Special Employment Agreement with Michael J. Ward

Form of Employment Agreement for Officers, Executives or Managers entered into on or after January 1, 2005

 

 
                                                                   EXHIBIT 10.6
 
 
                         SPECIAL EMPLOYMENT AGREEMENT
                         ----------------------------
 
          AGREEMENT by and between CSX Corporation, a Virginia corporation (the
"Company"), and Michael J. Ward (the "Executive"), dated as of the thirteenth
day of February, 2001.
 
WHEREAS, CSX owns, directly or indirectly, more than fifty percent of the voting
stock of various other corporations (hereinafter, individually or collectively,
"Affiliate"); and
 
WHEREAS, the Company and the Executive wish to set forth the terms and
conditions of the Executive's continued employment with the Company or an
Affiliate.
 
          NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
 
          1.   Term of this Agreement. The Company shall employ the Executive,
               ----------------------
and the Executive shall serve the Company, on the terms and conditions set forth
in this Agreement, for the period beginning on February 13, 2001 and ending on
February 12, 2006, subject to early termination as provided below (the "Term of
this Agreement").
 
          2.   Position and Duties. (a) During the Term of this Agreement, the
               -------------------
Executive shall serve as the President of CSX Transportation, Inc., reporting to
the Chief Executive Officer ("CEO") of CSX Corporation, with the duties and
responsibilities normally associated with that position.
 
               (b)  During the Term of this Agreement, and excluding any periods
of vacation and sick leave to which the Executive is entitled, the Executive
agrees to devote reasonable attention and time during normal business hours to
the business and affairs of the
<PAGE>
 
Company and, to the extent necessary to discharge the responsibilities assigned
to the Executive hereunder, to use the Executive's reasonable best efforts to
perform faithfully and efficiently such responsibilities. During the Term of
this Agreement, it shall not be a violation of this Agreement for the Executive
to (A) serve on corporate, civic, or charitable boards or committees, (B)
deliver lectures, fulfill speaking engagements, or teach at educational
institutions and (C) manage personal investments, so long as such activities do
not significantly interfere with the performance of the Executive's
responsibilities as an employee of the Company in accordance with this
Agreement.
 
          3.   Compensation. (a) Base Salary. During the Term of this Agreement,
               ------------      -----------
the Executive shall receive an annual base salary equal to his annual base
salary as of the date hereof (the "Base Salary"), payable in accordance with the
Company's customary payroll practices. During the Term of this Agreement, the
Base Salary shall be reviewed for possible increase at least annually. Any
increase in the Base Salary shall not limit or reduce any other obligation of
the Company under this Agreement. The Base Salary shall not be reduced after any
such increase, and the term "Base Salary" shall thereafter refer to the Base
Salary as so increased.
 
               (b)  Annual Bonus. In addition to the Base Salary, the Executive
                    ------------
shall have the opportunity to earn, for each fiscal year ending during the Term
of this Agreement, an annual bonus (the "Annual Bonus") on terms comparable to
those provided for such fiscal year to senior executives of the Company.
 
               (c)  Restricted Stock. In connection with entering into this
                    ----------------
Agreement, the Company has granted the Executive 165,000 shares of restricted
stock under the Company's
 
                                      -2-
<PAGE>
 
Omnibus Incentive Plan, pursuant to a Restricted Stock Award Agreement dated
February 13, 2001 (the "Restricted Stock Agreement").
 
               (d)  Other Benefits. During the Term of this Agreement: (i) the
                    --------------
Executive shall be entitled to participate in all incentive, savings and
retirement plans, practices, policies and programs of the Company to the same
extent as senior executives; (ii) the Executive and/or the Executive's family,
as the case may be, shall be eligible for participation in, and shall receive
all benefits under, all welfare benefit plans, practices, policies and programs
provided by the Company (including, without limitation, medical, prescription,
dental, disability, salary continuance, employee life insurance, group life
insurance, accidental death and travel accident insurance plans and programs) to
the same extent as senior executives; and (iii) the Executive shall be entitled
to fringe benefits to the same extent and on the same basis as senior
executives.
 
          4.   Termination of Employment. (a) Death or Disability. The
               -------------------------      -------------------
Executive's employment hereunder and the Term of this Agreement shall terminate
automatically upon the Executive's death during the Term of this Agreement. If
the Company determines in good faith that the Disability of the Executive has
occurred during the Term of this Agreement (pursuant to the definition of
Disability set forth below), it may give to the Executive written notice in
accordance with Section 11(b) of this Agreement of its intention to terminate
the Executive's employment. In such event, the Executive's employment with the
Company and the Term of this Agreement shall terminate effective on the 30th day
after receipt of such notice by the Executive (the "Disability Effective Date"),
provided that, within 30 days after such receipt, the Executive shall not have
--------
returned to full-time performance of the Executive's duties. For purposes of
this Agreement, "Disability" shall mean the Executive's becoming disabled within
the meaning of the long-term disability plan of the Company covering the
Executive.
 
                                      -3-
<PAGE>
 
               (b)   By the Company. The Company may terminate the Executive's
                     --------------
employment hereunder and the Term of this Agreement for Cause or without Cause.
"Cause" means: (i) the willful and continued failure of the Executive
substantially to perform the Executive's duties under this Agreement (other than
as a result of physical or mental illness or injury) after the CEO delivers to
the Executive a written demand for substantial performance that specifically
identifies the manner in which the CEO believes that the Executive has not
substantially performed the Executive's duties; or (ii) illegal conduct or gross
misconduct by the Executive.
 
               (c)   Good Reason. The Executive may terminate employment
                     -----------
hereunder and the Term of this Agreement for Good Reason or without Good Reason.
A termination for "Good Reason" means termination by the Executive within 60
days after, and as a result of:
 
               (i)   the assignment to the Executive of any duties materially
inconsistent with Section 2(a) of this Agreement, or any other action by the
Company that results in a material diminution in the Executive's position,
authority, duties or responsibilities; provided, however, that immaterial
                                       --------  -------
changes in Executive's responsibilities will not constitute grounds for a Good
Reason termination under this Section 4(c)(i); or
 
               (ii)  any failure by the Company to comply with any provision of
Section 3 of this Agreement, other than an isolated, insubstantial and
inadvertent failure that is not taken in bad faith and is remedied by the
Company promptly after receipt of notice thereof from the Executive.
 
                                      -4-
<PAGE>
 
               (d)  Notice of Termination. Any termination of the Executive's
                    ---------------------
employment by the Company or by the Executive shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 11(b) of
this Agreement. For purposes of this Agreement, a "Notice of Termination" means
a written notice which: (i) indicates the specific termination provision in this
Agreement relied upon; (ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Executive's employment under the provision so indicated; and (iii) if the
Date of Termination (as defined below) is other than the date of receipt of such
notice, specifies the termination date (which date shall be not more than thirty
days after the giving of such notice). The failure by the Executive or the
Company to set forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason or Cause shall not waive any right of
the Executive or the Company, respectively, hereunder or preclude the Executive
or the Company, respectively, from asserting such fact or circumstance in
enforcing the Executive's or the Company's rights hereunder.
 
               (e)  Date of Termination. The "Date of Termination" means: (i) if
                    -------------------
the Executive's employment is terminated by the Company for Cause, or by the
Executive for Good Reason, the date on which the Notice of Termination is given
or any later date specified therein, as the case may be; (ii) if the Executive's
employment is terminated by the Company other than for Cause or Disability or by
the Executive without Good Reason, the Date of Termination shall be the date on
which the Notice of Termination is given; and (iii) if the Executive's
employment is terminated by reason of the Executive's death or Disability, the
Date of Termination shall be the date of death or the Disability Effective Date,
as the case may be.
 
                                      -5-
<PAGE>
 
          5.   Obligations of the Company upon Termination. (a) Other Than for
               -------------------------------------------      --------------
Cause, Death or Disability; Good Reason. If, during the Term of this Agreement,
---------------------------------------
the Company terminates the Executive's employment, other than for Cause or
Disability, or the Executive terminates employment for Good Reason, the Company
shall pay the amounts described in Section 5(a)(i) below to the Executive in a
lump sum in cash within 30 days after the Date of Termination, and shall
continue the benefits described in Section 5(a)(ii) below until February 12,
2006. The payments provided pursuant to this Section 5(a) are intended as
liquidated damages for a termination of the Executive's employment by the
Company and of the Term of this Agreement other than for Cause or Disability or
for the actions of the Company leading to a termination of the Executive's
employment by the Executive for Good Reason, and shall be the sole and exclusive
remedy therefor, and shall be paid only upon receipt by the Company from the
Executive of an executed release and waiver, satisfactory in form and in
substance to the Company, of all claims against the Company, provided, however,
that such release and waiver shall be consistent with the Company's general
practices and shall contain no language that directly or indirectly limits or
reduces the Executive's entitlement to indemnity or insurance with respect to
his actions as an employee or officer of the Company or its Affiliates.
 
               (i)  The amounts to be paid in a lump sum as described above are:
 
               A.   the Executive's accrued but unpaid cash compensation (the
          "Accrued Obligations"), which shall equal the sum of (1) any portion
          of the Executive's Base Salary through the Date of Termination that
          has not yet been paid and (2) any accrued but unpaid Annual Bonuses
          and vacation pay;
 
               B.   the aggregate amount of the Base Salary that would have been
          payable to the Executive from the Date of Termination through February
          12,
 
                                      -6-
<PAGE>
 
          2006, had he remained employed hereunder, at the rate in effect
          immediately before the Date of Termination (but disregarding any
          decrease in the rate of Base Salary that was a basis for a termination
          by the Executive for Good Reason, if applicable);
 
               C.   one-half of the aggregate target amount of the Annual
          Bonuses that the Executive would have received following the Date of
          Termination, up to and including a pro rated Annual Bonus for 2006.
          The pro rated Annual Bonus for 2006 shall be equal to one-half of the
          product of (A) the Target annual bonus established for the position
          times (B) a fraction, the numerator of which is the number of days in
          the year 2006 through February 12, 2006, and the denominator of which
          is 365; and
 
               D.   an amount equal to the excess of (a) the actuarial
          equivalent of the benefit under the Company's qualified defined
          benefit retirement plan (the "Retirement Plan") and any excess or
          supplemental retirement plan in which the Executive participates
          (together, the "SERP") which the Executive would have received if the
          Executive's employment had continued until February 12, 2006, assuming
          for this purpose that the Executive's compensation during such period
          would have been that required by Section 3(a) and Section 3(b), over
          (b) the actuarial equivalent of the Executive's actual benefit (paid
          or payable), if any, under the Retirement Plan and the SERP as of the
          Date of Termination (utilizing for purposes of the foregoing actuarial
          assumptions no less favorable to the Executive than those in effect
          under the Company's Retirement Plan and SERP as of the Date of
          Termination).
 
                                      -7-
<PAGE>
 
               (ii)   The benefits to be continued as described above are
welfare benefits to the Executive and/or the Executive's family at least as
favorable as those that would have been providd to them under Section 3(d)(ii)
of this Agreement if the Executive's employment had continued until February 12,
2006, except that (A) the Company shall have no obligation to provide continued
disability and accidental death or dismemberment coverage, and (B) the provision
of disability and accidental death or dismemberment coverage prior to
Termination shall not be considered for purposes of determining whether the
benefits provided under this Section 5(a)(ii) are as favorable as those provided
under Section 3(c)(ii); provided, however, that during any period when the
                        --------  -------
Executive is eligible to receive benefits of the type to be provided under this
Section 5(a)(ii) under another employer-provided plan, the benefits provided by
the Company under this Section 5(a)(ii) may be made secondary to those provided
under such other plan. For purposes of determining eligibility (but not the time
of commencement of benefits) of the Executive for retiree benefits under this
subparagraph, the Executive shall be deemed to have retired on February 12,
2006.
 
               (b)    Death or Disability. If the Executive's employment is
                      -------------------
terminated by reason of the Executive's death or Disability during the Term of
this Agreement, the Company shall pay the Accrued Obligations to the Executive
or the Executive's estate or legal representative, as applicable, in a lump sum
in cash within 30 days after the Date of Termination, and the Company shall have
no further obligations under this Agreement.
 
               (c)    Cause; Other than for Good Reason. If the Executive's
                      ---------------------------------
employment is terminated by the Company for Cause during the Term of this
Agreement, the Company shall pay the Executive the Base Salary through the Date
of Termination and the amount of any compensation previously deferred by the
Executive (together with any accrued
 
                                      -8-
<PAGE>
 
interest or earnings thereon), in each case to the extent not yet paid, and the
Company shall have no further obligations under this Agreement. If the Executive
voluntarily terminates employment during the Term of this Agreement, other than
for Good Reason, the Company shall pay the Accrued Obligations to the Executive
in a lump sum in cash within 30 days of the Date of Termination, and the Company
shall have no further obligations under this Agreement.
 
          6.   Effect of Change of Control. The Executive and the Company are
               ---------------------------
parties to an Employment Agreement dated as of November 1, 2000 (the "Change of
Control Agreement"), which provides for the terms and conditions of the
Executive's employment and for certain severance pay and other benefits
following a "Change of Control" (as defined in the Change of Control Agreement).
If the Effective Date (as defined in the Change of Control Agreement) occurs
during the Term of this Agreement, then notwithstanding any other provision of
this Agreement or of the Change of Control Agreement, (i) the Change of Control
Agreement shall supersede this Agreement for the duration of the Employment
Period under the Change of Control Agreement, except that in the event of a
termination of the Executive's employment, the Executive (or his estate, in the
event of his death) may elect to have either Section 5 of this Agreement or
Sections 6 through 8 of the Change of Control Agreement (but not both) apply to
such termination, and (ii) if the Term of this Agreement ends after the end of
such Employment Period, and the Executive remains employed by the Company
immediately following the end of such Employment Period, this Agreement shall be
reinstated as of the end of such Employment Period and shall govern the
Executive's employment for the remainder of the Term of this Agreement. If the
Executive becomes entitled to make the election contemplated by clause (i) of
the preceding sentence, the Company shall give the Executive written notice in
accordance with Section 11(b) that he has the right to such election. If the
Executive fails to make such an
 
                                      -9-
<PAGE>
 
election affirmatively, he shall be deemed for all purposes to have elected to
have the provisions of Sections 6 through 8 of the Change of Control Agreement,
rather than Section 5 of this Agreement, apply to such termination.
 
          7.   Non-exclusivity of Rights. Nothing in this Agreement shall
               -------------------------
prevent or limit the Executive's continuing or future participation in any plan,
program, policy or practice provided by the Company or any other company
controlled by, controlling, or under common control with, the Company (such
other companies, collectively, the "Affiliated Companies") for which the
Executive may qualify, nor, subject to Section 11(f), shall anything herein
limit or otherwise affect such rights as the Executive may have under any
contract or agreement with the Company or any Affiliated Company. Amounts which
are vested benefits or which the Executive is otherwise entitled to receive
under any plan, policy, practice or program of, or any contract or agreement
with, the Company or any of its Affiliated Companies at or subsequent to the
Date of Termination shall be payable in accordance with such plan, policy,
practice or program or contract or agreement except as explicitly modified by
this Agreement. Notwithstanding the foregoing, if the Executive receives
payments and benefits pursuant to Section 5(a) of this Agreement, the Executive
shall not be entitled to any severance pay or benefits under any severance plan,
program or policy of the Company and the Affiliated Companies, unless otherwise
specifically provided therein in a specific reference to this Agreement.
 
          8.   Full Settlement. The Company's obligation to make the payments
               ---------------
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be
 
                                      -10-
<PAGE>
 
obligated to seek other employment or take any other action by way of mitigation
of the amounts payable to the Executive under any of the provisions of this
Agreement and such amounts shall not be reduced (except as specifically provided
in Section 5(a)(ii)) whether or not the Executive obtains other employment.
 
          9.   Confidential Information; No-Raid; Noncompetition; Inventions.
               -------------------------------------------------------------
(a) The Executive shall hold in a fiduciary capacity, for the benefit of the
Company and the Affiliated Companies, all secret or confidential information,
knowledge or data relating to the Company or any Affiliated Company and their
respective businesses (including, without limitation, any proprietary and not
publicly available information concerning any processes, methods, trade secrets,
research, secret data, costs or names of users or purchasers of their respective
products or services, business methods, operating procedures or programs or
methods of promotion and sale) that the Executive obtains during the Executive's
employment by the Company or any Affiliated Company and that is not public
knowledge (other than as a result of the Executive's violation of this Section
9(a)) ("Confidential Information"). For the purposes of this Section 9(a),
information shall not be deemed to be publicly available merely because it is
embraced by general disclosures or because individual features or combinations
thereof are publicly available. The Executive shall not communicate, divulge or
disseminate Confidential Information at any time during or after the Executive's
employment with the Company or any Affiliated Company, except with the prior
written consent of the Company, or such Affiliated Company, as applicable, or as
otherwise required by law or legal process. All records, files, memoranda,
reports, customer lists, drawings, plans, documents and the like that the
Executive uses, prepares or comes into contact with during the course of the
Executive's employment shall remain the sole property of the Company and/or one
or more Affiliated Company, as applicable, and shall
 
                                      -11-
<PAGE>
 
be turned over to the Company or such Affiliated Company, as applicable, upon
termination of the Executive's employment. The Executive also agrees that until
the first anniversary of the Date of Termination, he will advise any prospective
employer or client that meets any of the following criteria of the
confidentiality restrictions set forth in this Agreement and state in writing to
such prospective employer or client that his employment or provision of services
will not violate these provisions, and will deliver a copy of such statement to
the Company. Such a statement shall be required for any prospective employer or
client that is (i) engaged in the railroad or intermodal transportation
business; (ii) a customer representing more than 1% of the revenues of either
CSX Transportation, Inc. or CSX Intermodal, Inc.; or (iii) affiliated with the
Norfolk Southern Corporation.
 
          (b)  The Executive agrees that he will not, at any time during the
Noncompetition Period (as defined in Section 9(c) below), without the prior
written consent of the Company or the applicable Affiliated Company, as
applicable, directly or indirectly employ, or solicit the employment of (whether
as an employee, officer, director, agent, consultant or independent contractor),
any person who was or is at any time during the previous twelve (12) months an
employee, representative, officer or director of the Company or any Affiliated
Company (except for such employment by the Company or any Affiliated Company);
provided, however, that a public advertisement not specifically targeted at the
--------  -------
employees of the Company shall not be deemed to be a solicitation for purposes
of this provision.
 
          (c)  During the Noncompetition Period (as defined below), the
Executive shall not, without the prior written consent of the CEO, engage in or
become associated with a Competitive Activity. For purposes of this Section 9:
(i) the "Noncompetition Period" means the period beginning on the date of this
Agreement and ending on February 12,
 
                                      -12-
<PAGE>
 
2007, except that if the Executive voluntarily terminates his employment without
Good Reason as described in the last sentence of Section 5(c), the
Noncompetition Period shall end on the first anniversary of the Date of
Termination; (ii) a "Competitive Activity" means any business or other endeavor,
in any county of any state of the United States or a comparable jurisdiction in
Canada or any other country, directly or indirectly for a Class I railroad
operating in North America; and (iii) the Executive shall be considered to have
become "associated with a Competitive Activity" if the Executive becomes
directly or indirectly involved as an owner, principal, employee, officer,
director, independent contractor, representative, stockholder, financial backer,
agent, partner, advisor, lender, or in any other individual or representative
capacity with any individual, partnership, corporation or other organization
that is engaged in a Competitive Activity. Notwithstanding the foregoing, the
Executive may make and retain investments during the Term of this Agreement in
less than 0.5% of the equity of any entity engaged in a Competitive Activity, if
such equity is listed on a national securities exchange or regularly traded in
an over-the-counter market.
 
          (d)  All plans, discoveries and improvements, whether patentable or
unpatentable, made or devised by the Executive, whether alone or jointly with
others, from the date of the Executive's initial employment by the Company and
continuing until the end of the Term of this Agreement and any subsequent period
when the Executive is employed by the Company or any Affiliated Company,
relating or pertaining in any way to the Executive's employment with or the
business of the Company or any Affiliated Company, are hereby transferred to and
shall redound to the benefit of the Company, and shall become and remain its
sole and exclusive property. The Executive agrees to execute any assignments to
the Company or its nominee, of the Executive's entire right, title and interest
in and to any such discoveries
 
                                      -13-
<PAGE>
 
and improvements and to execute any other instruments and documents requisite or
desirable in applying for and obtaining patents or copyrights, at the expense of
the Company, with respect thereto in the United States and in all foreign
countries, that may be required by the Company. The Executive further agrees,
during and after the Term of this Agreement, to cooperate to the extent and in
the manner required by the Company, in the prosecution or defense of any patent
or copyright claims or any litigation, or other proceeding involving any trade
secrets, processes, discoveries or improvements covered by this Agreement, but
all necessary expenses thereof shall be paid by the Company.
 
          (e)  The Executive acknowledges and agrees that: (i) the purpose of
the foregoing covenants, including without limitation the noncompetition
covenant of Section 9(c), is to protect the goodwill, trade secrets and other
Confidential Information of the Company; (ii) because of the nature of the
business in which the Company and the Affiliated Companies are engaged and
because of the nature of the Confidential Information to which the Executive has
access, it would be impractical and excessively difficult to determine the
actual damages of the Company and any Affiliated Company in the event the
Executive breached any of the covenants of this Section 9; and (iii) remedies at
law (such as monetary damages) for any breach of the Executive's obligations
under this Section 9 would be inadequate. The Executive therefore agrees and
consents that if he commits any breach of a covenant under this Section 9 or
threatens to commit any such breach, the Company shall have the right (in
addition to, and not in lieu of, any other right or remedy that may be available
to it) to temporary and permanent injunctive relief from a court of competent
jurisdiction, without posting any bond or other security and without the
necessity of proof of actual damage. With respect to any provision of this
Section 9 finally determined by a court of competent jurisdiction to be
unenforceable, the Executive and
 
                                      -14-
<PAGE>
 
the Company hereby agree that such court shall have jurisdiction to reform this
Agreement or any provision hereof so that it is enforceable to the maximum
extent permitted by law, and the parties agree to abide by such court's
determination. If any of the covenants of this Section 9 are determined to be
wholly or partially unenforceable in any jurisdiction, such determination shall
not be a bar to or in any way diminish the Company's right to enforce any such
covenant in any other jurisdiction.
 
          10.  Successors. (a) This Agreement is personal to the Executive and
               ----------
without the prior written consent of the Company shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives.
 
               (b)  This Agreement shall inure to the benefit of and be binding
upon the Company and its successors and assigns.
 
               (c)  The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
 
          11.  Miscellaneous. (a) This Agreement shall be governed by and
               -------------
construed in accordance with the laws of the Commonwealth of Virginia, without
reference to principles of conflict of laws. The captions of this Agreement are
not part of the provisions hereof and shall
 
                                      -15-
<PAGE>
 
have no force or effect. This Agreement may not be amended or modified otherwise
than by a written agreement executed by the parties hereto or their respective
successors and legal representatives.
 
               (b)  All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
 
 
          If to the Executive:
          --------------------
 
          Michael J. Ward
 
 
 
 
          If to the Company:
 
 
          CSX Corporation
          One James Center
          Richmond, Virginia 23219
          Attention: Corporate Secretary
 
 
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addresses.
 
               (c)  The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement. If any provision of this Agreement shall be held invalid or
unenforceable in part, the remaining portion of such provision, together with
all other provisions of this Agreement, shall remain valid and enforceable and
continue in full force and effect to the fullest extent consistent with law.
 
                                      -16-
<PAGE>
 
          (d)  The Company may withhold from any amounts payable under this
Agreement such Federal, state, local or foreign taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
 
          (e)  The Executive's or the Company's failure to insist upon strict
compliance with any provision of this Agreement or the failure to assert any
right the Executive or the Company may have hereunder, including, without
limitation, the right of the Executive to terminate employment for Good Reason
pursuant to Section 4(c) of this Agreement, shall not be deemed to be a waiver
of such provision or right or any other provision or right of this Agreement.
 
          (f)  The Executive and the Company acknowledge that this Agreement
supersedes any other agreement between them concerning the subject matter
hereof, other than the Change of Control Agreement. This Agreement shall have no
effect on any agreements between the Executive and the Company or any of its
affiliates not concerning the subject matter hereof, and any such agreement
(including without limitation the Restricted Stock Agreement) is ratified and
confirmed in all respects and shall remain in full force and effect in
accordance with its terms.
 
          (g)  This Agreement may be executed in several counterparts, each of
which shall be deemed an original, and said counterparts shall constitute but
one and the same instrument.
 
                                      -17-
<PAGE>
 
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand and,
pursuant to due authorization, the Company has caused this Agreement to be
executed in its name on its behalf, all as of the day and year first above
written.
 
 
                                       /s/ Michael J. Ward_____________________
                                       ----------------------------------------
                                             Michael J. Ward
 
 
 
 
                                       CSX CORPORATION
 
                                       By /s/ John W. Snow_____________________
                                          -------------------------------------
 
                                          September 5, 2001
 
                                      -18-
 

 

 

 

 

 

FORM OF EMPLOYMENT AGREEMENT

          AGREEMENT by and between CSX CORPORATION, a Virginia corporation (the “Company”), and                                          (the “Executive”), dated as of the ___day of                     , 200_.

          The Board of Directors of the Company (the “Board”) has determined that it is in the best interests of the Company and its shareholders to assure that the Company will have the continued dedication of the Executive, notwithstanding the possibility, threat or occurrence of a Change of Control (as defined below) of the Company. The Board believes it is imperative to diminish the inevitable distraction of the Executive by virtue of the personal uncertainties and risks created by a pending or threatened Change of Control and to encourage the Executive’s full attention and dedication to the Company currently and in the event of any threatened or pending Change of Control, and to provide the Executive with compensation and benefits arrangements upon a Change of Control which ensure that the compensation and benefits expectations of the Executive will be satisfied and which are competitive with those of other corporations. Therefore, in order to accomplish these objectives, the Board has caused the Company to enter into this Agreement.

     NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:

     1. Certain Definitions.

     a. “Effective Date” means the first date during the Term (as defined in Section l(b)) on which a Change of Control (as defined in Section 2) occurs. Anything in this Agreement to the contrary notwithstanding, if a Change of Control occurs, and (i) the Executive’s employment with the Company is terminated by the Company without Cause or (ii) the Executive ceases to be an officer of the Company in either case prior to the date on which the Change of Control occurs, and if it is reasonably demonstrated by the Executive that such termination of employment or cessation of status as an officer (i) was at the request of a third party who has taken steps reasonably calculated to effect such Change of Control or (ii) otherwise arose in connection with or anticipation of such Change of Control, then, in each such case, for all purposes of this Agreement “Effective Date” shall mean the date immediately prior to the date of such termination of employment or cessation of status as an officer.

     b. The “Term” means the period commencing on the date hereof and ending on the earlier to occur of (i) the third anniversary of such date or (ii) the first day of the month next following the Employee’s normal retirement date (“Normal Retirement Date”) under the principal pension plan in which the Executive participates (the “Pension Plan”); provided, however, that commencing on the date one year after the date hereof, and on each annual anniversary of such date (such date and each annual anniversary thereof shall be hereinafter referred to as the “Renewal Date”), unless previously terminated, the Term shall be automatically extended so as to terminate three years from such Renewal Date, unless at least 60 days prior to the Renewal Date the Company shall give notice to the Executive that the Term shall not be so extended; and

 


 

provided, further, that the Term shall end on an earlier date if the Company gives the Executive at least one year’s advance written notice thereof.

          2. Change of Control. For the purpose of this Agreement, a “Change of Control” shall mean:

     a. Stock Acquisition. The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) (a “Person”) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of either (i) the then outstanding shares of common stock of the Company (the “Outstanding Company Common Stock”) or (ii) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); provided, however, that for purposes of this subsection (a), the following acquisitions shall not constitute a Change of Control: (i) any acquisition directly from the Company, (ii) any acquisition by the Company, (iii) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company or (iv) any acquisition by any corporation pursuant to a transaction which complies with clauses (i), (ii) and (iii) of subsection (c) of this Section 2; or

     b. Board Composition. Individuals who, as of the date hereof, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to such date whose election, or nomination for election by the Company’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board; or

     c. Business Combination. Consummation of a reorganization, merger or consolidation or sale or other disposition of all or substantially all of the assets of the Company or its principal subsidiary (a “Business Combination”) that is not subject, as a matter of law or contract, to approval by the Surface Transportation Board or any successor agency or regulatory body having jurisdiction over such transactions (the “Agency”), in each case, unless, following such Business Combination:

     (i) all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of, respectively, the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation which

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as a result of such transaction owns the Company or its principal subsidiary or all or substantially all of the assets of the Company or its principal subsidiary either directly or through one or more subsidiaries) in substantially the same proportions as their ownership, immediately prior to such Business Combination of the Outstanding Company Common Stock and Outstanding Company Voting Securities, as the case may be;

     (ii) no Person (excluding any corporation resulting from such Business Combination or any employee benefit plan (or related trust) of the Company or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, 20% or more of, respectively, the then outstanding shares of common stock of the corporation resulting from such Business Combination or the combined voting power of the then outstanding voting securities of such corporation except to the extent that such ownership existed prior to the Business Combination; and

     (iii) at least a majority of the members of the board of directors of the corporation resulting from such Business Combination were members of the Incumbent Board at the time of the execution of the initial agreement, or of the action of the Board, providing for such Business Combination; or

     d. Regulated Business Combination. Consummation of a Business Combination that is subject, as a matter of law or contract, to approval by the Agency (a “Regulated Business Combination”) unless such Business Combination complies with clauses (i), (ii) and (iii) of subsection (c) of this Section 2; or

     e. Liquidation or Dissolution. Consummation of a complete liquidation or dissolution of the Company or its principal subsidiary approved by the Company’s shareholders.

If any Change of Control is a Regulated Business Combination, but its implementation involves another “Change of Control” that is not a Regulated Business Combination within the meaning of this Section 2, then for all purposes of this Agreement, such Change of Control shall not be deemed to be a Regulated Business Combination, the provisions governing a Regulated Business Combination shall not apply, and the provisions governing such other Change in Control shall apply.

          3. Employment Period.

     a. Generally. Subject to Section 3(b), the Company hereby agrees to continue the Executive in its employ, and the Executive hereby agrees to remain in the employ of the Company subject to the terms and conditions of this Agreement, for the period commencing on the Effective Date and ending on the third anniversary of such date (the “Employment Period”).

     b. Regulated Business Combination. Notwithstanding the foregoing, in the case of a Change of Control that is a Regulated Business Combination, then for all

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purposes of this Agreement, the “Employment Period” shall mean the longer of (i) the period commencing on the Effective Date and ending on the third anniversary of such date or (ii) the period commencing on the Effective Date and ending twelve months from the effective date of a final decision by the Agency on the proposed Regulated Business Combination (“Final Regulatory Action”), provided, however, that (x) if the Final Regulatory Action is a denial of the Regulated Business Combination then for all purposes of this Agreement the “Employment Period” shall end upon the sixtieth (60th) day following such Final Regulatory Action and (y) if the Final Regulatory Action is an approval of the Regulated Business Combination, but the Regulated Business Combination is not consummated by the first anniversary of the Final Regulatory Action, then for all purposes of this Agreement the “Employment Period” shall end upon such first anniversary, of the Final Regulatory Action.

          4. Terms of Employment.

     a. Position and Duties. (i) During the Employment Period: (A) the Executive’s position (including status, offices, titles and reporting requirements), authority, duties and responsibilities shall be at least commensurate in all material respects with the most significant of those held, exercised and assigned at any time during the 120-day period immediately preceding the Effective Date, and (B) the Executive’s services shall be performed at the location where the Executive was employed immediately preceding the Effective Date or any office or location less than 35 miles from such location.

     (ii) During the Employment Period, and excluding any periods of vacation and sick leave to which the Executive is entitled, Executive agrees during normal business hours to diligently discharge the business and affairs of the Company and, to the extent necessary to discharge the responsibilities assigned to the Executive hereunder, to use the Executive’s reasonable best efforts to perform faithfully and efficiently such responsibilities. During the Employment Period it shall not be a violation of this Agreement for the Executive to (A) serve on corporate, civic or charitable boards or committees, (B) deliver lectures, fulfill speaking engagements or teach at educational institutions and (C) manage personal investments, so long as such activities do not significantly interfere with the performance of the Executive’s responsibilities as an employee of the Company in accordance with this Agreement. It is expressly understood and agreed that to the extent that any such activities have been conducted by the Executive prior to the Effective Date, the continued conduct of such activities (or the conduct of activities similar in nature and scope thereto) subsequent to the Effective Date shall not thereafter be deemed to interfere with the performance of the Executive’s responsibilities to the Company.

     b. Compensation. (i) Base Salary. During the Employment Period, the Executive shall receive an annual base salary (“Annual Base Salary”), which shall be paid at a monthly rate, at least equal to twelve times the highest monthly base salary

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paid or payable, including any base salary which has been earned but deferred, to the Executive by the Company and its affiliated companies in respect of the twelve-month period immediately preceding the month in which the Effective Date occurs. During the Employment Period, the Annual Base Salary shall be reviewed no more than 12 months after the last salary increase awarded to the Executive prior to the Effective Date and thereafter at least annually. Any increase in Annual Base Salary shall not serve to limit or reduce any other obligation to the Executive under this Agreement. Annual Base Salary shall not be reduced after any such increase, and the term Annual Base Salary as utilized in this Agreement shall refer to Annual Base Salary as so increased. Notwithstanding the preceding, an across-the-board reduction in Annual Base Salary applicable to all similarly situated peer executives implemented out of extreme business necessity and unrelated to a contemplated or anticipated Change of Control shall not be a violation of this section. As used in this Agreement, the term “affiliated companies” shall include any company controlled by, controlling or under common control with the Company.

     (ii) Annual Bonus. In addition to Annual Base Salary, the Executive shall be eligible to earn, for each calendar year ending during the Employment Period, an annual bonus (the “Annual Bonus”) in cash, at a minimum, target and maximum level not less favorable (in terms both of dollar amounts and difficulty of achievement) to the Executive than the Executive’s opportunity to earn such annual cash bonuses under the Company’s annual incentive plans, or any comparable bonus under any predecessor or successor plan, for the last three full calendar years prior to the Effective Date (annualized in the event that the Executive was not employed by the Company for the whole of such calendar year). Notwithstanding the preceding, an across-the-board reduction of minimum, target and maximum Annual Bonus opportunities applicable to all similarly situated peer executives implemented out of extreme business necessity and unrelated to a contemplated or anticipated Change of Control shall not be a violation of this section. (The highest of the actual amounts of such bonuses, as so annualized, for each of such three full calendar years is hereafter referred to as the “Recent Annual Bonus”.) Each such Annual Bonus shall be paid no later than the end of the third month of the calendar year next following the calendar year for which the Annual Bonus is awarded, unless deferred pursuant to the terms of a deferred compensation plan maintained by the Company.

     (iii) Incentive, Savings and Retirement Plans. During the Employment Period, the Executive shall be entitled to participate in all incentive, savings and retirement plans, practices, policies and programs applicable generally to other peer executives of the Company and its affiliated companies, but in no event shall such plans, practices, policies and programs provide the Executive with incentive opportunities (measured with respect to both regular and special incentive opportunities, to the extent, if any, that such distinction is applicable), savings opportunities and retirement benefit opportunities, in each case, less favorable, in the aggregate, than the most

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favorable of those provided by the Company and its affiliated companies for the Executive under such plans, practices, policies and programs as in effect at any time during the 120-day period immediately preceding the Effective Date or if more favorable to the Executive, those provided generally at any time after the Effective Date to other peer executives of the Company and its affiliated companies.

     (iv) Welfare Benefit Plans. During the Employment Period, the Executive and/or the Executive’s family, as the case may be, shall be eligible for participation in and shall receive all benefits under welfare benefit plans, practices, policies and programs provided by the Company and its affiliated companies (including, without limitation, medical, prescription, dental, disability, employee life, group life, accidental death and travel accident insurance plans and programs) to the extent applicable generally to other peer executives of the Company and its affiliated companies, but in no event shall such plans practices, policies and programs provide the Executive with benefits which are less favorable, in the aggregate, than the most favorable of such plans, practices, policies and programs its effect for the Executive at any time during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, those provided generally at any time after the Effective Date to other peer executives of the Company and its affiliated companies.

     (v) Expenses. During the Employment Period, the Executive shall be entitled to receive prompt reimbursement for all reasonable expenses incurred by the Executive in accordance with the most favorable policies, practices and procedures of the Company and its affiliated companies in effect for the Executive at any time during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies.

     (vi) Fringe Benefits. During the Employment Period, the Executive shall be entitled to fringe benefits, in accordance with the most favorable plans, practices, programs and policies of the Company and its affiliated companies in effect for the Executive at any time during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies.

     (vii) Office and Support Staff. During the Employment Period, the Executive shall be entitled to an office or offices of a size and with furnishings and other appointments, and to exclusive personal secretarial and other assistance, at least equal to the most favorable of the foregoing provided to the Executive by the Company and its affiliated companies at any time during the 120-day period immediately preceding the Effective Date or, if more favorable

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to the Executive, as provided generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies.

     (viii) Vacation. During the Employment Period, the Executive shall be entitled to paid vacation in accordance with the most favorable plans, policies, programs and practices of the Company and its affiliated companies as in effect for the Executive at any time during the 120-day period immediately preceding the Effective Date or, it more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies.

          Notwithstanding Sections 4.b.(iii)-(viii), benefits payable under a plan, practice, policy, or program that has been amended to reduce benefits or terminated within the 120-day period immediately preceding the Effective Date for reasons unrelated to affecting benefits due hereunder shall not be taken into account under such provisions. In the case of a plan, practice, policy or program amended to reduce benefits, only the higher pre-amendment benefit shall be disregarded.

          5. Termination of Employment.

     a. Death or Disability. The Executive’s employment shall terminate automatically upon the Executive’s death during the Employment Period. If the Company determines in good faith that the Disability of the Executive has occurred during the Employment Period (pursuant to the definition of Disability set forth below), it may give to the Executive written notice in accordance with Section 13(b) of this Agreement of its intention to terminate the Executive’s employment. In such event, the Executive’s employment with the Company shall terminate effective on the 30th day after receipt of such notice by the Executive (the “Disability Effective Date”), provided that, within the 30 days after such receipt, the Executive shall not have returned to full-time performance of the Executive’s duties. For purposes of this Agreement, “Disability” shall mean the absence of the Executive from the Executive’s duties with the Company on a full-time basis for 180 consecutive business days as a result of incapacity due to mental or physical illness which is determined to be total and permanent by a physician selected by the Company or its insurers and acceptable to the Executive or the Executive’s legal representative. Executive agrees to cooperate with the Company and the selected physician so that such determination can be made.

     b. Cause. The Company may terminate the Executive’s employment during the Employment Period for Cause. For purposes of this Agreement, “Cause” shall mean:

     (i) the willful and continued failure of the Executive to perform substantially the Executive’s duties with the Company or one of its affiliates (other than any such failure resulting from incapacity due to physical or mental illness), after a written demand for substantial performance is delivered to the Executive by the Board or the Chief Executive Officer of the Company which specifically identifies the manner in which the Board or Chief Executive officer

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believes that the Executive has not substantially performed the Executive’s duties, or

     (ii) the willful engaging by the Executive in illegal conduct or gross misconduct which is materially and demonstrably injurious to the Company.

For purposes of this provision, no act or failure to act, on the part of the Executive, shall be considered “willful” unless it is done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the Executive’s action or omission was in the best interests of the Company. Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the Board or upon the instructions of the Chief Executive Officer or a senior officer of the Company or based upon the advice of counsel for the Company shall he conclusively presumed to be done, or omitted to be done, by the Executive in good faith and in the best interests of the Company. The cessation of employment of the Executive shall not be deemed to be for Cause unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters of the entire membership of the Board at a meeting of the Board called and held for such purpose (after reasonable notice is provided to the Executive and the Executive is given an opportunity, together with counsel, to be heard before the Board), finding that, in the good faith opinion of the Board, the Executive is guilty of the conduct described in subparagraph (i) or (ii) above, and specifying the particulars thereof in detail.

     c. Good Reason. The Executive’s employment may be terminated by the Executive during the Employment Period for Good Reason. For purposes of this Section 5(c), any good faith determination of “Good Reason” made by the Executive shall be conclusive. For purposes of this Agreement, “Good Reason” shall mean:

     (i) the assignment to the Executive of any duties inconsistent in any respect with the Executive’s position (including status, offices, titles and reporting requirements), authority, duties or responsibilities as contemplated by Section 4(a) of this Agreement, or any other diminution in such position, authority, duties or responsibilities, excluding for this purpose an isolated, insubstantial and inadvertent action not taken in bad faith and which is remedied by the Company promptly after receipt of notice thereof given by the Executive;

     (ii) any failure by the Company to comply with any of the provisions of Section 4(b) of this Agreement, other than an isolated, insubstantial and inadvertent failure not occurring in bad faith and which is remedied by the Company promptly after receipt of notice thereof given by the Executive;

     (iii) the Company’s requiring the Executive to be based at any office or location other than as provided in Section 4(a)(i)(B) hereof or the Company’s requiring the Executive to travel on Company business to a materially greater extent than required immediately prior to the Effective Date, in either case without the Executive’s prior consent.

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     (iv) any purported termination by the Company of the Executive’s employment otherwise than as expressly permitted by this Agreement; or

     (v) any failure by the Company to comply with and satisfy Section 12(c) of this Agreement.

     d. Regulated Business Combination. Notwithstanding the foregoing, in the case of a Change of Control that is a Regulated Business Combination, then for all purposes of this Agreement, during that portion of the Employment Period prior to Final Regulatory Action, the Executive may not exercise his rights to terminate his employment under this Agreement for “Good Reason.” The Executive may only terminate his employment under this Agreement if he is “Constructively Terminated” by the Company. Moreover, except to the extent expressly set forth in the definition of “Constructive Termination,” the Executive shall have no remedy for any breach by the Company of the provisions of Section 4; provided, however, that any failure of the Company to comply in any material respect with the provisions of Section 4 shall create a rebuttable presumption that a Constructive Termination has occurred.

For purposes of this Agreement, a “Constructive Termination” shall mean:

     (i) substantial diminution of the Executive’s duties or responsibilities as contemplated by Section 4(a) of this Agreement, excluding for this purpose an isolated, insubstantial and inadvertent action not taken in bad faith and which is remedied by the Company promptly after receipt of notice thereof given by the Executive;

     (ii) a reduction in the Executive’s Annual Base Salary;

     (iii) a failure by the Company to comply with Section 4(b)(ii) regarding the Annual Bonus;

     (iv) a reduction in the Executive’s other incentive opportunities, benefits or perquisites described in Section 4(b) unless the Executive’s peer executives suffer a comparable reduction;

     (v) the Company’s requiring the Executive to be based at any office or location other than as provided in Section 4(a)(i)(B) hereof or the Company’s requiring the Executive to travel on Company business to a materially greater extent than required immediately prior to the Effective Date, in either case without the Executive’s prior consent.

     (vi) any purported termination by the Company of the Executive’s employment otherwise than for Cause.

During that portion of the Employment Period after Final Regulatory Action, the Executive may terminate his Employment under this Agreement for “Good Reason.”

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     e. Notice of Termination. Any termination by the Company for Cause, or by the Executive for Good Reason or Constructive Termination, shall be communicated by Notice of Termination to the other party hereto given in accordance with Section 13(b) of this Agreement. For purposes of this Agreement, a “Notice of Termination” means a written notice which (i) indicates the specific termination provision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Executive’s employment under the provision so indicated, and (iii) if the Date of Termination (as defined below) is other than the date of receipt of such notice, specifies the termination date (which date shall be not more than thirty days after the giving of such notice). The failure by the Executive or the Company to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Good Reason, Cause or Constructive Termination shall not waive any right of the Executive or the Company, respectively, hereunder or preclude the Executive or the Company, respectively, from asserting such fact or circumstance in enforcing the Executive’s or the Company’s rights hereunder.

     f. Date of Termination. “Date of Termination” means (i) if the Executive’s employment is terminated by the Company for Cause, or by the Executive for Good Reason or Constructive Termination, the date of receipt of the Notice of Termination or any later date specified therein, as the case may be, (ii) if the Executive’s employment is terminated by the Company other than for Cause or Disability, the Date of Termination shall be the date on which the Company notifies the Executive of such termination and (iii) if the Executive’s employment is terminated by reason of death or Disability, the Date of Termination shall be the date of death of the Executive or the Disability Effective Date, as the case may be.

          6. Obligations of the Company upon Termination.

     a. Good Reason or Constructive Termination. If, during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause or Disability or the Executive shall terminate employment for Good Reason or Constructive Termination, then the Company shall provide the following payments and benefits:

     (i) The Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of (A) plus (B), as follows:

     A. the sum of (1) the Executive’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) the higher of (I) the Recent Annual Bonus and (II) the Executive’s most recently established target Annual Bonus (annualized for any calendar year consisting of less than twelve full months or during which the Executive was employed for less than twelve full months) (such higher amount being referred to as the “Highest Annual Bonus”) and (y) a fraction, the numerator of which is the number of days in the

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current calendar year through the Date of Termination, and the denominator of which is 365 and (3) any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), and (3) shall be hereinafter referred to as the “Accrued Obligations”); and

     B. an amount equal to the product of (1) [two/three] and (2) the sum of (x) the Executive’s Annual Base Salary in effect on the date of Executive’s termination of employment (or, if greater, the Executive’s Annual Base Salary in effect immediately before any salary reduction therein triggering the event leading to Executive’s termination) and (y) the Highest Annual Bonus.

     (ii) for [two/three] years after the Executive’s Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive’s family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv) of this Agreement if the Executive’s employment had not been terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families; provided, however, that if the Executive becomes reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility; except as provided below, the period during which the Executive and his family are eligible for health continuation coverage under Section 4980B of the Code by reason of the Executive’s termination of employment shall run from the end of such [two/three] year period. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until [two/three] years after the Date of Termination and to have retired on the last day of such period. With respect to any self-insured medical benefits, the Company and Executive agree to use their reasonable best efforts to replace such benefits with comparable fully insured benefits, the cost of which shall be shared in the same manner as the self-insured coverage. If the Company and Executive are unable to effect coverage acceptable to Executive, coverage will be made available under the applicable self-insured plan (but not through any plan or arrangement deemed to be a cafeteria plan under Section 125 of the Code) of the Company and Executive may elect to pay one hundred percent of the cost of such coverage on an after-tax basis. In the event medical coverage is provided under the existing plan, the initial eighteen months shall be deemed to be COBRA coverage and the additional [two/three] years of coverage provided thereafter.

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     (iii) The Company shall, at its sole expense as incurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in his sole discretion, but at a cost not in excess of $20,000.

     (iv) To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies, including earned but unpaid stock and similar compensation (such other amounts and benefits shall be hereinafter referred to as the “Other Benefits”).

     b. Death. If the Executive’s employment is terminated by reason of the Executive’s death during the Employment Period, this Agreement shall terminate without further obligations to the Executive’s legal representatives under this Agreement, other than for payment of Accrued Obligations and the timely payment or provision of Other Benefits. Accrued Obligations shall be paid to the Executive’s estate or beneficiary, as applicable, in a lump sum in cash within 30 days of the Date of Termination. With respect to the provision of Other Benefits, the term Other Benefits as utilized in this Section 6(b) shall include, without limitation, and the Executive’s estate and/or beneficiaries shall be entitled to receive, benefits at least equal to the most favorable benefits provided by the Company and affiliated companies to the estates and beneficiaries of peer executives of the Company and such affiliated companies under such plans, programs, practices and policies relating to death benefits, if any, as in effect with respect to other peer executives and their beneficiaries at any time during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive’s estate and/or the Executive’s beneficiaries, as in effect on the date of the Executive’s death with respect to other peer executives of the Company and its affiliated companies and their beneficiaries. Notwithstanding the preceding, benefits payable under a plan, practice, policy, or program that has been amended to reduce benefits or terminated within the 120-day period immediately preceding the Effective Date for reasons unrelated to affecting benefits due hereunder shall not be taken into account. In the case of a plan, practice, policy or program amended to reduce benefits, only the higher pre-amendment benefit shall be disregarded.

     c. Disability. If the Executive’s employment is terminated by reason of the Executive’s Disability during the Employment Period, this Agreement shall terminate without further obligations to the Executive, other than for payment of Accrued Obligations and the timely payment or provision of Other Benefits. Accrued Obligations shall be paid to the Executive in a lump sum in cash within 30 days of the Date of Termination. With respect to the provision of Other Benefits, the term Other Benefits as utilized in this Section 6(c) shall include, and the Executive shall be entitled after the Disability Effective Date to receive, disability and other benefits at least equal to the most favorable of those generally provided by the Company and its affiliated companies to disabled executives and/or their families in accordance with such plans,

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programs, practices and policies relating to disability, if any, as in effect generally with respect to other peer executives and their families at any time during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive and/or the Executive’s family, as in effect at any time thereafter generally with respect to other peer executives of the Company and its affiliated companies and their families. Notwithstanding the preceding benefits payable under a plan, practice, policy, or program that has been amended to reduce benefits or terminated within the 120-day period immediately preceding the Effective Date for reasons unrelated to affecting benefits due hereunder shall not be taken into account. In the case of a plan, practice, policy or program amended to reduce benefits, only the higher pre-amendment benefit shall be disregarded.

     d. Cause; Other than for Good Reason or Constructive Termination. If the Executive’s employment shall be terminated for Cause during the Employment Period, this Agreement shall terminate without further obligations to the Executive other than the obligation to pay to the Executive (x) his Annual Base Salary through the Date of Termination, and (z) Other Benefits, in each case to the extent theretofore unpaid. If the Executive voluntarily terminates employment during the Employment Period, excluding a termination for Good Reason or Constructive Termination, this Agreement shall terminate without further obligations to the Executive, other than for Accrued Obligations and the timely payment or provision of Other Benefits. In such case, all Accrued Obligations shall be paid to the Executive in a lump sum in cash within 30 days of the Date of Termination.

          7. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or limit the Executive’s continuing or future participation in any plan, program, policy or practice provided by the Company or any of its affiliated companies for which the Executive may qualify, nor, subject to Section 13(f), shall anything herein limit or otherwise affect such rights as the Executive may have under any contract or agreement with the Company or any of its affiliated companies. Amounts which are vested benefits or which the Executive is otherwise entitled to receive under any plan, policy, practice or program of or any contract or agreement with the Company or any of its affiliated companies at or subsequent to the Date of Termination shall be payable in accordance with such plan, policy, practice or program or contract or agreement except as explicitly modified by this Agreement.

          8. Full Settlement. The Company’s obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any set-off, counterclaim, recoupment, defense or other claim, right or action which the Company may have against the Executive or others. In no event shall the Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to the Executive under any of the provisions of this Agreement and such amounts shall not be reduced whether or not the Executive obtains other employment. The Company agrees to pay as incurred, to the full extent permitted by law, all legal fees and expenses which the Executive may reasonably incur as a result of any contest regardless of the outcome thereof by the Company, the Executive or others of the validity or enforceability of, or liability under, any provision of this Agreement or any guarantee of performance thereof

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(including as a result of any contest by the Executive about the amount of any payment pursuant to this Agreement), plus in each case interest on any delayed payment, at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Internal Revenue Code of 1986, as amended (the “Code”); provided, that the Executive shall repay to the Company all such amounts paid by the Company, and shall not be entitled to any further payments hereunder, in connection with a contest originated by the Executive if the trier of fact in such contest determines that the Executive’s claim was not brought in good faith or was frivolous.

          9. Certain Additional Payments by the Company.

     a. Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 9) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section 9(a), if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) as compared to the net after-tax proceeds to the Executive resulting from an elimination of the Gross-Up Payment and a reduction of the Payments, in the aggregate, to an amount (the “Reduced Amount”) such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment shall be made to the Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amount.

     b. Subject to the provisions of Section 9(c), all determinations required to be made under this Section 9, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by a certified public accounting firm, law firm, or other advisor as may be designated by the Company (the “Advisor”) which shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of notice from the Executive that there has been a Payment, or such earlier time as is requested by the Company. In the event that the Advisor is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Company shall appoint another recognized firm to make the determinations required hereunder (which firm shall then be referred to as the Advisor).

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All fees and expenses of the Advisor shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 9, shall be paid by the Company to the Executive within five days of the receipt of the Advisor’s determination. Any determination by the Advisor shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Advisor hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 9(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Advisor shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive.

     c. The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after the Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall:

     (i) give the Company any information reasonably requested by the Company relating to such claim,

     (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company,

     (iii) cooperate with the Company in good faith in order to effectively contest such claim, and

     (iv) permit the Company to participate in any proceedings relating to such claim;

provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 9(c), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue

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or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and sue for a refund, the Company shall advance the amount of such payment to the Executive, on an interest-free basis and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority.

     d. If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 9(c), the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of Section 9(c)) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 9(c), a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

          10. Confidential Information. The Executive shall hold in a fiduciary capacity for the benefit of the Company all confidential or proprietary information, knowledge or data relating to the Company or any of its affiliated companies, and their respective businesses, which shall have been obtained by the Executive during the Executive’s employment by the Company or any of its affiliated companies and which shall not be or become public knowledge (other than by acts by the Executive or representatives of the Executive in violation of this Agreement). After termination of the Executive’s employment with the Company, the Executive shall not, without the prior written consent of the Company or as may otherwise be required by law or legal process, communicate or divulge any such information, knowledge or data to anyone other than the Company and those designated by it. In addition, to the extent that the Executive is a party to any other agreement relating to confidential information, inventions or similar matters with the Company, the Executive shall continue to comply with the provisions of such agreements. In no event shall an asserted

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violation of the provisions of this Section 10 constitute a basis for deferring or withholding any amounts otherwise payable to the Executive under this Agreement.

          11. Arbitration. The Company and the Executive agree that all disputes, controversies, and claims arising between them concerning the subject matter of this Agreement, other than Sections 9 and 10, shall be settled by arbitration in accordance with the rules and procedures of the American Arbitration Association then in effect. The location of the arbitration will be Richmond, Virginia or such other place as the parties may mutually agree. In rendering any award or ruling, the arbitrator or arbitrators shall determine the rights and obligations of the parties according to the substantive and procedural laws of the Commonwealth of Virginia. The parties to any such dispute, controversy, or claim shall attempt to agree upon the selection of a single arbitrator. If after a reasonable period of time the parties are unable to agree upon such a single arbitrator, then three arbitrators will be appointed with each party selecting an arbitrator from the American Arbitration Association’s available panel of arbitrators, and the parties agreeing upon the selection of a third arbitrator. If the parties cannot agree upon the selection of a third arbitrator, then the two arbitrators selected by the parties shall agree upon a third arbitrator from the panel of American Arbitration Association arbitrators. If the two arbitrators are unable to so agree on a third arbitrator, the third arbitrator shall be selected by the American Arbitration Association. Any arbitration pursuant to this section shall be final and binding on the parties, and judgment upon any award rendered in such arbitration may be entered in any court, state or federal, having jurisdiction. All fees and expenses of the arbitration shall be born in accordance with Section 8. The arbitrator or arbitrators shall have no authority to award provisional relief, injunctive remedies, or punitive damages. The parties expressly acknowledge that they are waiving their right to seek remedies in court, including without limitations the right if any to a jury trial.

          12. Successors.

     a. This Agreement is personal to the Executive and without the prior written consent of the Company shall not be assignable by the Executive otherwise than by will or the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by the Executive’s legal representatives.

     b. This Agreement shall inure to the benefit of and be binding upon the Company and its successors and assigns.

     c. The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to assume expressly and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. As used in this Agreement, “Company” shall mean the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law, or otherwise.

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          13. Miscellaneous.

     a. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without reference to principles of conflict of laws. The captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement may not be amended or modified otherwise than by a written agreement executed by the parties hereto or their respective successors and legal representatives; provided, that the Company may unilaterally amend Exhibit A hereto from time to time, but only to the extent it determines, upon the advice of counsel, to be necessary to comply with the legal requirements to obtain a valid release.

     b. All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by registered or certified mail, return receipt requested, postage prepaid, addressed as follows:

     If to the Executive:

     If to the Company:

     CSX Corporation
     500 Water Street
     Jacksonville, FL 32202

     Attention: Senior Vice President, Human Resources and Labor Relations

or to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be effective when actually received by the addressee.

     c. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement.

     d. The Company may withhold from any amounts payable under this Agreement such Federal, state, local or foreign taxes as shall be required to be withheld pursuant to any applicable law or regulation.

     e. The Executive’s or the Company’s failure to insist upon strict compliance with any provision of this Agreement or the failure to assert any right the Executive or the Company may have hereunder, including, without limitation, the right of the Executive to terminate employment for Good Reason or Constructive Termination pursuant to Section 5 of this Agreement, shall not be deemed to be a waiver of such provision or right or any other provision or right of this Agreement.

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     f. The Executive and the Company acknowledge that, except as may otherwise be provided under any other written agreement between the Executive and the Company, the employment of the Executive by the Company is “at will” and, subject to Section 1(a) hereof, prior to the Effective Date, the Executive’s employment may be terminated by either the Executive or the Company at any time prior to the Effective Date, in which case the Executive shall have no further rights under this Agreement. From and after the Effective Date this Agreement shall supersede any other agreement between the parties with respect to the subject matter hereof.

          14. Waiver and Release with Respect to Prior Agreement. In exchange for the compensation and benefits promised herein, the Executive hereby waives and releases the Company and its affiliates from any and all claims he ever had or may have arising from or in connection with the Employment Agreement dated                     , between the Company and the Executive (the “Prior Agreement”), and the Executive acknowledges that this Agreement supersedes and renders null and void in all respects the Prior Agreement.

          15. Other Agreements Unaffected. Except for the Prior Agreement, or as otherwise expressly provided herein, this Agreement shall have no effect on any other agreement between the Executive and the Company or any of its affiliates, and any such agreement is ratified and confirmed in all respects and shall remain in full force and effect in accordance with its terms.

          IN WITNESS WHEREOF, the Executive has hereunto set the Executive’s hand and, pursuant to the authorization from its Board of Directors, the Company has caused these presents to be executed in its name on its behalf, all as of the day and year first above written.

 

 

 

 

 

 

 


 

 

 

 

 

 

 

CSX CORPORATION

 

 

 

 

 

 

By

 

 

 

 

 


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