THIS VOTING
AGREEMENT (this “ Agreement ”) is dated as of
January 19, 2007, by and between Swift Transportation Co.,
Inc., a Nevada corporation (the “ Company ”),
and the Persons executing this Agreement as
“Stockholders” on the signature page hereto (each, a
“ Stockholder ” and collectively, the “
Stockholders ”).
WHEREAS,
simultaneously with the execution of this Agreement, Saint
Corporation, a Nevada corporation (“Parent”), Saint
Acquisition Corporation, a Nevada corporation and wholly-owned
subsidiary of Parent (“ MergerCo ”), and the
Company have entered into an Agreement and Plan of Merger, as it
may be amended, supplemented, modified or waived from time to time
(the “ Merger Agreement ”), which provides,
among other things, for the Merger of MergerCo with and into the
Company, upon the terms and subject to the conditions set forth
therein;
WHEREAS, each
Stockholder is the Beneficial Owner of, and has the right to vote
and dispose of (i) with respect to the Moyes Children’s
Limited Partnership, 9,018,353 Shares and (ii) with respect to
the other Stockholders, the number of Shares as reflected on
Schedule 13D/A filed on November 17, 2006; and
WHEREAS, as an
inducement to the Company entering into the Merger Agreement and
incurring the obligations therein, the Company has required that
each Stockholder enter into this Agreement.
NOW, THEREFORE,
the parties hereto, intending to be legally bound, agree as
follows:
Section 1.1
Capitalized Terms . Capitalized terms used in this Agreement
and not defined herein have the meanings ascribed to such terms in
the Merger Agreement.
Section 1.2
Other Definitions . For the purposes of this
Agreement:
(a)
“ Beneficial Owner ” or “ Beneficial
Ownership ” with respect to any securities means having
“beneficial ownership” of such securities (as
determined pursuant to Rule 13d-3 under the Exchange
Act).
(b)
“ Owned Shares ” has the meaning set forth in
Section 2.1.
(c)
“ Representative ” means, with respect to any
particular Person, any director, officer, employee, consultant,
accountant, legal counsel, investment banker or other
representative of such Person.
(d)
“ Shares ” has the meaning ascribed thereto in
the Merger Agreement, and will also include for purposes of this
Agreement all shares or other voting securities into which Shares
may be reclassified, sub-divided, consolidated or converted and any
rights and benefits
arising
therefrom, including any dividends or distributions of securities
which may be declared in respect of the Shares and entitled to vote
in respect of the matters contemplated by
Article II.
(e)
“ Transfer ” means, with respect to a security,
the sale, grant, assignment, transfer, pledge, encumbrance or other
disposition of such security or the Beneficial Ownership thereof
(including by operation of Law), or the entry into any Contract to
effect any of the foregoing, including, for purposes of this
Agreement, the transfer or sharing of any voting power of such
security or other rights in or of such security.
(f)
“ Permitted Encumbrance ” means bona fide
pledges of Shares as collateral in connection with third-party,
commercially reasonable indebtedness, which pledges shall be
released in connection with the repayment of such indebtedness;
provided, however, that any such pledges entered into after the
date hereof shall include the retention of all voting rights by
Stockholder so long as no default in the underlying indebtedness
shall have been declared.
Section 2.1
Agreement to Vote.
Subject to the
terms and conditions hereof, each Stockholder severally and not
jointly, irrevocably and unconditionally agrees that from and after
the date hereof and until the earliest to occur of (i) the
Effective Time and (ii) the termination of the Merger
Agreement in accordance with its terms (such earlier occurrence
being the “Expiration Time”), at any meeting (whether
annual or special, and at each adjourned or postponed meeting) of
the Company’s stockholders, however called, or in connection
with any written consent of the Company’s stockholders (a
“ Stockholder Meeting ”), each Stockholder will
(x) appear at such meeting or otherwise cause its Owned Shares
(as defined below) to be counted as present thereat for purposes of
calculating a quorum, and respond to each request by the Company
for written consent, if any and (y) vote, or instruct to be
voted (including by written consent, if applicable), all of such
Shares Beneficially Owned by such Stockholder as of the relevant
time (“ Owned Shares ”) (A) in favor of the
adoption of the Merger Agreement and the approval of the
transactions contemplated thereby, including the Merger,
(B) in favor of the approval of any other matter that is
required by applicable Law or a Governmental Entity to be approved
by the stockholders of the Company to consummate the transactions
contemplated by the Merger Agreement, including the Merger,
(C) against any Takeover Proposal, (D) against any
proposal made in opposition to, or in competition or inconsistent
with, the Merger or the Merger Agreement, including the adoption
thereof or the consummation thereof, (E) against any action or
agreement that may reasonably be expected to result in any
condition to the consummation of the Merger set forth in
Article VI of the Merger Agreement not being fulfilled, and
(F) against any other action that may reasonably be expected
to impede, interfere with, delay, postpone or attempt to discourage
the consummation of the transactions contemplated by the Merger
Agreement, including the Merger, or result in a breach of any of
the covenants, representations, warranties or other obligations or
agreements of the Company, Parent or MergerCo under the Merger
Agreement, which would materially and adversely affect the Company,
Parent or MergerCo or their respective abilities to consummate the
transactions contemplated by the Merger Agreement within the time
periods contemplated thereby.
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Section 2.2
Additional Shares . Each Stockholder severally and not
jointly hereby agrees, while this Agreement is in effect, to
promptly notify the Company of the number of any new Shares with
respect to which Beneficial Ownership is acquired by such
Stockholder, if any, after the date hereof and before this
Agreement is terminated pursuant to Section 5.1. Any such
Shares shall automatically become subject to the terms of this
Agreement as though owned by such Stockholder as of the date
hereof.
Section 2.3
Restrictions on Transfer, Etc. Except as provided for
herein, as contemplated by the Merger Agreement and the Equity
Rollover Commitments with respect to the rollover of Shares of
certain Stockholders and except for Permitted Encumbrances, each
Stockholder severally and not jointly agrees, from the date hereof
until this Agreement is terminated pursuant to Section 5.1,
not to (i) directly or indirectly Transfer any Owned Shares or
(ii) grant any proxy with respect to such Stockholder’s
Owned Shares, deposit such Stockholder’s Owned Shares into a
voting trust, enter into a voting agreement with respect to any of
such Stockholder’s Owned Shares or otherwise restrict the
ability of such Stockholder freely to exercise all voting rights
with respect thereto. Any action attempted to be taken in violation
of the preceding sentence will be null and void. Notwithstanding
the foregoing, each Stockholder may (i) make Transfers of
Owned Shares for estate planning or similar purposes so long as
such Stockholder retains control over the voting and disposition of
such Owned Shares for bona fide estate planning to his, her, or its
Affiliates or immediate family members, (ii) make Transfers to
other Stockholders, or (iii) in the case of the Moyes
Children’s Limited Partnership, Transfers of Owned Shares to
its partners or a newly-formed qualified subchapter S trust owned
by such partners; provided that as a condition to such Transfer
contemplated in clauses (i), (ii) and (iii), such Affiliate,
immediate family member, Stockholder, partner or qualified
subchapter S trust shall execute an agreement that is identical to
this Agreement (except to reflect the change of the Transferee) and
to the extent such transferring Stockholder is a party to the
Guarantee an agreement that is identical to the Guarantee (except
to reflect the change of the Transferee) and provided, further that
the transferring Stockholder shall remain jointly and severally
liable for the breaches of any of his, her or its Affiliates or
immediate family members of the terms hereof. Each Stockholder
further agrees to authorize and request the Company to notify the
Company’s transfer agent that this Agreement places limits on
the voting and transfer of the Owned Shares.
Section 2.4
Proxies . Each Stockholder will, if requested by the
Company, (i) with respect to Owned Shares for which it is the
record owner, grant a proxy appointing Robert W. Cunningham and
Glynis Bryan collectively, but each with full power of
substitution, as such Stockholder’s attorney-in-fact and
proxy, for and in such Stockholder’s name, to be counted as
present and to vote in favor of the adoption of the Merger
Agreement and the approval of the transactions contemplated
thereby, including the Merger, and (ii) with respect to Owned
Shares for which it is not the record owner, seek a “legal
proxy” from the record owner to vote in favor of the adoption
of the Merger Agreement and the approval of the transactions
contemplated thereby, including the Merger. The proxy granted by
each Stockholder shall be automatically revoked upon termination of
this Agreement in accordance with its terms.
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III. REPRESENTATIONS AND
WARRANTIES
Section 3.1
Representations and Warranties of Stockholders . Each
Stockholder, severally and not jointly, represents and warrants to
the Company as of the date of this Agreement, as of the date of any
Company Stockholders Meeting (and as of the date of any adjournment
or postponement thereof) and as of the date of the execution of any
written Stockholder consent or any proxy permitted under this
Agreement or consented to by the Company, as follows:
(a) Such
Stockholder has the requisite capacity and authority to execute and
deliver this Agreement and to fulfill and perform such
Stockholder’s obligations hereunder. This Agreement has been
duly and validly executed and delivered by such Stockholder and
constitutes a legal, valid and binding agreement of such
Stockholder enforceable against such Stockholder in accordance with
its terms.
(b) Such
Stockholder is the Beneficial Owner (unless such shareholder is a
trust in which case the beneficiaries of each such trust are the
Beneficial Owners), free and clear of any Liens (other than those
arising under this Agreement, the Equity Rollover Commitments and
Permitted Encumbrances) of the Owned Shares, which, as of the date
hereof, are set forth below such Stockholder’s name on the
signature page hereto and, except for Permitted Encumbrances and
except as provided in this Agreement and the Equity Rollover
Commitments has full and unrestricted power to dispose of and vote
all of such Stockholder’s Owned Shares without the consent or
approval of, or any other action on the part of, any other Person,
and has not granted any proxy inconsistent with this Agreement that
is still effective or entered into any voting or similar agreement
with respect to, such Stockholder’s Owned Shares. The Owned
Shares set forth below such Stockholder’s name on the
signature page hereto constitute all of the capital stock of the
Company that is Beneficially Owned by such Stockholder as of the
date hereof, and, except for such Stockholder’s Owned Shares
and the Owned Shares owned by the other Stockholders who are
parties to this Agreement and with respect to Jerry Moyes,
approximately 7,000 shares held in his personal individual
retirement account, such Stockholder and such Stockholder’s
Affiliates do not Beneficially Own or have any right to acquire
(whether currently, upon lapse of time, following the satisfaction
of any conditions, upon the occurrence of any event or any
combination of the foregoing), any Shares or any securities
convertible into Shares (including Stock Options).
(c) Other
than the filing by such Stockholder of any reports with the SEC
required by Sections 13(d) or 16(a) of the Exchange Act, none of
the execution and delivery of this Agreement by such Stockholder,
the consummation by such Stockholder of the transactions
contemplated hereby or compliance by such Stockholder with any
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