UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Amendment
No. 2
to
Schedule
TO
Tender
Offer Statement under Section 14(d)(1) or 13(e)(1)
of
the Securities Exchange Act of 1934
U.S.
XPRESS ENTERPRISES, INC.
(Name
of
Subject Company (issuer))
NEW
MOUNTAIN LAKE HOLDINGS, LLC
NEW
MOUNTAIN LAKE ACQUISITION COMPANY
PATRICK
E. QUINN
MAX
L. FULLER
QUINN
FAMILY PARTNERS
MAX
FULLER FAMILY LIMITED PARTNERSHIP
(Names
of
Filing Persons (Offerors))
Class
A Common Stock, Par Value $.01 per Share
(Title
of
Class of Securities)
90338N103
(CUSIP
Number of Class of Securities)
Patrick
E. Quinn
4080
Jenkins Road
Chattanooga,
Tennessee 37421
Telephone:
(423)
255-9757
Facsimile:
(423) 510-4003
(Name,
address, and telephone numbers of person authorized
to
receive notices and communications on behalf of filing persons)
Copy
to:
Mark
Scudder, Esq.
David
J. Routh, Esq.
Scudder
Law Firm P.C., L.L.O.
411
South 13
th
Street, 2
nd
Floor
Lincoln,
NE 68508
Telephone:
(402) 435-3223
Facsimile:
(402) 435-4239
Calculation
of Filing Fee
|
Transaction
valuation*
|
Amount
of filing fee**
|
|
$191,704,936
|
$5,885.34
|
|
|
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|
*
|
Estimated
for purposes of calculating the filing fee only. This calculation
assumes
the purchase in cash of all outstanding shares of Class A Common
Stock,
par value $0.01 per share, of U.S. Xpress Enterprises, Inc. (the
"
Class A Shares
"), other than Class A Shares already owned by the
filing persons at a price of $20.10 per share and assumes the purchase
of
all Class A Shares issuable upon exercise of outstanding
options. As of August 1, 2007, there were approximately
9,537,559 Class A Shares outstanding on a fully diluted basis (treating
as
outstanding all Class A Shares subject to outstanding options) not
beneficially owned by the filing
persons..
|
|
**
|
The
filing fee is calculated by multiplying the transaction valuation
by
0.0000307.
|
|
x
|
Check
the box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously
paid. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its
filing.
|
|
Amount
Previously Paid:
|
$5,885.34
|
Filing
Party:
|
New
Mountain Lake Acquisition Company
and
other filers
|
|
Form
or Registration No.:
|
Schedule
TO-T
|
Dated
Filed:
|
September
12, 2007
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|
¨
|
Check
the box if the filing relates solely to preliminary communications
made
before the commencement of a tender
offer.
|
|
|
Check the appropriate boxes below to designate any transactions to
which
the statement relates:
|
x
third-party
tender
offer subject to rule 14d-1.
o
issuer
tender offer
subject to Rule 13e-4.
x
going
private
transaction subject to Rule 13e-3.
x
Amendment
to Schedule
13D under Rule 13d-2.
Check
the following box if the filing
is a final amendment reporting the results of the tender
offer:
£
This
Amendment No. 2
(this "
Amendment
") amends and supplements the Tender Offer Statement
and Schedule 13E-3 Transaction Statement on Schedule TO (the "
Schedule
TO
") originally filed on September 12, 2007, by New Mountain Lake
Acquisition Company, a Nevada corporation ("
Purchaser
") and wholly
owned subsidiary of New Mountain Lake Holdings, LLC, a Nevada limited liability
company ("
Holding Company
"), Holding Company, Max L. Fuller, Patrick E.
Quinn, Quinn Family Partners, and the Max Fuller Family Limited Partnership,
as
previously amended. The Schedule TO, as further amended and
supplemented by this Amendment, relates to a tender offer by Purchaser to
purchase for cash all outstanding shares of Class A Common Stock, par value
$0.01 per share (the "
Class A Shares
"), of U.S. Xpress
Enterprises, Inc., a Nevada corporation, at a price of $20.10 per Class A
Share, net to the seller in cash (the "
Offer Price
"), without interest
thereon and less any required withholding taxes, upon the terms and subject
to
the conditions set forth in the Offer to Purchase, a copy of which is filed
as
Exhibit (a)(1)(i) to the Schedule TO, and in the related Letter of Transmittal,
a copy of which is filed as Exhibit (a)(1)(ii) to the Schedule TO (which,
together with the Offer to Purchase, any amendments or supplements thereto,
collectively constitute the "
Offer
"). Capitalized terms used
and not otherwise defined in this Amendment shall have the meanings assigned
to
such terms in the Offer to Purchase or in the Schedule TO.
The
information set forth in the Offer
to Purchase, including all schedules and annexes thereto, is hereby expressly
incorporated herein by reference in response to all the items of this Amendment,
except as otherwise set forth below.
ITEMS
1 THROUGH 9 AND 11.
Items
1
through 9 and 11 of the Schedule TO, which incorporate by reference the
information contained in the Offer to Purchase, are hereby amended and
supplemented by adding thereto the following:
On
September 26, 2007, the U.S. Federal
Trade Commission and the Antitrust Division of the U.S. Department of Justice
granted early termination of the waiting period under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, applicable to the proposed
acquisition of Class A Shares by Purchaser in the Offer.
On
September 26, 2007, Patrick E. Quinn
and Max L. Fuller, on behalf of Purchaser, issued a press release announcing
the
regulatory approval as described above, a copy of which is filed as Exhibit
(a)(1)(xv) hereto and is incorporated herein by reference.
ITEM
12. EXHIBITS.
Item
12
of the Schedule TO is hereby amended and supplemented by adding the
following:
|
|
Text
of Press Release issued by Patrick E. Quinn and Max L. Fuller,
on behalf
of their corporation, New Mountain Lake Acquisition Company, on
September
26, 2007.”
|
After
due
inquiry and to the best of my knowledge and belief, I certify that the
information set forth in this statement is true, complete and
correct.
|
NEW
MOUNTAIN LAKE ACQUISITION COMPANY
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By:
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/s/
Patrick E. Quinn
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Name:
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Patrick
E. Quinn
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Title:
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Chairman
of the Board and President
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By:
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/s/
Max L. Fuller
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Name:
|
Max
L. Fuller
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Title:
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Chairman
of the Board and Chief Executive Officer
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NEW
MOUNTAIN LAKE HOLDINGS, LLC
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By:
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/s/
Patrick E. Quinn
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Name:
|
Patrick
E. Quinn
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Title:
|
Chairman
of the Board and President
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By:
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/s/
Max L. Fuller
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Name:
|
Max
L. Fuller
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Title:
|
Chairman
of the Board and Chief Executive Officer
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PATRICK
E. QUINN
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/s/
Patrick E. Quinn
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MAX
L. FULLER
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/s/
Max L. Fuller
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QUINN
FAMILY PARTNERS
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By:
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/s/
Anna Marie Quinn
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Name:
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Anna
Marie Quinn
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Title:
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Managing
Partner
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MAX
FULLER FAMILY LIMITED PARTNERSHIP
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By:
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/s/
Janice B. Fuller
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Name:
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Janice
B. Fuller
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Title:
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General
Partner
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Date: September
26,
2007
EXHIBIT
INDEX
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EXHIBIT
NO.
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DESCRIPTION
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(a)(1)(i)
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Offer
to Purchase dated September 12, 2007.*
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(a)(1)(ii)
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Letter
of Transmittal.*
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(a)(1)(iii)
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Notice
of Guaranteed Delivery.*
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(a)(1)(iv)
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Letter
from the Dealer Manager to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.*
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(a)(1)(v)
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Form
of Letter to Clients for Use by Brokers, Dealers, Commercial Banks,
Trust
Companies and Other Nominees.*
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(a)(1)(vi)
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Guidelines
for Certification of Taxpayer Identification Number on Substitute
Form
W-9.*
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(a)(1)(vii)
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Form
of Summary Advertisement, published in
Investor's
Business Daily on September 12, 2007.*
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(a)(1)(viii)
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Trustee
Direction Form.*
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(a)(1)(ix)
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Form
of Letter to Participants in U.S. Xpress's 401(K) Retirement and
Savings
Plan.*
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(a)(1)(x)
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Text
of Press Release issued by Patrick E. Quinn and Max L. Fuller, on
behalf
of their corporation, Mountain Lake Acquisition Company on June 22,
2007
(incorporated by reference to Exhibit 99.1 of the Schedule TO filed
by
Mountain Lake Holding Company, Mountain Lake Acquisition Company,
Patrick
E. Quinn, and Max L. Fuller on June 22, 2007).
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(a)(1)(xi)
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Memorandum,
including questions and answers, made available by Patrick E. Quinn
and
Max L. Fuller to U.S. Xpress Enterprises, Inc.’s employees, dated June 22,
2007 (incorporated by reference to Exhibit 99.3 of Schedule TO filed
by
Mountain Lake Holding Company, Mountain Lake Acquisition Company,
Patrick
E. Quinn, and Max L. Fuller on June 22, 2007).
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(a)(1)(xii)
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Proposal
letter to the Board of Directors of U.S. Xpress Enterprises, Inc.
from
Patrick E. Quinn and Max L. Fuller, on behalf of their corporation,
Mountain Lake Acquisition Company, on June 22, 2007 (incorporated
by
reference to the Tender Offer Statement filed on Schedule TO by Mountain
Lake Holding Company, Mountain Lake Acquisition Company, Patrick
E. Quinn,
and Max L. Fuller on June 22, 2007 (File No.
005-44771)).
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(a)(1)(xiii)
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Text
of Press Release issued by Patrick E. Quinn and Max L. Fuller, on
behalf
of their corporation, New Mountain Lake Acquisition Company, on September
10, 2007 (incorporated by reference to Exhibit 99.1 of Schedule TO
filed
by New Mountain Lake Holdings, LLC, New Mountain Lake Acquisition
Company,
Quinn Family Partners, Max Fuller Family Limited Partnership, Patrick
E.
Quinn, and Max L. Fuller on September 11, 2007 (File No.
005-44771)).
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(a)(1)(xiv)
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Frequently
Asked Questions for Employees Holding Options and Shares of Class
A Common
Stock of U.S. Xpress Enterprises, Inc. from Patrick E. Quinn and
Max L.
Fuller, on behalf of their corporation New Mountain Lake Acquisition
Company, on September 21, 2007.**
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Text
of Press Release issued by Patrick E. Quinn and Max L. Fuller, on
behalf
of their corporation, New Mountain Lake Acquisition Company, on September
26, 2007.***
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(a)(5)
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Complaint
of Ronald S. Wiesenthal, individually and on behalf of all others
similarly situated, against U.S. Xpress Enterprises, Inc., et al.,
Case
No. 07 01958, filed in the District Court of Washoe County, Nevada
on
August 28, 2007.*
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(b)(i)
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Financing
Commitment letter, dated June 22, 2007, from SunTrust Bank and SunTrust
Capital Markets Inc. to Mountain Lake Acquisition Company (incorporated
by
reference to Exhibit 4 of Schedule 13D filed by Patrick E. Quinn,
Max L.
Fuller, Quinn Family Partnership, Max Fuller Limited Partnership,
LLP, and
Mountain Lake Acquisition Company on June 22, 2007 (as amended by
Amendment No. 1 to Schedule 13D filed on June 25,
2007)).
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(b)(ii)
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Restated
Financing Commitment letter, dated September 7, 2007, from SunTrust
Bank
and SunTrust Robinson Humphrey, Inc. to New Mountain Lake Acquisition
Company (incorporated by reference to Exhibit 2 of Amendment No.
2 to
Schedule 13D filed by New Mountain Lake Holdings, LLC, New Mountain
Lake
Acquisition Company, Patrick E. Quinn, Max L. Fuller, Quinn Family
Partners, and the Max Fuller Family Limited Partnership on September
11,
2007 (File No. 005-44771)).
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(c)
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Preliminary
Report of Stifel, Nicolaus & Company to Mountain Lake Acquisition
Company.*
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(d)(i)
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Agreement
of Right of First Refusal with regard to Class B Shares of U.S. Xpress
dated May 11, 1994, by and between Max L. Fuller and Patrick E. Quinn
(incorporated by reference to U.S. Xpress's Registration Statement
on Form
S-1, filed on May 20, 1994 (File No. 33-79208)).
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(d)(ii)
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Salary
Continuation Agreement dated June 10, 1993, by and between U.S. Xpress
and
Max L. Fuller (incorporated by reference to U.S. Xpress's Registration
Statement on Form S-1, filed on May 20, 1994 (File No.
33-79208)).
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(d)(iii)
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Salary
Continuation Agreement dated June 10, 1993, by and between U.S. Xpress
and
Patrick E. Quinn (incorporated by reference to U.S. Xpress's Registration
Statement on Form S-1, filed on May 20, 1994 (File No.
33-79208)).
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(d)(iv)
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Lease
dated January 28, 1994, by and between Patrick E. Quinn and Max L.
Fuller,
as lessors, and U.S. Xpress, as lessee, for certain real property
situated
in the County of Whitfield, State of Georgia (incorporated by reference
to
U.S. Xpress’s quarterly report on Form 10-Q, File No. 000-24806, filed
with the SEC on November 9, 2004).
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(d)(v)
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Assignment
of Lease and Estoppel Agreement dated August 31, 1995, by and among
Patrick E. Quinn, Max L. Fuller, Q & F Realty, LLC, and U.S. Xpress,
for certain real property situated in the County of Whitfield, State
of
Georgia (incorporated by reference to U.S. Xpress’s quarterly report on
Form 10-Q, File No. 000-24806, filed with the SEC on November 9,
2004).
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(d)(vi)
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Amendment
to Lease dated December 1, 1995, by and between Q & F Realty, LLC and
U.S. Xpress, for certain real property situated in the County of
Whitfield, State of Georgia (incorporated by reference to U.S. Xpress’s
quarterly report on Form 10-Q, File No. 000-24806, filed with the
SEC on
November 9, 2004).
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(d)(vii)
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Lease
dated January 28, 1994, by and between Patrick E. Quinn and Max L.
Fuller,
as lessors, and U.S. Xpress, as lessee, for certain real property
situated
in the County of Canadian, State of Oklahoma (incorporated by reference
to
U.S. Xpress’s quarterly report on Form 10-Q, File No. 000-24806, filed
with the SEC on November 9, 2004).
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(d)(viii)
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Assignment
of Lease and Estoppel Agreement dated August 31, 1995, by and among
Patrick E. Quinn, Max L. Fuller, Q & F Realty, LLC, and U.S. Xpress,
for certain real property situated in the County of Canadian, State
of
Oklahoma (incorporated by reference to U.S. Xpress’s quarterly report on
Form 10-Q, File No. 000-24806, filed with the SEC on November 9,
2004).
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(d)(ix)
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Lease
dated March 1, 1994, by and between Patrick E. Quinn and Max L. Fuller,
as
lessors, and Crown Transport Systems, Inc., as lessee, for certain
real
property situated in the County of Whitfield, State of Georgia
(incorporated by reference to U.S. Xpress’s quarterly report on Form 10-Q,
File No. 000-24806, filed with the SEC on November 9,
2004).
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(d)(x)
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Assignment
of Lease and Estoppel Agreement dated August 31, 1995, by and among
Patrick E. Quinn, Max L. Fuller, Q & F Realty, LLC, and Crown
Transport Systems, Inc., for certain real property situated in the
County
of Whitfield, State of Georgia (incorporated by reference to U.S.
Xpress’s
quarterly report on Form 10-Q, File No. 000-24806, filed with the
SEC on
November 9, 2004).
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(d)(xi)
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Certified
Resolutions of the Special Review Committee of the Board of Directors
of
U.S. Xpress Enterprises, Inc. adopted at a meeting held on July 27,
2007.*
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(d)(xii)
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Escrow
Agreement dated August 23, 2007, by and among the Company, LaSalle
Bank
National Association, James E. Hall, Robert J. Sudderth, John W.
Murrey,
III, Max L. Fuller and Patrick E. Quinn.*
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(d)(xiii)
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Indemnification
Agreement dated August 9, 2007, by and between the Company and Max
L.
Fuller.*
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(d)(xiv)
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Indemnification
Agreement dated August 9, 2007, by and between the Company and Patrick
E.
Quinn.*
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(f)
|
Sections
92A.300 through 92A.500 of the Nevada Revised Statutes (included
as
Schedule C of the Offer to Purchase filed herewith as Exhibit
(a)(1)(i)).
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(g)
|
Not
applicable.
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(h)
|
Not
applicable.
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*
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Previously
filed with the Schedule TO on September 12, 2007.
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**
|
Previously
filed with Amendment No. 1 to the Schedule TO on September 21,
2007.
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***
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Filed
herewith.
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