exv10w57






Exhibit 10.57




CON-WAY INC.




2005 SUPPLEMENTAL EXCESS RETIREMENT PLAN




AMENDED AND RESTATED DECEMBER 2008





 









 










CON-WAY INC.




2005 SUPPLEMENTAL EXCESS RETIREMENT PLAN

AMENDED AND RESTATED DECEMBER 2008




TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE 1 Effective Date; Tax and ERISA Status
	 	 	1	 
	 
	 	 	 	 
	1.01 Effective Date; Plan Year
	 	 	1	 
	1.02 Tax and ERISA Status
	 	 	2	 
	 
	 	 	 	 
	ARTICLE 2 Application to the Company and Affiliates
	 	 	2	 
	 
	 	 	 	 
	2.01 Affiliates
	 	 	2	 
	 
	 	 	 	 
	ARTICLE 3 Participation and Benefits
	 	 	3	 
	 
	 	 	 	 
	3.01 Participation
	 	 	3	 
	3.02 Amount of Benefit
	 	 	3	 
	3.03 Vesting
	 	 	4	 
	3.04 Time and Form of Benefits
	 	 	4	 
	 
	 	 	 	 
	ARTICLE 4 Administration
	 	 	6	 
	 
	 	 	 	 
	4.01 Administrative Committee
	 	 	6	 
	4.02 Plan Administrator; Plan Administrator Powers and Duties
	 	 	6	 
	4.03 Claims Procedure
	 	 	6	 
	4.04 Authority to Act for the Company or Employer
	 	 	6	 
	4.05 Expenses; Indemnification
	 	 	7	 
	4.06 Trust
	 	 	7	 
	 
	 	 	 	 
	ARTICLE 5 Amendment and Termination
	 	 	8	 
	 
	 	 	 	 
	5.01 Amendment
	 	 	8	 
	5.02 Termination
	 	 	8	 
	 
	 	 	 	 
	ARTICLE 6 General Provisions
	 	 	9	 
	 
	 	 	 	 
	6.01 Information for Plan Administrator
	 	 	9	 
	6.02 Applicable Law; Captions; Capitalized Terms
	 	 	9	 
	6.03 Plan Binding on All Parties; Liability for Benefits
	 	 	9	 
	6.04 Not Contract of Employment
	 	 	9	 






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	 	 	Page	 
	6.05 Notices
	 	 	10	 
	6.06 Benefits Not Assignable
	 	 	10	 
	6.07 Actuarial Equivalency
	 	 	10	 
	6.08 Savings Clause
	 	 	10	 
	6.09 Payment of Withholding
	 	 	11	 
	 
	 	 	 	 
	Administrative Appendix
	 	 	12	 
	Compliance Appendix
	 	 	14	 







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INDEX OF TERMS




	 	 	 	 	 	 	 	 	 
	Term	 	Section	 	Page
	Actuarial Equivalent

	 	 	6.07	 	 	 	10	 
	Administration Appendix

	 	Preamble
	 	 	1	 
	Affiliate

	 	 	2.01-2	 	 	 	2	 
	 
	 	 	 	 	 	 	 	 
	Basic Benefit

	 	 	3.02-1	(a)	 	 	3	 
	Basic Compensation

	 	 	3.02-1	(a)	 	 	3	 
	Board

	 	 	4.04-2	 	 	 	7	 
	Break in Service Years

	 	 	3.03	 	 	 	4	 
	 
	 	 	 	 	 	 	 	 
	Code

	 	Preamble
	 	 	1	 
	Committee

	 	 	4.01-1	 	 	 	6	 
	Company

	 	Preamble
	 	 	1	 
	Compliance Appendix

	 	Preamble
	 	 	1	 
	 
	 	 	 	 	 	 	 	 
	Deferred Compensation Plan

	 	 	6.02	 	 	 	9	 
	 
	 	 	 	 	 	 	 	 
	Employer

	 	 	2.01-3	 	 	 	2	 
	ERISA

	 	 	1.02-2	 	 	 	2	 
	 
	 	 	 	 	 	 	 	 
	Participant

	 	 	3.01-2	 	 	 	3	 
	Plan

	 	Preamble
	 	 	1	 
	Plan Administrator

	 	 	4.02	 	 	 	6	 
	Plan Sponsor

	 	 	2.01-1	 	 	 	2	 
	Plan Year

	 	 	1.01-2	 	 	 	1	 
	Prior Plan

	 	Preamble
	 	 	1	 
	 
	 	 	 	 	 	 	 	 
	Retirement Plan

	 	Preamble
	 	 	1	 
	 
	 	 	 	 	 	 	 	 
	Section 409A

	 	Preamble
	 	 	1	 
	Specified Employee

	 	 	3.04-4	 	 	 	5	 
	Spouse

	 	 	3.02-3	 	 	 	4	 
	Supplemental Basic Compensation

	 	 	3.02-2	 	 	 	3	 
	 
	 	 	 	 	 	 	 	 
	Termination Date

	 	 	5.02-1	 	 	 	8	 






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CON-WAY INC.




2005 SUPPLEMENTAL EXCESS RETIREMENT PLAN

AMENDED AND RESTATED DECEMBER 2008




Preamble




     Con-way Inc. (the “Company”) maintains a Supplemental Excess Retirement Plan (the “Prior
Plan”) for the purpose of providing key executives of the Company with retirement benefits in
excess of those benefits provided under the Con-way Pension Plan, formerly named the CNF Inc.
Retirement Plan (the “Retirement Plan”) and the EWA Pilots’ Retirement Plan. The Company has
amended the Prior Plan to limit it to pre-2005 accruals. As a consequence, the Prior Plan need not
meet the requirements of Section 409A of the Internal Revenue Code (the “Code”). The Company
initially adopted this 2005 Supplemental Excess Retirement Plan (the “Plan”) under its former name,
the CNF Inc. 2005 Supplemental Excess Retirement Plan, to provide for post-2004 accruals in such a
way as to meet the requirements of Code Section 409A, the regulations thereunder and any additional
guidance (including Notice 2005-1) provided by the Treasury Department thereunder (collectively,
“Section 409A”), and has maintained and operated the Plan in good faith compliance with the
requirements of Section 409A since its adoption. The Company previously amended and restated the
Plan effective January 1, 2008, to comply with the provisions of Section 409A. The Company hereby
further amends and restates the Plan in its entirety effective January 1, 2009. For the period
from January 1, 2005 through December 31, 2008, the Plan observed good faith operational compliance
with Section 409A in accordance with transitional guidance issued thereunder. A separate appendix
(the “Compliance Appendix”) sets forth the transition rules used for administration of the Plan
implemented as a good faith effort to comply with Section 409A prior to the effective date of the
final Treasury regulations thereunder; by this reference, the Compliance Appendix is specifically
incorporated into this Plan.



     A separate appendix (the “Administrative Appendix”) sets forth additional rules and procedures
governing the administration of this Plan; by this reference, the Administrative Appendix is
specifically incorporated into this Plan.



ARTICLE 1

Effective Date; Tax and ERISA Status




     1.01 Effective Date; Plan Year



          1.01-1 The Plan shall be effective January 1, 2005. The effective date of this restated Plan
document shall be January 1, 2009.



          1.01-2 The “Plan Year” of the Plan shall be the calendar year, the same as for the Retirement
Plan.



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     1.02 Tax and ERISA Status



          1.02-1 The Plan is not intended to qualify under Code Section 401(a).



          1.02-2 The Plan is intended to constitute a plan of deferred compensation for a select group
of management or highly compensated employees within the meaning of Sections 201(2), 301(a)(3) and
401(a)(4) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”).



ARTICLE 2

Application to the Company and Affiliates




     2.01 Affiliates



          2.01-1 The Company is the “Plan Sponsor;” it sponsors the Plan for its employees and for the
employees of any Affiliate that is an Employer under the Plan.



          2.01-2 “Affiliate” means a corporation, person or other entity that is one of the following:




          (a) A member, with an Employer, of a controlled group under Code Section 414(b).




          (b) A member, with an Employer, of a group of trades or businesses under common control
under Code Section 414(c).




          (c) A member, with an Employer, of an affiliated service group under Code Section
414(m).




          (d) A member, with an Employer, of a group of employers required to be aggregated under
Code Section 414(o).



          2.01-3 Employer



     “Employer” means the Company or any Affiliate that is an Employer under the Retirement Plan.
Except as otherwise provided, references in the Plan to “Employers” shall mean all of the Company
and each Affiliate that is an Employer under the Retirement Plan.




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ARTICLE 3

Participation and Benefits




     3.01 Participation



          3.01-1 Any employee of Employer who participates in the Retirement Plan shall be eligible for
this Plan if the employee has either of the following:




          (a) Compensation deferred under an elective nonqualified deferred compensation plan of
Employer.




          (b) Compensation, as defined in a Retirement Plan, in excess of the limit imposed by
Code Section 401(a)(17).



          3.01-2 “Participant” means any employee of Employer who satisfies the conditions of 3.01-1.



          3.01-3 In the event a Participant Separates from Service and subsequently resumes providing
services to the Company or any of the Employers (whether or not such an “Employer” under the
Retirement Plan) such return to service shall have no effect on the time or form of any Plan
payments being made to the Participant as of the date Participant’s services resume. Where
following such return to service the Participant accrues additional benefits under this Plan, any
additional accrual shall be payable under the terms of this Plan when the Participant again
Separates from Service.



          3.01-4 At the time of benefit commencement, each Participant shall, if applicable, file a
beneficiary designation form with the Plan Administrator, in such form as the Plan Administrator
may approve, naming a specific beneficiary or beneficiaries, subject to the rules that apply to
designations of beneficiaries under the Retirement Plan, including consent requirements, rules for
determining beneficiaries in the absence of a valid designation, and disclaimers, with such changes
as may be made by the Plan Administrator.



     3.02 Amount of Benefit



          3.02-1 A Participant shall have a retirement benefit under the Plan equal to the excess of (a)
over (b) based on the Retirement Plan covering the Participant:




     (a) The “Basic Benefit,” as defined in the Retirement Plan, the Participant would have
had if Supplemental Basic Compensation were used in place of “Basic Compensation” as defined
in the Retirement Plan.




     (b) The sum of (i) the Participant’s actual Basic Benefit under the Retirement Plan and
(ii) the Participant’s retirement benefit provided by the Prior Plan.



          3.02-2 “Supplemental Basic Compensation” means a Participant’s Basic Compensation increased to
include:



3









 






     (a) Any compensation deferred by the Participant pursuant to a nonqualified deferral
arrangement that, but for such arrangement, would have been included in Basic Compensation;
and




     (b) Any compensation that would have been included in Basic Compensation but for the
limitations imposed by Code Section 401(a)(17).


An amount described in (a) shall be counted as Supplemental Basic Compensation in the year in which
it would have been paid but for such deferral. An amount described in (b) shall be counted as
Supplemental Basic Compensation in the year paid.




          3.02-3 If the surviving Spouse of a Participant is entitled to a pre-retirement survivor
annuity under a Retirement Plan, the Spouse shall have a benefit under this Plan calculated by
applying the provisions of the Retirement Plan for the amount of pre-retirement survivor annuity to
an accrued benefit of the Participant on the date of death equal to the excess benefit described in
3.02-1. For purposes of the Plan, the term “Spouse” has the meaning set forth in the Defense of
Marriage Act of 1996 (P.L. 104-199), as amended. (As of January 1, 2005, this definition is a
legal union between one man and one woman as husband and wife.)



     3.03 Vesting



     A Participant’s retirement benefit under this Plan shall become vested at the same time as the
Participant’s retirement benefit under the Retirement Plan becomes vested. If the Participant
forfeits retirement benefits due to having five consecutive “Break in Service Years” as defined in
the Retirement Plan, the Participant’s benefits under this Plan also shall be forfeited.



     3.04 Time and Form of Benefits



          3.04-1 A retirement benefit or preretirement survivor annuity under this Plan shall be paid at
the same time and in the same form as the corresponding benefit is paid under the Retirement Plan;
provided, however that, if such payment would cause the Plan to fail to meet the requirements of
Section 409A, the retirement benefit or preretirement survivor annuity under this Plan shall be
paid at the time and in the form the corresponding benefit would have been paid under the
Retirement Plan if:




     (a) The Participant had elected to commence benefits under the Retirement Plan at the
earliest time permitted but not before the time the Participant had incurred a Separation
from Service (as that term is defined in the Deferred Compensation Plan).




     (b) If the Participant has no Spouse when benefits would have commenced, benefits were
paid in the form of the “Basic Benefit” as defined in the Retirement Plan.



4









 






     (c) If the Participant has a Spouse when benefits would have commenced, benefits were
paid in the form of a life annuity with fifty percent (50%) payments continued to the
Spouse, an Actuarially Equivalent annuity with seventy-five percent (75%) payments continued
to the Spouse or an Actuarially Equivalent annuity with full, unreduced payments continued
to the Spouse. The Participant may elect any of these joint and survivor annuity options at
the time of benefit commencement.



          3.04-2 If a Participant dies after benefits under this Plan commence, survivor benefits, if
any, shall be paid in accordance with the form of benefit being paid to the Participant under this
Plan.



          3.04-3 Effective as of January 1, 2009, if the Actuarial Equivalent lump sum value of a
benefit payable to a Participant or surviving Spouse is less than the applicable dollar amount
under Code Section 402(g)(1)(B) in effect in the calendar year of the Participant’s Separation from
Service, payment shall be made at that time in a lump sum and not in the form provided in 3.04-1 or
3.04-2. Such lump sum payment shall be paid as soon as administratively practicable following the
Participant’s Separation from Service, but not later than two and one-half (2 1/2) months following
such Separation from Service. Where a Participant Separates from Service, begins receiving Plan
benefit payments (either as a lump sum or in the form provided in 3.04-1 or 3.04-2), returns to
service with the Company or any of the Employers and accrues additional benefits under this Plan,
the entire benefit to the Participant, both paid and payable, must be taken into consideration when
determining whether it qualifies for lump sum payment under this subsection 3.04-3, including any
amounts already paid to Participant as a lump sum. Prior to January 1, 2009, the lump sum payment
threshold was $10,000.



          3.04-4 Notwithstanding the foregoing provisions of this Section 3.04, if the Participant is a
“Specified Employee” (as that term is defined in the Deferred Compensation Plan) and the payment of
benefits is on account of a Participant’s Separation from Service, benefits may not be paid or
commence before the earlier of (a) the date that is six (6) months after the Participant’s
Separation from Service or (b) the Participant’s death. Benefits that were scheduled to be paid
during the six (6) month period following the Participant’s Separation from Service, but which were
delayed pursuant to this Section 3.04-4, shall be paid on or as soon as administratively
practicable after the first day of the seventh month after the Participant’s Separation from
Service (or if earlier, the date of the Participant’s death). Benefits that were originally
scheduled to be paid following the six (6) months after the date of the Participant’s Separation
from Service shall continue to be paid according to their pre-determined schedule.




5









 




ARTICLE 4

Administration




     4.01 Administrative Committee



          4.01-1 “Committee” means the Administrative Committee or any other committee with
responsibility for administering the Retirement Plan.



          4.01-2 Documents may be signed for the Committee by the chair, the secretary or other persons
designated by the Committee.



     4.02 Plan Administrator; Plan Administrator Powers and Duties



          4.02-1 The Plan Administrator shall interpret the Plan, shall decide any questions about the
rights of Participants, surviving Spouses and Beneficiaries and in general shall administer the
Plan. All actions taken by the Plan Administrator (or its delegate) will be conclusive and binding
on all persons having any interest under the Plan, subject only to the claims procedures in the
Administrative Appendix. All findings, decisions and determinations of any kind made by the Plan
Administrator or its delegate shall not be disturbed unless the Plan Administrator has acted in an
arbitrary and capricious manner. The Company intends the Plan to meet the requirements of Section
409A. The Plan Administrator shall interpret the Plan in such a way as to meet such requirements.



          4.02-2 The Committee shall be the “Plan Administrator” under federal laws and regulations
applicable to plan administration and shall comply with such laws and regulations. The general
counsel for the Company shall be the agent for service of process on the Plan at the Company’s
address.



          4.02-3 The Plan Administrator may delegate all or part of its administrative duties to one or
more agents and may retain advisors to assist it. The Plan Administrator may consult with and rely
upon the advice of counsel who may be counsel for the Company. The Plan Administrator shall retain
an enrolled actuary, who shall be the same as the enrolled actuary for the Retirement Plan.



          4.02-4 The Plan Administrator shall keep records of all relevant data about the rights of all
persons under the Plan, may adjust any retirement benefit payable under the Plan and may recoup
overpayments if an error in relevant data or calculation is discovered. The Plan Administrator
shall determine eligibility to participate, the proper recipient of benefits, the service of any
employee, and (subject to the limitations imposed by Section 409A), instruct the Trustee (if any
there be) on distributions.



     4.03 Claims Procedure



          4.03-1 The Plan’s claims procedure shall be as set forth in the Plan’s Administrative
Appendix.



     4.04 Authority to Act for the Company or Employer



6









 





          4.04-1 Except as provided in 4.04 2, all authority of the Company or any Employer under this
Plan shall be exercised by the chief executive officer of the Company, who may delegate all or any
part of such authority.



          4.04-2 The power to amend or terminate the Plan may be exercised only by the Board of
Directors of the Company (the “Board”), except as provided in 4.04 3. Notwithstanding the
foregoing to the contrary, the provisions set forth in the Administrative Appendix may be amended
by either the Board or the Plan Administrator.



          4.04-3 Any officer of the Company may amend the Plan to make technical, administrative or
editorial changes on advice of counsel to comply with applicable law or to simplify or clarify the
Plan.



          4.04-4 The Board of Directors of the Company or of an Employer shall have no administrative or
investment authority or function. Membership on the Board shall not make a person a plan
fiduciary.



     4.05 Expenses; Indemnification



          4.05-1 The Plan Administrator shall not be compensated for services. The Plan Administrator
shall be reimbursed for all expenses.



          4.05-2 The Company shall indemnify and defend any Plan fiduciary who is an officer, director
or employee of an Employer from any claim, loss, liability, or expense, including attorneys’ fees,
arising from any action or inaction in connection with the Plan, subject to the following:




          (a) Coverage shall be limited to actions taken in good faith that the fiduciary
reasonably believed were not contrary to the terms of the Plan.




          (b) Coverage shall be reduced to the extent of any insurance proceeds.



     4.06 Trust



     Amounts payable to a Participant, surviving Spouse or beneficiary under this Plan shall be
paid from the general assets of the Company (including without limitation the assets of any trust
established to fund payment of obligations hereunder) exclusively. A Participant’s right to Plan
distributions shall be no greater than the rights to payment of general, unsecured creditors of the
Company. The Company may, in its discretion, establish one or more grantor trusts (as defined in
Code Section 671 et seq.) to facilitate the payment of benefits hereunder; however, the Company
shall not be obligated under any circumstances to fund its financial obligations under the Plan.
Any assets which the Company may acquire or set aside to defray its financial liabilities shall be
subject to the claims of its general creditors in the event of the Company’s



7









 







insolvency. The assets of any such trust shall not, at any time, be located outside of the
United States or transferred outside of the United States. References herein to a “Trustee” shall
be to that person who is responsible for administration and management of such a trust in
accordance with its terms.



ARTICLE 5

Amendment and Termination




     5.01 Amendment



     The Company, acting through its Board, may amend this Plan at any time, except that no
amendment shall reduce or otherwise materially and adversely affect the benefits under this Plan of
a Participant accrued on the basis of service and compensation up to the date on which the
amendment has been adopted and communicated to affected Participants. Notwithstanding the
foregoing, the Board may amend the Plan retroactively to the extent required to qualify the Plan
under Section 409A, to the extent the Board is of the opinion that such an amendment is required to
avoid the imposition of additional tax liabilities on a Participant under Section 409A or to
conform the Plan to the provisions and requirements of any applicable law, provided that no such
amendment may reduce any Participant’s accrued benefits hereunder. . No such amendment shall be
considered economically prejudicial to any interest of a Participant, surviving Spouse or
beneficiary hereunder.



     5.02 Termination



          5.02-1 The Company reserves the right to terminate the Plan at any time. Upon termination of
the Plan, the Company may elect to accelerate distribution of Participant accrued benefits
hereunder, but only if the accelerated distribution would not result in additional tax to the
Participants under Section 409A. As of the date that the Company takes all necessary action to
irrevocably terminate and liquidate the Plan (the “Termination Date”), the benefit rights of each
Participant shall be limited to those accrued on the basis of service and compensation up to the
Termination Date.



          5.02-2 Upon termination, the Company may satisfy the benefit rights of Participants and
surviving Spouses by any of the following:




          (a) Continuing the Plan to pay benefits in accordance with the payment forms determined
under 3.04, including benefits commencing after the termination date.




          (b) Paying to each Participant, and to each surviving Spouse then in pay status, a lump
sum equal to the Actuarial Equivalent present value of the benefit accrued as of the
termination date; provided, however, that unless otherwise permitted by Section 409A, no
such payment shall be made within twelve (12) months of the Termination Date; and provided,
further, that all such payments shall be completed within twenty four (24) months of the
Termination Date.



8









 





     (c) Purchasing and distributing to each Participant, and to each surviving Spouse then
in pay status, an insurance company annuity contract providing the benefit accrued as of the
termination date.



ARTICLE 6

General Provisions




     6.01 Information for Plan Administrator



          6.01-1 The Plan Administrator may accept as correct and rely on any information furnished by
the Company or an Employer. The Plan Administrator may not demand an audit, investigation or
disclosure of the records of the Company or any Employer.



          6.01-2 The Plan Administrator may require satisfactory proof of data from a Participant,
surviving Spouse, joint or contingent annuitant or beneficiary. A Participant will cooperate with
the Plan Administrator by furnishing any and all information requested by the Plan Administrator
and take such other actions as may be requested in order to facilitate the administration of the
Plan and the payments of benefits hereunder. The Plan Administrator may adjust any retirement
benefit if an error in relevant data is discovered.



     6.02 Applicable Law; Captions; Capitalized Terms



     The provisions of this Plan shall be construed and interpreted according to the laws of the
State of California, to the extent not preempted by federal law. The captions of the articles,
sections and paragraphs of this Plan are for convenience only and shall not control or affect the
meaning or construction of any of its provisions. Capitalized terms not otherwise defined herein
shall have the meanings prescribed to them under the 2005 Deferred Compensation Plan for Executives
and Key Employees as Amended and Restated December 2008, or its successor plan (the “Deferred
Compensation Plan”).



     6.03 Plan Binding on All Parties; Liability for Benefits



     This Plan shall be binding upon the heirs, personal representatives, successors and assigns of
all present and future parties. An Employer other than the Company shall have no liability to a
Participant or a Participant’s surviving Spouse or beneficiary for payment of any benefits under
the Plan.



     6.04 Not Contract of Employment



     The adoption and maintenance of the Plan shall not confer on any Participant any right to
continue in the employ of an Employer, and shall not interfere with the right of an Employer to
discharge any person without regard to the effect that such discharge might have on the person as a
Participant. This Plan shall only create a contractual



9









 







obligation on the part of the Company, and shall not be construed as creating a trust or any
fiduciary relationship.



     6.05 Notices



     Except as otherwise required or permitted under other provisions of this Plan or under
applicable law, any notice under this Plan shall be in writing and shall be effective when actually
delivered or, if mailed, when deposited postpaid as first-class mail. Notices to the Company,
Employer, or the Plan Administrator shall be directed to:


Corporate Benefits Office

Con-way Inc.

1717 NW 21st

Portland, OR 97209

PO Box 3680

Portland, OR 97208




     6.06 Benefits Not Assignable



     Neither a Participant nor any other person shall have the right to commute, sell, assign,
transfer, pledge, anticipate, mortgage or otherwise encumber, transfer, hypothecate or convey in
advance of actual receipt the amounts, if any, payable hereunder, or any part thereof, which are,
and all rights to which are expressly declared to be unassignable and non-transferable. No part of
the amounts payable shall, prior to actual payment, be subject to seizure or sequestration for the
payment of any debts, judgments, alimony or separate maintenance owed by a Participant or any other
person, nor be transferable by operation of law in the event of a Participant’s or any other
person’s bankruptcy or insolvency. Notwithstanding the preceding provisions of this section, the
Plan Administrator will recognize the provisions of a qualified domestic relations order as defined
in ERISA Section 206(d) that does not change the timing of the Participant’s benefit payments.



     6.07 Actuarial Equivalency



     “Actuarial Equivalent” or “Actuarially Equivalent” means an amount equivalent in value as
determined by the enrolled actuary retained for the Plan. The factors for determining equivalent
value shall be the same as those used under the Retirement Plan.



     6.08 Savings Clause



     The Company intends the Plan to meet the requirements of Section 409A. Any Plan provision that
does not meet such requirements shall be reformed so as to satisfy such requirements if such
reformation may be accomplished without substantially adversely affecting a Participant’s benefits,
and if in the good faith determination of the Plan Administrator such result cannot be achieved,
shall be treated as void. Moreover,



10









 








for purposes of applying the provisions of Section 409A to this Plan, each separately
identified amount to which Participant is entitled under this Plan shall be treated as a separate
payment. In addition, to the extent permissible under Section 409A, any series of installment
payments under this Plan shall be treated as a right to a series of separate payments.



     6.09 Payment of Withholding



     As a condition of receiving benefits under the Plan, the Participant shall pay the Company
and/or the applicable Employer not less than the amount of all applicable federal, state, local and
foreign taxes required by law to be paid or withheld relating to the receipt or entitlement to
benefits hereunder. The Company may withhold taxes from any benefits paid in its sole
determination.



     IN WITNESS WHEREOF, the Company has executed this Plan restatement on December 1, 2008.



CON-WAY INC.



	 	 	 	 	 
	By:

	 	 
 

	 	 
	Its: Senior Vice President, General Counsel and Secretary






11









 





ADMINISTRATIVE APPENDIX TO




CON-WAY INC.




2005 SUPPLEMENTAL EXCESS RETIREMENT PLAN

AMENDED AND RESTATED DECEMBER 2008




     I. Claims Procedure. Claims for benefits shall be administered in accordance with the
procedures set forth in this Administrative Appendix and any additional written procedures that may
be adopted from time to time by the Plan Administrator. The Plan Administrator may designate one
or more members of the Committee or one or more persons in the Company’s corporate benefits
department to act on behalf of the full Committee to review and decide claims.



          A. Submission of Claim



     A claim for benefit payment under this Plan shall be considered filed when a written request
is submitted to the Plan Administrator. The Plan Administrator shall respond to a claim in writing
or electronically. An authorized representative may act on behalf of a Participant, surviving
Spouse or beneficiary (hereinafter “Claimant”) who claims benefits.



          B. Notice of Denial



     Any time a claim for benefits is wholly or partially denied, the Claimant shall be given
written or electronic notice of such action within ninety (90) days after the claim is filed,
unless special circumstances require an extension of time for processing. If there is an
extension, the Claimant shall be notified of the extension and the reason for the extension within
the initial 90-day period. The extension shall not exceed 180 days after the claim is filed.



     Such notice will indicate i) the reason for denial, ii) the specific provisions of the Plan on
which the denial is based, iii) an explanation of the claims appeal procedure including the time
limits applicable to the procedure and a statement of the Claimant’s right to bring a civil action
under section 502(a) of ERISA and iv) a description of any additional material or information
necessary to perfect the claim and an explanation of why such material or information is necessary.



          C. Right to Request Review



     Any person who has had a claim for benefits denied by the Plan Administrator, who disputes the
benefit determination, or is otherwise adversely affected by action of the Plan Administrator,
shall have the right to request review by the Plan Administrator. The Plan Administrator or its
delegate shall provide a full and fair review that takes into account all comments, documents,
records, and other information submitted relating to



12









 







the claim, without regard to whether the information was previously submitted or considered in
the initial benefit determination. Such request must be in writing, and must be made within sixty
(60) days after such person receives notice of the denial. If written request for review is not
made within such 60-day period, the Claimant shall forfeit his or her right to review. The
Claimant shall be provided, upon request and free of charge, reasonable access to, and copies of,
all documents, records and other information relevant to the claim for benefits. The Claimant may
submit written comments, documents, records and other information relating to the claim.



          D. Review of Claim



     The Plan Administrator or its delegate shall then review the claim. The Plan Administrator or
its delegate may hold a hearing if it is deemed necessary and shall issue a written decision
reaffirming, modifying or setting aside the initial determination by the Plan Administrator within
a reasonable time and not later than sixty (60) days after receipt of the written request for
review, or 120 days if special circumstances, such as a hearing, require an extension. If an
extension is required, the Claimant shall be notified in writing or electronically within the
initial 60-day period of the extension, the special circumstances requiring the extension, and the
date by which the Plan expects to render a determination.



     A copy of the decision shall be furnished to the Claimant. The decision shall set forth the
specific reasons for the decision and specific Plan provisions on which it is based, a statement
that the Claimant is entitled to receive, upon request and free of charge, reasonable access to,
and copies of, all documents, records and other information relevant to the claim, and a statement
of the Claimant’s right to bring a civil action under section 502(a) of ERISA. The decision shall
be final and binding upon the Claimant and all other persons involved.



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COMPLIANCE APPENDIX TO




CON-WAY INC.




2005 SUPPLEMENTAL EXCESS RETIREMENT PLAN

AMENDED AND RESTATED DECEMBER 2008



This Compliance Appendix to the Con-way Inc. 2005 Supplemental Excess Retirement Plan (the “Plan”)
documents the transition rules used for administration of the Plan implemented as a good faith
effort to comply with Section 409A prior to the final effective date of the final regulations
issued under Code Section 409A.



Generally, these transition rules were applicable to benefits accrued or vested on or after
January 1, 2005. In 2008, the Plan was twice restated to comply with the final regulations under
Section 409A.



During January 1, 2005 through December 31, 2008, the Plan relied on the following transition rules
under Notice 2007-86:



Time and Form of Payment Elections Linked to Qualified Plan:



During the period January 1, 2005 through December 31, 2007, the Plan linked a Participant’s time
of payment commencement and form of payment elections to the Participant’s time and form of payment
elections under the Retirement Plan.



Pursuant to Notice 2007-86, “where a non-qualified deferred compensation plan provides as of
October 3, 2004, that the time and form of payment to a service provider or beneficiary will be the
same time and form of payment elected by the service provider or beneficiary under a qualified
plan, it will not be a violation of section 409A for the plan administrator to make or commence
payments under the nonqualified deferred compensation plan on or after January 1, 2005 and on or
before December 31, 2008, pursuant ot the payment election under the qualified plan.”



Since Plan benefits were subject to a provision linking time and form of payment elections to those
under the Retirement Plan as of October 3, 2004, the Plan’s administrative practice to link the
time and form of payment with Participants’ Retirement Plan elections during January 1, 2005
through December 31, 2007, complied with the above-referenced provisions of Notice 2007-86 and
therefore was not a violation of Code section 409A.





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