EXHIBIT 99
CON-WAY INC.
RESTRICTED STOCK UNIT GRANT AGREEMENT
THIS AGREEMENT, granted on the ____ day of ____________, 2008 ("Grant Date"),
by Con-way Inc., a Delaware corporation (hereinafter called "Company") to
[FIRST NAME] [MI] [LAST NAME](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 to 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
Restricted Stock Units (as defined below) provided for in this Agreement as
an incentive for increased efforts and successful achievements;
NOW, THEREFORE, the Company hereby grants to Recipient the Restricted Stock
Units provided for in this Agreement 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.Restricted Stock Units. As of the Grant Date, the Company hereby grants
Recipient [# 2008 RESTRICTED STOCK UNITS] units pursuant to Section 10
of the Plan (hereinafter called the "Restricted Stock Units"), subject
to the requirement that Recipient remains 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 for such
Restricted Stock Units as set forth in Section 3. As used herein,
"Active Full-Time Employee" of the Company, a Subsidiary or an Affiliate
means a full-time employee who (i) is actively employed by the Company,
a Subsidiary or an Affiliate or (ii) is on an authorized medical,
disability or other leave from the Company, a Subsidiary or an
Affiliate. The number of Restricted Stock Units granted hereunder will
be adjusted from time to time for changes in capitalization, as provided
in the Plan.
3.Vesting; Settlement.
(a) Subject to subsections (b) and (c) of this Section 3, all
Restricted Stock Units shall vest on the third (3rd) anniversary of
the Grant Date, 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 until such date.
(b) All Restricted Stock Units (if any) which have not vested shall
vest upon the earliest to occur of the following, provided that
Recipient has been an Active Full-Time employee of the Company, a
Subsidiary or an Affiliate at all times during the period from the
Grant Date until the date of such occurrence:
(1) Recipient's death;
(2) Termination of Recipient's employment with the Company, a
Subsidiary or an Affiliate as a result of a Disability; or
(3) Upon a "Change in Control" (as defined in the Plan) applicable
to Recipient (whether or not Recipient remains an employee of
the Company, a Subsidiary or an Affiliate following such
Change in Control).
As used herein, "Disability" means a substantial mental or physical
disability, as determined by the Committee in its sole discretion.
(c) A pro rata portion of all Restricted Stock Units which have not
vested shall vest upon Recipient's Normal Retirement. Such pro
rata portion shall equal the number of unvested Restricted Stock
Units, multiplied by a fraction, the numerator of which is the
number of full months elapsing from the Grant Date to the date of
Recipient's Normal Retirement, and the denominator of which is 36.
"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). For the avoidance of doubt, any
Restricted Stock Units that do not vest pursuant to this Section
3(c) (i.e., the non-pro rata portion) shall be automatically,
immediately and irrevocably forfeited upon Recipient's Normal
Retirement.
(d) All Restricted Stock 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 subsections (b) or (c) above. Upon
forfeiture of any Restricted Stock Units, all right, title and
interest of Recipient in such Restricted Stock Units, and in any
distributions contemplated by Section 4 (other than cash dividends
received by Recipient pursuant to Section 4 prior to such
forfeiture), shall thereupon cease; and all right, title and
interest in and to such Restricted Stock Units and distributions
shall vest in the Company, with no compensation or consideration to
Recipient.
(e) Each vested Restricted Stock Unit will be settled by the delivery
of one share of Stock to Recipient, as soon as practicable after
the applicable vesting date with respect to each such Restricted
Stock Unit, subject to satisfaction of tax withholding obligations
(as described in Section 5) and compliance with securities laws and
other applicable laws.
(f) For avoidance of doubt, only shares of Stock shall be issuable upon
the settlement of Restricted Stock Units, not cash. The Company
shall not be required to issue fractional shares of Stock upon
settlement of the Restricted Stock Units.
4.Dividend Equivalents.
(a) Recipient shall not be entitled to receive Dividend Equivalents
with respect to the Restricted Stock Units and Additional
Securities held by Recipient in the event that the Board declares a
cash dividend on the Company's Stock.
(b) If the Board declares a dividend on the Company's Stock (other than
a cash dividend) including, but not by way of limitation, warrants
and securities received as a stock dividend or stock split, or as a
result of a recapitalization or reorganization, Recipient will be
entitled to Dividend Equivalents equal to the value (as determined
by the Committee in its sole discretion) of dividends payable on
the same number of shares of Stock as the number of Restricted
Stock Units and Additional Securities (as defined below) then held
by Recipient. Any such Dividend Equivalents will be in the form of
additional whole Restricted Stock Units, which Restricted Stock
Units shall be subject to the same terms and vesting conditions as
the underlying Restricted Stock Units or Additional Securities with
respect to which they were issued (such additional Restricted Stock
Units being referred to as "Additional Securities"). The number of
additional Restricted Stock Units Recipient will receive shall be
determined by dividing the value (as determined by the Committee in
its sole discretion) of dividends payable per share of Stock on a
given date by the Fair Market Value per share of Stock on such date
(rounded down to the nearest whole share).
5.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 Restricted Stock Units hereunder, the
vesting of Restricted Stock Units, Recipient's receipt of Stock
upon the settlement of vested Restricted Stock Units, the payment
of Dividend Equivalents pursuant to Section 4 or any other taxable
event with respect to such Restricted Stock 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 Stock from the shares of Stock otherwise issuable
hereunder, provided, however, that no shares of 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 Stock.
6.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).
7.No Right to Continued Employment, etc. None of this Agreement, the
grant of Restricted Stock Units hereunder, the vesting of Restricted
Stock Units, Recipient's receipt of Stock upon the settlement of vested
Restricted Stock Units or any other agreement entered into pursuant
hereto (i) shall confer upon Recipient the right to continue in the
employ of the Company, any Subsidiary or any Affiliate or to be entitled
to any remuneration or benefits not set forth herein or in any such
other agreement or (ii) interfere with or limit in any way the right of
the Company or any such Subsidiary or Affiliate to terminate Recipient's
employment.
8.No Rights as Stockholder Prior to Issuance of Stock; Securities Law
Compliance. The Recipient shall not have any rights as a stockholder of
the Company (including any voting rights) by virtue of the grant of
Restricted Stock Units hereunder or the vesting of Restricted Stock
Units, prior to the time that shares of Stock are issued to Recipient in
accordance with the terms of this Agreement and the Plan. No shares of
Stock shall be issued upon the vesting of Restricted Stock 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
Restricted Stock Units, the vesting of Restricted Stock Units or the
settlement of vested Restricted Stock Units under this Agreement must
also comply with other applicable laws and regulations, and shares of
Stock will not be issued if the Company determines that such issuance
would not be in material compliance with such laws and regulations.
9.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.
10.Transferability. None of the Restricted Stock Units, the vested
Restricted Stock 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 Stock that may
be issuable upon the settlement of vested Restricted Stock 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
Corporate Human Resources Department. The terms of this Agreement shall
be binding upon Recipient's executors, administrators, heirs,
successors, and transferees.
11.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.
12.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.
13.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.
14.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
Restricted Stock Units, the vested Restricted Stock Units, the shares of
Stock issued upon settlement of the vested Restricted Stock Units, any
Dividend Equivalents, 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.
15.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.
16.Counterparts. This Agreement may be executed in counterparts, all of
which taken together shall be deemed one original.
17.Code Section 409A.
(i) Anything to the contrary in this Agreement notwithstanding, if (i)
the Restricted Stock Units are settled on account of Recipient's
"Separation from Service" (other than death) (as that term is
defined in the 2005 Deferred Compensation Plan for Executives and
Key Employees (the "DCP")) following the date that Recipient
becomes eligible for Normal Retirement, and (ii) Recipient is a
"Specified Employee" (as that term is defined in the DCP) at the
time of the Separation from Service, then to the extent required in
order to comply with Section 409A of the Code, no Stock shall be
delivered or other payment otherwise shall be made to Recipient
prior to the earlier of (i) the first day of the seventh month
following the date of the Separation from Service or (ii) the date
of Recipient's death.
(ii) The Company reserves the right, to the extent the Company deems
necessary or advisable in its sole discretion, to unilaterally
amend or modify this Agreement as may be necessary to ensure that
all vesting or delivery of shares of Stock provided under this
Agreement are made in a manner that complies with Section 409A of
the Code and the Treasury Regulations and other IRS guidance issued
thereunder. It is the Company's intention that this Agreement and
the award of Restricted Stock Units, the vesting of Restricted
Stock Units and the settlement of vested Restricted Stock Units
hereunder shall comply with Section 409A of the Code; this
Agreement shall be interpreted in a manner consistent with such
intention.
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 Restricted Stock
Unit Grant Agreement and the Plan. Recipient further acknowledges that as of
the Grant Date, this Restricted Stock 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]
,