VOTING AGREEMENT
This VOTING AGREEMENT ("Agreement") is made as of December 11, 2000, among
M. S. Carriers Inc., a Tennessee corporation (the "Company"), the Xxxxx and
Xxxxxx Xxxxx Family Trust dated 12/11/87, a stockholder ("Stockholder") of
Swift Transportation Co., Inc., a Nevada corporation ("Parent"), and Xxxxx
Xxxxx, individually ("CEO").
WHEREAS, Parent, Merger Sub, and the Company are, concurrently with the
execution and delivery of this Agreement, entering into a Merger Agreement,
dated as of the date hereof (the "Merger Agreement") pursuant to which Merger
Sub will merge with and into the Company (the "Merger");
WHEREAS, as of the date hereof, Stockholder and CEO together, the "Holders"
are the record and/or beneficial owners of Parent Shares (such Parent Shares
the "Existing Shares" and, together with any Parent Shares as to which record
and/or beneficial ownership is acquired after the date hereof, whether upon
the exercise of warrants, options, conversion of convertible securities, or
otherwise, the "Shares");
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, the Company has required that the Holders agree, and the Holders
have agreed, to enter into this Agreement; and
WHEREAS, among other things, the Holders and the Company desire to set forth
their agreement with respect to the voting of the Shares in connection with
the Merger, upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants, and agreements herein contained, and
intending to be legally bound hereby, the parties hereto agree as follows:
1. Agreement to Vote. The Holders hereby agree that they shall, and shall
cause any applicable holder of record on any applicable record date to, from
time to time, at the request of the Company, at any meeting (whether annual or
special and whether or not an adjourned or postponed meeting) of stockholders
of Parent, however called, or in connection with any written consent of the
holders of Parent Shares, (a) if a meeting is held, appear at such meeting or
otherwise cause the Shares to be counted as present thereat for purposes of
establishing a quorum, and (b) vote or consent (or cause to be voted or
consented), in person or by proxy, all Shares, and any other voting securities
of Parent (whether acquired heretofore or hereafter) that are beneficially
owned or held of record by Holder or as to which such Holder has, directly or
indirectly, the right to vote or direct the voting, in favor of the approval
of the issuance of Parent Shares in the Merger, and any action required in
furtherance thereof.
2. No Ownership Interest. Nothing contained in this Agreement shall be
deemed to vest in the Company any direct or indirect ownership or incidence of
ownership of or with respect to any Shares. All rights, ownership, and
economic benefits of and relating to the Shares shall
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remain vested in and belong to the Holders. The Company shall have no
authority to manage, direct, superintend, restrict, regulate, govern, or
administer any of the policies or operations of Parent or exercise any power
or authority to direct the Holders in the voting of any of the Shares, except
as otherwise provided herein, or in the performance of the Holders' duties or
responsibilities as a stockholder of Parent.
3. No Inconsistent Agreements. Each Holder hereby covenants and agrees that,
except as contemplated by this Agreement and the Merger Agreement, it (i) has
not entered, and shall not enter at any time while this Agreement remains in
effect, into any voting agreement or voting trust with respect to the Shares
and (ii) has not granted, and shall not grant at any time while this Agreement
remains in effect, a proxy, power of attorney, or any similar agreement with
respect to the Shares, in either case, which is inconsistent with such
Holder's obligations pursuant to this Agreement.
4. Agreement of CEO. CEO hereby agrees that he will use his best efforts
cause any entity controlled by him to vote any Parent Shares held of record by
such entity in favor of the approval and adoption of the issuance of Parent
Shares in the Merger, and any action required in furtherance thereof.
5. Authorization; Validity of Agreement; Necessary Action. Each of the
Holders has full power and authority to execute and deliver this Agreement, to
perform its obligations hereunder, and to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered by
each of the Holders, and, assuming this Agreement constitutes a valid and
binding obligation of the Company, constitutes a valid and binding obligation
of each Holder, enforceable against it in accordance with its terms.
6. Adjustments. In the event of a stock dividend or distribution, or any
change in Parent Shares by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares, or the like, the term
"Shares" shall be deemed to refer to and include the Shares as well as all
such stock dividends and distributions and any shares into which or for which
any or all of the Shares may be changed or exchanged. The Holders shall be
entitled to receive any cash dividend paid by the Parent during the term of
this Agreement.
7. Termination. This Agreement shall terminate and no party shall have any
rights or duties hereunder upon the earlier of (a) the Effective Time or (b)
termination of the Merger Agreement. Nothing in this Section 8 shall relieve
or otherwise limit any party of liability for breach of this Agreement.
8. Capacity. The obligations of each Holder herein are made only in its
capacity as a stockholder of Parent.
9. Notices. All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient if delivered personally
or sent by nationally recognized overnight courier or by registered or
certified mail, postage prepaid, return receipt requested, or by electronic
mail, with a copy thereof to be delivered or sent as provided above or by
facsimile or telecopier. All such notices or communications shall be deemed to
be received (i)
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in the case of personal delivery, nationally recognized overnight
courier, or registered or certified mail, on the date of such delivery and
(ii) in the case of facsimile or telecopier or electronic mail, upon confirmed
receipt.
10. Severability. If any term or other provision of this Agreement is
invalid, illegal, or incapable of being enforced by any rule of Law, or public
policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any
manner adverse to any party. Upon such determination that any term or other
provision is invalid, illegal, or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner to the end that transactions contemplated hereby are fulfilled to the
extent possible.
11. Amendments; Assignment. This Agreement may not be amended except by
written agreement by all the parties. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and
permitted assigns. Neither this Agreement nor any of the rights, interests, or
obligations under this Agreement shall be assigned, in whole or in part, by
any of the parties without the prior written consent of the other parties, and
any purported assignment without such consent shall be void.
12. Failure or Indulgence Not Waiver; Remedies Cumulative. No failure or
delay on the part of any party hereto in the exercise of any right hereunder
will impair such right or be construed to be a waiver of, or acquiescence in,
any breach of any representation, warranty, or agreement herein, nor will any
single or partial exercise of any such right preclude other or further
exercise thereof or of any other right. All rights and remedies existing under
this Agreement are cumulative to, and not exclusive to, and not exclusive of,
any rights or remedies otherwise available.
13. Entire Agreement. This Agreement constitutes the entire agreement between
the Company and the Holders with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both written and oral,
between the Company and either Holder with respect to the subject matter
hereof.
14. Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original, but all of
which taken together shall constitute one and the same agreement.
15. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Nevada applicable to contracts
executed in and to be performed entirely within that state.
16. Specific Performance. The parties hereto agree that irreparable damage
would occur in the event any provision of this Agreement is not performed in
accordance with the terms
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hereof, and that the parties shall be entitled to specific performance
of the terms hereof, in addition to any other remedy at law or in equity.
17. Definitions. Capitalized terms used herein and not otherwise defined
herein shall have the meanings given in the Merger Agreement.
IN WITNESS WHEREOF, the Company and the Holders have caused this Agreement
to be signed by their respective officers or other authorized person thereunto
duly authorized as of the date first written above.
M. S. Carriers, Inc.
a Tennessee corporation
By: /s Xxxxxxx X. Xxxxxxx
Chairman of the Board, President
and Chief Executive Officer
THE XXXXX AND XXXXXX XXXXX FAMILY TRUST DATED 12/11/87
By:/s Xxxxx Xxxxx
Xxxxx Xxxxx, Trustee
By:/s Xxxxxx Xxxxx
Xxxxxx Xxxxx, Trustee
/s Xxxxx Xxxxx
Xxxxx Xxxxx, Individually
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