase securities of an entity other than the Company or
securities or assets of the Company other than Preferred Stock of the Company, all as provided in
the Rights Agreement.
This Rights Certificate is subject to all of the terms, provisions and conditions of the
Rights Agreement, which terms, provisions and conditions are hereby incorporated herein by
reference and made a part hereof and to which Rights Agreement reference is hereby made for a full
description of the rights, limitations of rights, obligations, duties and immunities hereunder of
the Rights Agent, the Company and the holders of the Rights Certificates. Copies of the Rights
Agreement are on file at the principal office of the Company and are available without cost upon
written request.
This Rights Certificate, with or without other Rights Certificates, upon surrender at the
office of the Rights Agent designated for such purpose, may be exchanged for another Rights
Certificate or Rights Certificates of like tenor evidencing an aggregate number of Rights equal to
the aggregate number of Rights evidenced by the
A-2
Rights Certificate or Rights Certificates so surrendered. If this Rights Certificate shall be
exercised in part, the registered holder shall be entitled to receive, upon surrender hereof,
another Rights Certificate or Rights Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, each Right evidenced by this Certificate
may be (a) redeemed by the Company under certain circumstances, at its option, at a redemption
price of $0.01 per Right or (b) exchanged by the Company under certain circumstances, at its
option, for one share of Common Stock or one one-hundredth of a share of Preferred Stock per Right
(or, in certain cases, other securities or assets of the Company), subject in each case to
adjustment in certain events as provided in the Rights Agreement.
No holder of this Rights Certificate, as such, shall be entitled to vote or receive dividends
or be deemed for any purpose the holder of any securities which may at any time be issuable on the
exercise hereof, nor shall anything contained in the Rights Agreement or herein be construed to
confer upon the holder hereof, as such, any of the rights of a stockholder of the Company or any
right to vote for the election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of
meetings or other actions affecting stockholders (except as provided in the Rights Agreement), or
to receive dividends or subscription rights, or otherwise, until the Rights evidenced by this
Rights Certificate shall have been exercised or exchanged as provided in the Rights Agreement.
A-3
This Rights Certificate shall not be valid or obligatory for any purpose until it shall have
been countersigned by the Rights Agent.
A-4
WITNESS the facsimile signature of the proper officers of the Company and its corporate seal.
Date:
|
||||||||
| ATTEST: | SWIFT TRANSPORTATION CO., INC. | |||||||
| By: | ||||||||
| Secretary | ||||||||
| Countersigned: | ||||||||
| MELLON INVESTOR SERVICES LLC | ||||||||
By
|
||||||||
| Authorized Signature | ||||||||
A-5
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer this Rights Certificate.)
holder desires to transfer this Rights Certificate.)
| FOR VALUE RECEIVED | hereby | |||||
sells, assigns and transfers unto
|
||
| (Please print name |
and address of transferee)
this Rights Certificate, together with all right, title and interest therein, and does hereby
irrevocably constitute and appoint as Attorney-in-fact, to transfer the within
Rights Certificate on the books of the within-named Company, with full power of substitution.
Dated: , ___ |
||
Signature Guaranteed: |
||
| Signature | ||
| (Signature must correspond to name as written upon the face of this Rights Certificate in every particular, without alteration or enlargement or any change whatsoever) |
Signatures must be guaranteed by an eligible guarantor as provided in Rule 17Ad-15 under the
Securities Exchange Act of 1934, as amended.
(To be completed if true)
The undersigned hereby represents, for the benefit of all holders of Rights and shares of
Common Stock, that the Rights evidenced by this Rights Certificate are not, and, to the knowledge
of the undersigned, have never been, Beneficially Owned by an Acquiring Person or an Affiliate or
Associate thereof (as each such term is defined in the Rights Agreement).
A-6
| Signature | ||
NOTICE
In the event the certification set forth above is not completed in connection with a purported
assignment, the Company will deem the Beneficial Owner of the Rights evidenced by the enclosed
Rights Certificate to be an Acquiring Person or an Affiliate or Associate thereof (as each such
term is defined in the Rights Agreement) or a transferee of any of the foregoing and accordingly
will deem the Rights evidenced by such Rights Certificate to be void and not transferable or
exercisable.
A-7
[To be attached to each Rights Certificate]
FORM OF ELECTION TO EXERCISE
(To be executed if holder desires to
exercise the Rights Certificate.)
exercise the Rights Certificate.)
TO: SWIFT TRANSPORTATION CO., INC.
The undersigned hereby irrevocably elects to exercise whole Rights
represented by the attached Rights Certificate to purchase the shares of Participating Preferred
Stock or such other securities or assets as may then be issuable upon the exercise of such Rights
and requests that certificates for such shares be issued in the name of:
| Address: | ||||||||
| Social Security or Other Taxpayer Identification Number: | ||||||||
If such number of Rights shall not be all the Rights evidenced by this Rights Certificate, a new
Rights Certificate for the balance of such Rights shall be registered in the name of and delivered
to:
| Address: | ||||||||
| Social Security or Other Taxpayer Identification Number: | ||||||||
Dated: , ___
A-8
Signature Guaranteed: |
||
| Signature | ||
| (Signature must correspond to name as written upon the face of the attached Rights Certificate in every particular, without alteration or enlargement or any change whatsoever) |
Signatures must be guaranteed by an eligible guarantor institution as provided in Rule 17Ad-15
under the Securities Exchange Act of 1934, as amended.
(To be completed if true)
The undersigned hereby represents, for the benefit of all holders of Rights and shares of
Common Stock, that the Rights evidenced by the attached Rights Certificate are not, and, to the
knowledge of the undersigned, have never been, Beneficially Owned by an Acquiring Person or an
Affiliate or Associate thereof (as each such term is defined in the Rights Agreement).
| Signature | ||
NOTICE
In the event the certification set forth above is not completed in connection with a purported
exercise, the Company will deem the Beneficial Owner of the Rights evidenced by the attached Rights
Certificate to be an Acquiring Person or an Affiliate or Associate thereof (as each such term is
defined in the Rights Agreement) or a transferee of any of the foregoing and accordingly will deem
the Rights evidenced by such Rights Certificate to be void and not transferable or exercisable.
A-9
EXHIBIT B
FORM OF CERTIFICATE OF DESIGNATION AND TERMS
OF PARTICIPATING PREFERRED STOCK OF SWIFT TRANSPORTATION CO., INC.
XXXXXXXX TO SECTION 78.195 OF THE NEVADA GENERAL CORPORATION LAW
OF PARTICIPATING PREFERRED STOCK OF SWIFT TRANSPORTATION CO., INC.
XXXXXXXX TO SECTION 78.195 OF THE NEVADA GENERAL CORPORATION LAW
We, the undersigned, and
, the ,
and , respectively, of Swift Transportation Co., Inc., a Nevada corporation (the
“Corporation”), do hereby certify as follows:
Pursuant to authority granted by Article Third of the Amended and Restated Certificate of
Incorporation of the Corporation, and in accordance with the provisions of Section 78.195 of the
General Corporation Law of the State of Nevada, the Board of Directors of the Corporation has
adopted the following resolutions fixing the designation and certain terms, powers, preferences and
other rights of a new series of the Corporation’s Preferred Stock, $0.001 par value, and certain
qualifications, limitations and restrictions thereon:
RESOLVED, that there is hereby established a series of
Preferred Stock, par value $0.001 per share, of the Corporation, and
the designation and certain terms, powers, preferences and other
rights of the shares of such series, and certain qualifications,
limitations and restrictions thereon, are hereby fixed as follows:
(i) The distinctive serial designation of this series shall be “Participating
Preferred Stock” (hereinafter called “this Series”). Each share of this Series
shall be identical in all respects with the other shares of this Series except as to
the dates from and after which dividends thereon shall be cumulative.
(ii) The number of shares in this Series shall initially be _________, which
number may from time to time be increased or decreased (but not below the number
then outstanding) by the Board of Directors. Shares of this Series purchased by the
Corporation shall be cancelled and shall revert to authorized but unissued shares of
Preferred Stock undesignated as to series. Shares of this Series may be issued in
fractional shares which are whole number multiples of one one-hundredth of a share,
which fractional shares shall entitle the holder, in proportion to such holder’s
fractional share, to all rights of a holder of a whole share of this Series.
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(iii) The holders of full or fractional shares of this Series shall be entitled
to receive, when and as declared by the Board of Directors, but only out of funds
legally available therefor, dividends, (A) on each date that dividends or other
distributions (other than dividends or distributions payable in Common Stock of the
Corporation) are payable on or in respect of Common Stock comprising part of the
Reference Package (as defined below), in an amount per whole share of this Series
equal to the aggregate amount of dividends or other distributions (other than
dividends or distributions payable in Common Stock of the Corporation) that would be
payable on such date to a holder of the Reference Package and (B) on the last day of
March, June, September and December in each year, in an amount per whole share of
this Series equal to the excess (if any) of $___over the aggregate dividends paid
per whole share of this Series during the three month period ending on such last
day. Each such dividend shall be paid to the holders of record of shares of this
Series on the date, not exceeding sixty days preceding such dividend or distribution
payment date, fixed for the purpose by the Board of Directors in advance of payment
of each particular dividend or distribution. Dividends on each full and each
fractional share of this Series shall be cumulative from the date such full or
fractional share is originally issued; provided that any such full or fractional
share originally issued after a dividend record date and on or prior to the dividend
payment date to which such record date relates shall not be entitled to receive the
dividend payable on such dividend payment date or any amount in respect of the
period from such original issuance to such dividend payment date.
The term “Reference Package” shall initially mean · shares of Common
Stock, par value $0.001 per share (“Common Stock”), of the Corporation. In the
event the Corporation shall at any time after the close of business on _________,
_________(A) declare or pay a dividend on any Common Stock payable in Common Stock, (B)
subdivide any Common Stock or (C) combine any Common Stock into
a smaller number of shares, then and in each such case the Reference Package after such event shall be
the Common Stock that a holder of the Reference Package immediately prior to such
event would hold thereafter as a result thereof.
Holders of shares of this Series shall not be entitled to any dividends,
whether payable in cash, property or stock, in excess of full cumulative dividends,
as herein provided on this Series.
So long as any shares of this Series are outstanding, no dividend (other than a
dividend in Common Stock or in any other stock ranking junior to this Series as to
dividends and upon liquidation) shall be declared or paid or set aside for payment
or other distribution declared or made upon the Common Stock or upon any other stock
ranking junior to this Series as to dividends or upon liquidation, unless the full
cumulative dividends (including the dividend to be paid upon payment of such
dividend or other distribution) on all outstanding shares of this Series shall have
been, or shall contemporaneously be, paid. When dividends are not paid in full upon
this Series and any other stock ranking on a
B-2
parity as to dividends with this Series, all dividends declared upon shares of
this Series and any other stock ranking on a parity as to dividends shall be
declared pro rata so that in all cases the amount of dividends declared per share on
this Series and such other stock shall bear to each other the same ratio that
accumulated dividends per share on the shares of the Series and such other stock
bear to each other. Neither the Common Stock nor any other stock of the Corporation
ranking junior to or on a parity with this Series as to dividends or upon
liquidation shall be redeemed, purchased or otherwise acquired for any consideration
(or any moneys be paid to or made available for a sinking fund for the redemption of
any shares of any such stock) by the Corporation (except by conversion into or
exchange for stock of the Corporation ranking junior to this Series as to dividends
and upon liquidation), unless the full cumulative dividends (including the dividend
to be paid upon payment of such dividend, distribution, redemption, purchase or
other acquisition) on all outstanding shares of this Series shall have been, or
shall contemporaneously be, paid.
(iv) In the event of any merger, consolidation, reclassification or other
transaction in which the shares of Common Stock are exchanged for or changed into
other stock or securities, cash and/or any other property, then in
any such case the shares of this Series shall at the same time be similarly exchanged or changed in a
amount per whole share equal to the aggregate amount of stock, securities, cash
and/or any other property (payable in kind), as the case may be, that a holder of
the Reference Package would be entitled to receive as a result of such transaction.
(v) In the event of any liquidation, dissolution or winding up of the affairs
of the Corporation, whether voluntary or involuntary, the holders of full and
fractional shares of this Series shall be entitled, before any distribution or
payment is made on any date to the holders of the Common Stock or any other stock of
the Corporation ranking junior to this Series upon liquidation, to be paid in full
an amount per whole share of this Series equal to the greater of (A) $_________or
(B) the aggregate amount distributed or to be distributed in connection with such
liquidation, dissolution or winding up to a holder of the Reference Package (such
greater amount being hereinafter referred to as the “Liquidation Preference”),
together with accrued dividends to such distribution or payment date, whether or not
earned or declared. If such payment shall have been made in full to
all holders of shares of this Series, the holders of shares of this Series as such shall have no
right or claim to any of the remaining assets of the Corporation.
In the event the assets of the Corporation available for distribution to the
holders of shares of this Series upon any liquidation, dissolution or winding up of
the Corporation, whether voluntary or involuntary, shall be insufficient to pay in
full all amounts to which such holders are entitled pursuant to the first paragraph
of this Section (v), no such distribution shall be made on account of any shares of
any other class or series of Preferred Stock ranking on a parity with the shares of
this Series upon such liquidation, dissolution or winding up unless
B-3
proportionate distributive amounts shall be paid on account of the shares of
this Series, ratably in proportion to the full distributable amounts for which
holders of all such parity shares are respectively entitled upon such liquidation,
dissolution or winding up.
Upon the liquidation, dissolution or winding up of the Corporation, the holders
of shares of this Series then outstanding shall be entitled to be paid out of assets
of the Corporation available for distribution to its stockholders all amounts to
which such holders are entitled pursuant to the first paragraph of this Section (v)
before any payment shall be made to the holders of Common Stock or any other stock
of the Corporation ranking junior upon liquidation to this Series.
For the purposes of this Section (v), the consolidation or merger of, or
binding statutory share exchange by, the Corporation with any other corporation
shall not be deemed to constitute a liquidation, dissolution or winding up of the
Corporation.
(vi) The shares of this Series shall not be redeemable.
(vii) In addition to any other vote or consent of stockholders required by law
or by the Amended and Restated Certificate of Incorporation, as amended, of the
Corporation, and except as otherwise required by law, each share (or fraction
thereof) of this Series shall, on any matter, vote as a class with any other capital
stock comprising part of the Reference Package and shall have the number of votes
thereon that a holder of the Reference Package would have.
IN WITNESS WHEREOF, the undersigned have signed and attested this certificate on the day
of , .
Attest: |
||
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