<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 16, 1996
REGISTRATION STATEMENT NO. 333-16865
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
PRE-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
------------------------
SWIFT TRANSPORTATION CO., INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
NEVADA 86-0666860
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
</TABLE>
1455 HULDA WAY
SPARKS, NEVADA 89431
(702) 359-9031
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF PRINCIPAL EXECUTIVE OFFICES)
------------------------
JERRY C. MOYES, PRESIDENT
SWIFT TRANSPORTATION CO., INC.
2200 SOUTH 75TH AVENUE
PHOENIX, ARIZONA 85043
(602) 269-9700
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE
NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
COPIES TO:
<TABLE>
<S> <C>
STEVEN D. PIDGEON, ESQ. RICHARD C. TILGHMAN, JR., ESQ.
SAMUEL C. COWLEY, ESQ. STEPHEN A. RIDDICK, ESQ.
CHRISTOPHER J. LITTLEFIELD, ESQ. PIPER & MARBURY L.L.P.
SNELL & WILMER L.L.P. CHARLES CENTER SOUTH
ONE ARIZONA CENTER 36 SOUTH CHARLES STREET
PHOENIX, ARIZONA 85004-0001 BALTIMORE, MARYLAND 21201-3010
(602) 382-6000 (410) 539-2530
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as possible after this Registration becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM
AMOUNT OF AGGREGATE
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1) PRICE PER UNIT(2) PRICE(2) FEE
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<S> <C> <C> <C> <C>
Common Stock, $.001 par value per share........ 4,025,000 $23.50 $94,587,500 $28,663
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</TABLE>
(1) Includes 525,000 shares to cover over-allotments, if any.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (g), based upon the last reported sales price of
the Common Stock on November 21, 1996.
----------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE> 2
EXPLANATORY NOTE
Swift Transportation Co., Inc. has prepared this Pre-Effective
Amendment No. 1 for the sole purpose of filing with the Securities and Exchange
Commission Exhibit No. 1 to the Registration Statement. Pre-Effective Amendment
No. 1 does not modify any provision of the Prospectus included in the
Registration Statement; accordingly, the related Prospectus has not been
included herein.
<PAGE> 3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses to be borne by the Registrant
in connection with the offering being registered hereby:
<TABLE>
<S> <C>
SEC filing fee........................................................... $ 28,663
NASD filing fee.......................................................... 9,959
Nasdaq National Market fee............................................... 17,500
Blue Sky fees and expenses, including legal fees*........................ 5,000
Printing and engraving *................................................. 25,000
Legal fees and expenses *................................................ 75,000
Accounting fees and expenses*............................................ 65,000
Miscellaneous*........................................................... 8,878
-------
Total.................................................................. $235,000
=======
</TABLE>
- ---------------
* Estimated
The Company will pay all expenses of this offering, including those
incurred by the Selling Stockholder.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Nevada General Corporation Law requires the Company to indemnify
officers and directors for any expenses incurred by any officer or director in
connection with any actions or proceedings, whether civil, criminal,
administrative, or investigative, brought against such officer or director
because of his or her status as an officer or director, to the extent that the
director or officer has been successful on the merits or otherwise in defense of
the action or proceeding. The Nevada General Corporation Law permits a
corporation to indemnify an officer or director, even in the absence of an
agreement to do so, for expenses incurred in connection with any action or
proceeding if such officer of director acted in good faith and in a manner in
which he or she reasonably believed to be in or not opposed to the best
interests of the corporation and such indemnification is authorized by the
stockholders, by a quorum of disinterested directors, by independent legal
counsel in a written opinion authorized by a majority vote of a quorum of
directors consisting of disinterested directors or by independent legal counsel
in a written opinion if a quorum of disinterested directors cannot be obtained.
The Nevada General Corporation Law prohibits indemnification of a director or
officer if a final adjudication establishes that the officer's or director's
acts or omissions involved intentional misconduct, fraud or a knowing violation
of the law and were material to the cause of action. Despite the foregoing
limitations on indemnification, the Nevada General Corporation Law may permit an
officer or director to apply to the court for approval of indemnification even
if the officer or director is adjudged to have committed intentional misconduct,
fraud or a knowing violation of the law. The Nevada General Corporation Law also
provides that indemnification of directors is not permitted for the unlawful
payment of distributions, except for those directors registering their dissent
to the payment of the distribution.
The Company's Articles of Incorporation eliminate personal liability of
directors or officers for any expenses, claims, damages or liability incurred by
reason of their position in the Company to the fullest extent allowed under the
Nevada General Corporation Law.
The Company's Bylaws provide that the Company shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding by reason of the fact that he or
she was or is a director, officer, employee or agent of the Company. In
addition, the Company's Bylaws provide that the Company shall indemnify any
person who was or is a
II-1
<PAGE> 4
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Company by reason of the fact
that he or she was or is a director, officer, employee or agent of the Company
against expenses, actually and reasonably incurred if he or she acted in good
faith, unless adjudged liable to the Company. Further, the Company's Bylaws
provide that to the extent that a director, officer, employee or agent of the
Company has been successful on the merits or otherwise, in defense of any
action, suit or proceeding referred to above or in defense of any claim, matter
or issue therein, he or she shall be indemnified against expenses actually and
reasonably incurred by him or her in connection therewith.
The Company and its officers, directors and other persons are entitled to
be indemnified under certain circumstances for certain securities laws
violations as provided in the Underwriting Agreement (Exhibit 1 hereto).
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
<TABLE>
<CAPTION>
EXHIBIT PAGE OR
NUMBER DESCRIPTION METHOD OF FILING
- ------ ------------------------------------------ -------------------------------------
<C> <S> <C>
1 Form of Underwriting Agreement............ Filed herewith
3.1 Articles of Incorporation of the
Company................................... Incorporated by reference to Exhibit
3.1 of the Company's Form S-3
Registration Statement No. 33-66034
("S-3 #33-66034")
3.2 Bylaws of the Company..................... Incorporated by reference to Exhibit
3.2 of S-3 #33-66034
4 Specimen of Common Stock Certificate...... Incorporated by reference to Exhibit
4 of the Company's Annual Report on
Form 10-K for the fiscal year ended
December 31, 1992
5 Opinion of Snell & Wilmer L.L.P.*.........
23 Consent of KPMG Peat Marwick LLP*.........
24 Powers of Attorney*.......................
</TABLE>
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* Previously filed.
ITEM 17. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of a registration statement in reliance upon Rule 430A and contained in the
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act of 1933 shall be deemed to be part
of this registration statement as of the time it was declared effective.
II-2
<PAGE> 5
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
II-3
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Swift
Transportation Co., Inc. certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused
this Pre-Effective Amendment No. 1 to the Registration Statement on Form S-3 to
be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Phoenix, State of Arizona, this 16th day of December, 1996.
SWIFT TRANSPORTATION CO., INC.
By /s/ JERRY C. MOYES
------------------------------------
Jerry C. Moyes
Chairman of the Board, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ---------------------------------------- -------------------------------- ------------------
<S> <C> <C>
/s/ JERRY C. MOYES Chairman of the Board, President December 16, 1996
- ---------------------------------------- and Chief Executive Officer
Jerry C. Moyes (Principal Executive Officer)
* Executive Vice President December 16, 1996
- ---------------------------------------- and Director
Robert W. Cunningham
/s/ WILLIAM F. RILEY, III Executive Vice President December 16, 1996
- ---------------------------------------- Secretary, Chief Financial
William F. Riley, III Officer (Principal Accounting
and Financial Officer), Director
* Executive Vice President December 16, 1996
- ---------------------------------------- and Director
Rodney K. Sartor
* Director December 16, 1996
- ----------------------------------------
Alphonse E. Frei
* Director December 16, 1996
- ----------------------------------------
Lou A. Edwards
* Director December 16, 1996
- ----------------------------------------
Earl H. Scudder, Jr.
*By /s/ WILLIAM F. RILEY, III
------------------------------------
William F. Riley, III
Attorney-in-fact
</TABLE>
II-4
<PAGE> 1
EXHIBIT 1
SWIFT TRANSPORTATION CO., INC.
3,500,000 SHARES*
COMMON STOCK
($.001 PAR VALUE)
UNDERWRITING AGREEMENT
New York, New York
December ,1996
SALOMON BROTHERS INC
ALEX. BROWN & SONS INCORPORATED
MORGAN STANLEY & CO. INCORPORATED
SCHRODER WORTHEIM & CO. INCORPORATED
MORGAN KEEGAN & COMPANY, INC.
c/o Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Dear Sirs:
Swift Transportation Co., Inc., a Nevada corporation (the "Company"),
proposes to sell to the underwriters named in Schedule I hereto (the
"Underwriters") 2,500,000 shares of Common Stock, $.001 par value, of the
Company ("Common Stock") and the person named in Schedule II hereto (the
"Selling Stockholder") proposes to sell to the Underwriters 1,000,000 shares of
Common Stock (collectively, the "Underwritten Securities"). The Company and the
Selling Stockholder also propose to grant to the Underwriters an option to
purchase up to 525,000 additional shares of Common Stock (the "Option
Securities"; the Option Securities, together with the Underwritten Securities,
being hereinafter called the "Securities").
1. Representations and Warranties.
(a) The Company represents and warrants to, and agrees with,
each Underwriter as set forth below in this Section 1. Certain terms used in
this Section 1 are defined in paragraph (iii) hereof.
(i) The Company meets the requirements for use of Form
S-3 under the Securities Act of 1933 (the "Act") and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement (file number 333-16865) on such Form, including a related
preliminary prospectus, for the registration under the Act of the
offering and sale of the Securities. The Company may have filed one or
more amendments thereto, including the related preliminary prospectus,
each of which has previously been furnished to you. The Company will
next file with the Commission one of the following: (A) prior to
effectiveness of such registration statement, a further amendment to
such registration statement, including the form of final prospectus,
(B) a final prospectus in accordance with Rules 430A and 424(b)(1) or
(4), or (C) a final prospectus in accordance with Rules 415 and
424(b)(2) or (5). In the case of
____________
*Plus an option to purchase from the Company and the Selling Stockholder up to
525,000 additional shares to cover over-allotments.
<PAGE> 2
2
clause (B), the Company has included in such registration statement, as
amended at the Effective Date, all information (other than Rule 430A
Information) required by the Act and the rules thereunder to be
included in the Prospectus with respect to the Securities and the
offering thereof. As filed, such amendment and form of final
prospectus, or such final prospectus, shall contain all Rule 430A
Information, together with all other such required information, with
respect to the Securities and the offering thereof and, except to the
extent the Underwriters shall agree in writing to a modification, shall
be in all substantive respects in the form furnished to you prior to
the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and other
changes (beyond that contained in the latest Preliminary Prospectus) as
the Company has advised you, prior to the Execution Time, will be
included or made therein. If the Registration Statement contains the
undertaking specified by Regulation S-K Item 512(a), the Registration
Statement, at the Execution Time, meets the requirements set forth in
Rule 415(a)(1)(x).
(ii) On the Effective Date, the Registration Statement
did or will, and when the Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the Prospectus
(and any supplements thereto) will, comply in all material respects
with the applicable requirements of the Act and the Securities Exchange
Act of 1934 (the "Exchange Act") and the respective rules thereunder;
on the Effective Date, the Registration Statement did not or will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein not misleading; and, on the Effective Date,
the Prospectus, if not filed pursuant to Rule 424(b), did not or will
not, and on the date of any filing pursuant to Rule 424(b) and on the
Closing Date, the Prospectus (together with any supplement thereto)
will not, include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the Company makes no
representations or warranties as to the information contained in or
omitted from the Registration Statement or the Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter
specifically for inclusion in the Registration Statement or the
Prospectus (or any supplement thereto).
(iii) The terms which follow, when used in this
Agreement, shall have the meanings indicated. The term "the Effective
Date" shall mean each date that the Registration Statement and any
post-effective amendment or amendments thereto became or become
effective and each date after the date hereof on which a document
incorporated by reference in the Registration Statement is filed.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto. "Preliminary Prospectus"
shall mean any preliminary prospectus referred to in paragraph (i)
above and any preliminary prospectus included in the Registration
Statement at the Effective Date that omits Rule 430A Information.
"Prospectus" shall mean the prospectus relating to the Securities that
is first filed pursuant to Rule 424(b) after the Execution Time or, if
no filing pursuant to Rule 424(b) is required, shall mean the form of
final prospectus relating to the Securities included in the
Registration Statement at the Effective Date. "Registration Statement"
shall mean the registration statement referred to in paragraph (i)
above, including incorporated documents, exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto becomes
effective prior to the Closing Date (as hereinafter defined), shall
also mean such registration statement as so amended. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A. "Rule 415", "Rule 424", "Rule
430A" and "Regulation S-K" refer to such rules or regulation under the
Act. "Rule 430A Information" means information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
Any reference herein to the Registration Statement, a Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Exchange Act on or before the
Effective Date of the Registration Statement or the issue date of such
Preliminary Prospectus or the Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, any Preliminary
<PAGE> 3
3
Prospectus or the Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the Effective
Date of the Registration Statement, or the issue date of any
Preliminary Prospectus or the Prospectus, as the case may be, deemed to
be incorporated therein by reference.
(b) The Selling Stockholder represents and warrants to, and
agrees with, each Underwriter that:
(i) The Selling Stockholder is the lawful owner of the
Securities to be sold by the Selling Stockholder hereunder and upon
sale and delivery of, and payment for, such Securities, as provided
herein, the Selling Stockholder will convey good and marketable title
to such Securities, free and clear of all liens, encumbrances, equities
and claims whatsoever.
(ii) The Selling Stockholder has no reason to believe
that the representations and warranties of the Company contained in
this Section 1 are not true and correct, is familiar with the
Registration Statement and has no knowledge of any material fact,
condition or information not disclosed in the Prospectus or any
supplement thereto which has adversely affected or may adversely affect
the business of the Company or any of its subsidiaries; and the sale of
Securities by the Selling Stockholder pursuant hereto is not prompted
by any information concerning the Company or any of its subsidiaries
which is not set forth in the Prospectus or any supplement thereto.
(iii) The Selling Stockholder has not taken and will not
take, directly or indirectly, any action designed to or which has
constituted or which might reasonably be expected to cause or result,
under the Exchange Act or otherwise, in stabilization or manipulation
of the price of any security of the Company to facilitate the sale or
resale of the Securities and has not effected any sales of shares of
Common Stock which, if effected by the issuer, would be required to be
disclosed in response to Item 701 of Regulation S-K.
(iv) Certificates in negotiable form for the Selling
Stockholder's Securities have been placed in custody, for delivery
pursuant to the terms of this Agreement, under a Custody Agreement duly
executed and delivered by such Selling Stockholder, in the form
heretofore furnished to you (the "Custody Agreement"), with
_______________________, as Custodian (the "Custodian"); the Securities
represented by the certificates so held in custody for the Selling
Stockholder are subject to the interests hereunder of the Underwriters,
and the Company; the arrangements for custody and delivery of such
certificates, made by the Selling Stockholder hereunder and under the
Custody Agreement, are not subject to termination by any acts of the
Selling Stockholder, or by operation of law, whether by the death or
incapacity of the Selling Stockholder or the occurrence of any other
event; and if any such death, incapacity or any other such event shall
occur before the delivery of such Securities hereunder, certificates
for the Securities will be delivered by the Custodian in accordance
with the terms and conditions of this Agreement and the Custody
Agreement as if such death, incapacity or other event had not occurred,
regardless of whether or not the Custodian shall have received notice
of such death, incapacity or other event.
(v) No consent, approval, authorization or order of
any court or governmental agency or body is required for the
consummation by such Selling Stockholder of the transactions
contemplated herein, except such as may have been obtained under the
Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters and such other approvals as have been
obtained.
(vi) Neither the sale of the Securities being sold by
such Selling Stockholder nor the consummation of any other of the
transactions herein contemplated by such Selling Stockholder or the
fulfillment of the terms hereof by such Selling Stockholder will
conflict with, result in a breach or violation of, or constitute a
default under any law or the terms of any indenture or other agreement
or instrument to which such
<PAGE> 4
4
Selling Stockholder is a party or bound, or any judgment, order or
decree applicable to such Selling Stockholder of any court, regulatory
body, administrative agency, governmental body or arbitrator having
jurisdiction over such Selling Stockholder.
In respect of any statements in or omissions from the Registration
Statement or the Prospectus or any supplement thereto made in reliance upon and
in conformity with information furnished in writing to the Company by the
Selling Stockholder specifically for use in connection with the preparation
thereof, the Selling Stockholder hereby makes the same representations and
warranties to each Underwriter as the Company makes to such Underwriter under
paragraph (a)(ii) of this Section .
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company and the Selling
Stockholder (collectively, the "Sellers" and individually a "Seller") agree,
severally and not jointly, to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Sellers, at a purchase
price of $ per share, the amount of the Securities set forth opposite such
Underwriter's name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company and the Selling
Stockholder hereby grant an option to the several Underwriters to purchase,
severally and not jointly, up to 525,000 shares of Option Securities at the same
purchase price per share as the Underwriters shall pay for the Underwritten
Securities. Said option may be exercised only to cover over-allotments in the
sale of the Underwritten Securities by the Underwriters. Said option may be
exercised in whole or in part at any time (but not more than once) on or before
the 30th day after the date of the Prospectus upon written or telegraphic notice
by the Underwriters to the Company and the Selling Stockholder setting forth the
number of shares of the Option Securities as to which the several Underwriters
are exercising the option and the settlement date. Delivery of certificates for
the shares of Option Securities, and payment therefor, shall be made as provided
in Section 3 hereof. The number of shares of the Option Securities to be
purchased by each Underwriter shall be the same percentage of the total number
of shares of the Option Securities to be purchased by the several Underwriters
as such Underwriter is purchasing of the Underwritten Securities, subject to
such adjustments as you in your absolute discretion shall make to eliminate any
fractional shares.
3. Delivery and Payment. Delivery of and payment for the
Underwritten Securities and the Option Securities (if the option provided for in
Section 2(b) hereof shall have been exercised on or before the third business
day prior to the Closing Date) shall be made at 10:00 AM, New York City time, on
December , 1996, or such later date (not later than December , 1996) as the
Underwriters shall designate, which date and time may be postponed by agreement
between the Underwriters, the Company and the Selling Stockholder or as provided
in Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
shall be made to the Underwriters for the respective accounts of the several
Underwriters against payment by the several Underwriters of the purchase price
thereof to or upon the order of (i) the Company for Securities to be sold by it
and (ii) the Selling Stockholder for Securities to be sold by it by [certified
or official bank check or checks drawn on or by a New York Clearing House bank
and payable in next day funds]. Delivery of the Underwritten Securities and the
Option Securities shall be made at such location as the Underwriters shall
reasonably designate at least one business day in advance of the Closing Date
and payment for such Securities shall be made at the office of Piper & Marbury
L.L.P., Baltimore, Maryland. Certificates for the Securities shall be registered
in such names and in such denominations as the Underwriters may request not less
than three full business days in advance of the Closing Date.
The Company and the Selling Stockholder agree to have the
Securities available for inspection, checking and packaging by the and the
Selling Stockholder in New York, New York, not later than 1:00 PM on the
business day prior to the Closing Date.
If the option provided for in Section 2(b) hereof is exercised
after the third business day prior to the Closing Date, the Company and the
Selling Stockholder will deliver (at the expense of the Company) to the
<PAGE> 5
5
Underwriters, at One New York Plaza, New York, New York, on the date specified
by the Underwriters (which shall be within three business days after exercise of
said option), certificates for the Option Securities in such names and
denominations as the Underwriters shall have requested against payment of the
purchase price thereof to or upon the order of (i) the Company for Option
Securities to be sold or by it and (ii) the Selling Stockholder for Option
Securities to be sold by it by [certified or official bank check or checks drawn
on or by a New York Clearing House bank and payable in next day funds]. If
settlement for the Option Securities occurs after the Closing Date, the Company
and the Selling Stockholder will deliver to the Underwriter on the settlement
date for the Option Securities, and the obligation of the Underwriters to
purchase the Option Securities shall be conditioned upon receipt of,
supplemental opinions, certificates and letters confirming as of such date the
opinions, certificates and letters delivered on the Closing Date pursuant to
Section 6 hereof.
The Selling Stockholder will pay all applicable state transfer taxes,
if any, involved in the transfer to the several Underwriters of the Securities
to be purchased by them from the Selling Stockholder and the respective
Underwriters will pay any additional stock transfer taxes involved in further
transfers.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
5. Agreements.
(a) The Company agrees with the several Underwriters that:
(i) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of
the Registration Statement or supplement to the Prospectus unless the
Company has furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement to which you
reasonably object. Subject to the foregoing sentence, if the
Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the Prospectus is otherwise required under Rule
424(b), the Company will cause the Prospectus, properly completed, and
any supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed
and will provide evidence satisfactory to the Underwriters of such
timely filing. The Company will promptly advise the Underwriters (A)
when the Registration Statement, if not effective at the Execution
Time, and any amendment thereto, shall have become effective, (B) when
the Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b), (C) when, prior
to termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (D)
of any request by the Commission for any amendment of the Registration
Statement or supplement to the Prospectus or for any additional
information, (E) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (F)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(ii) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Prospectus as then supplemented would include
any 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, or if it shall
be necessary to amend the Registration Statement or supplement the
Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, the Company promptly will (i) prepare and file with
the Commission, subject to the second sentence of subparagraph (a)(i)
of this Section 5, an amendment or supplement which will correct such
statement or omission or an amendment which will effect such
<PAGE> 6
6
compliance and (ii) supply any supplemented Prospectus to you in such
quantities as you may reasonably request.
(iii) As soon as practicable, the Company will make
generally available to its security holders and to the Underwriters an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(iv) The Company will furnish to the Underwriter and
counsel for the Underwriters, without charge, signed copies of the
Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by
the Act, as many copies of each Preliminary Prospectus and the
Prospectus and any supplement thereto as the Underwriters may
reasonably request. The Company will pay the expenses of printing or
other production of all documents relating to the offering.
(v) The Company will arrange for the qualification of
the Securities for sale under the laws of such jurisdictions as the
Underwriters may designate, will maintain such qualifications in effect
so long as required for the distribution of the Securities and will pay
the fee of the National Association of Securities Dealers, Inc., in
connection with its review of the offering.
(vi) The Company will not, for a period of 120 days
following the Execution Time, without the prior written consent of
Salomon Brothers Inc, offer, sell or contract to sell, or otherwise
dispose of, directly or indirectly, or announce the offering of, any
other shares of Common Stock or any securities convertible into, or
exchangeable for, shares of Common Stock; provided, however, that the
Company may issue and sell Common Stock pursuant to any employee stock
option plan, stock ownership plan or dividend reinvestment plan of the
Company in effect at the Execution Time and the Company may issue
Common Stock in connection with acquisitions.
(vii) The Company confirms as of the date hereof that it
is in compliance with all provisions of Section 1 of Laws of Florida,
Chapter 92-198, An Act Relating to Disclosure of Doing Business with
Cuba, and the Company further agrees that if it commences engaging in
business with the government of Cuba or with any person or affiliate
located in Cuba after the date the Registration Statement becomes or
has become effective with the Securities and Exchange Commission or
with the Florida Department of Banking and Finance (the "Department"),
whichever date is later, or if the information reported in the
Prospectus, if any, concerning the Company's business with Cuba or with
any person or affiliate located in Cuba changes in any material way,
the Company will provide the Department notice of such business or
change, as appropriate, in a form acceptable to the Department.
(b) The Selling Stockholder agrees with the several
Underwriters that he will not during the period of 120 days following the
Execution Time, without the prior written consent of Salomon Brothers Inc,
offer, sell or contract to sell, or otherwise dispose of, directly or
indirectly, or announce the offering of, any other shares of Common Stock
beneficially owned by such person, or any securities convertible into, or
exchangeable for, shares of Common Stock, other than shares of Common Stock
disposed of as bona fide gifts.
6. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Securities shall be subject to the accuracy
of the representations and warranties on the part of the Company and the Selling
Stockholder contained herein as of the Execution Time and the Closing Date, to
the accuracy of the statements of the Company and the Selling Stockholder made
in any certificates pursuant to the provisions hereof, to the performance by the
Company and the Selling Stockholder of their respective obligations hereunder
and to the following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Underwriters agree in writing to a later
time, the Registration Statement will become effective not later than (i) 6:00
PM New York City time, on the date of determination of the public offering
<PAGE> 7
7
price, if such determination occurred at or prior to 3:00 PM New York City time
on such date or (ii) 12:00 Noon on the business day following the day on which
the public offering price was determined, if such determination occurred after
3:00 PM New York City time on such date; if filing of the Prospectus, or any
supplement thereto, is required pursuant to the applicable paragraph of Rule
424(b), the Prospectus, and any such supplement, will be filed in the manner and
within the time period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Underwriters the
opinion of Snell & Wilmer L.L.P., counsel for the Company and the Selling
Stockholder, dated the Closing Date, to the effect that:
(i) each of the Company, Swift Transportation Co.,
Inc., an Arizona corporation, and the other subsidiaries of the Company
(individually a "Subsidiary" and collectively the "Subsidiaries") has
been duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction in which it is chartered or
organized, with full corporate power and authority to own its
properties and conduct its business as described in the Prospectus, and
is duly qualified to do business as a foreign corporation and is in
good standing under the laws of each jurisdiction which requires such
qualification wherein it owns or leases material properties or conducts
material business, except where failure to qualify would not have a
material adverse effect on the business of the Company and the
Subsidiaries as a whole;
(ii) all the outstanding shares of capital stock of
each Subsidiary have been duly and validly authorized and issued and
are fully paid and nonassessable, and, except as otherwise set forth in
the Prospectus, all outstanding shares of capital stock of the
Subsidiaries are owned by the Company either directly or through wholly
owned subsidiaries free and clear of any perfected security interest
and, to the knowledge of such counsel, after due inquiry, any other
security interests, claims, liens or encumbrances;
(iii) the Company's authorized equity capitalization is
as set forth in the Prospectus; the capital stock of the Company
conforms to the description thereof contained in the Prospectus; the
outstanding shares of Common Stock and the Securities being sold
hereunder by the Selling Stockholder have been duly and validly
authorized and issued and are fully paid and nonassessable; the
Securities being sold hereunder by the Company have been duly and
validly authorized, and, when issued and delivered to and paid for by
the Underwriters pursuant to this Agreement, will be fully paid and
nonassessable; the Securities being sold hereunder by the Company are
duly authorized for designation, subject to official notice of
issuance, on the Nasdaq Stock Market (National Market); the
certificates for the Securities are in valid and sufficient form; and
the holders of outstanding shares of capital stock of the Company are
not entitled to preemptive or other rights to subscribe for the
Securities;
(iv) to the best knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its Subsidiaries of a character required to be
disclosed in the Registration Statement which is not adequately
disclosed in the Prospectus, and there is no contract or other document
of a character required to be described in the Registration Statement
or Prospectus, or to be filed as an exhibit, which is not described or
filed as required;
(v) the Registration Statement has become effective
under the Act; any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); and to the
best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued, no
proceedings for that purpose have been instituted or threatened and the
Registration Statement and the Prospectus (other than the financial
statements and other financial and statistical information contained
therein as to which such counsel need express no opinion) comply as to
form in all material respects with the applicable requirements of the
Act and the Exchange Act and the respective rules thereunder;
<PAGE> 8
8
(vi) this Agreement has been duly authorized,
executed and delivered by the Company;
(vii) no consent, approval, authorization or order of
any court or governmental agency or body is required for the
consummation of the transactions contemplated herein, except such as
have been obtained under the Act and such as may be required by the
National Association of Securities Dealers, Inc. or under the blue sky
laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters and such other
approvals (specified in such opinion) as have been obtained;
(viii) neither the issue and sale of the Securities, nor
the consummation of any other of the transactions herein contemplated
nor the fulfillment of the terms hereof will conflict with, result in a
breach or violation of, or constitute a default under the charter or
by-laws of the Company or the terms of any indenture or other agreement
or instrument known to such counsel and to which the Company or any of
its Subsidiaries is a party or bound, except for such breaches or
defaults that would not have a material adverse effect on the business
of the Company and the Subsidiaries as a whole, or any judgment, order
or decree known to such counsel to be applicable to the Company or any
of the Subsidiaries of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over the
Company or any of the Subsidiaries;
(ix) no holders of securities of the Company have
rights to the registration of such securities under the Registration
Statement.
(x) this Agreement, the Custodian Agreement and the
Power-of-Attorney have been duly executed and delivered by the Selling
Stockholder, the Custody Agreement is valid and binding on the Selling
Stockholder and the Selling Stockholder has full legal right and
authority to sell, transfer and deliver in the manner provided in this
Agreement and the Custody Agreement the Securities being sold by the
Selling Stockholder hereunder;
(xi) the delivery by the Selling Stockholder to the
several Underwriters of certificates for the Securities being sold
hereunder by the Selling Stockholder against payment therefor as
provided herein, will pass good and marketable title to such Securities
to the several Underwriters, free and clear of all liens, encumbrances,
equities and claims whatsoever;
(xii) no consent, approval, authorization or order of
any court or governmental agency or body is required for the
consummation by the Selling Stockholder of the transactions
contemplated herein, except such as may have been obtained under the
Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters and such other approvals (specified in
such opinion) as have been obtained; and
(xiii) neither the sale of the Securities being sold by
the Selling Stockholder nor the consummation of any other of the
transactions herein contemplated by the Selling Stockholder or the
fulfillment of the terms hereof by the Selling Stockholder will
conflict with, result in a breach or violation of, or constitute a
default under any law or the terms of any indenture or other agreement
or instrument known to such counsel and to which the Selling
Stockholder is a party or bound, or any judgment, order or decree known
to such counsel to be applicable to the Selling Stockholder of any
court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Selling Stockholder.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdictions other than Arizona or
Nevada or the United States, to the extent they deem proper and specified in
such opinion, upon the opinion of other counsel of good standing whom they
believe to be reliable and who are satisfactory to counsel for the Underwriters
and (B) as to matters of fact, to the extent they deem proper, on certificates
of responsible officers of the Company and public officials. References to the
Prospectus in this paragraph (b) include any supplements thereto at the Closing
Date. In addition, counsel shall state that it has no reason to believe that at
the Effective Date the Registration Statement includes any untrue statement of a
material
<PAGE> 9
9
fact or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the Prospectus
includes any untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading (except that no statement shall be
required as to financial statements and other financial and statistical
information contained therein). With respect to such statement, counsel may
state that their belief is based on the procedures set forth therein, but is
without independent check and verification.
(d) The Underwriters shall have received from Piper & Marbury
L.L.P., counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the Securities, the
Registration Statement, the Prospectus (together with any supplement thereto)
and other related matters as the Underwriters may reasonably require, and the
Company and the Selling Stockholder shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them to pass
upon such matters.
(e) The Company shall have furnished to the Underwriters a
certificate of the Company, signed by the Chairman of the Board and the Chief
Financial Officer of the Company, dated the Closing Date, to the effect that the
signers of such certificate have carefully examined the Registration Statement,
the Prospectus, any supplement to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material respects on and
as of the Closing Date with the same effect as if made on the Closing
Date and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or prior
to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial
statements included or incorporated by reference in the Prospectus
(exclusive of any supplement thereto), there has been no material
adverse change in the condition (financial or other), earnings,
business or properties of the Company and its subsidiaries, whether or
not arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Prospectus (exclusive of
any supplement thereto).
(f) The Selling Stockholder shall have furnished to the
Underwriters a certificate, signed by him, dated the Closing Date, to the effect
that he has carefully examined the Registration Statement, the Prospectus, any
supplement to the Prospectus and this Agreement and that his representations and
warranties in this Agreement are true and correct in all material respects on
and as of the Closing Date to the same effect as if made on the Closing Date.
(g) At the Execution Time and at the Closing Date, KPMG Peat
Marwick LLP shall have furnished to the Underwriters a letter or letters, dated
respectively as of the Execution Time and as of the Closing Date, in form and
substance satisfactory to the Underwriters, confirming that they are independent
accountants within the meaning of the Act and the Exchange Act and the
respective applicable published rules and regulations thereunder and stating in
effect that:
(i) in their opinion the audited financial statements
and financial statement schedules included or incorporated in the
Registration Statement and the Prospectus and reported on by them
comply in form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published
rules and regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and the
Subsidiaries; carrying out certain specified procedures (but not an
examination in
<PAGE> 10
10
accordance with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the comments
set forth in such letter; a reading of the minutes of the meetings of
the stockholders, directors and Audit and Compensation Committees of
the Company's Board of Directors; and inquiries of certain officials of
the Company who have responsibility for financial and accounting
matters of the Company and its subsidiaries as to transactions and
events subsequent to December 31, 1995 nothing came to their attention
which caused them to believe that:
(1) any unaudited financial statements included or
incorporated in the Registration Statement and the Prospectus
do not comply in form in all material respects with applicable
accounting requirements and with the published rules and
regulations of the Commission with respect to financial
statements included or incorporated in quarterly reports on
Form 10-Q under the Exchange Act; and said unaudited financial
statements are not in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with that of the audited financial statements
included or incorporated in the Registration Statement and the
Prospectus; or
(2) with respect to the period subsequent to
September 30, 1996, there were any changes, at a specified
date not more than five business days prior to the date of the
letter, in the long-term obligations, excluding current
portion of the Company and its subsidiaries or capital stock
of the Company or decreases in the stockholders' equity of the
Company or decreases in working capital of the Company and its
subsidiaries as compared with the amounts shown on the
September 30, 1996, consolidated balance sheet included or
incorporated in the Registration Statement and the Prospectus,
or for the period from October 1, 1996 to such specified date
there were any decreases, as compared with the corresponding
period in the preceding quarter in operating revenue or
earnings before income taxes or in net earnings or net
earnings per common and equivalent share of the Company and
its subsidiaries, except in all instances for changes or
decreases set forth in such letter, in which case the letter
shall be accompanied by an explanation by the Company as to
the significance thereof unless said explanation is not deemed
necessary by the Underwriters;
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature (which is
limited to accounting, financial or statistical information derived
from the general accounting records of the Company and its
subsidiaries) set forth in the Registration Statement and the
Prospectus, including the information set forth under the captions
"Prospectus Summary -- Summary Consolidated Financial and Operating
Information" and "Selected Consolidated Financial Data" in the
Prospectus, the information included or incorporated in Items 1, 2, 6,
7 and 11 of the Company's Annual Report on Form 10-K, incorporated in
the Registration Statement and the Prospectus, and the information
included in the "Management's Discussion and Analysis of Financial
Condition and Results of Operations" included or incorporated in the
Company's Quarterly Reports on Form 10-Q, incorporated in the
Registration Statement and the Prospectus, agrees with the accounting
records of the Company and its subsidiaries, excluding any questions of
legal interpretation.
References to the Prospectus in this paragraph (g) include any
supplement thereto at the date of the letter.
(h) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement thereto),
there shall not have been (i) any change or decrease specified in the letter or
letters referred to in paragraph (g) of this Section 6 or (ii) any change, or
any development involving a prospective change, in or affecting the business or
properties of the Company and its subsidiaries the effect of which, in any case
referred to in clause (i) or (ii) above, is, in the judgment of the
Underwriters, so material and adverse as to make it impractical or inadvisable
to proceed with the offering or delivery of the Securities as contemplated by
the Registration Statement (exclusive of any amendment thereof) and the
Prospectus (exclusive of any supplement thereto).
<PAGE> 11
11
(i) At the Execution Time, the Selling Stockholder shall have
furnished to the Underwriters a letter addressed to the Underwriters, in which
such person agrees not to offer, sell or contract to sell, or otherwise dispose
of, directly or indirectly, or announce an offering of, any shares of Common
Stock beneficially owned by such person or any securities convertible into, or
exchangeable for, shares of Common Stock for a period of 120 days following the
Execution Time without the prior written consent of Salomon Brothers Inc, other
than shares of Common Stock disposed of as bona fide gifts.
(j) Prior to the Closing Date, the Company and the Selling
Stockholder shall have furnished to the Underwriters such further information,
certificates and documents as the Underwriters may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Underwriters. Notice of such cancellation shall be given to the Company and the
Selling Stockholder in writing or by telephone or telegraph confirmed in
writing.
The documents required to be delivered by this Section 6 shall
be delivered at the office of Piper & Marbury L.L.P., counsel for the
Underwriters, at 36 S. Charles Street, Baltimore, Maryland 21201, on the Closing
Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company or the Selling
Stockholder to perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Underwriters, the Company will
reimburse the Underwriters severally upon demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each Underwriter
and each person who controls any Underwriter within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement for the registration of the Securities as originally
filed or in any amendment thereof, or in any Preliminary Prospectus or the
Prospectus, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter specifically for inclusion therein. This indemnity agreement
will be in addition to any liability which the Company may otherwise have.
(b) The Selling Stockholder agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, each Underwriter, the directors, officers, employees and
agents of each Underwriter and each person who controls the Company or any
Underwriter within the meaning of either the Act or the Exchange Act to the same
extent as the foregoing indemnity from the Company to
<PAGE> 12
12
each Underwriter, but only with reference to written information furnished to
the Company by the Selling Stockholder specifically for use in the preparation
of the documents referred to in the foregoing indemnity. In no event, however,
shall the liability of the Selling Stockholder for indemnification under this
Section 8(b) exceed the lesser of (i) that proportion of the total of such
losses, claims, damages or liabilities indemnified against equal to the
proportion of the total Securities sold hereunder which are sold by the Selling
Stockholder, or (ii) the proceeds received by the Selling Stockholder from the
Underwriters in the offering contemplated hereunder. This indemnity agreement
will be in addition to any liability which the Selling Stockholder may otherwise
have.
(c) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act and the Selling Stockholder, to
the same extent as the foregoing indemnity from the Company to each Underwriter,
but only with reference to written information relating to such Underwriter
furnished to the Company by or on behalf of such Underwriter specifically for
inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any Underwriter
may otherwise have. The Company and the Selling Stockholder acknowledge that the
statements set forth in the last paragraph of the cover page and under the
heading "Underwriting" in any Preliminary Prospectus and the Prospectus
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in any Preliminary Prospectus or the
Prospectus, and you confirm that such statements are correct.
(d) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a), (b) or (c) above unless
and to the extent it did not otherwise learn of such action and such failure
results in prejudice to the indemnifying party and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph (a), (b) or (c)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel appointed by the indemnifying party), and the indemnifying party
shall bear the reasonable fees, costs and expenses of such separate counsel if
(i) the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a material conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the indemnifying
party shall authorize in writing the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(e) In the event that the indemnity provided in paragraph (a),
(b) or (c) of this Section 8 is unavailable to or insufficient to hold harmless
an indemnified party for any reason, the Company, the Selling Stockholder and
the Underwriters agree to contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses") to
which the Company, the Selling Stockholder and one or more of the Underwriters
may be
<PAGE> 13
13
subject in such proportion as is appropriate to reflect the relative benefits
received by the Company, by the Selling Stockholder and by the Underwriters from
the offering of the Securities; provided, however, that in no case shall any
Underwriter (except as may be provided in any agreement among Underwriters
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company, the
Selling Stockholder and the Underwriters shall contribute in such proportion as
is appropriate to reflect not only such relative benefits but also the relative
fault of the Company, of the Selling Stockholder and of the Underwriters in
connection with the statements or omissions which resulted in such Losses as
well as any other relevant equitable considerations. Benefits received by the
Company and by the Selling Stockholder shall be deemed to be equal to the total
net proceeds from the offering (before deducting expenses) received by each of
them, and benefits received by the Underwriters shall be deemed to be equal to
the total underwriting discounts and commissions, in each case as set forth on
the cover page of the Prospectus. Relative fault shall be determined by
reference to whether any alleged untrue statement or omission relates to
information provided by the Company, the Selling Stockholder or the
Underwriters. The Company, the Selling Stockholder and the Underwriters agree
that it would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation which does not take account of
the equitable considerations referred to above. Notwithstanding the provisions
of this paragraph (e), no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. In no event,
however, shall the liability of the Selling Stockholder exceed the lesser of (i)
that proportion of the total Losses equal to the proportion of the total
Securities sold hereunder which are sold by the Selling Stockholder, or (ii) the
proceeds received by such Selling Stockholder from the Underwriters in the
offering contemplated hereunder. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who controls
the Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and provisions of this
paragraph (e).
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter, the
Selling Stockholder or the Company. In the event of a default by any Underwriter
as set forth in this Section 9, the Closing Date shall be postponed for such
period, not exceeding seven days, as the Underwriters shall determine in order
that the required changes in the Registration Statement and the Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company, the Selling Stockholder and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
10. Effective Date of Agreement and Termination. This Agreement shall
become effective at such time (after notification of the effectiveness of the
Registration Statement has been released by the Commission) as the Underwriters,
the Selling Stockholder and the Company shall agree on the public offering price
and underwriting discount per share, unless prior to such time such of the
Underwriters as have agreed to purchase in the aggregate 50% or more of the
Securities shall have given notice to the Company that such Underwriters elect
that this Agreement shall not become effective; provided, however, that the
provisions of this Section 10 and of Section 8
<PAGE> 14
14
hereof shall at all times be effective. If this Agreement shall not have become
effective prior to 5:00 PM, New York City time, on the seventh full business day
after the Effective Date, this Agreement shall not thereafter become effective
unless such period is extended by agreement among the Underwriters, the Selling
Stockholder and the Company.
This Agreement shall be subject to termination in the absolute
discretion of the Underwriters, by notice given to the Company prior to delivery
of and payment for the Securities, if prior to such time (i) trading in the
Company's Common Stock shall have been suspended by the Commission or the Nasdaq
Stock Market (National Market) or trading in securities generally on the New
York Stock Exchange or the Nasdaq Stock Market (National Market) shall have been
suspended or limited or minimum prices shall have been established on either of
such Exchange or the Nasdaq Stock Market (National Market), (ii) a banking
moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the judgment of the Underwriters, impracticable or inadvisable to
proceed with the offering or delivery of the Securities as contemplated by the
Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers, of the Selling Stockholder and of the Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter,
the Selling Stockholder or the Company or any of the officers, directors or
controlling persons referred to in Section 8 hereof, and will survive delivery
of and payment for the Securities. The provisions of Sections 7 and 8 hereof
shall survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriter, will be mailed,
delivered or telegraphed and confirmed to them, care of Salomon Brothers Inc, at
Seven World Trade Center, New York, New York, 10048; or, if sent to the Company,
will be mailed, delivered or telegraphed and confirmed to it at 2200 South 75th
Avenue, Phoenix, Arizona 85043, attention: Mr. Jerry C. Moyes; or if sent to the
Selling Stockholder, will be mailed, delivered or telegraphed and confirmed to
him care of the Company.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and no
other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
SWIFT TRANSPORTATION CO., INC.
By: _______________________________
Jerry C. Moyes
Chairman, President and Chief
Executive Officer
<PAGE> 15
15
________________________________
Jerry C. Moyes
The foregoing Agreement is hereby
confirmed and accepted as of
the date first above written.
SALOMON BROTHERS INC
ALEX. BROWN & SONS INCORPORATED
MORGAN STANLEY & CO. INCORPORATED
SCHRODER WORTHEIM & CO. INCORPORATED
MORGAN KEEGAN & COMPANY, INC.
By: SALOMON BROTHERS INC
By:______________________________
Fred Larsen
Vice President
<PAGE> 16
EXHIBIT A
SWIFT TRANSPORTATION CO., INC.
PUBLIC OFFERING OF COMMON STOCK
December , 1996
SALOMON BROTHERS INC
MORGAN STANLEY & CO. INCORPORATED
ALEX. BROWN & SONS INCORPORATED
SCHRODER WORTHEIM & CO. INCORPORATED
MORGAN KEEGAN & COMPANY, INC.
c/o Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Dear Sirs:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), between Swift
Transportation Co., Inc., a Nevada corporation (the "Company"), a certain
Selling Stockholder named therein and you as the Underwriters named therein,
relating to an underwritten public offering of Common Stock, $.001 par value
(the "Common Stock"), of the Company.
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, the undersigned agrees not to offer, sell or contract to
sell, or otherwise dispose of, directly or indirectly, or announce an offering
of, any shares of Common Stock beneficially owned by the undersigned or any
securities convertible into, or exchangeable for, shares of Common Stock for a
period of 120 days following the day on which the Underwriting Agreement is
executed without the prior written consent of Salomon Brothers Inc., other than
shares of Common Stock disposed of as bona fide gifts.
If for any reason the Underwriting Agreement shall be terminated prior
to the Closing Date (as defined in the Underwriting Agreement), the agreement
set forth above shall likewise be terminated.
Yours very truly,
--------------------------------------
Jerry C. Moyes
c/o Swift Transportation Co., Inc.
2200 South 75th Avenue
Phoenix, Arizona 85043
<PAGE> 17
SCHEDULE I
<TABLE>
<CAPTION>
Number of Shares
of Securities
Underwriters to be Purchased
---------------------------- ----------------
<S> <C>
Salomon Brothers Inc.............................................. 700,000
Morgan Stanley & Co. Incorporated................................. 700,000
Alex. Brown & Sons Incorporated................................... 700,000
Schroder Wertheim & Co. Incorporated.............................. 700,000
Morgan Keegan & Company, Inc...................................... 700,000
---------
Total 3,500,000
=========
</TABLE>
<PAGE> 18
SCHEDULE II
<TABLE>
<CAPTION>
Selling Stockholder Number of Shares of Securities to be Sold
------------------- -----------------------------------------
<S> <C>
Jerry C. Moyes 1,000,000 shares
</TABLE>
