Exhibit 10 - Material Contracts
AGREEMENT RESOLVING CERTAIN MATTERS UNDER THE
TAX SHARING AGREEMENT
This AGREEMENT RESOLVING CERTAIN MATTERS UNDER THE TAX
SHARING AGREEMENT ("Agreement") is made as of May 15, 2000,
by and between CNF Transportation Inc., a Delaware
corporation (hereinafter "CNF"), formerly known as
Consolidated Freightways, Inc. (hereinafter "CFI"), and
Consolidated Freightways Corporation, a Delaware corporation
("CFC").
RECITALS
WHEREAS, CFC was formerly a subsidiary of CFI;
WHEREAS, CFC and CFI entered into a Distribution
Agreement as of November 25, 1996 (hereinafter the
"Distribution Agreement"), providing for the distribution by
CFI of the common stock of CFC to the holders of CFI stock
as of the close of business on December 2, 1996
(hereinafter, the "Distribution Date");
WHEREAS, in connection with the Distribution Agreement,
CFC and CFI entered into a Tax Sharing Agreement dated as of
December 2, 1996 (hereinafter the "Tax Sharing Agreement"),
providing, inter alia, for the allocation among CFC, CFI and
their subsidiaries, of federal, state, local and foreign
taxes for the taxable period ending on or before, or
including, the Distribution Date (hereinafter the "Pre-
Distribution Periods");
WHEREAS, CFC and CFI entered into a Memorandum of
Understanding, attached as Exhibit A to the Tax Sharing
Agreement, providing for application of advance payments and
tax and interest reserves under the Tax Sharing Agreement
(hereinafter the "MOU");
WHEREAS, the CFI consolidated federal income tax
returns for certain Pre-Distribution Periods have been
audited by the IRS, and additional tax liabilities have been
determined;
WHEREAS, CFC and CNF have reached agreement on the
allocation of payment obligations with respect to such
additional tax liabilities and as to the manner in which one
or more of the liabilities asserted by the IRS may be
further contested;
WHEREAS, pursuant to such agreement, CFC will pay to
CNF certain amounts and enter into certain agreements with
CNF;
WHEREAS, the Tax Sharing Agreement provides that it may
not be amended, except by an agreement in writing, signed by
the parties thereto;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1. DEFINITIONS
1.1. Capitalized terms used in this Agreement and not
otherwise defined herein have the meaning ascribed to them
in the Tax Sharing Agreement, and the following terms shall
have the following meanings (such meanings to be equally
applicable to both the singular and the plural forms of the
terms defined).
1.2. "1984-1990 CFC Adjustments" has the meaning provided in
Section 2.1 hereof.
1.3. "1991-1996 CFC Carryforward Adjustments" has the
meaning provided in Section 2.2 hereof.
1.4. "Agreed Property Value" has the meaning provided in
Section 3.4(a) hereof.
1.5. "Agreement" shall mean this Agreement Resolving Certain
Matters Under the Tax Sharing Agreement, made as of May 15,
2000, between CNF and CFC, including the Exhibits hereto,
and all amendments made in accordance with the provisions of
Section 9.4 hereof.
1.6. "CFC Affiliate" means any corporation, partnership or
other entity directly or indirectly controlled by CFC.
1.7. "CFC Allocated Adjustments" has the meaning provided in
Section 2.3 hereof.
1.8. "CFCD" means Consolidated Freightways Corporation of
Delaware, a Delaware corporation and a subsidiary of CFC.
1.9. "Claims" shall have the meaning provided in Section 7.1
hereof.
1.10. "Closing" has the meaning provided in Section 9.1
hereof.
1.11. "Closing Date" has the meaning provided in Section
9.1 hereof.
1.12. "CNF Affiliate" means any corporation, partnership
or other entity directly or indirectly controlled by CNF.
1.13. "Disputed Amount" has the meaning provided in
Section 2.3 hereof.
1.14. "Distribution Agreement" has the meaning provided in
the Recitals.
1.15. "Distribution Date" has the meaning provided in the
Recitals.
1.16. "Dover Transfer Agreement" has the meaning provided
in Section 3.5 hereof.
1.17. "JAMS Rules" has the meaning provided in Section 8.1
hereof.
1.18. "Leases" means the lease agreements entered into
pursuant to Section 3.4(c) hereof.
1.19. "Letter of Credit" means the letter of credit in the
amount delivered by CFCD pursuant to Section 3.4(b) hereof.
1.20. "MOU" had the meaning provided in the Recitals.
1.21. "Note" has the meaning provided in Section 3.3
hereof.
1.22. "Other Documents" means the Note, the Real Estate
Notes, the Dover Transfer Agreement, the Letter of Credit,
the Leases, and any other documents delivered by CFC or an
affiliate of CFC in connection with the Closing.
1.23. "Pre-Distribution Periods" has the meaning provided
in the Recitals.
1.24. "Real Estate Notes" means the promissory notes
delivered pursuant to Section 3.4(a) hereof.
1.25. "Real Properties" means the real properties listed
on Exhibit C-1 hereto.
1.26. "Tax Sharing Agreement" has the meaning provided in
the Recitals.
1.27. "Transfer Completion Date" means, for any Real
Property, the date set forth opposite such Real Property on
Exhibit C-1 hereto under the caption "Transfer to Be
Completed By."
1.28. "Workers Compensation Adjustments" means all IRS
adjustments with respect to accrual of liability for filed
and uncontested workers compensation claims. The portion of
such Workers Compensation Adjustments allocable to CFC,
based on the adjustments proposed by the IRS, is shown on
Exhibit E, attached hereto.
ARTICLE 2. AGREED ITEMS
2.1. The consolidated federal income tax returns of CFI for
the taxable years 1984 through and including 1990 have been
audited by the IRS, which has proposed adjustments thereto.
Except with respect to the Workers Compensation Adjustments,
the adjustments relating to CFC (hereinafter the "1984-1990
CFC Adjustments") have been agreed between CNF and the IRS,
after consultation with CFC.
2.2. The consolidated federal income tax returns for CFI for
the taxable years 1991 through 1996 have been audited by the
IRS, which has proposed adjustments thereto. Certain of the
adjustments, listed on Exhibit A hereto, relate in whole or
in part to items for which CFC is responsible under the Tax
Sharing Agreement, and which carry forward adjustments from
earlier tax years (hereinafter the "1991-1996 CFC
Carryforward Adjustments"). Except with respect to the
Workers Compensation Adjustments, all of the 1991-1996 CFC
Carryforward Adjustments have been agreed between the IRS
and CNF, after consultation with CFC.
2.3. The 1984-1990 CFC Adjustments and the 1991-1996 CFC
Carryforward Adjustments (collectively, the "CFC Allocated
Adjustments"), assuming that CNF and CFC are not able to
obtain reductions to the Workers Compensation Adjustments
from the adjustments proposed by the IRS, including interest
with respect thereto through April 30, 1999, have been
calculated by CNF to total Eighty-Three Million, Six Hundred
Twenty-Two Thousand, Two Hundred Ninety-Eight Dollars
($83,622,298). CNF and CFC agree that CFC is entitled to a
credit against such amount of $5,000,000, in full
satisfaction of CNF's obligation to true-up amounts
previously paid with respect to the 1996 Consolidated Group
Federal income tax return. As a result, CNF claims
entitlement to receive Seventy-Eight Million, Six Hundred
Twenty-Two Thousand, Two Hundred Ninety-Eight Dollars
($78,622,298) from CFC with respect to the CFC Allocated
Adjustments, plus interest until the date of payment (the
"Disputed Amount").
2.4. CFC disputes that it is liable to CNF for the Disputed
Amount. In compromise of such Disputed Amount, CFC agrees
to make certain payments to CNF and to deliver certain
promissory notes to CNF, and to enter into, or cause CFC
Affiliates to enter into, one or more agreements with CNF or
CNF Affiliates as provided in Article 3 hereof. CNF agrees
to accept the payment of such amounts, and the delivery by
CFC and CFC Affiliates of, and performance by CFC and CFC
Affiliates of, their respective obligations under this
Agreement and the Other Documents, in full and complete
satisfaction of CFC's obligations under the Tax Sharing
Agreement and the MOU for federal income Taxes with respect
to the CFC Allocated Adjustments.
ARTICLE 3. DELIVERIES AT CLOSING
3.1. At the Closing, CFC shall pay to CNF, by wire transfer
of immediately available funds, the amount of Twelve Million
Seven Hundred Thousand Dollars ($12,700,000) in respect of
the CFC Allocated Adjustments.
3.2. At the Closing, CFC shall pay to CNF, by wire transfer
of immediately available funds, the amount of Four Million
Dollars ($4,000,000), representing interest on an amount
equal to the CFC Allocated Adjustments, calculated from May
1, 1999, through the date of payment.
3.3. At the Closing, CFC shall deliver to CNF its negotiable
promissory note (the "Note") in the principal sum of Twenty
Million Dollars ($20,000,000), payable to the order of CNF,
in the form attached as Exhibit B hereto. The Note shall be
payable over a four-year term, with interest payable
annually at the rate of six and eight tenths percent (6.80%)
per annum, and with principal due at maturity.
3.4. At the Closing, with respect to each of the Real
Properties (other than the Dover, New Jersey Property):
(a) CFC shall deliver to CNF or its designee a promissory
note, in the principal amount of the agreed value of the
such Real Property shown on Exhibit C-1 (hereinafter, the
"Agreed Property Value"), in the form attached as Exhibit C-
2 hereto (the "Real Estate Note"). The Real Estate Note
shall be payable to CNF or its designee, and shall bear
interest on the unpaid balance at the rate of eight percent
( 8.00%) per annum, payable on the last day of each month,
in arrears. The Real Estate Notes shall be collectively
secured by the Letter of Credit, as provided in Section
3.4(b) hereof.
(b) CFC shall cause ABN Amro Bank N.V. to issue an
irrevocable letter of credit in the amount of Seven Million
Dollars ($7,000,000) in favor of CNF or its designee in the
form attached as Exhibit C-3 hereto (the "Letter of
Credit"), securing payment of the Real Estate Notes.
(c) CFC shall cause CFCD to enter into a lease agreement
with CNF or its designee in form and substance substantially
similar to Exhibit C-4 hereto (the "Lease"), providing for a
lease of the Real Property to CNF or its designee for a
twenty (20)-year term commencing as of the Closing Date.
3.5. At the Closing, CFC shall cause CFCD to execute and
deliver a transfer agreement with CNF or its designee in the
form attached hereto as Exhibit D (the "Dover Transfer
Agreement") providing for transfer of title to the Dover,
New Jersey Real Property to CNF or its designee within 30
days after Closing.
3.6. At the Closing, CFC, certain CFC Affiliates, CNF and
certain CNF Affiliates shall execute and deliver such other
documents and agreements as the parties may agree.
ARTICLE 4. WORKERS COMPENSATION LITIGATION
4.1. CNF and CFC have agreed to litigate the proposed
Workers Compensation Adjustments. CNF shall be responsible
for conducting the litigation. CNF agrees to consult in
good faith with CFC with respect to all aspects of the
litigation and to take CFC's interests into account. CNF
and CFC agree to share the costs incurred with respect to
such litigation after the Closing (including CNF's and CFC's
legal fees, but not including the costs of CNF and CFC
employees), in the ratio of seventy-seven percent (77%) CFC-
twenty-three percent (23%) CNF.
4.2. CNF agrees that it will not make any settlement offer
with respect to the Workers Compensation Adjustments except
in writing and in such case the amount offered shall be
determined jointly by CNF and CFC. In the case of any
settlement offer from the Government, CNF shall promptly
advise CFC and shall consult with CFC. If CFC advises CNF
in writing that it is prepared to accept the settlement
offer, then CNF shall either accept the settlement proposal,
or shall fully indemnify and hold harmless CFC from and
against any and all liability for federal income Taxes and
other costs and expenses (including, without limitation,
attorneys' fees) over and above the payments that CFC would
have been liable for if CNF had entered into the proposed
settlement. If CNF advises CFC in writing that it is
prepared to accept the settlement offer, then CFC shall
either accept the settlement proposal, or shall fully
indemnify and hold harmless CNF from and against any and all
liability for federal income Taxes and other costs and
expenses (including, without limitation, attorneys' fees)
over and above the payments that CNF would have been liable
for if CNF had entered into the proposed settlement.
4.3. Except as provided in this Section 4.3, neither CNF
nor CFC shall be under any obligation to maintain the
Workers Compensation Adjustment litigation beyond the trial
court level. Immediately following entry of a decision in
the trial court, the calculations provided in Section 5.2
hereof shall be made as if the decision of the trial court
were a Final Determination, and CFC or CNF, as the case may
be, shall make the payment provided in Section 5.2. If
requested by CFC, CNF will appeal the decision of the trial
court, provided that all costs and expenses of maintaining
the appeal shall be borne by CFC. If CNF appeals the
decision of the trial court at the request of CFC, CFC shall
have the option of retaining attorneys of its choice to
prosecute the appeal. CFC shall notify CNF of its decision
in this regard within thirty (30) days of the notice by CFC
to CNF to appeal the decision of the trial court. If the
appeal results in a reduction in the workers compensation
adjustment, the amount by which CNF's Taxes are thereby
reduced shall be allocated between the parties as follows:
(i) CFC shall be allocated an amount equal to one hundred
fifty percent (150%) of its out-of-pocket costs and expenses
in maintaining the appeal; and (ii) any remaining amount
shall be allocated seventy-seven percent (77%) CFC-twenty-
three percent (23%) CNF.
ARTICLE 5. POST-PAYMENT ADJUSTMENTS
5.1. Upon a Final Determination with respect to all Pre-
Distribution Periods beginning on or after January 1, 1984,
CNF and CFC shall determine what the total interest payable
to the IRS with respect to such Pre-Distribution Periods
would have been in the absence of the application of the
interest netting rules of Rev. Proc. 99-43, 1999-47 I.R.B.
579, or any similar or superseding ruling, procedure or
statute, and what the total interest payable to the IRS with
respect to such Pre-Distribution Periods was after the
application of such interest netting rules. If the amount
determined by application of the interest netting rules is
less than the amount determined without application of the
interest netting rules by more than Six Million Dollars
($6,000,000), CNF shall pay to CFC fifty percent (50%) of
the excess of such difference over Six Million Dollars
($6,000,000). Otherwise, no adjustment shall be made under
this Section 5.1. Any payment required shall be paid by CNF
to CFC by wire transfer of immediately available funds
within twenty (20) days of the date that CNF and CFC
determine that an amount is owing to CFC under this Section
5.1.
5.2. Upon a Final Determination with respect to all Pre-
Distribution Periods beginning on or after January 1, 1984,
CNF and CFC shall request Xxxxxx Xxxxxxxx & Co. LLP (or such
other accounting firm as CNF and CFC may agree) to prepare a
calculation of the total interest payable to the IRS with
respect to such Pre-Distribution Periods (calculated through
April 30, 1999) and to determine the total interest payable
to the IRS with respect to such Pre-Distribution Periods
(calculated through April 30, 1999) as determined by the
IRS. Upon receipt of the report of Xxxxxx Xxxxxxxx & Co.
LLP (or such other accounting firm as CNF and CFC may
agree), CNF and CFC shall have thirty days to review the
report and discuss the calculations with Xxxxxx Xxxxxxxx &
Co. LLP (or such other accounting firm as CNF and CFC may
agree). Thereafter, Xxxxxx Xxxxxxxx & Co. LLP (or such
other accounting firm as CNF and CFC may agree) shall
promptly deliver to CNF and CFC its final report. If the
final report indicates that the total interest payable, as
calculated by Xxxxxx Xxxxxxxx & Co. LLP (or such other
accounting firm as CNF and CFC may agree) is less than or
equal to the interest determined by the IRS, there shall be
no adjustment under this Section 5.2. If such final report
indicates that the interest determined by Xxxxxx Xxxxxxxx &
Co. LLP is greater than the interest calculated by the IRS,
then CNF shall pay to CFC fifty percent (50%) of such
difference within ten (10) working days of receipt of the
final report. The determination of Xxxxxx Xxxxxxxx & Co.
LLP (or such other accounting firm as CNF and CFC may agree)
shall be final and binding on the parties hereto, and shall
not be subject to the dispute resolution procedures of
Article 8 hereof.
5.3. CNF shall request from the IRS copies of transcripts
showing the application of all payments made by CNF relating
to the IRS audit adjustments and shall provide copies of
such transcripts to CFC. CNF shall also request from the
IRS copies of all other documents (available to taxpayers)
requested by CFC relating to the interest calculations,
including documents relating to the application of payments
and the payment of refund amounts, and shall provide such
documents to CFC.
5.4. No later than sixty (60) days following the Final
Determination of the Workers Compensation Adjustments for
all tax years through 1996, CNF shall calculate, in the
manner provided in Exhibit E hereto, CFC's proportionate
share of any reduction in the Workers Compensation
Adjustments realized by CNF and CFC in litigation. If CFC's
proportionate share of such reduction is less than Four
Million Dollars ($4,000,000), CFC shall pay to CNF, by wire
transfer of immediately available funds, an amount equal to
Four Million Dollars ($4,000,000) less the amount of CFC's
proportionate share of such reduction. If CFC's
proportionate share of such reduction exceeds Four Million
Dollars ($4,000,000), then CNF shall pay to CFC, by wire
transfer of immediately available funds, the amount by which
CFC's proportionate share of such reduction exceeds Four
Million Dollars ($4,000,000). Payments under this Section
5.5 shall be made without additional interest.
5.5. If either CNF or CFC is able to secure a legislative or
administrative remedy after the Closing that reduces CNF's
liability for Taxes with respect to any CFC Allocated
Adjustment, CNF shall refund to CFC, in immediately
available funds, at the time such remedy becomes effective,
or at the time such reduction occurs, whichever last occurs,
the entire amount of such recovery with respect to the CFC
Allocated Adjustment.
ARTICLE 6. OTHER POST-CLOSING MATTERS
6.1. CFC acknowledges that CNF's ability to sell the Note in
a private placement transaction was and is an important
element in the overall settlement provided by this
Agreement, and CFC agrees to reasonably cooperate with CNF
in connection with the efforts made by CNF, either directly
or through its agents, to sell the Note in a private
placement transaction. CNF shall reimburse to CFC its
reasonable out of pocket expenses incurred pursuant to this
Section 6.1.
6.2. As soon as practicable following the Closing, CNF shall
reduce CFC's letter of credit requirement under Section 8(d)
of the Reimbursement and Indemnification Agreement entered
into as of October 1, 1996, between CNF and CFC, as
amendment by Amendment No. 1, dated as of September 1, 1998,
from Eleven Million Dollars ($11,000,000) to Six Million
Dollars ($6,000,000).
ARTICLE 7. RELEASES
7.1. Effectively immediately upon the Closing, CFC, on
behalf of itself and its affiliates, subsidiaries,
successors, heirs and assigns, hereby releases and forever
discharges CNF and its respective affiliates, subsidiaries,
predecessors, successors, heirs and assigns, and the past
and present officers, directors, members, shareholders,
employees, and agents of each of them, from any and all
claims, demands, rights, causes of action, liabilities, or
suits, of any kind whatsoever (hereinafter "Claims"),
whether known or unknown, that any of them ever had, now
has, or may in the future have, arising from or in any way
connected with the Tax Sharing Agreement, the Memorandum of
Understanding, the determination of the Disputed Amount or
the handling of the CNF federal income tax audits for the
Pre-Distribution Periods, except with respect to: (i) acts
or omissions occurring after the Closing Date; (ii) CNF's
obligations under the first sentence of Section 3.03(a) of
the Tax Sharing Agreement; and (iii) CNF's obligations under
Section 5.01 of the Tax Sharing Agreement. Notwithstanding
the foregoing, it is expressly understood and agreed that
this release does not apply to excuse performance by CNF,
its affiliates, subsidiaries, successors, heirs and assigns
of their obligations under this Agreement and the Other
Documents.
7.2. Effective immediately upon the Closing, CNF, on behalf
of itself and its affiliates, subsidiaries, successors,
heirs and assigns, hereby releases and forever discharges
CFC and its respective affiliates, subsidiaries,
predecessors, successors, heirs and assigns, and the past
and present officers, directors, members, shareholders,
employees, and agents of each of them, from any and all
Claims, whether known or unknown, that any of them ever had,
now has, or may in the future have, arising from or in any
way connected with the Tax Sharing Agreement or the
Memorandum of Understanding, except with respect to:
(i) federal income Tax adjustments for 1991-1996 (including,
without limitation, Restructuring Taxes) not included in the
1991-1996 CFC Carryforward Adjustments; (ii) CFC's
obligations with respect to federal income Taxes under
Section 3.03(b) of the Tax Sharing Agreement; (iii) CFC's
obligations with respect to Other Taxes under Section 3.06
of the Tax Sharing Agreement; and (iv) CFC's obligations
under Section 5.01 of the Tax Sharing Agreement.
Notwithstanding the foregoing, it is expressly understood
and agreed that this release does not apply to excuse
performance by CFC, its affiliates, subsidiaries,
successors, heirs and assigns of their obligations under
this Agreement and the Other Documents.
7.3. Upon the advice of legal counsel, CFC and CNF waive any
and all rights under California Civil Code section 1542,
which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE WHICH, IF KNOWN BY HIM,
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT
WITH THE DEBTOR.
CFC and CNF also waive any rights or benefits afforded by
any similar statute or law of any other jurisdiction. The
foregoing waiver of rights under California Civil Code
section 1542 and any similar statute or law is an essential
term of this Agreement without which this Agreement would
not have been made.
7.4. CFC and CNF acknowledge that they may hereafter
discover claims, and/or facts now unknown or unsuspected, or
in addition to, or different from, those which CFC or CNF
now knows or believes to be true with respect to the
releases implemented by this Agreement. Nevertheless, CFC
and CNF intend by this Agreement to release fully, finally,
and forever all matters released hereby. Accordingly, the
releases in this Agreement shall remain in full force
notwithstanding the discovery or existence of any such
additional or different claims and/or facts before or after
the Closing Date.
ARTICLE 8. DISPUTE RESOLUTION
8.1. The parties agree that any and all disputes, claims or
controversies arising out of or relating to this Indemnity
Agreement that are not resolved by their mutual agreement
shall be submitted to final and binding arbitration before
JAMS, or its successor, pursuant to the United States
Arbitration Act, 9 U.S.C. 1 et seq. Subject to the
provisions of this Article 5, either party may commence the
arbitration process called for in this Indemnity Agreement
by filing a written demand for arbitration with JAMS, with a
copy to the other party. The arbitration will be conducted
in San Francisco, California, in accordance with the JAMS
Comprehensive Arbitration Rules and Procedures in effect at
the time of filing the demand for arbitration (the "JAMS
Rules"), as modified by the terms of this Article 8. The
provisions of this Section 8.1 may be enforced by any court
of competent jurisdiction, and the party seeking enforcement
shall be entitled to an award of all costs, fees and
expenses, including attorneys' fees, to be paid by the party
against whom enforcement is ordered.
8.2. The following procedures shall apply.
(a) The party seeking arbitration shall file a written
demand for arbitration with JAMS, with a copy to the other
party, and shall provide to JAMS a copy of this pre-dispute
written contractual provision. The "arbitration process,"
for purposes of JAMS Rules shall be considered commenced
when JAMS confirms in writing that the above requirements
have been met. The date of the commencement of the
arbitration shall be the date of the JAMS confirmation
letter.
(b) If the parties cannot agree on an arbitrator within
five (5) calendar days of the commencement date of the
arbitration, the JAMS Case Administrator will send the
parties within five (5) calendar days a list of at least
five (5) arbitrator candidates from the JAMS Northern
California panel who shall be retired judicial officers.
Within five (5) calendar days of the receipt of the list of
names, each party may strike two (2) names, and will rank
the remaining arbitrator candidates in order of preference.
The remaining arbitrator with the highest composite score
will become the arbitrator. If this process does not yield
an arbitrator, JAMS will designate the arbitrator from the
JAMS Northern California panel.
(c) The dispute shall be resolved by submission of
documents, unless the arbitrator determines that an oral
hearing is necessary. The parties expressly waive any right
to discovery.
(d) The parties agree, consistent with current Rule 17 of
the JAMS Rules (or the successor to such Rule 17 at the time
the demand for arbitration is filed), that the arbitration
hearing will begin within ninety (90) calendar days of the
commencement of the arbitration, but in no event later than
one hundred fifty (150) calendar days after the commencement
date of the arbitration.
(e) The arbitrator's jurisdiction shall be limited to: (1)
the award of actual damages according to proof; and (2) the
award of reasonable attorneys' fees and costs to the
prevailing party.
ARTICLE 9. MISCELLANEOUS
9.1. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place on May 15, 2000
(the "Closing Date"), at 10:00 a.m., local time, at the
offices of CNF at 0000 Xxxxxxxx Xxxxxx, Xxxx Xxxx, XX, or at
such other time, date and place as the parties may mutually
agree.
9.2. Each party represents and warrants that (a) this
Agreement, and each of the Other Documents to which it is a
party, upon execution and delivery thereof, will be legal,
valid and binding obligations of such party, enforceable
against such party in accordance with their respective
terms, except as enforcement may be limited by bankruptcy,
insolvency, arrangement, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights
generally, and general principles of equity, and (b) the
execution and delivery by such party of this Agreement and
each of the Other Documents to which it is a party, and the
performance by such party of its obligations thereunder,
have been duly authorized by all necessary corporate action
on its part, and do not and will not (i) violate any
provision of any law, rule or regulation presently in effect
and applicable to such party, or of any order, writ,
judgment, decree, determination or award presently in effect
and applicable to such party, (ii) violate any provision of
the certificate of incorporation or by-laws of such party,
(iii) result in a breach of or constitute a default under
any agreement or instrument to which it is a party or by
which it or its properties are bound, or (iv) in the case of
CFC, result in, or require, the creation or imposition of
any lien upon or with respect to any of the Real Properties,
except as specifically provided herein.
9.3. This Agreement supersedes the provisions of the MOU,
which shall have no force and effect following the Closing.
The Tax Sharing Agreement, other than the MOU attached
thereto, remains in full force and effect, except as
provided in this Agreement.
9.4. This Agreement may be amended by the parties hereto at
any time by execution of an instrument in writing signed on
behalf of each of the parties hereto.
9.5. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally
or by commercial delivery service, or mailed by registered
or certified mail (return receipt requested) or sent via
facsimile (with acknowledgement of complete transmission) to
the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
(a) If to CNF:
CNF Transportation Inc.
0000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
(b) If to CFC:
Consolidated Freightways Corporation
000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000-0000
Attention: General Counsel
Facsimile No.: (000) 000-0000
9.6. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the
same effect as if the signatures thereto and hereto were
upon the same instrument. This Agreement shall become
effective when each party hereto shall have received
counterparts hereof signed by the other party hereto.
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9.7.
Headings in this Agreement are for reference purposes
only and shall not affect in any way the meaning or
interpretation of this Agreement.
9.8. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of California without
regard to the conflicts of law principles thereof that would
call for the application of the laws of any other
jurisdiction.
IN WITNESS WHEREOF, this Agreement has been executed by
the parties hereto as of the date first hereinabove written.
CONSOLIDATED FREIGHTWAYS CNF TRANSPORTATION INC.
CORPORATION
By: By:_________________________
Its: Senior Vice President Its: Vice President and
and General Counsel Treasurer
LIST OF EXHIBITS
2.Exhibit A. 1991-1996 CFC Carryforward Adjustments
2.Exhibit B. Form of Note
3.Exhibit C-1. List of Real Properties
4.Exhibit C-2. Form of Real Property Note
5.Exhibit C-3. Form of Letter of Credit
6.Exhibit C-4. Form of Lease
7.Exhibit D. Form of Dover Transfer Agreement
8.Exhibit E. Workers Compensation Adjustment Formula
EXHIBIT A
1991-1996 CFC CARRYFORWARD ADJUSTMENTS
NOPA Item Description
Number
12 DEPRECIATION EXPENSE ON ITEMS CAPITALIZED IN '87 TO '90 AUDIT
13 ASSET CAPITALIZATION LEVEL FROM $300 TO $500
15 CARGO LOSS ADJUSTMENT AS AGREED TO IN '87 TO '90 AUDIT
16 TRACTOR ENGINE OVERHAULS CAPITALIZED PER '87 TO '90 AUDIT
EP 2 PENSION DEDUCTIONS
1 CAPTIVE INSURANCE
50 WORKER COMPENSATION
EP-01 MULTI-EMPLOYER PENSION
EXHIBIT B
FORM OF NOTE
EXHIBIT C-1
REAL PROPERTIES
PROPERTY AGREED VALUE TRANSFER TO BE
COMPLETED BY
Bridgeview, IL $6,700,000 May 31, 2002
(land only)
Bridgeview, IL $2,200,000 May 31, 0000
(xxxxxxxx)
Xxxxx, XX $ 975,000 30 days after Closing
(terminal)
Fremont, IN $7,000,000 August 31, 2001
(terminal)
Joliet, IL $ 650,000 May 31, 0000
(xxxxxxxx)
Xxxxx Xxxxxxx, XX $3,650,000 May 31, 2002
(terminal)
EXHIBIT C-2
FORM OF REAL PROPERTY NOTE
EXHIBIT C-3
FORM OF LETTER OF CREDIT
EXHIBIT C-4
FORM OF LEASE
EXHIBIT D
FORM OF DOVER TRANSFER AGREEMENT
EXHIBIT E
WORKERS COMPENSATION ADJUSTMENT FORMULA
SETTLED WORKERS REDUCTION REDUCTION TO
INCREASE INCREASE COMPENSATION TO WORKERS
TAX (DECREASE) (DECREASE) CHANGE TAX & WORKERS COMPENSATION
YEAR TO TO % INTEREST COMPENSATIO ADJUSTMENTS OF
TAXABLE TAXABLE (C) ADJUSTMENTS N CFC
INCOME INCOME (D) ADJUSTMENTS (F)
(A) (B) (E)
1984 8,349,394 (B) / 6,472,827 (C) x (D) (C) x (D) x 77%
(A)
1985 7,849,143 (B) / 5,661,911 (C) x (D) (C) x (D) x 77%
(A)
1986 11,913,266 (B) / 9,158,662 (C) x (D) (C) x (D) x 77%
(A)
1987 10,444,132 (B) / 7,407,856 (C) x (D) (C) x (D) x 77%
(A)
1988 6,552,881 (B) / 5,740,383 (C) x (D) (C) x (D) x 77%
(A)
1989 6,292,810 (B) / 4,913,728 (C) x (D) (C) x (D) x 77%
(A)
1990 16,679,975 (B) / 11,668,011 (C) x (D) (C) x (D) x 77%
(A)
1991 8,347,944 (B) / 5,096,423 (C) x (D) (C) x (D) x 77%
(A)
1992 (30,261,194) (B) / (17,127,337) (C) x (D) (C) x (D) x 77%
(A)
1993 (46,168,351) (B) / (16,158,923) (C) x (D) (C) x (D) x 77%
(A)
COLUMN EXPLANATIONS
(A) Increase (decrease) to taxable income proposed by IRS in RAR for
workers compensation. CFC's portion of these amounts is 77%.
(B) Change to column A as a result of workers compensation litigation
settlement.
(C) Column B divided by Column A.
(D) Total tax and interest attributable to income increase (decrease) in
column A.
(E) Column C multiplied by column D.
(F) Column E multiplied by 77%.
