ESCROW AGREEMENT
EXHIBIT (d)(xii)
THIS ESCROW AGREEMENT (this “Escrow Agreement”) is made as of August 23, 2007, by and
among (i) U.S. Xpress Enterprises, Inc., a Nevada corporation (the “Company”), (ii) Xxxxxxx
X. Xxxxx, Xxx X. Xxxxxx, Xxxxx X. Xxxx, Xxxx X. Xxxxxx, III and Xxxxxx X. Xxxxxxxx, Xx.
(collectively, the “Directors”) and (iii) LaSalle Bank National Association, a national
banking association (the “Escrow Agent”).
W I T N E S S E T H
WHEREAS, the Company has secured liability insurance coverage commonly referred to as
directors’ and officers’ liability insurance which will be referred to hereafter as the
“Policy”);
WHEREAS, pursuant to the terms of directors and officers insurance coverage issued to Company,
one or more of the Directors may be subject to a retention or deductible requirement of $250,000
before being entitled to indemnification under the terms of such coverage (the “Retention
Requirement”);
WHEREAS, pursuant to Section 78.752 of the Nevada Revised Statutes, the Company desires to
establish an escrow account as an “other financial arrangement” for the payment of sums payable by
one or more of the Directors as a result of the Retention Requirement;
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Company, the Directors and the
Escrow Agent hereby agree as follows:
1. Escrow Fund. Upon the execution of this Agreement, the Company shall establish an
escrow account with the Escrow Agent for the benefit of all of the Directors (on a several rather
than joint basis) by depositing an amount in cash equal to $250,000 with the Escrow Agent (the
“Escrow Fund”). In the event that the amount held in escrow is less than $250,000 at any
time during the term of this Agreement, the Escrow Agent shall notify the Company and the Company
shall within five (5) days of receipt of such notice from the Escrow Agent deposit additional funds
in escrow with the Escrow Agent so that the amount of the Escrow Fund is at least equal to $250,000
in cash. The Escrow Agent is hereby authorized and directed to hold and deliver the Escrow Fund,
or any portion thereof, in accordance with the terms of this Escrow Agreement. The Escrow Fund
shall be invested by the Escrow Agent in the Federated Treasury Obligations Fund (Trust Shares).
The Escrow Agent shall have no liability for any loss or diminution in the Escrow Fund resulting
from investments made in accordance with the provisions of this Agreement. Any income earned on
the Escrow Fund shall be paid to the Company. Notwithstanding anything to the contrary herein
provided, Escrow Agent shall have no duty to prepare or file any Federal or state tax report or
return with respect to the Escrow Fund or any income earned thereon.
2. Quarterly Disbursements and Reports. The Escrow Agent on a quarterly basis shall
disburse from the Escrow Fund to the Company an amount equal to the amount of interest earned on
such Escrow Fund during the preceding fiscal quarter. In addition, the Escrow Agent shall furnish
to the Company and each of the Directors with monthly reports setting forth information regarding
(a) the balance of the Escrow Fund, (b) any disbursements or deposits made to the Escrow Fund and
(c) the amount of interest, if any, earned upon the Escrow Fund.
3. Distribution of Escrow Fund.
(a) In the event a claim covered by the Policy is made against a Director and the assertion of
that claim causes the Director to incur defense costs or a liability obligation, then the Director
shall promptly provide the escrow agent with written instructions to make a disbursement to the
Director of an amount in cash equal to the lesser of (i) the amount actually paid by the Director
toward such defense costs or liability obligation or (ii) the Retention Requirement. The Director
shall also provide the Escrow Agent, together with such instructions, written certification to the
effect: (w) that a claim has been made against the Director; (x) that the Retention Requirement is
applicable to the claim; (y) that the Director has paid an amount in defense costs and/or liability
obligations; and (z) that the Director has executed an undertaking (the “Undertaking”)
whereby the Director has agreed to repay either into the Escrow Fund (if the same is still being
maintained under this Agreement) or the Company any amounts disbursed from the Escrow Fund to such
Director if it is ultimately determined by a court of competent jurisdiction, after exhaustion of
all appeals therefrom, that the Director is not entitled to payment under the Policy for such
defense costs and/or liability obligations as a result of the Director’s intentional misconduct,
fraud or a knowing violation of law, except with respect to the advancement of expenses or
indemnification ordered by a court of competent jurisdiction (collectively, the “Director
Certification”). At the same time that the Director provides written instructions to the
Escrow Agent, he shall provide the Company, and each of the other Directors who are parties to this
Agreement, with a copy of such written instructions, as well as the Director’s Certification, and
the Undertaking. Upon receipt of such instructions, the Documentation, and the Undertaking, the
Escrow Agent shall make such disbursement in accordance therewith.
(b) At the expiration of the term of this Agreement the Escrow Agent shall pay to the Company
the remaining balance of the Escrow Fund, together with any accrued and undistributed interest
thereon.
4. The Escrow Agent; Indemnity.
(a) The Company and the Directors acknowledge that the Escrow Agent is acting solely as an
escrow agent at their request and solely for their convenience. The Escrow Agent shall not be
deemed to be the agent of either the Company or the Directors. The Escrow Agent shall not be
liable except for the Escrow Agent’s willful misconduct or gross negligence. The Escrow Agent
shall not be liable or responsible to the Company or the Directors or any other person for any act
or omission of any kind or nature except for willful misconduct or gross negligence.
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(b) In no event shall the Escrow Agent be liable for incidental, indirect, special,
consequential or punitive damages. The Escrow Agent shall have no implied duties or obligations
and shall not be charged with knowledge or notice of any fact or circumstance not specifically set
forth herein or in any notices given to it in accordance with the notice provisions of this
Agreement. The Escrow Agent shall have no liability with respect to the transfer or distribution
of any funds effected by the Escrow Agent pursuant to wiring or transfer instructions provided to
the Escrow Agent by any party to this Agreement. The Escrow Agent shall be entitled to seek the
advice of legal counsel with respect to any matter arising under this Agreement and the Escrow
Agent shall have no liability and shall be fully protected with respect to any action taken or
omitted pursuant to the advice of such legal counsel. The Escrow Agent shall be entitled to rely
upon and shall be fully protected in acting on any request, instruction, statement or other
instrument, not only as to its due execution, validity and effectiveness, but also as to the truth
and accuracy of any information set forth therein, which the Escrow Agent shall in good faith
believe to be genuine, to have been signed or presented by the person or parties purporting to sign
the same and to conform to the provisions of this Agreement. The Escrow Agent shall not be
obligated to take any legal action or to commence any proceedings in connection with the Escrow
Account or this Agreement, or to appear in, prosecute or defend in any such legal action or
proceedings.
(c) The Company agrees to indemnify and hold harmless Escrow Agent and each of Escrow Agent’s
officers, directors, agents and employees (the “Indemnified Parties”) from and against any
and all losses, liabilities, claims, damages, expenses and costs (including attorneys’ fees) of
every nature whatsoever which any such Indemnified Party may incur and which arise directly or
indirectly from this Agreement or which arise directly or indirectly by virtue of the Escrow
Agent’s undertaking to serve as Escrow Agent hereunder; provided, however, that no
Indemnified Party shall be entitled to indemnity in case of such Indemnified Party’s gross
negligence or willful misconduct. The provisions of this section shall survive the termination of
this Agreement and any resignation or removal of the Escrow Agent.
5. No Responsibility for Financial Institution Failure. The Escrow Agent shall not be
responsible for any penalties, or loss of principal or interest or any delays in the withdrawal of
the funds which may be imposed by any financial institution in which the Escrow Fund have been
deposited in accordance with this Agreement as a result of the making or redeeming of an investment
of the Escrow Fund pursuant to instructions provided in accordance with this Agreement, nor shall
the Escrow Agent be liable for any loss or impairment of funds while those funds are in the course
of collection or while those funds are on deposit in a financial institution if such a loss or
impairment results from the failure, insolvency or suspension of the financial institution in
question. The Escrow Fund shall be held and/or invested in accordance with Section 1 hereof.
6. Disputes. In case of any dispute or disagreement relating to this Agreement or
concerning the duties of the Escrow Agent hereunder, the Escrow Agent may refrain from taking any
further action pursuant to this Agreement until the Escrow Agent shall have received either (i)
written instructions from all of the parties hereto or (ii) a binding order or decision of a court
of competent jurisdiction, upon which the Escrow Agent shall be entitled to rely, directing the
Escrow Agent to take such further action. In addition, in the event of any dispute or
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disagreement relating to this Agreement or concerning the duties of the Escrow Agent hereunder, the
Escrow Agent shall have the right to deposit all property held under this Agreement into the
registry of any court of competent jurisdiction and notify the parties hereto of such deposit, and
thereupon the Escrow Agent shall be discharged from all further duties and responsibilities as
Escrow Agent under this Agreement.
7. Fees and Reimbursement. The Company agrees to pay to Escrow Agent compensation,
and to reimburse the Escrow Agent for costs and expenses, in accordance with the provisions of
Exhibit B hereto, which is incorporated herein by reference.
8. Term. The term of this Agreement shall commence upon the date set forth above and
shall continue until December 31, 2013.
9. Partial Invalidity. If any term or provision of this Agreement, or the application
thereof, to any person or circumstance shall, to any extent, be invalid or unenforceable, the
remainder of this Agreement and the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable, as the case may be,
shall not be affected thereby, and each term and provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
10. Notices. All notices, demands, statements, and requests required or permitted to
be given under this Agreement must be in writing and shall be deemed to have been properly given or
served as of the date hereinafter specified: (i) on the date of personal service upon the person
to whom the notice is addressed, or if such person is not available, the date such notice is left
at the address of the person to whom it is directed; (ii) on the date the notice is postmarked by
the United States Post Office, provided it is sent prepaid, registered or certified mail, return
receipt requested; (iii) on the date the notice is delivered by a courier service (including
Federal Express, United Parcel Service, Express Mail or similar operation) to the address of the
person to whom it is directed, provided it is sent prepaid, with confirmation of receipt requested;
or (iv) on the date the notice is delivered via facsimile, provided that a second copy of the
notice is simultaneously sent pursuant to one of the other methods permitted by this provision;
provided, however, that notwithstanding the foregoing, Escrow Agent shall not be deemed to have
received any notice or other communication prior to its actual receipt thereof. The initial notice
address of the Company and the Escrow Agent is as follows:
| Company: | U.S. Xpress Enterprises, Inc. | |||||
| 0000 Xxxxxxx Xxxx | ||||||
| Xxxxxxxxxxx, Xxxxxxxxx 00000 | ||||||
| Attention: | Xxxx Xxxx, General Counsel | |||||
| Telephone: | (000) 000-0000 | |||||
| Fax: | (000) 000-0000 | |||||
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| Escrow Agent: | LaSalle Bank National Association | |||||
| Global Escrow Services | ||||||
| 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000 | ||||||
| Xxxxxxx, Xxxxxxxx 00000 | ||||||
| Attention: | Xxx Xxxxxx | |||||
| Telephone: | (000) 000-0000 | |||||
| Fax: | (000) 000-0000 | |||||
The initial notice address for each of the Directors is listed on Exhibit C attached
hereto. Each party hereto shall have the right from time to time and at any time, upon at least
ten (10) days’ prior written notice thereof in accordance with the provisions hereof, to change its
respective address and to specify any other address within the United States of America;
provided, however, notwithstanding anything herein contained to the contrary, in
order for the notice of address change to be effective it must actually be delivered. Refusal to
accept delivery of a notice or the inability to deliver a notice because of an address change,
which was not properly communicated, shall not defeat or delay the giving of a notice.
11. General. This Agreement may be executed in one or more counterparts and shall be
binding upon the Company, the Directors and Escrow Agent and each of their respective successors,
assigns, heirs, personal representatives and executors. Neither this Agreement nor any rights or
obligations hereunder may be assigned by any party hereto without the express written consent of
each of the other parties hereto. This Agreement may not be amended without the express written
consent of each of the parties hereto.
12. Resignation and Successor Escrow Agent. Escrow Agent may resign as Escrow Agent
by providing not less than thirty (30) days prior written notice to the Company and each of the
Directors, such resignation to be effective on the date set forth in any such written notice.
Notwithstanding anything to the contrary herein provided, in the event the Escrow Agent resigns as
Escrow Agent hereunder and no successor Escrow Agent has been designated and accepted appointment
as successor Escrow Agent within forty-five (45) days following the date of the Escrow Agent’s
notice of resignation, the Escrow Agent shall have the right to deposit all property held pursuant
to this Agreement into the registry of any court of competent jurisdiction and notify the parties
hereto of such deposit, and thereupon the Escrow Agent shall be discharged from all further duties
and responsibilities as Escrow Agent under this Agreement.
Any bank or corporation into which the Escrow Agent may be merged or with which it may be
consolidated, or any bank or corporation to whom the Escrow Agent may transfer a substantial amount
of its Escrow business, shall be the successor to the Escrow Agent without the execution or filing
of any paper or any further act on the part of any of the parties, anything herein to the contrary
notwithstanding.
13. Governing Law. This Escrow Agreement shall be governed by Nevada law.
14. Headings. The headings to the sections of this Agreement are for the convenience
of reference only and in no way define, limit or describe the scope or intent of this Agreement or
any party thereof, nor in any other way affect this Agreement or any part thereof.
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15. Counterparts. This Agreement may be executed in several counterparts, each of
which, when so executed and delivered, shall be considered an original and all of which, when taken
together, shall constitute one and the same Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have signed and sealed this Escrow Agreement as of the
date first above written.
| “Company” | ||||||
| U.S. Xpress Enterprises, Inc. Federal Tax I.D. Number: 00-0000000 |
||||||
| By: | /s/ Xxx Xxxxxx | |||||
| “Escrow Agent” | ||||||
| LaSalle Bank National Association | ||||||
| By: | /s/ Xxxx Xxxxxx | |||||
| Name: | Xxxx X. Xxxxxx | |||||
| Title: | ||||||
| “Directors” | ||||||
| /s/ Xxxxxxx X. Xxxxx | ||||||
| Xxxxxxx X. Xxxxx | ||||||
| /s/ Xxx X. Xxxxxx | ||||||
| Xxx X. Xxxxxx | ||||||
| /s/ Xxxxx X. Xxxx | ||||||
| Xxxxx X. Xxxx | ||||||
| /s/ Xxxx X. Xxxxxx, III | ||||||
| Xxxx X. Xxxxxx, III | ||||||
| /s/ Xxxxxx X. Xxxxxxxx, Xx. | ||||||
| Xxxxxx X. Xxxxxxxx, Xx. | ||||||
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Exhibit B
Escrow Agent Fees
Escrow Agent Fees
Acceptance Fee: |
$ | 500.00 | * | |
Annual Administration Fee: |
$ | 1,500.00 | * | |
Wire Transfers |
$ | 20.00 | each | |
Check Preparation and Mailing |
$ | 25.00 | each | |
1099 Preparation and Reporting |
$ | 5.00 | each ($250 annual minimum if any 1099 reports required for account) |
THE ACCEPTANCE AND FIRST YEAR’S ANNUAL ADMINISTRATION FEES ARE DUE UPON EXECUTION OF THE ESCROW
AGREEMENT.
*Should the Escrow Account remain open for less than a full year after an initial twelve month
period, the Annual Administration Fee will be prorated on a six-month basis.
Any investment transaction not in a money market fund or a LaSalle Enhanced Liquidity Management
account will incur a $150.00 per transaction fee. The parties to the agreement understand and agree
that the Escrow Agent may receive certain revenue on certain mutual fund investments. These
revenues take one of two forms:
Shareholder Servicing Payments: Escrow Agent may receive Shareholder Servicing Payments as
compensation for providing certain services for the benefit of the Money Market Fund Company.
Shareholder Services typically provided by LaSalle include the maintenance of shareholder ownership
records, distributing prospectuses and other shareholder information materials to investors and
handling proxy-voting materials. Typically Shareholder Servicing payments are paid under a Money
Market Fund’s 12b-1 distribution plan and impact the investment performance of the Fund by the
amount of the fee. The shareholder servicing fee payable from any money market fund is detailed in
the Fund’s prospectus that will be provided to you.
Revenue Sharing Payments: Escrow Agent may receive revenue sharing payments from a Money Market
Fund Company. These payments represent a reallocation to Escrow Agent of a portion of the
compensation payable to the fund company in connection with your account’s money market fund
investment. Revenue Sharing payments constitute a form of fee sharing between the fund company and
Escrow Agent and do not, as a general rule, result in any additional charge or expense in
connection with a money market fund investment, are not paid under a 12b-1 plan, and do not impact
the investment performance of the Fund. The amount of any revenue share, if any, payable to Escrow
Agent with respect to your account’s investments is available upon request.
All out-of-pocket expenses will be billed at the Escrow Agent’s cost. Out-of-pocket expenses
include, but are not limited to, professional services (e.g. legal or accounting), travel expenses,
telephone and facsimile transmission costs, postage (including express mail and overnight delivery
charges), and copying charges.
Exhibit C
Director Addresses
Director Addresses
