{"id":40045,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/key-employee-continuity-plan-union-pacific-corp.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"key-employee-continuity-plan-union-pacific-corp","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/key-employee-continuity-plan-union-pacific-corp.html","title":{"rendered":"Key Employee Continuity Plan &#8211; Union Pacific Corp."},"content":{"rendered":"<pre>\n================================================================================\n\n\n\n\n\n                            UNION PACIFIC CORPORATION\n                          KEY EMPLOYEE CONTINUITY PLAN\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n                          Dated as of November 16, 2000\n\n\n\n\n\n================================================================================\n\n\n\n\n   2\n\n\n\n                            UNION PACIFIC CORPORATION\n                          KEY EMPLOYEE CONTINUITY PLAN\n\n                  The Company hereby adopts the Union Pacific Corporation Key\nEmployee Continuity Plan for the benefit of certain employees of the Company and\nits Affiliates, on the terms and conditions hereinafter stated. All capitalized\nterms used herein are defined in Section 1 hereof. The Plan, as a \"severance pay\narrangement\" within the meaning of Section 3(2)(B)(i) of ERISA, is intended to\nbe excepted from the definitions of \"employee pension benefit plan\" and \"pension\nplan\" set forth under Section 3(2) of ERISA, and is intended to meet the\ndescriptive requirements of a plan constituting a \"severance pay plan\" within\nthe meaning of regulations published by the Secretary of Labor at Title 29, Code\nof Federal Regulations, Section 2510.3-2(b).\n\n\nSECTION 1. DEFINITIONS. As hereinafter used:\n\nSECTION 1.1 \"Affiliate\" shall have the meaning set forth in Rule 12b-2 under\nSection 12 of the Exchange Act.\n\nSECTION 1.2 \"Beneficial Owner\" shall have the meaning set forth in Rule 13d-3\nunder the Exchange Act.\n\nSECTION 1.3 \"Board\" means the Board of Directors of the Company.\n\nSECTION 1.4 \"Cause\" means (i) the willful and continued failure by the Eligible\nEmployee to substantially perform the Eligible Employee's duties with the\nEmployer (other than any such failure resulting from the Eligible Employee's\nincapacity due to physical or mental illness), or (ii) the willful engaging by\nthe Eligible Employee in conduct which is demonstrably injurious to the Company,\nmonetarily or otherwise. For purposes of this definition, no act, or failure to\nact, on the Eligible Employee's part shall be deemed \"willful\" unless done, or\nomitted to be done, by the Eligible Employee not in good faith or without\nreasonable belief that the Eligible Employee's act, or failure to act, was in\nthe best interest of the Company.\n\nSECTION 1.5 A \"Change in Control\" shall be deemed to have occurred if the event\nset forth in any one of the following paragraphs shall have occurred:\n\n                           (i) any Person is or becomes the Beneficial Owner,\ndirectly or indirectly, of securities of the Company (not including in the\nsecurities beneficially owned by such Person any securities acquired directly\nfrom the Company or its Affiliates) representing 20% or more of the combined\nvoting power\n\n\n                                       2\n\n   3\n\nof the Company's then outstanding securities, excluding any Person who becomes\nsuch a Beneficial Owner in connection with a transaction described in clause (A)\nof paragraph (iii) below; or\n\n                           (ii) the following individuals cease for any reason\nto constitute a majority of the number of directors then serving: individuals\nwho, on November 16, 2000, constitute the Board and any new director (other than\na director whose initial assumption of office is in connection with an actual or\nthreatened election contest, including but not limited to a consent\nsolicitation, relating to the election of directors of the Company) whose\nappointment or election by the Board or nomination for election by the Company's\nshareholders was approved or recommended by a vote of at least two-thirds (2\/3)\nof the directors then still in office who either were directors on the date\nhereof or whose appointment, election or nomination for election was previously\nso approved or recommended; or\n\n                           (iii) there is consummated a merger or consolidation\nof the Company or any direct or indirect subsidiary of the Company with any\nother corporation, other than (A) a merger or consolidation which would result\nin the voting securities of the Company outstanding immediately prior to such\nmerger or consolidation continuing to represent (either by remaining outstanding\nor by being converted into voting securities of the surviving entity or any\nparent thereof) more than 50% of the combined voting power of the securities of\nthe Company or such surviving entity or any parent thereof outstanding\nimmediately after such merger or consolidation or (B) a merger or consolidation\neffected to implement a recapitalization of the Company (or similar transaction)\nin which no Person is or becomes the Beneficial Owner, directly or indirectly,\nof securities of the Company (not including in the securities Beneficially Owned\nby such Person any securities acquired directly from the Company or its\nAffiliates) representing 20% or more of the combined voting power of the\nCompany's then outstanding securities; or\n\n                           (iv) the shareholders of the Company approve a plan\nof complete liquidation or dissolution of the Company or there is consummated an\nagreement for the sale or disposition by the Company of all or substantially all\nof the Company's assets, other than a sale or disposition by the Company of all\nor substantially all of the Company's assets to an entity, more than 50% of the\ncombined voting power of the voting securities of which is owned by shareholders\nof the Company in substantially the same proportions as their ownership of the\nCompany immediately prior to such sale.\n\nSECTION 1.6 \"Code\" means the Internal Revenue Code of 1986, as it may be amended\nfrom time to time.\n\n                                       3\n   4\n\nSECTION 1.7 \"Company\" means Union Pacific Corporation, a Utah corporation, or\nany successors thereto.\n\nSECTION 1.8 \"Eligible Employee\" means any employee who is a Tier 1, Tier 2 or\nTier 3 Employee. An Eligible Employee becomes a \"Severed Employee\" once he or\nshe incurs a Severance.\n\nSECTION 1.9 \"Employer\" means the Company or any of its Affiliates which is an\nemployer of an Eligible Employee.\n\nSECTION 1.10 \"Equity Award\" shall mean stock options, restricted stock and other\nsimilar equity-based awards which are granted to an Eligible Employee by the\nCompany (excluding, however, (i) any incentive stock options (as defined under\nSection 422 of the Code) granted prior to November 16, 2000, (ii) awards made\nunder the Company's Executive Stock Purchase Incentive Plan, and (iii) awards\nmade under the Company's 2001 Long Term Plan (the \"2001 LTP\")).\n\nSECTION 1.11 \"Exchange Act\" shall mean the Securities Exchange Act of 1934, as\namended from time to time.\n\nSECTION 1.12 \"Excise Tax\" shall mean any excise tax imposed under section 4999\nof the Code or any successor provision thereto.\n\nSECTION 1.13 \"Good Reason\" means the occurrence, on or after the date of a\nChange in Control and without the affected Eligible Employee's written consent,\nof any of the following: (i) the assignment to the Eligible Employee of duties\nthat are materially inconsistent with the Eligible Employee's duties immediately\nprior to the Change in Control (other than pursuant to a transfer or promotion\nto a position of equal or enhanced responsibility or authority) or any\ndiminution in the nature or scope of the Eligible Employee's responsibilities\nfrom those in effect immediately prior to the Change in Control; (ii) a\nreduction by the Employer (or any member of the Parent Group) in the Eligible\nEmployee's annual base salary or annual incentive opportunity from that in\neffect immediately prior to the Change in Control; (iii) a material reduction by\nthe Employer (or any member of the Parent Group) in the pension, thrift, medical\nor long term disability benefits provided to the Eligible Employee from those\nprovided to the Eligible Employee immediately prior to the Change in Control; or\n(iv) the failure by any successor (whether direct or indirect, by purchase,\nmerger, consolidation or otherwise), to all or substantially all of the business\nand\/or assets of the Company, to expressly assume and agree to perform this Plan\nin the same manner and to the same extent that the Company would be required to\nperform it if no succession had taken place.\n\n\n                                       4\n   5\n\nSECTION 1.14 \"Gross-Up Payment\" shall have the meaning set forth in Section 2.5\nhereof.\n\nSECTION 1.15 \"Parent\" shall mean the ultimate parent, if any, of the Company\nafter a Change in Control.\n\nSECTION 1.16 \"Parent Group\" shall mean, collectively, the Parent and its\nAffiliates.\n\nSECTION 1.17 \"Person\" shall have the meaning given in Section 3(a)(9) of the\nExchange Act, as modified and used in Sections 13(d) and 14(d) thereof, except\nthat such term shall not include (i) the Company or any of its Affiliates, (ii)\na trustee or other fiduciary holding securities under an employee benefit plan\nof the Company or any of its subsidiaries, (iii) an underwriter temporarily\nholding securities pursuant to an offering of such securities or (iv) a\ncorporation owned, directly or indirectly, by the shareholders of the Company in\nsubstantially the same proportions as their ownership of stock of the Company.\n\nSECTION 1.18 \"Plan\" means the Union Pacific Corporation Key Employee Continuity\nPlan, as set forth herein, as it may be amended from time to time.\n\nSECTION 1.19 \"Plan Administrator\" means the person or persons appointed from\ntime to time by the Board which appointment may be revoked at any time by the\nBoard.\n\nSECTION 1.20 A \"Potential Change in Control\" shall be deemed to have occurred if\nthe event set forth in any one of the following paragraphs shall have occurred:\n\n                           (a) the Company enters into an agreement, the\nconsummation of which would result in the occurrence of a Change in Control;\n\n                           (b) the Company or any Person publicly announces an\nintention to take or to consider taking actions which, if consummated, would\nconstitute a Change in Control;\n\n                           (c) any Person becomes the Beneficial Owner, directly\nor indirectly, of securities of the Company (not including in the securities\nbeneficially owned by such Person any securities acquired directly from the\nCompany or its Affiliates) representing fifteen (15%) or more of either the then\noutstanding shares of common stock of the Company or the combined voting power\nof the Company's then outstanding securities; or\n\n\n                                       5\n   6\n\n                           (d) the Board adopts a resolution to the effect that\na Potential Change in Control has occurred.\n\nSECTION 1.21 \"Severance\" means the termination of an Eligible Employee's\nemployment with the Employer on or within two years following the date of the\nChange in Control, (i) by the Employer, other than for Cause or pursuant to\nmandatory retirement policies of the Employer that existed prior to the Change\nof Control, or (ii) by the Eligible Employee for Good Reason. An Eligible\nEmployee will not be considered to have incurred a Severance if his or her\nemployment is (a) discontinued by reason of the Eligible Employee's death or a\nphysical or mental condition causing such Eligible Employee's inability to\nsubstantially perform his or her duties with the Employer, including, without\nlimitation, such condition entitling him or her to benefits under any sick pay\nor disability income policy or program of the Employer or (b) discontinued by\nreason of the divestiture of a facility, sale of a business or business unit, or\nthe outsourcing of a business activity with which the Eligible Employee is\naffiliated, if the Eligible Employee is offered comparable employment by the\nentity which acquires such facility, business or business unit or which succeeds\nto such outsourced business activity and such entity agrees to assume the\nobligations of the Employer to the Eligible Employee under this Plan.\n\nSECTION 1.22 \"Severance Date\" means the date on or after the date of the Change\nin Control on which an Eligible Employee incurs a Severance.\n\nSECTION 1.23 \"Severance Payment\" means the payment determined pursuant to\nSection 2.1 hereof.\n\nSECTION 1.24 \"Tier 1 Employee\" means any employee of the Employer designated as\nsuch by a resolution of the Board.\n\nSECTION 1.25 \"Tier 2 Employee\" means any employee of the Employer designated as\nsuch by a resolution of the Board.\n\nSECTION 1.26 \"Tier 3 Employee\" means any employee of the Employer designated as\nsuch by a resolution of the Board.\n\nSECTION 2. BENEFITS.\n\nSECTION 2.1 Each Eligible Employee who incurs a Severance shall be entitled,\nsubject to Section 2.9 hereof, to receive a Severance Payment equal to the\nproduct of (i) the sum of (A) such Eligible Employee's annual base salary as in\neffect immediately prior to such Severance, plus (B) the average annual\nincentive \n\n\n                                       6\n   7\n\ncompensation earned (or foregone at the election of the Eligible Employee) by\nsuch Eligible Employee in respect of the three (or fewer, as hereinafter\ndescribed) annual incentive compensation determinations (including\ndeterminations that no annual incentive compensation will be awarded)\nimmediately preceding the Severance (or, if higher, in respect of the three (or\nfewer, as hereinafter described) annual incentive compensation determinations\nimmediately preceding the Change in Control) multiplied by (ii) in the case of a\nTier 1 Employee, three (3), in the case of a Tier 2 Employee, two (2); and in\nthe case of a Tier 3 Employee, one and one-half (1.5). For purposes of clause\n(A) above, annual base salary shall be determined immediately prior to the\nSeverance (without regard to any reductions therein which constitute Good\nReason) and for purposes of clause (B) above, annual incentive compensation\ndeterminations prior to 2000 (with respect to annual incentive compensation\nearned for plan years prior to 1999) shall be disregarded. The Severance Payment\nshall be paid to a Severed Employee in a cash lump sum, as soon as practicable\nfollowing the Severance Date, but in no event later than twenty (20) business\ndays immediately following the expiration of the revocation period, if any,\napplicable to such Severed Employee's release described in Section 2.9 hereof.\n\nSECTION 2.2 Each Eligible Employee who incurs a Severance and who is, at the\ntime of such Severance, a participant either in the Supplemental Pension Plan\nfor Officers and Managers of Union Pacific Corporation and Affiliates (the \"UPC\nSERP\") or in the Overnite Transportation Company Supplemental Executive\nRetirement Plan (the \"Overnite SERP\") shall, for purposes of the UPC SERP or the\nOvernite SERP, as applicable, (i) be deemed to have accumulated an additional\nthirty-six (36) months of age and service credit beyond the Severance Date (but\nin no event beyond age 65 and in no event shall aggregate service under the UPC\nSERP exceed forty (40) years or under the Overnite SERP exceed thirty (30)\nyears), and (ii) be deemed to be fully vested under such SERP.\n\nSECTION 2.3 (a) For a period of three years following a Severed Employee's\nSeverance Date (or, if sooner, until such Severed Employee attains the age of\nfifty-two (52), at which time the Severed Employee shall become entitled to\nreceive benefits under the Company's retiree welfare benefit plans), the Company\nshall provide such Severed Employee and anyone entitled to claim under or\nthrough such Severed Employee all benefits under any medical, dental or life\ninsurance program (as described in subsection (b) below), or other present or\nfuture similar group employee benefit plan or program of the Employer (but\nexcluding any long-term disability plan), to the same extent as if such Severed\nEmployee had continued to be an employee during such period; provided, however,\nthat benefits otherwise receivable by or in respect of a Severed Employee\nhereunder shall be reduced to the extent benefits of the same type are received\nby such Severed Employee from a subsequent employer (and the Severed Employee\nshall report the receipt of such \n\n\n                                       7\n   8\n\nbenefits to the Company). The coverage period for purposes of the group health\ncontinuation requirements of section 4980B of the Code shall commence on the\nSeverance Date.\n\n                           (b) With respect to continuation of Executive Life\nInsurance Plan coverage (i) for a Severed Employee who has attained the age of\nfifty-two (52) years on his or her Severance Date, the Company shall pay\npremiums for a life insurance policy (in amount equal to one-half (1\/2) of such\nSevered Employee's annual salary as in effect immediately prior to Severance\nDate), until fully funded; (ii) for a Severed Employee who attains the age of\nfifty-two (52) during the three-year period following his or her Severance Date,\nthe Company shall, for the period prior to such Severed Employee reaching the\nage of fifty-two (52), treat such Severed Employee as if he or she were an\nactive employee of the Company, and at such time as such Severed Employee\nattains the age of fifty-two (52), treat such Severed Employee in accordance\nwith clause (i) above; and (iii) for a Severed Employee who will not attain the\nage of fifty-two (52) during the three-year period following his or her\nSeverance Date, the Company shall, during such period, pay premiums on such\nSevered Employee's life insurance policy as though such Severed Employee were an\nactive employee.\n\nSECTION 2.4 (a) In the event an Eligible Employee incurs a Severance, the\nEligible Employee shall become fully vested in all outstanding Equity Awards. In\nthe case of an Equity Award consisting of (1) a stock option, such option shall\ncontinue to be exercisable for a period of three years from the Severance Date\n(or such longer period as may be prescribed in the plan or agreement governing\nsuch option), but in no event later than the expiration date of such option; and\n(2) retention stock units, the Company shall make payment of or on such units\nwithin five (5) days following the Severed Employee's Severance Date.\n\n                           (b) In the event an Eligible Employee incurs a\nSeverance, the Company shall make payment of or on all retention shares or\nretention stock units and any cash award earned under the 2001 LTP within five\n(5) days following the Severed Employee's Severance Date.\n\nSECTION 2.5 (a) Whether or not the Eligible Employee becomes entitled to the\nSeverance Payment, if any payment or benefit received or to be received by the\nEligible Employee in connection with a Change in Control or the termination of\nthe Eligible Employee's employment (whether pursuant to the terms of this Plan\nor any other plan, arrangement or agreement with the Company, any Person whose\nactions result in a Change in Control or any Person affiliated with the Company\nor such Person) (all such payments and benefits, including the Severance\nPayment, being hereinafter called \"Total Payments\") will be subject (in whole or\n\n\n                                       8\n   9\n\npart) to the Excise Tax, then, subject to the provisions of subsection (b) of\nthis Section 2.5, the Company shall pay to the Eligible Employee an additional\namount (the \"Gross-Up Payment\") such that the net amount retained by the\nEligible Employee, after deduction of any Excise Tax on the Total Payments and\nany federal, state and local income and employment taxes and Excise Tax upon the\nGross-Up Payment, shall be equal to the Total Payments. For purposes of\ndetermining the amount of the Gross-Up Payment, the Eligible Employee shall be\ndeemed to pay federal income taxes at the highest marginal rate of federal\nincome taxation in the calendar year in which the Gross-Up Payment is to be made\nand state and local income taxes at the highest marginal rate of taxation in the\nstate and locality of the Eligible Employee's residence on the Severance Date\n(or if there is no Severance Date, then the date on which the Gross-Up Payment\nis calculated for purposes of this Section 2.5), net of the maximum reduction in\nfederal income tax which could be obtained from deduction of such state and\nlocal taxes.\n\n                           (b) In the event that the amount of the Total\nPayments exceeds 100% of, but does not exceed 110% of, the largest amount that\nwould result in no portion of the Total Payments being subject to the Excise Tax\n(the \"Safe Harbor\"), then subsection (a) of this Section 2.5 shall not apply and\nthe Severance Payments under Section 2.1 shall be reduced (if necessary, to\nzero) so that the amount of the Total Payments is equal to the Safe Harbor.\n\n                           (c) For purposes of determining whether any of the\nTotal Payments will be subject to the Excise Tax and the amount of such Excise\nTax, (i) all of the Total Payments shall be treated as \"parachute payments\"\nwithin the meaning of section 280G(b)(2) of the Code, unless in the opinion of\ntax counsel (\"Tax Counsel\") reasonably acceptable to the Eligible Employee and\nselected by the accounting firm which was, immediately prior to the Change in\nControl, the Company's independent auditor (the \"Auditor\"), such other payments\nor benefits (in whole or in part) do not constitute parachute payments,\nincluding by reason of section 280G(b)(4)(A) of the Code, (ii) all \"excess\nparachute payments\" within the meaning of section 280G(b)(l) of the Code shall\nbe treated as subject to the Excise Tax unless, in the opinion of Tax Counsel,\nsuch excess parachute payments (in whole or in part) represent \"reasonable\ncompensation for services actually rendered\", within the meaning of section\n280G(b)(4)(B) of the Code, in excess of the \"base amount\" within meaning of\nSection 280G(b)(3) of the Code allocable to such reasonable compensation, or are\notherwise not subject to the Excise Tax, and (iii) the value of any noncash\nbenefits or any deferred payment or benefit shall be determined by the Auditor\nin accordance with the principles of sections 280G(d)(3) and (4) of the Code.\nPrior to the payment date set forth in Section 2.6 hereof, the Company shall\nprovide the Eligible Employee with its calculation of the amounts referred to in\nthis Section 2.5(c) and such supporting materials as are reasonably necessary\nfor the \n\n\n                                       9\n   10\n\nEligible Employee to evaluate the Company's calculations. If the Eligible\nEmployee disputes the Company's calculations (in whole or in part), the\nreasonable opinion of Tax Counsel with respect to the matter in dispute shall\nprevail.\n\n                           (d) In the event that the Excise Tax is finally\ndetermined to be less than the amount taken into account hereunder in\ncalculating the Gross-Up Payment, and after giving effect to such\nredetermination, the Severance Payment under Section 2.1 are to be reduced\npursuant to subsection (b) of this Section 2.5, the Eligible Employee shall\nrepay to the Company, within five (5) business days following the time that the\namount of such reduction in Excise Tax is finally determined, the portion of the\nGross-Up Payment attributable to such reduction (plus that portion of the\nGross-Up Payment attributable to the Excise Tax and federal, state and local\nincome and employment taxes imposed on the Gross-Up Payment being repaid by the\nEligible Employee), to the extent that such repayment results in (i) no portion\nof the Total Payments being subject to the Excise Tax and (ii) a\ndollar-for-dollar reduction in the Eligible Employee's taxable income and wages\nfor purposes of federal, state and local income and employment taxes, plus\ninterest on the amount of such repayment at the rate provided in section\n1274(b)(2)(b) of the Code. In the event that (x) the Excise Tax is finally\ndetermined to exceed the amount taken into account hereunder at the time of the\ntermination of the Eligible Employee's employment (including by reason of any\npayment the existence or amount of which cannot be determined at the time of the\nGross-Up Payment) and (y) after giving effect to such redetermination, the\nSeverance Payment under Section 2.1 should not have been reduced pursuant to\nsubsection (b) of this Section 2.5, the Company shall make the previously\nreduced Severance Payment and shall make an additional Gross-Up Payment in\nrespect of such excess and in respect of any portion of the Excise Tax with\nrespect to which the Company had not previously made a Gross-Up Payment (plus\nany interest, penalties or additions payable by the Eligible Employee with\nrespect to such excess and such portion) within five (5) business days following\nthe time that the amount of such excess is finally determined.\n\nSECTION 2.6 The payments provided in subsection (a) of Section 2.5 hereof shall\nbe made not later than the fifth day following the Severance Date; provided,\nhowever, that if the amounts of such payments, and the limitations on such\npayments set forth in Section 2.5 hereof, cannot be finally determined on or\nbefore such day, the Company shall pay to the Eligible Employee on such day an\nestimate of the minimum amount of such payments to which the Eligible Employee\nis clearly entitled and shall pay the remainder of such payments (together with\ninterest on the unpaid remainder (or on all such payments to the extent the\nCompany fails to make such payments when due) at the rate provided in section\n1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but\nin no event later than the thirtieth (30th) day after the Severance Date.\n\n                                       10\n   11\n\nSECTION 2.7 The Company shall reimburse the Eligible Employee for all reasonable\nlegal fees and expenses incurred by the Eligible Employee in seeking to obtain\nor enforce any benefit or right provided by this Plan, so long as the Eligible\nEmployee prevails in substantial part on the merits of his or her claim. The\nCompany shall reimburse the Eligible Employee for all reasonable legal fees and\nexpenses incurred by the Eligible Employee in connection with any tax audit or\nproceeding to the extent attributable to the application of section 4999 of the\nCode to any payment or benefit provided hereunder.\n\nSECTION 2.8 In the event of a claim for benefits hereunder by an Eligible\nEmployee, such Eligible Employee shall present the reason for his or her claim\nin writing to the Plan Administrator. The Plan Administrator shall, within\nthirty (30) days after receipt of such written claim, send a written\nnotification to the Eligible Employee as to its disposition. In the event the\nclaim is wholly or partially denied, such written notification shall (a) state\nthe specific reason or reasons for the denial, (b) make specific reference to\npertinent Plan provisions on which the denial is based, (c) provide a\ndescription of any additional material or information necessary for the Eligible\nEmployee to perfect the claim and an explanation of why such material or\ninformation is necessary, and (d) set forth the procedure by which the Eligible\nEmployee may appeal the denial of his or her claim. In the event an Eligible\nEmployee wishes to appeal the denial of his or her claim, he or she may request\na review of such denial by making application in writing to the Plan\nAdministrator within sixty (60) days after receipt of such denial. Such Eligible\nEmployee (or his or her duly authorized legal representative) may, upon written\nrequest to the Plan Administrator, review any documents pertinent to his or her\nclaim, and submit in writing, issues and comments in support of his or her\nposition. Within forty-five (45) days after receipt of a written appeal (unless\nspecial circumstances, such as the need to hold a hearing, require an extension\nof time, but in no event more than one hundred twenty (120) days after such\nreceipt), the Plan Administrator shall notify the Eligible Employee of the final\ndecision. The final decision shall be in writing and shall include specific\nreasons for the decision, written in a manner calculated to be understood by the\nclaimant, and specific references to the pertinent Plan provisions on which the\ndecision is based.\n\nSECTION 2.9 No Severed Employee shall be eligible to receive a Severance Payment\nor other benefits under the Plan unless he or she first executes a written\nrelease substantially in the form attached hereto as Schedule A.\n\nSECTION 2.10 An Employer shall be entitled to withhold from amounts to be paid\nto the Severed Employee hereunder any federal, state or local withholding or\nother taxes or charges which it is from time to time required to withhold.\n\n\n                                       11\n   12\n\nSECTION 3. PLAN ADMINISTRATION.\n\nSECTION 3.1 The Plan Administrator shall administer the Plan and may interpret\nthe Plan, prescribe, amend and rescind rules and regulations under the Plan and\nmake all other determinations necessary or advisable for the administration of\nthe Plan, subject to all of the provisions of the Plan.\n\nSECTION 3.2 The Plan Administrator may delegate any of its duties hereunder to\nsuch person or persons from time to time as it may designate.\n\nSECTION 3.3 The Plan Administrator is empowered, on behalf of the Plan, to\nengage accountants, legal counsel and such other personnel as it deems necessary\nor advisable to assist it in the performance of its duties under the Plan. The\nfunctions of any such persons engaged by the Plan Administrator shall be limited\nto the specified services and duties for which they are engaged, and such\npersons shall have no other duties, obligations or responsibilities under the\nPlan. Such persons shall exercise no discretionary authority or discretionary\ncontrol respecting the management of the Plan. All reasonable expenses thereof\nshall be borne by the Employer.\n\nSECTION 4. PLAN MODIFICATION OR TERMINATION.\n\n         The Plan may be amended or terminated by the Board at any time;\nprovided, however, that, during the following periods, the Plan may not be\nterminated nor may the Plan be amended in any manner adverse to the interests of\nany Eligible Employee (including, without limitation, any adverse changes to a\nperson's status as an Eligible Employee) without such Eligible Employee's\nwritten consent (and any such termination or amendment shall be void and of no\nforce and effect): (i) within one year preceding a Potential Change in Control\n(in the case of any action (other than in connection with a termination of\nemployment) pursuant to which an individual ceases to be designated as an\nEligible Employee or is designated in a lower tier of Eligible Employee) or\nwithin 90 days preceding a Potential Change in Control (in the case of\ntermination of the Plan or any other amendment which is adverse to the interests\nof any Eligible Employee), (ii) during the pendency of or within 90 days\nfollowing the cessation of a Potential Change in Control or (iii) within two\nyears following a Change in Control. This Plan shall terminate automatically two\nyears and one day after a Change in Control. No Plan termination shall, without\nsuch Eligible Employee's written consent, adversely affect any rights of any\nEligible Employee which accrued under this Plan prior to such termination.\n\n\n                                       12\n   13\n\nSECTION 5. GENERAL PROVISIONS.\n\nSECTION 5.1 Except as otherwise provided herein or by law, no right or interest\nof any Eligible Employee under the Plan shall be assignable or transferable, in\nwhole or in part, either directly or by operation of law or otherwise, including\nwithout limitation by execution, levy, garnishment, attachment, pledge or in any\nmanner; no attempted assignment or transfer thereof shall be effective; and no\nright or interest of any Eligible Employee under the Plan shall be liable for,\nor subject to, any obligation or liability of such Eligible Employee. When a\npayment is due under this Plan to a Severed Employee who is unable to care for\nhis or her affairs, payment may be made directly to his or her legal guardian or\npersonal representative.\n\nSECTION 5.2 If an Employer is obligated by law, contract, policy or otherwise to\npay severance pay, a termination indemnity, notice pay, or the like, or if an\nEmployer is obligated by law to provide advance notice of separation (\"Notice\nPeriod\"), then any Severance Payment hereunder shall be reduced by the amount of\nany such severance pay, termination indemnity, notice pay or the like, as\napplicable, and by the amount of any compensation received during any Notice\nPeriod.\n\nSECTION 5.3 Neither the establishment of the Plan, nor any modification thereof,\nnor the creation of any fund, trust or account, nor the payment of any benefits\nshall be construed as giving any Eligible Employee, or any person whomsoever,\nthe right to be retained in the service of the Employer, and all Eligible\nEmployees shall remain subject to discharge to the same extent as if the Plan\nhad never been adopted.\n\nSECTION 5.4 If any provision of this Plan shall be held invalid or\nunenforceable, such invalidity or unenforceability shall not affect any other\nprovisions hereof, and this Plan shall be construed and enforced as if such\nprovisions had not been included.\n\nSECTION 5.5 This Plan shall inure to the benefit of and be binding upon the\nheirs, executors, administrators, successors and assigns of the parties,\nincluding each Eligible Employee, present and future, and any successor to the\nEmployer. If a Severed Employee shall die while any amount would still be\npayable to such Severed Employee hereunder if the Severed Employee had continued\nto live, all such amounts, unless otherwise provided herein, shall be paid in\naccordance with the terms of this Plan to the executor, personal representative\nor administrators of the Severed Employee's estate.\n\n                                       13\n   14\n\nSECTION 5.6 The headings and captions herein are provided for reference and\nconvenience only, shall not be considered part of the Plan, and shall not be\nemployed in the construction of the Plan.\n\nSECTION 5.7 The Plan shall not be funded. No Eligible Employee shall have any\nright to, or interest in, any assets of any Employer which may be applied by the\nEmployer to the payment of benefits or other rights under this Plan.\n\nSECTION 5.8 Any notice or other communication required or permitted pursuant to\nthe terms hereof shall have been duly given when delivered or mailed by United\nStates mail, first class, postage prepaid, addressed to the intended recipient\nat his, her or its last known address.\n\nSECTION 5.9 This Plan shall be construed and enforced according to the laws of\nNebraska, to the extent not preempted by federal law, which shall otherwise\ncontrol.\n\n\n                                       14\n   15\n                                                                      SCHEDULE A\n\n\n                     WAIVER AND RELEASE OF CLAIMS AGREEMENT\n\n\nYOU HAVE BEEN ADVISED TO CONSULT AN ATTORNEY PRIOR TO SIGNING THIS AGREEMENT.\n\n                  YOU HAVE [FORTY-FIVE] [TWENTY-ONE] DAYS AFTER RECEIVING THIS\nAGREEMENT TO CONSIDER WHETHER TO SIGN IT.\n\n                  AFTER SIGNING THIS AGREEMENT, YOU HAVE ANOTHER SEVEN DAYS IN\nWHICH TO REVOKE IT, AND IT DOES NOT TAKE EFFECT UNTIL THOSE SEVEN DAYS HAVE\nENDED.\n\n                  In consideration of, and subject to, the payments to be made\nto me by [Name of Employer Corporation] (\"Union Pacific\") or any of its\nsubsidiaries, pursuant to the Union Pacific Corporation Key Employee Continuity\nPlan (the \"Plan\"), which I acknowledge that I would not otherwise be entitled to\nreceive, I hereby waive any claims I may have for employment or re-employment by\nUnion Pacific or any subsidiary or parent of Union Pacific after the date\nhereof, and I further agree to and do release and forever discharge Union\nPacific or any subsidiary or parent of Union Pacific and their respective past\nand present officers, directors, shareholders, employees and agents from any and\nall claims and causes of action, known or unknown, arising out of or relating to\nmy employment with Union Pacific or any subsidiary or parent of Union Pacific or\nthe termination thereof, including, but not limited to, by reason of any event,\nmatter, cause or thing which has occurred to the date of execution of this\nRelease relating in any way to my employment relationship with Union Pacific or\nto my termination of employment thereof, whether for severance or based on\nstatutory or common law claims for employment discrimination, wrongful\ndischarge, breach of contract or any other theory, whether legal or equitable,\nor arising under any statute or regulation, including the Age Discrimination in\nEmployment Act of 1967, Title VII of the Civil Rights Act of 1964, the Civil\nRights Act of 1991, the Americans with Disabilities Act of 1990, the Employee\nRetirement Income Security Act of 1974, and the Family Medical Leave Act of\n1993, each as amended, or any other federal, state or local law, regulation,\nordinance or common law.\n\n                  Notwithstanding the foregoing or any other provision hereof,\nnothing in this Waiver and Release of Claims Agreement shall adversely affect\n(i) my rights under the Plan; (ii) my rights to benefits other than severance\nbenefits under plans, \n\n\n\n\n   16\n\nprograms and arrangements of Union Pacific or any subsidiary or parent of Union\nPacific; or (iii) my rights to indemnification under any indemnification\nagreement, applicable law and the certificates of incorporation and bylaws of\nUnion Pacific and any subsidiary or parent of Union Pacific, and my rights under\nany director's and officer's liability insurance policy covering me.\n\n                  I acknowledge that I have signed this Waiver and Release of\nClaims Agreement voluntarily, knowingly, of my own free will and without\nreservation or duress, and that no promises or representations, written or oral,\nhave been made to me by any person to induce me to do so other than the promise\nof payment set forth in the first paragraph above and Union Pacific's\nacknowledgment of my rights reserved under the second paragraph above.\n\n                  I understand that this release will be deemed to be an\napplication for benefits under the Plan, and that my entitlement thereto shall\nbe governed by the terms and conditions of the Plan, and I expressly hereby\nconsent to such terms and conditions.\n\n                  I acknowledge that I have been given not less than [forty-five\n(45)] [twenty-one (21)] days to review and consider this Waiver and Release of\nClaims Agreement, and that I have had the opportunity to consult with an\nattorney or other advisor of my choice and have been advised by Union Pacific to\ndo so if I choose. I may revoke this Waiver and Release of Claims Agreement\nseven days or less after its execution by providing written notice to Union\nPacific.\n\n                  Finally, I acknowledge that I have carefully read this Waiver\nand Release of Claims Agreement and understand all of its terms. This is the\nentire Agreement between the parties and is legally binding and enforceable.\n\n\n                                       2\n   17\n\n\n\n\n                  This Waiver and Release of Claims Agreement shall be governed\nand interpreted under federal law and the laws of Nebraska.\n\n                  I knowingly and voluntarily sign this Waiver and Release of\nClaims Agreement.\n\n\nDate Delivered to Employee:                       [Name of Employer Corporation]\n\n\n---------------------------------\n                                                  By: \nDate Signed by Employee:                             ---------------------------\n\n                                                  \n---------------------------------                 Title:                        \n                                                        ------------------------\nSeven-Day Revocation Period Ends:                 \n\n\n---------------------------------\n\nSigned:                                           Date: \n       --------------------------                      -------------------------\n\n---------------------------------\n    (Print Employee's Name)\n\n\n                                       3\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[9154],"corporate_contracts_industries":[9524],"corporate_contracts_types":[9539,9551],"class_list":["post-40045","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-union-pacific-corp","corporate_contracts_industries-transportation__railroads","corporate_contracts_types-compensation","corporate_contracts_types-compensation__severance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40045","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40045"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40045"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40045"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40045"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}