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EXHIBIT 10.3
SEPARATION AGREEMENT AND MUTUAL RELEASE OF CLAIMS
This agreement is effective the 31st day of March, 1996 by and between
George E. Powell III (hereinafter "George Powell") and Yellow Corporation, its
predecessors, subsidiaries, affiliates, assigns, officers, directors, agents
and employees (hereinafter jointly referenced as "Company") is entered into in
order to set forth the terms and conditions upon which George Powell's
employment with the Company will be terminated. In exchange for the mutual
promises contained herein, the parties agree as follows:
1. George Powell will submit his written resignation as President and
Chief Executive Officer and as Director of any subsidiary of the Company
effective March 31, 1996 in the form attached hereto as "Exhibit A".
2. Commencing April 1, 1996, the Company will pay George Powell $36,667
per month through September 30, 1997 in bi-monthly installments. The parties
agree that the Company shall withhold from such payments the appropriate
deductions required by law. In the event of George Powell's death before the
last installment is paid, any remaining installments will be paid to his
spouse. In the event George Powell and his spouse die before the last
installment is paid, any remaining installments will be paid to the estate of
the last survivor of the two, or if there is no last survivor, to George
Powell's estate.
3. From April 1, 1996 through September 30, 1997, George Powell's health
insurance will continue to be provided and paid for by the Company on the same
basis as any other employee, provided, however, that such coverage will cease
if George Powell becomes otherwise employed during such period and is covered
by comparable coverage paid for by such other employer. If the coverage from
such other employer does not match the Company's coverage, the Company's
coverage shall be secondary to that of the other employer and the Company will
be responsible only for the difference in coverage between that of the Company
and the other employer. Through September 30, 1997, George Powell shall also
continue to vest under the Company's defined Benefit Pension Plan and shall
also be entitled to continued participation in the Company's non-medical
insurance coverages, except those insurance coverages that provide payment for
time not worked which includes holiday, vacation, short and long-term
disability. George Powell's car allowance shall discontinue as of the
effective date of his resignation as President and Chief Executive Officer of
the Company. George Powell shall not be entitled to any bonus or incentive
compensation that is awarded after the effective date of his resignation as
President and Chief Executive Officer.
4. The Company will provide tax return preparation services for George
Powell for calendar year 1996 and 1997, if the Company continues to provide the
same service to its senior officers for 1996 and 1997. George Powell will
return all Company property in his position as of the effective date of his
resignation as President and Chief Executive Officer, with the exception of the
car phone presently installed in his car, which George Powell may retain with
all monthly billings to be switched to George Powell effective April 1, 1996.
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5. The Company will reimburse George Powell for career assessment services
with DeFrain Mayer Lee Burgess, L.C.C. up to a maximum amount of $2,750. The
Company standard individual financial planning benefit (up to $3,000 per
calendar year) for senior officers shall be available to George Powell through
September 30, 1997 severance payment period.
6. For the period from the effective date of George Powell's resignation
as President and Chief Executive Officer of the Company through September 30,
1997, George Powell agrees not to form or acquire, in whole or in part, or
participate in any manner as partner, employee, officer, independent contractor
or consultant with any entity or concern that is now or should become during
that period engaged in the interstate or intrastate transportation of general
commodities by motor vehicle operating between points in the United States,
Canada or Mexico.
7. George Powell waives and releases for himself and anyone claiming
through him, his administrators, successors and assigns, fully and forever, any
claim against the Company, its subsidiaries, affiliates, their predecessors,
successors, officers, directors, agents, representatives, attorneys or
employees, of any kind whatsoever for any action or any inaction, loss,
expense, or any damage of whatever nature arising from any circumstance or
occurrence from the beginning of time until the date of signing this agreement.
Without limiting the foregoing, George Powell specifically waives any claim
arising out of the Age Discrimination in Employment Act relating in any way to
his employment with the Company or the termination thereof. The only exception
to the aforementioned waiver and release will be claims by George Powell under
any right arising under this agreement.
8. George Powell further agrees that he will never disclose to anyone,
except an authorized representative of the Company, as required by law, any
confidential or proprietary information about the Company, its customers, it
manufacturing, production, or other operational processes, its products, costs,
or other financial information, or any other information he should not have
released or publicized to persons outside the Company during George Powell's
employment. George Powell will not denigrate the Company, its products, its
services, its management or Board of Directors. This paragraph will not apply
to the disclosure of general information about the Company of a kind normally
disclosed to prospective employers or to any information of a routine rather
than confidential, derogatory or proprietary nature.
9. The provisions of this agreement are severable, and if any part of it
is found to be unenforceable or in contravention of some applicable law or
regulation, including the Employee Retirement Income Security Act, or if any
payment or benefit hereunder would result in any disqualification or detriment
to any benefit plan of the Company, such provision will be deemed not to exist
but the other provisions will remain fully valid and enforceable. In the event
any provision is deemed not to exist by reason of this provision, the parties
agree that the Company will pay to George Powell an equivalent amount in cash.
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10. George Powell agrees that he will not disclose any information
concerning this agreement to anyone except his private attorneys, his spouse,
financial advisors and tax consultants, and only then if such individuals agree
to keep the information confidential. The Company agrees that it will not
disclose any information concerning this agreement to anyone except Company
officials requiring this information in fulfilling their duties to the Company,
except to the extent required by law or any applicable SEC regulations.
11. The Company represents and agrees that neither it nor its directors or
officers will make any derogatory, disparaging or false statements intended to
harm the business or personal reputation of George Powell. George Powell
represents and agrees that he will not make any derogatory, disparaging or
false statements intended to harm the business or personal reputation of the
Company, its directors, officers or employees.
12. George Powell agrees that should he breach any of the material
provisions of this agreement, he shall forfeit his right to any further
payments, benefits, or perquisites payable under this agreement and he shall
reimburse the Company for all payments received after he breached any of said
provisions. The question of whether such breach has occurred is subject to
arbitration pursuant to paragraph 13. If the arbitrator rules that the Company
wrongfully withheld such payment, then he may order the Company to make such
payments plus interest on each payment at the prime rate, accrued from the time
each such payment should have been made.
13. Any dispute between the parties hereto arising out of, in connection
with, or relating to this agreement and its specific subject matter 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 in the event either party fails 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 seven potential arbitrators. In the event
the parties do not agree upon an arbitrator, each party shall, in turn, strike
one arbitrator from the list, George Powell having the first strike, until only
one arbitrator remains, who shall arbitrate the dispute. The arbitration
hearing shall be conducted within 30 days of the selection of an arbitrator or
at the earliest date thereafter that the arbitrator is available.
14. This agreement shall be construed pursuant to the laws of the State of
Kansas.
15. George Powell has been advised, and he understands, that he has the
right to consult, and should consult, an attorney before signing this document.
Further, the parties agree that George Powell has been offered at least 21
days within which to consider the agreement.
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16. George Powell states that he has read this document and in signing the
agreement and release has relied upon no promise or promise of benefit not
expressly set forth herein. He agrees that he is entitled to no benefit under
this agreement except as specifically and expressly set forth herein.
17. After signing this agreement, for a period of seven days, George
Powell may revoke this agreement, and it shall not be enforceable or effective
until after the passing of such seven days.
YELLOW CORPORATION
BY___________________________
ATTEST:
____________________________
________________________
George E. Powell III
Dated:________________________________