Exhibit 10.71
 SEVERANCE AGREEMENT
(NON-CHANGE IN CONTROL)
     
    
    The attached Terms and Conditions are incorporated herein and made a part of this
Agreement.
    
    Subject to the other provisions of this Agreement, if the Executive incurs a Severance the
Executive shall be entitled to receive from the Employer:
 (i)
    
    The Severance Payment (the amount of which shall be determined using a multiple (the
Severance Multiple) of one and one half).(ii)
    
    The Outplacement Services at a cost to the Employer not to exceed $16,000; and(iii)
    
    The Severance Benefits for a period of 18 months following the Severance Date (the
Severance Period).
 In addition, if the Executive incurs a Severance the Executives unvested Qualifying Long-Term
Incentive Awards shall vest in accordance with and to the extent provided in the Vesting
Provisions, using a number of months (the Number of Months) equal to 18. Awards made under the
EIP prior to the date of this Agreement shall vest, if at all, in accordance with the terms of
the applicable award agreement and any performance-based awards that are not Qualifying
Long-Term Incentive Awards shall not vest upon a Severance.
    
    Notwithstanding the definition of the term Severance in the Terms and Conditions, for
purposes of this Agreement a Severance shall also include a Termination for Good Reason and
(subject to the other provisions of this Agreement) upon a Termination for Good Reason the
Executive shall be entitled to receive from the Employer all of the payments and benefits
described above.Termination for Good Reason means termination by the Executive of the Executives employment
following the occurrence (without the Executives express written consent) of




---



##### 



any one of the following acts by the Employer, unless such act is corrected within 30 days of
receipt by the Employer of the Executives notice of Termination for Good Reason:
 (1)
    
    A reduction of twenty percent (20%) or more in the Executives target total direct
compensation (determined using the midpoint of the applicable long-term incentive
compensation opportunity range), made by the Employer in anticipation of, or within
twenty-four (24) months after, the sale or other disposition (including by way of a
spin-off or similar transaction) by the Company of one or more of its three principal
operating units. As used herein, target total direct compensation means the Executives
annual base salary, target annual bonus and target long-term incentive compensation
opportunity.(2)
    
    The relocation of the Executives principal place of employment to a location that
results in an increase in the Executives one way commute of at least 50 miles.
 Notwithstanding the definition of Severance Payment in the attached Terms and Conditions, in
the event of a Termination for Good Reason based upon clause (1) above, Severance Payment
shall mean a payment, in lieu of any other severance payment or severance benefit pursuant to
any other plan or agreement of the Employer, the Company or any Affiliate to which the Executive
is otherwise entitled, of an amount equal to the product of (i) the Severance Multiple
multiplied by (ii) the sum of (A) the Executives annual base salary as in effect
immediately prior to the reduction in target total direct compensation referred to in clause (1)
above and (B) the Executives Target Bonus for the calendar year immediately prior to the
calendar year in which the Severance occurs.Except in the case of a Termination for Good Reason, in no event shall a Severance occur if
the Executive terminates his or her employment with the Employer for any reason. The term
Cause shall not include any actual or anticipated failure by the Executive to substantially
perform the Executives duties with the Employer after the issuance by the Executive of a notice
of Termination for Good Reason.
    
    Any Termination for Good Reason shall be communicated by written notice from the Executive
to the Employer in accordance with Section 7.9 of the Terms and Conditions. A Notice of
Termination for Good Reason shall indicate the specific provision in the Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances claimed to provide a
basis for Termination for Good Reason. The notice of termination shall specify the termination
date, which shall not be less than thirty (30) days nor more than sixty (60) days,
respectively, from the date such notice is given and which (notwithstanding the definition of
Severance Date in the Terms and Conditions) shall constitute the Severance Date for
purposes of the Agreement. Once the Executive has specified a date of termination in a notice
of termination, the date of termination may not be changed except by mutual consent of the
Employer and the Executive.
    
    If the Executive transfers to and becomes an employee of an Affiliate, the Employer shall
assign this Agreement to the Affiliate (as applicable) which shall become the Employer and
shall assume the obligations of the Employer.
 CON-WAY INC.
    
    
    
    EXECUTIVEBy:
    
    
    
    
    
    By:Name:
    
    Jennifer W. Pileggi
    
    
    
    Name:
    
    Leslie P. LundbergTitle:
    
    EVP General Counsel & Secretary
    
    
    
    Address:




---



##### 



TERMS AND CONDITIONS OF SEVERANCE AGREEMENT (NON-CHANGE IN CONTROL)
 Table of Contents
 1. Definitions
    
    
    12. Prior Arrangements; CIC Severance Agreements
    
    
    53. Compensation other than Severance Payment and
Severance Benefits
    
    
    64. Severance Payment and Severance Benefits;
Outplacement Services; Vesting of Qualifying Long-Term
Incentive Awards
    
    
    65. Notice of Termination
    
    
    86. Restrictive Covenants
    
    
    87. General Provisions
    
    
    11Exhibit A  Waiver and Release of Claims
    
    
    13Exhibit B  Assignment and Assumption of Agreement
    
    
    15
 1.
    
    DEFINITIONS. As hereinafter used:Affiliate means an affiliate of the Company, as defined in Rule 12b-2 promulgated
under Section 12 of the Exchange Act, including any Business Unit.Agreement means the Severance Agreement (Non-Change in Control) to which these
Terms and Conditions are attached, including the Terms and Conditions, which are
incorporated by reference in the Agreement.Board means the Board of Directors of the Company.Business Unit is defined in Section 2 of the EIP.Cause for termination by the Employer of the Executives employment (following the
applicable procedures set forth in Section 5) means (i) fraud, misappropriation or
embezzlement by the Executive against the Employer, the Company or any Affiliate, (ii)
the willful and continued failure by the Executive to substantially perform the Executives
duties with the Employer (other than any such failure resulting from the Executives
incapacity due to Disability) after a written demand for substantial performance is
delivered to the Executive by or on behalf of the Employer Board, which demand specifically
identifies the manner in which the Employer Board believes that the Executive has not
substantially performed the Executives duties, or (iii) the willful engaging by the
Executive in conduct which is demonstrably and materially injurious to the Employer, the
Company or an Affiliate, monetarily or otherwise. For purposes of clauses (ii) and (iii) of
this definition, no act, or failure to act, on the Executives part shall be deemed
willful unless done, or omitted to be done, by the Executive not in good faith and without
reasonable belief that the Executives act, or failure to act, was in the best interest of
the Employer, the Company or an Affiliate.Change in Control has the meaning set forth in the CIC Severance Agreement.
 1




---



##### 



CIC Severance Agreement means the Severance Agreement (Change in Control) dated as
of December 18, 2009 referred to in the second paragraph of the Agreement, if entered into
by the Executive and the Employer.COBRA means the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended, supplemented or substituted from time to time.Code means the Internal Revenue Code of 1986, as amended from time to time.Company means Con-way Inc., a corporation organized under the laws of the State of
Delaware, or any successor corporation.Disability means a physical or mental illness or condition causing the Executives
inability to substantially perform the Executives duties with the Employer.EIP means the Companys 2006 Equity and Incentive Plan, as amended from time to
time, or any successor plan.Employer means the entity specified in the first paragraph of the Agreement or any
assignee or successor. The last bullet of the Agreement provides that, if the Executive
transfers to the Company or an Affiliate, the Agreement will be assigned, resulting in a
change in the Employer. A draft form of assignment and assumption is attached as Exhibit B.Employer Board means the Board of Directors of the Employer.ERISA means the Employee Retirement Income Security Act of 1974, as amended.Exchange Act means the Securities Exchange Act of 1934, as amended from time to
time, and as now or hereafter construed, interpreted and applied by regulations, rulings and
cases.Executive means the individual specified in the first paragraph of the Agreement.Health Benefits means health maintenance organization, insured or self-funded
medical, dental, vision, prescription drug and behavioral health benefits.Involuntary Termination means the actual termination of the Executives employment
by the Employer for any reason other than death, Disability, Cause or Change in Control.
Under no circumstances shall any alleged constructive termination of the Executives
employment constitute an Involuntary Termination.Number of Months has the meaning specified on the first page of the Agreement.Outplacement Services means professional outplacement services determined by the
Employer to be suitable to the Executives position. The maximum amount that the Employer
will pay for such services is set forth on the first page of the Agreement. The outplacement
services shall be made available until the earlier of (i) such time as the aggregate cost to
the Employer of the outplacement services reaches the maximum amount specified on the first
page of the Agreement, and (ii) the date on which the Executive obtains another full-time
job. The Employer will not pay the Executive cash in
 2




---



##### 



lieu of professional outplacement services.Person means any person, as such term is used in Sections 13(d) and 14(d) of the
Exchange Act other than (i) the Company or its Affiliates, (ii) any trustee or other
fiduciary holding securities under an employee benefit plan of the Company or its
Affiliates, and (iii) any corporation owned, directly or indirectly, by the stockholders of
the Company in substantially the same proportions as their ownership of the Common Stock.Qualifying Long-Term Incentive Award means a long-term incentive award
(whether cash-based or equity-based, and whether payable in cash or in stock) (i) that is
granted to the Executive under the EIP after the date of this Agreement and (ii) that is
non-performance-based or, if performance-based, is based solely on changes in the price of
the Companys common stock. As used herein, long-term incentive award means an award with
a vesting period that is longer than one year in duration.Severance means an Involuntary Termination.Severance Benefits means Health Benefits for the Severance Period substantially
similar to those provided to Executive and Executives dependents by or on behalf of the
Executives Employer immediately prior to the Severance Date. To the extent possible, the
Health Benefits shall be provided at the Employers expense through COBRA, in accordance
with the applicable plans, programs or policies of the Company. For any portion (if any) of
the Severance Period in which the Health Benefits cannot be provided through COBRA, the
Employer shall promptly purchase, at its own expense and at no cost to the Executive, an
individual policy from an A-rated third party insurer under which Executive and Executives
dependents shall receive the benefits described above (with no preexisting condition
limitations).The Health Benefits shall be reduced to the extent benefits of same type are actually
received by or are made available to Executive and Executives dependents, as set forth
below (and Executive shall promptly notify Employer or any successor company of any such
benefits):
 (a)
    
    The Health Benefits shall be reduced to the extent benefits of the same type
are actually received by the Executive or the Executives dependents following the
Executives termination of employment with the Employer, with no applicable
pre-existing condition exclusions; or(b)
    
    The Health Benefits shall be reduced to the extent benefits of the same type
are made available to the Executive and Executives dependents (whether or not
Executive elects to actually receive such benefits) by a new employer of Executive
following the Executives termination of employment with the Employer, with no
applicable pre-existing condition exclusions are applicable;
 provided, however, for avoidance of doubt, benefits made available to one or more of
Executive and Executives dependents by the employer of Executives spouse shall not reduce
the Health Benefits otherwise available, except to the extent the Executives spouse elects
to receive such benefits from his or her employer;
 3




---



##### 



The Employer shall reimburse the Executive for the excess, if any, of the cost to the
Executive of Health Benefits over such cost immediately prior to the Severance.If the Executive dies, the Employer shall continue to provide the Executives dependents
with the Health Benefits otherwise receivable on the same basis as if the Executive had
survived.If any such benefits are treated as deferred compensation subject to Code section 409A and
the Executive is a Specified Employee, the Executive shall pay the full cost of such
benefits for the first six months after the Severance Date and the Employer shall reimburse
the Executive for such payments as soon as practicable thereafter but not later than nine
(9) months from the date the Executive paid such costs.Severance Date means the date on which an Executive incurs a Severance, which
shall be the date of termination as determined under Section 5.2.Severance Multiple has the meaning set forth on the first page of the Agreement.Severance Payment means a payment, in lieu of any other severance payment or
benefit pursuant to any other plan or agreement of the Employer, the Company or any
Affiliate to which the Executive is otherwise entitled, of an amount equal to the product of
(i) the Severance Multiple multiplied by (ii) the sum of (A) the Executives annual
base salary immediately prior to the time of Severance and (B) the Executives Target Bonus
for the calendar year immediately prior to the calendar year in which the Severance occurs.Severance Period has the meaning set forth on the first page of the
Agreement.Specified Employee has the meaning set forth in the Con-way Inc. 2005 Deferred
Compensation Plan for Executives and Key Employees, as amended and restated in December 2008
and as subsequently amended from time to time.Target Bonus means, for any calendar year, an amount equal to (i) the
Executives Annual Compensation (as defined in the Companys Executive Incentive Plan) for
that calendar year multiplied by (ii) the Participation Percentage (as defined in
the Executive Incentive Plan) applicable to executives in the Executives grade level (i.e.,
E1, E2, E3, E4 or E5) for that calendar year, as determined by the Compensation Committee of
the Board. Target Bonus shall be determined in the manner provided in the preceding
sentence whether or not the Executive is a participant in the Executive Incentive Plan
during that calendar year, and shall not be based on the Executives target bonus under any
other annual incentive plan in which the Executive participates during that calendar year.
If during the calendar year for which the Target Bonus is determined the Executive has not
assigned to an executive grade level of E1, E2, E3, E4 or E5, the Executives grade level
for purposes of this definition shall be the grade level between E1 and E5 that the
Compensation Committee of the Board has determined is equivalent to the Executives actual
grade level.Tax Counsel means reputable outside tax counsel retained by the Employer and
reasonably acceptable to the Executive.
 4




---



##### 



Taxes means all federal, state, local and other taxes, to the extent
applicable to all or any part of the Severance Payment and/or Severance Benefits.Terms and Conditions means these terms and conditions.Vesting Provisions means:
 (a)
    
    for each stock option, stock appreciation right (SAR) or similar award, and
for each non-performance based restricted stock or restricted stock unit (RSU) award,
in each case that is a Qualifying Long-Term Incentive Award scheduled to vest in
installments over time, all unvested options, SARs or similar units, shares of
restricted stock or RSUs included in such award that are scheduled to vest on or before
the date that is the Number of Months after the Severance Date shall vest;(b)
    
    for each stock option, SAR or similar award, and for each non-performance based
restricted stock or RSU award, in each case that is a Qualifying Long-Term Incentive
Award that is subject to cliff-vesting, a percentage of the award shall vest, with the
percentage determined by dividing the Number of Months by the total number of months in
the cliff-vesting period; and(c)
    
    for any other Qualifying Long-Term Incentive Award, no vesting shall occur upon
a Severance.Example 1: Assume the Number of Months applicable to Executive A is 18. On
January 26, 2009 Executive A received a stock option grant that is scheduled to vest in
three equal installments, on January 1, 2010, January 1, 2011 and January 1, 2012,
respectively. Executive A incurs a Severance on December 20, 2009. On the Severance
Date the stock option installments scheduled to vest on January 1, 2010 and January 1,
2011 would vest but the installment scheduled to vest on January 1, 2012 (more than 18
months after the Severance Date) would not vest under the Vesting Provisions.Example 2: Assume the Number of Months applicable to Executive A is 18. On
January 26, 2009 Executive A received a grant of 10,000 restricted stock units with 36
month cliff vesting. Executive A incurs a Severance on December 20, 2009. On the
Severance Date 5,000 restricted stock units (18 months/36 months) would vest under the
Vesting Provisions.
 2.
    
    PRIOR ARRANGEMENTS; CIC SEVERANCE AGREEMENTS.
 2.1
    
    The parties agree that all prior employment, separation, severance,
termination, change of control, or similar agreements, arrangements, or plans (other
than the CIC Severance Agreement), whether oral or written, covering the Executive are
terminated and superseded and any notice periods with respect to such terminations are
deemed satisfied or explicitly waived.2.2
    
    The parties further agree that the CIC Severance Agreement is intended to
provide for severance payments and benefits to be made available to the Executive (on
the terms and subject to the conditions contained therein) only upon a qualifying
severance in connection with a Change in Control, and that this Agreement is intended
to provide for severance payments and benefits to be made available to the
 5




---



##### 



Executive (on the terms and subject to conditions contained herein) only in connection
with a qualifying severance occurring other than in connection with a Change in Control.
In no event and under no circumstances shall the Executive be entitled to receive
severance payments and benefits under both the CIC Severance Agreement and under this
Agreement.
 3.
    
    COMPENSATION OTHER THAN SEVERANCE PAYMENT AND SEVERANCE BENEFITS.
 3.1
    
    If the Executive shall incur a Severance, the Employer shall pay the
Executives full salary to the Executive through the Severance Date at the rate in
effect immediately prior to the Severance Date, together with all compensation and
benefits payable to the Executive through the Severance Date under the terms of the
Employers compensation and benefit plans, programs or arrangements as in effect
immediately prior to the Severance Date.3.2
    
    If the Executive shall incur a Severance, the Employer shall pay to the
Executive the Executives normal post termination compensation and benefits as such
payments become due (other than severance payments under any severance plan as in
effect immediately prior to the Severance). Such post termination compensation and
benefits shall be determined under, and paid in accordance with, the Companys
retirement, insurance and other compensation or benefit plans, programs and
arrangements as in effect immediately prior to the Severance.
 4.
    
    SEVERANCE PAYMENT AND SEVERANCE BENEFITS; OUTPLACEMENT SERVICES; VESTING OF QUALIFYING
LONG-TERM INCENTIVE AWARDS.
 4.1
    
    Subject to the other provisions of this Agreement (including, without
limitation, Section 5 of these Terms and Conditions), if the Executive incurs a
Severance, the Executive shall be entitled to receive from the Employer the Severance
Payment, the Severance Benefits and the Outplacement Services. In addition, the
Executives unvested Qualifying Long-Term Incentive Awards shall vest in accordance
with and to the extent provided in the Vesting Provisions.4.2
    
    The Employer shall pay to the Executive the Severance Payment and any Severance
Benefits that are payable in cash, in each case less amounts withheld for Taxes as
required under applicable law, on the earliest date or dates permitted under Code
section 409A, as determined by Tax Counsel or, in the absence of a determination by Tax
Counsel, on the date that is six (6) months and one (1) day after the Severance Date
(or as soon as practicable thereafter, but in no event later than ten (10) business
days immediately following such date). The Employer shall use good faith efforts to
obtain from Tax Counsel the determinations contemplated by this Section 4.2. The
Executive shall be liable for the payment of all Taxes. The Employer shall be entitled
to withhold from amounts to be paid to the Executive hereunder any Taxes which it is
from time to time required to withhold.4.3
    
    The Executive shall not be eligible to receive the Severance Payment, Severance
Benefits or Outplacement Services unless the Executive (or, in the event of the death
of the Executive, the executor, personal representative or administrator of the
 6




---



##### 



Executives estate) first executes a written release substantially in the form attached
as Exhibit A hereto on or after the Severance Date and such release becomes effective
prior to the time that the Executive (or the Executives estate, as applicable) is to
receive all or any part of the Severance Payment, the Severance Benefits or the
Outplacement Services.4.4
    
    In the event that the Executive or a dependent of the Executive believes that
he or she is not receiving the full amounts to which he or she is entitled under the
Agreement, such person may make a claim to the Employer Board and the claims procedure
set forth in Section 15 of the EIP shall apply with the Employer Board treated as the
Committee. Although claims for amounts under this Agreement are governed by claims
procedures under the EIP that also apply to ERISA-covered claims, neither this
Agreement nor any amounts payable hereunder are, or are intended to be, governed by
ERISA.4.5
    
    Any further dispute or controversy arising under or in connection with the
Agreement which remains after the final decision of the Employer Board as contemplated
by Section 4.4 shall be settled exclusively by arbitration, conducted before a single
neutral arbitrator in accordance with the American Arbitration Associations National
Rules for Resolution of Employment Disputes as then in effect. Such arbitration shall
be conducted in the metropolitan area closest to where the Executive lives. Judgment
may be entered on the arbitrators award in any court having jurisdiction over such
metropolitan area; provided however, that the Executive shall be entitled to
seek specific performance of his/her right to be paid or to receive benefits hereunder
during the pendency of any dispute or controversy under or in connection with this
Agreement. The fees and expenses of the arbitrator and the arbitration shall be borne
by the Employer.If, for any legal reason, a controversy arising from or concerning the interpretation or
application of this Agreement cannot be arbitrated as provided above, the parties agree
that any civil action shall be brought in United States District Court in the
metropolitan area closest to where the Executive lives or, only if there is no basis for
federal jurisdiction, in state court closest to where the Executive lives. The parties
further agree that any such civil action shall be tried to the court, sitting without a
jury. The parties knowingly and voluntarily waive trial by jury.Notwithstanding the foregoing, if at the time a dispute or controversy arises the
Executive is working outside of the United States, and if at such time the Executive
maintains a residence in the United States, the dispute or controversy will be resolved
(i) by arbitration in the metropolitan area closest to the Executives residence in the
United States or (ii) by litigation in the United States District Court in the
metropolitan area closest to the Executives residence in the United States or, only if
there is no basis for federal jurisdiction, in state court closest to the Executives
residence in the United States. If the Executive does not maintain a United States
residence at such time, the dispute or controversy will be subject to arbitration in San
Mateo, California or to litigation in the United States District Court for the Northern
District of California (or if such court does not have jurisdiction or will not accept
jurisdiction, in any court of general jurisdiction in California).4.6
    
    The Employer shall pay to the Executive all legal fees and expenses incurred by
the Executive in seeking in good faith to obtain or enforce any benefit or right
provided
 7




---



##### 



by the Agreement. Such payment shall be made within five (5) business days
after delivery of the Executives written requests for payment accompanied with such
evidence of fees and expenses incurred as the Employer reasonably may require. The
Employer shall not be obligated to pay legal fees and expenses incurred by any person
other than the Executive or the Executives successor in interest hereunder. However,
the Employer shall be obligated to pay legal fees and expenses incurred by the
Executive on behalf of the Executives dependents and legal fees and expenses incurred
by the estate of the Executive on behalf of the Executive or the Executives
dependents.4.7
    
    The Employer agrees that, if the Executive incurs a Severance, the Executive is
not required to seek other employment or to attempt in any way to reduce any amounts
payable to the Executive hereunder. Further, the amount of any payment or benefit
provided for in the Agreement shall not be reduced (except as provided in the
definition of Severance Benefits) by any compensation earned by the Executive as the
result of employment by another employer, by retirement benefits, by offset against any
amount claimed to be owed by the Executive to the Employer, or otherwise.
 5.
    
    NOTICE OF TERMINATION.
 5.1
    
    Any Involuntary Termination shall be communicated by written notice from the
Employer to the Executive in accordance with Section 7.9, and shall follow the
applicable procedures set forth in this Section 5. A notice of termination for Cause
shall include a copy of a resolution duly adopted by the affirmative vote of not less
than three-quarters (3/4) of the entire membership of the Employer Board at a meeting
of the Employer Board which was called and held for the purpose of considering such
termination (after reasonable notice to the Executive of no less than thirty (30) days
and an opportunity for the Executive, together with the Executives counsel, to be
heard before the Employer Board and to have no less than thirty (30) days to
substantially cure the acts or omissions that are the basis for Executives termination
of employment) finding that, in the good faith opinion of the Employer Board, the
Executive was guilty of conduct set forth in clause (i) or (ii) of the definition of
Cause herein, and specifying the particulars thereof in detail.5.2
    
    The notice of termination from the Employer shall specify the date of
termination, which shall not be less than ten (10) days from the date such notice of
termination is given. Once the Employer has specified a date of termination in a notice
of termination, the date of termination may not be changed except by mutual consent of
the Employer and the Executive.
 6.
    
    RESTRICTIVE COVENANTS.
 6.1
    
    Confidential Information.The Executive agrees, during the Executives
employment and at all times thereafter, that he or she shall not, directly or
indirectly, use, make available, sell, disclose or otherwise communicate to any person,
other than in the course of the Executives assigned duties and for the benefit of
Employer, either during the period of the Executives employment or at any time
thereafter, any
nonpublic, proprietary or confidential information, knowledge or data relating to
Employer, any of its subsidiaries, affiliated companies or businesses, which shall have
been obtained by the Executive during the Executives employment with the
 8




---



##### 



Employer. This
Section 6.1 applies to, but is not limited to, the Employers, and its parents,
subsidiaries, and affiliates legal matters, technical data, systems and programs,
financial and planning data, business development or strategic plans or data, marketing
strategies, software development, product development, pricing, customer information,
trade secrets, personnel information, and other privileged or confidential business
information.The foregoing shall not apply to information that (i) was known to the public prior to
its disclosure to the Executive; (ii) becomes known to the public subsequent to
disclosure to the Executive through no wrongful act of the Executive or any
representative of the Executive; or (iii) the Executive is required to disclose by
applicable law, regulation or legal process (provided that the Executive provides
Employer with prior notice of the contemplated disclosure and reasonably cooperates with
the Executive at its expense in seeking a protective order or other appropriate
protection of such information). Notwithstanding clauses (i) and (ii) of the preceding
sentence, the Executives obligation to maintain such disclosed information in
confidence shall not terminate where only portions of the information are in the public
domain.6.2
    
    Non-Solicitation.The Executive agrees that, during the Executives employment
and for a period of twenty-four (24) months following the Severance Date, the Executive
will not, directly or indirectly, individually or on behalf of any other person, firm,
corporation or other entity, knowingly solicit, aid or induce (i) any employee of the
Employer to leave such employment in order to accept employment with or render services
to or with any other person, firm, corporation or other entity unaffiliated with the
Employer or knowingly take any action to materially assist or aid any other person,
firm, corporation or other entity in identifying or hiring any such employee, or (ii)
any customer of the Employer to purchase goods or services then sold by the Employer or
from another person, firm, corporation or other entity or assist or aid any other
persons or entity in identifying or soliciting any such customer.6.3
    
    Non-Disparagement.The Executive agrees, during the Executives employment and
at all times thereafter, not to make, participate in the making of, or encourage any
other person to make, any statements, written or oral, that criticize or disparage the
Employer, the Company or any Affiliate, or their respective employees, officers,
directors, products or services. The Employer agrees that it shall use its best
reasonable efforts to assure that none of its executive officers or directors make,
participate in the making of, or encourage any other person to make, any statements,
written or oral, that criticize or disparage the Executive. Notwithstanding the
foregoing, statements made in the course of sworn testimony in administrative, judicial
or arbitral proceedings (including, without limitation, depositions in connection with
such proceedings) shall not be subject to this requirement.6.4
    
    Competition. The Executive agrees that, during the Executives employment with
the Employer, and for a period of twelve (12) months following the Severance Date
(irrespective of the reason for the Executives termination and without any reduction
or modification), the Executive shall not, without the prior written consent of the
Employer Board, directly or indirectly engage or become a partner, director, officer,
principal, employee, consultant, investor, creditor or stockholder in/for any business,
proprietorship, association, firm or corporation not owned or controlled by the
 9




---



##### 



Company
or its subsidiaries or affiliates which is engaged or proposes to engage or hereafter
engages in a business competitive directly or indirectly with the business conducted by
the Company or any of its subsidiaries or affiliates in any geographic area in which the
Company is or was engaged in or actively planning to engage in business as of the
Executives Termination Date or during the previous twelve (12) month period; provided,
however, that the Executive is not prohibited from owning one percent (1%) or less of
the outstanding capital stock of any corporation whose stock is listed on a national
securities exchange.6.5
    
    Reasonableness.In the event the provisions of this Section 6 shall ever be
deemed to exceed the time, scope or geographic limitations permitted by applicable
laws, then such provisions shall be reformed to the maximum time, scope or geographic
limitations, as the case may be, permitted by applicable laws.6.6
    
    Equitable Relief.
 (a)
    
    Executive acknowledges that the restrictions contained in this Section
6 are reasonable and necessary to protect the legitimate interests of Employer,
that the Employer would not have entered into the Agreement in the absence of such
restrictions, and that any violation of any provision of this Section 6 will result
in irreparable injury to Employer. By entering into the Agreement, the Executive
represents that his or her experience and capabilities are such that the
restrictions contained in this Section 6 will not prevent the Executive from
obtaining employment or otherwise earning a living at the same general level of
economic benefit as is currently the case. The Executive further represents and
acknowledges that (i) he or she has been advised by Employer to consult his or her
own legal counsel in respect of this Agreement, and (ii) that he or she has had
full opportunity, prior to agreeing to enter into the Agreement, to review
thoroughly this Agreement with his or her counsel.(b)
    
    Executive agrees that Employer shall be entitled to preliminary and
permanent injunctive relief, without the necessity of proving actual damages, as
well as an equitable accounting of all earnings, profits and other benefits arising
from any violation of this Section 6, which rights shall be cumulative and in
addition to any other rights or remedies to which Employer may be entitled. In the
event that any of the provisions of this Section 6 should ever be adjudicated to
exceed the time, geographic, service, or other limitations permitted by applicable
law in any jurisdiction, then such provisions shall be deemed reformed in such
jurisdiction to the maximum time, geographic, service, or other limitations
permitted by applicable law.(c)
    
    Executive irrevocably and unconditionally (i) agrees that any suit,
action or other legal proceeding arising out of this Section 6, including without
limitation, any action commenced by the Employer or the Company for preliminary and
permanent injunctive relief or other equitable relief, may be brought in the United
States District Court for the Northern District of California, or if such court
does not have jurisdiction or will not accept jurisdiction, in any court of general
jurisdiction in California, (ii) consents to the non-exclusive jurisdiction of any
such court in any such suit, action or proceeding,
and (iii) waives any objection
which Executive may have to the laying of venue of any such suit, action or
proceeding
 10




---



##### 



in any such court. Executive also irrevocably and unconditionally
consents to the service of any process, pleadings, notices or other papers in a
manner permitted by the notice provisions of Section 7.9.
 6.7
    
    Survival of Provisions.The obligations contained in this Section shall
survive the termination of Executives employment with Employer and shall be fully
enforceable thereafter.
 7.
    
    GENERAL PROVISIONS.
 7.1
    
    Except as otherwise provided herein or by law, no right or interest of the
Executive under the Agreement shall be assignable or transferable, in whole or in part,
either directly or by operation of law or otherwise, including without limitation by
execution, levy, garnishment, attachment, pledge or in any manner; no attempted
assignment or transfer thereof shall be effective; and no right or interest of the
Executive under the Agreement shall be liable for, or subject to, any obligation or
liability of such Executive. When a payment is due under the Agreement to an Executive
who is unable to care for his or her affairs, payment may be made directly to the
Executives legal guardian or personal representative.7.2
    
    If the Employer, the Company or any Affiliate is obligated pursuant to
applicable law or by virtue of being a party to a contract (other than this Agreement)
to pay severance pay, a termination indemnity, notice pay or the like or if the
Employer, the Company or any Affiliate is obligated by law to provide advance notice of
separation (Notice Period), then any Severance Payment hereunder shall be reduced by
the amount of any such severance pay, termination indemnity, notice pay or the like, as
applicable, and by the amount of any compensation received during any Notice Period.7.3
    
    Neither the entering into of this Agreement, nor the payment of any benefits
hereunder shall be construed as giving the Executive, or any person whomsoever, the
right to be retained in the service of the Employer, and the Executive shall remain
subject to discharge to the same extent as if the Agreement had never been executed.7.4
    
    If any provision of the Agreement shall be held invalid or unenforceable, such
invalidity or unenforceability shall not affect any other provisions hereof, and the
Agreement shall be construed and enforced as if such provisions had not been included.7.5
    
    The Company, the Employer and the Executive intend for the Agreement to comply
with the requirements of Code section 409A such that none of the payments hereunder
will result in compensation to be includible in the Executives income pursuant to Code
section 409A(a)(1)(A). The Agreement shall be interpreted in a manner consistent with
such intent.If any provision of the Agreement would cause compensation to be includible in the
Executives income pursuant to Code section 409A(a)(1)(A), such provision shall be
void, and the Employer shall have the unilateral right to amend the Agreement
retroactively for compliance with Coode section 409A in such a way as to achieve
substantially similar economic results without causing such inclusion. Any such
 11




---



##### 



amendment shall be binding on the Executive. In the event the Agreement does not comply
with the requirements of Code section 409A, the Executive will be solely responsible for
any adverse tax consequences to the Executive.7.6
    
    The Agreement shall be binding upon and shall inure to the benefit of and be
enforceable by the Employer and its successors and assigns, and by the Executive and by
the personal and legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees of the Executive. If the Executive shall die while
any amount would still be payable to the Executive (other than amounts which, by their
terms, terminate upon the death of the Executive) if the Executive had continued to
live, all such amounts, unless otherwise provided herein, shall be paid in accordance
with the terms of the Agreement to the executors, personal representatives or
administrators of the Executives estate.7.7
    
    The headings and captions herein are provided for reference and convenience
only, shall not be considered part of the Agreement, and shall not be employed in the
construction of the Agreement.7.8
    
    The Agreement shall not be funded. The Executive shall not have any right to,
or interest in, any assets of the Employer which may be applied by the Employer to the
payment of benefits or other rights under the Agreement.7.9
    
    All notices and all other communications provided for in the Agreement (i)
shall be in writing, (ii) shall be hand delivered, sent by overnight courier or by
United States registered mail, return receipt requested and postage prepaid, addressed,
in the case of the Employer, to the principal office of the Employer, attention
President, and in the case of the Company, to 2855 Campus Drive, San Mateo, California
94403, attention General Counsel, and in the case of the Executive, to the last known
address of the Executive, and (iii) shall be effective only upon actual receipt.7.10
    
    The Agreement shall be construed and enforced according to the laws of the State
of Delaware (without giving effect to the conflict of laws principles thereof) to the
extent not preempted by federal law, which shall otherwise control.
 12




---



##### 



EXHIBIT A
 WAIVER AND RELEASE OF CLAIMS
 
     13




---



##### 



14




---



##### 



EXHIBIT B
 Assignment and Assumption of
Severance Agreement
Between  and   ,
As of
 
 1.
    
    The Old Employer hereby assigns the Agreement to the New Employer.2.
    
    The New Employer hereby assumes the obligations of the Old Employer under the Agreement.3.
    
    The assignment and assumption are effective as of the date employment is transferred.4.
    
    The Executive hereby acknowledges receipt of notice of the assignment and assumption.
 THE OLD EMPLOYER
    
    
    
    THE NEW EMPLOYERBy:
    
    
    
    
    
    By:Name:
    
    
    
    
    
    Name:Title:
    
    
    
    
    
    Title:EXECUTIVEName:
 15