Exhibit 10.21
EMPLOYMENT AGREEMENT
This Agreement, dated as of December 8, 1998, is made by and
between Consolidated Freightways Corporation, and Consolidated
Freightways Corporation of Delaware, Delaware corporations
(hereinafter, together with any successor Corporation(s), the
"Company"), and W. Roger Curry (hereinafter "Executive").
Recitals
Whereas, Executive is currently employed by the Company as
its President and Chief Executive Officer;
Whereas, the Company and Executive wish to set forth in this
Agreement the terms and conditions under which Executive is to be
continued to be employed by the Company on and after the date
hereof; and
Whereas, the Company wishes to be assured that Executive
will be available to the Company for an additional three (3)
years after December 31, 1998.
Now, Therefore, the Company and Executive, in consideration
of the mutual promises set forth herein, agree as follows:
Article 1.
Term of Agreement
1.1 Commencement Date. Executive's employment with the
Company under this Agreement shall commence as of the date of
this Agreement ("Commencement Date") and shall expire on December
31, 2001, unless further extended pursuant to Section 1.2 or
terminated earlier pursuant to Article 6. Notwithstanding the
foregoing, this Agreement shall automatically terminate upon
Executive's attainment of age sixty-five (65).
1.2 Renewal. The term of this Agreement shall be
automatically renewed as of each January 1, beginning with
January 1, 2000, for one (1) additional year unless either party
delivers written notice to the other at least thirty (30) days
prior to such December 31 of an intention to terminate this
Agreement upon the then current termination date. In the event
of a Change-in-Control, the term of this Agreement shall
automatically be extended for one additional year.
Article 2.
Employment Duties
2.1 Title/Responsibilities. Executive hereby accepts
employment with the Company pursuant to the terms and conditions
hereof. Executive agrees to serve the Company in his current
position at the corporate headquarters. Executive shall report to
the Board of Directors of the Company, or the Chief Executive
Officer of the parent company of any company that may acquire the
Company. Executive shall have the powers and duties commensurate
with such position, including but not limited to, hiring
personnel necessary to carry out the responsibilities for such
position as set forth in the annual business plan approved by the
Board of Directors of the Company.
2.2 Full Time Attention. Executive shall devote his best
efforts and his full business time and attention to the
performance of the services customarily incident to such office
and to such other services as the Board or Chief Executive
Officer may reasonably request, provided that Executive may also
serve on the Boards of Directors of one or more other companies
with the prior consent of the Board and may serve on the
governing bodies of such charitable organizations as Executive
determines.
2.3 Other Activities. Except upon the prior written
consent of the Board of Directors or Chief Executive Officer,
Executive shall not during the period of employment engage,
directly or indirectly, in any other business activity (whether
or not pursued for pecuniary advantage) that is or may be
competitive with, or that might place him in a competing position
to that of the Company or any other corporation or entity that
directly or indirectly controls, is controlled by, or is under
common control with the Company (an "Affiliate"), provided that
Executive may own less than two percent (2%) of the outstanding
securities of any such publicly traded competing corporation.
2.4 Directorships. Executive will be nominated for
reelection to the Company's Boards of Directors throughout the
term of this Agreement under the applicable provisions of the
Company's Certificate of Incorporation and By-Laws. At the
request of the Company's shareholders, Executive agrees to serve
as a Director of the Company's Board of Directors at no
additional compensation.
Article 3.
3.1 Base Salary. Executive shall receive a base salary at
an annual rate of not less than his current salary payable
weekly in equal installments in accordance with the Company's
normal payroll practices ("Base Salary"). The Company's Board of
Directors shall provide Executive with annual performance
reviews, and, thereafter, Executive shall be entitled to such
increase in Base Salary as the Board of Directors or a duly
authorized Committee thereof may from time to time establish in
its sole discretion, which, subject to performance, shall be
commensurate with the increases for the other senior executives
of the Company and its Affiliates. Any increase in salary shall
automatically increase the Base Salary payable by the Company.
3.2 Incentive Bonus. The Company shall provide Executive
an annual bonus plan targeting cash payment of 65% of Base Salary
annually with an opportunity to earn double that amount based
upon achievement by the Company against performance objectives
approved by the Board of Directors or Committee thereof annually
("Target Bonus"). The Board of Directors or Committee thereof
shall, in its sole discretion, determine the extent to which such
performance objectives have been obtained. Objectives under
which a Target Bonus will be earned shall be achievable in a
manner substantially consistent with the senior executive
officers of the Company and its Affiliates and substantially
consistent with past practice.
3.3 Withholdings. All compensation and benefits payable to
Executive hereunder shall be subject to all federal, state, local
and other withholdings and similar taxes and payments required by
applicable law.
Article 4.
Benefits and Other Compensation
4.1 Vacation. Executive shall be entitled to the greater
of four (4) weeks of annual paid vacation or the amount of annual
paid vacation to which Executive is entitled as of the date
hereof or may become entitled under the terms of the current
vacation policy for employees of the Company and its Affiliates,
whichever is greater.
4.2 Benefits. During the term of this Agreement, the
Company shall also provide Executive with the usual health
insurance benefits it generally provides to its other senior
officers of the Company and its Affiliates. The Company shall
provide Executive with the right to participate in and to receive
benefits from life, accident, disability, medical, retirement
medical, pension, supplemental retirement, 401(k), car allowance,
bonus, long-term incentive, stock awards, profit-sharing and
savings plans, and similar benefits made available either
generally to employees of the Company or specifically to other
senior executive officers of the Company and its Affiliates as
such plans and benefits may be adopted by the Company. The
amount of such benefits shall be substantially consistent with
benefits provided to other senior executive officers of the
Company and its Affiliates and past practices (excluding the
extraordinary restricted stock grant). Target long-term
incentives shall be at least as much as those considered by the
Compensation Committee of the Board of Directors in 1998
(attached hereto), with any increase establishing a new minimum
target. Any objectives under such target long-term incentives
shall be achievable in a manner substantially consistent with the
senior executive officers of the Company and its Affiliates.
4.3 Business Expense Reimbursement. During the term of
this Agreement, Executive shall be entitled to receive
reimbursement for all reasonable out-of-pocket expenses incurred
by him (in accordance with the policies and procedures
established by the Company for its senior executive officers) in
performing services hereunder. Executive agrees to furnish to
the Company adequate records and other documentary evidence of
such expenses for which Executive seeks reimbursement. Such
expenses shall be reimbursed and accounted for under the policies
and procedures established by the Company and the Audit Committee
of the Board of Directors.
Article 5.
5.1 Non-disclosure of Proprietary Information - Non
Competition. Executive shall execute upon request the Company's
standard Non-Disclosure Agreement for officers of the Company and
its Affiliates in a form acceptable to the Company's counsel.
In any event, Executive shall maintain the confidentiality and
not use confidential information of the Company during his term
of employment and for two years following termination of his
employment. While employed hereunder, Executive shall not engage,
directly or indirectly, in any other business activity that is
competitive with, or that places him in a competing position to
that of the Company or any Affiliates (provided that Executive
may own less than two percent (2%) of the outstanding securities
of any publicly traded corporation).
5.2 No Solicitation of Employees. As a condition of
receiving benefits under this Agreement, Executive may not
directly solicit employees or full-time consultants of the
Company to leave during his employment with the Company or for a
period of two years from termination of employment.
5.3 Waiver of Claims. Executive shall also waive any
known or unknown claim against the Company and its Affiliates,
including, if applicable, any acquiring corporation, other than
those arising under the Agreement. Executive shall sign an
appropriate release if so requested upon termination of
employment.
5.4 Return of Property. All documents, records, apparatus,
equipment and other physical property which if furnished to or
obtained by Executive in the course of his employment with the
Company shall be and remain the sole property of the Company.
Executive agrees that, upon the termination of his employment, he
shall return all such property (whether or not it pertains to the
Company's proprietary information), and agrees not to make or
retain copies, reproductions or summaries of any such property.
Article 6.
Termination
6.1 By Death. The period of employment shall terminate
automatically upon the death of Executive. In such event, the
Company shall pay to Executive's beneficiaries or his estate, as
the case may be, any accrued Base Salary, pro-rata Target Bonus
based upon performance to date of death relative to target
performance, any vested deferred compensation (other than pension
plan, supplemental retirement, 401(k), or profit-sharing plan
benefits which will be paid in accordance with the terms of the
applicable plan), any benefits under any plans of the Company in
which Executive is a participant to the full extent of
Executive's rights under such plans, any accrued vacation pay and
any appropriate business expenses incurred by Executive in
connection with his duties hereunder, all to the date of
termination (collectively "Accrued Compensation"), and six (6)
months' additional Base Salary, Target Bonus, health benefits
and age and service credit under the Company's defined benefit
pension plan and supplemental pension plan (as if Executive had
continued to perform services for such period with the same
amount of Base Salary and Target Bonus). Thereafter, the
Company's obligations hereunder shall terminate.
6.2 By Disability. If Executive is prevented from properly
performing his duties hereunder by reason of any physical or
mental incapacity for a period of more than 60 days in the
aggregate in any 365-day period, or if a determination is made by
a qualified physician selected by the Company and acceptable to
Executive or Executive's representative that continued employment
with the Company by Executive would jeopardize Executive's
physical or mental health, then, to the extent permitted by law,
the Company may terminate the employment on the 60th day of such
incapacity or following such a determination by a qualified
physician. In such event, the Company shall pay to Executive all
Accrued Compensation, and shall pay to Executive in a lump sum a
total of six (6) months' additional Base Salary, Target Bonus,
health benefits and age and service credit under the Company's
defined benefit pension plan and supplemental pension plan (as if
Executive had continued to perform services for such period with
the same amount of Base Salary and Target Bonus). Thereafter the
Company's obligations hereunder shall terminate. Nothing in this
Agreement shall affect Executive's rights under any disability
plan in which he is an eligible participant.
6.3 By Company for Cause. The Company may terminate
Executive's employment for Cause (as defined below) without
liability at any time with or without advance notice to
Executive. The Company shall pay Executive all Accrued
Compensation, but no other compensation or reimbursement of any
kind, including without limitation, severance compensation, and
thereafter the Company's obligations hereunder shall terminate.
Termination shall be for "Cause" in the event of the occurrence
of any of the following: (a) any intentional action or
intentional failure to act by Executive which was performed in
bad faith and to the material detriment of the Company; (b)
intentional refusal or intentional failure to act in accordance
with any lawful and proper direction or order of the Board; (c)
willful and habitual neglect of his duties of employment; or (d)
conviction of a felony crime involving fraud or an act of
dishonesty against the Company, provided that in the event that
any of the foregoing events is capable of being cured, the
Company shall provide written notice to Executive describing the
nature of such event and Executive shall thereafter have ten (10)
business days to cure such event.
6.4 At Will. At any time, the Company may terminate
Executive's employment without liability other than as set forth
below, for any reason not specified in Section 6.3 above, by
giving thirty (30) days advance written notice to Executive. If
the Company elects to terminate Executive pursuant to this
Section 6.4, the Company shall pay to Executive all Accrued
Compensation and shall pay to Executive as provided herein
Executive's Base Salary, Target Bonus and continue to pay the
benefits described in Section 4.2 (except as otherwise explicitly
provided in this Section 6.4) over the period equal to the
remaining term of this Agreement, and thereafter all obligations
of the Company shall terminate. Notwithstanding the preceding
sentence, Executive shall receive (i) his incentive bonus as
described in Section 3.2 only for the proportion of the Company's
fiscal year in which termination occurs based upon the Company's
year-to-date performance against the selected objectives, (ii)
his long-term incentive compensation, if any, only for the
proportion of the applicable period based on the Company's
performance to date of termination against selected objectives,
(iii) additional age and service credits under the Company's
defined benefit pension plan and supplemental retirement plan for
the remainder of the then current term of this Agreement as if
Executive had continued to perform services for such period, and
(iv) acceleration of vesting in full for all stock awards,
whether stock options, restricted stock, or otherwise, then held
by Executive. All such severance compensation amounts shall be
earned and become payable in full immediately upon termination of
employment. If the Company terminates this Agreement or the
employment of Executive with the Company other than pursuant to
Section 6.1, 6.2 or 6.3, then this Section 6.4 shall apply.
If such termination under this Section 6.4 shall occur within
twenty four (24) months following the occurrence of a Change-in-
Control, Executive shall be paid upon termination in a lump sum
Base Salary, Target Bonus and automobile allowance for the
remainder of the term of this Agreement, plus four years of
pension service and age credit. Executive's benefits under the
Company's defined benefit pension plan and supplemental
retirement plan shall be determined as if Executive had remained
employed with the Company for an additional four years, had
continued to receive the same amount of Base Salary for that
period, and continued to receive Target Bonus. In addition,
Executive shall be entitled to continued coverage without
premiums under the Company's health, dental and drug plan
(substantially consistent with the terms thereof in effect on the
date hereof) for himself and a spouse or minor dependent under
the same terms as executive officers of the Company and its
Affiliates until such Executive and spouse are eligible for
Medicare or ten years, whichever is shorter. If Executive or his
spouse is or becomes covered under the health plan of another
employer, the Company's plan shall be secondary for as long as
that coverage continues. Payment under this provision for Change-
in-Control shall release the Company from payment of any other
benefits specified above other than Accrued Compensation,
acceleration of vesting of stock-based benefits, and any other
vested rights at time of termination.
6.5 Constructive Termination. In the event that the
Company changes the terms and conditions of Executive's
employment with the Company such that a "Constructive
Termination" has occurred, and Executive ceases performance of
services for the Company thereafter, such action shall be deemed
to be a termination of employment of Executive without cause
pursuant to Section 6.4. For purposes of this Agreement,
"Constructive Termination" shall mean (i) reduction of
Executive's Base Salary and/or Target Bonus, (ii) failure to
provide a package of welfare benefit plans, pension benefit
plans, and fringe benefits for Executive made available generally
to employees of the Company and its Affiliates and to other
senior executives of the Company and its Affiliates which, taken
as a whole, provide substantially similar benefits to those in
which the Executive is entitled to participate immediately prior
to the Commencement Date of this Agreement or in effect prior to
the occurrence of a Change-in-Control, whichever is greater, or
any action by the Company which would adversely affect
Executive's participation, (iii) material reduction of
Executive's benefits under any of such plans, (iv) change in
Executive's responsibilities, authority, title, office, or
reporting relationship resulting in diminution of position,
excluding for this purpose an isolated, insubstantial and
inadvertent action not taken in bad faith which is remedied by
the Company promptly after notice thereof is given by Executive,
and excluding the reporting to the Chief Executive Officer at the
parent company of the Company, (v) in the case of a Change-in-
Control only, a request that Executive relocate to a worksite
that is more than 15 miles from his prior worksite, unless
Executive accepts such relocation opportunity, (vi) material
reduction in Executive's duties, (vii) failure or refusal of a
successor to the Company and any parent company to assume the
Company's obligations under this Agreement, as provided in
Section 7.2.2, or (viii) material breach by the Company or any
successor to the Company or any parent company of any of the
material provisions of this Agreement.
6.6 Change-in-Control. For purposes of this Agreement, a
"Change-in-Control" shall have occurred if at any time during the
term of Executive's employment hereunder, any of the following
events shall occur:
(a) The Company is merged, or consolidated, or
reorganized into or with another corporation or other legal
person, and as a result of such merger, consolidation or
reorganization less than 50% of the combined voting power of the
then-outstanding securities of such corporation or person
immediately after such transaction are held in the aggregate by
the holders of voting securities of the Company immediately prior
to such transaction;
(b) The Company sells at least fifty percent (50%) of
its assets in a twelve (12) month period to any other corporation
or other legal person and thereafter, less than 50% of the
combined voting power of the then-outstanding voting securities
of the acquiring or consolidated entity are held in the aggregate
by the holders of voting securities of the Company immediately
prior to such sale;
(c) There is a report filed after the date of this
Agreement on Schedule 13D or Schedule 14 D-1 (or any successor
schedule, form or report), each as promulgated pursuant to the
Securities Exchange Act of 1934 (the "Exchange Act") disclosing
that any person (as the term "person" is used in Section 13(d)(3)
or Section 14(d)(2) of the Exchange Act) has become the
beneficial owner (as the term "beneficial owner" is defined under
Rule 13d-3 or any successor rule or regulation promulgated under
the Exchange Act) representing 25% or more of the combined voting
power of the then-outstanding voting securities of the Company;
(d) The Company shall file a report or proxy statement
with the Securities and Exchange Commission pursuant to the
Exchange Act disclosing in response to item 1 of Form 8-X
thereunder or Item 5(f) of Schedule 14A thereunder (or any
successor schedule, form or report or item therein) that the
change in control of the Company has or may have occurred or will
or may occur in the future pursuant to any then-existing contract
or transaction;
(e) During any period of two consecutive years,
individuals who at the beginning of any such period constitute
the directors of the Company cease for any reason to constitute
at least a majority thereof unless the election or the nomination
for election by the Company's shareholders of each director of
the Company first elected during such period was approved by a
vote of at least two-thirds of the directors of the Company then
still in office who were directors of the Company at the
beginning of such period (an "Incumbent Director"), and any
director so approved shall be treated as an Incumbent Director in
the future; or
(f) the liquidation or dissolution of the Company.
6.7 Excise Tax Gross-Up. In the event it shall be
determined that any payment by the Company and/or its Affiliates
to or for the benefit of Executive, whether paid or payable under
this Agreement or otherwise, but determined without regard to any
additional payments required under this Section 6.7 (a
"Payment"), would be subject to the excise tax imposed by Section
4999 of the Code, or any comparable federal, state, or local
excise tax (such excise tax, together with any interest and
penalties, are hereinafter collectively referred to as the
"Excise Tax"), then Executive shall be entitled to receive an
additional payment (a "Gross-Up Payment") in such an amount that
after the payment of all taxes (including without limitation, any
interest and penalties on such taxes and the excise tax) on the
Payment and on the Gross-Up Payment, Executive shall retain an
amount equal to the Payment minus all applicable income and
employment taxes on the Payment. The intent of the parties is
that the Company shall be solely responsible for, and shall pay,
any Excise Tax on the Payment and Gross-Up Payment and any
income, employment and other taxes (including, without
limitation, penalties and interest) imposed on any Gross-Up
Payment, as well as any loss of tax deduction caused by the Gross-
Up Payment or applicable provisions of the Code. All
determinations required to be made under this Section 6.7,
including without limitation, whether and when a Gross-Up Payment
is required and the amount of such Gross-Up Payment and the
assumptions to be utilized in arriving at such determinations,
shall be made by a nationally recognized accounting firm that is
the Company's outside auditor at the time of such determinations,
which firm must be reasonably acceptable to Executive. All fees
and expenses of such accounting firm shall be borne solely by the
Company.
6.8 Termination by Executive. At any time, whether or not
as a result of Executive's retirement, Executive may terminate
his employment by giving thirty (30) days advance written notice
to the Company. The Company shall pay Executive all Accrued
Compensation, but no other compensation or reimbursement of any
kind, including without limitation, severance compensation, and
thereafter the Company's obligations hereunder shall terminate.
In the event that Executive voluntarily terminates his employment
with the Company during the thirteenth calendar month beginning
after the occurrence of a Change-in-Control, Executive shall also
receive a total of twelve (12) months' Base Salary, Target
Bonus, service and pension credits and health, dental and drug
benefits as if Executive's employment had been involuntarily
terminated by the Company pursuant to Section 6.4 above, except
that Executive shall not be entitled to any tax "gross-up"
benefits described in Section 6.7. Executive benefits under the
Company's defined benefit pension plan and supplemental
retirement plan shall be determined as if Executive had remained
employed with the Company for that period.
Article 7.
General Provisions
7.1 Governing Law. The validity, interpretation,
construction and performance of this Agreement and the rights of
the parties thereunder shall be interpreted and executed under
California law without reference to principles of conflicts of
laws. The parties expressly agree that inasmuch as the Company's
headquarters and principal place of business are located in
California, it is appropriate that California law govern this
Agreement.
7.2 Assignment; Successors; Binding Agreement.
7.2.1 Executive may not assign, pledge or
encumber his interest in this Agreement or any part thereof.
7.2.2 The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or
assets of the Company, by operation of law or by agreement in
form and substance reasonably satisfactory to Executive, to
assume and agree to perform this Agreement in the same manner and
to the same extent that the Company would be required to perform
it if no such succession had taken place.
7.2.3 This Agreement shall inure to the benefit of and
be enforceable by Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees,
devisees and legatees. If Executive should die while any amount
is at such time payable to him hereunder, all such amounts,
unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to Executive's devisee, legates
or other designee or, if there be no such designee, to his
estate.
7.3 Attorney Fees. The Company will reimburse Executive or
Executive's successor-in-interest for all reasonable attorney
fees and costs associated with bringing any action under this
Agreement to enforce their rights hereunder, regardless of the
outcome of such proceeding, provided the court does not find the
claim was brought in bad faith.
7.4 Non-Publication. The parties mutually agree not to
disclose publicly the terms of this Agreement except to the
extent that disclosure is mandated by applicable law.
7.5 No Waiver of Breach. The waiver by any party of the
breach of any provision of this Agreement shall not be deemed to
be a waiver of any subsequent breach. No delay in exercising
any right hereunder shall be deemed to be a waiver of the party's
rights hereunder.
7.6 Notice. For the purposes of this Agreement, notices
and all other communications provided for in this agreement shall
be in writing and shall be deemed to have been duly given when
delivered or mailed by certified or registered mail, return
receipt requested, postage prepaid, addressed to the respective
addresses set forth below or to such other address as either
party may have furnished to the other in writing in accordance
herewith, except that notice of change of address shall be
effective only upon receipt.
To the Company:Consolidated Freightways
Corporation
175 Linfield Drive
Menlo Park, CA 94025
Attn: Chairman of Compensation
Committee
To Executive: W. Roger Curry
7.7 Modification; Waiver; Entire Agreement. No provisions
of this Agreement may be modified, waived or discharged unless
such waiver, modification or discharge is agreed to in writing
signed by Executive and such officer as may be specifically
designated by the Board of Directors of the Company. No waiver
by either party hereto at any time of any breach by the other
party of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a
waiver of similar or dissimilar provisions or conditions at the
same or any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either
party which are not expressly set forth in this Agreement.
7.8 Validity. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which
shall remain in full force and effect.
7.9 Executive Acknowledgment. Executive acknowledges (a)
that he has consulted with or had had the opportunity to consult
with independent counsel of his own choice concerning this
Agreement, and has been advised to do so by the Company, and (b)
that he has read and understands the Agreement, is fully aware of
its legal effect, and has entered into it freely based on his own
judgment.
7.10 Injunctive Relief. The parties agrees that the services to
be rendered by Executive hereunder are of a unique nature and
that in the event of any breach or threatened breach of any of
the covenants contained herein, the damage or imminent damage to
the value and the goodwill of the Company's business will be
irreparable and extremely difficult to estimate, making any
remedy at law or in damages inadequate. Accordingly, the parties
agree that the Company shall be entitled to injunctive relief
against Executive in the event of any breach or threatened breach
of any such provisions by Executive, in addition to any other
relief (including damages) available to the Company under this
Agreement or under law. Both parties agree that the remedy
specified in this section is not exclusive of any other remedy
for the breach by Executive of the terms hereof.
7.11 Counterparts. This Agreement may be executed in one or
more counterparts, all of which taken together shall constitute
one and the same Agreement.
7.12 No Mitigation. The Executive shall not be required to
mitigate the amount of payments hereunder by seeking other
employment or otherwise, and any amount earned by Executive as a
result of employment by other employer after the date of
termination shall not reduce the payments hereunder.
7.13 Indemnity. The Company and its Affiliates shall
indemnify and hold Executive harmless against any loss, cost or
expense arising out of or relating to the performance of his
duties to the Company and its Affiliates, and shall maintain
adequate liability insurance covering such Executive's acts and
omissions occurring during the term of this Agreement and for a
period of six years thereafter.
Executed by the parties as of the date and year first above
written.
Consolidated Freightways
Corporation
/s/Robert W. Hatch
Robert W. Hatch
Chairman, Compensation Committee
Consolidated Freightways
Corporation
Executive:
/s/W.Roger Curry
W. Roger Curry
President and Chief Executive
Officer
Consolidated Freightways
Corporation
EMPLOYMENT AGREEMENT
This Agreement, dated as of December 8, 1998, is made by and
between Consolidated Freightways Corporation, and Consolidated
Freightways Corporation of Delaware, Delaware corporations
(hereinafter, together with any successor Corporation(s), the
"Company"), and Patrick H. Blake (hereinafter "Executive").
Recitals
Whereas, Executive is currently employed by the Company as
its Executive Vice President - Operations;
Whereas, the Company and Executive wish to set forth in this
Agreement the terms and conditions under which Executive is to be
continued to be employed by the Company on and after the date
hereof; and
Whereas, the Company wishes to be assured that Executive
will be available to the Company for an additional two (2) years
after December 31, 1998.
Now, Therefore, the Company and Executive, in consideration
of the mutual promises set forth herein, agree as follows:
Article 1.
Term of Agreement
1.1 Commencement Date. Executive's employment with the
Company under this Agreement shall commence as of the date of
this Agreement ("Commencement Date") and shall expire on December
31, 2000, unless further extended pursuant to Section 1.2 or
terminated earlier pursuant to Article 6. Notwithstanding the
foregoing, this Agreement shall automatically terminate upon
Executive's attainment of age sixty-five (65).
1.2 Renewal. The term of this Agreement shall be
automatically renewed as of each January 1, beginning with
January 1, 2000, for one (1) additional year unless either party
delivers written notice to the other at least thirty (30) days
prior to such December 31 of an intention to terminate this
Agreement upon the then current termination date. In the event
of a Change-in-Control, the term of this Agreement shall
automatically be extended for one additional year.
Article 2.
Employment Duties
2.1 Title/Responsibilities. Executive hereby accepts
employment with the Company pursuant to the terms and conditions
hereof. Executive agrees to serve the Company in his current
position at the corporate headquarters. Executive shall report to
the Chief Executive Officer of the Company, or the Chief
Operating Officer of the parent company of any company that may
acquire the Company. Executive shall have the powers and duties
commensurate with such position, including but not limited to,
hiring personnel necessary to carry out the responsibilities for
such position as set forth in the annual business plan approved
by the Board of Directors of the Company.
2.2 Full Time Attention. Executive shall devote his best
efforts and his full business time and attention to the
performance of the services customarily incident to such office
and to such other services as the Board or Chief Operating
Officer of an acquiring parent company may reasonably request,
provided that Executive may also serve on the Boards of Directors
of one or more other companies with the prior consent of the
Board and may serve on the governing bodies of such charitable
organizations as Executive determines.
2.3 Other Activities. Except upon the prior written
consent of the Board of Directors or Chief Operating Officer of
an acquiring parent company, Executive shall not during the
period of employment engage, directly or indirectly, in any other
business activity (whether or not pursued for pecuniary
advantage) that is or may be competitive with, or that might
place him in a competing position to that of the Company or any
other corporation or entity that directly or indirectly controls,
is controlled by, or is under common control with the Company (an
"Affiliate"), provided that Executive may own less than two
percent (2%) of the outstanding securities of any such publicly
traded competing corporation.
Article 3.
3.1 Base Salary. Executive shall receive a base salary at
an annual rate of not less than his current salary payable
weekly in equal installments in accordance with the Company's
normal payroll practices ("Base Salary"). The Company's Board of
Directors shall provide Executive with annual performance
reviews, and, thereafter, Executive shall be entitled to such
increase in Base Salary as the Board of Directors or a duly
authorized Committee thereof may from time to time establish in
its sole discretion, which, subject to performance, shall be
commensurate with the increases for the other senior executives
of the Company and its Affiliates. Any increase in salary shall
automatically increase the Base Salary payable by the Company.
3.2 Incentive Bonus. The Company shall provide Executive
an annual bonus plan targeting cash payment of 50% of Base Salary
annually with an opportunity to earn double that amount based
upon achievement by the Company against performance objectives
approved by the Board of Directors or Committee thereof annually
("Target Bonus"). The Board of Directors or Committee thereof
shall, in its sole discretion, determine the extent to which such
performance objectives have been obtained. Objectives under
which a Target Bonus will be earned shall be achievable in a
manner substantially consistent with the senior executive
officers of the Company and its Affiliates and substantially
consistent with past practice.
3.3 Withholdings. All compensation and benefits payable to
Executive hereunder shall be subject to all federal, state, local
and other withholdings and similar taxes and payments required by
applicable law.
Article 4.
Benefits and Other Compensation
4.1 Vacation. Executive shall be entitled to the greater
of four (4) weeks of annual paid vacation or the amount of annual
paid vacation to which Executive is entitled as of the date
hereof or may become entitled under the terms of the current
vacation policy for employees of the Company and its Affiliates,
whichever is greater.
4.2 Benefits. During the term of this Agreement, the
Company shall also provide Executive with the usual health
insurance benefits it generally provides to its other senior
officers of the Company and its Affiliates. The Company shall
provide Executive with the right to participate in and to receive
benefits from life, accident, disability, medical, retirement
medical, pension, supplemental retirement, 401(k), car allowance,
bonus, long-term incentive, stock awards, profit-sharing and
savings plans, and similar benefits made available either
generally to employees of the Company or specifically to other
senior executive officers of the Company and its Affiliates as
such plans and benefits may be adopted by the Company. The
amount of such benefits shall be substantially consistent with
benefits provided to other senior executive officers of the
Company and its Affiliates and past practices (excluding the
extraordinary restricted stock grant). Target long-term
incentives shall be at least as much as those considered by the
Compensation Committee of the Board of Directors in 1998
(attached hereto), with any increase establishing a new minimum
target. Any objectives under such target long-term incentives
shall be achievable in a manner substantially consistent with the
senior executive officers of the Company and its Affiliates.
4.3 Business Expense Reimbursement. During the term of
this Agreement, Executive shall be entitled to receive
reimbursement for all reasonable out-of-pocket expenses incurred
by him (in accordance with the policies and procedures
established by the Company for its senior executive officers) in
performing services hereunder. Executive agrees to furnish to
the Company adequate records and other documentary evidence of
such expenses for which Executive seeks reimbursement. Such
expenses shall be reimbursed and accounted for under the policies
and procedures established by the Company and the Audit Committee
of the Board of Directors.
Article 5.
5.1 Non-disclosure of Proprietary Information - Non
Competition. Executive shall execute upon request the Company's
standard Non-Disclosure Agreement for officers of the Company and
its Affiliates in a form acceptable to the Company's counsel.
In any event, Executive shall maintain the confidentiality and
not use confidential information of the Company during his term
of employment and for two years following termination of his
employment. While employed hereunder, Executive shall not engage,
directly or indirectly, in any other business activity that is
competitive with, or that places him in a competing position to
that of the Company or any Affiliates (provided that Executive
may own less than two percent (2%) of the outstanding securities
of any publicly traded corporation).
5.2 No Solicitation of Employees. As a condition of
receiving benefits under this Agreement, Executive may not
directly solicit employees or full-time consultants of the
Company to leave during his employment with the Company or for a
period of two years from termination of employment.
5.3 Waiver of Claims. Executive shall also waive any
known or unknown claim against the Company and its Affiliates,
including, if applicable, any acquiring corporation, other than
those arising under the Agreement. Executive shall sign an
appropriate release if so requested upon termination of
employment.
5.4 Return of Property. All documents, records, apparatus,
equipment and other physical property which if furnished to or
obtained by Executive in the course of his employment with the
Company shall be and remain the sole property of the Company.
Executive agrees that, upon the termination of his employment, he
shall return all such property (whether or not it pertains to the
Company's proprietary information), and agrees not to make or
retain copies, reproductions or summaries of any such property.
Article 6.
Termination
6.1 By Death. The period of employment shall terminate
automatically upon the death of Executive. In such event, the
Company shall pay to Executive's beneficiaries or his estate, as
the case may be, any accrued Base Salary, pro-rata Target Bonus
based upon performance to date of death relative to target
performance, any vested deferred compensation (other than pension
plan, supplemental retirement, 401(k), or profit-sharing plan
benefits which will be paid in accordance with the terms of the
applicable plan), any benefits under any plans of the Company in
which Executive is a participant to the full extent of
Executive's rights under such plans, any accrued vacation pay and
any appropriate business expenses incurred by Executive in
connection with his duties hereunder, all to the date of
termination (collectively "Accrued Compensation"), and six (6)
months' additional Base Salary, Target Bonus, health benefits and
age and service credit under the Company's defined benefit
pension plan and supplemental pension plan (as if the Executive
had continued to perform services for such period with the same
amount of Base Salary and Target Bonus). Thereafter, the
Company's obligations hereunder shall terminate.
6.2 By Disability. If Executive is prevented from properly
performing his duties hereunder by reason of any physical or
mental incapacity for a period of more than 60 days in the
aggregate in any 365-day period, or if a determination is made by
a qualified physician selected by the Company and acceptable to
Executive or Executive's representative that continued employment
with the Company by Executive would jeopardize Executive's
physical or mental health, then, to the extent permitted by law,
the Company may terminate the employment on the 60th day of such
incapacity or following such a determination by a qualified
physician. In such event, the Company shall pay to Executive all
Accrued Compensation, and shall pay to Executive in a lump sum a
total of six (6) months' additional Base Salary, Target Bonus,
health benefits and age and service credit under the Company's
defined benefit pension plan and supplemental pension plan (as if
the Executive had continued to perform services for such period
with the same amount of Base Salary and Target Bonus).
Thereafter the Company's obligations hereunder shall terminate.
Nothing in this Agreement shall affect Executive's rights under
any disability plan in which he is an eligible participant.
6.3 By Company for Cause. The Company may terminate
Executive's employment for Cause (as defined below) without
liability at any time with or without advance notice to
Executive. The Company shall pay Executive all Accrued
Compensation, but no other compensation or reimbursement of any
kind, including without limitation, severance compensation, and
thereafter the Company's obligations hereunder shall terminate.
Termination shall be for "Cause" in the event of the occurrence
of any of the following: (a) any intentional action or
intentional failure to act by Executive which was performed in
bad faith and to the material detriment of the Company; (b)
intentional refusal or intentional failure to act in accordance
with any lawful and proper direction or order of the Board; (c)
willful and habitual neglect of his duties of employment; or (d)
conviction of a felony crime involving fraud or an act of
dishonesty against the Company, provided that in the event that
any of the foregoing events is capable of being cured, the
Company shall provide written notice to Executive describing the
nature of such event and Executive shall thereafter have ten (10)
business days to cure such event.
6.4 At Will. At any time, the Company may terminate
Executive's employment without liability other than as set forth
below, for any reason not specified in Section 6.3 above, by
giving thirty (30) days advance written notice to Executive. If
the Company elects to terminate Executive pursuant to this
Section 6.4, the Company shall pay to Executive all Accrued
Compensation and shall pay to Executive as provided herein
Executive's Base Salary, Target Bonus and continue to pay the
benefits described in Section 4.2 (except as otherwise explicitly
provided in this Section 6.4) over the period equal to the
remaining term of this Agreement, and thereafter all obligations
of the Company shall terminate. Notwithstanding the preceding
sentence, Executive shall receive (i) his incentive bonus as
described in Section 3.2 only for the proportion of the Company's
fiscal year in which termination occurs based upon the Company's
year-to-date performance against the selected objectives, (ii)
his long-term incentive compensation, if any, only for the
proportion of the applicable period based on the Company's
performance to date of termination against selected objectives,
(iii) additional age and service credits under the Company's
defined benefit pension plan and supplemental retirement plan for
the remainder of the then current term of this Agreement as if
Executive had continued to perform services for such period, and
(iv) acceleration of vesting in full for all stock awards,
whether stock options, restricted stock, or otherwise, then held
by Executive. All such severance compensation amounts shall be
earned and become payable in full immediately upon termination of
employment. If the Company terminates this Agreement or the
employment of Executive with the Company other than pursuant to
Section 6.1, 6.2 or 6.3, then this Section 6.4 shall apply.
If such termination under this Section 6.4 shall occur within
twenty four (24) months following the occurrence of a Change-in-
Control, Executive shall be paid upon termination in a lump sum
Base Salary, Target Bonus and automobile allowance for the
remainder of the term of this Agreement, plus three years of
pension service and age credit. Executive's benefits under the
Company's defined benefit pension plan and supplemental
retirement plan shall be determined as if Executive had remained
employed with the Company for an additional three years, had
continued to receive the same amount of Base Salary for that
period, and continued to receive Target Bonus. Executive shall
also be entitled to retire on or after his 55th birthday with an
unreduced pension. In addition, Executive shall be entitled to
continued coverage without premiums under the Company's health,
dental and drug plan (substantially consistent with the terms
thereof in effect on the date hereof) for himself and a spouse or
minor dependent under the same terms as executive officers of the
Company and its Affiliates until such Executive and spouse are
eligible for Medicare or ten years, whichever is shorter. If
Executive or his spouse is or becomes covered under the health
plan of another employer, the Company's plan shall be secondary
for as long as that coverage continues. Payment under this
provision for Change-in-Control shall release the Company from
payment of any other benefits specified above other than Accrued
Compensation, acceleration of vesting of stock-based benefits,
and any other vested rights at time of termination.
6.5 Constructive Termination. In the event that the
Company changes the terms and conditions of Executive's
employment with the Company such that a "Constructive
Termination" has occurred, and Executive ceases performance of
services for the Company thereafter, such action shall be deemed
to be a termination of employment of Executive without cause
pursuant to Section 6.4. For purposes of this Agreement,
"Constructive Termination" shall mean (i) reduction of
Executive's Base Salary and/or Target Bonus, (ii) failure to
provide a package of welfare benefit plans, pension benefit
plans, and fringe benefits for Executive made available generally
to employees of the Company and its Affiliates and to other
senior executives of the Company and its Affiliates which, taken
as a whole, provide substantially similar benefits to those in
which the Executive is entitled to participate immediately prior
to the Commencement Date of this Agreement or in effect prior to
the occurrence of a Change-in-Control, whichever is greater, or
any action by the Company which would adversely affect
Executive's participation, (iii) material reduction of
Executive's benefits under any of such plans, (iv) change in
Executive's responsibilities, authority, title, office, or
reporting relationship resulting in diminution of position,
excluding for this purpose an isolated, insubstantial and
inadvertent action not taken in bad faith which is remedied by
the Company promptly after notice thereof is given by Executive,
and excluding the reporting to the Chief Operating Officer of an
acquiring parent company, (v) in the case of a Change-in-Control
only, a request that Executive relocate to a worksite that is
more than 15 miles from his prior worksite, unless Executive
accepts such relocation opportunity, (vi) material reduction in
Executive's duties, (vii) failure or refusal of a successor to
the Company and any parent company to assume the Company's
obligations under this Agreement, as provided in Section 7.2.2,
or (viii) material breach by the Company or any successor to the
Company or any parent company of any of the material provisions
of this Agreement.
6.6 Change-in-Control. For purposes of this Agreement, a
"Change-in-Control" shall have occurred if at any time during the
term of Executive's employment hereunder, any of the following
events shall occur:
(a) The Company is merged, or consolidated, or
reorganized into or with another corporation or other legal
person, and as a result of such merger, consolidation or
reorganization less than 50% of the combined voting power of the
then-outstanding securities of such corporation or person
immediately after such transaction are held in the aggregate by
the holders of voting securities of the Company immediately prior
to such transaction;
(b) The Company sells at least fifty percent (50%) of
its assets in a twelve (12) month period to any other corporation
or other legal person and thereafter, less than 50% of the
combined voting power of the then-outstanding voting securities
of the acquiring or consolidated entity are held in the aggregate
by the holders of voting securities of the Company immediately
prior to such sale;
(c) There is a report filed after the date of this
Agreement on Schedule 13D or Schedule 14 D-1 (or any successor
schedule, form or report), each as promulgated pursuant to the
Securities Exchange Act of 1934 (the "Exchange Act") disclosing
that any person (as the term "person" is used in Section 13(d)(3)
or Section 14(d)(2) of the Exchange Act) has become the
beneficial owner (as the term "beneficial owner" is defined under
Rule 13d-3 or any successor rule or regulation promulgated under
the Exchange Act) representing 25% or more of the combined voting
power of the then-outstanding voting securities of the Company;
(d) The Company shall file a report or proxy statement
with the Securities and Exchange Commission pursuant to the
Exchange Act disclosing in response to item 1 of Form 8-X
thereunder or Item 5(f) of Schedule 14A thereunder (or any
successor schedule, form or report or item therein) that the
change in control of the Company has or may have occurred or will
or may occur in the future pursuant to any then-existing contract
or transaction;
(e) During any period of two consecutive years,
individuals who at the beginning of any such period constitute
the directors of the Company cease for any reason to constitute
at least a majority thereof unless the election or the nomination
for election by the Company's shareholders of each director of
the Company first elected during such period was approved by a
vote of at least two-thirds of the directors of the Company then
still in office who were directors of the Company at the
beginning of such period (an "Incumbent Director"), and any
director so approved shall be treated as an Incumbent Director in
the future; or
(f) the liquidation or dissolution of the Company.
6.7 Excise Tax Gross-Up. In the event it shall be
determined that any payment by the Company and/or its Affiliates
to or for the benefit of Executive, whether paid or payable under
this Agreement or otherwise, but determined without regard to any
additional payments required under this Section 6.7 (a
"Payment"), would be subject to the excise tax imposed by Section
4999 of the Code, or any comparable federal, state, or local
excise tax (such excise tax, together with any interest and
penalties, are hereinafter collectively referred to as the
"Excise Tax"), then Executive shall be entitled to receive an
additional payment (a "Gross-Up Payment") in such an amount that
after the payment of all taxes (including without limitation, any
interest and penalties on such taxes and the excise tax) on the
Payment and on the Gross-Up Payment, Executive shall retain an
amount equal to the Payment minus all applicable income and
employment taxes on the Payment. The intent of the parties is
that the Company shall be solely responsible for, and shall pay,
any Excise Tax on the Payment and Gross-Up Payment and any
income, employment and other taxes (including, without
limitation, penalties and interest) imposed on any Gross-Up
Payment, as well as any loss of tax deduction caused by the Gross-
Up Payment or applicable provisions of the Code. All
determinations required to be made under this Section 6.7,
including without limitation, whether and when a Gross-Up Payment
is required and the amount of such Gross-Up Payment and the
assumptions to be utilized in arriving at such determinations,
shall be made by a nationally recognized accounting firm that is
the Company's outside auditor at the time of such determinations,
which firm must be reasonably acceptable to Executive. All fees
and expenses of such accounting firm shall be borne solely by the
Company.
6.8 Termination by Executive. At any time, whether or not
as a result of Executive's retirement, Executive may terminate
his employment by giving thirty (30) days advance written notice
to the Company. The Company shall pay Executive all Accrued
Compensation, but no other compensation or reimbursement of any
kind, including without limitation, severance compensation, and
thereafter the Company's obligations hereunder shall terminate.
In the event that Executive voluntarily terminates his employment
with the Company during the thirteenth calendar month beginning
after the occurrence of a Change-in-Control, Executive shall also
receive a total of twelve (12) months' Base Salary, Target
Bonus, service and pension credits and health, dental and drug
benefits as if Executive's employment had been involuntarily
terminated by the Company pursuant to Section 6.4 above, except
that Executive shall not be entitled to any tax "gross-up"
benefits described in Section 6.7. Executive benefits under the
Company's defined benefit pension plan and supplemental
retirement plan shall be determined as if Executive had remained
employed with the Company for that period.
Article 7.
General Provisions
7.1 Governing Law. The validity, interpretation,
construction and performance of this Agreement and the rights of
the parties thereunder shall be interpreted and executed under
California law without reference to principles of conflicts of
laws. The parties expressly agree that inasmuch as the Company's
headquarters and principal place of business are located in
California, it is appropriate that California law govern this
Agreement.
7.2 Assignment; Successors; Binding Agreement.
7.2.1 Executive may not assign, pledge or
encumber his interest in this Agreement or any part thereof.
7.2.2 The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or
assets of the Company, by operation of law or by agreement in
form and substance reasonably satisfactory to Executive, to
assume and agree to perform this Agreement in the same manner and
to the same extent that the Company would be required to perform
it if no such succession had taken place.
7.2.3 This Agreement shall inure to the benefit of and
be enforceable by Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees,
devisees and legatees. If Executive should die while any amount
is at such time payable to him hereunder, all such amounts,
unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to Executive's devisee, legates
or other designee or, if there be no such designee, to his
estate.
7.3 Attorney Fees. The Company will reimburse Executive or
Executive's successor-in-interest for all reasonable attorney
fees and costs associated with bringing any action under this
Agreement to enforce their rights hereunder, regardless of the
outcome of such proceeding, provided the court does not find the
claim was brought in bad faith.
7.4 Non-Publication. The parties mutually agree not to
disclose publicly the terms of this Agreement except to the
extent that disclosure is mandated by applicable law.
7.5 No Waiver of Breach. The waiver by any party of the
breach of any provision of this Agreement shall not be deemed to
be a waiver of any subsequent breach. No delay in exercising
any right hereunder shall be deemed to be a waiver of the party's
rights hereunder.
7.6 Notice. For the purposes of this Agreement, notices
and all other communications provided for in this agreement shall
be in writing and shall be deemed to have been duly given when
delivered or mailed by certified or registered mail, return
receipt requested, postage prepaid, addressed to the respective
addresses set forth below or to such other address as either
party may have furnished to the other in writing in accordance
herewith, except that notice of change of address shall be
effective only upon receipt.
To the Company:Consolidated Freightways
Corporation
175 Linfield Drive
Menlo Park, CA 94025
Attn: Chairman of Compensation
Committee
To Executive: Patrick H. Blake
7.7 Modification; Waiver; Entire Agreement. No provisions
of this Agreement may be modified, waived or discharged unless
such waiver, modification or discharge is agreed to in writing
signed by Executive and such officer as may be specifically
designated by the Board of Directors of the Company. No waiver
by either party hereto at any time of any breach by the other
party of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a
waiver of similar or dissimilar provisions or conditions at the
same or any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either
party which are not expressly set forth in this Agreement.
7.8 Validity. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which
shall remain in full force and effect.
7.9 Executive Acknowledgment. Executive acknowledges (a)
that he has consulted with or had had the opportunity to consult
with independent counsel of his own choice concerning this
Agreement, and has been advised to do so by the Company, and (b)
that he has read and understands the Agreement, is fully aware of
its legal effect, and has entered into it freely based on his own
judgment.
7.10 Injunctive Relief. The parties agrees that the
services to be rendered by Executive hereunder are of a unique
nature and that in the event of any breach or threatened breach
of any of the covenants contained herein, the damage or imminent
damage to the value and the goodwill of the Company's business
will be irreparable and extremely difficult to estimate, making
any remedy at law or in damages inadequate. Accordingly, the
parties agree that the Company shall be entitled to injunctive
relief against Executive in the event of any breach or threatened
breach of any such provisions by Executive, in addition to any
other relief (including damages) available to the Company under
this Agreement or under law. Both parties agree that the remedy
specified in this section is not exclusive of any other remedy
for the breach by Executive of the terms hereof.
7.11 Counterparts. This Agreement may be executed in one or
more counterparts, all of which taken together shall constitute
one and the same Agreement.
7.12 No Mitigation. The Executive shall not be required to
mitigate the amount of payments hereunder by seeking other
employment or otherwise, and any amount earned by Executive as a
result of employment by other employer after the date of
termination shall not reduce the payments hereunder.
7.13 Indemnity. The Company and its Affiliates shall
indemnify and hold Executive harmless against any loss, cost or
expense arising out of or relating to the performance of his
duties to the Company and its Affiliates, and shall maintain
adequate liability insurance covering such Executive's acts and
omissions occurring during the term of this Agreement and for a
period of six years thereafter.
Executed by the parties as of the date and year first above
written.
Consolidated Freightways
Corporation
/s/W. Roger Curry
W. Roger Curry
President and Chief Executive
Officer
Consolidated Freightways
Corporation
Executive:
/s/Patrick H. Blake
Patrick H. Blake
Executive Vice President -
Operations
Consolidated Freightways
Corporation
EMPLOYMENT AGREEMENT
This Agreement, dated as of December 8, 1998, is made by and
between Consolidated Freightways Corporation, and Consolidated
Freightways Corporation of Delaware, Delaware corporations
(hereinafter, together with any successor Corporation(s), the
"Company"), and David F. Morrison (hereinafter "Executive").
Recitals
Whereas, Executive is currently employed by the Company as
its Executive Vice President and Chief Financial Officer;
Whereas, the Company and Executive wish to set forth in this
Agreement the terms and conditions under which Executive is to be
continued to be employed by the Company on and after the date
hereof; and
Whereas, the Company wishes to be assured that Executive
will be available to the Company for an additional two (2) years
after December 31, 1998.
Now, Therefore, the Company and Executive, in consideration
of the mutual promises set forth herein, agree as follows:
Article 1.
Term of Agreement
1.1 Commencement Date. Executive's employment with the
Company under this Agreement shall commence as of the date of
this Agreement ("Commencement Date") and shall expire on December
31, 2000, unless further extended pursuant to Section 1.2 or
terminated earlier pursuant to Article 6. Notwithstanding the
foregoing, this Agreement shall automatically terminate upon
Executive's attainment of age sixty-five (65).
1.2 Renewal. The term of this Agreement shall be
automatically renewed as of each January 1, beginning with
January 1, 2000, for one (1) additional year unless either party
delivers written notice to the other at least thirty (30) days
prior to such December 31 of an intention to terminate this
Agreement upon the then current termination date. In the event
of a Change-in-Control, the term of this Agreement shall
automatically be extended for one additional year.
Article 2.
Employment Duties
2.1 Title/Responsibilities. Executive hereby accepts
employment with the Company pursuant to the terms and conditions
hereof. Executive agrees to serve the Company in his current
position at the corporate headquarters. Executive shall report to
the Chief Executive Officer of the Company, or the Chief
Financial Officer of the parent company of any company that may
acquire the Company. Executive shall have the powers and duties
commensurate with such position, including but not limited to,
hiring personnel necessary to carry out the responsibilities for
such position as set forth in the annual business plan approved
by the Board of Directors of the Company.
2.2 Full Time Attention. Executive shall devote his best
efforts and his full business time and attention to the
performance of the services customarily incident to such office
and to such other services as the Board or Chief Financial
Officer of an acquiring parent company may reasonably request,
provided that Executive may also serve on the Boards of Directors
of one or more other companies with the prior consent of the
Board and may serve on the governing bodies of such charitable
organizations as Executive determines.
2.3 Other Activities. Except upon the prior written
consent of the Board of Directors or Chief Financial Officer of
an acquiring parent company, Executive shall not during the
period of employment engage, directly or indirectly, in any other
business activity (whether or not pursued for pecuniary
advantage) that is or may be competitive with, or that might
place him in a competing position to that of the Company or any
other corporation or entity that directly or indirectly controls,
is controlled by, or is under common control with the Company (an
"Affiliate"), provided that Executive may own less than two
percent (2%) of the outstanding securities of any such publicly
traded competing corporation.
Article 3.
3.1 Base Salary. Executive shall receive a base salary at
an annual rate of not less than his current salary payable
weekly in equal installments in accordance with the Company's
normal payroll practices ("Base Salary"). The Company's Board of
Directors shall provide Executive with annual performance
reviews, and, thereafter, Executive shall be entitled to such
increase in Base Salary as the Board of Directors or a duly
authorized Committee thereof may from time to time establish in
its sole discretion, which, subject to performance, shall be
commensurate with the increases for the other senior executives
of the Company and its Affiliates. Any increase in salary shall
automatically increase the Base Salary payable by the Company.
3.2 Incentive Bonus. The Company shall provide Executive
an annual bonus plan targeting cash payment of 50% of Base Salary
annually with an opportunity to earn double that amount based
upon achievement by the Company against performance objectives
approved by the Board of Directors or Committee thereof annually
("Target Bonus"). The Board of Directors or Committee thereof
shall, in its sole discretion, determine the extent to which such
performance objectives have been obtained. Objectives under
which a Target Bonus will be earned shall be achievable in a
manner substantially consistent with the senior executive
officers of the Company and its Affiliates and substantially
consistent with past practice.
3.3 Withholdings. All compensation and benefits payable to
Executive hereunder shall be subject to all federal, state, local
and other withholdings and similar taxes and payments required by
applicable law.
Article 4.
Benefits and Other Compensation
4.1 Vacation. Executive shall be entitled to the greater
of four (4) weeks of annual paid vacation or the amount of annual
paid vacation to which Executive is entitled as of the date
hereof or may become entitled under the terms of the current
vacation policy for employees of the Company and its Affiliates,
whichever is greater.
4.2 Benefits. During the term of this Agreement, the
Company shall also provide Executive with the usual health
insurance benefits it generally provides to its other senior
officers of the Company and its Affiliates. The Company shall
provide Executive with the right to participate in and to receive
benefits from life, accident, disability, medical, retirement
medical, pension, supplemental retirement, 401(k), car allowance,
bonus, long-term incentive, stock awards, profit-sharing and
savings plans, and similar benefits made available either
generally to employees of the Company or specifically to other
senior executive officers of the Company and its Affiliates as
such plans and benefits may be adopted by the Company. The
amount of such benefits shall be substantially consistent with
benefits provided to other senior executive officers of the
Company and its Affiliates and past practices (excluding the
extraordinary restricted stock grant). Target long-term
incentives shall be at least as much as those considered by the
Compensation Committee of the Board of Directors in 1998
(attached hereto), with any increase establishing a new minimum
target. Any objectives under such target long-term incentives
shall be achievable in a manner substantially consistent with the
senior executive officers of the Company and its Affiliates.
4.3 Business Expense Reimbursement. During the term of
this Agreement, Executive shall be entitled to receive
reimbursement for all reasonable out-of-pocket expenses incurred
by him (in accordance with the policies and procedures
established by the Company for its senior executive officers) in
performing services hereunder. Executive agrees to furnish to
the Company adequate records and other documentary evidence of
such expenses for which Executive seeks reimbursement. Such
expenses shall be reimbursed and accounted for under the policies
and procedures established by the Company and the Audit Committee
of the Board of Directors.
Article 5.
5.1 Non-disclosure of Proprietary Information - Non
Competition. Executive shall execute upon request the Company's
standard Non-Disclosure Agreement for officers of the Company and
its Affiliates in a form acceptable to the Company's counsel.
In any event, Executive shall maintain the confidentiality and
not use confidential information of the Company during his term
of employment and for two years following termination of his
employment. While employed hereunder, Executive shall not engage,
directly or indirectly, in any other business activity that is
competitive with, or that places him in a competing position to
that of the Company or any Affiliates (provided that Executive
may own less than two percent (2%) of the outstanding securities
of any publicly traded corporation).
5.2 No Solicitation of Employees. As a condition of
receiving benefits under this Agreement, Executive may not
directly solicit employees or full-time consultants of the
Company to leave during his employment with the Company or for a
period of two years from termination of employment.
5.3 Waiver of Claims. Executive shall also waive any
known or unknown claim against the Company and its Affiliates,
including, if applicable, any acquiring corporation, other than
those arising under the Agreement. Executive shall sign an
appropriate release if so requested upon termination of
employment.
5.4 Return of Property. All documents, records, apparatus,
equipment and other physical property which if furnished to or
obtained by Executive in the course of his employment with the
Company shall be and remain the sole property of the Company.
Executive agrees that, upon the termination of his employment, he
shall return all such property (whether or not it pertains to the
Company's proprietary information), and agrees not to make or
retain copies, reproductions or summaries of any such property.
Article 6.
Termination
6.1 By Death. The period of employment shall terminate
automatically upon the death of Executive. In such event, the
Company shall pay to Executive's beneficiaries or his estate, as
the case may be, any accrued Base Salary, pro-rata Target Bonus
based upon performance to date of death relative to target
performance, any vested deferred compensation (other than pension
plan, supplemental retirement, 401(k), or profit-sharing plan
benefits which will be paid in accordance with the terms of the
applicable plan), any benefits under any plans of the Company in
which Executive is a participant to the full extent of
Executive's rights under such plans, any accrued vacation pay and
any appropriate business expenses incurred by Executive in
connection with his duties hereunder, all to the date of
termination (collectively "Accrued Compensation"), and six (6)
months' additional Base Salary, Target Bonus and health benefits,
age and service credit under the Company's defined benefit
pension plan and supplemental pension plan (as if the Executive
had continued to perform services for such period with the same
amount of Base Salary and Target Bonus). Thereafter, the
Company's obligations hereunder shall terminate.
6.2 By Disability. If Executive is prevented from properly
performing his duties hereunder by reason of any physical or
mental incapacity for a period of more than 60 days in the
aggregate in any 365-day period, or if a determination is made by
a qualified physician selected by the Company and acceptable to
Executive or Executive's representative that continued employment
with the Company by Executive would jeopardize Executive's
physical or mental health, then, to the extent permitted by law,
the Company may terminate the employment on the 60th day of such
incapacity or following such a determination by a qualified
physician. In such event, the Company shall pay to Executive all
Accrued Compensation, and shall pay to Executive in a lump sum a
total of six (6) months' additional Base Salary, Target Bonus,
health benefits and age and service credit under the Company's
defined benefit pension plan and supplemental pension plan (as if
the Executive had continued to perform services for such period
with the same amount of Base Salary and Target Bonus).
Thereafter, the Company's obligations hereunder shall terminate.
Nothing in this Agreement shall affect Executive's rights under
any disability plan in which he is an eligible participant.
6.3 By Company for Cause. The Company may terminate
Executive's employment for Cause (as defined below) without
liability at any time with or without advance notice to
Executive. The Company shall pay Executive all Accrued
Compensation, but no other compensation or reimbursement of any
kind, including without limitation, severance compensation, and
thereafter the Company's obligations hereunder shall terminate.
Termination shall be for "Cause" in the event of the occurrence
of any of the following: (a) any intentional action or
intentional failure to act by Executive which was performed in
bad faith and to the material detriment of the Company; (b)
intentional refusal or intentional failure to act in accordance
with any lawful and proper direction or order of the Board; (c)
willful and habitual neglect of his duties of employment; or (d)
conviction of a felony crime involving fraud or an act of
dishonesty against the Company, provided that in the event that
any of the foregoing events is capable of being cured, the
Company shall provide written notice to Executive describing the
nature of such event and Executive shall thereafter have ten (10)
business days to cure such event.
6.4 At Will. At any time, the Company may terminate
Executive's employment without liability other than as set forth
below, for any reason not specified in Section 6.3 above, by
giving thirty (30) days advance written notice to Executive. If
the Company elects to terminate Executive pursuant to this
Section 6.4, the Company shall pay to Executive all Accrued
Compensation and shall pay to Executive as provided herein
Executive's Base Salary, Target Bonus and continue to pay the
benefits described in Section 4.2 (except as otherwise explicitly
provided in this Section 6.4) over the period equal to the
remaining term of this Agreement, and thereafter all obligations
of the Company shall terminate. Notwithstanding the preceding
sentence, Executive shall receive (i) his incentive bonus as
described in Section 3.2 only for the proportion of the Company's
fiscal year in which termination occurs based upon the Company's
year-to-date performance against the selected objectives, (ii)
his long-term incentive compensation, if any, only for the
proportion of the applicable period based on the Company's
performance to date of termination against selected objectives,
(iii) additional age and service credits under the Company's
defined benefit pension plan and supplemental retirement plan for
the remainder of the then current term of this Agreement as if
Executive had continued to perform services for such period, and
(iv) acceleration of vesting in full for all stock awards,
whether stock options, restricted stock, or otherwise, then held
by Executive. All such severance compensation amounts shall be
earned and become payable in full immediately upon termination of
employment. If the Company terminates this Agreement or the
employment of Executive with the Company other than pursuant to
Section 6.1, 6.2 or 6.3, then this Section 6.4 shall apply.
If such termination under this Section 6.4 shall occur within
twenty four (24) months following the occurrence of a Change-in-
Control, Executive shall be paid upon termination in a lump sum
Base Salary, Target Bonus and automobile allowance for the
remainder of the term of this Agreement, plus three years of
pension service and age credit. Executive's benefits under the
Company's defined benefit pension plan and supplemental
retirement plan shall be determined as if Executive had remained
employed with the Company for an additional three years, had
continued to receive the same amount of Base Salary for that
period, and continued to receive Target Bonus. In addition,
Executive shall be entitled to continued coverage without
premiums under the Company's health, dental and drug plan
(substantially consistent with the terms thereof in effect on the
date hereof) for himself and a spouse or minor dependent under
the same terms as executive officers of the Company and its
Affiliates until such Executive and spouse are eligible for
Medicare or ten years, whichever is shorter. If Executive or his
spouse is or becomes covered under the health plan of another
employer, the Company's plan shall be secondary for as long as
that coverage continues. Payment under this provision for Change-
in-Control shall release the Company from payment of any other
benefits specified above other than Accrued Compensation,
acceleration of vesting of stock-based benefits, and any other
vested rights at time of termination.
6.5 Constructive Termination. In the event that the
Company changes the terms and conditions of Executive's
employment with the Company such that a "Constructive
Termination" has occurred, and Executive ceases performance of
services for the Company thereafter, such action shall be deemed
to be a termination of employment of Executive without cause
pursuant to Section 6.4. For purposes of this Agreement,
"Constructive Termination" shall mean (i) reduction of
Executive's Base Salary and/or Target Bonus, (ii) failure to
provide a package of welfare benefit plans, pension benefit
plans, and fringe benefits for Executive made available generally
to employees of the Company and its Affiliates and to other
senior executives of the Company and its Affiliates which, taken
as a whole, provide substantially similar benefits to those in
which the Executive is entitled to participate immediately prior
to the Commencement Date of this Agreement or in effect prior to
the occurrence of a Change-in-Control, whichever is greater, or
any action by the Company which would adversely affect
Executive's participation, (iii) material reduction of
Executive's benefits under any of such plans, (iv) change in
Executive's responsibilities, authority, title, office, or
reporting relationship resulting in diminution of position,
excluding for this purpose an isolated, insubstantial and
inadvertent action not taken in bad faith which is remedied by
the Company promptly after notice thereof is given by Executive,
and excluding the reporting to the Chief Financial Officer of an
acquiring parent company, (v) in the case of a Change-in-Control
only, a request that Executive relocate to a worksite that is
more than 15 miles from his prior worksite, unless Executive
accepts such relocation opportunity, (vi) material reduction in
Executive's duties, (vii) failure or refusal of a successor to
the Company and any parent company to assume the Company's
obligations under this Agreement, as provided in Section 7.2.2,
or (viii) material breach by the Company or any successor to the
Company or any parent company of any of the material provisions
of this Agreement.
6.6 Change-in-Control. For purposes of this Agreement, a
"Change-in-Control" shall have occurred if at any time during the
term of Executive's employment hereunder, any of the following
events shall occur:
(a) The Company is merged, or consolidated, or
reorganized into or with another corporation or other legal
person, and as a result of such merger, consolidation or
reorganization less than 50% of the combined voting power of the
then-outstanding securities of such corporation or person
immediately after such transaction are held in the aggregate by
the holders of voting securities of the Company immediately prior
to such transaction;
(b) The Company sells at least fifty percent (50%) of
its assets in a twelve (12) month period to any other corporation
or other legal person and thereafter, less than 50% of the
combined voting power of the then-outstanding voting securities
of the acquiring or consolidated entity are held in the aggregate
by the holders of voting securities of the Company immediately
prior to such sale;
(c) There is a report filed after the date of this
Agreement on Schedule 13D or Schedule 14 D-1 (or any successor
schedule, form or report), each as promulgated pursuant to the
Securities Exchange Act of 1934 (the "Exchange Act") disclosing
that any person (as the term "person" is used in Section 13(d)(3)
or Section 14(d)(2) of the Exchange Act) has become the
beneficial owner (as the term "beneficial owner" is defined under
Rule 13d-3 or any successor rule or regulation promulgated under
the Exchange Act) representing 25% or more of the combined voting
power of the then-outstanding voting securities of the Company;
(d) The Company shall file a report or proxy statement
with the Securities and Exchange Commission pursuant to the
Exchange Act disclosing in response to item 1 of Form 8-X
thereunder or Item 5(f) of Schedule 14A thereunder (or any
successor schedule, form or report or item therein) that the
change in control of the Company has or may have occurred or will
or may occur in the future pursuant to any then-existing contract
or transaction;
(e) During any period of two consecutive years,
individuals who at the beginning of any such period constitute
the directors of the Company cease for any reason to constitute
at least a majority thereof unless the election or the nomination
for election by the Company's shareholders of each director of
the Company first elected during such period was approved by a
vote of at least two-thirds of the directors of the Company then
still in office who were directors of the Company at the
beginning of such period (an "Incumbent Director"), and any
director so approved shall be treated as an Incumbent Director in
the future; or
(f) the liquidation or dissolution of the Company.
6.7 Excise Tax Gross-Up. In the event it shall be
determined that any payment by the Company and/or its Affiliates
to or for the benefit of Executive, whether paid or payable under
this Agreement or otherwise, but determined without regard to any
additional payments required under this Section 6.7 (a
"Payment"), would be subject to the excise tax imposed by Section
4999 of the Code, or any comparable federal, state, or local
excise tax (such excise tax, together with any interest and
penalties, are hereinafter collectively referred to as the
"Excise Tax"), then Executive shall be entitled to receive an
additional payment (a "Gross-Up Payment") in such an amount that
after the payment of all taxes (including without limitation, any
interest and penalties on such taxes and the excise tax) on the
Payment and on the Gross-Up Payment, Executive shall retain an
amount equal to the Payment minus all applicable income and
employment taxes on the Payment. The intent of the parties is
that the Company shall be solely responsible for, and shall pay,
any Excise Tax on the Payment and Gross-Up Payment and any
income, employment and other taxes (including, without
limitation, penalties and interest) imposed on any Gross-Up
Payment, as well as any loss of tax deduction caused by the Gross-
Up Payment or applicable provisions of the Code. All
determinations required to be made under this Section 6.7,
including without limitation, whether and when a Gross-Up Payment
is required and the amount of such Gross-Up Payment and the
assumptions to be utilized in arriving at such determinations,
shall be made by a nationally recognized accounting firm that is
the Company's outside auditor at the time of such determinations,
which firm must be reasonably acceptable to Executive. All fees
and expenses of such accounting firm shall be borne solely by the
Company.
6.8 Termination by Executive. At any time, whether or not
as a result of Executive's retirement, Executive may terminate
his employment by giving thirty (30) days advance written notice
to the Company. The Company shall pay Executive all Accrued
Compensation, but no other compensation or reimbursement of any
kind, including without limitation, severance compensation, and
thereafter the Company's obligations hereunder shall terminate.
In the event that Executive voluntarily terminates his employment
with the Company during the thirteenth calendar month beginning
after the occurrence of a Change-in-Control, Executive shall also
receive a total of twelve (12) months' Base Salary, Target
Bonus, service and pension credits and health, dental and drug
benefits as if Executive's employment had been involuntarily
terminated by the Company pursuant to Section 6.4 above, except
that Executive shall not be entitled to any tax "gross-up"
benefits described in Section 6.7. Executive benefits under the
Company's defined benefit pension plan and supplemental
retirement plan shall be determined as if Executive had remained
employed with the Company for that period.
Article 7.
General Provisions
7.1 Governing Law. The validity, interpretation,
construction and performance of this Agreement and the rights of
the parties thereunder shall be interpreted and executed under
California law without reference to principles of conflicts of
laws. The parties expressly agree that inasmuch as the Company's
headquarters and principal place of business are located in
California, it is appropriate that California law govern this
Agreement.
7.2 Assignment; Successors; Binding Agreement.
7.2.1 Executive may not assign, pledge or
encumber his interest in this Agreement or any part thereof.
7.2.2 The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or
assets of the Company, by operation of law or by agreement in
form and substance reasonably satisfactory to Executive, to
assume and agree to perform this Agreement in the same manner and
to the same extent that the Company would be required to perform
it if no such succession had taken place.
7.2.3 This Agreement shall inure to the benefit of and
be enforceable by Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees,
devisees and legatees. If Executive should die while any amount
is at such time payable to him hereunder, all such amounts,
unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to Executive's devisee, legates
or other designee or, if there be no such designee, to his
estate.
7.3 Attorney Fees. The Company will reimburse Executive or
Executive's successor-in-interest for all reasonable attorney
fees and costs associated with bringing any action under this
Agreement to enforce their rights hereunder, regardless of the
outcome of such proceeding, provided the court does not find the
claim was brought in bad faith.
7.4 Non-Publication. The parties mutually agree not to
disclose publicly the terms of this Agreement except to the
extent that disclosure is mandated by applicable law.
7.5 No Waiver of Breach. The waiver by any party of the
breach of any provision of this Agreement shall not be deemed to
be a waiver of any subsequent breach. No delay in exercising
any right hereunder shall be deemed to be a waiver of the party's
rights hereunder.
7.6 Notice. For the purposes of this Agreement, notices
and all other communications provided for in this agreement shall
be in writing and shall be deemed to have been duly given when
delivered or mailed by certified or registered mail, return
receipt requested, postage prepaid, addressed to the respective
addresses set forth below or to such other address as either
party may have furnished to the other in writing in accordance
herewith, except that notice of change of address shall be
effective only upon receipt.
To the Company:Consolidated Freightways
Corporation
175 Linfield Drive
Menlo Park, CA 94025
Attn: Chairman of Compensation
Committee
To Executive: David F. Morrison
7.7 Modification; Waiver; Entire Agreement. No provisions
of this Agreement may be modified, waived or discharged unless
such waiver, modification or discharge is agreed to in writing
signed by Executive and such officer as may be specifically
designated by the Board of Directors of the Company. No waiver
by either party hereto at any time of any breach by the other
party of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a
waiver of similar or dissimilar provisions or conditions at the
same or any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either
party which are not expressly set forth in this Agreement.
7.8 Validity. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which
shall remain in full force and effect.
7.9 Executive Acknowledgment. Executive acknowledges (a)
that he has consulted with or had had the opportunity to consult
with independent counsel of his own choice concerning this
Agreement, and has been advised to do so by the Company, and (b)
that he has read and understands the Agreement, is fully aware of
its legal effect, and has entered into it freely based on his own
judgment.
7.10 Injunctive Relief. The parties agrees that the
services to be rendered by Executive hereunder are of a unique
nature and that in the event of any breach or threatened breach
of any of the covenants contained herein, the damage or imminent
damage to the value and the goodwill of the Company's business
will be irreparable and extremely difficult to estimate, making
any remedy at law or in damages inadequate. Accordingly, the
parties agree that the Company shall be entitled to injunctive
relief against Executive in the event of any breach or threatened
breach of any such provisions by Executive, in addition to any
other relief (including damages) available to the Company under
this Agreement or under law. Both parties agree that the remedy
specified in this section is not exclusive of any other remedy
for the breach by Executive of the terms hereof.
7.11 Counterparts. This Agreement may be executed in one or
more counterparts, all of which taken together shall constitute
one and the same Agreement.
7.12 No Mitigation. The Executive shall not be required to
mitigate the amount of payments hereunder by seeking other
employment or otherwise, and any amount earned by Executive as a
result of employment by other employer after the date of
termination shall not reduce the payments hereunder.
7.13 Indemnity. The Company and its Affiliates shall
indemnify and hold Executive harmless against any loss, cost or
expense arising out of or relating to the performance of his
duties to the Company and its Affiliates, and shall maintain
adequate liability insurance covering such Executive's acts and
omissions occurring during the term of this Agreement and for a
period of six years thereafter.
Executed by the parties as of the date and year first above
written.
Consolidated Freightways
Corporation
/s/W. Roger Curry
W. Roger Curry
President and Chief Executive
Officer
Consolidated Freightways
Corporation
Executive:
/s/David F. Morrison
David F. Morrison
Executive Vice President & Chief
Financial Officer
Consolidated Freightways
Corporation
EMPLOYMENT AGREEMENT
This Agreement, dated as of December 8, 1998, is made by and
between Consolidated Freightways Corporation, and Consolidated
Freightways Corporation of Delaware, Delaware corporations
(hereinafter, together with any successor Corporation(s), the
"Company"), and Joseph Schillaci (hereinafter "Executive").
Recitals
Whereas, Executive is currently employed by the Company as
its Executive Vice President - Sales and Marketing;
Whereas, the Company and Executive wish to set forth in this
Agreement the terms and conditions under which Executive is to be
continued to be employed by the Company on and after the date
hereof; and
Whereas, the Company wishes to be assured that Executive
will be available to the Company for an additional two (2) years
after December 31, 1998.
Now, Therefore, the Company and Executive, in consideration
of the mutual promises set forth herein, agree as follows:
Article 1.
Term of Agreement
1.1 Commencement Date. Executive's employment with the
Company under this Agreement shall commence as of the date of
this Agreement ("Commencement Date") and shall expire on December
31, 2000, unless further extended pursuant to Section 1.2 or
terminated earlier pursuant to Article 6. Notwithstanding the
foregoing, this Agreement shall automatically terminate upon
Executive's attainment of age sixty-five (65).
1.2 Renewal. The term of this Agreement shall be
automatically renewed as of each January 1, beginning with
January 1, 2000, for one (1) additional year unless either party
delivers written notice to the other at least thirty (30) days
prior to such December 31 of an intention to terminate this
Agreement upon the then current termination date. In the event
of a Change-in-Control, the term of this Agreement shall
automatically be extended for one additional year.
Article 2.
Employment Duties
2.1 Title/Responsibilities. Executive hereby accepts
employment with the Company pursuant to the terms and conditions
hereof. Executive agrees to serve the Company in his current
position at the corporate headquarters. Executive shall report to
the Chief Executive Officer of the Company, or the senior sales
and marketing executive of the parent company of any company that
may acquire the Company. Executive shall have the powers and
duties commensurate with such position, including but not limited
to, hiring personnel necessary to carry out the responsibilities
for such position as set forth in the annual business plan
approved by the Board of Directors of the Company.
2.2 Full Time Attention. Executive shall devote his best
efforts and his full business time and attention to the
performance of the services customarily incident to such office
and to such other services as the Board or senior sales and
marketing executive of an acquiring parent company may reasonably
request, provided that Executive may also serve on the Boards of
Directors of one or more other companies with the prior consent
of the Board and may serve on the governing bodies of such
charitable organizations as Executive determines.
2.3 Other Activities. Except upon the prior written
consent of the Board of Directors or senior sales and marketing
executive of an acquiring parent company, Executive shall not
during the period of employment engage, directly or indirectly,
in any other business activity (whether or not pursued for
pecuniary advantage) that is or may be competitive with, or that
might place him in a competing position to that of the Company or
any other corporation or entity that directly or indirectly
controls, is controlled by, or is under common control with the
Company (an "Affiliate"), provided that Executive may own less
than two percent (2%) of the outstanding securities of any such
publicly traded competing corporation.
Article 3.
3.1 Base Salary. Executive shall receive a base salary at
an annual rate of not less than his current salary payable
weekly in equal installments in accordance with the Company's
normal payroll practices ("Base Salary"). The Company's Board of
Directors shall provide Executive with annual performance
reviews, and, thereafter, Executive shall be entitled to such
increase in Base Salary as the Board of Directors or a duly
authorized Committee thereof may from time to time establish in
its sole discretion, which, subject to performance, shall be
commensurate with the increases for the other senior executives
of the Company and its Affiliates. Any increase in salary shall
automatically increase the Base Salary payable by the Company.
3.2 Incentive Bonus. The Company shall provide Executive
an annual bonus plan targeting cash payment of 50% of Base Salary
annually with an opportunity to earn double that amount based
upon achievement by the Company against performance objectives
approved by the Board of Directors or Committee thereof annually
("Target Bonus"). The Board of Directors or Committee thereof
shall, in its sole discretion, determine the extent to which such
performance objectives have been obtained. Objectives under
which a Target Bonus will be earned shall be achievable in a
manner substantially consistent with the senior executive
officers of the Company and its Affiliates and substantially
consistent with past practice.
3.3 Withholdings. All compensation and benefits payable to
Executive hereunder shall be subject to all federal, state, local
and other withholdings and similar taxes and payments required by
applicable law.
Article 4.
Benefits and Other Compensation
4.1 Vacation. Executive shall be entitled to the greater
of four (4) weeks of annual paid vacation or the amount of annual
paid vacation to which Executive is entitled as of the date
hereof or may become entitled under the terms of the current
vacation policy for employees of the Company and its Affiliates,
whichever is greater.
4.2 Benefits. During the term of this Agreement, the
Company shall also provide Executive with the usual health
insurance benefits it generally provides to its other senior
officers of the Company and its Affiliates. The Company shall
provide Executive with the right to participate in and to receive
benefits from life, accident, disability, medical, retirement
medical, pension, supplemental retirement, 401(k), car allowance,
bonus, long-term incentive, stock awards, profit-sharing and
savings plans, and similar benefits made available either
generally to employees of the Company or specifically to other
senior executive officers of the Company and its Affiliates as
such plans and benefits may be adopted by the Company. The
amount of such benefits shall be substantially consistent with
benefits provided to other senior executive officers of the
Company and its Affiliates and past practices (excluding the
extraordinary restricted stock grant). Target long-term
incentives shall be at least as much as those considered by the
Compensation Committee of the Board of Directors in 1998
(attached hereto), with any increase establishing a new minimum
target. Any objectives under such target long-term incentives
shall be achievable in a manner substantially consistent with the
senior executive officers of the Company and its Affiliates.
4.3 Business Expense Reimbursement. During the term of
this Agreement, Executive shall be entitled to receive
reimbursement for all reasonable out-of-pocket expenses incurred
by him (in accordance with the policies and procedures
established by the Company for its senior executive officers) in
performing services hereunder. Executive agrees to furnish to
the Company adequate records and other documentary evidence of
such expenses for which Executive seeks reimbursement. Such
expenses shall be reimbursed and accounted for under the policies
and procedures established by the Company and the Audit Committee
of the Board of Directors.
Article 5.
5.1 Non-disclosure of Proprietary Information - Non
Competition. Executive shall execute upon request the Company's
standard Non-Disclosure Agreement for officers of the Company and
its Affiliates in a form acceptable to the Company's counsel.
In any event, Executive shall maintain the confidentiality and
not use confidential information of the Company during his term
of employment and for two years following termination of his
employment. While employed hereunder, Executive shall not engage,
directly or indirectly, in any other business activity that is
competitive with, or that places him in a competing position to
that of the Company or any Affiliates (provided that Executive
may own less than two percent (2%) of the outstanding securities
of any publicly traded corporation).
5.2 No Solicitation of Employees. As a condition of
receiving benefits under this Agreement, Executive may not
directly solicit employees or full-time consultants of the
Company to leave during his employment with the Company or for a
period of two years from termination of employment.
5.3 Waiver of Claims. Executive shall also waive any
known or unknown claim against the Company and its Affiliates,
including, if applicable, any acquiring corporation, other than
those arising under the Agreement. Executive shall sign an
appropriate release if so requested upon termination of
employment.
5.4 Return of Property. All documents, records, apparatus,
equipment and other physical property which if furnished to or
obtained by Executive in the course of his employment with the
Company shall be and remain the sole property of the Company.
Executive agrees that, upon the termination of his employment, he
shall return all such property (whether or not it pertains to the
Company's proprietary information), and agrees not to make or
retain copies, reproductions or summaries of any such property.
Article 6.
Termination
6.1 By Death. The period of employment shall terminate
automatically upon the death of Executive. In such event, the
Company shall pay to Executive's beneficiaries or his estate, as
the case may be, any accrued Base Salary, pro-rata Target Bonus
based upon performance to date of death relative to target
performance, any vested deferred compensation (other than pension
plan, supplemental retirement, 401(k), or profit-sharing plan
benefits which will be paid in accordance with the terms of the
applicable plan), any benefits under any plans of the Company in
which Executive is a participant to the full extent of
Executive's rights under such plans, any accrued vacation pay and
any appropriate business expenses incurred by Executive in
connection with his duties hereunder, all to the date of
termination (collectively "Accrued Compensation"), and six (6)
months' additional Base Salary, Target Bonus, health benefits and
age and service credit under the Company's defined benefit
pension plan and supplemental pension plan (as if the Executive
had continued to perform services for such period with the same
amount of Base Salary and Target Bonus). Thereafter, the
Company's obligations hereunder shall terminate.
6.2 By Disability. If Executive is prevented from properly
performing his duties hereunder by reason of any physical or
mental incapacity for a period of more than 60 days in the
aggregate in any 365-day period, or if a determination is made by
a qualified physician selected by the Company and acceptable to
Executive or Executive's representative that continued employment
with the Company by Executive would jeopardize Executive's
physical or mental health, then, to the extent permitted by law,
the Company may terminate the employment on the 60th day of such
incapacity or following such a determination by a qualified
physician. In such event, the Company shall pay to Executive all
Accrued Compensation, and shall pay to Executive in a lump sum a
total of six (6) months' additional Base Salary, Target Bonus,
health benefits, age and service credit under the Company's
defined benefit pension plan and supplemental pension plan (as if
Executive had continued to perform services for such period with
the same amount of Base Salary and Target Bonus). Thereafter the
Company's obligations hereunder shall terminate. Nothing in this
Agreement shall affect Executive's rights under any disability
plan in which he is an eligible participant.
6.3 By Company for Cause. The Company may terminate
Executive's employment for Cause (as defined below) without
liability at any time with or without advance notice to
Executive. The Company shall pay Executive all Accrued
Compensation, but no other compensation or reimbursement of any
kind, including without limitation, severance compensation, and
thereafter the Company's obligations hereunder shall terminate.
Termination shall be for "Cause" in the event of the occurrence
of any of the following: (a) any intentional action or
intentional failure to act by Executive which was performed in
bad faith and to the material detriment of the Company; (b)
intentional refusal or intentional failure to act in accordance
with any lawful and proper direction or order of the Board; (c)
willful and habitual neglect of his duties of employment; or (d)
conviction of a felony crime involving fraud or an act of
dishonesty against the Company, provided that in the event that
any of the foregoing events is capable of being cured, the
Company shall provide written notice to Executive describing the
nature of such event and Executive shall thereafter have ten (10)
business days to cure such event.
6.4 At Will. At any time, the Company may terminate
Executive's employment without liability other than as set forth
below, for any reason not specified in Section 6.3 above, by
giving thirty (30) days advance written notice to Executive. If
the Company elects to terminate Executive pursuant to this
Section 6.4, the Company shall pay to Executive all Accrued
Compensation and shall pay to Executive as provided herein
Executive's Base Salary, Target Bonus and continue to pay the
benefits described in Section 4.2 (except as otherwise explicitly
provided in this Section 6.4) over the period equal to the
remaining term of this Agreement, and thereafter all obligations
of the Company shall terminate. Notwithstanding the preceding
sentence, Executive shall receive (i) his incentive bonus as
described in Section 3.2 only for the proportion of the Company's
fiscal year in which termination occurs based upon the Company's
year-to-date performance against the selected objectives, (ii)
his long-term incentive compensation, if any, only for the
proportion of the applicable period based on the Company's
performance to date of termination against selected objectives,
(iii) additional age and service credits under the Company's
defined benefit pension plan and supplemental retirement plan for
the remainder of the then current term of this Agreement as if
Executive had continued to perform services for such period, and
(iv) acceleration of vesting in full for all stock awards,
whether stock options, restricted stock, or otherwise, then held
by Executive. All such severance compensation amounts shall be
earned and become payable in full immediately upon termination of
employment. If the Company terminates this Agreement or the
employment of Executive with the Company other than pursuant to
Section 6.1, 6.2 or 6.3, then this Section 6.4 shall apply.
If such termination under this Section 6.4 shall occur within
twenty four (24) months following the occurrence of a Change-in-
Control, Executive shall be paid upon termination in a lump sum
Base Salary, Target Bonus and automobile allowance for the
remainder of the term of this Agreement, plus three years of
pension service and age credit. Executive's benefits under the
Company's defined benefit pension plan and supplemental
retirement plan shall be determined as if Executive had remained
employed with the Company for an additional three years, had
continued to receive the same amount of Base Salary for that
period, and continued to receive Target Bonus. In addition,
Executive shall be entitled to continued coverage without
premiums under the Company's health, dental and drug plan
(substantially consistent with the terms thereof in effect on the
date hereof) for himself and a spouse or minor dependent under
the same terms as executive officers of the Company and its
Affiliates until such Executive and spouse are eligible for
Medicare or ten years, whichever is shorter. If Executive or his
spouse is or becomes covered under the health plan of another
employer, the Company's plan shall be secondary for as long as
that coverage continues. Payment under this provision for Change-
in-Control shall release the Company from payment of any other
benefits specified above other than Accrued Compensation,
acceleration of vesting of stock-based benefits, and any other
vested rights at time of termination.
6.5 Constructive Termination. In the event that the
Company changes the terms and conditions of Executive's
employment with the Company such that a "Constructive
Termination" has occurred, and Executive ceases performance of
services for the Company thereafter, such action shall be deemed
to be a termination of employment of Executive without cause
pursuant to Section 6.4. For purposes of this Agreement,
"Constructive Termination" shall mean (i) reduction of
Executive's Base Salary and/or Target Bonus, (ii) failure to
provide a package of welfare benefit plans, pension benefit
plans, and fringe benefits for Executive made available generally
to employees of the Company and its Affiliates and to other
senior executives of the Company and its Affiliates which, taken
as a whole, provide substantially similar benefits to those in
which the Executive is entitled to participate immediately prior
to the Commencement Date of this Agreement or in effect prior to
the occurrence of a Change-in-Control, whichever is greater, or
any action by the Company which would adversely affect
Executive's participation, (iii) material reduction of
Executive's benefits under any of such plans, (iv) change in
Executive's responsibilities, authority, title, office, or
reporting relationship resulting in diminution of position,
excluding for this purpose an isolated, insubstantial and
inadvertent action not taken in bad faith which is remedied by
the Company promptly after notice thereof is given by Executive,
and excluding the reporting to the senior sales and marketing
executive of an acquiring parent company, (v) in the case of a
Change-in-Control only, a request that Executive relocate to a
worksite that is more than 15 miles from his prior worksite,
unless Executive accepts such relocation opportunity,
(vi) material reduction in Executive's duties, (vii) failure or
refusal of a successor to the Company and any parent company to
assume the Company's obligations under this Agreement, as
provided in Section 7.2.2, or (viii) material breach by the
Company or any successor to the Company or any parent company of
any of the material provisions of this Agreement.
6.6 Change-in-Control. For purposes of this Agreement, a
"Change-in-Control" shall have occurred if at any time during the
term of Executive's employment hereunder, any of the following
events shall occur:
(a) The Company is merged, or consolidated, or
reorganized into or with another corporation or other legal
person, and as a result of such merger, consolidation or
reorganization less than 50% of the combined voting power of the
then-outstanding securities of such corporation or person
immediately after such transaction are held in the aggregate by
the holders of voting securities of the Company immediately prior
to such transaction;
(b) The Company sells at least fifty percent (50%) of
its assets in a twelve (12) month period to any other corporation
or other legal person and thereafter, less than 50% of the
combined voting power of the then-outstanding voting securities
of the acquiring or consolidated entity are held in the aggregate
by the holders of voting securities of the Company immediately
prior to such sale;
(c) There is a report filed after the date of this
Agreement on Schedule 13D or Schedule 14 D-1 (or any successor
schedule, form or report), each as promulgated pursuant to the
Securities Exchange Act of 1934 (the "Exchange Act") disclosing
that any person (as the term "person" is used in Section 13(d)(3)
or Section 14(d)(2) of the Exchange Act) has become the
beneficial owner (as the term "beneficial owner" is defined under
Rule 13d-3 or any successor rule or regulation promulgated under
the Exchange Act) representing 25% or more of the combined voting
power of the then-outstanding voting securities of the Company;
(d) The Company shall file a report or proxy statement
with the Securities and Exchange Commission pursuant to the
Exchange Act disclosing in response to item 1 of Form 8-X
thereunder or Item 5(f) of Schedule 14A thereunder (or any
successor schedule, form or report or item therein) that the
change in control of the Company has or may have occurred or will
or may occur in the future pursuant to any then-existing contract
or transaction;
(e) During any period of two consecutive years,
individuals who at the beginning of any such period constitute
the directors of the Company cease for any reason to constitute
at least a majority thereof unless the election or the nomination
for election by the Company's shareholders of each director of
the Company first elected during such period was approved by a
vote of at least two-thirds of the directors of the Company then
still in office who were directors of the Company at the
beginning of such period (an "Incumbent Director"), and any
director so approved shall be treated as an Incumbent Director in
the future; or
(f) the liquidation or dissolution of the Company.
6.7 Excise Tax Gross-Up. In the event it shall be
determined that any payment by the Company and/or its Affiliates
to or for the benefit of Executive, whether paid or payable under
this Agreement or otherwise, but determined without regard to any
additional payments required under this Section 6.7 (a
"Payment"), would be subject to the excise tax imposed by Section
4999 of the Code, or any comparable federal, state, or local
excise tax (such excise tax, together with any interest and
penalties, are hereinafter collectively referred to as the
"Excise Tax"), then Executive shall be entitled to receive an
additional payment (a "Gross-Up Payment") in such an amount that
after the payment of all taxes (including without limitation, any
interest and penalties on such taxes and the excise tax) on the
Payment and on the Gross-Up Payment, Executive shall retain an
amount equal to the Payment minus all applicable income and
employment taxes on the Payment. The intent of the parties is
that the Company shall be solely responsible for, and shall pay,
any Excise Tax on the Payment and Gross-Up Payment and any
income, employment and other taxes (including, without
limitation, penalties and interest) imposed on any Gross-Up
Payment, as well as any loss of tax deduction caused by the Gross-
Up Payment or applicable provisions of the Code. All
determinations required to be made under this Section 6.7,
including without limitation, whether and when a Gross-Up Payment
is required and the amount of such Gross-Up Payment and the
assumptions to be utilized in arriving at such determinations,
shall be made by a nationally recognized accounting firm that is
the Company's outside auditor at the time of such determinations,
which firm must be reasonably acceptable to Executive. All fees
and expenses of such accounting firm shall be borne solely by the
Company.
6.8 Termination by Executive. At any time, whether or not
as a result of Executive's retirement, Executive may terminate
his employment by giving thirty (30) days advance written notice
to the Company. The Company shall pay Executive all Accrued
Compensation, but no other compensation or reimbursement of any
kind, including without limitation, severance compensation, and
thereafter the Company's obligations hereunder shall terminate.
In the event that Executive voluntarily terminates his employment
with the Company during the thirteenth calendar month beginning
after the occurrence of a Change-in-Control, Executive shall also
receive a total of twelve (12) months' Base Salary, Target
Bonus, service and pension credits and health, dental and drug
benefits as if Executive's employment had been involuntarily
terminated by the Company pursuant to Section 6.4 above, except
that Executive shall not be entitled to any tax "gross-up"
benefits described in Section 6.7. Executive benefits under the
Company's defined benefit pension plan and supplemental
retirement plan shall be determined as if Executive had remained
employed with the Company for that period.
Article 7.
General Provisions
7.1 Governing Law. The validity, interpretation,
construction and performance of this Agreement and the rights of
the parties thereunder shall be interpreted and executed under
California law without reference to principles of conflicts of
laws. The parties expressly agree that inasmuch as the Company's
headquarters and principal place of business are located in
California, it is appropriate that California law govern this
Agreement.
7.2 Assignment; Successors; Binding Agreement.
7.2.1 Executive may not assign, pledge or
encumber his interest in this Agreement or any part thereof.
7.2.2 The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or
assets of the Company, by operation of law or by agreement in
form and substance reasonably satisfactory to Executive, to
assume and agree to perform this Agreement in the same manner and
to the same extent that the Company would be required to perform
it if no such succession had taken place.
7.2.3 This Agreement shall inure to the benefit of and
be enforceable by Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees,
devisees and legatees. If Executive should die while any amount
is at such time payable to him hereunder, all such amounts,
unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to Executive's devisee, legates
or other designee or, if there be no such designee, to his
estate.
7.3 Attorney Fees. The Company will reimburse Executive or
Executive's successor-in-interest for all reasonable attorney
fees and costs associated with bringing any action under this
Agreement to enforce their rights hereunder, regardless of the
outcome of such proceeding, provided the court does not find the
claim was brought in bad faith.
7.4 Non-Publication. The parties mutually agree not to
disclose publicly the terms of this Agreement except to the
extent that disclosure is mandated by applicable law.
7.5 No Waiver of Breach. The waiver by any party of the
breach of any provision of this Agreement shall not be deemed to
be a waiver of any subsequent breach. No delay in exercising
any right hereunder shall be deemed to be a waiver of the party's
rights hereunder.
7.6 Notice. For the purposes of this Agreement, notices
and all other communications provided for in this agreement shall
be in writing and shall be deemed to have been duly given when
delivered or mailed by certified or registered mail, return
receipt requested, postage prepaid, addressed to the respective
addresses set forth below or to such other address as either
party may have furnished to the other in writing in accordance
herewith, except that notice of change of address shall be
effective only upon receipt.
To the Company:Consolidated Freightways
Corporation
175 Linfield Drive
Menlo Park, CA 94025
Attn: Chairman of Compensation
Committee
To Executive: Joseph R. Schillaci
7.7 Modification; Waiver; Entire Agreement. No provisions
of this Agreement may be modified, waived or discharged unless
such waiver, modification or discharge is agreed to in writing
signed by Executive and such officer as may be specifically
designated by the Board of Directors of the Company. No waiver
by either party hereto at any time of any breach by the other
party of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a
waiver of similar or dissimilar provisions or conditions at the
same or any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either
party which are not expressly set forth in this Agreement.
7.8 Validity. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which
shall remain in full force and effect.
7.9 Executive Acknowledgment. Executive acknowledges (a)
that he has consulted with or had had the opportunity to consult
with independent counsel of his own choice concerning this
Agreement, and has been advised to do so by the Company, and (b)
that he has read and understands the Agreement, is fully aware of
its legal effect, and has entered into it freely based on his own
judgment.
7.10 Injunctive Relief. The parties agrees that the
services to be rendered by Executive hereunder are of a unique
nature and that in the event of any breach or threatened breach
of any of the covenants contained herein, the damage or imminent
damage to the value and the goodwill of the Company's business
will be irreparable and extremely difficult to estimate, making
any remedy at law or in damages inadequate. Accordingly, the
parties agree that the Company shall be entitled to injunctive
relief against Executive in the event of any breach or threatened
breach of any such provisions by Executive, in addition to any
other relief (including damages) available to the Company under
this Agreement or under law. Both parties agree that the remedy
specified in this section is not exclusive of any other remedy
for the breach by Executive of the terms hereof.
7.11 Counterparts. This Agreement may be executed in one or
more counterparts, all of which taken together shall constitute
one and the same Agreement.
7.12 No Mitigation. The Executive shall not be required to
mitigate the amount of payments hereunder by seeking other
employment or otherwise, and any amount earned by Executive as a
result of employment by other employer after the date of
termination shall not reduce the payments hereunder.
7.13 Indemnity. The Company and its Affiliates shall
indemnify and hold Executive harmless against any loss, cost or
expense arising out of or relating to the performance of his
duties to the Company and its Affiliates, and shall maintain
adequate liability insurance covering such Executive's acts and
omissions occurring during the term of this Agreement and for a
period of six years thereafter.
Executed by the parties as of the date and year first above
written.
Consolidated Freightways
Corporation
/s/W. Roger Curry
W. Roger Curry
President and Chief Executive
Officer
Consolidated Freightways
Corporation
Executive:
/s/Joseph R. Schillaci
Joseph R. Schillaci
Executive Vice President - Sales &
Marketing
Consolidated Freightways
Corporation
EMPLOYMENT AGREEMENT
This Agreement, dated as of December 8, 1998, is made by and
between Consolidated Freightways Corporation, and Consolidated
Freightways Corporation of Delaware, Delaware corporations
(hereinafter, together with any successor Corporation(s), the
"Company"), and Robert E. Wrightson (hereinafter "Executive").
Recitals
Whereas, Executive is currently employed by the Company as
its Senior Vice President and Controller;
Whereas, the Company and Executive wish to set forth in this
Agreement the terms and conditions under which Executive is to be
continued to be employed by the Company on and after the date
hereof; and
Whereas, the Company wishes to be assured that Executive
will be available to the Company for an additional two (2) years
after December 31, 1998.
Now, Therefore, the Company and Executive, in consideration
of the mutual promises set forth herein, agree as follows:
Article 1.
Term of Agreement
1.1 Commencement Date. Executive's employment with the
Company under this Agreement shall commence as of the date of
this Agreement ("Commencement Date") and shall expire on December
31, 2000, unless further extended pursuant to Section 1.2 or
terminated earlier pursuant to Article 6. Notwithstanding the
foregoing, this Agreement shall automatically terminate upon
Executive's attainment of age sixty-five (65).
1.2 Renewal. The term of this Agreement shall be
automatically renewed as of each January 1, beginning with
January 1, 2000, for one (1) additional year unless either party
delivers written notice to the other at least thirty (30) days
prior to such December 31 of an intention to terminate this
Agreement upon the then current termination date. In the event
of a Change-in-Control, the term of this Agreement shall
automatically be extended for one additional year.
Article 2.
Employment Duties
2.1 Title/Responsibilities. Executive hereby accepts
employment with the Company pursuant to the terms and conditions
hereof. Executive agrees to serve the Company in his current
position at the corporate headquarters. Executive shall report to
the Chief Financial Officer of the Company, or the Chief
Financial Officer of the parent company of any company that may
acquire the Company. Executive shall have the powers and duties
commensurate with such position, including but not limited to,
hiring personnel necessary to carry out the responsibilities for
such position as set forth in the annual business plan approved
by the Board of Directors of the Company.
2.2 Full Time Attention. Executive shall devote his best
efforts and his full business time and attention to the
performance of the services customarily incident to such office
and to such other services as the Board or Chief Financial
Officer may reasonably request, provided that Executive may also
serve on the Boards of Directors of one or more other companies
with the prior consent of the Board and may serve on the
governing bodies of such charitable organizations as Executive
determines.
2.3 Other Activities. Except upon the prior written
consent of the Board of Directors or Chief Financial Officer,
Executive shall not during the period of employment engage,
directly or indirectly, in any other business activity (whether
or not pursued for pecuniary advantage) that is or may be
competitive with, or that might place him in a competing position
to that of the Company or any other corporation or entity that
directly or indirectly controls, is controlled by, or is under
common control with the Company (an "Affiliate"), provided that
Executive may own less than two percent (2%) of the outstanding
securities of any such publicly traded competing corporation.
Article 3.
3.1 Base Salary. Executive shall receive a base salary at
an annual rate of not less than his current salary payable
weekly in equal installments in accordance with the Company's
normal payroll practices ("Base Salary"). The Company's Board of
Directors shall provide Executive with annual performance
reviews, and, thereafter, Executive shall be entitled to such
increase in Base Salary as the Board of Directors or a duly
authorized Committee thereof may from time to time establish in
its sole discretion, which, subject to performance, shall be
commensurate with the increases for the other senior executives
of the Company and its Affiliates. Any increase in salary shall
automatically increase the Base Salary payable by the Company.
3.2 Incentive Bonus. The Company shall provide Executive
an annual bonus plan targeting cash payment of 50% of Base Salary
annually with an opportunity to earn double that amount based
upon achievement by the Company against performance objectives
approved by the Board of Directors or Committee thereof annually
("Target Bonus"). The Board of Directors or Committee thereof
shall, in its sole discretion, determine the extent to which such
performance objectives have been obtained. Objectives under
which a Target Bonus will be earned shall be achievable in a
manner substantially consistent with the senior executive
officers of the Company and its Affiliates and substantially
consistent with past practice.
3.3 Withholdings. All compensation and benefits payable to
Executive hereunder shall be subject to all federal, state, local
and other withholdings and similar taxes and payments required by
applicable law.
Article 4.
Benefits and Other Compensation
4.1 Vacation. Executive shall be entitled to the greater
of four (4) weeks of annual paid vacation or the amount of annual
paid vacation to which Executive is entitled as of the date
hereof or may become entitled under the terms of the current
vacation policy for employees of the Company and its Affiliates,
whichever is greater.
4.2 Benefits. During the term of this Agreement, the
Company shall also provide Executive with the usual health
insurance benefits it generally provides to its other senior
officers of the Company and its Affiliates. The Company shall
provide Executive with the right to participate in and to receive
benefits from life, accident, disability, medical, retirement
medical, pension, supplemental retirement, 401(k), car allowance,
bonus, long-term incentive, stock awards, profit-sharing and
savings plans, and similar benefits made available either
generally to employees of the Company or specifically to other
senior executive officers of the Company and its Affiliates as
such plans and benefits may be adopted by the Company. The
amount of such benefits shall be substantially consistent with
benefits provided to other senior executive officers of the
Company and its Affiliates and past practices (excluding the
extraordinary restricted stock grant). Target long-term
incentives shall be at least as much as those considered by the
Compensation Committee of the Board of Directors in 1998
(attached hereto), with any increase establishing a new minimum
target. Any objectives under such target long-term incentives
shall be achievable in a manner substantially consistent with the
senior executive officers of the Company and its Affiliates.
4.3 Business Expense Reimbursement. During the term of
this Agreement, Executive shall be entitled to receive
reimbursement for all reasonable out-of-pocket expenses incurred
by him (in accordance with the policies and procedures
established by the Company for its senior executive officers) in
performing services hereunder. Executive agrees to furnish to
the Company adequate records and other documentary evidence of
such expenses for which Executive seeks reimbursement. Such
expenses shall be reimbursed and accounted for under the policies
and procedures established by the Company and the Audit Committee
of the Board of Directors.
Article 5.
5.1 Non-disclosure of Proprietary Information - Non
Competition. Executive shall execute upon request the Company's
standard Non-Disclosure Agreement for officers of the Company and
its Affiliates in a form acceptable to the Company's counsel.
In any event, Executive shall maintain the confidentiality and
not use confidential information of the Company during his term
of employment and for two years following termination of his
employment. While employed hereunder, Executive shall not engage,
directly or indirectly, in any other business activity that is
competitive with, or that places him in a competing position to
that of the Company or any Affiliates (provided that Executive
may own less than two percent (2%) of the outstanding securities
of any publicly traded corporation).
5.2 No Solicitation of Employees. As a condition of
receiving benefits under this Agreement, Executive may not
directly solicit employees or full-time consultants of the
Company to leave during his employment with the Company or for a
period of two years from termination of employment.
5.3 Waiver of Claims. Executive shall also waive any
known or unknown claim against the Company and its Affiliates,
including, if applicable, any acquiring corporation, other than
those arising under the Agreement. Executive shall sign an
appropriate release if so requested upon termination of
employment.
5.4 Return of Property. All documents, records, apparatus,
equipment and other physical property which if furnished to or
obtained by Executive in the course of his employment with the
Company shall be and remain the sole property of the Company.
Executive agrees that, upon the termination of his employment, he
shall return all such property (whether or not it pertains to the
Company's proprietary information), and agrees not to make or
retain copies, reproductions or summaries of any such property.
Article 6.
Termination
6.1 By Death. The period of employment shall terminate
automatically upon the death of Executive. In such event, the
Company shall pay to Executive's beneficiaries or his estate, as
the case may be, any accrued Base Salary, pro-rata Target Bonus
based upon performance to date of death relative to target
performance, any vested deferred compensation (other than pension
plan, supplemental retirement, 401(k), or profit-sharing plan
benefits which will be paid in accordance with the terms of the
applicable plan), any benefits under any plans of the Company in
which Executive is a participant to the full extent of
Executive's rights under such plans, any accrued vacation pay and
any appropriate business expenses incurred by Executive in
connection with his duties hereunder, all to the date of
termination (collectively "Accrued Compensation"), and six (6)
months' additional Base Salary, Target Bonus, health benefits,
and age and service credit under the Company's defined benefit
pension plan and supplemental pension plan (as if the Executive
had continued to perform services for such period with the same
amount of Base Salary and Target Bonus). Thereafter, the
Company's obligations hereunder shall terminate.
6.2 By Disability. If Executive is prevented from properly
performing his duties hereunder by reason of any physical or
mental incapacity for a period of more than 60 days in the
aggregate in any 365-day period, or if a determination is made by
a qualified physician selected by the Company and acceptable to
Executive or Executive's representative that continued employment
with the Company by Executive would jeopardize Executive's
physical or mental health, then, to the extent permitted by law,
the Company may terminate the employment on the 60th day of such
incapacity or following such a determination by a qualified
physician. In such event, the Company shall pay to Executive all
Accrued Compensation, and shall pay to Executive in a lump sum a
total of six (6) months' additional Base Salary, Target Bonus,
health benefits and age and service credit under the Company's
defined benefit pension plan and supplemental pension plan (as if
the Executive had continued to perform services for such period
with the same amount of Base Salary and Target Bonus).
Thereafter the Company's obligations hereunder shall terminate.
Nothing in this Agreement shall affect Executive's rights under
any disability plan in which he is an eligible participant.
6.3 By Company for Cause. The Company may terminate
Executive's employment for Cause (as defined below) without
liability at any time with or without advance notice to
Executive. The Company shall pay Executive all Accrued
Compensation, but no other compensation or reimbursement of any
kind, including without limitation, severance compensation, and
thereafter the Company's obligations hereunder shall terminate.
Termination shall be for "Cause" in the event of the occurrence
of any of the following: (a) any intentional action or
intentional failure to act by Executive which was performed in
bad faith and to the material detriment of the Company; (b)
intentional refusal or intentional failure to act in accordance
with any lawful and proper direction or order of the Board; (c)
willful and habitual neglect of his duties of employment; or (d)
conviction of a felony crime involving fraud or an act of
dishonesty against the Company, provided that in the event that
any of the foregoing events is capable of being cured, the
Company shall provide written notice to Executive describing the
nature of such event and Executive shall thereafter have ten (10)
business days to cure such event.
6.4 At Will. At any time, the Company may terminate
Executive's employment without liability other than as set forth
below, for any reason not specified in Section 6.3 above, by
giving thirty (30) days advance written notice to Executive. If
the Company elects to terminate Executive pursuant to this
Section 6.4, the Company shall pay to Executive all Accrued
Compensation and shall pay to Executive as provided herein
Executive's Base Salary, Target Bonus and continue to pay the
benefits described in Section 4.2 (except as otherwise explicitly
provided in this Section 6.4) over the period equal to the
remaining term of this Agreement, and thereafter all obligations
of the Company shall terminate. Notwithstanding the preceding
sentence, Executive shall receive (i) his incentive bonus as
described in Section 3.2 only for the proportion of the Company's
fiscal year in which termination occurs based upon the Company's
year-to-date performance against the selected objectives, (ii)
his long-term incentive compensation, if any, only for the
proportion of the applicable period based on the Company's
performance to date of termination against selected objectives,
(iii) additional age and service credits under the Company's
defined benefit pension plan and supplemental retirement plan for
the remainder of the then current term of this Agreement as if
Executive had continued to perform services for such period, and
(iv) acceleration of vesting in full for all stock awards,
whether stock options, restricted stock, or otherwise, then held
by Executive. All such severance compensation amounts shall be
earned and become payable in full immediately upon termination of
employment. If the Company terminates this Agreement or the
employment of Executive with the Company other than pursuant to
Section 6.1, 6.2 or 6.3, then this Section 6.4 shall apply.
If such termination under this Section 6.4 shall occur within
twenty four (24) months following the occurrence of a Change-in-
Control, Executive shall be paid upon termination in a lump sum
Base Salary, Target Bonus and automobile allowance for the
remainder of the term of this Agreement, plus three years of
pension service and age credit. Executive's benefits under the
Company's defined benefit pension plan and supplemental
retirement plan shall be determined as if Executive had remained
employed with the Company for an additional three years, had
continued to receive the same amount of Base Salary for that
period, and continued to receive Target Bonus. In addition,
Executive shall be entitled to continued coverage without
premiums under the Company's health, dental and drug plan
(substantially consistent with the terms thereof in effect on the
date hereof) for himself and a spouse or minor dependent under
the same terms as executive officers of the Company and its
Affiliates until such Executive and spouse are eligible for
Medicare or ten years, whichever is shorter. If Executive or his
spouse is or becomes covered under the health plan of another
employer, the Company's plan shall be secondary for as long as
that coverage continues. Payment under this provision for Change-
in-Control shall release the Company from payment of any other
benefits specified above other than Accrued Compensation,
acceleration of vesting of stock-based benefits, and any other
vested rights at time of termination.
6.5 Constructive Termination. In the event that the
Company changes the terms and conditions of Executive's
employment with the Company such that a "Constructive
Termination" has occurred, and Executive ceases performance of
services for the Company thereafter, such action shall be deemed
to be a termination of employment of Executive without cause
pursuant to Section 6.4. For purposes of this Agreement,
"Constructive Termination" shall mean (i) reduction of
Executive's Base Salary and/or Target Bonus, (ii) failure to
provide a package of welfare benefit plans, pension benefit
plans, and fringe benefits for Executive made available generally
to employees of the Company and its Affiliates and to other
senior executives of the Company and its Affiliates which, taken
as a whole, provide substantially similar benefits to those in
which the Executive is entitled to participate immediately prior
to the Commencement Date of this Agreement or in effect prior to
the occurrence of a Change-in-Control, whichever is greater, or
any action by the Company which would adversely affect
Executive's participation, (iii) material reduction of
Executive's benefits under any of such plans, (iv) change in
Executive's responsibilities, authority, title, office, or
reporting relationship resulting in diminution of position,
excluding for this purpose an isolated, insubstantial and
inadvertent action not taken in bad faith which is remedied by
the Company promptly after notice thereof is given by Executive,
and excluding the reporting to the Chief Financial Officer at the
parent company of the Company, (v) in the case of a Change-in-
Control only, a request that Executive relocate to a worksite
that is more than 15 miles from his prior worksite, unless
Executive accepts such relocation opportunity, (vi) material
reduction in Executive's duties, (vii) failure or refusal of a
successor to the Company and any parent company to assume the
Company's obligations under this Agreement, as provided in
Section 7.2.2, or (viii) material breach by the Company or any
successor to the Company or any parent company of any of the
material provisions of this Agreement.
6.6 Change-in-Control. For purposes of this Agreement, a
"Change-in-Control" shall have occurred if at any time during the
term of Executive's employment hereunder, any of the following
events shall occur:
(a) The Company is merged, or consolidated, or
reorganized into or with another corporation or other legal
person, and as a result of such merger, consolidation or
reorganization less than 50% of the combined voting power of the
then-outstanding securities of such corporation or person
immediately after such transaction are held in the aggregate by
the holders of voting securities of the Company immediately prior
to such transaction;
(b) The Company sells at least fifty percent (50%) of
its assets in a twelve (12) month period to any other corporation
or other legal person and thereafter, less than 50% of the
combined voting power of the then-outstanding voting securities
of the acquiring or consolidated entity are held in the aggregate
by the holders of voting securities of the Company immediately
prior to such sale;
(c) There is a report filed after the date of this
Agreement on Schedule 13D or Schedule 14 D-1 (or any successor
schedule, form or report), each as promulgated pursuant to the
Securities Exchange Act of 1934 (the "Exchange Act") disclosing
that any person (as the term "person" is used in Section 13(d)(3)
or Section 14(d)(2) of the Exchange Act) has become the
beneficial owner (as the term "beneficial owner" is defined under
Rule 13d-3 or any successor rule or regulation promulgated under
the Exchange Act) representing 25% or more of the combined voting
power of the then-outstanding voting securities of the Company;
(d) The Company shall file a report or proxy statement
with the Securities and Exchange Commission pursuant to the
Exchange Act disclosing in response to item 1 of Form 8-X
thereunder or Item 5(f) of Schedule 14A thereunder (or any
successor schedule, form or report or item therein) that the
change in control of the Company has or may have occurred or will
or may occur in the future pursuant to any then-existing contract
or transaction;
(e) During any period of two consecutive years,
individuals who at the beginning of any such period constitute
the directors of the Company cease for any reason to constitute
at least a majority thereof unless the election or the nomination
for election by the Company's shareholders of each director of
the Company first elected during such period was approved by a
vote of at least two-thirds of the directors of the Company then
still in office who were directors of the Company at the
beginning of such period (an "Incumbent Director"), and any
director so approved shall be treated as an Incumbent Director in
the future; or
(f) the liquidation or dissolution of the Company.
6.7 Excise Tax Gross-Up. In the event it shall be
determined that any payment by the Company and/or its Affiliates
to or for the benefit of Executive, whether paid or payable under
this Agreement or otherwise, but determined without regard to any
additional payments required under this Section 6.7 (a
"Payment"), would be subject to the excise tax imposed by Section
4999 of the Code, or any comparable federal, state, or local
excise tax (such excise tax, together with any interest and
penalties, are hereinafter collectively referred to as the
"Excise Tax"), then Executive shall be entitled to receive an
additional payment (a "Gross-Up Payment") in such an amount that
after the payment of all taxes (including without limitation, any
interest and penalties on such taxes and the excise tax) on the
Payment and on the Gross-Up Payment, Executive shall retain an
amount equal to the Payment minus all applicable income and
employment taxes on the Payment. The intent of the parties is
that the Company shall be solely responsible for, and shall pay,
any Excise Tax on the Payment and Gross-Up Payment and any
income, employment and other taxes (including, without
limitation, penalties and interest) imposed on any Gross-Up
Payment, as well as any loss of tax deduction caused by the Gross-
Up Payment or applicable provisions of the Code. All
determinations required to be made under this Section 6.7,
including without limitation, whether and when a Gross-Up Payment
is required and the amount of such Gross-Up Payment and the
assumptions to be utilized in arriving at such determinations,
shall be made by a nationally recognized accounting firm that is
the Company's outside auditor at the time of such determinations,
which firm must be reasonably acceptable to Executive. All fees
and expenses of such accounting firm shall be borne solely by the
Company.
6.8 Termination by Executive. At any time, whether or not
as a result of Executive's retirement, Executive may terminate
his employment by giving thirty (30) days advance written notice
to the Company. The Company shall pay Executive all Accrued
Compensation, but no other compensation or reimbursement of any
kind, including without limitation, severance compensation, and
thereafter the Company's obligations hereunder shall terminate.
In the event that Executive voluntarily terminates his employment
with the Company during the thirteenth calendar month beginning
after the occurrence of a Change-in-Control, Executive shall also
receive a total of twelve (12) months' Base Salary, Target
Bonus, service and pension credits and health, dental and drug
benefits as if Executive's employment had been involuntarily
terminated by the Company pursuant to Section 6.4 above, except
that Executive shall not be entitled to any tax "gross-up"
benefits described in Section 6.7. Executive benefits under the
Company's defined benefit pension plan and supplemental
retirement plan shall be determined as if Executive had remained
employed with the Company for that period.
Article 7.
General Provisions
7.1 Governing Law. The validity, interpretation,
construction and performance of this Agreement and the rights of
the parties thereunder shall be interpreted and executed under
California law without reference to principles of conflicts of
laws. The parties expressly agree that inasmuch as the Company's
headquarters and principal place of business are located in
California, it is appropriate that California law govern this
Agreement.
7.2 Assignment; Successors; Binding Agreement.
7.2.1 Executive may not assign, pledge or
encumber his interest in this Agreement or any part thereof.
7.2.2 The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or
assets of the Company, by operation of law or by agreement in
form and substance reasonably satisfactory to Executive, to
assume and agree to perform this Agreement in the same manner and
to the same extent that the Company would be required to perform
it if no such succession had taken place.
7.2.3 This Agreement shall inure to the benefit of and
be enforceable by Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees,
devisees and legatees. If Executive should die while any amount
is at such time payable to him hereunder, all such amounts,
unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to Executive's devisee, legates
or other designee or, if there be no such designee, to his
estate.
7.3 Attorney Fees. The Company will reimburse Executive or
Executive's successor-in-interest for all reasonable attorney
fees and costs associated with bringing any action under this
Agreement to enforce their rights hereunder, regardless of the
outcome of such proceeding, provided the court does not find the
claim was brought in bad faith.
7.4 Non-Publication. The parties mutually agree not to
disclose publicly the terms of this Agreement except to the
extent that disclosure is mandated by applicable law.
7.5 No Waiver of Breach. The waiver by any party of the
breach of any provision of this Agreement shall not be deemed to
be a waiver of any subsequent breach. No delay in exercising
any right hereunder shall be deemed to be a waiver of the party's
rights hereunder.
7.6 Notice. For the purposes of this Agreement, notices
and all other communications provided for in this agreement shall
be in writing and shall be deemed to have been duly given when
delivered or mailed by certified or registered mail, return
receipt requested, postage prepaid, addressed to the respective
addresses set forth below or to such other address as either
party may have furnished to the other in writing in accordance
herewith, except that notice of change of address shall be
effective only upon receipt.
To the Company:Consolidated Freightways
Corporation
175 Linfield Drive
Menlo Park, CA 94025
Attn: Chairman of Compensation
Committee
To Executive: Robert E. Wrightson
7.7 Modification; Waiver; Entire Agreement. No provisions
of this Agreement may be modified, waived or discharged unless
such waiver, modification or discharge is agreed to in writing
signed by Executive and such officer as may be specifically
designated by the Board of Directors of the Company. No waiver
by either party hereto at any time of any breach by the other
party of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a
waiver of similar or dissimilar provisions or conditions at the
same or any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either
party which are not expressly set forth in this Agreement.
7.8 Validity. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which
shall remain in full force and effect.
7.9 Executive Acknowledgment. Executive acknowledges (a)
that he has consulted with or had had the opportunity to consult
with independent counsel of his own choice concerning this
Agreement, and has been advised to do so by the Company, and (b)
that he has read and understands the Agreement, is fully aware of
its legal effect, and has entered into it freely based on his own
judgment.
7.10 Injunctive Relief. The parties agrees that the
services to be rendered by Executive hereunder are of a unique
nature and that in the event of any breach or threatened breach
of any of the covenants contained herein, the damage or imminent
damage to the value and the goodwill of the Company's business
will be irreparable and extremely difficult to estimate, making
any remedy at law or in damages inadequate. Accordingly, the
parties agree that the Company shall be entitled to injunctive
relief against Executive in the event of any breach or threatened
breach of any such provisions by Executive, in addition to any
other relief (including damages) available to the Company under
this Agreement or under law. Both parties agree that the remedy
specified in this section is not exclusive of any other remedy
for the breach by Executive of the terms hereof.
7.11 Counterparts. This Agreement may be executed in one or
more counterparts, all of which taken together shall constitute
one and the same Agreement.
7.12 No Mitigation. The Executive shall not be required to
mitigate the amount of payments hereunder by seeking other
employment or otherwise, and any amount earned by Executive as a
result of employment by other employer after the date of
termination shall not reduce the payments hereunder.
7.13 Indemnity. The Company and its Affiliates shall
indemnify and hold Executive harmless against any loss, cost or
expense arising out of or relating to the performance of his
duties to the Company and its Affiliates, and shall maintain
adequate liability insurance covering such Executive's acts and
omissions occurring during the term of this Agreement and for a
period of six years thereafter.
Executed by the parties as of the date and year first above
written.
Consolidated Freightways
Corporation
/s/W. Roger Curry
W. Roger Curry
President and Chief Executive
Officer
Consolidated Freightways
Corporation
Executive:
/s/Robert E. Wrightson
Robert E. Wrightson
Senior Vice President & Controller
Consolidated Freightways
Corporation
EMPLOYMENT AGREEMENT
This Agreement, dated as of December 8, 1998, is made by and
between Consolidated Freightways Corporation, and Consolidated
Freightways Corporation of Delaware, Delaware corporations
(hereinafter, together with any successor Corporation(s), the
"Company"), and Stephen D. Richards (hereinafter "Executive").
Recitals
Whereas, Executive is currently employed by the Company as
its Senior Vice President and General Counsel;
Whereas, the Company and Executive wish to set forth in this
Agreement the terms and conditions under which Executive is to be
continued to be employed by the Company on and after the date
hereof; and
Whereas, the Company wishes to be assured that Executive
will be available to the Company for an additional two (2) years
after December 31, 1998.
Now, Therefore, the Company and Executive, in consideration
of the mutual promises set forth herein, agree as follows:
Article 1.
Term of Agreement
1.1 Commencement Date. Executive's employment with the
Company under this Agreement shall commence as of the date of
this Agreement ("Commencement Date") and shall expire on December
31, 2000, unless further extended pursuant to Section 1.2 or
terminated earlier pursuant to Article 6. Notwithstanding the
foregoing, this Agreement shall automatically terminate upon
Executive's attainment of age sixty-five (65).
1.2 Renewal. The term of this Agreement shall be
automatically renewed as of each January 1, beginning with
January 1, 2000, for one (1) additional year unless either party
delivers written notice to the other at least thirty (30) days
prior to such December 31 of an intention to terminate this
Agreement upon the then current termination date. In the event
of a Change-in-Control, the term of this Agreement shall
automatically be extended for one additional year.
Article 2.
Employment Duties
2.1 Title/Responsibilities. Executive hereby accepts
employment with the Company pursuant to the terms and conditions
hereof. Executive agrees to serve the Company in his current
position at the corporate headquarters. Executive shall report to
the Chief Executive Officer of the Company, or the General
Counsel of the parent company of any company that may acquire the
Company. Executive shall have the powers and duties commensurate
with such position, including but not limited to, hiring
personnel necessary to carry out the responsibilities for such
position as set forth in the annual business plan approved by the
Board of Directors of the Company.
2.2 Full Time Attention. Executive shall devote his best
efforts and his full business time and attention to the
performance of the services customarily incident to such office
and to such other services as the Board or General Counsel of an
acquiring parent company may reasonably request, provided that
Executive may also serve on the Boards of Directors of one or
more other companies with the prior consent of the Board and may
serve on the governing bodies of such charitable organizations as
Executive determines.
2.3 Other Activities. Except upon the prior written
consent of the Board of Directors or General Counsel of an
acquiring parent company, Executive shall not during the period
of employment engage, directly or indirectly, in any other
business activity (whether or not pursued for pecuniary
advantage) that is or may be competitive with, or that might
place him in a competing position to that of the Company or any
other corporation or entity that directly or indirectly controls,
is controlled by, or is under common control with the Company (an
"Affiliate"), provided that Executive may own less than two
percent (2%) of the outstanding securities of any such publicly
traded competing corporation.
Article 3.
3.1 Base Salary. Executive shall receive a base salary at
an annual rate of not less than his current salary payable
weekly in equal installments in accordance with the Company's
normal payroll practices ("Base Salary"). The Company's Board of
Directors shall provide Executive with annual performance
reviews, and, thereafter, Executive shall be entitled to such
increase in Base Salary as the Board of Directors or a duly
authorized Committee thereof may from time to time establish in
its sole discretion, which, subject to performance, shall be
commensurate with the increases for the other senior executives
of the Company and its Affiliates. Any increase in salary shall
automatically increase the Base Salary payable by the Company.
3.2 Incentive Bonus. The Company shall provide Executive
an annual bonus plan targeting cash payment of 50% of Base Salary
annually with an opportunity to earn double that amount based
upon achievement by the Company against performance objectives
approved by the Board of Directors or Committee thereof annually
("Target Bonus"). The Board of Directors or Committee thereof
shall, in its sole discretion, determine the extent to which such
performance objectives have been obtained. Objectives under
which a Target Bonus will be earned shall be achievable in a
manner substantially consistent with the senior executive
officers of the Company and its Affiliates and substantially
consistent with past practice.
3.3 Withholdings. All compensation and benefits payable to
Executive hereunder shall be subject to all federal, state, local
and other withholdings and similar taxes and payments required by
applicable law.
Article 4.
Benefits and Other Compensation
4.1 Vacation. Executive shall be entitled to the greater
of four (4) weeks of annual paid vacation or the amount of annual
paid vacation to which Executive is entitled as of the date
hereof or may become entitled under the terms of the current
vacation policy for employees of the Company and its Affiliates,
whichever is greater.
4.2 Benefits. During the term of this Agreement, the
Company shall also provide Executive with the usual health
insurance benefits it generally provides to its other senior
officers of the Company and its Affiliates. The Company shall
provide Executive with the right to participate in and to receive
benefits from life, accident, disability, medical, retirement
medical, pension, supplemental retirement, 401(k), car allowance,
bonus, long-term incentive, stock awards, profit-sharing and
savings plans, and similar benefits made available either
generally to employees of the Company or specifically to other
senior executive officers of the Company and its Affiliates as
such plans and benefits may be adopted by the Company. The
amount of such benefits shall be substantially consistent with
benefits provided to other senior executive officers of the
Company and its Affiliates and past practices (excluding the
extraordinary restricted stock grant). Target long-term
incentives shall be at least as much as those considered by the
Compensation Committee of the Board of Directors in 1998
(attached hereto), with any increase establishing a new minimum
target. Any objectives under such target long-term incentives
shall be achievable in a manner substantially consistent with the
senior executive officers of the Company and its Affiliates.
4.3 Business Expense Reimbursement. During the term of
this Agreement, Executive shall be entitled to receive
reimbursement for all reasonable out-of-pocket expenses incurred
by him (in accordance with the policies and procedures
established by the Company for its senior executive officers) in
performing services hereunder. Executive agrees to furnish to
the Company adequate records and other documentary evidence of
such expenses for which Executive seeks reimbursement. Such
expenses shall be reimbursed and accounted for under the policies
and procedures established by the Company and the Audit Committee
of the Board of Directors.
Article 5.
5.1 Non-disclosure of Proprietary Information - Non
Competition. Executive shall execute upon request the Company's
standard Non-Disclosure Agreement for officers of the Company and
its Affiliates in a form acceptable to the Company's counsel.
In any event, Executive shall maintain the confidentiality and
not use confidential information of the Company during his term
of employment and for two years following termination of his
employment. While employed hereunder, Executive shall not engage,
directly or indirectly, in any other business activity that is
competitive with, or that places him in a competing position to
that of the Company or any Affiliates (provided that Executive
may own less than two percent (2%) of the outstanding securities
of any publicly traded corporation).
5.2 No Solicitation of Employees. As a condition of
receiving benefits under this Agreement, Executive may not
directly solicit employees or full-time consultants of the
Company to leave during his employment with the Company or for a
period of two years from termination of employment.
5.3 Waiver of Claims. Executive shall also waive any
known or unknown claim against the Company and its Affiliates,
including, if applicable, any acquiring corporation, other than
those arising under the Agreement. Executive shall sign an
appropriate release if so requested upon termination of
employment.
5.4 Return of Property. All documents, records, apparatus,
equipment and other physical property which if furnished to or
obtained by Executive in the course of his employment with the
Company shall be and remain the sole property of the Company.
Executive agrees that, upon the termination of his employment, he
shall return all such property (whether or not it pertains to the
Company's proprietary information), and agrees not to make or
retain copies, reproductions or summaries of any such property.
Article 6.
Termination
6.1 By Death. The period of employment shall terminate
automatically upon the death of Executive. In such event, the
Company shall pay to Executive's beneficiaries or his estate, as
the case may be, any accrued Base Salary, pro-rata Target Bonus
based upon performance to date of death relative to target
performance, any vested deferred compensation (other than pension
plan, supplemental retirement, 401(k), or profit-sharing plan
benefits which will be paid in accordance with the terms of the
applicable plan), any benefits under any plans of the Company in
which Executive is a participant to the full extent of
Executive's rights under such plans, any accrued vacation pay and
any appropriate business expenses incurred by Executive in
connection with his duties hereunder, all to the date of
termination (collectively "Accrued Compensation"), and six (6)
months' additional Base Salary, Target Bonus, health benefits and
age and service credit under the Company's defined benefit
pension plan and supplemental pension plan (as if the Executive
had continued to perform services for such period with the same
amount of Base Salary and Target Bonus). Thereafter, the
Company's obligations hereunder shall terminate.
6.2 By Disability. If Executive is prevented from properly
performing his duties hereunder by reason of any physical or
mental incapacity for a period of more than 60 days in the
aggregate in any 365-day period, or if a determination is made by
a qualified physician selected by the Company and acceptable to
Executive or Executive's representative that continued employment
with the Company by Executive would jeopardize Executive's
physical or mental health, then, to the extent permitted by law,
the Company may terminate the employment on the 60th day of such
incapacity or following such a determination by a qualified
physician. In such event, the Company shall pay to Executive all
Accrued Compensation, and shall pay to Executive in a lump sum a
total of six (6) months' additional Base Salary, Target Bonus,
health benefits and age and service credit under the Company's
defined benefit pension plan and supplemental pension plan (as if
the Executive had continued to perform services for such period
with the same amount of Base Salary and Target Bonus). Thereafter
the Company's obligations hereunder shall terminate. Nothing in
this Agreement shall affect Executive's rights under any
disability plan in which he is an eligible participant.
6.3 By Company for Cause. The Company may terminate
Executive's employment for Cause (as defined below) without
liability at any time with or without advance notice to
Executive. The Company shall pay Executive all Accrued
Compensation, but no other compensation or reimbursement of any
kind, including without limitation, severance compensation, and
thereafter the Company's obligations hereunder shall terminate.
Termination shall be for "Cause" in the event of the occurrence
of any of the following: (a) any intentional action or
intentional failure to act by Executive which was performed in
bad faith and to the material detriment of the Company; (b)
intentional refusal or intentional failure to act in accordance
with any lawful and proper direction or order of the Board; (c)
willful and habitual neglect of his duties of employment; or (d)
conviction of a felony crime involving fraud or an act of
dishonesty against the Company, provided that in the event that
any of the foregoing events is capable of being cured, the
Company shall provide written notice to Executive describing the
nature of such event and Executive shall thereafter have ten (10)
business days to cure such event.
6.4 At Will. At any time, the Company may terminate
Executive's employment without liability other than as set forth
below, for any reason not specified in Section 6.3 above, by
giving thirty (30) days advance written notice to Executive. If
the Company elects to terminate Executive pursuant to this
Section 6.4, the Company shall pay to Executive all Accrued
Compensation and shall pay to Executive as provided herein
Executive's Base Salary, Target Bonus and continue to pay the
benefits described in Section 4.2 (except as otherwise explicitly
provided in this Section 6.4) over the period equal to the
remaining term of this Agreement, and thereafter all obligations
of the Company shall terminate. Notwithstanding the preceding
sentence, Executive shall receive (i) his incentive bonus as
described in Section 3.2 only for the proportion of the Company's
fiscal year in which termination occurs based upon the Company's
year-to-date performance against the selected objectives, (ii)
his long-term incentive compensation, if any, only for the
proportion of the applicable period based on the Company's
performance to date of termination against selected objectives,
(iii) additional age and service credits under the Company's
defined benefit pension plan and supplemental retirement plan for
the remainder of the then current term of this Agreement as if
Executive had continued to perform services for such period, and
(iv) acceleration of vesting in full for all stock awards,
whether stock options, restricted stock, or otherwise, then held
by Executive. All such severance compensation amounts shall be
earned and become payable in full immediately upon termination of
employment. If the Company terminates this Agreement or the
employment of Executive with the Company other than pursuant to
Section 6.1, 6.2 or 6.3, then this Section 6.4 shall apply.
If such termination under this Section 6.4 shall occur within
twenty four (24) months following the occurrence of a Change-in-
Control, Executive shall be paid upon termination in a lump sum
Base Salary, Target Bonus and automobile allowance for the
remainder of the term of this Agreement, plus three years of
pension service and age credit. Executive's benefits under the
Company's defined benefit pension plan and supplemental
retirement plan shall be determined as if Executive had remained
employed with the Company for an additional three years, had
continued to receive the same amount of Base Salary for that
period, and continued to receive Target Bonus. In addition,
Executive shall be entitled to continued coverage without
premiums under the Company's health, dental and drug plan
(substantially consistent with the terms thereof in effect on the
date hereof) for himself and a spouse or minor dependent under
the same terms as executive officers of the Company and its
Affiliates until such Executive and spouse are eligible for
Medicare or ten years, whichever is shorter. If Executive or his
spouse is or becomes covered under the health plan of another
employer, the Company's plan shall be secondary for as long as
that coverage continues. Payment under this provision for Change-
in-Control shall release the Company from payment of any other
benefits specified above other than Accrued Compensation,
acceleration of vesting of stock-based benefits, and any other
vested rights at time of termination.
6.5 Constructive Termination. In the event that the
Company changes the terms and conditions of Executive's
employment with the Company such that a "Constructive
Termination" has occurred, and Executive ceases performance of
services for the Company thereafter, such action shall be deemed
to be a termination of employment of Executive without cause
pursuant to Section 6.4. For purposes of this Agreement,
"Constructive Termination" shall mean (i) reduction of
Executive's Base Salary and/or Target Bonus, (ii) failure to
provide a package of welfare benefit plans, pension benefit
plans, and fringe benefits for Executive made available generally
to employees of the Company and its Affiliates and to other
senior executives of the Company and its Affiliates which, taken
as a whole, provide substantially similar benefits to those in
which the Executive is entitled to participate immediately prior
to the Commencement Date of this Agreement or in effect prior to
the occurrence of a Change-in-Control, whichever is greater, or
any action by the Company which would adversely affect
Executive's participation, (iii) material reduction of
Executive's benefits under any of such plans, (iv) change in
Executive's responsibilities, authority, title, office, or
reporting relationship resulting in diminution of position,
excluding for this purpose an isolated, insubstantial and
inadvertent action not taken in bad faith which is remedied by
the Company promptly after notice thereof is given by Executive,
and excluding the reporting to the General Counsel of an
acquiring parent company, (v) in the case of a Change-in-Control
only, a request that Executive relocate to a worksite that is
more than 15 miles from his prior worksite, unless Executive
accepts such relocation opportunity, (vi) material reduction in
Executive's duties, (vii) failure or refusal of a successor to
the Company and any parent company to assume the Company's
obligations under this Agreement, as provided in Section 7.2.2,
or (viii) material breach by the Company or any successor to the
Company or any parent company of any of the material provisions
of this Agreement.
6.6 Change-in-Control. For purposes of this Agreement, a
"Change-in-Control" shall have occurred if at any time during the
term of Executive's employment hereunder, any of the following
events shall occur:
(a) The Company is merged, or consolidated, or
reorganized into or with another corporation or other legal
person, and as a result of such merger, consolidation or
reorganization less than 50% of the combined voting power of the
then-outstanding securities of such corporation or person
immediately after such transaction are held in the aggregate by
the holders of voting securities of the Company immediately prior
to such transaction;
(b) The Company sells at least fifty percent (50%) of
its assets in a twelve (12) month period to any other corporation
or other legal person and thereafter, less than 50% of the
combined voting power of the then-outstanding voting securities
of the acquiring or consolidated entity are held in the aggregate
by the holders of voting securities of the Company immediately
prior to such sale;
(c) There is a report filed after the date of this
Agreement on Schedule 13D or Schedule 14 D-1 (or any successor
schedule, form or report), each as promulgated pursuant to the
Securities Exchange Act of 1934 (the "Exchange Act") disclosing
that any person (as the term "person" is used in Section 13(d)(3)
or Section 14(d)(2) of the Exchange Act) has become the
beneficial owner (as the term "beneficial owner" is defined under
Rule 13d-3 or any successor rule or regulation promulgated under
the Exchange Act) representing 25% or more of the combined voting
power of the then-outstanding voting securities of the Company;
(d) The Company shall file a report or proxy statement
with the Securities and Exchange Commission pursuant to the
Exchange Act disclosing in response to item 1 of Form 8-X
thereunder or Item 5(f) of Schedule 14A thereunder (or any
successor schedule, form or report or item therein) that the
change in control of the Company has or may have occurred or will
or may occur in the future pursuant to any then-existing contract
or transaction;
(e) During any period of two consecutive years,
individuals who at the beginning of any such period constitute
the directors of the Company cease for any reason to constitute
at least a majority thereof unless the election or the nomination
for election by the Company's shareholders of each director of
the Company first elected during such period was approved by a
vote of at least two-thirds of the directors of the Company then
still in office who were directors of the Company at the
beginning of such period (an "Incumbent Director"), and any
director so approved shall be treated as an Incumbent Director in
the future; or
(f) the liquidation or dissolution of the Company.
6.7 Excise Tax Gross-Up. In the event it shall be
determined that any payment by the Company and/or its Affiliates
to or for the benefit of Executive, whether paid or payable under
this Agreement or otherwise, but determined without regard to any
additional payments required under this Section 6.7 (a
"Payment"), would be subject to the excise tax imposed by Section
4999 of the Code, or any comparable federal, state, or local
excise tax (such excise tax, together with any interest and
penalties, are hereinafter collectively referred to as the
"Excise Tax"), then Executive shall be entitled to receive an
additional payment (a "Gross-Up Payment") in such an amount that
after the payment of all taxes (including without limitation, any
interest and penalties on such taxes and the excise tax) on the
Payment and on the Gross-Up Payment, Executive shall retain an
amount equal to the Payment minus all applicable income and
employment taxes on the Payment. The intent of the parties is
that the Company shall be solely responsible for, and shall pay,
any Excise Tax on the Payment and Gross-Up Payment and any
income, employment and other taxes (including, without
limitation, penalties and interest) imposed on any Gross-Up
Payment, as well as any loss of tax deduction caused by the Gross-
Up Payment or applicable provisions of the Code. All
determinations required to be made under this Section 6.7,
including without limitation, whether and when a Gross-Up Payment
is required and the amount of such Gross-Up Payment and the
assumptions to be utilized in arriving at such determinations,
shall be made by a nationally recognized accounting firm that is
the Company's outside auditor at the time of such determinations,
which firm must be reasonably acceptable to Executive. All fees
and expenses of such accounting firm shall be borne solely by the
Company.
6.8 Termination by Executive. At any time, whether or not
as a result of Executive's retirement, Executive may terminate
his employment by giving thirty (30) days advance written notice
to the Company. The Company shall pay Executive all Accrued
Compensation, but no other compensation or reimbursement of any
kind, including without limitation, severance compensation, and
thereafter the Company's obligations hereunder shall terminate.
In the event that Executive voluntarily terminates his employment
with the Company during the thirteenth calendar month beginning
after the occurrence of a Change-in-Control, Executive shall also
receive a total of twelve (12) months' Base Salary, Target
Bonus, service and pension credits and health, dental and drug
benefits as if Executive's employment had been involuntarily
terminated by the Company pursuant to Section 6.4 above, except
that Executive shall not be entitled to any tax "gross-up"
benefits described in Section 6.7. Executive benefits under the
Company's defined benefit pension plan and supplemental
retirement plan shall be determined as if Executive had remained
employed with the Company for that period.
Article 7.
General Provisions
7.1 Governing Law. The validity, interpretation,
construction and performance of this Agreement and the rights of
the parties thereunder shall be interpreted and executed under
California law without reference to principles of conflicts of
laws. The parties expressly agree that inasmuch as the Company's
headquarters and principal place of business are located in
California, it is appropriate that California law govern this
Agreement.
7.2 Assignment; Successors; Binding Agreement.
7.2.1 Executive may not assign, pledge or
encumber his interest in this Agreement or any part thereof.
7.2.2 The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or
assets of the Company, by operation of law or by agreement in
form and substance reasonably satisfactory to Executive, to
assume and agree to perform this Agreement in the same manner and
to the same extent that the Company would be required to perform
it if no such succession had taken place.
7.2.3 This Agreement shall inure to the benefit of and
be enforceable by Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees,
devisees and legatees. If Executive should die while any amount
is at such time payable to him hereunder, all such amounts,
unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to Executive's devisee, legates
or other designee or, if there be no such designee, to his
estate.
7.3 Attorney Fees. The Company will reimburse Executive or
Executive's successor-in-interest for all reasonable attorney
fees and costs associated with bringing any action under this
Agreement to enforce their rights hereunder, regardless of the
outcome of such proceeding, provided the court does not find the
claim was brought in bad faith.
7.4 Non-Publication. The parties mutually agree not to
disclose publicly the terms of this Agreement except to the
extent that disclosure is mandated by applicable law.
7.5 No Waiver of Breach. The waiver by any party of the
breach of any provision of this Agreement shall not be deemed to
be a waiver of any subsequent breach. No delay in exercising
any right hereunder shall be deemed to be a waiver of the party's
rights hereunder.
7.6 Notice. For the purposes of this Agreement, notices
and all other communications provided for in this agreement shall
be in writing and shall be deemed to have been duly given when
delivered or mailed by certified or registered mail, return
receipt requested, postage prepaid, addressed to the respective
addresses set forth below or to such other address as either
party may have furnished to the other in writing in accordance
herewith, except that notice of change of address shall be
effective only upon receipt.
To the Company:Consolidated Freightways
Corporation
175 Linfield Drive
Menlo Park, CA 94025
Attn: Chairman of Compensation
Committee
To Executive: Stephen D. Richards
7.7 Modification; Waiver; Entire Agreement. No provisions
of this Agreement may be modified, waived or discharged unless
such waiver, modification or discharge is agreed to in writing
signed by Executive and such officer as may be specifically
designated by the Board of Directors of the Company. No waiver
by either party hereto at any time of any breach by the other
party of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a
waiver of similar or dissimilar provisions or conditions at the
same or any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either
party which are not expressly set forth in this Agreement.
7.8 Validity. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which
shall remain in full force and effect.
7.9 Executive Acknowledgment. Executive acknowledges (a)
that he has consulted with or had had the opportunity to consult
with independent counsel of his own choice concerning this
Agreement, and has been advised to do so by the Company, and (b)
that he has read and understands the Agreement, is fully aware of
its legal effect, and has entered into it freely based on his own
judgment.
7.10 Injunctive Relief. The parties agrees that the
services to be rendered by Executive hereunder are of a unique
nature and that in the event of any breach or threatened breach
of any of the covenants contained herein, the damage or imminent
damage to the value and the goodwill of the Company's business
will be irreparable and extremely difficult to estimate, making
any remedy at law or in damages inadequate. Accordingly, the
parties agree that the Company shall be entitled to injunctive
relief against Executive in the event of any breach or threatened
breach of any such provisions by Executive, in addition to any
other relief (including damages) available to the Company under
this Agreement or under law. Both parties agree that the remedy
specified in this section is not exclusive of any other remedy
for the breach by Executive of the terms hereof.
7.11 Counterparts. This Agreement may be executed in one or
more counterparts, all of which taken together shall constitute
one and the same Agreement.
7.12 No Mitigation. The Executive shall not be required to
mitigate the amount of payments hereunder by seeking other
employment or otherwise, and any amount earned by Executive as a
result of employment by other employer after the date of
termination shall not reduce the payments hereunder.
7.13 Indemnity. The Company and its Affiliates shall
indemnify and hold Executive harmless against any loss, cost or
expense arising out of or relating to the performance of his
duties to the Company and its Affiliates, and shall maintain
adequate liability insurance covering such Executive's acts and
omissions occurring during the term of this Agreement and for a
period of six years thereafter.
Executed by the parties as of the date and year first above
written.
Consolidated Freightways
Corporation
/s/W. Roger Curry
W. Roger Curry
President and Chief Executive
Officer
Consolidated Freightways
Corporation
Executive:
/s/Stephen D. Richards
Stephen D. Richards
Senior Vice President & General
Counsel
Consolidated Freightways
Corporation