EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), made this 10th day of
October, 2003, by and between Yankee L.L.C., a Delaware limited liability
company which will change its name to Roadway L.L.C. following the Merger (the
"Company"), and Xxxxx X. Xxxxxx (the "Executive") to become effective on the
Effective Date.
W I T N E S S E T H:
WHEREAS, the Board of Directors of Yellow Corporation, a Delaware
corporation ("Yellow"), the sole member of the Company, has approved the
employment of the Executive by the Company on the terms and conditions set forth
in this Agreement;
WHEREAS, the Company was formed in connection with the contemplated merger
(the "Merger") of Roadway Corporation, a Delaware corporation ("Roadway"), with
and into the Company pursuant to the Agreement and Plan of Merger dated as of
July 8, 2003, entered into by and among Yellow, the Company and Roadway.
WHEREAS, the Executive is willing, for the consideration provided, to enter
into employment with the Company on the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, the parties, intending to be legally bound, agree as
follows:
1. Employment. The Company hereby agrees to employ the Executive, and the
Executive hereby accepts such employment, upon the terms and conditions set
forth in this Agreement. The Executive agrees that as of the Effective Date (as
defined below), the Change In Control Severance Agreement (the "Severance
Agreement"), dated as of May 30, 2003, and entered into by and between Roadway
Corporation, a Delaware corporation, and the Executive, will be terminated in
all respects, and the Executive agrees that he shall not be entitled to any
payments thereunder, in particular under Sections 4 or 5 of the Severance
Agreement as a result of the Merger or any event which has heretofore occurred
or which might occur hereafter.
2. Term. The term of this Agreement (the "Term of Employment") shall be for
five (5) years from the date of the closing of the Merger (the "Effective
Date"), and ending on the date of termination of the Executive's employment
determined pursuant to Section 5, 6 or 7, whichever shall be applicable; and the
consequences of such termination will be determined pursuant to Section 5, 6 or
7, whichever shall be applicable. If the Executive continues to be employed by
the Company after the Term of Employment, the parties hereto agree that the
Executive's employment status with the Company will be that of an
employee-at-will.
3. Position and Duties. The Executive shall serve as President and Chief
Executive Officer of the Company, and shall have such responsibilities and
authority as commensurate with such offices and as may from time to time be
prescribed by the Company. The Executive shall devote substantially all of his
working time and efforts to the business and affairs of the Company.
4. Compensation. During the period of the Executive's employment, the
Company shall provide the Executive with the following compensation and other
benefits:
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(a) Base Salary. The Company shall pay to the Executive a base salary at
the initial rate of $500,000 per annum, which shall be payable in accordance
with the standard payroll practices of the Company. Such base salary rate shall
be reviewed annually in accordance with Yellow's normal policies beginning in
calendar year 2005; provided, however, that, except as provided in Section 4(f),
at no time during the Term of Employment shall the Executive's base salary be
decreased from the rate then in effect.
(b) Annual Bonus. The Executive shall participate in the annual cash
incentive compensation program established and maintained by the Company at a
target level of 100% of base salary. The plan will be administered in accordance
with plan provisions.
(c) Restricted Stock. The Company will grant to the Executive, as provided
in this Section 4(c), restricted shares representing Common Stock (as defined
below) of Yellow; provided, however, that such restricted shares shall vest at
the rate of (i) 33 1/3% on the first anniversary of the grant of any such
restricted shares; (ii) 33 1/3% on the second anniversary of the grant of any
such restricted shares; and (iii) 33 1/3% on the third anniversary of the grant
of any such restricted shares. The parties agree that the Executive will receive
restricted shares on the later to occur of (i) January 2, 2004, and (ii) the
closing of the Merger, with a fair market value as of the date of grant (the
"Initial Grant Date") equal to $1,000,000, and that the Executive will receive
restricted shares on the first, second, third and fourth anniversaries of the
Initial Grant Date, with a fair market value as of the date of each grant equal
to $500,000. The fair market value for this purpose shall be determined based on
the closing price of a share of common stock of Yellow ("Common Stock") as
reported on the NASDAQ National Market System as of the close of trading on the
day preceding any such grant of restricted shares. With respect to succeeding
years, the Compensation Committee of the Board of Directors of Yellow shall
determine the number of restricted shares, if any, to be granted to the
Executive and the terms and conditions of any such restricted shares.
(d) Executive Performance Plan. The Executive will participate in Yellow's
long-term incentive plan, at a target level of 175% of base salary. The
administration of such plan will be in accordance with plan provisions.
(e) Other Benefits. In addition to the compensation and benefits otherwise
specified in this Agreement, the Executive (and, if provided for under the
applicable plan or program, his spouse) shall be entitled to participate in, and
to receive benefits under, the Company's employee benefit plans and programs
that are or may be available to senior executives generally and on terms and
conditions that are no less favorable than those generally applicable to other
senior executives of the Company. The parties hereto agree that at no time
during the term of this Agreement shall the Executive's compensation, awards, or
participation in or benefits received under any benefit plans and programs in
which the Executive participates be decreased except (i) in connection with
across-the-board reductions similarly affecting substantially all senior
executives of Yellow or the Company, or (ii) with the written consent of the
Executive. The Executive shall be treated as having satisfied any otherwise
applicable waiting period requirement for coverage under Yellow's disability
insurance plan, effective as of the Effective Date.
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(f) Expenses. The Executive shall be entitled to prompt reimbursement of
all reasonable expenses incurred by him in performing services hereunder,
provided he properly accounts therefore in accordance with the policies of the
Company.
(g) Office and Services Furnished. The Company shall furnish the Executive
with office space, secretarial assistance and such other facilities and services
as shall be suitable to the Executive's position and adequate for the
performance of his duties hereunder.
(h) Car Allowance. During the Term of Employment, the Company shall pay to
the Executive an automobile allowance of no less than Eight Hundred Dollars
($800) per month, which amount shall be increased proportionately in connection
with any across-the-board increase affecting substantially all senior executives
of Yellow and the Company.
(i) Financial Planning Allowance. During the Term of Employment, the
Company shall pay to the Executive a financial planning allowance of no less
than Seven Thousand Dollars ($7,000) per year, which amount shall be increased
proportionately in connection with any across-the-board increase affecting
substantially all senior executives of Yellow and the Company.
(j) Retiree Medical. The Executive shall be entitled to coverage under the
Company's retiree medical plan (or, if the Company's retiree medical plan is
terminated, under a comparable plan maintained by Yellow or the Company).
Additionally, the Company agrees that any pre-existing condition limitation
under the terms of the Company's retiree medical plan (or any comparable plan
pursuant to which coverage is provided under this Section 4(j)) shall be waived
with respect to the Executive's participation in such plan. The benefits
provided to the Executive under this Section 4(j) will be reduced to the extent
comparable benefits are actually received by the Executive from another employer
following the end of the Term of Employment during the period for which benefits
are being provided to the Executive under this Section 4(j). Any such benefits
actually received by the Executive shall be reported by the Executive to the
Company.
5. Termination of Employment by the Company.
(a) Termination for Cause. The Company may terminate the Executive's
employment for Cause (as defined below). The Company shall exercise its right to
terminate the Executive's employment for Cause by giving him written notice of
termination specifying in reasonable detail the circumstances constituting such
Cause. In the event of such termination of the Executive's employment for Cause,
the Executive shall be entitled to receive (i) his base salary pursuant to
Section 4(a) and any other compensation and benefits to the extent actually
earned through the date of termination pursuant to this Agreement or any benefit
plan or program of Yellow or the Company as of the date of such termination at
the normal time for payment of such salary, compensation or benefits and (ii)
any amounts owing under Section 4(f). In addition, in the event of such
termination of the Executive's employment for Cause, all unvested
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restricted shares of Yellow Common Stock held by the Executive at the effective
date of such termination shall be forfeited. Except as provided in Section 10,
the Executive shall receive no other compensation or benefits from the Company.
For purposes of this Agreement, the term "Cause" means Executive's (a) gross
negligence in the performance of Executive's duties, (b) intentional and
continued failure to perform Executive's duties, (c) intentional engagement in
conduct which is materially injurious to the Company, Yellow or any subsidiary
of Yellow (monetarily or otherwise), (d) act or acts of dishonesty resulting in
material personal gain to the Executive at the expense of the Company, or (e)
conviction of a felony, which, in the case of clauses (a), (b) or (c) has not
been cured within thirty (30) days after a written demand for substantial
performance is delivered to Executive by the Company, which demand specifically
identifies the conduct which the Company asserts to constitute Cause. For
purposes of the definition of Cause, an act or failure to act on the part of
Executive will be deemed "intentional" only if done or omitted to be done by
Executive not in good faith and without reasonable belief that his action or
omission was in the best interest of the Company, and no act or failure to act
on the part of Executive will be deemed "intentional" if it was due primarily to
an effort in judgment or negligence.
(b) Termination as a Result of a Disability. If the Executive incurs a
Permanent and Total Disability, as defined below, the Company may terminate the
Executive's employment by giving him written notice of termination at least
thirty (30) days before the date of such termination. In the event of such
termination of the Executive's employment because of Permanent and Total
Disability the Executive shall be entitled to receive the benefits described in
Section 8. For purposes of this Agreement, the Executive shall be considered to
have incurred a "Permanent and Total Disability" if he is unable to engage in
any substantial gainful employment by reason of any materially determinable
physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than
six (6) months. The existence of such Permanent and Total Disability shall be
evidenced by such medical certification as the Secretary of the Company shall
require and shall be subject to the approval of the Compensation Committee of
the Board of Directors of the Company.
(c) Termination Without Cause. The Company may terminate the Executive's
employment at any time and for any reason, other than for Cause or because of
Permanent and Total Disability, by giving him a written notice of termination to
that effect at least thirty (30) days before the date of termination. In the
event of such termination of the Executive's employment without Cause, the
Executive shall be entitled to the benefits described in Section 8.
6. Termination of Employment by the Executive.
(a) Termination for Good Reason. To the extent provided in this Section 6,
the Executive may terminate his employment for Good Reason, after the third
anniversary of the Effective Date, by giving the Company a written notice of
termination at least thirty (30) days before the date of such termination
specifying in reasonable detail the circumstances constituting such Good Reason.
In the event of the Executive's
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termination of his employment for Good Reason after the third anniversary, the
Executive shall be entitled to the benefits described in Section 8. For purposes
of this Agreement, "Good Reason" shall have occurred if either Yellow undergoes
a "Change of Control" (as defined in the Change of Control Agreement (as defined
below)), or if the Company shall:
(i) assign to the Executive any duties inconsistent with the
Executive's position (including offices, titles and reporting
requirements), authority, duties or responsibilities with the Company in
effect on the date hereof or otherwise make any change in any such
position, authority, duties or responsibilities;
(ii) remove the Executive from, or fail to re-elect or appoint the
Executive to, any duties or position with the Company or any of its
affiliates that were assigned or held by the Executive on the date hereof,
except that a nominal change in the Executive's title that is merely
descriptive and does not affect rank or status shall not constitute such an
event;
(iii) take any other action that results in a diminution in such
position, authority, duties, status or responsibilities or otherwise take
any action that interferes therewith;
(iv) reduce the Executive's annual base salary as in effect on the
date hereof or as the Executive's annual base salary may be increased from
time to time hereafter (the "Base Salary");
(v) reduce the Executive's annual bonus to an amount less than one
hundred percent (100%) of the Executive's base salary at any time on or
prior to the third anniversary of the Effective Date;
(vi) relocate the Executive's principal office by more than fifty (50)
miles from its present location without Executive's consent;
(vii) fail to (x) continue in effect any bonus, incentive, profit
sharing, performance, savings, retirement or pension policy, plan, program
or arrangement (such policies, plans, programs and arrangements
collectively being referred to herein as "Basic Benefit Plans"), including,
but not limited to, any deferred compensation, supplemental executive
retirement or other retirement income, stock option, stock purchase, stock
appreciation, or similar policy, plan, program or arrangement of Yellow or
the Company, in which the Executive was a participant on the date hereof,
unless an equitable and reasonably comparable arrangement (embodied in a
substitute or alternative benefit or plan) shall have been made with
respect to such Basic Benefit Plan, or (y) continue the Executive's
participation in any Basic Benefit Plan (or any substitute or alternative
plan) on substantially the same basis, both in terms of the amount of
benefits provided to the Executive (which are in any event always subject
to the terms of any applicable Basic
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Benefit Plan) and the level of the Executive's participation relative to
other participants, as existed on the date hereof;
(viii) fail to continue to provide the Executive with benefits
substantially similar to those enjoyed by the Executive under any of the
Company's other Executive benefit plans, policies, programs and
arrangements, including, but not limited to, life insurance, medical,
dental, health, hospital, accident or disability plans, in which the
Executive was a participant on the date hereof;
(ix) fail to provide the Executive with the number of paid vacation
days to which the Executive was entitled in accordance with the Company's
vacation policy in effect on the date hereof;
(x) fail to continue to provide Executive with office space, related
facilities and support personnel (including, but not limited to,
administrative and secretarial assistance) (y) that are both commensurate
with Executive's responsibilities to and position with the Company on the
date hereof and not materially dissimilar to the office space, related
facilities and support personnel provided to other Executives of the
Company having comparable responsibility to the Executive, or (z) that are
physically located at the Company's principal executive offices;
(xi) give effective notice of an election to terminate or not to renew
at the end of the term or extended term of any employment agreement
Executive has or may in the future have with the Company in accordance with
the terms of any such agreement; or
(xii) purport to terminate the Executive's employment by the Company
for any reason other than Cause.
(b) Termination Following a Change of Control. Within thirty (30) days of
the Effective Date, the Executive will enter into an Executive Severance
Agreement (the "Change of Control Agreement") in substantially the same form as
the other senior executives of Yellow and its subsidiaries, and the Executive
shall be entitled to such additional benefits as provided under the Change of
Control Agreement upon a Change of Control (as such term is defined in the
Change of Control Agreement) of Yellow.
(c) Other Termination. The Executive may terminate his employment at any
time and for any reason, other than pursuant to subsection (a) or (b) above, by
giving the Company a written notice of termination to that effect at least
thirty (30) days before the date of termination. In the event of the Executive's
termination of his employment pursuant to this subsection (c), the Executive
shall be entitled to receive only (i) his base salary pursuant to Section 4(a)
and any other compensation and benefits to the extent actually earned by the
Executive pursuant to this Agreement through the termination date or any benefit
plan or program of Yellow or the Company as of the date of such termination at
the normal time for payment of such salary, compensation or benefits, and
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(ii) any amounts owing under Section 4(f). In addition, in the event of the
Executive's termination of his employment pursuant to this subsection (c), all
unvested restricted shares of Yellow Common Stock held by the Executive at the
time of such termination shall be forfeited. Except as provided in Section 9,
the Executive shall receive no other compensation or benefits from Yellow or the
Company.
7. Termination of Employment By Death. In the event of the death of the
Executive during the course of his employment hereunder, the Executive's estate
shall be entitled to receive the benefits and payments enumerated under Section
8.
8. Benefits Following Certain Terminations of Employment. If the
Executive's employment with the Company shall terminate (i) because of
termination by the Company pursuant to Section 5(c) and not for Cause, (ii) as a
result of the Executive's death, (iii) under Section 5(b) or (iv) under Section
6(a), the Executive (or in the case of death his estate) shall be entitled to
the following:
(a) The Company shall pay to the Executive as a severance benefit an
amount equal to the Severance Bonus (as defined in Section 9). Such
severance benefit shall be paid in a lump sum within thirty (30) days after
the date of such termination of employment.
(b) The Company shall pay to the Executive his base salary pursuant to
Section 4(a) through the termination date and, subject to the further
provisions of this Section 8, any other compensation and benefits to the
extent actually earned by the Executive under this Agreement or any benefit
plan or program of the Company as of the date of such termination at the
normal time for payment of such salary, compensation or benefits.
(c) The Company shall pay the Executive any amounts owing under
Section 4(f).
(d) The Company shall pay to the Executive the prorated portion of his
target bonus under the Company's target bonus plan for the fiscal year in
which his termination of employment occurs, as if the target for the year
of termination had been met under the terms of the target bonus plan. Such
payment shall be made in a lump sum within thirty (30) days after the date
of such termination of employment, and the Executive shall have no right to
any further bonuses under said program.
(e) During the period of twenty-four (24) months beginning on the date
of the Executive's termination of employment, the Executive (and, if
applicable under the applicable program, his spouse) shall remain covered
by the employee benefit plans and programs that covered him immediately
prior to his termination of employment as if he had remained in employment
for such period, provided, however, that there shall be excluded for this
purpose any plan or program providing payment for time not worked
(including without limitation holiday, vacation, and long- and short-term
disability). In the event that the Executive's participation in any such
employee benefit plan or program is barred, the Company shall arrange to
provide the Executive with substantially similar
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benefits. Any medical insurance coverage for such two-year period pursuant
to this subsection (f) shall become secondary upon the earlier of (i) the
date on which the Executive begins to be covered by comparable medical
coverage provided by a new employer, or (ii) the earliest date upon which
the Executive becomes eligible for Medicare or a comparable Government
insurance program.
(f) All outstanding restricted shares granted under Section 4(c) of
this Agreement and held by the Executive at the time of termination of his
employment shall become fully vested upon such termination of employment.
(g) If any payment or benefit received by or in respect of the
Executive under this Agreement or any other plan, arrangement or agreement
with the Company (determined without regard to any additional payments
required under this subsection (h) and Appendix B of this Agreement) (a
"Payment") would be subject to the excise tax imposed by Section 4999 of
the Internal Revenue Code of 1986, as amended (the "Code") (or any similar
tax that may hereafter be imposed) or any interest or penalties are
incurred by the Executive with respect to such excise tax (such excise tax,
together with any such interest and penalties, being hereinafter
collectively referred to as the "Excise Tax"), the Company shall pay to the
Executive with respect to such Payment at the time specified in Appendix B
an additional amount (the "Gross-up Payment") such that the net amount
retained by the Executive from the Payment and the Gross-up Payment, after
reduction for any Excise Tax upon the payment and any federal, state and
local income and employment tax and Excise Tax upon the Gross-up Payment,
shall be equal to the Payment. The calculation and payment of the Gross-up
Payment shall be subject to the provisions of Appendix B.
9. Benefits Upon Termination Without Cause, for Good Reason, Death, or as a
Result of a Disability. If the Executive's employment with the Company shall
terminate because of termination by the Company without Cause, by the Executive
for Good Reason, upon the death of the Executive or if the Executive incurs a
Permanent and Total Disability, the Executive shall be entitled to a lump-sum
payment equal to $3,000,000 less the value of the restricted shares granted to
the Executive during the Term of Employment which have vested (the "Severance
Bonus"), with the value of the restricted shares to be determined based on the
lesser of (i) the fair market value of the restricted shares determined at the
date of grant, or (ii) the fair market value of the restricted shares determined
on the last day of the Term of Employment
10. Entitlement To Other Benefits. Except as provided in this Agreement,
this Agreement shall not be construed as limiting in any way any rights to
benefits that the Executive may have pursuant to any other plan or program of
the Company.
11. Confidentiality. The Executive agrees that at all times during and
after the term of this Agreement, the Executive shall (i) hold in confidence and
refrain from disclosing to any other party all information, whether written or
oral, tangible or intangible, of a private, secret, proprietary or confidential
nature of or concerning Yellow, the Company and its business and operations, and
all files, letters, memoranda, reports, records, computer disks or other
computer storage medium, data, models or any photographic or other intangible
materials containing such
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information ("Confidential Information"), including without limitation, any
sales, promotional or marketing plans, programs, techniques, practices or
strategies, any expansion plans (including plans regarding entry into new
geographic and/or product markets), and any customer lists, (ii) use the
Confidential Information solely in connection with the services performed for
the Company and for no other purpose, (iii) take all precautions necessary to
ensure that the Confidential Information shall not be, or be permitted to be,
shown, copied to disclosed to third parties, without the prior written consent
of the Company, and (iv) observe all security policies implemented by the
Company from time to time with respect to the Confidential Information. The
Confidential Information shall not include any information which becomes
generally available to the public or lawfully obtainable from other sources
(except by reason of any unauthorized disclosure by the Executive). In the event
that the Executive is ordered to disclose any Confidential Information, whether
in a legal or regulatory proceeding or otherwise, the Executive shall provide
the Company with prompt notice of such request or order so that the Company may
seek to prevent disclosure. In the case of any disclosure, the Executive shall
disclose only that portion of the Confidential Information that he is ordered to
disclose. The Executive agrees further that at all times during and after the
term of this Agreement, the Executive will not engage in any conduct that is
injurious to the Company's reputation and interests, including, but not limited
to, making disparaging comments (or inducing or encouraging others to make
disparaging comments) about the Company or any of the Company's directors,
officers, employees or agents or the Company's operations, financial condition,
prospects, products or services.
12. Non-Competition.
(a) Agreement Not To Compete. In exchange for receiving the grants of
restricted shares described in Section 4(c), the Executive acknowledges
that the Executive has received information and gained knowledge from the
Company, including, but not limited to, trade secrets, customer lists,
methods, processes, techniques, plans, strategies, proposals, costs,
profits, systems and other confidential or proprietary information of
Yellow and the Company. The Executive acknowledges that this information
and knowledge is valuable to Yellow and the Company and, therefore, its
protection and maintenance constitute a legitimate interest to be protected
by the Company by this covenant not to compete. Therefore, the Executive
agrees during the Term of Employment and continuing for two (2) years
thereafter (the "Noncompete Period"), the Executive shall not, directly or
indirectly, either as an employee, employer, consultant, agent, principal,
partner, shareholder (other than as a shareholder of securities of a
publicly held corporation of which the Executive owns less than one percent
(1%) of any class of outstanding securities), corporate officer, director,
or in any other individual or representative capacity, engage or
participate in any business that is competitive with the businesses
conducted by Yellow, the Company or subsidiaries of Yellow with respect to
asset or non-asset based transportation services (the "Company's Business")
within the geographic areas of North America where the Company's Business
is so conducted. The Executive represents to the Company that the
enforcement of the restriction contained in this Section 12 would not be
unduly burdensome to the Executive. The Executive further represents and
acknowledges that the Executive has willingly entered into this agreement
not to compete and understands its scope and impact.
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(b) Injunctive Remedies. The Executive agrees that a breach or
violation of this covenant not to compete by the Executive shall entitle
Yellow or the Company, as a matter of right, to an injunction issued by any
court of competent jurisdiction, restraining any further or continued
breach or violation of this covenant. Such right to an injunction shall be
cumulative and in addition to, and not in lieu of, any other remedies to
which Yellow or the Company may show itself justly entitled. Further, the
Executive agrees that during any period in which the Executive is in breach
of this covenant not to compete, the time period of this covenant shall be
extended for the amount of time that the Executive is in breach hereof.
(c) Non-Solicitation. In addition to the restrictions set forth in
paragraph (a) of this Section 12, the Executive agrees that for the
Noncompete Period, the Executive will not, either directly or indirectly,
(i) make known to any person, firm or corporation that is engaged in the
Company's Business the names and addresses of any of the suppliers or
customers of Yellow or the Company, potential customers of Yellow or the
Company upon whom Yellow or the Company has called upon in the last twelve
(12) months or contacts of Yellow or the Company or any other information
pertaining to such persons, or (ii) call on, solicit, or take away, or
attempt to call on, solicit or take away any of the suppliers or customers
of Yellow or the Company, whether for the Executive or for any other
person, firm or corporation.
(d) No Hire. The Executive agrees that for the Noncompete Period the
Executive will not, either directly or indirectly, (i) solicit for
employment or employ, or allow any corporation or business entity
controlled directly or indirectly by or affiliated with the Executive to
solicit for employment or employ, any person that at that time is, or at
any time during the past six months immediately preceding such time was, an
employee, consultant or agent of Yellow or the Company, or (ii) make known
to any person, firm or corporation that is engaged in the Company's
Business, or executive recruiting or search firms that have clients engaged
in the Company's Business, the names of any person that at that time is, or
at any time during the past six months immediately preceding such time was,
an employee, consultant or agent of Yellow or the Company.
13. Arbitration.
(a) Arbitration of Disputes. Any dispute between the parties hereto
arising out of, in connection with, or relating to this Agreement or the
breach thereof shall be settled by arbitration in Overland Park, Kansas, in
accordance with the rules then in effect of the American Arbitration
Association ("AAA"). Arbitration shall be the exclusive remedy for any such
dispute except only as to failure to abide by an arbitration award rendered
hereunder. Regardless of whether or not both parties hereto participate in
the arbitration proceeding, any arbitration award rendered hereunder shall
be final and binding on each party hereto and judgment upon the award
rendered may be entered in any court having jurisdiction thereof. The party
seeking arbitration shall notify the other party in writing and request the
AAA to submit a list of five (5) or seven (7) potential arbitrators. In the
event the parties do not agree upon an arbitrator, each party shall, in
turn, strike one arbitrator from the list, the Company having the first
strike, until only one
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arbitrator remains, who shall arbitrate the dispute. The parties shall have
the opportunity to conduct reasonable discovery as determined by the
arbitrator, and the arbitration hearing shall be conducted within thirty
(30) to sixty (60) days of the selection of an arbitrator or at the
earliest date thereafter that the arbitrator is available or as otherwise
set by the arbitrator.
(b) Indemnification. If arbitration occurs as provided for herein and
the Executive is warded more than the Company has asserted is due him or
otherwise substantially prevails therein, the Company shall reimburse the
Executive for his reasonable attorneys' fees, costs and disbursements
incurred in such arbitration and hereby agrees to pay interest on any money
award obtained by the Executive from the date payment should have been made
until the date payment is made, calculated at the prime interest rate of
Bank of America, Inc., Kansas City, Missouri in effect from time to time
from the date that payment(s) to him should have been made under this
Agreement. If the Executive enforces the arbitration award in court, the
Company shall reimburse the Executive for his reasonable attorneys' fees,
costs and disbursements incurred in such enforcement.
14. Indemnification. The Company shall provide the Executive with rights to
indemnification by the Company that are no less favorable to the Executive than
those set forth in Yellow's by-laws as in effect as of the Effective Date.
15. Successors. This Agreement shall be binding upon and inure to the
benefit of the Executive and his estate and the Company and any successor of the
Company, but neither this Agreement nor any rights arising hereunder may be
assigned or pledged by the Executive.
16. Severability. Any provision in this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
only to the extent of such prohibition or unenforceability without invalidating
or affecting the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
17. Notices. All notices required or permitted to be given under this
Agreement shall be given in writing and shall be deemed sufficiently given if
delivered by hand or mailed by registered mail, return receipt requested, to his
residence in the case of the Executive and to its principal executive offices in
the case of the Company. Either party may by giving written notice to the other
party in accordance with this Section 15 change the address at which it is to
receive notices hereunder.
18. Controlling Law. This Agreement shall in all respects be governed by
and construed in accordance with the laws of the State of Delaware.
19. Changes to Agreement. This Agreement may not be changed orally but only
in a writing, signed by the party against whom enforcement is sought.
20. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed an original but all
of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the 10th of
October, 2003.
EXECUTIVE: ROADWAY L.L.C.
/s/ Xxxxx X. Xxxxxx
---------------------------
Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
------------------------------
Title: Vice President and Secretary
------------------------------
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