EXHIBIT 99.1
PREPARED FOR: [first m last]
[Corp]
The Compensation Committee of the Board of Directors of Con-way Inc. has
awarded you, as Grantee, the following stock appreciation right ("SAR"):
Award effective date:
Total number of shares of
Stock subject to the SAR: _______________shares
Grant price per share of
Stock subject to the SAR: US$____________
Vesting: One-third on __________; an additional one-third on __________;
and an additional one-third on __________
Fully vested: ______________
Expiration date: ______________
Please refer to the enclosed Highlights of Your Executive Compensation and
Benefits brochure for information about how stock appreciation rights work.
This SAR is subject to the provisions of the Con-way Inc. 2006 Equity and
Incentive Plan, the attached Terms and Conditions, and the country-specific
terms for your non-U.S. country of residence, if any, set forth in Appendix
A, all of which are part of this Stock Appreciation Rights Agreement. These
documents and any related documents that may be issued in the future
constitute part of a Prospectus under the Securities Act of 1933, as amended,
covering the securities issuable to you upon exercise of your SAR.
By signature below, I accept the Option described above and the attached
Terms and Conditions of the Stock Appreciation Rights Agreement, including
Appendix A. I also accept the provisions of the Con-way Inc. 2006 Equity and
Incentive Plan, as amended as of the Award effective date indicated above.
Signature _______________________________ Date _______________________
If you have questions regarding your options, or you wish to take action with
respect to your options, please call Jennifer W, Pileggi, Executive Vice
President, General Counsel and Secretary at 650-378-5326 or Gary S. Cullen,
Vice President, Deputy General Counsel at 650-378-5371.
For your convenience a return envelope is included with this packet.
************************************
Governing stock appreciation rights awarded on [insert date]
Except as otherwise stated in the Stock Appreciation Rights Agreement (the
"Agreement") and the country-specific provisions for non-U.S. employees set
forth in Appendix A (if applicable), to which these Terms and Conditions are
attached and form a part, and subject to the terms and conditions of the Con-
way Inc. 2006 Equity and Incentive Plan as amended as of the Award effective
date (the "Plan"), which Plan is incorporated herein by reference, the
following provisions apply to the SAR (as defined below). (Capitalized terms
used herein without definition shall have the meanings given to such terms in
the Plan.)
1. The Company grants to Grantee an award of stock appreciation rights (the
"SARs"), on the terms and conditions of the Agreement, and as hereinafter
set forth. Each SAR gives Grantee the right upon exercise to receive an
amount in cash equal to the difference between (i) the Fair Market Value
of one share of Stock as of the exercise date and (ii) the grant price per
share of Stock subject to the SAR set forth in the Agreement, less any
Tax-Related Items (as defined below). The grant price per share of Stock
is no less than the Fair Market Value of a share of Stock on the grant
date. Upon exercise, such amount shall be payable to Grantee in a cash
payment in U.S. dollars.
2. In consideration of the SAR, Grantee agrees to remain an active employee
of the Company or of a Subsidiary or Affiliate (a "Regular Employee") at
all times during the period beginning with the date on which the SAR was
granted and ending on the date the SAR becomes fully vested and
exercisable or at the time of Normal Retirement, whichever occurs first,
and, except to the extent that the SAR becomes exercisable and continues
to be exercisable pursuant to Paragraphs 3 and 4 below, if Grantee ceases
to be a Regular Employee within said period the SAR shall become null and
void.
As used herein:
Retirement means retirement under a qualified defined benefit plan of the
Company or a Subsidiary or an Affiliate as in effect on the date of Grantee's
termination of employment. For this purpose, an employee shall be deemed to
have retired under such a plan only if the employee elects within sixty (60)
days from his or her last day of employment to commence receiving monthly
benefits under the plan. The Company, Subsidiary or Affiliate may, in its
sole discretion, revise any such plan at any time or from time to time.
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
such qualified defined benefit plan) equal to at least 85 (the Rule of 85).
3. Except as otherwise provided in Paragraph 4, the period for exercising the
SAR (the "SAR Period") shall be the period, which will commence when the
SAR becomes vested and exercisable (as specified below) and will end on
the tenth anniversary of the date on which the SAR was granted (referred
to herein as the "Terminal Date" of the SAR).
One third of the SAR will become vested and exercisable on January 1, 2011;
an additional one-third shall become vested and exercisable on January 1,
2012; and an additional one-third shall become vested and exercisable on
January 1, 2013.
4. In the following circumstances, the SAR Period specified in Paragraph 3
shall not apply, and the SAR shall be exercisable as set forth below:
(a)If Grantee ceases to be a Regular Employee during the SAR Period (other
than (i) for Cause (as defined below), (ii) on account of Retirement,
(iii) as provided in subparagraph (e) in connection with an involuntary
termination following a Change in Control, (iv) as provided in
subparagraph (f) in connection with an involuntary termination applicable
to Grantee or (v) as a result of Grantee's death or Disability), the SAR
shall thereafter be vested and exercisable only to the extent exercisable
at the time Grantee ceases to be a Regular Employee and only prior to the
end of the three-month period commencing with such cessation or prior to
the Terminal Date of the SAR, whichever shall first occur (except as
otherwise provided in subparagraph (g) in the case of subsequent death):
provided, however, that the three-month exercise period shall be tolled
during any period(s) that Grantee is subject to a "black-out period" or
similar restrictions on trading imposed by the Company or any Subsidiary
or Affiliate and applicable to the SAR, and in such circumstances the
three-month exercise period shall be extended by the total number of days
for which such blackout-out period or similar restrictions on trading
apply, provided that in no event shall any such extension cause the SAR to
be exercisable beyond the Terminal Date of the SAR.
If Grantee is absent from work with the Company, a Subsidiary or an Affiliate
because of his or her Disability or if he or she is on leave of absence for
the purpose of serving the government of the country in which the principal
place of employment of Grantee is located, either in a military or civilian
capacity, or for such other purpose or reason as the Committee may approve,
Grantee shall not be deemed during the period of any such absence, by virtue
of such absence alone, to have ceased to be a Regular Employee, except as the
Committee may otherwise expressly provide.
As used herein:
Disability means a substantial mental or physical disability, as determined
by the Committee in its sole discretion. The Committee may rely, in making
its determination, upon the advice of one or more medical practitioners
selected by the Committee and upon such evidence as may be presented by the
Grantee. The Committee may take into account such factors as whether or not
the disability qualifies for long-term disability benefits under a Company
plan, and for U.S. Grantees, whether the disability qualifies for U.S. Social
Security disability benefits. The Committee may refuse to determine
Disability if the Grantee fails to provide such evidence as is required by
the Committee or fails to submit to examination by a medical practitioner
selected by the Committee.
(b)If the employment of Grantee is terminated for Cause, the SAR (including
any portion of the SAR that may have become vested and exercisable) shall
terminate on the date of such termination of employment, the SAR shall
thereupon not be exercisable to any extent whatsoever, and Paragraphs
4(c), (d), (e), (f), (g), (h) and (i) of these Terms and Conditions shall
not apply. As used herein, "Cause" means (i) the failure or refusal by
Grantee to perform, or neglect in the performance of, his or her duties,
functions or responsibilities, (ii) Grantee's commission of acts of
dishonesty, fraud, misrepresentation or other acts of moral turpitude, or
(iii) such other acts or omissions of Grantee, as the Committee, in the
exercise of its sole discretion, considers to constitute Cause. For
purposes of these Terms and Conditions, an Grantee's employment may also
be treated as having terminated for Cause if after termination of
employment Cause is discovered to have existed before termination of
employment.
(c)Except as otherwise provided in Paragraph 4(b) of these Terms and
Conditions, if the Grantee ceases to be a Regular Employee on account of
Normal Retirement, the SAR shall become fully vested and exercisable as of
the date of Normal Retirement and shall continue to be exercisable until
one year after the Grantee ceases to be a Regular Employee, but not beyond
the Terminal Date of the SAR.
(d)Except as otherwise provided in Paragraph 4(b) of these Terms and
Conditions, if the Grantee ceases to be a Regular Employee on account of
Retirement and subparagraph (c) does not apply, the SAR, to the extent
unvested and unexercisable at Retirement, shall be forfeited and, to the
extent vested and exercisable at Retirement, shall continue to be
exercisable until one year after Retirement, or the Terminal Date of the
SAR, whichever shall first occur.
(e)(i)Upon a Change in Control (other than a Change in Control that
constitutes a "Disposition of a Business Unit (as defined in the CIC
Severance Agreement (as defined below)), the SAR shall be converted,
assumed or replaced with an equivalent SAR or right ("Assumed") by the
surviving corporation, the successor corporation or its parent
corporation, as applicable (the "Successor Corporation"). If there is a
Change in Control (other than a Change in Control that constitutes a
Disposition of a Business Unit) and the SAR is not Assumed, then,
immediately prior to the Change in Control, such SAR shall become fully
vested and exercisable. Upon, or in anticipation of, a Change in Control,
the Committee may cause the SAR to terminate at a specific time in the
future, including, but not limited to, the date of such Change in Control,
and, in such case, shall notify Grantee that the SAR shall be fully vested
and exercisable during a specified period of time after the date of the
notice as the Committee, in its sole and absolute discretion, shall
determine. For purposes of this Paragraph 4(e), the SAR shall be
considered Assumed if, following the Change in Control, (1) the stock
appreciation right or other right confers the right, for each share of
Stock subject to the SAR immediately prior to the Change in Control, a
payment, upon exercise, equal to the difference between (A) the fair
market value at the time of exercise of the consideration (whether stock,
cash, or other securities or property) received in connection with the
Change in Control by holders of Stock for each share held on the effective
date of the transaction (and if holders were offered a choice of
consideration, the type of consideration selected by the holders of a
majority of the outstanding shares of Stock) and (B) the grant price of
the SAR; provided, however, that if such consideration received in
connection with the Change in Control is not solely common stock of the
Successor Corporation, the Committee may, with the consent of the
Successor Corporation, provide for the payment to be determined at the
time of exercise in accordance with the calculation set forth above, but
based on common stock of the Corporation equal, at the time of the Change
in Control, in fair market value to the per share consideration received
by holders of Stock in connection with the Change in Control for each
share of Stock subject to the SAR immediately prior to the Change in
Control; or (2) the right confers the right to receive a payment in cash,
or stock or other property having a fair market value, equal to the
difference between (A) for each share of Stock subject to the SAR the
consideration received in connection with the Change in Control by holders
of Stock for each share held on the effective date of the transaction and
(B) the per share grant price of the SAR.
(ii)If, on the Award effective date, Grantee is party to a Severance
Agreement (Change in Control) with the Company or a Subsidiary or
Affiliate (on the terms, conditions and other provisions, including
definitions, as are in effect on the Award effective date and without
regard to whether the Severance Agreement (Change in Control) is in
effect on the date of a Change in Control or the date Grantee's
employment terminates, the "CIC Severance Agreement"), then, if the
SAR is Assumed and Grantee's employment terminates and such
termination of employment constitutes or would constitute a
"Severance" (as defined in the CIC Severance Agreement), the SAR
shall become fully vested and exercisable on the date of Grantee's
termination of employment and shall continue to be exercisable as
provided in subparagraph (iv) below.
(iii)Notwithstanding subparagraph (ii) of this Paragraph 4(e), if the
Change in Control constitutes a "Disposition of a Business Unit" (as
defined in the CIC Severance Agreement) and, as of immediately prior
to the Change in Control, Grantee is a Regular Employee of the
Business Unit that is the subject of the Change in Control:
(A)If, immediately following the Change in Control, Grantee continues
to be employed by the Business Unit (or is employed by the
successor company that acquires the Business Unit) and, as a result
of the Change in Control, ceases to be a Regular Employee, then the
SAR shall become fully vested and exercisable on the date of the
Change in Control, and the SAR (to the extent exercisable) shall
continue to be exercisable as provided in subparagraph (iv) below;
(B)If, in connection with the Change in Control, Grantee ceases to be
a Regular Employee, and is not employed by the Business Unit (or
the successor company that acquires the Business Unit), then the
SAR shall become fully vested and exercisable on the date of the
Change in Control, and the SAR (to the extent exercisable) shall
continue to be exercisable as provided in subparagraph (iv) below;
(C)If, in connection with the Change in Control, Grantee ceases to be
an employee of the Business Unit but continues to be employed as a
Regular Employee (regardless of whether employed in the same
capacity as was employed prior to the Change in Control), then the
provisions of subparagraph (ii) of this Paragraph 4(e) shall apply
to the SAR (it being understood that a Change in Control will be
deemed to have occurred for purposes of subparagraph (ii)).
(iv)The SAR, to the extent exercisable under this Paragraph 4(e)(ii) and
(iii), shall continue to be exercisable until three months after
Grantee's termination of employment (or one year after Grantee's
termination of employment, if Grantee is eligible for and elects
Normal Retirement upon such termination of employment), but in no
event beyond the Terminal Date of the SAR; provided, however, that
the three-month exercise period shall be tolled during any period(s)
that Grantee is subject to a "black-out period" or similar
restrictions on trading imposed by the Company or any Subsidiary or
Affiliate and applicable to the SAR, and in such circumstances the
three-month exercise period shall be extended by the total number of
days for which such blackout-out period or similar restrictions on
trading apply, provided that in no event shall any such extension
cause the SAR to be exercisable beyond the Terminal Date of the SAR.
(v)Any other provision of this Agreement to the contrary
notwithstanding, in the event it is determined by the Company that
any vesting of the SAR contemplated by this Paragraph 4(e) would be
subject to the Excise Tax (as defined in the CIC Severance Agreement)
or would result in the loss of a deduction to the Company or any
Affiliate under Section 280G of the Code, the vesting of the SAR may
be adjusted as provided in Section 4 of the CIC Severance Agreement.
(f)(i)If, on the Award effective date, Grantee is (A) a party to a Severance
Agreement (Non-Change in Control) with the Company or a Subsidiary or
Affiliate (on the terms, conditions and other provisions, including
definitions, as are in effect as of the Award effective date and without
regard to whether the Severance Agreement (Non-Change in Control) is in
effect on the date Grantee's employment is terminated, the "Non-CIC
Severance Agreement") or (B) eligible to receive severance benefits under
the Non-Change in Control Severance Policy (on the terms, conditions and
other provisions, including definitions, as are in effect on the Award
effective date and without regard to whether the Non-Change in Control
Severance Policy is in effect on the date Grantee's employment is
terminated, the "Non-CIC Severance Policy"), then, if Grantee's employment
terminates while Grantee is a Regular Employee and such termination of
employment constitutes or would constitute, as applicable, (x) a
"Severance" (as defined in the Non-CIC Severance Agreement) or (y) an
"Involuntary Termination" (as defined in the Non-CIC Severance Policy),
the SAR shall become vested and exercisable on the date of Grantee's
termination of employment, but only to the extent provided in the Non-CIC
Severance Agreement or Non-CIC Severance Policy, as applicable, and shall
continue to be exercisable until three months after Grantee's termination
of employment (or one year after Grantee's termination of employment, if
Grantee is eligible for and elects Normal Retirement upon such termination
of employment), but in no event beyond the Terminal Date of the SAR;
provided, however, that the three-month exercise period shall be tolled
during any period(s) that Grantee is subject to a "black-out period" or
similar restrictions on trading imposed by the Company or any Subsidiary
or Affiliate and applicable to the SAR, and in such circumstances the
three-month exercise period shall be extended by the total number of days
for which such blackout-out period or similar restrictions on trading
apply, provided that in no event shall any such extension cause the SAR to
be exercisable beyond the Terminal Date of the SAR.
(ii)Grantee hereby acknowledges and understands that under no event or
circumstance shall Grantee be entitled to vesting acceleration under
this subparagraph (f) to the extent such vesting acceleration exceeds
any vesting acceleration that has occurred or will occur under the
Non-CIC Severance Agreement or Non-CIC Severance Policy, as
applicable.
(g)Grantee shall not be eligible for the vesting acceleration or other
benefit provided under subsection (e) or (f) unless Grantee (or, in the
event of the death of Optionee, the executor, personal representative or
administrator of Grantee's estate) first executes a written release in the
Company's then current form and such release becomes effective prior to
the time that Grantee (or Grantee's estate, as applicable) is to become
entitled to all or any part of the vesting acceleration.
(h)Except as otherwise provided in Paragraph 4(b) of these Terms and
Conditions, if Grantee ceases to be a Regular Employee as a result of
Grantee's Disability, the SAR shall become fully vested and exercisable
and shall continue to be exercisable until one year after Grantee ceases
to be a Regular Employee. If Grantee is a party to the Non-CIC Severance
Agreement and is also eligible to receive severance benefits under the
Non-CIC Severance Policy, Grantee shall be entitled to receive vesting
acceleration only under the arrangement (but not both arrangements) that
would result in a greater amount of vesting acceleration.
(i)Except as otherwise provided in Paragraph 4(b) of these Terms and
Conditions, if Grantee dies --
(i)while the Grantee is a Regular Employee, the SAR shall become fully
vested and exercisable and shall continue to be exercisable until one
year after Grantee dies, but not beyond the Terminal Date of the SAR,
(ii)after the Grantee ceases to be a Regular Employee (other than by
reason of Normal Retirement or death) and during such time as the SAR
continues to be exercisable pursuant to Paragraph 4(a), 4(d) or 4(f)
of these Terms and Conditions, the SAR shall continue to be
exercisable until one year after Grantee dies, but not beyond the
Terminal Date of the SAR, or
(iii)after the Grantee ceases to be a Regular Employee on account of
Normal Retirement and during such time as the SAR continues to be
exercisable pursuant to Paragraph 4(c) of these Terms and Conditions,
the SAR shall become fully exercisable and shall continue to be
exercisable until one year after Grantee dies, but not beyond the
Terminal Date of the SAR.
In each case, the SAR may be exercised by Grantee's executor or
administrator or by the person or persons to whom Grantee's rights under
the SAR shall pass by will or by the applicable laws of descent and
distribution.
5. Grantee may exercise the SAR, to the extent vested and exercisable and
with respect to all or part of the SAR then subject to such exercise, by
giving the Company written notice of such exercise, specifying the number
of shares as to which the SAR is so exercised.
6. Regardless of any action the Company or Grantee's employer (the
"Employer") takes with respect to any or all income tax, social insurance,
payroll tax, payment on account or other tax-related items related to
Grantee's participation in the Plan and legally applicable to Grantee
("Tax-Related Items"), Grantee acknowledges that the ultimate liability
for all Tax-Related Items is and remains Grantee's responsibility and may
exceed the amount actually withheld by the Company or the Employer.
Grantee further acknowledges that the Company and/or the Employer (1) make
no representations or undertakings regarding the treatment of any Tax-
Related Items in connection with any aspect of the SAR grant, including,
but not limited to, the grant, vesting or exercise of the SAR; and (2) do
not commit to and are under no obligation to structure the terms of the
grant or any aspect of the SAR to reduce or eliminate Grantee's liability
for Tax-Related Items or achieve any particular tax result. Further, if
Grantee has become subject to tax in more than one jurisdiction between
the date of grant and the date of any relevant taxable event, Grantee
acknowledges that the Company and/or the Employer (or former employer, as
applicable) may be required to withhold or account for Tax-Related Items
in more than one jurisdiction.
Prior to any relevant taxable or tax withholding event, as applicable,
Grantee will pay or make adequate arrangements satisfactory to the Company
and/or the Employer to satisfy all Tax-Related Items. In this regard,
Grantee authorizes the Company and/or the Employer, or their respective
agents, at their discretion, to satisfy the obligations with regard to all
Tax-Related Items by one or a combination of the following:
(i) withholding from Grantee's wages or other cash compensation paid to
Grantee by the Company and/or the Employer; or
(ii) withholding from proceeds from the exercise of the SAR.
Finally, Grantee shall pay to the Company or the Employer any amount of
Tax-Related Items that the Company or the Employer may be required to
withhold or account for as a result of Grantee's participation in the Plan
that cannot be satisfied by the means previously described. The Company
may refuse to deliver the proceeds from the exercise of the SAR, if
Grantee fails to comply with Grantee's obligations in connection with the
Tax-Related Items.
7. The SAR shall, during Grantee's lifetime, be exercisable only by him or
her, and neither the SAR nor any right hereunder shall be transferable by
Grantee by operation of law or otherwise, other than by will or the laws
of descent and distribution or, for Grantees in the U.S., pursuant to a
qualified domestic relations order ("QDRO"); provided, however, the
Committee may, in its discretion, (i) pursuant to rules adopted by the
Committee, permit transfer(s) of all or part of the SAR in connection with
Grantee's estate planning, and (ii) permit transfers upon divorce or
marital dissolution other than pursuant to a QDRO. In the event of an
attempt by Grantee to alienate, assign, pledge, hypothecate, or otherwise
dispose of the SAR or of any right hereunder, except as provided for
herein, or in the event of the levy of any attachment, execution, or
similar process upon the rights or interest hereby conferred, the Company
at its election may terminate the SAR by notice to Grantee and the SAR
shall thereupon become null and void.
8. In accepting the grant, Grantee acknowledges, understands and agrees that:
(a) the Plan is established voluntarily by the Company, it is
discretionary in nature and it may be modified, amended, suspended
or terminated by the Company at any time;
(b) the grant of the SAR is voluntary and occasional and does not
create any contractual or other right to receive future grants of
SARs, or benefits in lieu of SARs, even if SARs have been granted
repeatedly in the past;
(c) all decisions with respect to future SAR grants, if any, will be at
the sole discretion of the Company;
(d) Grantee is voluntarily participating in the Plan;
(e) the SAR is not intended to replace any pension rights;
(f) the SAR grant and Grantee's participation in the Plan will not be
interpreted to form an employment contract with the Company or any
Subsidiary or Affiliate of the Company;
(g) If the underlying shares of Stock do not increase in value, the SAR
will have no value;
(h) no claim or entitlement to compensation or damages shall arise from
termination of the SAR resulting from termination of Grantee's
employment by the Company or the Employer (for any reason
whatsoever and whether or not in breach of local labor laws), and
in consideration of the grant of the SAR to which Grantee is
otherwise not entitled, Grantee irrevocably agrees never to
institute any claim against the Company or the Employer, waive his
or her ability, if any, to bring any such claim, and release the
Company and the Employer from any such claim; if, notwithstanding
the foregoing, any such claim is allowed by a court of competent
jurisdiction, then, by participating in the Plan, Grantee shall be
deemed irrevocably to have agreed not to pursue such claim and
agree to execute any and all documents necessary to request
dismissal or withdrawal of such claims;
(i) for Grantees who reside outside the U.S., the following additional
provisions shall apply:
(i) SARs are an extraordinary item that does not constitute
regular compensation and which is outside the scope of Grantee's
employment contract, if any;
(ii) the SARs are not part of normal or expected compensation or
salary for any purposes, including, but not limited to, calculating
any severance, resignation, termination, redundancy, dismissal, end
of service payments, bonuses, long-service awards, pension or
retirement or welfare benefits or similar payments and in no event
should be considered as compensation for, or relating in any way to,
past services for the Company, the Employer or any subsidiary or
affiliate of the Company; and
(iii) if Grantee's employment is terminated and he/she ceases to
be a Regular Employee (whether or not in breach of local labor laws),
Grantee's right to receive additional SARs or vest in the SAR under
the Plan, if any, will terminate effective as of the date that
Grantee is no longer actively employed and the time during which the
SAR shall continue to be exercisable shall be measured by the date
the Grantee is no longer actively employed. In no event shall the
end of active employment for purposes set forth in the preceding
sentence be extended by any notice period mandated under local law
(e.g., active employment would not include a period of "garden leave"
or similar period pursuant to local law) and the Committee shall have
the exclusive discretion to determine when Grantee is no longer
actively employed for purposes of the SAR.
9. This Section 9 applies to Grantee only if Grantee resides outside of the
U.S. If Grantee resides outside the U.S., then in accepting this SAR,
Grantee hereby explicitly and unambiguously consents to the collection,
use and transfer, in electronic or other form, of Grantee's personal data
as described in the Agreement, these Terms and Conditions (including
Appendix A), and any other SAR grant materials by and among, as
applicable, the Employer, Company and its Subsidiaries and Affiliates for
the exclusive purpose of implementing, administering and managing
Grantee's participation in the Plan.
Grantee understands that Company and the Employer may hold certain
personal information about Grantee, including, but not limited to,
Grantee's name, home address and telephone number, date of birth, social
insurance number or other identification number, salary, nationality, job
title, any shares of stock or directorships held in Company, details of
all SARs canceled, exercised, vested, unvested or outstanding in Grantee's
favor, for the exclusive purpose of implementing, administering and
managing the Plan ("Data").
Grantee understands that Data may be transferred to E*Trade Financial
Services, Inc., and/or Morgan Stanley or such other stock plan service
provider as may be selected by Company in the future,, which is assisting
Company with the implementation, administration and management of the
Plan. Grantee understands that the recipients of the Data may be located
in the United States or elsewhere, and that the recipients' country (e.g.,
the United States) may have different data privacy laws and protections
than Grantee's country. Grantee understands that he or she may request a
list with the names and addresses of any potential recipients of the Data
by contacting his or her local human resources representative. Grantee
authorizes Company, E*Trade Financial Services, Inc., Morgan Stanley and
any other possible recipients which may assist Company (presently or in
the future) with implementing, administering and managing the Plan to
receive, possess, use, retain and transfer the Data, in electronic or
other form, for the sole purpose of implementing, administering and
managing his or her participation in the Plan. Grantee understands that
Data will be held only as long as is necessary to implement, administer
and manage Grantee's participation in the Plan. Grantee understands that
he or she may, at any time, view Data, request additional information
about the storage and processing of Data, require any necessary amendments
to Data or refuse or withdraw the consents herein, in any case without
cost, by contacting in writing his or her local human resources
representative. Grantee understands, however, that refusing or
withdrawing his or her consent may affect Grantee's ability to participate
in the Plan. For more information on the consequences of Grantee's
refusal to consent or withdrawal of consent, Grantee understands that he
or she may contact his or her local human resources representative.
10.Any notice required to be given by Grantee under the terms of the SAR
shall be addressed to the Company in care of its General Counsel at 2855
Campus Drive, Suite 300, San Mateo, California 94403, and any notice to be
given to Grantee shall be addressed to him or her at his or her last known
address as shown on the Company's records or such other address as either
party hereto may hereafter designate in writing to the other. Any such
notice shall be deemed to have been duly given when enclosed in a properly
sealed envelope or wrapper addressed as aforesaid, registered or certified
and deposited (postage or registration or certification fee prepaid) in a
post office or branch post office regularly maintained.
11.All decisions of the Committee upon any question arising under the Plan,
the Agreement, or these Terms and Conditions (including Appendix A) shall
be final and binding on all parties (except for any change occurring
pursuant to the claims procedures set forth in Section 8 of the Plan).
12.Nothing herein contained shall affect Grantee's right to participate in
and receive benefits from and in accordance with the then current
provisions of any pension, insurance or other employment welfare plan or
program of the Company or the Employer.
13.Nothing in the Agreement, or these Terms and Conditions (including
Appendix A), or any other agreement entered into pursuant hereto (i) shall
confer upon Grantee 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 Grantee's employment.
14.The Agreement and these Terms and Conditions shall be binding upon and
inure to the benefit of any successor or successors of the Company and
shall be binding upon Grantee and his or her heirs, executors,
administrators, successors and assigns.
15.The interpretation, performance, and enforcement of the Agreement and
these Terms and Conditions shall be governed by the laws of the State of
Delaware.
For purposes of litigating any dispute that arises directly or indirectly
from the relationship of the parties evidenced by this grant, the
Agreement, or these Terms and Conditions (including Appendix A), the
parties hereby submit to and consent to the exclusive jurisdiction of the
State of California and agree that such litigation shall be conducted only
in the courts of San Mateo, California, or the federal courts for the
United States for the Northern District of California, and no other
courts, where this grant is made and/or to be performed.
16.If Grantee has received the Agreement, these Terms and Conditions
(including Appendix A), or any other document related to the Plan
translated into a language other than English and if the meaning of the
translated version is different than the English version, the English
version will control.
17.The Company may, in its sole discretion, decide to deliver any documents
related to current or future participation in the Plan by electronic
means. Grantee hereby consents to receive such documents by electronic
delivery and agrees to participate in the Plan through an on-line or
electronic system established and maintained by the Company or a third
party designated by the Company.
18.The provisions of the Agreement and these Terms and Conditions (including
Appendix A) are severable and if any one or more provisions are determined
to be illegal or otherwise unenforceable, in whole or in part, the
remaining provisions shall nevertheless be binding and enforceable.
19.Notwithstanding any provisions in the Agreement or these Terms and
Conditions, the SAR grant shall be subject to any special terms and
conditions set forth in any Appendix for Grantee's country. Moreover, if
Grantee relocates to one of the countries included in Appendix A, the
special terms and conditions for such country will apply to Grantee, to
the extent the Company determines that the application of such terms and
conditions is necessary or advisable in order to comply with local law or
facilitate the administration of the Plan.
20.The Company is not providing any tax, legal or financial advice, nor is
the Company making any recommendations regarding Grantee's participation
in the Plan, or Grantee's exercise of the SAR. Grantee is hereby advised
to consult with his or her own personal tax, legal and financial advisors
regarding his or her participation in the Plan before taking any action
related to the Plan.
21.The Company reserves the right to impose other requirements on Grantee's
participation in the Plan, and on the SAR, to the extent the Company
determines it is necessary or advisable in order to comply with local law
or facilitate the administration of the Plan, and to require me to sign
any additional agreements or undertakings that may be necessary to
accomplish the foregoing.
************************************
APPENDIX A
ADDITIONAL TERMS AND CONDITIONS OF THE
CON-WAY INC. 2006 EQUITY AND INCENTIVE PLAN
STOCK APPRECIATION RIGHTS AGREEMENT FOR NON-U.S. EMPLOYEES
Terms and Conditions
This Appendix A includes additional terms and conditions that govern the SAR
granted to Grantee under the Con-way Inc. 2006 Equity Incentive Plan (the
"Plan") if Grantee resides in one of the countries listed below. Capitalized
terms used but not defined in this Appendix A have the meanings set forth in
the Plan and/or Grantee's SAR Agreement (the "Agreement") and the Terms and
Conditions.
Notifications
This Appendix A also includes information regarding exchange controls and
certain other issues of which Grantee should be aware with respect to his or
her participation in the Plan. The information is based on the securities,
exchange control and other laws in effect in the respective countries as of
January 2010. Such laws are often complex and change frequently. As a
result, the Company strongly recommends that Grantee not rely on the
information in this Appendix A as the only source of information relating to
the consequences of Grantee's participation in the Plan because the
information may be out of date at the time that the SAR vests or the Grantee
exercises his or her SAR under the Plan.
In addition, the information contained herein is general in nature and may
not apply to Grantee's particular situation, and the Company is not in a
position to assure Grantee of a particular result.
Accordingly, Grantee is advised to seek appropriate professional advice as to
how the relevant laws in Grantee's country may apply to his or her situation.
Finally, if Grantee is a citizen or resident of a country other than the one
in which he or she is currently working or transfers employment after the
Grant Date, the information contained herein may not be applicable to
Grantee.
CHINA
Terms and Conditions
Exchange Control Requirements. Grantee understands and agrees that the cash
proceeds form the exercise of the SAR should be immediately repatriated to
the People's Republic of China ("PRC"). Grantee further understands that, to
the extent he or she is a PRC national, repatriation of the cash proceeds may
need to be effectuated through a special exchange control account established
by the Company, its Subsidiary or Affiliate or the Employer, and Grantee
hereby consents and agrees that the proceeds may be transferred to such
special account prior to being delivered to Grantee. The Company is under no
obligation to secure any foreign currency conversion rate, and the Company
may face delays in converting the proceeds to local currency due to exchange
control restrictions in China. Grantee agrees to bear any currency
fluctuation risk between the time the SAR is exercised and the time the
proceeds are distributed to him or her. Grantee further agrees to comply
with any other requirements that may be imposed by the Company in the future
to facilitate compliance with exchange control requirements in China. These
requirements will not apply to non-PRC nationals.
HONG KONG
Terms and Conditions
WARNING: The SAR and the exercise of the SAR do not constitute a public
offering of securities under Hong Kong law and are available only to
employees of the Company, or a Subsidiary or Affiliate. The Agreement, the
Terms and Conditions, including this Appendix A, the Plan and other
incidental communication materials have not been prepared in accordance with
and are not intended to constitute a "prospectus" for a public offering of
securities under the applicable securities legislation in Hong Kong. Nor
have the documents been reviewed by any regulatory authority in Hong Kong.
The SAR is intended only for the personal use of each eligible employee of
the Employer, the Company or any Affiliate and may not be distributed to any
other person. Grantee is cautioned to review the offer carefully as it may
not include the same information as an offer made by a Hong Kong issuer. If
Grantee is in any doubt about any of the contents of the Agreement, the Terms
and Conditions, including this Appendix A, or the Plan, Grantee should obtain
independent professional advice.
Notifications
Nature of Scheme. The Company specifically intends that the Plan will not be
an occupational retirement scheme for purposes of the Occupational Retirement
Schemes Ordinance.
SINGAPORE
Notifications
Securities Law Information. The SAR is being granted to Grantee pursuant to
the "Qualifying Person" exemption under section 273(1)(f) of the Singapore
Securities and Futures Act (Chapter 289, 2006 Ed.).