EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
December 31, 2004, among Universal Truckload Services, Inc., a Michigan
corporation (the "Company"), Xxxxxxx X. Xxxxxx ("M.T. Moroun"), and The
Xxxxxx X. Xxxxxx Trust (the "Trust").
RECITALS
For good and valuable consideration, the receipt of which is hereby
acknowledged, the Company desires to provide to each Holder the rights to
register the Registrable Securities held by them under the Securities Act on the
terms and subject to the conditions set forth herein.
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. As used in this Agreement, the following
capitalized terms shall have the following respective meanings:
"Action": Any action, suit, arbitration, inquiry, proceeding or
investigation by or before any governmental entity.
"Common Stock": The Company's common stock, no par value per share.
"Exchange Act": The Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"Holder": Any holder of Registrable Securities (including any direct
or indirect transferee of M.T. Moroun or the Trust) who agrees in writing to be
bound by the provisions of this Agreement.
"Morouns": M.T. Moroun and the Trust, collectively.
"Person": Any individual, partnership, joint venture, corporation,
limited liability company, trust, unincorporated organization, enterprise or
government or any department or agency thereof.
"Registrable Securities": Any shares of Common Stock. Any particular
Registrable Securities that are issued shall cease to be Registrable Securities
when (i) a registration statement with respect to the sale by the Holder of such
securities shall have become effective under the Securities Act and such
securities shall have been disposed of in accordance with such registration
statement, (ii) such securities shall have been distributed to the public
pursuant to Rule 144 (or any successor provision) under the Securities Act or
(iii) such securities shall have ceased to be outstanding.
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"Registration Expenses": Any and all expenses incident to
performance of or compliance with this Agreement, including, without limitation,
(i) all SEC and stock exchange or National Association of Securities Dealers,
Inc. (the "NASD") registration and filing fees (including, if applicable, the
fees and expenses of any "qualified independent underwriter," as such term is
defined in Schedule E to the By-laws of the NASD, and of its counsel), (ii) all
fees and expenses of complying with securities or blue sky laws (including fees
and disbursements of counsel for the underwriters in connection with blue sky
qualifications of the Registrable Securities), (iii) all printing, messenger and
delivery expenses, (iv) all fees and expenses incurred in connection with the
listing of the Registrable Securities on any securities exchange pursuant to
clause (viii) of Section 3.1 and all rating agency fees, (v) the fees and
disbursements of counsel for the Company and of its independent public
accountants, including the expenses of any special audits and/or "cold comfort"
letters required by or incident to such performance and compliance, (vi) the
reasonable fees and disbursements of counsel selected pursuant to Section 6.1
hereof by the Holders of the Registrable Securities being registered to
represent such Holders in connection with each such registration, (vii) any fees
and disbursements of underwriters customarily paid by the issuers or sellers of
securities, but excluding underwriting discounts and commissions and transfer
taxes, if any, (viii) fees and expenses incurred by the Company or the Holders
participating in such registration in connection with any "road show" including
travel and accommodations, and (ix) other reasonable out-of-pocket expenses of
Holders (provided that such expenses shall not include expenses of counsel other
than those provided for in clause (vi) above).
"Securities Act": The Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"SEC": The Securities and Exchange Commission or any other federal
agency at the time administering the Securities Act or the Exchange Act and
other federal securities laws.
ARTICLE II
REGISTRATION RIGHTS
Section 2.1 Piggyback Rights. (a) Right to Include Registrable
Securities. If the Company at any time after the date hereof proposes to
register its Common Stock (or any security which is convertible into or
exchangeable or exercisable for Common Stock) under the Securities Act (other
than a registration on Form S-4 or S-8, or any successor or other forms
promulgated for similar purposes), whether or not for sale for its own account,
it will, at each such time, give prompt written notice to all Holders of
Registrable Securities of its intention to do so and of such Holders' rights
under this Article II. Upon the written request of any such Holder made within
20 days after the receipt of any such notice (which request shall specify the
Registrable Securities intended to be disposed of by such Holder), the Company
will, as expeditiously as practicable, use its reasonable best efforts to effect
the registration under the Securities Act of all Registrable Securities which
the Company has been so requested to register by the Holders thereof, to the
extent requisite to permit the disposition of the Registrable Securities so to
be registered; provided that (i) if, at any time after giving written notice of
its intention to register any securities and prior to the effective date of the
registration statement filed in connection with such registration, the Company
shall determine for any reason not to
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proceed with the proposed registration of the securities to be sold by it, the
Company may, at its election, give written notice of such determination to each
Holder of Registrable Securities and, thereupon, shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration (but not from its obligation to pay the Registration Expenses in
connection therewith), and (ii) if such registration involves an underwritten
offering, all Holders of Registrable Securities requesting to be included in the
Company's registration must sell their Registrable Securities to the
underwriters selected by the Company on the same terms and conditions as apply
to the Company, with such differences, including any with respect to
indemnification and liability insurance, as may be customary or appropriate in
combined primary and secondary offerings. If a registration requested pursuant
to this Section 2.1(a) involves an underwritten public offering, any Holder of
Registrable Securities requesting to be included in such registration may elect,
in writing prior to the effective date of the registration statement filed in
connection with such registration, not to register such securities in connection
with such registration.
(b) Expenses. The Company will pay all Registration Expenses in
connection with each registration of Registrable Securities requested pursuant
to this Section 2.1.
Section 2.2 Priority in Piggyback Registrations. If a registration
pursuant to this Section 2.1 involves an underwritten offering and the managing
underwriter advises the Company in writing that, in its opinion, the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering, so as to be likely to have a materially
adverse effect on the price, timing or distribution of the securities offered in
such offering as contemplated by the Company (other than the Registrable
Securities), then the Company will include in such registration (i) first, 100%
of the securities the Company proposes to sell, (ii) second, to the extent that
the number of Registrable Securities requested to be included in such
registration pursuant to this Section 2.1 can, in the opinion of such managing
underwriter, be sold without having the materially adverse effect referred to
above, the number of Registrable Securities which the Holders have requested to
be included in such registration, such amount to be allocated pro rata among all
requesting Holders on the basis of the relative number of shares of Registrable
Securities then held by each such Holder (provided that any shares thereby
allocated to any such Holder that exceed such Holder's request will be
reallocated among the remaining requesting Holders in like manner) and (iii)
third, to the extent that the number of Registrable Securities requested to be
included in such registration can, in the opinion of such managing underwriter,
be sold without having the materially adverse effect referred to above, the
number of Registrable Securities held by any other Person which have the right
to be included in such registration.
Section 2.3 Additional Rights. If the Company at any time grants to
any other holders of Common Stock any rights to request the Company to effect
the registration under the Securities Act of any such shares of Common Stock on
terms more favorable to such holders than the terms set forth in Section 2.1,
the terms of Section 2.1 shall be deemed amended or supplemented to the extent
necessary to provide the Holders such more favorable rights and benefits.
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ARTICLE III
REGISTRATION PROCEDURES
Section 3.1 Registration Procedures. If and whenever the Company is
required to use its reasonable best efforts to effect or cause the registration
of any Registrable Securities under the Securities Act as provided in this
Agreement, the Company will, as expeditiously as possible:
(i) prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its reasonable best
efforts to cause such registration statement to become effective,
provided, however, that the Company may discontinue any registration of
its securities which is being effected pursuant to Section 2.1 at any time
prior to the effective date of the registration statement relating
thereto;
(ii) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for a period not in excess of 270 days and to comply
with the provisions of the Securities Act, the Exchange Act and the rules
and regulations of the SEC thereunder with respect to the disposition of
all securities covered by such registration statement during such period
in accordance with the intended methods of disposition by the seller or
sellers thereof set forth in such registration statement; provided that
before filing a registration statement or prospectus, or any amendments or
supplements thereto, the Company will use its reasonable best efforts to
furnish to counsel selected pursuant to Section 6.1 hereof by the Holders
of the Registrable Securities covered by such registration statement to
represent such Holders;
(iii) furnish to each seller of such Registrable Securities
such number of copies of such registration statement and of each amendment
and supplement thereto (in each case including all exhibits filed
therewith, including any documents incorporated by reference), such number
of copies of the prospectus included in such registration statement
(including each preliminary prospectus and summary prospectus), in
conformity with the requirements of the Securities Act, and such other
documents as such seller may reasonably request in order to facilitate the
disposition of the Registrable Securities by such seller;
(iv) use its reasonable best efforts to register or qualify
such Registrable Securities covered by such registration in such
jurisdictions as each seller shall reasonably request, and do any and all
other acts and things which may be reasonably necessary or advisable to
enable such seller to consummate the disposition in such jurisdictions of
the Registrable Securities owned by such seller, except that the Company
shall not for any such purpose be required to qualify generally to do
business as a foreign corporation in any jurisdiction where, but for the
requirements of this clause (iv), it would not be obligated to be so
qualified, to subject itself to taxation in any such jurisdiction or to
consent to general service of process in any such jurisdiction;
(v) use its reasonable best efforts to cause such Registrable
Securities covered by such registration statement to be registered with or
approved by such other
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governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof to consummate the disposition of such
Registrable Securities;
(vi) notify each seller of any such Registrable Securities
covered by such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act
within the appropriate period mentioned in clause (ii) of this Section
3.1, of the Company's becoming aware that the prospectus included in such
registration statement, as then in effect, includes an untrue statement of
a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing, and at the request of any such
seller, prepare and furnish to such seller a reasonable number of copies
of an amended or supplemental prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such Registrable Securities,
such prospectus shall not include an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of
the circumstances then existing;
(vii) use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable after the effective
date of the registration statement, an earnings statement which shall
satisfy the provisions of Section 11(a) of the Securities Act and the
rules and regulations promulgated thereunder;
(viii) (A) use its reasonable best efforts to list such
Registrable Securities on any securities market or exchange on which the
Common Stock is then listed if such Registrable Securities are not already
so listed and if such listing is then permitted under the rules of such
exchange; and (B) use its reasonable best efforts to provide a transfer
agent and registrar for such Registrable Securities covered by such
registration statement not later than the effective date of such
registration statement;
(ix) enter into such customary agreements (including an
underwriting agreement in customary form), which may include
indemnification provisions in favor of underwriters and other persons in
addition to, or in substitution for the provisions of Article IV hereof,
and take such other actions as sellers of a majority of shares of such
Registrable Securities or the underwriters, if any, reasonably request in
order to expedite or facilitate the disposition of such Registrable
Securities;
(x) obtain a "cold comfort" letter or letters from the
Company's independent public accounts in customary form and covering
matters of the type customarily covered by "cold comfort" letters as the
seller or sellers of a majority of shares of such Registrable Securities
shall reasonably request (provided that Registrable Securities constitute
at least 25% of the securities covered by such registration statement);
(xi) make available for inspection by any seller of such
Registrable Securities covered by such registration statement, by any
underwriter participating in any disposition to be effected pursuant to
such registration statement and by any attorney,
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accountant or other agent retained by any such seller or any such
underwriter, all pertinent financial and other records, pertinent
corporate documents and properties of the Company, and cause all of the
Company's officers, directors and employees to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant
or agent in connection with such registration statement;
(xii) notify counsel (selected pursuant to Section 6.1 hereof)
for the Holders of Registrable Securities included in such registration
statement and the managing underwriter or agent, immediately, and confirm
the notice in writing (A) when the registration statement, or any
post-effective amendment to the registration statement, shall have become
effective, or any supplement to the prospectus or any amendment prospectus
shall have been filed, (B) of the receipt of any comments from the SEC,
(C) of any request of the SEC to amend the registration statement or amend
or supplement the prospectus or for additional information and (D) of the
issuance by the SEC of any stop order suspending the effectiveness of the
registration statement or of any order preventing or suspending the use of
any preliminary prospectus, or of the suspension of the qualification of
the registration statement for offering or sale in any jurisdiction, or of
the institution or threatening of any proceedings for any of such
purposes;
(xiii) make every reasonable effort to prevent the issuance of
any stop order suspending the effectiveness of the registration statement
or of any order preventing or suspending the use of any preliminary
prospectus and, if any such order is issued, to obtain the withdrawal of
any such order at the earliest possible moment;
(xiv) if requested by the managing underwriter or agent or any
Holder of Registrable Securities covered by the registration statement,
promptly incorporate in a prospectus supplement or post-effective
amendment such information as the managing underwriter or agent or such
Holder reasonably requests to be included therein, including, without
limitation, with respect to the number of Registrable Securities being
sold by such Holder to such underwriter or agent, the purchase price being
paid therefor by such underwriter or agent and with respect to any other
terms of the underwritten offering of the Registrable Securities to be
sold in such offering; and make all required filings of such prospectus
supplement or post-effective amendment as soon as practicable after being
notified of the matters incorporated in such prospectus supplement or
post-effective amendment;
(xv) cooperate with the Holders of Registrable Securities
covered by the registration statement and the managing underwriter or
agent, if any, to facilitate the timely preparation and delivery of
certificates (not bearing any restrictive legends) representing securities
to be sold under the registration statement, and enable such securities to
be in such denominations and registered in such names as the managing
underwriter or agent, if any, or such Holders may request;
(xvi) obtain for delivery to the Holders of Registrable
Securities being registered and to the underwriter or agent an opinion or
opinions from counsel for the Company in customary form and in form,
substance and scope reasonably satisfactory to such Holders, underwriters
or agents and their counsel; and
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(xvii) cooperate with each seller of Registrable Securities
and each underwriter or agent participating in the disposition of such
Registrable Securities and their respective counsel in connection with any
filings required to be made with the NASD.
Each Holder of Registrable Securities agrees as a condition to the
registration of such Holder's Registrable Securities as provided herein to
furnish the Company with such information regarding such seller and pertinent to
the disclosure requirements relating to the registration and the distribution of
such securities as the Company may from time to time reasonably request in
writing.
Each Holder of Registrable Securities agrees that, upon receipt of
any notice from the Company of the happening of any event of the kind described
in clause (vi) of this Section 3.1, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the registration statement
covering such Registrable Securities until such Holder's receipt of the copies
of the supplemented or amended prospectus contemplated by clause (vi) of this
Section 3.1, and, if so directed by the Company, such Holder will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in such Holder's possession, of the prospectus covering such Registrable
Securities current at the time of receipt of such notice. In the event the
Company shall give any such notice, the period mentioned in clause (ii) of this
Section 3.1 shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to clause (vi) of this
Section 3.1 and including the date when each seller of Registrable Securities
covered by such registration statement shall have received the copies of the
supplemented or amended prospectus contemplated by clause (vi) of this Section
3.1.
Section 3.2 Restrictions on Disposition. Each Holder agrees that, in
connection with an offering of the Company's securities or of the underwriters
managing any underwritten offering of the Company's securities, it will not
effect any sale, disposition or distribution of Registrable Securities (other
than those included in the registration) without the prior written consent of
the managing underwriter for such period of time (not to exceed 180 days) from
the effective date of such registration as the Company or the underwriters may
specify.
ARTICLE IV
INDEMNIFICATION
Section 4.1 Indemnification by the Company. In the event of any
registration of any securities of the Company under the Securities Act pursuant
to Section 2.1, the Company will, and it hereby does, indemnify and hold
harmless, to the extent permitted by law, the seller of any Registrable
Securities covered by such registration statement, each affiliate of such seller
and their respective trustees, directors and officers or general and limited
partners (including any director, officer, affiliate, employee, agent and
controlling Person of any of the foregoing), each other Person who participates
as an underwriter in the offering or sale of such securities and each other
Person, if any, who controls such seller or any such underwriter within the
meaning of the Securities Act (collectively, the "Indemnified Parties"), against
any and all Actions (whether or not an Indemnified Party is a party thereto),
losses, claims, damages or liabilities, joint or
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several, and expenses (including reasonable attorney's fees and reasonable
expenses of investigation) to which such Indemnified Party may become subject
under the Securities Act, common law or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions or proceedings in respect
thereof, whether or not such Indemnified Party is a party thereto) arise out of,
relate to or are based upon (a) any untrue statement or alleged untrue statement
of any material fact contained in any registration statement under which such
securities were registered under the Securities Act, any preliminary, final or
summary prospectus contained therein, or any amendment or supplement thereto, or
(b) any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein (in the case of
a prospectus, in light of the circumstances under which they were made) not
misleading, and the Company will reimburse such Indemnified Party for any legal
or any other expenses reasonably incurred by it in connection with investigating
or defending against any such loss, claim, liability, action or proceeding;
provided that the Company shall not be liable to any Indemnified Party in any
such case to the extent that any such loss, claim, damage, liability (or action
or proceeding in respect thereof) or expense arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement or amendment or supplement thereto or in any
such preliminary, final or summary prospectus in reliance upon and in conformity
with written information furnished to the Company through an instrument duly
executed by such seller specifically stating that it is for use in the
preparation thereof; and provided, further, that the Company will not be liable
to any Person who participates as an underwriter in the offering or sale of
Registrable Securities or any other Person, if any, who controls such
underwriter within the meaning of the Securities Act, under the indemnity
agreement in this Section 4.1(a) with respect to any preliminary prospectus or
the final prospectus or the final prospectus as amended or supplemented, as the
case may be, to the extent that any such Action, loss, claim, damage, liability
or expense of such underwriter or controlling Person results from the fact that
such underwriter sold Registrable Securities to a Person to whom there was not
sent or given, at or prior to the written confirmation of such sale, a copy of
the final prospectus or of the final prospectus as then amended or supplemented,
whichever is most recent, if the Company has previously furnished copies thereof
to such underwriter. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such seller or any
Indemnified Party and shall survive the transfer of such securities by such
seller.
Section 4.2 Indemnification by the Seller. The Company may require,
as a condition to including any Registrable Securities in any registration
statement filed in accordance with Section 2.1 herein, that the Company shall
have received an undertaking reasonably satisfactory to it from the prospective
seller of such Registrable Securities or any underwriter to indemnify and hold
harmless (in the same manner and to the same extent as set forth in Section 4.1)
the Company and all other prospective sellers with respect to any untrue
statement or alleged untrue statement in or omission or alleged omission from
such registration statement, any preliminary, final or summary prospectus
contained therein, or any amendment or supplement, if such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company through
an instrument duly executed by such seller or underwriter specifically stating
that it is for use in the preparation of such registration statement,
preliminary, final or summary prospectus or amendment or supplement, or a
document incorporated by reference into any of the foregoing. Such indemnity
shall remain in full force and effect regardless of any investigation made by or
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on behalf of the Company or any of the prospective sellers, or any of their
respective affiliates, directors, officers or controlling Persons and shall
survive the transfer of such securities by such seller. In no event shall the
liability of any selling Holder of Registrable Securities hereunder be greater
in amount than the dollar amount of the gross proceeds after underwriting
discounts and commissions, but before expenses, received by such Holder upon the
sale of the Registrable Securities giving rise to such indemnification
obligation.
Section 4.3 Notices of Claims, Etc. Promptly after receipt by an
Indemnified Party hereunder of written notice of the commencement of any Action
with respect to which a claim for indemnification may be made pursuant to this
Article IV, such Indemnified Party will, if a claim in respect thereof is to be
made against an indemnifying party, give written notice to the latter of the
commencement of such Action; provided that the failure of the Indemnified Party
to give notice as provided herein shall not relieve the indemnifying party of
its obligations under this Article IV, except to the extent that the
indemnifying party is materially prejudiced by such failure to give notice. In
case any such Action is brought against an Indemnified Party, unless in such
Indemnified Party's reasonable judgment a conflict of interest between such
Indemnified Party and indemnifying parties may exist in respect of such Action,
the indemnifying party will be entitled to participate in and to assume the
defense thereof (at its expense), jointly with any other indemnifying party
similarly notified to the extent that it may wish, with counsel reasonably
satisfactory to such Indemnified Party, and after notice from the indemnifying
party to such Indemnified Party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such Indemnified Party for
any legal or other expenses subsequently incurred by the latter in connection
with the defense thereof other than reasonable costs of investigation. No
indemnifying party will consent to entry of any judgment or settle any Action
which (i) does not include, as an unconditional term thereof, the giving by the
claimant or plaintiff to such Indemnified Party of a release from all liability
in respect of such Action and (ii) does not involve the imposition of equitable
remedies or of any obligations on such Indemnified Party and does not otherwise
adversely affect such Indemnified Party, other than as a result of the
imposition of financial obligations for such Indemnified Party will be
indemnified hereunder.
Section 4.4 Contribution. (a) If the indemnification provided for in
this Article IV from the indemnifying party is unavailable to an Indemnified
Party hereunder in respect of any Action, losses, damages, liabilities or
expenses referred to herein, then the indemnifying party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such Action, losses, damages,
liabilities or expenses in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and such Indemnified Party in
connection with the actions which resulted in such Action losses, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of such indemnifying party and such Indemnified Party shall
be determined by reference to, among other things, whether any action in
question, including any untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact, has been made by, or
relates to information supplied by, such indemnifying party or Indemnified
Parties, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such action. The amount paid or payable by a
party under this Section 4.4 as a result of the Action, losses, damages,
liabilities and expenses referred to above shall be deemed to include any legal
or other fees or expenses reasonably incurred by such party in connection with
any investigation or proceeding.
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(b) The parties hereto agree that it would not be just and equitable
if contribution pursuant to this Section 4.4 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in Section 4.4(a) hereof. 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.
Section 4.5 Other Indemnification. Indemnification similar to that
specified in the preceding provisions of this Article IV (with appropriate
modifications) shall be given by the Company and each seller of Registrable
Securities with respect to any required registration or other qualification of
securities under any federal or state law or regulation or governmental
authority other than the Securities Act.
Section 4.6 Non-Exclusivity. The obligations of the parties under
this Article IV shall be in addition to any liability which any party may
otherwise have to any other party.
ARTICLE V
RULE 144
Section 5.1 Rule 144. If the Company shall have filed a registration
statement pursuant to the requirements of Section 12 of the Exchange Act or a
registration statement pursuant to the requirements of the Securities Act, the
Company covenants that it will file the reports required to be filed by it under
the Securities Act and the Exchange Act (or, if the Company is not required to
file such reports, it will, upon the request of the Morouns, make publicly
available such information), and it will take such further action as any Holder
of Registrable Securities (or, if the Company is not required to file reports as
provided above, the Morouns) may reasonably request, all to the extent required
from time to time to enable such Holder to sell shares of Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by (i) Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or (ii) any similar rule or regulation hereafter
adopted by the SEC. Upon the request of any Holder of Registrable Securities,
the Company will deliver to such Holder a written statement as to whether it has
complied with such requirements. Notwithstanding anything contained in this
Article V, the Company may deregister under Section 12 of the Exchange Act if it
then is permitted to do so pursuant to the Exchange Act.
ARTICLE VI
SELECTION OF COUNSEL
Section 6.1 Selection of Counsel. In connection with any
registration of Registrable Securities pursuant to Section 2.1 hereof, the
Holders of a majority of the Registrable Securities covered by any such
registration may select one counsel to represent all Holders of Registrable
Securities covered by such registration; provided, however, that in the event
that the counsel selected as provided above is also acting as counsel to the
Company in connection with
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such registration, the remaining Holders shall be entitled to select one
additional counsel to represent all such remaining Holders.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Amendments and Waivers. This Agreement may not be
amended except by an instrument in writing signed on behalf of the Company and
each of the Morouns. Each holder of any Registrable Securities at the time or
thereafter outstanding shall be bound by any amendment authorized by this
Section, whether or not such Registrable Securities shall have been marked to
indicate such amendment.
Section 7.2 Successors, Assigns and Transferees. This Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and assigns.
Section 7.3 Notices. All notices and other communications provided
for hereunder shall be in writing and shall be sent by first class mail, fax or
hand delivery:
(i) if to the Company, to:
Universal Truckload Services, Inc.
00000 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Attention: Chief Financial Officer
Fax: (000) 000-0000
with copies to:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Fax: (000) 000-0000
(ii) if to the Morouns, to:
CenTra, Inc.
00000 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxxxxxx
Fax: (000) 000-0000
All such notices and communications shall be deemed to have been
given or made (A) when delivered by hand, (B) five business days after being
deposited in the mail, postage prepaid or (C) when faxed, receipt acknowledged.
12
Section 7.4 Descriptive Headings. The headings in this Agreement are
for convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein.
Section 7.5 Severability. In the event that any one or more of the
provisions, paragraphs, words, clauses, phrases or sentences contained herein,
or the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision, paragraph, word, clause, phrase or
sentence in every other respect and of the remaining provisions, paragraphs,
words, clauses, phrases or sentences hereof shall not be in any way impaired, it
being intended that all rights, powers and privileges of the parties hereto
shall be enforceable to the fullest extent permitted by law.
Section 7.6 Counterparts. This Agreement may be executed in
counterparts, and by different parties on separate counterparts, each of which
shall be deemed an original, but all such counterparts shall together constitute
one and the same instrument.
Section 7.7 Governing Law; Submission to Jurisdiction. This
Agreement shall be governed by and construed and enforced in accordance with the
laws of the State of Michigan. The parties to this Agreement hereby agree to
submit to the jurisdiction of the courts of the State of Michigan, the federal
courts sitting in Michigan. Each of the parties to this Agreement hereby
irrevocably and unconditionally agrees to be subject to, and hereby consents and
submits to, the jurisdiction of the courts of the State of Michigan and of the
federal courts sitting in Michigan.
Section 7.8 Specific Performance. The parties hereto acknowledge and
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. Accordingly, it is agreed that they
shall be entitled to an injunction or injunctions to prevent breaches of the
provisions of this Agreement and to enforce specifically the terms and
provisions hereof, in addition to any other remedy to which they may be entitled
at law or in equity.
[Continued on next page.]
IN WITNESS WHEREOF, each of the undersigned has executed this
Agreement or caused this Agreement to be duly executed on its behalf as of the
date first written above.
UNIVERSAL TRUCKLOAD SERVICES, INC.
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title CFO
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxx
The Xxxxxx X. Xxxxxx Trust
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name:
Title
