FORM OF REGISTRATION RIGHTS AGREEMENT BY AND AMONG SWIFT TRANSPORTATION COMPANY, JERRY MOYES AND THE MOYES AFFILIATES NOTED HEREIN Dated as of December [], 2010
Exhibit 10.2
FORM OF REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
SWIFT TRANSPORTATION COMPANY,
▇▇▇▇▇ ▇▇▇▇▇
AND
THE MOYES AFFILIATES NOTED HEREIN
Dated as of December [], 2010
TABLE OF CONTENTS
| Page | ||||
ARTICLE I |
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DEFINITIONS |
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Section 1.1 Certain Defined Terms |
1 | |||
Section 1.2 Construction |
4 | |||
ARTICLE II |
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TRANSFER |
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Section 2.1 Binding Effect on Transferees |
5 | |||
Section 2.2 Additional Purchases |
5 | |||
Section 2.3 Charter Provisions |
5 | |||
Section 2.4 Legend |
5 | |||
ARTICLE III |
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REGISTRATION RIGHTS |
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Section 3.1 Demand Registration |
6 | |||
Section 3.2 Piggyback Registrations |
8 | |||
Section 3.3 Shelf Registration |
9 | |||
Section 3.4 Withdrawal Rights |
11 | |||
Section 3.5 Holdback Agreements |
11 | |||
Section 3.6 Registration Procedures |
12 | |||
Section 3.7 Registration Expenses |
17 | |||
Section 3.8 Indemnification |
17 | |||
ARTICLE IV |
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MISCELLANEOUS |
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Section 4.1 Headings |
20 | |||
Section 4.2 Entire Agreement |
20 | |||
Section 4.3 Further Actions and Cooperation |
20 | |||
Section 4.4 Notices |
20 | |||
Section 4.5 Applicable Law |
21 | |||
Section 4.6 Severability |
21 | |||
Section 4.7 Successors and Assigns |
21 | |||
Section 4.8 Amendments |
22 | |||
Section 4.9 Waiver |
22 | |||
Section 4.10 Counterparts |
22 | |||
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| Page | ||||
Section 4.11 Submission To Jurisdiction |
22 | |||
Section 4.12 Injunctive Relief |
23 | |||
Section 4.13 Recapitalizations, Exchanges, Etc.
Affecting the Shares of Common Stock;
New Issuance |
23 | |||
Section 4.14 Termination |
23 | |||
Section 4.15 Rule 144 |
23 | |||
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[FORM OF REGISTRATION RIGHTS AGREEMENT]
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made as of December [], 2010, by and
among ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇, jointly, the ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇ Family Trust dated
12/11/87, the ▇▇▇▇ ▇▇▇▇▇ Trust dated 4/27/07, the ▇▇▇▇▇▇ ▇▇▇▇▇ Trust dated 4/27/07, the ▇▇▇▇▇ ▇▇▇▇▇
Trust dated 4/27/07, the ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Trust dated 4/27/07, the ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ Trust dated
4/27/07, the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Trust dated 4/27/07 (together (excluding ▇▇▇▇▇ ▇▇▇▇▇), the “Moyes
Affiliates” and, collectively with ▇▇▇▇▇ ▇▇▇▇▇, the “Initial Stockholders”) and Swift
Transportation Company, a Delaware corporation (the “Company”). Unless otherwise indicated,
references to articles and sections shall be to articles and sections of this Agreement.
WHEREAS, each of the Initial Stockholders is a holder of shares of the Company’s Class B
common stock, par value $0.01 per share (the “Class B Common Stock”), which, pursuant to the
Company’s Amended and Restated Certificate of Incorporation is convertible at the election of the
holders thereof at any time into shares of the Company’s Class A common stock, par value $0.01 per
share (the “Class A Common Stock), on a one-for-one basis; and
WHEREAS, the Company has agreed to provide the registration rights and other rights set forth
herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements
set forth herein and for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Defined Terms. For purposes of this Agreement, the following terms
shall have the following meanings:
(a) “Affiliate” shall have the meaning set forth in Rule 12b-2 promulgated under the Exchange
Act; provided that no Stockholder shall be deemed an Affiliate of any other Stockholder solely by
reason of any investment in the Company.
(b) “Agreement” shall have the meaning assigned to it in the preamble.
(c) A Person shall be deemed to “Beneficially Own” securities if such Person is deemed to be a
“beneficial owner” within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act as in effect
on the date of this Agreement.
(d) “Board” shall mean the board of directors of the Company.
(e) “Bylaws” shall mean the bylaws of the Company, as may be amended and/or restated from time
to time.
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(f) “Certificate of Incorporation” shall mean the certificate of incorporation of the Company,
as may be amended and/or restated from time to time.
(g) “Commission” shall mean the United States Securities and Exchange Commission or any
successor agency.
(h) “Common Stock” shall mean the Class A Common Stock, Class B Common Stock and any and all
securities of any kind whatsoever of the Company which may be issued and outstanding on or after
the date hereof in respect of, in exchange for, or upon conversion of shares of Class A Common
Stock or Class B Common Stock pursuant to a merger, consolidation, stock split, stock dividend,
recapitalization, equity incentive plan of the Company or otherwise.
(i) “Company” shall have the meaning assigned to it in the preamble.
(j) “Company Securities” shall mean (i) any Common Stock and (ii) any other securities of the
Company entitled to vote generally in the election of directors of the Company.
(k) “Demand” shall have the meaning assigned to it in Section 3.1(a).
(l) “Demand Registration” shall have the meaning assigned to it in Section 3.1(a).
(m) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder.
(n) “Form S-3” shall have the meaning assigned to it in Section 3.3(a).
(o) “Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405
under the Securities Act.
(p) “Initial Public Offering” shall mean the initial public offering of Class A Common Stock
pursuant to an effective registration statement under the Securities Act.
(q) “Initial Stockholders” shall have the meaning assigned to it in the preamble.
(r) “Inspectors” shall have the meaning assigned to it in Section 3.6(a)(viii).
(s) “Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined
in Rule 433 under the Securities Act.
(t) “Losses” shall have the meaning assigned to it in Section 3.8(a).
(u) “Other Demanding Sellers” shall have the meaning assigned to it in Section 3.2(b).
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(v) “Other Proposed Sellers” shall have the meaning assigned to it in Section 3.2(b).
(w) “Permitted Transferee” shall mean, with respect to each Stockholder, (i) any other
Stockholder, (ii) such Stockholder’s Affiliates and (iii) in the case of any Stockholder, (A) any
member or general or limited partner of such Stockholder (including, without limitation, any member
of the Initial Stockholders), (B) any corporation, partnership, limited liability company or other
entity that is an Affiliate of such Stockholder or any general or limited partner of such
Stockholder (collectively, “Stockholder Affiliates”), (C) any general partner, director, limited
partner, officer or employee of any Stockholder Affiliate, or any spouse, lineal descendant
(including lineal descendants by adoption), sibling, parent, heir, executor, administrator,
testamentary trustee, legatee or beneficiary of any of the foregoing persons described in this
clause (D) (collectively, “Stockholder Associates”) or (E) any trust, the beneficiaries of which,
or any corporation, limited liability company or partnership, the stockholders, members or general
or limited partners of which, consist solely of any one or more of such Stockholder, any general or
limited partner of such Stockholder, any Stockholder Affiliates, any Stockholder Associates, their
spouses or their lineal descendants including lineal descendants by adoption).
(x) “Person” shall mean any individual, firm, corporation, partnership, limited liability
company or other entity, and shall include any successor (by merger or otherwise) of such entity.
(y) “Piggyback Notice” shall have the meaning assigned to it in Section 3.2(a).
(z) “Piggyback Registration” shall have the meaning assigned to it in Section 3.2(a).
(aa) “Piggyback Seller” shall have the meaning assigned to it in Section 3.2(a).
(bb) “Public Offering” shall mean an offering of equity securities of the Company pursuant to
an effective registration statement under the Securities Act, including an offering in which
Stockholders are entitled to sell Common Stock pursuant to the terms of this Agreement, other than
the Initial Public Offering.
(cc) “Records” shall have the meaning assigned to it in Section 3.6(a)(viii).
(dd) “Registrable Amount” shall mean an amount of Common Stock equal to 1% of the Common Stock
issued and outstanding immediately after the consummation of the Initial Public Offering.
(ee) “Registrable Securities” shall mean any Common Stock currently owned or hereafter
acquired by any Stockholder. As to any particular Registrable Securities, such securities shall
cease to be Registrable Securities when (x) a registration statement registering such securities
under the Securities Act has been declared effective and such
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securities have been sold or otherwise transferred by the holder thereof pursuant to such
effective registration statement or (y) such securities are sold in accordance with Rule 144 (or
any successor provision) promulgated under the Securities Act.
(ff) “Requesting Stockholder” shall have the meaning assigned to it in Section 3.1(a).
(gg) “Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
(hh) “Selling Holders” shall have the meaning assigned to it in Section 3.6(a)(i).
(ii) “Shelf Notice” shall have the meaning assigned to it in Section 3.3(a).
(jj) “Shelf Registration Effectiveness Period” shall have the meaning assigned to it in
Section 3.3(c).
(kk) “Shelf Registration Statement” shall have the meaning assigned to it in Section 3.3(a).
(ll) “Stockholders” shall mean (i) the Initial Stockholders and (ii) each Permitted Transferee
who becomes a party to or bound by the provisions of this Agreement in accordance with the terms
hereof or a Permitted Transferee thereof who is entitled to enforce the provisions of this
Agreement in accordance with the terms hereof, in each case of clauses (i) and (ii) to the extent
that the Initial Stockholders and Permitted Transferees, together, hold at least a Registrable
Amount.
(mm) “Suspension Period” shall have the meaning assigned to it in Section 3.3(d).
(nn) “Underwritten Offering” shall mean a sale of securities of the Company to an underwriter
or underwriters for reoffering to the public.
(oo) “Voting Power of the Company” shall mean the total number of votes that may be cast in
the election of directors of the Company if all issued and outstanding Company Securities entitled
to vote on such election were present and voted at a meeting held for such purpose.
Section 1.2 Construction. For the purposes of this Agreement (i) words (including
capitalized terms defined herein) in the singular shall be held to include the plural and vice
versa and words (including capitalized terms defined herein) of one gender shall be held to include
the other gender as the context requires, (ii) the terms “hereof,” “herein” and “herewith” and
words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as
a whole and not to any particular provision of this Agreement, and Article and Section references
are to Articles and Sections of this Agreement, unless otherwise specified, (iii) the word
“including” and words of similar import when used in this Agreement shall mean
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“including, without limitation,” (iv) all references to any period of days shall be deemed to be to
the relevant number of calendar days unless otherwise specified, and (v) all references herein to
“$” or dollars shall refer to United States dollars, unless otherwise specified.
ARTICLE II
TRANSFER
Section 2.1 Binding Effect on Transferees. A Permitted Transferee shall become a
Stockholder hereunder, without any further action by the Company, following a transfer by a
Stockholder of Company Securities to such Permitted Transferee upon the execution by such Permitted
Transferee of a joinder providing that such Person shall be bound by and shall fully comply with
the terms of this Agreement (including the provisions of Article III with respect to the Company
Securities being transferred to such transferee).
Section 2.2 Additional Purchases. Any Company Securities owned by a Stockholder on or
after the date of this Agreement shall have the benefit of and be subject to the terms and
conditions of this Agreement.
Section 2.3 Charter Provisions. The parties hereto shall use their respective reasonable
efforts (including voting or causing to be voted all of the Company Securities held of record by
such party or Beneficially Owned by such party by virtue of having voting power over such Company
Securities) so as to cause no amendment to be made to the Certificate of Incorporation or Bylaws as
in effect as of the date of this Agreement in a manner that would (a) add restrictions to the
transferability of the Company Securities by the Initial Stockholders or their Permitted
Transferees who remain a “Stockholder” (as such term is used herein) at the time of such an
amendment, which restrictions are beyond those then provided for in the Certificate of
Incorporation, this Agreement or applicable securities laws or (b) nullify any of the rights of the
Initial Stockholders or their Permitted Transferees who remain a “Stockholder” (as such term is
used herein) at the time of such amendment, which rights are explicitly provided for in this
Agreement, unless, in each such case, such amendment shall have been approved by such Stockholder.
Section 2.4 Legend. Any certificate representing Company Securities issued to a
Stockholder shall be stamped or otherwise imprinted with a legend in substantially the following
form:
“The shares represented by this certificate are subject to the provisions contained
in the Registration Rights Agreement, dated as of December [], 2010, by and among
Swift Transportation Company and the stockholders of Swift Transportation Company
described therein.”
The Company shall make customary arrangements to cause any Company Securities issued in
uncertificated form to be identified on the books of the Company in a substantially similar manner.
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ARTICLE III
REGISTRATION RIGHTS
Section 3.1 Demand Registration.
(a) At any time after the date that is 180 days after December [], 2010 (or in the case of the
first Demand (as hereafter defined), such prior date as would permit the Company to cause any
filings required hereunder to be filed on such date or the first possible date thereafter), any
Person that is a Stockholder (a “Requesting Stockholder”) on the date of such request shall be
entitled to make a written request of the Company (a “Demand”) for registration under the
Securities Act of an amount of Registrable Securities that, when taken together with the amounts of
Registrable Securities requested to be registered under the Securities Act by such Requesting
Stockholder’s Affiliates, equals or is greater than the Registrable Amount on the date of such
request (a “Demand Registration”) and thereupon the Company will, subject to the terms of this
Agreement, use its commercially reasonable efforts to effect the registration under the Securities
Act of:
(i) the Registrable Securities which the Company has been so requested to
register by the Requesting Stockholders for disposition in accordance with the
intended method of disposition stated in such Demand, which may be an Underwritten
Offering;
(ii) all other Registrable Securities which the Company has been requested to
register pursuant to Section 3.1(b); and
(iii) all shares of Common Stock which the Company may elect to register in
connection with any offering of Registrable Securities pursuant to this Section 3.1,
but subject to Section 3.1(f);
all to the extent necessary to permit the disposition (in accordance with the intended methods
thereof) of the Registrable Securities and the additional Common Stock, if any, to be so
registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be
registered in such Demand Registration, (ii) the intended method of disposition in connection with
such Demand Registration, to the extent then known and (iii) the identity of the Requesting
Stockholder (or Requesting Stockholders). Within 5 days after receipt of a Demand, the Company
shall give written notice of such Demand to any other Persons that on the date a Demand is
delivered to the Company is a Stockholder. Subject to Section 3.1(f), the Company shall include in
the Demand Registration covered by such Demand all Registrable Securities with respect to which the
Company has received a written request for inclusion therein (i) if a notice by the Company is
required by this paragraph, within 5 days after such notice by the Company has been given, or (ii)
if no notice by the Company is required by this paragraph, within 5 days after receipt by the
Company of such Demand. Such written request shall comply with the requirements of a Demand as set
forth in this Section 3.1(b).
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(c) Each Stockholder shall be entitled to an unlimited number of Demand Registrations until
such time as the Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such appropriate registration form of the Commission as
shall be selected by the Requesting Stockholders, including, to the extent permissible, an existing
effective registration statement filed by the Company with the Commission, and shall be reasonably
acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within three
months of a “firm commitment” Underwritten Offering in which all Stockholders were given
“piggyback” rights pursuant to Section 3.2 (subject to Section 3.1(f)) and at least 50% of the
number of Registrable Securities requested by such Stockholders to be included in such Demand
Registration were included) or (B) within three months of any other Demand Registration or any
Underwritten Offering pursuant to Section 3.3(e). In addition, the Company shall be entitled to
postpone (upon written notice to all Stockholders) for up to 120 days the filing or the
effectiveness of a registration statement for any Demand Registration (but no more than twice in
any period of 12 consecutive months) if the Board determines in good faith and in its reasonable
judgment that the filing or effectiveness of the registration statement relating to such Demand
Registration would cause the disclosure of material, non-public information that the Company has a
bona fide business purpose for preserving as confidential. In the event of a postponement by the
Company of the filing or effectiveness of a registration statement for a Demand Registration, the
holders of a majority of Registrable Securities held by the Requesting Stockholder(s) shall have
the right to withdraw such Demand in accordance with Section 3.4.
(f) The Company shall not include any securities other than Registrable Securities in a Demand
Registration, except with the written consent of Stockholders participating in such Demand
Registration that hold a majority of the Registrable Securities included in such Demand
Registration. If, in connection with a Demand Registration, any managing underwriter (or, if such
Demand Registration is not an Underwritten Offering, a nationally recognized independent investment
bank selected by the Initial Stockholders or any of the Permitted Transferees thereof (to the
extent a Stockholder hereunder), reasonably acceptable to the Company, and whose fees and expenses
shall be borne solely by the Company) advises the Company, in writing, that, in its opinion, the
inclusion of all of the securities, including securities of the Company that are not Registrable
Securities, sought to be registered in connection with such Demand Registration would adversely
affect the marketability of the Registrable Securities sought to be sold pursuant thereto, then the
Company shall include in such registration statement only such securities as the Company is advised
by such underwriter or investment bank can be sold without such adverse effect as follows and in
the following order of priority: (i) first, up to the number of Registrable Securities requested to
be included in such Demand Registration by the Stockholders, which, in the opinion of the
underwriter can be sold without adversely affecting the marketability of the offering, pro rata
among such Stockholders requesting such Demand Registration on the basis of the number of such
securities held by such Stockholders and by Stockholders that are Piggyback Sellers; (ii) second,
securities the Company proposes to sell; and (iii) third, all other securities of the Company duly
requested to be included in such
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registration statement, pro rata on the basis of the amount of such other securities requested
to be included or such other method determined by the Company.
(g) Any time that a Demand Registration involves an Underwritten Offering, the Company shall
select the investment banker or investment bankers and managers that will serve as lead and
co-managing underwriters with respect to the offering of such Registrable Securities, which shall
be reasonably acceptable to Stockholders participating in such Demand Registration that hold a
majority of the Registrable Securities included in such Demand Registration.
Section 3.2 Piggyback Registrations.
(a) Subject to the terms and conditions hereof, whenever the Company proposes to register any
of its equity securities under the Securities Act (other than a registration by the Company on a
registration statement on Form S-4 or a registration statement on Form S-8 or any successor forms
thereto) (each, a “Piggyback Registration”), whether for its own account or for the account of
others, the Company shall give the Stockholders prompt written notice thereof (but not less than 5
days prior to the filing by the Company with the Commission of any registration statement with
respect thereto). Such notice (a “Piggyback Notice”) shall specify, at a minimum, the number of
equity securities proposed to be registered, the proposed date of filing of such registration
statement with the Commission, the proposed means of distribution and the proposed managing
underwriter or underwriters (if any and if known). Upon the written request (i) if a Piggyback
Notice is required by this paragraph, of any Person that on the date of such Piggyback Notice is a
Stockholder, given within 5 days after such Piggyback Notice is received by such Person, or (ii) if
no Piggyback Notice is required by this paragraph, of any Person that on the date of approval by
the Board of the filing of such Piggyback Registration is a Stockholder, within 5 days of such
Board approval (any such Persons as described in (i) and (ii) above, each, a “Piggyback Seller”)
(which written request shall specify the number of Registrable Securities then presently intended
to be disposed of by such Piggyback Seller), the Company, subject to the terms and conditions of
this Agreement, shall use its commercially reasonable efforts to cause all such Registrable
Securities held by Piggyback Sellers with respect to which the Company has received such written
requests for inclusion to be included in such Piggyback Registration on the same terms and
conditions as the Company’s equity securities being sold in such Piggyback Registration.
(b) If, in connection with a Piggyback Registration, any managing underwriter (or, if such
Piggyback Registration is not an Underwritten Offering, a nationally recognized independent
investment bank selected by the Initial Stockholders or any of their Permitted Transferees (to the
extent a Stockholder hereunder), reasonably acceptable to the Company, and whose fees and expenses
shall be borne solely by the Company) advises the Company in writing that, in its opinion, the
inclusion of all the equity securities sought to be included in such Piggyback Registration by (i)
the Company, (ii) others who have sought to have equity securities of the Company registered in
such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called
“piggyback” or other incidental or participation registration rights) such registration (such
Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed
sellers of equity securities of the Company (such Persons being “Other Proposed Sellers”), as the
case may be, would adversely affect the
8
marketability of the equity securities sought to be sold pursuant thereto, then the Company
shall include in the registration statement applicable to such Piggyback Registration only such
equity securities as the Company is so advised by such underwriter or investment bank can be sold
without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own
account, then (A) first, such number of equity securities to be sold by the Company
as the Company, in its reasonable judgment and acting in good faith and in
accordance with sound financial practice, shall have determined, (B) second,
Registrable Securities of Piggyback Sellers and securities sought to be registered
by Other Demanding Sellers (if any), pro rata on the basis of the number of shares
of Common Stock held by such Piggyback Sellers and Other Demanding Sellers and (C)
third, other equity securities held by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the
Company’s own account, then (A) first, such number of equity securities sought to be
registered by each Other Demanding Seller and the Piggyback Sellers (if any), pro
rata in proportion to the number of shares of Common Stock held by all such Other
Demanding Sellers and Piggyback Sellers and (B) second, other equity securities held
by any Other Proposed Sellers or to be sold by the Company as determined by the
Company and with such priorities among them as may from time to time be determined
or agreed to by the Company.
(c) In connection with any Underwritten Offering under this Section 3.2 for the Company’s
account, the Company shall not be required to include a holder’s Registrable Securities in the
Underwritten Offering unless such holder accepts the terms of the underwriting as agreed upon
between the Company and the underwriters selected by the Company; provided, that any applicable
underwriting agreement includes only customary terms and conditions.
(d) If, at any time after giving written notice of its intention to register any of its equity
securities as set forth in this Section 3.2 and prior to the time the registration statement filed
in connection with such Piggyback Registration is declared effective, the Company shall determine
for any reason not to register such equity securities, the Company may, at its election, give
written notice of such determination to each Stockholder and thereupon shall be relieved of its
obligation to register any Registrable Securities in connection with such particular withdrawn or
abandoned Piggyback Registration (but not from its obligation to pay the Registration Expenses in
connection therewith as provided herein); provided, that Stockholders may continue the registration
as a Demand Registration pursuant to the terms of Section 3.1.
Section 3.3 Shelf Registration.
(a) Subject to Section 3.3(d), and further subject to the availability of a Registration
Statement on Form S-3 or a successor form (“Form S-3”) to the Company, the Initial Stockholders or
any of their Permitted Transferees (in each case to the extent a Stockholder hereunder) may by
written notice delivered (which notice can be delivered at any
9
time after the eleven month anniversary of the date hereof) to the Company (the “Shelf
Notice”) require the Company to (i) file as promptly as practicable (but no later than 30 days
after the date the Shelf Notice is delivered), and (if the Company is not at such time a well-known
seasoned issuer, as such term is defined in Rule 45 under the Securities Act) to use commercially
reasonable efforts to cause to be declared effective by the Commission at the earliest possible
date permitted under the rules and regulations of the Commission (but no later than 60 days after
such filing date), a Form S-3, or (ii) designate an existing Form S-3 filed with the Commission, in
each case providing for an offering to be made on a continuous basis pursuant to Rule 415 under the
Securities Act relating to the offer and sale, from time to time, of the Registrable Securities
owned by the Initial Stockholders or any of their Permitted Transferees, and any other Persons that
at the time of the Shelf Notice meet the definition of a Stockholder who elect to participate
therein as provided in Section 3.3(b) (the “Shelf Registration Statement”).
(b) Within 5 business days after receipt of a Shelf Notice pursuant to Section 3.3(a), the
Company will deliver written notice thereof to each Stockholder. Each Stockholder may elect to
participate in the Shelf Registration Statement by delivering to the Company a written request to
so participate.
(c) Subject to Section 3.3(d), the Company will use commercially reasonable efforts to keep
the Shelf Registration Statement continuously effective until the date on which all Registrable
Securities covered by the Shelf Registration Statement have been sold thereunder in accordance with
the plan and method of distribution disclosed in the prospectus included in the Shelf Registration
Statement (the “Shelf Registration Effectiveness Period”).
(d) Notwithstanding anything to the contrary contained in this Agreement, the Company shall be
entitled, from time to time, by providing written notice to the Stockholders who elect to
participate in the Shelf Registration Statement, to require such Stockholders to suspend the use of
the prospectus for sales of Registrable Securities under the Shelf Registration Statement for a
reasonable period of time not to exceed 60 days in succession or 90 days in the aggregate in any
twelve-month period (a “Suspension Period”) if the Company shall determine that it is required to
disclose in the Shelf Registration Statement a financing, acquisition, corporate reorganization or
other similar corporate transaction or other material event or circumstance affecting the Company
or its securities, and that the disclosure of such information at such time would be detrimental to
the Company or its stockholders. Immediately upon receipt of such notice, the Stockholders covered
by the Shelf Registration Statement shall suspend the use of the prospectus until the requisite
changes to the prospectus have been made as required below. Any Suspension Period shall terminate
at such time as the public disclosure of such information is made. After the expiration of any
Suspension Period and without any further request from a Stockholder, the Company shall as promptly
as practicable prepare a post-effective amendment or supplement to the Shelf Registration Statement
or the prospectus, or any document incorporated therein by reference, or file any other required
document so that, as thereafter delivered to purchasers of the Registrable Securities included
therein, the prospectus will not include an untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
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(e) At any time, and from time-to-time, during the Shelf Registration Effectiveness Period
(except during a Suspension Period), each of the Initial Stockholders or any of their Permitted
Transferees (in each case to the extent a Stockholder hereunder) may notify the Company of their
intent to sell Registrable Securities covered by the Shelf Registration Statement (in whole or in
part) in an Underwritten Offering (a “Shelf Underwritten Offering”); provided that the Company
shall not be obligated to participate in more than four underwritten offerings during any
twelve-month period. Such notice shall specify (x) the aggregate number of Registrable Securities
requested to be registered in such Shelf Underwritten Offering and (y) the identity of the
Stockholder(s) requesting such Shelf Underwritten Offering. Upon receipt by the Company of such
notice, the Company shall comply with the applicable provisions of Section 3.6, including, without
limitation, those provisions relating the Company’s obligation to make filings with the Commission,
participate in “road shows” and obtain “comfort” letters, and shall take such other actions as
necessary or appropriate to permit the consummation of such Shelf Underwritten Offering as promptly
as practicable. Each Shelf Underwritten Offering shall be for the sale of an amount of Registrable
Securities equal to or greater than the Registrable Amount. In any Shelf Underwritten Offering, the
Company shall select the investment banker or investment bankers and managers that will serve as
lead and co-managing underwriters with respect to the offering of such Registrable Securities,
which shall be reasonably acceptable to the Stockholders participating in such Shelf Underwritten
Offering that hold a majority of the Registrable Securities included in such Shelf Underwritten
Offering.
Section 3.4 Withdrawal Rights. Any Stockholder having notified or directed the Company to
include any or all of its Registrable Securities in a registration statement under the Securities
Act shall have the right to withdraw any such notice or direction with respect to any or all of the
Registrable Securities designated by it for registration by giving written notice to such effect to
the Company prior to the effective date of such registration statement. In the event of any such
withdrawal, the Company shall not include such Registrable Securities in the applicable
registration and such Registrable Securities shall continue to be Registrable Securities for all
purposes of this Agreement. No such withdrawal shall affect the obligations of the Company with
respect to the Registrable Securities not so withdrawn; provided, however, that in the case of a
Demand Registration, if such withdrawal shall reduce the number of Registrable Securities sought to
be included in such registration below the Registrable Amount, then the Company shall as promptly
as practicable give each holder of Registrable Securities sought to be registered notice to such
effect and, within 10 days following the mailing of such notice, such holder(s) of Registrable
Securities still seeking registration shall, by written notice to the Company, elect to register
additional Registrable Securities, when taken together with elections to register Registrable
Securities by its Permitted Transferees, to satisfy the Registrable Amount or elect that such
registration statement not be filed or, if theretofore filed, be withdrawn. During such 10-day
period, the Company shall not file such registration statement if not theretofore filed or, if such
registration statement has been theretofore filed, the Company shall not seek, and shall use
commercially reasonable efforts to prevent, the effectiveness thereof.
Section 3.5 Holdback Agreements. Each Stockholder agrees not to effect any public sale or
distribution (including sales pursuant to Rule 144) of equity securities of the Company, or any
securities convertible into or exchangeable or exercisable for such equity securities, during any
time period reasonably requested by the Company (which shall not exceed 45 days) with respect to
any Public Offering, Demand Registration or Piggyback Registration (in
11
each case, except as part of such registration), or, in each case, a later date required by any
underwriting agreement with respect thereto.
Section 3.6 Registration Procedures.
(a) If and whenever the Company is required to use commercially reasonable efforts to effect
the registration of any Registrable Securities under the Securities Act as provided in Sections
3.1, 3.2 and 3.3, the Company shall as promptly as practicable (in each case, to the extent
applicable):
(i) prepare and file with the Commission a registration statement to effect
such registration, cause such registration statement to become effective at the
earliest possible date permitted under the rules and regulations of the Commission,
and thereafter use commercially reasonable efforts to cause such registration
statement to remain effective pursuant to the terms of this Agreement; provided,
however, that the Company may discontinue any registration of its securities which
are not Registrable Securities at any time prior to the effective date of the
registration statement relating thereto; provided, further that before filing such
registration statement or any amendments thereto, the Company will furnish to the
counsel selected by the holders of Registrable Securities which are to be included
in such registration (“Selling Holders”) copies of all such documents proposed to be
filed, which documents will be subject to the review of such counsel, and such
review to be conducted with reasonable promptness;
(ii) prepare and file with the Commission such amendments (including
post-effective amendments) and supplements to such registration statement and the
prospectus used in connection therewith and any Exchange Act reports incorporated by
reference therein as may be necessary to keep such registration statement effective
and to comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement until the
earlier of such time as all of such securities have been disposed of in accordance
with the intended methods of disposition by the seller or sellers thereof set forth
in such registration statement or (i) in the case of a Demand Registration pursuant
to Section 3.1, the expiration of 60 days after such registration statement becomes
effective or (ii) in the case of a Piggyback Registration pursuant to Section 3.2,
the expiration of 60 days after such registration statement becomes effective or
(iii) in the case of a Shelf Registration pursuant to Section 3.3, the Shelf
Registration Effectiveness Period;
(iii) furnish to each Selling Holder and each underwriter, if any, of the
securities being sold by such Selling Holder such number of conformed copies of such
registration statement and of each amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus contained in such
registration statement (including each preliminary prospectus and any summary
prospectus) and any other prospectus filed under Rule 424 under the Securities Act,
in conformity with the requirements of the Securities Act, and any Issuer Free
Writing Prospectus and
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such other documents as such Selling Holder and underwriter, if any, may
reasonably request in order to facilitate the public sale or other disposition of
the Registrable Securities owned by such seller;
(iv) use commercially reasonable efforts to register or qualify such
Registrable Securities covered by such registration statement under such other
securities laws or blue sky laws of such jurisdictions as any Selling Holder and any
underwriter of the securities being sold by such Selling Holder shall reasonably
request, and take any other action which may be reasonably necessary or advisable to
enable such Selling Holder and underwriter to consummate the disposition in such
jurisdictions of the Registrable Securities owned by such Selling Holder, 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 wherein it would not but
for the requirements of this clause (iv) be obligated to be so qualified, to subject
itself to taxation in any such jurisdiction or to file a general consent to service
of process in any such jurisdiction;
(v) use commercially reasonable efforts to cause such Registrable Securities to
be listed on each securities exchange on which similar securities issued by the
Company are then listed and, if no such securities are so listed, use commercially
reasonable efforts to cause such Registrable Securities to be listed on the New York
Stock Exchange or the Nasdaq Stock Market;
(vi) use commercially reasonable efforts to cause such Registrable Securities
covered by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable the Selling
Holder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling
Holder and underwriter:
(1) an opinion of counsel for the Company, covering the matters customarily
covered in opinions requested in underwritten offerings and such other matters as
may be reasonably requested by such Selling Holder and underwriters, and
(2) a “comfort” letter (or, in the case of any such Person which does not
satisfy the conditions for receipt of a “comfort” letter specified in Statement on
Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the
independent registered public accountants who have certified the Company’s financial
statements included in such registration statement (and, if necessary, any other
independent registered public accountant of any subsidiary of the Company or any
business acquired by the Company from which financial statements and financial data
are, or are required to be, included in the registration statement);
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(viii) promptly make available for inspection by any seller, any underwriter
participating in any disposition pursuant to any registration statement, and any
attorney, accountant or other agent or representative retained by any such seller or
underwriter (collectively, the “Inspectors”), all financial and other records,
pertinent corporate documents and properties of the Company (collectively, the
“Records”), as shall be reasonably necessary to enable them to exercise their due
diligence responsibility, and cause the Company’s officers, directors and employees
to supply all information requested by any such Inspector in connection with such
registration statement; provided, however, that, unless the disclosure of such
Records is necessary to avoid or correct a misstatement or omission in the
registration statement or the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction, the Company shall
not be required to provide any information under this subparagraph (viii) if (i) the
Company believes, after consultation with counsel for the Company, that to do so
would cause the Company to forfeit an attorney-client privilege that was applicable
to such information or (ii) if either (A) the Company has requested and been granted
from the Commission confidential treatment of such information contained in any
filing with the Commission or documents provided supplementally or otherwise or (B)
the Company reasonably determines in good faith that such Records are confidential
and so notifies the Inspectors in writing unless prior to furnishing any such
information with respect to (i) or (ii) such holder of Registrable Securities
requesting such information agrees, and causes each of its Inspectors, to enter into
a confidentiality agreement on terms reasonably acceptable to the Company; and
provided, further, that each Holder of Registrable Securities agrees that it will,
upon learning that disclosure of such Records is sought in a court of competent
jurisdiction, give notice to the Company and allow the Company, at its expense, to
undertake appropriate action and to prevent disclosure of the Records deemed
confidential;
(ix) promptly notify in writing each Selling Holder and the underwriters, if
any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus
supplement related thereto, any Issuer Free Writing Prospectus or post-effective
amendment to the registration statement and, with respect to the registration
statement or any post-effective amendment thereto, when the same has become
effective;
(2) any request by the Commission for amendments or supplements to the
registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the
effectiveness of the registration statement or the initiation of any proceedings by
any Person for that purpose;
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(4) when any Issuer Free Writing Prospectus includes information that may
conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the
suspension of the qualification of any Registrable Securities for sale under the
securities or blue sky laws of any jurisdiction or the initiation or threat of any
proceeding for such purpose;
(x) notify each Selling Holder, at any time when a prospectus relating thereto
is required to be delivered under the Securities Act, upon discovery that, or upon
the happening of any event as a result of which, the prospectus included in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and, at the request of any
Selling Holder, promptly prepare and furnish to such seller a reasonable number of
copies of a supplement to or an amendment of such 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;
(xi) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of such registration statement;
(xii) otherwise use commercially reasonable efforts to comply with all
applicable rules and regulations of the Commission, and make available to Selling
Holders, as promptly as practicable, an earnings statement covering the period of at
least 12 months, but not more than 18 months, beginning with the first day of the
Company’s first full quarter after the effective date of such registration
statement, which earnings statement shall satisfy the provisions of Section 11(a) of
the Securities Act and Rule 158 thereunder;
(xiii) cooperate with the sellers and the managing underwriter to facilitate
the timely preparation and delivery of certificates (which shall not bear any
restrictive legends unless required under applicable law), if necessary or
appropriate, representing securities sold under any registration statement, and
enable such securities to be in such denominations and registered in such names as
the managing underwriter or such sellers may request and keep available and make
available to the Company’s transfer agent prior to the effectiveness of such
registration statement a supply of such certificates as necessary or appropriate;
(xiv) have appropriate officers of the Company prepare and make presentations
at any “road shows” and before analysts and rating agencies, as the case may be, and
otherwise use its reasonable best efforts to cooperate as
15
reasonably requested by the Selling Holders and the underwriters in the
offering, marketing or selling of the Registrable Securities;
(xv) if requested by any Selling Holders or any underwriter, promptly
incorporate in the registration statement or any prospectus, pursuant to a
supplement or post-effective amendment if necessary, such information as such
Selling Holders may reasonably request to have included therein, including, without
limitation, information relating to the “Plan of Distribution” of the Registrable
Securities;
(xvi) cooperate and assist in any filings required to be made with the
Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of
any due diligence investigation by any underwriter that is required to be undertaken
in accordance with the rules and regulations of the FINRA; and
(xvii) otherwise use commercially reasonable efforts to comply with all
applicable rules and regulations of the Commission and all reporting requirements
under the rules and regulations of the Exchange Act. The Company may require each
Selling Holder and each underwriter, if any, to furnish the Company in writing such
information regarding each Selling Holder or underwriter and the distribution of
such Registrable Securities as the Company may from time to time reasonably request
to complete or amend the information required by such registration statement.
(b) Without limiting any of the foregoing, in the event that the offering of Registrable
Securities is to be made by or through an underwriter, the Company shall enter into an underwriting
agreement with a managing underwriter or underwriters containing representations, warranties,
indemnities and agreements customarily included (but not inconsistent with the covenants and
agreements of the Company contained herein) by an issuer of common stock in underwriting agreements
with respect to offerings of common stock for the account of, or on behalf of, such issuers. In
connection with any offering of Registrable Securities registered pursuant to this Agreement, the
Company shall furnish to the underwriter, if any (or, if no underwriter, the sellers of such
Registrable Securities), unlegended certificates representing ownership of the Registrable
Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to
be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such
form), in such denominations as requested and instruct any transfer agent and registrar of the
Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 3.6(a)(ix), such Selling Holder shall
forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant to the
applicable registration statement and prospectus relating thereto until such Selling Holder’s
receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix)
and, if so directed by the Company, deliver to the Company, at the Company’s expense, all copies,
other than permanent file copies, then in such Selling Holder’s possession of
16
the prospectus current at the time of receipt of such notice relating to such Registrable
Securities. In the event the Company shall give such notice, any applicable 60-day period during
which such registration statement must remain effective pursuant to this Agreement shall be
extended by the number of days during the period from the date of giving of a notice regarding the
happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling
Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been
filed with the Commission.
Section 3.7 Registration Expenses. All expenses incident to the Company’s performance of,
or compliance with, its obligations under this Agreement including, without limitation, all
registration and filing fees, all fees and expenses of compliance with securities and “blue sky”
laws, all fees and expenses associated with filings required to be made with FINRA (including, if
applicable, the fees and expenses of any “qualified independent underwriter” as such term is
defined in NASD Rule 2720 or the equivalent rule incorporated into the FINRA rulebook), all fees
and expenses of compliance with securities and “blue sky” laws, all printing (including, without
limitation, expenses of printing certificates, if any, for the Registrable Securities in a form
eligible for deposit with the Depository Trust Company and of printing prospectuses if the printing
of prospectuses and Issuer Free Writing Prospectuses is requested by a holder of Registrable
Securities) and copying expenses, all messenger and delivery expenses, all fees and expenses of the
Company’s independent certified public accountants and counsel (including, without limitation, with
respect to “comfort” letters and opinions) and fees and expenses of one firm of counsel to the
Stockholders selling in such registration (which firm shall be selected by the Stockholders selling
in such registration that hold a majority of the Registrable Securities included in such
registration) (collectively, the “Registration Expenses”) shall be borne by the Company, regardless
of whether a registration is effected. The Company will pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees performing legal or
accounting duties, the expense of any annual audit and the expense of any liability insurance) and
the expenses and fees for listing the securities to be registered on each securities exchange and
included in each established over-the-counter market on which similar securities issued by the
Company are then listed or traded. Each Selling Holder shall pay its portion of all underwriting
discounts and commissions and transfer taxes, if any, relating to the sale of such Selling Holder’s
Registrable Securities pursuant to any registration.
Section 3.8 Indemnification.
(a) The Company agrees to indemnify and hold harmless, to the fullest extent permitted by law,
each Selling Holder, its officers, directors, employees, managers, members, partners and agents and
each Person who controls (within the meaning of Section 15 of the Securities Act and Section 20 of
the Exchange Act) such Selling Holder or such other indemnified Person from and against all losses,
claims, damages, liabilities and expenses (including reasonable expenses of investigation and
reasonable attorneys’ fees and expenses) (collectively, the “Losses”) caused by, resulting from or
relating to any untrue statement (or alleged untrue statement) of a material fact contained in any
registration statement, any Issuer Free Writing Prospectus, any prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission (or alleged omission) of
a material fact required to be stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading, except insofar as the same are
caused by any information
17
furnished in writing to the Company by such Selling Holder expressly for use therein. In
connection with an Underwritten Offering and without limiting any of the Company’s other
obligations under this Agreement, the Company shall also indemnify such underwriters, their
officers, directors, employees and agents and each Person who controls (within the meaning of
Section 15 of the Securities Act and Section 20 of the Exchange Act) such underwriters or such
other indemnified Person to the same extent as provided above with respect to the indemnification
(and exceptions thereto) of the holders of Registrable Securities being sold. Reimbursements
payable pursuant to the indemnification contemplated by this Section 3.8(a) will be made by
periodic payments during the course of any investigation or defense, as and when bills are received
or expenses incurred.
(b) In connection with any registration statement in which a holder of Registrable Securities
is participating, each such Selling Holder will furnish to the Company in writing information
regarding such Selling Holder’s ownership of Registrable Securities and its intended method of
distribution thereof and, to the extent permitted by law, shall, severally and not jointly,
indemnify the Company, its directors, officers, employees and agents and each Person who controls
(within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act) the
Company or such other indemnified Person against all Losses caused by any untrue statement of
material fact contained in the registration statement, any Issuer Free Writing Prospectus, any
prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any omission
of a material fact required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, but only to the extent that
such untrue statement or omission is caused by and contained in such information so furnished in
writing by such Selling Holder expressly for use therein; provided, however, that each Selling
Holder’s obligation to indemnify the Company hereunder shall, to the extent more than one Selling
Holder is subject to the same indemnification obligation, be apportioned between each Selling
Holder based upon the net amount received by each Selling Holder from the sale of Registrable
Securities, as compared to the total net amount received by all of the Selling Holders of
Registrable Securities sold pursuant to such registration statement. Notwithstanding the foregoing,
no Selling Holder shall be liable to the Company for amounts in excess of the lesser of (i) such
apportionment and (ii) the net amount received by such holder in the offering giving rise to such
liability.
(c) Any Person entitled to indemnification hereunder shall give prompt written notice to the
indemnifying party of any claim with respect to which it seeks indemnification; provided, however,
the failure to give such notice shall not release the indemnifying party from its obligation,
except to the extent that the indemnifying party has been materially prejudiced by such failure to
provide such notice on a timely basis.
(d) In any case in which any such action is brought against any indemnified party, and it
notifies an indemnifying party of the commencement thereof, the indemnifying party will be entitled
to participate therein, and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, 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 (so long as it shall
continue to have the right to defend, contest, litigate and settle the matter in question in
accordance with this paragraph) be liable to such
18
indemnified party hereunder for any legal or other expense subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable costs of
investigation, supervision and monitoring (unless (i) such indemnified party reasonably objects to
such assumption on the grounds that there may be defenses available to it which are different from
or in addition to the defenses available to such indemnifying party or (ii) the indemnifying party
shall have failed within a reasonable period of time to assume such defense and the indemnified
party is or is reasonably likely to be prejudiced by such delay, in either event the indemnified
party shall be promptly reimbursed by the indemnifying party for the expenses incurred in
connection with retaining separate legal counsel). An indemnifying party shall not be liable for
any settlement of an action or claim effected without its consent. The indemnifying party shall
lose its right to defend, contest, litigate and settle a matter if it shall fail to diligently
contest such matter (except to the extent settled in accordance with the next following sentence).
No matter shall be settled by an indemnifying party without the consent of the indemnified party
(which consent shall not be unreasonably withheld, it being understood that the indemnified party
shall not be deemed to be unreasonable in withholding its consent if the proposed settlement
imposes any obligation on the indemnified party other than the payment of money or if the proposed
settlement does not include an unconditional release of such indemnified party for all claims
relating to such matter).
(e) The indemnification provided for under this Agreement shall remain in full force and
effect regardless of any investigation made by or on behalf of the indemnified Person and will
survive the transfer of the Registrable Securities and the termination of this Agreement.
(f) If recovery is not available under the foregoing indemnification provisions for any reason
or reasons other than as specified therein, any Person who would otherwise be entitled to
indemnification by the terms thereof shall nevertheless be entitled to contribution with respect to
any Losses with respect to which such Person would be entitled to such indemnification but for such
reason or reasons. In determining the amount of contribution to which the respective Persons are
entitled, there shall be considered the Persons’ relative knowledge and access to information
concerning the matter with respect to which the claim was asserted, the opportunity to correct and
prevent any statement or omission, and other equitable considerations appropriate under the
circumstances. It is hereby agreed that it would not necessarily be equitable if the amount of such
contribution were determined by pro rata or per capita allocation. 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 found guilty of such fraudulent misrepresentation.
Notwithstanding the foregoing, no Selling Holder or transferee thereof shall be required to make a
contribution in excess of the net amount received by such holder from its sale of Registrable
Securities in connection with the offering that gave rise to the contribution obligation.
(g) Not less than three days before the expected filing date of each registration statement
pursuant to this Agreement, the Company shall notify each Stockholder who has timely provided the
requisite notice hereunder entitling the Stockholder to register Registrable Securities in such
registration statement of the information, documents and instruments from such Stockholder that the
Company or any underwriter reasonably requests in connection with such registration statement,
including, but not limited to a questionnaire,
19
custody agreement, power of attorney, lock-up letter and underwriting agreement (the
“Requested Information”). If the Company has not received, on or before the day before the expected
filing date, the Requested Information from such Stockholder, the Company may file the Registration
Statement without including Registrable Securities of such Stockholder. The failure to so include
in any registration statement the Registrable Securities of a Stockholder (with regard to that
registration statement) shall not in and of itself result in any liability on the part of the
Company to such Stockholder.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Headings. The headings in this Agreement are for convenience of reference only
and shall not control or effect the meaning or construction of any provisions hereof.
Section 4.2 Entire Agreement.
(a) This Agreement constitutes the entire agreement and understanding of the parties hereto in
respect of the subject matter contained herein, and there are no restrictions, promises,
representations, warranties, covenants, conditions or undertakings with respect to the subject
matter hereof, other than those expressly set forth or referred to herein. This Agreement
supersedes all prior agreements and understandings between the parties hereto with respect to the
subject matter hereof.
Section 4.3 Further Actions and Cooperation. Each of the Stockholders agrees to use its
reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, and
to assist and cooperate with the other parties in doing, all things necessary, proper or advisable
to give effect to the transactions contemplated by this Agreement. Without limiting the generality
of the foregoing, each of the Stockholders (i) acknowledges that such Stockholder will prepare and
file with the Commission filings under the Exchange Act, including under Section 13(d) of the
Exchange Act, relating to its Beneficial Ownership of the Common Stock and (ii) agrees to use its
reasonable efforts to assist and cooperate with the other parties in promptly preparing, reviewing
and executing any such filings under the Exchange Act, including any amendments thereto.
Section 4.4 Notices. All notices, requests, consents and other communications hereunder to
any party shall be deemed to be sufficient if contained in a written instrument delivered in person
or sent by facsimile, nationally recognized overnight courier or first class registered or
certified mail, return receipt requested, postage prepaid, addressed to such party at the address
set forth below or such other address as may hereafter be designated on the signature pages of this
Agreement or in writing by such party to the other parties:
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If to the Initial Stockholders, to:
c/o Swift Transportation Company
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
with a copy (which shall not constitute notice) to:
▇▇▇▇▇▇▇ Law Firm, P.C., L.L.O.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
If to the Company, to:
Swift Transportation Company
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: General Counsel
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: General Counsel
If to a Stockholder that is not one of the Initial Stockholders, then to the address set forth
in the written agreement of such Stockholder provided for in Section 2.1 hereof.
All such notices, requests, consents and other communications shall be deemed to have been
given or made if and when received (including by overnight courier) by the parties at the above
addresses or sent by facsimile, with confirmation received, to the facsimile numbers specified
above (or at such other address or facsimile number for a party as shall be specified by like
notice). Any notice delivered by any party hereto to any other party hereto shall also be delivered
to each other party hereto simultaneously with delivery to the first party receiving such notice.
Section 4.5 Applicable Law. The substantive laws of the State of New York shall govern the
interpretation, validity and performance of the terms of this Agreement, without regard to
conflicts of law doctrines. THE PARTIES HERETO WAIVE THEIR RIGHT TO A JURY TRIAL WITH RESPECT TO
DISPUTES HEREUNDER.
Section 4.6 Severability. The invalidity, illegality or unenforceability of one or more of
the provisions of this Agreement in any jurisdiction shall not affect the validity, legality or
enforceability of the remainder of this Agreement, including any such provisions, in any other
jurisdiction, it being intended that all rights and obligations of the parties hereunder shall be
enforceable to the fullest extent permitted by law.
Section 4.7 Successors and Assigns. Except as otherwise provided herein, all the terms and
provisions of this Agreement shall be binding upon, shall inure to the benefit of
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and shall be enforceable by the respective successors and permitted assigns of the parties hereto.
No Stockholder may assign any of its rights hereunder to any Person other than a Permitted
Transferee. Each Permitted Transferee of any Stockholder shall be subject to all of the terms of
this Agreement, and by taking and holding such shares such Person shall be entitled to receive the
benefits of and be conclusively deemed to have agreed to be bound by and to comply with all of the
terms and provisions of this Agreement; provided, however, no transfer of rights permitted
hereunder shall be binding upon or obligate the Company unless and until (i) if required under
Section 2.1 hereof, the Company shall have received written notice of such transfer and the joinder
of the transferee provided for in Section 2.1 hereof, and (ii) such transferee can establish
Beneficial Ownership or ownership of record of a Registrable Amount (whether individually or
together with its Affiliates that are Stockholders or transferees of Stockholders and, if
applicable, its other Permitted Transferees that are Stockholders or transferees of Stockholders).
The Company may not assign any of its rights or obligations hereunder without the prior written
consent of each of the Stockholders. Notwithstanding the foregoing, no successor or assignee of
the Company shall have any rights granted under this Agreement until such Person shall acknowledge
its rights and obligations hereunder by a signed written statement of such Person’s acceptance of
such rights and obligations.
Section 4.8 Amendments. This Agreement may not be amended, modified or supplemented unless
such amendment, modification or supplement is in writing and signed by each of the Stockholders and
the Company.
Section 4.9 Waiver. The failure of a party hereto at any time or times to require
performance of any provision hereof shall in no manner affect its right at a later time to enforce
the same. No waiver by a party of any condition or of any breach of any term, covenant,
representation or warranty contained in this Agreement shall be effective unless in a writing
signed by the party against whom the waiver is to be effective, and no waiver in any one or more
instances shall be deemed to be a further or continuing waiver of any such condition or breach in
other instances or a waiver of any other condition or breach of any other term, covenant,
representation or warranty.
Section 4.10 Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which shall constitute one and the same
Agreement.
Section 4.11 Submission To Jurisdiction. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT AND ANY ACTION FOR ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF MAY BE BROUGHT IN
THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF
NEW YORK AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY HERETO HEREBY ACCEPTS FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS AND THE APPELLATE COURTS THEREOF. EACH PARTY HERETO
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH
ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE
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PREPAID, TO SUCH PARTY AT THE ADDRESS FOR NOTICES SET FORTH HEREIN. EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT BROUGHT
IN THE COURTS REFERRED TO ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR
CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
Section 4.12 Injunctive Relief. Each party hereto acknowledges and agrees that a violation
of any of the terms of this Agreement will cause the other parties irreparable injury for which an
adequate remedy at law is not available. Therefore, the Stockholders agree that each party shall be
entitled to, an injunction, restraining order, specific performance or other equitable relief from
any court of competent jurisdiction, restraining any party from committing any violations of the
provisions of this Agreement, without the need to post a bond or prove the inadequacy of monetary
damages.
Section 4.13 Recapitalizations, Exchanges, Etc. Affecting the Shares of Common Stock; New
Issuance. The provisions of this Agreement shall apply, to the full extent set forth herein,
with respect to Company Securities and to any and all equity or debt securities of the Company or
any successor or assign of the Company (whether by merger, consolidation, sale of assets, or
otherwise) which may be issued in respect of, in exchange for, or in substitution of, such Company
Securities and shall be appropriately adjusted for any stock dividends, splits, reverse splits,
combinations, reclassifications, recapitalizations, reorganizations and the like occurring after
the date hereof.
Section 4.14 Termination. Upon the mutual consent of all of the parties hereto or, with
respect to each Stockholder, at such earlier time as such Stockholder and its Affiliates and
Permitted Transferees ceases to Beneficially Own a Registrable Amount, the terms of this Agreement
shall terminate, and be of no further force and effect; provided, however, that the following
shall survive the termination of this Agreement: (i) the provisions of Sections, 3.7, 3.8, 4.5,
4.11, this Section 4.14 and Section 4.15; and (ii) the rights with respect to the breach of any
provision hereof by the Company.
Section 4.15 Rule 144. The Company covenants that it will file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by
the Commission thereunder (or, if it is not required to file such reports, it will, upon the
request of any holder of Registrable Securities, make publicly available other information so long
as necessary to permit sales in compliance with Rule 144 under the Securities Act), and it will
take such further reasonable action, to the extent required from time to time to enable such holder
to sell Registrable Securities without registration under the Securities Act within the limitation
of the exemptions provided by Rule 144 under the Securities Act, as such Rule 144 may be amended
from time to time, or any similar rule or regulation hereafter adopted by the Commission. Upon the
reasonable 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 information and filing requirements.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered by
their respective officers or authorized signatories thereunto duly as of the date first above
written.
| SWIFT TRANSPORTATION COMPANY | ||||
By: |
||||
| Name: ▇▇▇▇▇ ▇▇▇ | ||||
| Title: Executive Vice President, General Counsel and Corporate Secretary | ||||
| ▇▇▇▇▇ ▇▇▇▇▇ | ||||
| ▇▇▇▇▇▇ ▇▇▇▇▇ | ||||
| THE ▇▇▇▇▇ AND ▇▇▇▇▇▇ ▇▇▇▇▇ | ||||
| FAMILY TRUST DATED 12/11/87 | ||||
| By: ▇▇▇▇▇ ▇▇▇▇▇, as Co-Trustee | ||||
| THE ▇▇▇▇▇ AND ▇▇▇▇▇▇ ▇▇▇▇▇ | ||||
| FAMILY TRUST DATED 12/11/87 | ||||
| By: ▇▇▇▇▇▇ ▇▇▇▇▇, as Co-Trustee | ||||
| THE ▇▇▇▇ ▇▇▇▇▇ TRUST | ||||
| DATED 4/27/07 | ||||
| By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as Trustee | ||||
[Signature page to the Registration Rights Agreement]
| THE ▇▇▇▇▇▇ ▇▇▇▇▇ TRUST | ||
DATED 4/27/07 |
||
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as Trustee |
||
THE ▇▇▇▇▇ ▇▇▇▇▇ TRUST |
||
DATED 4/27/07 |
||
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as Trustee |
||
THE ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ TRUST |
||
DATED 4/27/07 |
||
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as Trustee |
||
THE ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ TRUST |
||
DATED 4/27/07 |
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By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as Trustee |
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THE ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ TRUST |
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DATED 4/27/07 |
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By: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, as Trustee |
||
[Signature page to the Registration Rights Agreement]
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