AMENDMENT NO. 1 TO STOCKHOLDER PROTECTION RIGHTS AGREEMENT
Exhibit 4.1
AMENDMENT NO. 1 TO
STOCKHOLDER PROTECTION RIGHTS AGREEMENT
STOCKHOLDER PROTECTION RIGHTS AGREEMENT
This Amendment No. 1, dated as of January 19, 2007 (this “Amendment”), to the
Stockholder Protection Rights Agreement, dated July 18, 2006 (the “Rights Agreement”), by
and between Swift Transportation Co., Inc., a Nevada corporation (the “Company”), and
Mellon Investor Services LLC, a New Jersey limited liability company, as Rights Agent (the
“Rights Agent”, which term shall include any successor Rights Agent thereunder).
Capitalized terms used but not defined herein shall have the meanings set forth in the Rights
Agreement.
WHEREAS, the Company and the Rights Agent have previously entered into the Rights Agreement;
WHEREAS, the Company wishes to amend the Rights Agreement and the Board of Directors of the
Company has taken all necessary action to effect the same;
WHEREAS, Section 5.4 of the Rights Agreement provides, among other things, that prior to the
Flip-in Date, the Company and the Rights Agent may from time to time amend, and the Rights Agent
will duly execute such amendment to, the Rights Agreement without the approval of any holders of
Rights;
WHEREAS, the Company, Saint Corporation, a Nevada corporation (“Parent”), and Saint
Acquisition Corporation, a Nevada corporation and a wholly owned subsidiary of Parent
(“MergerCo”), have entered into an Agreement and Plan of Merger, dated as of January 19,
2007 (the “Merger Agreement”), pursuant to which MergerCo will merge with and into the
Company (the “Merger”), with the Company surviving the Merger;
WHEREAS, concurrently with the execution of the Merger Agreement, as a condition and
inducement to the Company’s willingness to enter into the Merger Agreement, the Company and certain
stockholders of the Company entered into a voting agreement (the “Voting Agreement”); and
WHEREAS, in connection with the Merger, certain stockholders of the Company will contribute to
Parent immediately prior to the Effective Time (as defined in the Merger Agreement) certain shares
of Common Stock and certain other assets in exchange for shares of capital stock of Parent.
NOW, THEREFORE, in consideration of the foregoing and mutual agreements set forth in the
Rights Agreement and this Amendment, the parties agree as follows:
1. Amendments to Section 1.1. Section 1.1 of the Rights Agreement is amended as
follows:
(a) To add the following sentence after the last sentence of the definition of “Acquiring
Person”:
“Notwithstanding the foregoing or any provision to the contrary in this Agreement,
neither Parent nor MergerCo, nor any of their respective Subsidiaries,
Affiliates or Associates, are, nor shall any of them be deemed to be, an Acquiring
Person by virtue of (i) the execution of the Merger Agreement or the announcement or
consummation of the transactions contemplated thereby pursuant to the terms of the
Merger Agreement or their acquisition, or their right to acquire, beneficial
ownership of Common Stock of the Company as a result of their execution of the
Merger Agreement, (ii) the consummation of the Merger (as defined in the Merger
Agreement), or (iii) the entry into, or consummation of the transactions
contemplated or permitted by, the Rollover Commitments (as in effect as of the date
hereof) or new Rollover Commitments executed by any of the parties to the Voting
Agreement, the Voting Agreement and any other agreements solely among the parties to
such agreements in connection with the Merger.”
(b) To add the following clause immediately before the period at the end of the definition of
“Expiration Time”:
“; provided, however, that notwithstanding the foregoing, this
Agreement and the Rights established hereby will terminate in all respects as of the
Effective Time (as defined in the Merger Agreement). The Company hereby agrees to
promptly notify the Rights Agent, in writing, upon the occurrence of the Effective
Time (as defined in the Merger Agreement), which notice shall specify (i) that the
Effective Time (as defined in the Merger Agreement) has occurred, and (ii) the date
upon which this Agreement and the Rights established hereby were terminated.”
(c) To add the following clause immediately before the period at the end of the definition of
“Flip-in Date”:
“; provided, however, that notwithstanding the foregoing, a Flip-in
Date shall not occur or be deemed to have occurred as a result of (i) the execution
of the Merger Agreement or the announcement or consummation of the transactions
contemplated thereby pursuant to the terms of the Merger Agreement or (ii) the entry
into, or consummation of the transactions contemplated or permitted by, the Rollover
Commitments (as in effect as of the date hereof) or new Rollover Commitments
executed by any of the parties to the Voting Agreement, the Voting Agreement and any
other agreements solely among the parties to such agreements in connection with the
Merger.”
(d) To add the following clause immediately before the period at the end of the first sentence
of the definition of “Flip-over Transaction or Event”:
“; provided, however, that notwithstanding the foregoing, a
Flip-over Transaction or Event shall not occur or be deemed to have occurred as a
result of (i) the execution of the Merger Agreement or the announcement or
consummation of the transactions contemplated thereby pursuant to the terms of the
Merger Agreement or (ii) the entry into, or consummation of the transactions
contemplated or permitted by, the Rollover Commitments (as in effect as of the date
hereof) or new Rollover Commitments executed by any of the parties to the Voting
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Agreement, the Voting Agreement and any other agreements solely among the parties to
such agreements in connection with the Merger.”
(e) To insert the following defined terms immediately after the definition of “Market Price”:
“‘Merger Agreement’ shall mean the Agreement and Plan of Merger, dated as of January
19, 2007 (and as may be amended from time to time), by and among Parent, MergerCo
and the Company.”
“‘MergerCo’ shall mean Saint Acquisition Corporation, a Nevada corporation and a
wholly owned subsidiary of Parent.”
(f) To insert the following defined term immediately after the definition of “Outside Meeting
Date”:
“‘Parent’ shall mean Saint Corporation, a Nevada corporation.”
(g) To add the following sentence after the last sentence of the definition of “Qualifying
Offer”:
“Notwithstanding the foregoing, a Qualifying Offer shall not shall include any offer
in connection with the execution of the Merger Agreement or the announcement or
consummation of the transactions contemplated thereby pursuant to the terms of the
Merger Agreement.”
(h) To insert the following defined terms immediately after the definition of “Rights
Register”:
“‘Rollover Commitments’ shall mean those equity rollover letters, dated as of
January 19, 2007 (as in effect as of the date hereof), by and among Parent and
certain stockholders of the Company, pursuant to which such stockholders have
committed to contribute to Parent certain shares of Common Stock and certain other
assets in exchange for shares of capital stock of Parent.”
(i) To add the following clause immediately before the period at the end of the definition of
“Separation Time”:
“; and provided further, that notwithstanding the foregoing, the Separation
Time shall not occur or be deemed to have occurred as a result of (i) the execution
of the Merger Agreement or the announcement or consummation of the transactions
contemplated thereby pursuant to the terms of the Merger Agreement or (ii) the entry
into, or consummation of the transactions contemplated or permitted by, the Rollover
Commitments (as in effect as of the date hereof) or new Rollover Commitments
executed by any of the parties to the Voting Agreement, the Voting Agreement and any
other agreements solely among the parties to such agreements in connection with the
Merger.”
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(j) To add the following clause immediately before the period at the end of the definition of
“Stock Acquisition Date”:
“; provided, however, that notwithstanding the foregoing, a Stock
Acquisition Date shall not occur or be deemed to have occurred as a result of (i)
the execution of the Merger Agreement or the announcement or consummation of the
transactions contemplated thereby pursuant to the terms of the Merger Agreement or
(ii) the entry into, or consummation of the transactions contemplated or permitted
by, the Rollover Commitments (as in effect as of the date hereof) or new Rollover
Commitments executed by any of the parties to the Voting Agreement, the Voting
Agreement and any other agreements solely among the parties to such agreements in
connection with the Merger.”
2. Amendment to Section 2.3. Section 2.3 of the Rights Agreement is amended to add
the following paragraph (h) after paragraph (g) thereof:
“(h) Notwithstanding the foregoing or any provision to the contrary in this
Agreement, the Separation Time shall not occur or be deemed to have occurred as a
result of the execution of (i) the Merger Agreement or the announcement or
consummation of the transactions contemplated thereby pursuant to the terms of the
Merger Agreement or (ii) the entry into, or consummation of the transactions
contemplated or permitted by, the Rollover Commitments (as in effect as of the date
hereof) or new Rollover Commitments executed by any of the parties to the Voting
Agreement, the Voting Agreement and any other agreements solely among the parties to
such agreements in connection with the Merger.”
3. Amendment to Section 2.4(b). Section 2.4(b) of the Rights Agreement is amended to
add the following proviso at the end of such section:
“; provided, however, that notwithstanding the foregoing, no
provision for adjustment shall be made pursuant to this Section 2.4(b) as a result
of (i) the execution of the Merger Agreement or the announcement or consummation of
the transactions contemplated thereby pursuant to the terms of the Merger Agreement
or (ii) the entry into, or consummation of the transactions contemplated or
permitted by, the Rollover Commitments (as in effect as of the date hereof) or new
Rollover Commitments executed by any of the parties to the Voting Agreement, the
Voting Agreement and any other agreements solely among the parties to such
agreements in connection with the Merger.”
4. Definitions. The term “Agreement” or “Rights Agreement” as used in the Rights
Agreement shall be deemed to refer to the Rights Agreement as amended hereby, and all references to
the Agreement or Rights Agreement shall be deemed to include this Amendment.
5. Full Force and Effect. This Amendment shall be effective immediately upon
execution by the Company, whether or not also executed by the Rights Agent. Except as expressly
amended hereby, all of the provisions of the Rights Agreement are hereby ratified and
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confirmed to be in full force and effect in accordance with the provisions thereof on the date
hereof.
6. Governing Law. This Amendment shall be governed by and construed in accordance
with the law of the State of Nevada 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.
7. Descriptive Headings. Descriptive headings of the several Sections of this
Amendment are inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
8. Counterparts. This Agreement may be executed in two or more counterparts, all of
which shall be considered one and the same agreement and shall become effective when one or more
counterparts have been signed by each of the parties and delivered to the other parties.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Company and the Rights Agent have caused this Amendment to be duly
executed as of the day and year first above written.
| SWIFT TRANSPORTATION CO., INC. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| MELLON INVESTOR SERVICES LLC |
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| By: | ||||
| Name: | ||||
| Title: | ||||
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