EXHIBIT 99.2
CON-WAY INC.
1993 DEFERRED COMPENSATION PLAN FOR EXECUTIVES AND KEY EMPLOYEES
TABLE OF CONTENTS
Preamble
Article 1 Definitions
1.1 Account Balance
1.2 Annual Bonus
1.3 Annual Deferral Amount
1.4 Base Annual Salary
1.5 Beneficiary
1.6 Beneficiary Designation Form
1.7 Board
1.8 Cash Account
1.9 CFC
1.10 Change in Control
1.11 Claimant
1.12 Code
1.13 Committee
1.14 Common Stock
1.15 Company
1.16 Disability
1.17 Distribution Event
1.18 Dividend Equivalent
1.19 Election Form
1.20 Employer
1.21 Fair Market Value
1.22 Moody's Seasoned Corporate Bond Rate
1.23 Participant
1.24 Phantom Stock Account
1.25 Phantom Stock Unit
1.26 Plan
1.27 Plan Entry Date
1.28 Plan Year
1.29 Pre-Retirement Distribution
1.30 Pre-Retirement Survivor Benefit
1.31 Prior Plan
1.32 Retirement
1.33 Retirement Benefit
1.34 ROE Award
1.35 Termination Benefit
1.36 Termination of Employment
1.37 Unforeseeable Financial Emergency
1.38 Value Management Award
Article 2 Selection, Enrollment, Eligibility
2.1 Selection by Committee
2.2 Enrollment Requirement
2.3 Commencement of Participation
Article 3 Deferral Commitments/Returns
3.1 Minimum Deferral
3.2 Maximum Deferral
3.3 Election to Defer
3.4 Withholding of Deferral Amounts
3.5 FICA Tax
3.6 Returns and Crediting of Phantom Stock Units and
Dividend Equivalents During Deferral Period11
3.7 Date Through Which Crediting under Section 3.6 Occurs
3.8 Cash Account Returns and Installment Distributions
3.9 Phantom Stock Account Distributions
3.10 Statement of Accounts
Article 4 Pre-Retirement Distribution/Unforeseeable
Financial Emergencies
4.1 Pre-Retirement Distributions
4.2 Withdrawal Payout/Suspensions for Unforeseeable
Financial Emergencies
Article 5 Retirement Benefit
5.1 Retirement Benefit
5.2 Payment of Retirement Benefit
5.3 Death Prior to Completion of Retirement Benefit
Article 6 Pre-Retirement Survivor Benefit
6.1 Pre-Retirement Survivor Benefit
6.2 Payment of Pre-Retirement Survivor Benefit
Article 7 Termination Benefit
7.1 Termination Benefit
7.2 Payment of Termination Benefit
Article 8 Disability Waiver and Benefit
8.1 Disability Waiver
8.2 Disability Benefit
Article 9 Beneficiary Designation
9.1 Beneficiary
9.2 Beneficiary Designation
9.3 Spousal Consent
9.4 No Beneficiary Designation
9.5 Doubt as to Beneficiaries
9.6 Discharge of Obligations
Article 10 Leave of Absence
10.1 Paid Leave of Absence
10.2 Unpaid Leave of Absence
Article 11 Termination, Amendment or Modification
11.1 Termination
11.2 Amendment
11.3 Effect of Payment
Article 12 Administration
12.1 Committee Duties
12.2 Agents
12.3 Binding Effect of Decisions
12.4 Indemnification
12.5 Stock Subject to the Plan
12.6 Equitable Adjustment
Article 13 Claims Procedures
13.1 Presentation of Claim
13.2 Notification of Decision
13.3 Review of a Denied Claim
13.4 Decision on Review
13.5 Legal Action
Article 14 Miscellaneous
14.1 Unsecured General Creditor
14.2 Employer's Liability
14.3 Company's Liability
14.4 Nonassignability
14.5 Not a Contract of Employment
14.6 Furnishing Information
14.7 Captions
14.8 Governing Use
14.9 Notice
14.10 Successors
14.11 Spouse's Interest
14.12 Incompetent
14.13 Distribution in the Event of Taxation
14.14 Legal Fees To Enforce Rights
14.15 Payment of Withholding
14.16 Coordination with Other Benefits
14.17 Value Management Deferral Amounts Subsequently
Deferred
CON-WAY INC.
1993 DEFERRED COMPENSATION PLAN FOR EXECUTIVES AND KEY EMPLOYEES
Preamble
The purpose of this Plan is to enhance the motivational value of the salaries
and incentive compensation of a select group of management and highly
compensated employees who contribute materially to the continued growth,
development and future business success of the Company and its subsidiaries
by providing them the opportunity to defer cash compensation. The Plan is
intended to aid the Company and its subsidiaries in attracting and retaining
key employees and give them an incentive to increase the profitability of the
Company and its subsidiaries. In the future, the Company, in its discretion,
may amend the Plan to include a Company contribution.
The Company adopted this Plan effective October 1, 1993 as a successor to the
Prior Plan, which operated for the nine month period ending September 30,
1993. The Plan was restated with a general effective date of January 1,
1996. The Company's name changed in connection with a corporate
reorganization involving the distribution on December 2, 1996 of CFC stock to
the Company's shareholders. In order to reflect the new Company name and to
make various administrative and clarifying changes, the Company adopted a
restatement of the Plan effective January 1, 1998. The Company further
amended and restated the Plan effective January 1, 2008.
ARTICLE 1
Definitions
For purposes hereof, unless otherwise clearly apparent from the context, the
following phrases or terms shall have the following indicated meanings:
1.1 "Account Balance" means the sum of (i) amounts credited to a
Participant's Cash Account, plus (ii) Phantom Stock Units credited to a
Participant's Phantom Stock Account, reduced by (iii) all distributions
made pursuant to the terms and conditions of this Plan. Amounts
credited to a Participant's Cash Account shall derive from Annual
Deferral Amounts, the Participant's deferred ROE Awards and deferred
Value Management Awards, in the latter two cases to be credited as of
the date immediately following the end of the applicable award cycle.
1.2 "Annual Bonus" means any bonus or incentive compensation, other than an
ROE Award or a Value Management Award, earned by a Participant in each
Plan Year under all cash bonus and incentive plans of the Company, and
any subsidiary, whether or not paid in such Plan Year.
1.3 "Annual Deferral Amount" means that portion of a Participant's Base
Annual Salary and Annual Bonus that a Participant elects to have and is
deferred, in accordance with Article 3, for any one Plan Year. In the
event of Retirement, Disability, death or a Termination of Employment
prior to the end of a Plan Year, such year's Annual Deferral Amount
shall be the actual amount withheld prior to such event.
1.4 "Base Annual Salary" means a Participant's base annual salary that is
to be paid to a Participant for each Plan Year, determined as of the
first day of that year, excluding bonuses, commissions, overtime,
incentive payments, non-monetary awards, and other fees, before
reduction for compensation deferred pursuant to all qualified,
nonqualified and Internal Revenue Code Section 125 plans of the Company
or any subsidiary.
1.5 "Beneficiary" means one or more persons, trusts, estates or other
entities, designated in accordance with Article 9, that are entitled to
receive benefits under this Plan upon the death of a Participant.
1.6 "Beneficiary Designation Form" means the form established from time to
time by the Committee that a Participant completes, signs and returns
to the Committee to designate one or more Beneficiaries. A Participant
may complete and return the Beneficiary Designation Form electronically
and such electronic transmission shall be treated as a valid signature.
1.7 "Board" means the Board of Directors of the Company.
1.8 "Cash Account" shall mean that portion of a Participant's Account
Balance that is not credited to such Participant's Phantom Stock
Account.
1.9 "CFC" means Consolidated Freightways Corporation, a Delaware
corporation.
1.10 "Change in Control" means the occurrence of an event described in any
one of the following clauses (a) through (f):
(a) any "person," as such term is used in Sections 13(d) and 14(d)
of the Exchange Act (other than (A) the Company or its
affiliates, (B) any trustee or other fiduciary holding
securities under an employee benefit plan of the Company or
its affiliates, and (C) any corporation owned, directly or
indirectly, by the shareholders of the Company in
substantially the same proportions as their ownership of the
common stock, par value $0.625 per share, of the Company), is
or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities
of the Company (not including in the securities beneficially
owned by such person any securities acquired directly from the
Company or its affiliates) representing 25% or more of the
combined voting power of the Company's then outstanding voting
securities;
(b) the following individuals cease for any reason to constitute a
majority of the number of directors then serving: individuals
who, on the effective date, constitute the Board and any new
director (other than a director whose initial assumption of
office is in connection with an actual or threatened election
contest, including but not limited to a consent solicitation,
relating to the election of directors of the Company) whose
appointment or election by the Board or nomination for
election by the Company's stockholders was approved or
recommended by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors on
the effective date or whose appointment, election or
nomination for election was previously so approved or
recommended;
(c) there is consummated a merger or consolidation of the Company
or any direct or indirect subsidiary of the Company with any
other corporation, other than (A) a merger or consolidation
which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into
voting securities of the surviving or parent entity) more than
50% of the combined voting power of the voting securities of
the Company or such surviving or parent entity outstanding
immediately after such merger or consolidation or (B) a merger
or consolidation effected to implement a recapitalization of
the Company (or similar transaction) in which no "person" (as
defined above), directly or indirectly, acquired 25% or more
of the combined voting power of the Company's then outstanding
securities (not including in the securities beneficially owned
by such person any securities acquired directly from the
Company or its affiliates);
(d) the stockholders of the Company approve a plan of complete
liquidation of the Company or there is consummated an
agreement for the sale or disposition by the Company of assets
having an aggregate book value at the time of such sale or
disposition of more than 75% of the total book value of the
Company's assets on a consolidated basis (or any transaction
having a similar effect), other than any such sale or
disposition by the Company (including by way of spin-off or
other distribution) to an entity, at least 50% of the combined
voting power of the voting securities of which are owned
immediately following such sale or disposition by stockholders
of the Company in substantially the same proportions as their
ownership of the Company immediately prior to such sale or
disposition;
(e) there is consummated the sale or other disposition by the
Company, however effected, of at least two of the three
primary business units of the Company, whether in a single
transaction or in a series of transactions occurring within an
18-month period, and whether or not one or both of such
business units constitute part of a larger enterprise at the
time of the sale or other disposition; provided, however, that
this clause (e) shall apply only to grantees who are employed
by the Company and shall not apply to grantees who are
employed by the Company's business units; and provided
further, that the Board of Directors of the Company may, upon
notice to the affected grantees given at any time, terminate
this clause (e) without the consent of such grantees, except
that any such notice shall not be effective to terminate this
clause (e) if a Change in Control occurs pursuant to this
clause (e) within ninety (90) days after such notice is given;
or
(f) there is consummated the sale or other disposition, however
effected, of one of the primary business units of the Company,
or the sale or other disposition by the Company, however
effected, of the Emery Worldwide Airlines, Inc. business unit,
whether or not such business unit constitutes part of a larger
enterprise at the time of the sale or other disposition;
provided, however, that this clause (f) shall apply only to
grantees (i) who, immediately prior to such sale or other
disposition, were employed by the business unit that is sold
or otherwise disposed of and (ii) who are not employed by the
Company or any of its subsidiaries immediately following such
sale or other disposition.
As used in clauses (e) and (f) above:
(i) "primary business units" means Con-Way Transportation
Services, Inc., Emery Air Freight Corporation and Menlo
Logistics, Inc., and
(ii)a "sale or other disposition" of a business unit includes:
(A) a sale by the Company of the then outstanding
shares of capital stock of the business unit having
more than 50% of the then existing voting power of
all outstanding securities of the business unit,
whether by merger, consolidation or otherwise;
(B) the sale of all or substantially all of the
assets of the business unit; and
(C) any other transaction or course of action
(including, without limitation, a spin-off or other
distribution) engaged in, directly or indirectly,
by the Company or the business unit that has a
substantially similar effect as the transactions of
the type referred to in clause (A) or (B) above;
it being the intent that a sale or other disposition of a
business unit occurs even if (x) such business unit
constitutes part of a larger enterprise at the time of the
relevant sale or disposition transaction and (y) such sale
or disposition transaction involves such larger enterprise
(such as, by way of example and without limitation, when
one or more business units are subsidiaries of a common
parent and either (A) the common parent is spun-off or (B)
there is consummated a sale of the stock or other equity
interests in the common parent having more than 50% of the
then existing voting power of all outstanding securities
of the common parent).
The foregoing notwithstanding, (1) a sale or other disposition of a
business unit shall not be deemed to have occurred for purposes of
clauses (e) and (f) above (x) except in the case of a transaction
described in clause (B) above, so long as the Company or any of its
Affiliates (as such term is defined in Rule 12b-2 under the
Securities Exchange Act of 1934, as amended), individually or
collectively, own the then outstanding shares of capital stock of
the business unit having 50% or more of the then existing voting
power of all outstanding securities of the business unit, or (y) in
the event of the sale of shares of capital stock of the business
unit (or the sale of shares or other equity interests in any parent
company of such business unit) to any trustee or other fiduciary
holding securities under an employee benefit plan of the Company,
the business unit or any other Affiliate of the Company, and (2) a
sale or other disposition of a business unit shall not be deemed to
have occurred for purposes of clause (f) above in the event of the
sale or distribution of shares of capital stock (including, without
limitation, a spin-off) of the business unit to shareholders of the
Company, or the sale of assets of the business unit to any
corporation or other entity owned, directly or indirectly, by the
shareholders of the Company, in either case in substantially the
same proportions as their ownership of stock in the Company.
1.11 "Claimant" means any Participant or Beneficiary of a deceased
Participant who makes a claim for determination under Section 13.1.
1.12 "Code" means the Internal Revenue Code of 1986, as amended.
1.13 "Committee" means the Compensation Committee of the Board or its
delegates.
1.14 "Common Stock" means the common stock, par value $0.625 per share, of
the Company.
1.15 "Company" means Con-way Inc., a Delaware corporation.
1.16 "Disability" means a disability for which a Participant qualifies for
benefits under the Con-way Inc. Long Term Disability Plan as it may be
amended from time to time or, for Participants employed by CFC or one
of its subsidiaries, the Consolidated Freightways Corporation Long Term
Disability Plan or any successor plan.
1.17 "Distribution Event" shall mean: (a) in the case of a withdrawal for an
Unforeseeable Emergency, the date the Committee approves the payout,
(b) in the case of a Retirement Benefit, the date of Retirement, (c) in
the case of death, the date of death, (d) in the case of a Pre-
Retirement Survivor Benefit, the date of death, (e) in the case of a
Pre-Retirement Distribution, the first day of the Plan Year chosen by
the Participant on the Election Form for such distribution, (f) in the
case of a Termination Benefit, the date of Termination of Employment
(or the Payroll Termination Date, if applicable), and (g) in the case
of a Disability distribution, the date the Committee approves the
payout.
1.18 "Dividend Equivalent" means an amount representing the dividend paid on
that number of shares of Common Stock equal to the number of Phantom
Stock Units credited to a Participant's Phantom Stock Account as of the
record date for such dividend.
1.19 "Election Form" means the form established from time to time by the
Committee that a Participant completes, signs and returns to the
Committee to make an election under the Plan. A Participant may
complete and return the Election Form electronically and such
electronic transmission shall be treated as a valid signature.
1.20 "Employer" means the Company or any of its subsidiaries that employs a
Participant. CFC and its subsidiaries shall cease to be Employers
effective December 2, 1996, the date of distribution of the stock of
CFC to the Company's shareholders. No further deferral of compensation
by their employees shall be permitted under this Plan after that date.
The obligation to pay the Account Balance for such employees based on
deferral of compensation before that date shall be retained by the
Company.
1.21 "Fair Market Value" of a share of Common Stock as of a particular date
shall mean the closing price per share of Common Stock on the New York
Stock Exchange on the last trading day immediately preceding such date;
provided, however, that, with respect to calculations made pursuant to
Section 3.6(b), relating to the crediting of an Investment Change (as
defined in Section 3.3(b), the Fair Market Value of a share of Common
Stock shall mean the closing price per share of Common Stock on the New
York Stock Exchange on February 1 of the relevant year (or, if February
1 falls on a non-trading day, the immediately preceding trading day).
1.22 "Moody's Seasoned Corporate Bond Rate," means the arithmetic average of
yields of representative bonds, including industrials, public
utilities, Aaa, Aa, A and Baa bonds as published by Moody's Investors
Service, Inc. or any successor to that service. For each Plan Year,
this rate shall be determined by the Committee using the rate
calculated for the month of October preceding the Plan Year.
1.23 "Participant" for any Plan Year means any employee of an Employer who
is selected to participate in the Plan for such Plan Year by the
Committee and commences participation in accordance with Article 2.
1.24 "Phantom Stock Account" shall mean that portion of a Participant's
Account Balance which is credited with Phantom Stock Units as set forth
in Section 3.6(b).
1.25 "Phantom Stock Unit" shall mean a unit which shall at all times be
equal in value to one whole share of Common Stock.
1.26 "Plan" means the Company's 1993 Deferred Compensation Plan for
Executives and Key Employees, evidenced by this instrument, as amended
from time to time.
1.27 "Plan Entry Date" means the date on which an employee selected by the
Committee to participate in the Plan commences participation in the
Plan in accordance with Article 2. The Plan Entry Date shall be
January 1 of the Plan Year following selection by the Committee. If an
employee is first selected for participation in the Plan subsequent to
January 1 of a Plan Year, but prior to July 1, such July 1 shall be an
additional Plan Entry Date.
1.28 "Plan Year" means the period beginning on January 1 of each year (or,
in certain limited cases, July 1) and continuing through December 31 of
that year.
1.29 "Pre-Retirement Distribution" means the payout set forth in Section 4.1
below.
1.30 "Pre-Retirement Survivor Benefit" means the benefit set forth in
Article 6 below.
1.31 "Prior Plan" means the Company's 1993 Executive Deferral Plan adopted
effective January 1, 1993.
1.32 "Retirement", "Retires" or "Retired" means (i) early retirement as
defined in the Con-way Inc. Retirement Plan, if the Participant elects
within 60 days from the last day of regular employment to receive
monthly pension benefits under such Retirement Plan starting on the
first day of the month following the last day of employment, or (ii)
normal or deferred retirement under such Retirement Plan. The
distribution of the stock of CFC to the shareholders of the Company in
December 1996 shall not cause any employee of a subsidiary of CFC to be
retired. After such distribution, Retirement of an employee of CFC or
one of its subsidiaries for purposes of this Plan shall occur when the
employee has an early or normal retirement under the CFC Pension Plan.
1.33 "Retirement Benefit" means the benefit set forth in Article 5.
1.34 "ROE Award" means the Participant's award for a three-year award cycle
under the Con-way Inc. Return on Equity Plan.
1.35 "Termination Benefit" means the benefit set forth in Article 7.
1.36 "Termination of Employment" means the ceasing of employment with the
Company and its subsidiaries, voluntarily or involuntarily, for any
reason other than Retirement, Disability or death. The distribution of
the stock of CFC to the shareholders of the Company in December 1996
shall not cause any employee of a subsidiary of CFC to have a
Termination of Employment. After such distribution, Termination of
Employment of an employee of CFC or one of its subsidiaries for
purposes of this Plan shall occur when the employee ceases employment
with CFC and its subsidiaries for any reason other than Retirement,
Disability or death.
1.37 "Unforeseeable Financial Emergency" means an unanticipated emergency
that is caused by an event beyond the control of the Participant that
would result in severe financial hardship to the Participant resulting
from (i) a sudden and unexpected illness or accident of the Participant
or a dependent of the Participant, (ii) a loss of the Participant's
property due to casualty, or (iii) such other extraordinary and
unforeseeable circumstances arising as a result of events beyond the
control of the Participant, all as determined in the sole discretion of
the Committee.
1.38 "Value Management Award" means the Participant's Award for an award
cycle under the Con-way Inc. Value Management Plan, as amended from
time to time.
ARTICLE 2
Selection, Enrollment, Eligibility
2.1 Selection by Committee. Participation in the Plan shall be limited to
a select group of management and highly compensated employees of the
Company and its subsidiaries. The Committee shall select for each Plan
Year, in its sole discretion, those employees eligible to participate
in the Plan for that Plan Year.
..
2.2 Enrollment Requirement. The Committee shall establish from time to
time such enrollment requirements as it determines in its sole
discretion are necessary.
2.3 Commencement of Participation. Provided an employee selected to
participate in the Plan has met all enrollment requirements set forth
by the Committee, that employee shall commence participation in the
Plan on the Plan Entry Date that immediately follows the employee's
election to participate in the Plan.
ARTICLE 3
Deferral Commitments/Returns
The Company continues to maintain this Plan, however deferrals elections
under this Plan ceased on December 31, 2004 and no deferrals are permitted
under this Plan for compensation earned after that date. The Company's 2005
Deferred Compensation Plan for Executives and Key Employees governs the
deferral of compensation earned after December 31, 2004.
3.1 Minimum Deferral.
(a)Minimum. A Participant may not elect to defer less than $2,000 of
Base Annual Salary for any Plan Year, less than $2,000 of Annual
Bonus for any Plan Year, less than $2,000 of any ROE Award for an
award cycle, nor less than $2,000 of any Value Management Award for
any award cycle.
(b)Short Participation Year. If a Participant's Plan Entry Date is
July 1 of any Plan Year, he must defer a minimum of $1,000 of Base
Annual Salary, a minimum of $1,000 of Annual Bonus, a minimum of
$1,000 of any ROE Award, or a minimum of $1,000 of any Value
Management Award for such Plan Year.
3.2 Maximum Deferral.
(a)Salary and Annual Bonus. For each Plan Year, a Participant may defer
up to 100% of Base Annual Salary stated as a dollar amount and up to
100% of Annual Bonus stated as a dollar or percentage amount. The
amount of Base Annual Salary and/or Annual Bonus that a Participant
elects to defer shall be reduced by the Committee, without the
consent of the affected Participant, to the extent necessary to
provide for (i) other deferrals of Base Annual Salary and/or Annual
Bonus, as the case may be, by such Participant under all qualified
and nonqualified plans of the Company or any subsidiary and Code
Section 125 plans of the Company or any subsidiary, (ii) any taxes
that are required to be withheld with respect to deferrals under the
Plan, and (iii) any other amounts deducted from Base Annual Salary
and/or Annual Bonus pursuant to applicable law or authorization by
Participant.
(b)ROE Awards. For each three-year award cycle under the Con-way Inc.
Return on Equity Plan, a Participant who also participates in that
plan may defer up to 100 percent of the Participant's ROE Award for
that cycle stated as a dollar or percentage amount.
(c)Value Management Awards. For each award cycle under the Con-way
Inc. Value Management Plan (as amended from time to time), a
Participant who also participates in that plan may defer up to 100
percent of the Participant's Value Management Award for that award
cycle stated as a dollar or percentage amount.
3.3 Election to Defer.
(a)Annual Deferrals. The Participant shall make a deferral election by
delivering to the Committee a completed and signed Election Form
prior to the intended Plan Entry Date. For each succeeding Plan
Year, a new Election Form must be delivered to the Committee, in
accordance with the rules set forth above. If the Election Form is
not delivered prior to the Plan Entry Date for a Plan Year, no
Annual Deferral Amount shall be deferred for that Plan Year and no
ROE Award or Value Management Award shall be deferred for the award
cycle beginning with that Plan Year.
(b)Annual Election of Phantom Stock Units. During January of each Plan
Year, each Participant shall have the opportunity to elect (an
"Investment Change") to transfer all or a portion of such
Participant's Cash Account to such Participant's Phantom Stock
Account; provided, however, that an Investment Change may not be
elected with respect to any portion of a Participant's Cash Account
that has been designated for a Pre-Retirement Distribution, as
defined in Section 4.1 (the "Excluded Portion"). The amount to be
subject to an Investment Change may be determined as a dollar amount
or a percentage of the Participant's Cash Account (excluding the
Excluded Portion); provided, however, that no less than five
thousand dollars ($5,000) may be made subject to an Investment
Change. The amount subject to an Investment Change shall be
transferred in accordance with such Participant's conversion
election and Participants may elect to convert all, or less than
all, of one or more Plan Year Account Balances into Phantom Stock in
any order; provided, however, that if a Participant fails to make a
conversion election, the amount subject to an Investment Change
shall be transferred, first, from such Participant's earliest
deferral under the Plan, and thereafter from subsequent deferrals
under the Plan in the order in which they were elected until the
entire amount subject to the Investment Change shall have been
transferred. Each Investment Change made pursuant to this Section
3.3(b) shall be irrevocable. An Investment Change shall be
effective as of February 1 of the Plan Year in which the election is
made. The number of Phantom Stock Units to be credited to a
Participant's Phantom Stock Account pursuant to an Investment Change
shall be determined in accordance with Section 3.6(b).
3.4 Withholding of Deferral Amounts. For each Plan Year, the Base Annual
Salary portion of the Annual Deferral Amount shall be withheld each
payroll period in equal amounts from the Participant's Base Annual
Salary. The Annual Bonus portion of the Annual Deferral Amount shall
be withheld at the time or times the Annual Bonus is or otherwise would
be paid to the Participant. The deferred portion of an ROE Award, and
the deferred portion of a Value Management Award, shall be withheld at
the time such ROE Award or Value Management Award otherwise would be
paid to the Participant.
3.5 FICA Tax. Any applicable FICA and other payroll taxes on amounts
deferred under this Article, including ROE Awards and Value Management
Awards, may be withheld from that portion of the Participant's Base
Salary, Annual Bonus, ROE Award and/or Value Management Award that is
not being deferred. If necessary, the Committee may reduce the amount
of Base Annual Salary, Annual Bonus, ROE Award and/or Value Management
Award deferred, in order to enable the Company to withhold all
applicable FICA and other payroll taxes on amounts deferred under this
Article.
3.6 Returns and Crediting of Phantom Stock Units and Dividend Equivalents
During Deferral Period. Prior to any distribution of benefits under
Articles 4, 5, 6 or 7, returns in respect of a Participant's Cash
Account and Phantom Stock Units in respect of a Participants' Phantom
Stock Account shall be credited as follows:
(a)Cash Account. With respect to the portion of an Annual Deferral
Amount for a Plan Year which a Participant has elected to have
credited to his or her Cash Account, returns shall be credited to
such Participant's Cash Account as though such Annual Deferral
Amount was withheld on the Participant's Plan Entry Date for that
Plan Year. With respect to the portion of a deferred ROE Award or a
deferred Value Management Award which a Participant has elected to
have credited to his or her Cash Account, returns shall be credited
to such Participant's Cash Account as though the deferral amount was
withheld on the day immediately following the last day of the
applicable award cycle.
(i) The balance in each Participant's Cash Account shall be
compounded annually, using the Moody's Seasoned Corporate Bond
Rate, or such other rate as the Committee may determine in its
sole discretion prior to the beginning of a Plan Year.
(ii) Alternatively, a Participant may elect to have one or more
funds selected by the Participant from a list of available
funds apply to all or any portion of the Participant's Cash
Account. After any such election becomes effective, the
portion of Participant's Cash Account will no longer be
credited with interest based on the Moody's Seasoned Corporate
Bond Rate (or such other rate as the Committee may determine
in its sole discretion prior to the beginning of a Plan Year),
and the performance of the funds selected by the Participant
shall determine the gains or losses attributable to that
portion of such Participant's Cash Account. The list of
available funds will be those designated by the Con-way
Administrative Committee under the Company's 2005 Deferred
Compensation Plan for Executives and Key Employees, and the
Participant may select from among the available funds under
procedures substantially similar to the procedures that apply
under the 2005 plan. Effective January 1, 2007, any election
under this Section 3.6(a)(ii) shall take effect as of the date
that the election is made and shall be irrevocable.
Installment payouts shall be determined based on the value of
the Plan Year Account Balance fifteen (15) days prior to each
installment payment date or on an administratively reasonable
date as determined by the Committee. The amount of each
installment payment made with respect to each Plan Year
Account Balance shall be determined by dividing the
Participant's Plan Year Account Balance by the number of the
remaining installment payments (including the installment
payment being made at that time).
For this purpose, (x) amounts that are transferred to a
Participant's Phantom Stock Account in a Plan Year pursuant to an
Investment Change shall be credited with a return in respect of such
Plan Year equal to one-twelfth (1/12) of the return for the full
Plan Year and (y) in the event of Retirement, death or a Termination
of Employment prior to the end of a Plan Year, that Plan Year's
return will be calculated using a fraction of a full Plan Year's
return, based on the number of days the Participant was employed
with the Employer during the Plan Year prior to the occurrence of
such event.
(b)Phantom Stock Account. A Participant's Phantom Stock Account shall
consist of that number of Phantom Stock Units credited with respect
to (i) amounts transferred pursuant to an Investment Change in
accordance with Section 3.3(b) and (ii) Dividend Equivalents
credited in respect of Phantom Stock Units previously credited to
the Participant's Phantom Stock Account, in each case as set forth
below:
(i) The number of Phantom Stock Units to be credited to a
Participant's Phantom Stock Account pursuant to an Investment
Change shall be determined by dividing (A) the dollar amount
subject to the Investment Change by (B) the Fair Market Value
per share of Common Stock as of February 1 of the Plan Year to
which the Investment Change relates; and
(ii) The number of Phantom Stock Units to be credited to a
Participant's Phantom Stock Account in respect of Dividend
Equivalents shall be equal to (A) the per share dividend paid
on a share of Common Stock, multiplied by (B) the number of
Phantom Stock Units credited to the Participant's Phantom
Stock Account as of the record date for such dividend, divided
by (C) the Fair Market Value per share of Common Stock as of
the payment date for such dividend, such crediting to be made
as of such payment date.
3.7 Date Through Which Crediting under Section 3.6 Occurs. A Participant's
Cash Account will be credited with returns in accordance with Section
3.6 up to the Distribution Event for a lump sum and installment
payments; provided, however, that if a Distribution Event relates to a
Pre-Retirement Distribution, such Participant's Cash Account will be
credited with returns in accordance with Section 3.6 up to the last day
of the Plan Year immediately preceding such Distribution Event for lump
sum and installment payments. For purposes of crediting subsequent
returns in the event that installment payments are made, a
Participant's Cash Account shall be reduced as of the day on which the
distribution is made.
3.8 Cash Account Returns and Installment Distributions. In the event a
benefit is paid in installments, a Participant's unpaid Cash Account
shall be credited as follows:
(a)Crediting. For each Plan Year, the undistributed Cash Account shall
be credited with a return equal to the Moody's Seasoned Corporate
Bond Rate or such other rate as the Committee may determine in its
sole discretion prior to the beginning of a Plan Year. Returns
shall start to accrue under this Section 3.8 as of the date that
returns cease to accrue under Section 3.7 above.
(b)Installments. The installment payments shall be determined by
dividing the Participant's Cash Account at the time of the
commencement of the installment payments by the number of payments
over the installment period and shall be based on the value of the
Plan Year Account Balance as of fifteen (15) days prior to each
installment payment date or as of an administratively reasonable
date prior to each installment payment date as determined by the
Committee. Each payment determined above will be considered the
principal portion of the installment payment. In addition, each
installment payment will include a return calculated for the
preceding quarter using the rate determined in Section 3.8(a) above.
Installment payments shall commence on the first day of the quarter,
or within an administratively reasonable period of time thereafter,
following the first full quarter following such Participant's
Distribution Event. All additional installment payments shall be
paid on the first day of the remaining calendar quarters of the
payment period or within an administratively reasonable period of
time thereafter. The Committee shall have the authority to adjust
the amount of any future installment payments to reflect any
Investment Changes made since the most recent installment payment.
Payments made pursuant to this Section 3.8(b) within an
"administratively reasonable period" shall be made no later than 30
days following the first day of the quarter.
3.9 Phantom Stock Account Distributions. Unless the Committee, in its sole
discretion, elects to make all or part of a distribution in cash,
distributions from a Participant's Phantom Stock Account shall be made
in the form of (i) one share of Common Stock for each whole Phantom
Stock Unit, plus (ii) cash in lieu of any fractional Phantom Stock Unit,
determined based on the Fair Market Value of a share of Common Stock as
of the date of the Distribution Event. If a Participant's Phantom Stock
Account balance is to be distributed in installments, (a) the number of
shares of Common Stock to be delivered in a particular installment shall
be determined by dividing the number of Phantom Stock Units credited to
the Participant's Phantom Stock Account immediately prior to such
installment by the remaining number of installments (with any fractional
Phantom Stock Units paid in cash, in accordance with clause (i) above)
and (b) Dividend Equivalents shall continue to accrue and be credited to
such Participant's Phantom Stock Account in accordance with Section
3.6(b)(ii) during the installment period with respect to Phantom Stock
Units that remain credited to such Phantom Stock Account. Installment
payouts shall be determined based on the value of the Plan Year Account
Balance as of fifteen (15) days prior to each installment payment date
or as of an administratively reasonable date prior to each installment
payment date as determined by the Committee.
3.10 Statement of Accounts. The Committee shall send to each Participant,
within 120 days after the close of each Plan Year, a statement in such
form as the Committee deems desirable setting forth the amount of the
Participant's Account Balance.
ARTICLE 4
Pre-Retirement Distribution/
Unforeseeable Financial Emergencies
4.1 Pre-Retirement Distributions.
(a)In the event that a Participant elects to defer an Annual Deferral
Amount, an ROE Award and/or a Value Management Award in a Plan Year,
such Participant may, subject to subsection (b), elect to receive
all, but not less than all, of the amounts so deferred as a lump sum
distribution (A Pre-Retirement Distribution") on a specified date
prior to such Participant's Retirement. The Pre-Retirement
Distribution shall be in an amount equal to the amounts so deferred,
plus returns credited in accordance with Sections 3.6 and 3.7, and
shall be paid within 60 days following the first day of the Plan
Year chosen by the Participant on the Election Form for such
distribution. The earliest date that a Participant may receive a
Pre-Retirement Distribution is 5 years after the first day of the
Plan Year in which such deferral occurs.
(b)If a Participant who has elected one or more Pre-Retirement
Distributions has a Retirement or Termination of Employment before
the start of the Plan Year chosen by the Participant for such Pre-
Retirement Distribution, the Participant's Account Balance shall be
paid at the time and in the form elected by the Participant in
accordance with Sections 5.2 or 7.2 respectively, and not as the
elected Pre-Retirement Distribution.
4.2 Withdrawal Payout/Suspensions for Unforeseeable Financial Emergencies.
If the Participant experiences an Unforeseeable Financial Emergency,
the Participant may petition the Committee to (i) suspend any deferrals
required to be made by a Participant and/or (ii) receive a partial or
full payout from the Plan. The Committee may, in its sole discretion,
accept or deny such petition. Any payout shall not exceed the lesser
of the Participant's Account Balance, calculated as if such Participant
were receiving a Termination Benefit, or the amount reasonably needed
to satisfy the Unforeseeable Financial Emergency. The suspension shall
continue for such period of time and/or the reinstatement of deferrals
shall occur at a date, as specified by the Committee, in its sole
discretion. If reinstated, the deduction in each pay period shall not
exceed that made immediately prior to the suspension. If the petition
for a suspension and/or payout is approved, suspension shall take
effect upon the date of approval and any payout shall be made within
60 days of the date of approval.
ARTICLE 5
Retirement Benefit
5.1 Retirement Benefit. A Participant who Retires shall receive, as a
Retirement Benefit, the Participant's Account Balance.
5.2 Payment of Retirement Benefit. A Participant may elect on the Election
Form prior to the beginning of each Plan Year to receive the Retirement
Benefit in a lump sum or in quarterly payments over a period of 5, 10,
15 or 20 years. The lump sum payment shall be made within 60 days of
the Participant's Retirement. Any installment payment shall be made in
accordance with Section 3.8 and 3.9 above. Except for employees of CFC
and its subsidiaries, who shall receive payment of amounts deferred for
each Plan Year (including returns) in the form elected on the Election
Form for that Plan Year, an election of the form of Retirement Benefit
shall be effective for a Retirement occurring in the second Plan Year
following the Plan Year for which the Election Form is submitted or in
any subsequent Plan Year until superseded by a new election. No
election of the form of Retirement Benefit shall be effective before
the first day of such second Plan Year, except as follows:
(a)Upon a Retirement in a Participant's first Plan Year of
participation, the election made on the Election Form for such Plan
Year shall determine the form of payment. Upon a Retirement in a
Participant's second Plan Year of participation, the election made
on the Election Form for the preceding Plan Year shall determine
the form of payment.
(b)In the Election Form for 1998, a Participant may elect to have the
Election Form for 1997 control the form of payment upon a Retirement
in 1998 instead of the Election Form for 1996.
Notwithstanding the foregoing, if the balance in a Participant's Cash
Account plus the Fair Market Value of the shares of Common Stock
underlying the Phantom Stock Units credited to such Participant's
Phantom Stock Account is less than $25,000 (or such other dollar amount
designated by the Committee from time to time in its sole discretion)
on the date of Retirement, such Account Balance shall be paid to the
Participant in a lump sum as soon as practicable following the date of
such Retirement.
5.3 Death Prior to Completion of Retirement Benefit. If a Participant dies
after Retirement but before the Retirement Benefit is paid in full, the
Participant's unpaid Retirement Benefit payments shall continue and
shall be paid to the Participant's Beneficiary (i) over the remaining
number of calendar quarters and in the same amounts as that benefit
would have been paid to the Participant had the Participant survived,
or (ii) the then current Account Balance as of the date of death, in a
lump sum, if allowed in the sole discretion of the Committee upon
application by the Beneficiary.
ARTICLE 6
Pre-Retirement Survivor Benefit
6.1 Pre-Retirement Survivor Benefit. If a Participant dies before he
Retires, experiences a Termination of Employment or suffers a
Disability, the Participant's Beneficiary shall receive a
Pre-Retirement Survivor Benefit equal to the Participant's Account
Balance as of the date of death.
6.2 Payment of Pre-Retirement Survivor Benefit. The Pre-Retirement
Survivor Benefit shall be paid to the Participant's Beneficiary in a
lump sum or, in the Committee's sole discretion upon application by the
Beneficiary, in installments according to the election of the
Participant that would have been in effect if the Participant had
Retired on the date of death. The lump sum payment shall be made
within 60 days of the Committee's receiving proof of the Participant's
death.
ARTICLE 7
Termination Benefit
7.1 Termination Benefit. If a Participant experiences a Termination of
Employment prior to Retirement, death or Disability, the Participant
shall receive a Termination Benefit which shall be equal to the
Participant's Account Balance determined as of the date of the
Termination of Employment.
7.2 Payment of Termination Benefit. The Termination Benefit shall be the
then current Account Balance as of the date of Termination of
Employment, paid in a lump sum within 60 days after the Termination of
Employment or in installments as the Participant elected on the
Election Form in effect at the time of the Termination of Employment
under the rules in 5.2. Notwithstanding the foregoing, payment shall
be made in a lump sum as follows in lieu of any different form provided
on the Election Form then in effect:
(a)If the Participant incurs a Termination of Employment within one
year after a Change in Control, the Termination Benefit shall be
paid in a lump sum within 20 days of the Termination of Employment.
(b)If the balance in a Participant's Cash Account plus the Fair Market
Value of the shares of Common Stock underlying the Phantom Stock
Units credited to such Participant's Phantom Stock Account is less
than $25,000 (or such other dollar amount designated by the
Committee from time to time in its sole discretion) on the date of
such Participant's Termination of Employment, such Termination
Benefit shall be paid to the Participant in a lump sum as soon as
practicable following the date of such Termination of Employment.
ARTICLE 8
Disability Waiver and Benefit
8.1 Disability Waiver. A Participant who is determined by the Committee to
be suffering from a Disability shall be excused from fulfilling that
portion of the Annual Deferral Amount commitment that would otherwise
have been withheld from a Participant's Base Annual Salary or Annual
Bonus for the Plan Year or portion thereof during which the Participant
has a Disability.
8.2 Disability Benefit. A Participant suffering a Disability shall for
benefit purposes under this Plan, continue to be considered an employee
and shall be eligible for the benefits provided for in Articles 4, 5, 6
or 7 in accordance with the provisions of those Articles.
Notwithstanding, the Committee shall have the right, in its sole
discretion upon application by the Participant, to terminate a
Participant's participation in the Plan at any time during which such
Participant has a Disability and pay the Account Balance in a lump sum.
ARTICLE 9
Beneficiary Designation
9.1 Beneficiary. Each Participant shall designate a Beneficiary to receive
any benefits payable under the Plan upon the Participant's death.
9.2 Beneficiary Designation. A Participant shall designate a Beneficiary
by completing and signing the Beneficiary Designation Form, and
submitting it to the Committee or its delegate. A Participant shall
have the right to change a Beneficiary at any time without the consent
of the Beneficiary, by completing, signing and otherwise complying with
the terms of the Beneficiary Designation Form and the Committee's rules
and procedures, as in effect from time to time. Upon the receipt by
the Committee of a new Beneficiary Designation Form, all Beneficiary
designations previously filed shall be canceled. The Committee shall
be entitled to rely on the last Beneficiary Designation Form filed by
the Participant with the Committee prior to death.
9.3 Spousal Consent. A married Participant's designation of someone other
than the Participant's spouse as primary beneficiary shall not be
effective unless the spouse executes a consent in writing that
acknowledges the effect of the designation and is witnessed by a plan
representative or notary public. No consent is required if it is
established to the satisfaction of the Committee that consent cannot be
obtained because the spouse cannot be located.
9.4 No Beneficiary Designation. If a Participant fails to designate a
Beneficiary as provided above, the Participant's designated Beneficiary
shall be deemed to be the surviving spouse. If the Participant has no
surviving spouse, the benefits otherwise payable to a Beneficiary shall
be paid to the Participant's estate.
9.5 Doubt as to Beneficiaries. If the Committee has any doubt as to the
proper Beneficiary to receive payments pursuant to this Plan, the
Committee shall have the right, exercisable in its discretion, to
withhold such payments until the matter is resolved to the Committee's
satisfaction, and/or to require indemnification.
9.6 Discharge of Obligations. The payment of benefits under the Plan to a
Participant or Participant's Beneficiary shall fully and completely
discharge the Company and the Participant's Employer from all
obligations under this Plan with respect to the deceased Participant,
Beneficiaries, and any others that may be entitled to such benefits.
ARTICLE 10
Leave of Absence
10.1 Paid Leave of Absence. If a Participant is authorized by the Company
to take a paid leave of absence, the Participant shall continue to be
considered employed by the Employer and the Base Annual Salary and
Annual Bonus deferred by the Participant shall continue to be withheld
during such paid leave of absence in accordance with Section 3.4.
10.2 Unpaid Leave of Absence. If a Participant is authorized by the Company
to take an unpaid leave of absence, the Participant shall continue to
be considered employed by the Employer and the Participant shall be
excused from making deferrals until the earlier of the date the leave
of absence expires or the Participant returns to a paid employment
status. Upon such expiration or return, deferrals shall resume for the
remaining portion of the Plan Year in which the expiration or return
occurs, based on the deferral election, if any, made for that Plan
Year.
ARTICLE 11
Termination, Amendment or Modification
11.1 Termination. The Company reserves the right to terminate the Plan at
any time. Prior to a Change in Control, the Committee shall have the
right, at its sole discretion, and notwithstanding any elections made
by the Participant to pay the then outstanding Account Balance in a
lump sum. After a Change in Control the Company shall be required to
pay such benefits in a lump sum.
11.2 Amendment. The Board may, at any time, amend or modify the Plan in
whole or in part, provided, however, that no amendment or modification
shall deprive a Participant or a Beneficiary of a material right accrued
hereunder prior to the date of the amendment or materially and adversely
affect the payment of benefits to any Participant or Beneficiary who has
become entitled to the payment of benefits under the Plan as of the date
of the amendment or modification unless the Participant or Beneficiary
so affected consents in writing to the amendment or modification.
Notwithstanding the foregoing, the Board may amend the Plan
retroactively to the extent the Board is of the opinion that such an
amendment is required to avoid the imposition of additional tax
liabilities on a Participant under Code section 409A or to conform the
Plan to the provisions and requirements of any applicable law, provided
that no such amendment may reduce any Participant's Account Balance. No
such amendment shall be considered prejudicial to any interest of a
Participant or Beneficiary hereunder.
11.3 Effect of Payment. The full payment of the applicable benefit under
Articles 4, 5, 6 or 7 of the Plan shall completely discharge all
obligations to a Participant under this Plan.
ARTICLE 12
Administration
12.1 Committee Duties. This Plan shall be administered by the Committee or
its delegates. The Committee shall also have the discretion and
authority to make, amend, interpret, and enforce all appropriate rules
and regulations for the administration of this Plan and decide or
resolve any and all questions including interpretations of this Plan,
as may arise in connection with the Plan. A majority of the Committee
shall constitute a quorum and a majority of the members present at any
meeting at which a quorum is present or acts approved in writing or in
a telephone meeting by all of the members shall constitute a decision
by the entire Committee.
12.2 Agents. In the administration of this Plan, the Committee may, from
time to time, delegate to such persons as it deems appropriate such
administrative duties as it sees fit and may from time to time consult
with counsel who may be counsel to the Company or a subsidiary.
12.3 Binding Effect of Decisions. The decision or action of the Committee
with respect to any question arising out of or in connection with the
administration, interpretation and application of the Plan and the
rules and regulations promulgated hereunder shall be final and
conclusive and binding upon all persons having any interest in the Plan
unless determined pursuant to Article 13 (or another dispute resolution
procedure permitted by applicable law) to have been arbitrary and
capricious.
12.4 Indemnification. The Company shall indemnify and hold harmless the
named fiduciaries and any officers or employees of the Company and its
subsidiaries to which fiduciary responsibilities have been delegated
from and against any and all liabilities, claims, demands, costs and
expenses including attorneys fees, arising out of an alleged breach in
the performance of their fiduciary duties under the Plan and ERISA,
other than such liabilities, claims, demands, costs and expenses as may
result from the gross negligence or willful misconduct of such person.
The Company shall have the right, but not the obligation, to conduct
the defense of such person in any proceeding to which this paragraph
applies.
12.5 Stock Subject to the Plan. Unless otherwise determined by the Board,
shares of Common Stock utilized for purposes of distributions pursuant
to Section 3.9 shall consist of shares held in the Company's treasury.
12.6 Equitable Adjustment. In the event that the Committee shall determine
that any dividend or other distribution (whether in the form of cash or
Common Stock or other property), or recapitalization, Common Stock
split, reverse split, reorganization, merger, consolidation, spin-off,
combination, repurchase, or share exchange, or other similar corporate
transaction or event affects the Common Stock such that an adjustment
is appropriate in order to prevent dilution or enlargement of the
rights of Participants under the Plan, then the Committee shall make
such equitable changes or adjustments as it deems necessary to any or
all of the number of Phantom Stock Units credited to Participants'
Phantom Stock Accounts and/or the number and kind of shares of stock to
which such Phantom Stock Units relate or that may be thereafter be
distributed in respect of amounts credited to a Participant's Phantom
Stock Account.
ARTICLE 13
Claims Procedures
13.1 Presentation of Claim. Any Participant or Beneficiary of a deceased
Participant may deliver to the Committee a written claim for a
determination with respect to the amounts distributable to such
Claimant from the Plan. If such a claim relates to the contents of a
notice received by the Claimant, the claim must be made within 60 days
after such notice was received by the Claimant. All other claims must
be made within 180 days of the date on which the event that caused the
claim to arise occurred. The claim must state with particularity the
determination desired by the Claimant.
13.2 Notification of Decision. The Committee shall consider a Claimant's
claim within a reasonable time, and shall notify the Claimant in
writing:
(a)that the Claimant's requested determination has been made, and that
the claim has been allowed in full; or
(b)that the Committee has reached a conclusion contrary, in whole or in
part, to the Claimant's requested determination, and such notice
must set forth in a manner calculated to be understood by the
Claimant:
(i) the specific reason(s) for the denial of the claim, or any
part of it;
(ii) specific reference(s) to pertinent provisions of the Plan upon
which such denial was based;
(iii) a description of any additional material or information
necessary for the Claimant to clarify or perfect the claim,
and an explanation of why such material or information is
necessary; and
(iv) an explanation of the claim review procedure set forth in
Section 13.3 below.
13.3 Review of a Denied Claim. Within 60 days after receiving a notice from
the Committee that a claim has been denied, in whole or in part, a
Claimant (or the Claimant's duly authorized representative) may file
with the Committee a written request for a review of the denial of the
claim. Thereafter, but not later than 30 days after the review
procedure began, the Claimant (or the Claimant's duly authorized
representative):
(a)may review pertinent documents;
(b)may submit written comments or other documents; and/or
(c)may request a hearing, which the Committee, in its sole discretion,
may grant.
13.4 Decision on Review. The Committee shall render its decision on review
promptly, and not later than 60 days after the filing of a written
request for review of the denial, unless a hearing is held or other
special circumstances require additional time, in which case the
Committee's decision must be rendered within 120 days after such date.
Such decision must be written in a manner calculated to be understood
by the Claimant and it must contain:
(a)specific reasons for the decision;
(b)specific reference(s) to the pertinent Plan provisions upon which
the decision was based; and
(c)such other matters as the Committee deems relevant.
13.5 Legal Action. A Claimant's compliance with the foregoing provisions of
this Article 13 is a mandatory prerequisite to a Participant's right to
commence any legal action with respect to any claim for benefits under
this Plan.
ARTICLE 14
Miscellaneous
14.1 Unsecured General Creditor. Participants and their Beneficiaries,
heirs, successors and assigns shall have no legal or equitable rights,
interest or claims in any property or assets of the Company or an
Employer. Any and all of the Company's assets shall be, and remain,
its general, unpledged and unrestricted assets. The Company's
obligation under the Plan shall be merely that of an unfunded and
unsecured promise to pay money in the future.
14.2 Employer's Liability. An Employer other than the Company shall have no
liability to a Participant or a Participant's Beneficiary for payment
of any benefits under the Plan.
14.3 Company's Liability. Amounts payable to a Participant or Beneficiary
under this Plan shall be paid from the general assets of the Company
(including without limitation the assets of any trust established to
fund payment of obligations hereunder) exclusively.
14.4 Nonassignability. Neither a Participant nor any other person shall
have the right to commute, sell, assign, transfer, pledge, anticipate,
mortgage or otherwise encumber, transfer, hypothecate or convey in
advance of actual receipt the amounts, if any, payable hereunder, or
any part thereof, which are, and all rights to which are expressly
declared to be unassignable and non-transferable, except that the
foregoing shall not apply to any family support obligations set forth
in a court order. No part of the amounts payable shall, prior to
actual payment, be subject to seizure or sequestration for the payment
of any debts, judgments, alimony or separate maintenance owed by a
Participant or any other person, nor be transferable by operation of
law in the event of a Participant's or any other person's bankruptcy or
insolvency.
14.5 Not a Contract of Employment. The terms and conditions of this Plan
nor any actions taken hereunder shall not be deemed to constitute a
contract of employment between the Company or an Employer and the
Participant, nor give Participant any right to be retained as an
employee of the Company or its subsidiaries. Such employment
relationship can be terminated at any time for any reason, with or
without cause, unless expressly provided in a written employment
agreement. This Plan shall only create a contractual obligation on the
part of the Company, and shall not be construed as creating a trust or
any fiduciary relationship.
14.6 Furnishing Information. A Participant will cooperate with the
Committee by furnishing any and all information requested by the
Committee and take such other actions as may be requested in order to
facilitate the administration of the Plan and the payments of benefits
hereunder, including but not limited to taking such physical
examinations as the Committee may deem necessary.
14.7 Captions. The captions of the articles, sections and paragraphs of
this Plan are for convenience only and shall not control or affect the
meaning or construction of any of its provisions.
14.8 Governing Use. The provisions of this Plan shall be construed and
interpreted according to the laws of the State of California.
14.9 Notice. Any notice or filing required or permitted to be given to the
Committee under this Plan shall be sufficient if in writing and
hand-delivered, or sent by registered or certified mail, return receipt
requested, to:
Con-way Inc.
Compensation Committee
1993 Deferred Compensation Plan for Executives and Key Employees
2855 Campus Drive, Suite 300
San Mateo, California 94403
Such notice shall be deemed given as of the date of delivery or, if
delivery is made by mail, as of the date shown on the postmark on the
receipt for registration or certification.
Any notice or filing required or permitted to be given to a Participant
under this Plan shall be sufficient if in writing and hand-delivered,
or sent by mail, to the last known address of the Participant.
14.10 Successors. The provisions of this Plan shall be binding upon and
inure to the benefit of the Company and its successors and assigns and
the Participant, the Participant's Beneficiaries, and their permitted
successors and assigns.
14.11 Spouse's Interest. The interest in the benefits hereunder of a spouse
of a Participant who has predeceased the Participant shall
automatically pass to the Participant and shall not be transferable by
such spouse in any manner, including but not limited to such spouse's
will, nor shall such interest pass under the laws of intestate
succession.
14.12 Incompetent. If the Committee determines in its discretion that a
benefit under this Plan is to be paid to a minor, a person declared
incompetent or to a person incapable of handling the disposition of
that person's property, the Committee may direct payment of such
benefit to the guardian, legal representative or person having the care
and custody of such minor, incompetent or incapable person. The
Committee may require proof of minority, incompetency, incapacity or
guardianship, as it may deem appropriate and/or such indemnification of
the Committee, the Company and the Participant's Employer and security,
as it deems appropriate, in its sole discretion, prior to distribution
of the benefit. Any payment of a benefit shall be a payment for the
account of the Participant and the Participant's Beneficiary, as the
case may be, and shall be a complete discharge of any liability under
the Plan for such payment amount.
14.13 Distribution in the Event of Taxation. If, for any reason, all or any
portion of a Participant's benefit under this Plan becomes taxable to
the Participant prior to receipt, a Participant may petition the
Committee for a distribution of assets sufficient to meet the
Participant's tax liability (including additions to tax, penalties and
interest). Upon the grant of such a petition, which grant shall not be
unreasonably withheld, the Company shall distribute to the Participant
immediately available funds in an amount equal to that Participant's
federal, state and local tax liability associated with such event of
taxation (which amount shall not exceed a Participant's accrued benefit
under the Plan), such tax liability shall be measured by using that
Participant's then current highest federal, state and local marginal
tax rate, plus the rates or amounts for the applicable additions to
tax, penalties and interest. If the petition is granted, the tax
liability distribution shall be made within 90 days of the date when
the Participant's petition is granted. Such a distribution shall
reduce the benefits to be paid under this Plan.
14.14 Legal Fees To Enforce Rights. If the Company has failed to comply with
any of its obligations under the Plan or any agreement thereunder or,
if the Company, the Participant's Employer or any other person takes
any action to declare the Plan void or unenforceable or institutes any
litigation or other legal action designed to deny, diminish or to
recover from any Participant the benefits intended to be provided, then
the Company irrevocably authorizes such Participant to retain counsel
chosen by the Participant and agrees to pay the reasonable legal fees
and expenses of the Participant incurred in connection with the
initiation or defense of any litigation or other legal action, whether
by or against the Company, or any director, officer, shareholder or
other person affiliated with the Company, or any successor thereto in
any jurisdiction, provided that such Participant prevails in such
action.
14.15 Payment of Withholding. As a condition of receiving benefits under the
Plan, the Participant shall pay the Company and/or the applicable
Employer not less than the amount of all applicable federal, state,
local and foreign taxes required by law to be paid or withheld relating
to the receipt or entitlement to benefits hereunder. The Company may
withhold taxes from any benefits paid and/or from Base Annual Salary or
Annual Bonus, in its sole discretion.
14.16 Coordination with Other Benefits. The benefits provided for a
Participant and Participant's Beneficiary under the Plan are in
addition to any other benefits available to such Participant under any
other plan or program for employees of the Company and its
subsidiaries. The Plan shall supplement and shall not supersede,
modify or amend any other such plan or program except as may otherwise
be expressly provided. In no event shall distributions under the Plan
prior to Retirement have the effect of increasing payments otherwise
due under the various retirement plans of the Company and its
subsidiaries.
14.17 Value Management Deferral Amounts Subsequently Deferred. The 2005 and
2006 portions of the Value Management Awards that were subject to
deferral elections made in December of 2002 and December of 2003 for
cycles that end on December 31, 2005 and December 31, 2006 shall not be
governed by this Plan, but shall be governed by the 2005 Deferred
Compensation Plan for Executives and Key Employees.
IN WITNESS WHEREOF, the Company has amended and restated this Plan as of
January 1, 2008.
Con-way Inc.
By: /s/ Jennifer W. Pileggi
-------------------------------
Jennifer W. Pileggi
Its:Senior Vice President, General
Counsel and Secretary