1
Exhibit 10.2
SEPARATION AGREEMENT AND COMPLETE RELEASE
This Separation Agreement and Complete Release ("Agreement") is made
this 17th day of November, 1995, by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (hereinafter "▇▇▇
▇▇▇▇▇▇▇") and Yellow Corporation, a Delaware corporation, its predecessors,
successors, subsidiaries, affiliates, assigns, officers, directors, agents and
employees (hereinafter collectively referred to as "Yellow").
WHEREAS, ▇▇▇ ▇▇▇▇▇▇▇ has indicated a willingness to resign as Senior
Vice President, Corporate Development and Public Affairs of Yellow effective
November 30, 1995; and
WHEREAS, ▇▇▇ ▇▇▇▇▇▇▇ and Yellow desire to settle fully and finally all
issues between them, including, but not in any way limited to, any disputes
that might arise out of ▇▇▇ ▇▇▇▇▇▇▇'▇ employment with Yellow and termination of
that employment; and
WHEREAS, ▇▇▇ ▇▇▇▇▇▇▇ has had access to confidential and proprietary
information and knowledge about Yellow's business and business practices,
including, but not limited to, Yellow's personnel and their capabilities,
operating capabilities, operating plans, corporate strategy, strategic
alliances, marketing strategy and systems' capabilities (hereinafter
collectively referred to as "Company Information"), the use or disclosure of
which would be contrary to the interests of Yellow; and
WHEREAS, in consideration of ▇▇▇ ▇▇▇▇▇▇▇'▇ agreeing not to divulge any
"Company Information," and in consideration of his releasing Yellow from
certain claims and for the other considerations herein indicated, Yellow is
willing to provide ▇▇▇ ▇▇▇▇▇▇▇ with the payments, benefits and perquisites
provided below; and
WHEREAS, ▇▇▇ ▇▇▇▇▇▇▇ desires to enter into this Agreement for the
considerations herein indicated;
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements contained herein, the parties hereto agree as follows:
46
2
1. ▇▇▇ ▇▇▇▇▇▇▇ will submit his written resignation as Senior Vice
President, Corporate Development and Public Affairs of Yellow effective
November 30, 1995, in the form attached hereto as Exhibit A.
Yellow will permit ▇▇▇ ▇▇▇▇▇▇▇ to remain on its payroll with the status
of an employee at a compensation rate of $18,338.77 per month from November 30,
1995 (a) until such time as ▇▇▇ ▇▇▇▇▇▇▇ obtains "other employment" (as defined
herein); (b) through January 31, 1998, inclusive; or (c) until such time as ▇▇▇
▇▇▇▇▇▇▇ breaches this Agreement, whichever occurs first. In the event that ▇▇▇
▇▇▇▇▇▇▇ obtains "other employment" as defined herein, his status as an employee
of Yellow shall cease as of the commencement date of such "other employment,"
and Yellow shall pay to ▇▇▇ ▇▇▇▇▇▇▇ within ten days of such commencement date,
in a lump sum, fifty (50) percent of the compensation that would have been due
▇▇▇ ▇▇▇▇▇▇▇ from the commencement date of such "other employment" to January
31, 1998, measured at a compensation rate of $18,338.77 per month. ▇▇▇
▇▇▇▇▇▇▇'▇ car allowance shall cease effective November 30, 1995. ▇▇▇ ▇▇▇▇▇▇▇
shall not be entitled to any bonus or incentive compensation payment from
Yellow for any year that he remains an employee under this Agreement. ▇▇▇
▇▇▇▇▇▇▇ acknowledges that the opportunity to remain on Yellow's payroll after
resignation involves a considerable financial benefit to which he is not
already entitled and that is not owed to him as compensation for work or
services performed by him, but is granted by Yellow as consideration for ▇▇▇
▇▇▇▇▇▇▇'▇ execution of this Agreement.
"Other employment," as used in this Agreement shall include
self-employment or employment by any firm or entity other than Yellow, whether
as an employee, officer, director, partner, independent contractor, owner or
consultant which meets the following minimum conditions:
(a) If a salaried position, whether full or part-time, a salary of
$110,000 per year. Computation of said salary shall include deferred
compensation, bonus award, car allowance, and any other monetary
47
3
compensation in lieu of salary. In the event that ▇▇▇ ▇▇▇▇▇▇▇ accepts
a salaried position which does not qualify as "other employment" under the
conditions outlined above, Yellow will permit ▇▇▇ ▇▇▇▇▇▇▇ to remain on its
payroll with the status of employee for the term set forth in this paragraph,
but ▇▇▇ ▇▇▇▇▇▇▇ shall receive each month from Yellow only the difference
between $18,338.77 and his monthly gross earnings from such salaried employment
computed on the basis outlined above. ▇▇▇ ▇▇▇▇▇▇▇ shall submit to Yellow's
Senior Vice President and Secretary documentation each month of his gross
earnings from such salaried employment, and Yellow shall pay ▇▇▇ ▇▇▇▇▇▇▇ the
difference between such gross earnings and $18,338.77 each month with
withholding calculated on the earnings from Yellow after deduction for such
salaried employment. The foregoing shall constitute an exception to the
payment of salary by Yellow to ▇▇▇ ▇▇▇▇▇▇▇ on a semi-monthly basis as outlined
in Paragraph 3 above.
(b) If self-employment or employment on an output, fee, hourly or
consultant basis, employment which results in gross earnings to ▇▇▇ ▇▇▇▇▇▇▇ of
an average of at least $9,170 in any three consecutive months. Once such
$9,170 threshold is reached in any three-month period, ▇▇▇ ▇▇▇▇▇▇▇ shall be
regarded as having obtained "other employment" as of the last of the three
consecutive months without further consideration of ▇▇▇ ▇▇▇▇▇▇▇'▇ earnings in
subsequent months. For the purpose of computing such earnings, services by ▇▇▇
▇▇▇▇▇▇▇ shall be regarded as earned in the month in which the work is
performed. In the event that ▇▇▇ ▇▇▇▇▇▇▇ enters self-employment which does not
qualify as "other employment" under the conditions outlined above, Yellow will
permit ▇▇▇ ▇▇▇▇▇▇▇ to remain on its payroll with the status of employee for the
term set forth in this paragraph, but ▇▇▇ ▇▇▇▇▇▇▇ shall only receive each month
from Yellow the sum of $18,338.77 less that portion of ▇▇▇ ▇▇▇▇▇▇▇'▇ monthly
gross
48
4
earnings from self-employment which exceeds $5,000. ▇▇▇ ▇▇▇▇▇▇▇ shall
submit to Yellow's Senior Vice President and Secretary documentation each month
of his gross earnings from such self-employment and Yellow shall pay ▇▇▇
▇▇▇▇▇▇▇ the difference between that portion of ▇▇▇ ▇▇▇▇▇▇▇'▇ monthly gross
earnings that exceeds $5,000 and his salary from Yellow of $18,338.77 each
month with withholding calculated on the earnings from Yellow after deduction
for such employment. The foregoing shall constitute an exception to the payment
of salary by Yellow to ▇▇▇ ▇▇▇▇▇▇▇ on a semi-monthly basis as outlined in
Paragraph 3 above.
Any fringe benefit of Yellow for which ▇▇▇ ▇▇▇▇▇▇▇ would be eligible as
an employee which is based or calculated on ▇▇▇ ▇▇▇▇▇▇▇'▇ earnings from Yellow
shall be based or calculated on such earnings after deduction of gross earnings
from any employment not constituting "other employment." Yellow's medical,
dental and vision plans shall cover ▇▇▇ ▇▇▇▇▇▇▇ while ▇▇▇ ▇▇▇▇▇▇▇ is engaged in
employment not constituting "other employment" only if and to the extent that
such employment does not match or equal Yellow's coverage. Any failure of ▇▇▇
▇▇▇▇▇▇▇ to report to Yellow earnings within 60 days after the receipt of said
earnings from any employment, including "other employment" as defined herein or
employment not constituting "other employment," shall constitute a breach of
this Agreement with the consequences outlined in Paragraph 5, herein subject to
the concepts of materiality outlined in Paragraph 5.
3. During such time following resignation as ▇▇▇ ▇▇▇▇▇▇▇ remains on
Yellow's payroll with the status of an employee at a compensation rate of
$18,337.77 per month, such compensation, minus normal deductions, shall be paid
semi- monthly. In addition to such compensation, so long as ▇▇▇ ▇▇▇▇▇▇▇
remains on Yellow's payroll with the status of an employee, as discussed in
Paragraph 2 above, the following additional benefits apply:
(a) ▇▇▇ ▇▇▇▇▇▇▇ shall be entitled to continued vesting under the
Yellow's Defined Benefit Pension Plan;
49
5
(b) ▇▇▇ ▇▇▇▇▇▇▇ shall be entitled to all other applicable
fringe benefits of a non-officer, salaried employee of Yellow, including
medical and insurance coverages, except that ▇▇▇ ▇▇▇▇▇▇▇ shall not be entitled
to those benefits that provide payment for time not worked which include
holiday, vacation, short and long-term disability.
4. Yellow will reimburse reasonable outplacement costs for ▇▇▇
▇▇▇▇▇▇▇ up to a maximum amount of $12,000, for a maximum period of four months
of full service assistance, to be paid to an agency designated by Yellow and
approved by ▇▇▇ ▇▇▇▇▇▇▇. Yellow will pay the actual charges for ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & Co.'s preparation of ▇▇▇ ▇▇▇▇▇▇▇'▇ personal income tax return for
the tax year 1995, if Yellow provides the same service to its senior officers
for 1995. No tax return preparation will be provided by Yellow for the tax
years 1996-1998. Yellow shall permit ▇▇▇ ▇▇▇▇▇▇▇ to retain the car phone
presently installed in his car, with all monthly ▇▇▇▇▇▇▇▇ to be switched to ▇▇▇
▇▇▇▇▇▇▇ effective December 1, 1995.
5. ▇▇▇ ▇▇▇▇▇▇▇ agrees that the provisions and conditions of this
Agreement survive the payments to be made to him by Yellow hereunder. Any
material breach of the provisions of this Agreement by ▇▇▇ ▇▇▇▇▇▇▇, after
receipt of written notice by ▇▇▇ ▇▇▇▇▇▇▇ from Yellow and the failure by ▇▇▇
▇▇▇▇▇▇▇ to completely cure said material breach, shall result in the forfeiture
by ▇▇▇ ▇▇▇▇▇▇▇ of his right to any financial payments, benefits, or perquisites
payable under this Agreement after the occurrence of the material breach and
the failure to timely cure said material breach, and Yellow shall further be
entitled to reimbursement by ▇▇▇ ▇▇▇▇▇▇▇ of all payments made to ▇▇▇ ▇▇▇▇▇▇▇
after the occurrence of the material breach plus all costs, including
attorneys' fees, incurred by Yellow in asserting its right to such
reimbursement.
6. Upon ▇▇▇ ▇▇▇▇▇▇▇'▇ resignation as Senior Vice President, he
shall return to Yellow any documents or other information relating to Yellow
(regardless of their source), including "Company Information" and all related
reports, files, memoranda, records, tapes, microfilm and other documents,
including duplicates or copies, in his possession or under his control.
50
6
7. ▇▇▇ ▇▇▇▇▇▇▇ understands and agrees that "Company Information"
acquired during the course of his employment, will remain confidential
at all times following execution of this Agreement; that he will not disclose
or communicate such "Company Information" to any individual or entity not a
party to this Agreement, including family members, and that he will not make
use of "Company Information" on his own behalf, or on behalf of a family
member, or aid or encourage any family member to do so. ▇▇▇ ▇▇▇▇▇▇▇
specifically agrees that any disclosure of "Company Information" by a family
member, or by an individual or entity who has obtained such information from
▇▇▇ ▇▇▇▇▇▇▇ or a family member, shall be regarded as a breach of this Agreement
by ▇▇▇ ▇▇▇▇▇▇▇.
8. ▇▇▇ ▇▇▇▇▇▇▇ represents and agrees that he will not make any
derogatory, disparaging or false statements intended to harm the
business or personal reputation of Yellow, its directors, officers and
employees.
9. Except for claims made by ▇▇▇ ▇▇▇▇▇▇▇ for amounts due to him
under this Agreement (an "Agreement Claim"), ▇▇▇ ▇▇▇▇▇▇▇ acknowledges
and represents that he will not file any charges, complaints, or lawsuits
against Yellow with any governmental agency or any court which arise out of his
employment with Yellow; that he waives any right to bring a lawsuit relating
thereto, and waives the right to recover wages or damages in any lawsuit
brought by the Equal Employment Opportunity Commission or any third party on
his behalf relating thereto.
10. As a material inducement to Yellow to enter into this
Agreement, ▇▇▇ ▇▇▇▇▇▇▇ represents and agrees to irrevocably and
unconditionally release, quit, and forever discharge Yellow and each of its
directors, officers, employees, representatives, attorneys, parents, affiliates
(and any agents, directors, officers, employees, representatives, and attorneys
of such parent companies, and affiliates), and all persons acting by, through
or in concert with any of them (collectively "Releasees") , or any of them,
from any and all charges, complaints, claims (other than an Agreement Claim),
controversies,
51
7
damages, actions, causes of actions, suits, costs, losses, debts, and
expenses (including attorneys' fees and costs actually incurred) of any nature
whatsoever, known or unknown, including, but not limited to, rights under
federal, state or local laws prohibiting age or other forms of discrimination
including the Age Discrimination in Employment Act and claims growing out of
any legal restrictions on Yellow's right to terminate its employees, which ▇▇▇
▇▇▇▇▇▇▇ now has, owns, or holds, or now claims to have, own, or hold, or which
▇▇▇ ▇▇▇▇▇▇▇ at any time heretofore has owned, or held, or which ▇▇▇ ▇▇▇▇▇▇▇
claimed to have, own, or hold against each or any of the Releases.
11. ▇▇▇ ▇▇▇▇▇▇▇ acknowledges that the filing by him of any charge,
complaint or lawsuit as described in Paragraph 9 above constitutes a
breach of this Agreement. Should such a breach occur, all rights to future
payments and benefits due under this Agreement are forfeited and Yellow shall
be entitled to reimbursement from ▇▇▇ ▇▇▇▇▇▇▇ of all monies paid under this
Agreement prior to such breach.
12. ▇▇▇ ▇▇▇▇▇▇▇ represents and agrees that he will keep the terms
and amount of this Agreement completely confidential and he will not
hereafter disclose such terms and amounts to anyone except his spouse; his
private attorneys, his tax consultants, and any individuals requiring personal
financial information; provided that they agree to keep said information
confidential and not disclose it to others.
13. Yellow represents and agrees that it will keep the terms and
amounts of this Agreement completely confidential and that it will not
hereafter disclose any information concerning this Agreement to anyone except
its private attorneys and other key company officials requiring this
information in fulfilling the responsibility of their position on Yellow's
behalf; provided that they agree to keep said information confidential and not
disclose it to others.
14. ▇▇▇ ▇▇▇▇▇▇▇ represents and agrees that he has been given at
least 21 days time to consider whether to enter into this Agreement,
that he has been advised and encouraged to consult an attorney, that he fully
52
8
understands his right to discuss all aspects of this Agreement with his
private attorney, that to the extent if any that he desires, he has availed
himself of his right, that he has carefully read and fully understands all the
provisions of this Agreement, and that he is voluntarily and knowingly entering
into this Agreement.
15. ▇▇▇ ▇▇▇▇▇▇▇ represents and acknowledges he has been informed
that for a period of seven (7) days following the date this Agreement
is executed, he has a right to revoke this Agreement. If he does not revoke
this Agreement during this seven (7) day period, it shall become effective and
enforceable.
16. ▇▇▇ ▇▇▇▇▇▇▇ represents and acknowledges that in executing this
Agreement he does not rely, and has not relied, upon any representation
or statement not set forth herein made by any of the Releasees or by any of the
Releasees' agents, representatives, or attorneys with regard to the subject
matter, basis or effect of this Agreement.
17. This Agreement sets forth the entire agreement between the
parties hereto and fully supersedes any and all prior agreements or
understandings between the parties hereto pertaining to the subject matter
hereof.
18. In the event of ▇▇▇ ▇▇▇▇▇▇▇'▇ death prior to the completion of
the payment to ▇▇▇ ▇▇▇▇▇▇▇ of any monetary compensation called for
hereunder and provided further that ▇▇▇ ▇▇▇▇▇▇▇ has not breached any of the
provisions of this Agreement prior to his death, Yellow shall pay any further
monetary compensation due to ▇▇▇ ▇▇▇▇▇▇▇'▇ estate on a lump sum basis within
ten days after his estate is opened. Provided, however, if ▇▇▇ ▇▇▇▇▇▇▇ has
given Yellow written beneficiary designations during his lifetime then such
monetary compensation due under Paragraph 18 at his death shall be paid to the
beneficiary designated in such written beneficiary designation.
19. This Agreement is made in the State of Kansas and shall be
construed pursuant to the laws thereof.
53
9
20. This Agreement shall be binding on the representatives, heirs,
successors, and assigns of the parties hereto, including any successor
or successors in bankruptcy or similar proceedings.
21. This Agreement cannot be changed, modified, or amended in any
respect except by written instrument signed by all parties.
22. The provisions of this Agreement are several, if any part of
it is found to be unenforceable, the other paragraphs shall remain
fully validated and enforceable.
IN WITNESS WHEREOF, this Agreement was executed on the day and year
first above written.
YELLOW CORPORATION
ATTEST:
________________________ By______________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III
Secretary President
______________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
54
