EXHIBIT 10.1
PROMISSORY NOTE OF GERARD M. KLAISLE
Effective as of July 31, 2001 $100,000.00
For value received, Gerard M. Klaisle (the "Borrower") promises to pay to
the order of USFreightways Corporation, a Delaware corporation, with its
principal place of business at 8550 West Bryn Mawr Avenue, Suite 700, Chicago,
Illinois 60631 (the "Lender"), the principal amount of One Hundred Thousand
Dollars ($100,000) due as set forth below. The unpaid principal amount of this
Note outstanding from time to time shall bear interest at the applicable federal
mid-term rate under Section 1274(d) of the Internal Revenue Code of 1986, as
amended, as announced from time to time, computed on the basis of a 360-day year
of twelve thirty-day months, which interest shall be due and owing as set forth
below.
I. Payment.
A. Principal and accrued and unpaid interest due under this Note shall be
immediately due and payable upon the termination of the Borrower's employment
with the Lender or any of its affiliates, in the event that the Borrower
voluntarily terminates his employment.
B. Payment of any principal and interest amount stated above shall be made
to the Lender at its principal offices at 8550 West Bryn Mawr Avenue, Suite 700,
Chicago, Illinois 60631, or at such other place as the Lender may designate to
the Borrower. Receipt by the Lender of a check of the Borrower in the amount of
any payment due and owing shall be deemed to constitute payment hereunder,
provided that such check is processed and paid in full by the institution
against which the check is drawn within a commercially reasonable and customary
time.
II. Prepayment.
The unpaid principal balance of this Note and interest accrued thereon may
be prepaid by the Borrower at any time, in whole or in part, without premium or
penalty, in minimum increments of not less than Five Thousand Dollars ($5,000).
III. Forgiveness of Note.
A. On each July 1, beginning on July 1, 2002 and ending on July 1, 2006,
provided the Borrower is an employee of the Lender or any of its affiliates on
each such July 1 (and has not provided the Lender or any of its affiliates with
notice of the Borrower's intent to voluntarily terminate his employment), the
Lender shall forgive $20,000 of the total principal amount under this Note, plus
an amount equal to the interest accrued on the unpaid principal amount as of
such July 1.
B. The Lender shall forgive the unpaid principal balance of this Note and
interest accrued upon the occurrence of the following:
(1) Death. If the Borrower dies while in the employ or service of
the Lender.
(2) Disability. If the Borrower terminates his employment with the
Lender by reason of "permanent and total disability" (within the meaning of
Section 22(e)(3) of the Code). Whether a termination of employment is to be
considered by reason of "permanent and total disability" shall be determined by
the Lender, which determination shall be final and conclusive.
C. The Borrower acknowledges that such forgiveness of principal and
interest by the Lender shall constitute ordinary income to the Borrower and the
Lender shall report such forgiveness of indebtedness to the Internal Revenue
Service in accordance with any statutory, regulatory or administrative
guidelines.
IV. Default.
If the Borrower shall fail to promptly pay to the Lender all sums when due
hereunder or under any other agreement, instrument or document heretofore, now
or at any time hereafter delivered to the Lender by or for the benefit of the
Borrower, which default or event of default is not cured within the time, if
any, specified therefor in such agreement, instrument or document, then the
Lender may declare all sums owed by the Borrower hereunder immediately due and
payable, without notice unless otherwise required by applicable statute, and may
take any action at law or in equity to collect the amounts due and owing
hereunder, or to request any other available remedy, together with any damages
resulting from such nonpayment. V. Assigns. All of the covenants, stipulations,
promises and agreements in this Note shall bind and inure to the benefit of the
parties hereto and their respective heirs, legal representatives, successors and
assigns.
VI. Costs.
The Borrower promises to pay all costs and collection of every kind,
including, but not limited to, all reasonable attorneys' fees, court costs and
expenses of every kind incurred by the Lender, in connection with such
collection.
VII. Miscellaneous.
A.Failure of the Lender, for any period of time or on one or more
occasions, to exercise its option to accelerate the payment of this Note
pursuant to Section IV above shall not constitute a waiver of the right to
exercise the same at any time thereafter or in the event of any subsequent
default under Section IV above. No act of omission or commission of the Lender,
including specifically any failure to exercise any right, remedy or recourse,
shall be deemed to be a waiver or release of the same; any such waiver or
release is to be effected only through a written document executed by the
Lender, and then only to the extent specifically recited therein. A waiver or
release with reference to any one event shall not be construed as a waiver or
release of any subsequent event or as a bar to any subsequent exercise of the
Lender's rights or remedies hereunder.
B.This Note and the obligations of the Borrower hereunder shall not be
modified except in writing to be consented to by the Lender.
C. Upon the voluntary termination of the Borrower's employment with the
Lender or in the event of default, the Borrower hereby authorizes the Lender to
deduct the entire remaining principal and interest due and owing under this Note
from the Borrower's wages. Pursuant to 820 ILCS Section 115/9, the Borrower
acknowledges that this authorization is being freely given and further
acknowledges and affirms that he will enter into an authorization similar to
this one at the time of the deduction.
D.THIS NOTE HAS BEEN DELIVERED FOR ACCEPTANCE BY LENDER IN CHICAGO,
ILLINOIS AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS (AS OPPOSED TO THE CONFLICTS OF LAW PROVISIONS) OF THE STATE OF ILLINOIS.
BORROWER HEREBY (i) IRREVOCABLY SUBMITS, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN CHICAGO,
ILLINOIS OVER ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY MATTER ARISING
FROM OR RELATED TO THIS NOTE; (ii) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
BORROWER MAY EFFECTIVELY DO SO, THE DEFENSE OF ANY INCONVENIENT FORUM TO THE
MAINTENANCE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT; (iii) AGREES
THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, A FINAL JUDGMENT IN ANY SUCH
ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE CONCLUSIVE AND MAY BE ENFORCED
IN ANY OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW; (iv) TO THE EXTENT PERMITTED BY APPLICABLE LAW, AGREES NOT TO
INSTITUTE ANY ACTION OR PROCEEDING AGAINST BORROWER OR ANY OF THEIR RESPECTIVE
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR PROPERTY, CONCERNING ANY MATTER
ARISING OUT OF OR RELATING TO THIS NOTE IN ANY COURT OTHER THAN ONE LOCATED IN
COOK COUNTY, ILLINOIS; and (v) WAIVES PRESENTMENT OF PAYMENT, PROTEST, NOTICE OF
PROTEST AND DISHONOR AS PREREQUISITES TO THE ENFORCEMENT HEREOF. NOTHING IN THIS
SECTION SHALL AFFECT OR IMPAIR THE LENDER'S RIGHT TO SERVE LEGAL PROCESS IN ANY
MANNER PERMITTED BY LAW OR THE LENDER'S RIGHT TO BRING ANY ACTION OR PROCEEDING
AGAINST BORROWER OR BORROWER'S PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION.
E.TO THE EXTENT PERMITTED BY LAW, BORROWER HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE
OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR
WRITTEN) OR ACTIONS OF EITHER PARTY IN CONNECTION HEREWITH. BORROWER HEREBY
EXPRESSLY ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT FOR LENDER TO
MAKE THE LOAN EVIDENCED HEREBY.
/s/ Gerard M. Klaisle
_______________________________
Gerard M. Klaisle