0001008886-16-000399.txt : 20161122 0001008886-16-000399.hdr.sgml : 20161122 20161122153158 ACCESSION NUMBER: 0001008886-16-000399 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20161122 DATE AS OF CHANGE: 20161122 GROUP MEMBERS: CACTUS HOLDING CO II, LLC GROUP MEMBERS: CACTUS HOLDING COMPANY, LLC GROUP MEMBERS: JERRY & VICKIE MOYES FAMILY TRUST GROUP MEMBERS: JERRY MOYES GROUP MEMBERS: LYNDEE MOYES NESTER GROUP MEMBERS: M CAPITAL GROUP INVESTORS II, LLC GROUP MEMBERS: M CAPITAL GROUP INVESTORS, LLC GROUP MEMBERS: MICHAEL MOYES GROUP MEMBERS: VICKIE MOYES SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: SWIFT TRANSPORTATION Co CENTRAL INDEX KEY: 0001492691 STANDARD INDUSTRIAL CLASSIFICATION: TRUCKING (NO LOCAL) [4213] IRS NUMBER: 205589597 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-85833 FILM NUMBER: 162013086 BUSINESS ADDRESS: STREET 1: 2200 SOUTH 75TH AVENUE CITY: PHOENIX STATE: AZ ZIP: 85043 BUSINESS PHONE: 602-269-9700 MAIL ADDRESS: STREET 1: 2200 SOUTH 75TH AVENUE CITY: PHOENIX STATE: AZ ZIP: 85043 FORMER COMPANY: FORMER CONFORMED NAME: SWIFT TRANSPORTATION CO DATE OF NAME CHANGE: 20101209 FORMER COMPANY: FORMER CONFORMED NAME: SWIFT TRANSPORTATION Co DATE OF NAME CHANGE: 20101129 FORMER COMPANY: FORMER CONFORMED NAME: SWIFT HOLDINGS CORP. DATE OF NAME CHANGE: 20100524 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MOYES JERRY CENTRAL INDEX KEY: 0000901736 FILING VALUES: FORM TYPE: SC 13D/A MAIL ADDRESS: STREET 1: SWIFT TRANSPORTATION COMPANY STREET 2: 2200 SOUTH 75TH AVENUE CITY: PHOENIX STATE: AZ ZIP: 85043 SC 13D/A 1 schedule13da.htm SCHEDULE 13D/A

 
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

SCHEDULE 13D/A
(Rule 13d-101)

Under the Securities Exchange Act of 1934
(Amendment No. 10)

SWIFT TRANSPORTATION COMPANY
__________________________________________________________________________________
(Name of Issuer)

CLASS A COMMON STOCK, PAR VALUE $0.01 PER SHARE
__________________________________________________________________________________
(Title of Class of Securities)

87074U101
__________________________________________________________________________________
(CUSIP Number)

Jerry and Vickie Moyes
P.O. Box 1397
Tolleson, Arizona 85353
Telephone:  (623) 907-7388
Facsimile:  (602) 275-6417
__________________________________________________________________________________
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

With a copy to:

Earl Scudder & Chris Kortum
Scudder Law Firm, P.C., L.L.O.
411 South 13th Street, 2nd Floor
Lincoln, NE 68508

November 18, 2016
__________________________________________________________________________________
(Date of Event Which Requires Filing of this Statement)
 
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. [  ]
 
The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934, as amended (the "Exchange Act") or otherwise subject to the liabilities of that section of the Exchange Act but shall be subject to all other provisions of the Exchange Act (however, see the Notes).
 


CUSIP NO.:  87074U101

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
51,417,690(1)
 
 
9.
Sole Dispositive Power
0
 
 
10.
Shared Dispositive Power
51,417,690 (1)
 
11.
Aggregate Amount Beneficially Owned by Each Reporting Person
58,398,687(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)
44.1%(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, 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 132,371,923 shares outstanding as of October 25, 2016, which includes 82,629,985 shares of Class A Common Stock and 49,741,938 shares of Class B Common Stock outstanding as of October 25, 2016, as reported in the Issuer’s Quarterly Report on Form 10-Q, as filed with the Securities and Exchange Commission on November 1, 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 58.2% of the total voting power as of October 25, 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
51,417,690 (1)
 
 
9.
Sole Dispositive Power
0
 
 
10.
Shared Dispositive Power
51,417,690 (1)
 
11.
Aggregate Amount Beneficially Owned by Each Reporting Person
58,398,697(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)
44.1%(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 132,371,923 shares outstanding as of October 25, 2016, which includes 82,629,985 shares of Class A Common Stock and 49,741,938 shares of Class B Common Stock outstanding as of October 25, 2016, as reported in the Issuer’s Quarterly Report on Form 10-Q, as filed with the Securities and Exchange Commission on November 1, 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 58.2% of the total voting power as of October 25, 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
51,382,015 (1)
 
8.
Shared Voting Power
0
 
 
9.
Sole Dispositive Power
51,382,015 (1)
 
 
10.
Shared Dispositive Power
0
 
11.
Aggregate Amount Beneficially Owned by Each Reporting Person
58,143,415(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)
43.9%(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 132,371,923 shares outstanding as of October 25, 2016, which includes 82,629,985 shares of Class A Common Stock and 49,741,938 shares of Class B Common Stock outstanding as of October 25, 2016, as reported in the Issuer’s Quarterly Report on Form 10-Q, as filed with the Securities and Exchange Commission on November 1, 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 58.1% of the total voting power as of October 25, 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
4,267,323(1)
 
8.
Shared Voting Power
0
 
 
9.
Sole Dispositive Power
4,267,323(1)
 
 
10.
Shared Dispositive Power
0
 
11.
Aggregate Amount Beneficially Owned by Each Reporting Person
47,547,756(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)
35.9%(3)
 
14.
Type of Reporting Person (See Instructions)
OO
 

(1)
Includes 2,378,252 shares of Class B Common Stock and 1,889,071 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 8,354,978 and 26,213,049 shares of Class B Common Stock held by Cactus Holding I and M Capital II, respectively, as well as 1,951,006 shares of Class A Common Stock held by Cactus Holding I.  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 132,371,923 shares outstanding as of October 25, 2016, which includes 82,629,985 shares of Class A Common Stock and 49,741,938 shares of Class B Common Stock outstanding as of October 25, 2016, as reported in the Issuer’s Quarterly Report on Form 10-Q, as filed with the Securities and Exchange Commission on November 1, 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 46.4% of the total voting power as of October 25, 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
10,595,659(1)
 
8.
Shared Voting Power
0
 
 
9.
Sole Dispositive Power
10,595,659 (1)
 
 
10.
Shared Dispositive Power
0
 
11.
Aggregate Amount Beneficially Owned by Each Reporting Person
10,595,659 (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)
8.0%(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 132,371,923 shares outstanding as of October 25, 2016, which includes 82,629,985 shares of Class A Common Stock and 49,741,938 shares of Class B Common Stock outstanding as of October 25, 2016, as reported in the Issuer’s Quarterly Report on Form 10-Q, as filed with the Securities and Exchange Commission on November 1, 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 11.6% of the total voting power as of October 25, 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
10,305,984(1)
 
8.
Shared Voting Power
0
 
 
9.
Sole Dispositive Power
10,305,984 (1)
 
 
10.
Shared Dispositive Power
0
 
11.
Aggregate Amount Beneficially Owned by Each Reporting Person
58,143,415(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)
43.9%(3)
 
14.
Type of Reporting Person (See Instructions)
OO
 

(1)
Includes 1,951,006 shares of Class A Common Stock and 8,354,978 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 10,595,659 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) 1,889,071 shares of Class A Common Stock and 2,378,252 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 132,371,923 shares outstanding as of October 25, 2016, which includes 82,629,985 shares of Class A Common Stock and 49,741,938 shares of Class B Common Stock outstanding as of October 25, 2016, as reported in the Issuer’s Quarterly Report on Form 10-Q, as filed with the Securities and Exchange Commission on November 1, 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 58.0% of the total voting power as of October 25, 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
47,547,756(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)
35.9%(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) 1,889,071 shares of Class A Common Stock and 2,378,252 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) 1,951,006 shares of Class A Common Stock and 8,354,978 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 132,371,923 shares outstanding as of October 25, 2016, which includes 82,629,985 shares of Class A Common Stock and 49,741,938 shares of Class B Common Stock outstanding as of October 25, 2016, as reported in the Issuer’s Quarterly Report on Form 10-Q, as filed with the Securities and Exchange Commission on November 1, 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 46.4% of the total voting power as of October 25, 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
550,000
 
8.
Shared Voting Power
0
 
 
9.
Sole Dispositive Power
550,000
 
 
10.
Shared Dispositive Power
0
 
11.
Aggregate Amount Beneficially Owned by Each Reporting Person
37,358,708(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)
28.2%(2)
 
14.
Type of Reporting Person (See Instructions)
IN
 
 
(1)
Includes 10,595,659 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 132,371,923 shares outstanding as of October 25, 2016, which includes 82,629,985 shares of Class A Common Stock and 49,741,938 shares of Class B Common Stock outstanding as of October 25, 2016, as reported in the Issuer’s Quarterly Report on Form 10-Q, as filed with the Securities and Exchange Commission on November 1, 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 41.0% of the total voting power as of October 25, 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
550,000
 
8.
Shared Voting Power
0
 
 
9.
Sole Dispositive Power
550,000
 
 
10.
Shared Dispositive Power
0
 
11.
Aggregate Amount Beneficially Owned by Each Reporting Person
37,358,708 (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)
28.2%(2)
 
14.
Type of Reporting Person (See Instructions)
IN
 
 
(1)
Includes 10,595,659 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 132,371,923 shares outstanding as of October 25, 2016, which includes 82,629,985 shares of Class A Common Stock and 49,741,938 shares of Class B Common Stock outstanding as of October 25, 2016, as reported in the Issuer’s Quarterly Report on Form 10-Q, as filed with the Securities and Exchange Commission on November 1, 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 41.0% of the total voting power as of October 25, 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.

This Amendment No. 10 (this "Amendment") to the statement on Schedule 13D filed with the Securities and Exchange Commission on July 5, 2011, as previously amended from time to time (the "Original Statement") relates to the Class A Common Stock, par value $0.01 per share, of Swift Transportation Company, a Delaware corporation (the "Issuer").  The principal executive offices of the Issuer are located at 2200 South 75th Avenue, Phoenix, Arizona 85043.  Information contained in the Original Statement remains effective except to the extent that it is amended, restated, supplemented or superseded by information contained in this Amendment.  Capitalized terms used but not defined in this Amendment shall have the meanings ascribed to them in the Original Statement.

Item 5.
Interest in Securities of the Issuer.

Item 5 of the Original Statement is hereby amended and supplemented by adding the following information:

(a) – (b)

As of October 25, 2016, there were 132,371,923(1) shares of common stock outstanding.  As of the date hereof, the Reporting Persons may be deemed to be the beneficial owners (pursuant to Rule 13d-3) of an aggregate of 59,498,687 shares of the Issuer's common stock, representing approximately 45.0%(2) of the issued and outstanding shares of common stock of the Issuer.  The filing of this amendment to Schedule 13D shall not be construed as an admission that any Reporting Person is, for purposes of sections 13(d) or 13(g) of the Securities Exchange Act of 1934, the beneficial owner of any securities covered by this amendment.

Mr. and Mrs. Moyes beneficially own 58,398,687(3) shares of Common Stock, representing approximately 44.1%(2) of the issued and outstanding shares of Common Stock of the Issuer.  Mr. and Mrs. Moyes share voting and dispositive power over 51,417,690(4) shares of the Issuer's Common Stock.
 
Michael Moyes beneficially owns 37,358,708(5) shares of Common Stock, representing approximately 28.2%(2) of the issued and outstanding shares of Common Stock of the Issuer.
________________
 
1. 
Includes 82,629,985 shares of Class A Common Stock and 49,741,938 shares of Class B Common Stock outstanding as of October 25, 2016, as reported in the Issuer’s Quarterly Report on Form 10-Q filed November 1, 2016.
   
2. 
The percentage indicated is based upon 132,371,923 shares outstanding as of October 25, 2016, which includes 82,629,985 shares of Class A Common Stock and 49,741,938 shares of Class B Common Stock outstanding as of October 25, 2016, as reported in the Issuer’s Quarterly Report on Form 10-Q, as filed with the Securities and Exchange Commission on November 1, 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 all Reporting Persons represent approximately 58.2% of the total voting power as of October 25, 2016.  For further details, please refer to the beneficial ownership tables at the beginning of this Amendment.
   
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 47,541,938 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 indirectly through 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.



LynDee Moyes Nester beneficially owns 37,358,708(6) shares of Common Stock, representing approximately 28.2%(2) of the issued and outstanding shares of Common Stock of the Issuer.  

(c)          Transactions Effected During the Past Sixty Days:

The following transactions were with respect to shares owned by the Reporting Persons and were effected during the past sixty days.  The transactions were not effected in the open market.

On October 12, 2016, M Capital I made a distribution of 50,000 shares each to four of its members, including the Michael Moyes Trust and the Lyndee Moyes Nester Trust, for an aggregate distribution of 200,000 shares.  On October 24, 2016, each of the Michael Moyes Trust and Lyndee Moyes Nester Trust distributed the 50,000 shares received to their respective beneficiaries, Michael Moyes and Lyndee Moyes Nester.

The information set forth in Item 6 of this Amendment is incorporated herein by reference.

Item 6.
Contracts, Arrangements, Understandings, or Relationships With Respect to Securities of the Issuer.

Item 6 of the Original Statement is hereby amended and supplemented by adding the following information:

Effective November 18, 2016, certain of the Reporting Persons entered into the following transactions:

· Cactus Holding I amended and restated two previously disclosed variable prepaid forward contracts (“VPF”) covering 3,300,000 and 7,005,984 shares, respectively.  The amendment extended to the maturity dates of the contracts to December 5, 2017 through December 7, 2017.  Previously, the maturity dates were November 25, 2016 for the contract covering 3,300,000 shares and May 26, 2017 through May 31, 2017 for the contract covering 7,005,984 shares.  Cactus Holding I made a payment of $5,250,000 in connection with extending the contract covering 3,300,000 shares.  The new 3,300,000 share VPF is governed by that certain Second Amended and Restated Supplemental Confirmation, attached hereto as Exhibit 99.9.  The new 7,005,984 share VPF is governed by that certain Amended and Restated May 2016 Supplemental Confirmation, attached hereto as Exhibit 99.10.

· M Capital II amended and restated two previously disclosed VPFs covering 13,700,000 and 12,294,016 shares, respectively.  The amendment extended the maturity dates of the contracts to December 5, 2017 through January 3, 2018.  Previously, the maturity dates were November 25, 2016 for the contract covering 13,700,000 shares and May 26, 2017 through May 31, 2017 for the contract covering 12,294,016 shares.  M Capital II made a payment of $21,750,000 in connection with extending the contract covering 13,700,000 shares.  The new 13,700,000 share VPF is governed by that certain Fourth Amended and Restated Transaction 1 Supplemental Confirmation, attached hereto as Exhibit 99.11.  The new 12,294,016 share VPF is governed by that certain Amended and Restated Transaction 1 Supplemental Confirmation, attached hereto as Exhibit 99.12.

· Cactus Holding II amended its previously disclosed Securities Sale and Repurchase Agreement to extend the expiration date from May 30, 2017 to November 30, 2017 (the “Amendment”). The Amendment is governed by that certain Third Amendment to Repurchase Agreement, attached hereto as exhibit 99.13.

No additional shares were pledged by the Reporting Persons in connection with the foregoing transactions.  The purposes of the foregoing transactions were to (i) extend the maturity of the aforementioned VPFs and Securities Sale and Repurchase Agreement, without increasing the aggregate number of shares pledged by the Reporting Persons and (ii) continue to permit the Reporting Persons to participate in any price appreciation of the Issuer’s common stock, within certain levels.  The foregoing description of the VPFs and Amendment is qualified in its entirety by reference to the text of these agreements, which are filed herewith as Exhibits 99.9 through 99.13.
________________

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
     
 
Second Amended and Restated Supplemental Confirmation between Citigroup Global Markets Inc. and Cactus Holding Company, LLC, dated November 18, 2016.
     
 
Amended and Restated May 2016 Supplemental Confirmation between Citigroup Global Markets Inc. and Cactus Holding Company, LLC, dated November 18, 2016.
     
 
Fourth Amended and Restated Transaction 1 Supplemental Confirmation between Citibank, N.A. and M Capital Group Investors II, LLC, dated November 18, 2016.
     
 
Amended and Restated Transaction 1 Supplemental Confirmation between Citigroup Global Markets Inc. and M Capital Group Investors II, LLC, dated November 18, 2016.
     
 
Third 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 November 18, 2016.
 


SIGNATURE
 
After reasonable inquiry and to the best of the undersigned's knowledge and belief, the undersigned hereby certifies that the information set forth herein is true, complete, and correct, and that this statement is filed on behalf of the undersigned and the other signatories hereto.
 
 
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

Dated: November 22, 2016
EX-99.9 2 exhibit999.htm EXHIBIT 99.9 (SECOND AMENDED AND RESTATED SUPPLEMENTAL CONFIRMATION)

Exhibit 99.9
 
Execution Version
 
SECOND AMENDED AND RESTATED SUPPLEMENTAL CONFIRMATION
Date:
November 18, 2016
 
To:
Cactus Holding Company, LLC
2200 South 75th Avenue
Phoenix, AZ 85043
 
Attn:
Vicki Plein
 
From:
Citigroup Global Markets Inc.
 
Fax No.:
212-615-8985
 
Reference Number:          To be advised by CGMI
The purpose of this Second Amended and Restated Supplemental Confirmation is to amend and restate the terms and conditions of the Transaction entered into between Citigroup Global Markets Inc. (“CGMI”) and Cactus Holding Company, LLC (“Counterparty”) on May 18, 2016 (such date, the “First Amended and Restatement Date” and such transaction, the “First Amended and Restated Transaction”), which amended and restated the Transaction entered into between CGMI and Counterparty on October 30, 2015 (the “Original Transaction”).  This Second Amended and Restated Supplemental Confirmation, dated November 18, 2016 (the “Amendment and Restatement Date”), amends and restates in its entirety the Amended and Restated Supplemental Confirmation, dated May 18, 2016 (the “Amended and Restated Supplemental Confirmation”), and is subject to the Master Confirmation specified below.  All references to the Amended and Restated Supplemental Confirmation, the Supplemental Confirmation, dated October 30, 2015 (the “Original Supplemental Confirmation”) in the Master Confirmation or in other documentation between the parties shall be to this Second Amended and Restated Supplemental Confirmation.  Each party repeats to the other party the representations and warranties set forth in the Master Confirmation or in the Agreement (as defined in the Master Confirmation) (as if the Amendment and Restatement Date were the Trade Date, the date the parties entered into a Transaction and the date of the Master Confirmation).  This Second Amended and Restated Supplemental Confirmation is a binding contract between CGMI and Counterparty as of the relevant Trade Date for the Transaction referenced below.
1.          This Second Amended and Restated Supplemental Confirmation supplements, forms part of, and is subject to the Master Terms and Conditions for Prepaid Variable Share Forward Transactions dated as October 30, 2015 between CGMI and Counterparty (as amended and supplemented from time to time, the “Master Confirmation”).  All provisions contained in the Agreement (as modified and as defined in the Master Confirmation) shall govern this Second Amended and Restated Supplemental Confirmation, except as expressly modified below, and capitalized terms used but not defined herein shall have the meanings specified in the Master Confirmation.
2.          The terms of the Transaction to which this Second Amended and Restated Supplemental Confirmation relates are as follows:
Trade Date:
October 30, 2015
 
Amendment and Restatement Date:
November 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
 
Counterparty Second Amendment Payment Amount:
USD 5,250,000.  Counterparty agrees to pay CGMI the Counterparty Second Amendment Payment Amount on the Counterparty Second Amendment Payment Date.
 
Counterparty Second Amendment Payment Date:
The Currency Business Day immediately following the Amendment and Restatement Date.
 
Forward Floor Price:
USD 22.00
 
Forward Cap Price:
USD 26.40
 
Final Disruption Date:
December 21, 2017
For each Component of the Transaction, the Scheduled Valuation Date and Number of Shares is set forth below:
Component Number
Scheduled Valuation Date
Number of Shares
1
12/5/2017
1,100,000
2
12/6/2017
1,100,000
3
12/7/2017
1,100,000

3.          For purposes of all Transactions under the Master Confirmation, Section 8(f)(ii) is hereby amended by replacing it in its entirety with the following:

Hire Act Protocols.  The parties agree that the definitions and provisions contained in the 2015 Section 871(m) Protocol as published by the International Swaps and Derivatives Association, Inc. are incorporated into and apply to the Agreement solely for purposes of this Master Confirmation as if set forth in full herein.
2

Counterparty hereby agrees (a) to check this Second Amended and Restated Supplemental Confirmation carefully and immediately upon receipt so that errors or discrepancies can be promptly identified and rectified and (b) to confirm that the foregoing correctly sets forth the terms of the agreement between us with respect to the particular Transaction to which this Second Amended and Restated Supplemental Confirmation relates by manually signing this Second Amended and Restated Supplemental Confirmation and providing any other information requested herein or in the Master Confirmation and immediately sending a facsimile transmission of an executed copy to us.

 
Yours sincerely,
     
 
CITIGROUP GLOBAL MARKETS INC.
     
 
By:
/s/ James Heathcote 
   
Authorized Representative
     
     
     
Confirmed as of the date first above written:
   
     
CACTUS HOLDING COMPANY, LLC
By: Jerry And Vickie Moyes Family Trust, its Manager
 
     
     
By:
/s/ Jerry C. Moyes 
   
Name:
Jerry C. Moyes
   
Title:
Co-Trustee
   
       
       
By:
/s/ Vickie Moyes 
   
Name:
Vickie Moyes
   
Title:
Co-Trustee
   
 
[Signature Page to Second Amended and Restated Supplemental Confirmation for Cactus I Forward]
 
EX-99.10 3 exhibit9910.htm EXHIBIT 99.10 (AMENDED AND RESTATED MAY 2016 SUPPLEMENTAL CONFIRMATION)

Exhibit 99.10
 
Execution Version
 
AMENDED AND RESTATED MAY 2016 SUPPLEMENTAL CONFIRMATION
Date:
November 18, 2016
 
To:
Cactus Holding Company, LLC
2200 South 75th Avenue
Phoenix, AZ 85043
 
Attn:
Vicki Plein
 
From:
Citigroup Global Markets Inc.
 
Fax No.:
212-615-8985
 
Reference Number:          To be advised by CGMI
The purpose of this Amended and Restated May 2016 Supplemental Confirmation is to amend and restate the terms and conditions of the Transaction entered into between Citigroup Global Markets Inc. (“CGMI”) and Cactus Holding Company, LLC (“Counterparty”) on May 18, 2016 (the “Original Transaction”).  This Amended and Restated May 2016 Supplemental Confirmation, dated November 18, 2016 (the “Amendment and Restatement Date”), amends and restates in its entirety the May 2016 Supplemental Confirmation, dated May 18, 2016 (the “Original Supplemental Confirmation”), and is subject to the Master Confirmation specified below.  All references to the Original Supplemental Confirmation in the Master Confirmation or in other documentation between the parties shall be to this Amended and Restated May 2016 Supplemental Confirmation.  Each party repeats to the other party the representations and warranties set forth in the Master Confirmation or in the Agreement (as defined in the Master Confirmation) (as if the Amendment and Restatement Date were the Trade Date, the date the parties entered into a Transaction and the date of the Master Confirmation).  This Amended and Restated May 2016 Supplemental Confirmation is a binding contract between CGMI and Counterparty as of the relevant Trade Date for the Transaction referenced below.
1.          This Amended and Restated May 2016 Supplemental Confirmation supplements, forms part of, and is subject to the Master Terms and Conditions for Prepaid Variable Share Forward Transactions dated as of October 30, 2015 between CGMI and Counterparty (as amended and supplemented from time to time, the “Master Confirmation”).  All provisions contained in the Agreement (as modified and as defined in the Master Confirmation) shall govern this Amended and Restated May 2016 Supplemental Confirmation, except as expressly modified below, and capitalized terms used but not defined herein shall have the meanings specified in the Master Confirmation.
2.          The terms of the Transaction to which this Amended and Restated May 2016 Supplemental Confirmation relates are as follows:
Trade Date:
May 18, 2016
 
Amendment and Restatement Date:
November 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:
December 21, 2017
For each Component of the Transaction, the Scheduled Valuation Date and Number of Shares is set forth below:
Component Number
Scheduled Valuation Date
Number of Shares
1
12/5/2017
2,335,328
2
12/6/2017
2,335,328
3
12/7/2017
2,335,328
3.          For purposes of all Transactions under the Master Confirmation, Section 2 of the Master Confirmation is hereby amended by replacing the provisions for “Settlement Method Election”, “Electing Party” and the introductory paragraph of “Conditions to Physical Settlement” with the following:
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.
 
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:
4.          For purposes of all Transactions under the Master Confirmation, Section 4 of the Master Confirmation is hereby amended by replacing clause (d) with the following:
 
2

 
(d)          Counterparty shall have caused (i)(x) Cactus Holding Company III, LLC (“Cactus III”), as the sole member of Counterparty and (y) Jerry C. Moyes, Vickie Moyes and the JVM Trust (as defined below), as the sole members of Cactus III (“Members of Cactus III”), to deliver to CGMI, on or prior to the Trade Date, one or more guaranties in form and substance satisfactory to CGMI (as amended, modified, supplemented, replaced or restated, each a “Guaranty”) and (ii) each of Cactus III, each Member of Cactus III and the manager of Counterparty to deliver to CGMI, on the Trade Date, one or more letter agreements in form and substance satisfactory to CGMI (as amended, modified, supplemented, replaced or restated, each a “Letter Agreement”);
5.          For purposes of all Transactions under the Master Confirmation, Section 6 of the Master Confirmation is hereby amended by replacing clause (r) with the following:
(r)          Exhibit A to the Operating Agreement for Cactus Holding Company, LLC, an Alaska limited liability company, made and entered into effective as of December 27, 2010, as amended on May 18, 2016 (the “Operating Agreement”) by and between Counterparty and Cactus III, as the sole member, describes the membership and the percentage ownership of such member in Counterparty and is true, complete and accurate on the date hereof and any date any necessary action was taken to authorize the execution, delivery and performance of the Transaction (any such date, an “Authorization Date”).
6.          For purposes of all Transactions under the Master Confirmation, Section 6 of the Master Confirmation is hereby amended by replacing clause (u) with the following:
(u)          Counterparty will take all reasonable steps to continue its identity as a separate legal entity and to make it apparent to any third Person (as defined in the Pledge Agreement) (including Cactus III’s and the Members of Cactus III’s creditors) that Counterparty is an entity with assets and liabilities distinct from those of Cactus III and the Members of Cactus III and that Counterparty is not identical with Cactus III or the Members of Cactus III or any other Person (as defined in the Pledge Agreement).  Without limiting the generality of the foregoing, Counterparty will (i) conduct its business in its own name and comply in all respects with the requirements and limitations of its corporate powers set forth in the Operating Agreement and all organizational formalities necessary to maintain its separate existence; (ii) not incur, create or assume any indebtedness other than its obligations under the Transactions or otherwise engage, directly or indirectly, in any activities other than those required under the Transactions or related to Counterparty’s performance of its obligations thereunder (for the avoidance of doubt, Counterparty shall not be considered to be indirectly involved in any activities by affiliates of Counterparty in which Counterparty has no interest and has no involvement as owner, participant, guarantor, pledgor or otherwise); provided that, notwithstanding anything in this Section 6(u)(ii) to the contrary, Counterparty may (x) engage in a financing transaction in which Counterparty acquires securities or cash to settle or terminate its obligations hereunder with CGMI’s prior written consent, which consent shall not be unreasonably withheld (it being understood that CGMI’s non-participation in the financing as lender, underwriter, or otherwise shall not be reasonable grounds for withholding such consent), (y) (1) accept Shares as distributions in respect of its equity interest in M Capital Group Investors, LLC (“M Capital”), (2) distribute such Shares to Cactus III or deliver such Shares to Cactus III as gifts, (3) accept additional Shares from Cactus III as equity contributions and make an equity contribution of such Shares to M Capital, in each case in accordance with the terms of the Operating Agreement and only to the extent that Counterparty does not incur, create or assume any indebtedness in connection therewith and such action is otherwise in compliance with applicable law, and (z) distribute proceeds received from this Transaction to Cactus III; (iii) continue to be validly existing as a limited liability company in good standing under the laws of Alaska; (iv) not, to the fullest extent permitted by law, take any action within its control to dissolve, liquidate, consolidate, merge, transfer ownership of its interests or sell substantially all its assets; (v) not commingle its funds and assets with those of Cactus III or any of the Members of Cactus III; (vi) not enter into any business transaction with Cactus III, any of the Members of Cactus III or the Issuer, except that Counterparty may (w) accept Shares as distributions in respect of its equity interest in M Capital, (x) distribute such Shares to Cactus III or deliver such Shares to Cactus III as gifts, (y) accept additional Shares from Cactus III as equity contributions and make an equity contribution of such Shares to M Capital, in each case in accordance with the terms of the Operating Agreement and only to the extent that Counterparty does not incur, create or assume any indebtedness in connection therewith and such action is otherwise in compliance with applicable law, and (z) distribute proceeds received from this Transaction to Cactus III; (vii) notify CGMI if any material amendment, alteration, or change is made to the Operating Agreement; (viii) correct any known misunderstanding regarding its separate identity; (ix) pay from its own assets all obligations of any kind incurred by Counterparty including the salaries of its own employees, agents and manager; (x) maintain financial statements and reports, corporate records, books of account, stationery, invoices and business forms separate from those of any other Person, Cactus III or any Member of Cactus III and (xi) file its own tax returns and perform tax reporting as may be required under applicable law.  Neither Counterparty, on the one hand, nor any of Cactus III or any Member of Cactus III, on the other hand, will (1) guarantee the debts or obligations of the other, (2) pledge, grant a security interest in, or lien upon, its assets for the benefit of the other or (3) be responsible, or hold itself out to be responsible, for the debts or obligations of the other or the decisions or actions respecting the daily business and affairs of the other, in each case other than (y) each Guaranty and (z) the performance of the JVM Trust’s role as manager of Counterparty.
3

 
7.          For purposes of all Transactions under the Master Confirmation, Section 9 of the Master Confirmation is hereby amended by replacing clause (a) with the following:
(a)          Credit Support Documents; Credit Support Providers.  Credit Support Document means, (i) in relation to Counterparty, the Pledge Agreement, each Guaranty and each Letter Agreement, and (ii) in relation to CGMI, none.  Credit Support Provider means, in relation to Counterparty, Cactus III, each Member of Cactus III and, in relation to CGMI, none.
8.          For purposes of all Transactions under the Master Confirmation, the Pledge Agreement is hereby amended by replacing the definition of “Collateral Account” with the following:
Collateral Account” means a securities account (as defined in Section 8-501 of the UCC) maintained in the name of the Pledgor by the Custodian with the account number 768-70618-1-7 or any successor or additional account or accounts (whether maintained by the Custodian or another financial institution) in or to which any Collateral is now or hereafter held or credited.
4

Counterparty hereby agrees (a) to check this Amended and Restated May 2016 Supplemental Confirmation carefully and immediately upon receipt so that errors or discrepancies can be promptly identified and rectified and (b) to confirm that the foregoing correctly sets forth the terms of the agreement between us with respect to the particular Transaction to which this Amended and Restated May 2016 Supplemental Confirmation relates by manually signing this Amended and Restated May 2016 Supplemental Confirmation and providing any other information requested herein or in the Master Confirmation and immediately sending a facsimile transmission of an executed copy to us.

 
Yours sincerely,
     
 
CITIGROUP GLOBAL MARKETS INC.
     
 
By:
/s/ James Heathcote 
   
Authorized Representative
     
     
     
Confirmed as of the date first above written:
   
     
CACTUS HOLDING COMPANY, 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 Amended and Restated May 2016 Supplemental Confirmation for Cactus I Forward
 
 

EX-99.11 4 exhibit9911.htm EXHIBIT 99.11 (FOURTH AMENDED AND RESTATED TRANSACTION I SUPPLEMENTAL CONFIRMATION)

Exhibit 99.11
 
Execution Version
 
FOURTH AMENDED AND RESTATED TRANSACTION 1 SUPPLEMENTAL CONFIRMATION
Date:
November 18, 2016
 
To:
M Capital Group Investors II, LLC
2200 South 75th Avenue
Phoenix, AZ 85043
 
Attn:
Vicki Plein
 
From:
Citibank, N.A.
 
Fax No.:
212-615-8985
 
Reference Number:          NECOM7958825
The purpose of this Fourth Amended and Restated Transaction 1 Supplemental Confirmation is to amend and restate the terms and conditions of the Transaction entered into between Citibank, N.A. (“Citibank”) and M Capital Group Investors II, LLC (“Counterparty”) on May 18, 2016 (such date, the “Third Amended and Restatement Date” and such transaction, the “Third Amended and Restated Transaction”), which amended and restated the Transaction entered into between Citibank and Counterparty on October 30, 2015 (such date, the “Second Amendment and Restatement Date” and such transaction, the “Second Amended and Restated Transaction”), which amended and restated the Transaction entered into between Citibank and Counterparty on February 18, 2015 (the “Amended and Restated Transaction”), which amended and restated the Transaction entered into between Citibank and Counterparty on October 29, 2013 (the “Original Transaction”).  This Fourth Amended and Restated Transaction 1 Supplemental Confirmation, dated November 18, 2016 (the “Amendment and Restatement Date”), amends and restates in its entirety the Third Amended and Restated Transaction 1 supplemental confirmation, dated May 18, 2016 (the “Third Amended and Restated Transaction 1 Supplemental Confirmation”), and is subject to the Master Confirmation specified below.  All references to the Third Amended and Restated Transaction 1 Supplemental Confirmation, the Second Amended and Restated Transaction 1 Supplemental Confirmation, dated October 30, 2015 (the “Second Amended and Restated Transaction 1 Supplemental Confirmation”), the Amended and Restated Transaction 1 Supplemental Confirmation, dated February 18, 2015 (the “First Amended and Restated Transaction 1 Supplemental Confirmation”) or the Transaction 1 Supplemental Confirmation, dated October 29, 2013 (the “Original Transaction 1 Supplemental Confirmation”) in the Master Confirmation or in other documentation between the parties shall be to this Fourth Amended and Restated Transaction 1 Supplemental Confirmation.  Each party repeats to the other party the representations and warranties set forth in the Master Confirmation or in the Agreement (as defined in the Master Confirmation) (as if the Amendment and Restatement Date were the Trade Date, the date the parties entered into a Transaction and the date of the Master Confirmation). This Fourth Amended and Restated Transaction 1 Supplemental Confirmation is a binding contract between Citibank and Counterparty as of the relevant Trade Date for the Transaction referenced below.
1.          This Fourth Amended and Restated Transaction 1 Supplemental Confirmation supplements, forms part of, and is subject to the Master Terms and Conditions for Prepaid Variable Share Forward Transactions dated as of October 29, 2013 between Citibank and Counterparty (as amended and supplemented from time to time, the “Master Confirmation”).  All provisions contained in the Agreement (as modified and as defined in the Master Confirmation) shall govern this Fourth Amended and Restated Transaction 1 Supplemental Confirmation, except as expressly modified below, and capitalized terms used but not defined herein shall have the meanings specified in the Master Confirmation.
2.          The terms of the Transaction to which this Fourth Amended and Restated Transaction 1 Supplemental Confirmation relates are as follows:
Trade Date:
October 29, 2013
 

 
Amendment and Restatement Date:
November 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:
January 18, 2018
 
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
 
Counterparty Fourth Amendment Payment
Amount:

USD 21,750,000.  Counterparty agrees to pay Citibank the Counterparty Fourth Amendment Payment Amount on the Counterparty Fourth Amendment Payment Date.
 
Counterparty Fourth Amendment Payment
 Date:

The Currency Business Day immediately following the Amendment and Restatement Date.
For each Component of the Transaction, the Scheduled Valuation Date and Number of Shares is set forth below:
Component Number
Scheduled Valuation Date
Number of Shares
1
12/5/2017
685,000
2
12/6/2017
685,000
3
12/7/2017
685,000
 
2

 
Component Number
Scheduled Valuation Date
Number of Shares
4
12/8/2017
685,000
5
12/11/2017
685,000
6
12/12/2017
685,000
7
12/13/2017
685,000
8
12/14/2017
685,000
9
12/15/2017
685,000
10
12/18/2017
685,000
11
12/19/2017
685,000
12
12/20/2017
685,000
13
12/21/2017
685,000
14
12/22/2017
685,000
15
12/26/2017
685,000
16
12/27/2017
685,000
17
12/28/2017
685,000
18
12/29/2017
685,000
19
1/2/2018
685,000
20
1/3/2018
685,000

3.          For purposes of all Transactions under the Master Confirmation, the Pledge Agreement is hereby amended to add the following phrase at the end of “or any Affiliate of it” in Section 6(c)(i): “or any group (within the meaning of Section 13(d) of the Exchange Act and the regulations thereunder) of which it or any Affiliate is a part”.
4.          Hire Act Protocols.  For purposes of all Transactions under the Master Confirmation, the parties agree that the definitions and provisions contained in the 2015 Section 871(m) Protocol as published by the International Swaps and Derivatives Association, Inc. are incorporated into and apply to the Agreement solely for purposes of the Master Confirmation as if set forth in full herein.
5.          For purposes of all Transactions under the Master Confirmation, Section 9(b) is hereby amended by deleting the phrase “CT Corporation System, located at 111 Eighth Avenue, New York, NY 10011” and replacing it with “Capitol Services, Inc., located at 1219 Central Avenue, Suite 100, Albany NY 12205”.
6.          For purposes of all Transactions under the Master Confirmation, Section 10 of the Master Confirmation is hereby amended by replacing the addresses listed in the “Addresses for notices or communication to Citibank” with the following:
Citibank, N.A.
390 Greenwich Street
New York, NY 10013
Attn: James Heathcote
Telephone: 212-723-7452
Email: james.heathcote@citi.com

with a copy to:

Citibank, N.A.
390 Greenwich Street
New York, NY 10013
Attn: Adam Muchnick
Telephone: 212-723-3850
Email: adam.muchnick@citi.com
3

Counterparty hereby agrees (a) to check this Fourth Amended and Restated Transaction 1 Supplemental Confirmation carefully and immediately upon receipt so that errors or discrepancies can be promptly identified and rectified and (b) to confirm that the foregoing correctly sets forth the terms of the agreement between us with respect to the particular Transaction to which this Fourth Amended and Restated Transaction 1 Supplemental Confirmation relates by manually signing this Fourth Amended and Restated Transaction 1 Supplemental Confirmation and providing any other information requested herein or in the Master Confirmation and immediately sending a facsimile transmission of an executed copy to us.

 
Yours sincerely,
     
 
CITIBANK, N.A.
     
 
By:
/s/ James Heathcote 
   
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:
/s/ Jerry C. Moyes 
   
Name:
Jerry C. Moyes
   
Title:
Co-Trustee
   
       
       
By:
/s/ Vickie Moyes 
   
Name:
Vickie Moyes
   
Title:
Co-Trustee
   
 

[Signature Page to Fourth Amended and Restated
Transaction 1 Supplemental Confirmation]
 
EX-99.12 5 exhibit9912.htm EXHIBIT 99.12 (AMENDED AND RESTATED TRANSACTION 1 SUPPLEMENTAL CONFIRMATION)

Exhibit 99.12
 
Execution Version
 
AMENDED AND RESTATED TRANSACTION 1 SUPPLEMENTAL CONFIRMATION
Date:
November 18, 2016
 
To:
M Capital Group Investors II, LLC
2200 South 75th Avenue
Phoenix, AZ 85043
 
Attn:
Vicki Plein
 
From:
Citigroup Global Markets Inc.
 
Fax No.:
212-615-8985
 
Reference Number:          To be advised by CGMI
The purpose of this Amended and Restated Transaction 1 Supplemental Confirmation is to amend and restate the terms and conditions of the Transaction entered into between Citigroup Global Markets Inc. (“CGMI”) and M Capital Group Investors II, LLC (“Counterparty”) on May 18, 2016 (the “Original Transaction”).  This Amended and Restated Transaction 1 Supplemental Confirmation, dated November 18, 2016 (the “Amendment and Restatement Date”), amends and restates in its entirety the Transaction 1 Supplemental Confirmation, dated May 18, 2016 (the “Original Supplemental Confirmation”), and is subject to the Master Confirmation specified below.  All references to the Original Supplemental Confirmation in the Master Confirmation or in other documentation between the parties shall be to this Amended and Restated Transaction 1 Supplemental Confirmation.  Each party repeats to the other party the representations and warranties set forth in the Master Confirmation or in the Agreement (as defined in the Master Confirmation) (as if the Amendment and Restatement Date were the Trade Date, the date the parties entered into a Transaction and the date of the Master Confirmation).  This Amended and Restated Transaction 1 Supplemental Confirmation is a binding contract between CGMI and Counterparty as of the relevant Trade Date for the Transaction referenced below.
1.          This Amended and Restated Transaction 1 Supplemental Confirmation supplements, forms part of, and is subject to the Master Terms and Conditions for Prepaid Variable Share Forward Transactions dated as May 18, 2016 between CGMI and Counterparty (as amended and supplemented from time to time, the “Master Confirmation”).  All provisions contained in the Agreement (as modified and as defined in the Master Confirmation) shall govern this Amended and Restated Transaction 1 Supplemental Confirmation, except as expressly modified below, and capitalized terms used but not defined herein shall have the meanings specified in the Master Confirmation.
2.          The terms of the Transaction to which this Amended and Restated Transaction 1 Supplemental Confirmation relates are as follows:
Trade Date:
May 18, 2016
 
Amendment and Restatement Date:
November 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:
January 18, 2018

For each Component of the Transaction, the Scheduled Valuation Date and Number of Shares is set forth below:
Component Number
Scheduled Valuation Date
Number of Shares
1
12/5/2017
614,701
2
12/6/2017
614,701
3
12/7/2017
614,701
4
12/8/2017
614,701
5
12/11/2017
614,701
6
12/12/2017
614,701
7
12/13/2017
614,701
8
12/14/2017
614,701
9
12/15/2017
614,701
10
12/18/2017
614,701
11
12/19/2017
614,701
12
12/20/2017
614,701
13
12/21/2017
614,701
14
12/22/2017
614,701
15
12/26/2017
614,701
16
12/27/2017
614,701
17
12/28/2017
614,701
18
12/29/2017
614,701
19
1/2/2018
614,701
20
1/3/2018
614,697

3.          For purposes of all Transactions under the Master Confirmation, Section 8(f)(ii) is hereby amended by replacing it in its entirety with the following:

Hire Act Protocols.  The parties agree that the definitions and provisions contained in the 2015 Section 871(m) Protocol as published by the International Swaps and Derivatives Association, Inc. are incorporated into and apply to the Agreement solely for purposes of this Master Confirmation as if set forth in full herein.
2

Counterparty hereby agrees (a) to check this Amended and Restated Transaction 1 Supplemental Confirmation carefully and immediately upon receipt so that errors or discrepancies can be promptly identified and rectified and (b) to confirm that the foregoing correctly sets forth the terms of the agreement between us with respect to the particular Transaction to which this Amended and Restated Transaction 1 Supplemental Confirmation relates by manually signing this Amended and Restated Transaction 1 Supplemental Confirmation and providing any other information requested herein or in the Master Confirmation and immediately sending a facsimile transmission of an executed copy to us.

 
Yours sincerely,
     
 
CITIGROUP GLOBAL MARKETS INC.
     
 
By:
/s/ James Heathcote 
   
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:
/s/ Jerry C. Moyes 
   
Name:
Jerry C. Moyes
   
Title:
Co-Trustee
   
       
       
By:
/s/ Vickie Moyes
   
Name:
Vickie Moyes
   
Title:
Co-Trustee
   

 
[Signature Page to M Capital II CGMI Amended and Restated Transaction 1 Supplemental Confirmation]
 
 
EX-99.13 6 exhibit9913.htm EXHIBIT 99.13 (THIRD AMENDMENT TO REPURCHASE AGREEMENT)

Exhibit 99.13
 
Execution Version
 
THIRD AMENDMENT TO REPURCHASE AGREEMENT
This THIRD AMENDMENT TO REPURCHASE AGREEMENT, dated as of November 18, 2016 (this Amendment”), is made by and among Cactus Holding Company II, LLC, (“Cactus II”) and Citigroup Global Markets Limited (“CGML”), represented by Citigroup Global Markets Inc. as its agent (“CGMI”).  Capitalized terms used but not defined herein shall have the meanings assigned in the Repurchase Agreement (as defined below).
WITNESSETH:
1.
Cactus II and CGML, represented by CGMI as its agent, have entered into a Securities Sale and Repurchase Agreement, dated as of May 30, 2014, 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 by the Amendment to Repurchase Agreement, dated as of May 18, 2016, between Cactus II and CGML, represented by CGMI as agent, and as amended by the Second Amendment to Repurchase Agreement, dated as of July 27, 2016, between Cactus II and CGML, represented by CGMI as agent (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.
NOW THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND AGREEMENTS CONTAINED HEREIN, IN THE REPURCHASE AGREEMENT AND IN THE OTHER TRANSACTION DOCUMENTS, THE PARTIES HEREBY AGREE AS FOLLOWS:
1.
Amendments to Repurchase Agreement.  CGMI, as agent for CGML, and Cactus II hereby agree to amend the Repurchase Agreement as follows:
1.1.          The reference to “May 30, 2017” in clause (vi) of the definition of “Termination Date” is hereby replaced with a reference to “November 30, 2017.”
2.
Representations.  Cactus II represents to CGML that:
2.1.          Status.  It is duly organized and validly existing under the laws of the jurisdiction of its organization and, if relevant under such laws, in good standing;
2.2.          Powers.  It has the power to execute and deliver this Amendment and to perform its obligations under this Amendment and has taken all necessary action to authorize such execution, delivery and performance;
2.3.          No Violation or Conflict.  Such execution, delivery and performance do not violate or conflict with any law applicable to it, any provision of its constitutional documents, any order or judgment of any court or other agency of government applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets;
2.4.          Consents.  All governmental and other consents that are required to have been obtained by it with respect to this Amendment have been obtained and are in full force and effect and all conditions of any such consents have been complied with;
2.5.          Obligations Binding.  Its obligations under this Amendment constitute its legal, valid and binding obligations, enforceable in accordance with its respective terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application (regardless of whether enforcement is sought in a proceeding in equity or at law)); and

2.6.          Absence of Certain Events.  No Event of Default has occurred and is continuing and no such event or circumstance would occur as a result of its entering into or performing its obligations under this Amendment.
3.
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.
4.
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.

[REMAINING SPACE INTENTIONALLY LEFT BLANK;
SIGNATURES TO FOLLOW ON NEXT PAGE]
2

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first above written.

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


Signature Page to Third Amendedment to Repurchase Agreement