Exhibit 10.1
SHARE
PURCHASE AGREEMENT
Saia, Inc.
11465 Johns Creek Parkway, Suite 400
Johns Creek, Georgia 30097
Ladies and Gentlemen:
The undersigned (the
Investor
) hereby
confirms its agreement with you as follows:
1. This Share Purchase Agreement (the
Agreement
) is made as of December 22,
2009 between Saia, Inc., a Delaware corporation (the
Company
), and the Investor listed on the
signature pages hereto.
2. The Company is proposing to issue and sell to certain
investors (the
Offering
) shares of the
Companys common stock, $0.001 par value per share
(the
Shares
) at a purchase price of $11.50
per share. The Shares are being offered to persons who are
Qualified Institutional Buyers, or QIBs, as defined in
Rule 144A promulgated under the Securities Act of 1933, as
amended (the
Securities Act
), pursuant to a
private placement exemption from registration under the
Securities Act.
3. The Offering shall be subject to any terms described in
the private placement memorandum dated December 22, 2009
relating to the Offering (as may be supplemented or updated on
or prior to the Closing (as defined in the Terms and Conditions
for Purchase of Shares attached hereto as
Annex A
)
(the
Private Placement Memorandum
)).
4. The Company and the Investor agree that, upon the terms
and subject to the conditions set forth herein, the Investor
will purchase from the Company and the Company will issue and
sell to the Investor, the number of Shares set forth below for
the aggregate purchase price set forth below, pursuant to and
subject to the Terms and Conditions for Purchase of Shares
attached hereto as
Annex A
and incorporated herein
by reference as if fully set forth herein. Unless otherwise
requested by the Investor and agreed to by the Company, the
Shares purchased by the Investor will be delivered in
uncertificated form, registered in the Investors name and
address as set forth below and will be released by Computershare
Trust Company, the Companys transfer agent (the
Transfer Agent
), to the Investor at the
Closing (as defined in the Terms and Conditions for Purchase of
Shares). Following Closing, a statement will be mailed to the
Investor at such address by the Transfer Agent evidencing such
issuance and registration.
5. By executing this Share Purchase Agreement, each of the
Company and the Investor agree to comply with the terms and
conditions of the registration rights agreement attached hereto
as
Appendix I
(the
Registration Rights
Agreement
).
[
Signature Page to Follow
]
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Number of Shares the Investor Agrees to Purchase:
Aggregate Purchase Price of such Shares: $
Please confirm that the foregoing correctly sets forth the
agreement between us by signing in the space provided below for
that purpose.
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AGREED AND ACCEPTED:
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Name of Investor:
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SAIA, INC.,
a Delaware corporation
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Fund Name:
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By:
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By:
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Name:
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Print Name:
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Title:
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Title:
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Address:
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Tax ID No.:
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Contact Name:
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Telephone:
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Email Address:
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Wire instructions to wire funds to the Investor, in the event
the Escrow Agent is required to return the funds of the Investor
held in escrow:
ABA:
Bank Account Number:
FFC:
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Name under which shares should be registered (if different):
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Address under which shares should be registered (if
different):
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2
INSTRUCTION SHEET
FOR INVESTOR
(to be read
in conjunction with the entire Share Purchase Agreement)
Complete the following items in the Share Purchase Agreement:
1. Provide the information regarding the Investor requested
on pages 1 and 2. The Agreement must be executed by an
individual authorized to bind the Investor.
2. If the Investor is purchasing Shares for more than one
investor account, it may either (i) complete a separate
Share Purchase Agreement for each such account, in which case a
separate wire transfer (or other acceptable forms of payment)
must be made by or on behalf of such account for the Shares it
will purchase and a separate delivery of Shares will be made to
each account (by registering such Shares in the share registry
under the Direct Registration System, or DRS), or
(ii) complete a single Share Purchase Agreement for all
such accounts, in which case only one wire transfer (or other
acceptable forms of payment) need be made for the Shares to be
purchased for all such accounts, but all such Shares will be
delivered to a single account (by registering such Shares in the
share registry under the DRS) specified by the Investor.
3. Return the signed Share Purchase Agreement to:
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York, 10036
Attention: Kalli Cockinos
Tel: (212) 761-5474
Fax: (212) 404-9828
Email: Kalli.Cockinos@morganstanley.com
4.
Please note that all wire transfers must be sent to
the account specified in Section 3.4 below.
An executed original Share Purchase Agreement or a facsimile
transmission (or other electronic transmission) thereof must be
received by 2:00 p.m. New York time on
December 21, 2009. Investors who send a facsimile
transmission (or other electronic transmission) prior to such
deadline must also submit an original via courier as soon
thereafter as practicable.
3
ANNEX A
TO THE SHARE PURCHASE AGREEMENT
TERMS AND
CONDITIONS FOR PURCHASE OF SHARES
1.
Authorization and Sale of
Shares
.
The Company is proposing to sell up
to 2,310,000 Shares. The Company reserves the right to
increase or decrease this amount.
2.
Agreement to Sell and Purchase the Shares;
Placement Agent
.
2.1 Upon the terms and subject to the conditions
hereinafter set forth, at the Closing (as defined in
Section 3), the Company will sell to the Investor, and the
Investor will purchase from the Company, the number of shares
set forth on such Investors signature page hereto at the
aggregate purchase price set forth on such signature page;
provided that, if the Company sells and the Investor buys an
amount of Shares less than the amount set forth on the signature
page hereto, the aggregate purchase price of such Shares will be
reduced proportionately.
2.2 The Company intends to enter into agreements similar to
this Agreement with certain other investors (the
Other
Investors
) and expects to complete sales of Shares to
them (The Investor and the Other Investors are hereinafter
sometimes collectively referred to as the
Investors,
and this Agreement and the share
purchase agreements executed by the Other Investors are
hereinafter sometimes collectively referred to as the
Agreements.
).
2.3 The Investor acknowledges that the Company intends to
pay Morgan Stanley & Co. Incorporated. (the
Placement Agent
) a fee in respect of the sale
of Shares to the Investors.
3.
Closings and Delivery of Shares and Funds
.
3.1 The completion of the purchase and sale of the Shares
(the
Closing
) shall occur on
December 29, 2009 (the
Closing Date
), at
the offices of the Companys counsel. At the Closing,
(a) the Company shall cause the Transfer Agent to deliver
in uncertificated form (by registering such shares in the share
registry under the Direct Registration System, or DRS) to the
Investor the Accepted Shares (as defined below) under the name
of the Investor or such other name specified on the
Investors signature page to the Agreement, and
(b) the aggregate purchase price for the Accepted Shares
(as defined below) shall be delivered by or on behalf of the
Investor to the Company.
3.2 If the Company receives commitments from Investors to
purchase at least 2,310,000 Shares, but on the Closing Date, the
Company has received from Investors in settlement of their
commitments payment for less than 2,310,000 Shares, the
Company shall have the right (but not the obligation) in its
sole discretion to terminate this Agreement and the Offering. If
the Company accepts an Investors offer to buy Shares in
whole or in part, the Placement Agent shall notify the Investor
at the telephone number provided on such Investors
signature page hereto of the number of Shares the Company shall
sell to such Investor and such Investor shall purchase such
amount of Shares (the
Accepted Shares
).
Payment by an Investor for the Accepted Shares shall be made by
wire transfer of immediately available funds to the Escrow
Agent. If JPMorgan Chase Bank, National Association, as the
Companys escrow agent (the
Escrow
Agent
), determines that the conditions to the Closing
(including that payment for at least 2,310,000 Shares have
been received from Investors in settlement of their commitments)
are met, it shall deliver the Investors payment to the
Company, and the Company, upon receipt of such payment, shall
instruct the Transfer Agent to deliver in uncertificated form
(by registering such shares in the share registry under the DRS)
to the Investor the Accepted Shares under the name of the
Investor or such other name specified on the Investors
signature page to the Agreement. If such conditions to the
Closing are not satisfied, the Escrow Agent shall return the
Investors funds to it, without interest.
3.3 The Companys obligation to issue and sell
Accepted Shares to any Investor shall be subject to the
following conditions, any one or more of which may be waived by
the Company: (a) completion of the purchases and sales of
2,310,000 Shares under the Agreements with the Investors
and (b) the accuracy of the representations and warranties
made by the Investors and the fulfillment of those undertakings
of the Investors to be fulfilled prior to the Closing. The
Investors obligation to purchase the Shares shall be
subject to the condition that the Placement Agent shall not have
terminated the Placement Agent Agreement dated
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December 14, 2009, between the Company and the Placement
Agent (the
Placement Agent Agreement
),
pursuant to the terms thereof.
3.4 The Investor shall remit by wire transfer the amount of
funds equal to the aggregate purchase price for the Accepted
Shares being purchased by such Investor to the following account
designated by the Company pursuant to the terms of that certain
Escrow Agreement (the
Escrow Agreement
)
relating to the Offering, by and between the Company and the
Escrow Agent:
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Bank Name:
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JPMorgan Chase Bank N.A.
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ABA No.:
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021000021
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A/C:
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806033999
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A/C Name:
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Saia Escrow Account
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Additional Text (required):
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Attention: Greg Kupchynsky (212) 623-6812
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Such funds shall be remitted to the Escrow Agent prior to
4:00 p.m., New York City time, on December 28, 2009
and shall be held in escrow until the Closing and delivered by
the Escrow Agent on behalf of the Investor to the Company upon
the satisfaction, in the sole judgment of the Placement Agent,
of the conditions to the parties obligations under this
Agreement. The Investor agrees to indemnify and hold harmless
the Placement Agent and the Escrow Agent and their respective
directors, officers, employees and agents and each person who
controls such Placement Agent or Escrow Agent within the meaning
the Securities Act, and the Securities Exchange Act of 1934, as
amended, against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may
become subject (including, without limitation, legal or other
expenses reasonably incurred in connection with investigating or
defending the same) (
Losses
) arising under
this Section 3.4 or otherwise with respect to the funds
held in escrow pursuant hereto or arising under the Escrow
Agreement, except for Losses resulting from the willful
misconduct or gross negligence of such Placement Agent or Escrow
Agent;
provided however
, that the Investors
obligations under this sentence shall relate only to Losses
arising from any act or failure to act by the Investor. Anything
in this agreement to the contrary notwithstanding, in no event
shall the Placement Agent or the Escrow Agent be liable for any
special, indirect or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if
the Placement Agent or Escrow Agent have been advised of the
likelihood of such loss or damage and regardless of the form of
action.
3.5 Simultaneously with the delivery to the Company by the
Escrow Agent of the funds held in escrow pursuant to
Section 3.4 above, the Company shall instruct the Transfer
Agent to deliver in uncertificated form (by registering such
shares in the share registry under the DRS) to the Investor the
Accepted Shares under the name of the Investor or such other
name specified on the Investors signature page to the
Agreement.
4.
Representations, Warranties and Covenants of the
Company
.
The Company hereby represents and warrants to, and covenants
with, the Investor, that:
4.1 The Company has full right, power, authority and
capacity to enter into this Agreement and to consummate the
transactions contemplated hereby and has taken all necessary
action to authorize the execution, delivery and performance of
this Agreement.
4.2 The Company has the requisite corporate power and
authority to issue and sell the Shares. The Shares being
purchased by the Investor hereunder will, upon issuance and
payment therefor pursuant to the terms hereof, be duly
authorized, validly issued and fully-paid and nonassessable.
4.3 After taking into account the matters relating to the
Companys public filings with the Securities and Exchange
Commission (
SEC
) in the Companys
Form 10-K
for the year ended December 31, 2008,
Forms 10-Q
for the quarterly periods ended March 31, June 30 and
September 30, 2009, and
Forms 8-K
filed during 2009, including any amendments thereto
(collectively, the
Exchange Act Filings
), the
Exchange Act Filings, taken as a whole, as of the time filed
with the SEC, the Private Placement Memorandum, dated
December 22, 2009 (the
Private Placement
Memorandum)
, as of the date of the Agreements and as
of the Closing Date, and any amendments or supplements thereto,
as of their date and as of the Closing Date, did not
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and will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary in order to make the statements made therein, taken as
a whole, in light of the circumstances under which they were
made, not misleading.
5.
Representations, Warranties and Covenants of the
Investor
.
The Investor hereby represents and warrants to, and covenants
with, the Company and the Placement Agent that:
5.1 (1) The Investor is (a) a QIB as defined in
Rule 144A under the Securities Act, (b) aware that the
sale of the Shares to it is being made in reliance on a private
placement exemption from registration under the Securities Act
and (c) acquiring the Shares for its own account or for the
account over which it exercises sole investment discretion of a
QIB and not with a view to distribution.
(2) The Investor understands and agrees on behalf of itself
and on behalf of any investor account for which it is purchasing
Shares, and each subsequent holder of Shares by its acceptance
thereof will be deemed to agree, that the Shares are being
offered in a transaction not involving any public offering
within the meaning of the Securities Act, that the Shares have
not been and will not be registered under the Securities Act or
any other applicable securities laws and that (a) if it
decides to offer, resell, pledge or otherwise transfer any of
the Shares, such Shares may be offered, resold, pledged or
otherwise transferred only (i) to a person whom the seller
reasonably believes is a QIB in a transaction meeting the
requirements of Rule 144A, (ii) pursuant to an
exemption from the registration requirements of the Securities
Act, including the exemption provided by Rule 144 under the
Securities Act (if available), (iii) pursuant to an
effective registration statement under the Securities Act, or
(iv) to the Company, or one of its subsidiaries, in each of
cases (i) through (iv) in accordance with any
applicable securities laws of any state of the United States,
and that (b) the Investor will, and each subsequent holder
is required to, notify any subsequent purchaser of the Shares
from it of the resale restrictions referred to in (a) above
and will provide the Company and the Transfer Agent such
certificates and other information as they may reasonably
require to confirm that any transfer by such Investor of any
Shares complies with the foregoing restrictions, if applicable.
So long as the shares are in uncertificated form and registered
directly on the share registry, the Transfer Agent will not
permit transfers of such shares except in compliance with such
restrictions.
(3) The Investor understands that the Shares, unless sold
in compliance with Rule 144 under the Securities Act or
pursuant to the registration statement to be filed pursuant to
the Registration Rights Agreement, will, if issued in
certificated form, bear a legend substantially to the following
effect:
THIS SECURITY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE SECURITIES ACT), AND THIS
SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE
COMPANY THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
(II) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, INCLUDING THE
EXEMPTION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT (IF AVAILABLE), SUBJECT TO THE ISSUERS RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO THIS CLAUSE
(II) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO IT AND/OR
ITS TRANSFER AGENT THAT ANY SUCH EXEMPTION IS AVAILABLE TO
THE HOLDER, (III) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR (IV) TO THE ISSUER OR
ANY OF ITS SUBSIDIARIES, IN EACH OF CASES (I) THROUGH
(IV) IN ACCORDANCE
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WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY SUBSEQUENT PURCHASER OF THIS
SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN
(A) ABOVE.
(4) It:
(a) is able to fend for itself in the transactions
contemplated by the Private Placement Memorandum referred to
herein;
(b) has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and
risks of its prospective investment in the Shares;
(c) has the ability to bear the economic risks of its
prospective investment and can afford the complete loss of such
investment; and
(d) acknowledges that it is not acquiring the Shares as a
result of any general solicitation or general
advertising (within the meaning of Rule 502(c) under
the Securities Act), including advertisements, articles, notices
or other communications published in any newspaper, magazine, on
a web site or in or on any similar media, or broadcast over
radio or television, or any seminar or meeting whose attendees
have been invited by general solicitation or general advertising.
(5) The Investor has received a copy of the Private
Placement Memorandum and acknowledges that (a) it has
conducted its own investigation of the Company and the Shares
and, in conducting its investigation, it has not relied on the
Placement Agent or on any statements or other information
provided by the Placement Agent concerning the Company or the
terms of this offering, (b) it has had access to the
Companys Exchange Act Filings and such financial and other
information as it has deemed necessary to make its decision to
purchase the Shares, (c) has been offered the opportunity
to ask questions of the Company and received answers thereto, as
it has deemed necessary in connection with its decision to
purchase the Shares, and (d) it will not hold the Placement
Agent responsible for any statements in or omissions from any
publicly available information, including the Companys
Exchange Act Filings and the Private Placement Memorandum.
(6) The Investor understands that the Company, the
Placement Agent and others will rely upon the truth and accuracy
of the representations, acknowledgements and agreements
contained herein and agrees that if any of the representations
and acknowledgements deemed to have been made by it by its
purchase of the Shares is no longer accurate, the Investor shall
promptly notify the Company and the Placement Agent. If the
Investor is acquiring Shares as a fiduciary or agent for one or
more QIB investor accounts, it represents that it has sole
investment discretion with respect to each such account, and it
has full power to make the foregoing representations,
acknowledgements and agreements on behalf of such account.
5.2 The Investor acknowledges that the Placement Agent and
its directors, officers, employees, representatives and
controlling persons have no responsibility for making any
independent investigation of the information contained in the
Private Placement Memorandum and make no representation or
warranty to the Investor, express or implied, with respect to
the Company or the Shares or the accuracy, completeness or
adequacy of the Private Placement Memorandum or any publicly
available information, nor shall any of the foregoing persons be
liable for any loss or damages of any kind resulting from the
use of the information contained therein or otherwise supplied
to the Investor.
5.3 The Investor acknowledges that no action has been or
will be taken in any jurisdiction by the Company or the
Placement Agent that would permit an offering of the Shares, or
possession or distribution of offering materials in connection
with the issue of the Shares (including any filing of a
registration statement), in any jurisdiction where action for
that purpose is required. Each Investor will comply with all
applicable laws and regulations in each jurisdiction in which it
purchases, offers, sells or delivers Shares or has in its
possession or distributes any offering material, in all cases at
its own expense.
5.4 The Investor has full right, power, authority and
capacity to enter into this Agreement and to consummate the
transactions contemplated hereby and has taken all necessary
action to authorize the execution, delivery and performance of
this Agreement, and this Agreement constitutes a valid, binding,
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and enforceable obligation of the Investor, except as the
enforceability of the Agreement may be subject to or limited by
bankruptcy, insolvency, reorganization, arrangement, moratorium,
other similar laws relating to or affecting the rights of
creditors generally.
5.5 The entry into and performance of this Agreement by the
Investor and the consummation by the Investor of the
transactions contemplated hereby and thereby will not
(i) result in a violation of the organizational documents
of the Investor, (ii) conflict with, or constitute a
default under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement,
indenture or instrument to which the Investor is a party, or
(iii) result in the violation of any law, rule, regulation,
order, judgment or decree (including federal and state
securities laws) applicable to the Investor, except in the case
of clauses (ii) and (iii) above, for such conflicts,
defaults, rights or violations which would not, individually or
in the aggregate, reasonably be expected to have a material
adverse effect on the ability of the Investor to perform its
obligations hereunder.
5.6 The Investor understands that nothing in the Private
Placement Memorandum, this Agreement or any other materials
presented to the Investor in connection with the purchase and
sale of the Shares constitutes legal, tax or investment advice.
The Investor has consulted such legal, tax and investment
advisors as it, in its sole discretion, has deemed necessary or
appropriate in connection with its purchase of the Shares and
has made its own assessment and has satisfied itself concerning
the relevant tax and other economic considerations relevant to
its investment in the Shares.
6.
Survival of Representations, Warranties and
Agreements
.
Notwithstanding any investigation
made by any party to this Agreement, all covenants, agreements,
representations and warranties made by the Company and the
Investor herein shall survive the execution of this Agreement,
the delivery to the Investor of the Shares being purchased and
the payment therefor.
7.
Notices
.
All notices, requests,
consents and other communications hereunder shall be in writing
and shall be delivered (A) if within the domestic United
States, by first-class registered or certified mail, or
nationally recognized overnight express courier, postage
prepaid, or by facsimile, or (B) otherwise by International
Federal Express or facsimile, and shall be deemed given
(i) if delivered by first-class registered or certified
mail, three business days after so mailed, (ii) if
delivered by a nationally recognized overnight carrier, one
business day after so mailed, (iii) if delivered by
International Federal Express, two business days after so mailed
and (iv) if delivered by facsimile, upon electronic
confirmation of receipt and shall be delivered as addressed as
follows:
(a) if to the Company, to:
Saia, Inc.
11465 Johns Creek Parkway, Suite 400
Johns Creek, Georgia 30097
Attention: Chief Financial Officer
with a copy to:
Bryan Cave LLP
One Kansas City Place
1200 Main Street, Suite 3500
Kansas City, Missouri
64105-2100
Attention: Robert Barnes
(b) if to the Investor, at its address on the signature
page hereto, or at such other address or addresses as may have
been furnished to the Company in writing.
8.
Changes
.
Except as contemplated
herein, this Agreement may not be modified or amended except
pursuant to an instrument in writing signed by the Company and
the Investor; provided that if such modification or amendment
could affect the rights of the Placement Agent under this
Agreement, such instrument shall not be effective unless also
signed by the Placement Agent.
9.
Headings
.
The headings of the
various sections of this Agreement have been inserted for
convenience or reference only and shall not be deemed to be part
of this Agreement.
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10.
Severability
.
In case any
provision contained in this Agreement should be invalid, illegal
or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein
shall not in any way be affected or impaired thereby.
11.
Applicable Law;
Jurisdiction
.
This Agreement will be governed
by and construed in accordance with the laws of the State of New
York applicable to contracts made and to be performed within the
State of New York. Each party hereby irrevocably submits to
the exclusive jurisdiction of the state and federal courts
sitting in the City of New York, Borough of Manhattan, for the
adjudication of any dispute hereunder or in connection herewith
or with any transaction contemplated hereby or discussed herein,
and hereby irrevocably waives, and agrees not to assert in any
suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, that such suit,
action or proceeding is brought in an inconvenient forum or that
the venue of such suit, action or proceeding is improper. Each
party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or
proceeding by mailing a copy thereof to such party at the
address for such notices to it under this Agreement and agrees
that such service shall constitute good and sufficient service
of process and notice thereof. Nothing contained herein shall be
deemed to limit in any way any right to serve process in any
manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES
ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL
FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION
WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
12.
Counterparts
.
This Agreement
may be signed in one or more counterparts, each of which shall
constitute an original and all of which together shall
constitute one and the same agreement.
13.
Third Party Beneficiary
.
The
Investor acknowledges that the Placement Agent is a third party
beneficiary entitled to rely on this Agreement and receive the
benefits of the representations, warranties and covenants made
by, and the responsibilities of, the Investor under this
Agreement.
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APPENDIX I
TO THE SHARE PURCHASE AGREEMENT
REGISTRATION
RIGHTS AGREEMENT
This Registration Rights Agreement (this Agreement )
is made and entered into as of December 22, 2009, by and
among Saia, Inc., a Delaware corporation (the
Company), and the investors signatory hereto (each a
Investor and collectively, the Investors
).
The Company and the Investors are parties to the Share Purchase
Agreement dated December 22, 2009 (the Purchase
Agreement), which provides for the sale by the Company to
the Investors of 2,310,000 shares of the Companys
common stock, par value $0.001 per share (Common
Stock). As an inducement to the Investors to enter into
the Purchase Agreement, the Company has agreed to provide to the
Investors the registration rights set forth in this Agreement.
The Company and the Investors hereby agree as follows:
1.
Definitions
.
Capitalized terms
used and not otherwise defined herein that are defined in the
Purchase Agreement will have the meanings given such terms in
the Purchase Agreement. As used in this Agreement, the following
terms have the respective meanings set forth in this
Section 1:
Advice
has the meaning set forth in
Section 6(c).
Affiliate
means, with respect to any person,
any other person which directly or indirectly controls, is
controlled by, or is under common control with, such person.
Commission
means the U.S. Securities and
Exchange Commission.
Common Stock
has the meaning set forth in the
premable.
Company
has the meaning set forth in the
preamble and shall also include the Companys successors.
Effective Date
means, as to the Registration
Statement, the date on which such Registration Statement is
first declared effective by the Commission.
Effectiveness Date
means the
60
th
calendar day following the Closing Date;
provided
, that,
if the Commission reviews and has written comments to the filed
Registration Statement that would require the filing of a
pre-effective amendment thereto with the Commission, then the
Effectiveness Date under this clause shall be the earlier of
(i) as promptly as practicable based on the reasonable best
efforts by the Company and in no event later than the 120th
calendar day following the Closing Date, and (ii) the fifth
Trading Day following the date on which the Company is notified
by the Commission that the Registration Statement will not be
reviewed or is no longer subject to further review and comments.
Effectiveness Period
has the meaning set
forth in Section 2(a).
Exchange Act
means the Securities Exchange
Act of 1934, as amended.
Event
has the meaning set forth in
Section 2(b).
Event Date
has the meaning set forth in
Section 2(b).
Filing Date
means the
30
th
calendar day following the Closing Date.
Holder
or
Holders
means
the holder or holders, as the case may be, from time to time of
Registrable Securities.
Losses
has the meaning set forth in
Section 5(a).
New York Courts
means the state and federal
courts sitting in the City of New York, Borough of Manhattan.
A-I-1
Person
means an individual, a limited
liability company, a partnership, a joint venture, a
corporation, a trust, an unincorporated organization, a
government or any department or agency thereof, or other entity
of any kind.
Proceeding
means an action, claim, suit,
investigation or proceeding (including, without limitation, an
investigation or partial proceeding, such as a deposition),
whether commenced or threatened.
Prospectus
means the prospectus included in
the Registration Statement (including, without limitation, a
prospectus that includes any information previously omitted from
a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering of any
portion of the Registrable Securities covered by the
Registration Statement, and all other amendments and supplements
to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated
by reference in such Prospectus.
Purchase Agreement
has the meaning set forth
in the preamble.
Registrable Securities
means the Shares and
any shares of Common Stock issued with respect to the Shares as
a result of any stock split, dividend or other distribution,
recapitalization or similar event.
Registration Actions
has the meaning set
forth in Section 2(c).
Registration Statement
means the registration
statement required to be filed in accordance with
Section 2(a), including the Prospectus, amendments and
supplements to such registration statement or Prospectus,
including pre- and post-effective amendments, all exhibits
thereto, and all material incorporated by reference or deemed to
be incorporated by reference therein.
Rule 144
means Rule 144 promulgated
by the Commission pursuant to the Securities Act, as such Rule
may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
Rule 415
means Rule 415 promulgated
by the Commission pursuant to the Securities Act, as such Rule
may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
Rule 424
means Rule 424 promulgated
by the Commission pursuant to the Securities Act, as such Rule
may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
Securities Act
means the Securities Act of
1933, as amended.
Selling Holder Questionnaire
has the meaning
set forth in Section 2(d).
Shares
means the shares of Common Stock
issued or issuable to the Investors pursuant to the Purchase
Agreement.
Suspension Notice
has the meaning set forth
in Section 2(c).
Suspension Period
has the meaning set forth
in Section 2(c).
2.
Registration
.
(a) On or prior to the Filing Date, the Company shall
prepare and file with the Commission a Registration Statement
covering the resale of all Registrable Securities not already
covered by an existing and effective registration statement for
an offering to be made on a continuous basis pursuant to
Rule 415, on
Form S-3
(or on such other form appropriate for such purpose). Such
Registration Statement shall contain (except if otherwise
required pursuant to written comments received from the
Commission upon a review of such Registration Statement) the
Selling Stockholders and Plan of
Distribution sections substantially in the form attached
hereto as
Annex A
. The Company shall use
commercially reasonable efforts to have the Registration
Statement declared effective by the Commission as soon as
practicable, but in no event later than the Effectiveness Date,
and shall use its commercially reasonable efforts to keep the
Registration Statement
A-I-2
continuously effective pursuant to Rule 415 at all times
until the earlier of (i) the date on which all Registrable
Securities covered by the Registration Statement as amended from
time to time, have been sold, (ii) the date on which all
Registrable Securities covered by the Registration Statement
(other than with respect to Registrable Securities owned by
Affiliates of the Company) may be sold pursuant to Rule 144
without being subject to any public information or volume
limitation or (iii) one (1) year from the date of the
Purchase Agreement (the Effectiveness Period), in
each case plus the number of days equal to the number of days of
the Suspension Period during the Effectiveness Period, if any.
By 5:00 p.m. (New York City time) on the Trading Day
immediately following the Effective Date, the Company shall file
with the Commission in accordance with Rule 424 under the
Securities Act the final Prospectus to be used in connection
with sales pursuant to such Registration Statement (whether or
not such filing is technically required under such Rule).
(b) If: (i) the Registration Statement is not filed on
or prior to the Filing Date, (ii) the Registration
Statement is not declared effective by the Commission on or
prior to the required Effectiveness Date or (iii) after its
Effective Date, the Registration Statement ceases for any reason
to be effective and available to the Holders as to all
Registrable Securities to which it is required to cover at any
time prior to the expiration of its Effectiveness Period for
more than an aggregate of 30 Trading Days during any
12-month
period (which need not be consecutive) (other than during a
Suspension Period (as defined in Section 2(c) below) (any
such failure or breach being referred to as an
Event, and for purposes of clauses (i) or
(ii) the date on which such Event occurs, or for purposes
of clause (iii) the date which such 30 Trading Day-period
is exceeded, being referred to as Event Date), then
in addition to any other rights the Holders may have hereunder
or under applicable law: on the last day of each
30-day
period after each such Event Date (if the applicable Event shall
not have been cured by such date) until the applicable Event is
cured, the Company shall pay to each Holder an amount in cash,
as partial liquidated damages and not as a penalty, equal to one
percent (1.0%) of the aggregate purchase price paid by such
Holder for Shares pursuant to the Purchase Agreement. The
parties agree that (1) in no event will the Company be
liable for liquidated damages under this Agreement in excess of
one percent (1.0%) of the aggregate purchase price paid by such
Holder for Shares pursuant to the Purchase Agreement in any
30-day
period, and (2) the maximum aggregate liquidated damages
payable to a Holder under this Agreement shall be six percent
(6%) of the aggregate purchase price paid by such Holder for
Shares pursuant to the Purchase Agreement. The partial
liquidated damages pursuant to the terms hereof shall apply on a
daily pro-rata basis for any portion of each
30-day
period prior to the cure of an Event, and shall cease to accrue
(unless earlier cured) upon the expiration of the Effectiveness
Period.
(c) Subject to the limitation set forth in the next
succeeding paragraph, the Company shall be entitled to delay the
Filing Date of the Registration Statement, suspend its
obligation to file any amendment to the Registration Statement,
furnish any supplement or amendment to a prospectus included in
the Registration Statement, make any other filing with the
Commission that would be incorporated by reference into the
Registration Statement, cause the Registration Statement to be
declared or remain effective or take any similar action
(collectively, Registration Actions) if there is a
possible acquisition or business combination or other
transaction, business development or event involving the Company
and its subsidiary that may require disclosure in the
Registration Statement and the Company determines in the
exercise of its good faith judgment that such disclosure is not
in the best interest of the Company and its stockholders or
obtaining any financial statements relating to any such
acquisition or business combination required to be included in
the Registration Statement would be impracticable or upon any
event described in Section 3(c)(v). Upon the occurrence of
any of the conditions described in the foregoing sentence, the
Company shall give prompt notice (a Suspension
Notice) thereof to the Holders. Upon the termination of
such condition, the Company shall give prompt notice thereof to
the Holders and shall promptly proceed with all Registration
Actions that were suspended pursuant to this paragraph.
The Company may suspend Registration Actions pursuant to the
preceding paragraph for one or more periods (each, a
Suspension Period) not to exceed 30 days in any
single Suspension Period and 90 days in the aggregate
during any twelve month period, during which no damages shall be
payable pursuant to Section 2(b) as a result thereof. If
one or more Suspension Periods exceed 90 days in the
aggregate during any twelve month period, then damages shall
begin to accrue on the 91st day until such Suspension
Period ends. Each Suspension Period shall be deemed to begin on
the date the relevant Suspension Notice is given to the Holders
and shall end
A-I-3
on the date on which the Company gives the Holders a notice that
the Suspension Period has terminated. Notwithstanding anything
to the foregoing, the Company shall at all times use its
commercially reasonable efforts to end any Suspension Period at
the earliest possible time.
(d) Each Holder agrees to furnish to the Company a
completed Questionnaire in the form attached to this Agreement
as
Annex B
, or a substantially similar form (a
Selling Holder Questionnaire). The Company shall not
be required to include the Registrable Securities of a Holder in
the Registration Statement and shall not be required to pay any
liquidated or other damages under Section 2(b) to any
Holder who fails to furnish to the Company a fully completed
Selling Holder Questionnaire at least 10 Trading Days prior to
the Filing Date (subject to the requirements set forth in
Section 3(a)).
3.
Registration Procedures
.
In connection with the Companys registration obligations
hereunder, the Company shall:
(a) Not less than five (5) Trading Days prior to the
filing of the Registration Statement or any related Prospectus
or any amendment or supplement thereto, the Company shall
furnish to each Holder copies of the Selling
Stockholders and the Plan of Distribution
sections as proposed to be filed which documents will be subject
to the review of such Holder. Investor shall provide any
comments in writing within two (2) Trading Days after
receipt of a document for review pursuant to the previous
sentence. The Company shall not be required to include any
Registrable Securities of any Investor in a Registration
Statement if required information from such Investor is not
furnished to the Company within the two (2) Trading Day
time period. The Company shall not file the Registration
Statement, any Prospectus or any amendments or supplements
thereto in which the Selling Stockholder section
thereof differs from the disclosure received from a Holder in
its Selling Holder Questionnaire (as amended or supplemented).
(b) (i) Prepare and file with the Commission such
amendments, including post-effective amendments, to the
Registration Statement and the Prospectus used in connection
therewith as may be necessary to keep such Registration
Statement continuously effective as to the applicable
Registrable Securities for its Effectiveness Period;
(ii) cause the related Prospectus to be amended or
supplemented by any required Prospectus supplement, and as so
supplemented or amended to be filed pursuant to Rule 424;
(iii) respond as promptly as reasonably possible to any
comments received from the Commission with respect to the
Registration Statement or any amendment thereto and, as promptly
as reasonably possible provide the Holders true and complete
copies of all correspondence from and to the Commission relating
to such Registration Statement that would not result in the
disclosure to the Holders of material and non-public information
concerning the Company; and (iv) comply in all material
respects with the provisions of the Securities Act and the
Exchange Act with respect to the Registration Statement and the
disposition of all Registrable Securities covered by such
Registration Statement.
(c) Notify the Holders as promptly as reasonably possible
and (if requested by any such Person) confirm such notice in
writing no later than two (2) Trading Days following the
day (i)(A) when a Prospectus or any Prospectus supplement or
post-effective amendment to the Registration Statement has been
filed; (B) when the Commission notifies the Company whether
there will be a review of such Registration
Statement and whenever the Commission comments in writing on
such Registration Statement (the Company shall provide true and
complete copies thereof and all written responses thereto to
each of the Holders that pertain to the Holders as a
Selling Stockholder or to the Plan of
Distribution, but not information which the Company
believes would constitute material and non-public information);
(C) with respect to the Registration Statement or any
post-effective amendment, when the same has become effective;
and (D) when in the Companys reasonable determination
a post-effective amendment to the Registration Statement would
be appropriate (ii) of any request by the Commission or any
other federal or state governmental authority for amendments or
supplements to the Registration Statement or Prospectus or for
additional information; (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement covering any or all of the Registrable
Securities or the initiation of any Proceedings for that
purpose; (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction, or the initiation or
threatening of any Proceeding for
A-I-4
such purpose; and (v) of the occurrence of any event or
passage of time that makes the financial statements included in
the Registration Statement ineligible for inclusion therein or
any statement made in such Registration Statement or Prospectus
or any document incorporated or deemed to be incorporated
therein by reference untrue in any material respect or that
requires any revisions to such Registration Statement,
Prospectus or other documents so that, in the case of such
Registration Statement or the Prospectus, as the case may be, it
will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(d) Use its commercially reasonable efforts to avoid the
issuance of, or, if issued, obtain the withdrawal of
(i) any order suspending the effectiveness of the
Registration Statement, or (ii) any suspension of the
qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction, at the
earliest practicable moment.
(e) Furnish to each Holder, without charge, at least one
conformed copy of the Registration Statement and each amendment
thereto and all exhibits to the extent requested by such Person
(including those previously furnished) promptly after the filing
of such documents with the Commission.
(f) Promptly deliver to each Holder, without charge, as
many copies of each Prospectus or Prospectuses (including each
form of prospectus) and each amendment or supplement thereto as
such Persons may reasonably request. The Company hereby consents
to the use of such Prospectus and each amendment or supplement
thereto by each of the selling Holders in connection with the
offering and sale of the Registrable Securities covered by such
Prospectus and any amendment or supplement thereto.
(g) Prior to any public offering of Registrable Securities,
use commercially reasonable efforts to register or qualify, or
exempt therefrom such Registrable Securities for offer and sale
under the securities or blue sky laws of all jurisdictions
within the United States, to keep each such registration or
qualification (or exemption therefrom) effective during the
Effectiveness Period and to do any and all other acts or things
necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by the
Registration Statement; provided, however, that the Company
shall not be required in connection therewith or as a condition
thereto to (i) qualify to do business in any jurisdiction
where it would not otherwise be required to qualify but for this
Section 3(g), (ii) subject itself to general taxation
in any jurisdiction where it would not otherwise be so subject
but for this Section 3(g), or (iii) file a general
consent to service of process in any such jurisdiction.
(h) Cooperate with the Holders to facilitate the timely
preparation and delivery of certificates representing
Registrable Securities to be delivered to a transferee pursuant
to the Registration Statement, which certificates shall be free,
to the extent permitted by the Purchase Agreement, of all
restrictive legends, and to enable such Registrable Securities
to be in such denominations and registered in such names as any
such Holders may request.
(i) Upon the occurrence of any event contemplated by
Section 3(c)(v), as promptly as commercially reasonable,
prepare a supplement or amendment, including a post-effective
amendment, to the Registration Statement or a supplement to the
related Prospectus or any document incorporated or deemed to be
incorporated therein by reference, and file any other required
document so that, as thereafter delivered, neither the
Registration Statement nor the Prospectus will contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading.
(j) Use commercially reasonable efforts to cause all
Registrable Securities covered by a Registration Statement to be
listed on each securities exchange, interdealer quotation system
or other market on which similar securities issued by the
Company are then listed and use commercially reasonable efforts
to maintain such listing.
(k) Use commercially reasonable efforts to make and keep
public information available, as that term is understood and
defined in Rule 144 under the Securities Act, at all times.
A-I-5
(l) If, after the execution of this Agreement, the
Commission informs the Company that one or more of the Holders
may be an underwriter of Registrable Securities, at the request
of the Company, such Investor shall reasonably cooperate with
the Company in amending the Registration Statement to reflect
the fact that such Investor may be an underwriter.
(m) The Company shall use commercially reasonable efforts
to maintain compliance with the eligibility requirements of
Form S-3
so that such form is continuously available for the registration
of the resale of Registrable Securities during the Registration
Period.
4.
Registration Expenses
.
All
expenses, other than underwriting discounts and commissions or
as otherwise provided in this Agreement, incurred in connection
with registrations, filings or qualifications pursuant to
Sections 2 and 3, including, without limitation, all
registration, listing and qualifications fees, printers
and accounting fees, and fees and disbursements of counsel for
the Company shall be paid by the Company.
5.
Indemnification
.
(a)
Indemnification by the
Company
.
The Company shall, notwithstanding
any termination of this Agreement, indemnify and hold harmless
each Holder, the officers, directors, agents, investment
advisors, partners, members and employees of each of them, each
Person who controls any such Holder (within the meaning of
Section 15 of the Securities Act or Section 20 of the
Exchange Act), to the fullest extent permitted by applicable
law, from and against any and all losses, claims, damages,
liabilities, costs (including, without limitation, reasonable
costs of preparation and reasonable attorneys fees) and
expenses (collectively, Losses), as incurred,
arising out of or relating to any untrue or alleged untrue
statement of a material fact contained in the Registration
Statement, any Prospectus or any form of prospectus or in any
amendment or supplement thereto or in any preliminary
prospectus, or free writing prospectus, or arising out of or
relating to any omission or alleged omission of a material fact
required to be stated therein or necessary to make the
statements therein (in the case of any Prospectus or form of
prospectus or supplement thereto, in light of the circumstances
under which they were made) not misleading, except to the
extent, but only to the extent, that (1) such untrue
statements or omissions are based solely upon information
regarding such Holder furnished in writing to the Company by
such Holder expressly for use therein, or to the extent that
such information relates to such Holder or such Holders
proposed method of distribution of Registrable Securities and
was reviewed and expressly approved in writing by such Holder
expressly for use in the Registration Statement, such Prospectus
or such form of Prospectus or in any amendment or supplement
thereto (it being understood that the Holder has approved
Annex A hereto for this purpose) or (2) in the case of
an occurrence of a Suspension Period or an event of the type
specified in Section 3(c), the use by such Holder of an
outdated or defective Prospectus after the Company has notified
such Holder in writing that the Prospectus is outdated or
defective and prior to the receipt by such Holder of an Advice
or an amended or supplemented Prospectus, but only if and to the
extent that following the receipt of the Advice or the amended
or supplemented Prospectus the misstatement or omission giving
rise to such Loss would have been corrected. The Company shall
notify the Holders promptly of the institution, threat or
assertion of any Proceeding of which the Company is aware in
connection with the transactions contemplated by this Agreement.
(b)
Indemnification by
Holders
.
Each Holder shall, severally and not
jointly, indemnify and hold harmless the Company, its directors,
officers, agents and employees, each Person who controls the
Company (within the meaning of Section 15 of the Securities
Act and Section 20 of the Exchange Act), and the directors,
officers, agents or employees of such controlling Persons, to
the fullest extent permitted by applicable law, from and against
all Losses, as incurred, arising solely out of or based solely
upon any untrue statement of a material fact contained in the
Registration Statement, any Prospectus, or any form of
prospectus, or in any amendment or supplement thereto, or
arising solely out of or based solely upon any omission of a
material fact required to be stated therein or necessary to make
the statements therein not misleading to the extent, but only to
the extent that, (1) such untrue statements or omissions
are based solely upon information regarding such Holder
furnished in writing to the Company by such Holder expressly for
use therein, or to the extent that such information relates to
such Holder or such Holders proposed method of
distribution of Registrable Securities and was reviewed and
expressly approved in writing by such Holder expressly for use
in the Registration
A-I-6
Statement (it being understood that the Holder has approved
Annex A hereto for this purpose), such Prospectus or such
form of Prospectus or in any amendment or supplement thereto or
(2) in the case of an occurrence of a Suspension Period or
an event of the type specified in Section 3(c), the use by
such Holder of an outdated or defective Prospectus after the
Company has notified such Holder in writing that the Prospectus
is outdated or defective and prior to the receipt by such Holder
of an Advice or an amended or supplemented Prospectus, but only
if and to the extent that following the receipt of the Advice or
the amended or supplemented Prospectus the misstatement or
omission giving rise to such Loss would have been corrected. In
no event shall the liability of any selling Holder hereunder be
greater in amount than the dollar amount of the net proceeds
received by such Holder upon the sale of the Registrable
Securities giving rise to such indemnification obligation.
(c)
Conduct of Indemnification
Proceedings
.
Any person entitled to
indemnification hereunder shall (i) give prompt notice to
the indemnifying party of any claim with respect to which it
seeks indemnification and (ii) permit such indemnifying
party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party;
provided
that any person entitled to indemnification
hereunder shall have the right to employ separate counsel and to
participate in the defense of such claim, but the fees and
expenses of such counsel shall be at the expense of such person
unless (a) the indemnifying party has agreed to pay such
fees or expenses, or (b) the indemnifying party shall have
failed to promptly assume the defense of such claim and employ
counsel reasonably satisfactory to such person or (c) in
the reasonable judgment of any such person, based upon advice of
its counsel, a conflict of interest exists between such person
and the indemnifying party with respect to such claims (in which
case, if the person notifies the indemnifying party in writing
that such person elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall
not have the right to assume the defense of such claim on behalf
of such person); and
provided
,
further
, that the
failure of any indemnified party to give notice as provided
herein shall not relieve the indemnifying party of its
obligations hereunder, except to the extent that such failure to
give notice shall materially adversely affect the indemnifying
party in the defense of any such claim or litigation. It is
understood that the indemnifying party shall not, in connection
with any proceeding in the same jurisdiction, be liable for fees
or expenses of more than one separate firm of attorneys at any
time for all such indemnified parties except to the extent that
based upon advice of counsel, a conflict of interest exists
between the indemnified parties. No indemnifying party will,
except with the consent of the indemnified party, consent to
entry of any judgment or enter into any settlement that does not
include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release
from all liability in respect of such claim or litigation.
(d)
Contribution
.
If a claim for
indemnification under Section 5(a) or 5(b) is unavailable
to an indemnified party (by reason of public policy or
otherwise), then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of
such Losses, in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and indemnified party
in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable
considerations. The relative fault of such indemnifying party
and indemnified party shall be determined by reference to, among
other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or
omission or alleged omission of a material fact, has been taken
or made by, or relates to information supplied by, such
indemnifying party or indemnified party, and the parties
relative intent, knowledge, access to information and
opportunity to correct or prevent such action, statement or
omission. The amount paid or payable by a party as a result of
any Losses shall be deemed to include, subject to the
limitations set forth in Section 5(c), any reasonable
attorneys or other reasonable fees or expenses incurred by
such party in connection with any Proceeding to the extent such
party would have been indemnified for such fees or expenses if
the indemnification provided for in this Section was available
to such party in accordance with its terms.
The parties hereto agree that it would not be just and equitable
if contribution pursuant to this Section 5(d) were
determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable
considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this
Section 5(d), no Holder shall be required to contribute, in
the aggregate, any amount in excess of the amount by which the
proceeds actually received by such Holder from the sale of the
Registrable Securities
A-I-7
subject to the Proceeding exceeds the amount of any damages that
such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged
omission.
The indemnity and contribution agreements contained in this
Section are in addition to any liability that the indemnifying
parties may have to the indemnified parties.
6.
Miscellaneous
.
(a)
No Piggyback on
Registrations
.
Neither the Company nor any of
its security holders (other than the Holders in such capacity
pursuant hereto) may include securities of the Company in the
Registration Statement other than the Registrable Securities,
and the Company shall not during the Effectiveness Period enter
into any agreement providing any such right to any of its
security holders.
(b)
Compliance
.
Each Holder
covenants and agrees that it will comply with the prospectus
delivery requirements of the Securities Act as applicable to it
in connection with sales of Registrable Securities pursuant to
the Registration Statement.
(c)
Discontinued Disposition
.
Each
Holder agrees by its acquisition of such Registrable Securities
that, upon receipt of a notice from the Company of the
occurrence of either (i) a Suspension Period as described
in Section 2(c) or (ii) any event of the kind
described in Section 3(c), such Holder will forthwith
discontinue disposition of such Registrable Securities under the
Registration Statement until such Holders receipt of the
copies of the supplemented Prospectus
and/or
amended Registration Statement or until it is advised in writing
(the Advice) by the Company that the use of the
applicable Prospectus may be resumed, and, in either case, has
received copies of any additional or supplemental filings that
are incorporated or deemed to be incorporated by reference in
such Prospectus or Registration Statement. The Company may
provide appropriate stop orders to enforce the provisions of
this paragraph.
(d)
Amendments and Waivers
.
The
provisions of this Agreement, including the provisions of this
Section 6(d), may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof
may not be given, unless the same shall be in writing and signed
by the Company and the Holders of no less than a majority in
interest of the then outstanding Registrable Securities.
Notwithstanding the foregoing, a waiver or consent to depart
from the provisions hereof with respect to a matter that relates
exclusively to the rights of certain Holders and that does not
directly or indirectly affect the rights of other Holders may be
given by Holders to which such waiver or consent relates;
provided that this provisions of this sentence may not be
amended except in accordance with the provisions of the
immediately preceding sentence.
(e)
Cooperation
.
Each Holder, by
such Holders acceptance of the Registrable Securities,
agrees to cooperate with the Company as reasonably requested by
the Company in connection with the preparation and filing of any
Registration Statement hereunder, unless such Holder has
notified the Company in writing of such Holders election
to exclude all of such Holders Registrable Securities from
such Registration Statement.
(f)
Further Assurances
.
Each party
shall do and perform, or cause to be done and performed, all
such further acts and things, and shall execute and deliver all
such other agreements, certificates, consents, instruments and
documents, as any other party may reasonably request in order to
carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated
hereby.
(g)
Notices
.
Any and all notices
or other communications or deliveries required or permitted to
be provided hereunder shall be in writing and shall be deemed
given and effective on the earliest of (a) the date of
transmission, if such notice or communication is delivered via
facsimile (provided the sender receives a machine-generated
confirmation of successful transmission) at the facsimile number
specified in this Section prior to 6:30 p.m. (New York City
time) on a Trading Day, (b) the next Trading Day after the
date of transmission, if such notice or communication is
delivered via facsimile at the facsimile number specified in
this Section on a day that is not a Trading Day or later than
6:30 p.m. (New York City time) on any Trading Day,
(c) the Trading Day following the date of mailing, if sent
by U.S. nationally recognized overnight courier
A-I-8
service, or (d) upon actual receipt by the party to whom
such notice is required to be given. The address for such
notices and communications shall be as follows:
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If to the Company:
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Saia, Inc.
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11465 Johns Creek Parkway, Suite 400
Johns Creek, Georgia 30091
Attn: Chief Financial Officer
Facsimile: (770) 232-4066
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With a copy to (which shall not constitute notice:
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Bryan Cave LLP
One Kansas City Place
1200 Main Street, Suite 3500
Kansas City, Missouri
Attn: Robert Barnes
Facsimile: (816) 855-3368
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If to an Investor:
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To the address set forth under such Investors name on the
signature pages hereto.
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If to any other Person who is then the registered Holder:
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To the address of such Holder as it appears in the stock
transfer books of the Company
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or such other address as may be designated in writing hereafter,
in the same manner, by such Person.
(h)
Successors and Assigns
.
The
rights under this Agreement shall be automatically assignable by
the Holders to any transferee of all or any portion of such
Holders Registrable Securities if: (i) the Holder
agrees in writing with the transferee or assignee to assign such
rights, and a copy of such agreement is furnished to the Company
within a reasonable time after such assignment; (ii) the
Company is, within a reasonable time after such transfer or
assignment, furnished with written notice of (a) the name
and address of such transferee or assignee, and (b) the
securities with respect to which such registration rights are
being transferred or assigned; (iii) immediately following
such transfer or assignment the further disposition of such
securities by the transferee or assignee is restricted under the
Securities Act or applicable state securities laws; (iv) at
or before the time the Company receives the written notice
contemplated by clause (ii) of this sentence the transferee
or assignee agrees in writing with the Company to be bound by
all of the provisions contained herein; and (v) such
transfer shall have been made in accordance with the applicable
requirements of the Purchase Agreement, and in accordance with
all applicable securities laws.
(i)
Execution and
Counterparts
.
This Agreement may be executed
in any number of counterparts, each of which when so executed
shall be deemed to be an original and, all of which taken
together shall constitute one and the same Agreement. In the
event that any signature is delivered by facsimile transmission,
such signature shall create a valid binding obligation of the
party executing (or on whose behalf such signature is executed)
the same with the same force and effect as if such facsimile
signature were the original thereof.
(j)
Governing Law
.
All questions
concerning the construction, validity, enforcement and
interpretation of this Agreement shall be governed by and
construed and enforced in accordance with the internal laws of
the State of New York, without regard to the principles of
conflicts of law thereof. Each party agrees that all Proceedings
concerning the interpretations, enforcement and defense of the
transactions contemplated by this Agreement (whether brought
against a party hereto or its respective Affiliates, employees
or agents) will be commenced in the New York Courts. Each party
hereto hereby irrevocably submits to the exclusive jurisdiction
of the New York Courts for the adjudication of any dispute
hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any Proceeding, any claim
that it is not personally subject to the jurisdiction of any New
York Court, or that such Proceeding has been commenced in an
improper or inconvenient forum. Each party hereto hereby
irrevocably waives personal service of process and consents to
process being served in any such Proceeding by mailing a copy
thereof via registered or certified mail or overnight delivery
(with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that
such service shall constitute good and sufficient service of
process and notice thereof. Nothing contained herein shall be
deemed to limit in
A-I-9
any way any right to serve process in any manner permitted by
law. Each party hereto hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial
by jury in any Proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby. If either
party shall commence a Proceeding to enforce any provisions of
this Agreement, then the prevailing party in such Proceeding
shall be reimbursed by the other party for its attorneys
fees and other costs and expenses incurred with the
investigation, preparation and prosecution of such Proceeding.
(k)
Cumulative Remedies
.
The
remedies provided herein are cumulative and not exclusive of any
remedies provided by law.
(l)
Severability
.
If any term,
provision, covenant or restriction of this Agreement is held by
a court of competent jurisdiction to be invalid, illegal, void
or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or
invalidated, and the parties hereto shall use their reasonable
efforts to find and employ an alternative means to achieve the
same or substantially the same result as that contemplated by
such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that
they would have executed the remaining terms, provisions,
covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or
unenforceable.
(m)
Headings
.
The headings in this
Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning hereof.
(n)
Independent Nature of Investors Obligations
and Rights
.
The obligations of each Investor
under this Agreement are several and not joint with the
obligations of each other Investor, and no Investor shall be
responsible in any way for the performance of the obligations of
any other Investor under this Agreement. Nothing contained
herein or in any transaction document, and no action taken by
any Investor pursuant thereto, shall be deemed to constitute the
Investors as a partnership, an association, a joint venture or
any other kind of entity, or create a presumption that the
Investors are in any way acting in concert or as a group with
respect to such obligations or the transactions contemplated by
this Agreement or any other Transaction Document. Each Investor
acknowledges that no other Investor will be acting as agent of
such Investor in enforcing its rights under this Agreement. Each
Investor shall be entitled to independently protect and enforce
its rights, including without limitation the rights arising out
of this Agreement, and it shall not be necessary for any other
Investor to be joined as an additional party in any Proceeding
for such purpose. The Company acknowledges that each of the
Investors has been provided with the same Registration Rights
Agreement for the purpose of closing a transaction with multiple
Investors and not because it was required or requested to do so
by any Investor.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
A-I-10
Annex A
SELLING
STOCKHOLDERS
We issued the shares of our common stock that are covered by
this prospectus to the selling stockholders pursuant to share
purchase agreements entered into between us and each of the
selling stockholders on December 22, 2009 (the
Securities Purchase Agreements) in a transaction
exempt from the registration requirements of the Securities Act.
We entered into a registration rights agreement with the
purchasers in such transaction pursuant to which we agreed to
register the resale of the shares of our common stock under the
Securities Act.
We are registering the shares of our common stock covered by
this prospectus on behalf of the selling stockholders named in
the table below in accordance with our obligations under the
registration rights agreement. Selling stockholders, including
their permitted transferees, pledgees or donees or their
successors (all of whom may be selling stockholders), may from
time to time offer and sell pursuant to this prospectus any or
all of the shares. When we refer to selling
stockholders in this prospectus, we mean those persons
listed in the table below, as well as their permitted
transferees, pledgees or donees or their successors.
The following table sets forth certain information as of
[ ],
2009 regarding beneficial ownership of our common stock by the
selling stockholders. Beneficial ownership is a term
defined by the SEC in
Rule 13d-3
under the Exchange Act and includes shares of common stock over
which a selling stockholder has direct or indirect voting or
investment control and any shares of common stock that the
selling stockholder has a right to acquire beneficial ownership
of within 60 days.
The number of shares of common stock in the column Number
of Shares Beneficially Owned Prior to the Offering is
based on beneficial ownership information provided to us by or
on behalf of the selling stockholders in a selling stockholder
questionnaire.
The number of shares in the column Number of
Shares Registered for Sale Hereby represents all of
the shares that each selling stockholder may offer under this
prospectus. These shares are the shares of common stock
purchased by the selling stockholders in the transaction
discussed above. The selling stockholders may sell some, all or
none of their shares. In addition, the selling stockholders may
have sold, transferred or otherwise disposed of all or a portion
of their shares since the date on which they provided the
information regarding their shares in transactions exempt from
the registration requirements of the Securities Act.
The number of shares in the column Number of
Shares Beneficially Owned after the Offering assumes
that the selling stockholders will sell all of their shares
offered pursuant to this prospectus and that any other shares of
common stock beneficially owned by the selling stockholders will
continue to be beneficially owned. We do not know when or in
what amounts the selling stockholders will offer shares for
sale, if at all. The selling stockholders may sell any or all of
the shares included in and offered by this prospectus. Because
the selling stockholders may offer all or some of the shares
pursuant to this offering, we cannot estimate the number of
shares that will be held by the selling stockholders after
completion of the offering.
Information regarding the selling stockholders may change from
time to time. Any such changed information will be set forth in
supplements to this prospectus if required.
Except as set forth in the table below, none of the selling
stockholders has had a material relationship with us within the
past three years.
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Maximum Number of
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Number of Shares
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Shares to be Sold
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Name of Selling
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Beneficially
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Pursuant to
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Number of Shares
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Stockholder
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Owned Prior to Offering
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this Prospectus
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Owned After Offering
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[Information to be provided by the Investors]
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A-I-11
PLAN OF
DISTRIBUTION
We are registering the shares of common stock to permit the
resale of these shares of common stock by the selling
stockholders from time to time after the date of this
prospectus. We will not receive any of the proceeds from the
sale by the selling stockholders of the shares of common stock.
The selling stockholders and any broker-dealers that act in
connection with the sale of shares may be deemed to be
underwriters within the meaning of
Section 2(11) of the Securities Act, and any commissions
received by such broker-dealers and any profit on the resale of
shares sold by them while acting as principals may be deemed to
be underwriting discounts or commissions under the Securities
Act.
The selling stockholders may sell all or a portion of the shares
of common stock beneficially owned by them and offered hereby
from time to time directly or through one or more underwriters,
broker-dealers or agents. If the shares of common stock are sold
through underwriters or broker-dealers, the selling stockholders
will be responsible for underwriting discounts or commissions or
agents commissions. The shares of common stock may be sold
in one or more transactions at fixed prices, at prevailing
market prices at the time of the sale, at varying prices
determined at the time of sale, or at negotiated prices. These
sales may be effected in transactions, which may involve crosses
or block transactions,
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on any national securities exchange or quotation service on
which the securities may be listed or quoted at the time of sale;
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in the
over-the-counter
market;
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in transactions otherwise than on these exchanges or systems or
in the
over-the-counter
market;
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through the writing of options, whether such options are listed
on an options exchange or otherwise;
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ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
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block trades in which the broker-dealer will attempt to sell the
shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction;
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purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
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an exchange distribution in accordance with the rules of the
applicable exchange;
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privately negotiated transactions;
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sales pursuant to Rule 144;
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short sales;
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broker-dealers may agree with the selling stockholders to sell a
specified number of such shares at a stipulated price per share;
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a combination of any such methods of sale; and
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any other method permitted pursuant to applicable law.
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If the selling stockholders effect such transactions by selling
shares of common stock to or through underwriters,
broker-dealers or agents, such underwriters, broker-dealers or
agents may receive commissions in the form of discounts,
concessions or commissions from the selling stockholders or
commissions from purchasers of the shares of common stock for
whom they may act as agent or to whom they may sell as principal
(which discounts, concessions or commissions as to particular
underwriters, broker-dealers or agents may be in excess of those
customary in the types of transactions involved). In connection
with sales of the shares of common stock or otherwise, the
selling stockholders may enter into hedging transactions with
broker-dealers, which may in turn engage in short sales of the
shares of common stock in the course of hedging in positions
they assume. The selling stockholders may also sell shares of
common stock short and deliver shares of common stock covered by
this prospectus to close out short positions and to return
borrowed shares in connection with such short sales. The selling
stockholders may also loan or pledge shares of common stock to
broker-dealers that in turn may sell such shares.
A-I-12
The selling stockholders may pledge or grant a security interest
in some or all of the shares of common stock owned by them and,
if they default in the performance of their secured obligations,
the pledgees or secured parties may offer and sell the shares of
common stock from time to time pursuant to this prospectus or
any amendment to this prospectus under Rule 424(b)(3) or
other applicable provision of the Securities Act, amending, if
necessary, the list of selling stockholders to include the
pledgee, transferee or other successors in interest as selling
stockholders under this prospectus. The selling stockholders
also may transfer and donate the shares of common stock in other
circumstances in which case the transferees, donees, pledgees or
other successors in interest will be the selling beneficial
owners for purposes of this prospectus.
At the time a particular offering of the shares of common stock
is made, a prospectus supplement, if required, will be
distributed which will set forth the aggregate amount of shares
of common stock being offered and the terms of the offering,
including the name or names of any broker-dealers or agents, any
discounts, commissions and other terms constituting compensation
from the selling stockholders and any discounts, commissions or
concessions allowed or reallowed or paid to broker-dealers.
Under the securities laws of some states, the shares of common
stock may be sold in such states only through registered or
licensed brokers or dealers. In addition, in some states the
shares of common stock may not be sold unless such shares have
been registered or qualified for sale in such state or an
exemption from registration or qualification is available and is
complied with.
There can be no assurance that any selling stockholder will sell
any or all of the shares of common stock registered pursuant to
the registration statement, of which this prospectus forms a
part.
The selling stockholders and any other person participating in
such distribution will be subject to applicable provisions of
the Securities Exchange Act of 1934, as amended, and the rules
and regulations thereunder, including, without limitation, to
the extent applicable, Regulation M of the Exchange Act,
which may limit the timing of purchases and sales of any of the
shares of common stock by the selling stockholders and any other
participating person. To the extent applicable Regulation M
may also restrict the ability of any person engaged in the
distribution of the shares of common stock to engage in
market-making activities with respect to the shares of common
stock. All of the foregoing may affect the marketability of the
shares of common stock and the ability of any person or entity
to engage in market-making activities with respect to the shares
of common stock.
We will pay all expenses of the registration of the shares of
common stock pursuant to the registration rights agreement,
including, without limitation, Securities and Exchange
Commission filing fees and expenses of compliance with state
securities or blue sky laws; provided, however, that
a selling stockholder will pay all underwriting discounts and
selling commissions, if any. We will indemnify the selling
stockholders against certain liabilities, including some
liabilities under the Securities Act, in accordance with the
registration rights agreement, or the selling stockholders will
be entitled to contribution. We may be indemnified by the
selling stockholders against certain civil liabilities,
including liabilities under the Securities Act, that may arise
from any written information furnished to us by the selling
stockholder specifically for use in this prospectus, in
accordance with the related registration rights agreement, or we
may be entitled to contribution.
Once sold under the registration statement, of which this
prospectus forms a part, the shares of common stock will be
freely tradable under the Securities Act in the hands of persons
other than our affiliates.
A-I-13
Annex B
SAIA,
INC.
Selling Securityholder Notice and Questionnaire
The undersigned beneficial owner of common stock (the
Common Stock ) of Saia, Inc. (the
Company ) understands that the Company has filed or
intends to file with the Securities and Exchange Commission (the
Commission ) a Registration Statement for the
registration and resale of the Registrable Securities, in
accordance with the terms of the Registration Rights Agreement,
dated as of December 22, 2009 (the
Registration Rights Agreement ), among the Company
and the Investors named therein. A copy of the Registration
Rights Agreement is available from the Company upon request at
the address set forth below. All capitalized terms used and not
otherwise defined herein shall have the meanings ascribed
thereto in the Registration Rights Agreement.
The undersigned hereby provides the following information to the
Company and represents and warrants that such information is
accurate:
QUESTIONNAIRE
1. Name.
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(a)
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Full Legal Name of Selling Securityholder
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(b)
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Full Legal Name of Registered Holder (if not the same as
(a) above) through which Registrable Securities Listed in
Item 3 below are held:
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(c)
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Full Legal Name of Natural Control Person (which means a natural
person who directly or indirectly alone or with others has power
to vote or dispose of the securities covered by the
questionnaire):
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2. Address for Notices to Selling Securityholder:
3. Beneficial Ownership of Registrable Securities:
Type and Principal Amount of Registrable Securities beneficially
owned:
4. Broker-Dealer Status:
(a) Are you a broker-dealer?
Yes
o
No
o
A-I-14
Note: If yes, the Commissions staff has indicated that you
should be identified as an underwriter in the Registration
Statement.
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(b)
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Are you an affiliate of a broker-dealer?
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Yes
o
No
o
(c) If you are an affiliate of a broker-dealer, do you
certify that you bought the Registrable Securities in the
ordinary course of business, and at the time of the purchase of
the Registrable Securities to be resold, you had no agreements
or understandings, directly or indirectly, with any person to
distribute the Registrable Securities?
Yes
o
No
o
Note: If no, the Commissions staff has indicated that you
should be identified as an underwriter in the Registration
Statement.
5. Beneficial Ownership of Other Securities of the Company
Owned by the Selling Securityholder.
Except as set forth below in this Item 5, the
undersigned is not the beneficial or registered owner of any
securities of the Company other than the Registrable Securities
listed above in Item 3.
Type and Amount of Other Securities beneficially owned by the
Selling Securityholder:
6. Relationships with the Company:
Except as set forth below, neither the undersigned nor any of
its affiliates, officers, directors or principal equity holders
(owners of 5% of more of the equity securities of the
undersigned) has held any position or office or has had any
other material relationship with the Company (or its
predecessors or affiliates) during the past three years.
State any exceptions here:
7. Please fill in the table below as you would like it to
appear in the Registration Statement. Include footnotes where
appropriate.
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Maximum Number of
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Number of Shares
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Shares to be Sold
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Name of Selling
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Beneficially
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Pursuant to
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Number of Shares
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Stockholder
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Owned Prior to Offering
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this Prospectus
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Owned After Offering
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A-I-15
The undersigned agrees to promptly notify the Company of any
inaccuracies or changes in the information provided herein that
may occur subsequent to the date hereof and prior to the
Effective Date for the Registration Statement.
By signing below, the undersigned consents to the disclosure of
the information contained herein in its answers to Items 1
through 7 and the inclusion of such information in the
Registration Statement and the related prospectus. The
undersigned understands that such information will be relied
upon by the Company in connection with the preparation or
amendment of the Registration Statement and the related
prospectus.
IN WITNESS WHEREOF the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and
delivered either in person or by its duly authorized agent.
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Dated:
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Beneficial
Owner:
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By:
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Name:
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Title:
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PLEASE FAX A COPY OF THE COMPLETED AND EXECUTED NOTICE AND
QUESTIONNAIRE, AND RETURN THE ORIGINAL BY OVERNIGHT MAIL, TO:
Bryan Cave
LLP
One Kansas City Place
1200 Main Street, Suite 3500
Kansas City, Missouri
64105-2100
Attn: Robert Barnes
Facsimile:
(816) 855-3368
A-I-16
Exhibit 10.2
REGISTRATION
RIGHTS AGREEMENT
This Registration Rights Agreement (this Agreement )
is made and entered into as of December 22, 2009, by and among
Saia, Inc., a Delaware corporation (the Company),
and the investors signatory hereto (each a Investor
and collectively, the Investors ).
The Company and the Investors are parties to the Share Purchase
Agreement dated December 22, 2009 (the Purchase
Agreement), which provides for the sale by the Company to
the Investors of 2,310,000 shares of the Companys
common stock, par value $0.001 per share (Common
Stock). As an inducement to the Investors to enter into
the Purchase Agreement, the Company has agreed to provide to the
Investors the registration rights set forth in this Agreement.
The Company and the Investors hereby agree as follows:
1.
Definitions
.
Capitalized terms
used and not otherwise defined herein that are defined in the
Purchase Agreement will have the meanings given such terms in
the Purchase Agreement. As used in this Agreement, the following
terms have the respective meanings set forth in this
Section 1:
Advice
has the meaning set forth in
Section 6(c).
Affiliate
means, with respect to any person,
any other person which directly or indirectly controls, is
controlled by, or is under common control with, such person.
Commission
means the U.S. Securities and
Exchange Commission.
Common Stock
has the meaning set forth in the
premable.
Company
has the meaning set forth in the
preamble and shall also include the Companys successors.
Effective Date
means, as to the Registration
Statement, the date on which such Registration Statement is
first declared effective by the Commission.
Effectiveness Date
means the
60
th
calendar day following the Closing Date;
provided
, that,
if the Commission reviews and has written comments to the filed
Registration Statement that would require the filing of a
pre-effective amendment thereto with the Commission, then the
Effectiveness Date under this clause shall be the earlier of
(i) as promptly as practicable based on the reasonable best
efforts by the Company and in no event later than the 120th
calendar day following the Closing Date, and (ii) the fifth
Trading Day following the date on which the Company is notified
by the Commission that the Registration Statement will not be
reviewed or is no longer subject to further review and comments.
Effectiveness Period
has the meaning set
forth in Section 2(a).
Exchange Act
means the Securities Exchange
Act of 1934, as amended.
Event
has the meaning set forth in
Section 2(b).
Event Date
has the meaning set forth in
Section 2(b).
Filing Date
means the
30
th
calendar day following the Closing Date.
Holder
or
Holders
means
the holder or holders, as the case may be, from time to time of
Registrable Securities.
Losses
has the meaning set forth in
Section 5(a).
New York Courts
means the state and federal
courts sitting in the City of New York, Borough of Manhattan.
Person
means an individual, a limited
liability company, a partnership, a joint venture, a
corporation, a trust, an unincorporated organization, a
government or any department or agency thereof, or other entity
of any kind.
1
Proceeding
means an action, claim, suit,
investigation or proceeding (including, without limitation, an
investigation or partial proceeding, such as a deposition),
whether commenced or threatened.
Prospectus
means the prospectus included in
the Registration Statement (including, without limitation, a
prospectus that includes any information previously omitted from
a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering of any
portion of the Registrable Securities covered by the
Registration Statement, and all other amendments and supplements
to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated
by reference in such Prospectus.
Purchase Agreement
has the meaning set forth
in the preamble.
Registrable Securities
means the Shares and
any shares of Common Stock issued with respect to the Shares as
a result of any stock split, dividend or other distribution,
recapitalization or similar event.
Registration Actions
has the meaning set
forth in Section 2(c).
Registration Statement
means the registration
statement required to be filed in accordance with
Section 2(a), including the Prospectus, amendments and
supplements to such registration statement or Prospectus,
including pre- and post-effective amendments, all exhibits
thereto, and all material incorporated by reference or deemed to
be incorporated by reference therein.
Rule 144
means Rule 144 promulgated
by the Commission pursuant to the Securities Act, as such Rule
may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
Rule 415
means Rule 415 promulgated
by the Commission pursuant to the Securities Act, as such Rule
may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
Rule 424
means Rule 424 promulgated
by the Commission pursuant to the Securities Act, as such Rule
may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
Securities Act
means the Securities Act of
1933, as amended.
Selling Holder Questionnaire
has the meaning
set forth in Section 2(d).
Shares
means the shares of Common Stock
issued or issuable to the Investors pursuant to the Purchase
Agreement.
Suspension Notice
has the meaning set forth
in Section 2(c).
Suspension Period
has the meaning set forth
in Section 2(c).
2.
Registration
.
(a) On or prior to the Filing Date, the Company shall
prepare and file with the Commission a Registration Statement
covering the resale of all Registrable Securities not already
covered by an existing and effective registration statement for
an offering to be made on a continuous basis pursuant to
Rule 415, on
Form S-3
(or on such other form appropriate for such purpose). Such
Registration Statement shall contain (except if otherwise
required pursuant to written comments received from the
Commission upon a review of such Registration Statement) the
Selling Stockholders and Plan of
Distribution sections substantially in the form attached
hereto as
Annex A
. The Company shall use
commercially reasonable efforts to have the Registration
Statement declared effective by the Commission as soon as
practicable, but in no event later than the Effectiveness Date,
and shall use its commercially reasonable efforts to keep the
Registration Statement continuously effective pursuant to
Rule 415 at all times until the earlier of (i) the
date on which all Registrable Securities covered by the
Registration Statement as amended from time to time, have been
sold, (ii) the date on which all Registrable Securities
covered by the Registration Statement (other than with respect
to Registrable
2
Securities owned by Affiliates of the Company) may be sold
pursuant to Rule 144 without being subject to any public
information or volume limitation or (iii) one (1) year
from the date of the Purchase Agreement (the Effectiveness
Period), in each case plus the number of days equal to the
number of days of the Suspension Period during the Effectiveness
Period, if any. By 5:00 p.m. (New York City time) on the
Trading Day immediately following the Effective Date, the
Company shall file with the Commission in accordance with
Rule 424 under the Securities Act the final Prospectus to
be used in connection with sales pursuant to such Registration
Statement (whether or not such filing is technically required
under such Rule).
(b) If: (i) the Registration Statement is not filed on
or prior to the Filing Date, (ii) the Registration
Statement is not declared effective by the Commission on or
prior to the required Effectiveness Date or (iii) after its
Effective Date, the Registration Statement ceases for any reason
to be effective and available to the Holders as to all
Registrable Securities to which it is required to cover at any
time prior to the expiration of its Effectiveness Period for
more than an aggregate of 30 Trading Days during any
12-month
period (which need not be consecutive) (other than during a
Suspension Period (as defined in Section 2(c) below) (any
such failure or breach being referred to as an
Event, and for purposes of clauses (i) or
(ii) the date on which such Event occurs, or for purposes
of clause (iii) the date which such 30 Trading Day-period
is exceeded, being referred to as Event Date), then
in addition to any other rights the Holders may have hereunder
or under applicable law: on the last day of each
30-day
period after each such Event Date (if the applicable Event shall
not have been cured by such date) until the applicable Event is
cured, the Company shall pay to each Holder an amount in cash,
as partial liquidated damages and not as a penalty, equal to one
percent (1.0%) of the aggregate purchase price paid by such
Holder for Shares pursuant to the Purchase Agreement. The
parties agree that (1) in no event will the Company be
liable for liquidated damages under this Agreement in excess of
one percent (1.0%) of the aggregate purchase price paid by such
Holder for Shares pursuant to the Purchase Agreement in any
30-day
period, and (2) the maximum aggregate liquidated damages
payable to a Holder under this Agreement shall be six percent
(6%) of the aggregate purchase price paid by such Holder for
Shares pursuant to the Purchase Agreement. The partial
liquidated damages pursuant to the terms hereof shall apply on a
daily pro-rata basis for any portion of each
30-day
period prior to the cure of an Event, and shall cease to accrue
(unless earlier cured) upon the expiration of the Effectiveness
Period.
(c) Subject to the limitation set forth in the next
succeeding paragraph, the Company shall be entitled to delay the
Filing Date of the Registration Statement, suspend its
obligation to file any amendment to the Registration Statement,
furnish any supplement or amendment to a prospectus included in
the Registration Statement, make any other filing with the
Commission that would be incorporated by reference into the
Registration Statement, cause the Registration Statement to be
declared or remain effective or take any similar action
(collectively, Registration Actions) if there is a
possible acquisition or business combination or other
transaction, business development or event involving the Company
and its subsidiary that may require disclosure in the
Registration Statement and the Company determines in the
exercise of its good faith judgment that such disclosure is not
in the best interest of the Company and its stockholders or
obtaining any financial statements relating to any such
acquisition or business combination required to be included in
the Registration Statement would be impracticable or upon any
event described in Section 3(c)(v). Upon the occurrence of
any of the conditions described in the foregoing sentence, the
Company shall give prompt notice (a Suspension
Notice) thereof to the Holders. Upon the termination of
such condition, the Company shall give prompt notice thereof to
the Holders and shall promptly proceed with all Registration
Actions that were suspended pursuant to this paragraph.
The Company may suspend Registration Actions pursuant to the
preceding paragraph for one or more periods (each, a
Suspension Period) not to exceed 30 days in any
single Suspension Period and 90 days in the aggregate
during any twelve month period, during which no damages shall be
payable pursuant to Section 2(b) as a result thereof. If
one or more Suspension Periods exceed 90 days in the
aggregate during any twelve month period, then damages shall
begin to accrue on the 91st day until such Suspension
Period ends. Each Suspension Period shall be deemed to begin on
the date the relevant Suspension Notice is given to the Holders
and shall end on the date on which the Company gives the Holders
a notice that the Suspension Period has terminated.
Notwithstanding anything to the foregoing, the Company shall at
all times use its commercially reasonable efforts to end any
Suspension Period at the earliest possible time.
3
(d) Each Holder agrees to furnish to the Company a
completed Questionnaire in the form attached to this Agreement
as
Annex B
, or a substantially similar form (a
Selling Holder Questionnaire). The Company shall not
be required to include the Registrable Securities of a Holder in
the Registration Statement and shall not be required to pay any
liquidated or other damages under Section 2(b) to any
Holder who fails to furnish to the Company a fully completed
Selling Holder Questionnaire at least 10 Trading Days prior to
the Filing Date (subject to the requirements set forth in
Section 3(a)).
3.
Registration Procedures
.
In connection with the Companys registration obligations
hereunder, the Company shall:
(a) Not less than five (5) Trading Days prior to the
filing of the Registration Statement or any related Prospectus
or any amendment or supplement thereto, the Company shall
furnish to each Holder copies of the Selling
Stockholders and the Plan of Distribution
sections as proposed to be filed which documents will be subject
to the review of such Holder. Investor shall provide any
comments in writing within two (2) Trading Days after
receipt of a document for review pursuant to the previous
sentence. The Company shall not be required to include any
Registrable Securities of any Investor in a Registration
Statement if required information from such Investor is not
furnished to the Company within the two (2) Trading Day
time period. The Company shall not file the Registration
Statement, any Prospectus or any amendments or supplements
thereto in which the Selling Stockholder section
thereof differs from the disclosure received from a Holder in
its Selling Holder Questionnaire (as amended or supplemented).
(b) (i) Prepare and file with the Commission such
amendments, including post-effective amendments, to the
Registration Statement and the Prospectus used in connection
therewith as may be necessary to keep such Registration
Statement continuously effective as to the applicable
Registrable Securities for its Effectiveness Period;
(ii) cause the related Prospectus to be amended or
supplemented by any required Prospectus supplement, and as so
supplemented or amended to be filed pursuant to Rule 424;
(iii) respond as promptly as reasonably possible to any
comments received from the Commission with respect to the
Registration Statement or any amendment thereto and, as promptly
as reasonably possible provide the Holders true and complete
copies of all correspondence from and to the Commission relating
to such Registration Statement that would not result in the
disclosure to the Holders of material and non-public information
concerning the Company; and (iv) comply in all material
respects with the provisions of the Securities Act and the
Exchange Act with respect to the Registration Statement and the
disposition of all Registrable Securities covered by such
Registration Statement.
(c) Notify the Holders as promptly as reasonably possible
and (if requested by any such Person) confirm such notice in
writing no later than two (2) Trading Days following the
day (i)(A) when a Prospectus or any Prospectus supplement or
post-effective amendment to the Registration Statement has been
filed; (B) when the Commission notifies the Company whether
there will be a review of such Registration
Statement and whenever the Commission comments in writing on
such Registration Statement (the Company shall provide true and
complete copies thereof and all written responses thereto to
each of the Holders that pertain to the Holders as a
Selling Stockholder or to the Plan of
Distribution, but not information which the Company
believes would constitute material and non-public information);
(C) with respect to the Registration Statement or any
post-effective amendment, when the same has become effective;
and (D) when in the Companys reasonable determination
a post-effective amendment to the Registration Statement would
be appropriate (ii) of any request by the Commission or any
other federal or state governmental authority for amendments or
supplements to the Registration Statement or Prospectus or for
additional information; (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement covering any or all of the Registrable
Securities or the initiation of any Proceedings for that
purpose; (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction, or the initiation or
threatening of any Proceeding for such purpose; and (v) of
the occurrence of any event or passage of time that makes the
financial statements included in the Registration Statement
ineligible for inclusion therein or any statement made in such
Registration Statement or Prospectus or any document
incorporated or deemed to be incorporated
4
therein by reference untrue in any material respect or that
requires any revisions to such Registration Statement,
Prospectus or other documents so that, in the case of such
Registration Statement or the Prospectus, as the case may be, it
will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(d) Use its commercially reasonable efforts to avoid the
issuance of, or, if issued, obtain the withdrawal of
(i) any order suspending the effectiveness of the
Registration Statement, or (ii) any suspension of the
qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction, at the
earliest practicable moment.
(e) Furnish to each Holder, without charge, at least one
conformed copy of the Registration Statement and each amendment
thereto and all exhibits to the extent requested by such Person
(including those previously furnished) promptly after the filing
of such documents with the Commission.
(f) Promptly deliver to each Holder, without charge, as
many copies of each Prospectus or Prospectuses (including each
form of prospectus) and each amendment or supplement thereto as
such Persons may reasonably request. The Company hereby consents
to the use of such Prospectus and each amendment or supplement
thereto by each of the selling Holders in connection with the
offering and sale of the Registrable Securities covered by such
Prospectus and any amendment or supplement thereto.
(g) Prior to any public offering of Registrable Securities,
use commercially reasonable efforts to register or qualify, or
exempt therefrom such Registrable Securities for offer and sale
under the securities or blue sky laws of all jurisdictions
within the United States, to keep each such registration or
qualification (or exemption therefrom) effective during the
Effectiveness Period and to do any and all other acts or things
necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by the
Registration Statement; provided, however, that the Company
shall not be required in connection therewith or as a condition
thereto to (i) qualify to do business in any jurisdiction
where it would not otherwise be required to qualify but for this
Section 3(g), (ii) subject itself to general taxation
in any jurisdiction where it would not otherwise be so subject
but for this Section 3(g), or (iii) file a general
consent to service of process in any such jurisdiction.
(h) Cooperate with the Holders to facilitate the timely
preparation and delivery of certificates representing
Registrable Securities to be delivered to a transferee pursuant
to the Registration Statement, which certificates shall be free,
to the extent permitted by the Purchase Agreement, of all
restrictive legends, and to enable such Registrable Securities
to be in such denominations and registered in such names as any
such Holders may request.
(i) Upon the occurrence of any event contemplated by
Section 3(c)(v), as promptly as commercially reasonable,
prepare a supplement or amendment, including a post-effective
amendment, to the Registration Statement or a supplement to the
related Prospectus or any document incorporated or deemed to be
incorporated therein by reference, and file any other required
document so that, as thereafter delivered, neither the
Registration Statement nor the Prospectus will contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading.
(j) Use commercially reasonable efforts to cause all
Registrable Securities covered by a Registration Statement to be
listed on each securities exchange, interdealer quotation system
or other market on which similar securities issued by the
Company are then listed and use commercially reasonable efforts
to maintain such listing.
(k) Use commercially reasonable efforts to make and keep
public information available, as that term is understood and
defined in Rule 144 under the Securities Act, at all times.
(l) If, after the execution of this Agreement, the
Commission informs the Company that one or more of the Holders
may be an underwriter of Registrable Securities, at the request
of the Company, such
5
Investor shall reasonably cooperate with the Company in amending
the Registration Statement to reflect the fact that such
Investor may be an underwriter.
(m) The Company shall use commercially reasonable efforts
to maintain compliance with the eligibility requirements of
Form S-3
so that such form is continuously available for the registration
of the resale of Registrable Securities during the Registration
Period.
4.
Registration Expenses
.
All
expenses, other than underwriting discounts and commissions or
as otherwise provided in this Agreement, incurred in connection
with registrations, filings or qualifications pursuant to
Sections 2 and 3, including, without limitation, all
registration, listing and qualifications fees, printers
and accounting fees, and fees and disbursements of counsel for
the Company shall be paid by the Company.
5.
Indemnification
.
(a)
Indemnification by the
Company
.
The Company shall, notwithstanding
any termination of this Agreement, indemnify and hold harmless
each Holder, the officers, directors, agents, investment
advisors, partners, members and employees of each of them, each
Person who controls any such Holder (within the meaning of
Section 15 of the Securities Act or Section 20 of the
Exchange Act), to the fullest extent permitted by applicable
law, from and against any and all losses, claims, damages,
liabilities, costs (including, without limitation, reasonable
costs of preparation and reasonable attorneys fees) and
expenses (collectively, Losses), as incurred,
arising out of or relating to any untrue or alleged untrue
statement of a material fact contained in the Registration
Statement, any Prospectus or any form of prospectus or in any
amendment or supplement thereto or in any preliminary
prospectus, or free writing prospectus, or arising out of or
relating to any omission or alleged omission of a material fact
required to be stated therein or necessary to make the
statements therein (in the case of any Prospectus or form of
prospectus or supplement thereto, in light of the circumstances
under which they were made) not misleading, except to the
extent, but only to the extent, that (1) such untrue
statements or omissions are based solely upon information
regarding such Holder furnished in writing to the Company by
such Holder expressly for use therein, or to the extent that
such information relates to such Holder or such Holders
proposed method of distribution of Registrable Securities and
was reviewed and expressly approved in writing by such Holder
expressly for use in the Registration Statement, such Prospectus
or such form of Prospectus or in any amendment or supplement
thereto (it being understood that the Holder has approved
Annex A hereto for this purpose) or (2) in the case of
an occurrence of a Suspension Period or an event of the type
specified in Section 3(c), the use by such Holder of an
outdated or defective Prospectus after the Company has notified
such Holder in writing that the Prospectus is outdated or
defective and prior to the receipt by such Holder of an Advice
or an amended or supplemented Prospectus, but only if and to the
extent that following the receipt of the Advice or the amended
or supplemented Prospectus the misstatement or omission giving
rise to such Loss would have been corrected. The Company shall
notify the Holders promptly of the institution, threat or
assertion of any Proceeding of which the Company is aware in
connection with the transactions contemplated by this Agreement.
(b)
Indemnification by
Holders
.
Each Holder shall, severally and not
jointly, indemnify and hold harmless the Company, its directors,
officers, agents and employees, each Person who controls the
Company (within the meaning of Section 15 of the Securities
Act and Section 20 of the Exchange Act), and the directors,
officers, agents or employees of such controlling Persons, to
the fullest extent permitted by applicable law, from and against
all Losses, as incurred, arising solely out of or based solely
upon any untrue statement of a material fact contained in the
Registration Statement, any Prospectus, or any form of
prospectus, or in any amendment or supplement thereto, or
arising solely out of or based solely upon any omission of a
material fact required to be stated therein or necessary to make
the statements therein not misleading to the extent, but only to
the extent that, (1) such untrue statements or omissions
are based solely upon information regarding such Holder
furnished in writing to the Company by such Holder expressly for
use therein, or to the extent that such information relates to
such Holder or such Holders proposed method of
distribution of Registrable Securities and was reviewed and
expressly approved in writing by such Holder expressly for use
in the Registration Statement (it being understood that the
Holder has approved Annex A hereto for this purpose), such
Prospectus or such form of Prospectus or in any amendment or
supplement thereto or (2) in the case of an occurrence of a
6
Suspension Period or an event of the type specified in
Section 3(c), the use by such Holder of an outdated or
defective Prospectus after the Company has notified such Holder
in writing that the Prospectus is outdated or defective and
prior to the receipt by such Holder of an Advice or an amended
or supplemented Prospectus, but only if and to the extent that
following the receipt of the Advice or the amended or
supplemented Prospectus the misstatement or omission giving rise
to such Loss would have been corrected. In no event shall the
liability of any selling Holder hereunder be greater in amount
than the dollar amount of the net proceeds received by such
Holder upon the sale of the Registrable Securities giving rise
to such indemnification obligation.
(c)
Conduct of Indemnification
Proceedings
.
Any person entitled to
indemnification hereunder shall (i) give prompt notice to
the indemnifying party of any claim with respect to which it
seeks indemnification and (ii) permit such indemnifying
party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party;
provided
that any person entitled to indemnification
hereunder shall have the right to employ separate counsel and to
participate in the defense of such claim, but the fees and
expenses of such counsel shall be at the expense of such person
unless (a) the indemnifying party has agreed to pay such
fees or expenses, or (b) the indemnifying party shall have
failed to promptly assume the defense of such claim and employ
counsel reasonably satisfactory to such person or (c) in
the reasonable judgment of any such person, based upon advice of
its counsel, a conflict of interest exists between such person
and the indemnifying party with respect to such claims (in which
case, if the person notifies the indemnifying party in writing
that such person elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall
not have the right to assume the defense of such claim on behalf
of such person); and
provided
,
further
, that the
failure of any indemnified party to give notice as provided
herein shall not relieve the indemnifying party of its
obligations hereunder, except to the extent that such failure to
give notice shall materially adversely affect the indemnifying
party in the defense of any such claim or litigation. It is
understood that the indemnifying party shall not, in connection
with any proceeding in the same jurisdiction, be liable for fees
or expenses of more than one separate firm of attorneys at any
time for all such indemnified parties except to the extent that
based upon advice of counsel, a conflict of interest exists
between the indemnified parties. No indemnifying party will,
except with the consent of the indemnified party, consent to
entry of any judgment or enter into any settlement that does not
include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release
from all liability in respect of such claim or litigation.
(d)
Contribution
.
If a claim for
indemnification under Section 5(a) or 5(b) is unavailable
to an indemnified party (by reason of public policy or
otherwise), then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of
such Losses, in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and indemnified party
in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable
considerations. The relative fault of such indemnifying party
and indemnified party shall be determined by reference to, among
other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or
omission or alleged omission of a material fact, has been taken
or made by, or relates to information supplied by, such
indemnifying party or indemnified party, and the parties
relative intent, knowledge, access to information and
opportunity to correct or prevent such action, statement or
omission. The amount paid or payable by a party as a result of
any Losses shall be deemed to include, subject to the
limitations set forth in Section 5(c), any reasonable
attorneys or other reasonable fees or expenses incurred by
such party in connection with any Proceeding to the extent such
party would have been indemnified for such fees or expenses if
the indemnification provided for in this Section was available
to such party in accordance with its terms.
The parties hereto agree that it would not be just and equitable
if contribution pursuant to this Section 5(d) were
determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable
considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this
Section 5(d), no Holder shall be required to contribute, in
the aggregate, any amount in excess of the amount by which the
proceeds actually received by such Holder from the sale of the
Registrable Securities subject to the Proceeding exceeds the
amount of any damages that such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.
7
The indemnity and contribution agreements contained in this
Section are in addition to any liability that the indemnifying
parties may have to the indemnified parties.
6.
Miscellaneous
.
(a)
No Piggyback on
Registrations
.
Neither the Company nor any of
its security holders (other than the Holders in such capacity
pursuant hereto) may include securities of the Company in the
Registration Statement other than the Registrable Securities,
and the Company shall not during the Effectiveness Period enter
into any agreement providing any such right to any of its
security holders.
(b)
Compliance
.
Each Holder
covenants and agrees that it will comply with the prospectus
delivery requirements of the Securities Act as applicable to it
in connection with sales of Registrable Securities pursuant to
the Registration Statement.
(c)
Discontinued Disposition
.
Each
Holder agrees by its acquisition of such Registrable Securities
that, upon receipt of a notice from the Company of the
occurrence of either (i) a Suspension Period as described
in Section 2(c) or (ii) any event of the kind
described in Section 3(c), such Holder will forthwith
discontinue disposition of such Registrable Securities under the
Registration Statement until such Holders receipt of the
copies of the supplemented Prospectus
and/or
amended Registration Statement or until it is advised in writing
(the Advice) by the Company that the use of the
applicable Prospectus may be resumed, and, in either case, has
received copies of any additional or supplemental filings that
are incorporated or deemed to be incorporated by reference in
such Prospectus or Registration Statement. The Company may
provide appropriate stop orders to enforce the provisions of
this paragraph.
(d)
Amendments and Waivers
.
The
provisions of this Agreement, including the provisions of this
Section 6(d), may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof
may not be given, unless the same shall be in writing and signed
by the Company and the Holders of no less than a majority in
interest of the then outstanding Registrable Securities.
Notwithstanding the foregoing, a waiver or consent to depart
from the provisions hereof with respect to a matter that relates
exclusively to the rights of certain Holders and that does not
directly or indirectly affect the rights of other Holders may be
given by Holders to which such waiver or consent relates;
provided that this provisions of this sentence may not be
amended except in accordance with the provisions of the
immediately preceding sentence.
(e)
Cooperation
.
Each Holder, by
such Holders acceptance of the Registrable Securities,
agrees to cooperate with the Company as reasonably requested by
the Company in connection with the preparation and filing of any
Registration Statement hereunder, unless such Holder has
notified the Company in writing of such Holders election
to exclude all of such Holders Registrable Securities from
such Registration Statement.
(f)
Further Assurances
.
Each party
shall do and perform, or cause to be done and performed, all
such further acts and things, and shall execute and deliver all
such other agreements, certificates, consents, instruments and
documents, as any other party may reasonably request in order to
carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated
hereby.
(g)
Notices
.
Any and all notices
or other communications or deliveries required or permitted to
be provided hereunder shall be in writing and shall be deemed
given and effective on the earliest of (a) the date of
transmission, if such notice or communication is delivered via
facsimile (provided the sender receives a machine-generated
confirmation of successful transmission) at the facsimile number
specified in this Section prior to 6:30 p.m. (New York City
time) on a Trading Day, (b) the next Trading Day after the
date of transmission, if such notice or communication is
delivered via facsimile at the facsimile number specified in
this Section on a day that is not a Trading Day or later than
6:30 p.m. (New York City time) on any Trading Day,
(c) the Trading Day following the date of mailing, if sent
by U.S. nationally recognized overnight courier
8
service, or (d) upon actual receipt by the party to whom
such notice is required to be given. The address for such
notices and communications shall be as follows:
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If to the Company:
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Saia, Inc.
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11465 Johns Creek Parkway, Suite 400
Johns Creek, Georgia 30091
Attn: Chief Financial Officer
Facsimile: (770) 232-4066
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With a copy to (which shall not constitute notice:
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Bryan Cave LLP
One Kansas City Place
1200 Main Street, Suite 3500
Kansas City, Missouri
Attn: Robert Barnes
Facsimile: (816) 855-3368
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If to an Investor:
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To the address set forth under such Investors name on the
signature pages hereto.
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If to any other Person who is then the registered Holder:
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To the address of such Holder as it appears in the stock
transfer books of the Company
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or such other address as may be designated in writing hereafter,
in the same manner, by such Person.
(h)
Successors and Assigns
.
The
rights under this Agreement shall be automatically assignable by
the Holders to any transferee of all or any portion of such
Holders Registrable Securities if: (i) the Holder
agrees in writing with the transferee or assignee to assign such
rights, and a copy of such agreement is furnished to the Company
within a reasonable time after such assignment; (ii) the
Company is, within a reasonable time after such transfer or
assignment, furnished with written notice of (a) the name
and address of such transferee or assignee, and (b) the
securities with respect to which such registration rights are
being transferred or assigned; (iii) immediately following
such transfer or assignment the further disposition of such
securities by the transferee or assignee is restricted under the
Securities Act or applicable state securities laws; (iv) at
or before the time the Company receives the written notice
contemplated by clause (ii) of this sentence the transferee
or assignee agrees in writing with the Company to be bound by
all of the provisions contained herein; and (v) such
transfer shall have been made in accordance with the applicable
requirements of the Purchase Agreement, and in accordance with
all applicable securities laws.
(i)
Execution and
Counterparts
.
This Agreement may be executed
in any number of counterparts, each of which when so executed
shall be deemed to be an original and, all of which taken
together shall constitute one and the same Agreement. In the
event that any signature is delivered by facsimile transmission,
such signature shall create a valid binding obligation of the
party executing (or on whose behalf such signature is executed)
the same with the same force and effect as if such facsimile
signature were the original thereof.
(j)
Governing Law
.
All questions
concerning the construction, validity, enforcement and
interpretation of this Agreement shall be governed by and
construed and enforced in accordance with the internal laws of
the State of New York, without regard to the principles of
conflicts of law thereof. Each party agrees that all Proceedings
concerning the interpretations, enforcement and defense of the
transactions contemplated by this Agreement (whether brought
against a party hereto or its respective Affiliates, employees
or agents) will be commenced in the New York Courts. Each party
hereto hereby irrevocably submits to the exclusive jurisdiction
of the New York Courts for the adjudication of any dispute
hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any Proceeding, any claim
that it is not personally subject to the jurisdiction of any New
York Court, or that such Proceeding has been commenced in an
improper or inconvenient forum. Each party hereto hereby
irrevocably waives personal service of process and consents to
process being served in any such Proceeding by mailing a copy
thereof via registered or certified mail or overnight delivery
(with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that
such service shall constitute good and sufficient service of
process and notice thereof. Nothing contained herein shall be
deemed to limit in
9
any way any right to serve process in any manner permitted by
law. Each party hereto hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial
by jury in any Proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby. If either
party shall commence a Proceeding to enforce any provisions of
this Agreement, then the prevailing party in such Proceeding
shall be reimbursed by the other party for its attorneys
fees and other costs and expenses incurred with the
investigation, preparation and prosecution of such Proceeding.
(k)
Cumulative Remedies
.
The
remedies provided herein are cumulative and not exclusive of any
remedies provided by law.
(l)
Severability
.
If any term,
provision, covenant or restriction of this Agreement is held by
a court of competent jurisdiction to be invalid, illegal, void
or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or
invalidated, and the parties hereto shall use their reasonable
efforts to find and employ an alternative means to achieve the
same or substantially the same result as that contemplated by
such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that
they would have executed the remaining terms, provisions,
covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or
unenforceable.
(m)
Headings
.
The headings in this
Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning hereof.
(n)
Independent Nature of Investors Obligations
and Rights
.
The obligations of each Investor
under this Agreement are several and not joint with the
obligations of each other Investor, and no Investor shall be
responsible in any way for the performance of the obligations of
any other Investor under this Agreement. Nothing contained
herein or in any transaction document, and no action taken by
any Investor pursuant thereto, shall be deemed to constitute the
Investors as a partnership, an association, a joint venture or
any other kind of entity, or create a presumption that the
Investors are in any way acting in concert or as a group with
respect to such obligations or the transactions contemplated by
this Agreement or any other Transaction Document. Each Investor
acknowledges that no other Investor will be acting as agent of
such Investor in enforcing its rights under this Agreement. Each
Investor shall be entitled to independently protect and enforce
its rights, including without limitation the rights arising out
of this Agreement, and it shall not be necessary for any other
Investor to be joined as an additional party in any Proceeding
for such purpose. The Company acknowledges that each of the
Investors has been provided with the same Registration Rights
Agreement for the purpose of closing a transaction with multiple
Investors and not because it was required or requested to do so
by any Investor.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES TO FOLLOW]
10
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
SAIA, INC.
Name:
Title:
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES OF INVESTORS TO FOLLOW]
11
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
NAME OF INVESTING ENTITY
Name:
Title:
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
12
Annex A
SELLING
STOCKHOLDERS
We issued the shares of our common stock that are covered by
this prospectus to the selling stockholders pursuant to share
purchase agreements entered into between us and each of the
selling stockholders on December 22, 2009 (the
Securities Purchase Agreements) in a transaction
exempt from the registration requirements of the Securities Act.
We entered into a registration rights agreement with the
purchasers in such transaction pursuant to which we agreed to
register the resale of the shares of our common stock under the
Securities Act.
We are registering the shares of our common stock covered by
this prospectus on behalf of the selling stockholders named in
the table below in accordance with our obligations under the
registration rights agreement. Selling stockholders, including
their permitted transferees, pledgees or donees or their
successors (all of whom may be selling stockholders), may from
time to time offer and sell pursuant to this prospectus any or
all of the shares. When we refer to selling
stockholders in this prospectus, we mean those persons
listed in the table below, as well as their permitted
transferees, pledgees or donees or their successors.
The following table sets forth certain information as of
[ ],
2009 regarding beneficial ownership of our common stock by the
selling stockholders. Beneficial ownership is a term
defined by the SEC in
Rule 13d-3
under the Exchange Act and includes shares of common stock over
which a selling stockholder has direct or indirect voting or
investment control and any shares of common stock that the
selling stockholder has a right to acquire beneficial ownership
of within 60 days.
The number of shares of common stock in the column Number
of Shares Beneficially Owned Prior to the Offering is
based on beneficial ownership information provided to us by or
on behalf of the selling stockholders in a selling stockholder
questionnaire.
The number of shares in the column Number of
Shares Registered for Sale Hereby represents all of
the shares that each selling stockholder may offer under this
prospectus. These shares are the shares of common stock
purchased by the selling stockholders in the transaction
discussed above. The selling stockholders may sell some, all or
none of their shares. In addition, the selling stockholders may
have sold, transferred or otherwise disposed of all or a portion
of their shares since the date on which they provided the
information regarding their shares in transactions exempt from
the registration requirements of the Securities Act.
The number of shares in the column Number of
Shares Beneficially Owned after the Offering assumes
that the selling stockholders will sell all of their shares
offered pursuant to this prospectus and that any other shares of
common stock beneficially owned by the selling stockholders will
continue to be beneficially owned. We do not know when or in
what amounts the selling stockholders will offer shares for
sale, if at all. The selling stockholders may sell any or all of
the shares included in and offered by this prospectus. Because
the selling stockholders may offer all or some of the shares
pursuant to this offering, we cannot estimate the number of
shares that will be held by the selling stockholders after
completion of the offering.
Information regarding the selling stockholders may change from
time to time. Any such changed information will be set forth in
supplements to this prospectus if required.
Except as set forth in the table below, none of the selling
stockholders has had a material relationship with us within the
past three years.
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Maximum Number of
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Number of Shares
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Shares to be Sold
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Name of Selling
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Beneficially
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Pursuant to
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Number of Shares
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Stockholder
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Owned Prior to Offering
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this Prospectus
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Owned After Offering
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[Information to be provided by the Investors]
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A-1
PLAN OF
DISTRIBUTION
We are registering the shares of common stock to permit the
resale of these shares of common stock by the selling
stockholders from time to time after the date of this
prospectus. We will not receive any of the proceeds from the
sale by the selling stockholders of the shares of common stock.
The selling stockholders and any broker-dealers that act in
connection with the sale of shares may be deemed to be
underwriters within the meaning of
Section 2(11) of the Securities Act, and any commissions
received by such broker-dealers and any profit on the resale of
shares sold by them while acting as principals may be deemed to
be underwriting discounts or commissions under the Securities
Act.
The selling stockholders may sell all or a portion of the shares
of common stock beneficially owned by them and offered hereby
from time to time directly or through one or more underwriters,
broker-dealers or agents. If the shares of common stock are sold
through underwriters or broker-dealers, the selling stockholders
will be responsible for underwriting discounts or commissions or
agents commissions. The shares of common stock may be sold
in one or more transactions at fixed prices, at prevailing
market prices at the time of the sale, at varying prices
determined at the time of sale, or at negotiated prices. These
sales may be effected in transactions, which may involve crosses
or block transactions,
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on any national securities exchange or quotation service on
which the securities may be listed or quoted at the time of sale;
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in the
over-the-counter
market;
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in transactions otherwise than on these exchanges or systems or
in the
over-the-counter
market;
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through the writing of options, whether such options are listed
on an options exchange or otherwise;
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ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
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block trades in which the broker-dealer will attempt to sell the
shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction;
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purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
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an exchange distribution in accordance with the rules of the
applicable exchange;
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privately negotiated transactions;
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sales pursuant to Rule 144;
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short sales;
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broker-dealers may agree with the selling stockholders to sell a
specified number of such shares at a stipulated price per share;
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a combination of any such methods of sale; and
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any other method permitted pursuant to applicable law.
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If the selling stockholders effect such transactions by selling
shares of common stock to or through underwriters,
broker-dealers or agents, such underwriters, broker-dealers or
agents may receive commissions in the form of discounts,
concessions or commissions from the selling stockholders or
commissions from purchasers of the shares of common stock for
whom they may act as agent or to whom they may sell as principal
(which discounts, concessions or commissions as to particular
underwriters, broker-dealers or agents may be in excess of those
customary in the types of transactions involved). In connection
with sales of the shares of common stock or otherwise, the
selling stockholders may enter into hedging transactions with
broker-dealers, which may in turn engage in short sales of the
shares of common stock in the course of hedging in positions
they assume. The selling stockholders may also sell shares of
common stock short and deliver shares of common stock covered by
this prospectus to close out short positions and to return
borrowed shares in connection with such short sales. The selling
stockholders may also loan or pledge shares of common stock to
broker-dealers that in turn may sell such shares.
A-2
The selling stockholders may pledge or grant a security interest
in some or all of the shares of common stock owned by them and,
if they default in the performance of their secured obligations,
the pledgees or secured parties may offer and sell the shares of
common stock from time to time pursuant to this prospectus or
any amendment to this prospectus under Rule 424(b)(3) or
other applicable provision of the Securities Act, amending, if
necessary, the list of selling stockholders to include the
pledgee, transferee or other successors in interest as selling
stockholders under this prospectus. The selling stockholders
also may transfer and donate the shares of common stock in other
circumstances in which case the transferees, donees, pledgees or
other successors in interest will be the selling beneficial
owners for purposes of this prospectus.
At the time a particular offering of the shares of common stock
is made, a prospectus supplement, if required, will be
distributed which will set forth the aggregate amount of shares
of common stock being offered and the terms of the offering,
including the name or names of any broker-dealers or agents, any
discounts, commissions and other terms constituting compensation
from the selling stockholders and any discounts, commissions or
concessions allowed or reallowed or paid to broker-dealers.
Under the securities laws of some states, the shares of common
stock may be sold in such states only through registered or
licensed brokers or dealers. In addition, in some states the
shares of common stock may not be sold unless such shares have
been registered or qualified for sale in such state or an
exemption from registration or qualification is available and is
complied with.
There can be no assurance that any selling stockholder will sell
any or all of the shares of common stock registered pursuant to
the registration statement, of which this prospectus forms a
part.
The selling stockholders and any other person participating in
such distribution will be subject to applicable provisions of
the Securities Exchange Act of 1934, as amended, and the rules
and regulations thereunder, including, without limitation, to
the extent applicable, Regulation M of the Exchange Act,
which may limit the timing of purchases and sales of any of the
shares of common stock by the selling stockholders and any other
participating person. To the extent applicable Regulation M
may also restrict the ability of any person engaged in the
distribution of the shares of common stock to engage in
market-making activities with respect to the shares of common
stock. All of the foregoing may affect the marketability of the
shares of common stock and the ability of any person or entity
to engage in market-making activities with respect to the shares
of common stock.
We will pay all expenses of the registration of the shares of
common stock pursuant to the registration rights agreement,
including, without limitation, Securities and Exchange
Commission filing fees and expenses of compliance with state
securities or blue sky laws; provided, however, that
a selling stockholder will pay all underwriting discounts and
selling commissions, if any. We will indemnify the selling
stockholders against certain liabilities, including some
liabilities under the Securities Act, in accordance with the
registration rights agreement, or the selling stockholders will
be entitled to contribution. We may be indemnified by the
selling stockholders against certain civil liabilities,
including liabilities under the Securities Act, that may arise
from any written information furnished to us by the selling
stockholder specifically for use in this prospectus, in
accordance with the related registration rights agreement, or we
may be entitled to contribution.
Once sold under the registration statement, of which this
prospectus forms a part, the shares of common stock will be
freely tradable under the Securities Act in the hands of persons
other than our affiliates.
A-3
Annex B
SAIA,
INC.
Selling Securityholder Notice and Questionnaire
The undersigned beneficial owner of common stock (the
Common Stock ) of Saia, Inc. (the
Company ) understands that the Company has filed or
intends to file with the Securities and Exchange Commission (the
Commission ) a Registration Statement for the
registration and resale of the Registrable Securities, in
accordance with the terms of the Registration Rights Agreement,
dated as of December 22, 2009 (the
Registration Rights Agreement ), among the Company
and the Investors named therein. A copy of the Registration
Rights Agreement is available from the Company upon request at
the address set forth below. All capitalized terms used and not
otherwise defined herein shall have the meanings ascribed
thereto in the Registration Rights Agreement.
The undersigned hereby provides the following information to the
Company and represents and warrants that such information is
accurate:
QUESTIONNAIRE
1. Name.
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(a)
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Full Legal Name of Selling Securityholder
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(b)
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Full Legal Name of Registered Holder (if not the same as
(a) above) through which Registrable Securities Listed in
Item 3 below are held:
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(c)
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Full Legal Name of Natural Control Person (which means a natural
person who directly or indirectly alone or with others has power
to vote or dispose of the securities covered by the
questionnaire):
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2. Address for Notices to Selling Securityholder:
3. Beneficial Ownership of Registrable Securities:
Type and Principal Amount of Registrable Securities beneficially
owned:
4. Broker-Dealer Status:
(a) Are you a broker-dealer?
Yes
o
No
o
B-1
Note: If yes, the Commissions staff has indicated that you
should be identified as an underwriter in the Registration
Statement.
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(b)
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Are you an affiliate of a broker-dealer?
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Yes
o
No
o
(c) If you are an affiliate of a broker-dealer, do you
certify that you bought the Registrable Securities in the
ordinary course of business, and at the time of the purchase of
the Registrable Securities to be resold, you had no agreements
or understandings, directly or indirectly, with any person to
distribute the Registrable Securities?
Yes
o
No
o
Note: If no, the Commissions staff has indicated that you
should be identified as an underwriter in the Registration
Statement.
5. Beneficial Ownership of Other Securities of the Company
Owned by the Selling Securityholder.
Except as set forth below in this Item 5, the
undersigned is not the beneficial or registered owner of any
securities of the Company other than the Registrable Securities
listed above in Item 3.
Type and Amount of Other Securities beneficially owned by the
Selling Securityholder:
6. Relationships with the Company:
Except as set forth below, neither the undersigned nor any of
its affiliates, officers, directors or principal equity holders
(owners of 5% of more of the equity securities of the
undersigned) has held any position or office or has had any
other material relationship with the Company (or its
predecessors or affiliates) during the past three years.
State any exceptions here:
7. Please fill in the table below as you would like it to
appear in the Registration Statement. Include footnotes where
appropriate.
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Maximum Number of
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Number of Shares
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Shares to be Sold
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Name of Selling
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Beneficially
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Pursuant to
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Number of Shares
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Stockholder
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Owned Prior to Offering
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this Prospectus
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Owned After Offering
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B-2
The undersigned agrees to promptly notify the Company of any
inaccuracies or changes in the information provided herein that
may occur subsequent to the date hereof and prior to the
Effective Date for the Registration Statement.
By signing below, the undersigned consents to the disclosure of
the information contained herein in its answers to Items 1
through 7 and the inclusion of such information in the
Registration Statement and the related prospectus. The
undersigned understands that such information will be relied
upon by the Company in connection with the preparation or
amendment of the Registration Statement and the related
prospectus.
IN WITNESS WHEREOF the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and
delivered either in person or by its duly authorized agent.
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Dated:
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Beneficial
Owner:
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By:
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Name:
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Title:
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PLEASE FAX A COPY OF THE COMPLETED AND EXECUTED NOTICE AND
QUESTIONNAIRE, AND RETURN THE ORIGINAL BY OVERNIGHT MAIL, TO:
Bryan Cave
LLP
One Kansas City Place
1200 Main Street, Suite 3500
Kansas City, Missouri
64105-2100
Attn: Robert Barnes
Facsimile:
(816) 855-3368
B-3
Exhibit 10.3
FIRST AMENDMENT TO THIRD AMENDED
AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT (this Amendment), dated
December 22, 2009, is entered into by and among SAIA, INC., a Delaware corporation (the
Borrower), the undersigned Banks, and BANK OF OKLAHOMA, NATIONAL ASSOCIATION, as Administrative
Agent.
RECITALS
:
A. The Borrower, the Banks, Bank of Oklahoma, National Association, as Lead Arranger and as
Administrative Agent and Collateral Agent, Bank of America, N.A., as successor by merger to LaSalle
Bank National Association, as Syndication Agent, and U.S. Bank National Association, as
Documentation Agent, are parties to that certain Third Amended and Restated Credit Agreement dated
June 26, 2009 (the Credit Agreement). Capitalized terms used in this Amendment that are not
otherwise defined herein have the respective meanings assigned to them in the Credit Agreement.
B. The Borrower has requested that certain provisions of the Credit Agreement be amended upon
consummation of a Successful Stock Offering (as defined in Paragraph 2.G below).
C. The undersigned Banks have agreed to such request, subject to the terms and conditions set
forth in this Amendment.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby
amend the Credit Agreement, effective as of consummation of a Successful Stock Offering, as
follows:
1.
REVOLVING CREDIT COMMITMENT
. The Revolving Credit Commitment shall be permanently
reduced from $160,000,000 to $120,000,000. Accordingly, (i) the reference to $160,000,000
appearing in the definition of Revolving Credit Commitment in Section 1.1.113 of the Credit
Agreement is hereby replaced with a reference to $120,000,000, and (ii) in order to
proportionately reduce each Banks Commitment to correspond with the reduction in the Revolving
Credit Commitment, each Banks Commitment is hereby reduced to the amount set forth on
Schedule
I
attached hereto.
2.
AMENDMENTS TO DEFINITIONS APPEARING IN SECTION 1.1 OF THE CREDIT AGREEMENT
. The
following changes are made to the definitions appearing in Section 1 of the Credit Agreement (and
such defined terms shall also have the same meanings when used in this Amendment):
A. The definition of Adjusted Covenant Period appearing at Section 1.1.6 of the Credit
Agreement shall be amended and restated in its entirety to read as follows:
1.1.6. Adjusted Covenant Period means the period commencing on the Effective
Date and ending on March 31, 2011 (or such later date as the Borrower and the
Majority Banks may mutually establish).
B. The definition of EBITDAR appearing at Section 1.1.42 of the Credit Agreement shall be
amended and restated in its entirety to read as follows:
1.1.42 EBITDAR means, for any period, the sum of Net Income plus, to the
extent deducted in the determination of Net Income, (i) all provisions for federal,
state and other income tax of the Borrower and its Subsidiaries, (ii) Interest
Expense, (iii) provisions for depreciation and amortization, and (iv) Rental
Expense, excluding (a) any gains or losses resulting from the sale, conversion or
other disposition of capital assets (i.e., assets other than current assets), (b)
any gains resulting from the write-up of assets, (c) any earnings of any Person
acquired by the Borrower or any Subsidiary through purchase, merger or consolidation
or otherwise for any period prior to the date of Acquisition, (d) any deferred
credit representing the excess of equity in any such Subsidiary at the date of
Acquisition over the cost of the investment in such Subsidiary, (e) any gains or
losses from the acquisition of securities or the retirement or extinguishment of
Indebtedness, (f) any gains on collections from the proceeds of insurance policies
or settlements, (g) any restoration to income of any Contingency Reserve, except to
the extent that provision for such reserve was made out of income accrued during
such period, (h) any income, gain or loss during such period from any discontinued
operations or the disposition thereof, from any extraordinary items or from any
prior period adjustments, and (i) any interest of the Borrower or any Subsidiary in
the undistributed earnings (but not losses) of any Person which is not a Subsidiary
of the Borrower, which in the aggregate will be deducted only to the extent they are
positive, adjusted for minority interests in Subsidiaries. Furthermore, for all
periods ending on or before March 31, 2011, EBITDAR shall also include (and shall be
increased by the amount of) the net proceeds of a Successful Stock Offering.
C. The definition of Excess Cash on Hand appearing at Section 1.1.49 of the Credit Agreement
shall be amended and restated in its entirety to read as follows:
1.1.49 Excess Cash on Hand means, as of any date, the amount (but only if a
positive number) by which total cash and cash equivalents (except for cash and cash
equivalents encumbered by Liens or restrictions in favor of Persons other than the
Collateral Agent) of the Borrower and its Subsidiaries on hand on such date exceeds
the sum of the following:
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(i)
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$5,000,000; plus
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(ii)
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the total principal amount of all Loans
outstanding hereunder on such date; plus
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(iii)
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for purposes of any financial ratios
used in this Agreement for which Excess Cash on Hand is a
component in the calculation thereof during the Adjusted
Covenant Period (but not for purposes of calculating the
Available Borrowing Base during the Adjusted Covenant Period),
the total amount received by the Borrower in cash as net
proceeds from a Successful Stock Offering.
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D. The definition of Maintenance Capital Expenditures appearing at Section 1.1.72 of the
Credit Agreement shall be deleted in its entirety and in its place, Section 1.1.72 shall now read
[INTENTIONALLY OMITTED].
E. The definition of Net Cash Flow appearing at Section 1.1.79 of the Credit Agreement shall
be amended and restated in its entirety to read as follows:
1.1.79 Net Cash Flow means Adjusted EBITDAR less the sum of Rental Expense,
cash taxes, Unfinanced Capital Expenditures, distributions (to the extent payment of
such distributions was consented to by the Majority Banks), and treasury stock
purchases (to the extent permitted by Section 7.13(b)).
F. The definition of Total Debt Service appearing at Section 1.1.133 of the Credit Agreement
shall be amended and restated in its entirety to read as follows:
1.1.133. Total Debt Service means for any period means the sum of (i)
Interest Expense, (ii) scheduled principal payments on long-term debt (whether or
not scheduled principal payments are prepaid), and (iii) Capital Lease payments.
G. A new definition of Successful Stock Offering shall be added to the Credit Agreement at
Section 1.1.141 reading as follows:
Successful Stock Offering means the closing and settlement of funds on or
before February 16, 2010, of an offering of common stock of the Borrower resulting
in cash proceeds to the Borrower (net of placement agent fees) in excess of
$25,000,000. All references to the net proceeds of a Successful Stock Offering
shall mean the total issuance proceeds, net of placement agent fees only.
H. A new definition of Unfinanced Capital Expenditures shall be added to the Credit
Agreement at Section 1.1.142 reading as follows:
Unfinanced Capital Expenditures means Capital Expenditures by the Borrower
and its Subsidiaries during a particular period of determination financed with funds
other than funds financed through Revolving Credit Loans or with the proceeds of a
Successful Stock Offering.
3
3.
FINANCIAL COVENANT AMENDMENTS
.
A. Section 6.1 of the Credit Agreement shall be amended and restated in its entirety to read
as follows:
6.1
Fixed Charge Coverage Ratio
. The Borrower will not permit the Fixed Charge Coverage
Ratio, determined as of the last day of each fiscal quarter beginning with the fiscal
quarter ending December 31, 2009, for the four fiscal quarters then ended, to be less than
the minimum required Fixed Charge Coverage Ratio set forth below.
|
|
|
|
|
Minimum Required Fixed Charge
|
Period
|
|
Coverage Ratio
|
December 31, 2009, March 31,
2010, June 30, 2010, September 30,
2010, December 31, 2010 and
March 31, 2011
|
|
1.00 to 1.00
|
June 30, 2011 and thereafter
|
|
1.10 to 1.00
|
B. Section 6.2 of the Credit Agreement shall be amended and restated in its entirety to read
as follows:
6.2
Leverage Ratio.
The Borrower will not permit the Leverage Ratio, determined as of
the last day of each fiscal quarter beginning with the fiscal quarter ending December 31,
2009, to be greater than the maximum permitted Leverage Ratio set forth below.
|
|
|
|
|
Maximum Permitted Leverage
|
Calculation Date
|
|
Ratio
|
December 31, 2009, March 31,
2010, June 30, 2010, September 30,
2010, December 31, 2010 and
March 31, 2011
|
|
4.25 to 1.00
|
June 30, 2011 and thereafter
|
|
3.25 to 1.00
|
C. Section 6.3 of the Credit Agreement shall be amended and restated in its entirety to read
as follows:
6.3
Adjusted Leverage Ratio.
The Borrower will not permit the Adjusted Leverage Ratio,
determined as of the last day of each fiscal quarter beginning with the fiscal quarter
ending December 31, 2009, to be greater than the maximum permitted Adjusted Leverage Ratio
set forth below.
|
|
|
|
|
Maximum Permitted Adjusted
|
Calculation Date
|
|
Leverage Ratio
|
December 31, 2009, March 31, 2010
and June 30, 2010
|
|
4.75 to 1.00
|
4
|
|
|
|
|
Maximum Permitted Adjusted
|
Calculation Date
|
|
Leverage Ratio
|
September 30, 2010, December 31,
2010 and March 31, 2011
|
|
5.00 to 1.00
|
June 30, 2011 and thereafter
|
|
3.75 to 1.00
|
D. A new Section 6.6 shall be added to the Credit Agreement reading as follows:
6.6
Rental Expense
. The Borrower shall not allow aggregate Rental Expense,
determined as of the last day of each fiscal quarter for the twelve months then
ending, beginning with the fiscal quarter ending December 31, 2009, and continuing
through March 31, 2011, to exceed $19,000,000.
4.
OTHER AMENDMENTS TO CREDIT AGREEMENT
.
A. Section 5.2.3 of the Credit Agreement shall be amended and restated in its entirety to read
as follows:
5.2.3 The Borrower will permit the Administrative Agent, through its authorized
agents and representatives (who need not be employees of the Administrative Agent),
to conduct periodic field audits of the Borrower and its Subsidiaries and to review
its operations, books and records, credit policies, charge-off policies, collection
procedures, methodology for eligibility calculations, and other matters relating to
the value and maintenance of the Eligible Accounts and the Borrowers financial
reporting. Field audits will be conducted semi-annually. Additional field audits
may be conducted at any time in the Administrative Agents reasonable exercise of
its sole discretion. The Borrower will pay all reasonable costs and expenses
actually incurred by the Administrative Agent in connection with each field audit;
provided
,
however
, that prior to the occurrence of any Default or
Matured Default, the Borrower shall not be required to pay the costs of more than
two field audits per year.
B. Section 5.2.4 of the Credit Agreement shall be amended and restated in its entirety to read
as follows:
5.2.4 The Borrower will permit the Administrative Agent to order and obtain
desktop appraisals of the Borrowers Rolling Stock (meaning appraisals of limited
scope whereby the appraiser estimates the value of the Rolling Stock from his or her
desk based on a current listing supplied to him or her, but without conducting a
physical inspection of the Rolling Stock). Each desk-top appraisal shall be
conducted by a qualified appraiser selected by the Administrative Agent and shall
set forth the appraisers estimate of the Net Orderly Liquidation Value of the
Borrowers Rolling Stock. Desktop appraisals will be obtained semi-annually.
Additional desktop appraisals may be conducted at any time in the Administrative
Agents reasonable exercise of its sole discretion. The Borrower will pay all
reasonable costs and expenses actually incurred by the Administrative Agent in
connection with each desktop appraisal; provided, however, that prior to the
5
occurrence of any Default or Matured Default, the Borrower shall not be
required to pay the costs of more than two desktop appraisals per year.
5.
AMENDMENT FEE
. On the date of consummation of a Successful Stock Offering, the Borrower
shall pay an amendment fee to each Bank that is a party to this Amendment in an amount equal to
0.25% (25 basis point) of such Banks reduced Commitment as set forth on
Schedule I
hereto.
6.
CONDITIONS PRECEDENT; POST-CLOSING CONDITIONS
.
A. This Amendment shall not become effective, or legally binding on the parties to the Credit
Agreement, and neither the Borrower not the Banks shall have any rights under this Amendment, until
(i) the Borrower shall have entered into definitive stock purchase agreements for the issuance and
sale of shares of its common stock which upon consummation would result in net proceeds to the
Borrower of more than $25,000,000 in the aggregate, and (ii) the Administrative Agent shall have
received each of the following documents:
(a) a counterpart of this Amendment, duly executed by the Majority Banks, the Borrower
and SMF; and
(b) a copy of that certain First Amendment to Amended and Restated Master Shelf
Agreement dated as of the date hereof and in the form annexed hereto (the Prudential
Amendment), duly executed by the Borrower, SMF and Prudential.
Notwithstanding the foregoing, it is expressly understood and agreed that the modifications to the
Credit Agreement set forth in Paragraphs 1, 2, 3 and 4 hereof shall become effective upon, and only
upon, (i) consummation of a Successful Stock Offering and (ii) payment of the amendment fees set
forth in Paragraph 5 hereof.
B. Not later than 15 days after the execution and delivery of this Amendment, the Borrower
shall deliver to the Administrative Agent copies of the definitive stock purchase agreements for
the issuance and sale of shares of its common stock resulting in aggregate net proceeds to the
Borrower of more than $25,000,000.
C. Not later than 15 days after consummation of a Successful Stock Offering, the Borrower
shall (i) prepay the principal and interest installments that would otherwise be due and payable
during 2010 on the Prudential Term Notes in the aggregate sum of $24,498,125, and (ii) pay to the
Administrative Agent the sum of $2,000,000, for the pro-rata benefit of all Banks, in partial
prepayment of and for application to the Letter of Credit fees that would otherwise be due and
payable during 2010 under Section 2.2.4 of the Credit Agreement (it being understood that any
remaining fees due under Section 2.2.4 of the Credit Agreement for 2010 will be paid during the
fourth quarter of 2010).
6
7.
REPRESENTATIONS AND WARRANTIES
.
A. The Borrower confirms that all representations and warranties made by it in the Credit
Agreement are true and correct in all material respects and will be true and correct upon
consummation of a Successful Stock Offering, and all of such representations and warranties are
hereby remade and restated on the date hereof and on the date of consummation of a Successful Stock
Offering and shall survive the execution and delivery of this Amendment and consummation of a
Successful Stock Offering.
B. The Borrower further represents and warrants that:
(i) The Borrower is duly authorized and empowered to execute, deliver and perform this
Amendment and the Credit Agreement (as amended by this Amendment), and all action necessary
for such execution, delivery and performance has been duly and validly taken;
(ii) This Amendment and the Credit Agreement (as amended by this Amendment) are valid
and legally binding obligations of the Borrower, enforceable in accordance with their
respective terms (subject to any applicable bankruptcy, insolvency or other laws affecting
the enforcement of creditors rights generally);
(iii) The execution, delivery and performance by the Borrower of this Amendment do not
and will not (a) conflict with, or result in a breach of the terms, conditions or provisions
of, or constitute a default under, or result in any violation of any of its charter or
by-laws, or any material agreement to which it is a party or by which it is bound, or any
judgment, decree, order, writ, injunction, or law to which it is subject, (b) result in the
creation or imposition of any Lien on any Property of Borrower or any of its Subsidiaries
pursuant to the provisions of any mortgage, indenture, security agreement, contract,
undertaking or other agreement other than the Liens in favor of the Collateral Agent created
by the Collateral Documents, or (c) require any authorization, consent, license, approval or
authorization of or other action by, or notice or declaration to, or registration with, any
governmental authority, or, to the extent that any such consent or other action may be
required, it has been validly procured or duly taken; and
(iv) All financial statements, balance sheets, income statements and financial data
which have been or are hereafter furnished to the Administrative Agent by the Borrower do,
and as to subsequent financial statements will, fairly represent Borrowers financial
condition as of the dates for which the same are furnished, and will be complete insofar as
completeness may be necessary to give the Administrative Agent a true and accurate knowledge
of the subject matter. Since the date of the last such financial statements or other
financial data provided to the Administrative Agent, no material adverse change has occurred
in the operations or condition, financial or otherwise, of, nor, has the Borrower incurred,
any material liabilities or made any material investment or guarantees, direct or
contingent, in any single case or in the aggregate, which has not been disclosed to the
Administrative Agent.
7
8.
REAFFIRMATION OF GUARANTY
. SMF hereby ratifies, confirms, and acknowledges that its
obligations under the Restated Guaranty Agreement dated as of June 26, 2009 (the Guaranty), are
in full force and effect and that SMF continues to unconditionally and irrevocably, jointly and
severally, guarantee the full and punctual payment, when due, whether at stated maturity or earlier
by acceleration or otherwise, all of the Obligations. Nothing contained herein to the contrary
shall release, discharge, modify, change or affect the original liability of SMF under the
Guaranty. SMF hereby acknowledges that its execution and delivery of this Amendment does not
indicate or establish an approval or consent requirement by SMF in connection with the execution
and delivery of amendments to the Credit Agreement or any of the other Loan Documents.
9.
CONSENT TO PRUDENTIAL AMENDMENT
. The Administrative Agent and the undersigned Banks
hereby (i) acknowledge and consent to the execution, delivery and performance by the Borrower and
SMF of the Prudential Amendment, and (ii) acknowledge and consent, notwithstanding anything
contained in the Credit Agreement or the Intercreditor Agreement to the contrary, to the Borrowers
prepaying the principal and interest installments that would otherwise be due and payable during
2010 on the Prudential Term Notes in the aggregate sum of $24,498,125.
10.
MISCELLANEOUS
.
A. From and after the date of the consummation of a Successful Stock Offering, all references
to the Credit Agreement shall mean the Credit Agreement as modified by this Amendment. The Credit
Agreement, as amended, modified and supplemented by this Amendment upon the consummation of a
Successful Stock Offering, shall continue in full force and effect in accordance with its terms and
is hereby reaffirmed in every respect. To the extent that the terms of this Amendment are
inconsistent with the terms of the Credit Agreement, this Amendment shall control and the Credit
Agreement shall be amended, modified or supplemented so as to give full effect to the transactions
contemplated by this Amendment.
B. The form of Officers Certificate annexed to this Amendment is hereby substituted for
Exhibit E
to the Credit Agreement.
C. The descriptive headings of the several paragraphs of this Amendment are inserted for
convenience only and shall not be used in the construction of the content of this Amendment.
D. The Borrower agrees to pay all reasonable out-of-pocket expenses, including, without
limitation, attorneys fees and expenses, incurred by the Administrative Agent in connection with
the negotiation and preparation of this Amendment (whether or not a Successful Stock Offering is
consummated).
E. This Amendment shall be construed in accordance with the laws of the State of Oklahoma.
8
F. This Amendment may be executed in multiple counterparts, each of which shall be deemed an
original hereof and all of which shall be but one and the same original instrument. Transmission
by facsimile or portable electronic format (pdf) of an executed counterpart of this Amendment by
any party shall be deemed to constitute due and sufficient delivery of such counterpart and such
facsimile or pdf shall be deemed to be an original counterpart of this Amendment.
G. This Amendment shall not establish a course of dealing or be construed as evidence of any
willingness or commitment on the part of the Administrative Agent or of any Bank to agree to other
or future amendments to or modifications of the Credit Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.
SIGNATURES APPEAR ON FOLLOWING PAGES.]
9
IN WITNESS WHEREOF, the Borrower and the undersigned Banks have caused this Amendment to be
duly executed in multiple counterparts, each of which shall be considered an original, on the date
first set forth above.
|
|
|
|
|
Borrower:
|
SAIA, INC.
|
|
|
By:
|
/s/ James A. Darby
|
|
|
|
James A. Darby,
|
|
|
|
Vice President Finance
Chief Financial Officer and Secretary
|
|
|
Guarantor:
|
SAIA MOTOR FREIGHT LINE, LLC
|
|
|
By:
|
/s/ James A. Darby
|
|
|
|
Name:
|
James A. Darby
|
|
|
|
Title:
|
Vice President Finance
Chief Financial Officer and Secretary
|
|
|
Signature Page to First Amendment to Third
Amended and Restated Credit Agreement
|
|
|
|
|
|
BANK OF OKLAHOMA, NATIONAL ASSOCIATION,
as a
Bank and as Administrative Agent
|
|
|
By:
|
/s/ Daniel A. Hughes
|
|
|
|
Daniel A. Hughes, Senior Vice President
|
|
|
|
|
|
|
Signature Page to First Amendment to Third
Amended and Restated Credit Agreement
|
|
|
|
|
|
U.S. BANK NATIONAL ASSOCIATION
|
|
|
By:
|
/s/ Edward B. Hanson
|
|
|
|
Name:
|
Edward B. Hanson
|
|
|
|
Title:
|
Assistant Vice President
|
|
|
Signature Page to First Amendment to Third
Amended and Restated Credit Agreement
|
|
|
|
|
|
JPMORGAN CHASE BANK, N.A.
|
|
|
By:
|
/s/ Robert P. Carswell
|
|
|
|
Robert P. Carswell, Senior Underwriter
|
|
|
|
|
|
|
Signature Page to First Amendment to Third
Amended and Restated Credit Agreement
|
|
|
|
|
|
SUNTRUST BANK
|
|
|
By
|
/s/ Tesha Winslow
|
|
|
|
Tesha Winslow, Portfolio Manager
|
|
|
|
|
|
Signature Page to First Amendment to Third
Amended and Restated Credit Agreement
Schedule I
BANKS COMMITMENTS
|
|
|
|
|
BANK
|
|
COMMITMENT
|
BANK OF OKLAHOMA,
NATIONAL ASSOCIATION
|
|
$
|
26,250,000
|
|
U.S. BANK NATIONAL ASSOCIATION
|
|
$
|
26,250,000
|
|
JPMORGAN CHASE BANK, N.A.
|
|
$
|
17,250,000
|
|
BANK OF AMERICA, N.A.
|
|
$
|
26,250,000
|
|
SUNTRUST BANK
|
|
$
|
24,000,000
|
|
Exhibit 10.4
Execution Version
FIRST AMENDMENT TO
AMENDED AND RESTATED MASTER SHELF AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED MASTER SHELF AGREEMENT
(this
Amendment
) is made
and entered into as of December 22, 2009, by and among SAIA, Inc., a Delaware corporation (the
Company
), The Prudential Insurance Company of America and the other holders of Notes (as defined
in the Agreement defined below) that are signatories hereto (together with their successors and
assigns, the
Noteholders
).
WITNESSETH
:
WHEREAS, the Company and the Noteholders are parties to a certain Amended and Restated Master
Shelf Agreement, dated as of June 26, 2009 (as amended, restated, supplemented or otherwise
modified from time to time, the
Agreement
; capitalized terms used herein and not otherwise
defined shall have the meanings assigned to such terms in the Agreement), pursuant to which the
Noteholders have purchased Notes from the Company; and
WHEREAS, the Company has requested that the Noteholders amend certain provisions of the
Agreement, upon consummation of a Successful Stock Offering, and subject to the terms and
conditions hereof, the Noteholders are willing to do so;
NOW, THEREFORE, for good and valuable consideration, the sufficiency and receipt of all of
which are acknowledged, the Company and the Noteholders agree as follows:
1.
Amendments
.
(a)
Paragraph 2B
. Paragraph 2B of the Agreement is amended by replacing such paragraph in its
entirety with the following:
2B.
Increase in Interest Rate
. Effective as of the First Amendment Date (but
subject to the terms of paragraph 4A(iii)), the per annum stated interest rate on
the outstanding Notes of each Series shall automatically be increased to 9.75% per
annum commencing on the First Amendment Date and continuing thereafter until the
Company has delivered to the holders of the Notes an Officers Certificate for the
fiscal quarter ending June 30, 2011 or any fiscal quarter thereafter as required
under paragraph 5A(iii) demonstrating that the Company is in compliance with the
provisions of paragraphs 6A(1), 6A(2), 6A(3), 6A(4), 6A(5), 6A(6), 6B(iv) and 6G
hereof and certifying that no Default or Event of Default has occurred, at which
time the per annum stated interest rate on the outstanding Notes of each Series
shall automatically decrease to its original level prevailing immediately prior to
the First Amendment Date.
(b)
Paragraph 4A(ii)
. Paragraph 4A(ii) of the Agreement is amended by adding the following at
the end of such paragraph:
Notwithstanding the foregoing, no mandatory prepayment of the Notes shall be
required under this paragraph 4A(ii) in connection with the reduction of the
revolving credit commitments established pursuant to the Credit Agreement from
$160,000,000 to $120,000,000 on the First Amendment Date.
(c)
Paragraph 4A(iii)
. Paragraph 4A of the Agreement is amended by adding the following as a
new clause (iii) at the end of such Paragraph:
(iii) Notwithstanding anything contained in this Agreement or any of the Notes,
the Company will, no later than 15 days after the First Amendment Date, pay to the
holders of the Notes $24,498,125.00 (the First Amendment Payment), which shall be
applied to the principal and interest installments on all Notes otherwise due and
payable on March 31, 2010, June 30, 2010, September 30, 2010 and December 31, 2010.
Upon timely receipt by the Noteholders of the First Amendment Payment, the principal
and interest installments due and payable on the Notes on March 31, 2010, June 30,
2010, September 30, 2010 and December 31, 2010 shall be deemed to have been paid in
full, and no Yield-Maintenance Amount shall be required in connection with such
payment. Failure to pay the First Amendment Payment no later than 15 days after the
First Amendment Date shall constitute an Event of Default.
(d)
Paragraph 5A
. Paragraph 5A(iii) of the Agreement is amended by inserting 6A(6), after
the reference to 6A(5).
(e)
Paragraph 5C
. Paragraph 5C of the Agreement is amended by replacing clauses (iii) and
(iv) of such Paragraph in their entirety with the following:
(iii) The Company will permit the holders of the Notes, at the reasonable
request of the Required Holders, through the authorized agents and representatives
of such holders (who need not be employees of such holders), to conduct periodic
field audits of the Company and its Subsidiaries and to review its operations, books
and records, credit policies, charge-off policies, collection procedures,
methodology for eligibility calculations, and other matters relating to the value
and maintenance of the accounts receivable and the Companys financial reporting.
Field audits will be conducted semi-annually. Additional field audits may be
conducted at any time in the reasonable exercise of the sole discretion of the
holders of the Notes. The Company will pay all reasonable costs and expenses
actually incurred by the holders of the Notes in connection with each field audit;
provided
,
however
, that prior to the occurrence of any Default or
Event of Default, the Company shall not be required to pay the costs of more than
two field audits per year.
(iv) The Company will permit the holders of the Notes, at the reasonable
request of the Required Holders, to order and obtain desktop appraisals of the
Companys Rolling Stock (meaning appraisals of limited scope whereby the appraiser
estimates the value of the Rolling Stock from his or her desk based on a
current listing supplied to him or her, but without conducting a
2
physical inspection
of the Rolling Stock). Each desk-top appraisal shall be conducted by a qualified
appraiser selected by the Required Holders and shall set forth the appraisers
estimate of the Net Orderly Liquidation Value of the Companys Rolling Stock.
Desktop appraisals will be obtained semi-annually. Additional desktop appraisals
may be conducted at any time in the reasonable exercise of the sole discretion of
the holders of the Notes. The Company will pay all reasonable costs and expenses
actually incurred by the holders of the Notes or the Collateral Agent in connection
with each desktop appraisal;
provided
,
however
, that prior to the
occurrence of any Default or Event of Default, the Company shall not be required to
pay the costs of more than two desktop appraisals per year.
(e)
Paragraph 5Q
. The Agreement is amended to add the following as a new Paragraph 5Q:
5Q.
Post Closing to First Amendment
. The Company will comply with its
obligation under Paragraph 3 of that certain First Amendment to Amended and Restated
Master Shelf Agreement, dated as of December 21, 2009, among the Company and the
holders of the Notes.
(f)
Paragraph 6A.
Paragraph 6A of the Agreement is amended by replacing paragraphs 6A(1),
6A(2) and 6A(3) in their entirety with the following:
6A(1)
Fixed Charge Coverage Ratio.
The Company will not permit the Fixed
Charge Coverage Ratio, determined as of the last day of each fiscal quarter
beginning with the fiscal quarter ending December 31, 2009, for the four fiscal
quarters then ended, to be less than the minimum required Fixed Charge Coverage
Ratio set forth below.
|
|
|
|
|
Minimum Required Fixed
|
Period
|
|
Charge Coverage Ratio
|
December 31, 2009, March 31, 2010, June
30, 2010, September 30, 2010, December
31, 2010 and March 31, 2011
|
|
1.00 to 1.00
|
June 30, 2011 and thereafter
|
|
1.10 to 1.00
|
6A(2)
Leverage Ratio.
The Company will not permit the Leverage Ratio,
determined as of the last day of each fiscal quarter beginning with the fiscal
quarter ending December 31, 2009, to be greater than the maximum permitted Leverage
Ratio set forth below.
3
|
|
|
|
|
Maximum Permitted
|
Calculation Date
|
|
Leverage Ratio
|
December 31, 2009, March 31, 2010, June
30, 2010, September 30, 2010, December
31, 2010 and March 31, 2011
|
|
4.25 to 1.00
|
June 30, 2011 and thereafter
|
|
3.25 to 1.00
|
6A(3)
Adjusted Leverage Ratio.
The Company will not permit, as of the last day
of any fiscal quarter, the Adjusted Leverage Ratio, calculated on a consolidated
basis, to be greater than
|
|
|
|
|
Maximum Permitted
|
Calculation Date
|
|
Adjusted Leverage Ratio
|
December 31, 2009, March 31, 2010 and
June 30, 2010
|
|
4.75 to 1.00
|
September 30, 2010, December 31, 2010
and March 31, 2011
|
|
5.00 to 1.00
|
June 30, 2011 and thereafter
|
|
3.75 to 1.00
|
(g)
Paragraph 6A
. Paragraph 6A of the Agreement is further amended by adding the following as
a new paragraph 6A(6):
6A(6)
Rental Expense
. The Company shall not allow aggregate Rental Expense,
determined as of the last day of each fiscal quarter for the twelve months then
ending, beginning with the fiscal quarter ending December 31, 2009, and continuing
through March 31, 2011, to exceed $19,000,000.
(h)
Paragraph 10B.
Paragraph 10B of the Agreement is amended by replacing the definitions of
Adjusted Covenant Period, Default Rate, EBITDAR, Excess Cash on Hand and Net Cash Flow in
their entirety with the following:
Adjusted Covenant Period
shall mean the period commencing on the Effective
Date and ending on March 31, 2011 (or such later date as the Company and the
Required Holders may mutually establish).
Default Rate
shall mean, for any Series of Notes at any time upon the
occurrence of an Event of Default and until such Event of Default has been cured or
waived in writing, a rate of interest per annum from time to time equal to the
lesser of (i) the maximum rate permitted by applicable law and (ii) the greater of
(a) 2% over the stated interest rate for such Series of Notes (giving effect to
4
paragraph 2B) and (b) 2% over the rate of interest publicly announced by JPMorgan
Chase Bank, N.A. in New York, New York from time to time as its base or prime
rate.
EBITDAR
shall mean, for any period, the sum of Net Income,
plus
,
to
the extent deducted in the determination of Net Income, (i) all provisions for
federal, state and other income tax of the Company and its Subsidiaries (ii)
Interest Expense, (iii) provisions for depreciation and amortization and (iv) Rental
Expense,
excluding
(a) any gains or losses resulting from the sale,
conversion or other disposition of capital assets (i.e., assets other than current
assets), (b) any gains resulting from the write-up of assets, (c) any earnings of
any Person acquired by the Company or any Subsidiary through purchase, merger or
consolidation or otherwise for any period prior to the date of Acquisition, (d) any
deferred credit representing the excess of equity in any such Subsidiary at the date
of Acquisition over the cost of the investment in such Subsidiary, (e) any gains or
losses from the acquisition of securities or the retirement or extinguishment of
Indebtedness, (f) any gains on collections from the proceeds of insurance policies
or settlements, (g) any restoration to income of any Contingency Reserve, except to
the extent that provision for such reserve was made out of income accrued during
such period, (h) any income, gain or loss during such period from any discontinued
operations or the disposition thereof, from any extraordinary items or from any
prior period adjustments and (i) any interest of the Company or any Subsidiary in
the undistributed earnings (but not losses) of any Person which is not a Subsidiary
of the Company, which in the aggregate will be deducted only to the extent they are
positive, adjusted for minority interests in Subsidiaries. Furthermore, for all
periods ending on or before March 31, 2011, EBITDAR shall also include (and shall be
increased by the amount of) the net proceeds of a Successful Stock Offering.
Excess Cash on Hand
means, as of any date, the amount (but only if a positive
number) by which total cash and cash equivalents (except for cash and cash
equivalents encumbered by Liens or restrictions in favor of Persons other than the
Collateral Agent) of the Company and its Subsidiaries on hand on such date exceeds
the sum of the following:
|
(i)
|
|
$5,000,000; plus
|
|
|
(ii)
|
|
the total principal amount of all
outstanding loans under the Credit Agreement on such date; plus
|
|
|
(iii)
|
|
for purposes of any financial ratios
used in this Agreement for which Excess Cash on Hand is a
component in the calculation thereof during the Adjusted
Covenant Period (but not for purposes of calculating the
Available Borrowing Base during the Adjusted Covenant Period),
the
|
5
|
|
|
total amount received by the Company in cash as net proceeds
from a Successful Stock Offering.
|
Net Cash Flow
shall mean Adjusted EBITDAR less the sum of Rental Expense,
cash taxes, Unfinanced Capital Expenditures, distributions (to the extent payment of
such distributions was consented to by the Required Holders) and treasury stock
purchases (to the extent permitted by paragraph 6N).
Total Debt Service
shall mean for any period the sum of (i) Interest Expense
(whether or not scheduled interest payments are prepaid), (ii) scheduled principal
payments on long-term debt (whether or not scheduled principal payments are prepaid)
and (iii) Capital Lease payments.
(i)
Paragraph 10B.
Paragraph 10B of the Agreement is amended by deleting the definition of
Maintenance Capital Expenditures in its entirety.
(j)
Paragraph 10B.
Paragraph 10B of the Agreement is further amended by adding the following
definitions of First Amendment Date, Successful Stock Offering and Unfinanced Capital
Expenditures in the appropriate alphabetical order:
First Amendment Date
means the date of consummation of a Successful Stock
Offering.
Successful Stock Offering
means the closing and settlement of funds on or
before February 16, 2010, of an offering of common stock of the Company resulting in
cash proceeds to the Company, net of placement agent fees, in excess of $25,000,000.
All references to the net proceeds of a Successful Stock Offering shall mean the
total issuance proceeds, net of placement agent fees only.
Unfinanced Capital Expenditures
means Capital Expenditures by the Company and
its Subsidiaries during a particular period of determination financed with funds
other than the proceeds of loans under the Credit Agreement or with the proceeds of
a Successful Stock Offering.
(k)
Exhibit B.
Exhibit B to the Agreement is amended by replacing such Exhibit in its
entirety with
Exhibit B
attached to this Amendment.
2.
Conditions to Effectiveness of this Amendment
.
This Amendment shall not become
effective, or legally binding on the parties to the Agreement, and neither the Company nor the
Noteholders shall have any rights under this Amendment, until (i) all fees due and payable in
connection with the execution of this Amendment by the Noteholders pursuant to the terms of that
certain letter agreement, dated as of December 14, 2009, among the Company, the Guarantor and the
Noteholders (the
Fee Letter
) have been timely paid, (ii) the Noteholders shall have received
reimbursement or payment of the costs and expenses of the Noteholders incurred in connection with
this Amendment or the Agreement (including reasonable fees, charges and disbursements of King &
Spalding LLP, counsel to the Noteholders), (iii) the
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Company shall have entered into definitive stock purchase agreements for the issuance and sale
of shares of its common stock which upon consummation would result in proceeds to the Company, net
of placement agent fees, of more than $25,000,000 in the aggregate and shall have notified the
Noteholders in writing thereof and (iv) the Noteholders shall have received each of the following
documents, in form and substance satisfactory to the Noteholders:
(a) this Amendment and the Fee Letter, duly executed by the Company, the Guarantor and
the Noteholders;
(b) a copy of that certain First Amendment to Third Amended and Restated Credit
Agreement, dated as of the date hereof and in the form attached hereto as
Exhibit A
(the Bank Amendment), duly executed by the Bank of Oklahoma, N.A., the requisite lenders
under the Credit Agreement, the Guarantor and the Company.
Notwithstanding the foregoing, it is expressly understood and agreed that the modifications to the
Agreement set forth in Section 1 of this Amendment shall become effective upon, and only upon, (i)
the consummation of a Successful Stock Offering and (ii) the payment of all fees due and payable in
connection with the consummation of such Successful Stock Offering pursuant to the terms of the Fee
Letter.
3.
Post Closing Obligations
.
(a) The Company shall provide to the Noteholders copies of the stock purchase agreements
referred to in clause 2(iii) above promptly after execution thereof.
(b) Not later than 15 days after consummation of a Successful Stock Offering, the Company
shall pay to the Bank of Oklahoma, N.A. the sum of $2,000,000, for the pro-rata benefit of all
lenders under the Credit Agreement, in partial prepayment of and for application to the letter of
credit fees that would otherwise be due and payable during 2010 under Section 2.2.4 of the Credit
Agreement (it being understood that any remaining fees due under Section 2.2.4 of the Credit
Agreement for 2010 will be paid during the fourth quarter of 2010).
4.
Representations and Warranties
.
To induce the Noteholders to enter into this
Amendment, each of the Company and the Guarantor hereby represents and warrants that:
(a) It is, and on the date of consummation of a Successful Stock Offering will be, a
corporation duly organized and validly existing in good standing under the laws of the State of
Delaware, each of its Subsidiaries is, and on the date of consummation of a Successful Stock
Offering will be, duly organized and validly existing in good standing under the laws of the
jurisdiction in which it is organized, and each of the Company and its Subsidiaries has, and on the
date of consummation of a Successful Stock Offering will have, the power to own its respective
property and to carry on its respective business as now being conducted;
(b) The execution, delivery and performance by the Company and the Guarantor of this Amendment
and all other documents required under Section 2 above are, and on the date of
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consummation of a Successful Stock Offering will be, within the corporate powers of the Company and
the Guarantor and have been duly authorized by all necessary corporate action;
(c) Neither the execution nor delivery of this Amendment and all other documents required
under Section 2 above, nor fulfillment of nor compliance with the terms and provisions hereof will
conflict with, or result in a breach of the terms, conditions or provisions of, or constitute a
default under, or result in any violation of, or result in the creation of any Lien upon any of the
properties or assets of the Company or any of its Subsidiaries pursuant to, the charter or by-laws
of the Company or any of its Subsidiaries, any award of any arbitrator of any agreement (including
any agreement with stockholders), instrument, order, judgment, decree, statute, law, rule or
regulation to which the Company or any of its Subsidiaries is subject;
(d) Each of this Amendment and all other documents required under Section 2 above constitutes,
and on the date of consummation of a Successful Stock Offering will constitute, the valid and
binding obligation of the Company and its Subsidiaries party thereto, enforceable in accordance
with its terms;
(e) All representations and warranties set forth in paragraph 8 of the Agreement are true and
correct in all material respects and will be true and correct upon consummation of a Successful
Stock Offering, and no Default or Event of Default has occurred and is continuing nor will have
occurred or being continuing upon consummation of a Successful Stock Offering;
(f) After giving effect to the transactions contemplated herein and upon consummation of a
Successful Stock Offering, (a) the fair value of the property of each Credit Party is greater than
the total amount of liabilities, including contingent liabilities, of such Credit Party, (b) the
present fair salable value of the assets of each Credit Party is not less than the amount that will
be required to pay the probable liability of such Credit Party on its debts as they become absolute
and matured, (c) no Credit Party intends to, nor does not any Credit Party believe that it will,
incur debts or liabilities beyond Credit Partys ability to pay such debts and liabilities as they
mature, (d) such Credit Party is not engaged in business or a transaction, and is not about to
engage in business or a transaction, for which such Credit Partys property would constitute an
unreasonably small capital, and (e) each Credit Party is able to pay its debts and liabilities,
contingent obligations and other commitments as they mature in the ordinary course of business (the
amount of contingent liabilities at any time computed as the amount that, in the light of all the
facts and circumstances existing at such time, represents the amount that can reasonably be
expected to become an actual or matured liability).
5.
Reaffirmation and Acknowledgment
.
The Guarantor consents to the execution and
delivery by the Company of this Amendment and ratifies and confirms the terms of the Guaranty
Agreement with respect to the indebtedness now or hereafter outstanding under the Agreement as
amended hereby and all promissory notes issued thereunder. The Guarantor acknowledges that,
notwithstanding anything to the contrary contained herein or in any other document evidencing any
indebtedness of the Company to the holders of the Notes or any other obligation of the Company, or
any actions now or hereafter taken by the holders of the Notes with respect to any obligation of
the Company, the Guaranty Agreement (i) is and shall continue
to be a primary obligation of the Guarantor, (ii) is and shall continue to be an absolute,
8
unconditional, joint and several, continuing and irrevocable guaranty of payment, and (iii) is and
shall continue to be in full force and effect in accordance with its terms. Nothing contained
herein to the contrary shall release, discharge, modify, change or affect the original liability of
the Guarantor under the Guaranty Agreement.
6.
Effect of Amendment
. Except as set forth expressly herein, all terms of the
Agreement, as amended hereby, and the other Note Documents shall be and remain in full force and
effect and shall constitute the legal, valid, binding and enforceable obligations of the Company to
all holders of the Notes. The execution, delivery and effectiveness of this Amendment shall not,
except as expressly provided herein, operate as a waiver of any right, power or remedy of the
holders of the Notes under the Agreement, nor constitute a waiver of any provision of the
Agreement. From and after the date of the consummation of a Successful Stock Offering, all
references to the Agreement shall mean the Agreement as modified by this Amendment. This Amendment
shall constitute a Note Document for all purposes of the Agreement.
7.
Governing Law
.
This Amendment shall be governed by, and construed in accordance
with, the internal laws of the State of New York and all applicable federal laws of the United
States of America.
8.
No Novation
.
This Amendment is not intended by the parties to be, and shall not be
construed to be, a novation of the Agreement or an accord and satisfaction in regard thereto.
9.
Costs and Expenses
. The Company agrees to pay on demand all costs and expenses of
the Noteholders in connection with the preparation, execution and delivery of this Amendment,
including, without limitation, the reasonable fees and out-of-pocket expenses of outside counsel
for the Noteholders with respect thereto (whether or not a Successful Stock Offering is
consummated).
10.
Counterparts
.
This Amendment may be executed by one or more of the parties hereto
in any number of separate counterparts, each of which shall be deemed an original and all of which,
taken together, shall be deemed to constitute one and the same instrument. Delivery of an executed
counterpart of this Amendment by facsimile transmission or by electronic mail in pdf form shall be
as effective as delivery of a manually executed counterpart hereof.
11.
Binding Nature
.
This Amendment shall be binding upon and inure to the benefit of
the Company, the Guarantor, the holders of the Notes and their respective successors,
successors-in-titles, and assigns.
12.
Entire Understanding
.
This Amendment sets forth the entire understanding of the
parties with respect to the matters set forth herein, and shall supersede any prior negotiations or
agreements, whether written or oral, with respect thereto.
13.
Consent of the Noteholders
.
The Noteholders acknowledge and consent to the
execution, delivery and performance by the Company and the Guarantor of the Bank Amendment.
9
[
Signature Pages To Follow
]
10
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their
respective authorized officers as of the day and year first above written.
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COMPANY:
SAIA, INC.
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By:
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/s/ James A. Darby
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Name:
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James A. Darby
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Title:
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Vice President-Finance
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GUARANTOR:
SAIA MOTOR FREIGHT LINE, LLC
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By:
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/s/ James A. Darby
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Name:
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James A. Darby
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Title:
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Vice President-Finance
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NOTEHOLDERS:
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
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By:
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/s/ Robert Derrick
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Vice President
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PRUCO LIFE INSURANCE COMPANY
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By:
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/s/ Robert Derrick
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Vice President
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PRUDENTIAL INVESTMENT MANAGEMENT, INC.
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By:
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/s/ Robert Derrick
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Vice President
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RELIASTAR LIFE INSURANCE COMPANY
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Signature Page to First Amendment to Amended and Restated Master Shelf Agreement
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By:
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Prudential Private Placement Investors,
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L.P. (as Investment Advisor)
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By:
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Prudential Private Placement Investors, Inc.
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(as its General Partner)
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By:
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/s/ Robert Derrick
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Vice President
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SECURITY LIFE OF DENVER INSURANCE COMPANY
(formerly
Southland Life Insurance Company)
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By:
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Prudential Private Placement Investors,
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L.P. (as Investment Advisor)
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By:
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Prudential Private Placement Investors, Inc.
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(as its General Partner)
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By:
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/s/ Robert Derrick
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Vice President
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PRUCO LIFE INSURANCE COMPANY OF NEW JERSEY
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By:
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/s/ Robert Derrick
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Vice President
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PRUDENTIAL RETIREMENT INSURANCE AND ANNUITY COMPANY
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By:
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Prudential Investment Management, Inc.,
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as investment manager
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By:
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/s/ Robert Derrick
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Vice President
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UNITED OF OMAHA LIFE INSURANCE COMPANY
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Signature Page to First Amendment to Amended and Restated Master Shelf Agreement
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By:
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Prudential Private Placement Investors, L.P.
(as Investment Advisor)
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By:
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Prudential Private Placement Investors, Inc.
(as its General Partner)
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By:
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/s/ Robert Derrick
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Vice President
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UNIVERSAL PRUDENTIAL ARIZONA REINSURANCE COMPANY
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By:
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Prudential
Investment Management, Inc., as
investment manager
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By:
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/s/ Robert Derrick
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Vice President
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ZURICH AMERICAN INSURANCE COMPANY
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By:
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Prudential
Private Placement Investors, L.P.
(as Investment Advisor)
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By:
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Prudential Private Placement Investors, Inc.
(as its General Partner)
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By:
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/s/ Robert Derrick
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Vice President
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Signature Page to First Amendment to Amended and Restated Master Shelf Agreement