Exhibit 10.1
RETENTION PAYMENT,
NON-COMPETITION, NON-SOLICITATION,
NON-DISPARAGEMENT, AND
CONFIDENTIALITY AGREEMENT
Dear Michael J. Smid:
YRC Worldwide Inc., a Delaware
corporation (“ YRCW ”), has determined that you
are important to the operation of the business of YRCW and its
affiliates. As such, YRCW desires to provide you with an incentive
to remain employed with YRCW through and after April 7, 2013.
Accordingly, YRCW is pleased to offer you the opportunity to
receive the Additional SEPP Retention Payment (defined below)
described in this Retention Payment, Non-Competition,
Non-Solicitation, Non-Disparagement, and Confidentiality Agreement
(this “ Agreement ”), subject to the terms and
conditions set forth below.
In addition, in the course of your
work, you will, or have, become aware of information of a
confidential nature pertaining to the business of YRCW. YRCW
maintains policies and procedures with respect to the use and the
dissemination of confidential information. Your employment creates
a relationship of confidence and trust between you and YRCW with
respect to any information applicable to the business of YRCW which
may be, or has been, made known to you by YRCW or learned by you in
the course of your work. You understand that you have an obligation
to preserve the confidentiality of such information and use it only
for the purpose for which it was obtained.
In consideration for the Additional
SEPP Retention Payment and confidential information, the receipt
and adequacy of which are hereby acknowledged, you understand and
agree that your undertakings set forth below are material and
essential terms to YRCW, and accordingly you expressly agree
that:
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1.
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Additional
SEPP Retention Payment .
Subject to the terms and restrictions set forth in this paragraph,
your benefit under the YRC Worldwide Inc. Supplemental Executive
Pension Plan (the “ SEPP ”) shall be determined
as follows:
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a.
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Employment
Through April 7, 2011 . If you remain continuously employed by YRCW or
one of its affiliates through and after April 7, 2011 but not
through April 7, 2012, the amount determined under
Section 3.1(a) of the SEPP shall be calculated under the
Underlying Pension Plans and Transferee SRP (if applicable) (each
as defined in the SEPP) using an early retirement actuarial
reduction factor of 40 percent (40%) (the additional amount
payable under the SEPP that is derived by using the reduced early
retirement actuarial reduction factor as provided in this
Paragraph 1.a or Paragraph 1.b below is referred to
herein as the “ Additional SEPP Retention Payment
”); and
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b.
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Employment
Through April 7, 2012 . If you remain continuously employed by YRCW or
one of its affiliates through and after April 7, 2012 but not
through April 7, 2013, the amount determined under
Section 3.1(a) of the SEPP shall be calculated under the
Underlying Pension Plans and Transferee SRP (if applicable) using
an early retirement actuarial reduction factor of 20 percent
(20%).
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c.
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Death or
Disability Prior to April 7, 2013 . If you die or become Disabled (as defined in
the Underlying Pension Plans) prior to April 7, 2013 and while
employed by YRCW or one of its affiliates, the amount determined
under Section 3.1(a) of the SEPP shall be calculated under the
Underlying Pension Plans and Transferee SRP (if applicable) using
an early retirement actuarial reduction factor of 0 percent
(0%).
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1
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2.
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Termination
Prior to April 7, 2013 . If your employment with YRCW ends as a result
of your termination by YRCW with Cause or if you breach any
applicable provision of this Agreement, you will not receive or
continue to receive the Additional SEPP Retention Payment as
described in Paragraph 1. If your employment is terminated by
YRCW without Cause before April 7, 2011, the Additional SEPP
Retention Payment described under Paragraph 1.a will vest and
you will be paid or continue to be paid the Additional SEPP
Retention Payment described under Paragraph 1.a under the
terms of the SEPP. If your employment is terminated by YRCW without
Cause on or after April 7, 2011 or prior to April 7,
2013, the Additional SEPP Retention Payment described under
Paragraph 1.b will vest and you will be paid or continue to be
paid the Additional SEPP Retention Payment as described under
Paragraph 1.b under the terms of the SEPP.
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For purposes of this Agreement,
“Cause” shall mean any of the following: (i) your
conviction of a felony involving acts of dishonesty, fraud, or
moral turpitude; (ii) your willful or repeated failure to
perform your duties following 30 days notice of such failure and
your failure to cure within such 30 days; (iii) willful
misconduct material to your employment; (iv) material breach
of YRCW policies or rules of which you have been made aware
following 30 days notice of such breach and your failure to cure
within such 30 days; (v) your material and demonstrable
dishonesty related to your employment; or (vi) gross
negligence in the performance of your job duties. For purposes of
the Agreement, your employment with YRCW will not be considered
terminated without Cause unless the termination without Cause meets
the requirements of a “separation from service” as
defined in section 409A of the Internal Revenue Code of 1986, as
amended.
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3.
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Non-Competition . You acknowledge that the agreements and
covenants contained in this Paragraph 3 of this Agreement are
essential to protect the value of the business and assets of YRCW
and its affiliates and by your prior and continued employment with
YRCW you have obtained, and will continue to obtain, valuable
confidential information, knowledge, contacts, and experience, and
there is a substantial probability that such confidential
information, knowledge, contacts, and experience could be used to
the substantial advantage of a competitor of YRCW or its affiliates
to YRCW’s or its affiliates’ substantial detriment.
Therefore, you agree that so long as you are employed by YRCW and
for the period commencing as of the day of your termination with
YRCW, whether with or without Cause and whether
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