1.
|
Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only)
Jerry Moyes
|
||
2.
|
Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [X]
(b) [ ]
|
||
3.
|
SEC USE ONLY
|
||
4.
|
Source of Funds (See Instructions)
AF, BK, PF, OO
|
||
5.
|
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
[ ]
|
||
6.
|
Citizenship or Place of Organization
United States of America
|
||
Number of
Shares Beneficially
Owned by Each
Reporting
Person with
|
7.
|
Sole Voting Power
0
|
|
8.
|
Shared Voting Power
51,617,690(1)
|
||
9.
|
Sole Dispositive Power
0
|
||
10.
|
Shared Dispositive Power
51,617,690 (1)
|
||
11.
|
Aggregate Amount Beneficially Owned by Each Reporting Person
58,598,687(2)
|
||
12.
|
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
[ ]
|
||
13.
|
Percent of Class Represented by Amount in Row (11)
43.4%(3)
|
||
14.
|
Type of Reporting Person (See Instructions)
IN
|
(1)
|
Includes shares of the Issuer's class A common stock, par value $0.01 per share ("Class A Common Stock") and shares of the Issuer's class B common stock, par value $0.01 per share ("Class B Common Stock") held by Mr. and Mrs. Moyes as community property under the laws of the State of Arizona and over which they share voting and dispositive power and shares held by Mr. and Mrs. Moyes through their ownership of various entities and a trust for their benefit and over which they share voting and dispositive power.
As provided in the Issuer's Amended and Restated Certificate of Incorporation, each share of Class B Common Stock is convertible at any time, at the option of the holder, into one share of Class A Common Stock. In addition, each share of Class B Common Stock will convert automatically into one share of Class A Common Stock upon any transfer, whether or not for value, except for certain permitted transfers described in the Amended and Restated Certificate of Incorporation.
|
|
(2)
|
Includes 6,761,400 shares of Class A Common Stock beneficially owned by Cactus Holding II (as defined below), an affiliate of Mr. and Mrs. Moyes, that have been sold to a counterparty pursuant to a Securities Sale and Repurchase Agreement with a full recourse obligation of Cactus Holding II to repurchase the securities at the same price on the second anniversary of sale. Cactus Holding II may voluntarily repurchase the shares at any time, and therefore the shares are deemed to be beneficially held under the provisions of Rule 13d-3. However, during the term of the transaction, Cactus Holding II will not have the right to vote or direct the disposition of the sold shares until the shares are repurchased. Also includes 219,597 shares of Class A Common Stock underlying stock options held by Mr. Moyes that are vested or exercisable within 60 days of this filing.
|
|
(3)
|
The percentage indicated is based upon 135,095,189 shares outstanding as of April 26, 2016, which includes 84,103,251 shares of Class A Common Stock and 50,991,938 shares of Class B Common Stock outstanding as of April 26, 2016, as reported in the Issuer’s Quarterly Report on Form 10-Q, as filed with the Securities and Exchange Commission on May 3, 2016. With respect to matters upon which the Issuer's stockholders are entitled to vote, the holders of Class A Common Stock and Class B Common Stock vote together as a single class and each holder of Class A Common Stock is entitled to one vote per share and each holder of Class B Common Stock is entitled to two votes per share. The shares of Class A Common Stock and Class B Common Stock beneficially owned by the Reporting Person represent approximately 57.1% of the total voting power as of April 26, 2016.
|
1.
|
Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only)
Vickie Moyes
|
||
2.
|
Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [X]
(b) [ ]
|
||
3.
|
SEC USE ONLY
|
||
4.
|
Source of Funds (See Instructions)
AF, BK, PF, OO
|
||
5.
|
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
[ ]
|
||
6.
|
Citizenship or Place of Organization
United States of America
|
||
Number of
Shares Beneficially
Owned by Each
Reporting
Person with
|
7.
|
Sole Voting Power
0
|
|
8.
|
Shared Voting Power
51,617,690 (1)
|
||
9.
|
Sole Dispositive Power
0
|
||
10.
|
Shared Dispositive Power
51,617,690 (1)
|
||
11.
|
Aggregate Amount Beneficially Owned by Each Reporting Person
58,598,697(2)
|
||
12.
|
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
[ ]
|
||
13.
|
Percent of Class Represented by Amount in Row (11)
43.4%(3)
|
||
14.
|
Type of Reporting Person (See Instructions)
IN
|
(1)
|
Includes shares of Class A Common Stock and Class B Common Stock held by Mr. and Mrs. Moyes as community property under the laws of the State of Arizona and over which they share voting and dispositive power and shares held by Mr. and Mrs. Moyes through their ownership of various entities and a trust for their benefit and over which they share voting and dispositive power.
As provided in the Issuer's Amended and Restated Certificate of Incorporation, each share of Class B Common Stock is convertible at any time, at the option of the holder, into one share of Class A Common Stock. In addition, each share of Class B Common Stock will convert automatically into one share of Class A Common Stock upon any transfer, whether or not for value, except for certain permitted transfers described in the Amended and Restated Certificate of Incorporation.
|
|
(2)
|
Includes 6,761,400 shares of Class A Common Stock beneficially owned by Cactus Holding II that have been sold to a counterparty pursuant to a Securities Sale and Repurchase Agreement with a full recourse obligation of Cactus Holding II to repurchase the securities at the same price on the second anniversary of sale. Cactus Holding II may voluntarily repurchase the shares at any time, and therefore the shares are deemed to be beneficially held under the provisions of Rule 13d-3. However, during the term of the transaction, Cactus Holding II will not have the right to vote or direct the disposition of the sold shares until the shares are repurchased. Also includes 219,597 shares of Class A Common Stock underlying stock options held by Mr. Moyes that are vested or exercisable within 60 days of this filing.
|
|
(3)
|
The percentage indicated is based upon 135,095,189 shares outstanding as of April 26, 2016, which includes 84,103,251 shares of Class A Common Stock and 50,991,938 shares of Class B Common Stock outstanding as of April 26, 2016, as reported in the Issuer’s Quarterly Report on Form 10-Q, as filed with the Securities and Exchange Commission on May 3, 2016. With respect to matters upon which the Issuer's stockholders are entitled to vote, the holders of Class A Common Stock and Class B Common Stock vote together as a single class and each holder of Class A Common Stock is entitled to one vote per share and each holder of Class B Common Stock is entitled to two votes per share. The shares of Class A Common Stock and Class B Common Stock beneficially owned by the Reporting Person represent approximately 57.1% of the total voting power as of April 26, 2016.
|
1.
|
Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only)
Jerry and Vickie Moyes Family Trust Dated 12/11/87 (the "Moyes Trust")
|
||
2.
|
Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [X]
(b) [ ]
|
||
3.
|
SEC USE ONLY
|
||
4.
|
Source of Funds (See Instructions)
AF, BK, PF, OO
|
||
5.
|
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
[ ]
|
||
6.
|
Citizenship or Place of Organization
Arizona
|
||
Number of
Shares Beneficially
Owned by Each
Reporting
Person with
|
7.
|
Sole Voting Power
51,582,015 (1)
|
|
8.
|
Shared Voting Power
0
|
||
9.
|
Sole Dispositive Power
51,582,015 (1)
|
||
10.
|
Shared Dispositive Power
0
|
||
11.
|
Aggregate Amount Beneficially Owned by Each Reporting Person
58,343,415(2)
|
||
12.
|
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
[ ]
|
||
13.
|
Percent of Class Represented by Amount in Row (11)
43.2%(3)
|
||
14.
|
Type of Reporting Person (See Instructions)
OO
|
(1)
|
Includes shares of Class A Common Stock and Class B Common Stock. Mr. and Mrs. Moyes are co-trustees of the Moyes Trust and hold the voting and dispositive power over the shares.
As provided in the Issuer's Amended and Restated Certificate of Incorporation, each share of Class B Common Stock is convertible at any time, at the option of the Reporting Person, into one share of Class A Common Stock. In addition, each share of Class B Common Stock will convert automatically into one share of Class A Common Stock upon any transfer, whether or not for value, except for certain permitted transfers described in the Amended and Restated Certificate of Incorporation.
|
|
(2)
|
Includes 6,761,400 shares of Class A Common Stock beneficially owned by Cactus Holding II that have been sold to a counterparty pursuant to a Securities Sale and Repurchase Agreement with a full recourse obligation of Cactus Holding II to repurchase the securities at the same price on the second anniversary of sale. Cactus Holding II may voluntarily repurchase the shares at any time, and therefore the shares are deemed to be beneficially held under the provisions of Rule 13d-3. However, during the term of the transaction, Cactus Holding II will not have the right to vote or direct the disposition of the sold shares until the shares are repurchased.
|
|
(3)
|
The percentage indicated is based upon 135,095,189 shares outstanding as of April 26, 2016, which includes 84,103,251 shares of Class A Common Stock and 50,991,938 shares of Class B Common Stock outstanding as of April 26, 2016, as reported in the Issuer’s Quarterly Report on Form 10-Q, as filed with the Securities and Exchange Commission on May 3, 2016. With respect to matters upon which the Issuer's stockholders are entitled to vote, the holders of Class A Common Stock and Class B Common Stock vote together as a single class and each holder of Class A Common Stock is entitled to one vote per share and each holder of Class B Common Stock is entitled to two votes per share. The shares of Class A Common Stock and Class B Common Stock beneficially owned by the Reporting Person represent approximately 57.0% of the total voting power as of April 26, 2016.
|
1.
|
Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only)
Cactus Holding Company II, LLC (27-4510310)
|
||
2.
|
Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
|
||
3.
|
SEC USE ONLY
|
||
4.
|
Source of Funds (See Instructions)
OO
|
||
5.
|
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
[ ]
|
||
6.
|
Citizenship or Place of Organization
Alaska
|
||
Number of
Shares Beneficially
Owned by Each
Reporting
Person with
|
7.
|
Sole Voting Power
9,410,167(1)
|
|
8.
|
Shared Voting Power
0
|
||
9.
|
Sole Dispositive Power
9,410,167 (1)
|
||
10.
|
Shared Dispositive Power
0
|
||
11.
|
Aggregate Amount Beneficially Owned by Each Reporting Person
45,684,616(2)
|
||
12.
|
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
[ ]
|
||
13.
|
Percent of Class Represented by Amount in Row (11)
33.8%(3)
|
||
14.
|
Type of Reporting Person (See Instructions)
OO
|
(1)
|
Includes 5,570,090 shares of Class B Common Stock and 3,840,077 shares of Class A Common Stock. Mr. and Mrs. Moyes have voting and dispositive power over the shares.
As provided in the Issuer's Amended and Restated Certificate of Incorporation, each share of Class B Common Stock is convertible at any time, at the option of the Reporting Person, into one share of Class A Common Stock. In addition, each share of Class B Common Stock will convert automatically into one share of Class A Common Stock upon any transfer, whether or not for value, except for certain permitted transfers described in the Amended and Restated Certificate of Incorporation.
|
|
(2)
|
Includes 6,761,400 shares of Class A Common Stock beneficially owned by Cactus Holding II that have been sold to a counterparty pursuant to a Securities Sale and Repurchase Agreement with a full recourse obligation of Cactus Holding II to repurchase the securities at the same price on the second anniversary of sale. Cactus Holding II may voluntarily repurchase the shares at any time, and therefore the shares are deemed to be beneficially held under the provisions of Rule 13d-3. However, during the term of the transaction, Cactus Holding II will not have the right to vote or direct the disposition of the sold shares until the shares are repurchased.
Includes 3,300,000 and 26,213,049 shares of Class B Common Stock held by Cactus Holding I and M Capital II, LLC, respectively. The Reporting Person does not have voting or dispositive power over these shares, but may be deemed to beneficially own these shares as part of a group as a result of the Reporting Person's participation in certain variable prepaid forward transactions described in Items 3 and 4 of the Original Statement (the “Previous VPF Contracts”).
|
|
(3)
|
The percentage indicated is based upon 135,095,189 shares outstanding as of April 26, 2016, which includes 84,103,251 shares of Class A Common Stock and 50,991,938 shares of Class B Common Stock outstanding as of April 26, 2016, as reported in the Issuer’s Quarterly Report on Form 10-Q, as filed with the Securities and Exchange Commission on May 3, 2016. With respect to matters upon which the Issuer's stockholders are entitled to vote, the holders of Class A Common Stock and Class B Common Stock vote together as a single class and each holder of Class A Common Stock is entitled to one vote per share and each holder of Class B Common Stock is entitled to two votes per share. The shares of Class A Common Stock and Class B Common Stock beneficially owned by the Reporting Person represent approximately 43.4% of the total voting power as of April 26, 2016.
|
1.
|
Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only)
M Capital Group Investors, LLC (45-2614711)
|
||
2.
|
Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
|
||
3.
|
SEC USE ONLY
|
||
4.
|
Source of Funds (See Instructions)
OO
|
||
5.
|
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
[ ]
|
||
6.
|
Citizenship or Place of Organization
Delaware
|
||
Number of
Shares Beneficially
Owned by Each
Reporting
Person with
|
7.
|
Sole Voting Power
12,658,799(1)
|
|
8.
|
Shared Voting Power
0
|
||
9.
|
Sole Dispositive Power
12,658,799(1)
|
||
10.
|
Shared Dispositive Power
0
|
||
11.
|
Aggregate Amount Beneficially Owned by Each Reporting Person
12,658,799(1)
|
||
12.
|
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
[ ]
|
||
13.
|
Percent of Class Represented by Amount in Row (11)
9.4%(2)
|
||
14.
|
Type of Reporting Person (See Instructions)
OO
|
(1)
|
Includes shares of Class B Common Stock. Mr. and Mrs. Moyes have voting and dispositive power over the shares.
As provided in the Issuer's Amended and Restated Certificate of Incorporation, each share of Class B Common Stock is convertible at any time, at the option of the Reporting Person, into one share of Class A Common Stock. In addition, each share of Class B Common Stock will convert automatically into one share of Class A Common Stock upon any transfer, whether or not for value, except for certain permitted transfers described in the Amended and Restated Certificate of Incorporation.
|
|
(2)
|
The percentage indicated is based upon 135,095,189 shares outstanding as of April 26, 2016, which includes 84,103,251 shares of Class A Common Stock and 50,991,938 shares of Class B Common Stock outstanding as of April 26, 2016, as reported in the Issuer’s Quarterly Report on Form 10-Q, as filed with the Securities and Exchange Commission on May 3, 2016. With respect to matters upon which the Issuer's stockholders are entitled to vote, the holders of Class A Common Stock and Class B Common Stock vote together as a single class and each holder of Class A Common Stock is entitled to one vote per share and each holder of Class B Common Stock is entitled to two votes per share. The shares of Class A Common Stock and Class B Common Stock beneficially owned by the Reporting Person represent approximately 13.6% of the total voting power as of April 26, 2016.
|
1.
|
Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only)
Cactus Holding Company, LLC (27-4438129)
|
||
2.
|
Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
|
||
3.
|
SEC USE ONLY
|
||
4.
|
Source of Funds (See Instructions)
OO
|
||
5.
|
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
[ ]
|
||
6.
|
Citizenship or Place of Organization
Alaska
|
||
Number of
Shares Beneficially
Owned by Each
Reporting
Person with
|
7.
|
Sole Voting Power
3,300,000(1)
|
|
8.
|
Shared Voting Power
0
|
||
9.
|
Sole Dispositive Power
3,300,000(1)
|
||
10.
|
Shared Dispositive Power
0
|
||
11.
|
Aggregate Amount Beneficially Owned by Each Reporting Person
58,343,415(2)
|
||
12.
|
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
[ ]
|
||
13.
|
Percent of Class Represented by Amount in Row (11)
43.2%(3)
|
||
14.
|
Type of Reporting Person (See Instructions)
OO
|
(1)
|
Includes shares of Class B Common Stock held by the Reporting Person. Mr. and Mrs. Moyes have voting and dispositive power over the shares.
As provided in the Issuer's Amended and Restated Certificate of Incorporation, each share of Class B Common Stock is convertible at any time, at the option of the Reporting Person, into one share of Class A Common Stock. In addition, each share of Class B Common Stock will convert automatically into one share of Class A Common Stock upon any transfer, whether or not for value, except for certain permitted transfers described in the Amended and Restated Certificate of Incorporation.
|
|
(2)
|
Includes 12,658,799 shares of Class B Common Stock held by M Capital I (as defined below), of which the Reporting Person is a member. The Reporting Person may be deemed to beneficially own these shares as part of a group in connection with its membership interest.
Also includes (i) 26,213,049 shares of Class B Common Stock held by M Capital II; (ii) 3,840,077 shares of Class A Common Stock and 5,570,090 shares of Class B Common Stock held by Cactus Holding II; and (iii) 6,761,400 shares of Class A Common Stock beneficially owned by Cactus Holding II that have been sold to a counterparty and are subject to repurchase pursuant to a Securities Sale and Repurchase Agreement. The Reporting Person may be deemed to beneficially own these shares as part of a group in connection with the Previous VPF Contracts.
|
|
(3)
|
The percentage indicated is based upon 135,095,189 shares outstanding as of April 26, 2016, which includes 84,103,251 shares of Class A Common Stock and 50,991,938 shares of Class B Common Stock outstanding as of April 26, 2016, as reported in the Issuer’s Quarterly Report on Form 10-Q, as filed with the Securities and Exchange Commission on May 3, 2016. With respect to matters upon which the Issuer's stockholders are entitled to vote, the holders of Class A Common Stock and Class B Common Stock vote together as a single class and each holder of Class A Common Stock is entitled to one vote per share and each holder of Class B Common Stock is entitled to two votes per share. The shares of Class A Common Stock and Class B Common Stock beneficially owned by the Reporting Person represent approximately 57.0% of the total voting power as of April 26, 2016.
|
1.
|
Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only)
M Capital Group Investors II, LLC (46-3644539)
|
||
2.
|
Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [X]
(b) [ ]
|
||
3.
|
SEC USE ONLY
|
||
4.
|
Source of Funds (See Instructions)
OO
|
||
5.
|
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
[ ]
|
||
6.
|
Citizenship or Place of Organization
Delaware
|
||
Number of
Shares Beneficially
Owned by Each
Reporting
Person with
|
7.
|
Sole Voting Power
26,213,049(1)
|
|
8.
|
Shared Voting Power
0
|
||
9.
|
Sole Dispositive Power
26,213,049(1)
|
||
10.
|
Shared Dispositive Power
0
|
||
11.
|
Aggregate Amount Beneficially Owned by Each Reporting Person
45,684,616(2)
|
||
12.
|
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
[ ]
|
||
13.
|
Percent of Class Represented by Amount in Row (11)
33.8%(3)
|
||
14.
|
Type of Reporting Person (See Instructions)
OO
|
(1)
|
Includes shares of Class A and Class B Common Stock.
As provided in the Issuer's Amended and Restated Certificate of Incorporation, each share of Class B Common Stock is convertible at any time, at the option of the Reporting Person, into one share of Class A Common Stock. In addition, each share of Class B Common Stock will convert automatically into one share of Class A Common Stock upon any transfer, whether or not for value, except for certain permitted transfers described in the Amended and Restated Certificate of Incorporation.
|
|
(2)
|
Includes (i) 3,840,077 shares of Class A Common Stock and 5,570,090 shares of Class B Common Stock held by Cactus Holding II; (ii) 6,761,400 shares of Class A Common Stock beneficially owned by Cactus Holding II that have been sold to a counterparty and are subject to repurchase pursuant to a Securities Sale and Repurchase Agreement; and (iii) 3,300,000 shares of Class B Common Stock held by Cactus Holding I. The Reporting Person does not have voting or dispositive power over such shares but may be deemed to beneficially own such shares as part of a group, due to the Reporting Person's participation in the Previous VPF Contracts.
|
|
(3)
|
The percentage indicated is based upon 135,095,189 shares outstanding as of April 26, 2016, which includes 84,103,251 shares of Class A Common Stock and 50,991,938 shares of Class B Common Stock outstanding as of April 26, 2016, as reported in the Issuer’s Quarterly Report on Form 10-Q, as filed with the Securities and Exchange Commission on May 3, 2016. With respect to matters upon which the Issuer's stockholders are entitled to vote, the holders of Class A Common Stock and Class B Common Stock vote together as a single class and each holder of Class A Common Stock is entitled to one vote per share and each holder of Class B Common Stock is entitled to two votes per share. The shares of Class A Common Stock and Class B Common Stock beneficially owned by the Reporting Person represent approximately 43.4% of the total voting power as of April 26, 2016.
|
1.
|
Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only)
Michael Moyes
|
||
2.
|
Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [X]
(b) [ ]
|
||
3.
|
SEC USE ONLY
|
||
4.
|
Source of Funds (See Instructions)
OO
|
||
5.
|
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
[ ]
|
||
6.
|
Citizenship or Place of Organization
United States of America
|
||
Number of
Shares Beneficially
Owned by Each
Reporting
Person with
|
7.
|
Sole Voting Power
500,000
|
|
8.
|
Shared Voting Power
0
|
||
9.
|
Sole Dispositive Power
500,000
|
||
10.
|
Shared Dispositive Power
0
|
||
11.
|
Aggregate Amount Beneficially Owned by Each Reporting Person
39,371,848(1)
|
||
12.
|
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
[ ]
|
||
13.
|
Percent of Class Represented by Amount in Row (11)
29.1%(2)
|
||
14.
|
Type of Reporting Person (See Instructions)
IN
|
(1)
|
Includes 12,658,799 and 26,213,049 shares of Class B Common Stock held by M Capital I, and M Capital II, respectively. Certain members of these entities are trusts for which the Reporting Person serves as trustee. These trusts do not have voting or dispositive power over these shares but may be deemed to beneficially own such shares as part of a group.
|
||
(2)
|
The percentage indicated is based upon 135,095,189 shares outstanding as of April 26, 2016, which includes 84,103,251 shares of Class A Common Stock and 50,991,938 shares of Class B Common Stock outstanding as of April 26, 2016, as reported in the Issuer’s Quarterly Report on Form 10-Q, as filed with the Securities and Exchange Commission on May 3, 2016. With respect to matters upon which the Issuer's stockholders are entitled to vote, the holders of Class A Common Stock and Class B Common Stock vote together as a single class and each holder of Class A Common Stock is entitled to one vote per share and each holder of Class B Common Stock is entitled to two votes per share. The shares of Class A Common Stock and Class B Common Stock beneficially owned by the Reporting Person represent approximately 42.3% of the total voting power as of April 26, 2016.
|
1.
|
Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only)
LynDee Moyes Nester
|
||
2.
|
Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [X]
(b) [ ]
|
||
3.
|
SEC USE ONLY
|
||
4.
|
Source of Funds (See Instructions)
OO
|
||
5.
|
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
[ ]
|
||
6.
|
Citizenship or Place of Organization
United States of America
|
||
Number of
Shares Beneficially
Owned by Each
Reporting
Person with
|
7.
|
Sole Voting Power
500,000
|
|
8.
|
Shared Voting Power
0
|
||
9.
|
Sole Dispositive Power
500,000
|
||
10.
|
Shared Dispositive Power
0
|
||
11.
|
Aggregate Amount Beneficially Owned by Each Reporting Person
39,371,848 (1)
|
||
12.
|
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
[ ]
|
||
13.
|
Percent of Class Represented by Amount in Row (11)
29.1%(2)
|
||
14.
|
Type of Reporting Person (See Instructions)
IN
|
(1)
|
Includes 12,658,799 and 26,213,049 shares of Class B Common Stock held by M Capital I, and M Capital II, respectively. A certain member of these entities is a trust for which the Reporting Person serves as trustee. This trust does not have voting or dispositive power over these shares but may be deemed to beneficially own such shares as part of a group.
|
||
(2)
|
The percentage indicated is based upon 135,095,189 shares outstanding as of April 26, 2016, which includes 84,103,251 shares of Class A Common Stock and 50,991,938 shares of Class B Common Stock outstanding as of April 26, 2016, as reported in the Issuer’s Quarterly Report on Form 10-Q, as filed with the Securities and Exchange Commission on May 3, 2016. With respect to matters upon which the Issuer's stockholders are entitled to vote, the holders of Class A Common Stock and Class B Common Stock vote together as a single class and each holder of Class A Common Stock is entitled to one vote per share and each holder of Class B Common Stock is entitled to two votes per share. The shares of Class A Common Stock and Class B Common Stock beneficially owned by the Reporting Person represent approximately 42.3% of the total voting power as of April 26, 2016.
|
Jerry Moyes, Vickie Moyes, the Jerry and Vickie Moyes Family Trust Dated 12/11/87, and Michael Moyes previously filed on Schedule 13G pursuant to the provisions of Rule 13d-1(d).
|
Item 1.
|
Security and Issuer.
|
Item 5.
|
Interest in Securities of the Issuer.
|
1.
|
Includes 84,103,251 shares of Class A Common Stock and 50,991,938 shares of Class B Common Stock outstanding as of April 26, 2016, as reported in the Issuer’s Quarterly Report on Form 10-Q filed May 3, 2016.
|
2.
|
The percentage indicated is based upon 135,095,189 shares outstanding as of April 26, 2016, which includes 84,103,251 shares of Class A Common Stock and 50,991,938 shares of Class B Common Stock outstanding as of April 26, 2016, as reported in the Issuer’s Quarterly Report on Form 10-Q, as filed with the Securities and Exchange Commission on May 3, 2016. With respect to matters upon which the Issuer's stockholders are entitled to vote, the holders of Class A Common Stock and Class B Common Stock vote together as a single class and each holder of Class A Common Stock is entitled to one vote per share and each holder of Class B Common Stock is entitled to two votes per share. The shares of Class A Common Stock and Class B Common Stock beneficially owned by the Reporting Person represent approximately 57.1% of the total voting power as of April 26, 2016.
|
3.
|
Includes 6,761,400 shares of Class A Common Stock beneficially owned by Cactus Holding II that have been sold to a counterparty pursuant to a Securities Sale and Repurchase Agreement with a full recourse obligation of Cactus Holding II to repurchase the securities at the same price on the second anniversary of sale. Cactus Holding II may voluntarily repurchase the shares at any time, and therefore the shares are deemed to be beneficially held under the provisions of Rule 13d-3. However, during the term of the transaction, Cactus Holding II will not have the right to vote or direct the disposition of the sold shares until the shares are repurchased. Also includes 219,597 shares of Class A Common Stock underlying stock options held by Mr. Moyes that are vested or exercisable within 60 days of this filing.
|
4.
|
Includes 3,840,077 shares of Class A Common Stock and 47,741,938 shares of Class B Common Stock.
Includes (i) shares held by Mr. and Mrs. Moyes as community property under the laws of the State of Arizona and over which they share voting and dispositive power, and (ii) shares held directly and indirectly by the Moyes Trust or entities controlled by the Moyes Trust (including Cactus Holding I, Cactus Holding II, M Capital I, and M Capital II) and over which Mr. and Mrs. Moyes, as co-trustees of the Moyes Trust, share voting and dispositive power. For further details, please refer to the beneficial ownership tables at the beginning of this Amendment.
As provided in the Issuer's Amended and Restated Certificate of Incorporation, each share of Class B Common Stock is convertible at any time, at the option of the holder, into one share of Class A Common Stock. In addition, each share of Class B Common Stock will convert automatically into one share of Class A Common Stock upon any transfer, whether or not for value, except for certain permitted transfers described in the Amended and Restated Certificate of Incorporation.
|
5.
|
Includes shares of Class B Common Stock held by M Capital I and M Capital II, over which the Reporting Person does not have voting or dispositive power. For further details, please refer to the beneficial ownership tables at the beginning of this Amendment.
|
Item 6.
|
Contracts, Arrangements, Understandings, or Relationships With Respect to Securities of the Issuer.
|
·
|
M Capital II terminated its variable prepaid forward contract (“VPF”) with Citibank, N.A. covering 12,294,016 shares of Class A Common Stock, and entered into a new VPF with Citigroup Global Markets Inc. covering the same number of shares of Class A Common Stock. The new VPF requires M Capital II to deliver a variable amount of Class A Common Stock, up to a maximum of 12,294,016 shares, or an equivalent amount of cash, upon maturity dates occurring on May 26 through May 31, 2017. The new VPF is collateralized by 12,294,016 shares of Class B Common Stock. Under the new VPF, M Capital II was entitled to receive $161,313,613.52, which was used to partially satisfy the $181,412,000 termination cost of its existing VPF (the “M Capital II Termination Payment”). The new VPF is governed by that certain Master Terms and Conditions for Prepaid Variable Share Forward Transactions and the Transaction 1 Supplemental Confirmation, which are attached hereto as Exhibits 99.9 and 99.10, respectively.
|
·
|
Cactus Holding I entered into a new VPF covering 7,005,984 shares of Class A Common Stock. The new VPF requires Cactus Holding I to deliver a variable amount of Class A Common Stock, up to a maximum of 7,005,984 shares, or an equivalent amount of cash, upon maturity dates occurring on May 26 through May 31, 2017. The new VPF is collateralized by an aggregate of 7,005,984 shares of Class A Common Stock and Class B Common Stock. In connection with this VPF, Cactus Holding II will transfer 7,005,984 shares to Cactus Holding I to be used as collateral. Under the new VPF, Cactus Holding I is entitled to receive an aggregate payment of $91,927,698, a portion of which was used to satisfy the remaining portion of the M Capital II Termination Payment and a portion of which was used to pay certain stock secured obligations, thereby releasing the shares to be used as collateral for this VPF. This new VPF is governed by that certain May 2016 Supplemental Confirmation, attached hereto as Exhibit 99.11.
|
·
|
Cactus Holding I and M Capital II amended and restated two VPFs covering 3,300,000 and 13,700,000 shares of Class A Common Stock, respectively, to extend the maturity dates from November 21 through November 23, 2016, to November 25, 2016. These amended and restated VPFs are governed by the Amended and Restated Supplemental Confirmation and Third Amended and Restated Transaction 1 Supplemental Confirmation, attached hereto as Exhibits 99.12 and 99.13, respectively.
|
·
|
Cactus Holding II amended its previously disclosed Securities Sale and Repurchase Agreement to extend the expiration date from May 30, 2016 to May 30, 2017 (the “Amendment”). The Amendment is governed by that certain Amendment to Repurchase Agreement, attached hereto as exhibit 99.14.
|
6.
|
Includes shares of Class B Common Stock held by M Capital I and M Capital II, over which the Reporting Person does not have voting or dispositive power. For further details, please refer to the beneficial ownership tables at the beginning of this Amendment.
|
Item 7.
|
Material to be Filed as Exhibits.
|
Exhibit 99.1
|
Joint Filing Agreement, dated October 7, 2013, by and among the Reporting Persons, incorporated by reference to Exhibit 1 of Schedule 13D/A filed with the Securities and Exchange Commission on October 8, 2013
|
|
Exhibit 99.2
|
Power of Attorney of M Capital Group Investors II, LLC, incorporated by reference to Exhibit 2 of Schedule 13D/A filed with the Securities and Exchange Commission on October 8, 2013
|
|
Exhibit 99.3
|
Power of Attorney of LynDee Moyes Nester, incorporated by reference to Exhibit 3 of Schedule 13D/A filed with the Securities and Exchange Commission on October 8, 2013
|
|
Exhibit 99.4
|
Power of Attorney of Cactus Holding Company, LLC, incorporated by reference to Exhibit 2 of Schedule 13D filed with the Securities and Exchange Commission on July 5, 2011
|
|
Exhibit 99.5
|
Power of Attorney of Cactus Holding Company II, LLC, incorporated by reference to Exhibit 3 of Schedule 13D filed with the Securities and Exchange Commission on July 5, 2011
|
|
Exhibit 99.6
|
Power of Attorney of M Capital Group Investors, LLC, incorporated by reference to Exhibit 4 of Schedule 13D filed with the Securities and Exchange Commission on July 5, 2011
|
|
Exhibit 99.7
|
Power of Attorney of Jerry Moyes, Vickie Moyes, and the Jerry and Vickie Moyes Family Trust, incorporated by reference to Exhibit 2 of Schedule 13G filed with the Securities and Exchange Commission on December 23, 2010.
|
|
Exhibit 99.8
|
Power of Attorney of Michael Moyes, incorporated by reference to Exhibit 3 of Schedule 13G filed with the Securities and Exchange Commission on December 23, 2010
|
|
Master Terms and Conditions for Prepaid Variable Share Forward Transactions between Citigroup Global Markets Inc. and M Capital Group Investors II, LLC, dated May 18, 2016.
|
||
Transaction 1 Supplemental Confirmation between Citigroup Global Markets Inc. and M Capital Group Investors II, LLC, dated May 18, 2016.
|
||
May 2016 Supplemental Confirmation between Citigroup Global Markets Inc. and Cactus Holding Company, LLC, dated May 18, 2016.
|
||
Amended and Restated Supplemental Confirmation between Citigroup Global Markets Inc. and Cactus Holding Company, LLC, dated May 18, 2016.
|
||
Third Amended and Restated Transaction 1 Supplemental Confirmation between Citibank, N.A. and M Capital Group Investors II, LLC, dated May 18, 2016.
|
||
Amendment to Repurchase Agreement between Cactus Holding Company II, LLC, and Citigroup Global Markets Limited, represented by Citigroup Global Markets Inc. as its agent, dated May 18, 2016.
|
JERRY MOYES, individually
|
|
/s/ Jerry Moyes, by Earl H. Scudder, attorney-in-fact, pursuant to a Power of Attorney previously filed
|
|
VICKIE MOYES, individually
|
|
/s/ Vickie Moyes, by Earl H. Scudder, attorney-in-fact, pursuant to a Power of Attorney previously filed
|
|
JERRY AND VICKIE MOYES FAMILY TRUST DATED 12/11/87, by Jerry Moyes, as co-trustee
|
|
/s/ Jerry Moyes, by Earl H. Scudder, attorney-in-fact, pursuant to a Power of Attorney previously filed
|
|
JERRY AND VICKIE MOYES FAMILY TRUST DATED 12/11/87, by Vickie Moyes, as co-trustee
|
|
/s/ Vickie Moyes, by Earl H. Scudder, attorney-in-fact, pursuant to a Power of Attorney previously filed
|
|
CACTUS HOLDING COMPANY II, LLC, by Vickie Moyes, as co-trustee of the Jerry and Vickie Moyes Family Trust, its Manager
|
|
/s/ Vickie Moyes, by Earl H. Scudder, attorney-in-fact, pursuant to a Power of Attorney previously filed
|
|
M CAPITAL GROUP INVESTORS, LLC, by Jerry Moyes, as co-trustee of the Jerry and Vickie Moyes Family Trust, its Manager
|
|
/s/ Jerry Moyes, by Earl H. Scudder, attorney-in-fact, pursuant to a Power of Attorney previously filed
|
|
CACTUS HOLDING COMPANY, LLC, by Vickie Moyes, as co-trustee of the Jerry and Vickie Moyes Family Trust, its Manager
|
|
/s/ Vickie Moyes, by Earl H. Scudder, attorney-in-fact, pursuant to a Power of Attorney previously filed
|
M CAPITAL GROUP INVESTORS II, LLC, by Jerry Moyes, as co-trustee of the Jerry and Vickie Moyes Family Trust, its Manager
|
|
/s/ Jerry Moyes, by Earl H. Scudder, attorney-in-fact, pursuant to a Power of Attorney previously filed
|
|
MICHAEL MOYES, individually
|
|
/s/ Michael Moyes, by Earl H. Scudder, attorney-in-fact, pursuant to a Power of Attorney previously filed
|
|
LYNDEE MOYES NESTER, individually
|
|
/s/ LynDee Moyes Nester, by Earl H. Scudder, attorney-in-fact, pursuant to a Power of Attorney previously filed
|
|
Trade Date:
|
For each Transaction, as set forth in the related Supplemental Confirmation.
|
|
Seller:
|
Counterparty.
|
|
Buyer:
|
CGMI.
|
|
Shares:
|
The Class A common stock, par value $0.01 per share, of Swift Transportation Company (the “Issuer”).
|
|
Components:
|
Each Transaction shall be divided into individual Components, each with the terms set forth in this Master Confirmation and the related Supplemental Confirmation, and in particular with the Number of Shares and Scheduled Valuation Dates set forth in the related Supplemental Confirmation. The payments and deliveries to be made upon settlement of each Transaction will be determined separately for each Component as if each Component were a separate Transaction under the Agreement.
|
|
Number of Shares:
|
For each Component, as set forth in the related Supplemental Confirmation.
|
|
Prepayment:
|
Applicable, as set forth in the related Supplemental Confirmation.
|
|
Variable Obligation:
|
Applicable.
|
|
Forward Floor Price:
|
For each Transaction, as set forth in the related Supplemental Confirmation.
|
|
Forward Cap Price:
|
For each Transaction, as set forth in the related Supplemental Confirmation.
|
|
Exchange:
|
New York Stock Exchange.
|
|
Related Exchange(s):
|
All Exchanges.
|
|
Valuation Dates:
|
As set forth in the related Supplemental Confirmation (or, if such date is not a Scheduled Trading Day, the next following Scheduled Trading Day that is not already a Valuation Date for another Component under any Transaction); provided that, if that date is a Disrupted Day, the Valuation Date for such Component shall be the first succeeding Scheduled Trading Day that is not a Disrupted Day and that is not or is not deemed to be a Valuation Date in respect of any other Component under any Transaction; provided, further, that if the Valuation Date for any Component has not occurred pursuant to the preceding proviso as of the Final Disruption Date for such Transaction, the Final Disruption Date shall be the Valuation Date for such Component (irrespective of whether such day is a Valuation Date in respect of any other Component) and the Settlement Price for the Final Disruption Date shall be determined by the Calculation Agent in a commercially reasonable manner. Notwithstanding the
|
|
Final Disruption Date:
|
For each Transaction, as set forth in the related Supplemental Confirmation.
|
|
Market Disruption Event:
|
The definition of “Market Disruption Event” in Section 6.3(a) of the Equity Definitions is hereby amended by replacing the words “at any time during the one-hour period that ends at the relevant Valuation Time, Latest Exercise Time, Knock-in Valuation Time or Knock-out Valuation Time” with the words “at any time on any Scheduled Trading Day that otherwise would be a Valuation Date” and replacing the words “(iii) an Early Closure” with “(iii) an Early Closure that the Calculation Agent determines is material”.
|
|
Section 6.3(d) of the Equity Definitions is hereby amended by deleting the remainder of the provision following the term “Scheduled Closing Time” in the fourth line thereof.
|
|
Settlement Method Election:
|
Applicable; provided that (i) if Counterparty wishes to elect that Cash Settlement apply to some Components and Physical Settlement apply to the other Components, it shall notify CGMI of the number of Components to which Cash Settlement shall apply and whether Cash Settlement shall apply to (a) that number of consecutive Components starting with the first Component or (b) that number of consecutive Components ending with the last Component and (ii) Counterparty shall be entitled to elect Physical Settlement for any Component only if the “Conditions to Physical Settlement” below are satisfied or waived by CGMI prior to the first Scheduled Valuation Date of any Component of such Transaction to which Physical Settlement is applicable (and, if such conditions are not satisfied or waived, Cash Settlement shall apply notwithstanding any election by Counterparty).
|
|
Electing Party:
|
Counterparty.
|
|
Settlement Method Election
Date: |
For each Transaction and for all Components of such Transaction, the date that is twenty Scheduled Trading Days before the first Scheduled Valuation Date of any Component of such Transaction.
|
|
Default Settlement Method:
|
Cash Settlement.
|
|
Conditions to
|
|
|
Physical Settlement:
|
Counterparty shall be entitled to elect Physical Settlement in whole or in part only if Counterparty shall have caused each of the following conditions to be satisfied to CGMI’s satisfaction or CGMI has waived such conditions:
|
|
Settlement Currency:
|
USD (as defined in the 2006 ISDA Definitions).
|
|
Settlement Price:
|
The volume-weighted average price per Share on the New York Stock Exchange on the relevant Valuation Date, as reasonably determined by the Calculation Agent by reference to the Bloomberg Page “SWFT.N <equity> AQR_SEC <Go>” (or any successor page thereto); provided that, if such price is not so reported for any reason or is, in the Calculation Agent’s reasonable discretion, erroneous, the Settlement Price shall be determined by the Calculation Agent in good faith and a commercially reasonable manner.
|
|
Settlement Date:
|
The date that is one Settlement Cycle immediately following the Valuation Date for such Component (or, if such date is not a Clearance System Business Day, the next following Clearance System Business Day).
|
|
Cash Settlement
|
|
Payment Date:
|
The date that is one Settlement Cycle immediately following the Valuation Date for such Component (or, if such date is not a Currency Business Day, the immediately following Currency Business Day).
|
|
Method of Adjustment:
|
Calculation Agent Adjustment; provided that the following events shall not be considered to have a diluting or concentrative effect on the theoretical value of the relevant Shares: (i) an offering of Shares by the Issuer for cash, in an underwritten transaction approved by the Issuer’s board of directors or an appropriate committee thereof, at or near the market trading price for the Shares as of the time of such offering; (ii) the acquisition of any equity interest in or assets of a business by the Issuer or a subsidiary of the Issuer, in a transaction approved by the Issuer’s board of directors or an appropriate committee thereof, in which the consideration paid by the Issuer in connection with such acquisition consists of, in whole or in part, the Shares; and (iii) the redemption of Swift Services Holdings, Inc.’s 10.000% Senior Second Priority Secured Notes due 2018 (the “Notes”) pursuant to Article 3 of the Indenture dated as of December 21, 2010 governing such Notes as of the Trade Date.
|
|
Dividend Adjustments:
|
If at any time during the period from, but excluding, the Trade Date to, and including, a Valuation Date, an ex-dividend date for a dividend or distribution occurs with respect to the Shares (whether cash or non-cash and including any spin-off or other similar transaction) (a “Relevant Distribution”), then, except as provided in the next sentence, the Calculation Agent will adjust one or more of the Forward Floor Price, the Forward Cap Price, the Number of Shares or any other variable relevant to the valuation, settlement, payment or other terms of such Component to reflect the impact of such dividend or distribution on the theoretical value of such Component. In the case of a Relevant Distribution that the Calculation Agent determines is an ordinary, quarterly cash dividend, Counterparty may elect, by written notice to CGMI no later than the fifth Scheduled Trading Day immediately preceding the ex-dividend date for such Relevant Distribution, that, in lieu of the adjustment provided in the preceding sentence, Counterparty shall pay CGMI, on the date such Relevant Distribution is paid by the Issuer, an amount equal to the amount of such Relevant Distribution multiplied by the aggregate Number of Shares underlying each Transaction on the relevant ex-dividend date.
|
|
New Shares:
|
In the definition of New Shares in Section 12.1(i) of the Equity Definitions, (i) the text in clause (i) thereof shall be deleted in its entirety and replaced with “publicly quoted, traded or listed on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors),” and (ii) the
|
|
following phrase shall be inserted at the end thereof: “and (iii) in the case of a Merger Event, of an entity or person that is a corporation organized under the laws of the United States, any State thereof or the District of Columbia”.
|
|
Announcement Event:
|
If an Announcement Date occurs in respect of any event or transaction that would, if consummated, lead to a Merger Event (for the avoidance of doubt, determined without regard to the language in the definition of “Merger Event” following the definition of “Reverse Merger” therein) or a Tender Offer (such occurrence, an “Announcement Event”), as determined by the Calculation Agent, then the “Consequences of Announcement Event” set forth below shall apply in respect of such Announcement Event.
|
|
Announcement Date:
|
The definition of “Announcement Date” in Section 12.1(l) of the Equity Definitions is hereby amended by (i) replacing the words “a firm” with the word “any” in the second and fourth lines thereof, (ii) replacing the word “leads to the” with the words “would, if consummated, lead to a” in the third and the fifth lines thereof, (iii) replacing the words “voting shares” with the word “Shares” in the fifth line thereof, (iv) inserting the words “by any entity” after the word “announcement” in the second and the fourth lines thereof and (v) inserting the words “, as determined by the Calculation Agent, or any subsequent public announcement of a change to such transaction or intention” at the end of each of clauses (i) and (ii) thereof.
|
|
Consequences of Announcement
|
|
Event:
|
With respect to any Announcement Event, the Calculation Agent will determine the economic effect of such Announcement Event on the theoretical value of each Component of the Transaction (including without limitation any change in volatility, expected dividends or liquidity relevant to the Shares or to the Transaction) from the Announcement Date to the Valuation Date or earlier date of termination for such Component and, if such economic effect is material, (i) the Calculation Agent will adjust the terms of such Component to reflect such economic effect to CGMI and determine the effective date of such adjustment or (ii) if the Calculation Agent determines, on or after the Announcement Date, that no adjustment it could make under clause (i) above is likely to produce a commercially reasonable result, notify the parties that such Component of the Transaction will be terminated, in which case the amount payable upon such termination will be determined by CGMI pursuant to the terms of this Master Confirmation as if such Announcement Event were an Extraordinary Event to which Cancellation and Payment were applicable. For the avoidance of doubt, any such adjustment shall be without prejudice to the application of the provisions set forth in the preceding sentence, “Consequences of Merger Events” and/or “Consequences of Tender Offers” with respect to any other Announcement Date in respect of the same event or transaction, or, if the related Merger Date or Tender Offer Date occurs on or prior to the Valuation Date or earlier date of termination for such Component, with respect to the related Merger Event or Tender Offer; provided that any such adjustment shall be taken into account by the Calculation Agent or the Determining Party, as the case may be, in determining any subsequent adjustment to the terms of the Transaction, or in subsequently determining any Cancellation Amount or an Early Termination Amount,
|
|
as the case may be, on account of any related Announcement Date, Merger Event or Tender Offer.
|
|
Consequences of Merger Events:
|
|
(a) Share-for-Share:
|
Modified Calculation Agent Adjustment.
|
|
(b) Share-for-Other:
|
Cancellation and Payment.
|
|
(c) Share-for-Combined:
|
Component Adjustment.
|
|
Tender Offer:
|
Applicable; provided, however, that the definitions of “Tender Offer” and “Tender Offer Date” in Section 12.1 of the Equity Definitions are each hereby amended by replacing the words “voting shares” with the word “Shares”.
|
|
Consequences of Tender Offers:
|
|
|
(a) Share-for-Share:
|
Modified Calculation Agent Adjustment.
|
|
(b) Share-for-Other:
|
Cancellation and Payment.
|
|
(c) Share-for-Combined:
|
Component Adjustment. |
|
Composition of Combined
|
|
Consideration:
|
Not Applicable; provided that, notwithstanding Sections 12.1 and 12.5(b) of the Equity Definitions, to the extent that the composition of the consideration for the relevant Shares pursuant to a Tender Offer or Merger Event could be determined by a holder of the Shares, the Calculation Agent will determine such composition.
|
|
Nationalization, Insolvency
|
|
|
or Delisting:
|
Cancellation and Payment; provided that, in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it shall also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors).
|
|
Change in Law:
|
Applicable; provided that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) replacing the phrase “the interpretation” in the third line thereof with the phrase “or announcement or statement of the formal or informal interpretation”, (ii) deleting the words “a party to such Transaction” in the fifth line thereof and replacing them with the words “CGMI”, (iii) replacing the word “Shares” with “Hedge Positions” in the sixth line thereof, (iv) immediately following the word “Transaction” in clause (X) thereof, adding the phrase “in the manner contemplated by the Hedging Party on the Trade Date”, and (iv) deleting clause (Y) thereof; provided, further, that any determination as to whether (i) the adoption of or any change in any applicable law or regulation (including, for the avoidance of doubt and without limitation, (A) any tax law or (B) adoption or promulgation of new regulations authorized or mandated by existing statute) or (ii) the promulgation of or any change in the
|
|
interpretation by any court, tribunal or regulatory authority with competent jurisdiction of any applicable law or regulation (including any action taken by a taxing authority), in each case, constitutes a “Change in Law” shall be made without regard to Section 739 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 or any similar legal certainty provision in any legislation enacted, or rule or regulation promulgated, on or after the Trade Date. |
|
Insolvency Filing: | Applicable. |
|
Hedging Party:
|
For all applicable Additional Disruption Events, CGMI.
|
Determining Party:
|
For all applicable Extraordinary Events, CGMI. |
Non-Reliance:
|
Applicable.
|
Regarding Hedging Activities:
|
Applicable.
|
Additional Acknowledgments:
|
Applicable.
|
Party
required to
deliver
|
Form/Document/Certificate
|
Date by which to be
delivered
|
Covered by
Section 3(d)
Representation
|
Counterparty
|
Evidence of authority and specimen signatures of signatories of Counterparty and each Credit Support Provider
|
Upon or promptly following execution of this Master Confirmation
|
Yes
|
Counterparty
|
Resolutions or other documents evidencing authority of Counterparty and each Credit Support Provider to enter into this Master Confirmation, each Supplemental Confirmation and Transaction hereunder and the Credit Support Documents
|
Upon or promptly following execution of this Master Confirmation
|
Yes
|
Party
required to
deliver
|
Form/Document/Certificate
|
Date by which to be
delivered
|
Covered by
Section 3(d)
Representation
|
Counterparty
|
Copies of all organizational documents of Counterparty (including the Operating Agreement) and, if applicable, each Credit Support Provider
|
Upon or promptly following execution of this Master Confirmation
|
Yes
|
Counterparty
|
New York Process Agent Letter
|
Upon or promptly following execution of this Master Confirmation
|
Yes
|
communications to Counterparty:
|
M Capital Group Investors II, LLC
|
Yours sincerely,
|
|||||
CITIGROUP GLOBAL MARKETS INC.
|
|||||
By:
|
/s/ James Heathcote
|
||||
Authorized Representative
|
|||||
James Heathcote
|
|||||
Confirmed as of the date first above written:
|
|||||
M CAPITAL GROUP INVESTORS II, LLC
|
|||||
By:
|
Jerry And Vickie Moyes Family Trust, its Manager
|
||||
By:
|
/s/ Jerry C. Moyes
|
||||
Name:
|
Jerry C. Moyes
|
||||
Title:
|
Co-Trustee of the Manager
|
||||
By:
|
/s/ Vickie Moyes
|
||||
Name:
|
Vickie Moyes
|
||||
Title:
|
Co-Trustee of the Manager
|
[Signature Page to M Capital II CGMI Master
Confirmation]
|
Trade Date:
|
[_________, 20__]
|
Prepayment Date:
|
[_________, 20__]
|
Prepayment Amount:
|
[__]
|
Forward Floor Price:
|
[__]
|
Forward Cap Price:
|
[__]
|
Final Disruption Date:
|
[_________, 20__]
|
Component Number
|
Scheduled Valuation Date
|
Number of Shares
|
1
|
[ ]
|
[ ]
|
2
|
[ ]
|
[ ]
|
3
|
[ ]
|
[ ]
|
Yours sincerely,
|
|||||
CITIGROUP GLOBAL MARKETS INC.
|
|||||
By:
|
|||||
Authorized Representative
|
|||||
Confirmed as of the date first above written:
|
|||||
M CAPITAL GROUP INVESTORS II, LLC
|
|||||
By:
|
Jerry And Vickie Moyes Family Trust, its Manager
|
||||
By:
|
|||||
Name:
|
Jerry C. Moyes
|
||||
Title:
|
Co-Trustee of the Manager
|
||||
By:
|
|||||
Name:
|
Vickie Moyes
|
||||
Title:
|
Co-Trustee of the Manager
|
Date: | May 18, 2016 |
To: | M Capital Group Investors II, LLC |
2200 South 75th Avenue | |
Phoenix, AZ 85043 | |
Attn: | Chad Killebrew and Vicki Plein |
From: | Citigroup Global Markets Inc. |
Fax No.: | 212-615-8985 |
Trade Date:
|
May 18, 2016
|
Prepayment Date:
|
May 19, 2016; provided that Counterparty authorizes and directs CGMI to pay the Prepayment Amount Counterparty is entitled to receive to Citibank, N.A. on Counterparty’s behalf.
|
Prepayment Amount:
|
USD 161,313,613.52
|
Initial Reference Price:
|
USD 14.7265
|
Forward Floor Price:
|
USD 14.7265
|
Forward Cap Price:
|
USD 17.6718
|
Final Disruption Date:
|
June 14, 2017
|
Component Number
|
Scheduled Valuation Date
|
Number of Shares
|
1
|
5/26/2017
|
4,098,005
|
2
|
5/30/2017
|
4,098,005
|
3
|
5/31/2017
|
4,098,006
|
|
Yours sincerely,
|
|
CITIGROUP GLOBAL MARKETS INC.
|
|
By:
|
/s/ James Heathcote |
|
Authorized Representative
|
|
|
James Heathcote |
|
Date:
|
May 18, 2016
|
To:
|
Cactus Holding Company, LLC
2200 South 75th Avenue
Phoenix, AZ 85043
|
Attn:
|
Chad Killebrew and Vicki Plein
|
From:
|
Citigroup Global Markets Inc.
|
Fax No.:
|
212-615-8985
|
Trade Date:
|
May 18, 2016
|
Initial Prepayment Amount:
|
USD 58,353,518.32. Counterparty directs, and CGMI agrees to pay, the Initial Prepayment Amount to the Collateral Account (as defined in the Pledge Agreement) and from there in accordance with the terms of the May 2016 Irrevocable Instruction Letter dated as of May 18, 2016 between CGMI, Cactus Holding Company II, LLC and Deutsche Bank Trust Company Americas.
|
Second Prepayment Date:
|
The Currency Business Day following the Trade Date.
|
Second Prepayment Amount:
|
USD 20,098,386.48. Counterparty directs, and CGMI agrees to pay, the Second Prepayment Amount to Citibank, N.A. on the Second Prepayment Date.
|
Third Prepayment Date:
|
The Currency Business Day following the first date on which CGMI shall have received as additional “Collateral” under and in accordance with the terms of the Security Agreement an aggregate number of “Class A Shares” in book-entry form through the Clearance System and “Class B Shares” in certificated form in the name of Counterparty that equals the Number of Shares under this Transaction.
|
Third Prepayment Amount:
|
USD 13,475,793.63. CGMI shall pay the Third Prepayment Amount to Counterparty on the Third Prepayment Date.
|
Reference Price:
|
USD 14.7265
|
Forward Floor Price:
|
USD 14.7265
|
Forward Cap Price:
|
USD 17.6718
|
Final Disruption Date:
|
June 14, 2017
|
Component Number
|
Scheduled Valuation Date
|
Number of Shares
|
1
|
5/26/2017
|
2,335,328
|
2
|
5/30/2017
|
2,335,328
|
3
|
5/31/2017
|
2,335,328
|
|
Settlement Method Election:
|
Applicable; provided that (i) if Counterparty wishes to elect that Cash Settlement apply to some Components and Physical Settlement apply to the other Components, it shall notify CGMI of the number of Components to which Cash Settlement shall apply and whether Cash Settlement shall apply to (a) that number of consecutive Components starting with the first Component or (b) that number of consecutive Components ending with the last Component and (ii) Counterparty shall be entitled to elect Physical Settlement for any Component only if the “Conditions to Physical Settlement” below are satisfied or waived by CGMI prior to the first Scheduled Valuation Date of any Component of such Transaction to which Physical Settlement is applicable (and, if such conditions are not satisfied or waived, Cash Settlement shall apply notwithstanding any election by Counterparty).
|
|
Electing Party:
|
Counterparty.
|
|
Physical Settlement:
|
Counterparty shall be entitled to elect Physical Settlement in whole or in part only if Counterparty shall have caused each of the following conditions to be satisfied to CGMI’s satisfaction or CGMI has waived such conditions:
|
|
Yours sincerely,
|
|
CITIGROUP GLOBAL MARKETS INC.
|
|
By:
|
/s/ James Heathcote |
|
Authorized Representative
|
James Heathcote
|
Date:
|
May 18, 2016
|
To:
|
Cactus Holding Company, LLC
2200 South 75th Avenue
Phoenix, AZ 85043
|
Attn:
|
Chad Killebrew and Vicki Plein
|
From:
|
Citigroup Global Markets Inc.
|
Fax No.:
|
212-615-8985
|
Trade Date:
|
October 30, 2015
|
Amendment and Restatement Date:
|
May 18, 2016
|
Prepayment Date:
|
The later of (i) the Trade Date and (ii) the first date on which all of the conditions to effectiveness set forth in the Master Confirmation have been satisfied or waived, as determined by CGMI in its reasonable discretion; provided that if CGMI determines, in its reasonable discretion, that it is impracticable for CGMI to deliver the Prepayment Amount by close of business on such date, the Prepayment Date shall be the Currency Business Day immediately following such date. CGMI shall be deemed to have satisfied its obligation to deliver the Prepayment Amount to Counterparty upon the wiring of the Prepayment Amount to an account in the name of Cactus Holding Company II, LLC in accordance with the wire instructions provided by Counterparty.
|
Prepayment Amount:
|
USD 48,300,000
|
Letter Agreement Reference Price:
|
USD 15.0205
|
Forward Floor Price:
|
USD 22.00
|
Forward Cap Price:
|
USD 26.40
|
Final Disruption Date:
|
December 9, 2016
|
Component Number
|
Scheduled Valuation Date
|
Number of Shares
|
1
|
11/25/2016
|
3,300,000
|
|
Yours sincerely,
|
|
CITIGROUP GLOBAL MARKETS INC.
|
|
By:
|
/s/ James Heathcote |
|
Authorized Representative
|
|
|
James Heathcote |
Date:
|
May 18, 2016
|
To:
|
M Capital Group Investors II, LLC
2200 South 75th Avenue
Phoenix, AZ 85043
|
Attn:
|
Chad Killebrew and Vicki Plein
|
From:
|
Citibank, N.A.
|
Fax No.:
|
212-615-8985
|
Trade Date:
|
October 29, 2013
|
Amendment and Restatement Date:
|
May 18, 2016
|
Initial Exchange Date:
|
October 29, 2013
|
Counterparty Initial Payment Amount:
|
An amount in USD equal to (i) the aggregate Number of Shares for all Components multiplied by (ii) the Forward Floor Price for the Original Transaction multiplied by (iii) the Initial Amount Factor. Counterparty shall pay the Counterparty Initial Payment Amount to Citibank on the Initial Exchange Date.
|
Citibank Initial Delivery Amount:
|
9,732,894 Shares. Citibank shall deliver the Citibank Initial Delivery Amount to Counterparty on the Initial Exchange Date. Section 9.4 of the Equity Definitions shall apply to such delivery date as if it were a Settlement Date.
|
Citibank Initial Payment Amount:
|
An amount in USD equal to (i) the aggregate Number of Shares for all Components multiplied by (ii) the Forward Floor Price for the Original Transaction multiplied by (iii) the Initial Amount Factor. Citibank shall pay the Citibank Initial Payment Amount to Counterparty on the Initial Exchange Date.
|
Initial Amount Factor:
|
80.9890%
|
Initial Reference Price:
|
USD 22.54
|
Forward Floor Price:
|
USD 22.00
|
Forward Cap Price:
|
USD 26.40
|
Cap Ratio:
|
Not Applicable
|
Final Disruption Date:
|
December 9, 2016
|
Counterparty Second Amendment Payment Amount:
|
USD 18,500,000
|
Counterparty Second Amendment Payment Date:
|
The Second Amendment and Restatement Date; provided that, if Citibank determines, in its reasonable discretion, that it is impracticable for Counterparty to deliver the Counterparty Second Amendment Payment Amount by close of business on the Second Amendment and Restatement Date, then the Counterparty Second Amendment Payment Date shall be the Currency Business Day immediately following the Second Amendment and Restatement Date.
|
Letter Agreement Reference Price:
|
USD 15.0205
|
Component Number
|
Scheduled Valuation Date
|
Number of Shares
|
1
|
11/25/2016
|
13,700,000
|
|
Yours sincerely,
|
|
CITIBANK, N.A.
|
|
By:
|
/s/ James Heathcote |
|
Authorized Representative
|
|
|
James Heathcote |
1.
|
Cactus II and CGML have entered into a Securities Sale and Repurchase Agreement, dated as of May 30, 2014, between CGML, represented by CGMI as its agent, as amended by the Amended & Restated Swift Transportation Company Prepaid Variable Share Forward Commitment Letter, Waiver and Amendment Agreement, dated as of October 7, 2015, between Cactus II, CGML, represented by CGMI as agent, Jerry C. Moyes, Cactus Holding Company, LLC, M Capital Group Investors II, LLC and Citibank, N.A. (as amended, the “Repurchase Agreement”); and
|
2.
|
Cactus II and CGML have agreed to amend certain provisions of the Repurchase Agreement, upon the following terms and conditions.
|
1.
|
Amendments to Repurchase Agreement. CGMI, as agent for CGML, and Cactus II hereby agree to amend the Repurchase Agreement as follows:
|
2.
|
Return of Valuation Additional Assets. Pursuant to Section 4.2(b) of the Repurchase Agreement, Seller requests that Buyer transfer cash to Cactus II in an amount equal to USD 3,541,548.79. Cactus II authorizes and directs Buyer to pay such amount through Buyer’s Agent on Seller’s behalf to Deutsche Bank Trust Company Americas in accordance with the terms of the May 2016 Irrevocable Instruction Letter dated May 18, 2016 by and among Cactus II, Deutsche Bank Trust Company Americas and CGMI.
|
3.
|
Representations. Cactus II represents to CGML that:
|
4.
|
Continuing Effect. Except as expressly amended by this Amendment, the Repurchase Agreement and the other Transaction Documents remain in full force and effect in accordance with their terms, and are hereby in all respects ratified and confirmed. All references to the Repurchase Agreement in the Repurchase Agreement or any document related thereto shall for all purposes constitute references to the Repurchase Agreement as amended hereby.
|
5.
|
Incorporation by Reference. Sections 4.3, 11, 12, 13, 17, 18, 19, 21 and 22 of the Repurchase Agreement shall apply to this Amendment mutatis mutandis.
|
CACTUS HOLDING COMPANY II, LLC
|
||
By: Jerry and Vickie Moyes Family Trust, its Manager
|
||
By:
|
/s/ Jerry C. Moyes
|
|
Name:
|
Jerry C. Moyes
|
|
Title:
|
Co-Trustee of the Manager
|
|
By:
|
/s/ Vickie Moyes
|
|
Name:
|
Vickie Moyes
|
|
Title:
|
Co-Trustee of the Manager
|
|
CITIGROUP GLOBAL MARKETS INC., as agent for
CITIGROUP GLOBAL MARKETS LIMITED
|
||
By:
|
/s/ James Heathcote
|
|
Name:
|
James Heathcote
|
|
Title:
|
Authorized Signatory
|