ANNEX II
VOTING AGREEMENT
This Voting Agreement (this "Agreement"), is made and entered into as of
this 7th day of July, 1998, by and among U.S. XPRESS ENTERPRISES, INC., a
Nevada corporation ("Enterprises"), and Xxxxxxx X. Xxxxxx, a Nevada resident
with his principal residence at (the "Shareholder"), a shareholder
of PST VANS, INC., a Utah corporation (the "Company"), pursuant to the
provisions of Section 16-10a-731 of the Utah Revised Business Corporation Act.
Whereas, Enterprises and the Company intend to enter into an agreement and
plan of merger, substantially in the form attached hereto as Exhibit A (such
agreement and plan of merger and any amendments thereto being hereinafter
referred to as the "Merger Agreement"), pursuant to which PST will be merged
with and into a wholly-owned subsidiary of Enterprises (the "Merger");
Whereas, Enterprises and Shareholder desire to make certain agreements with
respect to voting the Common Stock owned by Shareholder.
Now, Therefore, in consideration of the premises and the mutual
representations, warranties and agreements herein contained, and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
The Voting Agreement
1.1 Voting Agreement and Grant of Proxy. Shareholder agrees that during the
term of this Agreement: (a) all of the Shares shall be voted by Shareholder in
favor of the Merger or any other business combination agreed upon between the
Company and Enterprises; and (b) if so requested by Enterprises, Shareholder
shall grant an irrevocable proxy in favor of such individuals as Enterprises
may designate so as to enable such designees to vote in favor of the Merger or
such other business combination and upon any other matter relating thereto
which may be presented to shareholders of the Company and, at such time,
Shareholder shall execute the form of proxy set forth in Exhibit B hereto.
1.2 Independent Contract Consideration. Upon the execution of this Agreement
by the parties hereto, Enterprises will deliver to Shareholder the amount of
One Hundred and No/100 Dollars ($100.00) (the "Independent Contract
Consideration") which amount has been bargained for and agreed to as
consideration for Shareholder's execution of this Agreement. The Independent
Contract Consideration is in addition to and independent of all other
consideration provided in this Agreement, and is nonrefundable in all events.
1.3 Term of Agreement. The term of this Agreement shall be from the
effective date hereof until October 31, 1999 or the date of termination of the
Merger Agreement, whichever occurs later.
ARTICLE II
Representations and Warranties
2.1 Representations and Warranties of Shareholder. Shareholder, hereby
represents and warrants to, and agrees with, Enterprises that:
(a) Shareholder owns, of record and beneficially, good and valid title to
the shares of common stock of the Company as set forth on Exhibit C (the
"Shares") and has full right, power and authority to grant an option upon, and
grant a proxy with respect to, the Shares;
(b) The Shares are now, and will be at all times during the term of this
Agreement, held by Shareholder free and clear of all liens, pledges, security
interests, claims or other encumbrances and will not be sold, transferred,
pledged or assigned, except pursuant to the Merger Agreement;
II-1
(d) This Agreement constitutes a legal, valid and binding agreement of
Shareholder and neither the execution of this Agreement nor the consummation
by Shareholder of the transactions contemplated hereby will constitute a
violation of or default under, or conflict with, any judgment, decree, statute
or regulation of any governmental authority applicable to Shareholder or any
contract, commitment, agreement, or restriction of any kind to which any
Shareholder is a party or by which Shareholder is bound.
ARTICLE III
Additional Covenants and Agreements
3.1 Filings. Shareholder and Enterprises each agree to cooperate with one
another in assisting the Company to make, any and all filings required by the
Securities Exchange Act of 1934, as amended, or the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended, in respect of this Agreement
and the transactions contemplated hereby.
3.2 No Negotiations. During the term of this Agreement, neither Shareholder
nor any affiliates or agents of Shareholder shall, directly or indirectly,
take any action to seek, encourage or support, or participate in any way in
discussions or negotiations with, or provide any information, data or
assistance to any party (other than Enterprises) concerning any acquisition of
(a) the Shares, and (b) other securities of the Company or any right, option
or warrant to purchase any such securities or all or any significant portion
of the assets of the Company or its Subsidiaries; provided, however, that the
foregoing clause (b) shall not be construed to prohibit Shareholder acting in
his capacity as a member of the Board of Directors of the Company from
obtaining from any person which makes an unsolicited offer to the Company with
respect to any such acquisition or similar transaction, any information which
he in good faith believes is relevant to his analysis of such offer or from
considering such offer if, in the opinion of his or the Company's counsel, the
exercise of his fiduciary duties requires him to do so.
3.3 Negative Covenants. During the term of this Agreement, neither
Shareholder nor any affiliates or agents of Shareholder shall (a) grant any
proxy with respect to any of the Shares to any corporation, partnership,
person or other entity or group (other than to Enterprises or its designees),
(b) vote any of the Shares in favor of a proposal for the dissolution of, or a
merger, consolidation, sale of assets or other similar transaction involving,
the Company other than as contemplated by Section 1.1 above, (c) provide to
any corporation, partnership, person or other entity or group (other than
Enterprises or its designees) any information (other than publicly available
information or information required to be disclosed by law) concerning the
Company, its business, operations or assets, or (d) take any other action
which is intended to frustrate the Merger.
3.4 Waiver of Dissenters' Rights. Shareholder hereby waives any right to
dissent from and obtain payment of the fair value of the Shares as a result of
the Merger.
ARTICLE IV
General Agreements
4.1 Agreement as Shareholder. Notwithstanding anything in this Agreement to
the contrary, the parties hereto acknowledge and agree that none of the
provisions herein set forth shall be deemed to restrict or limit any fiduciary
duty the Shareholder may have as a member of the Board of Directors of the
Company, provided that no such duty shall excuse the Shareholder from his
obligation as a shareholder of the Company to vote the Shares as herein
provided and to otherwise comply with each of the terms and conditions of this
Agreement.
4.2 Amendment. No amendment, modification or alteration of the terms or
provisions of this Agreement shall be binding unless the same shall be in
writing and duly executed by the parties hereto.
4.3 Remedy for Breach. Shareholder and Enterprises each acknowledge and
agree that any remedy at law would be inadequate compensation for any breach
or threatened breach of the provisions of this Agreement,
II-2
including without limitation the provisions of Sections 1.1. Accordingly, the
parties specifically agree that the non-breaching party shall be entitled to
specific performance of all of the other party's obligations hereunder. This
provision shall not be interpreted to diminish or limit the right of either
party to claim all other available remedies.
4.4 Benefit. The authority conferred or agreed to be conferred by
Shareholder in this Agreement shall not be terminated by operation of law and
shall survive the death or incapacity of Shareholder. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and his
successors, personal representatives, heirs and assigns. This Agreement may
not be assigned, except by Enterprises to an entity controlling, controlled by
or under common control with Enterprises.
4.5 Further Assurance. Shareholder shall take such actions, furnish such
information, and prepare, cooperate in preparing, and execute and deliver to
Enterprises such additional documents, instruments or certificates as
Enterprises may reasonably request to enable Enterprises to obtain all rights
and benefits provided it hereunder.
4.6 Notices. Any notice, request, instruction or other document to be given
hereunder by any party hereto to the other shall be in writing and delivered
personally or sent by registered or certified mail (including by overnight
courier or express mail service), postage or fees prepaid, or sent by
facsimile with original sent by overnight courier to the address set forth
below the signatures of the undersigned or such other address as shall be
specified in writing. Any notice that is delivered personally in the manner
provided herein shall be deemed to have been duly given to the party to whom
it is directed upon actual receipt by such party or the office of such party.
Any notice which is addressed and mailed in the manner herein provided shall
be conclusively presumed to have been duly given to the party to which it is
addressed at the close of business on the third business day after the day it
is so placed in the mail, or if earlier, the time of actual receipt.
4.7 Expenses. Each party shall pay its expenses in connection with the
execution and performance of this Agreement.
4.8 Severability. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
4.9 Counterparts. This Agreement may be executed in multiple counterparts,
each of which for all purposes shall be deemed an original, and which shall
constitute the same instrument.
4.10 Governing Law. This Agreement is executed by the parties hereto in and
shall be construed in accordance with and governed by the laws of the State of
Nevada, without giving effect to the principles of conflicts of laws thereof.
4.11 Entire Agreement. This Agreement (including the Exhibits hereto)
constitutes the entire agreement and understanding and supersedes all prior
agreements and understandings, both written and oral, between the parties with
respect to the subject matter hereof.
[SIGNATURES APPEAR ON NEXT PAGE]
II-3
In witness Whereof, Enterprises and Shareholder have caused this Voting
Agreement to be executed, all as of the date first above written.
Address:
"SHAREHOLDER"
Xxxxxxx X. Xxxxxx
--------------------- /s/ Xxxxxxx X. Xxxxxx
--------------------- _____________________________________
Xxxxxxx X. Xxxxxx
"ENTERPRISES"
U.S. Xpress Enterprises, Inc. U.S. Xpress Enterprises, Inc.
0000 X. Xxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000 /s/ Xxx X. Xxxxxx
By:__________________________________
Chief Financial Officer
II-4
