SPECIAL EMPLOYMENT AGREEMENT
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AGREEMENT by and between CSX Corporation, a Virginia corporation (the
"Company"), and Michael J. Ward (the "Executive"), dated as of the thirteenth
day of February, 2001.
WHEREAS, CSX owns, directly or indirectly, more than fifty percent of the voting
stock of various other corporations (hereinafter, individually or collectively,
"Affiliate"); and
WHEREAS, the Company and the Executive wish to set forth the terms and
conditions of the Executive's continued employment with the Company or an
Affiliate.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Term of this Agreement. The Company shall employ the Executive,
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and the Executive shall serve the Company, on the terms and conditions set forth
in this Agreement, for the period beginning on February 13, 2001 and ending on
February 12, 2006, subject to early termination as provided below (the "Term of
this Agreement").
2. Position and Duties. (a) During the Term of this Agreement, the
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Executive shall serve as the President of CSX Transportation, Inc., reporting to
the Chief Executive Officer ("CEO") of CSX Corporation, with the duties and
responsibilities normally associated with that position.
(b) During the Term of this Agreement, and excluding any periods
of vacation and sick leave to which the Executive is entitled, the Executive
agrees to devote reasonable attention and time during normal business hours to
the business and affairs of the
Company and, to the extent necessary to discharge the responsibilities assigned
to the Executive hereunder, to use the Executive's reasonable best efforts to
perform faithfully and efficiently such responsibilities. During the Term of
this Agreement, it shall not be a violation of this Agreement for the Executive
to (A) serve on corporate, civic, or charitable boards or committees, (B)
deliver lectures, fulfill speaking engagements, or teach at educational
institutions and (C) manage personal investments, so long as such activities do
not significantly interfere with the performance of the Executive's
responsibilities as an employee of the Company in accordance with this
Agreement.
3. Compensation. (a) Base Salary. During the Term of this Agreement,
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the Executive shall receive an annual base salary equal to his annual base
salary as of the date hereof (the "Base Salary"), payable in accordance with the
Company's customary payroll practices. During the Term of this Agreement, the
Base Salary shall be reviewed for possible increase at least annually. Any
increase in the Base Salary shall not limit or reduce any other obligation of
the Company under this Agreement. The Base Salary shall not be reduced after any
such increase, and the term "Base Salary" shall thereafter refer to the Base
Salary as so increased.
(b) Annual Bonus. In addition to the Base Salary, the Executive
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shall have the opportunity to earn, for each fiscal year ending during the Term
of this Agreement, an annual bonus (the "Annual Bonus") on terms comparable to
those provided for such fiscal year to senior executives of the Company.
(c) Restricted Stock. In connection with entering into this
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Agreement, the Company has granted the Executive 165,000 shares of restricted
stock under the Company's
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Omnibus Incentive Plan, pursuant to a Restricted Stock Award Agreement dated
February 13, 2001 (the "Restricted Stock Agreement").
(d) Other Benefits. During the Term of this Agreement: (i) the
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Executive shall be entitled to participate in all incentive, savings and
retirement plans, practices, policies and programs of the Company to the same
extent as senior executives; (ii) the Executive and/or the Executive's family,
as the case may be, shall be eligible for participation in, and shall receive
all benefits under, all welfare benefit plans, practices, policies and programs
provided by the Company (including, without limitation, medical, prescription,
dental, disability, salary continuance, employee life insurance, group life
insurance, accidental death and travel accident insurance plans and programs) to
the same extent as senior executives; and (iii) the Executive shall be entitled
to fringe benefits to the same extent and on the same basis as senior
executives.
4. Termination of Employment. (a) Death or Disability. The
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Executive's employment hereunder and the Term of this Agreement shall terminate
automatically upon the Executive's death during the Term of this Agreement. If
the Company determines in good faith that the Disability of the Executive has
occurred during the Term of this Agreement (pursuant to the definition of
Disability set forth below), it may give to the Executive written notice in
accordance with Section 11(b) of this Agreement of its intention to terminate
the Executive's employment. In such event, the Executive's employment with the
Company and the Term of this Agreement shall terminate effective on the 30th day
after receipt of such notice by the Executive (the "Disability Effective Date"),
provided that, within 30 days after such receipt, the Executive shall not have
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returned to full-time performance of the Executive's duties. For purposes of
this Agreement, "Disability" shall mean the Executive's becoming disabled within
the meaning of the long-term disability plan of the Company covering the
Executive.
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(b) By the Company. The Company may terminate the Executive's
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employment hereunder and the Term of this Agreement for Cause or without Cause.
"Cause" means: (i) the willful and continued failure of the Executive
substantially to perform the Executive's duties under this Agreement (other than
as a result of physical or mental illness or injury) after the CEO delivers to
the Executive a written demand for substantial performance that specifically
identifies the manner in which the CEO believes that the Executive has not
substantially performed the Executive's duties; or (ii) illegal conduct or gross
misconduct by the Executive.
(c) Good Reason. The Executive may terminate employment
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hereunder and the Term of this Agreement for Good Reason or without Good Reason.
A termination for "Good Reason" means termination by the Executive within 60
days after, and as a result of:
(i) the assignment to the Executive of any duties materially
inconsistent with Section 2(a) of this Agreement, or any other action by the
Company that results in a material diminution in the Executive's position,
authority, duties or responsibilities; provided, however, that immaterial
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changes in Executive's responsibilities will not constitute grounds for a Good
Reason termination under this Section 4(c)(i); or
(ii) any failure by the Company to comply with any provision of
Section 3 of this Agreement, other than an isolated, insubstantial and
inadvertent failure that is not taken in bad faith and is remedied by the
Company promptly after receipt of notice thereof from the Executive.
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(d) Notice of Termination. Any termination of the Executive's
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employment by the Company or by the Executive shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 11(b) of
this Agreement. For purposes of this Agreement, a "Notice of Termination" means
a written notice which: (i) indicates the specific termination provision in this
Agreement relied upon; (ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Executive's employment under the provision so indicated; and (iii) if the
Date of Termination (as defined below) is other than the date of receipt of such
notice, specifies the termination date (which date shall be not more than thirty
days after the giving of such notice). The failure by the Executive or the
Company to set forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason or Cause shall not waive any right of
the Executive or the Company, respectively, hereunder or preclude the Executive
or the Company, respectively, from asserting such fact or circumstance in
enforcing the Executive's or the Company's rights hereunder.
(e) Date of Termination. The "Date of Termination" means: (i) if
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the Executive's employment is terminated by the Company for Cause, or by the
Executive for Good Reason, the date on which the Notice of Termination is given
or any later date specified therein, as the case may be; (ii) if the Executive's
employment is terminated by the Company other than for Cause or Disability or by
the Executive without Good Reason, the Date of Termination shall be the date on
which the Notice of Termination is given; and (iii) if the Executive's
employment is terminated by reason of the Executive's death or Disability, the
Date of Termination shall be the date of death or the Disability Effective Date,
as the case may be.
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5. Obligations of the Company upon Termination. (a) Other Than for
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Cause, Death or Disability; Good Reason. If, during the Term of this Agreement,
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the Company terminates the Executive's employment, other than for Cause or
Disability, or the Executive terminates employment for Good Reason, the Company
shall pay the amounts described in Section 5(a)(i) below to the Executive in a
lump sum in cash within 30 days after the Date of Termination, and shall
continue the benefits described in Section 5(a)(ii) below until February 12,
2006. The payments provided pursuant to this Section 5(a) are intended as
liquidated damages for a termination of the Executive's employment by the
Company and of the Term of this Agreement other than for Cause or Disability or
for the actions of the Company leading to a termination of the Executive's
employment by the Executive for Good Reason, and shall be the sole and exclusive
remedy therefor, and shall be paid only upon receipt by the Company from the
Executive of an executed release and waiver, satisfactory in form and in
substance to the Company, of all claims against the Company, provided, however,
that such release and waiver shall be consistent with the Company's general
practices and shall contain no language that directly or indirectly limits or
reduces the Executive's entitlement to indemnity or insurance with respect to
his actions as an employee or officer of the Company or its Affiliates.
(i) The amounts to be paid in a lump sum as described above are:
A. the Executive's accrued but unpaid cash compensation (the
"Accrued Obligations"), which shall equal the sum of (1) any portion
of the Executive's Base Salary through the Date of Termination that
has not yet been paid and (2) any accrued but unpaid Annual Bonuses
and vacation pay;
B. the aggregate amount of the Base Salary that would have been
payable to the Executive from the Date of Termination through February
12,
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2006, had he remained employed hereunder, at the rate in effect
immediately before the Date of Termination (but disregarding any
decrease in the rate of Base Salary that was a basis for a termination
by the Executive for Good Reason, if applicable);
C. one-half of the aggregate target amount of the Annual
Bonuses that the Executive would have received following the Date of
Termination, up to and including a pro rated Annual Bonus for 2006.
The pro rated Annual Bonus for 2006 shall be equal to one-half of the
product of (A) the Target annual bonus established for the position
times (B) a fraction, the numerator of which is the number of days in
the year 2006 through February 12, 2006, and the denominator of which
is 365; and
D. an amount equal to the excess of (a) the actuarial
equivalent of the benefit under the Company's qualified defined
benefit retirement plan (the "Retirement Plan") and any excess or
supplemental retirement plan in which the Executive participates
(together, the "SERP") which the Executive would have received if the
Executive's employment had continued until February 12, 2006, assuming
for this purpose that the Executive's compensation during such period
would have been that required by Section 3(a) and Section 3(b), over
(b) the actuarial equivalent of the Executive's actual benefit (paid
or payable), if any, under the Retirement Plan and the SERP as of the
Date of Termination (utilizing for purposes of the foregoing actuarial
assumptions no less favorable to the Executive than those in effect
under the Company's Retirement Plan and SERP as of the Date of
Termination).
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(ii) The benefits to be continued as described above are
welfare benefits to the Executive and/or the Executive's family at least as
favorable as those that would have been providd to them under Section 3(d)(ii)
of this Agreement if the Executive's employment had continued until February 12,
2006, except that (A) the Company shall have no obligation to provide continued
disability and accidental death or dismemberment coverage, and (B) the provision
of disability and accidental death or dismemberment coverage prior to
Termination shall not be considered for purposes of determining whether the
benefits provided under this Section 5(a)(ii) are as favorable as those provided
under Section 3(c)(ii); provided, however, that during any period when the
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Executive is eligible to receive benefits of the type to be provided under this
Section 5(a)(ii) under another employer-provided plan, the benefits provided by
the Company under this Section 5(a)(ii) may be made secondary to those provided
under such other plan. For purposes of determining eligibility (but not the time
of commencement of benefits) of the Executive for retiree benefits under this
subparagraph, the Executive shall be deemed to have retired on February 12,
2006.
(b) Death or Disability. If the Executive's employment is
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terminated by reason of the Executive's death or Disability during the Term of
this Agreement, the Company shall pay the Accrued Obligations to the Executive
or the Executive's estate or legal representative, as applicable, in a lump sum
in cash within 30 days after the Date of Termination, and the Company shall have
no further obligations under this Agreement.
(c) Cause; Other than for Good Reason. If the Executive's
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employment is terminated by the Company for Cause during the Term of this
Agreement, the Company shall pay the Executive the Base Salary through the Date
of Termination and the amount of any compensation previously deferred by the
Executive (together with any accrued
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interest or earnings thereon), in each case to the extent not yet paid, and the
Company shall have no further obligations under this Agreement. If the Executive
voluntarily terminates employment during the Term of this Agreement, other than
for Good Reason, the Company shall pay the Accrued Obligations to the Executive
in a lump sum in cash within 30 days of the Date of Termination, and the Company
shall have no further obligations under this Agreement.
6. Effect of Change of Control. The Executive and the Company are
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parties to an Employment Agreement dated as of November 1, 2000 (the "Change of
Control Agreement"), which provides for the terms and conditions of the
Executive's employment and for certain severance pay and other benefits
following a "Change of Control" (as defined in the Change of Control Agreement).
If the Effective Date (as defined in the Change of Control Agreement) occurs
during the Term of this Agreement, then notwithstanding any other provision of
this Agreement or of the Change of Control Agreement, (i) the Change of Control
Agreement shall supersede this Agreement for the duration of the Employment
Period under the Change of Control Agreement, except that in the event of a
termination of the Executive's employment, the Executive (or his estate, in the
event of his death) may elect to have either Section 5 of this Agreement or
Sections 6 through 8 of the Change of Control Agreement (but not both) apply to
such termination, and (ii) if the Term of this Agreement ends after the end of
such Employment Period, and the Executive remains employed by the Company
immediately following the end of such Employment Period, this Agreement shall be
reinstated as of the end of such Employment Period and shall govern the
Executive's employment for the remainder of the Term of this Agreement. If the
Executive becomes entitled to make the election contemplated by clause (i) of
the preceding sentence, the Company shall give the Executive written notice in
accordance with Section 11(b) that he has the right to such election. If the
Executive fails to make such an
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election affirmatively, he shall be deemed for all purposes to have elected to
have the provisions of Sections 6 through 8 of the Change of Control Agreement,
rather than Section 5 of this Agreement, apply to such termination.
7. Non-exclusivity of Rights. Nothing in this Agreement shall
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prevent or limit the Executive's continuing or future participation in any plan,
program, policy or practice provided by the Company or any other company
controlled by, controlling, or under common control with, the Company (such
other companies, collectively, the "Affiliated Companies") for which the
Executive may qualify, nor, subject to Section 11(f), shall anything herein
limit or otherwise affect such rights as the Executive may have under any
contract or agreement with the Company or any Affiliated Company. Amounts which
are vested benefits or which the Executive is otherwise entitled to receive
under any plan, policy, practice or program of, or any contract or agreement
with, the Company or any of its Affiliated Companies at or subsequent to the
Date of Termination shall be payable in accordance with such plan, policy,
practice or program or contract or agreement except as explicitly modified by
this Agreement. Notwithstanding the foregoing, if the Executive receives
payments and benefits pursuant to Section 5(a) of this Agreement, the Executive
shall not be entitled to any severance pay or benefits under any severance plan,
program or policy of the Company and the Affiliated Companies, unless otherwise
specifically provided therein in a specific reference to this Agreement.
8. Full Settlement. The Company's obligation to make the payments
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provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be
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obligated to seek other employment or take any other action by way of mitigation
of the amounts payable to the Executive under any of the provisions of this
Agreement and such amounts shall not be reduced (except as specifically provided
in Section 5(a)(ii)) whether or not the Executive obtains other employment.
9. Confidential Information; No-Raid; Noncompetition; Inventions.
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(a) The Executive shall hold in a fiduciary capacity, for the benefit of the
Company and the Affiliated Companies, all secret or confidential information,
knowledge or data relating to the Company or any Affiliated Company and their
respective businesses (including, without limitation, any proprietary and not
publicly available information concerning any processes, methods, trade secrets,
research, secret data, costs or names of users or purchasers of their respective
products or services, business methods, operating procedures or programs or
methods of promotion and sale) that the Executive obtains during the Executive's
employment by the Company or any Affiliated Company and that is not public
knowledge (other than as a result of the Executive's violation of this Section
9(a)) ("Confidential Information"). For the purposes of this Section 9(a),
information shall not be deemed to be publicly available merely because it is
embraced by general disclosures or because individual features or combinations
thereof are publicly available. The Executive shall not communicate, divulge or
disseminate Confidential Information at any time during or after the Executive's
employment with the Company or any Affiliated Company, except with the prior
written consent of the Company, or such Affiliated Company, as applicable, or as
otherwise required by law or legal process. All records, files, memoranda,
reports, customer lists, drawings, plans, documents and the like that the
Executive uses, prepares or comes into contact with during the course of the
Executive's employment shall remain the sole property of the Company and/or one
or more Affiliated Company, as applicable, and shall
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be turned over to the Company or such Affiliated Company, as applicable, upon
termination of the Executive's employment. The Executive also agrees that until
the first anniversary of the Date of Termination, he will advise any prospective
employer or client that meets any of the following criteria of the
confidentiality restrictions set forth in this Agreement and state in writing to
such prospective employer or client that his employment or provision of services
will not violate these provisions, and will deliver a copy of such statement to
the Company. Such a statement shall be required for any prospective employer or
client that is (i) engaged in the railroad or intermodal transportation
business; (ii) a customer representing more than 1% of the revenues of either
CSX Transportation, Inc. or CSX Intermodal, Inc.; or (iii) affiliated with the
Norfolk Southern Corporation.
(b) The Executive agrees that he will not, at any time during the
Noncompetition Period (as defined in Section 9(c) below), without the prior
written consent of the Company or the applicable Affiliated Company, as
applicable, directly or indirectly employ, or solicit the employment of (whether
as an employee, officer, director, agent, consultant or independent contractor),
any person who was or is at any time during the previous twelve (12) months an
employee, representative, officer or director of the Company or any Affiliated
Company (except for such employment by the Company or any Affiliated Company);
provided, however, that a public advertisement not specifically targeted at the
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employees of the Company shall not be deemed to be a solicitation for purposes
of this provision.
(c) During the Noncompetition Period (as defined below), the
Executive shall not, without the prior written consent of the CEO, engage in or
become associated with a Competitive Activity. For purposes of this Section 9:
(i) the "Noncompetition Period" means the period beginning on the date of this
Agreement and ending on February 12,
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2007, except that if the Executive voluntarily terminates his employment without
Good Reason as described in the last sentence of Section 5(c), the
Noncompetition Period shall end on the first anniversary of the Date of
Termination; (ii) a "Competitive Activity" means any business or other endeavor,
in any county of any state of the United States or a comparable jurisdiction in
Canada or any other country, directly or indirectly for a Class I railroad
operating in North America; and (iii) the Executive shall be considered to have
become "associated with a Competitive Activity" if the Executive becomes
directly or indirectly involved as an owner, principal, employee, officer,
director, independent contractor, representative, stockholder, financial backer,
agent, partner, advisor, lender, or in any other individual or representative
capacity with any individual, partnership, corporation or other organization
that is engaged in a Competitive Activity. Notwithstanding the foregoing, the
Executive may make and retain investments during the Term of this Agreement in
less than 0.5% of the equity of any entity engaged in a Competitive Activity, if
such equity is listed on a national securities exchange or regularly traded in
an over-the-counter market.
(d) All plans, discoveries and improvements, whether patentable or
unpatentable, made or devised by the Executive, whether alone or jointly with
others, from the date of the Executive's initial employment by the Company and
continuing until the end of the Term of this Agreement and any subsequent period
when the Executive is employed by the Company or any Affiliated Company,
relating or pertaining in any way to the Executive's employment with or the
business of the Company or any Affiliated Company, are hereby transferred to and
shall redound to the benefit of the Company, and shall become and remain its
sole and exclusive property. The Executive agrees to execute any assignments to
the Company or its nominee, of the Executive's entire right, title and interest
in and to any such discoveries
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and improvements and to execute any other instruments and documents requisite or
desirable in applying for and obtaining patents or copyrights, at the expense of
the Company, with respect thereto in the United States and in all foreign
countries, that may be required by the Company. The Executive further agrees,
during and after the Term of this Agreement, to cooperate to the extent and in
the manner required by the Company, in the prosecution or defense of any patent
or copyright claims or any litigation, or other proceeding involving any trade
secrets, processes, discoveries or improvements covered by this Agreement, but
all necessary expenses thereof shall be paid by the Company.
(e) The Executive acknowledges and agrees that: (i) the purpose of
the foregoing covenants, including without limitation the noncompetition
covenant of Section 9(c), is to protect the goodwill, trade secrets and other
Confidential Information of the Company; (ii) because of the nature of the
business in which the Company and the Affiliated Companies are engaged and
because of the nature of the Confidential Information to which the Executive has
access, it would be impractical and excessively difficult to determine the
actual damages of the Company and any Affiliated Company in the event the
Executive breached any of the covenants of this Section 9; and (iii) remedies at
law (such as monetary damages) for any breach of the Executive's obligations
under this Section 9 would be inadequate. The Executive therefore agrees and
consents that if he commits any breach of a covenant under this Section 9 or
threatens to commit any such breach, the Company shall have the right (in
addition to, and not in lieu of, any other right or remedy that may be available
to it) to temporary and permanent injunctive relief from a court of competent
jurisdiction, without posting any bond or other security and without the
necessity of proof of actual damage. With respect to any provision of this
Section 9 finally determined by a court of competent jurisdiction to be
unenforceable, the Executive and
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the Company hereby agree that such court shall have jurisdiction to reform this
Agreement or any provision hereof so that it is enforceable to the maximum
extent permitted by law, and the parties agree to abide by such court's
determination. If any of the covenants of this Section 9 are determined to be
wholly or partially unenforceable in any jurisdiction, such determination shall
not be a bar to or in any way diminish the Company's right to enforce any such
covenant in any other jurisdiction.
10. Successors. (a) This Agreement is personal to the Executive and
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without the prior written consent of the Company shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives.
(b) This Agreement shall inure to the benefit of and be binding
upon the Company and its successors and assigns.
(c) 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 to assume
expressly 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. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
11. Miscellaneous. (a) This Agreement shall be governed by and
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construed in accordance with the laws of the Commonwealth of Virginia, without
reference to principles of conflict of laws. The captions of this Agreement are
not part of the provisions hereof and shall
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have no force or effect. This Agreement may not be amended or modified otherwise
than by a written agreement executed by the parties hereto or their respective
successors and legal representatives.
(b) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive:
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Michael J. Ward
If to the Company:
CSX Corporation
One James Center
Richmond, Virginia 23219
Attention: Corporate Secretary
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addresses.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement. If any provision of this Agreement shall be held invalid or
unenforceable in part, the remaining portion of such provision, together with
all other provisions of this Agreement, shall remain valid and enforceable and
continue in full force and effect to the fullest extent consistent with law.
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(d) The Company may withhold from any amounts payable under this
Agreement such Federal, state, local or foreign taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
(e) The Executive's or the Company's failure to insist upon strict
compliance with any provision of this Agreement or the failure to assert any
right the Executive or the Company may have hereunder, including, without
limitation, the right of the Executive to terminate employment for Good Reason
pursuant to Section 4(c) of this Agreement, shall not be deemed to be a waiver
of such provision or right or any other provision or right of this Agreement.
(f) The Executive and the Company acknowledge that this Agreement
supersedes any other agreement between them concerning the subject matter
hereof, other than the Change of Control Agreement. This Agreement shall have no
effect on any agreements between the Executive and the Company or any of its
affiliates not concerning the subject matter hereof, and any such agreement
(including without limitation the Restricted Stock Agreement) is ratified and
confirmed in all respects and shall remain in full force and effect in
accordance with its terms.
(g) This Agreement may be executed in several counterparts, each of
which shall be deemed an original, and said counterparts shall constitute but
one and the same instrument.
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IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand and,
pursuant to due authorization, the Company has caused this Agreement to be
executed in its name on its behalf, all as of the day and year first above
written.
/s/ Michael J. Ward_____________________
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Michael J. Ward
CSX CORPORATION
By /s/ John W. Snow_____________________
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September 5, 2001
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