As filed with the Securities and Exchange Commission on November 3, 2009
Registration No. 333-
_________________________________________________________________________
_________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________________________
Con-way Inc.
(Exact name of Registrant as specified in its charter)
Delaware 94-1444798
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
2855 Campus Drive, Suite 300 94403
San Mateo, California (Zip Code)
(Address of principal executive offices)
__________________________________
Con-way Retirement Savings Plan
Con-way 401(k) Plan
Con-way Personal Savings Plan
Con-way Inc. Employee Stock Purchase Plan
_______________(full title of the plans)___________________
Jennifer W. Pileggi
Executive Vice President, General Counsel and Secretary
Con-way Inc.
2855 Campus Drive, Suite 300
San Mateo, California 94403
Telephone: (650) 378-5200
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
__________________________________
Indicate by check mark whether the registrant is a large accelerated filer,
an accelerated filer, a non-accelerated filer, or a smaller reporting
company.
Large accelerated filer XXX Accelerated filer
Non-accelerated filer Smaller reporting company
CALCULATION OF REGISTRATION FEE
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Title of Each Class | Amount |Proposed | Proposed | Amount of
of Securities to Be | to Be | Maximum | Maximum |Registration Fee
Registered |Registered|Offering | Aggregate |
| |Price per | Offering Price |
| | Share | |
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Common Stock, |
$0.625 par value..|9,000,000 (A) |$32.66 (B)|$293,940,000 (B)|$16,401.85 (C)
| | | |
Interests in the | | | |
Plans...............| (D) | | | N/A
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(A) Plus such indeterminate number of additional shares or units as may be
necessary to adjust the number of shares reserved for issuance pursuant
to the Plans subject to this Registration Statement as a result of any
future stock split, stock dividend or similar adjustment of the
outstanding Common Stock.
(B) 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 October 29, 2009.
(C) In accordance with Rule 457(h), the filing fee is based on the maximum
number of the Registrant's securities issuable under the Plans that are
covered by this registration Statement.
(D) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the Plans described herein.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The documents listed below are incorporated by reference in
this Registration Statement.
(a) The Registrant's Annual Report on Form 10-K for the
year ended December 31, 2008, filed with the Securities and
Exchange Commission ("SEC") pursuant to Section 13 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
the Annual Report on Form 11-K for the year ended December 31,
2008, of the Registrant's Retirement Savings Plan filed with the
SEC pursuant to Section 15 of the Exchange Act, and Annual Report
on Form 11-K for the year ended December 31, 2008, of the
Registrant's Con-way 401(k) Plan filed with the SEC pursuant to
Section 15 of the Exchange Act.
(b) The Registrant's Quarterly Reports on Form 10-Q for
the quarters ended March 31, 2009 and June 30, 2009 filed with the
SEC pursuant to Section 13 of the Exchange Act.
(c) The Registrant's Current Reports on Form 8-K filed
with the SEC on January 16, 2009, January 29,2009, March 9, 2009,
May 6, 2009, May 22, 2009 and September 22, 2009.
(d) 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").
(e) All documents filed with the SEC pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act by the
Registrant or with respect to any employee benefit plan subject to
this Registration Statement, subsequent to December 31, 2008 but
prior to the filing of a post-effective amendment which indicates
that all securities offered 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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
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
judgements, 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
actions where such person is adjudged liable to the corporation, unless, and
made in derivative 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.
EXHIBIT NO. DESCRIPTION
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 June 30, 2009, filed
on August 6, 2009.
5.1 Opinion of Counsel
Pursuant to Item 8 of Form S-8, in lieu of furnishing an opinion of
counsel concerning compliance with the requirements of ERISA or an
IRS determination letter that the Con-way Retirement Savings Plan,
Con-way 401(k) Plan and Con-way Personal Savings Plan are qualified
under Section 401 of the Internal Revenue Code, the Registrant
undertakes that the Registrant will submit or has submitted the
applicable Plans and amendment thereto to the Internal Revenue
Service ("IRS") in a timely manner and has made or will make all
changes required by the IRS in order to qualify such Plans.
23.1 Consent of Counsel (included in Exhibit 5.1)
23.2 Consent of Independent Public Accountants (Exhibit 23.2)
24 Powers of Attorney (set forth on the signature pages to this
Registration Statement)
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(a) 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;
(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 paragraphs (a)(i) and (a)(ii) do not apply
if the registration statement is on Form S-8, and 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 the registration statement.
(b) 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.
(c) 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.
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 Securities Exchange Act
of 1934) 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.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the 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 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 September 20, 2009.
CON-WAY INC.
By: /s/ Jennifer W. Pileggi
__________________________________
JENNIFER W. PILEGGI
Executive Vice President,
General Counsel and Secretary
THE PLANS. Pursuant to the requirements of the Securities Act of 1933, the
Administrative Committee of Con-way Inc., as administrator of the Plans, has
duly caused this Registration Statement to be signed on the Plans' behalf by
the undersigned, thereunto authorized, in the City of San Mateo, State of
California, on September 20, 2009.
By: /s/ Benedict J. Bowler
__________________________________
BENEDICT J. BOWLER
Chairman, Administrative Committee
POWER OF ATTORNEY AND ADDITIONAL SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated. Each person whose signature appears
below constitutes and appoints Jennifer W. Pileggi and Gary S. Cullen, and
each of them, his or her true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him or her and in his or
her name, place and stead, in any and all capacities, to sign any or all
amendments to this Registration Statement, including post-effective
amendments, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or their substitutes, may
lawfully do or cause to be done by virtue thereof.
Further, pursuant to the requirements of the Act, this Registration
Statement has been signed by the following persons in the capacities and on
the dates indicated.
SIGNATURE TITLE DATE
/s/ W. Keith Kennedy, Jr. Chairman of the Board September 20, 2009
__________________________ (Director)
W. KEITH KENNEDY, JR.
/s/ Douglas W. Stotlar President and Chief September 20, 2009
__________________________ Executive Officer
DOUGLAS W. STOTLAR (Principal Executive
Officer and Director)
/s/ Stephen L. Bruffett Executive Vice President and September 20, 2009
__________________________ Chief Financial Officer
STEPHEN L. BRUFFETT (Principal Financial and
Principal Accounting Officer)
/s/ Kevin S. Coel Senior Vice President September 20, 2009
__________________________ and Controller
KEVIN S. COEL
/s/ John J. Anton Director September 20, 2009
__________________________
JOHN J. ANTON
/s/ William R. Corbin Director September 20, 2009
__________________________
WILLIAM R. CORBIN
/s/ Robert Jaunich II Director September 20, 2009
__________________________
ROBERT JAUNICH II
/s/ Michael J. Murray Director September 20, 2009
__________________________
MICHAEL J. MURRAY
/s/ John C. Pope Director September 20, 2009
__________________________
JOHN C. POPE
/s/ William J. Schroeder Director September 20, 2009
__________________________
WILLIAM J. SCHROEDER
/s/ Peter W. Stott Director September 20, 2009
__________________________
PETER W. STOTT
/s/ Chelsea C. White III Director September 20, 2009
__________________________
CHELSEA C. WHITE III
LIST OF EXHIBITS
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 of Registrant's Form 10-Q for the
quarter ended June 30, 2009, filed on August 6, 2009
5.1 Opinion of Counsel
23.1 Consent of Counsel (included in Exhibit 5.1)
23.2 Consent of KPMG LLP (Exhibit 23.2)
24 Powers of Attorney (set forth on the signature pages of
this Registration Statement)
EXHIBIT 5.1
November 3, 2009
Con-way Inc.
2855 Campus Drive, Suite 300
San Mateo, California 94403
Gentlemen:
At your request, I have examined the Registration Statement on Form S-8
executed by you on September 20, 2009 and to be filed with the Securities and
Exchange Commission on or about November 3, 2009 in connection with the
registration under the Securities Act of 1933, as amended, of Common Stock
issuable pursuant to the Con-way Retirement Savings Plan, Con-way 401(k)
Plan, Con-way Personal Savings Plan and Employee Stock Purchase Plan (the
"Plans").
As your counsel in connection with the Registration Statement, I have
examined the proceedings taken by you in connection with the authorization of
the issuance of shares of Common Stock under the Plans (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 (to the
extent such shares constitute original issuance securities), when issued and
outstanding pursuant to the terms of the Plans, 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.
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 our report dated February 27, 2009, with respect to the
consolidated balance sheets of Con-way Inc. and subsidiaries (the Company) as
of December 31, 2008 and 2007, and the related consolidated statements of
income, shareholders' equity and cash flows for each of the years in the
three-year period ended December 31, 2008 and the effectiveness of internal
control over financial reporting as of December 31, 2008, which report
appears in the December 31, 2008 annual report on Form 10-K of Con-way Inc.
We consent to the incorporation by reference in the registration statement on
Form S-8 of Con-way Inc. of our report dated June 29, 2009, with respect to
the statements of net assets available for benefits of the Con-way Retirement
Savings Plan (formerly the CNF Inc. Thrift and Stock Plan) as of December 31,
2008 and 2007, and the related statements of changes in net assets available
for benefits for the year ended December 31, 2008 and the supplemental
schedule - schedule H, line 4i - schedule of assets (held at end of year) as
of December 31, 2008, which report appears in the December 31, 2008 annual
report on Form 11-K of the Con-way Retirement Savings Plan.
We consent to the incorporation by reference in the registration statement on
Form S-8 of Con-way Inc. of our report dated June 29, 2009, with respect to
the statements of net assets available for benefits of the Con-way 401(k)
Plan (formerly the Menlo Worldwide Forwarding, Inc. Savings Plan) as of
December 31, 2008 and 2007, and the related statement of changes in net
assets available for benefits for the year ended December 31, 2008 and the
supplemental schedule - schedule H, line 4i - schedule of assets (held at end
of year) as of December 31, 2008, which report appears in the December 31,
2008 annual report on Form 11-K of the Con-way 401(k) Plan.
/s/ KPMG LLP
__________________________
Portland, Oregon
October 30, 2009