1.
|
Names of Reporting Persons
Max L. Fuller
|
||
2.
|
Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
|
||
3.
|
SEC USE ONLY
|
||
4.
|
Source of Funds (See Instructions)
AF, BK, PF, OO
|
||
5.
|
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
[ ]
|
||
6.
|
Citizenship or Place of Organization
United States of America
|
||
Number of
Shares Beneficially
Owned by Each
Reporting
Person with
|
7.
|
Sole Voting Power
9,026,754(1)
|
|
8.
|
Shared Voting Power
15,486,560(2)
|
||
|
9.
|
Sole Dispositive Power
76,038(3)
|
|
10.
|
Shared Dispositive Power
8,950,716(4)
|
||
11.
|
Aggregate Amount Beneficially Owned by Each Reporting Person
16,225,188(5)
|
||
12.
|
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
[ ]
|
||
13.
|
Percent of Class Represented by Amount in Row (11)
33.7%(6)
|
||
14.
|
Type of Reporting Person (See Instructions)
IN
|
|
(1)
|
Includes (i) 9,375 shares of restricted Class A common stock held directly by Mr. Max Fuller, (ii) 688,940 shares of Class A common stock held by Fuller Family Enterprises, LLC (“Fuller Family Enterprises”), over which Mr. Max Fuller and his wife, Ms. Janice Fuller, are the members and have shared dispositive power and Mr. Max Fuller has sole voting power, (iii) 66,663 shares of Class B common stock held directly by Mr. Max Fuller, and (iv) 8,261,776 shares of Class B common stock held by Fuller Family Enterprises.
|
(2)
|
Includes shares of Class B common stock subject to a voting agreement (the “Voting Agreement”) by and among Max L. Fuller, Janice Fuller, Fuller Family Enterprises, William Eric Fuller (“Eric Fuller”), Max L. Fuller 2008 Irrevocable Trust FBO William E. Fuller, Max Fuller Family Limited Partnership, Lisa M. Pate, Anna Marie Quinn 2012 Irrevocable Trust FBO Lisa M. Pate, Quinn Family Partners, L.P. (“Quinn Family Partners”). Under the Voting Agreement, each of Messrs. Eric Fuller and Max Fuller and Mses. Pate and Janice Fuller have granted a successor the right to exercise all of the voting and consent rights of all Class B common stock beneficially owned by him or her upon his or her death or incapacity. Mr. Eric Fuller and Ms. Janice Fuller have each initially designated Mr. Max Fuller as his or her proxy and Mr. Max Fuller and Ms. Pate have each initially designated Mr. Eric Fuller as his or her proxy, in each case, if and for so long as such person remains qualified. To be qualified to serve as a successor, the potential successor must both (i) be active in the management of U.S Xpress Enterprises, Inc. (the “Issuer”) or serving on the Issuer's Board of Directors at the time of and during the period of service as successor and (ii) own (or hold) shares of Class B common stock or be the beneficiary of a trust or other entity that holds Class B common stock on behalf of the potential successor at the time of and during the period of service as a successor. For each of Messrs. Eric Fuller and Max Fuller and Mses. Pate and Janice Fuller, if no successor is qualified at the time of death or incapacity, then there will be no successor under the Voting Agreement. Additionally, during the term of the Voting Agreement, any voting control Ms. Janice Fuller would otherwise have with respect to shares of Class B common stock covered by the Voting Agreement will be exercised by Mr. Max Fuller until his death or incapacity, and then will pass in the order of succession under the Voting Agreement. The Voting Agreement will continue in effect until the earliest of the following: (i) 15 years from the date of the Voting Agreement, (ii) none of Messrs. Eric Fuller and Max Fuller and Mses. Pate and Janice Fuller holds Class B common stock, (iii) at such time as no individual named as a successor is qualified to be a successor and (iv) the Voting Agreement is terminated by all parties to the Voting Agreement.
|
|
(3)
|
Includes (i) 9,375 shares of restricted Class A common stock held directly by Mr. Max Fuller and (ii) 66,663 shares of Class B common stock held directly by Mr. Max Fuller.
|
|
(4)
|
Includes (i) 688,940 shares of Class A common stock held by Fuller Family Enterprises and (ii) 8,261,776 shares of Class B common stock held by Fuller Family Enterprises.
|
|
(5)
|
Includes shares of Class A and Class B common stock the Reporting Person may be deemed to beneficially own as part of a group in connection with the Voting Agreement.
|
|
|
(6)
|
The Issuer has both Class A and Class B common stock. The Class A common stock has one vote per share. The Class B common stock has five votes per share while beneficially owned by Messrs. Max Fuller and Eric Fuller and Ms. Pate (collectively, the "Qualifying Stockholders") and certain trusts for the benefit of any of them or their family members or certain entities owned by any of them or their family members. A holder of Class B common stock may convert its Class B common stock into Class A common stock at any time at the ratio of one share of Class A common stock for each share of Class B common stock. Class B common stock immediately and automatically converts into an equal number of shares of Class A common stock if any person other than the Qualifying Stockholders (or certain trusts for the benefit of any of them or their family members or certain entities owned by any of them or their family members), obtains beneficial ownership of such shares. As reported in the Issuer’s prospectus dated June 13, 2018 filed in connection with the registration statement on Form S-1 (File No. 333-224711), as amended (the “Prospectus”), there were 32,714,624 shares of Class A common stock and 15,486,560 shares of Class B common stock outstanding following the initial public offering and exercise in full of the underwriters’ option to purchase additional shares of Class A common stock. As a result of the two-class structure, the aggregate amount of common stock beneficially owned by the Reporting Person represents approximately 71.0% of the voting power of all outstanding Issuer stock.
|
1.
|
Names of Reporting Persons
Janice Fuller
|
||
2.
|
Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
|
||
3.
|
SEC USE ONLY
|
||
4.
|
Source of Funds (See Instructions)
AF, BK, PF, OO
|
||
5.
|
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
[ ]
|
||
6.
|
Citizenship or Place of Organization
United States of America
|
||
Number of
Shares Beneficially
Owned by Each
Reporting
Person with
|
7.
|
Sole Voting Power
0(1)
|
|
8.
|
Shared Voting Power
0(1)
|
||
|
9.
|
Sole Dispositive Power
0
|
|
10.
|
Shared Dispositive Power
10,943,985(2)
|
||
11.
|
Aggregate Amount Beneficially Owned by Each Reporting Person
16,225,188(3)
|
||
12.
|
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
[ ]
|
||
13.
|
Percent of Class Represented by Amount in Row (11)
33.7%(4)
|
||
14.
|
Type of Reporting Person (See Instructions)
IN
|
|
(1)
|
In accordance with the operating agreement of Fuller Family Enterprises, Mr. Max Fuller has sole voting power with respect to the shares of common stock in Fuller Family Enterprises and in accordance with the trust documents of the Max L. Fuller 2008 Irrevocable Trust FBO William E. Fuller, Mr. Eric Fuller has sole voting power with respect to the shares of common stock in the Max L. Fuller 2008 Irrevocable Trust FBO William E. Fuller. Ms. Janice Fuller does not have any voting rights with respect to shares of common stock covered by the Voting Agreement.
|
(2)
|
Includes (i) 688,940 shares of Class A common stock held by Fuller Family Enterprises, (ii) 8,261,776 shares of Class B common stock held by Fuller Family Enterprises, and (iii) 1,993,269 shares of Class B common stock held by the Max L. Fuller 2008 Irrevocable Trust FBO William E. Fuller, over which Ms. Janice Fuller and her son, Mr. Eric Fuller, are the co-trustees and have shared dispositive power and Mr. Eric Fuller has sole voting power.
|
|
(3)
|
Includes shares of Class A and Class B common stock the Reporting Person may be deemed to beneficially own as part of a group in connection with the Voting Agreement.
|
|
|
(4)
|
As reported in the Prospectus, there were 32,714,624 shares of Class A common stock and 15,486,560 shares of Class B common stock outstanding following the initial public offering and exercise in full of the underwriters’ option to purchase additional shares of Class A common stock. As a result of the two-class structure, the aggregate amount of common stock beneficially owned by the Reporting Person represents approximately 71.0% of the voting power of all outstanding Issuer stock.
|
1.
|
Names of Reporting Persons
Fuller Family Enterprises, LLC
|
||
2.
|
Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
|
||
3.
|
SEC USE ONLY
|
||
4.
|
Source of Funds (See Instructions)
AF, BK, OO
|
||
5.
|
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
[ ]
|
||
6.
|
Citizenship or Place of Organization
Nevada
|
||
Number of
Shares Beneficially
Owned by Each
Reporting
Person with
|
7.
|
Sole Voting Power
8,950,716(1)
|
|
8.
|
Shared Voting Power
0
|
||
|
9.
|
Sole Dispositive Power
8,950,716(1)
|
|
10.
|
Shared Dispositive Power
0
|
||
11.
|
Aggregate Amount Beneficially Owned by Each Reporting Person
16,225,188(2)
|
||
12.
|
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
[ ]
|
||
13.
|
Percent of Class Represented by Amount in Row (11)
33.7%(3)
|
||
14.
|
Type of Reporting Person (See Instructions)
OO
|
|
(1)
|
Includes (i) 688,940 shares of Class A common stock held by Fuller Family Enterprises and (ii) 8,261,776 shares of Class B common stock held by Fuller Family Enterprises.
|
(2)
|
Includes shares of Class A and Class B common stock the Reporting Person may be deemed to beneficially own as part of a group in connection with the Voting Agreement.
|
|
(3)
|
As reported in the Prospectus, there were 32,714,624 shares of Class A common stock and 15,486,560 shares of Class B common stock outstanding following the initial public offering and exercise in full of the underwriters’ option to purchase additional shares of Class A common stock. As a result of the two-class structure, the aggregate amount of common stock beneficially owned by the Reporting Person represents approximately 71.0% of the voting power of all outstanding Issuer stock.
|
1.
|
Names of Reporting Persons
William Eric Fuller
|
||
2.
|
Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
|
||
3.
|
SEC USE ONLY
|
||
4.
|
Source of Funds (See Instructions)
AF, BK, PF, OO
|
||
5.
|
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
[ ]
|
||
6.
|
Citizenship or Place of Organization
United States of America
|
||
Number of
Shares Beneficially
Owned by Each
Reporting
Person with
|
7.
|
Sole Voting Power
4,232,918(1)
|
|
8.
|
Shared Voting Power
15,486,560(2)
|
||
|
9.
|
Sole Dispositive Power
2,239,649(3)
|
|
10.
|
Shared Dispositive Power
1,993,269(4)
|
||
11.
|
Aggregate Amount Beneficially Owned by Each Reporting Person
16,225,188(5)
|
||
12.
|
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
[ ]
|
||
13.
|
Percent of Class Represented by Amount in Row (11)
33.7%(6)
|
||
14.
|
Type of Reporting Person (See Instructions)
IN
|
|
(1)
|
Includes (i) 30,938 shares of restricted Class A common stock held directly by Mr. Eric Fuller, (ii) 599,098 shares of Class B common stock held directly by Mr. Eric Fuller, (iii) 1,993,269 shares of Class B common stock held by the Max L. Fuller 2008 Irrevocable Trust FBO William E. Fuller, and (iv) 1,609,613 shares of Class B common stock held by the Max Fuller Family Limited Partnership, over which Mr. Eric Fuller serves as the managing general partner and has sole voting and dispositive power.
|
(2)
|
Includes shares Class B common stock subject to the Voting Agreement.
|
|
(3) | Includes (i) 30,938 shares of restricted Class A common stock held directly by Mr. Eric Fuller, (ii) 599,098 shares of Class B common stock held directly by Mr. Eric Fuller, and (iii) 1,609,613 shares of Class B common stock held by the Max Fuller Family Limited Partnership. | |
(4) | Includes 1,993,269 shares of Class B common stock held by the Max L. Fuller 2008 Irrevocable Trust FBO William E. Fuller. | |
(5)
|
Includes shares of Class A and Class B common stock the Reporting Person may be deemed to beneficially own as part of a group in connection with the Voting Agreement.
|
|
|
(6)
|
As reported in the Prospectus, there were 32,714,624 shares of Class A common stock and 15,486,560 shares of Class B common stock outstanding following the initial public offering and exercise in full of the underwriters’ option to purchase additional shares of Class A common stock. As a result of the two-class structure, the aggregate amount of common stock beneficially owned by the Reporting Person represents approximately 71.0% of the voting power of all outstanding Issuer stock.
|
1.
|
Names of Reporting Persons
Max L. Fuller 2008 Irrevocable Trust FBO William E. Fuller
|
||
2.
|
Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
|
||
3.
|
SEC USE ONLY
|
||
4.
|
Source of Funds (See Instructions)
AF, BK, OO
|
||
5.
|
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
[ ]
|
||
6.
|
Citizenship or Place of Organization
Nevada
|
||
Number of
Shares Beneficially
Owned by Each
Reporting
Person with
|
7.
|
Sole Voting Power
1,993,269
|
|
8.
|
Shared Voting Power
0
|
||
|
9.
|
Sole Dispositive Power
1,993,269
|
|
10.
|
Shared Dispositive Power
0
|
||
11.
|
Aggregate Amount Beneficially Owned by Each Reporting Person
16,225,188(1)
|
||
12.
|
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
[ ]
|
||
13.
|
Percent of Class Represented by Amount in Row (11)
33.7%(2)
|
||
14.
|
Type of Reporting Person (See Instructions)
OO
|
(1)
|
Includes shares of Class A and Class B common stock the Reporting Person may be deemed to beneficially own as part of a group in connection with the Voting Agreement.
|
|
|
(2)
|
As reported in the Prospectus, there were 32,714,624 shares of Class A common stock and 15,486,560 shares of Class B common stock outstanding following the initial public offering and exercise in full of the underwriters’ option to purchase additional shares of Class A common stock. As a result of the two-class structure, the aggregate amount of common stock beneficially owned by the Reporting Person represents approximately 71.0% of the voting power of all outstanding Issuer stock.
|
1.
|
Names of Reporting Persons
Max Fuller Family Limited Partnership
|
||
2.
|
Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
|
||
3.
|
SEC USE ONLY
|
||
4.
|
Source of Funds (See Instructions)
AF, BK, OO
|
||
5.
|
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
[ ]
|
||
6.
|
Citizenship or Place of Organization
Nevada
|
||
Number of
Shares Beneficially
Owned by Each
Reporting
Person with
|
7.
|
Sole Voting Power
1,609,613
|
|
8.
|
Shared Voting Power
0
|
||
|
9.
|
Sole Dispositive Power
1,609,613
|
|
10.
|
Shared Dispositive Power
0
|
||
11.
|
Aggregate Amount Beneficially Owned by Each Reporting Person
16,225,188(1)
|
||
12.
|
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
[ ]
|
||
13.
|
Percent of Class Represented by Amount in Row (11)
33.7%(2)
|
||
14.
|
Type of Reporting Person (See Instructions)
PN
|
(1)
|
Includes shares of Class A and Class B common stock the Reporting Person may be deemed to beneficially own as part of a group in connection with the Voting Agreement.
|
|
|
(2)
|
As reported in the Prospectus, there were 32,714,624 shares of Class A common stock and 15,486,560 shares of Class B common stock outstanding following the initial public offering and exercise in full of the underwriters’ option to purchase additional shares of Class A common stock. As a result of the two-class structure, the aggregate amount of common stock beneficially owned by the Reporting Person represents approximately 71.0% of the voting power of all outstanding Issuer stock.
|
1.
|
Names of Reporting Persons
Lisa M. Pate
|
||
2.
|
Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
|
||
3.
|
SEC USE ONLY
|
||
4.
|
Source of Funds (See Instructions)
AF, BK, PF, OO
|
||
5.
|
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
[ ]
|
||
6.
|
Citizenship or Place of Organization
United States of America
|
||
Number of
Shares Beneficially
Owned by Each
Reporting
Person with
|
7.
|
Sole Voting Power
2,965,516(1)
|
|
8.
|
Shared Voting Power
15,486,560(2)
|
||
|
9.
|
Sole Dispositive Power
2,965,516(1)
|
|
10.
|
Shared Dispositive Power
0
|
||
11.
|
Aggregate Amount Beneficially Owned by Each Reporting Person
16,225,188(3)
|
||
12.
|
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
[ ]
|
||
13.
|
Percent of Class Represented by Amount in Row (11)
33.7%(4)
|
||
14.
|
Type of Reporting Person (See Instructions)
IN
|
|
(1)
|
Includes (i) 9,375 shares of restricted Class A common stock held directly by Ms. Pate, (ii) 222,222 shares of Class B common stock held directly by Ms. Pate, (iii) 2,583,914 shares of Class B common stock held by the Anna Marie Quinn 2012 Irrevocable Trust FBO Lisa M. Pate, over which Ms. Pate serves as the sole trustee and has sole voting and dispositive power, and (iv) 150,005 shares of Class B common stock held by Quinn Family Partners, over which Ms. Pate serves as the managing general partner and has sole voting and dispositive power.
|
(2)
|
Includes shares Class B common stock subject to the Voting Agreement.
|
|
(3)
|
Includes shares of Class A and Class B common stock the Reporting Person may be deemed to beneficially own as part of a group in connection with the Voting Agreement.
|
|
|
(4)
|
As reported in the Prospectus, there were 32,714,624 shares of Class A common stock and 15,486,560 shares of Class B common stock outstanding following the initial public offering and exercise in full of the underwriters’ option to purchase additional shares of Class A common stock. As a result of the two-class structure, the aggregate amount of common stock beneficially owned by the Reporting Person represents approximately 71.0% of the voting power of all outstanding Issuer stock.
|
1.
|
Names of Reporting Persons
Anna Marie Quinn 2012 Irrevocable Trust FBO Lisa M. Pate
|
||
2.
|
Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
|
||
3.
|
SEC USE ONLY
|
||
4.
|
Source of Funds (See Instructions)
AF, BK, OO
|
||
5.
|
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
[ ]
|
||
6.
|
Citizenship or Place of Organization
Nevada
|
||
Number of
Shares Beneficially
Owned by Each
Reporting
Person with
|
7.
|
Sole Voting Power
2,583,914
|
|
8.
|
Shared Voting Power
0
|
||
|
9.
|
Sole Dispositive Power
2,583,914
|
|
10.
|
Shared Dispositive Power
0
|
||
11.
|
Aggregate Amount Beneficially Owned by Each Reporting Person
16,225,188(1)
|
||
12.
|
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
[ ]
|
||
13.
|
Percent of Class Represented by Amount in Row (11)
33.7%(2)
|
||
14.
|
Type of Reporting Person (See Instructions)
OO
|
(1)
|
Includes shares of Class A and Class B common stock the Reporting Person may be deemed to beneficially own as part of a group in connection with the Voting Agreement.
|
|
|
(2)
|
As reported in the Prospectus, there were 32,714,624 shares of Class A common stock and 15,486,560 shares of Class B common stock outstanding following the initial public offering and exercise in full of the underwriters’ option to purchase additional shares of Class A common stock. As a result of the two-class structure, the aggregate amount of common stock beneficially owned by the Reporting Person represents approximately 71.0% of the voting power of all outstanding Issuer stock.
|
1.
|
Names of Reporting Persons
Quinn Family Partners, L.P.
|
||
2.
|
Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
|
||
3.
|
SEC USE ONLY
|
||
4.
|
Source of Funds (See Instructions)
AF, BK, OO
|
||
5.
|
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
[ ]
|
||
6.
|
Citizenship or Place of Organization
Nevada
|
||
Number of
Shares Beneficially
Owned by Each
Reporting
Person with
|
7.
|
Sole Voting Power
150,005
|
|
8.
|
Shared Voting Power
0
|
||
|
9.
|
Sole Dispositive Power
150,005
|
|
10.
|
Shared Dispositive Power
0
|
||
11.
|
Aggregate Amount Beneficially Owned by Each Reporting Person
16,225,188(1)
|
||
12.
|
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
[ ]
|
||
13.
|
Percent of Class Represented by Amount in Row (11)
33.7%(2)
|
||
14.
|
Type of Reporting Person (See Instructions)
PN
|
(1)
|
Includes shares of Class A and Class B common stock the Reporting Person may be deemed to beneficially own as part of a group in connection with the Voting Agreement.
|
|
|
(2)
|
As reported in the Prospectus, there were 32,714,624 shares of Class A common stock and 15,486,560 shares of Class B common stock outstanding following the initial public offering and exercise in full of the underwriters’ option to purchase additional shares of Class A common stock. As a result of the two-class structure, the aggregate amount of common stock beneficially owned by the Reporting Person represents approximately 71.0% of the voting power of all outstanding Issuer stock.
|
Item 1.
|
Security and Issuer.
|
Item 2.
|
Identity and Background.
|
Item 3.
|
Source and Amount of Funds or Other Consideration.
|
Item 4.
|
Purpose of Transaction
|
Item 5.
|
Interest in Securities of the Issuer.
|
1.
|
The Issuer has both Class A and Class B common stock. The Class A common stock has one vote per share. The Class B common stock has five votes per share while beneficially owned by the Qualifying Stockholders and certain trusts for the benefit of any of them or their family members or certain entities owned by any of them or their family members. A holder of Class B common stock may convert its Class B common stock into Class A common stock at any time at the ratio of one share of Class A common stock for each share of Class B common stock. Class B common stock immediately and automatically converts into an equal number of shares of Class A common stock if any person other than the Qualifying Stockholders (or certain trusts for the benefit of any of them or their family members or certain entities owned by any of them or their family members), obtains beneficial ownership of such shares. As reported in the Prospectus, there were 32,714,624 shares of Class A common stock and 15,486,560 shares of Class B common stock outstanding following the initial public offering and exercise in full of the underwriters’ option to purchase additional shares of Class A common stock.
|
2.
|
Includes shares of Class A and Class B common stock the Reporting Person may be deemed to beneficially own as part of a group in connection with the Voting Agreement. Under the Voting Agreement, each of Messrs. Eric Fuller and Max Fuller and Mses. Pate and Janice Fuller have granted a successor the right to exercise all of the voting and consent rights of all Class B common stock beneficially owned by him or her upon his or her death or incapacity. Mr. Eric Fuller and Ms. Janice Fuller have each initially designated Mr. Max Fuller as his or her proxy and Mr. Max Fuller and Ms. Pate have each initially designated Mr. Eric Fuller as his or her proxy, in each case, if and for so long as such person remains qualified. To be qualified to serve as a successor, the potential successor must both (i) be active in the management of the Issuer or serving on the Issuer's Board of Directors at the time of and during the period of service as successor and (ii) own (or hold) shares of Class B common stock or be the beneficiary of a trust or other entity that holds Class B common stock on behalf of the potential successor at the time of and during the period of service as a successor. For each of Messrs. Eric Fuller and Max Fuller and Mses. Pate and Janice Fuller, if no successor is qualified at the time of death or incapacity, then there will be no successor under the Voting Agreement. Additionally, during the term of the Voting Agreement, any voting control Ms. Janice Fuller would otherwise have with respect to shares of Class B common stock covered by the Voting Agreement will be exercised by Mr. Max Fuller until his death or incapacity, and then will pass in the order of succession under the Voting Agreement. The Voting Agreement will continue in effect until the earliest of the following: (i) 15 years from the date of the Voting Agreement, (ii) none of Messrs. Eric Fuller and Max Fuller and Mses. Pate and Janice Fuller holds Class B common stock, (iii) at such time as no individual named as a successor is qualified to be a successor and (iv) the Voting Agreement is terminated by all parties to the Voting Agreement.
|
3.
|
As reported in the Prospectus, there were 32,714,624 shares of Class A common stock and 15,486,560 shares of Class B common stock outstanding following the initial public offering and exercise in full of the underwriters’ option to purchase additional shares of Class A common stock. As a result of the two-class structure, the aggregate amount of common stock beneficially owned by the Reporting Persons represents approximately 71.0% of the voting power of all outstanding Issuer stock.
|
Date of Transaction
|
Class of Common Stock
|
Purchaser
|
Type of Transaction
|
Number of Shares
|
Price per Share
|
|||||
June 18, 2018
|
Class B
|
Fuller Family Enterprises
|
Private Purchase from Quinn Family Partners
|
953,125(1)
|
$16.00
|
|||||
June 18 2018
|
Class B
|
Eric Fuller
|
Private Purchase from Quinn Family Partners
|
296,875(1)
|
$16.00
|
|||||
June 28, 2018
|
Class A
|
Fuller Family Enterprises
|
Open Market Purchase
|
200,000
|
$13.57
|
|||||
June 29, 2018
|
Class A
|
Fuller Family Enterprises
|
Series of Open Market Purchases
|
31,840
|
$14.4783(2)
|
|||||
June 29, 2018
|
Class A
|
Fuller Family Enterprises
|
Series of Open Market Purchases
|
329,100
|
$15.2394(3)
|
|||||
July 5, 2018
|
Class A
|
Fuller Family Enterprises
|
Series of Open Market Purchases pursuant to the 10b5-1 Purchase Plan
|
25,112
|
$15.2966(4)
|
|||||
July 6, 2018
|
Class A
|
Fuller Family Enterprises
|
Series of Open Market Purchases pursuant to the 10b5-1 Purchase Plan
|
29,085
|
$15.6199(5)
|
|||||
July 9, 2018
|
Class A
|
Fuller Family Enterprises
|
Series of Open Market Purchases pursuant to the 10b5-1 Purchase Plan
|
18,803
|
$15.4507(6)
|
|||||
July 13, 2018
|
Class A
|
Fuller Family Enterprises
|
Open Market Purchase pursuant to the 10b5-1 Purchase Plan
|
100
|
$15.00
|
|||||
July 16, 2018
|
Class A
|
Fuller Family Enterprises
|
Series of Open Market Purchases pursuant to the 10b5-1 Purchase Plan
|
37,100
|
$14.7336(7)
|
|||||
July 17, 2018
|
Class A
|
Fuller Family Enterprises
|
Series of Open Market Purchases pursuant to the 10b5-1 Purchase Plan
|
17,800
|
$14.4772(8)
|
1.
|
Due to the Voting Agreement, the QFP Purchase did not affect the aggregate amount of common stock beneficially owned by the Reporting Persons.
|
2.
|
The price reflects a weighted average purchase price for multiple transactions ranging from $14.08 to $15.07, inclusive. Fuller Family Enterprises undertakes to provide, upon request by the SEC staff, the issuer, or a stockholder of the issuer, full information regarding the number of shares purchased at each separate price.
|
3.
|
The price reflects a weighted average purchase price for multiple transactions ranging from $15.075 to $15.40, inclusive. Fuller Family Enterprises undertakes to provide, upon request by the SEC staff, the issuer, or a stockholder of the issuer, full information regarding the number of shares purchased at each separate price.
|
4.
|
The price reflects a weighted average purchase price for multiple transactions ranging from $15.15 to $15.44, inclusive. Fuller Family Enterprises undertakes to provide, upon request by the SEC staff, the issuer, or a stockholder of the issuer, full information regarding the number of shares purchased at each separate price.
|
5.
|
The price reflects a weighted average purchase price for multiple transactions ranging from $15.37 to $15.75, inclusive. Fuller Family Enterprises undertakes to provide, upon request by the SEC staff, the issuer, or a stockholder of the issuer, full information regarding the number of shares purchased at each separate price.
|
6.
|
The price reflects a weighted average purchase price for multiple transactions ranging from $15.31 to $15.50, inclusive. Fuller Family Enterprises undertakes to provide, upon request by the SEC staff, the issuer, or a stockholder of the issuer, full information regarding the number of shares purchased at each separate price.
|
7.
|
The price reflects a weighted average purchase price for multiple transactions ranging from $14.33 to $14.97, inclusive. Fuller Family Enterprises undertakes to provide, upon request by the SEC staff, the issuer, or a stockholder of the issuer, full information regarding the number of shares purchased at each separate price.
|
8.
|
The price reflects a weighted average purchase price for multiple transactions ranging from $14.41 to $14.50, inclusive. Fuller Family Enterprises undertakes to provide, upon request by the SEC staff, the issuer, or a stockholder of the issuer, full information regarding the number of shares purchased at each separate price.
|
Contracts, Arrangements, Understandings, or Relationships With Respect to Securities of the Issuer.
|
Item 7.
|
Material to be Filed as Exhibits.
|
|
Joint Filing Agreement, dated July 9, 2018, by and among the Reporting Persons
|
|
|
Power of Attorney of Max L. Fuller
|
|
|
Power of Attorney of Janice Fuller
|
|
|
Power of Attorney of Fuller Family Enterprises, LLC
|
|
|
Power of Attorney of William Eric Fuller
|
|
|
Power of Attorney of Max L. Fuller 2008 Irrevocable Trust FBO William E. Fuller
|
|
Power of Attorney of Max Fuller Family Limited Partnership
|
||
|
Power of Attorney of Lisa M. Pate
|
|
Power of Attorney of Anna Marie Quinn 2012 Irrevocable Trust FBO Lisa M. Pate
|
||
Power of Attorney of Quinn Family Partners, L.P.
|
||
Voting Agreement, dated June 13, 2018, by and among by Max L. Fuller, Janice Fuller, Fuller Family Enterprises, LLC, William E. Fuller, Max L. Fuller 2008 Irrevocable Trust FBO William E. Fuller, Max Fuller Family Limited Partnership, Lisa M. Pate, Anna Marie Quinn 2012 Irrevocable Trust FBO Lisa M. Pate, Quinn Family Partners, L.P.
|
||
Stockholders’ Agreement, dated June 13, 2018, by and among the Company, Lisa M. Pate, Anna Marie Quinn 2012 Irrevocable Trust FBO Lisa M. Pate, Quinn Family Partners, L.P., Patrick Quinn Non-GST Marital Trust, Patrick Quinn GST Marital Trust, Patrick Quinn GST Tennessee Gap Trust, Patrick Brian Quinn, Anna Marie Quinn 2012 Irrevocable Trust FBO Patrick Brian Quinn, Anna Marie Quinn 2012 Irrevocable Trust FBO Renee A. Daly, Max L. Fuller, Fuller Family Enterprises, LLC, William E. Fuller, Max L. Fuller 2008 Irrevocable Trust FBO William E. Fuller, Max Fuller Family Limited Partnership, Max L. Fuller 2008 Irrevocable Trust FBO Stephen C. Fuller, and Max L. Fuller 2008 Irrevocable Trust FBO Christopher M. Fuller.
|
||
Registration Rights Agreement, dated June 13, 2018, by and among the Company, Lisa M. Pate, Anna Marie Quinn 2012 Irrevocable Trust FBO Lisa M. Pate, Quinn Family Partners, L.P., Patrick Quinn Non-GST Marital Trust, Patrick Quinn GST Marital Trust, Patrick Quinn GST Tennessee Gap Trust, Patrick Brian Quinn, Anna Marie Quinn 2012 Irrevocable Trust FBO Patrick Brian Quinn, Anna Marie Quinn 2012 Irrevocable Trust FBO Renee A. Daly, Max L. Fuller, Fuller Family Enterprises, LLC, William E. Fuller, Max L. Fuller 2008 Irrevocable Trust FBO William E. Fuller, Max Fuller Family Limited Partnership, Max L. Fuller 2008 Irrevocable Trust FBO Stephen C. Fuller, and Max L. Fuller 2008 Irrevocable Trust FBO Christopher M. Fuller.
|
||
Revolving Line of Credit Agreement, dated June 18, 2018, by and between Fuller Family Enterprises, LLC and Morgan Stanley Private Bank, National Association.
|
||
Revolving Line of Credit Agreement, dated June 18, 2018, by and between William E. Fuller and Morgan Stanley Private Bank, National Association.
|
MAX L. FULLER, individually
|
|
/s/ Max L. Fuller, by Heidi Hornung-Scherr, attorney-in-fact, pursuant to a Power of Attorney filed herewith
|
|
JANICE FULLER, individually
|
|
/s/ Janice Fuller, by Heidi Hornung-Scherr, attorney-in-fact, pursuant to a Power of Attorney filed herewith
|
|
FULLER FAMILY ENTERPRISES, LLC, by Max L. Fuller, as member
|
|
/s/ Max L. Fuller, by Heidi Hornung-Scherr, attorney-in-fact, pursuant to a Power of Attorney filed herewith
|
|
WILLIAM ERIC FULLER, individually
|
|
/s/ William Eric Fuller, by Heidi Hornung-Scherr, attorney-in-fact, pursuant to a Power of Attorney filed herewith
|
|
MAX L. FULLER 2008 IRREVOCABLE TRUST FBO WILLIAM E. FULLER, by William Eric Fuller, as trustee
|
|
/s/ William Eric Fuller, by Heidi Hornung-Scherr, attorney-in-fact, pursuant to a Power of Attorney filed herewith
|
|
MAX FULLER FAMILY LIMITED PARTNERSHIP, by William Eric Fuller, as managing general partner
|
|
/s/ William Eric Fuller, by Heidi Hornung-Scherr, attorney-in-fact, pursuant to a Power of Attorney filed herewith
|
|
LISA M. PATE, individually
|
|
/s/ Lisa M. Pate, by Heidi Hornung-Scherr, attorney-in-fact, pursuant to a Power of Attorney filed herewith
|
|
ANNA MARIE QUINN 2012 IRREVOCABLE TRUST FBO LISA M. PATE, by Lisa M. Pate, as trustee
|
|
/s/ Lisa M. Pate, by Heidi Hornung-Scherr, attorney-in-fact, pursuant to a Power of Attorney filed herewith
|
|
QUINN FAMILY PARTNERS, L.P., by Lisa M. Pate, as managing general partner
|
|
/s/ Lisa M. Pate, by Heidi Hornung-Scherr, attorney-in-fact, pursuant to a Power of Attorney filed herewith
|
LISA M. PATE
|
|
/s/ Lisa M. Pate | |
Name: Lisa M. Pate (individually)
|
|
ANNA MARIE QUINN 2012 IRREVOCABLE TRUST FBO LISA M. PATE
|
|
By:
|
/s/ Lisa M. Pate |
Name: Lisa M. Pate
|
|
Title: Trustee
|
|
QUINN FAMILY PARTNERS, L.P.
|
|
By:
|
/s/ Lisa M. Pate |
Name: Lisa M. Pate
|
|
Title: Managing General Partner
|
|
MAX L. FULLER
|
|
/s/ Max L. Fuller | |
Name: Max L. Fuller (individually)
|
|
JANICE FULLER
|
|
/s/ Janice Fuller | |
Name: Janice Fuller (individually)
|
|
FULLER FAMILY ENTERPRISES, LLC
|
|
By:
|
/s/ Max L. Fuller |
Name: Max L. Fuller
|
|
Title: Member
|
|
FULLER FAMILY ENTERPRISES, LLC
|
|
By:
|
/s/ Janice B. Fuller |
Name: Janice B. Fuller
|
|
Title: Member
|
|
WILLIAM E. FULLER
|
|
/s/ William E. Fuller | |
Name: William E. Fuller (individually)
|
|
MAX L. FULLER 2008 IRREVOCABLE TRUST FBO WILLIAM E. FULLER
|
|
By:
|
/s/ William E. Fuller |
Name: William E. Fuller
|
|
Title: Trustee
|
|
MAX FULLER FAMILY LIMITED PARTNERSHIP
|
|
By:
|
/s/ William E. Fuller |
Name: William E. Fuller
|
|
Title: Managing General Partner
|
|
(1)
|
execute for and on behalf of the undersigned, in the undersigned's capacity as a stockholder of U.S. Xpress Enterprises, Inc. (the "Company"), Schedules 13D and 13G in accordance with Section 13 of the Securities Exchange Act of 1934 and the rules thereunder;
|
|
(2)
|
do and perform any and all acts for and on behalf of the undersigned which may be necessary or desirable to complete and execute any such Schedule 13D or 13G, complete and execute any amendment or amendments thereto, and timely file such form with the United States Securities and Exchange Commission and any stock exchange or similar authority; and
|
|
(3)
|
take any other action of any type whatsoever in connection with the foregoing which, in the opinion of such attorney-in-fact, may be of benefit to, in the best interest of, or legally required by, the undersigned, it being understood that the documents executed by such attorney-in-fact on behalf of the undersigned pursuant to this Power of Attorney shall be in such form and shall contain such terms and conditions as such attorney-in-fact may approve in such attorney-in-fact's sole discretion.
|
|
/s/ Max L. Fuller
|
|
Max L. Fuller
|
|
(1)
|
execute for and on behalf of the undersigned, in the undersigned's capacity as a stockholder of U.S. Xpress Enterprises, Inc. (the "Company"), Schedules 13D and 13G in accordance with Section 13 of the Securities Exchange Act of 1934 and the rules thereunder;
|
|
(2)
|
do and perform any and all acts for and on behalf of the undersigned which may be necessary or desirable to complete and execute any such Schedule 13D or 13G, complete and execute any amendment or amendments thereto, and timely file such form with the United States Securities and Exchange Commission and any stock exchange or similar authority; and
|
|
(3)
|
take any other action of any type whatsoever in connection with the foregoing which, in the opinion of such attorney-in-fact, may be of benefit to, in the best interest of, or legally required by, the undersigned, it being understood that the documents executed by such attorney-in-fact on behalf of the undersigned pursuant to this Power of Attorney shall be in such form and shall contain such terms and conditions as such attorney-in-fact may approve in such attorney-in-fact's sole discretion.
|
|
/s/ Janice Fuller
|
|
Janice Fuller
|
|
(1)
|
execute for and on behalf of the undersigned, in the undersigned's capacity as a stockholder of U.S. Xpress Enterprises, Inc. (the "Company"), Schedules 13D and 13G in accordance with Section 13 of the Securities Exchange Act of 1934 and the rules thereunder;
|
|
(2)
|
do and perform any and all acts for and on behalf of the undersigned which may be necessary or desirable to complete and execute any such Schedule 13D or 13G, complete and execute any amendment or amendments thereto, and timely file such form with the United States Securities and Exchange Commission and any stock exchange or similar authority; and
|
|
(3)
|
take any other action of any type whatsoever in connection with the foregoing which, in the opinion of such attorney-in-fact, may be of benefit to, in the best interest of, or legally required by, the undersigned, it being understood that the documents executed by such attorney-in-fact on behalf of the undersigned pursuant to this Power of Attorney shall be in such form and shall contain such terms and conditions as such attorney-in-fact may approve in such attorney-in-fact's sole discretion.
|
|
/s/ Max L. Fuller
|
|
Fuller Family Enterprises, LLC
Max L. Fuller, Member
|
|
(1)
|
execute for and on behalf of the undersigned, in the undersigned's capacity as a stockholder of U.S. Xpress Enterprises, Inc. (the "Company"), Schedules 13D and 13G in accordance with Section 13 of the Securities Exchange Act of 1934 and the rules thereunder;
|
|
(2)
|
do and perform any and all acts for and on behalf of the undersigned which may be necessary or desirable to complete and execute any such Schedule 13D or 13G, complete and execute any amendment or amendments thereto, and timely file such form with the United States Securities and Exchange Commission and any stock exchange or similar authority; and
|
|
(3)
|
take any other action of any type whatsoever in connection with the foregoing which, in the opinion of such attorney-in-fact, may be of benefit to, in the best interest of, or legally required by, the undersigned, it being understood that the documents executed by such attorney-in-fact on behalf of the undersigned pursuant to this Power of Attorney shall be in such form and shall contain such terms and conditions as such attorney-in-fact may approve in such attorney-in-fact's sole discretion.
|
|
/s/ William E. Fuller
|
|
William E. Fuller
|
|
(1)
|
execute for and on behalf of the undersigned, in the undersigned's capacity as a stockholder of U.S. Xpress Enterprises, Inc. (the "Company"), Schedules 13D and 13G in accordance with Section 13 of the Securities Exchange Act of 1934 and the rules thereunder;
|
|
(2)
|
do and perform any and all acts for and on behalf of the undersigned which may be necessary or desirable to complete and execute any such Schedule 13D or 13G, complete and execute any amendment or amendments thereto, and timely file such form with the United States Securities and Exchange Commission and any stock exchange or similar authority; and
|
|
(3)
|
take any other action of any type whatsoever in connection with the foregoing which, in the opinion of such attorney-in-fact, may be of benefit to, in the best interest of, or legally required by, the undersigned, it being understood that the documents executed by such attorney-in-fact on behalf of the undersigned pursuant to this Power of Attorney shall be in such form and shall contain such terms and conditions as such attorney-in-fact may approve in such attorney-in-fact's sole discretion.
|
|
/s/ William E. Fuller
|
|
Max L. Fuller 2008 Irrevocable Trust FBO William E. Fuller
William E. Fuller, Trustee
|
|
(1)
|
execute for and on behalf of the undersigned, in the undersigned's capacity as a stockholder of U.S. Xpress Enterprises, Inc. (the "Company"), Schedules 13D and 13G in accordance with Section 13 of the Securities Exchange Act of 1934 and the rules thereunder;
|
|
(2)
|
do and perform any and all acts for and on behalf of the undersigned which may be necessary or desirable to complete and execute any such Schedule 13D or 13G, complete and execute any amendment or amendments thereto, and timely file such form with the United States Securities and Exchange Commission and any stock exchange or similar authority; and
|
|
(3)
|
take any other action of any type whatsoever in connection with the foregoing which, in the opinion of such attorney-in-fact, may be of benefit to, in the best interest of, or legally required by, the undersigned, it being understood that the documents executed by such attorney-in-fact on behalf of the undersigned pursuant to this Power of Attorney shall be in such form and shall contain such terms and conditions as such attorney-in-fact may approve in such attorney-in-fact's sole discretion.
|
|
/s/ William E. Fuller
|
|
Max Fuller Family Limited Partnership
William E. Fuller, Managing General Partner
|
|
(1)
|
execute for and on behalf of the undersigned, in the undersigned's capacity as a stockholder of U.S. Xpress Enterprises, Inc. (the "Company"), Schedules 13D and 13G in accordance with Section 13 of the Securities Exchange Act of 1934 and the rules thereunder;
|
|
(2)
|
do and perform any and all acts for and on behalf of the undersigned which may be necessary or desirable to complete and execute any such Schedule 13D or 13G, complete and execute any amendment or amendments thereto, and timely file such form with the United States Securities and Exchange Commission and any stock exchange or similar authority; and
|
|
(3)
|
take any other action of any type whatsoever in connection with the foregoing which, in the opinion of such attorney-in-fact, may be of benefit to, in the best interest of, or legally required by, the undersigned, it being understood that the documents executed by such attorney-in-fact on behalf of the undersigned pursuant to this Power of Attorney shall be in such form and shall contain such terms and conditions as such attorney-in-fact may approve in such attorney-in-fact's sole discretion.
|
|
/s/ Lisa M. Pate
|
|
Lisa M. Pate
|
|
(1)
|
execute for and on behalf of the undersigned, in the undersigned's capacity as a stockholder of U.S. Xpress Enterprises, Inc. (the "Company"), Schedules 13D and 13G in accordance with Section 13 of the Securities Exchange Act of 1934 and the rules thereunder;
|
|
(2)
|
do and perform any and all acts for and on behalf of the undersigned which may be necessary or desirable to complete and execute any such Schedule 13D or 13G, complete and execute any amendment or amendments thereto, and timely file such form with the United States Securities and Exchange Commission and any stock exchange or similar authority; and
|
|
(3)
|
take any other action of any type whatsoever in connection with the foregoing which, in the opinion of such attorney-in-fact, may be of benefit to, in the best interest of, or legally required by, the undersigned, it being understood that the documents executed by such attorney-in-fact on behalf of the undersigned pursuant to this Power of Attorney shall be in such form and shall contain such terms and conditions as such attorney-in-fact may approve in such attorney-in-fact's sole discretion.
|
|
/s/ Lisa M. Pate
|
|
Anna Marie Quinn 2012 Irrevocable Trust FBO Lisa M. Pate
Lisa M. Pate, Trustee
|
|
(1)
|
execute for and on behalf of the undersigned, in the undersigned's capacity as a stockholder of U.S. Xpress Enterprises, Inc. (the "Company"), Schedules 13D and 13G in accordance with Section 13 of the Securities Exchange Act of 1934 and the rules thereunder;
|
|
(2)
|
do and perform any and all acts for and on behalf of the undersigned which may be necessary or desirable to complete and execute any such Schedule 13D or 13G, complete and execute any amendment or amendments thereto, and timely file such form with the United States Securities and Exchange Commission and any stock exchange or similar authority; and
|
|
(3)
|
take any other action of any type whatsoever in connection with the foregoing which, in the opinion of such attorney-in-fact, may be of benefit to, in the best interest of, or legally required by, the undersigned, it being understood that the documents executed by such attorney-in-fact on behalf of the undersigned pursuant to this Power of Attorney shall be in such form and shall contain such terms and conditions as such attorney-in-fact may approve in such attorney-in-fact's sole discretion.
|
|
/s/ Lisa M. Pate
|
|
Quinn Family Partners, L.P.
Lisa M. Pate, Managing General Partner
|
a.
|
Successors to Lisa Pate upon her death or incapacity:
|
1.
|
Eric Fuller, if qualified, and for so long as he remains qualified;
|
2.
|
Max Fuller, if qualified and for so long as he remains qualified, if Eric Fuller is not qualified;
|
3.
|
If neither Eric Fuller nor Max Fuller is qualified, then there is no successor.
|
b.
|
Successors to Eric Fuller upon his death or incapacity:
|
1.
|
Max Fuller, if qualified, and for so long as he remains qualified;
|
2.
|
Lisa Pate, if qualified, and for so long as she remains qualified, if Max Fuller is not qualified;
|
3.
|
If neither Max Fuller nor Lisa Pate is qualified, then there is no successor.
|
c.
|
Successors to Max Fuller upon his death or incapacity:
|
1.
|
Eric Fuller, if qualified, and for so long as he remains qualified;
|
2.
|
Lisa Pate, if qualified and for so long as she remains qualified, if Eric Fuller is not qualified;
|
3.
|
If neither Eric Fuller nor Lisa Pate is qualified, then there is no successor.
|
d.
|
Successors to Janice Fuller upon her death or incapacity:
|
1.
|
Max Fuller, if qualified, and for so long as he remains qualified;
|
2.
|
Eric Fuller, if qualified, and for so long as he remains qualified, if Max Fuller is not qualified;
|
3.
|
Lisa Pate, if qualified and for so long as she remains qualified, if Max Fuller and Eric Fuller are not qualified;
|
4.
|
If none of Max Fuller, Eric Fuller or Lisa Pate is qualified, then there is no successor;
|
1.
|
be active in the management of the Company or serving on the Board of Directors thereof, at the time of and during the period of service as successor; and
|
2.
|
own (or hold) outright Subject Shares or be the beneficiary of a trust or other entity that holds Subject Shares on behalf of such potential successor at the time of and during the period of service as successor.
|
SHAREHOLDERS:
|
|
|
|
LISA M. PATE
|
|
|
|
/s/ Lisa M. Pate
|
|
(Individually)
|
|
|
|
|
|
IRREVOCABLE TRUST F/B/O LISA M. PATE
LISA M. PATE, TRUSTEE
|
|
|
|
/s/ Lisa M. Pate
|
|
As Trustee of the Trust F/B/O Lisa M. Pate
|
|
|
|
|
|
QUINN FAMILY PARTNERS,
|
|
LISA M. PATE, MANAGING GENERAL PARTNER
|
|
|
|
/s/ Lisa M. Pate
|
|
As managing general partner of Quinn Family Partners
|
|
|
|
|
|
WILLIAM E. FULLER
|
|
|
|
/s/ William E. Fuller
|
|
(Individually)
|
|
|
|
|
|
IRREVOCABLE TRUST F/B/O WILLIAM E. FULLER
|
|
WILLIAM E. FULLER, TRUSTEE
|
|
|
|
/s/ William E. Fuller
|
|
As Trustee of the Trust F/B/O William E. Fuller
|
MAX FULLER FAMILY LIMITED PARTNERSHIP
|
|
WILLIAM E. FULLER, MANAGING GENERAL PARTNER
|
|
/s/ William E. Fuller
|
|
William E. Fuller, in his capacity as managing general partner
|
|
MAX L. FULLER
|
|
/s/ Max L. Fuller
|
|
(Individually)
|
|
FULLER FAMILY ENTERPRISES, LLC
|
|
MAX L. FULLER, MEMBER
|
|
/s/ Max L. Fuller
|
|
Max L. Fuller, in his capacity as a member
|
|
FULLER FAMILY ENTERPRISES, LLC
|
|
JANICE FULLER, MEMBER
|
|
/s/ Janice Fuller
|
|
Janice Fuller, in her capacity as a member
|
|
JANICE FULLER
|
|
/s/ Janice Fuller
|
|
(Individually)
|
SHAREHOLDERS
|
|
/s/ William E. Fuller
|
|
William E. Fuller (Individually)
|
|
/s/ William E. Fuller
|
|
Irrevocable Trust F/B/O William E. Fuller
|
|
By: William E. Fuller, Trustee | |
/s/ William E. Fuller
|
|
Max Fuller Family Limited Partnership
|
|
By: William E. Fuller, Managing General Partner | |
/s/ Max L. Fuller
|
|
Max L. Fuller (Individually)
|
|
/s/ Janice Fuller
|
|
Janice Fuller (Individually)
|
|
/s/ Max L. Fuller | |
Fuller Family Enterprises, LLC | |
By: Max L. Fuller, Member | |
/s/ Janice Fuller | |
Fuller Family Enterprises, LLC | |
By: Janice Fuller, Member |
SHAREHOLDERS
|
|
/s/ Max L. Fuller
|
|
Max L. Fuller (Individually)
|
|
/s/ Janice Fuller
|
|
Janice Fuller (Individually)
|
|
/s/ Max L. Fuller
|
|
Fuller Family Enterprises, LLC
|
|
By: Max L. Fuller, Member | |
/s/ Janice Fuller
|
|
Fuller Family Enterprises, LLC
|
|
By: Janice Fuller, Member | |
/s/ Lisa M. Pate
|
|
Lisa M. Pate (Individually)
|
|
/s/ Lisa M. Pate | |
Irrevocable Trust F/B/O Lisa M. Pate | |
By: Lisa M. Pate, Trustee | |
/s/ Lisa M. Pate | |
Quinn Family Partners | |
By: Lisa M. Pate, Managing General Partner |
SHAREHOLDERS
|
|
/s/ William E. Fuller
|
|
William E. Fuller (Individually)
|
|
/s/ William E. Fuller
|
|
Irrevocable Trust F/B/O William E. Fuller
By: William E. Fuller, Trustee |
|
/s/ William E. Fuller
|
|
Max Fuller Family Limited Partnership
By: William E. Fuller, Managing General Partner |
|
/s/ Lisa M. Pate
|
|
Lisa M. Pate (Individually)
|
|
/s/ Lisa M. Pate
|
|
Irrevocable Trust F/B/O Lisa M. Pate
By: Lisa M. Pate, Trustee
|
|
/s/ Lisa M. Pate | |
Quinn Family Partners
By: Lisa M. Pate, Managing General Partner
|
|
/s/ Janice Fuller | |
Janice Fuller (Individually) | |
/s/ Max L. Fuller | |
Fuller Family Enterprises, LLC By: Max L. Fuller, Member |
|
/s/ Janice Fuller | |
Fuller Family Enterprises, LLC By: Janice Fuller, Member |
SHAREHOLDERS
|
SHAREHOLDINGS
|
Lisa M. Pate (1)
|
4,996,743
|
Trust F/B/O Lisa Pate
|
3,374,516
|
Quinn Family Partners
|
1,400,005
|
William Eric Fuller (2)
|
3,905,105
|
Trust F/B/O William Fuller
|
1,993,269
|
Max Fuller Family Limited Partnership
|
1,609,613
|
Max Fuller (3)
|
7,375,314
|
Janice Fuller (4)
|
7,308,651
|
Fuller Family Enterprises, LLC
|
7,308,651
|
U.S. XPRESS ENTERPRISES, INC.
|
|
By:
|
/s/ Leigh Anne Battersby
|
Name: Leigh Anne Battersby
|
|
Title: Corporate General Counsel
|
LISA M. PATE
|
|
By:
|
/s/ Lisa M. Pate
|
Name: Lisa M. Pate (individually)
|
|
IRREVOCABLE TRUST FBO LISA M. PATE
|
|
By:
|
/s/ Lisa M. Pate
|
Name: Lisa M. Pate
|
|
Title: Trustee
|
|
QUINN FAMILY PARTNERS, L.P.
|
|
By:
|
/s/ Lisa M. Pate
|
Name: Lisa M. Pate | |
Title: Managing General Partner
|
|
PATRICK QUINN NON-GST MARITAL TRUST
|
|
By:
|
/s/ Anna Marie Quinn
|
Name: Anna Marie Quinn
|
|
Title: Trustee
|
|
PATRICK QUINN GST MARITAL TRUST
|
|
By:
|
/s/ Anna Marie Quinn
|
Name: Anna Marie Quinn
|
|
Title: Trustee
|
|
PATRICK QUINN GST TENNESSEE GAP TRUST
|
|
By:
|
/s/ Anna Marie Quinn
|
Name: ANNA MARIE QUINN
|
|
Title: Trustee
|
|
PATRICK BRIAN QUINN
|
|
By:
|
/s/ Patrick Brian Quinn
|
Name: Patrick Brian Quinn (individually)
|
|
IRREVOCABLE TRUST FBO PATRICK BRIAN QUINN
|
|
By:
|
/s/ Patrick Brian Quinn
|
Name: Patrick Brian Quinn
|
|
Title: Trustee
|
|
IRREVOCABLE TRUST FBO RENEE A. DALY
|
|
By:
|
/s/ Renee A. Daly
|
Name: Renee A. Daly
|
|
Title: Trustee
|
|
MAX L. FULLER
|
|
By:
|
/s/ Max L. Fuller
|
Name: Max L. Fuller (individually)
|
|
FULLER FAMILY ENTERPRISES, LLC
|
|
By:
|
/s/ Max L. Fuller
|
Name: Max L. Fuller
|
|
Title: Member
|
FULLER FAMILY ENTERPRISES, LLC
|
|
By:
|
/s/ Janice B. Fuller
|
Name: Janice B. Fuller
|
|
Title: Member
|
|
WILLIAM E. FULLER
|
|
By:
|
/s/ William E. Fuller
|
Name: William E. Fuller (individually)
|
|
IRREVOCABLE TRUST FBO WILLIAM E. FULLER
|
|
By:
|
/s/ William E. Fuller
|
Name: William E. Fuller
|
|
Title: Trustee
|
|
MAX FULLER FAMILY LIMITED PARTNERSHIP
|
|
By:
|
/s/ William E. Fuller
|
Name: William E. Fuller
|
|
Title: Managing General Partner
|
|
IRREVOCABLE TRUST FBO STEPHEN C. FULLER
|
|
By:
|
/s/ Stephen C. Fuller
|
Name: Stephen C. Fuller
|
|
Title: Trustee
|
|
IRREVOCABLE TRUST FBO CHRISTOPHER M. FULLER
|
|
By:
|
/s/ Christopher M. Fuller
|
Name: Christopher M. Fuller
|
|
Title: Trustee
|
TABLE OF CONTENTS
|
||
Page
|
||
ARTICLE I
|
||
DEFINITIONS
|
||
Section 1.1
|
Certain Defined Terms
|
1
|
Section 1.2
|
Construction
|
4
|
ARTICLE II
|
||
TRANSFERS
|
||
Section 2.1
|
Binding Effect on Transferees
|
4
|
Section 2.2
|
Additional Purchases
|
5
|
Section 2.3
|
Legend
|
5
|
ARTICLE III
|
||
REGISTRATION RIGHTS
|
||
Section 3.1
|
Demand Registration
|
5
|
Section 3.2
|
Piggyback Registrations
|
7
|
Section 3.3
|
Registration Catch-Up Provisions.
|
9
|
Section 3.4
|
Withdrawal Rights
|
9
|
Section 3.5
|
Holdback Agreements
|
10
|
Section 3.6
|
Registration Procedures
|
10
|
Section 3.7
|
Registration Expenses
|
15
|
Section 3.8
|
Indemnification
|
16
|
ARTICLE IV
|
||
MISCELLANEOUS
|
||
Section 4.1
|
Headings
|
18
|
Section 4.2
|
Entire Agreement
|
18
|
Section 4.3
|
Further Actions and Cooperation
|
18
|
Section 4.4
|
Notices
|
19
|
Section 4.5
|
Applicable Law
|
19
|
Section 4.6
|
Severability
|
20
|
Section 4.7
|
Successors and Assigns
|
20
|
Section 4.8
|
Amendments
|
20
|
Section 4.9
|
Waiver
|
20
|
Section 4.10
|
Counterparts
|
20
|
Section 4.11
|
Submission To Jurisdiction
|
20
|
Section 4.12
|
Injunctive Relief
|
21
|
Section 4.13
|
Recapitalizations, Exchanges, Etc. Affecting the Shares of Common Stock; New Issuance
|
21
|
Section 4.14
|
Termination
|
21
|
Section 4.15
|
Rule 144
|
21
|
U.S. XPRESS ENTERPRISES, INC.
|
|
By:
|
/s/ Leigh Anne Battersby
|
Name: Leigh Anne Battersby
|
|
Title: Corporate General Counsel
|
LISA M. PATE
|
|
By:
|
/s/ Lisa M. Pate
|
Name: Lisa M. Pate (individually)
|
|
IRREVOCABLE TRUST FBO LISA M. PATE
|
|
By:
|
/s/ Lisa M. Pate
|
Name: Lisa M. Pate
|
|
Title: Trustee
|
|
QUINN FAMILY PARTNERS, L.P.
|
|
By:
|
/s/ Lisa M. Pate
|
Name: Lisa M. Pate
|
|
Title: Managing General Partner | |
PATRICK QUINN NON-GST MARITAL TRUST
|
|
By:
|
/s/ Anna Marie Quinn by Lisa Quinn Pate POA
|
Name: Anna Marie Quinn
|
|
Title: Trustee
|
|
PATRICK QUINN GST MARITAL TRUST
|
|
By:
|
/s/ Anna Marie Quinn by Lisa Quinn Pate POA
|
Name: Anna Marie Quinn
|
|
Title: Trustee
|
|
PATRICK QUINN GST TENNESSEE GAP TRUST
|
|
|
|
By:
|
/s/ Anna Marie Quinn by Lisa Pate POA
|
Name: ANNA MARIE QUINN
|
|
Title: Trustee
|
|
|
|
|
|
PATRICK BRIAN QUINN
|
|
|
|
By:
|
/s/ Patrick Brian Quinn
|
Name: Patrick Brian Quinn (individually)
|
|
|
|
|
|
IRREVOCABLE TRUST FBO PATRICK BRIAN QUINN
|
|
|
|
By:
|
/s/ Patrick Brian Quinn
|
Name: Patrick Brian Quinn
|
|
Title: Trustee
|
|
|
|
|
|
IRREVOCABLE TRUST FBO RENEE A. DALY
|
|
|
|
By:
|
/s/ Renee A. Daly
|
Name: Renee A. Daly
|
|
Title: Trustee
|
|
|
|
|
|
MAX L. FULLER
|
|
|
|
By:
|
/s/ Max L. Fuller
|
Name: Max L. Fuller (individually)
|
|
|
|
|
|
FULLER FAMILY ENTERPRISES, LLC
|
|
|
|
By:
|
/s/ Max L. Fuller
|
Name: Max L. Fuller
|
|
Title: Member
|
FULLER FAMILY ENTERPRISES, LLC
|
|
|
|
By:
|
/s/ Janice B. Fuller
|
Name: Janice B. Fuller
|
|
Title: Member
|
|
|
|
|
|
WILLIAM E. FULLER
|
|
|
|
By:
|
/s/ William E. Fuller
|
Name: William E. Fuller (individually)
|
|
|
|
|
|
IRREVOCABLE TRUST FBO WILLIAM E. FULLER
|
|
|
|
By:
|
/s/ William E. Fuller
|
Name: William E. Fuller
|
|
Title: Trustee
|
|
|
|
|
|
MAX FULLER FAMILY LIMITED PARTNERSHIP
|
|
|
|
By:
|
/s/ William E. Fuller
|
Name: William E. Fuller
|
|
Title: Managing General Partner
|
|
|
|
|
|
IRREVOCABLE TRUST FBO STEPHEN C. FULLER
|
|
|
|
By:
|
/s/ Stephen C. Fuller
|
Name: Stephen C. Fuller
|
|
Title: Trustee
|
|
|
|
|
|
IRREVOCABLE TRUST FBO CHRISTOPHER M. FULLER
|
|
|
|
By:
|
/s/ Christopher M. Fuller
|
Name: Christopher M. Fuller
|
|
Title: Trustee
|
Table of Contents
|
||
Page
|
||
ARTICLE I DEFINITIONS, BASIC LOAN AND ACCOUNTING TERMS
|
1
|
|
Section 1.01
|
Certain Defined Terms
|
1
|
Section 1.02
|
Basic Terms, Schedules and Exhibits
|
1
|
Section 1.03
|
Accounting Terms
|
1
|
ARTICLE II THE REVOLVING FACILITY
|
1
|
|
Section 2.01
|
The Revolving Facility
|
1
|
Section 2.02
|
Making the Advances
|
2
|
Section 2.03
|
Terms and Repayment
|
3
|
Section 2.04
|
Taxes
|
3
|
Section 2.05
|
Evidence of Debt
|
4
|
ARTICLE III CONDITIONS TO EFFECTIVENESS AND LENDING
|
4
|
|
Section 3.01
|
Conditions Precedent to Effectiveness of this Agreement
|
4
|
Section 3.02
|
Conditions Precedent to Each Advance Hereunder
|
5
|
ARTICLE IV REPRESENTATIONS AND WARRANTIES
|
6
|
|
Section 4.01
|
Representations and Warranties of the Borrower
|
6
|
ARTICLE V COVENANTS OF THE BORROWER
|
9
|
|
Section 5.01
|
Affirmative Covenants
|
9
|
Section 5.02
|
Negative Covenants
|
12
|
Section 5.03
|
Financial Covenants
|
13
|
ARTICLE VI EVENTS OF DEFAULT
|
14
|
|
Section 6.01
|
Events of Default
|
14
|
ARTICLE VII MISCELLANEOUS
|
17
|
|
Section 7.01
|
Amendments, Etc.
|
17
|
Section 7.02
|
Notices, Etc.
|
17
|
Section 7.03
|
No Waiver; Remedies
|
17
|
Section 7.04
|
Costs and Expenses; Indemnification
|
17
|
Section 7.05
|
Right of Setoff; Certain Waivers
|
18
|
Section 7.06
|
Binding Effect; Successors and Assigns
|
19
|
Section 7.07
|
Governing Law
|
19
|
Section 7.08
|
Execution in Counterparts
|
19
|
Section 7.09
|
Interest Rate Limitation
|
19
|
Section 7.10
|
Jurisdiction, Etc
|
20
|
Section 7.11
|
Assignments and Participations
|
20
|
Section 7.12
|
WAIVER OF JURY TRIAL
|
21
|
Section 7.13
|
Severability of Provisions
|
21
|
Section 7.14
|
Entire Agreement; Jointly Drafted
|
21
|
Section 7.15
|
Headings
|
21
|
Section 7.16
|
Conflicts
|
21
|
Section 7.17
|
Terms Generally
|
21
|
Section 7.18
|
Lender Action
|
22
|
Section 7.19
|
Tax Information
|
22
|
Section 7.20
|
Increased Costs
|
22
|
Section 7.21
|
Capital Adequacy
|
23
|
Section 7.22
|
Joint and Several Liability
|
24
|
Section 7.23
|
Survival
|
24
|
Section 7.24
|
Credit Reports
|
24
|
Section 7.25
|
Financial Advisor Disclaimer
|
24
|
Section 7.26
|
Lender Affiliates
|
25
|
Section 7.27
|
Payments Set Aside; Revival
|
25
|
Section 7.28
|
PATRIOT ACT NOTICE
|
25
|
Section 7.29
|
Other Matters
|
25
|
LIST OF SCHEDULES |
|
SCHEDULE I | CERTAIN DEFINED TERMS | |
SCHEDULE 4.01(h) | OWNERSHIP | |
SCHEDULE 4.01(i) | EXISTING LIENS |
LIST OF EXHIBITS |
|
EXHIBIT A |
SECURITIES ACCOUNT COLLATERAL MAINTENANCE GUIDELINES
|
|
EXHIBIT B |
FORM OF REVOLVING LINE OF CREDIT PROMISSORY NOTE
|
|
EXHIBIT C | FORM OF COMPLIANCE CERTIFICATE | |
EXHIBIT D | FORM OF FINANCIAL ASSETS SECURITY AGREEMENT | |
EXHIBIT E | FORM OF ISSUER’S LETTER |
Note:
|
See Schedule I hereto for certain definitions of terms used in these Basic Terms.
|
Commitment Amount:
|
$15,000,000
|
Use of Proceeds:
|
The proceeds of the Advances hereunder shall be available (and the Borrower agrees that the Borrower shall use such proceeds or cause such proceeds to be used) solely for (a) the purchase of shares of common stock of US Xpress on the Effective Date and (b) general working capital purposes.
The proceeds of the Advances may be used to purchase or carry margin stock (as defined in Regulation U) or to reduce or retire any indebtedness incurred for such purpose, provided, however, no proceeds of any Advance will be used to repay a loan made by an Affiliate of the Lender (other than Morgan Stanley Bank, N.A.), and in respect thereof, the Borrower shall comply in all respects with Section 7.26 hereof.
|
Payments:
|
All payments to the Lender hereunder shall be made by (i) wire transfer to an account specified by the Lender, or (ii) ACH debit (as described below).
The Borrower may authorize the Lender to initiate ACH debit entries to pay amounts due hereunder from an account to be specified by the Borrower in writing in accordance with requirements established by the Lender. After the Lender receives such authorization from the Borrower in the form determined by the Lender, the authorization shall remain in effect until the Lender receives from the Borrower written notice that such authorization is terminated, and both the Lender and the depository institution holding the account debited by the ACH have sufficient time to act on such notice.
|
Repayment:
|
The Borrower shall pay to the Lender interest on the unpaid principal amount of the Revolving Loan until paid in full. Interest shall accrue on a daily basis and shall be payable in arrears, it being understood and agreed that the Borrower shall make such payment not later than (a) each applicable Interest Payment Date and (b) the Termination Date. Interest may be paid by the Borrower with the proceeds of an Advance made hereunder.
It is further understood and agreed that to the extent that if any such day in which payment is required hereunder, is not a Business Day, the Borrower shall pay to the Lender interest in accordance with this
|
Section on the first Business Day preceding such day on which interest would otherwise be due, and on the Termination Date and on such other date when the Revolving Loan shall be paid in full pursuant to this Agreement and the other Loan Documents, or at such other time as demanded by the Lender.
The Borrower shall repay to the Lender on the Termination Date the entire then outstanding principal balance of the Revolving Loan, together with all fees, costs and expenses and accrued and unpaid interest thereon.
|
|
Advances:
|
All Advances hereunder shall be made via ACH deposit to the Designated Account per instructions provided to the Lender by the Borrower. Alternatively, Advances hereunder may be made by wire transfer pursuant to written wire instructions provided by the Borrower to the Lender. Subject to the provisions of Sections 2.02, 3.01 and 3.02 hereof, the Lender shall endeavor to fund requests for Advances received by 1:00 p.m. (Eastern Time) on any Business Day on the same day the request is received.
|
Interest:
|
The Revolving Loan shall bear interest at a floating rate of interest equal to the LIBO Rate in effect from time to time plus the Margin, such rate to change when and as the LIBO Rate changes, payable in arrears monthly in accordance with the “Repayment” section of these Basic Terms. If for any reason the LIBO Rate shall cease to be available, interest on the Revolving Loan shall accrue at a rate per annum equal to the Prime Rate plus the Margin.
|
Optional Prepayments:
|
The Borrower may prepay all or any part of the Revolving Loan, without premium or penalty, upon at least two (2) Business Days’ prior written notice to the Lender, stating the proposed date of such prepayment and the principal amount of such prepayment, together with accrued interest to the date such prepayment is made.
If any optional prepayment is received by the Lender after 1:00 p.m. (Eastern Time) or on any day other than a Business Day, such prepayment shall be deemed to have been made on the next succeeding Business Day.
|
Mandatory Prepayments:
|
If at any time the Revolving Loan exceeds the Commitment Amount, the Borrower shall immediately make a payment in an amount sufficient to reduce the Revolving Loan to an amount that is not greater than the Commitment Amount. Upon such prepayment by the Borrower, the Lender shall advise the Borrower of, and the Borrower shall immediately pay to the Lender, accrued and unpaid interest at the interest rate set forth herein on the amount of such prepayment of the
|
|
Revolving Loan to the date of such prepayment. Each prepayment made hereunder shall be applied by the Lender to repayment of the Revolving Loan in such order as the Lender in its sole and absolute discretion shall select.
In addition, upon the sale, transfer or other disposition by any Loan Party of any of the common shares of US Xpress stock owned by such Loan Party, the proceeds thereof shall be immediately remitted to the Lender and applied to the outstanding amount of the Revolving Loan and all accrued and unpaid interest thereon.
If any mandatory prepayment is received by the Lender after 1:00 p.m. (Eastern Time) or on any day other than a Business Day, such prepayment shall be deemed to have been made on the next succeeding Business Day.
|
|
|
Collateral
Maintenance:
|
With respect to Collateral held in the Securities Accounts, if at any time during the Secured Period the aggregate unpaid principal amount of the Revolving Loan exceeds the product obtained by multiplying the aggregate Market Value of each type of Collateral set forth in Column A of Exhibit A hereto by the corresponding percentage specified in Column C of Exhibit A hereto (a “Margin Shortfall”), then the Borrower shall, within five (5) Business Days thereof, (i) make a payment to reduce the unpaid principal amount of the Revolving Loan, (ii) deposit additional Collateral of a type and nature acceptable to the Lender, in its sole and absolute discretion, into the Securities Accounts, or (iii) make a combination of the payments and deposits specified in clauses (i) and (ii) above, in an amount sufficient to ensure that the then outstanding principal amount of the Revolving Loan is equal to or less than the product obtained by multiplying the aggregate Market Value (calculated as of the close of business on the date of receipt of such payment or deposit) of each type of Collateral set forth in Column A of Exhibit A hereto times the corresponding percentage specified in Column B of Exhibit A hereto (the “Shortfall Cure Amount”). If the Borrower fails to cure the Margin Shortfall as set forth above within such five (5) Business Day period, the Lender shall have the immediate right, without notice or other action (notwithstanding any prior notice that may have been given in respect of such Margin Shortfall or anything else contained herein), to exercise any or all other remedies available to the Lender herein or any other Loan Document (including, the liquidation of the Collateral held in the Securities Accounts).
If the Borrower makes a payment and/or deposit of additional Collateral in respect of, and in order to cure, the Margin Shortfall, the Lender shall, in its sole and absolute discretion, apply such payment or deposit of additional Collateral to either (a) reduce the aggregate unpaid principal amount outstanding under the Revolving Loan, or (b)
|
|
increase the Market Value of the Collateral held in the Securities Accounts in an amount equal to or greater than the Shortfall Cure Amount.
Notwithstanding the foregoing, if at any time during the Secured Period the aggregate unpaid principal amount of the Revolving Loan exceeds the product obtained by multiplying the aggregate Market Value of each type of Collateral set forth in Column A of Exhibit A hereto times the corresponding percentage specified in Column D of Exhibit A hereto (a “Sell-Out Shortfall”), then the Borrower shall immediately (x) make a payment to reduce the unpaid principal amount of the Revolving Loan, (y) deposit additional Collateral of a type and nature acceptable to the Lender, in its sole and absolute discretion, into the Securities Accounts, or (z) make a combination of the payments and deposits specified in clauses (x) and (y) above, in an amount sufficient to ensure that then outstanding principal amount of the Revolving Loan is equal to or less than the Shortfall Cure Amount. If the Borrower fails to immediately make such payment and/or deposit in respect of the Shortfall Cure Amount, the Lender shall have the immediate right, without notice or other action (notwithstanding any prior notice given under the preceding paragraph or anything else contained herein), to exercise any or all other remedies available to the Lender herein or any other Loan Document (including the liquidation of the Collateral held in the Securities Accounts).
Only Collateral in the Securities Accounts of the specific types indicated in Column A of Exhibit A hereto, and having a per share value equal to or greater than that indicated in Column A of Exhibit A hereto for such type of Collateral, if any, shall be included by the Lender in determining the value of the Collateral in the Securities Accounts for purposes of ascertaining whether a Margin Shortfall or Sell-Out Shortfall has occurred from time to time or at any time. Additionally, if at any time (a) more than 25% of the aggregate Market Value of the Collateral in the Securities Accounts consists of securities issued by a single issuer of the type specified in rows (8)(a) or (9) of Appendix A in Exhibit A hereto, or row (2) of Appendix B in Exhibit A hereto, (b) the securities of any issuer (other than US Xpress) held in the Securities Accounts represent five percent (5%) or more of the total issued and outstanding shares of such issuer, or (c) the securities of US Xpress held in the Securities Accounts represent seven percent (7%) or more of the total issued and outstanding shares of US Xpress, in each case, all of such securities shall be excluded in ascertaining the existence of any Margin Shortfall or Sell-Out Shortfall, at such time.
|
Payments and Computations:
|
The Borrower shall make each payment hereunder in respect of interest on, principal of, or other amounts related to the Revolving Loan not later than 12:00 noon (Eastern Time) on the day when due in Dollars in same day funds, with payments being so received by the Lender after such time being deemed to have been made on the next succeeding Business Day.
All computations of interest hereunder shall be made by the Lender on the basis of a year of three hundred sixty (360) days for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest is payable. Each determination by the Lender of an interest rate hereunder shall be conclusive and binding for all purposes, absent manifest error. Whenever any payment hereunder shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest.
|
Late Charge:
|
If the Borrower fails to pay any interest or principal payment on the Revolving Loan within five (5) days after the same becomes due and payable hereunder, the Borrower shall, at the option of the Lender, pay to the Lender a late charge equal to five percent (5%) of the amount of such payment, payable on the sixth (6th) day after such payment becomes due and payable hereunder (the “Late Charge”).
|
Default Rate:
|
In addition to any applicable Late Charge, upon the occurrence and during the continuance of an Event of Default, the interest on the aggregate unpaid principal amount of the Revolving Loan shall be increased, at the option of the Lender, to a rate equal to the lesser of three percent (3%) per annum above the rate of interest applicable hereunder or the Maximum Rate (the “Default Rate”).
|
Commitment Fee:
|
Commitment fee waived.
|
Other Fees:
|
The Borrower has paid all fees that are outlined in the Letter of Interest.
|
Unused Availability Fee:
|
The Borrower will pay to the Lender an unused availability fee equal to 0.35% per annum of the daily unused portion of the Commitment Amount, which fee shall be payable quarterly, in arrears, on the fifteenth (15th) day of the calendar month immediately following the end of each calendar quarter during the term hereunder and on the Termination Date.
|
Notices, Etc.:
|
All notices and other communications provided for hereunder shall be in writing (or any other method of communication authorized by the Lender) and sent by a reputable overnight courier or delivery service to
|
|
the Borrower at the Borrower’s address at XXX, Attention: Max Fuller; or if to the Lender, at its address at Morgan Stanley Private Bank, National Association, c/o Morgan Stanley Smith Barney LLC, 2000 Westchester Avenue, Floor 2NE, Purchase, New York 10577, Attention: Tailored Lending, Attention: Tailored Lending; or, as to the Borrower or the Lender at such other address as shall be designated by such party in a written notice to the other party or, in the case of a change of the Borrower’s address, as may be requested by the Borrower in writing to the Lender or by any other means agreed to by the Lender. All such notices and communications shall, when sent by reputable overnight courier or delivery system, be effective on the Business Day following the day when the same is sent in such manner, except that notices and communications to the Lender pursuant to Article II shall not be effective until received by the Lender. Delivery by electronic means of an executed counterpart of any amendment or waiver of any provision of this Agreement or of any schedule or exhibit hereto to be executed and delivered hereunder shall be as effective as delivery of an original executed counterpart thereof.
|
(2)
|
The Lender has agreed to extend to the Borrower such revolving line of credit on the terms and conditions hereinafter set forth.
|
FULLER FAMILY ENTERPRISES, LLC
|
|
By:
|
/s/ Max L. Fuller
|
Name: Max L. Fuller
|
|
Title: Chief Manager
|
|
MORGAN STANLEY PRIVATE BANK,
NATIONAL ASSOCIATION
|
|
By:
|
/s/ David Natzke
|
Name: David Natzke
|
|
Title: Authorized Signatory
|
|
Column A
|
Column B
|
Column C
|
Column D
|
Type of Pledged Collateral
Any security not specifically listed, and all securities issued by Morgan Stanley or its affiliates (except MGPXX), shall be deemed ineligible.
|
Loanable Value
|
Margin Call
|
Sell-Out
|
(1)(a) Cash, Cash Equivalents, Commercial Paper and Banker’s Acceptances rated A1 / P1, Money Market Funds,
|
97%
|
98%
|
99%
|
(1)(b) FDIC-insured, brokered CDs with maturities less than 5yrs (Issuer positions not to exceed FDIC insured limits).
|
90%
|
92%
|
94%
|
(2) Government Obligations (Direct or Guaranteed), US Treasury Bills, Notes, Bonds, US Government Agencies (e.g. FHLB, FFCB), US Treasury Mutual Funds, and Pre-refunded Bonds collateralized by any of these securities;
|
|||
(a) All Pre-refunded Bonds (regardless of Tenor) and others with a Tenor less than 5 years
|
96%
|
96%
|
97%
|
(b) Tenor 5-9 years
|
94%
|
94%
|
95%
|
(c) Tenor 10-19 years
|
92%
|
93%
|
94%
|
(d) Tenor 20+ years
|
90%
|
91%
|
92%
|
(3) All other US Government Agency Debt (e.g. FNMA, FHLMC);
|
|||
(a) Tenor less than 5 years
|
96%
|
96%
|
97%
|
(b) Tenor 5-9 years
|
92%
|
93%
|
95%
|
(c) Tenor 10-19 years
|
88%
|
90%
|
92%
|
(d) Tenor 20+ years
|
82%
|
85%
|
89%
|
(4) State and Municipal Obligations with no position >15% of the current outstanding issuance size;
|
|||
(a) rated* AAA through BBB-
|
84%
|
87%
|
89%
|
(b) rated* BB+ through BB
|
70%
|
73%
|
76%
|
(c) rated* B- or B+
|
50%
|
55%
|
60%
|
Column A
|
Column B
|
Column C
|
Column D
|
(5) Non-Convertible Corp Bonds with a price ≥$40, a current outstanding issuance of at least $25 million, and no position >15% of the issue size;
|
|||
(a) rated* AAA through AA-
|
89%
|
92%
|
94%
|
(b) rated* A+ through BBB-
|
84%
|
87%
|
89%
|
(c) rated* BB+ or BB
|
62%
|
65%
|
68%
|
(d) rated* B- or B+
|
50%
|
55%
|
60%
|
(6) Municipal Bond and Corporate Bond Mutual Funds trading >=$4/sh (open end after 30-days and closed end).
|
50%
|
83%
|
86%
|
(7) Convertible Corp Bonds with a price ≥$40, a current outstanding issuance of at least $25 million, and no position >15% of the issue size;
|
|||
(a) rated* AAA through AA-
|
50%
|
87%
|
89%
|
(b) rated* A+ through BBB-
|
50%
|
82%
|
84%
|
(c) rated* BB+ or BB
|
50%
|
60%
|
63%
|
(d) rated* B- or B+
|
45%
|
50%
|
55%
|
(8)(a) Diversified Common, Preferred and Convertible Preferred Equities and Unit Investment Trusts trading on a National Securities Exchange as defined by the Securities Exchange Act of 1934;**
|
|||
(a) >= $10.00/sh -
|
50%
|
78%
|
80%
|
(b) $9.00 – 9.99/sh
|
50%
|
65%
|
70%
|
(c) $8.00 – 8.99/sh
|
50%
|
60%
|
65%
|
(d) $7.00 – 7.99/sh
|
50%
|
55%
|
60%
|
(e) $4.00 – 6.99/sh
|
50%
|
53%
|
55%
|
(8)(b) Eligible US Xpress Shares
|
25%
|
35%
|
40%
|
(9) Diversified ADRs trading >= $10/sh on a National Securities Exchange as defined by the Securities Exchange Act of 1934**
|
50%
|
78%
|
80%
|
(10) Balanced and Diversified Stock Mutual Funds (open end after 30-days and closed end) and Exchange Traded Funds. On-shore funds only. Offshore Mutual Funds permitted in the case of Non U.S. Residents. (Offshore mutual funds must have National Securities Clearing Corp. (NSCC) Networking Level 3 agreement or equivalent between the fund and MSWM).
|
|||
(a) >= $4.00/sh
|
50%
|
83%
|
86%
|
(b) $2.00 – 3.99/sh
|
50%
|
70%
|
74%
|
(11) Specialized / Sector and International Mutual Funds and ETFs
>=$4/sh. Includes High Yield, levered or inverse Mutual Funds and ETFs.
|
50%
|
73%
|
76%
|
(12) Eligible third-party Managed Accounts*** with a Risk Category of:
|
|||
1
|
50%
|
88%
|
90%
|
2
|
50%
|
85%
|
87%
|
3
|
50%
|
81%
|
83%
|
4
|
50%
|
77%
|
79%
|
5
|
50%
|
73%
|
75%
|
Column A
|
Column B
|
Column C
|
Column D
|
Type of Pledged Collateral
Any security not specifically listed, all securities issued by Morgan Stanley or its affiliates (except MGPXX), and any security issued in CNH currency shall be deemed ineligible.
|
Loanable Value
|
Margin Call
|
Sell-Out
|
(1) Sovereign Bonds of approved countries;
|
|||
(a) rated* AAA through AA-
|
90%
|
93%
|
95%
|
(b) rated* A+ through BBB-
|
80%
|
83%
|
85%
|
(c) rated* BB+ or BB
|
70%
|
73%
|
75%
|
(2) Foreign Diversified Common, Preferred and Convertible Preferred Equities**
|
75%
|
78%
|
80%
|
(3) Foreign Non-Convertible Corp Bonds ;
|
|||
(a) rated* AAA through AA-
|
89%
|
92%
|
94%
|
(b) rated* A+ through BBB-
|
84%
|
87%
|
89%
|
(c) rated* BB+ or BB
|
62%
|
65%
|
68%
|
(d) rated* B- or B+
|
50%
|
55%
|
60%
|
(4) Foreign Convertible Corp Bonds
|
|||
(a) rated* AAA through AA-
|
84%
|
87%
|
89%
|
(b) rated* A+ through BBB-
|
79%
|
82%
|
84%
|
(c) rated* BB+ or BB
|
57%
|
60%
|
63%
|
(d) rated* B- or B+
|
45%
|
50%
|
55%
|
$15,000,000
|
June 18, 2018
|
FULLER FAMILY ENTERPRISES, LLC
|
|
By:
|
|
Name:
|
|
Title:
|
LENDER:
|
Morgan Stanley Private Bank, National Association
|
BORROWERS:
|
Fuller Family Enterprises, LLC
|
GUARANTORS:
|
Max L. Fuller and Janice B. Fuller
|
FULLER FAMILY ENTERPRISES, LLC
|
|
By:
|
|
Name:
|
|
Title:
|
|
MAX L. FULLER
|
|
JANICE B. FULLER
|
[_________________________]
|
|
By:
|
|
Name:
|
|
Title:
|
|
[_________________________]
|
By:
|
|
Name:
|
|
Title:
|
Grantor
|
Issuer
|
Stock Cert. #
|
Number
of Shares
|
Indicate Restricted and/or Control Stock
|
From Whom
and How
Acquired
|
Date Acquired
|
Re: |
Proposed Pledge of Common Stock of U.S. Xpress Enterprises, Inc., a Nevada corporation (the “Issuer”), by [_______________] (“Pledgors”).
|
Very truly yours,
|
|
U.S. XPRESS ENTERPRISES, INC.
|
|
By:
|
|
Name:
|
|
Title: General Counsel
|
Certificate No.
|
Shareholder
|
No. of Shares
|
Date Acquired and
Fully Paid
|
Rule 145 Shares
(× If Applicable)
|
Table of Contents
|
||
Page
|
||
ARTICLE I DEFINITIONS, BASIC LOAN AND ACCOUNTING TERMS
|
1
|
|
Section 1.01
|
Certain Defined Terms
|
1
|
Section 1.02
|
Basic Terms, Schedules and Exhibits
|
1
|
Section 1.03
|
Accounting Terms
|
1
|
ARTICLE II THE REVOLVING FACILITY
|
1
|
|
Section 2.01
|
The Revolving Facility
|
1
|
Section 2.02
|
Making the Advances
|
2
|
Section 2.03
|
Terms and Repayment
|
3
|
Section 2.04
|
Taxes
|
3
|
Section 2.05
|
Evidence of Debt
|
4
|
ARTICLE III CONDITIONS TO EFFECTIVENESS AND LENDING
|
4
|
|
Section 3.01
|
Conditions Precedent to Effectiveness of this Agreement
|
4
|
Section 3.02
|
Conditions Precedent to Each Advance Hereunder
|
5
|
ARTICLE IV REPRESENTATIONS AND WARRANTIES
|
6
|
|
Section 4.01
|
Representations and Warranties of the Borrower
|
6
|
ARTICLE V COVENANTS OF THE BORROWER
|
9
|
|
Section 5.01
|
Affirmative Covenants
|
9
|
Section 5.02
|
Negative Covenants
|
12
|
Section 5.03
|
Financial Covenants
|
12
|
ARTICLE VI EVENTS OF DEFAULT
|
13
|
|
Section 6.01
|
Events of Default
|
13
|
ARTICLE VII MISCELLANEOUS
|
16
|
|
Section 7.01
|
Amendments, Etc.
|
16
|
Section 7.02
|
Notices, Etc.
|
17
|
Section 7.03
|
No Waiver; Remedies
|
17
|
Section 7.04
|
Costs and Expenses; Indemnification
|
17
|
Section 7.05
|
Right of Setoff; Certain Waivers
|
18
|
Section 7.06
|
Binding Effect; Successors and Assigns
|
18
|
Section 7.07
|
Governing Law
|
19
|
Section 7.08
|
Execution in Counterparts
|
19
|
Section 7.09
|
Interest Rate Limitation
|
19
|
Section 7.10
|
Jurisdiction, Etc
|
19
|
Section 7.11
|
Assignments and Participations
|
20
|
Section 7.12
|
WAIVER OF JURY TRIAL
|
20
|
Section 7.13
|
Severability of Provisions
|
20
|
Section 7.14
|
Entire Agreement; Jointly Drafted
|
21
|
Section 7.15
|
Headings
|
21
|
Section 7.16
|
Conflicts
|
21
|
Section 7.17
|
Terms Generally
|
21
|
Section 7.18
|
Lender Action
|
21
|
Section 7.19
|
Tax Information
|
21
|
Section 7.20
|
Increased Costs
|
22
|
Section 7.21
|
Capital Adequacy
|
23
|
Section 7.22
|
Joint and Several Liability
|
23
|
Section 7.23
|
Survival
|
23
|
Section 7.24
|
Credit Reports
|
24
|
Section 7.25
|
Financial Advisor Disclaimer
|
24
|
Section 7.26
|
Lender Affiliates
|
24
|
Section 7.27
|
Payments Set Aside; Revival
|
24
|
Section 7.28
|
PATRIOT ACT NOTICE
|
25
|
Section 7.29
|
Other Matters
|
25
|
LIST OF SCHEDULES |
|
SCHEDULE I | CERTAIN DEFINED TERMS | |
SCHEDULE 4.01(i) | EXISTING LIENS |
LIST OF EXHIBITS |
|
EXHIBIT A |
SECURITIES ACCOUNT COLLATERAL MAINTENANCE GUIDELINES
|
|
EXHIBIT B |
FORM OF REVOLVING LINE OF CREDIT PROMISSORY NOTE
|
|
EXHIBIT C | FORM OF COMPLIANCE CERTIFICATE | |
EXHIBIT D | FORM OF FINANCIAL ASSETS SECURITY AGREEMENT | |
EXHIBIT E | FORM OF ISSUER’S LETTER |
Note:
|
See Schedule I hereto for certain definitions of terms used in these Basic Terms.
|
Commitment Amount:
|
$5,000,000
|
Use of Proceeds:
|
The proceeds of the Advances hereunder shall be available (and the Borrower agrees that the Borrower shall use such proceeds or cause such proceeds to be used) solely for (a) the purchase of shares of common stock of US Xpress on the Effective Date and (b) general working capital purposes.
The proceeds of the Advances may be used to purchase or carry margin stock (as defined in Regulation U) or to reduce or retire any indebtedness incurred for such purpose, provided, however, no proceeds of any Advance will be used to repay a loan made by an Affiliate of the Lender (other than Morgan Stanley Bank, N.A.), and in respect thereof, the Borrower shall comply in all respects with Section 7.26 hereof.
|
Payments:
|
All payments to the Lender hereunder shall be made by (i) wire transfer to an account specified by the Lender, or (ii) ACH debit (as described below).
The Borrower may authorize the Lender to initiate ACH debit entries to pay amounts due hereunder from an account to be specified by the Borrower in writing in accordance with requirements established by the Lender. After the Lender receives such authorization from the Borrower in the form determined by the Lender, the authorization shall remain in effect until the Lender receives from the Borrower written notice that such authorization is terminated, and both the Lender and the depository institution holding the account debited by the ACH have sufficient time to act on such notice.
|
Repayment:
|
The Borrower shall pay to the Lender interest on the unpaid principal amount of the Revolving Loan until paid in full. Interest shall accrue on a daily basis and shall be payable in arrears, it being understood and agreed that the Borrower shall make such payment not later than (a) each applicable Interest Payment Date and (b) the Termination Date. Interest may be paid by the Borrower with the proceeds of an Advance made hereunder.
It is further understood and agreed that to the extent that if any such day in which payment is required hereunder, is not a Business Day, the Borrower shall pay to the Lender interest in accordance with this
|
|
Section on the first Business Day preceding such day on which interest would otherwise be due, and on the Termination Date and on such other date when the Revolving Loan shall be paid in full pursuant to this Agreement and the other Loan Documents, or at such other time as demanded by the Lender.
The Borrower shall repay to the Lender on the Termination Date the entire then outstanding principal balance of the Revolving Loan, together with all fees, costs and expenses and accrued and unpaid interest thereon.
|
|
Advances:
|
All Advances hereunder shall be made via ACH deposit to the Designated Account per instructions provided to the Lender by the Borrower. Alternatively, Advances hereunder may be made by wire transfer pursuant to written wire instructions provided by the Borrower to the Lender. Subject to the provisions of Sections 2.02, 3.01 and 3.02 hereof, the Lender shall endeavor to fund requests for Advances received by 1:00 p.m. (Eastern Time) on any Business Day on the same day the request is received.
|
|
Interest:
|
The Revolving Loan shall bear interest at a floating rate of interest equal to the LIBO Rate in effect from time to time plus the Margin, such rate to change when and as the LIBO Rate changes, payable in arrears monthly in accordance with the “Repayment” section of these Basic Terms. If for any reason the LIBO Rate shall cease to be available, interest on the Revolving Loan shall accrue at a rate per annum equal to the Prime Rate plus the Margin.
|
|
Optional Prepayments:
|
The Borrower may prepay all or any part of the Revolving Loan, without premium or penalty, upon at least two (2) Business Days’ prior written notice to the Lender, stating the proposed date of such prepayment and the principal amount of such prepayment, together with accrued interest to the date such prepayment is made.
If any optional prepayment is received by the Lender after 1:00 p.m. (Eastern Time) or on any day other than a Business Day, such prepayment shall be deemed to have been made on the next succeeding Business Day.
|
|
Mandatory Prepayments:
|
If at any time the Revolving Loan exceeds the Commitment Amount, the Borrower shall immediately make a payment in an amount sufficient to reduce the Revolving Loan to an amount that is not greater than the Commitment Amount. Upon such prepayment by the Borrower, the Lender shall advise the Borrower of, and the Borrower shall immediately pay to the Lender, accrued and unpaid interest at the interest rate set forth herein on the amount of such prepayment of the
|
|
Revolving Loan to the date of such prepayment. Each prepayment made hereunder shall be applied by the Lender to repayment of the Revolving Loan in such order as the Lender in its sole and absolute discretion shall select.
In addition, upon the sale, transfer or other disposition by any Loan Party of any of the common shares of US Xpress stock owned by such Loan Party, the proceeds thereof shall be immediately remitted to the Lender and applied to the outstanding amount of the Revolving Loan and all accrued and unpaid interest thereon.
If any mandatory prepayment is received by the Lender after 1:00 p.m. (Eastern Time) or on any day other than a Business Day, such prepayment shall be deemed to have been made on the next succeeding Business Day.
|
Collateral
Maintenance:
|
With respect to Collateral held in the Securities Accounts, if at any time during the Secured Period the aggregate unpaid principal amount of the Revolving Loan exceeds the product obtained by multiplying the aggregate Market Value of each type of Collateral set forth in Column A of Exhibit A hereto by the corresponding percentage specified in Column C of Exhibit A hereto (a “Margin Shortfall”), then the Borrower shall, within five (5) Business Days thereof, (i) make a payment to reduce the unpaid principal amount of the Revolving Loan, (ii) deposit additional Collateral of a type and nature acceptable to the Lender, in its sole and absolute discretion, into the Securities Accounts, or (iii) make a combination of the payments and deposits specified in clauses (i) and (ii) above, in an amount sufficient to ensure that the then outstanding principal amount of the Revolving Loan is equal to or less than the product obtained by multiplying the aggregate Market Value (calculated as of the close of business on the date of receipt of such payment or deposit) of each type of Collateral set forth in Column A of Exhibit A hereto times the corresponding percentage specified in Column B of Exhibit A hereto (the “Shortfall Cure Amount”). If the Borrower fails to cure the Margin Shortfall as set forth above within such five (5) Business Day period, the Lender shall have the immediate right, without notice or other action (notwithstanding any prior notice that may have been given in respect of such Margin Shortfall or anything else contained herein), to exercise any or all other remedies available to the Lender herein or any other Loan Document (including, the liquidation of the Collateral held in the Securities Accounts).
If the Borrower makes a payment and/or deposit of additional Collateral in respect of, and in order to cure, the Margin Shortfall, the Lender shall, in its sole and absolute discretion, apply such payment or deposit of additional Collateral to either (a) reduce the aggregate unpaid principal amount outstanding under the Revolving Loan, or (b)
|
increase the Market Value of the Collateral held in the Securities Accounts in an amount equal to or greater than the Shortfall Cure Amount.
|
|
Notwithstanding the foregoing, if at any time during the Secured Period the aggregate unpaid principal amount of the Revolving Loan exceeds the product obtained by multiplying the aggregate Market Value of each type of Collateral set forth in Column A of Exhibit A hereto times the corresponding percentage specified in Column D of Exhibit A hereto (a “Sell-Out Shortfall”), then the Borrower shall immediately (x) make a payment to reduce the unpaid principal amount of the Revolving Loan, (y) deposit additional Collateral of a type and nature acceptable to the Lender, in its sole and absolute discretion, into the Securities Accounts, or (z) make a combination of the payments and deposits specified in clauses (x) and (y) above, in an amount sufficient to ensure that then outstanding principal amount of the Revolving Loan is equal to or less than the Shortfall Cure Amount. If the Borrower fails to immediately make such payment and/or deposit in respect of the Shortfall Cure Amount, the Lender shall have the immediate right, without notice or other action (notwithstanding any prior notice given under the preceding paragraph or anything else contained herein), to exercise any or all other remedies available to the Lender herein or any other Loan Document (including the liquidation of the Collateral held in the Securities Accounts).
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Only Collateral in the Securities Accounts of the specific types indicated in Column A of Exhibit A hereto, and having a per share value equal to or greater than that indicated in Column A of Exhibit A hereto for such type of Collateral, if any, shall be included by the Lender in determining the value of the Collateral in the Securities Accounts for purposes of ascertaining whether a Margin Shortfall or Sell-Out Shortfall has occurred from time to time or at any time. Additionally, if at any time (a) more than 25% of the aggregate Market Value of the Collateral in the Securities Accounts consists of securities issued by a single issuer of the type specified in rows (8)(a) or (9) of Appendix A in Exhibit A hereto, or row (2) of Appendix B in Exhibit A hereto, (b) the securities of any issuer (other than US Xpress) held in the Securities Accounts represent five percent (5%) or more of the total issued and outstanding shares of such issuer, or (c) the securities of US Xpress held in the Securities Accounts represent seven percent (7%) or more of the total issued and outstanding shares of US Xpress, in each case, all of such securities shall be excluded in ascertaining the existence of any Margin Shortfall or Sell-Out Shortfall, at such time.
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Payments and Computations:
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The Borrower shall make each payment hereunder in respect of interest on, principal of, or other amounts related to the Revolving Loan not later than 12:00 noon (Eastern Time) on the day when due in Dollars in same day funds, with payments being so received by the Lender after such time being deemed to have been made on the next succeeding Business Day.
All computations of interest hereunder shall be made by the Lender on the basis of a year of three hundred sixty (360) days for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest is payable. Each determination by the Lender of an interest rate hereunder shall be conclusive and binding for all purposes, absent manifest error. Whenever any payment hereunder shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest.
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Late Charge:
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If the Borrower fails to pay any interest or principal payment on the Revolving Loan within five (5) days after the same becomes due and payable hereunder, the Borrower shall, at the option of the Lender, pay to the Lender a late charge equal to five percent (5%) of the amount of such payment, payable on the sixth (6th) day after such payment becomes due and payable hereunder (the “Late Charge”).
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Default Rate:
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In addition to any applicable Late Charge, upon the occurrence and during the continuance of an Event of Default, the interest on the aggregate unpaid principal amount of the Revolving Loan shall be increased, at the option of the Lender, to a rate equal to the lesser of three percent (3%) per annum above the rate of interest applicable hereunder or the Maximum Rate (the “Default Rate”).
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Commitment Fee:
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Commitment fee waived.
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Other Fees:
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The Borrower has paid all fees that are outlined in the Letter of Interest.
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Unused Availability Fee:
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The Borrower will pay to the Lender an unused availability fee equal to 0.35% per annum of the daily unused portion of the Commitment Amount, which fee shall be payable quarterly, in arrears, on the fifteenth (15th) day of the calendar month immediately following the end of each calendar quarter during the term hereunder and on the Termination Date.
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Notices, Etc.:
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All notices and other communications provided for hereunder shall be in writing (or any other method of communication authorized by the Lender) and sent by a reputable overnight courier or delivery service to
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the Borrower at the Borrower’s address at XXX; or if to the Lender, at its address at Morgan Stanley Private Bank, National Association, c/o Morgan Stanley Smith Barney LLC, 2000 Westchester Avenue, Floor 2NE, Purchase, New York 10577, Attention: Tailored Lending, Attention: Tailored Lending; or, as to the Borrower or the Lender at such other address as shall be designated by such party in a written notice to the other party or, in the case of a change of the Borrower’s address, as may be requested by the Borrower in writing to the Lender or by any other means agreed to by the Lender. All such notices and communications shall, when sent by reputable overnight courier or delivery system, be effective on the Business Day following the day when the same is sent in such manner, except that notices and communications to the Lender pursuant to Article II shall not be effective until received by the Lender. Delivery by electronic means of an executed counterpart of any amendment or waiver of any provision of this Agreement or of any schedule or exhibit hereto to be executed and delivered hereunder shall be as effective as delivery of an original executed counterpart thereof.
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(2)
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The Lender has agreed to extend to the Borrower such revolving line of credit on the terms and conditions hereinafter set forth.
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By:
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/s/ William E. Fuller
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WILLIAM E. FULLER
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MORGAN STANLEY PRIVATE BANK,
NATIONAL ASSOCIATION
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By:
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/s/ David Natzke
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Name: David Natzke
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Title: Authorized Signatory
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Column A
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Column B
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Column C
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Column D
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Type of Pledged Collateral
Any security not specifically listed, and all securities issued by Morgan Stanley or its affiliates (except MGPXX), shall be deemed ineligible.
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Loanable Value
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Margin Call
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Sell-Out
|
(1)(a) Cash, Cash Equivalents, Commercial Paper and Banker’s Acceptances rated A1 / P1, Money Market Funds,
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97%
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98%
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99%
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(1)(b) FDIC-insured, brokered CDs with maturities less than 5yrs (Issuer positions not to exceed FDIC insured limits).
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90%
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92%
|
94%
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(2) Government Obligations (Direct or Guaranteed), US Treasury Bills, Notes, Bonds, US Government Agencies (e.g. FHLB, FFCB), US Treasury Mutual Funds, and Pre-refunded Bonds collateralized by any of these securities;
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|||
(a) All Pre-refunded Bonds (regardless of Tenor) and others with a Tenor less than 5 years
|
96%
|
96%
|
97%
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(b) Tenor 5-9 years
|
94%
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94%
|
95%
|
(c) Tenor 10-19 years
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92%
|
93%
|
94%
|
(d) Tenor 20+ years
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90%
|
91%
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92%
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(3) All other US Government Agency Debt (e.g. FNMA, FHLMC);
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|||
(a) Tenor less than 5 years
|
96%
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96%
|
97%
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(b) Tenor 5-9 years
|
92%
|
93%
|
95%
|
(c) Tenor 10-19 years
|
88%
|
90%
|
92%
|
(d) Tenor 20+ years
|
82%
|
85%
|
89%
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(4) State and Municipal Obligations with no position >15% of the current outstanding issuance size;
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|||
(a) rated* AAA through BBB-
|
84%
|
87%
|
89%
|
(b) rated* BB+ through BB
|
70%
|
73%
|
76%
|
(c) rated* B- or B+
|
50%
|
55%
|
60%
|
Column A
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Column B
|
Column C
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Column D
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(5) Non-Convertible Corp Bonds with a price ≥$40, a current outstanding issuance of at least $25 million, and no position >15% of the issue size;
|
|||
(a) rated* AAA through AA-
|
89%
|
92%
|
94%
|
(b) rated* A+ through BBB-
|
84%
|
87%
|
89%
|
(c) rated* BB+ or BB
|
62%
|
65%
|
68%
|
(d) rated* B- or B+
|
50%
|
55%
|
60%
|
(6) Municipal Bond and Corporate Bond Mutual Funds trading >=$4/sh (open end after 30-days and closed end).
|
50%
|
83%
|
86%
|
(7) Convertible Corp Bonds with a price ≥$40, a current outstanding issuance of at least $25 million, and no position >15% of the issue size;
|
|||
(a) rated* AAA through AA-
|
50%
|
87%
|
89%
|
(b) rated* A+ through BBB-
|
50%
|
82%
|
84%
|
(c) rated* BB+ or BB
|
50%
|
60%
|
63%
|
(d) rated* B- or B+
|
45%
|
50%
|
55%
|
(8)(a) Diversified Common, Preferred and Convertible Preferred Equities and Unit Investment Trusts trading on a National Securities Exchange as defined by the Securities Exchange Act of 1934;**
|
|||
(a) >= $10.00/sh -
|
50%
|
78%
|
80%
|
(b) $9.00 – 9.99/sh
|
50%
|
65%
|
70%
|
(c) $8.00 – 8.99/sh
|
50%
|
60%
|
65%
|
(d) $7.00 – 7.99/sh
|
50%
|
55%
|
60%
|
(e) $4.00 – 6.99/sh
|
50%
|
53%
|
55%
|
(8)(b) Eligible US Xpress Shares
|
25%
|
35%
|
40%
|
(9) Diversified ADRs trading >= $10/sh on a National Securities Exchange as defined by the Securities Exchange Act of 1934**
|
50%
|
78%
|
80%
|
(10) Balanced and Diversified Stock Mutual Funds (open end after 30-days and closed end) and Exchange Traded Funds. On-shore funds only. Offshore Mutual Funds permitted in the case of Non U.S. Residents. (Offshore mutual funds must have National Securities Clearing Corp. (NSCC) Networking Level 3 agreement or equivalent between the fund and MSWM).
|
|||
(a) >= $4.00/sh
|
50%
|
83%
|
86%
|
(b) $2.00 – 3.99/sh
|
50%
|
70%
|
74%
|
(11) Specialized / Sector and International Mutual Funds and ETFs
>=$4/sh. Includes High Yield, levered or inverse Mutual Funds and ETFs.
|
50%
|
73%
|
76%
|
(12) Eligible third-party Managed Accounts*** with a Risk Category of:
|
|||
1
|
50%
|
88%
|
90%
|
2
|
50%
|
85%
|
87%
|
3
|
50%
|
81%
|
83%
|
4
|
50%
|
77%
|
79%
|
5
|
50%
|
73%
|
75%
|
Column A
|
Column B
|
Column C
|
Column D
|
Type of Pledged Collateral
Any security not specifically listed, all securities issued by Morgan Stanley or its affiliates (except MGPXX), and any security issued in CNH currency shall be deemed ineligible.
|
Loanable Value
|
Margin Call
|
Sell-Out
|
(1) Sovereign Bonds of approved countries;
|
|||
(a) rated* AAA through AA-
|
90%
|
93%
|
95%
|
(b) rated* A+ through BBB-
|
80%
|
83%
|
85%
|
(c) rated* BB+ or BB
|
70%
|
73%
|
75%
|
(2) Foreign Diversified Common, Preferred and Convertible Preferred Equities**
|
75%
|
78%
|
80%
|
(3) Foreign Non-Convertible Corp Bonds ;
|
|||
(a) rated* AAA through AA-
|
89%
|
92%
|
94%
|
(b) rated* A+ through BBB-
|
84%
|
87%
|
89%
|
(c) rated* BB+ or BB
|
62%
|
65%
|
68%
|
(d) rated* B- or B+
|
50%
|
55%
|
60%
|
(4) Foreign Convertible Corp Bonds
|
|||
(a) rated* AAA through AA-
|
84%
|
87%
|
89%
|
(b) rated* A+ through BBB-
|
79%
|
82%
|
84%
|
(c) rated* BB+ or BB
|
57%
|
60%
|
63%
|
(d) rated* B- or B+
|
45%
|
50%
|
55%
|
$5,000,000
|
June 18, 2018
|
|
WILLIAM E. FULLER |
LENDER:
|
Morgan Stanley Private Bank, National Association
|
BORROWERS:
|
William E. Fuller
|
GUARANTOR:
|
Max L. Fuller 2008 Irrevocable Trust FBO William E. Fuller
|
WILLIAM E. FULLER
|
MAX L. FULLER 2008 IRREVOCABLE TRUST FBO WILLIAM E. FULLER
|
By:
|
|
William E. Fuller, Trustee
|
By:
|
|
Janice B. Fuller, Trustee
|
[
|
]
|
|
By:
|
|
Name:
|
|
Title:
|
|
[
|
]
|
|
By:
|
|
Name:
|
|
Title:
|
Grantor
|
Issuer
|
Stock Cert. #
|
Number
of Shares
|
Indicate Restricted and/or
Control
Stock
|
From Whom and How Acquired
|
Date Acquired
|
Re: |
Proposed Pledge of Common Stock of U.S. Xpress Enterprises, Inc., a Nevada corporation (the “Issuer”), by [_______________] (“Pledgors”).
|
Very truly yours,
|
|
U.S. XPRESS ENTERPRISES, INC.
|
|
By:
|
|
Name:
|
|
Title: General Counsel
|
|
Certificate No.
|
Shareholder
|
No. of Shares
|
Date Acquired and
Fully Paid
|
Rule 145 Shares
(× If Applicable)
|