Exhibit 99.1
SEPARATION AGREEMENT AND GENERAL RELEASE
For good and valuable consideration, receipt of which is hereby acknowledged,
CNF Inc. ("Company") and Xxxxx X. Xxxxxxxx ("Executive") do hereby enter into
this Separation Agreement and General Release ("Agreement"):
1. Compensation and Benefits to Executive.
A. Executive has elected to retire from his employment at Company,
effective October 28, 2005 ("Retirement Date").
B. Executive hereby resigns, as of Retirement Date, any and all officer
and director positions with the Company and its subsidiary and
affiliated entities and joint ventures. Executive shall execute any
formal documentation required to document these resignations.
C. The parties agree, except as expressly provided herein, that
Executive is entitled to and shall retain any and all rights he
may have, if any, including without limitation as a participant in
Company's retirement, supplemental excess retirement, health
insurance, life insurance, long term care insurance, and
compensation plans, including the CNF Inc. Deferred Compensation
Plan for Executives and the CNF Inc. 2005 Deferred Compensation
Plan for Executives for 2005; the CNF Inc. 1997 Equity and
Incentive Plan; the CNF Inc. Value Management Plan for the three-
year cycles ending on December 31, 2005, December 31, 2006 and
December 31, 2007; the Con-Way Transportation Services Incentive
Plan for 2005 and the CNF Inc. Incentive Compensation Plan for
2005 (on a pro rata basis through the Retirement Date), and any
stock options that were granted to Executive prior to the
Effective Date of this Agreement and that are vested as of, or
will vest following, the date of Executive's retirement from
employment, in accordance with their terms, provided, however,
that Executive understands and agrees that he will receive no
further stock option grants following the Retirement Date, and
further understands and agrees that the term "compensation plans"
as used herein does not include any bonus or commission plan not
named in this paragraph. The parties agree that Executive is
separating his Company employment by retirement and is eligible
for all benefits provided under the plans referenced in this
paragraph where employment separation is by retirement. The
parties further agree that Executive shall be entitled to
reimbursement of expenses incurred for estate and financial
planning services obtained by him prior to the Retirement Date, in
accordance with and not to exceed Company's established allowance
for such services.
2. Commitments by Executive. Executive agrees that:
A. Executive will not at any time, without the prior written consent
of the General Counsel of CNF Inc., either directly or indirectly use,
divulge or communicate to any person or entity, in any manner, any non-
public privileged, confidential, or proprietary information of,
concerning, or relating to Company and/or its subsidiary or affiliated
entities and/or its and their joint ventures, except if the disclosure
(i) is required by law or (ii) disclosure involves information which had
been lawfully revealed to Executive by a third party having no attorney-
client or other confidentiality obligation to Company and/or, as
applicable, its subsidiary or affiliated entities and/or its and their
joint ventures. This prohibition against disclosure includes, but is
not limited to, information of, concerning or relating to Company's
and/or its subsidiary or affiliated entities' and/or its and their joint
ventures' legal matters, technical data, systems and programs, financial
and planning data, business development or strategic plans or data,
marketing strategies, software development, product development,
pricing, customer information, trade secrets, personnel information, and
other privileged or confidential business information. Executive agrees
to take every reasonable step to protect such privileged, confidential,
or proprietary information from being disclosed to third parties. If
Executive is required, or believes he may be required, to disclose such
privileged, confidential, or proprietary information pursuant to
subpoena or other legal process, he will give the General Counsel of CNF
Inc. prompt written notice; and
B. Executive will, for so long as required, fully cooperate with
Company and its subsidiary and affiliated entities and its and their
joint ventures in legal or regulatory matters or investigations in which
he was involved or about which he has knowledge, such as answering
inquiries from counsel for Company and its subsidiary and affiliated
entities and its and their joint ventures, and testifying in depositions
and trials. Executive will make himself available upon reasonable
notice at reasonable times and places in order to prepare for giving
testimony and to testify at deposition, trial or other legal
proceedings, without a subpoena; provided, however, that Executive shall
not be required to appear to give testimony in any location beyond where
he could be required to appear pursuant to subpoena. Executive
expressly agrees that he will not be entitled to compensation for any of
his time expended in such proceedings. Company expressly agrees to
reimburse Executive for reasonable out-of-pocket costs and expenses,
other than attorneys' fees, he incurs as a result of his obligation to
cooperate as provided herein.
C. Executive will, for a period of six months following the Effective
Date, fully cooperate with and assist Company and its subsidiaries and
affiliated entities and its and their joint ventures, on other matters
in which he was previously involved or about which he has knowledge, in
order to accomplish the smooth transition of his responsibilities.
3. Right to Seek Employment. Nothing in this Agreement is intended, or
shall be interpreted, to prohibit Executive from seeking or accepting
alternate employment, including without limitation employment at a
company within the transportation industry; provided, however, that
Executive understands and agrees that at all times he will remain
obligated to comply with the obligations set forth in Section 2A, above.
4. Release of Released Parties. Executive, for himself and for his marital
community, representatives, heirs, successors, and assigns, does hereby
completely release and forever discharge Company and any subsidiary and
affiliated entities, and its and their present and former joint
ventures, shareholders, officers, directors, agents, employees,
attorneys, insurers, successors, and assigns (collectively, "Released
Parties"), from all actions, causes of action, primary duties
corresponding to Executive's primary rights, rights, demands, actions,
obligations, liabilities, attorneys fees, claims, and other obligations
of every kind and character, known or unknown, mature or unmatured,
which Executive may now have or has ever had, whether based on tort,
contract (express or implied), or any federal, state, or local law,
statute, public policy, or regulation (collectively, "Released Claims").
By way of example and not in limitation of the foregoing, the Released
Claims shall include any claims arising under any executive severance
agreement or plan, any claims for compensation under any bonus or
commission plan in which Executive was a participant (except as
expressly provided in Section 1C, above), and any claims for breach of
contract, breach of the covenant of good faith and fair dealing,
infliction of emotional distress, misrepresentation, interference with
contract or prospective economic advantage, defamation, invasion of
privacy, retaliation, wrongful discharge, and discrimination.
Notwithstanding the foregoing, Executive's Released Claims shall not
include (i) any claims based on obligations created by or reaffirmed in
this Agreement; (ii) any obligation Company may have for any
compensation earned by and due Executive for work performed on or prior
to the Effective Date (except that any claim under any bonus or
commission plan is expressly waived and released, except as expressly
provided in Xxxxxxx 0X, xxxxx); (xxx) any claims for indemnification
under Company's By-laws or applicable law attributable to his employment
by the Company; (iv) any claims arising from acts or omissions after the
Effective Date; (v) any claims for industrial injury or illness; and
(vi) any claims for unemployment insurance benefits.
5. Waiver of Unknown Claims. Executive understands and agrees that this
Agreement extends to and extinguishes any and all rights which might
otherwise have been preserved by operation of Section 1542 of the
California Civil Code or applicable laws to the same effect in all other
jurisdictions. Section 1542 provides as follows:
A general release does not extend to claims which the
creditor does not know or suspect to exist in his or her
favor at the time of executing the release, which if known by
him or her must have materially affected his or her
settlement with the debtor.
6. Covenants Not to Xxx. Executive shall not xxx or initiate against any
Released Party any action or proceeding, or participate in the same,
individually or as a member of a class, under any contract (express or
implied) or any federal, state, or local law, statute, or regulation
pertaining in any manner to the Released Claims.
7. SEC Filing. The Company may in its discretion file the Agreement with
the Securities and Exchange Commission.
8. Non-Disparagement. Executive agrees that he shall not disparage, or
assist or encourage any other person to disparage, the Company, its
subsidiary and affiliated entities and its and their joint ventures, its
and their past or present directors, officers, executives and/or
employees, and/or its and their products and/or services.
9. Interpretation. For purposes of interpreting this Agreement, the
parties hereto shall be deemed to have participated equally in its
drafting.
10. Assignment; Successors and Assigns. Executive agrees that he will not
assign, sell, transfer, delegate, or otherwise dispose of, whether
voluntarily, involuntarily, or by operation of law, any rights or
obligations under this Agreement. Any such purported assignment, sale,
transfer, delegation, or disposition shall be null and void. Executive
represents that he has not previously assigned, sold, transferred,
delegated, or otherwise disposed of any rights or obligations under this
Agreement. Subject to the foregoing, this Agreement shall be binding
upon and shall inure to the benefit of the parties and their respective
heirs, successors, and permitted assigns. This Agreement shall not
benefit any other person or entity except as specifically enumerated in
this Agreement. Company's subsidiary and affiliated entities, its and
their joint ventures, and its and their past or present directors,
officers, executives and/or employees are intended third party
beneficiaries of this Agreement.
11. Severability. Every provision of this Agreement is intended to be
severable. If any provision of this Agreement, or its application to
any person, place, or circumstance, is held by an arbitrator or a court
of competent jurisdiction to be invalid, unenforceable, or void, such
provision shall be reformed by said court or arbitrator to the minimum
extent possible and thereafter enforced. If the provision deemed to be
invalid, unenforceable, or void cannot be so reformed, such provision
shall be severed from the Agreement and the remainder of the Agreement
shall remain in full force and effect.
12. Arbitration of Disputes/Venue. In the event of any controversy arising
from or concerning the formation, interpretation, or application of this
Agreement, including the arbitrability of such controversy, whether such
controversy is grounded in common or statutory law, such controversy
shall be resolved exclusively through binding arbitration in San Mateo,
California before a single neutral arbitrator selected jointly by the
parties. The parties agree, with the advice of counsel or the
opportunity to obtain such advice, that this Agreement establishes a
post-dispute arbitration procedure which is not an adhesive or
unconscionable contract. The parties to the arbitration shall have all
rights, remedies, and defenses available to them in a civil action for
the issues in controversy. To the extent permitted by applicable law,
the prevailing party shall be entitled to recover its attorney and
paralegal fees and costs and any arbitration fees and expenses.
If, for any legal reason, a controversy arising from or concerning the
formation, interpretation or application of this Agreement cannot be
arbitrated as provided above, the parties agree that any civil action
shall be brought in a United States District Court with jurisdiction of
the parties and subject matter, or, only if there is no basis for
federal jurisdiction, in a court of any State having jurisdiction of the
parties and subject matter. The parties further agree that, to the
extent permitted by applicable law, any such civil action shall be tried
to the court, sitting without a jury. The parties knowingly and
voluntarily waive trial by jury to the extent permitted by applicable
law.
13. Representation by Counsel. The parties acknowledge that (i) they have
had the opportunity to consult counsel in regard to this Agreement, (ii)
they have read and understand the Agreement and they are fully aware of
its legal effect; and (iii) they are entering into this Agreement freely
and voluntarily, and based on each party's own judgment and not on any
representations or promises made by the other party, other than those
contained in this Agreement.
14. ADEA Waiver. Executive acknowledges that he has, by the tender of this
Agreement, been advised in writing that, by virtue of his age, he may
have rights under the Age Discrimination in Employment Act of 1967, as
amended, 29 U.S.C. Sections 621 et seq., which rights will be
extinguished by his execution of this Agreement. Executive further
acknowledges that he has been, by the tender of this Agreement, advised
in writing to consult with an attorney prior to executing this
Agreement. Executive stipulates and agrees that this Agreement
provides consideration in addition to anything of value to which he may
be entitled independent of this Agreement.
15. Rescission Rights, and Effective Date. Executive acknowledges that he
shall have twenty-one (21) days following the tender of this Agreement
to consider his execution of this Agreement, and that he shall have an
additional period of seven (7) days following his execution of this
Agreement in which to revoke the Agreement. This Agreement shall not be
effective or enforceable until the expiration of this seven-day period
after his execution of this Agreement ("Effective Date").
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the United States and the State of
California.
The parties have duly executed this Agreement on the dates set forth below.
/s/ Xxxxx X. Xxxxxxxx Dated: October 28, 2005
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Xxxxx X. Xxxxxxxx
CNF Inc.
By: /s/ Xxxxxxx X. Xxxxxxx Dated: November 16, 2005
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Xxxxxxx X. Xxxxxxx
President and CEO
CNF Inc.
