First Amendment to Non-Competition, Non-Solicitation, Non-Disparagement and Confidentiality Agreement
Exhibit 10.9
First Amendment to Non-Competition, Non-Solicitation, Non-Disparagement and
Confidentiality Agreement
This First Amendment to Non-Competition, Non-Solicitation, Non-Disparagement and Confidentiality Agreement (“Amendment”) dated March 6, 2011, is between YRC Worldwide Inc. (“YRCW”) and Xxxxxx Xxxxxx (“Xxxxxx”). YRCW and Xxxxxx are herein sometimes referred to individually as a “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, YRCW and Xxxxxx are parties to a Non-Competition, Non-Solicitation, Non-Disparagement and Confidentiality Agreement dated November 25, 2009 (the “Original Non-Compete”);
WHEREAS, the Parties now desire to amend the Original Non-Compete as provided in this Amendment to only restrict or prohibit certain activities by Xxxxxx with regard to certain businesses as further described herein;
NOW, THEREFORE, in consideration of Xxxxxx’x agreement to not resign her employment prior to March 31, 2011, all of the foregoing, and the mutual terms, agreements and conditions hereinafter set forth, YRCW and Xxxxxx hereby agree as follows:
1. Non-Competition. The Parties have agreed to amend certain restrictions set forth in the second and third sentences in Section 1 of the Original Non-Compete. Accordingly, the second and third sentences in Section 1 of the Original Non-Compete shall be amended and restated in their entirety to read as follows:
Therefore, you agree that so long as the Company employs you and during the Restricted Period (defined below), you shall not, and shall cause your controlled affiliates not to, directly or indirectly (other than in your capacity as an employee of the Company), own, manage, engage in, operate, control, work for, consult with, render services for, do business with, maintain an interest in (proprietary, financial, or otherwise), or participate in the ownership, management, operation, or control of any Restricted Business (as defined below) in any geographic region for which you had direct or indirect responsibility on behalf of the Company or in any geographic region for which you had confidential information of the Company. For this purpose, “Restricted Business” means (A) any of XX Xxxxxxxx Co, Xxxxxxxxx National Logistics, Ryder Carrier Management Services, Logistics Management Inc., Echo Global Logistics, AFS Logistics, Capital Trans Solutions, Xxxxxx-Xxxxxx Logistics, Unishippers, Xxxxxxxxxxxx.xxx or any of their affiliates or successors, (B) any other company listed under the “Less-Than-Truckload” or
FIRST AMENDMENT TO NON-COMPETITION, NON-SOLICITATION, NON-DISPARAGEMENT AND CONFIDENTIALITY AGREEMENT -
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“Truckload” columns of Attachment 1 hereto and (C) any third party logistics provider that is a controlled affiliate of an entity described in clause (B). It shall not be a violation of Sections 1 or 2 if you become the registered or beneficial owner of up to 5% of any class of the capital stock of a business that is either registered under the Securities Exchange Act of 1934, as amended, or is traded on any foreign stock exchange or if you become employed by or maintain an interest in a law, accounting, consulting or financial advisory firm so long as you do not personally provide advice or services to any Restricted Businesses, as an employee or interest owner during the Restricted Period.
2. Non-Solicitation. The Parties have agreed to amend Section 2.d. of the Original Non-Compete. Accordingly, Section 2.d. of the Original Non-Compete shall be amended and restated in its entirety to read as follows:
d. develop a business relationship with any actual or prospective client, customer, supplier or licensor to cause, induce, or encourage such individual to become a client, customer, supplier, or licensor of any Restricted Businesses.
3. Non-Disparagement. The Parties have agreed to amend Section 3 of the Original Non-Compete. Accordingly, Section 3 of the Original Non-Compete shall be amended and restated in its entirety to read as follows:
Except for truthful statements to comply with law or legal process, you represent and agree that you will not make any derogatory, disparaging or false statements intended to harm the business or personal reputation of YRCW or any related companies or their officers and employees. Except for truthful statements to comply with law or legal process, YRCW will not make or authorize any derogatory, disparaging or false statements intended to your business reputation or personal reputation.
4. Termination. The Parties have agreed to amend the Original Non-Compete by adding a new Section 7 entitled “Termination.” Section 7 shall read as follows:
7. Termination. You shall have the right to terminate your obligations under Section 1 hereunder after any rejection under section 365 of title 11 of the United States Code of the Separation and Release Agreement, dated March 6, 2011, by and between you and YRCW.
5. Counterparts. This Amendment may be executed in any number of counterparts, all of which taken together shall constitute one in the same instrument.
FIRST AMENDMENT TO NON-COMPETITION, NON-SOLICITATION, NON-DISPARAGEMENT AND CONFIDENTIALITY AGREEMENT -
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| Agreed to by: | ||
| YRC Worldwide Inc. | ||
| By: | /s/ Xxxxxxx Xxxxxxx | |
| Name printed: | Xxxxxxx Xxxxxxx |
| Title: | Chairman and CEO | |
| Date: | March 6, 2011 |
| and | ||||
| Xxxxxx Xxxxxx | ||||
| Signature: | /s/ Xxxxxx Xxxxxx | |||
| Dated: | March 6, 2011 | |||
FIRST AMENDMENT TO NON-COMPETITION, NON-SOLICITATION, NON-DISPARAGEMENT AND CONFIDENTIALITY AGREEMENT -
PAGE 3
Attachment 1
to
First Amendment to Non-Competition, Non-Solicitation,
Non-Disparagement and Confidentiality Agreement
Dated 3-6-2011
| LESS-THAN-TRUCKLOAD | TRUCKLOAD | |
| FedEx Freight | Xxxxxxxxx National Carriers | |
| YRC National Transportation | Swift Transportation | |
| Con-way Freight | Xxxxxx Enterprises | |
| UPS Freight | U.S. Xpress Enterprises | |
| ABF Freight System | Landstar System | |
| YRC Regional Transportation | Knight Transportation | |
| Xxxxx Express Lines | Crete Carrier Corp. | |
| Old Dominion Freight Line | Con-way Truckload | |
| R+L Carriers | TransForce Inc. | |
| Xxxx Inc. | Greatwide Truckload | |
| Xxxxxxx Express | Dart Transit Co. | |
| Lynden Transport | Interstate Distributor Co. | |
| Southeastern Freight Lines | Heartland Express | |
| Vitran Express | X.X. Xxxx Truck | |
| TransForce Inc. | Western Express | |
| AAA Xxxxxx Transportation | Covenant Transport | |
| Central Transport International | Celadon Group | |
| New England Motor Freight | CRST Van Expedited | |
| Roadrunner Transportation Systems | Groupe Xxxxxx | |
| Xxxx Ohio Express | NFI Transportation | |
| Armour Transport | Xxxxxx Group | |
| Calyx Transportation Group | USA Truck | |
| Central Freight Lines | X.X.X. Transportation Services | |
| Dayton Freight Lines | Xxxxxx Trucking Inc. | |
| A. Xxxx Xxxx Inc. | Challenger Group | |
| New Century Transportation | Super Service LLC | |
| Daylight Transport | Mesilla Valley Transportation | |
| Xxxx Trucking | Xxxx Companies | |
| Xxxxxx Trucking | Xxxx Carriers | |
| Xxxxxxx and Xxxxxxx Trucking | Day and Xxxx Transportation Group | |
| Milan Express Co. | Transport America | |
| Oak Harbor Freight Lines | Xxxxx Systems | |
| Xxxxxxxx Truck Lines | ||
| Xxxxxx Inc. | ||
| Falcon Transport | ||
| Tango Transport | ||
| Xxxxx Transport | ||
| SLH Transport | ||
| G&P Trucking | ||
| TransX | ||
| CalArk Inc. | ||
| USF Xxxx Xxxxx | ||
