VOTING AGREEMENT
Exhibit 99.11
THIS AGREEMENT dated as of June 13, 2018, by and among the undersigned, the owners or holders of the shares of Class B Common Stock (the “Subject Shares”) issued by U.S. Xpress Enterprises, Inc., (“US Xpress” or the “Company”) as set forth on Exhibit A, attached hereto. The undersigned Xxxx X. Xxxx is sometimes referred to herein as “Xxxx Xxxx”; Xxxxxxx Xxxx Xxxxxx is sometimes referred to herein as “Xxxx Xxxxxx”; and Xxx X. Xxxxxx is sometimes referred to herein as “Xxx Xxxxxx”. The Irrevocable Trust F/B/O Xxxx Xxxx is sometimes referred to herein as “Trust F/B/O Xxxx Xxxx.” Xxxxx Family Partners is a Family Limited Partnership, of which Xxxx Xxxx is the managing general partner. The Irrevocable Trust F/B/O Xxxxxxx Xxxxxx is sometimes referred to herein as “Trust F/B/O Xxxxxxx Xxxxxx.” Xxxxxx Family Enterprises, LLC is a Limited Liability Company, of which Xxx Xxxxxx and Xxxxxx Xxxxxx are the members. Xxxxxx Xxxxxx, the wife of Xxx Xxxxxx, joins in this agreement individually, and in her capacity together with Xxx Xxxxxx as a member of Xxxxxx Family Enterprises. The Xxx Xxxxxx Family Limited Partnership is a Family Limited Partnership, of which Xxxx Xxxxxx is the managing general partner. The undersigned trusts and entities, generally, and Xxxx Xxxx, Xxxx Xxxxxx and Xxx Xxxxxx, generally, are each sometimes referred to herein as “Shareholder” and collectively as “Shareholders”). For purposes of this Agreement, Exhibit A, attached hereto, lists all Subject Shares that Xxxx X. Xxxx, Xxxxxxx Xxxx Xxxxxx, Xxx Xxxxxx and Xxxxxx Xxxxxx are entitled to vote, including, but not limited to, those Subject Shares held by the Trust F/B/O Xxxx Xxxx, the Trust F/B/O Xxxxxxx Xxxxxx, Xxxxx Family Partners, Xxxxxx Family Enterprises, LLC, and the Xxx Xxxxxx Family Limited Partnership.
WHEREAS, the Shareholders believe it to be in the best interests of themselves and the Company that their Subject Shares be voted in accordance with the provisions of this Agreement for a period of fifteen (15) years from the date hereof or the earlier termination of this Agreement in accordance with its terms in order to provide that the Subject Shares shall be voted by Xxxx Xxxx, Xxxx Xxxxxx and Xxx Xxxxxx, or their successors designated in this Agreement, and in order that such Subject Shares shall be voted by persons having prudent and extensive experience in the management of the Company; and
WHEREAS, the Shareholders by entering into this Agreement, wish to provide an order of succession pursuant to which on the death or incapacity of any of Xxxx Xxxx, Xxxx Xxxxxx, Xxx Xxxxxx, or Xxxxxx Xxxxxx their right to vote the Subject Shares held by or for them shall pass to their successors named herein, in the order and on the terms and conditions as set forth herein; and
WHEREAS, the Shareholders’ successors, as set forth herein, for such term as is provided, shall be the agent and attorney-in-fact of the Shareholders possessing the irrevocable powers and voting rights in accordance with the irrevocable proxies to be granted as set forth herein.
NOW THEREFORE, wishing to bind themselves, their heirs, successors and assigns, the undersigned Shareholders agree as follows:
1. During the term of this Agreement, and until their death or incapacity (as defined herein), each of Xxxx Xxxx, Xxxx Xxxxxx and Xxx Xxxxxx shall vote all of the Subject Shares now or hereafter held by them, or now or hereafter held for them (whether in trust, or in any other form or by any other entity, or whether alone or in combination with others) without limitation, subject only to the designation of successors and the right of such successors to vote such shares as provided in Section 2 hereof. During the term of this Agreement, and until her death or incapacity, any of the Subject Shares now or hereafter held by Xxxxxx Xxxxxx, or now or hereafter held for her (whether in trust, or in any other form or by any other entity, or whether alone or in combination with others) shall be voted by Xxx Xxxxxx, subject only to the designation of successors and the right of such successors to vote such shares as provided in Section 2 hereof. For the avoidance of doubt, during the term of this Agreement, in the case of the death or incapacity of Xxx Xxxxxx before the death or incapacity of Xxxxxx Xxxxxx, the right to vote Xxxxxx Xxxxxx’x Subject Shares shall pass to the successors named in Section 2(c) hereof, in the order set forth therein. For purposes of this Agreement, the “incapacity” of an individual shall mean a condition of mental or physical disability that materially interferes with such individual’s ordinary, rational decision making, and as certified by a qualified medical professional.
2. During the term of this Agreement and upon the death or incapacity of any of Xxxx Xxxx, Xxxx Xxxxxx, Xxx Xxxxxx or Xxxxxx Xxxxxx the right to vote their Subject Shares shall pass to the successors named below, in the order set forth, as follows:
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a.
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Successors to Xxxx Xxxx upon her death or incapacity:
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1.
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Xxxx Xxxxxx, if qualified, and for so long as he remains qualified;
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2.
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Xxx Xxxxxx, if qualified and for so long as he remains qualified, if Xxxx Xxxxxx is not qualified;
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3.
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If neither Xxxx Xxxxxx nor Xxx Xxxxxx is qualified, then there is no successor.
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b.
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Successors to Xxxx Xxxxxx upon his death or incapacity:
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1.
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Xxx Xxxxxx, if qualified, and for so long as he remains qualified;
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2.
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Xxxx Xxxx, if qualified, and for so long as she remains qualified, if Xxx Xxxxxx is not qualified;
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3.
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If neither Xxx Xxxxxx nor Xxxx Xxxx is qualified, then there is no successor.
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c.
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Successors to Xxx Xxxxxx upon his death or incapacity:
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1.
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Xxxx Xxxxxx, if qualified, and for so long as he remains qualified;
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2.
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Xxxx Xxxx, if qualified and for so long as she remains qualified, if Xxxx Xxxxxx is not qualified;
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3.
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If neither Xxxx Xxxxxx nor Xxxx Xxxx is qualified, then there is no successor.
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d.
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Successors to Xxxxxx Xxxxxx upon her death or incapacity:
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1.
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Xxx Xxxxxx, if qualified, and for so long as he remains qualified;
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2.
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Xxxx Xxxxxx, if qualified, and for so long as he remains qualified, if Xxx Xxxxxx is not qualified;
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3.
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Xxxx Xxxx, if qualified and for so long as she remains qualified, if Xxx Xxxxxx and Xxxx Xxxxxx are not qualified;
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4.
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If none of Xxx Xxxxxx, Xxxx Xxxxxx or Xxxx Xxxx is qualified, then there is no successor;
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Provided, however, to be qualified to serve as a successor for purposes of this Agreement, the potential successor must both:
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1.
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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
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2.
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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.
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3. The right of the successor to vote such Subject Shares shall include, but not be limited to, the right to vote at all annual, special or other meetings of the Company’s shareholders (or for purposes of any action by written consent in lieu of any such meeting or for purposes of taking any corporate action required or permitted to be taken by vote of the Company’s shareholders) and at any other time or times that such shares are required to be, or may be voted.
4. Upon the execution of this Agreement, each of the Shareholders shall execute and deliver the irrevocable proxies in the form attached hereto as collective Annex A, which shall be effective upon the circumstances outlined in Section 2 hereof.
5. From time to time, and as requested by such successors, the Shareholders and their heirs, executors, administrators, trustees, or guardians, agree to take any such further action as is reasonably necessary or desirable to cause all Subject Shares held by them to be subject to the provisions of this Agreement. In particular, and not in limitation of the foregoing provision, in the event of the death or incapacity of any Shareholder, their permitted transferees, personal representatives, successors, assigns, heirs, and grantees (and any subsequent transferees of those persons) shall become parties to this Agreement and shall execute and deliver irrevocable proxies in the form of proxy attached hereto as Annex A.
6. Nothing in this Agreement shall limit or otherwise restrict the right of any Shareholder or their successors and assignees to sell, convert, transfer or dispose of the Subject Shares owned by them or held for their benefit. Any Shareholder may, in the absolute discretion of such Shareholder, sell, convert, transfer, or dispose from time to time any or all of their shares subject to this Agreement. If such transfer is not otherwise permitted by the Company’s Charter, then such shares of Class B Common Stock shall be converted to shares of common stock prior to such transfer. Any transfer otherwise permitted by the Company’s Charter to a permitted transferee of such party of Class B Common Stock may be made without converting such shares to common stock provided that such transferred shares shall remain subject to this Agreement for the term hereof.
7. This Agreement shall continue in effect until 15 years from the date of this Agreement; provided, however that this Agreement shall terminate (i) at such time as no Shareholder holds Subject Shares, (ii) at such time as no individual named as a successor in Section 2 of this Agreement is qualified to be a successor; and provided further, that this Agreement may be terminated at any time by a written agreement signed by all Shareholders then a party to the Agreement.
8. This Agreement may not be modified or amended except by a written agreement signed by or on behalf of each Shareholder then a party to the Agreement.
9. Each Shareholder agrees to perform any act and to execute and deliver any documents or instruments which may be reasonably necessary or desirable to fully implement the provisions of this Agreement.
10. This Agreement supersedes, terminates and cancels all other oral or written agreements entered into prior to the date of this Agreement between any of the parties with respect to the matters covered herein.
11. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument
12. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision. If any provision of this Agreement is determined by a court of competent jurisdiction to be in conflict with applicable law, then such provision will not be wholly invalid but will be enforced to the maximum extent permitted by law.
13. The omission by any party to insist upon strict performance of any provision of this Agreement shall not be construed as a waiver of such provision, and the waiver by any party of a breach of any provision of this Agreement shall not be construed as a waiver of any subsequent breach of such provision.
14. This Agreement shall be binding upon and enforceable by the permitted transferees, personal representatives, successors, assigns, heirs, grantees and pledgees of the parties and of any subsequent transferees of those persons.
15. This Agreement has been entered into and shall be governed, construed and interpreted pursuant to and in accordance with the laws of the State of Nevada.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement effective the day and year first above written.
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SHAREHOLDERS:
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XXXX X. XXXX
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/s/ Xxxx X. Xxxx
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(Individually)
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IRREVOCABLE TRUST F/B/O XXXX X. XXXX
XXXX X. XXXX, TRUSTEE
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/s/ Xxxx X. Xxxx
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As Trustee of the Trust F/B/O Xxxx X. Xxxx
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XXXXX FAMILY PARTNERS,
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XXXX X. XXXX, MANAGING GENERAL PARTNER
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/s/ Xxxx X. Xxxx
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As managing general partner of Xxxxx Family Partners
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XXXXXXX X. XXXXXX
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/s/ Xxxxxxx X. Xxxxxx
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(Individually)
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IRREVOCABLE TRUST F/B/O XXXXXXX X. XXXXXX
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XXXXXXX X. XXXXXX, TRUSTEE
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/s/ Xxxxxxx X. Xxxxxx
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As Trustee of the Trust F/B/O Xxxxxxx X. Xxxxxx
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[Signature Page to Voting Agreement]
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XXX XXXXXX FAMILY LIMITED PARTNERSHIP
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XXXXXXX X. XXXXXX, MANAGING GENERAL PARTNER
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/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, in his capacity as managing general partner
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XXX X. XXXXXX
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/s/ Xxx X. Xxxxxx
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(Individually)
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XXXXXX FAMILY ENTERPRISES, LLC
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XXX X. XXXXXX, MEMBER
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/s/ Xxx X. Xxxxxx
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Xxx X. Xxxxxx, in his capacity as a member
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XXXXXX FAMILY ENTERPRISES, LLC
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XXXXXX XXXXXX, MEMBER
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/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx, in her capacity as a member
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XXXXXX XXXXXX
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/s/ Xxxxxx Xxxxxx
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(Individually)
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[Signature Page to Voting Agreement]
ANNEX A
FORM OF IRREVOCABLE PROXY
In consideration of the receipt of One Dollar ($1.00), cash in hand paid, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the undersigned shareholders nominate and appoint XXXX X. XXXX as their true and lawful attorney, with full power of substitution for and in their name, to vote all of the shares of Class B Common Stock of US Xpress Enterprises, Inc., a Nevada corporation, of which the undersigned shareholders are or hereafter may be the owner, at any and all annual, special or other meetings of the shareholders of US Xpress Enterprises, Inc. and for any and all purposes, so long as this irrevocable proxy remains in full force and effect; the attorney is to have all of the powers which the undersigned parties would possess if present personally at any meetings; provided that this nomination and appointment shall only be effective upon and for so long as required by the terms of the Voting Agreement dated as of June 13, 2018, to which the undersigned are parties, and it shall continue in effect until such date as the Voting Agreement shall terminate.
Dated this 13th day of June, 2018.
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SHAREHOLDERS
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/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx (Individually)
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/s/ Xxxxxxx X. Xxxxxx
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Irrevocable Trust F/B/O Xxxxxxx X. Xxxxxx
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| By: Xxxxxxx X. Xxxxxx, Trustee | |
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/s/ Xxxxxxx X. Xxxxxx
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Xxx Xxxxxx Family Limited Partnership
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| By: Xxxxxxx X. Xxxxxx, Managing General Partner | |
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/s/ Xxx X. Xxxxxx
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Xxx X. Xxxxxx (Individually)
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/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx (Individually)
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| /s/ Xxx X. Xxxxxx | |
| Xxxxxx Family Enterprises, LLC | |
| By: Xxx X. Xxxxxx, Member | |
| /s/ Xxxxxx Xxxxxx | |
| Xxxxxx Family Enterprises, LLC | |
| By: Xxxxxx Xxxxxx, Member | |
FORM OF IRREVOCABLE PROXY
In consideration of the receipt of One Dollar ($1.00), cash in hand paid, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the undersigned shareholders nominate and appoint XXXXXXX X. XXXXXX as their true and lawful attorney, with full power of substitution for and in their name, to vote all of the shares of Class B Common Stock of US Xpress Enterprises, Inc., a Nevada corporation of which the undersigned shareholders are or hereafter may be the owner, at any and all annual, special or other meetings of the shareholders of US Xpress Enterprises, Inc. and for any and all purposes, so long as this irrevocable proxy remains in full force and effect; the attorney is to have all of the powers which the undersigned parties would possess if present personally at any meetings; provided that this nomination and appointment shall only be effective upon and for so long as required by the terms of the Voting Agreement dated June 13, 2018, to which the undersigned are parties, and it shall continue in effect until such date as the Voting Agreement shall terminate.
Dated this 13th day of June, 2018.
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SHAREHOLDERS
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/s/ Xxx X. Xxxxxx
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Xxx X. Xxxxxx (Individually)
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/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx (Individually)
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/s/ Xxx X. Xxxxxx
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Xxxxxx Family Enterprises, LLC
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| By: Xxx X. Xxxxxx, Member | |
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/s/ Xxxxxx Xxxxxx
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Xxxxxx Family Enterprises, LLC
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| By: Xxxxxx Xxxxxx, Member | |
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/s/ Xxxx X. Xxxx
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Xxxx X. Xxxx (Individually)
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| /s/ Xxxx X. Xxxx | |
| Irrevocable Trust F/B/O Xxxx X. Xxxx | |
| By: Xxxx X. Xxxx, Trustee | |
| /s/ Xxxx X. Xxxx | |
| Xxxxx Family Partners | |
| By: Xxxx X. Xxxx, Managing General Partner | |
FORM OF IRREVOCABLE PROXY
In consideration of the receipt of One Dollar ($1.00), cash in hand paid, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the undersigned shareholders nominate and appoint XXX X. XXXXXX as their true and lawful attorney, with full power of substitution for and in their name, to vote all of the shares of Class B Common Stock of US Xpress Enterprises, Inc., a Nevada corporation of which the undersigned shareholders are or hereafter may be the owner, at any and all annual, special or other meetings of the shareholders of US Xpress Enterprises, Inc. and for any and all purposes, so long as this irrevocable proxy remains in full force and effect; the attorney is to have all of the powers which the undersigned parties would possess if present personally at any meetings; provided that this nomination and appointment shall only be effective upon and for so long as required by the terms of the Voting Agreement dated June 13, 2018, to which the undersigned are parties, and it shall continue in effect until such date as the Voting Agreement shall terminate.
Dated this 13th day of June, 2018.
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SHAREHOLDERS
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/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx (Individually)
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/s/ Xxxxxxx X. Xxxxxx
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Irrevocable Trust F/B/O Xxxxxxx X. Xxxxxx
By: Xxxxxxx X. Xxxxxx, Trustee |
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/s/ Xxxxxxx X. Xxxxxx
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Xxx Xxxxxx Family Limited Partnership
By: Xxxxxxx X. Xxxxxx, Managing General Partner |
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/s/ Xxxx X. Xxxx
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Xxxx X. Xxxx (Individually)
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/s/ Xxxx X. Xxxx
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Irrevocable Trust F/B/O Xxxx X. Xxxx
By: Xxxx X. Xxxx, Trustee
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| /s/ Xxxx X. Xxxx | |
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Xxxxx Family Partners
By: Xxxx X. Xxxx, Managing General Partner
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| /s/ Xxxxxx Xxxxxx | |
| Xxxxxx Xxxxxx (Individually) | |
| /s/ Xxx X. Xxxxxx | |
| Xxxxxx Family Enterprises, LLC By: Xxx X. Xxxxxx, Member |
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| /s/ Xxxxxx Xxxxxx | |
| Xxxxxx Family Enterprises, LLC By: Xxxxxx Xxxxxx, Member |
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EXHIBIT A
SHAREHOLDERS AND SHAREHOLDINGS
JUNE 13, 2018
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SHAREHOLDERS
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SHAREHOLDINGS
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Xxxx X. Xxxx (1)
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4,996,743
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Trust F/B/O Xxxx Xxxx
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3,374,516
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Xxxxx Family Partners
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1,400,005
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Xxxxxxx Xxxx Xxxxxx (2)
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3,905,105
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Trust F/B/O Xxxxxxx Xxxxxx
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1,993,269
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Xxx Xxxxxx Family Limited Partnership
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1,609,613
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Xxx Xxxxxx (3)
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7,375,314
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Xxxxxx Xxxxxx (4)
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7,308,651
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Xxxxxx Family Enterprises, LLC
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7,308,651
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(1) Subject Shares that Xxxx X. Xxxx is entitled to vote subject to this Agreement include shareholdings by Xxxx X. Xxxx, Xxxxx Family Partners and Trust F/B/O Xxxx Xxxx.
(2) Subject Shares that Xxxxxxx Xxxx Xxxxxx is entitled to vote subject to this Agreement include shareholdings by Xxxxxxx Xxxx Xxxxxx, Trust F/B/O Xxxxxxx Xxxxxx and Xxx Xxxxxx Family Limited Partnership.
(3) Subject Shares that Xxx Xxxxxx is entitled to vote subject to this Agreement include shareholdings by Xxx Xxxxxx and Xxxxxx Family Enterprises, LLC
(4) Includes shareholdings by Xxxxxx Family Enterprises, LLC. For the avoidance of doubt, Xxxxxx Xxxxxx is not entitled to vote any Subject Shares.
Back to Schedule 13D
