EXHIBIT 10.9
YELLOW CORPORATION
RESTRICTED STOCK AWARD AGREEMENT
PURSUANT TO 1992 STOCK OPTION PLAN
WITH NON-COMPETE COVENANT
This Restricted Stock Award Agreement (the "Agreement"), made this _____
day of ______, 2002, by and between Yellow Corporation, formerly Yellow Freight
System, Inc. of Delaware, (the "Company") and ____________ (the "Grantee")
evidences the grant, by Company, of a Restricted Stock Award (the "Award") to
the Grantee on ______ ("Date of Grant") and the Grantee's acceptance of the
Award in accordance with the provisions of the Company's 1992 Stock Option Plan
(the "Plan"). Company and Grantee agree as follows:
1. Shares Awarded and Restriction on Shares. The Grantee shall be
awarded _____ shares of Company common stock ("Restricted Shares")
subject to the restrictions on the rights of ownership set forth in
this Agreement and further subject to the terms and conditions of
the Plan and the applicable rules (the "Rules") of the Compensation
Committee (the "Committee"), the provisions of which are hereby
incorporated in this Agreement by reference.
2. Sale or Transfer Restrictions. Except as set forth in Paragraph 6
below, Grantee shall have no right to sell or transfer the
Restricted Shares until the restrictions on sale or transfer lapse.
The restrictions on sale or transfer on all shares shall lapse on
the third anniversary of the date of this award. However, should the
Company adopt a future stock option plan, after stockholder
approval, providing for Restricted Stock Units, Grantee may convert
one Restricted Share awarded under this Agreement for one Restricted
Stock Unit, pursuant to such rules as the future plan and the
Committee may prescribe, and so long as Grantee chooses to convert
to Restricted Stock Units prior to the date the restrictions lapse
on the Restricted Shares. The Committee may provide that a Grantee,
after attaining age 60, shall have the option to have the value of
the Restricted Stock Units transferred to a diversified investment
such as a mutual fund.
3. Employment Requirement. Except as provided in Paragraphs 6 and 7, in
the event the Grantee's employment with Company (including all
Subsidiaries, as defined in the Plan) terminates prior to the date
specified in Paragraph 2 above, the Restricted Shares shall be
forfeited and returned to Company. For this purpose authorized
leaves of absence from Company or a Subsidiary (as defined in the
Plan) or the transfer of the Grantee between Company and a
Subsidiary or between such Subsidiaries shall not constitute a
termination of employment. For purposes of this Agreement, an
authorized leave of absence shall be an absence while the Grantee is
on military leave, sick leave, family leave, or other bona fide
leave of absence so long as the Grantee's right to employment or
re-
employment with Company or a Subsidiary is provided for by statute,
written contract or Company policy.
4. Deposit of Stock Certificates. Concurrently with signing this
Agreement (i) Company shall direct its transfer agent to issue _____
stock certificates for the Restricted Shares, each representing
______ shares of common stock of the Company, $1.00 par value,
registered in the name of the Grantee, and (ii) Grantee shall
execute and deliver to Company to be held by Company, with the stock
certificates for the Restricted Shares, an equal number of stock
powers for the Restricted Shares. After the prohibited sale and
transfer restrictions lapse under Paragraph 2 above with respect to
the Restricted Shares and provided the Restricted Shares have not
been forfeited under Paragraph 3 above, Company shall deliver to the
Grantee, or such person or persons as the Grantee may direct in
writing, the stock certificates, and the remaining stock powers, if
any, representing the Restricted Shares as to which the prohibited
sale or transfer restrictions have lapsed less any shares withheld,
pursuant to Grantee's election and the Committee's approval, to
satisfy applicable income tax withholding requirements. The shares
represented by such stock certificates after delivery shall cease to
be Restricted shares.
5. Voting and Other Rights of Restricted Shares. Subject to the
provisions of this Agreement restricting sale or transfer and
providing for forfeiture of Restricted Shares, Grantee shall have
all the rights of a shareholder with respect to the Restricted
Shares, including dividend and voting rights. However, any dividends
payable to Grantee shall be subject to any taxes due with respect to
such dividends, including FICA tax (if applicable) and local state
and federal income tax.
6. Acceleration of Lapse of Restrictions. Notwithstanding the foregoing
provisions of this Agreement, the Grantee or the Grantee's legal
representative or guardian shall be immediately entitled to receive
the certificates for all Restricted shares and the prohibited sale
and transfer restrictions of Paragraph 2 above shall immediately
lapse on the earliest of the following occurrences:
(a) The Grantee's date of death;
(b) The permanent and total disability of the Grantee. For
purposes of this Agreement, total disability shall mean the
inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to result in death or which
can be expected to last for a continuous period of not less
than twelve months. The existence of such permanent and total
disability shall be evidenced by such
medical certification as the Secretary of the Company may
require and determined by the Company's Compensation
Committee.
(c) In the event of a "Change of Control" of the Company, with
"Change of Control" having the same definition as set forth in
the Company's standard Executive Severance Agreement, which
definition is hereby incorporated by reference.
7. Continued Lapse of Restrictions in Retirement. Notwithstanding the
provisions of Paragraph 3, should the Grantee's termination result
from the Grantee's retirement after attaining age 55 with at least
11 years of service under the terms of a retirement plan of the
Company or a Subsidiary (as defined in the Plan), prior to the
lapsing of the restrictions on sale or transfer as defined in
Paragraph 2, the Grantee or the Grantee's legal representative shall
be entitled to receive on the date the restrictions lapse the
certificates for the Restricted Shares less applicable withholding,
provided Grantee has otherwise complied with this Agreement,
including, but not limited to the non-compete provisions of
Paragraph 9.
8. Tax Withholding Requirements. Grantee's Restricted Shares are
subject to certain tax withholding requirements, which may include
but are not limited to the withholding of tax on dividends paid on
Restricted Shares and the withholding of tax on the amount
includable in income of Grantee coincident with the lapse of the
sale and transfer restrictions on the Restricted Shares. Grantee
understands that certificates for Restricted Shares will not be
delivered to him following the lapse of restrictions unless and
until he has paid to the Company any tax due or has authorized the
Company, pursuant to the Rules of the committee, and provided the
Committee does not disapprove, to retain a sufficient number of the
Restricted Shares upon which the restrictions have lapsed to pay
such tax. The Committee shall have the right in its discretion to
satisfy withholding tax liability by retaining Restricted Shares.
9. Covenant Not to Compete. In consideration of this grant of
Restricted Stock Awards, Grantee agrees that should Grantee
voluntarily resign or quit the employ of the Company or its parent,
subsidiary or affiliated companies, Grantee shall not, for a period
of two years (the "Restriction Period") measured from the effective
date of such resignation or quitting, seek or accept employment with
any person, firm or entity in the U.S. that competes significantly
with any of the operations or business endeavors of the Company, its
parents, subsidiaries, affiliated companies, partners or joint
venturers.
It is specifically agreed that the employment prohibition set forth
in this Agreement includes employment in any capacity, directly or
indirectly, with any entity described above, including but not
limited to investment in
any such entity (other than owning less than 2% of the stock of a
publicly traded company) or employment as an officer, director,
employee, consultant, or independent contractor.
10. Confidential Information. Confidential and proprietary information
and knowledge in Grantee's possession about the business, customers,
finances, business practices, marketing and sales strategies and
personnel of the Company, its parents, subsidiaries and affiliates
("Company Information") shall remain confidential for the
Restriction Period and Grantee shall not disclose or communicate
such Company Information during that time to any individual or
entity not a party to this Agreement, including family members, and
Grantee will not make use of Company Information on Grantee's own
behalf or on behalf of a family member or aid or encourage any
family member to do so, including, but not limited to, soliciting or
recommending that anyone else solicit any then-current Company
employee for hire. Grantee specifically agrees any disclosure of any
Company Information during the Restriction Period by a family
member, or by an individual or entity who has obtained such
information from Grantee or a family member, shall be regarded as a
breach of this Agreement by Grantee.
11. Remedies for Breach. In the event that Grantee breaches or threatens
to breach the non-compete or confidentiality provisions of this
Agreement, Grantee acknowledges that the Company shall be entitled,
in addition to any other remedies which may be available to it, to
institute and maintain proceedings at law or in equity to recover
damages, to obtain specific performance or a temporary or permanent
injunction against Grantee's employment by the competitive entities
described above, or for breach of the promise not to disclose
Company Information, and that the Company shall be entitled to
recover from Grantee all costs, including attorney's fees, incurred
in prosecuting the above remedies.
12. Severability. In the event that any of the restrictions described
above shall be held contrary to law or invalid or unenforceable in
any respect in any jurisdiction, the remaining provisions shall not
be affected, but shall remain in full force and effect. Any such
invalid or enforceable provisions shall be deemed, without further
action on the part of any persons, modified, amended and limited to
the extent necessary to render the same valid and enforceable in
such jurisdiction.
13. Binding Nature of Agreement. This Agreement shall be binding upon
and inure to the benefit of the Company, its parent, subsidiaries,
successors and assigns, including, without limitation, any
corporation, person or entity which may acquire all or substantially
all of the Company's assets and business or to which the Company is
consolidated or merged. Grantee's rights and benefits hereunder are
personal to Grantee and no
such rights or benefits shall be subject to voluntary or involuntary
assignment or transfer, except as specifically provided in this
Agreement.
14. Confidentiality of Agreement. This Agreement shall be kept in strict
confidence by Grantee and shall be revealed only to Grantee's spouse
and attorney or other professional adviser. The Company shall keep
this Agreement in strict confidence except to the extent that
disclosure is required by government law or regulation.
15. Choice of Law. This Agreement, its interpretation, performance and
enforcement and the rights and remedies of Grantee and the Company,
shall be governed and construed by the laws of the state of Kansas
applicable to contracts to be performed wholly within Kansas,
without regard to principles of conflicts of laws.
16. Complete Agreement. This Agreement contains the entire agreement
between Grantee and the Company and supersedes all prior agreements
and understandings, both written and oral, between Grantee and the
Company with respect to the subject matter hereof.
17. No Employment Contract. Grantee and the Company agree that this
Agreement is not intended or understood to create any contract of
employment for a definite term or an expectation of continued
employment.
18. Amendment. This Agreement may not be modified or amended except in
writing signed by both Grantee and an officer of the Company.
IN WITNESS WHEREOF, Company, by its duly authorized officer or
representative, and the Grantee have signed this Agreement as of the day and
year first above written.
YELLOW CORPORATION
By:
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Title:
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GRANTEE SIGNATURE
STATE OF________ )
) ss.
COUNTY OF________ )
On this _____ day of ________, 20___, before me, a Notary Public,
personally appeared _______________________, to me known to be the person
described in and who executed the foregoing document, and acknowledged that
he/she executed the same as his/her free act and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year last above written.
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Notary Public
My appointment expires:
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