EXHIBIT 10.6
COMPUTER AND INFORMATION TECHNOLOGY AGREEMENT
MISCELLANEOUS SERVICES
----------------------
THIS COMPUTER AND INFORMATION TECHNOLOGY AGREEMENT -MISCELLANEOUS
SERVICES (the "Agreement") is made and entered into as of the ____ day of
August, 1998 (the "Effective Date"), by and between UNION PACIFIC CORPORATION, a
Utah corporation ("UPC"), and OVERNITE CORPORATION, a Virginia corporation
("Overnite").
WHEREAS, Overnite intends to issue and sell or cause to be issued and
sold all of its outstanding common stock, through an initial public offering
(the closing of which is hereafter referred to as the "Offering"); and
WHEREAS, immediately following the Offering, Overnite intends to
purchase all of the issued and outstanding common stock of Overnite Holding,
Inc., a Delaware corporation ("OHI"), from UPC (the "Acquisition"), with the
result that Overnite will become a publicly-owned company and OHI will become a
wholly-owned, direct subsidiary of Overnite; and
WHEREAS, Overnite Transportation Company, a Virginia corporation
("OTC"), is a wholly-owned, direct subsidiary of OHI and immediately following
the Acquisition will become a wholly-owned, indirect subsidiary of Overnite;
and
WHEREAS, UPC, through its Union Pacific Technologies Division ("UPT")
and through its wholly-owned subsidiary, Union Pacific Railroad Company
("UPRR"), has provided and continues to
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provide to its subsidiaries, including OTC, certain miscellaneous services,
including the services described herein; and
WHEREAS, UPC and Overnite desire that UPC continue to provide such
miscellaneous services following the Offering pursuant to the terms and
conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties hereto agree as follows:
1. Miscellaneous Services. UPC, through UPT and UPRR, has provided and
-----------------------
currently provides certain miscellaneous services to OTC, including the
following (collectively the "Miscellaneous Services"):
A. Gateway Services. UPT has provided and currently provides OTC
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with certain gateway services, consisting of value added network ("VAN")
services that are used in connection with the sending and receiving of standard
electronic data interchange ("EDI") documents and non-standard EDI documents,
including storing and retrieving data from EDI mailboxes for direct connect
customers of Overnite and its subsidiaries, sending and receiving data among
other VANs, programming services when needed or when requested by Overnite or
its subsidiaries, and support for communications equipment located in St. Louis,
Missouri (the
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"Gateway Services").
B. AutoFax Services. UPT has provided and currently provides OTC
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with certain AutoFax services, through which UPT facilitates and supports OTC's
sending and receiving of customer fax messages, by providing a certain server,
located in St. Louis, Missouri, by providing a bank of fax modems located in St.
Louis, Missouri, and by providing telephone line service for the transmission of
fax messages to their final destinations (the "AutoFax Services").
C. Videoconferencing Equipment and Services. UPT has provided and
-----------------------------------------
currently provides OTC with certain leased videoconferencing equipment, located
at OTC's headquarters in Richmond, Virginia, which videoconferencing equipment
can be used with conference rooms in St. Louis, Missouri, Omaha, Nebraska, and
Dallas, Texas, along with certain videoconferencing services in connection with
the videoconferencing equipment (the "Videoconferencing Equipment and
Services").
D. Automated Voice Response Services. UPT has provided and
----------------------------------
currently provides OTC with certain automated voice response services, through
which UPT facilitates and supports OTC's operating components of V-link (the
"AVR Services").
E. Lotus Notes Electronic Mail Environments. UPT has
-----------------------------------------
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provided and currently provides OTC with Lotus Notes electronic mail
environments that OTC uses in its ongoing business operations. UPC agrees to
cooperate with OTC to facilitate separation of OTC's Lotus Notes electronic mail
environments so that the separation may be completed by December 31, 1998, and
Overnite and its subsidiaries can continue their ongoing business operations and
electronic mail processes.
2. Continued Provision of Miscellaneous Services. UPC shall provide or
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cause to be provided the Miscellaneous Services to Overnite and its subsidiaries
pursuant to the terms and conditions set forth herein. UPC shall provide
Miscellaneous Services of at least the same nature and quality as the similar
services that it has provided to OTC during the year prior to the Effective Date
of this Agreement, and shall perform the Miscellaneous Services with at least
the same degree of care, skill, and prudence that it exercises for its own
operations. In addition, UPC shall provide the Gateway Services in conformity
with present commercial service levels.
3. Term. UPC shall provide the Miscellaneous Services from the Effective
-----
Date through December 31, 1999. Notwithstanding the foregoing and with the
exception of Videoconferencing Equipment and Services, Overnite shall have the
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option to terminate this Agreement as to one or more of the particular
Miscellaneous Services by providing UPC with sixty (60) days' written notice
thereof. Overnite may terminate the Videoconferencing Equipment and Services at
any time by providing UPC with written notice. If Overnite elects to terminate
Videoconferencing Equipment and Services prior to the end of the current lease
between UPC and Overnite for the Videoconferncing Equipment and Services,
Overnite agrees to pay remaining outstanding lease payments on the
Videoconferencing Equipment. Upon payment of such sums, all title to the
Videoconferencing Equipment shall pass to Overnite. UPC agrees to assist
Overnite with the transitioning of Miscellaneous Services at rates set forth in
Section 4 of this Agreement. Overnite shall have the option to extend this
Agreement and the provision of the Miscellaneous Services hereunder through
December 31, 2000 by providing UPC with written notice of such intent on or
before June 30, 1999. In the event that Overnite does not exercise its option to
extend, then this Agreement shall terminate on December 31, 1999. In the event
that Overnite does exercise its option to extend, then this Agreement shall
terminate on December 31, 2000.
4. Fees. Rates for 1998 for the Miscellaneous Services shall be at
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current rates. Rates thereafter shall be set
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pursuant to the agreement of the parties.
5. Billing and Payment. Each month during the term of this Agreement and
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in the first month after termination of this Agreement (or any extension
thereof), UPC shall submit to Overnite an invoice containing the estimated
charges for the Miscellaneous Services for the then current month and containing
a detailed statement, for the prior month, of all of the charges for
Miscellaneous Services. Overnite shall remit payment in full for the estimated
charges, reflecting any adjustments for prior months' charges, by wire transfer
of immediately available funds to an account designated by UPC, on or prior to
the later of: (a) five (5) business days after receipt of such invoices, or (b)
the end of the then current month. Overnite shall notify UPC of any dispute as
to an invoiced amount and the basis therefor. In the event of a dispute as to
the invoiced amount, Overnite shall pay all undisputed amounts but shall be
entitled to withhold amounts in dispute. In the event of such a dispute, the
parties agree to provide each other with records and information relating to
such dispute and, without limiting their rights and remedies, to negotiate in
good faith to attempt to resolve such dispute.
Any late payment shall be subject to any costs of collection
(including reasonable legal fees) and shall bear
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interest at the rate of one percent (1%) per month or a fraction thereof until
paid. UPC shall not commence suit on collection of late payment prior to
providing seven (7) days notice of its intent to commence suit to Overnite.
6. Multi-Century Compliance. UPC represents that it is taking all
------------------------
reasonable steps in an effort to make each item of hardware, software and
firmware created, modified, upgraded, revised, developed, or delivered
hereunder, or equipment and products containing such hardware, software or
firmware, accurately process date data (including without limitation
calculating, comparing and sequencing), within, from, into and between centuries
(including without limitation the twentieth and twenty-first centuries),
including leap year calculations. UPC does not, by this Section, warrant that
each item of hardware, software and firmware created, modified, upgraded,
revised, developed, or delivered hereunder, or equipment and products containing
such hardware, software or firmware are Year 2000 compliant.
7. Confidentiality. For purposes hereof, "Confidential Information"
----------------
means any information, in any form or medium, which relates to any component of
a party's business and which is not a matter of public record or generally known
to the public,
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including, without limitation, information relating to inventions; patent,
trademark, and copyright applications; improvements; know-how; specifications;
drawings; cost and pricing data; process flow diagrams; customer and supplier
lists; bills; ideas; concepts; financial information; plans, practices, and
procedures; agreements, documents, or instruments involving the party; and any
information or materials deemed or designated as confidential or proprietary by
the party. Each party agrees that during and after the term of this Agreement
(or any extension thereof), unless specifically authorized by the other party in
a prior writing, it shall not, directly or indirectly, disclose the other
party's Confidential Information to any person or entity, or use the other
party's Confidential Information for its benefit. In the event that a party is
requested or required to disclose the other party's Confidential Information in
connection with any legal proceeding, interrogatory, subpoena, civil
investigative demand, or similar process, that party will promptly notify the
other party of the request or requirement so that the other party may seek an
appropriate protective order. If, in the absence of a protective order, a party,
on the advice of counsel, is compelled by any tribunal to disclose the other
party's Confidential Information, that party shall use its best
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efforts to obtain an order or other assurance that confidential treatment will
be accorded to such Confidential Information required to be disclosed. Promptly
upon request, or upon termination of this Agreement for any reason, each party
shall return to the other party or destroy, as requested by the other party, any
materials in its possession or control that contain, embody, or reflect the
other party's Confidential Information.
8. Assignment. Neither party shall assign or transfer any of its rights
-----------
or obligations under this Agreement except with the prior written consent of the
other party, which consent may be withheld by such other party in its sole
discretion. This Agreement shall be binding upon and shall inure to the benefit
of the parties and their successors and permitted assigns. Notwithstanding any
other provision in this Agreement, UPC shall not be prohibited from selling or
divesting itself of UPT in any manner prior to the expiration of this Agreement,
provided that, in such event, this Agreement, and all rights and obligations
hereunder be assigned to and assumed by UPT and its affiliates.
9. Liability and Indemnification. Except as provided specifically in the
-----------------------------
Agreement, UPC shall have no liability under this Agreement for damage or loss
of any type suffered by Overnite or its subsidiaries or any third party as a
result of
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the performance or non-performance of the services provided under this
Agreement. Each party shall indemnify, defend and hold the other party harmless
from and against all damages, losses and out-of-pocket expenses (including fees
and disbursements of counsel) caused by or arising out of any willful breach or
gross negligence by such indemnifying party in the performance or non-
performance of any obligation or agreement contained herein or by the willful
misconduct of such indemnifying party. In the event of a claim against UPC by a
third party, Overnite shall indemnify, defend and hold UPC harmless from and
against all damages, losses and out-of-pocket expenses (including fees and
disbursements of counsel) caused by or arising out the performance or non-
performance of any obligation or agreement contained herein except where caused
by the willful breach, negligence, or willful misconduct of UPC. Notwithstanding
any other provision of this Agreement, UPC shall have no liability for the acts
or omissions of any third party (other than a subsidiary of UPC) that provides
services under this Agreement so long as UPC has not been grossly negligent in
the selection of such third party. In the event Overnite believes UPC is not
performing its obligations under this Agreement in accordance with the standards
agreed upon by the parties, Overnite shall so
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notify UPC. UPC agrees to cooperate with Overnite to address such performance
issues and to bring UPC's performance into conformance with such standards.
10. Licenses and Permits. Overnite, at Overnite's sole expense, shall be
--------------------
responsible for obtaining all necessary software licenses and/or permits
required for the performance of Miscellaneous Services as a result of the
Offering and Acquisition and OTC's and Overnite's corporate status. Failure by
Overnite to obtain any necessary licenses and/or permits will not give rise to a
cause of action under this Agreement against UPC (including contract, tort or
warranty). UPC will cooperate in good faith to assist Overnite with securing
all necessary licenses and/or permits.
11. Miscellaneous.
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A. Notices. All notices and other communications hereunder shall be
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in writing and shall be delivered in person, mailed, delivered by
courier service, or sent by facsimile to the following:
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(i) If to UPC:
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Union Pacific Technologies
0000 Xxxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000-0000
Fax No.(000) 000-0000
ATTN: President and CEO
With a copy to:
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Union Pacific Corporation
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Fax No.: (000) 000-0000
ATTN: Vice President and Controller
Union Pacific Railroad Company
0000 Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000-0000
Fax No.: (000) 000-0000
ATTN: Senior Vice President,
Information Technologies
(ii) If to Overnite:
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Overnite Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Fax No.: (000) 000-0000
ATTN: Senior Vice President and Chief
Financial Officer
or to such other addresses as either party may designate in writing. All
notices or communications given by personal delivery, mail, or courier service
shall be effective upon receipt if received during the recipient's normal
business hours. Notice given by facsimile shall be effective upon receipt if
received during the recipient's normal business hours, or at the
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beginning of the recipient's next business day if not received during the
recipient's normal business hours.
B. Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the State of
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Missouri, without giving effect to the principles of conflicts of laws thereof.
C. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which when so executed shall be deemed an original but all
of which shall together constitute but one and the same instrument.
D. Headings. The headings and captions set forth in this Agreement
---------
are for convenience of reference only and shall not affect the construction or
interpretation hereof.
E. Severability. The provisions of this Agreement are severable.
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Should any provision of this Agreement be void, voidable, or unenforceable, this
shall not affect or invalidate any other provisions of this Agreement, which
shall continue to govern the relative rights and obligations of the parties as
though such void, voidable, or unenforceable provision were not a part hereof.
F. Entire Agreement; Modification; Waiver. This Agreement
---------------------------------------
constitutes the entire agreement of the parties with respect to the subject
matter hereof and supersedes all prior agreements and understandings, whether
oral or written, with respect thereto. This Agreement may not be modified or
amended except by a subsequent written instrument duly executed by both
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parties. No failure or delay by any party in exercising any right, power, or
privilege hereunder shall operate as a waiver thereof. Nor shall any single or
partial exercise thereof preclude any other or further exercise of any other
right, power, or privilege.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the Effective Date first written above.
UNION PACIFIC CORPORATION
By:________________________________________
Print Name:________________________________
Title:_____________________________________
OVERNITE CORPORATION
By:________________________________________
Print Name:________________________________
Title:_____________________________________
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COMPUTER AND INFORMATION TECHNOLOGY AGREEMENT
DEVELOPMENT STAFF SERVICES
--------------------------
THIS COMPUTER AND INFORMATION TECHNOLOGY AGREEMENT -DEVELOPMENT STAFF
SERVICES (the "Agreement") is made and entered into as of the ____ day of
August, 1998 (the "Effective Date"), by and between UNION PACIFIC CORPORATION, a
Utah corporation ("UPC"), and OVERNITE CORPORATION, a Virginia corporation
("Overnite").
WHEREAS, Overnite intends to issue and sell or cause to be issued and
sold all of its outstanding common stock, through an initial public offering
(the closing of which is hereafter referred to as the "Offering"); and
WHEREAS, immediately following the Offering, Overnite intends to
purchase all of the issued and outstanding common stock of Overnite Holding,
Inc., a Delaware corporation ("OHI"), from UPC (the "Acquisition"), with the
result that Overnite will become a publicly-owned company and OHI will become a
wholly-owned, direct subsidiary of Overnite; and
WHEREAS, Overnite Transportation Company, a Virginia corporation
("OTC"), is a wholly-owned, direct subsidiary of OHI and immediately following
the Acquisition will become a wholly-owned, indirect subsidiary of Overnite; and
WHEREAS, UPC, through its Union Pacific Technologies Division ("UPT")
and through its wholly-owned subsidiary, Union
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Pacific Railroad Company ("UPRR") has provided and continues to provide to its
subsidiaries, including OTC, certain computer and information technology
services, including the services described herein; and
WHEREAS, UPC and Overnite desire that UPC continue to provide such
computer and information technology services following the Offering and
Acquisition pursuant to the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties hereto agree as follows:
1. Development Staff Services. UPC, through UPT and UPRR, has provided
---------------------------
and currently provides certain employees and contractors who work under the
direction of OTC and provide the following computer and information technology
services: support of key development projects, on-going maintenance support for
mainframe and distributed applications, Year 2000 compliance, and other ad hoc
projects and services as requested by Overnite and its subsidiaries (the
"Development Staff Services"). UPC shall continue to provide the Development
Staff Services pursuant to the terms and conditions set forth herein. UPC will
provide Development Staff Services of at least the same nature and quality as
the similar services that it has provided to OTC
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during the year prior to the Effective Date of this Agreement, and shall perform
the Development Staff Services with at least the same degree of care, skill, and
prudence that it exercises for its own operations.
2. Development Staff Personnel. UPC shall provide the Development Staff
----------------------------
Services using the full-time and part-time Development Staff Personnel
identified and agreed to by UPC and Overnite, as long as the identified
Development Staff Personnel are employees or contractors in good standing with
UPC and the employees or contractors elect to remain at their current positions
assigned to OTC or Overnite. UPC will encourage Development Staff Personnel to
remain at such present positions and will work with Overnite to establish
incentive programs to retain the employees, provided, however, that no
Development Staff Personnel shall be prohibited from accepting any position
posted on UPC's, UPRR's or UPT's Job Bulletin Board. Notwithstanding the
foregoing, Overnite shall have discretion to reduce the number of Development
Staff Personnel as set forth in Section 5.
3. Supervision/Reporting. Development Staff Personnel shall report to
----------------------
and work under the supervision of Overnite, which shall have discretion to
direct and manage all aspects of the Development Staff Personnel's work,
including but not limited to
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requiring technical training for Development Staff Personnel. Expense for
technical training of the Development Staff Personnel required by Overnite shall
be borne by Overnite. Development Staff Personnel shall devote all of their work
efforts to the Development Staff Services, and shall not participate in work or
projects other than the Development Staff Services, except with the prior
written consent of Overnite.
4. Replacement of Development Staff Personnel. In the event that
-------------------------------------------
Development Staff Personnel terminate or indicate an intention to terminate
their employee or contractor status as Development Staff Personnel during the
term of this Agreement (or any extension thereof), UPC shall promptly notify
Overnite in writing. After receipt of such written notice, Overnite will advise
UPC as to whether or not Overnite will request UPC to provide replacement
Development Staff Personnel. In the event that Overnite requests UPC to provide
replacement Development Staff Personnel, UPC shall identify qualified candidates
to Overnite, and shall provide Overnite with an opportunity to review and
interview, and approve or disapprove, such candidates.
5. Reduction of Development Staff Personnel. At any time during the term
-----------------------------------------
of this Agreement (or any extension thereof), Overnite shall have discretion to
reduce the number of Development Staff Personnel by providing UPC with sixty
(60)
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days' written notice or, in the event of a contractor, notice consistent with
UPC's contract with contractor, of the numbers and/or identities of Development
Staff Personnel to be removed from provision of the Development Staff Services.
Overnite's election to reduce the number of Development Staff Personnel shall
result in a permanent reduction in the number of Development Staff Personnel to
be provided by UPC under this Agreement. Requests by Overnite for additional
personnel for Development Staff Services shall be made pursuant to the
Miscellaneous Services Agreement between UPC and Overnite.
6. Overnite's Right to Offer Employment. During and after the term of
-------------------------------------
this Agreement (or any extension thereof), Overnite shall have the right and
ability to offer employment and/or independent contractor positions to
Development Staff Personnel of its choosing.
7. Initial Term; Optional Extension. UPC shall provide the Development
---------------------------------
Staff Services from the Effective Date through December 31, 1999. Overnite
shall have the option to extend this Agreement and the provision of the
Development Staff Services hereunder through December 31, 2000 by providing UPC
with written notice of such intent on or before June 30, 1999. In the event
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that Overnite does not exercise its option to extend, then this Agreement shall
terminate on December 31, 1999. In the event that Overnite does exercise its
option to extend, then this Agreement shall terminate on December 31, 2000.
8. Compensation. Overnite shall compensate UPC for provision of the
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Development Staff Services as follows:
A. Salaries and Fees of Development Staff Personnel. Overnite shall
-------------------------------------------------
reimburse UPC for Development Staff Personnel, subject to the following
conditions: Overnite's reimbursement to UPC shall be for actual salaries, fees,
overhead and benefits, in the same manner as presently billed by UPC to Overnite
for these services. Through the term of this Agreement (and any extension
thereof), salaries, fees, overhead and benefits of Development Staff Personnel
shall reflect UPC's actual costs for providing Development Staff Services to
Overnite.
B. Merit Increases. Prior to the award of any merit increases,
----------------
Overnite and UPC shall cooperate in good faith to determine which Development
Staff Personnel shall receive such merit increases.
C. Travel and Other Travel-Related Business Expenses. Overnite shall
--------------------------------------------------
reimburse UPC for the actual, necessary, and reasonable travel and other travel-
related business expenses incurred by Development Staff Personnel in performing
the Development Staff Services, provided that UPC provides Overnite with a
statement reflecting such expenses in the same manner as
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presently provided to Overnite under current billing practices. Overnite shall
notify UPC of any dispute as to an invoiced travel expense or other travel-
related business expense and the basis therefor. In the event of a dispute, the
parties agree to provide each other with records and information relating to
such dispute and, without limiting their rights and remedies, to negotiate in
good faith to attempt to resolve such dispute.
D. Rates for Ad Hoc Technical Services. To the extent that Overnite
------------------------------------
requests UPC to provide and UPC has resources to provide ad hoc technical
services, including AVR, systems programming and Lotus Notes support services,
Overnite shall reimburse UPC for the actual salaries, fees, overhead and
benefits for such ad hoc technical services, in the same manner as presently
billed by UPC to Overnite for these services. Through the term of this Agreement
(and any extension thereof), salaries, fees, overhead and benefits related to
providing ad hoc technical services shall reflect UPC's actual costs for
providing such ad hoc technical services to Overnite.
9. Billing and Payment. Each month during the term of this Agreement and
--------------------
in the first month after termination of this Agreement (or any extension
thereof), UPC shall submit to Overnite an invoice containing the estimated
charges for the Development Staff Services for the then current month and
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containing a detailed statement, for the prior month, of all of the charges for
Development Staff Services as set forth in Section 8. Overnite shall remit
payment in full for the estimated charges, reflecting any adjustments for prior
months' charges, by wire transfer of immediately available funds to an account
designated by UPC, on or prior to the later of: (a) five (5) business days after
receipt of such invoices, or (b) the end of the then current month. Overnite
shall notify UPC of any dispute as to an invoiced amount and the basis therefor.
In the event of a dispute as to the invoiced amount, Overnite shall pay all
undisputed amounts but shall be entitled to withhold amounts in dispute. In the
event of such a dispute, the parties agree to provide each other with records
and information relating to such dispute and, without limiting their rights and
remedies, to negotiate in good faith to attempt to resolve such dispute.
Any late payment shall be subject to any costs of collection
(including reasonable legal fees) and shall bear interest at the rate of one
percent (1%) per month or a fraction thereof until paid. UPC shall not commence
suit on collection of late payment prior to providing seven (7) days notice of
its intent to commence suit to Overnite.
10. The EDGE Technology and the Work Product. Any products, solutions,
-----------------------------------------
inventions, improvements, concepts, ideas,
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or work product made, conceived, or developed by Development Staff Personnel in
connection with the Development Staff Services during the term of this
Agreement, including any proprietary rights therein (the "Work Product"), are
and shall be the sole and exclusive property of Overnite. In addition, UPC
agrees that Overnite shall own the existing products set forth in the Technical
Specification Schedule A (the "EDGE Technology"). UPC agrees to and hereby does
assign to Overnite all right, title, and interest in and to the Work Product and
the EDGE Technology, including but not limited to all copyrights, patents,
trademarks, goodwill, trade secrets, and other proprietary rights therein. If
necessary, UPC shall assist Overnite in securing, documenting, memorializing,
recording, registering, perfecting, and protecting its rights in the Work
Product the EDGE Technology, including but not limited to executing documents,
assisting with applications for patents, copyright registrations, and trademark
registrations, and assisting in enforcement activities. Notwithstanding the
foregoing, UPC is granted a non-exclusive license for the unlimited use of the
Work Product or the EDGE Technology for commercial and internal business
operations, including use by a third party, upon the earlier of either the
expiration of the original term of this Agreement or December 31, 1999. In the
event UPC uses the Work Product or EDGE Technology
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for commercial operations, UPC shall not identify the Work Product or the EDGE
Technology using EDGE marks, or any other marks used by Overnite, or any
confusingly similar name or xxxx. Overnite shall not assert any claim or action
against UPC arising because of UPC's use of the Work Product or the EDGE
Technology under a name other than the EDGE Technology or any other name used by
Overnite to identify the Work Product and the EDGE Technology, as set forth in
this section.
11. Confidentiality. For purposes hereof, "Confidential Information"
----------------
means any information, in any form or medium, which relates to any component of
a party's business and which is not a matter of public record or generally known
to the public, including, without limitation, information relating to
inventions; patent, trademark, and copyright applications; improvements; know-
how; specifications; drawings; cost and pricing data; process flow diagrams;
customer and supplier lists; bills; ideas; concepts; financial information;
plans, practices, and procedures; agreements, documents, or instruments
involving the party; and any information or materials deemed or designated as
confidential or proprietary by the party. Each party agrees that during and
after the term of this Agreement (or any extension thereof), unless specifically
authorized by the other party in a prior writing, it shall not, directly or
indirectly,
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disclose the other party's Confidential Information to any person or entity, or
use the other party's Confidential Information for its benefit. In the event
that a party is requested or required to disclose the other party's Confidential
Information in connection with any legal proceeding, interrogatory, subpoena,
civil investigative demand, or similar process, that party will promptly notify
the other party of the request or requirement so that the other party may seek
an appropriate protective order. If, in the absence of a protective order, a
party, on the advice of counsel, is compelled by any tribunal, to disclose the
other party's Confidential Information, that party shall use its best efforts to
obtain an order or other assurance that confidential treatment will be accorded
to such Confidential Information required to be disclosed. Promptly upon
request, or upon termination of this Agreement for any reason, each party shall
return to the other party or destroy, as requested by the other party, any
materials in its possession or control that contain, embody, or reflect the
other party's Confidential Information.
12. Liability and Indemnification. Except as provided specifically in the
-----------------------------
Agreement, UPC shall have no liability under this Agreement for damage or loss
of any type suffered by Overnite or its subsidiaries or any third party as a
result of the performance or non-performance of the services provided under
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this Agreement. Each party shall indemnify, defend and hold the other party
harmless from and against all damages, losses and out-of-pocket expenses
(including fees and disbursements of counsel) caused by or arising out of any
willful breach or gross negligence by such indemnifying party in the performance
or non-performance of any obligation or agreement contained herein or by the
willful misconduct of such indemnifying party. In the event of a claim against
UPC by a third party, Overnite shall indemnify, defend and hold UPC harmless
from and against all damages, losses and out-of-pocket expenses (including fees
and disbursements of counsel) caused by or arising out the performance or non-
performance of any obligation or agreement contained herein except where caused
by the willful breach, negligence, or willful misconduct of UPC. Notwithstanding
any other provision of this Agreement, UPC shall have no liability for the acts
or omissions of any third party (other than a subsidiary of UPC) that provides
services under this Agreement so long as UPC has not been grossly negligent in
the selection of such third party. In the event Overnite believes UPC is not
performing its obligations under this Agreement in accordance with the standards
agreed upon by the parties, Overnite shall so notify UPC. UPC agrees to
cooperate with Overnite to address performance issues and to bring UPC's
performance into
- 27 -
conformance with such standards.
14. Assignment. Neither party shall assign or transfer any of its rights
-----------
or obligations under this Agreement except with the prior written consent of the
other party, which consent may be withheld by such other party in its sole
discretion. This Agreement shall be binding upon and shall inure to the benefit
of the parties and their successors and permitted assigns. Notwithstanding any
other provision in this Agreement, UPC shall not be prohibited from selling or
divesting itself of UPT prior to the expiration of this Agreement, provided
that, in such event, this Agreement, and all rights and obligations hereunder be
assigned to and assumed by UPT and its affiliates.
15. Licenses and Permits. To the extent applicable, Overnite, at
--------------------
Overnite's sole expense, shall be responsible for obtaining all necessary
software licenses and/or permits required for the performance of Development
Staff Services as a result of the Offering and Acquisition and OTC's and
Overnite's corporate status. UPC shall notify Overnite in the event that any
third party vendors request additional licenses or fees associated with UPC
providing Development Staff Services to Overnite. Failure by Overnite to obtain
any necessary licenses and/or permits will not give rise to a cause of action
under this Agreement against UPC (including contract, tort or warranty). UPC
will cooperate in
- 28 -
good faith to assist Overnite with securing all necessary licenses and/or
permits.
16. Miscellaneous.
--------------
A. Notices. All notices and other communications hereunder shall be
--------
in writing and shall be delivered in person, mailed, delivered by courier
service, or sent by facsimile to the following:
(i) If to UPC:
---------
Union Pacific Technologies
0000 Xxxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000-0000
Fax No. (000) 000-0000
ATTN: Executive Vice President
With a copy to:
--------------
Union Pacific Corporation
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Fax No.: (000) 000-0000
ATTN: Vice President and Controller
- 29 -
(ii) If to Overnite:
--------------
Overnite Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Fax No.: (000) 000-0000
ATTN: Senior Vice President and Chief
Financial Officer
or to such other addresses as either party may designate in writing. All
notices or communications given by personal delivery, mail, or courier service
shall be effective upon receipt if received during the recipient's normal
business hours. Notice given by facsimile shall be effective upon receipt if
received during the recipient's normal business hours, or at the beginning of
the recipient's next business day if not received during the recipient's normal
business hours.
B. Governing Law. This Agreement shall be governed by and construed
--------------
in accordance with the laws of the State of Missouri, without giving effect to
the principles of conflicts of laws thereof.
C. Counterparts. This Agreement may be executed in any number of
-------------
counterparts, each of which when so executed shall be deemed an original but all
of which shall together constitute but one and the same instrument.
D. Headings. The headings and captions set forth in this Agreement
---------
are for convenience of reference only and shall
- 30 -
not affect the construction or interpretation hereof.
E. Severability. The provisions of this Agreement are severable.
-------------
Should any provision of this Agreement be void, voidable, or unenforceable, this
shall not affect or invalidate any other provisions of this Agreement, which
shall continue to govern the relative rights and obligations of the parties as
though such void, voidable, or unenforceable provision were not a part hereof.
F. Entire Agreement; Modification; Waiver. This Agreement
---------------------------------------
constitutes the entire agreement of the parties with respect to the subject
matter hereof and supersedes all prior agreements and understandings, whether
oral or written, with respect thereto. This Agreement may not be modified or
amended except by a subsequent written instrument duly executed by both parties.
No failure or delay by any party in exercising any right, power, or privilege
hereunder shall operate as a waiver thereof. Nor shall any single or partial
exercise thereof preclude any other or further exercise of any other right,
power, or privilege.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the Effective Date first written above.
UNION PACIFIC CORPORATION
- 31 -
By:_______________________________
Print Name:________________________________
Title:_____________________________________
OVERNITE CORPORATION
By:________________________________________
Print Name:________________________________
Title:_____________________________________
- 32 -
COMPUTER AND INFORMATION TECHNOLOGY AGREEMENT
RESOURCE SHARING SERVICES
-------------------------
THIS COMPUTER AND INFORMATION TECHNOLOGY AGREEMENT -RESOURCE SHARING
SERVICES (the "Agreement") is made and entered into as of the ____ day of
August, 1998 (the "Effective Date"), by and between UNION PACIFIC CORPORATION, a
Utah corporation ("UPC"), and OVERNITE CORPORATION, a Virginia corporation
("Overnite").
WHEREAS, Overnite intends to issue and sell or cause to be issued and
sold all of its outstanding common stock, through an initial public offering
(the closing of which is hereafter referred to as the "Offering"); and
WHEREAS, immediately following the Offering, Overnite intends to
purchase all of the issued and outstanding common stock of Overnite Holding,
Inc., a Delaware corporation ("OHI"), from UPC (the "Acquisition"), with the
result that Overnite will become a publicly-owned company and OHI will become a
wholly-owned, direct subsidiary of Overnite; and
WHEREAS, Overnite Transportation Company, a Virginia corporation
("OTC"), is a wholly-owned, direct subsidiary of OHI and immediately following
the Acquisition will become a wholly-owned, indirect subsidiary of Overnite; and
WHEREAS, UPC, itself and through its Union Pacific Technologies
Division ("UPT") and through its wholly-owned
- 33 -
subsidiary, Union Pacific Railroad Company ("UPRR"), has provided and continues
to provide to its subsidiaries, including OTC, certain resource sharing
services, including the services described herein; and
WHEREAS, UPC and Overnite desire that UPC continue to provide such
resource sharing services following the Offering and Acquisition pursuant to the
terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties hereto agree as follows:
1. Resource Sharing Services. UPC, through UPT and UPRR, has provided
--------------------------
and currently provides to OTC certain resource sharing services in connection
with a certain research and development project (the "Research and Development
Project"), and in connection with certain human resources systems applications
and accounting systems applications currently in St. Louis, Missouri,(the "Human
Resources Systems Applications" and "Accounting Systems Applications"),
including but not limited to on-line support, telephone support, and
troubleshooting (collectively the "Resource Sharing Services").
2. Continued Provision of Resource Sharing Services. UPC shall provide
-------------------------------------------------
or cause to be provided the Resource Sharing
- 34 -
Services to Overnite and its subsidiaries pursuant to the terms and conditions
set forth herein. UPC shall provide Resource Sharing Services of at least the
same nature and quality as the similar services that it has provided to OTC
during the year prior to the Effective Date of this Agreement, and shall provide
and perform the Resource Sharing Services with at least the same degree of care,
skill, and prudence that it exercises for its own operations.
3. Human Resources Systems Applications and Accounting Systems
-----------------------------------------------------------
Applications: Services; Transfer; Transition Services. UPC shall provide the
-------------------------------------------------------
Resource Sharing Services in connection with the Human Resources Systems
Applications and Accounting Systems Applications from the Effective Date through
December 31, 1998. Included in such services, UPC shall provide sufficient
professional staff, knowledgeable and experienced in the Human Resources Systems
Applications and Accounting Systems Applications, to provide online support and
telephone support to Overnite for at least the hours of 9:00 a.m. to 5:00 p.m.
Eastern Standard (or Daylight Savings) Time, and to promptly provide additional
support if necessary or if requested by Overnite, through December 31, 1998. As
part of the Resource Sharing Services, UPC shall take all reasonable steps to
facilitate, no later than December 31, 1998, that the Human Resources Systems
- 35 -
Applications and Accounting Systems Applications are fully Year 2000 compliant,
in accordance with Section 7. In connection with the transfer of the Human
Resources Systems Applications and Accounting Systems Applications, UPC shall
continue to provide the Resource Sharing Services (the "Transition Services") to
Overnite as requested by Overnite, through December 31, 1998. On or before
September 1, 1998, UPC and Overnite or its subsidiaries shall discuss in good
faith whether UPC will continue to provide Transition Services to Overnite after
December 31, 1998, and the terms and conditions of such services. In the event
the Transition Services are not continued after December 31, 1998, UPC shall
cooperate with Overnite to facilitate the assignment and transfer of Human
Resources Systems Applications and Accounting Systems Applications, together
with the licenses therefor and any source code, documentation, and other
materials related thereto, to Overnite. Overnite is granted a non-exclusive
license to use any products, solutions, inventions, improvements, concepts,
ideas, or work product made, conceived, or developed by UPC in connection with
the Resource Sharing Services strictly as a part of, and in conjunction with,
Overnite's internal business operations and for no other purpose, including use
by a third party.
4. Research and Development Project. UPC has funded and
---------------------------------
- 36 -
continues to fund a Research and Development Project, in which Overnite or its
subsidiaries are participating, relating to line haul optimization. UPC shall
continue to fund, participate in, and allow Overnite or its subsidiaries to
participate in the Research and Development Project through the duration of the
budgeted amount for the Research and Development Project, to be agreed upon
between Overnite and UPC. Overnite, and its subsidiaries, are granted a non-
exclusive license to use any products, solutions, inventions, improvements,
concepts, ideas, or work product made, conceived, or developed by UPC in
connection with the Resource Sharing Services, to the extent that UPC is able
and has the right to grant a non-exclusive license, strictly as a part of, and
in conjunction with, Overnite's and its subsidiaries internal business
operations and for no other purpose, including use by a third party.
5. Licenses and Permits. To the extent applicable, Overnite, at
---------------------
Overnite's sole expense, shall be responsible for obtaining all necessary
software licenses and/or permits required for performance of Resource Sharing
Services as a result of the Offering and Acquisition and OTC's and Overnite's
corporate status. UPC shall notify Overnite in the event that any third party
vendors request additional licenses or fees associated with UPC providing
Resource Sharing Services to Overnite. Failure by
- 37 -
Overnite to obtain any necessary licenses and/or permits will not give rise to a
cause of action under this Agreement against UPC (including contract, tort or
warranty). UPC will cooperate in good faith to assist Overnite with securing all
necessary licenses and/or permits.
6. Fees. UPC shall charge no fees related to the Resource Sharing
-----
Services through December 31, 1998. Fees for any services provided hereunder
subsequent to December 31, 1998 will be subject to negotiation between the
parties. On or before September 1, 1998, UPC and Overnite or its subsidiaries
will discuss in good faith whether to continue all or part of any of the
services described in this Agreement.
7. Multi-Century Compliance. UPC represents that it is taking all
------------------------
reasonable steps through December 31, 1998, in an effort to make each item of
hardware, software and firmware created, modified, upgraded, revised, developed,
or delivered hereunder, or equipment and products containing such hardware,
software or firmware, accurately process date data (including without limitation
calculating, comparing and sequencing), within, from, into and between centuries
(including without limitation the twentieth and twenty-first centuries),
including leap year calculations. UPC does not, by this Section, warrant that
any item of hardware, software or firmware created,
- 38 -
modified, upgraded, revised, developed, or delivered hereunder, or equipment and
products containing such hardware, software or firmware are Year 2000 compliant.
8. Confidentiality. For purposes hereof, "Confidential Information"
----------------
means any information, in any form or medium, which relates to any component of
a party's business and which is not a matter of public record or generally known
to the public, including, without limitation, information relating to
inventions; patent, trademark, and copyright applications; improvements; know-
how; specifications; drawings; cost and pricing data; process flow diagrams;
customer and supplier lists; bills; ideas; concepts; financial information;
plans, practices, and procedures; agreements, documents, or instruments
involving the party; and any information or materials deemed or designated as
confidential or proprietary by the party. Each party agrees that during and
after the term of this Agreement, unless specifically authorized by the other
party in a prior writing, it shall not, directly or indirectly, disclose the
other party's Confidential Information to any person or entity, or use the other
party's Confidential Information for its benefit. In the event that a party is
requested or required to disclose the other party's Confidential Information in
connection with any legal proceeding, interrogatory, subpoena, civil
investigative demand,
- 39 -
or similar process, that party will promptly notify the other party of the
request or requirement so that the other party may seek an appropriate
protective order. If, in the absence of a protective order, a party, on the
advice of counsel, is compelled by any tribunal to disclose the other party's
Confidential Information, that party shall use its best efforts to obtain an
order or other assurance that confidential treatment will be accorded to such
Confidential Information required to be disclosed. Promptly upon request, or
upon termination of this Agreement for any reason, each party shall return to
the other party or destroy, as requested by the other party, any materials in
its possession or control that contain, embody, or reflect the other party's
Confidential Information.
9. Assignment. Neither party shall assign or transfer any of its rights
-----------
or obligations under this Agreement except with the prior written consent of the
other party, which consent may be withheld by such other party in its sole
discretion. This Agreement shall be binding upon and shall inure to the benefit
of the parties and their successors and permitted assigns. Notwithstanding any
other provision in this Agreement, UPC shall not be prohibited from selling or
divesting itself of UPT in any manner prior to the expiration of the Agreement,
provided that, in such event, this Agreement, and all rights and obligations
- 40 -
hereunder, be assigned to and assumed by UPT and its affiliates.
10. Liability and Indemnification. Except as provided specifically in the
-----------------------------
Agreement, UPC shall have no liability under this Agreement for damage or loss
of any type suffered by Overnite or its subsidiaries or any third party as a
result of the performance or non-performance of the services provided under this
Agreement. Each party shall indemnify, defend and hold the other party harmless
from and against all damages, losses and out-of-pocket expenses (including fees
and disbursements of counsel) caused by or arising out of any willful breach or
gross negligence by such indemnifying party in the performance or non-
performance of any obligation or agreement contained herein or by the willful
misconduct of such indemnifying party. In the event of a claim against UPC by a
third party, Overnite shall indemnify, defend and hold UPC harmless from and
against all damages, losses and out-of-pocket expenses (including fees and
disbursements of counsel) caused by or arising out the performance or non-
performance of any obligation or agreement contained herein except where caused
by the willful breach, negligence, or willful misconduct of UPC.
Notwithstanding any other provision of this Agreement, UPC shall have no
liability for the acts or omissions of any third party (other than a subsidiary
of UPC) that provides services under this Agreement so
- 41 -
long as UPC has not been grossly negligent in the selection of such third party.
In the event Overnite believes UPC is not performing its obligations under this
Agreement in accordance with the standards agreed upon by the parties, Overnite
shall so notify UPC. UPC agrees to cooperate with Overnite to address such
performance issues and to bring UPC's performance into conformance with such
standards.
11. Miscellaneous.
--------------
A. Notices. All notices and other communications hereunder shall be
--------
in writing and shall be delivered in person,
- 42 -
mailed, delivered by courier service, or sent by facsimile to the following:
(I) If to UPC:
---------
Union Pacific Technologies
0000 Xxxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000-0000
Fax No. (000) 000-0000
ATTN: Executive Vice President
With a copy to:
--------------
Union Pacific Corporation
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Fax No.: (000) 000-0000
ATTN: Vice President and Controller
(ii) If to Overnite:
--------------
Overnite Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Fax No.: (000) 000-0000
ATTN: Senior Vice President and Chief
Financial Officer
or to such other addresses as either party may designate in writing. All
notices or communications given by personal delivery, mail, or courier service
shall be effective upon receipt if received during the recipient's normal
business hours. Notice given by facsimile shall be effective upon receipt if
received during the recipient's normal business hours, or at the beginning of
the recipient's next business day if not received during the recipient's normal
business hours.
- 43 -
B. Governing Law. This Agreement shall be governed by and construed
--------------
in accordance with the laws of the State of Missouri, without giving effect to
the principles of conflicts of laws thereof.
C. Counterparts. This Agreement may be executed in any number of
-------------
counterparts, each of which when so executed shall be deemed an original but all
of which shall together constitute but one and the same instrument.
D. Headings. The headings and captions set forth in this Agreement
---------
are for convenience of reference only and shall not affect the construction or
interpretation hereof.
E. Severability. The provisions of this Agreement are severable.
-------------
Should any provision of this Agreement be void, voidable, or unenforceable, this
shall not affect or invalidate any other provisions of this Agreement, which
shall continue to govern the relative rights and obligations of the parties as
though such void, voidable, or unenforceable provision were not a part hereof.
F. Entire Agreement; Modification; Waiver. This Agreement
---------------------------------------
constitutes the entire agreement of the parties with respect to the subject
matter hereof and supersedes all prior agreements and understandings, whether
oral or written, with respect thereto. This Agreement may not be modified or
amended
- 44 -
except by a subsequent written instrument duly executed by both parties. No
failure or delay by any party in exercising any right, power, or privilege
hereunder shall operate as a waiver thereof. Nor shall any single or partial
exercise thereof preclude any other or further exercise of any other right,
power, or privilege.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the Effective Date first written above.
UNION PACIFIC CORPORATION
By:________________________________________
Print Name:________________________________
Title:_____________________________________
OVERNITE CORPORATION
By:________________________________________
Print Name:________________________________
Title:_____________________________________
- 45 -
COMPUTER AND INFORMATION TECHNOLOGY AGREEMENT
DATA CENTER SERVICES
--------------------
THIS COMPUTER AND INFORMATION TECHNOLOGY AGREEMENT -DATA CENTER
SERVICES (the "Agreement") is made and entered into as of the ____ day of
August, 1998 (the "Effective Date"), by and between UNION PACIFIC CORPORATION, a
Utah corporation ("UPC"), and OVERNITE CORPORATION, a Virginia corporation
("Overnite").
WHEREAS, Overnite intends to issue and sell or cause to be issued and
sold all of its outstanding common stock, through an initial public offering
(the closing of which is hereafter referred to as the "Offering"); and
WHEREAS, immediately following the Offering, Overnite intends to
purchase all of the issued and outstanding common stock of Overnite Holding,
Inc., a Delaware corporation ("OHI"), from UPC (the "Acquisition"), with the
result that Overnite will become a publicly-owned company and OHI will become a
wholly-owned, direct subsidiary of Overnite; and
WHEREAS, Overnite Transportation Company, a Virginia corporation
("OTC"), is a wholly-owned, direct subsidiary of OHI and immediately following
the Acquisition will become a wholly-owned, indirect subsidiary of Overnite;
and
WHEREAS, UPC, through its Union Pacific Technologies Division ("UPT")
and through its wholly-owned subsidiary, Union Pacific Railroad Company
("UPRR"), has provided and continues to
- 46 -
provide to its subsidiaries, including OTC, certain data center services,
including the services described herein; and
WHEREAS, UPC and Overnite desire that UPC continue to provide such
data center services following the Offering and Acquisition pursuant to the
terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties hereto agree as follows:
1. Data Center Services. UPC, through UPT and UPRR, has provided and
---------------------
currently provides to OTC certain data center processing services in support of
certain of OTC's business applications, which services are provided from UPRR's
St. Louis, Missouri data center, with disaster recovery provided in UPRR's
Omaha, Nebraska processing center, including the following services
(collectively the "Data Center Services"):
A. Computer Systems Operations. Usage and non-usage based services
----------------------------
for the current mainframe central processing unit ("CPU") and any successors,
applications services, decision support services and associated support
services, including but not limited to Direct Access Storage Devices ("DASD"),
print, tape mounts, and overhead.
B. Mainframe Disaster Recovery Services. Services to
-------------------------------------
- 47 -
provide data redundancy and recovery of key business applications in the event
of a disaster.
2. Continued Provision of Data Center Services. UPC shall provide or
--------------------------------------------
cause to be provided the Data Center Services to Overnite and its subsidiaries
pursuant to the terms and conditions set forth herein. UPC shall provide Data
Center Services of at least the same quality as the similar services that it has
provided to OTC during the year prior to the Effective Date of this Agreement,
and shall provide and perform the Data Center Services with at least the same
degree of care, skill, and prudence that it exercises for its own operations.
The availability of the systems used in provision of the Data Center Services,
UPC's response times related to provision of the Data Center Services, and UPC's
disaster recovery services related to the Data Center Services shall meet or
exceed the standards to be agreed to between UPC and Overnite.
3. The EDGE Technology and the Work Product. Intellectual property
-----------------------------------------
rights in the EDGE Technology and the Work Product, as those terms are defined
in the Development Staff Services Agreement, are set forth in the Development
Staff Services Agreement dated the date hereof between the parties hereto (the
"Development Services Agreement"). UPC shall maintain the EDGE Technology and
the Work Product for a period of six (6) months
- 48 -
after the term of this Agreement, or until it receives notice from Overnite to
send the EDGE Technology and the Work Product to Overnite or to otherwise
dispose of the EDGE Technology and the Work Product, whichever time period is
shorter. At such time UPC shall comply with Overnite's and/or OTC's instructions
relating thereto, subject to UPC's rights therein granted in Section 10 of the
Development Staff Services Agreement.
4. Upgrades Related to Data Center Services. UPC agrees to cooperate in
-----------------------------------------
good faith with Overnite to plan and evaluate upgrades related to the Data
Center Services described herein.
5. Initial Term; Optional Extension. UPC shall provide the Data Center
---------------------------------
Services from the Effective Date through December 31, 1999. Overnite shall have
the option to extend this Agreement and the provision of the Data Center
Services hereunder, or portions thereof, through December 31, 2000 by providing
UPC with written notice of such intent on or before June 30, 1999. In the event
that Overnite does not exercise its option to extend, then this Agreement shall
terminate on December 31, 1999. In the event that Overnite does exercise its
option to extend, then this Agreement shall terminate on December 31, 2000.
Notwithstanding the foregoing, Overnite shall have the option to assume the
Mainframe Disaster Recovery Services at the end of the 1998 calendar year by so
notifying UPC on or before September 1,
- 49 -
1998.
6. Liability and Indemnification. Except as provided specifically in
-----------------------------
this Agreement, UPC shall have no liability under this Agreement for damage or
loss of any type suffered by Overnite or its subsidiaries or any third party as
a result of the performance or non-performance of the services provided under
this Agreement. Each party shall indemnify, defend and hold the other party
harmless from and against all damages, losses and out-of-pocket expenses
(including fees and disbursements of counsel) caused by or arising out of any
willful breach or gross negligence by such indemnifying party in the performance
or non-performance of any obligation or agreement contained herein or by the
willful misconduct of such indemnifying party. In the event of a claim against
UPC by a third party, Overnite shall indemnify, defend and hold UPC harmless
from and against all damages, losses and out-of-pocket expenses (including fees
and disbursements of counsel) caused by or arising out the performance or non-
performance of any obligation or agreement contained herein except where caused
by the willful breach, negligence, or willful misconduct of UPC.
Notwithstanding any other provision of this Agreement, UPC shall have no
liability for the acts or omissions of any third party (other than a subsidiary
of UPC) that provides services under this Agreement so
- 50 -
long as UPC has not been grossly negligent in the selection of such third party.
In the event Overnite believes UPC is not performing its obligations under this
Agreement in accordance with the standards agreed upon by the parties, Overnite
shall so notify UPC. UPC agrees to cooperate with Overnite to address
performance issues and to bring UPC's performance into conformance with such
standards.
7. Fees. Overnite shall pay UPC for provision of the Data Center
-----
Services as follows:
A. Usage Based Services. Rates for 1998 for usage based services
---------------------
shall be at current rates. Rates thereafter shall be set pursuant to the
agreement of the parties.
B. Non-Usage Based Services. Rates for 1998 for non-usage based
-------------------------
services shall be at current rates. Rates thereafter shall be set pursuant to
the agreement of the parties.
8. Licenses and Permits. Overnite, at Overnite's sole expense, shall be
--------------------
responsible for obtaining all necessary software licenses and/or permits
required for performance of Data Center Services as a result of the Offering and
Acquisition and OTC's and Overnite's corporate status. UPC shall notify
Overnite in the event that any third party vendors request additional licenses
or fees associated with UPC providing Data Center Services to Overnite. Failure
by Overnite to obtain any
- 51 -
necessary licenses and/or permits will not give rise to a cause of action under
this Agreement against UPC (including contract, tort or warranty). UPC will
cooperate in good faith to assist Overnite with securing all necessary licenses
and/or permits.
- 52 -
9. Billing and Payment. Each month during the term of this Agreement and
--------------------
in the first month after termination of this Agreement (or any extension
thereof), UPC shall submit to Overnite an invoice containing the charges for the
Data Center Services for the then current month, consisting of both estimated
and actual charges, and containing a detailed statement, for the prior month, of
all of the charges for Data Center Services. Overnite shall remit payment in
full for the estimated charges, reflecting any adjustments for prior months'
charges, by wire transfer of immediately available funds to an account
designated by UPC, on or prior to the later of: (a) five (5) business days after
receipt of such invoices, or (b) the end of the then current month. Overnite
shall notify UPC of any dispute as to an invoiced amount and the basis therefor.
In the event of a dispute as to the invoiced amount, Overnite shall pay all
undisputed amounts but shall be entitled to withhold amounts in dispute. In the
event of such a dispute, the parties agree to provide each other with records
and information relating to such dispute and, without limiting their rights and
remedies, to negotiate in good faith to attempt to resolve such dispute.
Any late payment shall be subject to any costs of collection
(including reasonable legal fees) and shall bear interest at the rate of one
percent (1%) per month or a fraction
- 53 -
thereof until paid. UPC shall not commence suit on collection of late payment
prior to providing seven (7) days notice of its intent to commence suit to
Overnite.
10. Multi-Century Compliance. UPC represents that it is taking all
------------------------
reasonable steps in an effort to make each item of hardware, software and
firmware created, modified, upgraded, revised, developed, or delivered
hereunder, or equipment and products containing such hardware, software or
firmware, accurately process date data (including without limitation
calculating, comparing and sequencing), within, from, into and between centuries
(including without limitation the twentieth and twenty-first centuries),
including leap year calculations. UPC does not, by this Section, warrant that
each item of hardware, software and firmware created, modified, upgraded,
revised, developed, or delivered hereunder, or equipment and products containing
such hardware, software or firmware are Year 2000 compliant.
11. Confidentiality. For purposes hereof, "Confidential Information"
----------------
means any information, in any form or medium, which relates to any component of
a party's business and which is not a matter of public record or generally known
to the public, including, without limitation information relating to inventions;
patent, trademark, and copyright applications; improvements;
- 54 -
know-how; specifications; drawings; cost and pricing data; process flow
diagrams; customer and supplier lists; bills; ideas; concepts; financial
information; plans, practices, and procedures; agreements, documents, or
instruments involving the party; and any information or materials deemed or
designated as confidential or proprietary by the party. Each party agrees that
during and after the term of this Agreement (or any extension thereof), unless
specifically authorized by the other party in a prior writing, it shall not,
directly or indirectly, disclose the other party's Confidential Information to
any person or entity, or use the other party's Confidential Information for its
benefit. In the event that a party is requested or required to disclose the
other party's Confidential Information in connection with any legal proceeding,
interrogatory, subpoena, civil investigative demand, or similar process, that
party will promptly notify the other party of the request or requirement so that
the other party may seek an appropriate protective order. If, in the absence of
a protective order, a party, on the advice of counsel, is compelled by any
tribunal to disclose the other party's Confidential Information, that party
shall use its best efforts to obtain an order or other assurance that
confidential treatment will be accorded to such Confidential Information
required to be disclosed. Promptly upon request, or upon
- 55 -
termination of this Agreement for any reason, each party shall return to the
other party or destroy, as requested by the other party, any materials in its
possession or control that contain, embody, or reflect the other party's
Confidential Information.
12. Assignment. Neither party shall assign or transfer any of its rights
-----------
or obligations under this Agreement except with obtaining the prior written
consent of the other party, which consent may be withheld by such other party in
its sole discretion. This Agreement shall be binding upon and shall inure to
the benefit of the parties and their successors and permitted assigns.
Notwithstanding any other provision in this Agreement, UPC shall not be
prohibited from selling or divesting itself of UPT prior to the expiration of
this Agreement, provided that, in such event, this Agreement, and all rights and
obligations hereunder be assigned to and assumed by UPT and its affiliates.
13. Miscellaneous.
--------------
A. Notices. All notices and other communications hereunder shall be
--------
in writing and shall be delivered in person, mailed, delivered by courier
service, or sent by facsimile to the following:
(i) If to UPC:
---------
Union Pacific Technologies
0000 Xxxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000-0000
- 56 -
Fax No. (000) 000-0000
ATTN: President and CEO
With a copy to:
--------------
Union Pacific Corporation
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Fax No.: (000) 000-0000
ATTN: Vice President and Controller
Union Pacific Railroad Company
0000 Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000-0000
Fax No.: (000) 000-0000
ATTN: Senior Vice President,
Information Technology
(ii) If to Overnite:
--------------
Overnite Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Fax No.: (000) 000-0000
ATTN: Senior Vice President and Chief
Financial Officer
or to such other addresses as either party may designate in writing. All
notices or communications given by personal delivery, mail, or courier service
shall be effective upon receipt if received during the recipient's normal
business hours. Notice given by facsimile shall be effective upon receipt if
received during the recipient's normal business hours, or at the beginning of
the recipient's next business day if not received during the recipient's normal
business hours.
B. Governing Law. This Agreement shall be governed
--------------
- 57 -
by and construed in accordance with the laws of the State of Missouri, without
giving effect to the principles of conflicts of laws thereof.
C. Counterparts. This Agreement may be executed in any number of
-------------
counterparts, each of which when so executed shall be deemed an original but all
of which shall together constitute but one and the same instrument.
D. Headings. The headings and captions set forth in this Agreement
---------
are for convenience of reference only and shall not affect the construction or
interpretation hereof.
E. Severability. The provisions of this Agreement are severable.
-------------
Should any provision of this Agreement be void, voidable, or unenforceable, this
shall not affect or invalidate any other provisions of this Agreement, which
shall continue to govern the relative rights and obligations of the parties as
though such void, voidable, or unenforceable provision were not a part hereof.
F. Entire Agreement; Modification; Waiver. This Agreement
---------------------------------------
constitutes the entire agreement of the parties with respect to the subject
matter hereof and supersedes all prior agreements and understandings, whether
oral or written, with respect thereto. This Agreement may not be modified or
amended except by a subsequent written instrument duly executed by both
- 58 -
parties. No failure or delay by any party in exercising any right, power, or
privilege hereunder shall operate as a waiver thereof. Nor shall any single or
partial exercise thereof preclude any other or further exercise of any other
right, power, or privilege.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the Effective Date first written above.
UNION PACIFIC CORPORATION
By:________________________________________
Print Name:________________________________
Title:_____________________________________
OVERNITE CORPORATION
By:________________________________________
Print Name:________________________________
Title:_____________________________________
- 59 -
COMPUTER AND INFORMATION TECHNOLOGY AGREEMENT
TELECOMMUNICATION SERVICES
--------------------------
THIS COMPUTER AND INFORMATION TECHNOLOGY AGREEMENT -TELECOMMUNICATION
SERVICES (the "Agreement") is made and entered into as of the ____ day of
August, 1998 (the "Effective Date"), by and between UNION PACIFIC CORPORATION, a
Utah corporation ("UPC"), and OVERNITE CORPORATION, a Virginia corporation
("Overnite").
WHEREAS, Overnite intends to issue and sell or cause to be issued and
sold all of its outstanding common stock, through an initial public offering
(the closing of which is hereafter referred to as the "Offering"); and
WHEREAS, immediately following the Offering, Overnite intends to
purchase all of the issued and outstanding common stock of Overnite Holding,
Inc., a Delaware corporation ("OHI"), from UPC (the "Acquisition"), with the
result that Overnite will become a publicly-owned company and OHI will become a
wholly-owned, direct subsidiary of Overnite; and
WHEREAS, Overnite Transportation Company, a Virginia corporation
("OTC"), is a wholly-owned, direct subsidiary of OHI and immediately following
the Acquisition will become a wholly-owned, indirect subsidiary of Overnite;
and
WHEREAS, UPC has provided and continues to provide to its
subsidiaries, including OTC, certain telecommunication services, including the
services described herein; and
WHEREAS, UPC and Overnite desire that UPC continue to provide such
telecommunication services following the Offering and Acquisition pursuant to
the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties hereto agree as follows:
1. Telecommunication Services. UPC has provided and currently
---------------------------
provides through service agreements and contracts with major telecommunication
providers certain voice and data communication services to OTC, including, but
not limited to, inbound and outbound long distance services, calling card
services, inbound 800 service, frame relay and other data networking services
(collectively the "Telecommunication Services").
2. Continued Provision of Telecommunication Services. UPC shall
--------------------------------------------------
provide or cause to be provided the Telecommunication Services to Overnite and
its subsidiaries pursuant to the terms and conditions set forth herein for the
term specified in Section 3. UPC shall provide or cause to be provided the
Telecommunication Services, and shall meet all terms and conditions of its
current agreements with major telecommunication providers, to maintain service
levels of at least the same nature and quality as the similar services that it
has provided or
2
caused to be provided to OTC during the year prior to the Effective Date of this
Agreement, and UPC shall provide and perform or cause to be provided and
performed the Telecommunication Services with at least the same degree of care,
skill, and prudence that it exercises for its own operations. Overnite's volume
obligations and other specific commitments shall be as agreed to by the parties.
3. Term. Overnite and its subsidiaries will continue to purchase all
-----
Telecommunication Services used by Overnite exclusively from and through UPC
from the Effective Date through December 31, 2000. The Telecommunication
Services will be provided through UPC in accordance with the applicable
agreement or agreements, and any subsequent amendments thereto, between UPC and
the major telecommunication services provider; provided, however, that any such
proposed amendments which may affect the rights, obligations, or benefits of
Overnite, including but not limited to costs, services, and duration of
services, must be disclosed in advance to Overnite and can be implemented only
if agreed to in advance by Overnite.
4. Fees. Overnite will pay fees associated with the
-----
Telecommunication Services directly to the major telecommunication services
provider in accordance with the rate set forth in the applicable agreement or
agreements between UPC and the major telecommunication provider.
3
5. Billing and Payment. UPC and Overnite agree to transfer all
--------------------
billing and order-related services related to the provision of Telecommunication
Services to Overnite no later than November 30, 1998. Subsequent to such
transfer, Overnite will deal directly with major telecommunication service
providers on all matters regarding service orders, billing, and payment of
charges related to Telecommunication Services. Prior to such transfer, each
month and in the first month after such transfer, UPC shall submit to Overnite
an invoice or invoices detailing, for the prior month, the fees for the
Telecommunication Services. Overnite shall remit payment in full for such
invoices, by wire transfer of immediately available funds to an account
designated by UPC, on or prior to the later of: (a) five (5) business days after
receipt of such invoices, or (b) the end of the then current month. Overnite
shall notify UPC of any dispute as to an invoiced amount and the basis therefor.
In the event of a dispute as to the invoiced amount, Overnite shall pay all
undisputed amounts but shall be entitled to withhold amounts in dispute. In the
event of such a dispute, the parties agree to provide each other with records
and information relating to such dispute and, without limiting their rights and
remedies, to negotiate in good faith to attempt to resolve such dispute.
Any late payment shall be subject to any costs of collection
(including reasonable legal fees) and shall bear interest at the
4
rate of one percent (1%) per month or a fraction thereof until paid. UPC shall
not commence suit in collection of late payment prior to providing seven (7)
days notice of its intent to commence suit to Overnite.
6. Liability and Indemnification Provision. Except as provided
---------------------------------------
specifically in the Agreement, UPC shall have no liability under this Agreement
for damage or loss of any type suffered by Overnite or its subsidiaries or any
third party as a result of the performance or non-performance of the services
provided under this Agreement. Each party shall indemnify, defend and hold the
other party harmless from and against all damages, losses and out-of-pocket
expenses (including fees and disbursements of counsel) caused by or arising out
of any willful breach or gross negligence by such indemnifying party in the
performance or non-performance of any obligation or agreement contained herein
or by the willful misconduct of such indemnifying party. In the event of a
claim against UPC by a third party, Overnite shall indemnify, defend and hold
UPC harmless from and against all damages, losses and out-of-pocket expenses
(including fees and disbursements of counsel) caused by or arising out of the
performance or non-performance of any obligation or agreement contained herein
except where caused by the willful breach, negligence, or willful misconduct of
UPC. Notwithstanding any other provision of this Agreement, UPC shall
5
have no liability for the acts or omissions of any third party (other than a
subsidiary of UPC) that provides services under this Agreement so long as UPC
has not been grossly negligent in the selection of such third party. In the
event Overnite believes UPC is not performing its obligations under this
Agreement in accordance with the standards agreed upon by the parties, Overnite
shall so notify UPC. UPC agrees to cooperate with Overnite to address
performance issues and to bring UPC's performance into conformance with such
standards.
7. Confidentiality. For purposes hereof, "Confidential
----------------
Information" means any information, in any form or medium, which relates to any
component of a party's business and which is not a matter of public record or
generally known to the public, including, without limitation, information
relating to inventions; patent, trademark, and copyright applications;
improvements; know-how; specifications; drawings; cost and pricing data; process
flow diagrams; customer and supplier lists; bills; ideas; concepts; financial
information; plans, practices, and procedures; agreements, documents, or
instruments involving the party; and any information or materials deemed or
designated as confidential or proprietary by the party. Each party agrees that
during and after the term of this Agreement (or any extension thereof), unless
specifically authorized by the other party in a prior writing, it shall not,
directly or indirectly,
6
disclose the other party's Confidential Information to any person or entity, or
use the other party's Confidential Information for its benefit. In the event
that a party is requested or required to disclose the other party's Confidential
Information in connection with any legal proceeding, interrogatory, subpoena,
civil investigative demand, or similar process, that party will promptly notify
the other party of the request or requirement so that the other party may seek
an appropriate protective order. If, in the absence of a protective order, a
party, on the advice of counsel, is compelled by any tribunal to disclose the
other party's Confidential Information, that party shall use its best efforts to
obtain an order or other assurance that confidential treatment will be accorded
to such Confidential Information required to be disclosed. Promptly upon
request, or upon termination of this Agreement for any reason, each party shall
return to the other party or destroy, as requested by the other party, any
materials in its possession or control that contain, embody, or reflect the
other party's Confidential Information.
8. Assignment. Neither party shall assign or transfer any of its
-----------
rights or obligations under this Agreement except with the prior written consent
of the other party, which consent may be withheld by such other party in its
sole discretion. This Agreement shall be binding upon and shall inure to the
benefit of the parties and their successors and permitted assigns.
7
9. Miscellaneous.
-------------
A. Notices. All notices and other communications hereunder shall be
--------
in writing and shall be delivered in person, mailed, delivered by courier
service, or sent by facsimile to the following:
(i) If to UPC:
---------
Union Pacific Corporation
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Fax No.: (000) 000-0000
ATTN: Vice President and Controller
With a copy to:
--------------
Union Pacific Railroad Company
0000 Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000-0000
Fax No.: (000) 000-0000
ATTN: Senior Vice President,
Information Technology
(ii) If to Overnite:
--------------
Overnite Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Fax No.: (000) 000-0000
ATTN: Senior Vice President and Chief
Financial Officer
or to such other addresses as either party may designate in writing. All
notices or communications given by personal delivery, mail, or courier service
shall be effective upon receipt if received during the recipient's normal
business hours. Notice given by facsimile shall be effective upon receipt if
received during the recipient's normal business hours, or at the
8
beginning of the recipient's next business day if not received during the
recipient's normal business hours.
B. Governing Law. This Agreement shall be governed by and construed
--------------
in accordance with the laws of the State of Missouri, without giving effect to
the principles of conflicts of laws thereof.
C. Counterparts. This Agreement may be executed in any number of
-------------
counterparts, each of which when so executed shall be deemed an original but all
of which shall together constitute but one and the same instrument.
D. Headings. The headings and captions set forth in this Agreement
---------
are for convenience of reference only and shall not affect the construction or
interpretation hereof.
E. Severability. The provisions of this Agreement are severable.
-------------
Should any provision of this Agreement be void, voidable, or unenforceable, this
shall not affect or invalidate any other provisions of this Agreement, which
shall continue to govern the relative rights and obligations of the parties as
though such void, voidable, or unenforceable provision were not a part hereof.
F. Entire Agreement; Modification; Waiver. This Agreement
---------------------------------------
constitutes the entire agreement of the parties with respect to the subject
matter hereof and supersedes all prior agreements and understandings, whether
oral or written, with
9
respect thereto. This Agreement may not be modified or amended except by a
subsequent written instrument duly executed by both parties. No failure or delay
by any party in exercising any right, power, or privilege hereunder shall
operate as a waiver thereof. Nor shall any single or partial exercise thereof
preclude any other or further exercise of any other right, power, or privilege.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the Effective Date first written above.
UNION PACIFIC CORPORATION
By:________________________________________
Print Name:________________________________
Title:_____________________________________
OVERNITE CORPORATION
By:________________________________________
Print Name:________________________________
Title:_____________________________________
10
