SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

SCHEDULE 13D/A

(Rule 13d-101)

Under the Securities Exchange Act of 1934

(Amendment No. 16)

KNIGHT-SWIFT TRANSPORTATION HOLDINGS INC.

__________________________________________________________________________________

(Name of Issuer)

CLASS A COMMON STOCK, PAR VALUE $0.01 PER SHARE

__________________________________________________________________________________

(Title of Class of Securities)

499049104

__________________________________________________________________________________

(CUSIP Number)

Jerry and Vickie Moyes

2200 South 75^th Avenue

Phoenix, AZ 85034

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 13^th Street, 2^nd Floor

Lincoln, NE 68508

February 13, 2019

__________________________________________________________________________________

(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

 

 

 

 

 

 

This Amendment No. 16 (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 Knight-Swift Transportation Holdings Inc., a Delaware corporation.  The principal executive offices of the Issuer are located at 20002 North 19^th Avenue, Phoenix, Arizona 85027.  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in the Original Statement remains effective except to the extent that it is amended, restated, supplemented, or superseded by information contained in this Amendment.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 of the Original Statement is hereby amended and supplemented by adding the following information:

(c)          Transactions Effected During the Past Sixty Days:

On February 13, 2019, certain of the Reporting Persons entered into the following transactions:

·

Cactus Holding II irrevocably agreed to terminate its previously reported Securities Sale and Repurchase Agreement and reacquire the underlying 3,331,003 shares.  The shares are expected to be delivered within six trading days of such date.  Upon delivery, Cactus Holding II agreed to simultaneously distribute such shares to its sole member, Cactus Holding III, and Cactus Holding III agreed to simultaneously contribute such shares to Cactus Holding I.  Upon completion of these transactions, Cactus Holding I will hold voting and dispositive power over such shares.  Jerry and Vickie Moyes will also share voting and dispositive power over such shares as co-trustees of the Moyes Trust, which is the sole manager of Cactus Holding I.  Because Cactus Holding II had the right to acquire these shares, they were previously reported as beneficially owned.  The termination of the Securities Sale and Repurchase Agreement was effected pursuant to that certain Repo Termination and Irrevocable Instruction Agreement, attached hereto as Exhibit 99.10

·

Cactus Holding I entered into a new variable prepaid forward contract (“VPF”) with Citigroup Global Markets Inc. covering 3,331,003 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 3,331,003 shares, or an equivalent amount of cash, upon maturity dates occurring on August 30 through September 4, 2019.  Under the new VPF, Cactus I will receive a payment that will be applied to pay Cactus Holding II’s obligation in respect of the termination of the Securities Sale and Repurchase Agreement and Cactus Holding I and M Capital II’s payment obligations in connection with amending their existing VPFs, as described below.  The amounts of the payment received and payments owed in respect of the VPFs will be determined by the counterparties to the VPFs, Citibank, N.A. and Citigroup Global Markets Inc., based on the volume weighted average trading price over a five trading day period.  The new VPF is governed by that certain February 2019 Supplemental Confirmation, attached hereto as Exhibit 99.11.

·

Cactus Holding I amended and restated two previously disclosed variable prepaid forward contracts (“VPF”) covering 2,376,000 and 5,044,308 shares, respectively.  The amendment extended the maturity dates of the contracts to August 30, 2019 through September 4, 2019.  Previously, the maturity dates were February 15, 2019 through February 20, 2019.  The new 2,376,000 share VPF is governed by that certain Fifth Amended and Restated Supplemental Confirmation, attached hereto as Exhibit 99.12.  The new 5,044,308 share VPF is governed by that certain Fourth Amended and Restated May 2016 Supplemental Confirmation, attached hereto as Exhibit 99.13.

·

M Capital II amended and restated two previously disclosed VPFs covering 8,851,692 and 9,864,000 shares, respectively. The amendment extended the maturity dates of the contracts to August 30, 2019 through September 27, 2019. Previously, the maturity dates were February 15, 2019 through March 15, 2019.  The new 9,864,000 share VPF is governed by that certain Seventh Amended and Restated Transaction 1 Supplemental Confirmation, attached hereto as Exhibit 99.14.  The new 8,851,692 share VPF is governed by that certain Fourth Amended and Restated Transaction 1 Supplemental Confirmation, attached hereto as Exhibit 99.15.

·

In addition to extending the maturity dates, the VPF amendments amended the applicable Forward Floor Prices and Forward Cap Prices set forth in the VPFs.  Each of Cactus Holding I and M Capital II is generally permitted to participate in any appreciation of the Issuer’s Common Stock between the applicable Forward Floor Price and Forward Cap Price of the VPFs to which it is a party.  The Forward Floor Price and Forward Cap Price under each VPF, as amended, are determined by reference to a table and depend upon the arithmetic average of the volume-weighted average price per Share of Class A Common Stock on each of the five scheduled trading days beginning and including February 13, 2019.

The information set forth under Item 5 of this Amendment is incorporated herein by reference.

 

 

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.

 

 

 

Dated: February 15, 2019

REPO TERMINATION AND IRREVOCABLE INSTRUCTION AGREEMENT

This Repo Termination and Irrevocable Instruction Agreement (this “Agreement”) is made and entered into as of February 13, 2019 between M Capital Group Investors II, LLC (“M Capital II”), Cactus Holding Company, LLC (“Cactus I”), Cactus Holding Company II, LLC (“Cactus II”), Cactus Holding Company III, LLC (“Cactus III”), Jerry Moyes, Vickie Moyes, the Jerry and Vickie Moyes Family Trust, Citibank, N.A. (“Citibank”), Citigroup Global Markets Inc. (“CGMI”) and Citigroup Global Markets Limited (“CGML”), represented by CGMI as its agent.

RECITALS

WHEREAS, Citibank and M Capital II have entered into a master terms and conditions for prepaid variable share forward transactions, dated as of October 29, 2013 (as amended, modified or supplemented from time to time, the “Citibank M Capital II Master Confirmation”) and the Sixth Amended and Restated Transaction 1 Supplemental Confirmation, dated as of May 21, 2018 (the “Citibank M Capital II Sixth A&R Transaction 1 Supplemental Confirmation” and, together with the Citibank M Capital II Master Confirmation, the “Citibank M Capital II Confirmation”).

WHEREAS, CGMI and M Capital II have entered into a master terms and conditions for prepaid variable share forward transactions, dated as of May 18, 2016 (as amended, modified or supplemented from time to time, the “CGMI M Capital II Master Confirmation”) and the Third Amended and Restated Transaction 1 Supplemental Confirmation, dated as of May 21, 2018 (the “CGMI M Capital II Third A&R Transaction 1 Supplemental Confirmation” and, together with the CGMI M Capital II Master Confirmation, the “CGMI M Capital II Confirmation”).

WHEREAS, CGMI and Cactus I have entered into a master terms and conditions for prepaid variable share forward transactions, dated as of October 30, 2015 (as amended, modified or supplemented from time to time, the “Cactus I Master Confirmation”), the Fourth Amended and Restated Supplemental Confirmation, dated as of May 21, 2018 (the “Cactus I Fourth A&R Supplemental Confirmation”) and the Third Amended and Restated May 2016 Supplemental Confirmation, dated as of May 21, 2018 (the “Cactus I Third A&R May 2016 Supplemental Confirmation” and, together with the Cactus I Fourth A&R Supplemental Confirmation and the Cactus I Master Confirmation, the “Cactus I Confirmation”).

WHEREAS, 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, as amended by the Amendment to Repurchase Agreement, dated as of May 18, 2016, between Cactus II and CGML, represented by CGMI as agent, 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 by the Third Amendment to Repurchase Agreement, dated as of November 18, 2016, between Cactus II and CGML, represented by CGMI as agent, as amended by the Fourth Amendment to Repurchase Agreement, dated as of November 16, 2017, between Cactus II and CGML, represented by CGMI as agent, as amended by the Fifth Amendment to Repurchase Agreement, dated as of May 21, 2018, between Cactus II and CGML, represented by CGMI as agent, and as amended by the Sixth Amendment to Repurchase Agreement, dated as of December 21, 2018, between Cactus II and CGML, represented by CGMI as agent (as so amended, the “Repurchase Agreement”).

WHEREAS, Citibank and M Capital II intend to amend and restate the Citibank M Capital II Sixth A&R Transaction 1 Supplemental Confirmation by entry into the Seventh Amended and Restated Transaction 1 Supplemental Confirmation, dated as of the date hereof, between Citibank and M Capital II (the “Citibank M Capital II Seventh A&R Transaction 1 Supplemental Confirmation”).

WHEREAS, CGMI and M Capital II intend to amend and restate the CGMI M Capital II Third A&R Transaction 1 Supplemental Confirmation by entry into the Fourth Amended and Restated Transaction 1 Supplemental Confirmation, dated as of the date hereof, between CGMI and M Capital II (the “CGMI M Capital II Fourth A&R Transaction 1 Supplemental Confirmation”).

WHEREAS, CGMI and Cactus I intend to amend and restate (i) the Cactus I Fourth A&R Supplemental Confirmation by entry into the Fifth Amended and Restated Transaction 1 Supplemental Confirmation, dated as of the date hereof, between CGMI and Cactus I (the “Cactus I Fifth A&R Supplemental Confirmation”) and (ii) the Cactus I Third A&R May 2016 Supplemental Confirmation by entry into the Fourth Amended and Restated May 2016 Supplemental Confirmation (the “Cactus I Fourth A&R May 2016 Supplemental Confirmation”).

WHEREAS, Cactus II and CGML, represented by CGMI as its agent, intend to terminate in full the Repurchase Agreement, upon payment of the Repurchase Agreement Termination Amount (as defined below).

WHEREAS, Cactus I and CGMI intend to enter into a new transaction by entry into the February 2019 Supplemental Confirmation, dated as of the date hereof, between CGMI and Cactus I (the “Cactus I February 2019 Supplemental Confirmation”).

NOW, THEREFORE, in consideration of the premises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

Section 1.            Definitions.

(a)           Capitalized terms used in this Agreement and not otherwise defined herein shall have the meanings assigned to them in the Citibank M Capital II Confirmation. As used in this Agreement, the following terms have the meanings set forth below:

“Cactus I Collateral” means the “Collateral” (as defined in the Cactus I Pledge Agreement).

“Cactus I Collateral Account” means the “Collateral Account” (as defined in the Cactus I Pledge Agreement).

“Cactus I Extension Deficiency Amount” means the amount, if any, by which (a) the sum of (i) the Cactus I Fourth Extension Payment Amount and (ii) the Cactus I Fifth Extension Payment Amount exceeds (b) the aggregate amounts applied by CGMI pursuant to Section 4(a)(ii) and (iii) below.

“Cactus I February 2019 Prepayment” means the “Prepayment Amount” (as defined in the Cactus I February 2019 Supplemental Confirmation).

“Cactus I Fifth Extension Payment Amount” means the “Counterparty Fifth Amendment Payment Amount” (as defined in the Cactus I Fifth A&R Supplemental Confirmation).

“Cactus I Fourth Extension Payment Amount” means the “Counterparty Fourth Amendment Payment Amount” (as defined in the Cactus I Fourth A&R May 2016 Supplemental Confirmation).

“Cactus I Pledge Agreement” means the “Pledge Agreement” (as defined in the Cactus I Master Confirmation).

“Cactus II Deficiency Amount” means the amount, if any, by which (a) the Repurchase Agreement Termination Amount exceeds (b) the amount applied by CGMI pursuant to Section 4(a)(i) below.

“Cactus III Member” means each of Jerry Moyes, Vickie Moyes and the Jerry and Vickie Moyes Family Trust.

“CGMI M Capital II Extension Deficiency Amount” means the amount, if any, by which (a) the CGMI M Capital II Fourth Extension Payment Amount exceeds (b) the amount applied by CGMI pursuant to Section 4(a)(iv) below.

“CGMI M Capital II Fourth Extension Payment Amount” means the “Counterparty Fourth Amendment Payment Amount” (as defined in the CGMI M Capital II Fourth A&R Transaction 1 Supplemental Confirmation).

“Citibank M Capital II Extension Deficiency Amount” means the amount, if any, by which (a) the Citibank M Capital II Seventh Extension Payment Amount exceeds (b) the amount paid by CGMI and applied by Citibank pursuant to Section 4(a)(v) below.

“Citibank M Capital II Seventh Extension Payment Amount” means the “Counterparty Seventh Amendment Payment Amount” (as defined in the Citibank M Capital II Seventh A&R Transaction 1 Supplemental Confirmation).

“Extension Payment Date” means the Currency Business Day immediately following the date all of the Cactus I February 2019 Prepayment, the Cactus I Fifth Extension Payment Amount, the Cactus I Fourth Extension Payment Amount, the CGMI M Capital II Fourth Extension Payment Amount and the Citibank M Capital II Seventh Extension Payment Amount has been determined by CGMI and Citibank, as applicable.

“Net Deficiency Amount” means the aggregate of the Cactus II Deficiency Amount, the Cactus I Extension Deficiency Amount, the CGMI M Capital II Extension Deficiency Amount, and the Citibank M Capital II Extension Deficiency Amount, which aggregate amount shall be equal to the excess of the Total Deficiency Amount over the Initial Payment Amount.

 “Repurchase Agreement Termination Amount” means, as of any date, an amount in USD equal to the “Repurchase Price” (as defined in the Repurchase Agreement) as of such date.

“Total Deficiency Amount” means the amount determined using the table set forth in Schedule A to this Agreement.

Section 2.            Termination of Repurchase Agreement.

(a)                    On the date hereof, Cactus II shall pay CGML USD 21,000,000 (the “Initial Payment Amount”) as Valuation Additional Assets pursuant to Section 4.2(a) of the Repurchase Agreement.  Cactus I shall not be entitled to draw additional amounts under the Repurchase Agreement pursuant to Section 4.2(b) thereof or otherwise.

(b)                    Cactus II and CGML agree that the Repurchase Agreement and the transactions thereunder are being terminated in full and the amount payable by Cactus II to CGML in respect of such termination (following payment of the amount referenced in Section 2(a) above) is the Repurchase Agreement Termination Amount and the number of Shares deliverable by CGML to Cactus II in respect of such termination (the “Repurchase Agreement Termination Shares”) is 3,331,003 Shares.

(c)                    Promptly following the establishment of the Extension Payment Date, CGML shall notify Cactus II and CGMI of the Repurchase Agreement Termination Amount as of such Extension Payment Date.

(d)                    Cactus II shall cause the payment of the Repurchase Agreement Termination Amount to CGML on the Extension Payment Date pursuant to Section 4 below.

(e)                    Upon receipt of the Repurchase Agreement Termination Amount, CGML shall cause the delivery of the Repurchase Agreement Termination Shares to Cactus I by delivering such Repurchase Agreement Termination Shares to the Cactus I Collateral Account as additional Cactus I Collateral under and in accordance with the terms of the Cactus I Pledge Agreement.  For the avoidance of doubt, the following statement in Section 4(c) of the Cactus I Pledge Agreement shall not apply to the Repurchase Agreement Termination Shares at the time they are delivered by CGML in accordance with this Section 2(e): “The Pledgor’s holding period for the Pledged Securities, determined as provided in Rule 144 under the Securities Act, commenced more than one year prior to the date of this Agreement.”

(f)                    Except with respect to the payment referenced in Section 2(a) above, the payment of the Repurchase Agreement Termination Amount and delivery of the Repurchase Agreement Termination Shares as provided in this Agreement, neither CGML nor Cactus II shall have any further obligations to the other in respect of the Repurchase Agreement, and each of CGML and Cactus II hereby irrevocably and unconditionally waives, releases and discharges any claim it may have against the other with respect to the Repurchase Agreement following satisfaction of the foregoing, except any indemnities relating thereto.

Section 3.            Extension Payments.

(a)                    Cactus I shall cause the payment of the Cactus I Fourth Extension Payment Amount and the Cactus I Fifth Extension Payment Amount to CGMI on the Extension Payment Date pursuant to Section 4 below.

(b)                    M Capital II shall cause the payment of (i) the CGMI M Capital II Fourth Extension Payment Amount to CGMI and (ii) the Citibank M Capital II Seventh Extension Payment Amount to Citibank, in each case on the Extension Payment Date pursuant to Section 4 below.

Section 4.            Irrevocable Instructions under the Cactus I February 2019 Supplemental Confirmation and Deficiency Payments.

(a)                    Cactus I hereby irrevocably instructs CGMI to pay and allocate the Cactus I February 2019 Prepayment as follows on the Extension Payment Date:

(i)          First, paid to CGML to be applied to Cactus II’s obligation to pay the Repurchase Agreement Termination Amount pursuant to Section 2(d) above;

(ii)          Second, any remainder applied by CGMI against Cactus I’s obligation to pay the Cactus I Fourth Extension Payment Amount pursuant to Section 3(a) above;

(iii)          Third, any remainder applied by CGMI against Cactus I’s obligation to pay the Cactus I Fifth Extension Payment Amount pursuant to Section 3(a) above;

(iv)          Fourth, any remainder applied by CGMI against M Capital II’s obligation to pay the CGMI M Capital II Fourth Extension Payment Amount pursuant to Section 3(b) above;

(v)          Fifth, any remainder paid to Citibank to be applied by Citibank to M Capital II’s obligation to pay the Citibank M Capital II Seventh Extension Payment Amount pursuant to Section 3(b) above; and

(vi)          Sixth, any remainder (which, for the avoidance of doubt, shall be equal to the excess, if any, of the Initial Payment Amount over the Total Deficiency Amount) paid to Cactus I in accordance with the wire instructions provided by Cactus I.

(b)                    Promptly following the establishment of the Extension Payment Date, CGMI and Citibank shall notify Cactus I and M Capital II of (i) the Total Deficiency Amount, (ii) the Net Deficiency Amount, (iii) the portion of such Net Deficiency Amount (if any) Cactus I is required to pay to CGMI, (iv) the portion of such Net Deficiency Amount (if any) M Capital II is required to pay to CGMI, (v) the portion of such Net Deficiency Amount (if any) M Capital II is required to pay to Citibank and (vi) the portion of such Net Deficiency Amount (if any) Cactus II is required to pay to CGML.

(c)                    Cactus I, Cactus II and/or M Capital II, as applicable, shall pay CGMI, CGML and/or Citibank, as applicable, the amounts notified under (b) above. The parties acknowledge and agree that upon payment in full of the amounts referenced in (b) above, the Repurchase Agreement Termination Amount, the Cactus I Fourth Extension Payment Amount, the Cactus I Fifth Extension Payment Amount, the CGMI M Capital II Fourth Extension Payment Amount and the Citibank M Capital II Seventh Extension Payment Amount shall be deemed satisfied.

(d)                    Each of Cactus I, Cactus II, and Cactus III acknowledges and agrees that (i) CGMI’s payment of the Repurchase Agreement Termination Amount to CGML pursuant to clause (a) above shall be deemed to be a distribution from Cactus I to Cactus III and a contribution by Cactus III to Cactus II and (ii) CGML’s delivery of the Repurchase Agreement Termination Shares to Cactus I pursuant to Section 2(e) above shall be deemed to be a distribution from Cactus II to Cactus III and a contribution by Cactus III to Cactus I.

(e)                    Each of Cactus I, Cactus III, M Capital II and each Cactus III Member acknowledges and agrees that (i) CGMI’s application to the CGMI M Capital II Fourth Extension Payment Amount pursuant to clause (a)(iv) above and (ii) CGMI’s payment to Citibank and Citibank’s application to the Citibank M Capital II Seventh Extension Payment Amount to Citibank pursuant to clause (a)(v) above shall be deemed to be a distribution from Cactus I to Cactus III, a distribution by Cactus III to each Cactus III Member and an equity contribution by each Cactus III Member to M Capital II in exchange for Common Membership Interest B of M Capital II.

(f)                    The failure by Cactus I, Cactus II or M Capital II to pay in full the specified amounts pursuant to clause (c) above shall constitute an “Event of Default” under each of the Cactus I Master Confirmation, the Repurchase Agreement, the Citibank M Capital II Master Confirmation and the CGMI M Capital II Master Confirmation.

Section 5.            Representations.  Each party represents to the other that:

(a)                    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;

(b)                    Powers.  It has the power to execute and deliver this Agreement and to perform its obligations under this Agreement and has taken all necessary action to authorize such execution, delivery and performance;

(c)                    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;

(d)                    Consents.  All governmental and other consents that are required to have been obtained by it with respect to this Agreement have been obtained and are in full force and effect and all conditions of any such consents have been complied with; and

(e)                    Obligations Binding.  Its obligations under this Agreement 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)).

Section 6.            Miscellaneous.

(a)                    This Agreement shall be governed by and construed in accordance with the laws of the State of New York.  This Agreement may be executed in any number of counterparts, all of which shall constitute one and the same instrument, and any party hereto may execute this Agreement by signing and delivering one or more counterparts.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter terms.  Unless otherwise expressly provided herein, references to agreements and other contractual instruments shall be deemed to include all subsequent amendments, restatements, extension, supplements and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements and other modifications are not prohibited by such agreements or contractual instruments.

(b)                    ALL ACTIONS, PROCEEDINGS OR COUNTERCLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK AND EACH PARTY AGREES THAT IT SHALL IN CONNECTION WITH ANY OF THE FOREGOING SUBMIT TO THE NONEXCLUSIVE JURISDICTION OF, AND AGREES TO VENUE IN, SUCH COURT AND WAIVES ANY OBJECTION TO VENUE LAID THEREIN.  EACH OF THE PARTIES HERETO ALSO IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.

(c)                    If any provision of this Agreement is held to be illegal, invalid or unenforceable, (i) the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby and (ii) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other.

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

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered as of the day and year 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
	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
	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

	CACTUS HOLDING COMPANY III, 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
	JERRY C. MOYES, in his individual capacity and as co-trustee of the Jerry And Vickie Moyes Family Trust
	VICKIE MOYES, in her individual capacity and as co-trustee of the Jerry And Vickie Moyes Family Trust
	JERRY AND VICKIE MOYES FAMILY TRUST, as Member and manager
		By:	/s/ Jerry C. Moyes
			Name: Jerry C. Moyes
			Title: Co-Trustee
		By:	/s/ Vickie Moyes
			Name: Vickie Moyes
			Title: Co-Trustee

	CITIGROUP GLOBAL MARKETS INC.
	By:	/s/ James Heathcote
		Authorized Signatory
	CITIGROUP GLOBAL MARKETS INC., as agent for Citigroup Global Markets Limited
	By:	/s/ James Heathcote
		Authorized Signatory
	CITIBANK, N.A.
	By:	/s/ James Heathcote
		Authorized Signatory

 

If the exact Reference Price is not set forth in the table and is between two Reference Prices on the table, the Total Deficiency Amount shall be determined by a straight-line interpolation, with reference to the next higher and next lower Reference Prices (and if the exact Reference Price exceeds the highest or is below the lowest Reference Price in the table, the Total Deficiency Amount shall each be extrapolated from the table by CGMI in a commercially reasonable manner).  The Total Deficiency Amount shall be rounded to the nearest 0.01.

FEBRUARY 2019 SUPPLEMENTAL CONFIRMATION

Date:	February 13, 2019
To:	Cactus Holding Company, LLC
	2200 South 75th Avenue
	Phoenix, AZ 85043
Attn:	Chad Killebrew
From:	Citigroup Global Markets Inc.
Fax No.:	212-615-8985

Reference Number:          To be advised by CGMI

The purpose of this February 2019 Supplemental Confirmation is to confirm the terms and conditions of the Transaction entered into between Citigroup Global Markets Inc. (“CGMI”) and Cactus Holding Company, LLC (“Counterparty”) on the Trade Date specified below.  This February 2019 Supplemental Confirmation is a binding contract between CGMI and Counterparty as of the relevant Trade Date for the Transaction referenced below.

1.          This February 2019 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 February 2019 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 February 2019 Supplemental Confirmation relates are as follows:

 

 

For each Component of the Transaction, the Scheduled Valuation Date and Number of Shares is set forth below:

Counterparty hereby agrees (a) to check this February 2019 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 February 2019 Supplemental Confirmation relates by manually signing this February 2019 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 February 2019 Supplemental Confirmation for Cactus I Forward]

If the exact Reference Price is not set forth in the table and is between two Reference Prices on the table, the Forward Floor Price and the Forward Cap Price shall each be determined by a straight-line interpolation, with reference to the next higher and next lower Reference Prices (and if the exact Reference Price exceeds the highest or is below the lowest Reference Price in the table, the Forward Floor Price and the Forward Cap Price shall each be extrapolated from the table by the Calculation Agent in a commercially reasonable manner).  The Forward Floor Price and Forward Cap Price shall each be rounded to the nearest 0.0001.

Back to Schedule 13D/A

 

FIFTH AMENDED AND RESTATED SUPPLEMENTAL CONFIRMATION

Date:	February 13, 2019
To:	Cactus Holding Company, LLC
	2200 South 75th Avenue
	Phoenix, AZ 85043
Attn:	Chad Killebrew
From:	Citigroup Global Markets Inc.
Fax No.:	212-615-8985

Reference Number:          To be advised by CGMI

The purpose of this Fifth 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 21, 2018 (such date, the “Fourth Amendment and Restatement Date” and such transaction, the “Fourth Amended and Restated Transaction”), which amended and restated the Transaction entered into between CGMI and Counterparty on November 16, 2017 (such date, the “Third Amendment and Restatement Date” and such transaction, the “Third Amended and Restated Transaction”), which amended and restated the Transaction entered into between CGMI and Counterparty on November 18, 2016 (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 CGMI and Counterparty on May 18, 2016 (such date, the “First Amendment 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 Fifth Amended and Restated Supplemental Confirmation, dated February 13, 2019 (the “Fifth Amended and Restated Supplemental Confirmation”), amends and restates in its entirety the Fourth Amended and Restated Supplemental Confirmation, dated May 21, 2018 (the “Fourth Amended and Restated Supplemental Confirmation”), and is subject to the Master Confirmation specified below.  All references to the Fourth Amended and Restated Supplemental Confirmation, the Third Amended and Restated Supplemental Confirmation, dated November 16, 2017 (the “Third Amended and Restated Supplemental Confirmation”), the Second Amended and Restated Supplemental Confirmation, dated November 18, 2016 (the “Second Amended and Restated Supplemental Confirmation”), the Amended and Restated Supplemental Confirmation, dated May 18, 2016 (the “First Amended and Restated Supplemental Confirmation”), the Supplemental Confirmation, dated October 30, 2015 (the “Original Supplemental Confirmation”) in the Master Confirmation or in any other documentation between the parties shall be to this Fifth 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 Fifth Amendment and Restatement Date were the Trade Date, the date the parties entered into a Transaction and the date of the Master Confirmation).  This Fifth 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 Fifth 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 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 Fifth 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 Fifth Amended and Restated Supplemental Confirmation relates are as follows:

 

 

For each Component of the Transaction, the Scheduled Valuation Date and Number of Shares (reflecting adjustments through the Fifth Amendment and Restatement Date) is set forth below:

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.

Counterparty hereby agrees (a) to check this Fifth 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 Fifth Amended and Restated Supplemental Confirmation relates by manually signing this Fifth 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 of the Manager
	By:	/s/ Vickie Moyes
		Name: Vickie Moyes
		Title: Co-Trustee of the Manager

[Signature Page to Fifth Amended and Restated Supplemental Confirmation for Cactus I Forward]

If the exact Amendment and Restatement Reference Price is not set forth in the table and is between two Amendment and Restatement Reference Prices on the table, the Forward Floor Price and the Forward Cap Price shall each be determined by a straight-line interpolation, with reference to the next higher and next lower Amended and Restated Reference Prices (and if the exact Amendment and Restatement Reference Price exceeds the highest or is below the lowest Amendment and Restatement Reference Price in the table, the Forward Floor Price and the Forward Cap Price shall each be extrapolated from the table by the Calculation Agent in a commercially reasonable manner).  The Forward Floor Price and Forward Cap Price shall each be rounded to the nearest 0.0001.

FOURTH AMENDED AND RESTATED MAY 2016 SUPPLEMENTAL CONFIRMATION

Date:	February 13, 2019
To:	Cactus Holding Company, LLC
	2200 South 75th Avenue
	Phoenix, AZ 85043
Attn:	Chad Killebrew
From:	Citigroup Global Markets Inc.
Fax No.:	212-615-8985

Reference Number:          To be advised by CGMI

The purpose of this Fourth 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 21, 2018 (such date, the “Third Amendment and Restatement Date” and such transaction, the “Third Amended and Restated Transaction”), which amended and restated the Transaction entered into between CGMI and Counterparty on November 16, 2017 (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 CGMI and Counterparty on November 18, 2016 (such date, the “First Amendment 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 May 18, 2016 (the “Original Transaction”).  This Fourth Amended and Restated May 2016 Supplemental Confirmation, dated February 13, 2019 (the “Fourth Amendment and Restatement Date”), amends and restates in its entirety the Third Amended and Restated May 2016 Supplemental Confirmation, dated May 21, 2018 (the “Third Amended and Restated Supplemental Confirmation”), and is subject to the Master Confirmation specified below.  All references to the Third Amended and Restated Supplemental Confirmation, the Second Amended and Restated May 2016 Supplemental Confirmation, dated November 16, 2017 (the “Second Amended and Restated Supplemental Confirmation”), the Amended and Restated May 2016 Supplemental Confirmation, dated November 18, 2016 (the “First Amended and Restated Supplemental Confirmation”) or the May 2016 Supplemental Confirmation, dated May 18, 2016 (the “Original Supplemental Confirmation”) in the Master Confirmation or in any other documentation between the parties shall be to this Fourth 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 Fourth 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 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 Fourth 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 Fourth 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 Fourth Amended and Restated May 2016 Supplemental Confirmation relates are as follows:

 

 

 

For each Component of the Transaction, the Scheduled Valuation Date and Number of Shares (reflecting adjustments through the Fourth Amendment and Restatement Date) is set forth below:

3.          For purposes of all Transactions under the Master Confirmation, the definition of “Shares” and “Issuer” are hereby amended by replacing “Shares” in its entirety with the following:

Shares:

The Class A common stock, par value $0.01 per share, of Knight-Swift Transportation Holdings Inc. (f/k/a Swift Transportation Company) (the “Issuer”).

4.          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:

5.          For purposes of all Transactions under the Master Confirmation, the definition of “Settlement Price” is hereby amended by replacing it in its entirety with the following:

Settlement Price:

The volume-weighted average price per Share on the relevant Valuation Date, as reasonably determined by the Calculation Agent by reference to the Bloomberg Page “KNX US <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.

6.          For purposes of all Transactions under the Master Confirmation, the “Share Adjustments” provision is hereby amended by:

(a)        Replacing the “Dividend Adjustments” provision in its entirety with the following; and

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 an Ordinary Cash Dividend to the extent it is an Excess Cash Dividend or for any dividend or distribution that is not an Ordinary Cash Dividend 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 is an Excess 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.

 

(b)       Adding the following provisions immediately after the “Dividend Adjustments” provision;

Ordinary Cash Dividend:

Any cash dividend or distribution that the Calculation Agent determines is an ordinary, quarterly cash dividend.

Excess Cash Dividend:

Any Ordinary Cash Dividend to the extent such Ordinary Cash Dividend, together with any other Ordinary Cash Dividend with an ex-dividend date in the same calendar quarter, exceeds the applicable Contractual Dividend.

Contractual Dividend:

USD 0.06 for each calendar quarter prior to June 30, 2019 and USD 0 for each calendar quarter thereafter (subject to adjustment by the Calculation Agent in its sole discretion in accordance with Calculation Agent Adjustment to account for any Potential Adjustment Event or Extraordinary Event and subject to adjustment by the Calculation Agent in its sole discretion to account for any change to the timing and/or frequency of payment of the Issuer’s regular dividend).

6.         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:

 

(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”);

7.         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”).

8.         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.

9.         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.

10.        For purposes of all Transactions under the Master Confirmation, the Pledge Agreement is hereby amended by:

(a)        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.

 (b)          References to “Class B Restrictions” and “Class B Shares” in the Pledge Agreement shall be deleted in each place they appear;

(c)           Replacing the definition of “Specified Dividend” with the following:

“Specified Dividend” means any Relevant Distribution (as defined in the Confirmation) (i) that is an Excess Cash Dividend (as defined in the Confirmation) and (ii) in respect of which the Pledgor has elected, in accordance with the terms of the Confirmation, to pay CGMI an amount equal to the amount of such Relevant Distribution in lieu of CGMI making the adjustments provided for in the Confirmation;

 (d)          Adding the following at the end of Section 3(k) in the Pledge Agreement:

If the Pledgor receives an Ordinary Cash Dividend and has not yet caused the Distribution to be delivered in accordance with Section 3(g), (A) CGMI shall, unless an Event of Default has occurred and is continuing or an Early Termination Date has been designated, direct the Pledgor that it may keep the portion of such Ordinary Cash Dividend that is not an Excess Cash Dividend and (B) Pledgor shall immediately deliver the remainder of such Ordinary Cash Dividend in accordance with Section 3(g).  If CGMI receives an Ordinary Cash Dividend in the Collateral Account, CGMI shall, unless an Event of Default has occurred and is continuing or an Early Termination Date has been designated, promptly deliver the portion of such Ordinary Cash Dividend that is not an Excess Cash Dividend to Pledgor and, upon such delivery, the Lien on such portion of such Ordinary Cash Dividend shall be released

; and

(e)          Adding the following at the end of Section 8(q) in the Pledge Agreement:

U.S. QFC Mandatory Contractual Requirements.  The parties hereby agree to incorporate by reference, mutatis mutandis, Section 8(k) (U.S. QFC Mandatory Contractual Requirements) of the Master Confirmation into this Agreement.

11.          For purposes of all Transactions under the Master Confirmation, Section 8 of the Master Confirmation is hereby amended by adding the following clause (k) at the end thereof:

(k)            U.S. QFC Mandatory Contractual Requirements.

(i)          Limitation on Exercise of Certain Default Rights Related to a CGMI Affiliate’s Entry Into Insolvency Proceedings. Notwithstanding anything to the contrary in the Agreement or any other agreement, the parties hereto expressly acknowledge and agree that subject to Section 8(k)(ii), Counterparty shall not be permitted to exercise any Default Right against Party A with respect to the Agreement or any other Relevant Agreement that is related, directly or indirectly, to a CGMI Affiliate becoming subject to an Insolvency Proceeding.

(ii)          General Creditor Protections. Nothing in Section 8(k)(i) shall restrict the exercise by Counterparty of any Default Right against CGMI with respect to the Agreement or any other Relevant Agreement that arises as a result of:

(1)          CGMI becoming subject to an Insolvency Proceeding; or

(2)          CGMI not satisfying a payment or delivery obligation pursuant to (A) the Agreement or any other Relevant Agreement, or (B) another contract between CGMI and Counterparty that gives rise to a Default Right under the Agreement or any other Relevant Agreement.

(iii)          Burden of Proof. After a CGMI Affiliate has become subject to an Insolvency Proceeding, if Counterparty seeks to exercise any Default Right with respect to the Agreement or any other Relevant Agreement, Counterparty shall have the burden of proof, by clear and convincing evidence, that the exercise of such Default Right is permitted hereunder or thereunder.

(iv)          General Conditions

(1)          Effective Date. The provisions set forth in Section 8(k) will come into effect on the later of the Applicable Compliance Date and the date of the Agreement.

(2)          Prior Adherence to the U.S. Protocol. If CGMI and Counterparty have adhered to the ISDA U.S. Protocol prior to the date of the Agreement, the terms of the ISDA U.S. Protocol shall be incorporated into and form a part of the Agreement and shall replace the terms of this Section 8(k). For purposes of incorporating the ISDA U.S. Protocol, CGMI shall be deemed to be a Regulated Entity, Counterparty shall be deemed to be an Adhering Party and the Agreement shall be deemed to be a Protocol Covered Agreement.

 

(3)          Subsequent Adherence to the U.S. Protocol. If, after the date of the Agreement, both CGMI and Counterparty shall have become adhering parties to the ISDA U.S. Protocol, the terms of the ISDA U.S. Protocol will supersede and replace this Section 8(k).

(v)          Definitions. For the purposes of this Section 8(k), the following definitions apply:

“Applicable Compliance Date” with respect to the Agreement shall be determined as follows: (a) if Counterparty is an entity subject to the requirements of the QFC Stay Rules, January 1, 2019, (b) if Counterparty is a Financial Counterparty (other than a Small Financial Institution) that is not an entity subject to the requirements of the QFC Stay Rules, July 1, 2019 and (c) if Counterparty is not described in clause (a) or (b), January 1, 2020.

“BHC Affiliate” has the same meaning as the term “affiliate” as defined in, and shall be interpreted in accordance with, 12 U.S.C. 1813(w) and 12 U.S.C. 1841(k).

“CGMI Affiliate” means, with respect to CGMI, a BHC Affiliate of that party.

“Credit Enhancement” means, with respect to the Agreement or any other Relevant Agreement, any credit enhancement or other credit support arrangement in support of the obligations of CGMI or Counterparty hereunder or thereunder or with respect hereto or thereto, including any guarantee or collateral arrangement (including any pledge, charge, mortgage or other security interest in collateral or title transfer arrangement), trust or similar arrangement, letter of credit, transfer of margin or any similar arrangement.

“Default Right” means, with respect to the Agreement (including any Transaction or Confirmation hereunder) or any other Relevant Agreement, any:

(i) right of a party, whether contractual or otherwise (including, without limitation, rights incorporated by reference to any other contract, agreement, or document, and rights afforded by statute, civil code, regulation, and common law), to liquidate, terminate, cancel, rescind, or accelerate such agreement or transactions thereunder, set off or net amounts owing in respect thereto (except rights related to same-day payment netting), exercise remedies in respect of collateral or other credit support or property related thereto (including the purchase and sale of property), demand payment or delivery thereunder or in respect thereof (other than a right or operation of a contractual provision arising solely from a change in the value of collateral or margin or a change in the amount of an economic exposure), suspend, delay, or defer payment or performance thereunder, or modify the obligations of a party thereunder, or any similar rights; and

(ii) right or contractual provision that alters the amount of collateral or margin that must be provided with respect to an exposure thereunder, including by altering any initial amount, threshold amount, variation margin, minimum transfer amount, the margin value of collateral, or any similar amount, that entitles a party to demand the return of any collateral or margin transferred by it to the other party or a custodian or that modifies a transferee’s right to reuse collateral or margin (if such right previously existed), or any similar rights, in each case, other than a right or operation of a contractual provision arising solely from a change in the value of collateral or margin or a change in the amount of an economic exposure; but (iii) solely with respect to Section 8(k)(i) does not include any right under a contract that allows a party to terminate the contract on demand or at its option at a specified time, or from time to time, without the need to show cause.

 

 “Financial Counterparty” has the meaning given to such term in, and shall be interpreted in accordance with, 12 C.F.R. 252.81, 12 C.F.R. 382.1 and 12 C.F.R. 47.2.

“Insolvency Proceeding” means a receivership, insolvency, liquidation, resolution, or similar proceeding.

“ISDA U.S. Protocol” means the ISDA 2018 U.S. Resolution Stay Protocol, as published by ISDA on July 31, 2018.

 “QFC Stay Rules” means the regulations codified at 12 C.F.R. 252.81–8 (the “Federal Reserve Rule”), 12 C.F.R. 382.1-7 (the “FDIC Rule”) and 12 C.F.R. 47.1-8 (the “OCC Rule”), respectively. All references herein to the specific provisions of the Federal Reserve Rule, the FDICs Rule and the OCC Rule shall be construed, with respect to CGMI, to the particular QFC Stay Rule(s) applicable to it.

“Relevant Agreement” means the Agreement (including all Transactions and Confirmations hereunder) and any Credit Enhancement relating hereto or thereto.

“Small Financial Institution” has the meaning given to such term in, and shall be interpreted in accordance with, 12 C.F.R. 252.81, 12 C.F.R. 382.1 and 12 C.F.R. 47.2.

Counterparty hereby agrees (a) to check this Fourth 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 Fourth Amended and Restated May 2016 Supplemental Confirmation relates by manually signing this Fourth 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 Fourth Amended and Restated May 2016 Supplemental Confirmation for Cactus I Forward]

If the exact Amendment and Restatement Reference Price is not set forth in the table and is between two Amendment and Restatement Reference Prices on the table, the Forward Floor Price and the Forward Cap Price shall each be determined by a straight-line interpolation, with reference to the next higher and next lower Amended and Restated Reference Prices (and if the exact Amendment and Restatement Reference Price exceeds the highest or is below the lowest Amendment and Restatement Reference Price in the table, the Forward Floor Price and the Forward Cap Price shall each be extrapolated from the table by the Calculation Agent in a commercially reasonable manner).  The Forward Floor Price and Forward Cap Price shall each be rounded to the nearest 0.0001.

 

Back to Schedule 13D/A

SEVENTH AMENDED AND RESTATED TRANSACTION 1 SUPPLEMENTAL CONFIRMATION

Date:	February 13, 2019
To:	M Capital Group Investors II, LLC
	2200 South 75th Avenue
	Phoenix, AZ 85043
Attn:	Chad Killebrew
From:	Citibank, N.A.
Fax No.:	212-615-8985

Reference Number:          NECOM7958825

The purpose of this Seventh 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 21, 2018 (such date, the “Sixth Amendment and Restatement Date” and such transaction, the “Sixth Amended and Restated Transaction”), which amended and restated the Transaction entered into between Citibank and Counterparty on November 16, 2017 (such date, the “Fifth Amendment and Restatement Date” and such transaction, the “Fifth Amended and Restated Transaction”), which amended and restated the Transaction entered into between Citibank and Counterparty on November 18, 2016 (such date, the “Fourth Amendment and Restatement Date” and such transaction, the “Fourth Amended and Restated Transaction”), which amended and restated the Transaction entered into between Citibank and Counterparty on May 18, 2016 (such date, the “Third Amendment 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 “First Amended and Restated Transaction”), which amended and restated the Transaction entered into between Citibank and Counterparty on October 29, 2013 (the “Original Transaction”).  This Seventh Amended and Restated Transaction 1 Supplemental Confirmation, dated February 13, 2019 (the “Seventh Amendment and Restatement Date”), amends and restates in its entirety the Sixth Amended and Restated Transaction 1 Supplemental Confirmation, dated May 21, 2018 (the “Sixth Amended and Restated Transaction 1 Supplemental Confirmation”), and is subject to the Master Confirmation specified below.  All references to the Sixth Amended and Restated Transaction 1 Supplemental Confirmation, the Fifth Amended and Restated Transaction 1 Supplemental Confirmation, dated November 16, 2017 (the “Fifth Amended and Restated Transaction 1 Supplemental Confirmation”), the Fourth Amended and Restated Transaction 1 Supplemental Confirmation, dated November 18, 2016 (the “Fourth Amended and Restated Transaction 1 Supplemental Confirmation”), the Third Amended and Restated Transaction 1 Supplemental Confirmation, dated May 19, 2016 (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 any other documentation between the parties shall be to this Seventh 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 Seventh Amendment and Restatement Date were the Trade Date, the date the parties entered into a Transaction and the date of the Master Confirmation). This Seventh 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 Seventh 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 Seventh 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 Seventh Amended and Restated Transaction 1 Supplemental Confirmation relates are as follows:

 

 

 

 

 

For each Component of the Transaction, the Scheduled Valuation Date and Number of Shares (reflecting adjustments through the Seventh Amendment and Restatement Date) is set forth below:

3.          For purposes of all Transactions under the Master Confirmation, the definition of “Shares” and “Issuer” are hereby amended by replacing “Shares” in its entirety with the following:

Shares:

The Class A common stock, par value $0.01 per share, of Knight-Swift Transportation Holdings Inc. (f/k/a Swift Transportation Company) (the “Issuer”).

 

4.          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 Citibank 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 Citibank 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 Citibank’s satisfaction or Citibank has waived such conditions:

5.          For purposes of all Transactions under the Master Confirmation, the definition of “Settlement Price” is hereby amended by replacing it in its entirety with the following:

Settlement Price:

The volume-weighted average price per Share on the relevant Valuation Date, as reasonably determined by the Calculation Agent by reference to the Bloomberg Page “KNX US <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.

6.          For purposes of all Transactions under the Master Confirmation, the “Share Adjustments” provision is hereby amended by:

(a)        Replacing the “Dividend Adjustments” provision in its entirety with the following; and

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 an Ordinary Cash Dividend to the extent it is an Excess Cash Dividend or for any dividend or distribution that is not an Ordinary Cash Dividend 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 is an Excess Cash Dividend, Counterparty may elect, by written notice to Citibank 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 Citibank, 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.

 

 

(b)        Adding the following provisions immediately after the “Dividend Adjustments” provision;

Ordinary Cash Dividend:

Any cash dividend or distribution that the Calculation Agent determines is an ordinary, quarterly cash dividend.

Excess Cash Dividend:

Any Ordinary Cash Dividend to the extent such Ordinary Cash Dividend, together with any other Ordinary Cash Dividend with an ex-dividend date in the same calendar quarter, exceeds the applicable Contractual Dividend.

Contractual Dividend:

USD 0.06 for each calendar quarter prior to June 30, 2019 and USD 0 for each calendar quarter thereafter (subject to adjustment by the Calculation Agent in its sole discretion in accordance with Calculation Agent Adjustment to account for any Potential Adjustment Event or Extraordinary Event and subject to adjustment by the Calculation Agent in its sole discretion to account for any change to the timing and/or frequency of payment of the Issuer’s regular dividend).

7.          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.

8.          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”.

9.          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

10.          For purposes of all Transactions under the Master Confirmation, the Pledge Agreement is hereby amended by:

(a)          Adding 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”;

(b)          References to “Class B Restrictions” and “Class B Shares” in the Pledge Agreement shall be deleted in each place they appear;

(c)          Replacing the definition of “Specified Dividend” with the following:

 

  “Specified Dividend” means any Relevant Distribution (as defined in the Confirmation) (i) that is an Excess Cash Dividend (as defined in the Confirmation) and (ii) in respect of which the Pledgor has elected, in accordance with the terms of the Confirmation, to pay Citibank an amount equal to the amount of such Relevant Distribution in lieu of Citibank making the adjustments provided for in the Confirmation;

(d)          Adding the following at the end of Section 3(k) in the Pledge Agreement:

If the Pledgor receives an Ordinary Cash Dividend and has not yet caused the Distribution to be delivered in accordance with Section 3(g), (A) Citibank shall, unless an Event of Default has occurred and is continuing or an Early Termination Date has been designated, direct the Pledgor that it may keep the portion of such Ordinary Cash Dividend that is not an Excess Cash Dividend and (B) Pledgor shall immediately deliver the remainder of such Ordinary Cash Dividend in accordance with Section 3(g). If Citibank receives an Ordinary Cash Dividend in the Collateral Account, Citibank shall, unless an Event of Default has occurred and is continuing or an Early Termination Date has been designated, promptly deliver the portion of such Ordinary Cash Dividend that is not an Excess Cash Dividend to Pledgor and, upon such delivery, the Lien on such portion of such Ordinary Cash Dividend shall be released

; and

(e)          Adding the following at the end of Section 8(q) in the Pledge Agreement:

U.S. QFC Mandatory Contractual Requirements.  The parties hereby agree to incorporate by reference, mutatis mutandis, Section 8(k) (U.S. QFC Mandatory Contractual Requirements) of the Master Confirmation into this Agreement.

11.          For purposes of all Transactions under the Master Confirmation, Section 8 of the Master Confirmation is hereby amended by adding the following clause (k) at the end thereof:

(k)           U.S. QFC Mandatory Contractual Requirements.

(i)          Limitation on Exercise of Certain Default Rights Related to a Citibank Affiliate’s Entry Into Insolvency Proceedings. Notwithstanding anything to the contrary in the Agreement or any other agreement, the parties hereto expressly acknowledge and agree that subject to Section 8(k)(ii), Counterparty shall not be permitted to exercise any Default Right against Party A with respect to the Agreement or any other Relevant Agreement that is related, directly or indirectly, to a Citibank Affiliate becoming subject to an Insolvency Proceeding.

(ii)          General Creditor Protections. Nothing in Section 8(k)(i) shall restrict the exercise by Counterparty of any Default Right against Citibank with respect to the Agreement or any other Relevant Agreement that arises as a result of:

(1)          Citibank becoming subject to an Insolvency Proceeding; or

(2)          Citibank not satisfying a payment or delivery obligation pursuant to (A) the Agreement or any other Relevant Agreement, or (B) another contract between Citibank and Counterparty that gives rise to a Default Right under the Agreement or any other Relevant Agreement.

 

(iii)          Burden of Proof. After a Citibank Affiliate has become subject to an Insolvency Proceeding, if Counterparty seeks to exercise any Default Right with respect to the Agreement or any other Relevant Agreement, Counterparty shall have the burden of proof, by clear and convincing evidence, that the exercise of such Default Right is permitted hereunder or thereunder.

(iv)          General Conditions

(1)          Effective Date. The provisions set forth in Section 8(k) will come into effect on the later of the Applicable Compliance Date and the date of the Agreement.

(2)          Prior Adherence to the U.S. Protocol. If Citibank and Counterparty have adhered to the ISDA U.S. Protocol prior to the date of the Agreement, the terms of the ISDA U.S. Protocol shall be incorporated into and form a part of the Agreement and shall replace the terms of this Section 8(k). For purposes of incorporating the ISDA U.S. Protocol, Citibank shall be deemed to be a Regulated Entity, Counterparty shall be deemed to be an Adhering Party and the Agreement shall be deemed to be a Protocol Covered Agreement.

(3)          Subsequent Adherence to the U.S. Protocol. If, after the date of the Agreement, both Citibank and Counterparty shall have become adhering parties to the ISDA U.S. Protocol, the terms of the ISDA U.S. Protocol will supersede and replace this Section 8(k).

(v)          Definitions. For the purposes of this Section 8(k), the following definitions apply:

“Applicable Compliance Date” with respect to the Agreement shall be determined as follows: (a) if Counterparty is an entity subject to the requirements of the QFC Stay Rules, January 1, 2019, (b) if Counterparty is a Financial Counterparty (other than a Small Financial Institution) that is not an entity subject to the requirements of the QFC Stay Rules, July 1, 2019 and (c) if Counterparty is not described in clause (a) or (b), January 1, 2020.

“BHC Affiliate” has the same meaning as the term “affiliate” as defined in, and shall be interpreted in accordance with, 12 U.S.C. 1813(w) and 12 U.S.C. 1841(k).

“Citibank Affiliate” means, with respect to Citibank, a BHC Affiliate of that party.

“Credit Enhancement” means, with respect to the Agreement or any other Relevant Agreement, any credit enhancement or other credit support arrangement in support of the obligations of Citibank or Counterparty hereunder or thereunder or with respect hereto or thereto, including any guarantee or collateral arrangement (including any pledge, charge, mortgage or other security interest in collateral or title transfer arrangement), trust or similar arrangement, letter of credit, transfer of margin or any similar arrangement.

“Default Right” means, with respect to the Agreement (including any Transaction or Confirmation hereunder) or any other Relevant Agreement, any:

(i) right of a party, whether contractual or otherwise (including, without limitation, rights incorporated by reference to any other contract, agreement, or document, and rights afforded by statute, civil code, regulation, and common law), to liquidate, terminate, cancel, rescind, or accelerate such agreement or transactions thereunder, set off or net amounts owing in respect thereto (except rights related to same-day payment netting), exercise remedies in respect of collateral or other credit support or property related thereto (including the purchase and sale of property), demand payment or delivery thereunder or in respect thereof (other than a right or operation of a contractual provision arising solely from a change in the value of collateral or margin or a change in the amount of an economic exposure), suspend, delay, or defer payment or performance thereunder, or modify the obligations of a party thereunder, or any similar rights; and

(ii) right or contractual provision that alters the amount of collateral or margin that must be provided with respect to an exposure thereunder, including by altering any initial amount, threshold amount, variation margin, minimum transfer amount, the margin value of collateral, or any similar amount, that entitles a party to demand the return of any collateral or margin transferred by it to the other party or a custodian or that modifies a transferee’s right to reuse collateral or margin (if such right previously existed), or any similar rights, in each case, other than a right or operation of a contractual provision arising solely from a change in the value of collateral or margin or a change in the amount of an economic exposure; but (iii) solely with respect to Section 8(k)(i) does not include any right under a contract that allows a party to terminate the contract on demand or at its option at a specified time, or from time to time, without the need to show cause.

 

 “Financial Counterparty” has the meaning given to such term in, and shall be interpreted in accordance with, 12 C.F.R. 252.81, 12 C.F.R. 382.1 and 12 C.F.R. 47.2.

“Insolvency Proceeding” means a receivership, insolvency, liquidation, resolution, or similar proceeding.

“ISDA U.S. Protocol” means the ISDA 2018 U.S. Resolution Stay Protocol, as published by ISDA on July 31, 2018.

 “QFC Stay Rules” means the regulations codified at 12 C.F.R. 252.81–8 (the “Federal Reserve Rule”), 12 C.F.R. 382.1-7 (the “FDIC Rule”) and 12 C.F.R. 47.1-8 (the “OCC Rule”), respectively. All references herein to the specific provisions of the Federal Reserve Rule, the FDICs Rule and the OCC Rule shall be construed, with respect to Citibank, to the particular QFC Stay Rule(s) applicable to it.

“Relevant Agreement” means the Agreement (including all Transactions and Confirmations hereunder) and any Credit Enhancement relating hereto or thereto.

“Small Financial Institution” has the meaning given to such term in, and shall be interpreted in accordance with, 12 C.F.R. 252.81, 12 C.F.R. 382.1 and 12 C.F.R. 47.2.

Counterparty hereby agrees (a) to check this Seventh 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 Seventh Amended and Restated Transaction 1 Supplemental Confirmation relates by manually signing this Seventh 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 of the Manager
	By:	/s/ Vickie Moyes
		Name: Vickie Moyes
		Title: Co-Trustee of the Manager

[Signature Page to Seventh Amended and Restated Transaction 1 Supplemental Confirmation]

If the exact Amendment and Restatement Reference Price is not set forth in the table and is between two Amendment and Restatement Reference Prices on the table, the Forward Floor Price and the Forward Cap Price shall each be determined by a straight-line interpolation, with reference to the next higher and next lower Amended and Restated Reference Prices (and if the exact Amendment and Restatement Reference Price exceeds the highest or is below the lowest Amendment and Restatement Reference Price in the table, the Forward Floor Price and the Forward Cap Price shall each be extrapolated from the table by the Calculation Agent in a commercially reasonable manner).  The Forward Floor Price and Forward Cap Price shall each be rounded to the nearest 0.0001.

Back to Schedule 13D/A

FOURTH AMENDED AND RESTATED TRANSACTION 1 SUPPLEMENTAL CONFIRMATION

Date:	February 13, 2019
To:	M Capital Group Investors II, LLC
	2200 South 75th Avenue
	Phoenix, AZ 85043
Attn:	Chad Killebrew
From:	Citigroup Global Markets Inc.
Fax No.:	212-615-8985

Reference Number:          To be advised by CGMI

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 Citigroup Global Markets Inc. (“CGMI”) and M Capital Group Investors II, LLC (“Counterparty”) on May 21, 2018 (such date, the “Third Amendment and Restatement Date” and such transaction, the “Third Amended and Restated Transaction”), which amended and restated the Transaction entered into between CGMI and Counterparty on November 16, 2017 (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 CGMI and Counterparty on November 18, 2016 (such date, the “First Amendment 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 May 18, 2016 (the “Original Transaction”).  This Fourth Amended and Restated Transaction 1 Supplemental Confirmation, dated February 13, 2019 (the “Fourth Amendment and Restatement Date”), amends and restates in its entirety the Third Amended and Restated Transaction 1 Supplemental Confirmation, dated May 21, 2018 (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 November 16, 2017 (the “Second Amended and Restated Transaction 1 Supplemental Confirmation”), the First Amended and Restated Transaction 1 Supplemental Confirmation, dated November 18, 2016 (the “First Amended and Restated Transaction 1 Supplemental Confirmation”) or the Transaction 1 Supplemental Confirmation, dated May 18, 2016 (the “Original Transaction 1 Supplemental Confirmation”) in the Master Confirmation or in any 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 Fourth 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 CGMI 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 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 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:

 

 

 

 

For each Component of the Transaction, the Scheduled Valuation Date and Number of Shares (reflecting adjustments through the Fourth Amendment and Restatement Date) is set forth below:

 

 

3.          For purposes of all Transactions under the Master Confirmation, the definition of “Shares” and “Issuer” are hereby amended by replacing “Shares” in its entirety with the following:

Shares:

The Class A common stock, par value $0.01 per share, of Knight-Swift Transportation Holdings Inc. (f/k/a Swift Transportation Company) (the “Issuer”).

4.          For purposes of all Transactions under the Master Confirmation, the definition of “Settlement Price” is hereby amended by replacing it in its entirety with the following:

Settlement Price:

The volume-weighted average price per Share on the relevant Valuation Date, as reasonably determined by the Calculation Agent by reference to the Bloomberg Page “KNX US <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.

5.          For purposes of all Transactions under the Master Confirmation, the “Share Adjustments” provision is hereby amended by:

(a)        Replacing the “Dividend Adjustments” provision in its entirety with the following; and

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 an Ordinary Cash Dividend to the extent it is an Excess Cash Dividend or for any dividend or distribution that is not an Ordinary Cash Dividend 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 is an Excess 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.

(b)       Adding the following provisions immediately after the “Dividend Adjustments” provision;

Ordinary Cash Dividend:

Any cash dividend or distribution that the Calculation Agent determines is an ordinary, quarterly cash dividend.

Excess Cash Dividend:

Any Ordinary Cash Dividend to the extent such Ordinary Cash Dividend, together with any other Ordinary Cash Dividend with an ex-dividend date in the same calendar quarter, exceeds the applicable Contractual Dividend.

 

Contractual Dividend:

USD 0.06 for each calendar quarter prior to June 30, 2019 and USD 0 for each calendar quarter thereafter (subject to adjustment by the Calculation Agent in its sole discretion in accordance with Calculation Agent Adjustment to account for any Potential Adjustment Event or Extraordinary Event and subject to adjustment by the Calculation Agent in its sole discretion to account for any change to the timing and/or frequency of payment of the Issuer’s regular dividend).

6.         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.

7.          For purposes of all Transactions under the Master Confirmation, the Pledge Agreement is hereby amended by:

(a)        References to “Class B Restrictions” and “Class B Shares” in the Pledge Agreement shall be deleted in each place they appear;

(b)        Replacing the definition of “Specified Dividend” with the following:

 

“Specified Dividend” means any Relevant Distribution (as defined in the Confirmation) (i) that is an Excess Cash Dividend (as defined in the Confirmation) and (ii) in respect of which the Pledgor has elected, in accordance with the terms of the Confirmation, to pay CGMI an amount equal to the amount of such Relevant Distribution in lieu of CGMI making the adjustments provided for in the Confirmation;

(c)       Adding the following at the end of Section 3(k) in the Pledge Agreement:

 

If the Pledgor receives an Ordinary Cash Dividend and has not yet caused the Distribution to be delivered in accordance with Section 3(g), (A) CGMI shall, unless an Event of Default has occurred and is continuing or an Early Termination Date has been designated, direct the Pledgor that it may keep the portion of such Ordinary Cash Dividend that is not an Excess Cash Dividend and (B) Pledgor shall immediately deliver the remainder of such Ordinary Cash Dividend in accordance with Section 3(g).  If CGMI receives an Ordinary Cash Dividend in the Collateral Account, CGMI shall, unless an Event of Default has occurred and is continuing or an Early Termination Date has been designated, promptly deliver the portion of such Ordinary Cash Dividend that is not an Excess Cash Dividend to Pledgor and, upon such delivery, the Lien on such portion of such Ordinary Cash Dividend shall be released

; and

(d)      Adding the following at the end of Section 8(q) in the Pledge Agreement:

U.S. QFC Mandatory Contractual Requirements.  The parties hereby agree to incorporate by reference, mutatis mutandis, Section 8(k) (U.S. QFC Mandatory Contractual Requirements) of the Master Confirmation into this Agreement.

8.         For purposes of all Transactions under the Master Confirmation, Section 8 of the Master Confirmation is hereby amended by adding the following clause (k) at the end thereof:

(k)               U.S. QFC Mandatory Contractual Requirements.

(i)          Limitation on Exercise of Certain Default Rights Related to a CGMI Affiliate’s Entry Into Insolvency Proceedings. Notwithstanding anything to the contrary in the Agreement or any other agreement, the parties hereto expressly acknowledge and agree that subject to Section 8(k)(ii), Counterparty shall not be permitted to exercise any Default Right against Party A with respect to the Agreement or any other Relevant Agreement that is related, directly or indirectly, to a CGMI Affiliate becoming subject to an Insolvency Proceeding.

 

(ii)          General Creditor Protections. Nothing in Section 8(k)(i) shall restrict the exercise by Counterparty of any Default Right against CGMI with respect to the Agreement or any other Relevant Agreement that arises as a result of:

(1)          CGMI becoming subject to an Insolvency Proceeding; or

(2)          CGMI not satisfying a payment or delivery obligation pursuant to (A) the Agreement or any other Relevant Agreement, or (B) another contract between CGMI and Counterparty that gives rise to a Default Right under the Agreement or any other Relevant Agreement.

(iii)          Burden of Proof. After a CGMI Affiliate has become subject to an Insolvency Proceeding, if Counterparty seeks to exercise any Default Right with respect to the Agreement or any other Relevant Agreement, Counterparty shall have the burden of proof, by clear and convincing evidence, that the exercise of such Default Right is permitted hereunder or thereunder.

(iv)          General Conditions

(1)          Effective Date. The provisions set forth in Section 8(k) will come into effect on the later of the Applicable Compliance Date and the date of the Agreement.

(2)          Prior Adherence to the U.S. Protocol. If CGMI and Counterparty have adhered to the ISDA U.S. Protocol prior to the date of the Agreement, the terms of the ISDA U.S. Protocol shall be incorporated into and form a part of the Agreement and shall replace the terms of this Section 8(k). For purposes of incorporating the ISDA U.S. Protocol, CGMI shall be deemed to be a Regulated Entity, Counterparty shall be deemed to be an Adhering Party and the Agreement shall be deemed to be a Protocol Covered Agreement.

(3)          Subsequent Adherence to the U.S. Protocol. If, after the date of the Agreement, both CGMI and Counterparty shall have become adhering parties to the ISDA U.S. Protocol, the terms of the ISDA U.S. Protocol will supersede and replace this Section 8(k).

(v)          Definitions. For the purposes of this Section 8(k), the following definitions apply:

“Applicable Compliance Date” with respect to the Agreement shall be determined as follows: (a) if Counterparty is an entity subject to the requirements of the QFC Stay Rules, January 1, 2019, (b) if Counterparty is a Financial Counterparty (other than a Small Financial Institution) that is not an entity subject to the requirements of the QFC Stay Rules, July 1, 2019 and (c) if Counterparty is not described in clause (a) or (b), January 1, 2020.

“BHC Affiliate” has the same meaning as the term “affiliate” as defined in, and shall be interpreted in accordance with, 12 U.S.C. 1813(w) and 12 U.S.C. 1841(k).

“CGMI Affiliate” means, with respect to CGMI, a BHC Affiliate of that party.

“Credit Enhancement” means, with respect to the Agreement or any other Relevant Agreement, any credit enhancement or other credit support arrangement in support of the obligations of CGMI or Counterparty hereunder or thereunder or with respect hereto or thereto, including any guarantee or collateral arrangement (including any pledge, charge, mortgage or other security interest in collateral or title transfer arrangement), trust or similar arrangement, letter of credit, transfer of margin or any similar arrangement.

“Default Right” means, with respect to the Agreement (including any Transaction or Confirmation hereunder) or any other Relevant Agreement, any:

(i) right of a party, whether contractual or otherwise (including, without limitation, rights incorporated by reference to any other contract, agreement, or document, and rights afforded by statute, civil code, regulation, and common law), to liquidate, terminate, cancel, rescind, or accelerate such agreement or transactions thereunder, set off or net amounts owing in respect thereto (except rights related to same-day payment netting), exercise remedies in respect of collateral or other credit support or property related thereto (including the purchase and sale of property), demand payment or delivery thereunder or in respect thereof (other than a right or operation of a contractual provision arising solely from a change in the value of collateral or margin or a change in the amount of an economic exposure), suspend, delay, or defer payment or performance thereunder, or modify the obligations of a party thereunder, or any similar rights; and

(ii) right or contractual provision that alters the amount of collateral or margin that must be provided with respect to an exposure thereunder, including by altering any initial amount, threshold amount, variation margin, minimum transfer amount, the margin value of collateral, or any similar amount, that entitles a party to demand the return of any collateral or margin transferred by it to the other party or a custodian or that modifies a transferee’s right to reuse collateral or margin (if such right previously existed), or any similar rights, in each case, other than a right or operation of a contractual provision arising solely from a change in the value of collateral or margin or a change in the amount of an economic exposure; but (iii) solely with respect to Section 8(k)(i) does not include any right under a contract that allows a party to terminate the contract on demand or at its option at a specified time, or from time to time, without the need to show cause.

 “Financial Counterparty” has the meaning given to such term in, and shall be interpreted in accordance with, 12 C.F.R. 252.81, 12 C.F.R. 382.1 and 12 C.F.R. 47.2.

“Insolvency Proceeding” means a receivership, insolvency, liquidation, resolution, or similar proceeding.

“ISDA U.S. Protocol” means the ISDA 2018 U.S. Resolution Stay Protocol, as published by ISDA on July 31, 2018.

 “QFC Stay Rules” means the regulations codified at 12 C.F.R. 252.81–8 (the “Federal Reserve Rule”), 12 C.F.R. 382.1-7 (the “FDIC Rule”) and 12 C.F.R. 47.1-8 (the “OCC Rule”), respectively. All references herein to the specific provisions of the Federal Reserve Rule, the FDICs Rule and the OCC Rule shall be construed, with respect to CGMI, to the particular QFC Stay Rule(s) applicable to it.

“Relevant Agreement” means the Agreement (including all Transactions and Confirmations hereunder) and any Credit Enhancement relating hereto or thereto.

“Small Financial Institution” has the meaning given to such term in, and shall be interpreted in accordance with, 12 C.F.R. 252.81, 12 C.F.R. 382.1 and 12 C.F.R. 47.2.

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,
			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 of the Manager
	By:	/s/ Vickie Moyes
		Name: Vickie Moyes
		Title: Co-Trustee of the Manager

[Signature Page to M Capital II CGMI Fourth Amended and Restated Transaction 1 Supplemental Confirmation]

If the exact Amendment and Restatement Reference Price is not set forth in the table and is between two Amendment and Restatement Reference Prices on the table, the Forward Floor Price and the Forward Cap Price shall each be determined by a straight-line interpolation, with reference to the next higher and next lower Amended and Restated Reference Prices (and if the exact Amendment and Restatement Reference Price exceeds the highest or is below the lowest Amendment and Restatement Reference Price in the table, the Forward Floor Price and the Forward Cap Price shall each be extrapolated from the table by the Calculation Agent in a commercially reasonable manner).  The Forward Floor Price and Forward Cap Price shall each be rounded to the nearest 0.0001.