As filed with the Securities and Exchange Commission on April 26, 2006
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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. 2006 Equity and Incentive Plan
_______________(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 Be | Registered |Offering | Aggregate | |
| Registered | |Price per| Offering Price) | |
| | | Share | | |
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| | | | | |
|Common Stock, | | | | |
|$0.625 par value.|6,200,000(A)|$51.80(B)| $321,160.000 (B)| $34,364.12(C)|
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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 Plan subject to the 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 April 21, 2006.
(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.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The documents listed in (a) through (c) 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, 2005, 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) All other reports subsequently filed pursuant to
Section 13(a) of 15(d) of the Exchange Act.
(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.
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 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.
EXH DESCRIPTION
NO.
4.1.1 Article Fourth of the Certificate of Incorporation of the Registrant,
as amended, incorporated by reference from Exhibit 3.1 to the
Registrant's annual report on Form 10-K for the fiscal year ended
December 31, 2002, filed on March 24, 2003
4.1.2 Con-way Inc. 2006 Equity and Incentive Plan incorporated by reference
from the Con-way Inc. Proxy Statement for the 2006 Annual Meeting of
Shareholders
5.1 Opinion of Counsel
23.1 Consent of Counsel (included in Exhibit 5.1)
23.2 Consent of Registered Public Accounting Firm
24.1 Powers of Attorney (set forth on the signature pages to this
Registration Statement)
ITEM 9. UNDERTAKINGS.
The Registrant hereby undertakes as follows:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement 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.
(2) That, for the purposes of determining any liability under the
Securities Act, 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.
(4) 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.
(5) 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 24, 2006.
CON-WAY INC.
By: /s/ Jennifer W. Pileggi
Jennifer W. Pileggi
Senior Vice President, General Counsel and
Secretary
EXHIBIT 24.1
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.
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|Signature |Title | Date |
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| |Chairman of the Board (Director)|April,24 2006 |
| | | |
| | | |
|/s/ W.Keith Kennedy,Jr. | | |
|----------------------- | | |
|W. Keith Kennedy,Jr. | | |
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| |President and Chief Executive |April 24, 2006 |
| |Officer | |
| |(Principal Executive Officer) | |
|/s/Douglas W.Stotlar | | |
|--------------------- | | |
|Douglas W.Stotlar | | |
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| |Senior Vice President and Chief |April 24,2006 |
| |Financial Officer | |
| |(Principal Financial and | |
| |Principal Accounting Officer) | |
| | | |
|/s/ Kevin C Schick | | |
|------------------- | | |
|Kevin C.Schick | | |
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| |Vice President and Controller |April 24, 2006 |
| | | |
|/s/ Kevin S. Coel | | |
|------------------ | | |
|Kevin S.Coel | | |
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| |Director |April 24, 2006 |
| | | |
|/s/ John J. Anton | | |
|------------------ | | |
|John J.Anton | | |
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| |Director |April 24, 2006 |
| | | |
| | | |
|/s/ William R. Corbin | | |
|---------------------- | | |
|William R. Corbin | | |
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| |Director |April 24, 2006 |
| | | |
|/s/Margaret G. Gill | | |
|-------------------- | | |
|Margaret G. Gill | | |
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| |Director |April 24, 2006 |
| | | |
|/s/ Robert Jaunich II | | |
|---------------------- | | |
|Robert Jaunich II | | |
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| |Director |April 24, 2006 |
| | | |
|/s/ Henry H. Mauz, Jr. | | |
|---------------------- | | |
|Henry H. Mauz, Jr. | | |
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| |Director |April 24,2006 |
| | | |
|/s/ Michael J. Murray | | |
|---------------------- | | |
|Michael J. Murray | | |
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| |Director |April 24,2006 |
| | | |
|/s/ John C. Pope | | |
|------------------- | | |
|John C.Pope | | |
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| |Director |April 24,2006 |
| | | |
|/s/ Robert D. Rogers | | |
|---------------------- | | |
|Robert D. Rogers | | |
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| |Director |April 24, 2006|
| | | |
|/s/ William J. Schroeder | | |
|------------------------- | | |
|William J. Schroeder | | |
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| |Director |April 24, 2006|
| | | |
|/s/ Peter W. Stott | | |
|------------------- | | |
|Peter W. Stott | | |
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| |Director |April 24, 2006|
| | | |
|/s/ Robert P. Wayman | | |
|--------------------- | | |
|Robert P. Wayman | | |
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| |Director |April 24, 2006
| | | |
|/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 | ||Page|
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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 annual report on ||N/A |
| ||Form 10-K for the fiscal year ended December 31, 2002, || |
| ||filed on March 24, 2003 || |
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| 4.2 ||Con-way Inc. 2006 Equity and Incentive Plan incorporated||N/A |
| ||by reference from the Con-way Inc. Proxy Statement for || |
| ||the 2006 Annual Meeting of Shareholders. || |
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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 Registered Public Accounting Firm || |
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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 25, 2006
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 24, 2006 and to be filed with the Securities and
Exchange Commission on or about April 24, 2006 in connection with the
registration under the Securities Act of 1933, as amended, of Common Stock
issuable pursuant to the Con-way Inc. 2006 Equity and Incentive Plan (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,
Gary S. Cullen
Vice President and Deputy General Counsel
Con-way Inc.
EXHIBIT 23.2
Consent of Independent Registered Public Accounting Firm
The Board of Directors
Con-way Inc.
We consent to the incorporation by reference in this registration statement
on Form S-8 of Con-way Inc. and subsidiaries of our reports dated March 13,
2006, with respect to the consolidated balance sheets of CNF Inc. (now named
Con-way Inc.) as of December 31, 2005 and 2004, 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, 2005, and the related
financial statement schedule, management's assessment of the effectiveness of
internal control over financial reporting as of December 31, 2005 and the
effectiveness of internal control over financial reporting as of December 31,
2005, which reports appear in the December 31, 2005 annual report on Form 10-
K of CNF Inc.
/s/ KPMG LLP
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KPMG LLP
Portland, Oregon
April 24, 2006