Exhibit 99.5
CNF INC.
RESTRICTED STOCK AWARD AGREEMENT
THIS AGREEMENT, entered into as of the ____ day of _________, ____, between
CNF Inc., a Delaware corporation (hereinafter called "Company"), [Name of
Executive] (hereinafter called "Recipient"), and the Secretary of the Company
(hereinafter called "Escrow Holder").
WITNESSETH:
WHEREAS, the Company has adopted the CNF Inc. 1997 Equity and Incentive Plan,
as amended (as so amended, the "Plan"), which Plan is incorporated into this
Agreement by reference;
WHEREAS, the Company encourages its executive officers to own shares of the
Company's stock and thereby to align their interests more closely with the
interests of the other stockholders of the Company, and desires to motivate
Recipient by providing Recipient with a direct interest in the Company's
attainment of its financial goals, and desires to provide a financial
incentive that will help attract and retain the most qualified executive
officers; and
WHEREAS, the Company has determined that it would be to the advantage and
interest of the Company and its stockholders to issue to Recipient the
restricted stock provided for in this Agreement as an incentive for increased
efforts and successful achievements;
NOW, THEREFORE, in consideration of the foregoing premises, and the mutual
covenants herein contained, the parties hereto agree with each other as
follows:
1. Defined Terms. Except as otherwise indicated herein, all capitalized
terms used in this Agreement without definition shall have the meanings
given to such terms in the Plan.
2. Restricted Stock Award. As of the date of this Agreement, the Company
has issued to Recipient ______ shares of its Common Stock (hereinafter
called the "Stock") as a restricted stock award ("Restricted Stock
Award"). Stock certificates evidencing the Stock will be delivered to
Escrow Holder, accompanied by blank stock powers executed by Recipient,
to be held by Escrow Holder as provided herein, for the use and benefit
of, and subject to the rights of and limitations upon Recipient as the
owner thereof as herein set forth. Subject to Paragraphs 3, 4 and 5
below, Recipient shall have all rights of a stockholder with respect to
shares of Stock issued hereunder, including the right to vote, to
receive dividends (including stock dividends), to participate in stock
splits or other recapitalizations, and to exchange such shares in a
merger, consolidation or other reorganization. The Company shall pay
the costs and charges of Escrow Holder and any applicable stock transfer
taxes. Recipient hereby acknowledges that Recipient is acquiring the
Stock issued hereunder for investment and not with a view to the
distribution thereof, and that Recipient does not intend to subdivide
Recipient's interest in the Stock with any other person.
3. Restrictions. Until such time as a share of Stock vests or is forfeited
in accordance with Paragraph 4 below, such share shall be classified as
a "Restricted Security" and shall be subject to the following:
(a) All Restricted Securities shall be evidenced by one or more
certificates which are held by Escrow Holder and which bear the
following legend:
"These shares are subject to the restrictions enumerated in the
CNF Inc. 1997 Equity and Incentive Plan and in the Restricted
Stock Award Agreement dated as of __________, ____ between CNF
Inc. and the registered holder of these shares."
Upon vesting of any shares of Stock, the Company shall cause new
stock certificates to be issued to evidence the Stock. All shares
of Stock that have vested, and that therefore are no longer
classified as Restricted Securities, shall be evidenced by a new
certificate which does not bear the legend referred to above,
which certificate shall be delivered by Escrow Holder to
Recipient.
All shares (if any) of Stock which remain unvested at such time,
and which therefore continue to be classified as Restricted
Securities, shall be evidenced by a new certificate bearing the
legend referred to above, which certificate shall be delivered to
and held by Escrow Holder.
(b) All Restricted Securities shall be subject to the limitations on
transferability set forth in Section 8(a) of the Plan, except that
the Committee may, in its discretion, (i) pursuant to rules
adopted by the Committee, permit transfer(s) of Restricted
Securities in connection with Recipient's estate planning, and
(ii) permit transfers upon divorce or marital dissolution other
than pursuant to a Qualified Domestic Relations Order.
(c) All distributions on or in respect of any Restricted Securities
(including dividends on any Restricted Securities, whether payable
in cash, stock or other property) shall be subject to the
provisions of Paragraph 5 below.
4. Vesting; Forfeiture.
(a) Subject to subparagraph (b) of this Paragraph 4, the shares of
Stock shall vest in three (3) equal installments, commencing on
________, ____ and continuing on each _________ thereafter to and
including ________, ____, provided that Recipient has been an
active full-time employee of the Company, a Subsidiary, or an
Affiliate at all times during the period from the date of this
Agreement until such date.
(b) All shares of Stock (if any) which have not vested shall vest upon
the earliest to occur of the following, provided that Recipient
has been an active full-time employee of the Company, a Subsidiary
or an Affiliate at all times during the period from the date of
this Agreement until the date of such occurrence:
(1) Recipient's death;
(2) Termination of Recipient's employment with the Company, a
Subsidiary or an Affiliate as a result of a Disability; or
(3) Upon a "Change in Control" (as defined in the Plan)
applicable to Recipient (whether or not Recipient remains an
employee of the Company, a Subsidiary or Affiliate following
such Change in Control), except that if clause (v) of the
definition of the term "Change in Control" applies to
Recipient and a Change in Control occurs pursuant to said
clause (v), then the shares of Stock shall vest at the same
time and in the same manner as "Option Awards" (as defined in
the Plan) vest, as provided in the last paragraph of Section
7 of the Plan.
As used herein, "Disability" means a substantial mental or
physical disability, as determined by the Committee in its sole
discretion.
(c) All shares of Stock (if any) which have not vested shall be
automatically, immediately and irrevocably forfeited if Recipient
ceases to be an active full-time employee of the Company, a
Subsidiary or an Affiliate for any reason other than as a result
of an occurrence described in subparagraph (b) above. For
avoidance of doubt, all shares of Stock (if any) which have not
vested shall be automatically, immediately and irrevocably
forfeited if Recipient retires, whether prior to, at or after
normal retirement age. Upon forfeiture of any shares of Stock, all
right, title and interest of Recipient in such Stock, and in any
distributions contemplated by Paragraph 5 (other than cash
dividends received by Recipient pursuant to Paragraph 5 prior to
such forfeiture), shall thereupon cease; and all right, title and
interest in and to such Stock and distributions shall vest in the
Company, with no compensation or consideration to Recipient.
5. Distributions on Restricted Securities.
(a) Any securities or other property (other than cash) received as the
result of ownership of Restricted Securities ("Additional
Securities") including, but not by way of limitation, warrants and
securities received as a stock dividend or stock split, or as a
result of a recapitalization or reorganization, shall be held by
Escrow Holder in the same manner and subject to the same
restrictions as the Restricted Securities with respect to which
they were issued. Recipient shall be entitled to direct Escrow
Holder to exercise any warrant or option received as Additional
Securities upon supplying the funds necessary to do so, in which
event the securities so purchased shall constitute Additional
Securities, or Recipient may direct Escrow Holder to sell any such
warrant or option, in which case the proceeds shall be held by
Escrow Holder in accordance with the provisions of subparagraph
(b) below.
In the event any Restricted Securities or Additional Securities
consist of a security that is by its terms or otherwise
convertible into or exchangeable for another security at the
election of the holder thereof, Recipient may exercise any such
right of conversion or exchange in the event the failure to
exercise or delay in exercising such right would result in its
loss or diminution in value, and any securities so acquired shall
constitute Additional Securities. In the event of any change in
certificates evidencing Restricted Securities or Additional
Securities by reason of any recapitalization, reorganization or
other transaction which results in the creation of Additional
Securities, Escrow Holder is authorized to deliver to the issuer
the certificates evidencing Restricted Securities or Additional
Securities in exchange for the certificates which they replace,
which shall be deemed to be Additional Securities.
(b) All cash dividends payable in respect of any Restricted Securities
shall be paid to Recipient on the dividend payment date on which
such cash dividends are paid to other registered holders of the
Company's Common Stock. The Company shall deliver to Escrow Holder
for the account of Recipient all distributions, other than cash
dividends on the Restricted Securities, paid or made in cash with
respect to Restricted Securities and Additional Securities ("Cash
Distributions"). Escrow Holder shall hold all such Cash
Distributions until deliverable to Recipient in accordance with
subparagraph (c) below.
(c) Concurrently with the delivery to Recipient, pursuant to Paragraph
3 above, of certificates evidencing any shares of Stock that have
vested and therefore are no longer Restricted Securities, Escrow
Holder shall also deliver to Recipient (i) one or more
certificates evidencing all shares of Additional Securities
distributed to Escrow Holder in respect of such Stock (which
certificate(s) shall not contain the legend referred to in
Paragraph 3 above) and (ii) all Cash Distributions received by
Escrow Holder in respect of such Stock and Additional Securities,
less any applicable federal or state withholding taxes.
6. Taxes
(a) Recipient agrees to make appropriate arrangements for the
satisfaction of any applicable federal, state or local income,
employment or other tax withholding requirements (collectively,
the "Taxes") applicable to the receipt of Stock hereunder upon the
lapse of restrictions with respect thereto or upon the exercise of
an election by Recipient under Section 83(b) of the Internal
Revenue Code.
(b) Upon demand, Recipient shall promptly pay to the Company the
amount of all applicable Taxes that the Company is required to
withhold and pay on behalf of Recipient with respect to the shares
of Stock issued hereunder. At its discretion, the Company may
withhold any distribution under this Agreement in whole or in part
until such payment is made to the Company. In lieu thereof, the
Company or an Affiliate may withhold such amounts as are necessary
to pay such Taxes from any fees, salary, bonus or other amounts
payable by the Company or an Affiliate to Recipient, or the
Company may withhold a number of shares of Stock having a market
value not exceeding the amount of such Taxes and cancel (in whole
or in part) any such shares in order to satisfy the payment of
such Taxes. Alternatively, the Recipient may elect to have the
Company withhold a number of shares of Stock having a market value
not exceeding the amount of such Taxes. In determining the market
value of shares of Stock for purposes of paying Taxes pursuant to
this subparagraph (b), the Company shall use (i) in the case of
Taxes arising as a result of the lapse of restrictions with
respect to shares of Stock, the closing price of a share of Stock
on the New York Stock Exchange on the date that such restrictions
lapse, and (ii) in the case of Taxes arising as a result of a
timely and valid exercise by Recipient of an election under
Section 83(b) of the Internal Revenue Code, the closing price of a
share of Stock on the New York Stock Exchange on the date of
issuance of the shares of Stock subject to such election.
7. Committee Decisions Conclusive. All decisions of the Committee upon any
question arising under the Plan or under this Agreement shall be final
and binding on all parties.
8. No Right to Continued Employment, etc. Nothing in this Agreement, the
Restricted Stock Award granted hereunder or any other agreement entered
into pursuant hereto (i) shall confer upon Recipient the right to
continue in the employ of the Company, any Subsidiary or any Affiliate
or to be entitled to any remuneration or benefits not set forth herein
or in any such other agreement or
(ii) interfere with or limit in any way the right of the Company or any
such Subsidiary or Affiliate to terminate Recipient's employment.
9. Notice. Any notice or other paper required to be given or sent pursuant
to the terms of this Agreement shall be sufficiently given or served
hereunder to any party when transmitted by registered or certified mail,
postage prepaid, addressed to the party to be served as follows:
Company: CNF Inc., 3240 Hillview Avenue, Palo Alto, California 94304
Attn.: Corporate Secretary
Recipient: At Recipient's address as it appears under Recipient's
signature to this Agreement, or to such other address as
Recipient may specify in writing to Escrow Holder
2
Any party may designate another address for receipt of notices so long
as notice is given in accordance with this Paragraph 9.
10. Amendment; Modification. This Agreement may not be modified or amended,
and any provision hereof may not be waived, except pursuant to a written
agreement signed by the Company and Recipient. Any such modification,
amendment or waiver signed by, or binding upon, Recipient, shall be
valid and binding upon any and all persons or entities who may, at any
time, have or claim any rights under or pursuant to this Agreement.
11. Severability. If any provision of this Agreement shall be invalid or
unenforceable, such invalidity or unenforceability shall attach only to
such provision and shall not in any manner affect or render invalid or
unenforceable any other severable provision of this Agreement, and this
Agreement shall be carried out as if such invalid or unenforceable
provision were not contained herein.
12. Successors. Except as otherwise expressly provided herein, this
Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective heirs, executors, administrators,
successors and assigns.
13. Governing Law. The interpretation and enforcement of this Agreement
shall be governed by the internal laws of the State of California
without regard to principles of conflicts of laws.
14. Counterparts. This Agreement may be executed in counterparts, all of
which taken together shall be deemed one original.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date first above written.
EXECUTIVE OFFICER CNF INC.
By: ________________________ By: __________________________
Address:
Escrow Holder By: _____________________________