SWIFT TRANSPORTATION COMPANY [•] Shares of Class A Common Stock Form of Underwriting Agreement
Exhibit 1.1
SWIFT TRANSPORTATION COMPANY
[•] Shares of Class A Common Stock
[•] Shares of Class A Common Stock
Form of Underwriting Agreement
December [•], 2010
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Fargo Securities, LLC
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Fargo Securities, LLC
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Swift Transportation Company, a Delaware corporation (the “Company”) and a
wholly-owned subsidiary of Swift Corporation, a Nevada corporation (“Swift”), proposes to
issue and sell to the several Underwriters listed in Schedule 1 hereto (the
“Underwriters”), for whom you are acting as representatives (the
“Representatives”), an aggregate of [•] shares of Class A Common Stock, par value $0.01 per
share, of the Company (the “Underwritten Shares”) and, at the option of the Underwriters,
up to an additional [•] shares of Class A Common Stock of the Company (the “Option
Shares”). The Underwritten Shares and the Option Shares are herein referred to as the
“Shares”. The shares of Class A Common Stock of the Company to be outstanding after giving
effect to the sale of the Shares are referred to herein as the “Stock”.
In connection with the consummation of the offering contemplated by this agreement, (i) Swift
will merge with and into the Company with the Company surviving such merger (the “Merger”),
(ii) Swift Transportation Co., LLC (“Swift Transportation”) will enter into a senior
secured credit agreement among Swift Transportation and the guarantors and lenders party thereto
(the “New Credit Agreement”) providing for a $[•] million revolving credit facility and a
$[•] million term loan facility, (iii) Swift Services Holdings, Inc. (“Swift Services”)
will issue $[•] million in aggregate principal amount of senior secured second-lien notes (the
“New Notes”) in a private placement and (iv) Swift Transportation will conduct a tender
offer and consent solicitation to repurchase all of its outstanding Second-Priority Senior Secured
Floating Rate Notes due 2015 (the “Floating Rate Notes”) and its 121/2% Second-Priority
Senior Secured Fixed Rate Notes due 2017 (the “Fixed Rate Notes” and, together with the
Floating Rate Notes, the “Existing Notes”) (such transactions are collectively referred to
herein as the “Concurrent Transactions”).
The Company and the Underwriters, in accordance with the requirements of NASD Rule 2720
(“Rule 2720”) of the Financial Industry Regulatory Authority, Inc. (“FINRA”) and
subject to the terms and conditions stated herein, also hereby confirm the engagement of the
services of
Xxxxx Fargo Securities, LLC (“Xxxxx Fargo”) as a “qualified independent underwriter”
within the meaning of Rule 2720(f)(12) in connection with the offering and sale of the Shares.
The Company and Swift hereby confirm their agreement with the several Underwriters concerning
the purchase and sale of the Shares, as follows:
1. Registration Statement. The Company has prepared and filed with the Securities and
Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the “Securities
Act”), a registration statement (File No. 333-168257), including a prospectus, relating to the
Shares. Such registration statement, as amended at the time it became effective, including the
information, if any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act to be part
of the registration statement at the time of its effectiveness (“Rule 430 Information”), is
referred to herein as the “Registration Statement”; and as used herein, the term
“Preliminary Prospectus” means each prospectus included in such registration statement (and
any amendments thereto) before effectiveness, any prospectus filed with the Commission pursuant to
Rule 424(a) under the Securities Act and the prospectus included in the Registration Statement at
the time of its effectiveness that omits Rule 430 Information, and the term “Prospectus”
means the prospectus in the form first used (or made available upon request of purchasers pursuant
to Rule 173 under the Securities Act) in connection with confirmation of sales of the Shares. If
the Company has filed an abbreviated registration statement pursuant to Rule 462(b) under the
Securities Act (the “Rule 462 Registration Statement”), then any reference herein to the
term “Registration Statement” shall be deemed to include such Rule 462 Registration Statement.
Capitalized terms used but not defined herein shall have the meanings given to such terms in the
Registration Statement and the Prospectus.
At or prior to the Applicable Time (as defined below), the Company had prepared the following
information (collectively with the pricing information set forth on Annex B, the “Pricing
Disclosure Package”): a Preliminary Prospectus dated November 30, 2010 and each
“free-writing prospectus” (as defined pursuant to Rule 405 under the Securities Act) listed
on Annex B hereto.
“Applicable Time” means [•] P.M., New York City time, on December [•], 2010.
2. Purchase of the Shares by the Underwriters. (a) On the basis of the
representations, warranties and agreements set forth herein and subject to the conditions set forth
herein, the Company agrees to issue and sell the Underwritten Shares to the several Underwriters as
provided in this Agreement, and each Underwriter, on the basis of the representations, warranties
and agreements set forth herein and subject to the conditions set forth herein, agrees, severally
and not jointly, to purchase from the Company the respective number of Underwritten Shares set
forth opposite such Underwriter’s name in Schedule 1 hereto at a price per share of $[•] (the
“Purchase Price”). The public offering price of the Shares is not in excess of the price
recommended by Xxxxx Fargo, acting as a “qualified independent underwriter” within the meaning of
Rule 2720.
In addition, the Company agrees to issue and sell the Option Shares to the several
Underwriters as provided in this Agreement, and the Underwriters, on the basis of the
representations, warranties and agreements set forth herein and subject to the conditions set forth
herein, shall have the option to purchase, severally and not jointly, from the Company the Option
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Shares at the Purchase Price less an amount per share equal to any dividends or distributions
declared by the Company and payable on the Underwritten Shares but not payable on the Option
Shares.
If any Option Shares are to be purchased, the number of Option Shares to be purchased by each
Underwriter shall be the number of Option Shares which bears the same ratio to the aggregate number
of Option Shares being purchased as the number of Underwritten Shares set forth opposite the name
of such Underwriter in Schedule 1 hereto (or such number increased as set forth in Section 10
hereof) bears to the aggregate number of Underwritten Shares being purchased from the Company by
the several Underwriters, subject, however, to such adjustments to eliminate any fractional Shares
as the Representatives in their sole discretion shall make.
The Underwriters may exercise the option to purchase Option Shares at any time in whole, or
from time to time in part, on or before the thirtieth day following the date of this Agreement, by
written notice from the Representatives to the Company. Such notice shall set forth the aggregate
number of Option Shares as to which the option is being exercised and the date and time when the
Option Shares are to be delivered and paid for, which may be the same date and time as the Closing
Date (as hereinafter defined) but shall not be earlier than the Closing Date or later than the
tenth full business day (as hereinafter defined) after the date of such notice (unless such time
and date are postponed in accordance with the provisions of Section 10 hereof). Any such notice
shall be given at least two business days prior to the date and time of delivery specified therein.
(b) The Company understands that the Underwriters intend to make a public offering of the
Shares as soon after the effectiveness of this Agreement as in the judgment of the Representatives
is advisable, and initially to offer the Shares on the terms set forth in the Prospectus. The
Company acknowledges and agrees that the Underwriters may offer and sell Shares to or through any
affiliate of an Underwriter.
(c) Payment for the Shares shall be made by wire transfer in immediately available funds to
the account specified by the Company to the Representatives in the case of the Underwritten Shares,
at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at
10:00 A.M., New York City time, on December [•], 2010, or at such other time or place on the same
or such other date, not later than the fifth business day thereafter, as the Representatives and
the Company may agree upon in writing or, in the case of the Option Shares, on the date and at the
time and place specified by the Representatives in the written notice of the Underwriters’ election
to purchase such Option Shares. The time and date of such payment for the Underwritten Shares is
referred to herein as the “Closing Date”, and the time and date for such payment for the
Option Shares, if other than the Closing Date, is herein referred to as the “Additional Closing
Date”.
Payment for the Shares to be purchased on the Closing Date or the Additional Closing Date, as
the case may be, shall be made against delivery to the Representatives for the respective accounts
of the several Underwriters of the Shares to be purchased on such date with any transfer taxes
payable in connection with the sale of such Shares duly paid by the Company. Delivery of the
Shares shall be made through the facilities of The Depository Trust Company (“DTC”) unless
the Representatives shall otherwise instruct.
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(d) The Company acknowledges and agrees that the Underwriters are acting solely in the
capacity of an arm’s length contractual counterparty to the Company with respect to the offering of
Shares contemplated hereby (including in connection with determining the terms of the offering) and
not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person.
Additionally, neither the Representatives nor any other Underwriter is advising the Company or any
other person as to any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be
responsible for making its own independent investigation and appraisal of the transactions
contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company
with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated
hereby or other matters relating to such transactions will be performed solely for the benefit of
the Underwriters and shall not be on behalf of the Company.
3. Representations and Warranties of the Company and Swift. The Company and Swift,
jointly and severally, represent and warrant to each Underwriter that:
(a) Preliminary Prospectus. No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary Prospectus included in the
Pricing Disclosure Package, at the time of filing thereof, complied in all material respects with
the Securities Act, and no Preliminary Prospectus, at the time of filing thereof, contained any
untrue statement of a material fact or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not
misleading; provided that neither the Company nor Swift makes any representation or
warranty with respect to any statements or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use in any Preliminary Prospectus, it being understood
and agreed that the only such information furnished by any Underwriter consists of the information
described as such in Section 7(b) hereof.
(b) Pricing Disclosure Package. The Pricing Disclosure Package as of the Applicable Time did
not contain any untrue statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading; provided that neither the Company nor Swift makes any representation or
warranty with respect to any statements or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use in such Pricing Disclosure Package, it being
understood and agreed that the only such information furnished by any Underwriter consists of the
information described as such in Section 7(b) hereof.
(c) Issuer Free Writing Prospectus. Other than the Registration Statement, the Preliminary
Prospectus and the Prospectus, neither the Company nor Swift (including their agents and
representatives, other than the Underwriters in their capacity as such) has prepared, used,
authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any
“written communication” (as defined in Rule 405 under the Securities Act) that constitutes
an offer to sell or solicitation of an offer to buy the Shares (each such communication by the
Company or its agents and representatives (other than a communication referred to in clause (i)
below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a
prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities
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Act or (ii) the documents listed on Annex B hereto, each electronic road show and any other
written communications approved in writing in advance by the Representatives. Each such Issuer
Free Writing Prospectus complied in all material respects with the Securities Act, has been or will
be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to
the extent required thereby) and, when taken together with the Preliminary Prospectus accompanying,
or delivered prior to delivery of such Issuer Free Writing Prospectus, did not, contain any untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
provided that neither the Company nor Swift makes any representation and warranty with
respect to any statements or omissions made in each such Issuer Free Writing Prospectus or
Preliminary Prospectus in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter through the Representatives
expressly for use in such Issuer Free Writing Prospectus or Preliminary Prospectus, it being
understood and agreed that the only such information furnished by any Underwriter consists of the
information described as such in Section 7(b) hereof.
(d) Registration Statement and Prospectus. The Registration Statement has been declared
effective by the Commission. No order suspending the effectiveness of the Registration Statement
has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of
the Securities Act against the Company or related to the offering of the Shares has been initiated
or, to the knowledge of the Company or Swift, threatened by the Commission; as of the applicable
effective date of the Registration Statement and any post-effective amendment thereto, the
Registration Statement and any such post-effective amendment complied and will comply in all
material respects with the Securities Act, and did not and will not contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and as of the date of the Prospectus and any
amendment or supplement thereto and as of the Closing Date and as of the Additional Closing Date,
as the case may be, the Prospectus will not contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that neither the Company
nor Swift makes any representation or warranty with respect to any statements or omissions made in
reliance upon and in conformity with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representatives expressly for use in the
Registration Statement and the Prospectus and any amendment or supplement thereto, it being
understood and agreed that the only such information furnished by any Underwriter consists of the
information described as such in Section 7(b) hereof.
(e) Financial Statements. The financial statements (including the related notes thereto) of
the Company and of Swift and its consolidated subsidiaries included in the Registration Statement,
the Pricing Disclosure Package and the Prospectus comply in all material respects with the
applicable requirements of the Securities Act and present fairly the financial position of the
Company, on the one hand, and Swift and its consolidated subsidiaries, on the other hand, as of the
dates indicated and the results of their respective operations and the changes in their respective
cash flows for the periods specified; such financial statements have been prepared in conformity
with generally accepted accounting principles in the United States applied on a consistent basis
throughout the periods covered thereby, and any supporting schedules included in the Registration
Statement present fairly the information required to be
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stated therein; and the other financial information included in the Registration Statement,
the Pricing Disclosure Package and the Prospectus has been derived from the accounting records of
the Company or of Swift and its consolidated subsidiaries, and presents fairly the information
shown thereby.
(f) No Material Adverse Change. Since the date of the most recent financial statements of the
Company and Swift included in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, (i) there has not been any change in the capital stock (other than the issuance of
shares of Common Stock upon exercise of stock options, warrants or other rights described as
outstanding in, and the grant of options and awards under existing equity incentive plans described
in, the Registration Statement, the Pricing Disclosure Package and the Prospectus), short-term debt
or long-term debt (other than (A) the entry by Swift Transportation into the New Credit Agreement,
and the secured guarantees of its obligations thereunder by the Company and certain of its domestic
subsidiaries, (B) Swift Transportation’s repayment or other discharge of the Existing Credit
Agreement (as defined below), the release of all existing liens thereunder and the termination of
related interest rate swap agreements, (C) the issuance by Swift Services of the New Notes, and the
secured guarantees of its obligations thereunder by the Company and by certain of its domestic
subsidiaries and (D) the repurchase by Swift Transportation of the Existing Notes, in each case, as
described in the Registration Statement, the Pricing Disclosure Package and the Prospectus) of the
Company, Swift or any of their subsidiaries, or any dividend or distribution of any kind declared,
set aside for payment, paid or made by the Company or Swift on any class of capital stock, or any
material adverse change, or any development involving a prospective material adverse change, in or
affecting the business, properties, management, financial position, stockholders’ equity, results
of operations or prospects of the Company, Swift and their subsidiaries taken as a whole; (ii) none
of the Company, Swift nor any of their subsidiaries has entered into any transaction or agreement
(whether or not in the ordinary course of business) that is material to the Company, Swift and
their subsidiaries taken as a whole or incurred any liability or obligation, direct or contingent,
that is material to the Company, Swift and their subsidiaries taken as a whole; and (iii) neither
the Company or Swift nor any of their subsidiaries has sustained any loss or interference with its
business that is material to the Company, Swift and their subsidiaries taken as a whole and that is
either from fire, explosion, flood or other calamity, whether or not covered by insurance, or from
any labor disturbance or dispute or any action, order or decree of any court or arbitrator or
governmental or regulatory authority, except in case of clauses (i), (ii) and (iii), as otherwise
disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(g) Organization and Good Standing. The Company, Swift and each of their subsidiaries have
been duly organized and are validly existing and in good standing under the laws of their
respective jurisdictions of organization, are duly qualified to do business and are in good
standing in each jurisdiction in which their respective ownership or lease of property or the
conduct of their respective businesses requires such qualification, and have all power and
authority necessary to own or hold their respective properties and to conduct the businesses in
which they are engaged, except where the failure to be so qualified or in good standing or have
such power or authority would not, individually or in the aggregate, have a material adverse effect
on the business, properties, management, financial position, stockholders’ equity, results of
operations or prospects of the Company, Swift and their subsidiaries taken as a whole or on the
performance by either the Company or Swift of its obligations under this Agreement (a “Material
Adverse Effect”). Neither the Company nor Swift owns or controls, directly or
indirectly, any
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corporation, association or other entity other than the subsidiaries listed in
Exhibit 21.1 to the Registration Statement.
(h) Capitalization. Upon the completion of the offering, the Company will have an authorized
capitalization as set forth in the Registration Statement, the Pricing Disclosure Package and the
Prospectus under the subheading “As Adjusted” under the heading “Capitalization”; all the
outstanding shares of capital stock of each of the Company and Swift have been duly and validly
authorized and issued and are fully paid and non-assessable and are not subject to any pre-emptive
or similar rights in connection with the offer and sale of the Shares; except as described in or
expressly contemplated by the Pricing Disclosure Package and the Prospectus, there are no
outstanding rights (including, without limitation, pre-emptive rights), warrants or options to
acquire, or instruments convertible into or exchangeable for, any shares of capital stock or other
equity interest in the Company, Swift or any of their subsidiaries, or any contract, commitment,
agreement, understanding or arrangement of any kind relating to the issuance of any capital stock
of the Company, Swift or any such subsidiary, any such convertible or exchangeable securities or
any such rights, warrants or options; the capital stock of the Company conforms in all material
respects to the description thereof contained in the Registration Statement, the Pricing Disclosure
Package and the Prospectus; and all the outstanding shares of capital stock or other equity
interests of each subsidiary owned, directly or indirectly, by the Company or Swift have been duly
and validly authorized and issued, are fully paid and non-assessable (except, in the case of any
foreign subsidiary, for directors’ qualifying shares and except as otherwise described in the
Registration Statement, the Pricing Disclosure Package and the Prospectus) and are owned directly
or indirectly by the Company, free and clear of any lien, charge, encumbrance, security interest,
restriction on voting or transfer or any other claim of any third party.
(i) Stock Options. With respect to the stock options (the “Stock Options”) granted
pursuant to the stock-based compensation plans of the Company, Swift and their subsidiaries (the
“Company Stock Plans”), (i) each Stock Option intended to qualify as an “incentive stock
option” under Section 422 of the Internal Revenue Code of 1986, as amended including the
regulations and published interpretations thereunder (the “Code”), so qualifies, (ii) each
grant of a Stock Option was duly authorized no later than the date on which the grant of such Stock
Option was by its terms to be effective (the “Grant Date”) by all necessary corporate
action, including, as applicable, approval by the board of directors of the Company (or a duly
constituted and authorized committee thereof) and any required stockholder approval by the
necessary number of votes or written consents, and the award agreement governing such grant (if
any) was duly executed and delivered by each party thereto, (iii) each such grant has an exercise
price equal to no less than the fair market value of the underlying share of common stock on the
Grant Date, (iv) each such grant was made in accordance with the terms of the Company Stock Plans
and all other applicable laws and regulatory rules or requirements, including the rules of The New
York Stock Exchange (the “NYSE”) and any other exchange on which Company securities are
traded, and (v) each such grant was properly accounted for in accordance with GAAP in the financial
statements (including the related notes) of the Company or Swift. Neither the Company nor Swift
has knowingly granted, and there is no and has been no policy or practice of the Company or Swift
of granting, Stock Options prior to, or otherwise coordinating the grant of Stock Options with, the
release or other public announcement of material information regarding the Company, Swift or their
subsidiaries or their results of operations or prospects.
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(j) Due Authorization. Each of the Company and Swift has full right, power and authority to
execute and deliver this Agreement and to perform its obligations hereunder; and all action
required to be taken for the due and proper authorization, execution and delivery by each of them
of this Agreement and the consummation by each of them of the transactions contemplated hereby has
been duly and validly taken.
(k) Underwriting Agreement. This Agreement has been duly authorized, executed and delivered
by each of the Company and Swift.
(l) The Shares. The Shares to be issued and sold by the Company hereunder have been duly
authorized and, when issued and delivered and paid for as provided herein, will be duly and validly
issued, will be fully paid and nonassessable and will conform to the descriptions thereof in the
Registration Statement, the Pricing Disclosure Package and the Prospectus; and the issuance of the
Shares is not subject to any preemptive or similar rights.
(m) Descriptions of Transaction Documents. The agreements documenting the Concurrent
Transactions conform in all material respects to the descriptions thereof contained in the
Registration Statement, the Pricing Disclosure Package and the Prospectus.
(n) No Violation or Default. Neither the Company, Swift nor any of their subsidiaries is
(i) in violation of its charter or by-laws or similar organizational documents; (ii) in default,
and no event has occurred that, with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the
Company, Swift or any of their subsidiaries is a party or by which the Company, Swift or any of
their subsidiaries is bound or to which any of the property or assets of the Company, Swift or any
of their subsidiaries is subject; or (iii) in violation of any law or statute or any judgment,
order, rule or regulation of any court or arbitrator or governmental or regulatory authority,
except, in the case of clauses (ii) and (iii) above, for any such default or violation that would
not, individually or in the aggregate, have a Material Adverse Effect.
(o) No Conflicts. The execution, delivery and performance by each of the Company and Swift of
this Agreement, the issuance and sale of the Shares and the consummation of the transactions
contemplated hereby will not (i) conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under (other than with respect to the cancellation
of the stockholder loan from Swift Corporation to Xxxxx Xxxxx and his affiliates vis-à-vis the
Existing Credit Agreement), or result in the creation or imposition of any lien (other than
permitted liens under the indentures governing the Floating Rate Notes and Fixed Rate Notes, and
the Existing Credit Agreement), charge or encumbrance upon any property or assets of the Company,
Swift or any of their subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company, Swift or any of their subsidiaries
is a party or by which the Company, Swift or any of their subsidiaries is bound or to which any of
the property or assets of the Company, Swift or any of their subsidiaries is subject, (ii) result
in any violation of the provisions of the charter or by-laws or similar organizational documents of
the Company, Swift or any of their subsidiaries or (iii) result in the violation of any law or
statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or
regulatory authority, except, in the case of clauses (i) and (iii) above, for any
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such conflict, breach, violation or default that would not, individually or in the aggregate,
have a Material Adverse Effect.
(p) No Consents Required. No consent, approval, authorization, order, license, registration
or qualification of or with any court or arbitrator or governmental or regulatory authority is
required for the execution, delivery and performance by each of the Company and Swift of this
Agreement, the issuance and sale of the Shares and the consummation of the transactions
contemplated hereby, except for (i) the registration of the Shares under the Securities Act and
(ii) such consents, approvals, authorizations, orders and registrations or qualifications as may be
required by FINRA and under applicable state securities laws in connection with the purchase and
distribution of the Shares by the Underwriters.
(q) Legal Proceedings. Except as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, there are no legal, governmental or regulatory
investigations, actions, suits or proceedings pending or threatened to which the Company, Swift or
any of their subsidiaries is a party or to which any of the properties of the Company, Swift or any
of their subsidiaries is the subject that could reasonably be expected to have a Material Adverse
Effect; no such investigations, actions, suits or proceedings have been threatened or, to the
knowledge of the Company or Swift, are contemplated by any governmental or regulatory authority;
and (i) there are no current or pending legal, governmental or regulatory actions, suits or
proceedings that are required under the Securities Act to be described in the Registration
Statement, the Pricing Disclosure Package or the Prospectus that are not so described in the
Registration Statement, the Pricing Disclosure Package and the Prospectus and (ii) there are no
statutes, regulations or contracts or other documents that are required under the Securities Act to
be filed as exhibits to the Registration Statement or described in the Registration Statement, the
Pricing Disclosure Package or the Prospectus that are not so filed as exhibits to the Registration
Statement or described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus.
(r) Independent Accountants. KPMG LLP, who have certified certain financial statements of the
Company and of Swift and its consolidated subsidiaries, is an independent registered public
accounting firm with respect to the Company and to Swift within the applicable rules and
regulations adopted by the Commission and the Public Company Accounting Oversight Board (United
States) and as required by the Securities Act.
(s) Title to Real and Personal Property. Except as described in the Registration Statement,
the Pricing Disclosure Package and the Prospectus, the Company, Swift and their subsidiaries have
good and marketable title in fee simple (in the case of real property) to, or have valid and
marketable rights to lease or otherwise use, all items of real and personal property and assets
that are material to the respective businesses of the Company, Swift and their subsidiaries, that
are described as owned or leased by them, respectively, in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, in each case free and clear of all liens, encumbrances,
claims and defects and imperfections of title except those that (i) do not materially interfere
with the use made and proposed to be made of such property by the Company, Swift and their
subsidiaries or (ii) could not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
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(t) Title to Intellectual Property. The Company, Swift and their subsidiaries own, possess or
have other rights to use, or can acquire on reasonable terms, all material patents, patent
applications, trademarks, service marks, trade names, trademark registrations, service xxxx
registrations, copyrights, licenses and know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or procedures) (collectively,
“Intellectual Property”) necessary for the conduct of their respective businesses except
where the failure to own or possess or otherwise be able to acquire such Intellectual Property
would not, singly or in the aggregate, have a Material Adverse Effect, and none of the Company,
Swift or any of their subsidiaries is aware of, or has received any notice of, infringement of or
conflict with asserted rights of others with respect to any of the foregoing which, singly or in
the aggregate, ruling or finding, could reasonably be expected to have a Material Adverse Effect.
(u) No Undisclosed Relationships. No relationship, direct or indirect, exists between or
among the Company, Swift or any of their subsidiaries, on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company, Swift or any of their subsidiaries,
on the other, that is required by the Securities Act to be described in the Registration Statement
and the Prospectus and that is not so described in such documents and in the Pricing Disclosure
Package.
(v) Investment Company Act. The Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, will not be required to register as
an “investment company” or an entity “controlled” by an “investment company” within the meaning of
the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission
thereunder (collectively, the “Investment Company Act”).
(w) Taxes. The Company, Swift and their subsidiaries have paid all federal, state, local and
foreign taxes and filed all tax returns required to be paid or filed through the date hereof,
except for any taxes as may be being contested in good faith and by appropriate proceedings and
except where a default to make such filings or payments would not result in a Material Adverse
Effect; and no tax deficiency has been asserted against any such entity which, if determined
adversely to any such entity, could reasonably be expected to have a Material Adverse Effect.
(x) Licenses and Permits. The Company, Swift and their subsidiaries possess all licenses,
certificates, permits and other authorizations issued by, and have made all declarations and
filings with, the appropriate federal, state, local or foreign governmental or regulatory
authorities that are necessary for the ownership or lease of their respective properties or the
conduct of their respective businesses as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, except where the failure to possess or make the same would
not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
and except as described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, none of the Company, Swift nor any of their subsidiaries has received notice of any
revocation or modification of any such license, certificate, permit or authorization or has any
reason to believe that any such license, certificate, permit or authorization will not be renewed
in the ordinary course, except for any such revocation, modification or failure to renew that would
not reasonably be expected to have a Material Adverse Effect.
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(y) No Labor Disputes. No labor disturbance by or dispute with employees of the Company or
any of its subsidiaries exists or, to the knowledge of the Company, is contemplated or threatened,
and the Company is not aware of any existing or imminent labor disturbance by, or dispute with, the
employees of any of its or its subsidiaries’ principal suppliers, contractors or customers, except
as would not have a Material Adverse Effect.
(z) Compliance with and Liability under Environmental Laws. Except as described the
Registration Statement, the Pricing Disclosure Package and the Prospectus, (i) the Company, Swift
and their subsidiaries (a) are in compliance with, and have not violated, any and all applicable
federal, state, local and foreign laws (including common law), rules, regulations, requirements,
decisions, judgments, decrees, orders and other legally enforceable requirements relating to
pollution or the protection of the environment, natural resources or human health or safety
(collectively, “Environmental Laws”), including those relating to the generation, storage,
treatment, use, handling, transportation or release of hazardous or toxic substances, or wastes,
pollutants or contaminants, (b) have received and are in compliance with all permits, licenses,
certificates or other authorizations or approvals required of them under applicable Environmental
Laws to conduct their respective businesses, and (c) have not received notice of any actual or
potential liability for the investigation or remediation of any disposal or release of hazardous or
toxic substances or wastes, pollutants or contaminants at any location, and have no knowledge of
any circumstance, event or condition that would reasonably be expected to result in any such notice
or liability; (ii) there are no costs or liabilities of or relating to the Company, Swift or their
subsidiaries associated with Environmental Laws; except in the case of either (i) or (ii) above,
for any such noncompliance, failure to receive required permits, licenses or approvals, or cost,
liability or other obligation (including any capital or operating expenditures required for
clean-up, closure of properties or compliance with Environmental Laws, or any permit, license or
approval, any related constraints on operating activities and any potential liabilities to third
parties), as would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect; and (iii) except as described in each of the Registration Statement, the Pricing
Disclosure Package and the Prospectus, (x) there are no proceedings that are pending, or that are
known to be contemplated, against the Company, Swift or any of their subsidiaries under any
Environmental Laws in which a governmental entity is also a party, other than such proceedings
regarding which it is reasonably believed no monetary sanctions of $100,000 or more will be
imposed, (y) none of the Company, Swift or any of their subsidiaries are aware of any issues
regarding compliance with Environmental Laws, or liabilities or other obligations under
Environmental Laws that would reasonably be expected to have a Material Adverse Effect, and (z)
none of the Company, Swift or any of their subsidiaries anticipates material capital expenditures
relating to any Environmental Laws.
(aa) Compliance with ERISA. Each employee benefit plan, within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), for which the
Company, Swift or any member of their “Controlled Group” (defined as any organization which is a
member of a controlled group of corporations within the meaning of Section 414 of the Code would
have any liability (each, a “Plan”)) has been maintained in compliance with its terms and
the requirements of any applicable statutes, orders, rules and regulations, including but not
limited to, ERISA and the Code, except for noncompliance that could not reasonably be expected to
result in a Material Adverse Effect. With respect to each Plan, (i) no “reportable event” (as
defined in ERISA) has occurred or is reasonably expected to occur; (ii) no “prohibited transaction”
(as defined in ERISA and the Code) (excluding transactions
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effected pursuant to a statutory or administrative exemption); (iii) for each
Plan that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, the
minimum funding standard of Section 412 of the Code or Section 302 of ERISA, as applicable, has
been satisfied (without taking into account any waiver thereof or extension of any amortization
period); (iv) to the extent applicable, the fair market value of the assets of each Plan exceeds
the present value of all benefits accrued under such Plan (determined based on those assumptions
used to fund such Plan); (v) the Company, Swift and each of their subsidiaries have not incurred
and do not expect to incur liability under Section 412 or 4971 of the Code or Title IV of ERISA
(other than contributions to the Plan or premiums to the PBGC, in the ordinary course and without
default) (including a “multiemployer plan”, within the meaning of Section 4001(a)(3) of ERISA);
(vi) each Plan that is intended to be qualified under Section 401(a) of the Code is so qualified
and nothing has occurred, whether by action or by failure to act, which would cause the loss of
such qualification; except in the case of each of clauses (i) – (vi), that could not, singly or in
the aggregate, reasonably be expected to result in a Material Adverse Effect.
(bb) Disclosure Controls. The Company, Swift and their subsidiaries maintain an effective
system of “disclosure controls and procedures” (as defined in Rule 13a-15(e) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)) that has been designed to ensure
that information required to be disclosed by the Company in reports that it files or submits under
the Exchange Act is recorded, processed, summarized and reported within the time periods specified
in the Commission’s rules and forms, including controls and procedures designed to ensure that such
information is accumulated and communicated to the Company’s management as appropriate to allow
timely decisions regarding required disclosure.
(cc) Accounting Controls. The Company, Swift and their subsidiaries maintain a system of
“internal control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act)
sufficient to provide reasonable assurance that (i) transactions are executed in accordance with
management’s general or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. Except as disclosed in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, there are no material
weaknesses in the Company’s or Swift’s internal controls. The Company’s auditors and the Audit
Committee of the Board of Directors of the Company have been advised of: (i) all significant
deficiencies and material weaknesses in the design or operation of internal controls over financial
reporting which have adversely affected or are reasonably likely to adversely affect the Company’s
or Swift’s ability to record, process, summarize and report financial information; and (ii) any
fraud, whether or not material, that involves management or other employees who have a significant
role in the Company’s or Swift’s internal controls over financial reporting.
(dd) Insurance. The Company, Swift and their significant subsidiaries (as defined in Rule
1-02 of Regulation S-X and listed on Schedule 2 of this Agreement) have insurance covering their
respective properties, operations, personnel and businesses, which insurance the Company believes
is in amounts and insures against such losses and risks as are adequate to protect the Company,
Swift and their significant subsidiaries and their respective businesses; and
none of the Company, Swift nor any of their significant subsidiaries has (i) received notice
from
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any insurer or agent of such insurer that capital improvements or other expenditures are
required or necessary to be made in order to continue such insurance or (ii) any reason to believe
that it will not be able to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage at reasonable cost from similar insurers as may be necessary to
continue its business.
(ee) No Unlawful Payments. None of the Company, Swift nor any of their subsidiaries, nor any
director, officer, or employee, nor, to the knowledge of the Company or Swift, any of their
affiliates or any agent or representative of the Company, Swift or of any of their subsidiaries or
affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay,
or authorization or approval of the payment or giving of money, property, gifts or anything else of
value, directly or indirectly, to any “government official” (including any officer or employee of a
government or government-owned or controlled entity or of a public international organization, or
any person acting in an official capacity for or on behalf of any of the foregoing, or any
political party or party official or candidate for political office) to influence official action
or secure an improper advantage; and the Company, Swift and their subsidiaries and, to the
knowledge of the Company and Swift, their affiliates have conducted their businesses in compliance
with applicable anti-corruption laws and have instituted and maintain and will continue to maintain
policies and procedures designed to promote and achieve compliance with such laws and with the
representation and warranty contained herein.
(ff) Compliance with Money Laundering Laws. The operations of the Company, Swift and their
subsidiaries are and have been conducted at all times in compliance with all applicable financial
recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by
Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money
laundering statutes of jurisdictions where the Company, Swift and their subsidiaries conduct
business, the rules and regulations thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any U.S. governmental agency (collectively, the
“Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company, Swift or any of
their subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best
knowledge of the Company or Swift, threatened.
(gg) Compliance with OFAC. (i) The Company and Swift represent that none of the Company,
Swift nor any of their subsidiaries, nor any director, officer, or employee thereof, nor, to the
knowledge of the Company or Swift, any agent, affiliate or representative of the Company, Swift or
any of their subsidiaries, is an individual or entity (“Person”) that is, or is owned or
controlled by a Person that is the subject of any sanctions administered or enforced by the U.S.
Department of Treasury’s Office of Foreign Assets Control (“OFAC”); (ii) the Company
covenants that it will not, directly or indirectly, use the proceeds of the offering, or lend,
contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or
other Person (A) to fund or facilitate any activities or business of or with any Person or in any
country or territory that, at the time of such funding or facilitation, is the subject of any
sanctions administered or enforced by OFAC, or (B) in any other manner that will result in a
violation of OFAC by any Person (including any Person participating in the offering, whether as
underwriter, advisor, investor or otherwise); and (iii) the Company and Swift represent that,
except as detailed
in Schedule 3, for the past five years, they and their subsidiaries have not knowingly engaged
in,
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and are not now knowingly engaged in, any dealings or transactions with any Person, or in any
country or territory, that at the time of the dealing or transaction is or was the subject of any
sanctions administered or enforced by OFAC.
(hh) No Broker’s Fees. None of the Company, Swift nor any of their subsidiaries is a party to
any contract, agreement or understanding with any person (other than this Agreement) that would
give rise to a valid claim against the Company, Swift or any of their subsidiaries or any
Underwriter for a brokerage commission, finder’s fee or like payment in connection with the
offering and sale of the Shares.
(ii) No Registration Rights. No person has the right to require the Company, Swift or any of
their subsidiaries to register any securities for sale under the Securities Act by reason of the
filing of the Registration Statement with the Commission or the issuance and sale of the Shares.
(jj) No Stabilization. Neither the Company nor Swift has taken, directly or indirectly, any
action designed to or that could reasonably be expected to cause or result in any stabilization or
manipulation of the price of the Shares.
(kk) Business with Cuba. The Company and Swift have complied with all provisions of
Section 517.075, Florida Statutes (Chapter 92-198, Laws of Florida, as amended) relating to doing
business with the Government of Cuba or with any person or affiliate located in Cuba.
(ll) Statistical and Market Data. Nothing has come to the attention of the Company or Swift
that has caused the Company or Swift to believe that the statistical and market-related data
included in the Registration Statement, the Pricing Disclosure Package and the Prospectus is not
based on or derived from sources that are reliable and accurate in all material respects.
(mm) Xxxxxxxx-Xxxxx Act. There is no failure on the part of the Company, Swift or, to the
knowledge of the Company or Swift, any of the Company’s or Swift’s directors or officers, in their
capacities as such, to comply with any provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules
and regulations promulgated in connection therewith (the “Xxxxxxxx-Xxxxx Act”), including
Section 402 related to loans.
(nn) Status under the Securities Act. At the time of filing the Registration Statement and
any post-effective amendment thereto, at the earliest time thereafter that the Company or any
offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the
Securities Act) of the Shares and at the date hereof, the Company was not and is not an “ineligible
issuer” as defined in Rule 405 under the Securities Act.
4. Further Agreements of the Company. The Company and Swift covenant and agree with
each Underwriter that:
(a) Required Filings. The Company will file the final Prospectus with the Commission within
the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act,
will file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the
Securities Act and will furnish copies of the Prospectus and each Issuer Free Writing Prospectus
(to the extent not previously delivered) to the Underwriters in New York City
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prior to 10:00 A.M., New York City time, on the business day next succeeding the date of this
Agreement in such quantities as the Representatives may reasonably request.
(b) Delivery of Copies. The Company will deliver, without charge, (i) to the Representatives,
three signed copies of the Registration Statement as originally filed and each amendment thereto,
in each case including all exhibits and consents filed therewith; and (ii) to each Underwriter (A)
a conformed copy of the Registration Statement as originally filed and each amendment thereto
(without exhibits) and (B) during the Prospectus Delivery Period (as defined below), as many copies
of the Prospectus (including all amendments and supplements thereto and each Issuer Free Writing
Prospectus) as the Representatives may reasonably request. As used herein, the term
“Prospectus Delivery Period” means such period of time after the first date of the public
offering of the Shares as in the opinion of counsel for the Underwriters a prospectus relating to
the Shares is required by law to be delivered (or required to be delivered but for Rule 172 under
the Securities Act) in connection with sales of the Shares by any Underwriter or dealer.
(c) Amendments or Supplements, Issuer Free Writing Prospectuses. Before preparing, using,
authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before
filing any amendment or supplement to the Registration Statement or the Prospectus, the Company
will furnish to the Representatives and counsel for the Underwriters a copy of the proposed Issuer
Free Writing Prospectus, amendment or supplement for review and will not prepare, use, authorize,
approve, refer to or file any such Issuer Free Writing Prospectus or file any such proposed
amendment or supplement to which the Representatives reasonably object.
(d) Notice to the Representatives. The Company will advise the Representatives promptly, and
confirm such advice in writing, (i) when the Registration Statement has become effective; (ii) when
any amendment to the Registration Statement has been filed or becomes effective; (iii) when any
supplement to the Prospectus or any Issuer Free Writing Prospectus or any amendment to the
Prospectus has been filed; (iv) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or the receipt of any
comments from the Commission relating to the Registration Statement or any other request by the
Commission for any additional information; (v) of the issuance by the Commission of any order
suspending the effectiveness of the Registration Statement or preventing or suspending the use of
any Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus or the
initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the
Securities Act; (vi) of the occurrence of any event within the Prospectus Delivery Period as a
result of which the Prospectus, the Pricing Disclosure Package or any Issuer Free Writing
Prospectus as then amended or supplemented would include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein, in the light of
the circumstances existing when the Prospectus, the Pricing Disclosure Package or any such Issuer
Free Writing Prospectus is delivered to a purchaser, not misleading; and (vii) of the receipt by
the Company of any notice with respect to any suspension of the qualification of the Shares for
offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such
purpose; and the Company will use its reasonable best efforts to prevent the issuance of any such
order suspending the effectiveness of the Registration Statement, preventing or suspending the use
of any Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus or
suspending any such qualification of the Shares and, if
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any such order is issued, will use its reasonable best efforts to obtain as soon as possible
the withdrawal thereof.
(e) Ongoing Compliance. (1) If during the Prospectus Delivery Period (i) any event shall
occur or condition shall exist as a result of which the Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances existing when the
Prospectus is delivered to a purchaser, not misleading or (ii) it is necessary to amend or
supplement the Prospectus to comply with law, the Company will immediately notify the Underwriters
thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission and
furnish to the Underwriters and to such dealers as the Representatives may designate such
amendments or supplements to the Prospectus as may be necessary so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the circumstances existing when
the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply
with law and (2) if at any time prior to the Closing Date (i) any event shall occur or condition
shall exist as a result of which the Pricing Disclosure Package as then amended or supplemented
would include any untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances existing when the
Pricing Disclosure Package is delivered to a purchaser, not misleading or (ii) it is necessary to
amend or supplement the Pricing Disclosure Package to comply with law, the Company will immediately
notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file
with the Commission (to the extent required) and furnish to the Underwriters and to such dealers as
the Representatives may designate, such amendments or supplements to the Pricing Disclosure Package
as may be necessary so that the statements in the Pricing Disclosure Package as so amended or
supplemented will not, in the light of the circumstances existing when the Pricing Disclosure
Package is delivered to a purchaser, be misleading or so that the Pricing Disclosure Package will
comply with law.
(f) Blue Sky Compliance. The Company will qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request
and will continue such qualifications in effect so long as required for distribution of the Shares;
provided that the Company shall not be required to (i) qualify as a foreign corporation or
other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be
required to so qualify, (ii) file any general consent to service of process in any such
jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so
subject.
(g) Earning Statement. The Company will make generally available to its security holders and
the Representatives as soon as practicable an earning statement that satisfies the provisions of
Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder covering
a period of at least twelve months beginning with the first fiscal quarter of the Company occurring
after the “effective date” (as defined in Rule 158) of the Registration Statement; provided
that (i) such delivery requirements to the Company’s security holders shall be deemed satisfied by
the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such
compliance satisfies the conditions of Rule 158 and (ii) such delivery requirements to the
Representatives shall be deemed met by the Company if the related reports are available on the
Commission’s Electronic Data Gather, Analysis and Retrieval System (“XXXXX”).
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(h) Clear Market. For a period of 180 days after the date of the Prospectus, the Company will
not (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase
any option or contract to sell, grant any option, right or warrant to purchase, or otherwise
transfer or dispose of, directly or indirectly, or file with the Commission a registration
statement under the Securities Act relating to, any shares of Stock or any securities convertible
into or exercisable or exchangeable for Stock, or publicly disclose the intention to make any
offer, sale, pledge, disposition or filing, or (ii) enter into any swap or other agreement that
transfers, in whole or in part, any of the economic consequences of ownership of the Stock or any
such other securities, whether any such transaction described in clause (i) or (ii) above is to be
settled by delivery of Stock or such other securities, in cash or otherwise, without the prior
written consent of each of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx & Co.
Incorporated and Xxxxx Fargo Securities, LLC, other than (A) the Shares to be sold hereunder, the
Shares of the Company’s Class B Common Stock to be issued in connection with the Merger and the
Shares of the Company’s Class A and Class B Common Stock to be issued in connection with any stock
split on or prior to the Closing, (B) any options to be granted (including pursuant to any
re-pricing of options) by the Company and any shares of Stock of the Company to be issued upon the
exercise of such options or options previously granted under stock-based compensation plans of the
Company, Swift and their subsidiaries as disclosed in each of the Registration Statement, the
Pricing Disclosure Package and the Prospectus, (C) the filing of any registration statement on Form
S-8 and issuance of securities registered pursuant to any such registration statement on Form S-8
relating to any benefit plans or arrangements disclosed in each of the Registration Statement, the
Pricing Disclosure Package and the Prospectus and (D) the issuance of shares of Stock in connection
with the acquisition of the assets of, or a majority or controlling portion of the equity of, or a
joint venture with another entity in connection with the acquisition by the Company or any of its
subsidiaries, provided, however, that (1) the aggregate number of shares issued
pursuant to clause (D) above, considered individually and together with all such previous
acquisitions or joint ventures, if any, announced during the 180-day restricted period shall not
exceed 5.0% of the Stock issued and outstanding as of the date of such acquisition agreement or
joint venture agreement, as the case may be and (2) prior to the issuance of such shares referred
to in clause (D) above, each recipient of such shares shall execute and deliver to the
Representatives a lock-up letter substantially in the form of Exhibit A hereto. Notwithstanding the
foregoing, if (1) during the last 17 days of the 180-day restricted period, the Company issues an
earnings release or material news or a material event relating to the Company occurs; or (2) prior
to the expiration of the 180-day restricted period, the Company announces that it will release
earnings results during the 16-day period beginning on the last day of the 180-day period, the
restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day
period beginning on the issuance of the earnings release or the occurrence of the material news or
material event.
(i) Use of Proceeds. The Company will apply the net proceeds from the sale of the Shares as
described in the Registration Statement, the Pricing Disclosure Package and the Prospectus under
the heading “Use of Proceeds”.
(j) No Stabilization. The Company will not take, directly or indirectly, any action designed
to or that could reasonably be expected to cause or result in any stabilization or manipulation of
the price of the Stock.
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(k) Reports. For a period of three years following the date of this Agreement, so long as the
Shares are outstanding, the Company will furnish to the Representatives, as soon as they are
available, copies of all reports or other communications (financial or other) furnished to holders
of the Shares, and copies of any reports and financial statements furnished to or filed with the
Commission or any national securities exchange or automatic quotation system; provided the
Company will be deemed to have furnished such reports and financial statements to the
Representatives to the extent they are filed on XXXXX.
(l) Record Retention. The Company will, pursuant to reasonable procedures developed in good
faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission
in accordance with Rule 433 under the Securities Act.
(m) Filings. The Company will file with the Commission such reports as may be required by
Rule 463 under the Securities Act.
5. Certain Agreements of the Underwriters. Each Underwriter hereby represents and
agrees that:
(a) It has not used, authorized use of, referred to or participated in the planning for use
of, and will not use, authorize use of, refer to or participate in the planning for use of, any
“free writing prospectus”, as defined in Rule 405 under the Securities Act (which term includes use
of any written information furnished to the Commission by the Company and not incorporated by
reference into the Registration Statement and any press release issued by the Company) other than
(i) a free writing prospectus that contains no “issuer information” (as defined in Rule 433(h)(2)
under the Securities Act) that was not included (including through incorporation by reference) in
the Preliminary Prospectus or a previously filed Issuer Free Writing Prospectus, (ii) any Issuer
Free Writing Prospectus listed on Annex B or prepared pursuant to Section 3(c) or Section 4(c)
above (including any electronic road show), or (iii) any free writing prospectus prepared by such
Underwriter and approved by the Company in advance in writing (each such free writing prospectus
referred to in clauses (i) or (iii), an “Underwriter Free Writing Prospectus”).
(b) It has not and will not, without the prior written consent of the Company, use any free
writing prospectus that contains the final terms of the Shares unless such terms have previously
been included in a free writing prospectus filed with the Commission; provided that
Underwriters may use a term sheet substantially in the form of Annex C hereto without the consent
of the Company; provided further that any Underwriter using such term sheet shall
notify the Company, and provide a copy of such term sheet to the Company, prior to, or
substantially concurrently with, the first use of such term sheet.
6. Conditions of Underwriters’ Obligations. The obligation of each Underwriter to
purchase the Underwritten Shares on the Closing Date or the Option Shares on the Additional Closing
Date, as the case may be, as provided herein is subject to the performance by each of the Company
and Swift of its covenants and other obligations hereunder and to the following additional
conditions:
(a) Registration Compliance; No Stop Order. No order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to
Section 8A under the Securities Act shall be pending before or threatened by the Commission;
the Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the
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Commission under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the
extent required by Rule 433 under the Securities Act) and in accordance with Section 4(a) hereof;
and all requests by the Commission for additional information shall have been complied with to the
reasonable satisfaction of the Representatives.
(b) Representations and Warranties. The representations and warranties of the Company
contained herein shall be true and correct on the date hereof and on and as of the Closing Date or
the Additional Closing Date, as the case may be; and the statements of the Company and its officers
made in any certificates delivered pursuant to this Agreement shall be true and correct on and as
of the Closing Date or the Additional Closing Date, as the case may be.
(c) No Downgrade. Subsequent to the earlier of (A) the Applicable Time and (B) the execution
and delivery of this Agreement, if there are any debt securities or preferred stock of, or
guaranteed by, the Company, Swift or any of their subsidiaries that are rated by a “nationally
recognized statistical rating organization”, as such term is defined by the Commission for purposes
of Rule 436(g)(2) under the Securities Act, (i) no downgrading shall have occurred in the rating
accorded any such debt securities or preferred stock and (ii) no such organization shall have
publicly announced that it has under surveillance or review, or has changed its outlook with
respect to, its rating of any such debt securities or preferred stock (other than an announcement
with positive implications of a possible upgrading).
(d) No Material Adverse Change. No event or condition of a type described in Section 3(f)
hereof shall have occurred or shall exist, which event or condition is not described in the Pricing
Disclosure Package (excluding any amendment or supplement thereto) and the Prospectus (excluding
any amendment or supplement thereto) and the effect of which in the judgment of the Representatives
makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares
on the Closing Date or the Additional Closing Date, as the case may be, on the terms and in the
manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus.
(e) Officer’s Certificate. The Representatives shall have received on and as of the Closing
Date or the Additional Closing Date, as the case may be, a certificate of the chief financial
officer or chief accounting officer of the Company and one additional senior executive officer of
the Company who is satisfactory to the Representatives (i) confirming that such officers have
carefully reviewed the Registration Statement, the Pricing Disclosure Package and the Prospectus
and, to the best knowledge of such officers, the representations set forth in Sections 3(b) and
3(d) hereof are true and correct, (ii) confirming that the other representations and warranties of
the Company in this Agreement are true and correct and that the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date or the Additional Closing Date, as the case may be, and (iii) to the
effect set forth in paragraphs (a), (c) and (d) above.
(f) Chief Financial Officer’s Certificate. The Representatives shall have received on and as
of the Closing Date or the Additional Closing Date, as the case may be, a certificate of the chief
financial officer of the Company (i) confirming that the chief financial officer is familiar with
the books and records and internal accounting practices, policies, procedures and controls of
the Company and has had responsibility for accounting matters with respect to the Company,
(ii)
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attesting to certain financial and accounting matters, (iii) confirming that the chief
financial officer has reviewed the identified information, which is included in the Registration
Statement, the Pricing Disclosure Package and the Prospectus and which otherwise has not been
confirmed by KPMG LLP, the Company’s independent accountants and (iv) attesting to the accuracy of
the identified information in all material respects.
(g) Comfort Letters. On the date of this Agreement and on the Closing Date or the Additional
Closing Date, as the case may be, KPMG LLP shall have furnished to the Representatives, at the
request of the Company, letters, dated the respective dates of delivery thereof and addressed to
the Underwriters, in form and substance reasonably satisfactory to the Representatives, containing
statements and information of the type customarily included in accountants’ “comfort letters” to
underwriters with respect to the financial statements and certain financial information contained
in the Registration Statement, the Pricing Disclosure Package and the Prospectus; provided,
that the letter delivered on the Closing Date or the Additional Closing Date, as the case may be,
shall use a “cut-off” date no more than three business days prior to such Closing Date or such
Additional Closing Date, as the case may be.
(h) Opinion and 10b-5 Statement of Counsel for the Company. Xxxxx Xxx, Executive Vice
President, General Counsel and Corporate Secretary of the Company, and Xxxxxxx Law Firm, P.C.,
L.L.O., counsel for the Company, shall have furnished to the Representatives, at the request of the
Company, their written opinion and 10b-5 statement, respectively, dated the Closing Date or the
Additional Closing Date, as the case may be, and addressed to the Underwriters, in form and
substance reasonably satisfactory to the Representatives, to the effect set forth in Annex A
hereto.
(i) Opinion and 10b-5 Statement of Counsel for the Company. Skadden, Arps, Slate, Xxxxxxx &
Xxxx LLP, counsel for the Company, shall have furnished to the Representatives, at the request of
the Company, their written opinion and 10b-5 statement, dated the Closing Date or the Additional
Closing Date, as the case may be, and addressed to the Underwriters, in form and substance
reasonably satisfactory to the Representatives, to the effect set forth in Annex A hereto.
(j) Opinion and 10b-5 Statement of Counsel for the Underwriters. The Representatives shall
have received on and as of the Closing Date or the Additional Closing Date, as the case may be, an
opinion and 10b-5 statement of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, with
respect to such matters as the Representatives may reasonably request, and such counsel shall have
received such documents and information as they may reasonably request to enable them to pass upon
such matters.
(k) No Legal Impediment to Issuance. No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any federal, state or foreign
governmental or regulatory authority that would, as of the Closing Date or the Additional Closing
Date, as the case may be, prevent the issuance or sale of the Shares; and no injunction or order of
any federal, state or foreign court shall have been issued that would, as of the Closing Date or
the Additional Closing Date, as the case may be, prevent the issuance or sale of the Shares.
(l) Good Standing. The Representatives shall have received on and as of the Closing
Date or the Additional Closing Date, as the case may be, satisfactory evidence of the good
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standing of the Company and its significant subsidiaries in their respective jurisdictions of
organization and their good standing as foreign entities in such other jurisdictions as the
Representatives may reasonably request, in each case in writing or any standard form of
telecommunication from the appropriate governmental authorities of such jurisdictions.
(m) Exchange Listing. The Shares to be delivered on the Closing Date or Additional Closing
Date, as the case may be, shall have been approved for listing on the NYSE, subject to official
notice of issuance.
(n) Lock-up Agreements. The “lock-up” agreements, each substantially in the form of Exhibit A
hereto, between you and certain shareholders, officers and directors of the Company relating to
sales and certain other dispositions of shares of Stock or certain other securities, delivered to
you on or before the date hereof, shall be full force and effect on the Closing Date or Additional
Closing Date, as the case may be.
(o) New Credit Agreement. The New Credit Agreement shall have been duly executed and
delivered on or prior to the Closing Date by the Company and the other parties thereto and the
Company shall have satisfied, or ensured the satisfaction of, all conditions precedent thereto.
(p) Existing Debt. On or prior to the Closing Date, (i) all unpaid principal of, premium, if
any, and accrued interest under the credit agreement, dated as of May 10, 2007 (the “Existing
Credit Agreement”), among Swift, Saint Acquisition Corporation, Swift Transportation Co., Inc.,
an Arizona corporation, and Swift Transportation Co., Inc., a Nevada corporation, as borrowers,
Xxxxxx Xxxxxxx Senior Funding, Inc., as administrative agent, and the lenders party thereto, shall
be repaid or otherwise discharged, all existing liens under the Existing Credit Agreement shall
have been released and the Existing Credit Agreement shall have been terminated, (ii) any
outstanding interest rate swap contracts that Swift or any of its subsidiaries is a party has been,
or concurrently with the Closing Date is being, terminated, and all amounts payable by Swift or any
such subsidiary in connection with the termination has been, or concurrently with the Closing Date
is being, paid and (iii) Swift Transportation shall have tendered for and accepted at least 66.67%
of each of the Floating Rate Notes and the Fixed Rate Notes, and all existing liens securing the
obligations with respect to the Existing Notes shall have been released.
(q) New Notes. The indentures governing the New Notes shall have been executed and delivered
by Swift Services and each guarantor party thereto and all conditions for issuing the New Notes
shall have been satisfied on or prior to the Closing Date.
(r) Additional Documents. On or prior to the Closing Date or the Additional Closing Date, as
the case may be, the Company shall have furnished to the Representatives such further certificates
and documents as the Representatives may reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
7. Indemnification and Contribution.
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(a) Indemnification of the Underwriters. The Company agrees to indemnify and hold harmless
each Underwriter, its affiliates, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities (including, without
limitation, legal fees and other expenses reasonably incurred in connection with any suit, action
or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several,
that arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or caused by any omission or alleged omission
to state therein a material fact required to be stated therein or necessary in order to make the
statements therein, not misleading, (ii) or any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (or any amendment or supplement thereto), any Issuer Free
Writing Prospectus[, any “issuer information” filed or required to be filed pursuant to Rule 433(d)
under the Securities Act] or any Pricing Disclosure Package [(including any Pricing Disclosure
Package that has subsequently been amended)], or caused by any omission or alleged omission to
state therein a material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, in each case except insofar as such
losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in conformity with any
information relating to any Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use therein, it being understood and agreed that the only
such information furnished by any Underwriter consists of the information described as such in
subsection (b) below. The Company agrees and confirms that references to “affiliates” of Xxxxxx
Xxxxxxx & Co. Incorporated that appear in this Agreement shall be understood to include Mitsubishi
UFJ Xxxxxx Xxxxxxx Securities Co., Ltd.
The Company also agrees to indemnify and hold harmless, Xxxxx Fargo, its affiliates, directors
and officers and each person, if any, who controls Xxxxx Fargo within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities incurred as a result of Xxxxx Fargo’s participation as a “qualified
independent underwriter” within the meaning of Rule 2720 in connection with the offering of the
Shares.
(b) Indemnification of the Company. Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in
paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise
out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with any information relating to such Underwriter furnished
to the Company in writing by such Underwriter through the Representatives expressly for use in the
Registration Statement, the Prospectus (or any amendment or supplement thereto), any Issuer Free
Writing Prospectus or any Pricing Disclosure Package, it being understood and agreed upon that the
only such information furnished by any Underwriter consists of the following information in the
Prospectus furnished on behalf of each Underwriter: the information contained in the third, eighth,
thirteenth and fourteenth paragraphs under the caption
“Underwriting.” In
addition, Xxxxx Fargo has furnished to the Company the information in
the nineteenth paragraph under the caption “Underwriting.”
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(c) Notice and Procedures. If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against any person in
respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such
person (the “Indemnified Person”) shall promptly notify the person against whom such
indemnification may be sought (the “Indemnifying Person”) in writing; provided that
the failure to notify the Indemnifying Person shall not relieve it from any liability that it may
have under paragraph (a) or (b) above except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and provided
further that the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under paragraph (a) or (b)
above. If any such proceeding shall be brought or asserted against an Indemnified Person and it
shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel
reasonably satisfactory to the Indemnified Person (who shall not, without the consent of the
Indemnified Person, be counsel to the Indemnifying Person) to represent the Indemnified Person in
such proceeding and shall pay the fees and expenses of such counsel related to such proceeding, as
incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to
the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have
reasonably concluded that there may be legal defenses available to it that are different from or in
addition to those available to the Indemnifying Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interest between them. It is understood and agreed that the
Indemnifying Person shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to
any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be paid
or reimbursed as they are incurred ; provided, however, that if indemnity may be sought
pursuant to the second paragraph of Section 7(a) above in respect of such proceeding, then in
addition to such separate firm of the Underwriters, their affiliates and such control persons of
the Underwriters the indemnifying party shall be liable for the fees and expenses of not more than
one separate firm (in addition to any local counsel) for Xxxxx Fargo in its capacity as a
“qualified independent underwriter”, its affiliates, directors, officers and all persons, if any,
who control Xxxxx Fargo within the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act. Any such separate firm for any Underwriter, its affiliates, directors and
officers and any control persons of such Underwriter shall be designated in writing by Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxx Fargo
Securities, LLC and any such separate firm for the Company, its directors, its officers who signed
the Registration Statement and any control persons of the Company shall be designated in writing by
the Company. The Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person
from and against any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an Indemnified Person shall have requested that an
Indemnifying Person reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by this paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is entered
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into more than 30 days after receipt by the Indemnifying Person of such request and (ii) the
Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement. No Indemnifying Person shall, without the written
consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in
respect of which any Indemnified Person is or could have been a party and indemnification could
have been sought hereunder by such Indemnified Person, unless such settlement (x) includes an
unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to
such Indemnified Person, from all liability on claims that are the subject matter of such
proceeding and (y) does not include any statement as to or any admission of fault, culpability or a
failure to act by or on behalf of any Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraphs (a) and (b) above is
unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Underwriters or Xxxxx Fargo in its capacity as a “qualified independent underwriter”,
as the case may be, on the other, from the offering of the Shares or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) but also the relative fault of the
Company, on the one hand, and the Underwriters or Xxxxx Fargo in its capacity as a “qualified
independent underwriter”, as the case may be, on the other, in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company, on the one hand,
and the Underwriters or Xxxxx Fargo in its capacity as a “qualified independent underwriter”, as
the case may be, on the other, shall be deemed to be in the same respective proportions as the net
proceeds (before deducting expenses) received by the Company from the sale of the Shares and the
total underwriting discounts and commissions received by the Underwriters in connection therewith,
in each case as set forth in the table on the cover of the Prospectus, or the fee to be received by
Xxxxx Fargo in its capacity as a “qualified independent underwriter”, as the case may be, bear to
the aggregate offering price of the Shares. The relative fault of the Company, on the one hand,
and the Underwriters or Xxxxx Fargo in its capacity as a “qualified independent underwriter”, as
the case may be, on the other, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the Underwriters or Xxxxx
Fargo in its capacity as a “qualified independent underwriter”, as the case may be, and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) Limitation on Liability. The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a
result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or other expenses incurred
by such Indemnified Person in connection with any such action or claim. Notwithstanding the
provisions
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of this Section 7, in no event shall an Underwriter be required to contribute any amount in
excess of the amount by which the total underwriting discounts and commissions received by such
Underwriter with respect to the offering of the Shares exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to
contribute pursuant to this Section 7 are several in proportion to their respective purchase
obligations hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any Indemnified Person
at law or in equity.
8. Effectiveness of Agreement. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
9. Termination. This Agreement may be terminated in the absolute discretion of the
Representatives, by notice to the Company, if after the execution and delivery of this Agreement
and prior to the Closing Date or, in the case of the Option Shares, prior to the Additional Closing
Date (i) trading generally shall have been suspended or materially limited on or by either of the
NYSE or the Nasdaq Global Select Market; (ii) trading of any securities issued or guaranteed by the
Company shall have been suspended on any exchange or in any over-the-counter market; (iii) a
general moratorium on commercial banking activities shall have been declared by federal or New York
State authorities; or (iv) there shall have occurred any outbreak or escalation of hostilities or
any change in financial markets or any calamity or crisis, either within or outside the United
States, that, in the judgment of the Representatives, is material and adverse and makes it
impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares on the
Closing Date or the Additional Closing Date, as the case may be, on the terms and in the manner
contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus.
10. Defaulting Underwriter.
(a) If, on the Closing Date or the Additional Closing Date, as the case may be, any
Underwriter defaults on its obligation to purchase the Shares that it has agreed to purchase
hereunder on such date, the non-defaulting Underwriters may in their discretion arrange for the
purchase of such Shares by other persons satisfactory to the Company on the terms contained in this
Agreement. If, within 36 hours after any such default by any Underwriter, the non-defaulting
Underwriters do not arrange for the purchase of such Shares, then the Company shall be entitled to
a further period of 36 hours within which to procure other persons satisfactory to the
non-defaulting Underwriters to purchase such Shares on such terms. If other persons become
obligated or agree to purchase the Shares of a defaulting Underwriter, either the non-defaulting
Underwriters or the Company may postpone the Closing Date or the Additional Closing Date, as the
case may be, for up to five full business days in order to effect any changes that in the opinion
of counsel for the Company or counsel for the Underwriters may be necessary in the Registration
Statement and the Prospectus or in any other document or arrangement, and the Company agrees to
promptly prepare any amendment or supplement to the Registration Statement and the Prospectus that
effects any such changes. As used in this Agreement, the term
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“Underwriter” includes, for all purposes of this Agreement unless the context
otherwise requires, any person not listed in Schedule 1 hereto that, pursuant to this Section 10,
purchases Shares that a defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in
paragraph (a) above, the aggregate number of Shares that remain unpurchased on the Closing Date or
the Additional Closing Date, as the case may be, does not exceed one-eleventh of the aggregate
number of Shares to be purchased on such date, then the Company shall have the right to require
each non-defaulting Underwriter to purchase the number of Shares that such Underwriter agreed to
purchase hereunder on such date plus such Underwriter’s pro rata share (based on the number of
Shares that such Underwriter agreed to purchase on such date) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in
paragraph (a) above, the aggregate number of Shares that remain unpurchased on the Closing Date or
the Additional Closing Date, as the case may be, exceeds one-eleventh of the aggregate amount of
Shares to be purchased on such date, or if the Company shall not exercise the right described in
paragraph (b) above, then this Agreement or, with respect to any Additional Closing Date, the
obligation of the Underwriters to purchase Shares on the Additional Closing Date shall terminate
without liability on the part of the non-defaulting Underwriters. Any termination of this
Agreement pursuant to this Section 10 shall be without liability on the part of the Company, except
that the Company will continue to be liable for the payment of expenses as set forth in Section 11
hereof and except that the provisions of Section 7 hereof shall not terminate and shall remain in
effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company or any non-defaulting Underwriter for damages caused by its default.
11. Payment of Expenses.
(a) Whether or not the transactions contemplated by this Agreement are consummated or this
Agreement is terminated, the Company will pay or cause to be paid all costs and expenses incident
to the performance of its obligations hereunder, including without limitation, (i) the costs
incident to the authorization, issuance, sale, preparation and delivery of the Shares and any taxes
payable in that connection; (ii) the costs incident to the preparation, printing and filing under
the Securities Act of the Registration Statement, the Preliminary Prospectus, any Issuer Free
Writing Prospectus, any Pricing Disclosure Package and the Prospectus (including all exhibits,
amendments and supplements thereto) and the distribution thereof; (iii) the costs of reproducing
and distributing this Agreement; (iv) the fees and expenses of the Company’s counsel and
independent accountants; (v) the fees and expenses incurred in connection with the registration or
qualification of the Shares under the state or foreign securities or blue sky laws of such
jurisdictions as the Representatives may designate and the preparation, printing and distribution
of a Blue Sky Memorandum (including the related fees and expenses of counsel for the
Underwriters); (vi) the cost of preparing stock certificates; (vii) the costs and charges of any
transfer agent and any registrar; (viii) all expenses and application fees incurred in connection
with any
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filing with, and clearance of the offering by, FINRA; (ix) all expenses incurred by the
Company in connection with any “road show” presentation to potential investors, provided,
however, that any expenses or costs associated with any chartered plane used in connection
with any “road show” presentation to potential investors will be paid 50% by the Company and 50% by
the Underwriters; and (x) all expenses and application fees related to the listing of the Shares on
the NYSE.
(b) If (i) this Agreement is terminated pursuant to Section 9, (ii) the Company for any reason
fails to tender the Shares for delivery to the Underwriters or (iii) the Underwriters decline to
purchase the Shares for any reason permitted under this Agreement, the Company agrees to reimburse
the Underwriters for all out-of-pocket costs and expenses (including the fees and expenses of their
counsel) reasonably incurred by the Underwriters in connection with this Agreement and the offering
contemplated hereby.
12. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective successors and the officers
and directors and any controlling persons referred to in Section 7 hereof. Nothing in this
Agreement is intended or shall be construed to give any other person any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision contained herein. No
purchaser of Shares from any Underwriter shall be deemed to be a successor merely by reason of such
purchase.
13. Survival. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company and the Underwriters contained in this Agreement or made
by or on behalf of the Company or the Underwriters pursuant to this Agreement or any certificate
delivered pursuant hereto shall survive the delivery of and payment for the Shares and shall remain
in full force and effect, regardless of any termination of this Agreement or any investigation made
by or on behalf of the Company or the Underwriters.
14. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise
expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the
Securities Act; (b) the term “business day” means any day other than a day on which banks
are permitted or required to be closed in New York City; and (c) the term “subsidiary” has
the meaning set forth in Rule 405 under the Securities Act.
15. Miscellaneous.
(a) Authority of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx & Co.
Incorporated and Xxxxx Fargo Securities, LLC. Any action by the Underwriters hereunder may be
taken by Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx & Co. Incorporated and
Xxxxx Fargo Securities, LLC on behalf of the Underwriters, and any such action taken by Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx & Co. Incorporated or Xxxxx Fargo
Securities, LLC shall be binding upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any standard form of
telecommunication. Notices to the Underwriters shall be given to the Representatives Xxxxxxx
Xxxxx, Xxxxxx Xxxxxx & Xxxxx Incorporated, Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: (000)
000-0000; Attention: Syndicate Department; with a copy to fax: (212-230-
-27-
8730); Attention: ECM Legal); Xxxxxx Xxxxxxx & Co. Incorporated at 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Equity Syndicate Desk, with a copy to the Legal Department; and Xxxxx
Fargo Securities, LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity Syndicate
Department (fax no: (000) 000-0000), with a copy to Xxxxxx X. Xxxxxx, Xxxxxxx Xxxxxxx & Xxxxxxxx
LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: (000) 000-0000). Notices to the Company
shall be given to it at 0000 X. 00xx Xxx., Xxxxxxx, XX 00000 (fax: (000) 000-0000); Attention:
Xxxxx Xxx, with copies to Xxxx Xxxxxxx, Xxxxxxx Law Firm, P.C., L.L.O., 000 Xxxxx 00xx Xx., 0xx
Xxxxx, Xxxxxxx, Xxxxxxxx 00000 (fax: (000) 000-0000) and Xxxxxxx Xxxxxxx, Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, Xxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: (000) 000-0000).
(c) Governing Law. This Agreement and any claim, controversy or dispute arising under or
related to this Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in such state.
(d) Counterparts. This Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
(f) Headings. The headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
[Signature Pages Follow]
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If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.
| Very truly yours, SWIFT TRANSPORTATION COMPANY |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| SWIFT CORPORATION |
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| By: | ||||
| Name: | ||||
| Title: | ||||
Swift — Signature Page to Underwriting Agreement
Accepted: December [•], 2010
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
For itself and on behalf of the
several Underwriters listed
in Schedule 1 hereto.
several Underwriters listed
in Schedule 1 hereto.
By: |
||||
Swift — Signature Page to Underwriting Agreement
Accepted: December [•], 2010
XXXXXX XXXXXXX & CO. INCORPORATED
For itself and on behalf of the
several Underwriters listed
in Schedule 1 hereto.
several Underwriters listed
in Schedule 1 hereto.
By: |
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Swift — Signature Page to Underwriting Agreement
Accepted: December [•], 2010
XXXXX FARGO SECURITIES, LLC
For itself as underwriter and as qualified independent underwriter,
and on behalf of the
several Underwriters listed
in Schedule 1 hereto.
and on behalf of the
several Underwriters listed
in Schedule 1 hereto.
By: |
||||
Swift — Signature Page to Underwriting Agreement
Schedule 1
| Number of Shares of | ||||
| Underwriter | Stock | |||
Xxxxxx Xxxxxxx & Co. Incorporated |
[•] | |||
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated |
[•] | |||
Xxxxx Fargo Securities, LLC |
[•] | |||
Deutsche Bank Securities Inc. |
[•] | |||
UBS Securities LLC |
[•] | |||
Citigroup Global Markets Inc. |
[•] | |||
BB&T Capital Markets, a division of Xxxxx and Xxxxxxxxxxxx, LLC |
[•] | |||
RBC Capital Markets Corporation |
[•] | |||
Xxxxxx, Xxxxxxxx & Company, Incorporated |
[•] | |||
Xxxxxx X. Xxxxx & Co. Incorporated |
[•] | |||
Xxxxxxxx Inc. |
[•] | |||
WR Securities LLC |
[•] | |||
Xxxxxx Xxxxxx & Company, Inc. |
[•] | |||
Total |
[•] | |||
Sch. 1-1
Schedule 2
List of Significant Subsidiaries
[TO COME]
Sch. 2-1
Schedule 3
OFAC Compliance
[TO COME]
Sch. 3-1
Annex A
[Form of Opinion of Counsel for the Company]
[TO COME]
Annex A-1
Annex B
a. Pricing Disclosure Package
[list each Issuer Free Writing Prospectus to be included in the Pricing Disclosure Package]
b. Pricing Information Provided Orally by Underwriters
[set out key information included in script that will be used by Underwriters to confirm
sales]
Annex B-1
Exhibit A
FORM OF LOCK-UP AGREEMENT
November [•], 2010
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Fargo Securities, LLC
As Representatives of the
several Underwriters listed
in Schedule 1 to the Underwriting
Agreement referred to below
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
| Re: | SWIFT TRANSPORTATION COMPANY — Public Offering |
Ladies and Gentlemen:
The undersigned understands that you, as Representatives of the several Underwriters, propose
to enter into an Underwriting Agreement (the “Underwriting Agreement”) with Swift
Transportation Company, a Delaware corporation (the “Company”) and Swift Corporation, a
Nevada corporation (“Swift”), providing for the public offering (the “Public
Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement (the
“Underwriters”), of Class A Common Stock of the Company (the “Securities”). Capitalized
terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting
Agreement.
In consideration of the Underwriters’ agreement to purchase and make the Public Offering of
the Securities, and for other good and valuable consideration receipt of which is hereby
acknowledged, the undersigned hereby agrees that, without the prior written consent of each of
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxx
Fargo Securities, LLC on behalf of the Underwriters, the undersigned will not, during the period
ending 180 days after the date of the prospectus relating to the Public Offering (the
“Prospectus”), (1) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase,
or otherwise transfer or dispose of, directly or indirectly, any shares of Class A Common Stock,
$.01 per share par value, of the Company (the “Common Stock”) or any securities convertible
into or exercisable or exchangeable for Common Stock (including without limitation, Common Stock or
such other securities which may be deemed to be beneficially owned by the undersigned in accordance
with the rules and regulations of the Securities and Exchange Commission and
A-1
securities which may be issued upon exercise of a stock option or warrant), or publicly
disclose the intention to make any offer, sale, pledge or disposition, (2) enter into any swap or
other agreement that transfers, in whole or in part, any of the economic consequences of ownership
of the Common Stock or such other securities, whether any such transaction described in clause (1)
or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or
otherwise or (3) make any demand for or exercise any right with respect to the registration of any
shares of Common Stock or any security convertible into or exercisable or exchangeable for Common
Stock, in each case other than (A) transfers of shares of Common Stock as a bona fide gift or
gifts, or to any trust, family limited partnership or similar entity established for the direct or
indirect benefit of the undersigned or the immediate family of the undersigned, (B) distributions
of shares of Common Stock to members, partners or stockholders of the undersigned and (C) the
establishment of a trading plan pursuant to Rule 10b5-1 under the Securities Exchange Act of 1934
(the “Exchange Act”) for the transfer of Securities so long as transfers occur subsequent
to the expiration of the 180-day restricted period, as such period may be extended;
provided that in the case of any transfer or distribution pursuant to clause (A) or (B),
each donee or distributee shall execute and deliver to the Representatives a lock-up letter in the
form of this paragraph; and provided, further, that in the case of any transfer or
distribution pursuant to clause (A), (B) or (C), no filing by any party (donor, donee, transferor
or transferee) under the Exchange Act or other public announcement shall be required or shall be
made voluntarily in connection with such transfer, distribution or establishment (other than a
filing on a Form 5 made after the expiration of the 180-day period referred to above).
Notwithstanding the foregoing, if (1) during the last 17 days of the 180-day restricted period, the
Company issues an earnings release or material news or a material event relating to the Company
occurs; or (2) prior to the expiration of the 180-day restricted period, the Company announces that
it will release earnings results during the 16-day period beginning on the last day of the 180-day
period, the restrictions imposed by this Letter Agreement shall continue to apply until the
expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence
of the material news or material event.
In furtherance of the foregoing, the Company, and any duly appointed transfer agent for the
registration or transfer of the securities described herein, are hereby authorized to decline to
make any transfer of securities if such transfer would constitute a violation or breach of this
Letter Agreement.
The undersigned hereby represents and warrants that the undersigned has full power and
authority to enter into this Letter Agreement. All authority herein conferred or agreed to be
conferred and any obligations of the undersigned shall be binding upon the successors, assigns,
heirs or personal representatives of the undersigned.
The undersigned understands that, if the Underwriting Agreement does not become effective, or
if the Underwriting Agreement (other than the provisions thereof which survive termination) shall
terminate or be terminated prior to payment for and delivery of the Common Stock to be sold
thereunder, the undersigned shall be released from all obligations under this Letter Agreement.
The undersigned understands that the Underwriters are entering into the Underwriting Agreement and
proceeding with the Public Offering in reliance upon this Letter Agreement.
A-2
This Letter Agreement and any claim, controversy or dispute arising under or related to this
Letter Agreement shall be governed by and construed in accordance with the laws of the State of New
York, without regard to the conflict of laws principles thereof.
| Very truly yours, [NAME OF STOCKHOLDER] |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Swift — Signature Page to Lock-up Agreement - [Name of stockholder]
