exv10w65






Exhibit 10.65




NON-CHANGE IN CONTROL SEVERANCE POLICY




(CON-WAY INC. AND CON-WAY ENTERPRISE SERVICES INC.)



ADOPTED AS OF DECEMBER 18, 2009



AMENDED AS OF JUNE 21, 2010


This Non-Change in Control Severance Policy (“Policy”) is established and maintained by Con-way
Inc. (the “Company”) and by Con-way Enterprise Services, Inc. (“CES”), an affiliate of the Company
(the Company and CES each being a “Participating Employer” and collectively the “Participating
Employers”). Capitalized terms used in this Policy without definition have the meanings shown on
Attachment 1.



This Policy sets forth the terms and conditions under which an executive in executive grade level
E-1 or E-2 employed by a Participating Employer (each an “Executive” and collectively the
“Executives”) is eligible to receive certain severance payments and benefits from his or her
Employer (as defined herein) in the event of the Executive’s termination of employment in certain
circumstances. Except as provided in the following paragraph, this Policy supersedes (i) all prior
severance agreements between an Executive and a Participating Employer and (ii) all prior severance
plans, policies and other severance arrangements of any Participating Employer applicable to the
Executive.



This Policy is not intended to and does not address severance payments and benefits that may be
made available to Executives whose employment in terminated in connection with change in control
transactions. Accordingly, this Policy does not supersede or otherwise affect any severance
agreements, plans, policies or arrangements, whether now in effect or hereafter entered into or
established by any Participating Employer, that provide for severance payments and benefits to be
made available to Executives whose employment is terminated in connection with change in control
transactions (as the term “change in control” is defined in such agreements, plans, policies or
arrangements). Without limiting the generality of the foregoing, this Policy does not supersede or
otherwise affect a Severance Agreement (Change in Control) dated as of December 18, 2009, entered
into by an Executive and his or her Employer or any successor change in control severance
agreement. In no event and under no circumstances shall any Executive be entitled to receive
severance payments and benefits both under any such change in control agreement, plan, policy or
arrangement and also under this Policy.





	1.	 	Qualifying Termination of Employment. An Executive will be eligible to receive the
severance payments and benefits described in this Policy only if the Executive incurs a
Severance.






	2.	 	Severance Payments and Benefits. Subject to the other provisions of this Policy, if
an Executive incurs a Severance the Executive shall be entitled to receive the following from
the Employer:






	 	(a)	 	Severance Payment.





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	 	 	 	The Severance Payment is in lieu of any severance payment or benefit to which the Executive
may otherwise be entitled under any other severance plan or agreement of any Participating
Employer or Affiliate, except as otherwise provided in the third paragraph of this Policy.






	 	(b)	 	Prorated Annual Bonus Amount, provided that the Executive has been employed for
at least one full calendar quarter during the year in which the Severance occurs.
	 
	 	(c)	 	Health Benefits.
	 
	 	(d)	 	Outplacement Services.






	 	 	In addition, if an Executive incurs a Severance the Executive’s unvested Qualifying Long-Term
Incentive Awards will vest in accordance with and to the extent provided in the Vesting
Provisions. Nothing in this Policy shall modify or otherwise affect the vesting provisions or
other terms of any Executive’s long-term incentive awards which are not Qualifying Long-Term
Incentive Awards.






	3.	 	Waiver and Release; Agreement to Comply with Covenants. An Executive shall not be
eligible to receive a Severance Payment, Prorated Annual Bonus Amount, Health Benefits or
Outplacement Services under the Policy unless:






	 	(a)	 	the Executive (or, in the event of the death of the Executive, the executor, personal
representative or administrator of the Executive’s estate) first executes a written waiver
and release substantially in the form of Attachment 2 hereto 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 Prorated Annual Bonus Amount, Health Benefits or Outplacement Services; and
	 
	 	(b)	 	the Executive executes an agreement, in form and substance satisfactory to the
Employer, pursuant to which the Executive agrees to comply with each of the covenants set
forth on Attachment 3, for the following periods of time: (i) Non-solicitation,
twenty-four (24) months after the Severance Date; and (ii) Confidential Information and
Non-Disparagement, period of unlimited duration.






	4.	 	Timing of Payments; Taxes. The Employer shall pay to the Executive the Severance
Payment and any Health 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 pay to the Executive the Prorated Annual Bonus
Amount, 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, but in no event
prior to the end of the calendar year in which the Severance occurs. The Employer shall use
good faith efforts to obtain from Tax Counsel the determinations contemplated by this Section
4. 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.






	5.	 	Disputes and Controversies. 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 




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	 	 	Policy, 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 Policy are governed by claims
procedures under the EIP that also apply to ERISA-covered claims, neither this Policy nor any
amounts payable hereunder are, or are intended to be, governed by ERISA.






	 	 	Any further dispute or controversy arising under or in connection with the Policy which remains
after the final decision of the Employer Board 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 Policy. 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 Policy 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).






	6.	 	Fees and Expenses; Mitigation. 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 by the Policy. 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.
	 
	 	 	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 Policy shall not be
reduced (except as provided in the definition of Health Benefits) by any compensation earned by
the 




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	 	 	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.






	7.	 	NOTICE OF TERMINATION.






	 	(a)	 	Any Involuntary Termination shall be communicated by written notice from the Employer
to the Executive in accordance with Section 8(i), and shall follow the applicable
procedures set forth in this Section 7. 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.
	 
	 	(b)	 	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.
	 
	 	(c)	 	Any Termination for Good Reason shall be communicated by written notice from the
Executive to the Employer in accordance with Section 8(i) of this Policy. 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 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.






	8.	 	General Provisions






	 	(a)	 	This Policy may be terminated or amended at any time in the sole discretion of the
Company; provided that such action shall not affect the rights under the Policy of
an Executive who incurs a Severance prior to such action.
	 
	 	 	 	Notwithstanding the proviso in the preceding paragraph, the Participating Employers intend
for the Policy to comply with the requirements of Code section 409A such that none of the
payments hereunder will result in compensation to be includible in an Executive’s income
pursuant to Code section 409A(a)(1)(A). The Policy shall be interpreted in a manner
consistent with such intent. If at any time any provision of the Policy would cause
compensation to be includible in an Executive’s income pursuant to Code section 409A(a)(1)(A), such provision
shall be void, and the Executive’s Employer shall have the unilateral right to amend the
Policy retroactively for compliance with Code section 409A in such a way as to achieve
substantially similar economic results without causing such inclusion. Any such amendment
shall be binding on the Executive. In the event the Policy does not comply with the
requirements of Code 




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	 	 	 	section 409A, the Executive will be solely responsible for any adverse
tax consequences to the Executive.






	 	(b)	 	Except as otherwise provided herein or by law, no right or interest of the Executive
under the Policy 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 Policy
shall be liable for, or subject to, any obligation or liability of such Executive. When a
payment is due under the Policy 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.
	 
	 	(c)	 	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 Policy) to pay severance pay,
a termination indemnity, notice pay or the like to an Executive or if the Employer, the
Company or any Affiliate is obligated by law to provide advance notice of separation
(“Notice Period”) to an Executive, then any Severance Payment made to the Executive
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.
	 
	 	(d)	 	Neither the entering into of this Policy, nor the payment of any benefits hereunder
shall be construed as giving an 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 Policy had never been executed.
	 
	 	(e)	 	If any provision of the Policy shall be held invalid or unenforceable, such invalidity
or unenforceability shall not affect any other provisions hereof, and the Policy shall be
construed and enforced as if such provisions had not been included.
	 
	 	(f)	 	The Policy shall be binding upon and shall inure to the benefit of and be enforceable
by the Employer and its successors and assigns, and by an Executive and by the personal and
legal representatives, executors, administrators, successors, heirs, distributees, devisees
and legatees of the Executive. If an 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 Policy to the
executors, personal representatives or administrators of the Executive’s estate.
	 
	 	(g)	 	The headings and captions herein are provided for reference and convenience only, shall
not be considered part of the Policy, and shall not be employed in the construction of the
Policy.
	 
	 	(h)	 	The Policy shall not be funded. No Executive shall 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 Policy.
	 
	 	(i)	 	All notices and all other communications provided for in the Policy (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 




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	 	 	 	Mateo, California 94403, attention General
Counsel, and in the case of an Executive, to the last known address of the Executive, and
(iii) shall be effective only upon actual receipt.






	 	(j)	 	This Policy 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.




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ATTACHMENT 1

TO

NON-CHANGE IN CONTROL SEVERANCE POLICY

(CON-WAY INC. AND CON-WAY ENTERPRISE SERVICES INC.)



DEFINITIONS



“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.



“Cause” for termination by the Employer of an Executive’s employment means (i) fraud,
misappropriation or embezzlement by the Executive against a Participating Employer or an 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 (ii) the willful engaging by the Executive in conduct which is demonstrably and materially
injurious to a Participating Employer or any 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
a Participating Employer or any Affiliate.



“COBRA” means the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended,
supplemented or substituted from time to time.



“Disability” means a physical or mental illness or condition causing an 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, as to any Executive, the Participating Employer that employs the
Executive.



“Employer Board” means the Board of Directors of the Employer.



“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.



“Executive” has the meaning given to such term on the first page of this Policy.



“Health Benefits” means HMO, insured or self-funded medical, dental, vision, prescription
drug and behavioral health benefits for an Executive and his or her dependents for a period of
twelve (12) months after the Severance Date. The Health Benefits shall be 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 and shall to the extent possible be provided at the
Employer’s expense through COBRA, in accordance with the applicable plans, programs or policies of
the Company.







 









 







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.



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 Date.



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.



“Involuntary Termination” means the actual termination of an Executive’s employment by the
Employer for any reason other than death, Disability, Cause or change in control.



“Outplacement Services” means professional outplacement services determined by the Employer
to be suitable to an Executive’s position. The maximum amount that the Employer will pay for such
services is $10,000. 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 $10,000, and
(ii) the date on which the Executive obtains another full-time job. The Employer will not pay the
Executive cash in lieu of professional outplacement services.



“Participating Employer” has the meaning given to such term on the first page of this
Policy.



“Prorated Annual Bonus Amount” means, for any Executive, an amount equal to the product of
(i) the annual bonus payment that the Executive would have been eligible to receive for the
calendar year in which the Severance occurs had the Executive remained employed by the Employer for
the entire calendar year, determined based on (A) the Executive’s Target Bonus and (B) the
Employer’s actual performance for that calendar year under the Executive Incentive Plan or other
annual incentive plan in which the Executive participates, multiplied by (ii) a fraction,
the numerator of which is the number of






 









 







days during the calendar year that the Executive was employed by the Employer and the denominator
of which is 365.



“Qualifying Long-Term Incentive Award” means:





	 	(i)	 	a stock option, stock appreciation right (“SAR”) or similar award, or a
restricted stock or restricted stock unit (“RSU”) award (whether cash-based or
equity-based, and whether payable in cash or in stock);
	 
	 	(ii)	 	(that is outstanding on the Severance Date;
	 
	 	(iii)	 	that has a vesting period that is longer than one year in duration; and
	 
	 	(iv)	 	that is non-performance-based or, if performance-based, is based solely on
changes in the price of the Company’s common stock.




“Severance” means an Involuntary Termination by the Employer or a Termination for Good
Reason by the Executive.



“Severance Date” means the date on which an Executive incurs a Severance.



“Severance Payment” means a payment in an amount equal to an Executive’s annual base salary
as in effect immediately prior to the Severance Date.



“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.



“Tax Counsel” means reputable outside tax counsel retained by the Employer and reasonably
acceptable to the Executive.



“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.



“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 the
following act 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:





 









 









	 	 	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.




“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 twelve (12) months after the Severance Date shall vest; and
	 
	 	(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 subject to cliff-vesting, a percentage of the award shall vest, with the
percentage determined by dividing the twelve (12) months by the total number of months
in the cliff-vesting period.






	 	 	Example 1: 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 installment scheduled to vest on January 1, 2010 would vest
but the installments scheduled to vest on January 1, 2011 and January 1, 2012 (more than 12
months after the Severance Date) would not vest under the Vesting Provisions.






	 	 	Example 2: 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 3,333 restricted stock units (12 months/36 months) would vest
under the Vesting Provisions.




 









 











ATTACHMENT 2

TO

NON-CHANGE IN CONTROL SEVERANCE POLICY




FORM OF WAIVER AND RELEASE OF CLAIMS



WAIVER AND RELEASE OF CLAIMS


In consideration of, and subject to, the payment to be made to me by ____________ (the “Employer”)
of the “Severance Payment” and the “Prorated Target Bonus Amount” (in each case as defined in the
Non-Change in Control Severance Policy adopted by the Employer (the “Policy”), I hereby waive any
claims I may have for employment or re-employment by the Employer or any parent or subsidiary of
the Employer after the date hereof, and I further agree to and do release and forever discharge the
Employer and any parent or subsidiary of the Employer, and their respective past and present
officers, directors, shareholders, insurers, employees and agents from any and all claims and
causes of action, known or unknown, arising out of or relating to my employment with the Employer
or any parent or subsidiary of the Employer, or the termination thereof, including, but not limited
to, wrongful discharge, breach of contract, tort, fraud, the Civil Rights Acts, Age Discrimination
in Employment Act as amended by the Older Workers’ Benefits Protection Act, Employee Retirement
Income Security Act of 1974, Americans with Disabilities Act, or any other federal, state or local
legislation or common law relating to employment or discrimination in employment or otherwise;
provided however, that no claim that I may have against the Employer in any capacity other
than as an Employer shall be waived pursuant to this Waiver and Release.



Notwithstanding the foregoing or any other provision hereof, nothing in this Waiver and Release of
Claims shall adversely affect (i) my rights to ongoing Health Benefits under the terms of the
Policy; (ii) my rights to benefits (other than severance payments or benefits) under plans,
programs and arrangements of the Employer or any parent or subsidiary of the Employer; (iii) my
rights to indemnification under any indemnification agreement, applicable law or the certificates
of incorporation or bylaws of the Employer or any parent or subsidiary of the Employer, (iv) my
rights under any director’s and officers’ liability insurance policy covering me, (v) my workers
compensation rights, or (vi) my unemployment insurance rights.



I acknowledge that I have signed this Waiver and Release of Claims voluntarily, knowingly, of my
own free will and without reservation or duress, and that no promises or representations have been
made to me by any person to induce me to do so other than the promise of payment set forth in the
first paragraph above and the Employer’s acknowledgment of my rights reserved under the second
paragraph above.



I understand that this release will be deemed to be an application for benefits under the Policy
and that my entitlement thereto shall be governed by the terms and conditions of the Policy and any
applicable plan. I expressly hereby consent to such terms and conditions.



I acknowledge that (i) I am waiving any rights or claims I might have under the Age Discrimination
in Employment Act, as amended by the Older Workers Benefit Protection Act (“ADEA”); (ii) I have
received






 









 







consideration beyond that to which I was previously entitled; (iii) I have been given forty-five
(45) days to review and consider this Waiver and Release of Claims (unless I have signed a written
waiver of such review and consideration period); (iv) I have had the opportunity to consult with an
attorney or other advisor of my choice and have been advised by the Company to do so if I choose;
and (vi) I have been separately furnished a written schedule of all persons, listed by job title
and age, within the affected decisional unit who were selected and not selected for the benefits
extended by this Policy, as may be required by the ADEA. I may revoke this Waiver and Release of
Claims seven days or less after its execution by providing written notice to the Employer.



I acknowledge that it is my intention and the intention of the Employer in executing this Waiver
and Release of Claims that the same shall be effective as a bar to each and every claim, demand and
cause of action hereinabove specified. In furtherance of this intention, I hereby expressly waive
any and all rights and benefits conferred upon me by the provisions of SECTION 1542 OF THE
CALIFORNIA CIVIL CODE, to the extent applicable to me, and expressly I consent that this Waiver and
Release of Claims shall be given full force and effect according to each and all of its express
terms and provisions, including as well those related to unknown and unsuspected claims, demands
and causes of action, if any, as well as those relating to any other claims, demands and causes of
action hereinabove specified. SECTION 1542 provides:





	 	“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR.”




I acknowledge that I may hereafter discover claims or facts in addition to or different from those
which I now know or believe to exist with respect to the subject matter of this Waiver and Release
of Claims and which, if known or suspected at the time of executing this Waiver and Release of
Claims, may have materially affected this settlement.



Finally, I acknowledge that I have read this Waiver and Release of Claims and understand all of its
terms.




 





Signature




 





Name




 





Date Signed





 









 








ATTACHMENT 3

TO

NON-CHANGE IN CONTROL SEVERANCE POLICY




COVENANTS


Confidential Information. The Executive agrees 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 Employer. This provision 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.



Non-Solicitation. The Executive agrees that 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 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.



Non-Disparagement. The Executive agrees that the Executive will not 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.