Exhibit 10.24
AMENDED
EMPLOYMENT AGREEMENT
This Agreement, dated as of November 13, 2000, 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 Xxxxxxx X. Xxxxx (hereinafter
"Executive").
Recitals
Whereas, The Company and Executive are parties to an
Employment Agreement dated as of December 8, 1998 ("Original
Agreement");
Whereas, After the date of the Original Agreement, Executive
was promoted to the position of Chief Executive Officer and is
currently employed by the Company in that position;
Whereas, the Company and Executive wish to extend the term
of Executive's employment under the Original Agreement by one
year and to set forth in this Amended Employment Agreement the
terms and conditions under which Executive is to be employed by
the Company as its Chief Executive Officer on and after the date
hereof; and
Whereas, the Company wishes to be assured that Executive
will be available to the Company for three (3) additional years
after December 31, 2000.
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 commenced as of December 8, 1998
("Commencement Date") and shall expire on December 31, 2003,
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, 2002, 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 any company, or parent thereof, 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 of Directors or Chief
Executive Officer of an acquiring 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 Executive 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.
Salary And Bonus
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 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 provided in 2000,
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.
Additional Obligations
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 the 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 and excluding any stock awards or
other compensation and benefits that are awarded to senior
executives after termination of employment) 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 of termination against 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, subject to payment of the
exercise price, attainment during the term of all other
requirements not related to continued employment, and
satisfaction any other requirements, related to exercise or
termination of stock awards following termination, as applicable.
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, and 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 of an
acquiring 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 Executives
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 of 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
Delaware law without reference to principles of conflicts of
laws.
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 incur 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
00000 XX XX Xxx
Xxxxxxxxx, XX 00000
Attn: Chairman of Compensation Committee
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 Acknowledgement. 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/Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
Senior Vice President and General
Counsel
Consolidated Freightways Corporation
Executive:
/s/Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Chief Executive Officer
Consolidated Freightways Corporation
EMPLOYMENT AGREEMENT
This Agreement, dated as of November 13, 2000, 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 Xxxxxxx X. Xxxxx (hereinafter
"Executive").
Recitals
Whereas, Executive is currently employed by the Company as
its Senior Vice President, Sales & 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 two (2) years after December
31, 2000.
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, 2002, 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, 2002, 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 any company, or parent thereof,
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, the Chief Executive
Officer of the company or an acquiring company or senior sales
and marketing executive of an acquiring 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.
Salary And Bonus
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 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 provided in 2000,
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.
Additional Obligations
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 the 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 and excluding any stock awards or
other compensation and benefits that are awarded to senior
executives after termination of employment) 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 of termination against 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, subject to payment of the
exercise price, attainment during the term of all other
requirements not related to continued employment, and
satisfaction any other requirements, related to exercise or
termination of stock awards following termination, as applicable.
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, and 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 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 Executives 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 of 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
Delaware law without reference to principles of conflicts of
laws.
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 incur 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
00000 XX XX Xxx
Xxxxxxxxx, XX 00000
Attn: Chairman of Compensation Committee
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 Acknowledgement. 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/Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
Senior Vice President & General
Counsel
Consolidated Freightways Corporation
Executive:
/s/Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Senior Vice President, Sales &
Marketing
Consolidated Freightways Corporation
EMPLOYMENT AGREEMENT
This Agreement, dated as of November 13, 2000, 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 Xxxxxx X. Xxxxxxx
(hereinafter "Executive").
Recitals
Whereas, Executive is currently employed by the Company as
its President and Chief Operating 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 two (2) years after December
31, 2000.
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, 2002, 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, 2002, 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 any company, or parent thereof, 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, the Chief Executive
Officer of the company or an acquiring company or Chief Operating
Officer of an acquiring 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.
Salary And Bonus
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 55% 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 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 provided in 2000,
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.
Additional Obligations
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 the 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 and excluding any stock awards or
other compensation and benefits that are awarded to senior
executives after termination of employment) 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 of termination against 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, subject to payment of the
exercise price, attainment during the term of all other
requirements not related to continued employment, and
satisfaction any other requirements, related to exercise or
termination of stock awards following termination, as applicable.
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, and 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 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 Executives
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 of 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
Delaware law without reference to principles of conflicts of
laws.
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 incur 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
00000 XX XX Xxx
Xxxxxxxxx, XX 00000
Attn: Chairman of Compensation Committee
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 Acknowledgement. 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/Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
Senior Vice President & General
Counsel
Consolidated Freightways Corporation
Executive:
/s/Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
President and Chief Operating
Officer
Consolidated Freightways Corporation
EMPLOYMENT AGREEMENT
This Agreement, dated as of January 1, 2001, is made by and
between Consolidated Freightways Corporation, a Delaware
corporations (hereinafter, together with any successor
Corporation(s), the "Company"), and Xxxxxx X. Xxxxxxxx
(hereinafter "Executive").
Recitals
Whereas, Executive is being employed by the Company as its
Senior Vice President, Operations and Planning;
Whereas, the Company and Executive wish to set forth in this
Agreement the terms and conditions under which Executive is 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 at least one (1) year after
the date hereof.
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 terminated earlier pursuant to Article 6.
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 as Senior Vice
President, Operations and Planning at the corporate headquarters
in Vancouver, Washington. Executive shall report to the Chief
Executive Officer of the Company. Executive shall have the
powers and duties commensurate with such position.
2.2 Time Commitment. Executive shall devote his best
efforts and a substantial portion of his business time and
attention to the performance of the services customarily incident
to such office and to such other services as the Chief Executive
Officer of the Company or of an acquiring company may reasonably
request. Provided however, Executive may also serve on the
Boards of Directors of one or more other companies, may serve on
the governing bodies of such charitable organizations as
Executive determines, and may continue his services as the Chief
Executive Officer and a director of My XxxxxxxXxxxx.xxx, LLC.
2.3 Other Activities. Except upon the prior written
consent of the Board of Directors or the Chief Executive Officer
of the 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. The parties acknowledge that My
XxxxxxxXxxxx.xxx, LLC is not currently in competition with the
Company, and that Executive's continued service with such company
is expected to be beneficial to the Company.
Article 3.
Salary And Bonus
3.1 Base Salary. Executive shall receive a base salary at
an annual rate of not less than $120,000 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.
Any increase in salary shall automatically increase the Base
Salary payable by the Company.
3.2 Stock Options. In consideration of Executives
agreement to become a Senior Vice President of the Company and to
serve in that capacity for not less than one year, the Company,
subject to approval of the Compensation Committee of the Board of
Directors of the Company at its next meeting to be held on
February 6, 2001, shall grant Executive non-qualified options to
purchase 30,000 shares of the Common Stock of the Company
("Stock Options"). The option price per share shall be the
higher of $4.71875 or the fair market value of the Company's
Common Stock on the date of grant. The other terms of the option
shall be so set forth in the Stock Option Notice and Stock Option
Agreement attached as Exhibit A hereto.
3.3 Incentive Bonus. The Company shall provide Executive
an annual bonus plan targeting cash payment of 50% of Base Salary
annually ("Target Bonus"). The Compensation Committee of the
Board of Directors shall, at its sole discretion, determine the
extent to which cash performance objectives have been attained.
Objectives under which a Target Bonus will be earned shall be
achievable in a manner substantially consistent with other senior
executive officers. The 2001 Incentive Bonus Plan is attached as
Exhibit B. Executive would participate in the "CFC Executives"
Plan which is based on pre-tax, pre-bonus operating profits of
the Company and its subsidiaries.
3.4 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 Benefits. In consideration of the Base Salary, Target
Bonus and Stock Options, Executive hereby waives any claim to
benefits to the full extent permitted by law, including fringe
benefits, vacation, pension, 401(k) match, health plan,
disability plan and life insurance.
4.2 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 from time to time.
Article 5.
Additional Obligations
5.1 Non-Disclosure of Proprietary Information - Non
Competition. Executive shall continue to be bound by the Non
Disclosure Agreement, dated December 13, 2000, executed by the
Company and Executive. 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 the termination of employment, without
the prior written consent of the Chief Executive Officer of the
Company.
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 and pro rata Target
Bonus to the extent earned based on performance to the date of
death. Thereafter, the Company's obligations hereunder, except
as specifically provided in the Stock Option Notice and Stock
Option Agreement, 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 Salary and Target Bonus to the extent earned based on
your performance to the date of disability. Thereafter the
Company's obligations hereunder shall terminate, except as
specifically provided in the Stock Option Notice and Stock Option
Agreement. Executive shall have no rights under any Company
disability plan in which he is an eligible participant.
6.3 By Company for Cause. The Company may terminate
Executive's employment for Cause 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
Salary and Target Bonus to the extent earned based on your
performance to the date of disability and shall pay to Executive
as provided herein Executive's Base Salary over the period equal
to the remaining term of this Agreement, and thereafter all
obligations of the Company shall terminate, except as
specifically provided in the Stock Option Notice and Agreement.
Provided, however, the stock options shall vest in full and be
fully exercisable as specified in the Stock Option Agreement.
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) material
reduction of Executive's benefits under any of such plans, (iii)
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 company, to a worksite that is more
than 15 miles from his prior worksite, unless Executive accepts
such relocation opportunity, (vi) material reduction in
Executives duties, (iv) 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 (v) material breach by the Company or any successor to the
Company or any parent company of any of the material provisions
of this Agreement.
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
Delaware law without reference to principles of conflicts of
laws.
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 incur 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
00000 XX XX Xxx
Xxxxxxxxx, XX 00000
Attn: Chairman of Compensation Committee
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 Acknowledgement. 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/Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
Senior Vice President & General
Counsel
Consolidated Freightways Corporation
Executive:
/s/Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
