EXHIBIT 99
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and General Release ("Agreement") is
between Con-
way Freight Inc. ("Company") and David S. McClimon ("Executive").
The
parties agree that the effective date of this Agreement ("Effective
Date")
shall be as provided in Section 8, below.
1. Employment.
As of July 25, 2007
through February 1, 2008, Company
agrees that it will employ Executive, and Executive accepts
employment, as an
Advisor to Company, performing such services as Company may
require.
2. Compensation
and Benefits to Executive.
a. For the
period of July 25, 2007 through February 1, 2008,
Company shall pay Executive as salary the total gross sum of
$8,215
per week, less withholdings required by law or as required to
participate in Company benefit plans. Said payments will be made
at the times and in the manner provided by Company's standard
payroll practices.
b. Within
fourteen (14) days after the Effective Date of this
Agreement, Company shall make a special separation payment to
Executive in the total gross amount of $1,485,050.41, less
withholdings required by law.
c. On February
1, 2008, Executive will be paid out the value of
his unused vacation and/or "paid time off" ("PTO") benefits
accrued
through that date, less withholdings required by law. Executive's
total accrued and unused vacation and PTO balance as of February
1,
2008, prior to required withholdings, will be $98,859.
d. For the
period July 25, 2007 through February 1, 2008,
Executive shall continue to have the use of the
Company-provided
automobile available to him for his use immediately preceding
the
Effective Date of this Agreement. On February 2, 2008,
Company
will transfer title to the automobile to Executive. Executive
understands and agrees that during the remainder of his
employment
with Company he remains bound by all provisions of the
Company's
Automobile Policy Manual.
e. The parties
agree that, for the period July 25, 2007 through
December 31, 2007, Executive's rights to participate in and
receive
benefits under Company's retirement, supplemental excess
retirement, health insurance, life insurance, and long term
care
insurance plans will not diminish due to his change of status as
of
July 25, 2007.
Executive understands and agrees that he will not
be eligible to participate in any of these plans following
December
31, 2007, except to the extent allowed or required under COBRA,
as
a former employee under the retirement and supplemental excess
retirement plans, or if converted to individual coverage at
Employee's expense as allowed by an applicable plan. If done
timely in accordance with the applicable plans, Executive may
transition his and his family's coverage under the current long
term care and life insurance policies sponsored by Company to
individual coverage at the same premium rates he would have
received as a covered employee under these plans; however,
Executive understands and agrees that he is only eligible to
transition up to $750,000 in coverage under the life insurance
policy at these rates.
f. Nothing in
this Agreement shall limit, diminish, enlarge, or
otherwise modify any rights and benefits Executive had as of
July
24, 2007 under
Company's compensation
plans, including
participation in Company's: Value Management Plan for the
three-
year cycle
ending December 31,
2007; Deferred Compensation Plan,
although Executive understands and agrees that he will not be
eligible to defer 2008 income under the terms of that Plan; the
1997 Equity and Incentive Plan, including equity grants
thereunder;
and the 2006 Equity and Incentive Plan, and equity grants
thereunder, although Executive understands and agrees that he
will
not receive dividends on unvested restricted stock granted in
January 2007 under that Plan. Executive understands and
agrees
that for the remainder of his employment with Company he
remains
bound by any and all trading restrictions placed on him by
Company.
Company agrees that Executive's relevant Stock Option
Agreements
shall be amended to allow Executive to vest the options that he
would otherwise have vested as an active employee in January,
2008,
and to extend his right exercise all vested options through
August
1, 2008.
g. The parties
agree that nothing in this Agreement shall limit,
diminish, enlarge, or otherwise modify Executive's rights and
benefits, if any, as a participant in Company's standard annual
Incentive Compensation Plan for 2007. Executive's payout, if any,
for 2007 shall be made at his participation factor for 2007 of
seventy-five (75) percent of his annual base salary, calculated
as
required under the terms of the Incentive Compensation Plan for
2007 based on Company's performance against the goals stated in
that Plan.
h. Executive
agrees that this Agreement shall supersede and
extinguish any current or prior agreements with Company and/or
its
parent, subsidiaries or affiliates for compensation or benefits
that might otherwise be payable to Executive in the event of a
change in control, including his Severance Agreement with
Con-way
Transportation Services Inc. (now known as Con-way Freight).
Executive expressly waives any rights he may have under such
agreements, including but not limited to any claim that any
stock
options or restricted stock awards are or were subject to
accelerated vesting as a result of any change in control.
3. Covenants and
Commitments by the Parties:
a.
Executive agrees that he will resign, effective July 25,
2007, any and all officer and director positions with the
Company
and its parent, subsidiary and affiliated entities and joint
ventures. Executive
shall execute any formal documentation
required to document these resignations. Executive represents and
agrees that he will terminate his employment with Company,
effective February 1, 2008.
b.
Executive will not at any time, without the prior
written consent of Company, either directly or indirectly use,
divulge or communicate to any person or entity, in any manner,
any
Company, or its parent's, subsidiaries' or other affiliates',
privileged [we don't agree to limit this language to attorney-
client privilege], confidential, or proprietary information
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.
This prohibition against disclosure
includes, but is not limited to, Company's and its parent's,
subsidiaries' or other affiliates' 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 Company prompt notice so that Company may object or take
steps
to prevent such disclosure.
c. Executive
will, for so long as Company may require, fully
cooperate with Company in handling its legal and other matters
in
which he was involved or about which he has knowledge, such as
answering inquiries from Company or its counsel, testifying in
depositions and trials, and engaging in other efforts on behalf
of
Company and its parent, subsidiaries and affiliated companies.
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 Company having to serve him with a
subpoena.
Executive expressly agrees that he will not be entitled to
compensation, of any type or in any amount, for any of his time
expended in traveling for purposes of giving testimony, being
prepared for
giving testimony, and/or testifying in such
proceedings;
provided, however, that Company agrees to reimburse
Executive for reasonable out-of-pocket costs and expenses he
incurs
as a result of his obligation to cooperate as provided herein.
Moreover, except for time directly related to Executiv
