EXHIBIT 99
SETTLEMENT AND RELEASE AGREEMENT
CON-WAY INC.and all trades or businesses (whether or not incorporated)
which are or have been at any time material under common control with Con-way
Inc. as set forth on Exhibits 1 and 2 (collectively, "Con-way"), within the
meaning of Section 4001(b)(1) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), and CENTRAL STATES, SOUTHEAST AND SOUTHWEST
AREAS PENSION FUND ("Central States"), do hereby enter into the following
Settlement and Release Agreement ("Agreement"):
STIPULATIONS
A. Central States stipulates that Con-way has not, from on and after
December 19, 2004, had any obligation to contribute to Central States with
respect to any persons employed on or before December 19, 2004, by Menlo
Worldwide Forwarding, Inc. or its successor(s).
B. For all purposes related to the determination and collection of
withdrawal liability under ERISA Title IV, Central States stipulates that,
from and after December 2, 1996, Con-wayhas not been under common control
with Consolidated Freightways Corporation, or any direct or indirect
subsidiary or other affiliate thereof, within the meaning of ERISA Section
4001(b)(1).
C. Except as required by paragraphs 2.1 and 2.2 of this Agreement and
as may be required by a collective bargaining agreement initially effective
after the execution of this Agreement, Con-way has no existing legal,
contractual, or other obligation to make payments, to contribute, or to
contribute further to Central States.
D. Con-way and Central States dispute whether Con-way has incurred any
withdrawal liability to Central States, but have resolved pursuant to the
terms of this Agreement to compromise and extinguish any and all claims by
Central States of such liability.
COVENANTS
1. Joint Consideration.
1.1.The parties have entered into the foregoing STIPULATIONS as
consideration for this Agreement.
1.1.1.If a party commits a material breach of this Agreement and does
not cure same within thirty (30) days after written notice by the
other party of such material breach, the other party may elect not
to be bound by the STIPULATIONS.
2. Con-way Consideration.
2.1.Con-way shall pay to Central States by wire transfer within ten (10)
days of this Agreement the sum of Eight Million Dollars
($8,000,000.00).
2.1.1.Con-way's satisfaction of its obligations under paragraphs 2.1 and
2.2 is a condition precedent to Central States' obligations under
paragraphs 3.1 and 3.2 below.
2.2.Con-way shall upon the execution of this Agreement advise K. Morgan
Enterprises, Inc., as trustee ("Trustee") under the Trust for Certain
Creditors of Consolidated Freightways Corporation and Certain
Affiliates (the "Trust"), created under the liquidation plan (the
"Plan") confirmed by order of the United States Bankruptcy Court for
the Central District of California entered on November 22, 2004, in In
re Consolidated Freightways Corporation of Delaware, et al., No. RS-02-
24284 (Bankr. C.D. Cal.) (collectively, the debtors therein, the "CF
Debtors"), to deliver thereafter to Central States, in care of its
Executive Director at the address in paragraph 7.2 of this Agreement,
all subsequent payments or distributions of any kind (whether by check,
wire transfer, or otherwise) from the Trustee or Trust to Con-way
(collectively, the "Claim Distributions") on account of Con-way's
allowed claims against the bankruptcy estates of the CF Debtors or
against the Trust and Con-way's corresponding Trust Beneficial
Interests (as defined in the Plan) in the Trust (collectively, such
claims and corresponding Trust Beneficial Interests, the "Con-way
Interests").
2.2.1.Con-way shall upon the execution of this Agreement deliver a
limited power of attorney to Central States substantially in the
form of Exhibit 3, authorizing Central States to negotiate, as
applicable, any Claim Distribution made in the form of a check (a
"Distribution Check") for Central States' own account.
2.2.2.If, for any reason, Central States is unable to negotiate a
Distribution Check, Con-way shall, upon Central States' return of
the Distribution Check to Con-way and within five business days of
Con-way's indefeasible negotiation of the Distribution Check, remit
to Central States the amount of the Distribution Check so
indefeasibly negotiated.
2.2.3.Paragraphs 2.2-2.2.2 of this Agreement are intended to effect Con-
way's unconditional transfer of its rights to future Claim
Distributions on account of Con-way Interests (the "Transferred
Rights") to Central States. Con-way by those paragraphs transfers
only Con-way's rights to Claim Distributions made, and Distribution
Checks issued, on account of the Con- way Interests after the
execution of this Agreement. Nothing herein is intended, or may be
deemed, to effect any assignment or other transfer of the Con- way
Interests themselves to Central States.
2.2.4.The unconditional transfer by Con-way to Central States of the
Transferred Rights is without warranty of any kind and is without
recourse, such that, following the transfer, Central States shall
look solely to the Transferred Rights and Con-way has no liability
whatsoever to Central States arising from or relating to any Claim
Distribution or Con-way Interest, the amount thereof, or the
recoveries thereon, and Central States shall not commence or
institute any litigation, suit, arbitration, or other legal
proceeding against Con-way in connection with or relating to any
Claim Distribution or Con-way Interest, the amount thereof, or the
recoveries thereon; provided, however, that nothing in this
paragraph affects Con-way's obligations under paragraphs 2.2, 2.2.1,
and 2.2.2 above.
2.3.Con-way Inc. shall dismiss with prejudice that civil action entitled,
Con-way Inc. v. Central States, Southeast and Southwest Areas Pension
Fund, No. C08-03812 RMW (N.D. Cal., filed August 11, 2008).
2.4.Con-way will withdraw with prejudice its arbitration demand in the
controversy entitled, Con-way Inc. v. Central States, Southeast and
Southwest Areas Pension Fund, No. 51 621 01004 08 (American Arbitration
Ass'n).
3. Central States Consideration
3.1.Central States, and each of its past, present, and future Trustees,
Executive Directors, employees, administrators, agents, attorneys,
predecessors, successors, and assigns, do hereby fully,
unconditionally, and forever release, discharge, and acquit Con-way,
and all other persons in their capacities as Con-way's current and
former parents, subsidiaries, direct and indirect joint ventures, other
affiliates, shareholders, officers, directors, board and other
committees, fiduciaries, employees, agents, insurers, attorneys,
predecessors, successors, and assigns, from any and all claims, claims
for relief, liabilities, debts, primary duties corresponding to primary
rights, disputes, controversies, suits, actions, assessments, demands,
damages, judgments, attorney fees, expenses and costs, and other
obligations whatsoever, whether at law or in equity, whether arising
under common law, contract, statute or regulation, and whether known or
unknown, arising out of or relating in any way to, directly or
indirectly, Con-way's past or present, alleged or actual, status as an
ERISA "employer," participation in or contributions to any Central
States pension plan, partial or complete withdrawal, and mass
withdrawal liability; provided, that nothing in this paragraph releases
any Central States claims that depend, in whole or in part, upon events
arising after the execution of this Agreement; provided further, that
nothing in this paragraph affects Central States' allowed claims
against the CF Debtors or the Trust.
3.2.Central States, and each of its past, present, and future Trustees,
Executive Directors, employees, administrators, agents, attorneys,
predecessors, successors, and assigns, do hereby fully,
unconditionally, and forever release, discharge, and acquit Con-way,
and all other persons in their capacities as Con-way's current and
former parents, subsidiaries, direct and indirect joint ventures, other
affiliates, shareholders, officers, directors, board and other
committees, fiduciaries, employees, agents, insurers, attorneys,
predecessors, successors, and assigns, from any and all claims, claims
for relief, liabilities, debts, primary duties corresponding to primary
rights, disputes, controversies, suits, actions, assessments, demands,
damages, judgments, attorney fees, expenses and costs, and other
obligations of any kind or nature whatsoever, whether at law or in
equity, whether arising under common law, contract, statute or
regulation, which are known to Central States as of the date of this
Agreement; provided, that nothing in this paragraph releases any
Central States claims that depend, in whole or in part, upon events
arising after the execution of this Agreement provided further, that
nothing in this paragraph affects Central States' allowed claims
against the CF Debtors or the Trust.
3.2.1.Central States represents and warrants that it has no knowledge as
of the date of this Agreement of any claims against Con-way except
the alleged withdrawal liability claims represented by Central
States' Assessment Nos. 1770300 and 1827272-WL080157-01.
3.3.Without limiting the comprehensive scope of paragraphs 3.1 and 3.2
above, Central States hereby fully, unconditionally, and forever
extinguishes, withdraws, releases, discharges, and acquits, as to Con-
way, Central States' Assessment Nos. 1770300 and 1827272-WL080157-01.
4. Representations and Warranties
4.1.Con-way and Central States stipulate and agree that the consideration
exchanged by this Agreement is sufficient to support this Agreement.
4.2.Con-way Inc. represents and warrants that it and its undersigned
representative have full power and authority to enter into this
Agreement on behalf of Con-way Inc. and on behalf of all trades and
businesses under common control, within the meaning of ERISA Section
4001(b)(1). Con-way Inc. represents and warrants that this Agreement
is a legal, valid, and binding contract and enforceable against each
trade or business on whose behalf this Agreement is concluded.
4.3.Central States represents and warrants that it and its undersigned
representative have full power and authority to enter into this
Agreement. Central States represents and warrants that this Agreement
is a legal, valid, and binding contract and enforceable against Central
States by each trade or business on whose behalf this Agreement is
concluded.
4.4.Con-way represents and warrants that it has not done and will not do
anything to impair or compromise the Claims Distributions, the Con-way
Interests (after their creation), or the Transferred Rights.
5. Assignment of Claims
5.1.Central States represents and warrants that it has not assigned, sold,
subrogated, transferred, or conveyed any obligation released by this
Agreement. Central States further represents and warrants that it will
not in the future assign, sell, subrogate, transfer, or convey any
obligation released by this Agreement.
5.2.Central States will defend entirely at Central States' sole expense
and fully indemnify and hold harmless Con-way from each and every
obligation released by this Agreement which is asserted against Con-way
by any person to whom Central States has assigned, sold, subrogated,
transferred, or conveyed such obligation, whether the assertion is by
third-party complaint, cross-claim, counterclaim, claim for indemnity
or set-off, contribution, or otherwise.
5.3.Con-way and Central States by this Agreement are creating rights only
for and between themselves. No legal or equitable rights are created,
or intended to be created, by this Agreement for any persons except
Con-way and Central States. There are no intended third-party
beneficiaries to this Agreement.
6. Nonadmission
6.1.Con-way has entered into this Agreement for the exclusive purpose of
avoiding the expense and inconvenience of further litigation and other
dispute resolution processes. This Agreement is not and shall not be
deemed, at any time or in any forum, as an admission by any person
released by this Agreement of liability to any person for any
obligation released by this Agreement.
7. Notices
7.1.All notices permitted or required by this Agreement, including notice
of change in contact information, shall be sent by guaranteed overnight
delivery service, with delivery tracking and verification capabilities.
Notice will be deemed given on the date of delivery, except, that if
delivery is on a Saturday, Sunday, or federal holiday, then notice will
be deemed given on the next date after delivery which is not a
Saturday, Sunday, or federal holiday.
7.2.Notice to Con-way shall be addressed to: Senior Vice President &
General Counsel, Con-way Inc., 2855 Campus Drive, Suite 300, San Mateo,
CA 94403.
7.3.Notice to Central States shall be addressed to: Executive Director,
Central States, Southeast and Southwest Areas Pension Fund, 9377 W.
Higgins Road, Rosemont, IL 60018-4938.
8. Integration and Severability
8.1.This Agreement is final, complete, exclusive, unambiguous, and fully
integrated with respect to its subject matter, such that no parol or
other evidence shall be admissible to contradict, explain, or
supplement this Agreement. All prior agreements of any kind,
negotiations, representations, drafts, stipulations, and proposals by
either party with respect to the subject matter of this Agreement are
merged herein, extinguished, and superseded by this Agreement;
provided, that the parties' prior agreements respecting the
confidentiality and return of documents exchanged for purposes of
settlement negotiations shall not be affected by this Agreement. For
purposes of interpreting this Agreement, the parties hereto shall be
deemed to have participated equally in its drafting.
8.2.The provisions of this Agreement are severable. If any provision of
this Agreement is determined to be unenforceable by a court or
arbitrator, the provision determined to be unenforceable shall be
reformed by said court or arbitrator to the minimum extent necessary to
render it enforceable. If the provision determined to be unenforceable
cannot be so reformed, said provision shall be severed from this
Agreement and the remainder of the Agreement shall remain valid and
enforceable.
8.3.This Agreement may not be amended or altered except by a subsequent
written instrument executed by the parties.
9. Concluding Provisions
9.1.This Agreement may be signed in counterparts.
9.2.This Agreement shall be interpreted under the laws of the United
States and of the State of Illinois, without giving effect to Illinois
conflicts of law principles.
9.3.This Agreement is entered into as of December 31, 2008.
CENTRAL STATES, SOUTHEAST CON-WAY INC.
AND SOUTHWEST AREAS
PENSION FUND
By /c/ Thomas C. Nyhan By /c/ Stephen L. Bruffett
Thomas C. Nyhan Stephen L. Bruffett
Executive Director Senior Vice President