UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
 
 
FORM 8-K
 
 
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
March 1, 2018
Date of report (Date of earliest event reported)
 
 
ROADRUNNER TRANSPORTATION SYSTEMS, INC.
(Exact Name of Registrant as Specified in Charter)
 
 
 
 
 
 
DELAWARE
 
001-34734
 
20-2454942
(State or Other Jurisdiction
of Incorporation)
 
(Commission
File Number)
 
(IRS Employer
Identification No.)
 
 
 
 
 
1431 Opus Place, Suite 530 Downers Grove, Illinois
 
 
 
60515
(Address of Principal Executive Offices)
 
 
 
(Zip Code)
(414) 615-1500
(Registrant’s telephone number, including area code)
 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
o
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
o
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. o
 
 
 
 
 






Item 1.01.
Entry into a Material Definitive Agreement.

 
 
 
Investment Agreement
On March 1, 2018, Roadrunner Transportation Systems, Inc. (the “Company”) entered into an Investment Agreement (the “Investment Agreement”), by and among (i) the Company and (ii) Elliott Associates, L.P. and Brockdale Investments LP (collectively. the “Purchasers”), pursuant to which the Company agreed to issue and sell to the Purchasers, and the Purchasers agreed to purchase from the Company, on the terms and subject to the conditions set forth in the Investment Agreement, from time to time until July 30, 2018, an aggregate of up to 54,750 shares of a newly created class of preferred stock designated as Series E-1 Cumulative Redeemable Preferred Stock, par value $0.01 per share, of the Company (the “Series E-1 Preferred Stock”), at a purchase price of $1,000 per share for the first 17,500 shares of Series E-1 Preferred Stock, $960 per share for the next 18,228 shares of Series E-1 Preferred Stock, and $920 per share for the final 19,022 shares of Series E-1 Preferred Stock. On March 1, 2018, the parties held an initial closing pursuant to which the Company issued and sold to the Purchasers, and the Purchasers purchased from the Company, 17,500 shares of Series E-1 Preferred Stock for an aggregate purchase price of $17,500,000. The proceeds of the sale of such shares of Series E-1 Preferred Stock will be used to provide working capital to support the Company’s current operations and future growth.
The Company made certain customary representations and warranties in the Investment Agreement and agreed to certain covenants.
The assertions embodied in the representations and warranties contained in the Investment Agreement are made solely for the benefit of the parties and are qualified by information in a confidential disclosure letter provided by the Company to the Purchasers in connection with the signing of the Investment Agreement. The disclosure letter contains information that has been included in the Company’s prior public filings, as well as potential additional non-public information. The disclosure letter contains information that modifies, qualifies and creates exceptions to the representations and warranties set forth in the Investment Agreement. Moreover, certain representations and warranties in the Investment Agreement were made as of a specified date, may be subject to a contractual standard of materiality different from what might be viewed as material to stockholders, or were used for the purpose of allocating risk between the Company, on the one hand, and the Purchasers, on the other hand, rather than establishing matters as fact. Accordingly, the representations and warranties in the Investment Agreement should not be relied upon by any persons as indicative of the actual state of facts about the Company or the Purchasers at the time they were made or otherwise. In addition, the information concerning the subject matter of the representations and warranties may change after the date of the Investment Agreement, which subsequent information may or may not be fully reflected in the Company’s public disclosures.
The foregoing description of the Investment Agreement and the transactions contemplated thereby does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Investment Agreement, which is attached hereto as Exhibit 10.35.
Certain Terms of the Series E-1 Preferred Stock
In connection with the consummation of the transactions contemplated by the Investment Agreement, the Company filed a Certificate of Designations, Preferences and Rights of Series E-1 Cumulative Redeemable Preferred Stock (the “Series E-1 Certificate of Designations”) setting forth the terms, rights, obligations, and preferences of the Series E-1 Preferred Stock.
Rank . The Series E-1 Preferred Stock, with respect to payment of dividends, redemption payments, rights (including as to the distribution of assets) upon liquidation, dissolution or winding up of the affairs of the Company, or otherwise, ranks (i) senior and prior to the Company’s common stock, par value $0.01 per share (the “Common Stock”), and other junior securities, and (ii) on parity with the Series B Cumulative Redeemable Preferred Stock, par value $0.01 per share, of the Company (the “Series B Preferred Stock”), Series C Cumulative Redeemable Participating Preferred Stock, par value $0.01 per share, of the Company (the “Series C Preferred Stock”), Series D Cumulative Redeemable Participating Preferred Stock, par value $0.01 per share, of the Company (the “Series D Preferred Stock”), and Series E Cumulative Redeemable Preferred Stock, par value $0.01 per share, of the Company (the “Series E Preferred Stock”) (the Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, the Series E Preferred Stock and Series E-1 Preferred Stock are collectively referred to as the “Preferred Stock”).
Liquidation Value . Each share of Series E-1 Preferred Stock has an initial liquidation preference equal to $1,000 per share, plus accrued and unpaid dividends on such share (the “Series E-1 Liquidation Value”).




Dividends . Dividends are cumulative from May 2, 2017, which was the date of the Company’s original issuance of shares of Preferred Stock to the Purchasers (such date, the “Original Issuance Date”), as a percentage of the Series E-1 Liquidation Value as and when declared by the Company’s Board of Directors and accrue and compound if not paid in cash. Dividends accrue daily and compound quarterly, subject to any adjustments for Triggering Events (as defined in the Series E-1 Certificate of Designations). The annual dividend rate for the shares of Series E-1 Preferred Stock is equal to the sum of (i) Adjusted LIBOR (as defined in the Series E-1 Certificate of Designations), plus (ii) 5.25% per annum, plus (iii) an additional rate of 8.5%. The dividend rate increases by 3.0% per annum above the rates described in the preceding sentence upon and during any Triggering Events. Holders of shares of Series E-1 Preferred Stock are not entitled to participate in dividends or distributions of any nature paid on or in respect of the Common Stock.
Redemption at Maturity . On the sixth anniversary of the Original Issuance Date, the Company will have the obligation to redeem all outstanding shares of Series E-1 Preferred Stock for cash at the Series E-1 Liquidation Value.
Optional Redemption . The Company may redeem the shares of Series E-1 Preferred Stock at any time. The redemption of shares of Series E-1 Preferred Stock shall be at a purchase price per share, payable in cash, equal to (i) in the case of a an optional redemption effected on or after the 24 month anniversary of the Original Issuance Date, the Series E-1 Liquidation Value, (ii) in the case of an optional redemption effected on or after the 12 month anniversary of the Original Issuance Date and prior to the 24 month anniversary of the Original Issuance Date, 103.5% of the Series E-1 Liquidation Value and (iii) in the case of an optional redemption effected prior to the 12 month anniversary of the Original Issuance Closing Date, 106.5% of the Series E-1 Liquidation Value.
Change of Control . Upon the occurrence of a Change of Control (as defined in the Series E-1 Certificate of Designations), the holders of Series E-1 Preferred Stock may require redemption by the Company of the Series E-1 Preferred Stock at a purchase price per share, payable in cash, equal to either (i) 106.5% of the Series E-1 Liquidation Value if the Change of Control occurs prior to the 24 month anniversary of the Original Issuance Date, or (ii) the Series E-1 Liquidation Value if the Change of Control occurs after the 24 month anniversary of the Original Issuance Date.
Voting . The holders of Series E-1 Preferred Stock will generally not be entitled to vote on any matters submitted to a vote of the stockholders of the Company. So long as any shares of Series E-1 Preferred Stock are outstanding, the Company may not take certain actions without the prior approval of the holders of shares of Preferred Stock representing a majority of the aggregate liquidation value of all of the shares of Preferred Stock (the “Preferred Requisite Vote”), voting as a separate class, including, among other matters: (1) amending, altering, repealing or otherwise modifying any provision of the Company’s certificate of incorporation, certificate of designations or bylaws in a manner that would alter or change the terms or the powers, preferences, rights or privileges of the Series E-1 Preferred Stock; (2) declaring, paying or setting aside for payment any dividends or distributions upon any junior securities; (3) repurchasing, redeeming or otherwise acquiring any junior securities or parity securities (other than for certain ordinary course purposes) for any consideration or paying any moneys or making available for a sinking fund for the redemption of any shares of such junior securities or parity securities; (4) authorizing, creating, increasing the authorized amount of, or issuing any class or series of senior securities or parity securities, including any securities convertible into, or exchangeable or exercisable for, any senior securities or parity securities; (5) amending, restating, supplementing, modifying or replacing any debt agreement or other financing agreement which would restrict the minimum cash dividend payments contemplated by the certificates of designations for the Series E-1 Preferred Stock; or (6) subject to various exceptions, incurring any indebtedness.
The foregoing description of the terms of the Series E-1 Preferred Stock does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Series E-1 Certificate of Designations, which is attached hereto as Exhibit 3.8.
Stockholders’ Agreement
In connection with the issuance of the Series E-1 Preferred Stock pursuant to the Investment Agreement, the Company and the Purchasers entered into an Amendment No. 1 to Stockholders’ Agreement (the “Amendment”), pursuant to which the parties amended certain terms of the Stockholders’ Agreement, dated May 2, 2017, by and among the Company and the Purchasers, the full text of which is attached hereto as Exhibit 4.3(A).
Item 3.02.
Unregistered Sales of Equity Securities
 
 
 
The information contained in Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.




As described in Item 1.01, under the terms of the Investment Agreement, the Company issued and sold shares of Series E-1 Preferred Stock to the Purchasers. The issuance and sale of the shares of Series E-1 Preferred Stock by the Company to the Purchasers was made in reliance upon the exemption from securities registration afforded by Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”), and Rule 506 of Regulation D as promulgated by the Securities and Exchange Commission under the Securities Act. Each of the Purchasers represented to the Company that it is an “accredited investor” as defined in Rule 501 of the Securities Act and that the shares of Series E-1 Preferred Stock are being acquired for investment purposes and not with a view to or for sale in connection with any distribution thereof, and appropriate legends were affixed to any certificates evidencing the shares of Series E-1 Preferred Stock.
Item 3.03.
Material Modification to Rights of Security Holders
 
 
 
Upon issuance of the shares of Preferred Stock on the Original Issuance Date, the ability of the Company to declare or pay dividends on, make distributions with respect to, or redeem, repurchase or acquire, or make a liquidation payment on its Common Stock and on other preferred stock ranking junior to, or on a parity with, the Preferred Stock, became subject to certain restrictions. In addition, the Company may not take certain actions without the affirmative vote or written consent of holders representing the Preferred Requisite Vote. The information set forth in the Item 1.01 of this Current Report on Form 8-K hereof is incorporated herein by reference.
Item 5.02.
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
 
 
 
On March 7, 2018, the Company’s Executive Committee appointed Terence R. Rogers, the Company’s Executive Vice President and Chief Financial Officer, to also serve as the Company’s principal financial officer and principal accounting officer. Curtis W. Stoelting, the Company’s Chief Executive Officer, had previously occupied those positions in addition to his position as Chief Executive Officer. For information about Mr. Rogers, see Item 5.02 of the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on May 25, 2017, which is hereby incorporated by reference in Item 5.02 of this Current Report on Form 8-K.
Item 5.03.
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
 
 
 
The disclosure in Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.
Item 9.01.
Financial Statements and Exhibits.
 
 
 
 
(a)
Financial Statements of Business Acquired.
 
 
Not applicable.
 
(b)
Pro Forma Financial Information.
 
 
Not applicable.
 
(c)
Shell Company Transactions.
 
 
Not applicable.
 
(d)
Exhibits.
Exhibit
 
Number
 
 
 
 
3.8
Certificate of Designations, Preferences and Rights of Series E-1 Cumulative Redeemable Preferred Stock
4.3(A)
Amendment No. 1 to Stockholders' Agreement, dated March 1, 2018, between Roadrunner Transportation Systems, Inc., Elliott Associates, L.P., and Brockdale Investments LP.
10.35
Investment Agreement, dated March 1, 2018, between Roadrunner Transportation Systems, Inc., Elliott Associates, L.P., and Brockdale Investments LP.









SIGNATURES
 
 
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
 
 
 
 
 
 
 
 
 
 
ROADRUNNER TRANSPORTATION SYSTEMS, INC.
 
 
 
 
 
 
 
Date: March 8, 2018
 
 
 
By:
/s/ Curtis W. Stoelting
 
 
 
 
 
Curtis W. Stoelting
 
 
 
 
 
Chief Executive Officer





EXHIBIT INDEX
 
 
 
Exhibit
 
Number
Description
 
 
 
3.8
4.3(A)
10.35



PHX 332430251v5 CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS OF SERIES E-1 CUMULATIVE REDEEMABLE PREFERRED STOCK OF ROADRUNNER TRANSPORTATION SYSTEMS, INC. Pursuant to Section 151 of the General Corporation Law of the State of Delaware The undersigned, pursuant to the provisions of Section 151 of the General Corporation Law of the State of Delaware (the “DGCL”), does hereby certify that, pursuant to the authority expressly vested in the Board of Directors of Roadrunner Transportation Systems, Inc., a Delaware corporation (the “Corporation”), by the Certificate of Incorporation, the Board of Directors has by resolution duly provided for the issuance of and created a series of preferred stock of the Corporation, par value $0.01 per share (the “Preferred Stock”), and in order to fix the designation and amount and the voting powers, preferences and relative, optional and other special rights, and the qualifications, limitations and restrictions, of such series of Preferred Stock, has duly adopted resolutions setting forth such rights, powers and preferences, and the qualifications, limitations and restrictions thereof, of such series of Preferred Stock as set forth in this Certificate of Designations, Preferences and Rights of Series E-1 Cumulative Redeemable Preferred Stock (this “Certificate”). Section 1. Number of Shares and Designation. 54,750 shares of Preferred Stock of the Corporation shall constitute a series of Preferred Stock designated as Series E-1 Cumulative Redeemable Preferred Stock (the “Series E-1 Preferred Stock”). Subject to and in accordance with the provisions of Section 9(b), the number of shares of Series E-1 Preferred Stock may be increased (to the extent of the Corporation’s authorized and unissued Preferred Stock) or decreased (but not below the number of shares of Series E-1 Preferred Stock then outstanding) by further resolution duly adopted by the Board of Directors and the filing of a certificate of increase or decrease, as the case may be, with the Secretary of State of the State of Delaware. Section 2. Rank. Each share of Series E-1 Preferred Stock shall rank equally in all respects and shall be subject to the provisions herein. The Series E-1 Preferred Stock shall, with respect to payment of dividends, redemption payments, rights (including as to the distribution of assets) upon liquidation, dissolution or winding up of the affairs of the Corporation, or otherwise, (i) rank senior and prior to the Corporation’s common stock, par value $0.01 per share (the “Common Stock”), and each other class or series of equity securities of the Corporation, whether currently issued or issued in the future, that by its terms does not expressly rank senior to, or on parity with, the Series E-1 Preferred Stock as to payment of dividends, redemption payments, rights (including as to the distribution of assets) upon liquidation, dissolution or winding up of the affairs of the Corporation, or otherwise (all of such equity securities, including the Common Stock, are collectively referred to herein as the “Junior Securities”), (ii) rank junior to each class or series of equity securities of the Corporation, whether currently issued or issued in the future, in each case without violation of this Certificate, that by its terms expressly ranks senior to the Series E-1 Preferred Stock as to payment of dividends, redemption payments, rights (including as to the distribution of assets) upon liquidation, dissolution or winding up of the affairs of the

 
2 PHX 332430251v5 Corporation, or otherwise (all of such equity securities are collectively referred to herein as the “Senior Securities”), and (iii) rank on parity with (v) the Series B Preferred Stock, (w) the Series C Preferred Stock, (x) the Series D Preferred Stock, (y) the Series E Preferred Stock and (z) each other class or series of equity securities of the Corporation, whether currently issued or issued in the future, in each case without violation of this Certificate, that expressly provides that it ranks on parity with the Series E-1 Preferred Stock as to payment of dividends, redemption payments, rights (including as to the distribution of assets) upon liquidation, dissolution or winding up of the affairs of the Corporation, or otherwise (all of such equity securities are collectively referred to herein as the “Parity Securities”). The respective definitions of Junior Securities, Senior Securities and Parity Securities shall also include any securities, rights or options exercisable or exchangeable for or convertible into any of the Junior Securities, Senior Securities or Parity Securities, as the case may be. Section 3. Definitions. (a) As used herein, the following terms shall have the meanings set forth below or in the section cross-referenced below, as applicable, whether used in the singular or the plural: “Accrued Dividends” means, as of any date, with respect to any share of Series E- 1 Preferred Stock, all dividends that have accrued pursuant to Section 4(a)(i) but that have not been paid as of such date. “Additional Dividend Rate” means 8.50% per annum. “Adjusted LIBOR Rate” means, with respect to each day during any applicable period, a rate per annum equal to the higher of (i) the London Interbank Offered Rate for deposits in Dollars for a duration equal to or comparable to one month which appears on the relevant Reuters Monitor Money Rates Service page for Dollars (being currently the page designated as “LIBO”) (or if such relevant page is not available, such other commercially available source providing quotations of the London Interbank Offered Rates for deposits in Dollars as may be reasonably designated by the Holders from time to time) at or about 11:00 A.M. (London time) two (2) Business Days before the first day of such period and (ii) 1.00%. “Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by or under common control with such Person. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), when used with respect to any Person, means the possession, directly or indirectly, of the power to cause the direction of management or policies of such Person, whether through the ownership of voting securities, by contract or otherwise. “Average Daily Revolver Utilization” means, as of the date of determination, the sum of the average daily aggregate principal amount of outstanding revolving loans, swing line loans, the undrawn face amount of issued and outstanding letters of credit and drawings under letters of credit that have not been reimbursed, in each case, for the fiscal quarter ending immediately prior to the date of determination.

 
3 PHX 332430251v5 “Base Amount Accrued Dividends” means, with respect to any share of Series E- 1 Preferred Stock, as of any date, (i) if a Preferred Dividend Payment Date has occurred since the issuance of such share, the Accrued Dividends with respect to such share as of the preceding Preferred Dividend Payment Date (taking into account the payment of Preferred Dividends in respect of such period ending on such preceding Preferred Dividend Payment Date, if any, as of such Preferred Dividend Payment Date) or, (ii) if no Preferred Dividend Payment Date has occurred since the issuance of such share, zero. “Beneficially Own” and “Beneficial Ownership” has the meaning given such term in Rule 13d-3 promulgated under the Exchange Act, and a Person’s beneficial ownership of Capital Stock of any Person shall be calculated in accordance with the provisions of such rule, but without taking into account any contractual restrictions or limitations on voting or other rights; provided, however, that for purposes of determining beneficial ownership, a Person shall be deemed to be the beneficial owner of any security which may be acquired by such Person, whether within sixty (60) days or thereafter, upon the conversion, exchange or exercise of any warrants, options, rights or other securities. “Board of Directors” means the board of directors of the Corporation or any committee thereof duly authorized to act on behalf of such board of directors for the purposes in question. “Business Day” means any day that is not a Saturday, a Sunday or other day on which banks are required or authorized by Law to be closed in New York City. “Bylaws” means the Second Amended and Restated Bylaws of the Corporation, as amended from time to time. “Capital Stock” of any Person means any and all shares, interests (including partnership interests), rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) equity of such Person, including any preferred stock, but excluding any debt securities convertible into such equity. “Capitalized Lease Obligation” means an obligation that is required to be classified as, and expenses in respect of which are recognized as for, a capitalized lease for income statement reporting purposes in accordance with GAAP. “Certificate” has the meaning set forth in the preamble. “Certificate of Incorporation” means the Amended and Restated Certificate of Incorporation of the Corporation, as amended from time to time. “Change of Control” means the occurrence, directly or indirectly, of any of the following: (i) any merger, sale, share exchange, consolidation, reorganization or other transaction or series of related transactions involving the Corporation after which holders of Common Stock immediately prior to such transaction do not own at least fifty percent (50%) of the combined voting power of the Voting Stock of the surviving entity;

 
4 PHX 332430251v5 (ii) any acquisition by any Person or Group (other than the Corporation or its Subsidiaries or any of the Investors and/or their Affiliates) of Beneficial Ownership of at least thirty-five percent (35%) of the combined voting power of the Voting Stock of the Corporation (or any successor or parent entity thereof) immediately following such acquisition; (iii) any sale, lease or other disposition of all or substantially all of the assets of the Corporation and its Subsidiaries, taken as a whole; or (iv) if, during any one (1) year period, individuals who, at the beginning of such period, were members of the Board of Directors (together with new members of the Board of Directors whose election or nomination was approved by such individuals or by any of the Investors and/or their Affiliates) cease for any reason (other than by actions taken by any of the Investors and/or their Affiliates) to constitute a majority of the Board of Directors then in office. “Change of Control Effective Date” has the meaning set forth in Section 8(a). “Change of Control Sale” has the meaning set forth in Section 8(a). “Common Stock” has the meaning set forth in Section 2. “Consolidated Indebtedness” means, at any time, the Indebtedness of the Corporation and its Subsidiaries calculated on a consolidated basis as of such time. “Consolidated Net Income” means, with respect to the Corporation and its Subsidiaries for any period, the aggregate of all amounts that, in accordance with GAAP, would be included as net income (or net loss) of the Corporation and its Subsidiaries for such period, excluding any gains and/or losses from dispositions of any assets allowed hereunder, any extraordinary gains, any extraordinary losses and any gains and/or losses from discontinued operations. “Contingent Obligations” of a Person means any agreement, undertaking or arrangement by which such Person assumes, guarantees, endorses, contingently agrees to purchase or provide funds for the payment of or otherwise becomes or is contingently liable upon the obligation or liability of any other Person, agrees to maintain the net worth, working capital or other financial condition of any other Person or otherwise assures any creditor of such other Person against loss, including, without limitation, any comfort letter, operating agreement, take-or-pay contract or the obligations of any such Person as general partner of a partnership with respect to the liabilities of the partnership. “Corporation” has the meaning set forth in the preamble. “Debt Document” means any credit agreement, indenture, guarantee, security agreement, mortgage, deed of trust, letter of credit, reimbursement agreement, waiver, amendment or other contract, agreement, instrument or document relating to Indebtedness of the Corporation or its Subsidiaries.

 
5 PHX 332430251v5 “DGCL” has the meaning set forth in the preamble. “Dividend Payment Record Date” has the meaning set forth in Section 4(a)(ii). “Dividend Rate” means as of any given time the Minimum Dividend Rate as of such time, plus the Additional Dividend Rate as of such time, as increased (if applicable) pursuant to Section 4(b). “EBITDA” means, for any period, Consolidated Net Income for such period plus, without duplication and to the extent deducted in determining such Consolidated Net Income for such period, (A) the sum of (a) income tax expense, (b) interest expense, amortization or write- off of debt issuance costs and commissions, discounts and other fees and charges associated with Indebtedness (including the New ABL Facility and any Indebtedness held by any of the Investors and/or their Affiliates), (c) depreciation and amortization expense, (d) non-cash charges, losses, expenses, accruals and provisions (including but not limited to stock-based compensation and any such non-cash items resulting from the sale of assets not in the ordinary course of business); provided that (x) any such non-cash charge, loss, expense, accrual and provision shall be excluded to the extent that it represents an accrual or reserve for cash expenses in any future period and (y) with respect to any stock-based compensation, any such compensation in respect of which stock is made available by means of stock buybacks by the Corporation or any of its Subsidiaries shall be excluded, (e) amortization of intangibles (including, but not limited to, impairment of goodwill or intangibles), (f) any non-recurring expenses or losses; provided that (x) unless the Preferred Requisite Vote is obtained, the amount of any such non-recurring expense or loss in any four (4) fiscal quarter period shall not exceed $1.0 million for any such expense or loss and $5.0 million in the aggregate for all such expenses and losses and (y) the Corporation must deliver to the Investor a certificate of an officer setting forth information and calculations supporting in reasonable detail the non-recurring nature of such expenses and losses, (g) any fees and expenses incurred during such period in connection with any investment, Permitted Divestiture, issuance of Indebtedness or Capital Stock, or amendment or modification of any debt instrument, in each case, to the extent not prohibited by this Certificate, including (x) any such transactions undertaken but not completed and any transactions consummated prior to the Issuance Date and (y) any financial advisory fees, accounting fees, legal fees and other similar advisory and consulting fees, in each case, paid in cash during such period (collectively, “Advisory Fees”), (h) any fees and expenses incurred in connection with the transactions contemplated by the Investment Agreement, including Advisory Fees, and (i) the amount of “run-rate” cost savings, operating expense reductions, operating improvements and synergies that are reasonably identifiable, factually supportable and projected by the Corporation in good faith to be realized as a result of cost savings initiatives (calculated on a pro forma basis as though such cost savings, operating expense reductions, operating improvements and synergies had been realized on the first day of the relevant period), net of the amount of actual benefits realized in respect thereof; provided that (x) actions in respect of such cost-savings, operating expense reductions, operating improvements and synergies have been taken and such cost savings, operating expense reductions and synergies are expected to be realized within 12 months of the Issuance Date, (y) no cost savings, operating expense reductions, operating improvements or synergies shall be added pursuant to this clause (i) to the extent duplicative of any expenses or charges otherwise added to (or excluded from) EBITDA, whether through a pro forma adjustment or otherwise, for such period, and (z) the Corporation must deliver to the

 
6 PHX 332430251v5 Investor (i) a certificate of an officer setting forth such estimated cost-savings, operating expense reductions, operating improvements and synergies and (ii) information and calculations supporting in reasonable detail such estimated cost savings, operating expense reductions, operating improvements and synergies, and (B) minus, (a) to the extent included in determining such Consolidated Net Income for such period, the sum of (x) any non-recurring income or gains, and (y) any other non-cash income or gains (other than normal accruals in the ordinary course of business for non-cash income or gain that represents an accrual for cash income or gain in a future period) and (b) any cash payments made during such period in respect of items described in clause (d) above subsequent to the fiscal quarter in which the relevant non-cash expenses or losses were reflected as a charge in the statement of Consolidated Net Income, all as determined on a consolidated basis. For the purposes of calculating EBITDA for any period pursuant to any determination of Total Net Senior Secured Leverage, (i) if at any time during the relevant period the Corporation shall have made any Material Disposition, the EBITDA for such period shall be reduced by an amount equal to the EBITDA (if positive) attributable to the property that is the subject of such Material Disposition for such period or increased by an amount equal to the EBITDA (if negative) attributable thereto for such period as if such Material Disposition occurred on the first day of such period, and (ii) if during the relevant period the Corporation shall have made a Material Acquisition, EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Material Acquisition occurred on the first day of such period. Notwithstanding the foregoing, but subject to the immediately preceding sentence, EBITDA shall be deemed to be (w) $22,700,000 for the fiscal quarter ended March 31, 2016, (x) $20,200,000 for the fiscal quarter ended June 30, 2016, (y) $23,700,000 for the fiscal quarter ended September 30, 2016, and (z) $16,400,000 for the fiscal quarter ended December 31, 2016. “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, as the same may be amended from time to time. “First Lien Notes” has the meaning set forth in the Stockholders’ Agreement. “GAAP” has the meaning set forth in the Stockholders’ Agreement. For purposes of this Certificate, unless the context otherwise clearly requires, all accounting terms not expressly defined herein shall be construed, and all financial computations required under this Certificate shall be made, in accordance with GAAP, consistently applied. “Governmental Entity” means any transnational, multinational, domestic or foreign federal, state, provincial or local governmental, regulatory or administrative authority, instrumentality, department, court, arbitrator, agency, commission or official, including any political subdivision thereof, any state-owned or state-controlled enterprise, or any non- governmental self-regulatory agency, commission or authority. “Group” means any “group” as such term is used in Section 13(d)(3) of the Exchange Act. “Holder” means, at any time, any Person in whose name shares of Series E-1 Preferred Stock are registered, which may be treated by the Corporation as the absolute owner of such shares of Series E-1 Preferred Stock for the purpose of making payment and for all other purposes.

 
7 PHX 332430251v5 “Indebtedness” has the meaning set forth in the Investment Agreement. “Interest Rate Contract” means, with respect to any Person, any interest rate protection agreement, future agreement, option agreement, swap agreement, cap agreement, collar agreement, hedge agreement or other similar interest rate agreement or arrangement, as to which such Person is a party or a beneficiary. “Investment Agreement” means the Investment Agreement, dated as of May 1, 2017, by and among the Corporation, Elliott Associates, L.P. and Brockdale Investments LP, as amended from time to time. “Investor” means, collectively, investment vehicles affiliated with or managed by Elliott Management Corporation. “Issuance Date” means, with respect to a share of Series E-1 Preferred Stock, May 2, 2017. “Junior Securities” has the meaning set forth in Section 2. “Law” means any statute, law, ordinance, treaty, rule, code, regulation or other binding directive issued, promulgated or enforced by any Governmental Entity. “Lien” means any lien (statutory or other), mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, priority or other security agreement or similar arrangement of any kind or nature whatsoever (including, without limitation, the interest of a vendor or lessor under any conditional sale, Capitalized Lease Obligation or other title retention agreement). “Liquidation” means the voluntary or involuntary liquidation, dissolution or winding up of the Corporation. “Liquidation Preference” means, with respect to each share of Series E-1 Preferred Stock, $1,000 per share. “Liquidation Value” means, with respect to a share of Series E-1 Preferred Stock as of a date of determination, the sum of (i) the Liquidation Preference, plus (ii) the Accrued Dividends with respect to such share as of such date. “Material Acquisition” means any acquisition of property or assets or series of related acquisitions of property or assets that (a) either (i) constitutes any company, any business or any group of assets constituting an operating unit of a business or (ii) constitutes a majority of the voting stock of a Person that following such acquisition or series of related acquisitions becomes a Subsidiary and (b) involves the payment of consideration by the Corporation in excess of $15,000,000. “Material Disposition” means any sale, transfer or other disposition of property or assets or series of related dispositions of property or assets that involves gross proceeds to the Corporation in excess of $15,000,000.

 
8 PHX 332430251v5 “Maturity Date” has the meaning set forth in Section 6(a). “Minimum Dividend Rate” means as of any given time, the Adjusted LIBOR Rate at such time plus 5.25% per annum. “New ABL Facility” means the “New ABL Facility”, as such term is defined in the Investment Agreement, as such facility may be amended, restated, supplemented, modified or replaced from time to time, so long as such amendment, restatement, supplement, modification or replacement would not (i) result in the principal amount of Indebtedness at any time outstanding thereunder being greater than the sum of (x) the principal amount of the outstanding loans under the New ABL Facility (as in effect if and when first entered into in accordance with the Investment Agreement) to the extent the proceeds thereof were used for the Refinancing (as defined in the Investment Agreement) and the payment of the amounts referred to in clause (y) of the definition of New ABL Facility in the Investment Agreement, plus (y) $40,000,000, (ii) include provisions relating to the ability of the Corporation or its Subsidiaries to pay dividends at the Minimum Dividend Rate(s) in accordance with this Certificate or any amounts due pursuant to Section 6 or Section 8 that are more restrictive than those set forth in the New ABL Facility as in effect if and when first entered into in accordance with the Investment Agreement, or (iii) otherwise reasonably be expected to be materially adverse to the interests of the Preferred Holders. “Operating Lease” of a Person means any lease of property (other than a Capitalized Lease Obligation) by such Person as lessee that has an original term (including any required renewals and any renewals effective at the option of the lessor) of one year or more. “Optional Redemption” has the meaning set forth in Section 6(b). “Original Issuance Date” means the date of closing pursuant to the Investment Agreement. “Parity Securities” has the meaning set forth in Section 2. “Payment Period” means, with respect to a share of Series E-1 Preferred Stock, the period beginning on the day after the preceding Preferred Dividend Payment Date (or the Issuance Date if no Preferred Dividend Payment Date has occurred since the issuance of such share) to and including the next Preferred Dividend Payment Date. “Permitted Divestiture” has the meaning set forth in the Stockholders’ Agreement. “Person” has the meaning given to it in Section 3(a)(9) of the Exchange Act and as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act. “Preferred Aggregate Liquidation Value” means, as of any date of determination, the sum of (i) the aggregate Liquidation Value of the Series E-1 Preferred Stock, plus (ii) the aggregate Series B Liquidation Value, plus (iii) the aggregate Series C Liquidation Value, plus (iv) the aggregate Series D Liquidation Value, plus (v) the aggregate Series E Liquidation Value.

 
9 PHX 332430251v5 “Preferred Dividend Payment Date” means April 15, July 15, October 15 and January 15 of each year (each, a “Quarterly Date”), commencing on the second (2nd) Quarterly Date immediately following the Issuance Date; provided that if any such Quarterly Date is not a Business Day, then the “Preferred Dividend Payment Date” shall be the next Business Day immediately following such Quarterly Date. “Preferred Dividends” has the meaning set forth in Section 4(a)(i). “Preferred Holders” means, collectively, the Holders of the Series E-1 Preferred Stock, the Series B Preferred Holders, the Series C Preferred Holders, the Series D Preferred Holders and the Series E Preferred Holders. “Preferred Requisite Vote” means the affirmative vote or written consent of Preferred Holders that hold issued and outstanding shares of Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and/or Series E-1 Preferred Stock, voting separately as a single class without regard to class or series, representing a majority of the Preferred Aggregate Liquidation Value. “Preferred Stock” has the meaning set forth in the preamble. “Preferred Stock Director” has the meaning set forth in Section 9(c)(i). “Redemption” has the meaning set forth in Section 6(b). “Redemption Agent” means a bank or trust company in good standing, organized under the Laws of the United States of America or any jurisdiction thereof that has a combined capital and surplus of at least $500 million (or if such bank or trust company is a member of a bank holding company system, its bank holding company shall have a combined capital and surplus of at least $500 million), provided that if such bank or trust company publishes reports of condition at least annually, pursuant to Law or to the requirements of any supervising or examining authority, then for the purposes of this definition, the combined capital and surplus of such bank or trust company shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. “Redemption at Maturity” has the meaning set forth in Section 6(a). “Redemption Date” has the meaning set forth in Section 6(d). “Redemption Notice” has the meaning set forth in Section 6(d). “Redemption Price” has the meaning set forth in Section 6(c). “Register” means the securities register maintained in respect of the Series E-1 Preferred Stock by the Corporation, or to the extent the Corporation has engaged a transfer agent, such transfer agent. “Reorganization Event” means any of the following transactions:

 
10 PHX 332430251v5 (i) any reorganization, consolidation, merger, share exchange, tender or exchange offer or other business combination or similar transaction involving the Corporation with any Person; (ii) any reclassification, recapitalization or reorganization of the Common Stock into securities other than the Common Stock; or (iii) any direct or indirect sale, assignment, conveyance, transfer, lease or other disposition (including, without limitation, in connection with any Liquidation) by the Corporation of all or substantially all of its assets, business or rights. “Secured Notes” has the meaning set forth in the Stockholders’ Agreement. “Senior Securities” has the meaning set forth in Section 2. “Series B Certificate of Designations” means the Corporation’s Certificate of Designations, Preferences and Rights of Series B Cumulative Redeemable Preferred Stock. “Series B Liquidation Value” means the “Liquidation Value”, as such term is defined in the Series B Certificate of Designations. “Series B Preferred Holder” means a “Holder” of Series B Preferred Stock, as such term is defined in the Series B Certificate of Designations. “Series B Preferred Stock” means the Corporation’s series of Preferred Stock designated as Series B Cumulative Redeemable Preferred Stock. “Series C Certificate of Designations” means the Corporation’s Certificate of Designations, Preferences and Rights of Series C Cumulative Redeemable Participating Preferred Stock. “Series C Liquidation Value” means the “Liquidation Value”, as such term is defined in the Series C Certificate of Designations. “Series C Preferred Holder” means a “Holder” of Series C Preferred Stock, as such term is defined in the Series C Certificate of Designations. “Series C Preferred Stock” means the Corporation’s series of Preferred Stock designated as Series C Cumulative Redeemable Participating Preferred Stock. “Series D Certificate of Designations” means the Corporation’s Certificate of Designations, Preferences and Rights of Series D Cumulative Redeemable Participating Preferred Stock. “Series D Liquidation Value” means the “Liquidation Value”, as such term is defined in the Series D Certificate of Designations.

 
11 PHX 332430251v5 “Series D Preferred Holder” means a “Holder” of Series D Preferred Stock, as such term is defined in the Series D Certificate of Designations. “Series D Preferred Stock” means the Corporation’s series of Preferred Stock designated as Series D Cumulative Redeemable Participating Preferred Stock. “Series E-1 Preferred Stock” has the meaning set forth in Section 1. “Series E Certificate of Designations” means the Corporation’s Certificate of Designations, Preferences and Rights of Series E Cumulative Redeemable Preferred Stock. “Series E Liquidation Value” means the “Liquidation Value”, as such term is defined in the Series E Certificate of Designations. “Series E Preferred Holder” means a “Holder” of Series E Preferred Stock, as such term is defined in the Series E Certificate of Designations. “Series E Preferred Stock” means the Corporation’s series of Preferred Stock designated as Series E Cumulative Redeemable Preferred Stock. “Stockholders’ Agreement” means the Stockholders’ Agreement, dated as of May 2, 2017, by and among the Corporation, Elliott Associates, L.P. and Brockdale Investments LP, as amended from time to time. “Subsidiary” means, with respect to any Person, any corporation, partnership, joint venture, limited liability company or other entity (i) of which such Person or a subsidiary of such Person is a general partner or (ii) of which a majority of the voting securities or other voting interests, or a majority of the securities or other interests which have by their terms ordinary voting power to elect a majority of the board of directors or Persons performing similar functions with respect to such entity, is directly or indirectly owned by such Person and/or one or more subsidiaries thereof. “Total Funded Debt” means, as of any date of determination, without duplication, the sum of (i) outstanding borrowings under the New ABL Facility, plus (ii) the undrawn face amount of issued and outstanding letters of credit and drawings under letters of credit that have not been reimbursed, plus (iii) the aggregate outstanding principal balance of all other interest bearing Consolidated Indebtedness including Capitalized Lease Obligations (including any Secured Notes), plus (iv) Contingent Obligations covering any of the Indebtedness listed in clause (i), (ii) or (iii) of this definition (without duplication). For purposes of this definition, the amount of revolving loans, swing line loans, the undrawn face amount of issued and outstanding letters of credit and drawings under letters of credit that have not been reimbursed as of any date of determination shall be the Average Daily Revolver Utilization as of such date. “Total Net Senior Secured Debt” means, as of any date of determination, (i) an amount equal to the Total Funded Debt as of such date that, in each case, is then secured by Liens on property or assets of the Corporation and its Subsidiaries (other than Indebtedness secured by a Lien ranking junior to or subordinated to the Liens securing the New ABL Facility pursuant to a written agreement), minus (ii) the aggregate amount of cash and cash equivalents

 
12 PHX 332430251v5 that would be listed on the consolidated balance sheet of the Corporation prepared in accordance with GAAP as of such date to the extent such cash is not classified as “restricted” for financial statement purposes. For purposes of this definition, the amount of revolving loans, swing line loans, the undrawn face amount of issued and outstanding letters of credit and drawings under letters of credit that have not been reimbursed as of any date of determination shall be the Average Daily Revolver Utilization as of such date. “Total Net Senior Secured Leverage” means, as of any date, the ratio of (i) Total Net Senior Secured Debt as of such date to (ii) EBITDA for the four (4) fiscal quarters ended on such date. “Triggering Event” means (i) the Corporation’s failure for any reason to pay Preferred Dividends at the Minimum Dividend Rate(s) in cash with respect to four (4) consecutive Payment Periods (commencing with the Payment Period ended January 15, 2018) if, as of the last day of the fiscal quarter immediately preceding the commencement of each of such four (4) Payment Periods, the Total Net Senior Secured Leverage is less than 2.0:1.0, (ii) the Corporation’s failure for any reason to redeem or repurchase shares of Series E-1 Preferred Stock in compliance with Section 6 or Section 8, (iii) the Corporation’s failure for any reason to comply with any restrictions set forth in this Certificate relating to dividends or distributions upon any Junior Securities, (iv) the Corporation taking any action described in Section 9(b) without the prior Preferred Requisite Vote, (v) the Corporation’s failure to maintain the listing of the Common Stock on the New York Stock Exchange (or its successor) or another U.S. national securities exchange or automated inter-dealer quotation system (or its successor), provided that in the case of this clause (v), any such failure shall not be deemed a Triggering Event unless it continues for a period of one year from the date of delisting or (vi) the Corporation’s breach of its obligations under Section 2.7(c) of the Stockholders’ Agreement. “Triggering Event Director” has the meaning set forth in Section 9(c)(ii). “Triggering Event Vacancies” has the meaning set forth in Section 9(c)(ii). “Voting Stock” means, with respect to any Person, Capital Stock of the class or classes pursuant to which the holders thereof have the general voting power under ordinary circumstances (determined without regard to any classification of directors) to elect one or more members of the board of directors (or similar governing body) of such Person (without regard to whether or not, at the relevant time, Capital Stock of any other class or classes (other than common equity) shall have or might have voting power by reason of the happening of any contingency). (b) In addition to the above definitions, unless the context requires otherwise: (i) any reference to any statute, regulation, rule or form as of any time shall mean such statute, regulation, rule or form as amended or modified and shall also include any successor statute, regulation, rule or form from time to time; (ii) the words “including”, “includes”, “included” and “include” are deemed to be followed by the words “without limitation”;

 
13 PHX 332430251v5 (iii) references to “$” or “Dollars” means the lawful coin or currency of the United States of America; and (iv) references to “Section” are references to Sections of this Certificate. Section 4. Dividends. (a) The Holders of the issued and outstanding shares of Series E-1 Preferred Stock shall be entitled to receive, out of assets legally available for the payment of dividends, dividends on the terms described below: (i) The Corporation shall pay, if, as and when declared by the Board of Directors, out of funds legally available therefor, on each Preferred Dividend Payment Date, dividends in cash on each outstanding share of Series E-1 Preferred Stock (the “Preferred Dividends”) at a rate per annum equal to the Dividend Rate (as it may adjust between Payment Periods within such annual period) as further specified below. Preferred Dividends on each share of Series E-1 Preferred Stock shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends, shall compound quarterly on each Preferred Dividend Payment Date (to the extent not paid on such Preferred Dividend Payment Date) and shall be payable quarterly in arrears, if, as and when so authorized and declared by the Board of Directors, on each Preferred Dividend Payment Date, commencing on the first Preferred Dividend Payment Date following the Issuance Date of such share. The amount of Preferred Dividends payable with respect to any share of Series E-1 Preferred Stock for any Payment Period shall equal the sum of the Preferred Dividends accrued in accordance with the prior sentence of this Section 4(a)(i) with respect to such share during such Payment Period. Preferred Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $.005 being rounded upward). (ii) Each Preferred Dividend shall be paid pro rata to the Holders of shares of Series E-1 Preferred Stock entitled thereto. Each Preferred Dividend shall be payable to the Holders of Series E-1 Preferred Stock as they appear on the Register at the close of business on the record date designated by the Board of Directors for such dividends (each such date, a “Dividend Payment Record Date”), which shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Preferred Dividend Payment Date. Notwithstanding the foregoing, the Base Amount Accrued Dividends may be declared and paid in cash at any time to Holders of record on the Dividend Payment Record Date therefor. (b) Upon the occurrence of a Triggering Event, the Dividend Rate shall increase by 3.00% from and including the date on which the Triggering Event shall occur and be continuing through but excluding the date on which all then occurring Triggering Events are no longer continuing. The Dividend Rate shall not be increased further pursuant to this Section 4(b) for a subsequent Triggering Event occurring while the Dividend Rate is already increased pursuant to this Section 4(b).

 
14 PHX 332430251v5 (c) Holders of shares of Series E-1 Preferred Stock shall not be entitled to participate in dividends or distributions of any nature paid on or in respect of the Common Stock. Section 5. Liquidation Rights. (a) In the event of any Liquidation, each Holder shall be entitled to receive liquidating distributions out of the assets of the Corporation legally available for distribution to its stockholders, before any payment or distribution of any assets of the Corporation shall be made or set apart for holders of any Junior Securities, including, without limitation, the Common Stock, for such Holder’s shares of Series E-1 Preferred Stock in an amount equal to the aggregate Liquidation Value of such shares as of the date of the Liquidation. (b) In the event the assets of the Corporation available for distribution to stockholders upon a Liquidation shall be insufficient to pay in full the amounts payable with respect to all outstanding shares of Series E-1 Preferred Stock pursuant to Section 5(a), such assets, or the proceeds thereof, shall be distributed among the Holders ratably in proportion to the full respective liquidating distributions to which they would otherwise be respectively entitled upon such Liquidation. (c) A Change of Control (other than in connection with the liquidation, dissolution or winding up of its business) shall not by itself be deemed to be a Liquidation for purposes of this Section 5. Section 6. Redemption. (a) Upon the sixth (6th) anniversary of the Original Issuance Date (the “Maturity Date”), the Corporation shall redeem all of the issued and outstanding shares of Series E-1 Preferred Stock (the “Redemption at Maturity”). (b) At any time following the Original Issuance Date, the Corporation shall have the right, at any time or from time to time, to redeem all or any portion of the issued and outstanding shares of Series E-1 Preferred Stock, exercisable by delivery of a Redemption Notice pursuant to Section 6(d) (a “Optional Redemption”, and any Redemption at Maturity or Optional Redemption, a “Redemption”), provided that the Corporation shall not have the right to redeem less than all of the issued and outstanding shares of Series E-1 Preferred Stock in any Optional Redemption unless the aggregate Redemption Price (as defined below) payable in such Optional Redemption exceeds $5,000,000. (c) Any Optional Redemption shall be subject to the terms, conditions and provisions of the Debt Documents then in effect. Any Redemption shall be at a purchase price per share, payable in cash, equal to (i) in the case of a Redemption at Maturity or an Optional Redemption effected on or after the twenty-four (24) month anniversary of the Original Issuance Date, the Liquidation Value, (ii) in the case of an Optional Redemption effected on or after the twelve (12) month anniversary of the Original Issuance Date and prior to the twenty-four (24) month anniversary of the Original Issuance Date, one hundred and three and one-half percent (103.5%) of the Liquidation Value and (iii) in the case of an Optional Redemption effected prior to the twelve (12) month anniversary of the Original Issuance Date, one hundred and six and one-half percent (106.5%) of the Liquidation Value (the “Redemption Price”).

 
15 PHX 332430251v5 (d) The Corporation shall deliver notice of any Redemption (the “Redemption Notice”), by first-class mail, postage prepaid, addressed to the Holders of the Series E-1 Preferred Stock as they appear in the Register as of the date of such Redemption Notice, stating the following: (A) the date of such Redemption (the “Redemption Date”), (B) the per share and aggregate Redemption Price of such Holder’s applicable shares of Series E-1 Preferred Stock; (C) the name of the Redemption Agent to whom, and the address of the place where, the applicable shares of Series E-1 Preferred Stock are to be surrendered for payment of the applicable Redemption Price and a description of the procedure that a Holder must follow to have such shares of Series E-1 Preferred Stock redeemed; and (D) that Preferred Dividends on any share to be redeemed will cease to accrue on the Redemption Date, subject to Section 6(g). Following delivery of the Redemption Notice by the Corporation in accordance with this Section 6(d), the Corporation shall redeem, or shall cause to be redeemed, all then issued and outstanding shares of Series E-1 Preferred Stock on the Redemption Date (or, if applicable in connection with an Optional Redemption, such lesser number of issued and outstanding shares of Series E-1 Preferred Stock as may be specified in the Redemption Notice). (e) On or prior to the Redemption Date, the Corporation shall deposit with the applicable Redemption Agent in trust funds consisting of cash or cash equivalents sufficient to pay the aggregate Redemption Price for the shares of Series E-1 Preferred Stock to be redeemed on the applicable Redemption Date. The deposit in trust with the Redemption Agent shall be irrevocable as of the Redemption Date, except that the Corporation shall be entitled to receive from the Redemption Agent the interest or other earnings, if any, earned on any such deposit. Notwithstanding the deposit of such funds with the Redemption Agent, the Corporation shall remain liable for the payment of the applicable Redemption Price to the extent such Redemption Price is not paid as provided herein. Subject to Section 6(g), if on or prior to the Redemption Date, the Corporation shall have deposited in accordance with this Section 6(e) money in immediately available funds, designated for the redemption of the shares of Series E-1 Preferred Stock to be redeemed on the Redemption Date and sufficient to pay the aggregate Redemption Price as of the Redemption Date for the applicable shares of Series E-1 Preferred Stock, such shares of Series E-1 Preferred Stock shall no longer be deemed to be outstanding, and all powers, designations, preferences and other rights of the Holder thereof as a Holder of Series E-1 Preferred Stock (except the right to receive from the Corporation the applicable Redemption Price) shall cease and terminate with respect to such shares. (f) The Redemption Agent on behalf of the Corporation shall pay the applicable Redemption Price on the later to occur of (A) the Redemption Date and (B) the date on which surrender of the certificates representing the shares of Series E-1 Preferred Stock to be redeemed (properly endorsed or assigned for transfer, if the Corporation shall so require and if letters of transmittal and instructions therefor on reasonable terms are included in the notice sent by the Corporation) occurs; provided that if such certificates are lost, stolen or destroyed, the Corporation may require such Holder to indemnify the Corporation, in a reasonable amount and in a reasonable manner, and post a customary bond in respect of such indemnity, prior to paying such Redemption Price. (g) Notwithstanding anything to the contrary in this Certificate, if a Redemption Notice is given by the Corporation in accordance with Section 6(d) and the funds of the Corporation legally available to redeem the shares of Series E-1 Preferred Stock on the

 
16 PHX 332430251v5 Redemption Date specified in such notice are insufficient to redeem such shares, then, without limiting any other consequence hereunder, the Corporation shall (i) purchase the maximum number of shares of Series E-1 Preferred Stock that may be purchased with legally available funds, on a pro rata basis, and (ii) purchase any remaining shares, on a pro rata basis, as soon as it has any additional legally available funds. For the avoidance of doubt, notwithstanding anything contained herein to the contrary, in the event that the Holders of the Series E-1 Preferred Stock have properly surrendered the certificates representing all shares of Series E-1 Preferred Stock to be redeemed on the Redemption Date and the Redemption Agent, on behalf of the Corporation, does not pay the applicable Redemption Price in full on the Redemption Date, then such shares of Series E-1 Preferred Stock not redeemed on the Redemption Date will remain outstanding following the Redemption Date and will be entitled to all of the powers, designations, preferences and other rights provided herein until such time as the applicable Redemption Price is paid in full. (h) In the event that the Corporation does not exercise its Optional Redemption right and the Redemption Price is not for any reason paid in full to the Holders of the Series E-1 Preferred Stock on the Maturity Date, or in the event of a Triggering Event following which the Corporation fails for any reason within ninety (90) days to appoint Triggering Event Directors, the Corporation shall, upon request of the Preferred Holders acting with the Preferred Requisite Vote, engage one or more financial advisors (as selected by the Corporation from a group of at least three (3) financial advisors identified by the Corporation but that are subject to reasonable approval by the Preferred Holders making such request) to undertake a review of strategic alternatives (including a potential sale of the Corporation) to generate the legally available funds required in order to pay the applicable Redemption Price in full. Section 7. Reorganization Events. (a) Treatment of Series E-1 Preferred Stock upon a Reorganization Event. Subject to applicable Law, upon the occurrence of any Reorganization Event, (i) if the Corporation is the surviving company in such Reorganization Event, each share of Series E-1 Preferred Stock outstanding immediately prior to such Reorganization Event shall remain outstanding following such Reorganization Event (or be exchanged for an equivalent share of Series E-1 Preferred Stock governed by the terms herein); or (ii) if the Corporation is not the surviving company in such Reorganization Event or will be dissolved in connection with such Reorganization Event, each share of Series E-1 Preferred Stock outstanding immediately prior to such Reorganization Event shall be converted or exchanged into a security of the Person surviving such Reorganization Event or such other continuing entity in such Reorganization Event having rights, powers and preferences, and the qualifications, limitations and restrictions thereof, as nearly equal as possible to those provided herein (with such adjustments as are appropriate to place the Holders in as nearly as equal of a position as possible following such Reorganization Event as compared to immediately prior to such Reorganization Event). (b) Successive Reorganization Events. The provisions of this Section 7 shall similarly apply to successive Reorganization Events.

 
17 PHX 332430251v5 (c) Notice of Reorganization Events. The Corporation (or any successor) shall, within ten (10) days following the consummation of any Reorganization Event, provide written notice to the Holders of such consummation of such event. Failure to deliver such notice shall not affect the operation of this Section 7. (d) Requirements of Reorganization Events. The Corporation shall not, without the consent of the Preferred Holders acting with the Preferred Requisite Vote, enter into any agreement for or permit consummation of any transaction or series of transactions constituting a Reorganization Event, unless the surviving successor, transferee or lessee entity, as the case may be (if not the Corporation), expressly assumes, as part of the terms of such Reorganization Event, the due and punctual performance and observance of each and every covenant and condition of this Certificate to be performed and observed by the Corporation. Section 8. Change of Control Sale. (a) Change of Control Sale. In the event of a Change of Control, each Holder of shares of Series E-1 Preferred Stock shall have the option, during the period beginning on the effective date of the Change of Control (the “Change of Control Effective Date”) and ending on the date that is twenty (20) Business Days after the later of (x) receipt of written notice contemplated by Section 8(c) and (y) the Change of Control Effective Date, to require the Corporation to purchase, all or any portion of its shares of Series E-1 Preferred Stock at a purchase price per share, payable in cash, equal to either (i) one hundred and six and one-half percent (106.5%) of the Liquidation Value, if the Change of Control Effective Date is prior to the twenty-four (24) month anniversary of the Original Issuance Date or (ii) the Liquidation Value if the Change of Control Effective Date is on or after the twenty-four (24) month anniversary of the Original Issuance Date (a “Change of Control Sale”). (b) Initial Change of Control Notice. On or before the twentieth (20th) Business Day prior to the date on which the Corporation anticipates consummating any Change of Control (or, if later, promptly after the Corporation discovers that the Change of Control will occur or has occurred), the Corporation shall deliver to each Holder (as they appear in the Register) a written notice setting forth a description of the anticipated Change of Control and the date on which the Change of Control is anticipated to be effected (or, if applicable, the date on which a Schedule TO or other schedule, registration statement, form or report disclosing a Change of Control was filed). (c) Final Change of Control Notice. On or prior to the Change of Control Effective Date (or, if later, promptly after the Corporation discovers that the Change of Control has occurred), the Corporation shall deliver to each Holder (as they appear in the Register) a written notice setting forth: (i) the date, which shall be no earlier than the twentieth (20th) Business Day after the Change of Control Effective Date (or, if later, the date of delivery of such notice), prior to which the Change of Control Sale option must be exercised; and (ii) the amount of cash payable per share of Series E-1 Preferred Stock in accordance with Section 8(a) and the purchase date for such shares (which purchase date will

 
18 PHX 332430251v5 be the effective date of such Change of Control Sale if the Change of Control Sale option is exercised), which shall be no greater than ten (10) Business Days following the date by which such option must be exercised. (d) Change of Control Sale Procedure. A Holder may exercise a Change of Control Sale option upon receipt of a notice pursuant to Section 8(b) or Section 8(c) above, the effectiveness of which shall be contingent upon the Change of Control Effective Date. To exercise a Change of Control Sale option, a Holder must, no later than 5:00 p.m., New York City time, on the date by which such option must be exercised, surrender to the Corporation the certificate or certificates representing the shares of Series E-1 Preferred Stock to be sold (or, if such certificate or certificates have been lost, stolen or destroyed, a lost certificate affidavit and indemnity in form and substance reasonably acceptable to the Corporation) and indicate that it is exercising its Change of Control Sale option. (e) Delivery upon Change of Control Sale. Upon a Change of Control Sale, the Corporation shall deliver or cause to be delivered to the Holder by wire transfer the purchase price payable upon the purchase by the Corporation of such Holder’s shares of Series E-1 Preferred Stock. Upon delivery of the purchase price for shares of Series E-1 Preferred Stock purchased pursuant to Holder elections under this Section 8 in connection with a Change of Control Sale in accordance with the preceding sentence, from and after such payment, such shares of Series E-1 Preferred Stock shall no longer be deemed to be outstanding, and all powers, designations, preferences and other rights of the Holder thereof as a Holder of Series E-1 Preferred Stock shall cease and terminate with respect to such shares. (f) Priority in a Change of Control. For the avoidance of doubt, if notice regarding the exercise of a Change of Control Sale option is provided pursuant to Section 8(d) prior to the Change of Control Effective Date, such Holder shall have priority in right of payment of such amount over any payment to Junior Securities in connection with such Change of Control transaction. (g) Insufficient Legally Available Funds. If, on the date on which the Change of Control Sale is otherwise to occur in accordance with this Section 8, the Corporation (including any successor thereto in such Change of Control transaction) does not have sufficient legally available funds to purchase all shares of Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and Series E-1 Preferred Stock surrendered in connection with such Change of Control Sale in accordance with this Section 8, then, without limiting any other consequences hereunder, (i) the Corporation shall purchase the maximum number of shares of Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and Series E-1 Preferred Stock that may be purchased with such legally available funds, on a pro rata basis based on the Preferred Aggregate Liquidation Value, and (ii) except to the extent a Holder withdraws its exercise of the Change of Control Sale option with respect to unpurchased shares, the Corporation shall purchase any remaining shares, on a pro rata basis, as soon as it has any additional legally available funds. Notwithstanding the foregoing, if the Corporation does not have legally available funds that are available to purchase all shares of Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and Series E-1 Preferred Stock that Holders have elected to be purchased, or otherwise fails to comply with any provisions of this Section 8, the

 
19 PHX 332430251v5 price per share for any share of Series E-1 Preferred Stock purchased pursuant to clause (ii) above after the date on which the Change of Control Sale is otherwise to occur in accordance with this Section 8 (disregarding this Section 8(g)) shall be increased by the amount of any Accrued Dividends accruing between the date on which the Change of Control Sale is otherwise to occur and the date of such purchase. (h) Partial Change of Control Sale. If a portion, but less than all, of the shares of Series E-1 Preferred Stock represented by a certificate held by any Holder are purchased in accordance with this Section 8 on any particular date, the Corporation shall promptly thereafter issue to such Holder a new certificate representing the remaining shares of Series E-1 Preferred Stock held by such Holder. Section 9. Voting Rights. (a) General. The Holders of shares of Series E-1 Preferred Stock shall not be entitled to vote on any matters submitted to a vote of stockholders of the Corporation, except as otherwise provided herein or as required by applicable Law. (b) Class Voting Rights. So long as any shares of Series E-1 Preferred Stock are outstanding, in addition to any other vote required by applicable Law, the Corporation may not take any of the following actions (including by means of merger, consolidation, reorganization, recapitalization or otherwise) without the Preferred Requisite Vote: (i) amend, alter, repeal or otherwise modify any provision of the Certificate of Incorporation, this Certificate or the Bylaws in a manner that would alter or change the terms or the powers, preferences, rights or privileges of the Series E-1 Preferred Stock; (ii) declare, pay or set aside for payment any dividends or distributions upon any Junior Securities; (iii) repurchase, redeem or otherwise acquire any Junior Securities for any consideration or pay any moneys or make available for a sinking fund for the redemption of any shares of such Junior Securities, other than repurchases from employees, officers or directors of the Corporation or any of its Subsidiaries in the ordinary course of business pursuant to any of the agreements or plans of the Corporation or any of its Subsidiaries in effect as of the Original Issuance Date to the extent that, in each case, (A) immediately before and after the taking of such action, the fair value of the Corporation’s assets would exceed the sum of its debts (including for these purposes the aggregate Liquidation Value of the Series E-1 Preferred Stock), (B) immediately after such action the Corporation, in its good faith judgment, would be able to pay all of its debts (including the aggregate Liquidation Value of the Series E-1 Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable Law; (iv) authorize, create, increase the authorized amount of, or issue any class or series of Senior Securities or Parity Securities, including any security convertible into, or exchangeable or exercisable for, any of the foregoing;

 
20 PHX 332430251v5 (v) increase or decrease the authorized number of shares of Series E-1 Preferred Stock (except for the cancellation and retirement of shares set forth in Section 11(b)) or issue additional shares of Series E-1 Preferred Stock; (vi) (1) amend, restate, supplement, modify or replace any Debt Document in any manner that would include provisions relating to the ability of the Corporation or its Subsidiaries to pay dividends at the Minimum Dividend Rate(s) pursuant to this Certificate or any amounts due pursuant to Section 6 or Section 8 that are more restrictive than those set forth in the Debt Documents in effect as of the Original Issuance Date or (2) enter into any agreements or arrangements relating to Indebtedness or otherwise containing provisions relating to the ability of the Corporation or its Subsidiaries to pay dividends at the Minimum Dividend Rate(s) pursuant to this Certificate or any amounts due pursuant to Section 6 or Section 8 that are more restrictive than those set forth in the New ABL Facility, as in effect of and when first entered into in accordance with the Investment Agreement (or subsequently amend, restate, supplement or otherwise modify any such agreements or arrangements in any manner that would include provisions relating to the ability of the Corporation or its Subsidiaries to pay dividends at the Minimum Dividend Rate(s) pursuant to this Certificate or any amounts pursuant to Section 6 or Section 8 that are more restrictive than those set forth in the New ABL Facility, as in effect of and when first entered into in accordance with the Investment Agreement); (vii) incur any Indebtedness (or enter into any factoring, securitization or other similar off-balance sheet arrangement) other than (a) borrowings under the New ABL Facility in an aggregate principal amount as may be needed (x) to redeem the Series E-1 Preferred Stock and/or the Series E Preferred Stock; provided that such Series E-1 Preferred Stock and/or Series E Preferred Stock, as applicable, are redeemed concurrently with the borrowing of such loans under the New ABL Facility in accordance with this Certificate and/or the Series E Certificate of Designations, as applicable, (y) to fund the payment of the amounts referred to in clause (y) of the definition of New ABL Facility in the Investment Agreement and (z) to fund ordinary course business activities and seasonal fluctuations in cash for working capital needs or other general corporate purposes in an aggregate principal amount not to exceed $40,000,000, (b) Indebtedness related to co-borrower or guaranty obligations of the Corporation or its Subsidiaries with respect to loans or leases obtained by independent contractors of the Corporation or its Subsidiaries for the purpose of such independent contractor acquiring trucks or trailers; provided that the aggregate amount of all such Indebtedness, together with the aggregate amount of loans to, or other investments in, independent contractors or other investments made by the Corporation or its Subsidiaries for the purpose of such independent contractor acquiring trucks or trailers, shall not exceed $15,000,000 at any one time outstanding, (c) Indebtedness in respect of Capitalized Lease Obligations or incurred to finance all or part of the cost of acquiring property; provided that the aggregate amount of all such Indebtedness shall not exceed $35,000,000 at any one time outstanding and any Liens in respect thereof shall attach only to the property being leased or acquired, (d) Indebtedness incurred in respect of netting services and overdraft protection in connection with deposit accounts, in each case, in the ordinary course of business, (e) Indebtedness incurred in connection with the financing of insurance premiums in the ordinary course of business, (f) endorsements for collection or deposit and standard contractual indemnities entered into in the ordinary course of business, (g) intercompany Indebtedness between the Corporation and its Subsidiaries incurred in the ordinary course of business, (h) Indebtedness arising under Interest Rate Contracts incurred for bona fide hedging

 
21 PHX 332430251v5 purposes and not for speculation, (i) Contingent Obligations incurred in the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations, (j) Contingent Obligations arising under indemnity agreements to title insurers to cause such title insurers to issue title insurance policies to the agent under the New ABL Facility or other Indebtedness otherwise permitted hereunder, (k) Contingent Obligations related to guaranty obligations of the Corporation or any of its Subsidiaries with respect to Operating Leases of the Corporation’s domestic Subsidiaries for terminal facilities and other contract obligations (other than Indebtedness) of the Corporation’s domestic Subsidiaries not prohibited by this Certificate so long as the same remains Contingent Obligations, (l) earn-out obligations representing payments required to be made pursuant to Section 1.7 of the Partnership Interest Purchase and Sale Agreement dated as of July 28, 2015, by and among Roadrunner Truckload Holdings, LLC, the Corporation, Stagecoach Cartage and Distribution LP and the “sellers” named therein, in an aggregate amount not to exceed $5,000,000, (m) letters of credit outstanding as of the Issuance Date (and extensions thereof so long as any Liens in respect thereof shall attach only to cash collateral), and (n) other Indebtedness (excluding Indebtedness described in clauses (a) through (m) above) in an aggregate amount not to exceed $7,500,000 at any one time outstanding; or (viii) for a period of six (6) months from the Original Issuance Date, sell, transfer, dispose of or divest any assets, properties, rights, interests or businesses in any single transaction or series of related transactions with an aggregate value equal to or exceeding $10,000,000, except for a Permitted Divestiture. (c) Special Voting Rights. (i) For so long as (x) any shares of Series B Preferred Stock or Series C Preferred Stock are issued and outstanding and (y) the Investor holds shares of Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and/or Series E-1 Preferred Stock collectively representing a majority of the Preferred Aggregate Liquidation Value, the Preferred Holders shall have the exclusive right, acting with the Preferred Requisite Vote, to nominate and elect two (2) individuals selected by the Preferred Holders, or to require the Board of Directors to fill two (2) vacancies in the Board of Directors with individuals selected by the Preferred Holders, to serve as, respectively, a Class II director and a Class III director of the Corporation (as such terms are used in the Certificate of Incorporation) (the “Preferred Stock Directors”). Until such time as all Series B Preferred Stock has been redeemed, the Corporation shall, upon the request of the Preferred Holders, acting with the Preferred Requisite Vote, cause each of the Compensation Committee of the Board of Directors and the Nominating and Corporate Governance Committee of the Board of Directors to include one Preferred Stock Director, in each case, to the extent permitted under applicable requirements of the New York Stock Exchange (or its successor) (or such other U.S. national securities exchange or automated inter-dealer quotation system (or its successor) on which the Corporation’s securities may be listed) or applicable Law. In the event of any change in the size of the Board of Directors at a time when the Preferred Holders are entitled to nominate and elect any Preferred Stock Directors, the number of Preferred Stock Directors shall be proportionately adjusted, concurrently with any such change in the size of the Board of Directors, such that the proportion of Board of Directors represented by the Preferred Stock Directors remains at least equal to the proportion of the Board of Directors represented by the Preferred Stock Directors on the date the

 
22 PHX 332430251v5 Preferred Holders first have the right to nominate Preferred Stock Directors pursuant to this Section 9(c)(i) (assuming for this purpose no increase in the size of the Board of Directors between the date of the Investment Agreement and such date except as contemplated by Section 4.10 of the Investment Agreement). So long as the Preferred Holders are entitled to elect any Preferred Stock Directors, any vacancy in the position of any such Preferred Stock Director may be filled only with the Preferred Requisite Vote. Each Preferred Stock Director shall be entitled to one (1) vote on any matter considered by the Board of Directors. (ii) In the event of any Triggering Event, subject to applicable rules of the New York Stock Exchange (or its successor) or such other U.S. national securities exchange or automated inter-dealer quotation system (or its successor), including without limitation, independent director requirements, the number of directors constituting the Board of Directors shall be increased such that the number of vacancies on the Board of Directors resulting from such increase (the “Triggering Event Vacancies”), together with the Preferred Stock Directors (to the extent then serving on the Board of Directors), constitutes a majority of the Board of Directors. To the extent the Board of Directors is classified, the Triggering Event Vacancies shall be allocated proportionately to each class of directors so that the number of directors in each class shall be as nearly equal in number as possible. The Preferred Holders shall have the right, acting with the Preferred Requisite Vote, to nominate and elect individuals selected by the Preferred Holders to fill such Triggering Event Vacancies and thereby serve as directors of the Corporation, or to require the Board of Directors to act to fill such Triggering Event Vacancies with individuals selected by such Preferred Holders, to serve as directors of the Corporation, and the size of the Board of Directors shall be increased as needed. Each such director so elected is referred to as a “Triggering Event Director”. In case any vacancy in the office of a Triggering Event Director occurs (other than prior to the initial election of the Triggering Event Directors), the vacancy may be filled by the written consent of the Triggering Event Directors remaining in office, or if none remains in office, by the Preferred Holders acting with a Preferred Requisite Vote, to serve until the next annual meeting of the stockholders (or, if the Board of Directors is classified, until the conclusion of the term of the applicable class of directors). When a Triggering Event is no longer continuing, then the right of the Preferred Holders to elect the Triggering Event Directors will cease, the terms of office of the Triggering Event Directors will immediately terminate and the number of directors constituting the Board of Directors will be reduced accordingly (in each case, subject to the provisions for the vesting of the special vesting rights pursuant to this Section 9(c)(ii) upon any subsequent Triggering Event). The Triggering Event Directors shall each be entitled to one (1) vote per director on any matter considered by the Board of Directors. (iii) Except as provided in the Investment Agreement, the election of the Preferred Stock Directors and, if applicable, the Triggering Event Directors (if not effected by action of the Board of Directors as contemplated above) will take place at any applicable annual meeting of the stockholders or at any special meeting of the Preferred Holders called as provided herein. The secretary of the Corporation may, and upon the written request of Preferred Holders holding issued and outstanding shares of Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and/or Series E-1 Preferred Stock representing at least twenty percent (20%) of the Preferred Aggregate Liquidation Value (addressed to the secretary at the Corporation’s principal office) must (unless such request is received less than ninety (90) days before the date fixed for the next annual or special meeting of

 
23 PHX 332430251v5 the stockholders, in which event such election shall be held at such next annual or special meeting of the stockholders), call a special meeting of the Preferred Holders for the election of the Preferred Stock Directors and, if applicable, the Triggering Event Directors to be elected by them as provided in Section 9(c)(ii). The Corporation shall enter into customary indemnification agreements with the Preferred Stock Directors in form reasonably acceptable to the designating Preferred Holders. (iv) Notice for a special meeting of the Preferred Holders will be given in a similar manner to that provided in the Bylaws for a special meeting of the stockholders. If the secretary of the Corporation does not call a special meeting within twenty (20) days after receipt of any such request therefor, then any Preferred Holder may (at the expense of the Corporation) call such meeting, upon notice as provided in this Section 9(c)(iv), and for that purpose will have access to the Register. Each Preferred Stock Director and, if applicable, Triggering Event Director elected at any such special meeting will hold office until the next annual meeting of the stockholders of the Corporation (or, if the Board of Directors is classified, until the conclusion of the term of the applicable class of directors) unless, in the case of a Triggering Event Director, such Triggering Event Director has been previously terminated or removed pursuant to Section 9(c)(ii). (d) The consent or votes required in Section 9(b) or Section 9(c) shall be in addition to any approval of holders of Preferred Stock which may be required by Law or pursuant to any provision of the Certificate of Incorporation, the Stockholders’ Agreement or the Bylaws. Section 10. Certificates. (a) Transfer Agent. The Corporation may appoint a transfer agent and remove its transfer agent in accordance with the agreement between the Corporation and such transfer agent; provided that the Corporation shall appoint a successor transfer agent of recognized standing who shall accept such appointment prior to the effectiveness of such removal. Upon any such removal or appointment, the Corporation shall send notice thereof by first-class mail, postage prepaid, to the Holders. (b) Form and Dating. The Series E-1 Preferred Stock shall be initially issued and thereafter evidenced only in definitive, certificated form. Each Series E-1 Preferred Stock certificate shall be dated the date of its authentication. (c) Execution and Authentication. Two officers of the Corporation shall sign any Series E-1 Preferred Stock certificate for the Corporation by manual or facsimile signature. (d) Transfer and Exchange. When (i) a Series E-1 Preferred Stock certificate is presented to the Corporation or the Corporation’s transfer agent, if any, with a request to register the transfer of such Series E-1 Preferred Stock certificate, or (ii) Series E-1 Preferred Stock certificates are presented to the Corporation or the Corporation’s transfer agent, if any, with a request to exchange such Series E-1 Preferred Stock certificates for a Series E-1 Preferred Stock certificate representing a number of shares of Series E-1 Preferred Stock equal to the combined number of shares of Series E-1 Preferred Stock represented by such presented

 
24 PHX 332430251v5 certificates, the Corporation or the Corporation’s transfer agent, as applicable, shall register the transfer or make the exchange, as requested, if its reasonable requirements for such transaction are met; provided, however, that the Series E-1 Preferred Stock certificates surrendered for transfer or exchange: (i) shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Corporation and the Corporation’s transfer agent, if any, duly executed by the holder thereof or its attorney duly authorized in writing; (ii) are being transferred or exchanged in accordance with the restrictions on Transfer (as defined in the Stockholders’ Agreement) set forth in the Stockholders’ Agreement; and (iii) if such Series E-1 Preferred Stock certificates are being delivered to the Corporation or the Corporation’s transfer agent, if any, by a Holder for registration in the name of such Holder, without transfer, a certification is provided from such Holder to that effect. (e) Obligations with Respect to Transfers of Series E-1 Preferred Stock. (i) Subject to the restrictions on Transfer (as defined in the Stockholders’ Agreement) of the Series E-1 Preferred Stock set forth in the Stockholders’ Agreement, to permit registrations of transfers and exchanges, the Corporation shall execute, and the Corporation’s transfer agent, if any, shall authenticate, Series E-1 Preferred Stock certificates as required pursuant to the provisions of this Section 10(e). (ii) All Series E-1 Preferred Stock certificates issued upon any registration of transfer or exchange of Series E-1 Preferred Stock certificates in accordance with Section 10(d) shall be the valid obligations of the Corporation, entitled to the same benefits under this Certificate as the Series E-1 Preferred Stock certificates surrendered upon such registration of transfer or exchange. (iii) Prior to due presentment for registration of transfer of any shares of Series E-1 Preferred Stock, the Corporation and the Corporation’s transfer agent, if any, may deem and treat the Person in whose name such shares of Series E-1 Preferred Stock are registered as the absolute owner of such Series E-1 Preferred Stock, and neither such transfer agent nor the Corporation shall be affected by notice to the contrary. All notices and communications to be given to the Holders and all payments to be made to Holders under the Series E-1 Preferred Stock shall be given or made only to the Holders. (f) Replacement Certificates. If any Series E-1 Preferred Stock certificate shall be mutilated, lost, stolen or destroyed, the Corporation will issue, in exchange and in substitution for and upon cancellation of the mutilated certificate, or in lieu of and substitution for the certificate lost, stolen or destroyed, and the Corporation’s transfer agent, if any, or duly authorized officers shall countersign a replacement Series E-1 Preferred Stock certificate of like tenor and representing an equivalent amount of Series E-1 Preferred Stock. If required by the transfer agent or the Corporation, such Holder shall furnish evidence of loss, theft or destruction of such certificate and, if requested by the Corporation, an indemnity on customary terms for such situations reasonably satisfactory to the Corporation.

 
25 PHX 332430251v5 (g) Temporary Certificates. Until definitive Series E-1 Preferred Stock certificates are ready for delivery, the Corporation may prepare and the Corporation’s transfer agent, if any, or duly authorized officers shall countersign temporary Series E-1 Preferred Stock certificates. Temporary Series E-1 Preferred Stock certificates shall be substantially in the form of definitive Series E-1 Preferred Stock certificates, but may have variations that the Corporation considers appropriate for temporary Series E-1 Preferred Stock certificates. Without unreasonable delay, the Corporation shall prepare and the Corporation’s transfer agent, if any, or duly authorized officers shall countersign definitive Series E-1 Preferred Stock certificates and deliver them in exchange for temporary Series E-1 Preferred Stock certificates. (h) Cancellation. In the event the Corporation shall redeem or otherwise acquire Series E-1 Preferred Stock, the Series E-1 Preferred Stock certificates representing such redeemed or acquired shares shall thereupon be delivered to the Corporation or the Corporation’s transfer agent, if any, for cancellation. (i) Taxes. The issuance or delivery of shares of Series E-1 Preferred Stock, shares of Common Stock or other securities issued on account of Series E-1 Preferred Stock pursuant hereto, or certificates representing such shares or securities, shall be made without charge to the Holder for such shares or certificates or for any tax in respect of the issuance or delivery of such certificates or the securities represented thereby, including, without limitation, any share transfer, documentary, stamp or similar tax; provided, however, that the Corporation shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance or delivery of shares of Series E-1 Preferred Stock, shares of Common Stock or other securities in a name other than that in which the shares of Series E-1 Preferred Stock with respect to which such shares or other securities were issued, delivered or registered, or in respect of any payment to any Person other than a payment to the Holder thereof, and shall not be required to make any such issuance, delivery or payment unless and until the Person otherwise entitled to such issuance, delivery or payment has paid to the Corporation the amount of any such tax or has established, to the satisfaction of the Corporation, that such tax has been paid or is not payable. Section 11. Miscellaneous. (a) Good Faith. The Corporation shall not, by amendment of the Certificate of Incorporation or through reorganization, consolidation, merger, dissolution, sale of assets, or otherwise, avoid or seek to avoid the observance or performance of any of the terms of this Certificate, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders of Series E-1 Preferred Stock as set forth in this Certificate. (b) Status of Shares. Shares of Series E-1 Preferred Stock which have been redeemed, repurchased or otherwise cancelled shall be retired and, following the filing of any certificate required by the DGCL, have the status of authorized and unissued shares of Preferred Stock, without designation as to series until such shares are once more, subject to and in accordance with the provisions of Section 9, designated as part of a particular series of Preferred Stock by the Board of Directors.

 
26 PHX 332430251v5 (c) Notices. All notices referred to herein shall be in writing, and, unless otherwise specified herein, all notices hereunder shall be deemed to have been given upon the earlier of receipt thereof or three (3) Business Days after the mailing thereof, if sent by registered or certified mail (or by first-class mail if the same shall be specifically permitted for such notice under the terms of this Certificate) with postage prepaid, addressed: (i) if to the Corporation, to its principal executive offices as set forth in its filings with the U.S. Securities and Exchange Commission, or to any transfer or other agent of the Corporation designated to receive such notice as permitted by this Certificate, (ii) if to any Holder, to such Holder at the address of such Holder as listed in the Register or (iii) to such other address as the Corporation or any such Holder, as the case may be, shall have designated by notice similarly given. (d) Severability. If any right, preference or limitation of the Series E-1 Preferred Stock set forth in this Certificate (as may be amended from time to time) is invalid, unlawful or incapable of being enforced by reason of any rule of Law or public policy, all other rights, preferences and limitations set forth in this Certificate (as so amended) which can be given effect without the invalid, unlawful or unenforceable right, preference or limitation shall, nevertheless, remain in full force and effect, and no right, preference or limitation herein set forth shall be deemed dependent upon any other such right, preference or limitation unless so expressed herein. (e) Other Rights. The shares of Series E-1 Preferred Stock shall not have any voting powers, preferences or relative, participating, optional or other special rights, or qualifications, limitations or restrictions thereof, other than as set forth herein or in the Certificate of Incorporation, in any contractual arrangement with the Corporation, or as provided by applicable Law. (f) Headings. The headings of the various subdivisions hereof are for convenience of reference only and shall not affect the interpretation of any of the provisions hereof. (g) Effectiveness. This Certificate shall become effective upon the filing thereof with the Secretary of State of the State of Delaware. [The remainder of this page was intentionally left blank.]

 

 
PHX 332633283v3 AMENDMENT NO. 1 TO STOCKHOLDERS’ AGREEMENT THIS AMENDMENT NO. 1 TO STOCKHOLDERS’ AGREEMENT (“Amendment”) is entered into as of March 1, 2018, by and among Roadrunner Transportation Systems, Inc., a Delaware corporation (the “Company”), Elliott Associates, L.P., a Delaware limited partnership, and Brockdale Investments LP, a Delaware limited partnership (collectively, the “Stockholders”). RECITALS A. Pursuant to that certain Investment Agreement, dated as of May 1, 2017, by and among the Company and the Stockholders (as it may be amended from time to time, the “Investment Agreement”), the Company sold to the Stockholders 155,000 shares of Series B Cumulative Redeemable Preferred Stock, par value $0.01 per share, of the Company (the “Series B Preferred Stock”), 55,000 shares of Series C Cumulative Redeemable Participating Preferred Stock, par value $0.01 per share, of the Company (the “Series C Preferred Stock”), 100 shares of Series D Cumulative Redeemable Participating Preferred Stock, par value $0.01 per share, of the Company (the “Series D Preferred Stock”), 90,000 shares of Series E Cumulative Redeemable Preferred Stock, par value $0.01 per share, of the Company (the “Series E Preferred Stock”) and 240,500 shares of Series F Cumulative Redeemable Preferred Stock, par value $0.01 per share, of the Company (the “Series F Preferred Stock”). B. The Company and the Stockholders are also parties to that certain Stockholders’ Agreement, dated as of May 2, 2017 (as in effect immediately prior to the effectiveness of this Amendment, the “Existing Stockholders’ Agreement”). C. On or about July 21, 2017, the Company redeemed all of the then outstanding shares of Series F Preferred Stock. D. On or about September 15, 2017, the Company redeemed 52,500 shares of Series E Preferred Stock. E. On or about the date hereof, the Company and the Stockholders are entering into an Investment Agreement (the “New Investment Agreement”) pursuant to which, among other things, the Stockholders have agreed to purchase up to 54,751 shares of Series E-1 Cumulative Redeemable Preferred Stock, par value $0.01 per share, of the Company (the “Series E-1 Preferred Stock”). F. The Company and the Stockholders desire to amend the Existing Stockholders’ Agreement in certain respects. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: Section 1. Definitions. Except as otherwise provided in this Amendment, capitalized terms used herein shall have the meanings attributed thereto in the Existing Stockholders’ Agreement. Section 2. Amendments to the Existing Stockholders’ Agreement. The Existing Stockholders’ Agreement is hereby amended as follows:

 
2 PHX 332633283v3 2.01 References Generally. References in the Existing Stockholders’ Agreement (including references to the Existing Stockholders’ Agreement as amended hereby) to “this Agreement” (and indirect references such as “hereunder,” “hereby,” “herein” and “hereof”) and each reference to the Existing Stockholders’ Agreement in the other Transaction Documents (and indirect references such as “thereunder,” “thereby,” “therein” and “thereof”) shall be deemed to be references to the Existing Stockholders’ Agreement as amended hereby. 2.02 Amended Language. (a) Section 1.1 of the Existing Stockholders’ Agreement is amended by adding the following defined terms in appropriate alphabetical order as follows: “Series E-1 Certificate of Designations” means the Company’s Certificate of Designations, Preferences and Rights of Series E-1 Cumulative Redeemable Preferred Stock. “Series E-1 Liquidation Value” has the meaning set forth in the definition of “Liquidation Value” in the Series E-1 Certificate of Designations. “Series E-1 Preferred Stock” means the Company’s Series E-1 Cumulative Redeemable Preferred Stock as set forth in the Series E-1 Certificate of Designations. (b) Section 1.1 of the Existing Stockholders’ Agreement is amended by amending and restating the following definitions in their entirety to read as follows: “Certificate of Designations” means, collectively, the Series B Certificate of Designations, Series C Certificate of Designations, Series D Certificate of Designations, Series E Certificate of Designations and Series E-1 Certificate of Designations. “Preferred Aggregate Liquidation Value” means, as of any date of determination, the sum of (i) the aggregate Series B Liquidation Value, plus (ii) the aggregate Series C Liquidation Value, plus (iii) the aggregate Series D Liquidation Value, plus (iv) the aggregate Series E Liquidation Value, plus (v) the aggregate Series E-1 Liquidation Value. “Preferred Stock” means, collectively, the Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and Series E-1 Preferred Stock. “Redemption” means (i) a “Redemption” as defined in the Series B Certificate of Designations, (ii) a “Redemption” as defined in the Series C Certificate of Designations, (iii) a “Redemption” as defined in the Series D Certificate of Designations, (iv) a “Redemption” as defined in the Series E Certificate of Designations, or (v) a “Redemption” as defined in the Series E-1 Certificate of Designations. “Series E Preferred Stock” means the Series E Preferred Stock and the Series E-1 Preferred Stock taken as a whole. “Triggering Event” means (i) a “Triggering Event” as defined in the Series B Certificate of Designations, (ii) a “Triggering Event” as defined in the Series C Certificate of Designations, (iii) a “Triggering Event” as defined in the Series D Certificate of Designations, (iv) a

 
3 PHX 332633283v3 “Triggering Event” as defined in the Series E Certificate of Designations or (v) a “Triggering Event” as defined in the Series E-1 Certificate of Designations. Section 3. Agreement with Respect to Certificate of Designations. As among the parties (and all permitted assignees and transferees of each Stockholder), all references to “Series F Preferred Stock” in the Series B Certificate of Designations, Series C Certificate of Designations, Series D Certificate of Designations and Series E Certificate of Designations shall, from and after the date hereof, be deemed to be references to the Series E-1 Preferred Stock. Section 4. Reference to and Effect Upon the Existing Stockholders’ Agreement. 4.01 Except as specifically amended or waived above, the Existing Stockholders’ Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed. 4.02 The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Stockholders under the Existing Stockholders’ Agreement or any other Transaction Document, nor constitute a waiver of any provision of the Existing Stockholders’ Agreement or any other Transaction Document, except as specifically set forth herein. Section 5. Miscellaneous. This Amendment may be executed in any number of counterparts, and by different parties hereto on separate counterpart signature pages, and all such counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of a counterpart signature page by facsimile transmission or by e-mail transmission of a portable document format file (also known as a “PDF” file) shall be effective as delivery of a manually executed counterpart signature page. Section headings used in this Amendment are for reference only and shall not affect the construction of this Amendment. Section 6. GOVERNING LAW. THIS AMENDMENT, AND THE RIGHTS AND DUTIES OF THE PARTIES HERETO, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE. [The remainder of this page was intentionally left blank.]

 

 

 
Execution Version PHX 332633099v6 INVESTMENT AGREEMENT dated as of March 1, 2018 by and among Roadrunner Transportation Systems, Inc., Elliott Associates, L.P. and Brockdale Investments LP

 
i PHX 332633099v6 Table of Contents Page ARTICLE I PURCHASE; CLOSING  Section 1.1 Purchase .............................................................................................................................. 1  Section 1.2 Closing ................................................................................................................................ 1  Section 1.3 Closing Conditions ............................................................................................................. 2  ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY  Section 2.1 Organization and Authority ................................................................................................ 3  Section 2.2 Capitalization ...................................................................................................................... 4  Section 2.3 Authorization ...................................................................................................................... 5  Section 2.4 Sale and Status of Securities ............................................................................................... 6  Section 2.5 SEC Documents; Financial Statements .............................................................................. 6  Section 2.6 Undisclosed Liabilities ....................................................................................................... 7  Section 2.7 Brokers and Finders ............................................................................................................ 7  Section 2.8 Litigation ............................................................................................................................. 7  Section 2.9 Taxes ................................................................................................................................... 7  Section 2.10 Permits and Licenses .......................................................................................................... 8  Section 2.11 Environmental Matters ....................................................................................................... 8  Section 2.12 Title ..................................................................................................................................... 9  Section 2.13 Intellectual Property ............................................................................................................ 9  Section 2.14 Employee Benefits/Labor ................................................................................................... 9  Section 2.15 Intentionally Omitted ........................................................................................................ 10  Section 2.16 Registration Rights ........................................................................................................... 11  Section 2.17 Compliance with Laws ..................................................................................................... 11  Section 2.18 Absence of Changes .......................................................................................................... 11  Section 2.19 Anti-Corruption ................................................................................................................ 11  Section 2.20 Trade Controls .................................................................................................................. 12  Section 2.21 Listing and Maintenance Requirements ............................................................................ 12  Section 2.22 Material Contracts ............................................................................................................. 12  Section 2.23 Insurance ........................................................................................................................... 13  Section 2.24 No Additional Representations ......................................................................................... 13  ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS  Section 3.1 Organization and Authority .............................................................................................. 14  Section 3.2 Authorization .................................................................................................................... 14  Section 3.3 Purchase for Investment .................................................................................................... 14  Section 3.4 Financial Capability .......................................................................................................... 15  Section 3.5 Brokers and Finders .......................................................................................................... 15 

 
ii PHX 332633099v6 ARTICLE IV COVENANTS  Section 4.1 Filings; Other Actions ....................................................................................................... 15  Section 4.2 Reasonable Best Efforts to Close ...................................................................................... 16  Section 4.3 Confidentiality .................................................................................................................. 16  Section 4.4 State Securities Laws ........................................................................................................ 16  Section 4.7 Tax Matters ....................................................................................................................... 16  ARTICLE V MISCELLANEOUS  Section 5.1 Survival ............................................................................................................................. 17  Section 5.2 Reserved............................................................................................................................ 17  Section 5.3 Amendment; Waiver ......................................................................................................... 17  Section 5.4 Counterparts; Electronic Transmission ............................................................................. 18  Section 5.5 Governing Law ................................................................................................................. 18  Section 5.6 WAIVER OF JURY TRIAL ............................................................................................. 18  Section 5.7 Notices .............................................................................................................................. 18  Section 5.8 Entire Agreement .............................................................................................................. 19  Section 5.9 Assignment ....................................................................................................................... 19  Section 5.10 Interpretation; Other Definitions ....................................................................................... 19  Section 5.11 Captions ............................................................................................................................ 26  Section 5.12 Severability ....................................................................................................................... 26  Section 5.13 No Third Party Beneficiaries ............................................................................................ 26  Section 5.14 Public Announcements ..................................................................................................... 26  Section 5.15 Specific Performance ........................................................................................................ 27  Section 5.16 Termination ....................................................................................................................... 27  Section 5.17 Effects of Termination ...................................................................................................... 27  Section 5.18 Non-Recourse ................................................................................................................... 28  Section 5.19 Disclosure Letter ............................................................................................................... 28  Exhibit A: Form of Certificate of Designations Schedule A: Purchaser Allocations

 
PHX 332633099v6 INVESTMENT AGREEMENT, dated as of March 1, 2018 (this “Agreement”), by and among Roadrunner Transportation Systems, Inc., a Delaware corporation (the “Company”), Elliott Associates, L.P., a Delaware limited partnership, and Brockdale Investments LP, a Delaware limited partnership (each a “Purchaser,” and collectively, the “Purchasers”). RECITALS: WHEREAS, on or prior to the date hereof, the Company has adopted and filed with the Secretary of State of the State of Delaware a Certificate of Designations, Preferences and Rights in respect of the Company’s Series E-1 Cumulative Redeemable Preferred Stock in the form attached hereto as Exhibit A (the “Certificate of Designations”), in order to create a series of preferred stock, par value $0.01 per share, designated as Series E-1 Cumulative Redeemable Preferred Stock (the “Preferred Stock”); WHEREAS, the Company proposes to issue and sell to the Purchasers (or to their assignees pursuant to Section 5.9), in accordance with the percentages set forth on Schedule A, shares of Preferred Stock subject to the terms and conditions set forth in this Agreement; and WHEREAS, capitalized terms used in this Agreement have the meanings set forth in Section 5.10. NOW, THEREFORE, in consideration of the premises, and of the representations, warranties, covenants and agreements set forth herein, the parties agree as follows: ARTICLE I PURCHASE; CLOSING Section 1.1 Purchase. On the terms and subject to the conditions herein, from time to time on each Closing Date, the Company agrees to sell and issue to the Purchasers (or their assignees), and the Purchasers agree to purchase (or to cause their assignees to purchase) from the Company in accordance with the percentages set forth on Schedule A, an aggregate of up to 54,750 shares of Preferred Stock (the “Purchased Shares”) at a purchase price of $1,000 per share for the first 17,500 Purchased Shares, $960 per share for the next 18,228 Purchased Shares, and $920 per share for the final 19,022 Purchased Shares, free and clear of any Liens (other than restrictions arising under the Certificate of Incorporation (as defined below), restrictions arising under applicable securities Laws and restrictions set forth in the Stockholders’ Agreement). Section 1.2 Closing. (a) Each closing of a purchase by the Purchasers of Purchased Shares pursuant to this Agreement (each, a “Closing”) shall take place remotely via the electronic exchange of documents and signatures at 10:00 a.m. New York time on the fifth (5th) business day after delivery of the relevant Put Notice, subject to the satisfaction or waiver of the conditions set forth in this Agreement, including in Section 1.3 (other than those conditions that by their nature are to be satisfied by actions taken at such Closing, but subject to their satisfaction) or at such other date, time and place as the Company and the Purchasers agree (each, a “Closing Date”). (b) Subject to the satisfaction or waiver at or prior to each Closing of the applicable conditions to the Closing in Section 1.3, at each Closing:

 
2 PHX 332633099v6 (1) the Company will deliver to each Purchaser (i) certificates representing the Purchased Shares purchased by such Purchaser and (ii) all other documents, instruments and writings required to be delivered by the Company to such Purchaser pursuant to this Agreement; and (2) each Purchaser will deliver or cause to be delivered (i) to one or more bank accounts designated by the Company in writing at least two (2) business days prior to the applicable Closing Date, such Purchaser’s share of the Purchase Price (as determined in accordance with the percentages set forth on Schedule A) by wire transfer of immediately available funds and (ii) all other documents, instruments and writings required to be delivered by such Purchaser to the Company pursuant to this Agreement. Section 1.3 Closing Conditions. (a) The obligation of the Purchasers, on the one hand, and the Company, on the other hand, to effect each Closing is subject to the satisfaction or waiver by the Purchasers and the Company at or prior to the Closing of the following condition: no temporary restraining order, preliminary or permanent injunction or other judgment or order issued by any Governmental Entity, and no Law shall be in effect restraining, enjoining, making illegal or otherwise prohibiting the consummation of the transactions contemplated by this Agreement. (b) The obligation of the Purchasers to effect each Closing is also subject to the satisfaction by the Company or waiver by the Purchasers at or prior to the Closing of the following conditions: (1) (i) the representations and warranties of the Company set forth in Article II hereof (other than Sections 2.1, 2.2, 2.3(a), 2.4, 2.7 , 2.9(e), 2.21, and 2.22(d)) shall be true and correct (disregarding all qualifications or limitations as to materiality or Company Material Adverse Effect) as of the date of this Agreement and as of the applicable Closing Date as though made on and as of such date (except to the extent that any such representation or warranty speaks to an earlier date, in which case such representation or warranty shall be true and correct as of such earlier date), except where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, have a Company Material Adverse Effect, and (ii) the representations and warranties of the Company set forth in Sections 2.1, 2.2, 2.3(a), 2.4, 2.7, 2.9(e), 2.21 and 2.22(d) shall be true and correct in all but de minimis respects as of the date of this Agreement and as of the applicable Closing Date as though made on and as of such date (except to the extent that any such representation or warranty speaks to an earlier date, in which case such representation or warranty shall be true and correct as of such earlier date); (2) the Company shall have performed in all material respects all obligations required to be performed by it pursuant to this Agreement prior to the Closing; (3) each Purchaser shall have received a certificate signed on behalf of the Company by a duly authorized senior executive officer of the Company, certifying to the effect that the conditions set forth in Sections 1.3(b)(1) and (2) have been satisfied; and (4) each condition set forth in paragraphs (a), (c), (d), and (e) of Section 2 of the Commitment Letter. (c) The obligation of the Company to effect each Closing is also subject to the satisfaction by the Purchasers or waiver by the Company prior to the Closing of the following conditions:

 
3 PHX 332633099v6 (1) the representations and warranties of the Purchasers set forth in Article III hereof shall be true and correct as of the date of this Agreement and as of the applicable Closing Date as though made on and as of such date (except to the extent that any such representation or warranty speaks of an earlier date, in which case such representation or warranty shall be true and correct as of such date), except where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the transactions contemplated by this Agreement or the ability of the Purchasers to fully perform their covenants and obligations under this Agreement; (2) the Purchasers shall have performed in all material respects all obligations required to be performed by them pursuant to this Agreement prior to the Closing; and (3) the Company shall have received a certificate signed on behalf of each Purchaser by a duly authorized officer of such Purchaser certifying to the effect that the conditions set forth in Section 1.3(c)(1) and (2) have been satisfied. ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY Except as expressly disclosed in the SEC Documents publicly available before the date of this Agreement (but excluding any disclosure set forth in any risk factor section, any disclosures in any section relating to forward-looking statements and any other disclosures included therein to the extent they are predictive or forward-looking in nature) or as set forth in a correspondingly identified section of a letter provided to the Purchasers by the Company on the date hereof (such letter, collectively, the “Disclosure Letter”), the Company represents and warrants to each Purchaser, as of the date hereof and as of each Closing Date (except to the extent made only as of a specified date, in which case as of such date), that: Section 2.1 Organization and Authority. (a) The Company is a corporation duly organized and validly existing under the laws of the State of Delaware, has all requisite corporate power and authority to own its properties and conduct its business as presently conducted, is duly qualified to do business and is in good standing in all jurisdictions where its ownership or leasing of property or the conduct of its business requires it to be so qualified and where failure to be so qualified would, individually or in the aggregate, have a Company Material Adverse Effect. True and accurate copies of the certificate of incorporation of the Company (the “Certificate of Incorporation”) and the bylaws of the Company (the “Bylaws”), each as in effect as of the date of this Agreement, have been made available to the Purchasers prior to the date hereof. (b) Each Company Subsidiary is duly organized and validly existing under the laws of its jurisdiction of organization, has all requisite corporate or other applicable entity power and authority to own its properties and conduct its business as presently conducted, is duly qualified to do business and is in good standing in all jurisdictions where its ownership or leasing of property or the conduct of its business requires it to be so qualified and where failure to be so qualified would, individually or in the aggregate, have a Company Material Adverse Effect. As used herein, “Subsidiary” means, with respect to any person, any corporation, partnership, joint venture, limited liability company, or other entity (i) of which such person or a subsidiary of such person is a general partner or (ii) of which a majority of the voting securities or other voting interests, or a majority of the securities or other interests which have by their terms ordinary voting power to elect a majority of the board of directors or persons performing

 
4 PHX 332633099v6 similar functions with respect to such entity, is directly or indirectly owned by such person and/or one or more subsidiaries thereof; and “Company Subsidiary” means any Subsidiary of the Company. Section 2.2 Capitalization. (a) The authorized capital stock of the Company consists of 105,000,000 shares of Common Stock and 15,005,000 shares of preferred stock, par value $0.01 per share, 5,000 of which shares of preferred stock are designated as Series A Redeemable Preferred Stock, 155,000 of which shares of preferred stock are designated as Series B Preferred Stock, 55,000 of which shares of preferred stock are designated as Series C Preferred Stock, 100 of which shares of preferred stock are designated as Series D Preferred Stock, 90,000 of which shares of preferred stock are designated as Series E Preferred Stock, 54,750 of which shares of preferred stock are designated as Series E-1 Preferred Stock, and 240,500 of which shares of preferred stock are designated as Series F Preferred Stock. As of the close of business on February 22, 2018 (the “Capitalization Date”), there were: 38,423,391 shares of Common Stock issued and outstanding and no shares of Series A Redeemable Preferred Stock issued and outstanding, 155,000 shares of Series B Preferred Stock issued and outstanding, 55,000 shares of Series C Preferred Stock issued and outstanding, 100 shares of Series D Preferred Stock issued and outstanding, 37,500 shares of Series E Preferred Stock issued and outstanding, no shares of Series E-1 Preferred Stock issued and outstanding, and no shares of Series F Preferred Stock issued and outstanding. As of the close of business on the Capitalization Date, (i) 1,249,533 shares of Common Stock were reserved for issuance upon the exercise of stock options outstanding on such date that were granted pursuant to the Company’s 2010 Incentive Compensation Plan (the “2010 Incentive Compensation Plan”), the Company’s Key Employee Equity Plan and the Group Transportation Services Holdings, Inc. Key Employee Equity Plan (“Company Stock Options”), of which 907,336 were then unvested, (ii) 357,629 shares of Common Stock were reserved for issuance upon the vesting of restricted stock units outstanding on such date that were granted pursuant to the 2010 Incentive Compensation Plan (“Company RSUs”), (iii) 71,829 shares of Common Stock were reserved for issuance pursuant to vested Company RSUs, (iv) 361,152 shares of Common Stock were reserved for issuance upon the vesting of performance-based restricted stock units outstanding on such date that were granted pursuant to the 2010 Incentive Compensation Plan (“Company PRSUs”) (at “target” levels of performance), (v) 558,956 shares of Common Stock were available for future awards under the 2010 Incentive Compensation Plan, (vi) 379,572 shares of Common Stock were reserved for issuance upon the exercise of warrants outstanding on such date that were granted to the Purchasers pursuant to the Warrant Agreement dated as of May 2, 2017 (the “Company Warrants”) and (vii) no shares of Common Stock were held by the Company in its treasury. All of the issued and outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights. From the Capitalization Date through and as of the date of this Agreement, no other shares of Common Stock or preferred stock have been issued other than shares of Common Stock issued in respect of the exercise of Company Stock Options or in respect of the vesting of Company RSUs or Company PRSUs in the ordinary course of business. Section 2.2(a) of the Disclosure Letter sets forth as of the Capitalization Date a complete and correct list of all outstanding (w) Company Stock Options, (x) Company RSUs, (y) Company PSRUs, and (z) Company Warrants, the number of shares of Common Stock issuable thereunder or with respect thereto and the exercise price (if any), and the Company has granted no other such awards since the Capitalization Date. The Company does not have outstanding shareholder purchase rights or a “poison pill” or any similar arrangement in effect. (b) Section 2.2(b) of the Disclosure Letter sets forth the name and jurisdiction of organization of each Company Subsidiary. All of the issued and outstanding shares of capital stock or other equity interests of each Company Subsidiary (x) have been duly authorized, are validly issued and are fully paid, nonassessable and free of preemptive rights and (y) are owned by the owners thereof as set out in Section 2.2(b) of the Disclosure Letter free and clear of any Liens. No Company Subsidiary has or is bound by any outstanding subscriptions, options, warrants, calls, commitments or agreements of any

 
5 PHX 332633099v6 character calling for the purchase or issuance of any shares of capital stock, any other equity security or any Voting Debt (as defined below) of each such Company Subsidiary or any securities representing the right to purchase or otherwise receive any shares of capital stock, any other equity security or Voting Debt of each such Company Subsidiary. (c) No bonds, debentures, notes or other Indebtedness having the right to vote (or convertible into or exchangeable for securities having the right to vote) on any matters on which the stockholders of the Company may vote (“Voting Debt”) are issued and outstanding. Except (i) pursuant to any cashless exercise provisions of any Company Stock Options or Company Warrants or pursuant to the surrender of shares to the Company or the withholding of shares by the Company to cover tax withholding obligations under Company Stock Options, Company RSUs or Company PRSUs, and (ii) as set forth in Section 2.2(a), the Company does not have and is not bound by any outstanding options, preemptive rights, rights of first offer, warrants, calls, commitments or other rights or agreements calling for the purchase or issuance of, or securities or rights convertible into, or exchangeable for, any shares of Common Stock or any other equity securities of the Company or Voting Debt or any securities representing the right to purchase or otherwise receive any shares of capital stock of the Company (including any rights plan or agreement). Section 2.3 Authorization. (a) The Company has the corporate power and authority to enter into this Agreement and the other Transaction Documents and to carry out its obligations hereunder and thereunder. The execution, delivery and performance of this Agreement and the other Transaction Documents by the Company and the consummation of the transactions contemplated hereby and thereby have been duly authorized by the board of directors of the Company (the “Board of Directors”). This Agreement has been, and (as of the first Closing) the other Transaction Documents will be, duly and validly executed and delivered by the Company and, assuming due authorization, execution and delivery by the Purchasers, this Agreement is, and (as of each Closing) each of the other Transaction Documents will be, a valid and binding obligation of the Company enforceable against the Company in accordance with its terms (except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles). No other corporate proceedings are necessary for the execution and delivery by the Company of this Agreement or the other Transaction Documents, and no other corporate proceedings (except to the extent set forth in the other Transaction Documents) are necessary for the performance by the Company of its obligations hereunder or thereunder or the consummation by it of the transactions contemplated hereby or thereby. The total number of directors on the Board of Directors is 12. (b) Neither the execution and delivery by the Company of this Agreement or the other Transaction Documents, nor the consummation of the transactions contemplated hereby or thereby, nor compliance by the Company with any of the provisions hereof or thereof, will (i) violate, conflict with, or result in a breach of any provision of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration of, or result in the creation of any Lien upon any of the properties or assets of any Company Group Member under any of the terms, conditions or provisions of (x) the Certificate of Incorporation, the Certificate of Designations, the Bylaws or the certificate of incorporation, charter, articles of association, bylaws or other governing instrument of any Company Subsidiary or (y) any note, bond, mortgage, indenture, deed of trust, license, lease, agreement or other instrument or obligation to which any Company Group Member is a party or by which it may be bound, or to which any Company Group Member or any of the properties or assets of any Company Group Member may be subject, or (ii) violate any law, statute, ordinance, rule, regulation, permit, franchise or any judgment, ruling, order, writ, injunction or decree applicable to any Company

 
6 PHX 332633099v6 Group Member or any of its respective properties or assets, except in the case of clauses (i)(y) and (ii) for such violations, conflicts and breaches as would not, individually or in the aggregate, have a Company Material Adverse Effect. (c) Other than the securities or blue sky laws of the various states, no notice to, registration, declaration or filing with, exemption or review by, or authorization, order, consent or approval of any Governmental Entity, nor expiration or termination of any statutory waiting period, is necessary for the consummation by the Company of the transactions contemplated by this Agreement or the other Transaction Documents except as would not, individually or in the aggregate, be materially adverse to the Company Group, taken as a whole. Section 2.4 Sale and Status of Securities. (a) Subject to the accuracy of the representations made by the Purchasers in Section 3.3, the offer, sale and issuance of the Purchased Shares (i) has been and will be made in compliance with applicable exemptions from the registration and prospectus delivery requirements of the Securities Act and (ii) will have been registered or qualified (or are exempt from registration and qualification) under the registration, permit or qualification requirements of all applicable material blue sky laws. (b) The rights, preferences, privileges and restrictions of the Preferred Stock are as stated in the Certificate of Incorporation and the Certificate of Designations. Section 2.5 SEC Documents; Financial Statements. (a) Except as set forth on Section 2.5 of the Disclosure Letter, the Company has filed all required reports, proxy statements, forms, and other documents with the Securities and Exchange Commission (the “SEC”) since January 1, 2016 (collectively, the “SEC Documents”). Each of the SEC Documents, as of its respective date, complied in all material respects with the requirements of the Securities Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such SEC Documents and, except as set forth on Section 2.5 of the Disclosure Letter, or to the extent that information contained in any SEC Document has been revised or superseded by a later filed SEC Document filed and publicly available prior to the date of this Agreement, none of the SEC Documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. (b) Except as set forth on Section 2.5 of the Disclosure Letter, the Company (i) has implemented and maintains disclosure controls and procedures (as defined in Rule 13a-15(e) under the Exchange Act) that are reasonably designed to ensure that material information relating to the Company Group is made known to the individuals responsible for the preparation of the Company’s filings with the SEC and (ii) has disclosed, based on its most recent evaluation prior to the date of this Agreement, to the Company’s outside auditors and the Board of Director’s audit committee (A) any significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act) that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls over financial reporting. (c) There is no transaction, arrangement or other relationship between the Company and/or any of its Subsidiaries and an unconsolidated or other off-balance sheet entity that is required to be disclosed by the Company in its SEC Documents and is not so disclosed.

 
7 PHX 332633099v6 (d) The Company has delivered to the Purchasers a copy of the Company’s audited financial statements as of and for the year ended December 31, 2016 and the Company will deliver to the Purchasers as soon as reasonably practicable a copy of the Company’s audited financial statements as of and for the year ended December 31, 2017 (the “Company Financial Statements”). The Company Financial Statements present fairly in all material respects the Company’s consolidated financial condition, results of operations and cash flows for the dates or periods indicated thereon. The Company Financial Statements have been prepared in accordance with U.S. generally accepted accounting principles (“GAAP”) applied in all material respects on a consistent basis throughout the periods indicated. Section 2.6 Undisclosed Liabilities. Except as set forth on Section 2.6 of the Disclosure Letter and except for (i) those liabilities that are reflected or reserved for in the Company Financial Statements, (ii) liabilities incurred since December 31, [2016] in the ordinary course of business consistent with past practice (it being agreed that a violation of Law in any material respect or a material litigation or other adverse proceeding shall not be deemed ordinary course), (iii) liabilities incurred pursuant to the transactions contemplated by this Agreement and the Transaction Documents and (iv) (x) liabilities that would be required to be included on a balance sheet prepared in accordance with GAAP that would not, individually or in the aggregate, be materially adverse to the Company Group, taken as a whole, and (y) other liabilities that would not, individually or in the aggregate, have a Company Material Adverse Effect, the Company Group does not have any liabilities or obligations of any nature whatsoever (whether accrued, absolute, contingent or otherwise). Section 2.7 Brokers and Finders. No Company Group Member and none of their respective officers, directors, employees or agents has employed any broker or finder or incurred any liability for any financial advisory fees, brokerage fees, commissions or finder’s fees, and no broker or finder has acted directly or indirectly for the Company in connection with this Agreement or the transactions contemplated hereby. Section 2.8 Litigation. Except as set forth on Section 2.8 of the Disclosure Letter, there is no action, suit, proceeding or investigation pending or, to the Knowledge of the Company, threatened in writing (including “cease and desist” letters or invitations to take patent license) against, nor any outstanding judgment, order, writ or decree against, any Company Group Member or any of its respective assets before or by any Governmental Entity which in the aggregate are, or if adversely determined, would reasonably be expected to be, materially adverse to the Company Group, taken as a whole. Except as would not, individually or in the aggregate, be materially adverse to the Company Group, taken as a whole, no Company Group Member is in default with respect to any judgment, order or decree of any Governmental Entity. Section 2.9 Taxes. (a) Except as would not, individually or in the aggregate, be materially adverse to the Company Group, taken as a whole: (1) Each Company Group Member has duly and timely filed (taking into account applicable extensions) all Tax Returns required to have been filed, such Tax Returns were accurate in all material respects, and all Taxes due and payable by the Company Group (whether or not shown on any Tax Return) have been timely paid, except for Taxes which are being contested in good faith and by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP;

 
8 PHX 332633099v6 (2) All Taxes required to be withheld, collected or deposited by or with respect to each Company Group Member have been timely withheld, collected or deposited as the case may be and, to the extent required, have been paid to the relevant taxing authority except with respect to matters for which adequate reserves have been established in accordance with GAAP; and (3) There are no liens or encumbrances for Taxes upon the assets of any Company Group Member except for statutory liens for current Taxes not yet due or liens for Taxes that are being contested in good faith and by appropriate proceedings and in respect of which adequate reserves have been established in accordance with GAAP. (b) Except as set forth on Section 2.9 of the Disclosure Letter, no unresolved material deficiencies for any Tax Returns referred to in Section 2.9(a)(1) have been proposed or assessed against or with respect to any Company Group Member (and there is no outstanding audit, assessment, dispute or claim concerning any material Tax liability of any Company Group Member pending or raised) in each case by any taxing authority in writing to any Company Group Member, except with respect to matters for which adequate reserves have been established in accordance with GAAP. (c) No Company Group Member has engaged in, or has any material liability or material obligation with respect to, any “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(c). (d) The Company has not been a “distributing corporation” or a “controlled corporation” in any distribution occurring during the last two (2) years intended to qualify under Section 355 of the Code. (e) Each Company Group Member is not and does not expect to become a “passive foreign investment company” within the meaning of Section 1297 of the Code. Section 2.10 Permits and Licenses. The members of the Company Group possess all certificates, authorizations, approvals, licenses and permits issued by each Governmental Entity necessary to conduct their respective businesses as presently conducted (the “Permits”), except where the failure to possess any such Permits would not, individually or in the aggregate, be materially adverse to the Company Group, taken as a whole. All material Permits are valid and in full force and effect, and no Company Group Member is in default under, or the subject of a proceeding for suspension, revocation or cancellation of, any of the Permits, except where the failure to possess any such Permits, individually or in the aggregate, would not reasonably be expected to be materially adverse to the Company Group, taken as a whole. The completion of the transactions contemplated by this Agreement will not result in any material Permit ceasing to be valid and in full force and effect, nor shall it result in any material Permit becoming liable for revocation, termination or cancellation. Section 2.11 Environmental Matters. The Company Group is, and since December 31, 2014 has been, in compliance with all applicable Environmental Laws, except where failure to be in such compliance would not, individually or in the aggregate, be materially adverse to the Company Group, taken as a whole. Since December 31, 2014, no Company Group Member has received from any person any written notice alleging that such Company Group Member is not in compliance with, or has material liability under, any Environmental Law, including any investigative, corrective or remedial obligation, other than any such violation or liability that has been fully and finally resolved and for which there are no additional obligations. There have been no Releases of or exposure to Hazardous Substances at any location that would reasonably be expected to result in material liability to the Company Group, taken as a whole.

 
9 PHX 332633099v6 Section 2.12 Title. Each Company Group Member (i) has good and marketable title to its property that is owned real property, (ii) has valid leases to its property that is leased real property and (iii) has good and valid title to or a valid leaseholder interest in all of its other property, other than negligible assets not material to the operations of any Company Group Member, in each case, except as would not, individually or in the aggregate, have or reasonably be expected to have a Company Material Adverse Effect. Section 2.13 Intellectual Property. Except as would not, individually or in the aggregate, be materially adverse to the Company Group, taken as a whole: (a) the Company Group exclusively owns, free and clear of all Liens (other than licenses of Intellectual Property and any restriction or covenant associated with any license of Intellectual Property), (i) all Intellectual Property for which registrations and applications have been filed in their names that are not expired or abandoned, which registrations are subsisting and unexpired, and valid and enforceable, and (ii) all of the other proprietary Intellectual Property used in the conduct of the business of the Company Group that is not used pursuant to a license; (b) the Company Group owns or has a valid right to use all Intellectual Property necessary and sufficient to conduct the business of the Company Group as presently conducted; (c) the conduct of the business of the Company Group does not infringe, dilute, misappropriate or otherwise violate the Intellectual Property of any third party, and, to the Knowledge of the Company, no person is infringing, diluting, misappropriating or otherwise violating any Intellectual Property owned by any Company Group Member; and (d) neither the Company Group nor any third Person working on behalf of them, has had a breach of security or an incident of unauthorized access, disclosure, use, corruption, destruction or loss of any data or non-public information that the Company Group (or a third Person on behalf of them) collects, stores, uses, maintains or transmits. Section 2.14 Employee Benefits/Labor. (a) Except as would not, individually or in the aggregate, have a Company Material Adverse Effect, (i) each Plan complies with, and has been operated and administered in compliance with, its terms and all applicable Laws (including ERISA and the Code and similar provisions of non-U.S. Law), (ii) the Company Group has filed all reports, returns, notices, and other documentation required by applicable Law (including ERISA and the Code and similar provisions of non-U.S. Law) to be filed with any Governmental Entity with respect to each Plan, (iii) with respect to any Plan, no actions, Liens, lawsuits, claims or complaints (other than routine claims for benefits, appeals of such claims and domestic relations order proceedings) are pending or, to the Knowledge of the Company, threatened, and, to the Knowledge of the Company, no facts or circumstances exist that would reasonably be expected to give rise to any such actions, Liens, lawsuits, claims or complaints, (iv) (x) none of the Plans are presently under audit or examination, nor is a potential audit or examination reasonably anticipated, by the Internal Revenue Service, the Department of Labor or any other Governmental Entity and (y) no event has occurred with respect to a Plan which would reasonably be expected to result in a liability of any Company Group Member to any Governmental Entity, and (v) all contributions and premiums required to have been paid by any Company Group Member to any Plan under the terms of any such plan or its related trust, insurance contract or other funding arrangement, or pursuant to any applicable Law (including ERISA and the Code and similar provisions of non-U.S. Law) have been paid within the time prescribed by any such plan, agreement or applicable Law.

 
10 PHX 332633099v6 (b) No Plan is an unfunded pension plan or other unfunded retirement or termination plan, whether or not subject to minimum funding standards under applicable Law. No Company Group Member maintains or contributes to, or has in the past sponsored, maintained or contributed to, any pension plan subject to Title IV of ERISA, including a Multiemployer Plan. Except as would not, individually or in the aggregate, be materially adverse to the Company Group, taken as a whole, no Company Group Member has incurred any unsatisfied liability (including withdrawal liability) in respect of any Multiemployer Plan. Except as would not, individually or in the aggregate, be materially adverse to the Company Group, taken as a whole, no liability under Title IV or Sections 302, 303 or 304 of ERISA or Sections 412, 430 or 431 of the Code or similar provisions of non-U.S. Law has been incurred by any Company Group Member, and no condition exists that would reasonably be expected to present a risk to any Company Group Member of incurring any such material liability, including as a consequence of being considered a single employer with any other person under Section 414 of the Code or Title IV of ERISA or a similar provision of non-U.S. Law. (c) Except as would not, individually or in the aggregate, be materially adverse to the Company Group, taken as a whole, none of the execution of, or the completion of the transactions contemplated by, this Agreement, will result in (i) severance pay or an increase in severance pay upon termination after Closing to any current or former employee of any Company Group Member, (ii) any payment or benefit becoming due, or increase in the amount of any payment or benefit due, to any current or former employee, director or independent contractor of any Company Group Member, (iii) acceleration of the time of payment or vesting or result in funding of compensation or benefits to any current or former employee, director or independent contractor of any Company Group Member, (iv) any new material obligation under any Plan, (v) any limitation or restriction on the right of any Company Group Member to merge, amend, or terminate any Plan, or (vi) any payments which would not be deductible under Section 280G of the Code or subject to Tax under Section 4999 of the Code. No Plan provides for reimbursement or gross-up of any excise tax under Section 409A or Section 4999 of the Code. (d) Except as would not, individually or in the aggregate, be materially adverse to the Company Group, taken as a whole, no Company Group Member is a party to or is otherwise bound by any collective bargaining agreement or similar agreement, and there are no labor unions or other organizations or groups representing, purporting to represent or attempting to represent any employees employed by the Company Group Member. Except as would not, individually or in the aggregate, have a Company Material Adverse Effect, (i) no labor strike, slowdown, work stoppage, picketing, dispute, lockout, concerted refusal to work overtime or other labor controversy is in effect or, to the Knowledge of the Company, threatened in writing with respect to employees of any Company Group Member, and no Company Group Member has experienced any such labor controversy within the past two (2) years, (ii) no action, complaint, charge, inquiry, proceeding or investigation by or on behalf of any current or former employee, labor organization (including any union or works council) or other representative of the employees of any Company Group Member (including persons employed jointly by such entities with any other staffing or other similar entity) is pending or, to the Knowledge of the Company, threatened in writing and (iii) the Company Group is in compliance with all applicable Laws, agreements, contracts, policies, plans and programs relating to employment, employment practices, compensation, benefits, profit sharing, wage and hours, terms and conditions of employment and termination of employment, including workplace discrimination, harassment, workers’ compensation, classification of workers (including classification as exempt or non-exempt or as employees or independent contractors), unlawful retaliation, the provision of meal and rest breaks, withholding of taxes, immigration, employee leave issues, plant closings and mass layoffs, occupational safety and health, fair labor standards. Section 2.15 Intentionally Omitted.

 
11 PHX 332633099v6 Section 2.16 Registration Rights. Except as set forth on Section 2.16 of the Disclosure Letter and except as provided in the Registration Rights Agreement, the Company has not granted or agreed to grant, and is not under any obligation to provide, any rights to register under the Securities Act any of its presently outstanding securities or any of its securities that may be issued subsequently. Section 2.17 Compliance with Laws. Except as set forth on Section 2.17 of the Disclosure Letter and except as would not, individually or in the aggregate, be materially adverse to the Company Group, taken as a whole, no Company Group Member is, or since December 31, 2014 has been, in violation of any applicable Law. No Company Group Member is being investigated with respect to any applicable Law, except for such of the foregoing as would not, individually or in the aggregate, be materially adverse to the Company Group, taken as a whole. Section 2.18 Absence of Changes. Since January 1, 2018, each Company Group Member has operated in the ordinary course of business consistent with past practice. Section 2.19 Anti-Corruption. (a) Each Company Group Member and each of its respective officers, directors, employees, agents, distributors and other Persons acting for or on behalf of any Company Group Member (collectively, the “Relevant Persons”) have not directly or indirectly violated or taken any act in furtherance of violating any provision of the U.S. Foreign Corrupt Practices Act of 1977 (as amended), the U.K. Bribery Act 2010 or any other anti-corruption or anti-bribery Laws applicable to any Company Group Member except for such of the foregoing as would not, individually or in the aggregate, be materially adverse to the Company Group, taken as a whole. (b) Except as would not, individually or in the aggregate, be materially adverse to the Company Group, taken as a whole, the Relevant Persons have not directly or indirectly taken any act in furtherance of any payment, gift, bribe, rebate, loan, payoff, kickback or any other transfer of value, or offer, promise or authorization thereof, to any Person, including any Government Official, for the purpose of: (i) improperly influencing or inducing such Person to do or omit to do any act or to make any decision in an official capacity or in violation of a lawful duty; (ii) inducing such Person to influence improperly his or her or its employer, public or private, or any Governmental Entity, to affect an act or decision of such employer or Governmental Entity, including to assist any Person in obtaining or retaining business; or (iii) securing any improper advantage. (c) None of the officers, directors, employees or other Persons acting for or on behalf of any Company Group Member is a Government Official or consultant to any Government Official, and there is no existing family relationship between any officer, director or, to the Knowledge of the Company, any employee or other Person acting for or on behalf of any Company Group Member and any Government Official. (d) None of the executive officers or directors of the Company nor any of the other Relevant Persons have, directly or indirectly: (i) circumvented the internal accounting controls of any Company Group Member; (ii) falsified any of the books, records or accounts of any Company Group Member; or (iii) made false or misleading statements to, or attempted to coerce or fraudulently influence, an accountant in connection with any audit, review or examination of the financial statements of any Company Group Member.

 
12 PHX 332633099v6 Section 2.20 Trade Controls. (a) The Relevant Persons have not in the course of their actions for, or on behalf of, any Company Group Member engaged directly or indirectly in transactions: (i) connected with any of North Korea, Crimea, Cuba, Iran, Syria, Myanmar or Sudan; or (ii) connected with any government, country or other entity or Person that is the target of U.S. economic sanctions administered by the U.S. Treasury Department Office of Foreign Assets Control (“OFAC”) or by Her Majesty’s Treasury in the U.K., or the target of any applicable U.N., E.U. or other international sanctions regime, including any transactions with specially designated nationals or blocked persons designated by OFAC or with persons on any U.N., E.U. or U.K. assets freeze list; or (iii) that is prohibited by any law administered by OFAC, or by any other economic or trade sanctions law of the U.S. or any other jurisdiction. (b) None of the Company’s executive officers or directors nor, to the Knowledge of the Company, any other Relevant Person is a person whose property or interests in property are blocked or frozen under the economic sanctions laws of the U.S., the E.U. or any other jurisdiction; and no Relevant Person is designated as a denied person by the U.S. Commerce Department Bureau of Industry and Security or as a debarred party by the U.S. State Department’s Directorate of Defense Trade Control. Section 2.21 Listing and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and the Company has taken no action designed to, or which to the Knowledge of the Company is reasonably likely to, have the effect of terminating the registration of the Common Stock under the Exchange Act nor has the Company received since December 31, 2014 any written notification that the SEC intends to terminate such registration or from the NYSE that it intends to delist the Company. Section 2.22 Material Contracts. (a) Except as would not, individually or in the aggregate, be materially adverse to the Company Group, taken as a whole, each Material Contract is in full force and effect and constitutes a legal, valid and binding agreement of the Company or a Company Subsidiary (as applicable) enforceable against the Company or a Company Subsidiary (as applicable) and, to the Knowledge of the Company, the other parties thereto in accordance with its terms except as such enforceability may be limited by bankruptcy, insolvency, moratorium and other requirement of applicable Law affecting creditor’s rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity). (b) Except as would not, individually or in the aggregate, be materially adverse to the Company Group, taken as a whole, neither the Company nor any Company Subsidiary nor, to the Knowledge of the Company, any other party to any Material Contract is in breach or default under any such Material Contract, and no event has occurred that, with the giving of notice or the lapse of time or both, would constitute a breach or default under any such Material Contract by the Company or any Company Subsidiary that would permit the other party to terminate such Material Contract. (c) True and complete copies of each Material Contract relating to Indebtedness have been made available to the Purchasers prior to the date hereof. Except as provided in the Credit Agreement, no such Material Contract imposes any limitation on the payment of dividends at the Minimum Dividend Rate (as defined in the Certificate of Designations) as contemplated to be paid under the terms of the Certificate of Designations. (d) No “Default” (as such term is defined in the Credit Agreement) or “Triggering Event” (as such term is defined in the Preferred Stock CODs) (i) has occurred and is continuing or (ii) would result

 
13 PHX 332633099v6 from the execution and delivery by the Company of this Agreement or the other Transaction Documents, the consummation of the transactions contemplated hereby or thereby or compliance by the Company with any of the provisions hereof or thereof. The Company has received all applicable approvals required under the Credit Agreement in connection with the execution and delivery by the Company of this Agreement and the other Transaction Documents, the consummation of the transactions contemplated hereby and thereby and compliance by the Company with the provisions hereof and thereof. Section 2.23 Insurance. (a) Except as would not, individually or in the aggregate, be materially adverse to the Company Group, taken as a whole, (i) the third party insurance policies of the Company Group are in full force and effect in accordance with their terms and no Company Group Member is in default under the terms of any such policy and (ii) to the Knowledge of the Company, as of the date hereof, there is no threatened termination of, or threatened premium increase with respect to, any of such policies. (b) Except (i) as would not, individually or in the aggregate, be materially adverse to the Company Group, taken as a whole, or (ii) as set forth in Section 2.23(b) of the Disclosure Letter, (x) there is no claim pending under any of the Company Group’s insurance policies that has been denied, rejected, questioned or disputed by any insurer or as to which any insurer has made any reservation of rights or refused to cover all or any portion of such claims and (y) since December 31, 2014, all claims, actions, suits, proceedings, arbitrations, mediations or investigations, whether civil, criminal, administrative or investigative, covered by the Company Group’s insurance policies have been properly reported to and accepted by the applicable insurer. Section 2.24 No Additional Representations. Except for the representations and warranties made by the Company in this Article II, neither the Company nor any other person makes any express or implied representation or warranty with respect to any Company Group Member or their respective businesses, operations, assets, liabilities, employees, employee benefit plans, conditions or prospects in connection with the transactions contemplated hereby, and the Company hereby disclaims any such other representations or warranties. In particular, without limiting the foregoing disclaimer, neither the Company nor any other person makes or has made any representation or warranty to the Purchasers, or any of their Affiliates or representatives, with respect to (i) any financial projection, forecast, estimate, budget or prospect information relating to any Company Group Member or its respective business, or (ii) except for the representations and warranties made by the Company in this Article II, any oral or written information presented to the Purchasers or any of their Affiliates or representatives in the course of their due diligence investigation of the Company, the negotiation of this Agreement or in the course of the transactions contemplated hereby. Notwithstanding anything to the contrary herein, nothing in this Agreement shall limit the right of each Purchaser and its Affiliates to rely on the representations, warranties, covenants and agreements expressly set forth in this Agreement or in any certificate delivered pursuant hereto, nor will anything in this Agreement operate to limit any claim by such Purchaser or any of its Affiliates for fraud. ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS Each Purchaser hereby represents and warrants to the Company, as of the date hereof and as of each Closing Date (except to the extent made only as of a specified date, in which case as of such date), that:

 
14 PHX 332633099v6 Section 3.1 Organization and Authority. Such Purchaser is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, is duly qualified to do business and is in good standing in all jurisdictions where its ownership or leasing of property or the conduct of its business requires it to be so qualified and where failure to be so qualified would reasonably be expected to materially and adversely affect such Purchaser’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby on a timely basis, and such Purchaser has the power and authority and governmental authorizations to own its properties and assets and to carry on its business as it is now being conducted. Section 3.2 Authorization. (a) Such Purchaser has the power and authority to enter into this Agreement and to carry out its obligations hereunder. The execution, delivery and performance of this Agreement and the other Transaction Documents by such Purchaser and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all requisite action on the part of such Purchaser, and no further approval or authorization by any of its stockholders, partners, members or other equity owners, as the case may be, is required. This Agreement has been, and (as of the first Closing) the other Transaction Documents will be, duly and validly executed and delivered by such Purchaser and, assuming due authorization, execution and delivery by the Company, this Agreement is, and (as of each Closing) each of the other Transaction Documents will be, a valid and binding obligation of such Purchaser enforceable against such Purchaser in accordance with its terms (except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles). (b) None of the execution, delivery and performance by such Purchaser of this Agreement or the other Transaction Documents, the consummation of the transactions contemplated hereby or thereby, or compliance by such Purchaser with any of the provisions hereof or thereof, will (i) violate, conflict with, or result in a breach of any provision of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration of, or result in the creation of any Lien upon any of the properties or assets of such Purchaser under any of the terms, conditions or provisions of (x) its governing instruments, (y) any note, bond, mortgage, indenture, deed of trust, license, lease, agreement or other instrument or obligation to which such Purchaser is a party or by which it may be bound, or to which such Purchaser or any of the properties or assets of such Purchaser may be subject or (z) any rule of the NYSE applicable to the Company, or (ii) subject to compliance with the statutes and regulations referred to in the next paragraph, violate any law, statute, ordinance, rule or regulation, permit, concession, grant, franchise or any judgment, ruling, order, writ, injunction or decree applicable to such Purchaser or any of its respective properties or assets except in the case of clauses (i)(y) and (ii) for such violations, conflicts and breaches as would not reasonably be expected to materially and adversely affect such Purchaser’s ability to perform its respective obligations under this Agreement or consummate the transactions contemplated hereby on a timely basis. (c) Other than the securities or blue sky laws of the various states, no notice to, registration, declaration or filing with, exemption or review by, or authorization, order, consent or approval of, any Governmental Entity, nor expiration or termination of any statutory waiting period, is necessary for the consummation by such Purchaser of the transactions contemplated by this Agreement. Section 3.3 Purchase for Investment. Such Purchaser acknowledges that the offer and sale of the Purchased Shares have not been registered under the Securities Act or under any state securities laws. Such Purchaser (i) acknowledges that it is acquiring the Purchased Shares pursuant to an exemption from registration under the Securities Act solely for investment with no present intention to distribute any of

 
15 PHX 332633099v6 the Purchased Shares to any person in violation of applicable securities laws, (ii) will not sell or otherwise dispose of any of the Purchased Shares, except in compliance with the registration requirements or exemption provisions of the Securities Act and any other applicable securities laws, (iii) without limiting the representations and warranties in Article II hereof has such knowledge and experience in financial and business matters and in investments of this type that it is capable of evaluating the merits and risks of its investment in the Purchased Shares and of making an informed investment decision, (iv) is an “accredited investor” (as that term is defined by Rule 501 of the Securities Act), (v) is a “qualified institutional buyer” (as that term is defined in Rule 144A of the Securities Act), and (vi) without limiting the representations and warranties in Article II hereof (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the Purchased Shares, (B) has had an opportunity to discuss with management of the Company the intended business and financial affairs of the Company and to obtain information (to the extent the Company possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access and (C) can bear the economic risk of (x) an investment in the Purchased Shares indefinitely and (y) a total loss in respect of such investment. Section 3.4 Financial Capability. Such Purchaser currently has, and at each Closing will have, available funds necessary to consummate the Closing on the terms and conditions contemplated by this Agreement. Such Purchaser is not aware as of the date hereof of any reason why the funds sufficient to fulfill its obligations under Article I will not be available on the applicable Closing Date. Section 3.5 Brokers and Finders. Neither such Purchaser nor its Affiliates or any of their respective officers, directors, employees or agents has employed any broker or finder for which the Company will incur any liability for any financial advisory fees, brokerage fees, commissions or finder’s fees, and no broker or finder has acted directly or indirectly for such Purchaser in connection with this Agreement or the transactions contemplated hereby. ARTICLE IV COVENANTS Section 4.1 Filings; Other Actions. Promptly after the date hereof, each of the Purchasers, on the one hand, and the Company, on the other hand, will cooperate and consult with the other and use reasonable best efforts to prepare and file all necessary documentation, to effect all necessary applications, notices, petitions, filings and other documents, and to obtain all necessary permits, consents, orders, approvals and authorizations of, or any exemption by, all third parties and Governmental Entities, and the expiration or termination of any applicable waiting period, necessary or advisable to consummate the transactions contemplated by this Agreement, and to perform the covenants contemplated by this Agreement; provided that all expenses associated with any of the foregoing shall be borne by the Company. Each party shall execute and deliver both before and after each Closing such further certificates, agreements and other documents and take such other actions as the other parties may reasonably request to consummate or implement such transactions or to evidence such events or matters. The Purchasers and the Company will have the right to review in advance, and to the extent practicable each will consult with the others, in each case subject to applicable laws relating to the exchange of information, all the information relating to such other party, and any of their respective Affiliates, which appears in any filing made with, or written materials submitted to, any third party or any Governmental Entity in connection with the transactions contemplated by this Agreement. In exercising the foregoing right, each of the parties hereto agrees to act reasonably and as promptly as reasonably practicable. Each party hereto agrees to keep the other party reasonably apprised of the status of matters referred to in this Section 4.1. Each Purchaser shall promptly furnish the Company, and the Company shall promptly

 
16 PHX 332633099v6 furnish each Purchaser, to the extent permitted by Law, with copies of written communications received by it or its Subsidiaries from any Governmental Entity in respect of the transactions contemplated by this Agreement. Notwithstanding anything herein to the contrary, under no circumstances shall any Company Group Member or any Purchaser be required to (x) make any payment to any person to secure such person’s consent, approval or authorization (excluding any applicable filing fees or other de minimis expenses that are required to be paid by the Company) or (y) proffer to, or agree to, license, dispose of, sell or otherwise hold separate or restrict the operation of any of its assets, operations or other rights. Section 4.2 Reasonable Best Efforts to Close. Promptly after the date hereof, the Company and the Purchasers will use reasonable best efforts in good faith to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary under applicable laws so as to permit consummation of the transactions contemplated hereby as promptly as practicable and otherwise to enable consummation of the transactions contemplated hereby and shall cooperate reasonably with the other party hereto to that end, including in relation to the satisfaction of the conditions to each Closing set forth in Sections 1.3(a), (b) and (c) and cooperating in seeking to obtain any consent required from Governmental Entities; provided that neither Purchaser shall be obligated to undertake any monetary obligation or waive or modify any term of this Agreement in connection with the foregoing. Section 4.3 Confidentiality. Each party to this Agreement will hold, and will cause its respective Affiliates and their respective directors, managers, officers, employees, agents, consultants and advisors to hold, in strict confidence, unless disclosure to a regulatory authority is necessary in connection with any necessary regulatory approval, examination or inspection, or unless disclosure is required by judicial or administrative process or by other requirement of law or the applicable requirements of any regulatory agency or relevant stock exchange (in which case, other than in connection with a disclosure in connection with a routine audit or examination by, or document request from, a regulatory or self- regulatory authority, bank examiner or auditor, the party disclosing such information shall provide the other party with prior written notice of such permitted disclosure), all non-public records, books, contracts, instruments, computer data and other data and information (collectively, “Information”) concerning the other party hereto furnished to it by or on behalf of such other party or its representatives pursuant to this Agreement (except to the extent that such information can be shown to have been (a) previously known by such party from other sources, provided that such source was not known by such party to be bound by a contractual, legal or fiduciary obligation of confidentiality to the other party, (b) in the public domain through no violation of this Section 4.3 by such party or (c) later lawfully acquired from other sources by the party to which it was furnished), and neither party hereto shall release or disclose such Information to any other person, except its auditors, attorneys, financial advisors, financing sources and other consultants and advisors. Notwithstanding the foregoing, each Purchaser may disclose Information to the extent provided by the Stockholders’ Agreement. Section 4.4 State Securities Laws. During the Pre-Closing Period and during the period prior to each Closing after the first Closing, the Company shall use its reasonable best efforts to (a) obtain all necessary permits and qualifications, if any, or secure an exemption therefrom, required by any state securities laws prior to the offer and sale of the Purchased Shares and (b) cause such authorization, approval, permit or qualification to be effective as of the relevant Closing. Section 4.5 Tax Matters. (a) The Company shall pay any and all documentary, stamp and similar issue or transfer tax due upon the issuance of the Purchased Shares, and the Company will, at its own expense, file all necessary Tax returns and other documentation with respect to all such Taxes and fees and, if required by law, each Purchaser will, and will cause its Affiliates to, join in the execution of any such Tax returns and other documentation.

 
17 PHX 332633099v6 (b) Unless required as a result of a change in law, (i) the Company shall not treat the Purchased Shares as giving rise to dividends for U.S. federal income tax purposes pursuant to Section 305 of the Code prior to the time that any such dividends are actually declared by the Company (other than the accrual of an amount equal to the excess of the redemption price over the issue price of the Purchased Shares), (ii) for so long as Brockdale Investments LP (as holder of a majority of the Preferred Stock) has the ability to appoint two or more people to the Board of Directors, the Company shall treat Brockdale Investments LP as directly owning at least 10% of the voting stock of the Company for purposes of the tax treaty between the U.S. and Luxembourg, and (iii) unless the Purchasers and their Affiliates, in the aggregate, own 50% or more of the Company’s common stock (as measured by value), the Company shall treat amounts paid to each Purchaser (other than the amount equal to the excess of the redemption price over the issue price of the Purchased Shares that had not previously been accrued) in partial or complete redemption of each class of Preferred Stock as a payment in exchange for such Preferred Stock pursuant to Section 302 of the Code. (c) As and when reasonably requested by any Purchaser, the Company agrees to provide prompt assistance (including, if applicable, by providing withholding certificates) in connection with determinations by such Purchaser of whether specified shares of Common Stock or shares of Preferred Stock that such Purchaser holds or has held constitute a “United States real property interest” under Section 897 of the Code. (d) At the time of any distribution with respect to or redemption of Preferred Stock, if requested by a Purchaser the Company shall provide the Purchasers with a good faith estimate of the Company’s (i) accumulated earnings and profits for U.S. federal income tax purposes for prior taxable years and (ii) expected earnings and profits for the taxable year in which such distribution or redemption occurs. The Company shall provide each Purchaser with the Company’s good faith estimated calculation of the current and accumulated earnings and profits of the Company for U.S. federal income tax purposes with respect to each taxable year of the Company in which any such distribution or redemption occurs by February 28 of the immediately following taxable year. ARTICLE V MISCELLANEOUS Section 5.1 Survival. The representations and warranties of the parties contained in this Agreement shall survive for twelve (12) months following the last Closing, except that (i) the representations and warranties of the Company contained in Sections 2.1(a), 2.2(b), 2.2(c), 2.3(a) and Section 2.4 will survive until the expiration of the applicable statutes of limitation and (ii) the representations and warranties of the Company contained in Section 2.2(a) will survive indefinitely. The covenants or other agreements of the parties that contemplate performance or fulfillment thereof prior to a Closing shall survive for six (6) months following such Closing. The covenants or other agreements of the parties that contemplate performance or fulfillment thereof at or following a Closing shall survive such Closing until fully performed or fulfilled, unless and to the extent that non-compliance with such covenants or agreements is waived in writing by the party entitled to such performance. Section 5.2 Reserved. Section 5.3 Amendment; Waiver. No amendment or waiver of any provision of this Agreement will be effective with respect to any party unless made in writing and signed by an officer or duly authorized representative of such party. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or

 
18 PHX 332633099v6 privilege. The conditions to each party’s obligation to consummate a Closing are for the sole benefit of such party and may be waived by such party in whole or in part to the extent permitted by applicable law. No waiver of any party to this Agreement will be effective unless it is in a writing signed by a duly authorized officer of the waiving party that makes express reference to the provision or provisions subject to such waiver. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law. Section 5.4 Counterparts; Electronic Transmission. For the convenience of the parties hereto, this Agreement may be executed in any number of separate counterparts, each such counterpart being deemed to be an original instrument, and all such counterparts will together constitute the same agreement. Executed signature pages to this Agreement may be delivered by facsimile or other means of electronic transmission and such facsimiles or other means of electronic transmission will be deemed as sufficient as if actual signature pages had been delivered. Section 5.5 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of Laws of another jurisdiction. The parties hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the state and federal courts located in the Borough of Manhattan, State of New York for any actions, suits or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby. The parties hereby irrevocably and unconditionally consent to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such action, suit or proceeding and irrevocably waive, to the fullest extent permitted by law, any objection that they may now or hereafter have to the laying of the venue of any such action, suit or proceeding in any such court or that any such action, suit or proceeding which is brought in any such court has been brought in an inconvenient forum. Process in any such action, suit or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each party agrees that service of process on such party as provided in Section 5.7 shall be deemed effective service of process on such party. Section 5.6 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. Section 5.7 Notices. Any notice, request, instruction or other document to be given hereunder by any party to the other will be in writing and will be deemed to have been duly given (a) on the date of delivery if delivered personally or by telecopy, facsimile or electronic mail, upon confirmation of receipt, (b) on the first (1st) business day following the date of dispatch if delivered by a recognized next-day courier service, or (c) on the third (3rd) business day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid. All notices hereunder shall be delivered as set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice. (a) If to any or all of the Purchasers: c/o Elliott Management Corporation 40 West 57th Street New York, NY 10019 Attn: Elliot Greenberg Fax: (212) 478-2371

 
19 PHX 332633099v6 Email: egreenberg@elliottmgmt.com with a copy to (which copy alone shall not constitute notice): Debevoise & Plimpton LLP 919 Third Avenue New York, New York 10022 Attn: Kevin M. Schmidt Fax: (212) 521-7178 Email: kmschmidt@debevoise.com (b) If to the Company: Roadrunner Transportation Systems, Inc. 4900 South Pennsylvania Ave. Cudahy, WI 53110 Attn: Curtis W. Stoelting Fax: (630) 968-0509 Email: cstoelting@rrts.com with a copy to (which copy alone shall not constitute notice): Greenberg Traurig, LLP 2375 E. Camelback Road Suite 700 Phoenix, Arizona 85016 Attn: Bruce E. Macdonough Fax: (602) 445-8618 Email: macdonoughb@gtlaw.com Section 5.8 Entire Agreement. This Agreement (including the Exhibits hereto and the Disclosure Letter) and the Commitment Letter constitute the entire agreement, and supersede all other prior agreements, understandings, representations and warranties, both written and oral, among the parties, with respect to the subject matter hereof. Section 5.9 Assignment. Neither this Agreement, nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto (whether by operation of Law or otherwise) without the prior written consent of the other party; provided that each Purchaser (or any Permitted Transferee) may assign its rights, interests and obligations under this Agreement, in whole or in part, (i) if prior to a Closing, to one or more Permitted Transferees, (provided that no such assignment will relieve such Purchaser of its obligations hereunder prior to such Closing) and, (ii) if following a Closing, to any transferee of shares of Preferred Stock (subject to the Stockholders’ Agreement); provided, however, that in the event of any such assignment, the assignee shall agree in writing to be bound by the provisions of this Agreement, including the rights, interests and obligations so assigned. Section 5.10 Interpretation; Other Definitions. Wherever required by the context of this Agreement, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter genders and vice versa and, unless specified otherwise, references to any agreement, document or instrument shall be deemed to refer to such agreement, document or instrument as amended, supplemented or modified from time to time. All article, section, paragraph or clause references not attributed to a particular document shall be references to such parts of this Agreement, and all exhibit,

 
20 PHX 332633099v6 annex, letter and schedule references not attributed to a particular document shall be references to such exhibits, annexes, letters and schedules to this Agreement. In addition, the following terms are ascribed the following meanings: (1) the term “business day” means any day that is not a Saturday, a Sunday and any other day on which banks are required or authorized by law or other governmental action to be closed in New York City; (2) the terms “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision; (3) the words “including,” “includes,” “included” and “include” are deemed to be followed by the words “without limitation”; (4) the word “or” is not exclusive; and (5) the term “person” has the meaning given to it in Section 3(a)(9) of the Exchange Act and as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act. (6) “2010 Incentive Compensation Plan” has the meaning set forth in Section 2.2(a). (7) “Affiliate” means, with respect to any person, any other person directly or indirectly controlling, controlled by or under common control with such person; provided, that (i) portfolio companies in which any person or any of its Affiliates has an investment shall not be deemed an Affiliate of such person, (ii) no Company Group Member, and none of the Company’s other controlled Affiliates, will be deemed to be Affiliates of any Purchaser for purposes of this Agreement and (iii) each Company Subsidiary shall be deemed an Affiliate of the Company and of each other Company Subsidiary. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), when used with respect to any person, means the possession, directly or indirectly, of the power to cause the direction of management or policies of such person, whether through the ownership of voting securities, by contract or otherwise. (8) “Agreement” has the meaning set forth in the Preamble. (9) “Board of Directors” has the meaning set forth in Section 2.3(a). (10) “Bylaws” has the meaning set forth in Section 2.1(a). (11) “Capitalization Date” has the meaning set forth in Section 2.2(a). (12) “Capitalized Lease Obligations” means an obligation that is required to be classified as, and expenses in respect of which are recognized as for, a capitalized lease for income statement reporting purposes in accordance with GAAP. (13) “Certificate of Designations” has the meaning set forth in the Recitals. (14) “Certificate of Incorporation” has the meaning set forth in Section 2.1(a). (15) “Closing” has the meaning set forth in Section 1.2(a).

 
21 PHX 332633099v6 (16) “Closing Date” has the meaning set forth in Section 1.2(a). (17) “Code” means the United States Internal Revenue Code of 1986, as amended. (18) “Commitment Letter” means that certain letter agreement, dated January 30, 2018, by and among the Company and the Purchasers. (19) “Common Stock” has the meaning set forth in the Recitals. (20) “Company” has the meaning set forth in the Preamble. (21) “Company Financial Statements” has the meaning set forth in Section 2.5(d). (22) “Company Group” means the Company and the Company Subsidiaries from time to time. (23) “Company Group Member” means any corporation, partnership, joint venture, limited liability company, unincorporated association, trust or other entity within the Company Group. (24) “Company Material Adverse Effect” means, with respect to the Company, any Effect that is or is reasonably likely to be materially adverse to the business, assets, liabilities, results of operations or financial condition of the Company Group, taken as a whole; provided, however, that in no event shall any of the following occurring after the date hereof, alone or in combination, be deemed to constitute, or be taken into account in determining whether a Company Material Adverse Effect has occurred: (A) any decrease in the market price of the Company’s Common Stock on the NYSE, (B) any failure by the Company to meet any public revenue or earnings projections, (C) any Effect that results from changes affecting the industry in which the Company operates, or the United States economy generally, or any Effect that results from changes affecting general worldwide economic or capital market conditions, (D) any Effect caused by the announcement or pendency of the transactions contemplated by this Agreement (or the identity of the Purchasers or any of their Affiliates as the purchaser of the Purchased Shares pursuant to the transactions contemplated by this Agreement); (E) acts of war or terrorism or natural disasters, (F) the performance of this Agreement and the transactions contemplated hereby, including compliance with the covenants set forth herein, or any actions or omissions of the Company taken or omitted at the written request of the Purchasers; (G) changes in GAAP or other accounting standards (or any interpretation thereof) or (H) changes in any Laws or other binding directives issued by any Governmental Entity or interpretations or enforcement thereof; provided, however, that (x) the exceptions in clause (A) and (B) shall not prevent or otherwise affect a determination that any Effect underlying such change or failure has resulted in, or contributed to, a Company Material Adverse Effect, (y) with respect to clauses (C), (E), (G) and (H), such Effects, alone or in combination, may be deemed to constitute, or be taken into account in determining whether a Company Material Adverse Effect has occurred to the extent such Effects disproportionately affect the Company Group, taken as a whole, relative to other companies operating in the same industry as the Company Group. (25) “Company PRSUs” has the meaning set forth in Section 2.2(a). (26) “Company RSUs” has the meaning set forth in Section 2.2(a). (27) “Company Stock Options” has the meaning set forth in Section 2.2(a). (28) “Company Subsidiary” has the meaning set forth in Section 2.1(b).

 
22 PHX 332633099v6 (29) “Company Warrants” has the meaning set forth in Section 2.2(a). (30) “Contract” means any written or oral agreement, arrangement, commitment or other instrument or obligation. (31) “Credit Agreement” means the Credit Agreement, dated as of July 21, 2017, by and among (i) the Company, (ii) the “Borrowers”, the “Subsidiary Guarantors” and the “Lenders” named therein and (iii) BMO Harris Bank, N.A., as Administrative Agent, Swing Line Lender and a Letter of Credit Issuer, as amended from time to time. (32) “Credit Documents” means, with respect to the Credit Facility, the Credit Agreement and all guarantees, security agreements, mortgages, deeds of trust, letters of credit, reimbursement agreements, waivers and amendments and all other Contracts and documents executed and delivered in connection therewith. (33) “Credit Facility” means the credit facility governed by the Credit Agreement and the related Credit Documents. (34) “Disclosure Letter” has the meaning set forth in Article II. (35) “Effect” means any change, event, effect, state of facts, occurrence, development or circumstance. (36) “Environmental Law” means any Laws regulating, relating to or imposing standards of conduct concerning protection of natural resources, the environment or of human health and safety. (37) “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and all rules, regulations, rulings and interpretations adopted by the Internal Revenue Service or the Department of Labor thereunder. (38) “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, as the same may be amended from time to time. (39) “GAAP” has the meaning set forth in Section 2.5(d). (40) “Government Official” means any (i) officer, employee or other Person acting for or on behalf of any Governmental Entity or public international organization or (ii) holder of, or candidate for, public office, political party or official thereof or member of a royal family, or any other Person acting for or on behalf of the foregoing. (41) “Governmental Entity” means any transnational, multinational, domestic or foreign federal, state, provincial or local governmental, regulatory or administrative authority, instrumentality, department, court, arbitrator, agency, commission or official, including any political subdivision thereof, any state-owned or state-controlled enterprise, or any non-governmental self-regulatory agency, commission or authority. (42) “Hazardous Substances” means any gasoline or petroleum (including crude oil or any fraction thereof) or petroleum products, polychlorinated biphenyls, urea-formaldehyde insulation, asbestos, pollutants, contaminants and any other substances that are regulated pursuant to, or could give rise to liability under, any Environmental Law.

 
23 PHX 332633099v6 (43) “HSR Act” means Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended. (44) “Indebtedness” means, with respect to any person, without duplication, (i) all obligations of such person for borrowed money (including accrued and unpaid interest and the full redemption value of any premiums, costs or penalties associated with repaying such obligations), or with respect to deposits or advances of any kind, (ii) all obligations of such person evidenced by bonds, debentures, notes or similar instruments, (iii) all obligations of such person upon which interest charges are customarily paid (other than trade payables incurred in the ordinary course of business consistent with past practice), (iv) all obligations of such person under conditional sale or other title retention agreements relating to any property purchased by such person, (v) all obligations of such person incurred or assumed as the deferred purchase price of property or services (excluding obligations of such person to creditors for raw materials, inventory, services and supplies incurred in the ordinary course of business consistent with past practice), (vi) all Capitalized Lease Obligations, (vii) all obligations of others secured by a Lien on property or assets owned or acquired by such person, whether or not the obligations secured thereby have been assumed, (viii) all obligations of such person under interest rate, currency or commodity derivatives or hedging transactions, (ix) all letters of credit or performance bonds issued for the account of such person (excluding (A) letters of credit issued for the benefit of suppliers to support accounts payable to suppliers incurred in the ordinary course of business consistent with past practice, (B) standby letters of credit relating to workers’ compensation insurance and (C) surety bonds and customs bonds) and (x) all guaranties and arrangements having the economic effect of a guaranty by such person of any Indebtedness of any other person. (45) “Information” has the meaning set forth in Section 4.3. (46) “Intellectual Property” means all worldwide intellectual and industrial property rights, including (i) patents, utility models, and all renewals, re-examinations, re-issues, divisions, extensions, provisionals, continuations and continuations-in part thereof, (ii) trademarks, service marks, trade names, corporate names, trade dress, domain names, social media usernames and other source indicators (and all goodwill relating thereto), (iii) copyrights and rights in copyrightable subject matter in published and unpublished works of authorship, (iv) rights in Software, (v) all registrations and applications to register or renew the registrations of any of the foregoing, (vi) inventions, know-how, trade secrets, methods, processes, formulae, models, tools, technical or proprietary information, and technology, and (vii) all other intellectual property rights. (47) “Knowledge of the Company” means the knowledge, after reasonable inquiry, of the individuals set forth in Section 5.10(47) of the Disclosure Letter. (48) “Law” or “Laws” mean any statute, law, ordinance, treaty, rule, code, regulation or other binding directive issued, promulgated or enforced by any Governmental Entity. (49) “Lien” means any mortgage, deed of trust, pledge, option, power of sale, retention of title, right of pre-emption, right of first refusal, hypothecation, security interest, encumbrance, claim, lien or charge of any kind, or an agreement, arrangement or obligation to create any of the foregoing (other than Permitted Liens). (50) “Material Contract” means any Contract (i) that has been filed by the Company with the SEC that has not expired or been terminated prior to the date hereof or (ii) that relates to Indebtedness with an aggregate principal amount in excess of $10,000,000.

 
24 PHX 332633099v6 (51) “Multiemployer Plan” means (x) a “multiemployer plan” as defined in Section 3(37) of ERISA that is maintained in the United States and (y) a non-U.S. defined-benefit pension plan for the benefit of employees of multiple unrelated employers, in each case, to which any Company Group Member contributes or is or has been required to contribute. (52) “Non-Recourse Party” has the meaning set forth in Section 5.18. (53) “NYSE” means the New York Stock Exchange. (54) “OFAC” has the meaning set forth in Section 2.20(a). (55) “Other Competition Laws” means all non-U.S. Laws intended to prohibit, restrict or regulate actions having an anti-competitive effect or purpose, including competition, restraint of trade, anti-monopolization, merger control or antitrust Laws. (56) “Permits” has the meaning set forth in Section 2.10. (57) “Permitted Lien” means: (i) liens for Taxes that are not yet due or payable or that are being contested in good faith by appropriate proceedings and with respect to which reserves have been made on the financial statements to the extent required under GAAP; (ii) statutory liens of landlords and liens of carriers, warehousemen, mechanics, material men, repairmen and other liens imposed by Law for amounts not yet due; (iii) liens incurred or deposits made to a Governmental Entity in the ordinary course of business or as required by applicable Laws in connection with a governmental authorization, registration, filing, license, permit or approval; (iv) liens incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance or other types of social security; (v) defects of title, easements, rights of way, covenants, zoning, building and other similar restrictions, charges or encumbrances not materially interfering with the ordinary conduct of business or (vi) liens incurred in the ordinary course of the business securing obligations or liabilities that are not individually or in the aggregate material to the relevant asset or property, respectively. (58) “Permitted Transferee” means, with respect to any person, (i) any Affiliate of such person, (ii) any successor entity of such person and (iii) with respect to any person that is an investment fund, vehicle or similar entity, any other investment fund, vehicle or similar entity of which such person or an Affiliate, advisor or manager of such person serves as the general partner, manager or advisor; provided, however, that no portfolio company of any person shall be a Permitted Transferee. (59) “Person” means an individual, a corporation, a general or limited partnership, a limited liability company, an association, a trust, other legal entity or organization or Governmental Entity. (60) “Plan” means any employee benefit plan (as defined in Section 3(3) of ERISA, whether or not subject to ERISA) maintained for current or former employees of the Company, any Company Subsidiary or any other person with whom the Company is considered a single employer under Section 414 of the Code or Title IV of ERISA, to which any Company Group Member is required to contribute, including any pension, profit-sharing, retirement, death, disability, supplemental retirement, welfare benefit, retiree health, and life insurance plan, agreement or arrangement, or any other compensation plan, policy, program, agreement or arrangement, including any employment, change in control, bonus, equity or equity-based compensation, retention, severance, termination, deferred compensation or other similar agreement, arrangement, plan, policy or program that any Company Group Member, maintains, sponsors, is a party to, or as to which any Company Group Member otherwise has or could have any material obligation or material liability, but excluding any Multiemployer Plans.

 
25 PHX 332633099v6 (61) “Pre-Closing Period” means the period commencing on the date hereof and terminating on the earlier to occur of (i) the first Closing and (ii) the termination of this Agreement in accordance with the provisions hereof. (62) “Preferred Stock” has the meaning set forth in the Recitals. (63) “Preferred Stock CODs” means, collectively, the Certificates of Designations, Preferences and Rights for the Series B Preferred Stock, the Series C Preferred Stock, the Series D Preferred Stock, the Series E Preferred Stock, and the Series E-1 Preferred Stock. (64) “Purchase Price” means the aggregate purchase price payable by the Purchasers to the Company for the issue of the Purchased Shares. (65) “Purchased Shares” has the meaning set forth in Section 1.1. (66) “Purchaser” or “Purchasers” has the meaning set forth in the Preamble. (67) “Put Notice” shall mean a notification by the Company to the Purchasers that the Company desires to sell Preferred Stock to the Purchasers for an aggregate purchase price of at least $8,750,000. (68) “Registration Rights Agreement” means the Registration Rights Agreement, dated as of May 2, 2017, by and among the Company, the Purchasers, Thayer Equity Investors V, L.P., TC Roadrunner-Dawes Holdings, L.L.C., TC Sargent Holdings, L.L.C., HCI Equity Partners III, L.P. and HCI Co-Investors III, L.P. (69) “Release” means disposing, discharging, injecting, spilling, leaking, pumping, pouring, leaching, migration, emitting, escaping or emptying into or upon the indoor or outdoor environment. (70) “Relevant Persons” has the meaning set forth in Section 2.19(a). (71) “SEC” has the meaning set forth in Section 2.5(a). (72) “SEC Documents” has the meaning set forth in Section 2.5(a). (73) “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, as the same may be amended from time to time. (74) “Series B Preferred Stock” means the Company’s Series B Cumulative Redeemable Preferred Stock. (75) “Series C Preferred Stock” means the Company’s Series C Cumulative Redeemable Participating Preferred Stock. (76) “Series D Preferred Stock” means the Company’s Series D Cumulative Redeemable Participating Preferred Stock. (77) “Series E Preferred Stock” means the Company’s Series E Cumulative Redeemable Preferred Stock.

 
26 PHX 332633099v6 (78) “Series E-1 Preferred Stock” means the Preferred Stock. (79) “Series F Preferred Stock” means the Company’s Series F Cumulative Redeemable Preferred Stock. (80) “Software” means all computer software, whether in source code and object code formats, including mobile applications, in any and all forms and media, and all related documentation. (81) “Stockholders’ Agreement” means the Stockholders’ Agreement, dated as of May 2, 2017, by and among the Company and the Purchasers, as amended from time to time. (82) “Subsidiary” has the meaning set forth in Section 2.1(b). (83) “Tax Return” means any return, declaration, report, statement or other document filed or required to be filed in respect of Taxes (including any attached schedules), including any information return, claim for refund, amended return and declaration of estimated Tax. (84) “Taxes” means any U.S. federal, state, local, provincial or non-U.S. taxes, charges, fees, levies or other assessments, including income, capital gains, alternative, minimum, accumulated earnings, personal holding company, franchise, capital stock, profits, windfall profits, gross receipts, production, goods and services, sales, use, value added, transfer, registration, stamp, premium, excise, customs duties, severance, environmental (including taxes under section 59A of the Code), real property, personal property, ad valorem, occupancy, license, occupation, employment, payroll, social security, disability, unemployment, workers’ compensation, withholding, estimated or other similar tax, duty, fee, assessment or other governmental charge or deficiencies thereof (including all interest and penalties thereon, related liabilities and additions thereto). (85) “Transaction Documents” means this Agreement and the Certificate of Designations. (86) “Voting Debt” has the meaning set forth in Section 2.2(c). Section 5.11 Captions. The article, section, paragraph and clause captions herein are for convenience of reference only, do not constitute part of this Agreement and will not be deemed to limit or otherwise affect any of the provisions hereof. Section 5.12 Severability. If any provision of this Agreement or the application thereof to any person (including the officers and directors of the parties hereto) or circumstance is determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions hereof, or the application of such provision to persons or circumstances other than those as to which it has been held invalid or unenforceable, will remain in full force and effect and shall in no way be affected, impaired or invalidated thereby, so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination, the parties shall negotiate in good faith in an effort to agree upon a suitable and equitable substitute provision to effect the original intent of the parties. Section 5.13 No Third Party Beneficiaries. Except as expressly provided herein, nothing contained in this Agreement, expressed or implied, is intended to confer upon any person other than the parties hereto (and their permitted assigns), any benefit, right or remedies. Section 5.14 Public Announcements. Subject to each party’s disclosure obligations imposed by law or regulation or the rules of any stock exchange, each of the parties hereto will cooperate with

 
27 PHX 332633099v6 each other in the development and distribution of all news releases and other public information disclosures with respect to this Agreement and any of the transactions contemplated by this Agreement, and neither the Company nor any Purchaser will make any such news release or public disclosure without first consulting with the other, and, in each case, also receiving the other’s consent (which shall not be unreasonably withheld or delayed) and each party shall coordinate with the party whose consent is required with respect to any such news release or public disclosure. Section 5.15 Specific Performance. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that, without the necessity of posting bond or other undertaking, the parties shall be entitled to specific performance of the terms hereof, this being in addition to any other remedies to which they are entitled at law or equity, and in the event that any action or suit is brought in equity to enforce the provisions of this Agreement, and no party will allege, and each party hereby waives, the defense or counterclaim that there is an adequate remedy at law. Section 5.16 Termination. (a) This Agreement may be terminated: (1) by mutual written agreement of the Company and the Purchasers; (2) by the Company or the Purchasers, upon written notice to the other party given at any time on or after July 30, 2018; provided, however, that the right to terminate this Agreement pursuant to this Section 5.16(a)(2) shall not be available to any party whose material breach of any obligations under this Agreement shall have been the cause of, or shall have resulted in, the failure of a Closing to occur on or prior to such date; (3) by notice given by the Company to the Purchasers, if there have been one or more inaccuracies in or breaches of one or more representations, warranties, covenants or agreements made by any Purchaser in this Agreement such that the conditions in Section 1.3(c) would not be satisfied and which have not been cured by such Purchaser within thirty (30) days after receipt by such Purchaser of written notice from the Company requesting such inaccuracies or breaches to be cured; or (4) by notice given by the Purchasers to the Company, if there have been one or more inaccuracies in or breaches of one or more representations, warranties, covenants or agreements made by the Company in this Agreement such that the conditions in Section 1.3(b) would not be satisfied and which have not been cured by the Company within thirty (30) days after receipt by the Company of written notice from the Purchasers requesting such inaccuracies or breaches to be cured. (b) If not already terminated pursuant to Section 5.16(a), this Agreement shall automatically terminate upon termination of the Commitment Letter pursuant to Section 6 of the Commitment Letter. Section 5.17 Effects of Termination. In the event of any termination of this Agreement in accordance with Section 5.16, neither party (or any of its Affiliates) shall have any liability or obligation to the other (or any of its Affiliates) under or in respect of this Agreement, except to the extent of (A) any liability arising from any intentional and material breach by such party under this Agreement arising prior to such termination or (B) any fraud of this Agreement. In the event of any such termination, this Agreement shall become void and have no effect, and the transactions contemplated hereby shall be abandoned without further action by the parties hereto, in each case, except (x) as set forth in the

 
28 PHX 332633099v6 preceding sentence and (y) that the provisions of Section 4.3 (Confidentiality), Section 5.3 to Section 5.14 (Amendment, Waiver; Counterparts, Electronic Transmission; Governing Law; Waiver of Jury Trial; Notices; Entire Agreement, Assignment; Interpretation; Other Definitions; Captions; Severability; No Third Party Beneficiaries; Public Announcements) and Section 5.18 (Non-Recourse) shall survive the termination of this Agreement. Section 5.18 Non-Recourse. This Agreement may only be enforced against, and any claims or causes of action that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement, may only be made against the entities that are expressly identified as parties hereto, including entities that become parties hereto after the date hereof, and no former, current or future equityholders, controlling persons, directors, officers, employees, agents or Affiliates of any party hereto or any former, current or future equityholder, controlling person, director, officer, employee, general or limited partner, member, manager, advisor, agent or Affiliate of any of the foregoing (each, a “Non-Recourse Party”) shall have any liability for any obligations or liabilities of the parties to this Agreement or for any claim (whether in tort, contract or otherwise) based on, in respect of, or by reason of, the transactions contemplated hereby or in respect of any representations made or alleged to be made in connection herewith. Without limiting the rights of either party against the other party hereto, in no event shall either party or any of its Affiliates seek to enforce this Agreement against, make any claims for breach of this Agreement against, or seek to recover monetary damages from, any Non- Recourse Party. Section 5.19 Disclosure Letter. Any matter disclosed by the Company in the Disclosure Letter pursuant to any Section of this Agreement shall be deemed to have been disclosed by the Company for purposes of each other Section of this Agreement to which such disclosure is readily apparent. [The remainder of this page was intentionally left blank.]

 

 

 

 
Schedule A PHX 332633099v6 Purchaser Allocations Purchaser Percentage Elliott Associates, L.P. 32% Brockdale Investments LP 68%