CNF INC.
EXECUTIVE SEVERANCE PLAN
(Amended and Restated as of January 1, 2006)
Table of Contents
1. Definitions...............................1
2. Severance Payments and Benefits...........7
3. Notice of Termination.....................9
4. Plan Administration.......................9
5. Plan Modification or Termination.........10
6. General Provisions.......................10
Exhibit A - Waiver and Release of Claims.....12
Exhibit B - Adoption Agreement...............14
1. DEFINITIONS. As hereinafter used:
"Affiliate" means an affiliate of the Company, as defined in Rule 12b-2
promulgated under Section 12 of the Exchange Act, including any Business
Unit.
"Annual Bonus" means the annual bonus payable with respect to a calendar
year under the ICP (Incentive Compensation Plan) applicable to an
Executive or other applicable annual bonus arrangement, determined as if
such Annual Bonus had been earned to the extent of 100% of the
Executive's target bonus opportunity, as opposed to the maximum 200%.
The Annual Bonus does not include any amount payable under the CNF Inc.
Value Management Plan or any other long-term incentive plan.
"Board" means the Board of Directors of the Company.
"Business Unit" is defined in Section 2 of the EIP.
"Cause" for termination by the Employer of the Executive's employment
means (i) the willful and continued failure by the Executive to
substantially perform the Executive's duties with the Employer (other
than any such failure resulting from the Executive's incapacity due to
disability, including physical or mental illness or any such actual or
anticipated failure after the issuance by the Executive of a notice of
intent to terminate employment for Good Reason, as provided in the
definition of Good Reason) after a written demand for substantial
performance is delivered to the Executive by the Employer's Chief
Executive Officer, which demand specifically identifies the manner in
which the Chief Executive Officer believes that the Executive has not
substantially performed the Executive's duties, or (ii) the willful
engaging by the Executive in conduct which is demonstrably and
materially injurious to the Employer, the Company or an Affiliate,
monetarily or otherwise. For purposes of clauses (i) and (ii) of this
definition, no act, or failure to act, on the Executive's part shall be
deemed "willful" unless done, or omitted to be done, by the Executive
not in good faith and without reasonable belief that the Executive's
act, or failure to act, was in the best interest of the Employer, the
Company or an Affiliate. In the event of a dispute concerning the
application of this provision, no claim by the Employer that Cause
exists shall be given effect unless the Employer establishes (iii) to
the Plan Administrator and (iv) in the event of an arbitration to
resolve the dispute, to the arbitrator, by clear and convincing evidence
that Cause exists.
"Change in Control" means the occurrence of any one of the events
described in clauses (a) through (d) of the definition of "Change in
Control" in Section 2 of the EIP or the occurrence of the event
described in the following clause (e), which shall apply for purposes of
this Plan instead of clause (e) of the definition of "Change in Control"
in Section 2 of the EIP:
(e) Disposition of a Business Unit. There is consummated the
Disposition of a Business Unit; provided, however, that this clause
(e) shall apply only to an Executive who immediately prior to the
Disposition of a Business Unit was employed by (and on the payroll
of) the Business Unit that was the subject of the Disposition of a
Business Unit.
The following Examples illustrate clause (e):
Example 1. The ownership interests of Business Unit X are sold to
an unrelated purchaser. Executive A was employed by (and on the
payroll of) Business Unit X immediately prior to the sale. A Change
in Control has taken place with respect to Executive A.
Example 2. The assets of Business Unit Y are sold to an unrelated
purchaser. Executive B was employed by (and on the payroll of)
Business Unit Y immediately prior to the sale. A Change in Control
has taken place with respect to Executive B.
Example 3. Executive C is employed by (and on the payroll of) a
Business Unit as described in either Example 1 or 2, except that
Executive C remains employed by (and on the payroll of) a Business
Unit that continues to be a Business Unit of the Company following
the sale. A Change in Control has taken place with respect to
Executive C.
Because the EIP is not intended to serve the same purpose as the Plan,
whether a "Change in Control" has taken place under the EIP does not
determine whether benefits are payable under the Plan. For example, in
Example 3, a Change in Control took place for Executive C under the
Plan, but no Change in Control took place for Executive C under the EIP.
If Executive C terminates employment six months after the Change in
Control occurred under the Plan, Executive C may or may not be entitled
to benefits under the Plan, depending on the facts surrounding the
termination of employment. However, no Change in Control would take
place under the EIP with respect to Executive C under the facts of
Example 3, whether or not benefits are due under the Plan.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Company" means CNF Inc., a corporation organized under the laws of the
State of Delaware, or any successor corporation.
"Disposition of a Business Unit" is defined in Section 2 of the EIP.
"EIP" means the CNF Inc. 1997 Equity and Incentive Plan, as amended from
time to time, or any successor plan.
"Eligible Executive" means an Executive who, immediately prior to a
Change in Control (i) is an employee of (and on the payroll of) the
Employer, (ii) is not a party to an individual employment or severance
agreement with the Employer, and (iii) occupies a position that has been
classified within the CNF Inc. executive level salary grade structure.
"Employer" means the Company or any subsidiary of the Company that
adopts the Plan with the written approval of the Company. A draft
adoption form is attached as Exhibit B. The Employer also includes any
successor company that assumes the Plan or a portion of the Plan. An
Employer will cease to be an Employer with respect to future periods if
(i) it withdraws from the Plan by notice to the Company, (ii) it ceases
to be a subsidiary of the Company or (iii) the Company notifies it that
it is no longer an Employer.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and as now or hereafter construed, interpreted and
applied by regulations, rulings and cases.
"Executive" means an individual who, immediately prior to a Change in
Control, is an Eligible Executive.
"Good Reason" for termination by the Executive of the Executive's
employment shall mean the occurrence (without the Executive's express
written consent) after any Change in Control of any one of the following
acts by the Employer, or failures by the Employer to act, unless such
act or failure to act is corrected within 30 days of receipt by the
Employer of notice of the Executive's intent to terminate for Good
Reason hereunder:
(1) the failure of the successor company, following the Change in
Control, to assume the Plan (or that portion of the Plan that
applies to the Business Unit affected by the Change in Control) and
all obligations thereunder, as of the date of such Change in
Control;
(2) the assignment to the Executive of duties inconsistent with the
Executive's status as an executive of the Employer or a substantial
adverse alteration in the nature or status of the Executive's
responsibilities from those in effect immediately prior to the
Change in Control;
(3) a reduction by the Employer in the Executive's base salary, cash
bonus opportunity, or long-term incentive opportunity, each as in
effect immediately prior to the Change in Control or as the same
may thereafter be increased from time to time;
(4) the relocation of the Executive's principal place of employment to
a location that results in an increase in the Executive's one-way
commute of at least 50 miles more than the Executive's one way
commute immediately prior to the Change in Control,
(5) a substantial increase in the Executive's business travel
obligations from the Executive's business travel obligations
immediately prior to the Change in Control;
(6) the failure by the Employer to pay to the Executive when due any
portion of the Executive's current compensation;
(7) the failure by the Employer to continue to provide the Executive
with benefits substantially similar to those enjoyed by the
Executive under any of the Employer's pension, savings, life
insurance, medical, health and accident, or disability plans in
which the Executive was participating immediately prior to the
Change in Control (except for across-the-board changes similarly
affecting all or substantially all employees of the Employer and
any entity in control of the Employer), the taking of any other
action by the Employer which would directly or indirectly
materially reduce any of such benefits or deprive the Executive of
any material fringe benefit enjoyed by the Executive immediately
prior to the Change in Control, or the failure by the Employer to
provide the Executive with the number of paid vacation days or PTO
days (days of paid time off) to which the Executive was entitled.
If a Change in Control takes place with respect to the Executive solely
because of the Disposition of a Business Unit as described in clause (e)
of the definition of Change in Control in this Plan and the Executive
continues to be employed by the Company or an Affiliate, but the
position the Executive previously held is no longer needed, then, for
purposes of determining whether there is a substantial adverse
alteration in the nature or status of the Executive's responsibilities
under clause (2) above, all the facts and circumstances shall be taken
into account, and no single or selected set of facts shall be
determinative. In particular, if the Executive receives a bona fide
offer of a new or different position with the Company or an Affiliate,
the fact or set of facts that, under the Executive's new or different
position, fewer employees may be supervised and/or fewer functional
areas may be within the Executive's span of control shall not be
determinative.
The Executive's right to terminate the Executive's employment for Good
Reason shall not be affected by the Executive's incapacity due to
disability, including physical or mental illness, except as provided in
the penultimate paragraph of the definition of Severance.
If Good Reason first occurs during the last 30 days of the one-year
period specified in the definition of "Severance" and the Executive
gives notice of the Executive's intent to terminate for Good Reason
before the expiration of such period, the correction period referred to
in the first sentence of this definition of Good Reason shall end on the
date of termination specified in Section 3.3(2).
The Executive's continued employment after Good Reason occurs shall not
constitute consent to, or a waiver of rights with respect to, any act or
failure to act constituting Good Reason hereunder.
"Person" means any person, as such term is used in Sections 13(d) and
14(d) of the Exchange Act (other than (i) the Company or its Affiliates,
(ii) any trustee or other fiduciary holding securities under an employee
benefit plan of the Company or its Affiliates, and (iii) any corporation
owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of the Common
Stock).
"Plan" means this CNF Inc. Executive Severance Plan, as amended from
time to time.
"Plan Administrator" means, prior to a Change in Control, the person or
persons appointed from time to time by the Board (for all purposes or
for specific purposes stated by the Board) and following a Change in
Control, a committee consisting of three persons, at least two of whom
were directors or executive officers of the Company immediately prior to
the Change in Control (for all purposes).
"Potential Change in Control" shall be deemed to have occurred if:
(1) the Company or any Affiliate enters into an agreement, the
consummation of which would result in the occurrence of a Change in
Control;
(2) the Company or any "person," as such term is used in Sections 13(d)
and 14(d) of the Exchange Act publicly announces an intention to
take or to consider actions, including but not limited to proxy
contests or consent solicitations, which, if consummated, would
constitute a Change in Control;
(3) any Person becomes the beneficial owner (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of
the Company representing 15% or more of either the then outstanding
shares of the common stock, par value $0.625 per share, of the
Company or the combined voting power of the Company's then
outstanding securities (not including in the securities
beneficially owned by such Person any securities acquired directly
from the Company or its Affiliates); or
(4) the Board or the Board of Directors of the Employer if the Employer
is other than the Company adopts a resolution to the effect that,
for purposes of this Plan, a Potential Change in Control has
occurred.
If the Potential Change in Control referred to in clause (1) or (2)
would arise because of an event described in clause (e) in the
definition of Change in Control, the Potential Change in Control shall
apply only to Executives who are employed by (and on the payroll of) the
Business Unit that would be the subject of the Disposition of a Business
Unit.
"Severance" means the termination of an Executive's employment with the
Employer on or within one year immediately following the date of the
Change in Control (subject to extension pursuant to Section 3.3(2)), (i)
by the Employer other than for Cause, or (ii) by the Executive for Good
Reason.
For purposes of this Plan, an Executive's employment shall be deemed to
have been terminated following a Change in Control by the Employer
without Cause or by the Executive with Good Reason if (i) the
Executive's employment is terminated by the Employer without Cause
following a Potential Change in Control but prior to a Change in Control
(whether or not a Change in Control ever occurs) and such termination
was at the request or direction of a Person who has entered into an
agreement with the Company or Affiliate the consummation of which would
constitute a Change in Control, (ii) the Executive terminates employment
for Good Reason following a Potential Change in Control but prior to a
Change in Control (whether or not a Change in Control ever occurs) and
the circumstance or event which constitutes Good Reason occurs at the
request or direction of such Person; or (iii) the Executive's employment
is terminated by the Employer without Cause or by the Executive for Good
Reason and such termination or the circumstance or event which
constitutes Good Reason is otherwise in connection with or in
anticipation of a Change in Control (whether or not a Change in Control
ever occurs). For purposes of this paragraph, a Change in Control shall
be deemed to have occurred for purposes of the definition of Good Reason
if a Potential Change in Control has occurred or if the termination or
the circumstance or event which would constitute Good Reason if a Change
in Control had occurred is in connection with or in anticipation of a
Change in Control (whether or not a Change in Control ever occurs).
An Executive will not be considered to have incurred a Severance (i) if
the Executive's employment is discontinued by reason of the Executive's
death or disability, including a physical or mental condition causing
such Executive's inability to substantially perform the Executive's
duties with the Employer for a period of six consecutive months or (ii)
by reason of the divestiture of a facility, sale of a business or
business unit, or the outsourcing of a business activity with which the
Executive is affiliated, notwithstanding the fact that such divestiture,
sale or outsourcing constitutes, or takes place within one year
following, a Change in Control, if the Executive is offered a position
with the successor company that, if accepted, would not give rise to
Good Reason, and such successor company agrees to assume the obligations
of this Plan with respect to such Executive.
If any benefits provided to an Executive under the Plan are treated as
deferred compensation subject to Code section 409A, the Executive will
not be considered to have incurred a Severance until the Executive
incurs a "separation from service," becomes "disabled," or dies;
provided, however, that if an "unforseeable emergency" occurs, the
Severance Payment may be made to the extent permitted by Code section
409A(a)(2)(B)(ii)(II). (The terms quoted in the immediately-preceding
sentence have the meanings set forth in Code section 409A(a)(2)(A).)
"Severance Benefits" means:
(1) life, disability and accident benefits substantially similar to
those provided to the Executive and the Executive's dependents
immediately prior to the Severance or, if more favorable to the
Executive, immediately prior to the Change in Control, at no
greater cost to the Executive than the cost to the Executive
immediately prior to the Severance or the Change in Control;
provided, however, that, unless the Change in Control took place
because of the event described in clause (e) of the definition of
Change in Control in this Plan, the Employer may apply to such
benefits any across the board changes similarly affecting all or
substantially all employees participating in such benefits;
(2) health and dental benefits provided to the Executive and the
Executive's dependents under the Company's health and dental plan
as in effect immediately prior to the Severance or, if more
favorable to the Executive, those provided to the Executive and the
Executive's dependents immediately prior to the Change in Control,
at no cost to the Executive; and
(3) outplacement services determined by the Company to be suitable to
the Executive's position, at no cost to the Executive;
in each case for a period of one year following such Executive's
Severance Date; provided, however, that
(4) benefits otherwise receivable pursuant to (1) and (2) shall be
reduced to the extent benefits of the same type are received by or
made available to the Executive or the Executive's dependents
following the Executive's termination of employment (and any such
benefits shall be reported to the Employer by the Executive);
(5) the Employer shall reimburse the Executive for the excess, if any,
of the cost to the Executive of benefits received or made available
pursuant to (1) and (2) over such cost immediately prior to the
Severance or, if more favorable to the Executive, immediately prior
to the Change in Control;
(6) if the Executive dies, the Employer shall continue to provide the
Executive's dependents with the benefits otherwise receivable
pursuant to (1) and (2) on the same basis as if the Executive had
survived; and
(7) if any such benefits are treated as deferred compensation subject
to Code section 409A, the Executive shall pay the full cost of such
benefits for the first six months after the Severance Date and the
Employer shall reimburse the Executive for such payments as soon as
practicable thereafter.
"Severance Date" means the date on which an Executive incurs a
Severance, which should be the date of termination as determined under
Section 3.3.
"Severance Payment" means a payment, in lieu of any other severance
payment or benefit pursuant to any other plan or agreement of the
Employer, the Company or any Affiliate to which the Executive is
otherwise entitled, of an amount equal to the sum of (i) the Executive's
annual base salary immediately prior to the time of Severance or, if
higher, in effect immediately prior to the Change in Control and (ii)
the Executive's Annual Bonus for the calendar year in which the Change
in Control occurred.
2. SEVERANCE PAYMENTS AND BENEFITS.
2.1 An Executive who incurs a Severance shall be entitled to receive
from the Employer (i) the Severance Payment and (ii) Severance
Benefits. If the Employer is not the Company, the Employer does not
provide the Severance Payment and the Severance Benefits and the
Severance is related to a Change in Control or a Potential Change
in Control that occurred other than because of the Disposition of a
Business Unit as provided in clause (e) of the definition of Change
in Control, the Company shall fulfill the obligations of the
Employer under the Plan, and the Executive need not exhaust the
remedies provided in Section 2.4 and 2.5 against the Employer
before being entitled to receive the Severance Payment and the
Severance Benefits from the Company.
2.2 The Employer shall pay the Severance Payment to the Executive in a
cash lump sum, on the date that is 6 months after the Severance
Date or as soon as practicable thereafter, but in no event later
than 10 business days immediately following such date.
2.3 No Executive shall be eligible to receive a Severance Payment or
Severance Benefits under the Plan unless the Executive (or, in the
event of the death of the Executive, the executor, personal
representative or administrator of the Executive's estate) first
executes and delivers to the Employer, within 6 months after the
Severance Date, a written release substantially in the form
attached as Exhibit A hereto.
2.4 In the event that any person believes that he or she is not
receiving the full benefits to which he or she is entitled under
this Plan, such person may make a claim to the Plan Administrator,
and the claims procedure set forth in Section 8 of the EIP shall
apply with the Plan Administrator treated as the Committee).
2.5 Any further dispute or controversy arising under or in connection
with the Plan which remains after the final decision of the Plan
Administrator as contemplated by Section 2.4 shall be finally
settled exclusively by arbitration in San Francisco, California, in
accordance with the rules of the American Arbitration Association
then in effect; provided, however, that the clear and convincing
evidentiary standard set forth in the definition of Cause in this
Plan shall apply; and provided further, that the arbitrator shall
apply the applicable provisions of ERISA, and applicable
regulations adopted thereunder, in such arbitration proceeding.
Judgment may be entered on the arbitrator's award in any court
having jurisdiction.
2.6 The Employer shall pay to the Executive all legal fees and expenses
incurred by the Executive in seeking in good faith to obtain or
enforce any benefit or right provided by this Plan. Such payments
shall be made within five (5) business days after delivery of the
Executive's written requests for payment accompanied with such
evidence of fees and expenses incurred as the Employer reasonably
may require. The Employer shall not be obligated to pay legal fees
and expenses incurred by any person other than the Executive.
However, the Employer shall be obligated to pay legal fees and
expenses incurred by the Executive on behalf of the Executive's
dependents and legal fees and expenses incurred by the estate of
the Executive on behalf of the Executive or the Executive's
dependents.
2.7 The Employer shall be entitled to withhold from amounts to be paid
to the Executive hereunder any federal, state or local withholding
or other taxes or charges which it is from time to time required to
withhold.
2.8 The Employer agrees that, if the Executive's employment with the
Employer terminates during the one year period following a Change
in Control that is applicable to the Executive, the Executive is
not required to seek other employment or to attempt in any way to
reduce any amounts payable to the Executive hereunder. Further, the
amount of any payment or benefit provided for in this Plan shall
not be reduced (except as provided in clause (4) of the definition
of Severance Benefits) by any compensation earned by the Executive
as the result of employment by another employer, by retirement
benefits, by offset against any amount claimed to be owed by the
Executive to the Employer, or otherwise.
2.9 This Plan shall apply to an Executive employed by Vector SCM, LLC
("Vector") with the following changes:
(1) This Plan shall be interpreted as if Vector were an Employer
even though Vector has not adopted the Plan. However, the
obligations of Vector as Employer shall be fulfilled by the
Company, not by Vector.
(2) The term "Executive" shall be redefined as an individual who,
immediately prior to a Change in Control, (i) is an employee
of Vector, (ii) is not a party to an individual employment or
severance agreement with the Company or an Affiliate, and
(iii) occupies a position that has been classified as within
the CNF Inc. executive level salary grade structure.
(3) Clause (e) of the definition of Change in Control in this Plan
shall not apply to the Executive.
3. NOTICE OF TERMINATION.
3.1 Any purported termination of an Executive's employment (other than
by reason of death) on or within one year immediately following the
date of a Change in Control (subject to extension pursuant to
Section 3.3(2)) shall be communicated by written notice of
termination from the Executive to the Employer (if the termination
is for Good Reason) or the Employer to the Executive (whether or
not the termination is for Cause) in accordance with Section 6.9.
3.2 The notice of termination shall indicate the specific provisions in
the Plan relied upon and shall set forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination
of the Executive's employment under the provision so indicated.
3.3 The notice of termination shall specify the date of termination
which, in the case of a termination by the Employer, shall not be
less than thirty (30) days (except in the case of a termination for
Cause) and, in the case of a termination by the Executive, shall
not be less than thirty (30) days nor more than sixty (60) days,
respectively, from the date such notice of termination is given.
(1) Once the Employer or the Executive has specified a date of
termination in a notice of termination, the date of
termination cannot be changed by the Employer or the Executive
except by mutual consent.
(2) The date of termination must be at least 30 days after the
notice of termination unless the termination is for Good
Reason and Good Reason first occurs during the last 30 days of
the one-year period immediately following the date of a Change
in Control, in which event the date of termination shall be
(i) the end of such one-year period if the Employer receives
notice of the Executive's intent to terminate for Good Reason
ten days or more before the end of the one-year period or (ii)
the later of ten days after receipt by the Employer of notice
of the Executive's intent to terminate for Good Reason or five
days after the end of such one-year period if the Employer
does not receive notice of the Executive's intent to terminate
for Good Reason ten days or more before the end of the one-
year period.
4. PLAN ADMINISTRATION.
4.1 The Plan shall be interpreted, administered and operated by the
Plan Administrator, who shall have complete authority, in its sole
discretion subject to the express provisions of the Plan, to
interpret the Plan, to prescribe, amend and rescind rules and
regulations relating to it, and to make all other determinations
necessary or advisable for the administration of the Plan.
4.2 All questions of any character whatsoever arising in connection
with the interpretation of the Plan or its administration or
operation shall be submitted to and settled and determined by the
Plan Administrator in an equitable and fair manner in accordance
with the procedure for claims and appeals described in Section 2.4.
Subject to the rights to arbitration provided in Section 2.5
hereof, any such settlement and determination shall be final and
conclusive, and shall bind and may be relied upon by the Employer,
each of the Executives and all other parties in interest.
4.3 The Plan Administrator may delegate any of its duties hereunder to
such person or persons as it may designate from time to time.
4.4 The Plan Administrator is empowered, on behalf of the Plan, to
engage accountants, legal counsel and such other personnel as it
deems necessary or advisable to assist it in the performance of its
duties under the Plan. The functions of any such persons engaged by
the Plan Administrator shall be limited to the specified services
and duties for which they are engaged, and such persons shall have
no other duties, obligations or responsibilities under the Plan.
Such persons shall exercise no discretionary authority or
discretionary control respecting the management of the Plan. All
reasonable expenses thereof shall be borne by the Employer.
5. PLAN MODIFICATION OR TERMINATION.
The Plan may be amended or terminated by the Board or a duly appointed
committee of the Board at any time; provided, however, that during the
pendency of and within six (6) months following the cessation of a
Potential Change in Control and within one year following a Change in
Control, the Plan may not be terminated nor may any amendment be adopted
which is in any manner adverse to the interests of Executives.
6. GENERAL PROVISIONS.
6.1 Except as otherwise provided herein or by law, no right or interest
of any Executive under the Plan shall be assignable or
transferable, in whole or in part, either directly or by operation
of law or otherwise, including without limitation by execution,
levy, garnishment, attachment, pledge or in any manner; no
attempted assignment or transfer thereof shall be effective; and no
right or interest of any Executive under the Plan shall be liable
for, or subject to, any obligation or liability of such Executive.
When a payment is due under this Plan to an Executive who is unable
to care for his or her affairs, payment may be made directly to the
Executive's legal guardian or personal representative.
6.2 If the Employer, the Company or any Affiliate is obligated pursuant
to applicable law or by virtue of being a party to a contract
(other than this Plan) to pay severance pay, a termination
indemnity, notice pay or the like or if the Employer, the Company
or any Affiliate is obligated by law to provide advance notice of
separation ("Notice Period"), then any Severance Payment hereunder
shall be reduced by the amount of any such severance pay,
termination indemnity, notice pay or the like, as applicable, and
by the amount of any compensation received during any Notice
Period.
6.3 Neither the establishment of the Plan, nor any modification
thereof, nor the creation of any fund, trust or account, nor the
payment of any benefits shall be construed as giving any Executive,
or any person whomsoever, the right to be retained in the service
of the Employer, and all Executives shall remain subject to
discharge to the same extent as if the Plan had never been adopted.
6.4 If any provision of this Plan shall be held invalid or
unenforceable, such invalidity or unenforceability shall not affect
any other provisions hereof, and this Plan shall be construed and
enforced as if such provisions had not been included.
6.5 If any provision of this Plan would cause compensation to be
includible in an Executive's income pursuant to Code section
409A(a)(1)(A), such provision shall be void, and the Board or a
duly appointed committee of the Board shall amend the Plan
retroactively in such a way as to achieve substantially similar
economic results without causing such inclusion. In any event, the
Executive will be solely responsible for any adverse tax
consequences to the Executive.
6.6 This Plan shall be binding upon and shall inure to the benefit of
and be enforceable by the Employer and its successors and assigns,
and by each Executive and by the personal and legal
representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees of each Executive. If any
Executive shall die while any amount would still be payable to such
Executive (other than amounts which, by their terms, terminate upon
the death of the Executive) if the Executive had continued to live,
all such amounts, unless otherwise provided herein, shall be paid
in accordance with the terms of this Plan to the executors,
personal representatives or administrators of the Executive's
estate.
6.7 The headings and captions herein are provided for reference and
convenience only, shall not be considered part of the Plan, and
shall not be employed in the construction of the Plan.
6.8 The Plan shall not be funded. No Executive shall have any right to,
or interest in, any assets of any Employer which may be applied by
the Employer to the payment of benefits or other rights under this
Plan.
6.9 All notices and all other communications provided for in this Plan
(i) shall be in writing, (ii) shall be hand delivered, sent by
overnight courier or by United States registered mail, return
receipt requested and postage prepaid, addressed, in the case of
the Employer, to the principal office of the Employer, attention
President, and in the case of the Company, to 2855 Campus Drive,
San Mateo, California 94403, attention General Counsel, and in the
case of an Executive, to the last known address of such Executive,
and (iii) shall be effective only upon actual receipt.
6.10 This Plan shall be construed and enforced according to the laws of
the State of Delaware (without giving effect to the conflict of
laws principles thereof) to the extent not preempted by federal
law, which shall otherwise control.
CNF Inc.
By:______________________________________
Jennifer W. Pileggi
Senior Vice President, General Counsel and
Secretary
CNF Inc. Executive Severance Plan
Executed: ___________________
EXHIBIT A
WAIVER AND RELEASE OF CLAIMS
In consideration of, and subject to, the payment to be made to me by
____________ (the "Employer") of the "Severance Payment" (as defined in the
CNF Inc. Executive Severance Plan (the "Plan")), I hereby waive any claims I
may have for employment or re-employment by the Employer or any parent or
subsidiary of the Employer after the date hereof, and I further agree to and
do release and forever discharge the Employer and any parent or subsidiary of
the Employer, and their respective past and present officers, directors,
shareholders, insurers, employees and agents from any and all claims and
causes of action, known or unknown, arising out of or relating to my
employment with the Employer or any parent or subsidiary of the Employer, or
the termination thereof, including, but not limited to, wrongful discharge,
breach of contract, tort, fraud, the Civil Rights Acts, Age Discrimination in
Employment Act, Employee Retirement Income Security Act of 1974, Americans
with Disabilities Act, or any other federal, state or local legislation or
common law relating to employment or discrimination in employment or
otherwise.
Notwithstanding the foregoing or any other provision hereof, nothing in this
Waiver and Release of Claims shall adversely affect (i) my rights to
Severance Benefits under the Plan; (ii) my rights to benefits other than
severance payments or benefits under plans, programs and arrangements of the
Employer or any parent or subsidiary of the Employer; or (iii) my rights to
indemnification under any indemnification agreement, applicable law or the
certificates of incorporation or bylaws of the Employer or any parent or
subsidiary of the Employer, (iv) my rights under any director's and officers'
liability insurance policy covering me, (v) my workers compensation rights,
or (vi) my unemployment insurance rights.
I acknowledge that I have signed this Waiver and Release of Claims
voluntarily, knowingly, of my own free will and without reservation or
duress, and that no promises or representations have been made to me by any
person to induce me to do so other than the promise of payment set forth in
the first paragraph above and the Employer's acknowledgment of my rights
reserved under the second paragraph above.
I understand that this release will be deemed to be an application for
benefits under the Plan and that my entitlement thereto shall be governed by
the terms and conditions of the Plan. I expressly hereby consent to such
terms and conditions.
I acknowledge that I have been given not less than forty-five (45) days to
review and consider this Waiver and Release of Claims (unless I have signed a
written waiver of such review and consideration period), and that I have had
the opportunity to consult with an attorney or other advisor of my choice and
have been advised by the Company to do so if I choose. I may revoke this
Waiver and Release of Claims seven days or less after its execution by
providing written notice to the Employer.
I acknowledge that it is my intention and the intention of the Employer in
executing this Waiver and Release of Claims that the same shall be effective
as a bar to each and every claim, demand and cause of action hereinabove
specified. In furtherance of this intention, I hereby expressly waive any and
all rights and benefits conferred upon me by the provisions of SECTION 1542
OF THE CALIFORNIA CIVIL CODE, to the extent applicable to me, and expressly I
consent that this Waiver and Release of Claims shall be given full force and
effect according to each and all of its express terms and provisions,
including as well those related to unknown and unsuspected claims, demands
and causes of action, if any, as well as those relating to any other claims,
demands and causes of action hereinabove specified. SECTION 1542 provides:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME
OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
I acknowledge that I may hereafter discover claims or facts in addition to or
different from those which I now know or believe to exist with respect to the
subject matter of this Waiver and Release of Claims and which, if known or
suspected at the time of executing this Waiver and Release of Claims, may
have materially affected this settlement.
Finally, I acknowledge that I have read this Waiver and Release of Claims and
understand all of its terms.
________________________________________________________________
Signature of Executive
________________________________________________________________
Print Name
________________________________________________________________
Date Signed
EXHIBIT B
CNF INC. EXECUTIVE SEVERANCE PLAN
ADOPTION AGREEMENT
_________________ hereby adopts the CNF Inc. Executive Severance Plan,
effective January 1, 2006.
_________________
By: __________________________________
Dated:
CNF Inc. hereby approves the adoption of the CNF Inc. Executive Severance
Plan by _________________, effective January 1, 2006.
CNF INC.
By: ___________________________________
Dated: