As filed with the Securities and Exchange Commission on April 25, 2007
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|Registration No. 333-|
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|SECURITIES AND EXCHANGE COMMISSION|
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| | Washington, D.C. 20549 | |
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__________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________________________
Con-way Inc.
(Exact name of Registrant as specified in its charter)
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| Delaware || 94-1444798 |
| (State or other jurisdiction of ||(IRS Employer Identification No.)|
| incorporation or organization) || |
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| 2855 Campus Drive || 94403 |
| San Mateo, California || (Zip Code) |
|(Address of principal executive offices)|| |
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| Registrant's telephone number, including area code (650) 378-5200 |
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__________________________________
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| Jennifer W. Pileggi |
| Senior Vice President, General Counsel and Secretary |
| Con-way Inc. |
| 2855 Campus Drive |
| San Mateo, California 94403 |
| Telephone: (650) 378-5200 |
| (Name, address, including zip code, and telephone number, including area |
| code, of agent for service) |
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__________________________________
Con-way Inc. Deferred Compensation Plan for Non-Employee Directors
_______________(full title of the plans)___________________
CALCULATION OF REGISTRATION FEE
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| Title of Each | Amount | Proposed | Proposed | Amount of |
| Class of | to Be | Maximum | Maximum |Registration Fee|
| Securities to |Registered| Offering | Aggregate | |
| Be Registered | | Price per |Offering Price| |
| | |Obligation/Share| | |
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| Common | | | | |
|Stock Units (2)| 100,000 | $56.07 (1) | $5,607,000 | $172.13 |
| | | | | |
|Common Stock, | | | | |
|$0.625 par | | | | |
|value (2) .....| 100,000 | $56.07 (1) | $5,607,000 | $172.13 |
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(1) Estimated solely for the purpose of calculating the registration
fee in accordance with Rule 457 (c) under the Securities Act of
1933, based upon the average of the high and low sales prices for
the Common Stock as reported by the New York Stock Exchange on
April 23, 2007.
(2) Plus such indeterminate number of additional shares or units as may
be necessary to adjust the number of shares or units reserved for
issuance pursuant to the Deferred Compensation Plan for Non-
Employee Directors subject to the Registration Statement as a
result of any future stock split, stock dividend or similar
adjustment of the outstanding Common Stock.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.Incorporation of Certain Documents by Reference.
The following documents that Con-way Inc. (the "Company" or the
"Registrant") has filed with the Securities and Exchange Commission (the
"Commission") are incorporated in this Registration Statement by reference
and made a part hereof (except for any portions of the Company's Current
Reports furnished, as opposed to filed, on Form 8-K):
(a) The Registrant's Annual Report on Form 10-K for the year
ended December 31, 2006, filed with the Securities and Exchange
Commission ("SEC") pursuant to Section 13 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
(b) Current Reports on Form 8-K dated January 3, 2007,
January 31, 2007, April 16, 2007 and April 24, 2007.
(c) The description of the Registrant's Common Stock contained
in its registration statement filed on Form S-3 with the SEC (File No.
333-56667) under the Securities Act of 1933, as amended (the "Securities
Act").
All documents filed by the Registrant with the SEC pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act (except for any portions of
the Company's Current Reports furnished, as opposed to filed, on Form 8-K)
subsequent to the effective date of this Registration Statement, but prior to
the filing of a post-effective amendment to this Registration Statement
indicating that all securities offered hereby have been sold or which de-
registers all securities covered hereby then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to
be part hereof from the date of filing of such documents.
Any statement contained herein or in any document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded
shall not be deemed to constitute a part of this Registration Statement,
except as so modified or superseded.
Item 4.Description of Securities.
The following description of the Common Stock Units (the "Units") is
qualified by reference to the Deferred Compensation Plan for Non-Employee
Directors, as amended (the "Plan"). A copy of the Plan is filed as Exhibit
10.34 to the Company's 10-K for the year ended December 31, 1997, and a copy
of the 2007 Amendment to the Plan is filed as Exhibit 99.5 to the Company's
8-K filed on January 31, 2007.
When issued, the Common Stock Units will be unsecured general
obligations of the Registrant to pay the deferred compensation of eligible
participants in the Plan. The Plan is administered by the Director Affairs
Committee of the Company's Board of Directors.
Participating non-employee directors could elect to defer compensation
under the Plan prior to calendar year 2005. The amount of compensation that
was deferred by each Plan participant was based on elections made by the
participant during an annual election period in December. A participant
could elect to defer either his or her annual cash retainer, or his or her
annual cash retainer plus all Committee fees and Committee chair fees payable
in the Plan year.
Starting in 2008, participants will be given the opportunity annually to
convert all or a portion of their dollar-denominated Plan account balance
into Common Stock Units, subject to a $5,000 minimum. The amount that a
participant elects to convert is divided by the closing price of the
Company's Common Stock on February 1 of the conversion year to determine the
number of Common Stock Units acquired. The value of the Common Stock Units
will fluctuate with the market price of the Company's Common Stock. Whenever
a cash dividend is paid with respect to the Company's Common Stock, a
participant with Common Stock Units in his or her Plan account will receive a
dividend equivalent, consisting of a number of Common Stock Units determined
by multiplying the number of Common Stock Units in the account by the per-
share cash dividend, and dividing the resulting product by the Fair Market
Value (as defined in the Plan) of a share of Common Stock on the dividend
payment date.
Distributions of Common Stock Units in a participant's Plan account
typically will be made in shares of the Company's Common Stock. All other
amounts deferred under the Plan will be distributed in cash. Based upon
elections made by the participant, distributions will be made in a lump sum
at a specified time, or in a lump sum or in installments upon retirement or
termination. Distribution of deferrals made in a given Plan year, and of
returns on those deferrals, will be governed by an election made prior to the
participant's entry into the Plan during that Plan year. In the event of a
financial hardship, a participant may be permitted an earlier distribution of
all or part of his or her Plan account balance, and/or a suspension of
deferrals into the Plan.
Participants and their beneficiaries may not pledge or transfer their
interests under the Plan. The Company reserves the right to terminate the
Plan at any time, and the Board of Directors of the Company may, at any time,
amend or modify the Plan in whole or in part, except as prohibited by the
terms of the Plan.
Item 5.Interests of Named Experts and Counsel.
The legality of the securities offered pursuant to this Registration
Statement will be passed upon for the Registrant by Gary S. Cullen, Esq.,
Vice President, Deputy General Counsel and Assistant Secretary of the
Registrant.
Item 6.Indemnification of Officers and Directors.
As authorized by Section 102(b)(7) of the Delaware General Corporation
Law (the "DGCL"), the Registrant's Certificate of Incorporation eliminates to
the fullest extent permitted by Delaware law the personal liability of its
directors to the Registrant or its stockholders for monetary damages for any
breach of fiduciary duty as a director.
The Registrant's Bylaws provide that each person who was or is made a
party or is threatened to be made a party to or is involved in any
threatened, pending or completed action, suit or proceeding by reason of the
fact that he or she is or was a director, officer, employee or agent of the
Registrant or of another enterprise, serving as such at the request of the
Registrant, shall be indemnified and held harmless by the Registrant to the
fullest extent permitted by the DGCL; provided, however, that except as to
actions to enforce indemnification rights, the Registrant shall indemnify any
such person seeking indemnification in connection with an action, suit or
proceeding (or part thereof) initiated by such person only if the action,
suit or proceeding (or part thereof) was authorized by the Board of Directors
of the Registrant. When indemnification is authorized by the Registrant's
Bylaws, the director, officer, employee or agent shall be indemnified for
expenses, liabilities and losses (including attorneys' fees, judgments,
fines, ERISA excise taxes or penalties and amounts paid or to be paid in
settlement) reasonably incurred by him or her in connection therewith. The
Registrant's Bylaws also provide that expenses incurred by an officer or
director (acting in his or her capacity as such) in defending a proceeding
shall be paid by the Registrant in advance of final disposition of the
proceeding; provided, however, that if required by the DGCL, the officer or
director shall deliver to the Registrant an undertaking by the officer or
director to repay such expenses if it is ultimately determined that he or she
is not entitled to be indemnified by the Registrant. The Registrant's Bylaws
also provide that in other circumstances, expenses may be advanced upon such
terms and conditions as the Board of Directors deems appropriate.
The Registrant's Bylaws further provide that the right to
indemnification granted thereunder shall be a contract right for the benefit
of the Registrant's directors, officers, employees and agents. The
Registrant's Bylaws also authorize actions against the Registrant to enforce
the indemnification rights provided by the Bylaws, subject to the
Registrant's right to assert a defense in any such action that the claimant
has not met the standards of conduct that make it permissible under the DGCL
for the Registrant to indemnify the claimant for the amount claimed, and the
Registrant shall bear the burden of proving any such a defense.
Under Section 145 of the DGCL, a corporation may provide indemnification
to directors, officers, employees and agents against judgments, penalties,
fines, settlements and reasonable expenses (including attorneys' fees)
incurred in the defense or settlement of a derivative action, provided there
is a determination by a majority vote of a quorum of disinterested directors,
a committee of directors, independent legal counsel, or a majority vote of
stockholders that a person seeking indemnification acted in good faith and in
a manner reasonably believed to be in or not opposed to the best interests of
the corporation, and, in the case of a criminal proceeding, with no
reasonable cause to believe his or her conduct was unlawful. However,
Section 145 also states that no indemnification may be made in derivative
actions where such person is adjudged liable to the corporation, unless, and
only to the extent, that a court determines upon application that such person
is fairly and reasonably entitled to indemnity for such expenses which the
court deems proper. Section 145 of the DGCL also permits indemnification of
expenses which the court deems proper and provides that indemnification of
expenses actually and reasonably incurred shall be provided when the
individual being indemnified has successfully defended the action on the
merits or otherwise in any action, suit or proceeding. The indemnification
rights provided by statute in Delaware are not deemed to be exclusive of any
other rights to which those seeking indemnification may be entitled under any
bylaw, agreement or otherwise.
The Registrant's Bylaws also authorize the Registrant to purchase and
maintain insurance to protect itself and any person who is or was the
director, officer, employee or agent against any liability, expense or loss
incurred by or asserted against such persons, whether or not the Registrant
would have the power to indemnify any such person against such liability,
expense or loss under applicable law or the Registrant's Bylaws. The
Registrant presently maintains a directors' and officers' liability insurance
policy which insures directors and officers of the Registrant and those of
certain of its subsidiaries.
Item 7.Exemption from Registration Claimed.
Not applicable.
Item 8.Exhibits.
See List of Exhibits
Item 9.Undertakings.
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
(iii)to include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that the undertakings set forth in paragraphs (a)(1)(i)
and (a)(1)(ii) above do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the Registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in this registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing
of the Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange Act,
as amended), that is incorporated by reference in the Registration Statement
shall be deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described above or
otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
undersigned Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of San Mateo, State of
California, on April 23, 2007.
CON-WAY INC.
By: /s/ Jennifer W. Pileggi
___________________________
Jennifer W. Pileggi
Senior Vice President, General Counsel and
Secretary
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EXHIBIT 24.1
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|Signature |Title | Date |
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| |Chairman of the Board (Director)|April,23, 2007 |
| | | |
| | | |
| | | |
|/s/ W.Keith Kennedy,Jr. | | |
|----------------------- | | |
|W. Keith Kennedy,Jr. | | |
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| |President and Chief Executive |April 23, 2007 |
| |Officer | |
| |(Principal Executive Officer) | |
|/s/Douglas W.Stotlar | | |
|--------------------- | | |
|Douglas W.Stotlar | | |
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| |Senior Vice President and Chief |April 23,2007 |
| |Financial Officer | |
| |(Principal Financial and | |
| |Principal Accounting Officer) | |
| | | |
|/s/ Kevin C. Schick | | |
|------------------- | | |
|Kevin C.Schick | | |
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| |Vice President and Controller |April 23, 2007 |
| | | |
|/s/ Kevin S. Coel | | |
|------------------ | | |
|Kevin S.Coel | | |
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| |Director |April 23, 2007 |
| | | |
|/s/ John J. Anton | | |
|------------------ | | |
|John J.Anton | | |
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| |Director |April 23, 2007 |
| | | |
| | | |
|/s/ William R. Corbin | | |
|---------------------- | | |
|William R. Corbin | | |
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| |Director |April 23, 2007 |
| | | |
|/s/Margaret G. Gill | | |
|-------------------- | | |
|Margaret G. Gill | | |
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| |Director | |
| | | |
| | | |
|---------------------- | | |
|Robert Jaunich II | | |
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| |Director |April 23, 2007 |
| | | |
|/s/ Henry H. Mauz, Jr. | | |
|---------------------- | | |
|Henry H. Mauz, Jr. | | |
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| |Director | |
| | | |
| | | |
|---------------------- | | |
|Michael J. Murray | | |
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| |Director |April 23, 2007 |
| | | |
|/s/ John C. Pope | | |
|------------------- | | |
|John C.Pope | | |
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| |Director |April 23, 2007 |
| | | |
|/s/ Robert D. Rogers | | |
|---------------------- | | |
|Robert D. Rogers | | |
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| |Director |April 23, 2007 |
| | | |
|/s/ William J. Schroeder | | |
|------------------------- | | |
|William J. Schroeder | | |
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| |Director |April 23, 2007 |
| | | |
|/s/ Peter W. Stott | | |
|------------------- | | |
|Peter W. Stott | | |
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| |Director | |
| | | |
| | | |
|--------------------- | | |
|Robert P. Wayman | | |
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| |Director |April 23, 2007
| | | |
|/s/ Chelsea C. White III | | |
|------------------------- | | |
|Chelsea C. White III | | |
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**********************************
LIST OF EXHIBITS
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|Exhibit No.||Description of Exhibit ||
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| 4.1 ||Article Fourth of the Certificate of Incorporation of the ||
| ||Registrant, as amended, incorporated by reference from ||
| ||Exhibit 3.1 to the Registrant's Form 10-Q for the quarter ||
| ||ended March 31, 2006. ||
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| 5.1 ||Opinion of Counsel ||
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| 23.1 ||Consent of Counsel (included in Exhibit 5.1) ||
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| 23.2 ||Consent of KPMG LLP ||
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| 24.1 ||Powers of Attorney (set forth on the signature pages of this||
| ||Registration Statement) ||
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EXHIBIT 5.1
April 23, 2007
Con-way Inc.
2855 Campus Drive
San Mateo, California 94403
Gentlemen:
At your request, I have examined the Registration Statement on Form S-8
executed by you on April 23, 2007 and to be filed with the Securities and
Exchange Commission on or about April 23, 2007 in connection with the
registration under the Securities Act of 1933, as amended, of Common Stock
and Common Stock Units issuable pursuant to the Con-way Inc. Deferred
Compensation Plan for Non-Employee Directors (the "Plan").
As your counsel in connection with the Registration Statement, I have
examined the proceedings taken by you in connection with the adoption of
the Plan and the authorization of the issuance of shares of Common Stock
under the Plan (the "Plan Shares") and such documents as I have deemed
necessary to render this opinion.
Based upon the foregoing, it is my opinion that the Plan Shares, when issued
and outstanding pursuant to the terms of the Plan, will be validly issued,
fully paid and nonassessable shares of Common Stock.
I consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Gary S. Cullen
Gary S. Cullen
Vice President, Deputy General Counsel and Assistant Secretary
Con-way Inc.
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Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
To the Board of Directors
Con-way Inc.:
We consent to the incorporation by reference in the registration statement on
Form S-8 of Con-way Inc. of our reports dated February 27, 2007, with respect
to the consolidated balance sheets of Con-way Inc. and subsidiaries as of
December 31, 2006 and 2005, and the related consolidated statements of
operations, shareholders' equity, and cash flows, for each of the years in
the three-year period ended December 31, 2006, and the related financial
statement schedule, management's assessment of the effectiveness of internal
control over financial reporting as of December 31, 2006 and the
effectiveness of internal controls over financial reporting as of
December 31, 2006, which reports appear in the December 31, 2006 annual
report on Form 10-K of Con-way Inc.
As discussed in Note 1 to the consolidated financial statements, the Company
adopted Statement of Financial Accounting Standards No. 158, Employers'
Accounting for Defined Benefit Pension and Other Postretirement Plans, which
was adopted as of December 31, 2006.
/s/ KPMG LLP
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KPMG LLP
Portland, Oregon
April 23, 2007