EXHIBIT 99.2
CON-WAY INC.
RESTRICTED STOCK UNIT GRANT AGREEMENT
THIS AGREEMENT, granted on the 7th day of February, 2011 ("Grant Date"), by
Con-way Inc., a Delaware corporation (hereinafter called "Company") to
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
that number of restricted stock units to Recipient as set forth in the
"Summary of Grant/Award" on the online award acceptance page of the
Company's designated broker with respect to the Company's shares of
Common Stock (hereinafter called the "Stock"), pursuant to Section 10 of
the Plan (hereinafter called the "Restricted Stock Units"), subject to
the requirement that Recipient remains an Active 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 Employee" of the Company, a Subsidiary or an Affiliate means an
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), (c), (d) and (e) 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 Employee
of the Company, a Subsidiary, or an Affiliate at all times during
the period from the Grant Date until such date. Subject to Section
5 below, the Company may cause such number of Restricted Stock
Units to vest as may be necessary to satisfy any Tax-Related Items
(as defined in Section 5 below) that may arise before the vesting
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 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
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 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) (1) 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
Restricted Stock Unit shall be converted, assumed or replaced
with an equivalent restricted stock unit 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
Disposition of a Business Unit) and the Restricted Stock Unit
is not Assumed, then immediately prior to the Change in
Control such Restricted Stock Units shall become fully vested.
For purposes of this Paragraph 3(d)(1), the Restricted Stock
Units shall be considered Assumed if, following the Change in
Control, the restricted stock unit or other right confers the
right to receive, for each Restricted Stock Unit subject to
the award immediately prior to the Change in Control, 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);
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
consideration to be received, for each share of Stock subject
thereto, to be solely common stock of the Successor
Corporation equal in fair market value to the per share
consideration received by holders of Stock in connection with
the Change in Control.
(2) If, on the Grant Date, Recipient is a 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 Grant 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 Recipient's employment terminates, the "CIC Severance
Agreement"), then, if the Restricted Stock Units are Assumed
and Recipient's employment terminates and such termination of
employment constitutes or would constitute a "Severance" (as
defined in the CIC Severance Agreement), the Restricted Stock
Units shall become fully vested on the date of Recipient's
termination.
(3) Notwithstanding subsection (2) of this Section 3(d), 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, Recipient is an
Active Employee of the Business Unit that is the subject of
the Change in Control, then:
(i) If, immediately following the Change in Control,
Recipient 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 an Active Employee, then the
Restricted Stock Units shall become fully vested on the
date of the Change in Control;
(ii) If, in connection with the Change in Control, Recipient
ceases to be an Active Employee and is not retained by
the Business Unit (or employed by the successor company
that acquires the Business Unit), then the Restricted
Stock Units shall become fully vested on the date of the
Change in Control;
(iii) If, in connection with the Change in Control, Recipient
ceases to be an employee of the Business Unit but
continues to be employed as an Active Employee
(regardless of whether employed in the same capacity as
was employed prior to the Change in Control), then the
provisions of subsection (2) of this Section 3(d) shall
apply to the Restricted Stock Units (it being understood
that a Change in Control will be deemed to have occurred
for purposes of subsection (2)).
(4) Any other provision of this Agreement to the contrary
notwithstanding, in the event it is determined by the Company
that any vesting of the Restricted Stock Units contemplated by
this Section 3(d) 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 Restricted Stock
Units may be adjusted as provided in Section 4 of the CIC
Severance Agreement.
(e) (1) If, on the Grant Date, Recipient is (i) 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 on the
Grant Date and without regard to whether the Severance
Agreement (Non-Change in Control) is in effect on the date
Recipient's employment is terminated, the "Non-CIC Severance
Agreement") or (ii) 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 Grant Date and without regard to
whether the Non-Change in Control Severance Policy is in
effect on the date Recipient's employment is terminated, the
"Non-CIC Severance Policy"), then if Recipient's employment
terminates while Recipient is an Active Employee and such
termination of employment constitutes or would constitute, as
applicable, (A) a "Severance" (as defined in the Non-CIC
Severance Agreement) or (B) an "Involuntary Termination" (as
defined in the Non-CIC Severance Policy), then the Restricted
Stock Units shall become vested, on the date of Recipient's
termination of employment but only to the extent provided in
the Non-CIC Severance Agreement or Non-CIC Severance Policy,
as applicable.
(2) Recipient hereby acknowledges and understands that under no
event or circumstance shall Recipient be entitled to vesting
acceleration under this Section 3(e) 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.
(f) Recipient shall not be eligible to the vesting acceleration or
other benefit provided under subsection (d) or (e) unless Recipient
(or, in the event of the death of Recipient, the executor, personal
representative or administrator of Recipient's estate) first
executes a written release in the form then maintained by the
Company and delivers such release to the Company within the period
required under the release, but in any event with 45 days following
Recipient's employment termination.
(g) All Restricted Stock Units (if any) which have not vested shall be
automatically, immediately and irrevocably forfeited if Recipient
ceases to be an Active Employee of the Company, a Subsidiary or an
Affiliate for any reason other than as a result of an occurrence
described in subsections (b), (c), (d) or (e) 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.
(h) Each vested Restricted Stock Unit will be settled by the delivery
of one share of Stock to Recipient, as soon as practicable, subject
to satisfaction of tax withholding obligations (as described in
Section 5) and compliance with securities laws and other applicable
laws; provided, however, that to the extent that settlement of the
Restricted Stock Units constitutes an item of deferred compensation
under Section 409A (in the case of U.S. taxpayers), the Restricted
Stock Units shall be settled on the earliest of (i) the vesting
date provided in Section 3(a), (ii) if Section 3(d)(1) applies,
within 30 days following a Change in Control that is a "change in
control event" within the meaning of Section 409A, (iii) on the
52nd day following a "separation from service" within the meaning
of Section 409A, subject to any delay that would not result in a
violation under Section 409A, the related Treasury Regulations and
other guidance from the Internal Revenue Service or Treasury.
(i) 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 and payment
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) Regardless of any action the Company or the Subsidiary or Affiliate
that employs Recipient (the "Employer") takes with respect to any
or all income tax, social insurance, payroll tax, payment on
account or other tax-related withholding ("Tax-Related Items"),
Recipient acknowledges that the ultimate liability for all Tax-
Related Items legally due by him or her is and remains Recipient's
responsibility and 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 Restricted Stock
Units, including the grant or vesting of the Restricted Stock
Units, the settlement of the Restricted Stock Units in shares of
Stock upon vesting, the subsequent sale of any shares of Stock
acquired at vesting and the receipt of any dividends or Dividend
Equivalents; and (2) do not commit to structure the terms of the
grant or any aspect of the Restricted Stock Units to reduce or
eliminate Recipient's liability for Tax-Related Items.
(b) Prior to any taxable or tax withholding event, as applicable,
Recipient shall pay or make adequate arrangements satisfactory to
the Company and/or the Employer to satisfy all Tax-Related Items.
In this regard, Recipient authorizes the Company and/or the
Employer, at their discretion, to satisfy the obligations with
regard to all Tax-Related Items by one or a combination of the
following:
(1) withholding from Recipient's wages or other cash compensation
paid to Recipient by the Company and/or the Employer;
(2) withholding from proceeds of the sale of shares of Stock
acquired upon vesting/settlement of the Restricted Stock Units
either through a voluntary sale or through a mandatory sale
arranged by the Company (on Recipient's behalf pursuant to this
authorization); or
(3) withholding in shares of Stock to be issued upon
vesting/settlement of the Restricted Stock Units.
To avoid negative accounting treatment, the Company may withhold or
account for Tax-Related Items by considering applicable minimum
statutory withholding amounts or other applicable withholding
rates. If the obligation for Tax-Related Items is satisfied by
withholding in shares of Stock, for tax purposes, Recipient is
deemed to have been issued the full number of shares of Stock
subject to the vested Restricted Stock Units, notwithstanding that
a number of the shares of Stock are held back solely for the
purpose of paying the Tax-Related Items due as a result of any
aspect of Recipient's participation in the Plan. Anything in this
Section 5 to the contrary notwithstanding, the right of the Company
or the Employer to withhold any Tax-Related Items for any portion
of the Restricted Stock Units that is considered deferred
compensation subject to Section 409A of the Code shall be limited
to the minimum amount permitted to avoid a prohibited acceleration
under Section 409A of the Code.
(c) Recipient will 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 Recipient's participation
in the Plan or his/her acquisition of shares of Stock that cannot
be satisfied by the means previously described. The Company may
refuse to issue or deliver the shares or the proceeds from the sale
of shares of Stock, if Recipient fails to comply with Recipient's
obligations in connection with the Tax Related Items.
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.Nature of Grant. In accepting the grant of Restricted Stock Units,
Recipient 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) this award of Restricted Stock Units is voluntary and occasional
and does not create any contractual or other right to receive
future grants of Restricted Stock Units, or benefits in lieu of
Restricted Stock Units, even if Restricted Stock Units have been
granted repeatedly in the past;
(c) all decisions with respect to future grants of Restricted Stock
Units or other awards, if any, will be at the sole discretion of
the Company;
(d) Recipient is voluntarily participating in the Plan;
(e) the Restricted Stock Units and the shares of Stock subject to the
Restricted Stock Units are not intended to replace any pension
rights;
(f) the award of Restricted Stock Units and Recipient's participation
in the Plan will not be interpreted to form an employment contract
with the Company or any of its Subsidiaries or Affiliates;
(g) the future value of the shares of Stock underlying the Restricted
Stock Units is unknown and cannot be predicted with certainty;
(h) the Company is not providing any tax, legal or financial advice,
nor is the Company making any recommendations regarding Recipient's
participation in the Plan, or Recipient's acquisition or sale of
the underlying shares of Stock;
(i) Recipient is hereby advised to consult with Recipient's personal
tax, legal and financial advisors regarding Recipient's
participation in the Plan before taking any action related to the
Plan;
(j) no claim or entitlement to compensation or damages shall arise from
forfeiture of the Restricted Stock Units resulting from termination
of Recipient'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 Restricted Stock
Units to which Recipient is otherwise not entitled, Recipient
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, Recipient 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;
(k) For Recipients who reside outside the U.S., the following
additional provisions shall apply:
(i) the Restricted Stock Units and the shares of Stock subject to
the Restricted Stock Units 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;
(ii) the Restricted Stock Units and the shares of Stock subject to
the Restricted Stock Units are an extraordinary item that does
not constitute compensation of any kind for services of any
kind rendered to the Company or the Employer, and which is
outside the scope of Recipient's employment contract, if any;
and
(ii) in the event of termination of Recipient's employment (whether
or not in breach of local labor laws), Recipient's right to
receive the Restricted Stock Units and vest in the Restricted
Stock Units under the Plan and this Agreement, if any, will
terminate effective as of the date that Recipient is no longer
actively employed and will not 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); the Committee shall have the exclusive
discretion to determine when Recipient is no longer actively
employed for purposes of the Restricted Stock Units and this
Agreement.
8.Data Privacy. This Section 8 applies to Recipient only if Recipient
resides outside of the U.S. If Recipient resides outside of the U.S.,
then Recipient hereby explicitly and unambiguously consents to the
collection, use and transfer, in electronic or other form, of
Recipient's personal data as described in this Agreement and any other
Restricted Stock Unit grant materials by and among, as applicable, the
Employer, the Company and its Subsidiaries and Affiliates for the
exclusive purpose of implementing, administering and managing
Recipient's participation in the Plan.
Recipient understands that the Company and the Employer may hold certain
personal information about Recipient, including, but not limited to,
Recipient'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 the
Company, details of all Restricted Stock Units or any other entitlement
to shares of stock awarded, canceled, exercised, vested, unvested or
outstanding in Recipient's favor, for the exclusive purpose of
implementing, administering and managing the Plan ("Data").
Recipient understands that Data will be transferred to E*Trade Financial
Services, Inc., Morgan Stanley, or such other stock plan service
provider as may be selected by the Company in the future, which is
assisting the Company with the implementation, administration and
management of the Plan. Recipient understands that those who receive
the Data may be located in the United States or elsewhere, where the
data privacy laws and protections may be different. Recipient
understands that he or she may request a list with the names and
addresses of any potential third party transferees of the Data by
contacting his or her local human resources representative. Recipient
authorizes the Company, E*Trade Financial Services, Inc., Morgan
Stanley, and any other possible recipients which may assist the 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.
Recipient understands that Data will be held only as long as is
necessary to implement, administer and manage Recipient's participation
in the Plan. Recipient 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. Recipient
understands, however, that refusing or withdrawing his or her consent
may affect Recipient's ability to participate in the Plan. For more
information on the consequences of Recipient's refusal to consent or
withdrawal of consent, Recipient understands that he or she may contact
his or her local human resources representative.
9.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.
10.No Rights as Stockholder Prior to Issuance of Stock; Securities Law
Compliance. 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.
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 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, which beneficiary designation form
shall be effective only to the extent permitted by applicable law. If
applicable law does not permit the transfer of shares of Stock that may
be issuable upon the settlement of vested Restricted Stock Units, in the
event of Recipient's death, to the beneficiary designated on such
beneficiary designation form, such transfer shall be made in accordance
with Recipient's will or the laws of descent and distribution. 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
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.
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.Language. If Recipient has received this Agreement or any other
document related to the Plan translated into a language other than
English and if the translated version is different than the English
version, the English version will control, unless otherwise prescribed
by local law.
19.Appendix. Notwithstanding any provisions in this Agreement or the
Plan, the grant of Restricted Stock Units shall be subject to any
special terms and conditions set forth in the Appendix A to this
Agreement for Recipient's country of residence, if any. Moreover, if
Recipient relocates to one of the countries included in the Appendix,
the special terms and conditions for such country will apply to
Recipient, 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. The
Appendix constitutes part of this Agreement.
20.Electronic Delivery. The Company may, in its sole discretion, decide
to deliver any documents related to current or future participation in
the Plan by electronic means. Recipient 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.
21.Counterparts. This Agreement may be executed in counterparts, all of
which taken together shall be deemed one original.
22.Code Section 409A.
(i) For U.S. taxpayers, notwithstanding anything to the contrary in
this Agreement, no settlement of Restricted Stock Units or other
payment under this Agreement that constitutes an item of deferred
compensation under Section 409A of the Code and becomes payable by
reason of Recipient's termination of employment shall be made to
Recipient unless Recipient's termination of employment constitutes
a "Separation from Service" (as that term is defined in the 2005
Deferred Compensation Plan for Executives and Key Employees (the
"DCP")). In addition, if 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, the Stock shall be delivered (and any
other payment) shall be made to Recipient on 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. The Company makes no representation or covenant to
ensure that the vesting and delivery of the shares of Stock
provided under this Agreement are exempt or compliant with Section
409A of the Code and will have no liability to Recipient or any
other party if the vesting or delivery of shares of Stock under
this Agreement that is intended to be exempt from, or compliant
with, Section 409A of the Code is not so exempt or compliant or for
any action taken by the Company with respect thereto.
* * * *
Recipient acknowledges that as of the Grant Date, this 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.
By Recipient's electronic acceptance and the signature of the Company's
representative below, Recipient and the Company agree that the award of
Restricted Stock Units is granted under and governed by the terms and
conditions of this Agreement (including the country-specific Appendix A) and
the Plan. Recipient has reviewed and fully understands all provisions of this
Agreement (including the country-specific Appendix A) and the Plan in their
entirety, and has had an opportunity to obtain the advice of counsel prior to
executing this Agreement.
[Insert electronic signature]
APPENDIX A
ADDITIONAL TERMS AND CONDITIONS OF THE
CON-WAY INC. 2006 EQUITY AND INCENTIVE PLAN
RESTRICTED STOCK UNIT GRANT AGREEMENT
FOR EMPLOYEES OUTSIDE THE UNITED STATES
Terms and Conditions
This Appendix A includes additional terms and conditions that govern the
Restricted Stock Units granted to Recipient under the Con-way Inc. 2006
Equity Incentive Plan (the "Plan") if Recipient resides in one of the
countries listed below. Capitalized terms used but not defined in this
Appendix A are defined in the Plan and/or the Restricted Stock Unit Grant
Agreement (the "Agreement"), and have the meanings set forth therein.
Notifications
This Appendix A also includes information regarding exchange controls and
certain other issues of which Recipient should be aware with respect to
Recipient's participation in the Plan. The information is based on the
securities, exchange control and other laws in effect in the respective
countries as of February 2011. Such laws are often complex and change
frequently. As a result, the Company strongly recommends that Recipient not
rely on the information noted in this Appendix A as the only source of
information relating to the consequences of Recipient's participation in the
Plan because the information may be out of date at the time that Recipient
vests in the Restricted Stock Units or sells shares of Stock acquired under
the Plan.
In addition, the information contained herein is general in nature and may
not apply to Recipient's particular situation, and the Company is not in a
position to assure Recipient of a particular result. Accordingly, Recipient
is advised to seek appropriate professional advice as to how the relevant
laws in Recipient's country may apply to Recipient's situation.
Finally, if Recipient is a citizen or resident of a country other than the
one in which Recipient is currently working or transfers employment after the
Grant Date, the information contained herein may not be applicable to
Recipient.
CHINA
Terms and Conditions
Legal Restrictions. To facilitate compliance with applicable laws and
regulations in China, Recipient agrees to immediately sell all shares of
Stock issued to Recipient at vesting and settlement of the Restricted Stock
Units, or as soon as possible thereafter (in the event of a blackout period).
Recipient further agrees that the Company is authorized to instruct its
designated broker to assist with the mandatory sale of such shares of Stock
(on Recipient's behalf pursuant to this authorization) and Recipient
expressly authorizes the Company's designated broker to complete the sale of
such shares of Stock. Recipient acknowledges that the Company's designated
broker is under no obligation to arrange for the sale of the shares of Stock
at any particular price. Upon the sale of the shares of Stock, the Company
agrees to pay Recipient the cash proceeds from the sale, less any brokerage
fees or commissions and subject to any obligation to satisfy Tax-Related
Items. These restrictions will not apply to non-PRC citizens.
Exchange Control Requirements. Recipient understands and agrees that,
pursuant to local exchange control requirements, Recipient will be required
to immediately repatriate the cash proceeds from sale of shares of Stock
underlying the Restricted Stock Units to China. Recipient further
understands that, under local law, such repatriation of his or her cash
proceeds may need to be effectuated through a special exchange control
account established by the Company, an Affiliate, or the Employer, and
Recipient hereby consents and agrees that any proceeds from the sale of
shares of Stock may be transferred to such special account prior to being
delivered to Recipient. The Company is under no obligation to secure any
exchange conversion rate, and the Company may face delays in converting the
proceeds to local currency due to exchange control restrictions in China.
Recipient agrees to bear any currency fluctuation risk between the time the
shares of Stock are sold and the time the sale proceeds are distributed
through any such special exchange account. Recipient further agrees to comply
with any other requirements that may be imposed by the Company in the future
in order to facilitate compliance with exchange control requirements in
China. These requirements will not apply to non-PRC citizens.
HONG KONG
Terms and Conditions
Securities Law Information. To facilitate compliance with securities laws in
Hong Kong, Recipient agrees not to sell the shares of Stock issued upon
vesting of the Restricted Stock Units within six months of the Grant Date.
WARNING: The Restricted Stock Units and the shares of Stock to be issued
upon vesting do not constitute a public offer of securities under Hong Kong
law and are available only to employees of the Company, or a Subsidiary or
Affiliate. Please be aware that the contents of the Agreement, 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 Restricted Stock Units are
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.
Recipient 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 Recipient is
in any doubt about any of the contents of the Agreement, including this
Appendix A, or the Plan, Recipient 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 Restricted Stock Units are being granted to
Recipient pursuant to the "Qualifying Person" exemption under section
273(1)(f) of the Singapore Securities and Futures Act (Chapter 289, 2006 Ed.)
("SFA"). The Plan has not been lodged or registered as a prospectus with the
Monetary Authority of Singapore. Recipient should note that such Award of
Restricted Stock Units is subject to section 257 of the SFA and Recipient
will not be able to make any subsequent sale in Singapore, or any offer of
such subsequent sale of the shares of Stock underlying the Restricted Stock
Units unless such sale or offer in Singapore is made pursuant to the
exemptions under Part XIII Division (1) Subdivision (4) (other than section
280) of the SFA (Chapter 289, 2006 Ed.).
Director Notification Requirement. If Recipient is a director, associate
director or shadow director of the Company or a Singapore Affiliate of the
Company, Recipient is subject to certain notification requirements under the
Singapore Companies Act. Among these requirements is an obligation to notify
the Singaporean Affiliate in writing when Recipient receives an interest
(e.g., Restricted Stock Units, shares of Stock, etc.) in the Company or any
related companies within two days of (i) its acquisition or disposal, (ii)
any change in a previously disclosed interest (e.g., when the shares of Stock
are sold), or (iii) becoming a director.