EXHIBIT 99.3
CON-WAY INC.
PERFORMANCE SHARE PLAN UNIT GRANT AGREEMENT
THIS AGREEMENT, granted on the 29th day of January, 2007 ("Grant Date"), by
Con-way Inc., a Delaware corporation (hereinafter called "Company") to [Name
of Executive] (hereinafter called "Recipient").
WITNESSETH:
WHEREAS, the Company has adopted the Con-way Inc. 2006 Equity and Incentive
Plan (the "Plan"), which Plan is incorporated into this Agreement by
reference;
WHEREAS, the Company encourages its executive officers to own securities of
the Company and thereby align their interests more closely with the interests
of the other stockholders of the Company, 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
Performance Share Plan Units provided for in this Agreement as an incentive
for increased efforts and successful achievements;
NOW, THEREFORE, the Company hereby grants to Recipient these Performance
Share Plan Units upon the following terms and conditions:
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. Performance Share Plan Units. As of the date of this Agreement, the
Company hereby grants Recipient ______ units pursuant to Section 13 of
the Plan, each representing the right to receive one (1) share of the
Company's Common Stock upon the Committee's certification of the
achievement of the performance goals set forth in Section 3 (hereinafter
called the "Performance Share Plan Units") or, if Recipient makes a
deferral pursuant to Section 5, the end of the applicable deferral
period. No cash payment is required for the Performance Share Plan
Units, although Recipient is required to provide for applicable taxes as
set forth in Section 6. The number of Performance Share Plan Units
granted hereunder shall be adjusted from time to time for changes in
capitalization, as provided in the Plan.
3. Vesting; Performance Goals.
(a) The Performance Share Plan Units shall vest upon the achievement of
the performance goals described in this Section 3, which are
measured at the end of the three-year period commencing January 1,
2007 and ending December 31, 2009 ("Performance Period"), 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 through the end of the
Performance Period.
(b) The number of Performance Share Plan Units that shall vest shall be
equal to fifty percent (50%) of the total number of Performance
Share Plan Units granted to Recipient under this Agreement
multiplied by (a) the percentage corresponding to the Company's
actual level of achievement of Revenue Growth goals shown in Table
1 of Appendix A, which product shall be further multiplied by (b)
the percentage corresponding to the Company's actual level of
Profitability shown in Table 2 of Appendix A. The Committee shall
have the authority to exercise "negative discretion" (as such term
is used in Treasury Regulation section 1.162-27(e)(2)(iii)) in its
sole discretion to reduce the level of achievement of such goals to
take into account the effects of acquisitions or dispositions
completed during the Performance Period. The definitions of
"Revenue Growth" and "Profitability" are set forth on Appendix B
attached hereto. The vesting percentages applicable to actual
levels of achievement of Revenue Growth between the levels
specified in Table 1 of Appendix A shall be determined by
interpolation.
(c) The achievement of the Revenue Growth and Profitability goals will
be certified by the Committee within 75 days after the end of the
Performance Period.
(d) As soon as practicable after Committee certification, shares of
Common Stock will be issued to Recipient, subject to satisfaction
of tax withholding obligations and compliance with securities laws
and other applicable laws. Any fractional Performance Share Unit
that vests shall be settled in cash and shall not be converted into
a fractional share of Common Stock. The determination of the
Committee regarding the extent to which the Revenue Growth and
Profitability goals have been achieved shall be based on the
audited financial statements of the Company.
(e) Notwithstanding the foregoing provisions of this Section 3, in the
case of Recipient's death, termination of Recipient's employment
with the Company, a Subsidiary or an Affiliate as a result of a
Disability, or 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), a pro rata portion of the Performance Share
Plan Units shall vest. Such pro rata portion shall equal the
number of Performance Share Plan Units that would have vested at
the target levels (i.e., 100%) of Revenue Growth and Profitability,
multiplied by a fraction, the numerator of which is the number of
full months elapsing in the Performance Period prior to Recipient's
death, Disability or a Change of Control, and the denominator of
which is 36.
As used herein, "Disability" means a substantial mental or physical
disability, as determined by the Committee in its sole discretion.
(f) For avoidance of doubt, except for settlement in cash of fractional
Performance Share Plan Units as provided in Section 3(d) above,
only shares of Common Stock shall be issuable upon the vesting of
Performance Share Plan Units, not cash.
4. Forfeiture. All Performance Share Plan Units (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 Section 3(e) above. For avoidance of doubt, all
Performance Share Plan Units (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.
5. Election to Defer. Recipient may elect to defer receipt of Common Stock
that otherwise would be issued upon vesting of the Performance Share
Plan Units by submitting to the Committee or its designee such forms as
the Committee shall prescribe for such purpose.
(a) A deferral election must be made not later than a date specified by
the Company, which shall not be later than the end of the second
year of the Performance Period (i.e., December 31, 2008), and must
specify the number of Performance Share Plan Units to which it
relates.
(b) Deferral elections shall be irrevocable, provided, however, that
the Committee may allow Recipient, in its discretion, to further
defer receipt of Common Stock beyond the date specified in the
original deferral election, subject to such restrictions as the
Committee shall determine.
(c) If Recipient dies or incurs a Disability (provided that such
Disability meets the requirements for a "disability' set forth in
the regulations promulgated under Section 409A of the Internal
Revenue Code) after vesting but prior to the payment of amounts
deferred under this Section 5, then all such amounts shall be paid
to Recipient or his or her designated beneficiary or estate as soon
as practicable, notwithstanding Recipient's deferral election.
(d) Any deferral made pursuant to this Section 5 is intended to comply
with Section 409A of the Internal Revenue Code and regulations
promulgated thereunder.
6. Taxes.
(a) Recipient agrees to make appropriate arrangements for the
satisfaction of any federal, state or local income, employment or
other tax withholding requirements (collectively, the "Taxes")
applicable to the receipt or vesting of Performance Share Plan
Units hereunder or the receipt of Common Stock issued pursuant to
this Agreement.
(b) The amount necessary to pay the Taxes may be delivered to the
Company by any of the following means (in addition to the Company's
right to withhold from any compensation or other amounts payable to
Recipient by the Company) or by a combination of such means: (i)
tendering a cash payment; (ii) authorizing the Company to withhold
shares of Common Stock from the shares of Common Stock otherwise
issuable hereunder, provided, however, that no shares of Common
Stock are withheld with a value exceeding the minimum amount of tax
required to be withheld by law; or (iii) delivering to the Company
owned and unencumbered shares of Common Stock.
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 (except as otherwise resolved or settled
pursuant to the claims procedures set forth in Section 15 of the Plan).
8. No Right to Continued Employment, etc. Nothing in this Agreement, the
Performance Share Plan Units granted hereunder or any other agreement
entered into pursuant hereto (a) 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 (b) interfere with or
limit in any way the right of the Company or any such Subsidiary or
Affiliate to terminate Recipient's employment.
9. No Rights as Stockholder Prior to Issuance; Securities Law Compliance.
The Recipient shall not have any rights as a stockholder of the Company
(including any rights to receive dividends or voting rights) by virtue
of this grant of Performance Share Plan Units prior to the time that
shares of the Company's Common Stock are issued in accordance with the
terms of this Agreement and the Plan. No shares of Common Stock shall be
issued upon the vesting of Performance Share Plan Units unless such
shares are either (a) then registered under the Securities Act or (b)
the Company has determined that such issuance would be exempt from the
registration requirements of the Securities Act. The award of
Performance Share Plan Units under this Agreement must also comply with
other applicable laws and regulations, and shares of Common Stock will
not be issued if the Company determines that such issuance would not be
in material compliance with such laws and regulations.
10. Notice. Any notice or other paper required to be given or sent pursuant
to the terms of this Agreement or the Plan 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: Con-way Inc.
2855 Campus Drive, Suite 300
San Mateo, CA 94403
Attn.: Corporate Secretary
Recipient:At Recipient's address as it appears under Recipient's
signature to this Agreement, or if different, the last address
provided by Recipient to the Company.
11. Transferability. None of the Performance Share Plan Units or any
beneficial interest therein may be transferred in any manner other than
by will or by the laws of descent and distribution. Notwithstanding the
foregoing, Recipient may designate a beneficiary for the shares of
Common Stock that may be issuable upon the vesting of the Performance
Share Plan Units, in the event of Recipient's death, by completing the
Company's approved beneficiary designation form and filing such form
with the Company's Human Resources Department. The terms of this
Agreement shall be binding upon Recipient's executors, administrators,
heirs, successors, and transferees.
12. Amendment; Modification. This Agreement may not be modified or amended,
and any provision hereof may not be waived, in either case in any manner
that has an adverse effect on the Recipient, except pursuant to a
written agreement signed by the Company and Recipient. The Company may
unilaterally modify or amend this Agreement so long as such modification
or amendment does not have an adverse effect on the 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.
13. 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.
14. 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.
15. Governing Law. The interpretation and enforcement of this Agreement
shall be governed by the internal laws of the State of Delaware without
regard to principles of conflicts of laws. Recipient hereby agrees to
submit to the jurisdiction and venue of the courts of the State of
California and Federal Courts of the United States of America located
within the County of Santa Clara for all actions relating to the
Performance Share Plan Units, the shares of Common Stock issued
thereunder, this Agreement, or the Plan. Recipient further agrees that
service may be made upon him or her in such action or proceeding by
first class, certified or registered mail, to the last address provided
to the Company.
16. Governing Plan Document. This award is subject to all the provisions of
the Plan, which hereby are incorporated herein, and is further subject
to all interpretations, amendments, rules and regulations which may from
time to time be promulgated and adopted pursuant to the Plan. In the
event of any conflict between the provisions of this Agreement and those
of the Plan, the provisions of the Plan shall control.
17. 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.
CON-WAY INC.
By:
Jennifer W. Pileggi
Sr VP General Counsel & Secretary
2855 Campus Drive, Suite 300
San Mateo, CA 94403
Acknowledgements: The undersigned Recipient acknowledges receipt of, and
understands and agrees to, the terms and conditions of this Performance Share
Plan Unit Grant Agreement and the Plan. Recipient further acknowledges that
as of the Grant Date, this Performance Share Plan Unit Grant Agreement and
the Plan set forth the entire understanding between Recipient and the Company
regarding the acquisition of stock in the Company under the Plan and
supersede all prior oral and written agreements on this subject.
RECIPIENT
By:_________________________
Name
[Address]
[Address]