EXHIBIT 99.1
CON-WAY INC.
PERFORMANCE SHARE PLAN UNIT GRANT AGREEMENT
THIS AGREEMENT, granted on the ____ day of _________, _____ ("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, as amended from time to time (as so amended, 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 Grant Date, the Company hereby
grants Recipient ______ units pursuant to Section 10 of the Plan [Note:
# of Units granted should be equal to the maximum # of Units issuable if
Earnings Per Share goal is achieved] (hereinafter called the
"Performance Share Plan Units"), subject to the achievement of the
performance goals described in Section 3 and Recipient's active full-
time employment with the Company, a Subsidiary, or an Affiliate at all
times during the period from the Grant Date through the applicable
Vesting Date for such Performance Share Plan Units as set forth in
Section 4. 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. Performance Goals.
(a) The issuance of Performance Share Plan Units pursuant to this
Agreement shall be subject to the achievement of the performance
goals described in this Section 3, which are measured as of the end
of the one-year period commencing January 1, 2008 and ending
December 31, 2008 ("Performance 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
7.
(b) The number of Performance Share Plan Units remaining available to
Recipient for vesting pursuant to Section 4 at the end of the
Performance Period (the "PSPUs Available for Vesting") shall be
equal to fifty percent (50%) of the total number of Performance
Share Plan Units multiplied by the percentage corresponding to the
Company's actual level of achievement of Earnings Per Share
("Earnings") goals shown in Table 1 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) or
any successor provision) in its sole discretion to reduce the level
of achievement of such goals. The definition of "Earnings Per
Share" is set forth on Appendix B attached hereto.
(c) The achievement of the Earnings goals will be certified by the
Committee within 75 days after the end of the Performance Period.
The determination of the Committee regarding the extent to which
the Earnings goals have been achieved shall be based on the audited
financial statements of the Company and shall be final, conclusive
and binding on Recipient.
(d) Notwithstanding the foregoing provisions of this Section 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), which
Change in Control occurs during the Performance Period, a pro rata
portion of the Performance Share Plan Units shall be characterized
as PSPUs Available for Vesting and shall be treated as Vested
Performance Share Plan Units as provided in Section 4(c) below.
Such pro rata portion shall equal the number of Performance Share
Plan Units that would have been characterized as PSPUs Available
for Vesting if the Company had achieved the target levels (i.e.,
100%) of Earnings goals, multiplied by a fraction, the numerator of
which is the number of full months elapsing in the Performance
Period prior to the Change in Control, and the denominator of which
is 12. Such pro rata portion of the Performance Share Plan Units
shall be deemed to be PSPUs Available for Vesting for all purposes
of this Agreement.
4. Vesting; Settlement.
The PSPUs Available for Vesting will vest (becoming "Vested Performance
Share Plan Units") on the dates (the "Vesting Dates") and in the manner
set forth in this Section 4, 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 Grant Date through the applicable
Vesting Date, and provided further that in no case shall the PSPUs
Available for Vesting vest before the date of the Committee's written
certification of the performance goal achievement under Section 3(c).
(a) The PSPUs Available for Vesting will become 100% vested on the
third anniversary of the Grant Date.
(b) Notwithstanding the foregoing provisions of Section 4(a), 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 Recipient's Normal Retirement, in each case at
any time after the end of the Performance Period, a pro rata
portion of the PSPUs Available for Vesting shall vest. Such pro
rata portion shall equal the number of PSPUs Available for Vesting,
multiplied by a fraction, the numerator of which is the number of
full months elapsing from the Grant Date to Recipient's death,
Disability or Normal Retirement, and the denominator of which is
36. Such pro rata portion of PSPUs Available for Vesting shall be
deemed to be Vested Performance Share Plan Units for all purposes
of this Agreement.
For purposes of this Agreement:
"Disability" means a substantial mental or physical
disability, as determined by the Committee in its sole discretion.
"Normal Retirement" means retirement on or after age 65
(Normal Retirement Date) or after attaining age 55 with combined
age in whole or partial years (rounded to the nearest whole month)
plus years of service (as defined in a retirement plan of the
Company, a Subsidiary or an Affiliate applicable to Recipient)
equal to at least 85 (the Rule of 85).
(c) Notwithstanding the foregoing provisions of Section 4(a), upon a
Change in Control applicable to Recipient (whether or not Recipient
remains an employee of the Company, a Subsidiary or Affiliate
following such Change in Control), all PSPUs Available for Vesting
shall immediately and fully vest and become Vested Performance
Share Plan Units; provided, however, that if such Change in Control
occurs after the Performance Period but prior to the date of the
Committee's written certification of the performance goal
achievement under Section 3(c), all PSPUs Available for Vesting
shall fully vest immediately following the Committee's written
certification of the performance goal achievement under Section
3(c).
(d) Each Vested Performance Share Plan Unit will be settled by the
delivery of one share of Common Stock to Recipient as soon as
practicable after the applicable Vesting Date with respect to each
such Vested Performance Share Plan Unit, subject to satisfaction of
tax withholding obligations and compliance with securities laws and
other applicable laws.
(e) For avoidance of doubt, only shares of Common Stock shall be
issuable upon the settlement of Vested Performance Share Plan
Units, not cash.
5. Forfeiture.
(a) All Performance Share Plan Units granted hereunder shall be
automatically, immediately and irrevocably forfeited (i) if
Recipient ceases to be an active full-time employee of the Company,
a Subsidiary or an Affiliate for any reason prior to the end of the
Performance Period, except as otherwise provided in Section 3(d)
above, or (ii) to the extent the Performance Share Plan Units are
not characterized as PSPUs Available for Vesting pursuant to
Section 3. In addition, except as otherwise provided in Section 4,
all Performance Share Plan Units that have been characterized as
PSPUs Available for Vesting pursuant to Section 3 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.
(b) Subject to Section 5(d) below, in the event that the Committee
determines in good faith within one year following a determination
of the PSPUs Available for Vesting pursuant to Section 3 above that
the determination as to the achievement of the Earnings goals was
based on incorrect data, which incorrect data would require the
restatement of the Company's financial statements for reasons other
than changes in law, accounting principles or fraudulent
activities, and that in fact the Earnings goals had not been
achieved or had been achieved to a lesser extent than originally
determined and a portion of any Performance Share Plan Units would
not have been characterized as PSPUs Available for Vesting given
the correct data (with such portion being referred to herein as the
"Unearned PSPUs"), then (i) the Unearned PSPUs shall be forfeited
and cancelled as provided by the Committee, (ii) any Unearned PSPUs
that vested pursuant to Section 4 above and became Vested
Performance Share Plan Units shall be forfeited and cancelled as
provided by the Committee, and (iii) any Common Stock received upon
the settlement of such Vested Performance Share Plan Units (or if
such Common Stock was disposed of, the cash equivalent) shall be
paid by Recipient to the Company upon notice to the Recipient as
provided by the Committee.
(c) Notwithstanding the provisions of Section 5(b) but subject to the
provisions of Section 5(d) below, in the event that the Committee
determines in good faith at any time following a determination of
the PSPUs Available for Vesting pursuant to Section 3 above that
the determination as to the achievement of the Earnings goals was
based on incorrect data, which incorrect data would require the
restatement of the Company's financial statements as a result of
fraudulent activities of Recipient, and that in fact the Earnings
goals had not been achieved or had been achieved to a lesser extent
than originally determined and a portion of any Performance Share
Plan Units would not have been characterized as PSPUs Available for
Vesting given the correct data (with such portion also being
referred to herein as the "Unearned PSPUs"), then (i) any Unearned
PSPUs shall be forfeited and cancelled as provided by the
Committee, (ii) any Unearned PSPUs that vested pursuant to Section
4 above and became Vested Performance Share Plan Units shall be
forfeited and cancelled as provided by the Committee, and (iii) any
Common Stock received upon the settlement of such Vested
Performance Share Plan Units (or if such Common Stock was disposed
of, the cash equivalent) shall be paid by Recipient to the Company
upon notice to the Recipient as provided by the Committee.
(d) Section 5(b) shall apply to Recipient only if Recipient was an
officer as defined in Rule16a-1(f) promulgated under the Securities
Exchange Act of 1934 ("Section 16 Officer") at the time that the
incorrect data was used which required the restatement of the
Company's financial statements, and Section 5(c) shall apply to
Recipient only if Recipient was a Section 16 Officer at the time
that the incorrect data was used which required the restatement of
the Company's financial statements as a result of fraudulent
activities.
6. Election to Defer. Recipient may elect to defer receipt of Common Stock
that otherwise would be issued upon the settlement of the Vested
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 July 1, 2008, and
must specify the number of PSPUs Available for Vesting 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 6, 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 6 is intended to comply
with Section 409A of the Internal Revenue Code and regulations
promulgated thereunder.
7. 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 grant of Performance Share Plan Units hereunder,
the vesting of PSPUs Available for Vesting, Recipient's receipt of
Common Stock upon the settlement of Vested Performance Share Plan
Units, or any other taxable event with respect to such Performance
Share Plan Units.
(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.
8. 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).
9. No Right to Continued Employment, etc. None of this Agreement, the
grant of Performance Share Plan Units hereunder, the determination or
vesting of PSPUs Available for Vesting, Recipient's receipt of Common
Stock upon the settlement of Vested Performance Share Plan Units 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.
10. No Rights as Stockholder Prior to Issuance of Common Stock; 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 the grant of Performance Share Plan Units
hereunder or the determination or vesting of PSPUs Available for
Vesting, prior to the time that shares of the Company's Common Stock are
issued to Recipient in accordance with the terms of this Agreement and
the Plan. No shares of Common Stock shall be issued upon the vesting of
PSPUs Available for Vesting 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, the
determination or vesting of PSPUs Available for Vesting or the
settlement of Vested 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.
11. 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 the last address provided by
Recipient to the Company.
12. Transferability. None of the Performance Share Plan Units, the PSPUs
Available for Vesting or the Vested Performance Share Plan Units, or any
beneficial interest in any of the foregoing, 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
PSPUs Available for Vesting, 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.
13. Amendment; Modification. This Agreement may not be modified or amended,
except for a unilateral amendment by the Company that does not
materially adversely affect the rights of Recipient under this
Agreement. No party to this agreement may unilaterally waive any
provision hereof, except in writing. 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.
14. 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.
15. 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.
16. 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 PSPUs Available for Vesting, the
Vested Performance Share Plan Units, the shares of Common Stock issued
upon settlement of the Vested Performance Share Plan Units, 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.
17. 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.
18. 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]