UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
--- SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 2008
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
--- SECURITIES EXCHANGE ACT OF 1934
For the transition period from N/A to N/A
COMMISSION FILE NUMBER 1-5046
Con-way Inc.
Incorporated in the State of Delaware
I.R.S. Employer Identification No. 94-1444798
2855 Campus Drive, Suite 300, San Mateo, California 94403
Telephone Number (650) 378-5200
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Sections 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes X No
--- ---
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 X Accelerated filer Non-accelerated filer
--- --- ---
Smaller reporting company
---
Indicate by check mark whether the registrant is a shell company (as defined
in Rule 12b-2 of the Exchange Act). Yes No X
--- ---
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
Number of shares of Common Stock, $.625 par value,
outstanding as of October 31, 2008: 45,824,334
CON-WAY INC.
FORM 10-Q
Quarter Ended September 30, 2008
_______________________________________________________________________________
_______________________________________________________________________________
INDEX
PART I. FINANCIAL INFORMATION Page
Item 1. Financial Statements
Consolidated Balance Sheets -
September 30, 2008 and December 31, 2007 3
Statements of Consolidated Income -
Three and Nine Months Ended September 30, 2008 and 2007 5
Statements of Consolidated Cash Flows -
Nine Months Ended September 30, 2008 and 2007 6
Notes to Consolidated Financial Statements 7
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 22
Item 3. Quantitative and Qualitative Disclosures about Market Risk 35
Item 4. Controls and Procedures 37
PART II. OTHER INFORMATION
Item 1.Legal Proceedings 38
Item 1A.Risk Factors 38
Item 6.Exhibits 39
Signatures 40
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
CON-WAY INC.
CONSOLIDATED BALANCE SHEETS
(Dollars in thousands)
September 30, December 31,
ASSETS 2008 2007
------- ------------ ------------
(Unaudited)
Current Assets
Cash and cash equivalents $ 225,703 $ 176,298
Marketable securities 15 30,016
Trade accounts receivable, net 627,315 495,568
Other accounts receivable 53,192 42,664
Operating supplies, at lower of
average cost or market 29,158 24,142
Prepaid expenses and other assets 31,510 40,746
Deferred income taxes 36,550 37,672
------------ ------------
Total Current Assets 1,003,443 847,106
------------ ------------
Property, Plant, and Equipment
Land 190,273 187,323
Buildings and leasehold improvements 798,271 792,962
Revenue equipment 1,338,443 1,246,816
Other equipment 291,187 265,640
------------ ------------
2,618,174 2,492,741
Accumulated depreciation and amortization (1,130,362) (1,033,953)
------------ ------------
Net Property, Plant, and Equipment 1,487,812 1,458,788
------------ ------------
Other Assets
Deferred charges and other assets 48,158 33,139
Capitalized software, net 31,301 35,010
Employee benefits 111,178 89,039
Marketable securities 7,500 --
Intangible assets, net 35,456 18,780
Goodwill 520,114 527,446
------------ ------------
753,707 703,414
------------ ------------
Total Assets $ 3,244,962 $ 3,009,308
============ ============
The accompanying notes are an integral part of these statements.
CON-WAY INC.
CONSOLIDATED BALANCE SHEETS
(Dollars in thousands except per share amounts)
September 30, December 31,
2008 2007
LIABILITIES AND SHAREHOLDERS' EQUITY ------------ ------------
------------------------------------- (Unaudited)
Current Liabilities
Accounts payable $ 290,289 $ 276,105
Accrued liabilities 312,682 258,253
Self-insurance accruals 95,408 110,986
Short-term borrowings 1,608 5,072
Current maturities of long-term debt 22,700 22,704
------------ ------------
Total Current Liabilities 722,687 673,120
Long-Term Liabilities
Long-term debt and guarantees 928,777 955,722
Self-insurance accruals 146,633 118,854
Employee benefits 193,960 195,145
Other liabilities and deferred credits 52,320 24,639
Deferred income taxes 171,709 132,732
------------- ------------
Total Liabilities 2,216,086 2,100,212
------------- ------------
Commitments and Contingencies (Notes 4, 8 and 13)
Shareholders' Equity
Preferred stock, no par value; authorized
5,000,000 shares: Series B, 8.5% cumulative,
convertible, $.01 stated value; designated
1,100,000 shares; issued 534,190 and
560,998 shares, respectively 5 6
Additional paid-in capital, preferred stock 81,245 85,322
Deferred compensation, defined
contribution retirement plan (13,028) (20,805)
------------ ------------
Total Preferred Shareholders' Equity 68,222 64,523
------------ ------------
Common stock, $.625 par value; authorized
100,000,000 shares; issued 62,365,014 and
61,914,495 shares, respectively 38,839 38,615
Additional paid-in capital, common stock 586,035 568,190
Retained earnings 1,063,960 972,243
Cost of repurchased common stock
(16,577,235 and 16,698,513 shares,
respectively) (715,422) (720,583)
------------ ------------
Total Common Shareholders' Equity 973,412 858,465
------------ ------------
Accumulated Other Comprehensive Loss (12,758) (13,892)
------------ ------------
Total Shareholders' Equity 1,028,876 909,096
------------ ------------
Total Liabilities and
Shareholders' Equity $ 3,244,962 $ 3,009,308
============ ============
The accompanying notes are an integral part of these statements.
CON-WAY INC.
STATEMENTS OF CONSOLIDATED INCOME
(Unaudited)
(Dollars in thousands except per share amounts)
Three Months Ended Nine Months Ended
September 30, September 30,
----------------------- -----------------------
2008 2007 2008 2007
----------- ----------- ----------- -----------
Revenues $1,370,169 $1,111,293 $3,911,435 $3,187,201
Costs and Expenses
Salaries, wages and
other employee benefits 533,810 486,135 1,580,424 1,393,892
Purchased transportation 348,899 255,587 921,996 781,977
Fuel and fuel-related taxes 163,350 91,226 467,728 236,816
Depreciation and amortization 52,808 42,947 156,016 117,077
Maintenance 33,712 31,762 101,679 85,567
Rents and leases 24,477 20,614 71,007 57,547
Purchased labor 18,620 16,095 54,228 45,906
Other operating expenses 115,576 99,245 330,572 271,297
Loss from equity investment -- -- -- 2,699
----------- ----------- ----------- -----------
1,291,252 1,043,611 3,683,650 2,992,778
----------- ----------- ----------- -----------
Operating Income 78,917 67,682 227,785 194,423
----------- ----------- ----------- -----------
Other Income (Expense)
Investment income 1,344 5,118 4,014 16,420
Interest expense (15,646) (10,603) (47,789) (27,927)
Miscellaneous, net (867) (271) 528 (78)
----------- ----------- ----------- -----------
(15,169) (5,756) (43,247) (11,585)
----------- ----------- ----------- -----------
Income from Continuing
Operations before Income
Tax Provision 63,748 61,926 184,538 182,838
Income Tax Provision 23,264 22,961 71,136 67,787
----------- ----------- ----------- -----------
Income from Continuing
Operations 40,484 38,965 113,402 115,051
----------- ----------- ----------- -----------
Discontinued Operations,
net of tax
Gain from Disposal -- -- 1,609 1,609
----------- ----------- ----------- -----------
-- -- 1,609 1,609
Net Income 40,484 38,965 115,011 116,660
Preferred Stock Dividends 1,655 1,693 5,028 5,172
----------- ----------- ----------- -----------
Net Income Available to
Common Shareholders $ 38,829 $ 37,272 $ 109,983 $ 111,488
=========== =========== =========== ===========
Net Income from Continuing
Operations Available to
Common Shareholders $ 38,829 $ 37,272 $ 108,374 $ 109,879
=========== =========== =========== ===========
Weighted-Average Common
Shares Outstanding
Basic 45,499,208 44,976,482 45,367,459 45,414,155
Diluted 48,336,200 48,007,691 48,256,429 48,492,037
Earnings per Common Share
Basic
Net Income from
Continuing Operations $ 0.85 $ 0.83 $ 2.39 $ 2.42
Gain from Disposal -- -- 0.03 0.03
----------- ----------- ----------- -----------
Net Income Available to
Common Shareholders $ 0.85 $ 0.83 $ 2.42 $ 2.45
=========== =========== =========== ===========
Diluted
Net Income from
Continuing Operations $ 0.81 $ 0.78 $ 2.26 $ 2.28
Gain from Disposal -- -- 0.04 0.04
----------- ----------- ----------- -----------
Net Income Available to
Common Shareholders $ 0.81 $ 0.78 $ 2.30 $ 2.32
=========== =========== =========== ===========
The accompanying notes are an integral part of these statements.
CON-WAY INC.
STATEMENTS OF CONSOLIDATED CASH FLOWS
(Unaudited)
(Dollars in thousands)
Nine Months Ended
September 30,
-----------------------
2008 2007
----------- -----------
Cash and Cash Equivalents, Beginning of Period $ 176,298 $ 260,039
----------- -----------
Operating Activities
Net income 115,011 116,660
Adjustments to reconcile net income to net
cash provided by operating activities:
Discontinued operations, net of tax (1,609) (1,609)
Depreciation and amortization, net of accretion 151,901 113,465
Increase in deferred income taxes 35,504 5,976
Amortization of deferred compensation 7,777 7,886
Share-based compensation 8,245 8,029
Provision for uncollectible accounts 4,769 2,625
Loss from equity investment -- 2,699
Loss from restructuring activities -- 7,000
Loss (Gain) from sales of property and
equipment, net 2,110 (2,079)
Changes in assets and liabilities,
net of acquisitions:
Receivables (133,324) (28,325)
Prepaid expenses 9,087 6,743
Accounts payable 10,582 6,296
Accrued incentive compensation (867) 18,096
Accrued liabilities, excluding accrued
incentive compensation and employee benefits 55,478 32,816
Self-insurance accruals 12,201 8,492
Accrued income taxes (15,120) 38,543
Employee benefits (20,242) (9,306)
Deferred charges and credits (7,021) 1,746
Other (10,652) (7,948)
----------- -----------
Net Cash Provided by Operating Activities 223,830 327,805
----------- -----------
Investing Activities
Capital expenditures (197,079) (93,602)
Software expenditures (8,334) (8,242)
Proceeds from sales of property and equipment 6,554 15,993
Proceeds from sale-leaseback transaction 40,380 --
Proceeds from sale of equity investment -- 51,900
Acquisition of CFI, net of cash acquired -- (739,455)
Acquisition of Cougar Logistics,
net of cash acquired -- (28,218)
Net decrease in marketable securities 22,501 89,500
----------- -----------
Net Cash Used in Investing Activities (135,978) (712,124)
----------- -----------
Financing Activities
Proceeds from issuance of bridge-loan facility -- 425,000
Repayment of short-term borrowings, long-term
debt and guarantees (26,506) (18,626)
Proceeds from exercise of stock options 9,569 6,907
Excess tax benefit from stock option exercises 755 577
Payments of common dividends (13,688) (13,675)
Payments of preferred dividends (7,373) (7,931)
Repurchases of common stock -- (89,865)
----------- -----------
Net Cash Provided by (Used in) Financing Activities (37,243) 302,387
----------- -----------
Net Cash Provided by (Used in) Continuing Operations 50,609 (81,932)
----------- -----------
Discontinued Operations
Net Cash Provided by (Used in) Operating Activities (1,204) 3,342
----------- -----------
Net Cash Provided by (Used in) Discontinued
Operations (1,204) 3,342
----------- -----------
Increase (Decrease) in Cash and Cash Equivalents 49,405 (78,590)
----------- -----------
Cash and Cash Equivalents, End of Period $ 225,703 $ 181,449
=========== ===========
Supplemental Disclosure
Cash paid for income taxes, net $ 48,381 $ 21,458
============ ===========
Cash paid for interest, net of amounts capitalized $ 36,999 $ 22,161
============ ===========
The accompanying notes are an integral part of these statements.
CON-WAY INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
1. Principal Accounting Policies
Organization
Con-way Inc. and its consolidated subsidiaries ("Con-way") provide
transportation and logistics services for a wide range of manufacturing,
industrial and retail customers. Con-way's business units operate in
regional and transcontinental less-than-truckload and full-truckload freight
transportation, contract logistics and supply-chain management, freight
brokerage, and trailer manufacturing. As more fully discussed in Note 6,
"Segment Reporting," for financial reporting purposes, Con-way is divided
into five reporting segments: Freight, Logistics, Truckload, Vector and
Other.
Basis of Presentation
These interim financial statements of Con-way have been prepared in
accordance with accounting principles generally accepted in the United States
for interim financial information and Rule 10-01 of Regulation S-X, and
should be read in conjunction with Con-way's 2007 Annual Report on Form 10-K.
Accordingly, significant accounting policies and other disclosures normally
provided have been omitted.
In the opinion of management, the accompanying unaudited condensed
consolidated financial statements reflect all adjustments, including normal
recurring adjustments, necessary to present fairly Con-way's financial
condition, results of operations and cash flows for the interim dates and
periods presented. Results for the interim periods presented are not
necessarily indicative of annual results.
New Accounting Standards
In February 2007, the FASB issued SFAS 159, "The Fair Value Option for
Financial Assets and Financial Liabilities," which permits an entity to
choose to measure many financial instruments and certain other items at fair
value at specified election dates. Subsequent unrealized gains and losses on
items for which the fair-value option has been elected will be reported in
earnings. Con-way's adoption of SFAS 159, effective January 1, 2008, did not
have a material effect on Con-way's financial statements.
In December 2007, the FASB issued SFAS 160, "Noncontrolling Interests in
Consolidated Financial Statements - an amendment of ARB 51." Under the new
statement, noncontrolling interests in the net assets of subsidiaries must be
reported in the balance sheet within equity. On the face of the income
statement, SFAS 160 requires disclosure of the amounts of consolidated net
income attributable to both the parent and to the noncontrolling interest.
The effective date of SFAS 160 is the first fiscal year beginning after
December 15, 2008, and interim periods within those years, which for Con-way
is the first quarter of 2009. Con-way does not expect the adoption of SFAS
160 to have a material effect on its financial statements.
In December 2007, the FASB issued SFAS 141(revised 2007), "Business
Combinations" ("SFAS 141R"). The statement changes the acquisition-date and
subsequent-period accounting associated with business acquisitions. Several
of the changes have the potential to generate greater earnings volatility in
connection with and after an acquisition. The most significant provisions of
SFAS 141R result in a change in the accounting for transaction costs,
contingencies, and acquisition-date accounting estimates. Under the new
statement, transaction costs and transaction-related restructuring charges
will be expensed as incurred instead of being included in the determination
of the purchase price. Under SFAS 141R, certain contingent assets and
liabilities will be recognized at fair value. If new information is
available after the acquisition, these amounts may be subject to
remeasurement. Also, adjustments to acquisition-date accounting estimates
will be accounted for as adjustments to prior-period financial statements.
The effective date of SFAS 141R is the first fiscal year beginning after
December 15, 2008, which for Con-way is 2009. Con-way is evaluating the
effect of adopting SFAS 141R, including the effect on any acquisitions
consummated in 2009 or thereafter.
In March 2008, the FASB issued SFAS 161, "Disclosures about Derivative
Instruments and Hedging Activities - an amendment of SFAS 133." The
statement amends and expands the disclosure requirements in SFAS 133,
"Accounting for Derivative Instruments and Hedging Activities," to provide an
enhanced understanding of how and why an entity uses derivative instruments;
how derivative instruments and related hedged items are accounted for under
SFAS 133 and its related interpretations; and how derivative instruments
affect an entity's financial condition, results of operations, and cash
flows. The effective date of SFAS 161 is for annual and interim periods
beginning after November 15, 2008, which for Con-way is the first quarter of
2009. Con-way does not expect the adoption of SFAS 161 to have a material
effect on its financial statements.
In May 2008, the FASB issued SFAS 162, "The Hierarchy of Generally Accepted
Accounting Principles," which reorganizes the generally accepted accounting
principles ("GAAP") hierarchy in order to improve financial reporting by
providing a consistent framework for determining what accounting principles
should be used when preparing U.S. GAAP financial statements. This statement
is effective November 15, 2008. Con-way does not expect the adoption of SFAS
162 to have a material effect on its financial statements.
Also in May 2008, the FASB issued SFAS 163, "Accounting for Financial
Guarantee Contracts - an interpretation of SFAS 60." This statement
prescribes a recognition approach under which a claim liability is recognized
when an insurer of a financial obligation expects that a claim loss will
exceed the unearned premium revenue. The effective date of SFAS 163 is for
annual and interim periods beginning after December 15, 2008, which for Con-
way is the first quarter of 2009. Con-way does not expect the adoption of
SFAS 163 to have a material effect on its financial statements.
See Note 7, "Fair-Value Measurements," for information regarding SFAS No.
157, "Fair-Value Measurements."
Earnings per Share ("EPS")
Basic EPS is computed by dividing reported earnings by the weighted-average
common shares outstanding. Diluted EPS is calculated as follows:
(Dollars in thousands except Three Months Ended Nine Months Ended
per share data) September 30, September 30,
----------------------- -----------------------
2008 2007 2008 2007
----------- ----------- ----------- -----------
Numerator:
Continuing operations
(after preferred stock
dividends), as reported $ 38,829 $ 37,272 $ 108,374 $ 109,879
Add-backs:
Dividends on Series B
preferred stock, net
of replacement funding 256 262 780 795
----------- ----------- ----------- -----------
Continuing operations 39,085 37,534 109,154 110,674
----------- ----------- ----------- -----------
Discontinued operations - - 1,609 1,609
----------- ----------- ----------- -----------
Available to common
shareholders $ 39,085 $ 37,534 $ 110,763 $ 112,283
=========== =========== =========== ===========
Denominator:
Weighted-average common
shares outstanding 45,499,208 44,976,482 45,367,459 45,414,155
Stock options and nonvested
stock 322,040 345,512 374,018 392,185
Series B preferred stock 2,514,952 2,685,697 2,514,952 2,685,697
----------- ----------- ----------- -----------
48,336,200 48,007,691 48,256,429 48,492,037
=========== =========== =========== ===========
Anti-dilutive stock options
not included in denominator 871,330 894,298 871,330 831,798
=========== =========== =========== ===========
Earnings per Diluted Share:
Continuing operations $ 0.81 $ 0.78 $ 2.26 $ 2.28
Discontinued operations - - 0.04 0.04
----------- ----------- ----------- -----------
Available to common
shareholders $ 0.81 $ 0.78 $ 2.30 $ 2.32
=========== =========== =========== ===========
Drafts Payable
In September 2008, Con-way made a change to banking services that resulted in
a change to the classification of drafts from accounts payable to a reduction
in cash and cash equivalents. At September 30, 2008, Con-way reported $26.7
million of drafts as a reduction of cash and cash equivalents compared to
$31.7 million of drafts reported as accounts payable at December 31, 2007.
Trade Accounts Receivable, net
Con-way reports accounts receivable at net realizable value, and provides an
allowance when collection is considered doubtful. Trade accounts receivable
are net of allowances for uncollectible accounts of $5.4 million and $3.7
million at September 30, 2008 and December 31, 2007, respectively. Estimates
for billing adjustments, including those related to weight- and freight-
classification verifications, or pricing discounts, are also reported as a
reduction to trade accounts receivable. At September 30, 2008 and December
31, 2007, trade accounts receivable are net of estimated billing adjustments
of $13.5 million and $8.4 million, respectively.
Reclassifications and Revisions
Certain amounts in the prior-period financial statements have been
reclassified or revised to conform to the current-period presentation.
During the third quarter of 2008, Con-way changed the classification of its
estimated billing adjustments, as described above, from accrued liabilities
to trade accounts receivable, net.
During the fourth quarter of 2007, Con-way identified certain adjustments
related to the first quarter of 2007. Con-way determined that those
adjustments were not material to either the first or the fourth quarter.
However, for a more accurate presentation, Con-way elected to revise the
results of the first quarter of 2007 to reflect those immaterial adjustments,
which included an increase in employee benefits expense due to amendments to
benefit plans for compensated absences, partially offset by associated
decreases in incentive compensation and income tax expense. For the periods
presented, the adjustments decreased 2007 year-to-date net income from
continuing operations by $4.1 million ($0.09 per diluted share).
2. Acquisitions
Contract Freighters, Inc.
On August 23, 2007, Con-way acquired the outstanding common shares of
Transportation Resources, Inc. ("TRI"). TRI is the holding company for
Contract Freighters, Inc. and other affiliated companies (collectively,
"CFI"). Following the acquisition of CFI, the operating results of CFI are
reported with the operating results of Con-way's former truckload operation
in the Truckload reporting segment. In September 2007, Con-way integrated
the former truckload operation with the CFI business unit. The name of the
CFI business unit was changed to Con-way Truckload in January 2008. The
purchase price calculated for CFI was $752.3 million.
Cougar Logistics
On September 5, 2007, Menlo Worldwide, LLC ("MW") acquired the outstanding
common shares of Cougar Holdings Pte Ltd., and its primary subsidiary, Cougar
Express Logistics (collectively, "Cougar Logistics"). Following the
acquisition, the operating results of Cougar Logistics are reported with the
operating results of the Menlo Worldwide Logistics business unit in the
Logistics reporting segment. The purchase price calculated for Cougar
Logistics was $28.7 million.
Chic Logistics
On October 18, 2007, MW acquired the outstanding common shares of Chic
Holdings, Ltd. and its wholly owned subsidiaries, Shanghai Chic Logistics Co.
Ltd. and Shanghai Chic Supply Chain Management Co. Ltd. (collectively, "Chic
Logistics"). Following the acquisition, the operating results of Chic
Logistics are reported with the operating results of the Menlo Worldwide
Logistics business unit in the Logistics reporting segment. The purchase
price calculated for Chic Logistics was $59.1 million.
See Note 2, "Acquisitions," of Item 8, "Financial Statements and
Supplementary Data," in Con-way's 2007 Annual Report on Form 10-K for
additional information concerning Con-way's acquisitions, including the
allocation of the purchase prices to the net assets acquired and the
discussion of items affecting the determination of the purchase prices.
Goodwill and Intangible Assets
The excess of an acquired entity's purchase price over the amounts assigned
to assets acquired (including separately recognized intangible assets) and
liabilities assumed is recorded as goodwill. In connection with the
acquisitions in 2007, Con-way recognized goodwill. Goodwill is not amortized
but is tested for impairment on an annual basis in the fourth quarter, or
more frequently if events or changes in circumstances indicate that the asset
might be impaired.
During the first nine months of 2008, Con-way finalized the purchase-price
accounting and made revisions to the preliminary estimates and evaluations,
including valuations of tangible and intangible assets and certain
contingencies, as information was received from third parties. Accordingly,
Con-way made revisions to the estimated fair value of net assets acquired in
connection with the purchase of CFI and Chic, including $20.1 million in
increases to the fair values of intangible assets, primarily customer
relationships, and a $7.5 million increase related to liabilities assumed for
foreign income-tax contingencies. In addition, adjustments were made to
deferred taxes relating to the fair value of assets acquired.
The following table shows the changes in the carrying amounts of goodwill
attributable to each applicable segment:
(Dollars in thousands) Logistics Truckload Other Total
---------- ---------- ---------- ----------
Balances at December 31, 2007 $ 55,146 $ 471,573 $ 727 $ 527,446
Adjustment to fair value (11,020) (8,814) -- (19,834)
Liabilities assumed 7,537 -- -- 7,537
Adjustment to deferred taxes 2,755 1,839 -- 4,594
Direct transaction costs 282 -- -- 282
Change in foreign currency
exchange rates 89 -- -- 89
---------- ---------- ---------- ----------
Balances at September 30, 2008 $ 54,789 $ 464,598 $ 727 $ 520,114
========== ========== ========== ==========
In connection with the acquisitions, Con-way recognized as definite-lived
intangible assets the estimated fair value of acquired customer relationships
and trademarks. Intangible assets consisted of the following:
September 30, 2008 December 31, 2007
------------------------ ------------------------
(Dollars in Weighted-
thousands) Average Gross Gross
Life Carrying Accumulated Carrying Accumulated
(Years) Amount Amortization Amount Amortization
--------- ----------- ------------ ----------- ------------
Customer
relationships 10.9 $ 37,335 $ 3,298 $ 18,046 $ 731
Trademarks 2.0 2,550 1,131 1,710 245
----------- ------------ ----------- ------------
$ 39,885 $ 4,429 $ 19,756 $ 976
=========== ============ =========== ============
The fair value of intangible assets is amortized on a straight-line basis
over the estimated useful life. In the third quarter and first nine months
of 2008, amortization expense related to intangible assets was $1.3 million
and $3.5 million, respectively, compared to $0.2 million in the third quarter
and first nine months of 2007. Estimated amortization expense for the next
five years is presented in the following table:
(Dollars in thousands)
Year ending December 31:
Remaining three months of 2008 $ 1,600
2009 4,700
2010 3,800
2011 3,800
2012 3,500
2013 3,000
3. Restructuring Activities
In August 2007, Con-way Freight began a business-transformation initiative to
combine its three regional operating companies into one centralized operation
to improve the customer experience and streamline its processes. The
reorganization into a centralized entity was intended to improve customer
service and efficiency through the development of uniform pricing and
operational processes, implementation of best practices, and fostering of
innovation. In the first nine months of 2008, Con-way incurred costs of $5.2
million in connection with the business-transformation initiative, including
$2.6 million of restructuring charges, as summarized below, and an additional
$2.6 million of other costs, consisting primarily of consulting fees. Con-
way Freight completed the reorganization in the first quarter of 2008. In
the third quarter and first nine months of 2007, Con-way recognized
restructuring-related charges of $5.5 million.
The following table summarizes the effect of restructuring activities for the
nine months ended September 30, 2008 and presents total restructuring costs
incurred under the initiative since August 2007:
(Dollars in Liability at Charges Cash Liability at Total Costs
thousands) December 31, Incurred Payments September 30, Incurred to
2007 or 2008 Date
Write-
off
------------- ---------- --------- ------------ -------------
Employee-
separation
costs $ 1,785 $ 780 $ (2,515) $ 50 $ 7,009
Facility and
lease-
termination
costs 2,794 850 (997) 2,647 3,644
Asset-
impairment
charges -- -- -- -- 2,401
Other 592 962 (1,503) 51 2,786
------------- ---------- --------- ------------ -------------
Total $ 5,171 $ 2,592 $ (5,015) $ 2,748 $ 15,840
============= ========== ========= ============ =============
Con-way reported the employee-separation costs in salaries, wages and other
employee benefits, the facility costs in rents and leases and the asset-
impairment charges and other charges in other operating expenses in the
statements of consolidated income.
4. Discontinued Operations
Discontinued operations in the periods presented relate to (1) the closure of
Con-way Forwarding in June 2006, (2) the sale of Menlo Worldwide Forwarding,
Inc. and its subsidiaries and Menlo Worldwide Expedite!, Inc. (collectively
"MWF") in December 2004, (3) the shut-down of Emery Worldwide Airlines, Inc.
("EWA") in December 2001 and the termination of its Priority Mail contract
with the USPS in 2000, and (4) the spin-off of Consolidated Freightways
Corporation ("CFC") in December 1996. The results of operations and cash
flows of discontinued operations have been segregated from continuing
operations, except where otherwise noted.
Results of discontinued operations are summarized below:
Nine Months Ended
September 30,
------------------------
(Dollars in thousands) 2008 2007
----------- -----------
Gain (Loss) from Disposal,
net of tax
Con-way Forwarding $ -- $ 156
MWF -- (33)
EWA 1,609 2,706
CFC -- (1,220)
----------- -----------
$ 1,609 $ 1,609
=========== ===========
Con-way Forwarding
In June 2006, Con-way closed the operations of its domestic air freight
forwarding business known as Con-way Forwarding. The decision to close the
operating unit was made following management's detailed review of the unit's
competitive position and its prospects in relation to Con-way's long-term
strategies. In the periods presented, the results from Con-way Forwarding
related to adjustments to loss estimates.
MWF
In October 2004, Con-way and MW entered into a stock purchase agreement with
United Parcel Service, Inc. ("UPS") to sell all of the issued and outstanding
capital stock of MWF. Con-way completed the sale in December 2004. Con-way
agreed to indemnify UPS against certain losses that UPS may incur after the
closing of the sale with certain limitations. Any losses related to these
indemnification obligations or any other costs, including any future cash
expenditures related to the sale that have not been estimated and recognized,
will be recognized in future periods as an additional loss from disposal when
and if incurred. In the periods presented, the results from MWF related to
adjustments to loss estimates.
EWA
In the periods presented, results from EWA relate to adjustments of loss
estimates, except for a first-quarter net gain in 2007 of $2.9 million (net
of tax of $1.7 million) that relates to a recovery of prior losses. EWA's
estimated loss reserves declined to $0.2 million at September 30, 2008, from
$3.3 million at December 31, 2007, due primarily to the resolution of labor
matters described below.
In connection with the cessation of its air-carrier operations in 2001, EWA
terminated the employment of all of its pilots and flight crewmembers. Those
pilots and crewmembers were represented by the Air Line Pilots Association
("ALPA") under a collective bargaining agreement. Subsequently, ALPA filed
grievances on behalf of the pilots and flight crewmembers protesting the
cessation of EWA's air-carrier operations and MWF's use of other air
carriers. These matters have been the subject of litigation in U.S. District
Court and state court in California, including litigation brought by ALPA and
by former EWA pilots and crewmembers no longer represented by ALPA. On June
30, 2006, EWA, for itself and for Con-way Inc. and Menlo Worldwide
Forwarding, Inc. ("MWF, Inc."), concluded a final settlement of the
California state court litigation. Under the terms of the settlement,
plaintiffs received a cash payment of $9.2 million from EWA, and the lawsuit
was dismissed with prejudice. On August 8, 2006, EWA paid $10.9 million to
settle the U.S. District Court litigation brought by ALPA that finally
concluded litigation with former EWA pilots and flight crewmembers still
represented by ALPA as of that date. The cash settlements reduced by an
equal amount EWA's estimated loss reserve applicable to the grievances filed
by ALPA.
Two additional actions were brought by groups of former EWA pilots and flight
crewmembers no longer represented by ALPA. One action brought in federal
court in Ohio in February 2007 was settled in April 2008 for $627,000. In
the second action, which was ordered by the court to binding arbitration, the
arbitrator granted EWA's motion to dismiss the arbitration in April 2008. The
arbitrator's decision is now final, and accordingly, a $1.6 million second-
quarter gain (net of tax of $1.0 million) was recognized to eliminate the
previously accrued reserves associated with the contingency.
In October 2008, Con-way and one of its insurers entered into an agreement
providing for the settlement of coverage litigation brought by Con-way,
seeking reimbursement for amounts Con-way paid in settlement of the actions
described above. In connection with this settlement agreement, Con-way
received a $10.0 million payment in November 2008 and will recognize a gain
from discontinued operations of $6.2 million (net of $3.8 million of tax) in
the fourth quarter of 2008.
CFC
The results of CFC relate to Con-way's spin-off of CFC to Con-way's
shareholders on December 2, 1996. In connection with the spin-off of CFC,
Con-way agreed to indemnify certain states, insurance companies and sureties
against the failure of CFC to pay certain workers' compensation, tax and
public liability claims that were pending as of September 30, 1996. In the
periods presented, Con-way's losses related to CFC were due to revisions of
estimated losses related to indemnified workers' compensation liabilities.
In October 2008, Con-way received $3.0 million from the CFC bankruptcy estate
relating to Con-way's claims against CFC's Canadian subsidiaries. Con-way
will continue to pursue its other claims (including its claims for recovery
on account of Con-way's payment obligations to the states, insurance
companies, sureties and individual claimants with respect to these workers'
compensation, tax, and public liability claims described above) in the CFC
bankruptcy proceedings.
5. Sale of Unconsolidated Joint Venture
Vector SCM, LLC ("Vector") was a joint venture formed with General Motors
("GM") in December 2000 for the purpose of providing logistics management
services on a global basis for GM, and for customers in addition to GM.
GM Exercise of Call Right
In June 2006, GM exercised its right to purchase Con-way's membership
interest in Vector. Con-way in December 2006 recognized a receivable from GM
of $51.9 million (an amount equal to the $84.8 million fair value of Con-
way's membership interest reduced by Con-way's $32.9 million payable to
Vector) and also recognized a $41.0 million gain (an amount equal to the
$51.9 million receivable reduced by Con-way's $9.0 million net investment in
Vector and $1.9 million of sale-related costs). In January 2007, Con-way
received a $51.9 million payment from GM. Following negotiation with GM in
the first quarter of 2007, an additional receivable of $2.7 million due from
GM could not be collected, and accordingly, a $2.7 million loss was
recognized in the Vector reporting segment to write off the outstanding
receivable from GM.
Transition and Related Services
Pursuant to a closing agreement, GM and Con-way specified the transition
services, primarily accounting assistance, and the compensation amounts for
such services, to be provided to GM through December 31, 2008. In addition,
GM and Con-way entered into an agreement for Con-way to provide certain
information-technology support services at an agreed-upon compensation
through at least December 31, 2008. Under these agreements, the Logistics
segment reported revenue of $2.7 million in the third quarter and $8.3
million in the first nine months of 2008, compared to $2.8 million and $8.4
million in the same respective periods of 2007, primarily for information-
technology services provided to GM.
6. Segment Reporting
Con-way discloses segment information in the manner in which the business
units are organized for making operating decisions, assessing performance and
allocating resources. For financial reporting purposes, Con-way is divided
into the following five reporting segments:
* Freight. The Freight segment consists of the operating results of the
Con-way Freight business unit, which provides regional, inter-
regional, and transcontinental less-than-truckload freight services
throughout North America.
* Logistics. The Logistics segment consists of the operating results of
the Menlo Worldwide Logistics business unit (also referred to as Menlo
Logistics), which develops contract-logistics solutions, including the
management of complex distribution networks and supply-chain
engineering and consulting, and also provides freight brokerage
services. The Logistics segment includes the results of Chic
Logistics and Cougar Logistics for periods subsequent to their
acquisition.
* Truckload. The Truckload segment includes the operating results of
the Con-way Truckload business unit. Con-way Truckload provides
asset-based full-truckload freight services throughout North America,
including services into and out of Mexico. Following the acquisition
of CFI in August 2007, the operating results of CFI are reported with
the operating results of Con-way's former truckload operation in the
Truckload reporting segment.
* Vector. Prior to its sale, the Vector reporting segment consisted of
Con-way's proportionate share of the net income from Vector, a joint
venture with GM. GM purchased Con-way's membership interest in Vector
in December 2006.
* Other. The Other reporting segment consists of the operating results
of Road Systems, a trailer manufacturer, and certain corporate
activities for which the related income or expense has not been
allocated to other reporting segments.
Financial Data
Management evaluates segment performance primarily based on revenue and
operating income (loss). Accordingly, interest expense, investment income
and other non-operating items are not reported in segment results. Corporate
expenses are generally allocated based on measurable services provided to
each segment, or for general corporate expenses, based on segment revenue and
capital employed. Inter-segment revenue and related operating income have
been eliminated to reconcile to consolidated revenue and operating income.
(Dollars in thousands) Three Months Ended Nine Months Ended
September 30, September 30,
----------------------- -----------------------
2008 2007 2008 2007
----------- ----------- ----------- -----------
Revenues from External
Customers
Freight $ 808,326 $ 740,769 $2,375,654 $2,165,381
Logistics 419,896 312,572 1,138,494 956,962
Truckload 140,932 51,991 394,264 54,228
Other 1,015 5,961 3,023 10,630
----------- ----------- ----------- -----------
$1,370,169 $1,111,293 $3,911,435 $3,187,201
=========== =========== =========== ===========
Inter-segment Revenues
Freight $ 16,622 $ 13,032 $ 41,161 $ 38,367
Logistics 332 64 355 304
Truckload 42,730 21,055 122,073 56,222
Other 11,573 4,234 35,120 21,071
----------- ----------- ----------- -----------
$ 71,257 $ 38,385 $ 198,709 $ 115,964
=========== =========== =========== ===========
Revenues before Inter-
segment Eliminations
Freight $ 824,948 $ 753,801 $2,416,815 $2,203,748
Logistics 420,228 312,636 1,138,849 957,266
Truckload 183,662 73,046 516,337 110,450
Other 12,588 10,195 38,143 31,701
Inter-segment Revenue
Eliminations (71,257) (38,385) (198,709) (115,964)
----------- ----------- ----------- -----------
$1,370,169 $1,111,293 $3,911,435 $3,187,201
=========== =========== =========== ===========
Operating Income (Loss)
Freight $ 61,107 $ 60,029 $ 174,559 $ 179,859
Logistics 3,678 6,188 14,895 19,659
Truckload 15,195 2,975 37,907 6
Vector -- -- -- (2,699)
Other (1,063) (1,510) 424 (2,402)
----------- ----------- ----------- -----------
$ 78,917 $ 67,682 $ 227,785 $ 194,423
=========== =========== =========== ===========
7. Fair-Value Measurements
In September 2006, the FASB issued SFAS No. 157, "Fair-Value Measurements,"
which defines fair value, establishes a framework for measuring fair value,
and expands disclosures about fair-value measurements. SFAS 157 applies to
other accounting pronouncements that require or permit fair-value
measurements and does not require any new fair-value measurements. In
February 2008, the FASB issued FASB Staff Position SFAS 157-2 ("FSP SFAS 157-
2"). FSP SFAS 157-2 delays the effective date of the application of SFAS 157
for nonfinancial assets and liabilities, except for items that are recognized
or disclosed at fair value on a recurring basis, until fiscal years beginning
after November 15, 2008, and interim periods within those years, which for
Con-way is the first quarter of 2009. Con-way adopted SFAS 157 effective
January 1, 2008, except for the provisions that were delayed by FSP SFAS 157-
2. Nonfinancial assets for which Con-way has not applied the provisions of
SFAS 157 include those measured at fair value in the impairment testing of
goodwill and intangible assets and those initially measured at fair value in
a business combination, but not measured at fair value in subsequent periods.
In October 2008, the FASB issued FASB Staff Position SFAS 157-3 ("FSP SFAS
157-3"). FSP SFAS 157-3 clarifies the application of SFAS No. 157 when the
market for a financial asset is not active. Con-way's adoption of this FSP
did not have a material effect on Con-way's financial statements for the
periods presented.
SFAS 157 requires that assets and liabilities reported at fair value be
classified in one of the following three levels:
Level 1: Quoted market prices in active markets for identical assets or
liabilities
Level 2: Observable market-based inputs or unobservable inputs that are
corroborated by market data
Level 3: Unobservable inputs that are not corroborated by market data
The following table summarizes the valuation of financial instruments by the
SFAS 157 levels:
September 30, 2008
-------------------------------------------
(Dollars in Total Level 1 Level 2 Level 3
thousands)
---------- ---------- ---------- ----------
Cash and cash equivalents $ 225,703 $ 225,703 $ -- $ --
Marketable securities 7,515 15 -- 7,500
Cash and cash equivalents consist of short-term interest-bearing instruments
with maturities of three months or less at the date of purchase. The
carrying amount of these instruments approximates their fair value due to
their short maturity.
At September 30, 2008, Con-way's marketable securities consisted primarily of
one auction-rate security with a par value of $7.5 million, which
approximates fair value. The liquidity of auction-rate securities has been
adversely affected by auction failures that have prevented investors from
selling the securities on predetermined auction dates. Accordingly, Con-way
reclassified the auction-rate security from current marketable securities to
long-term marketable securities. Due to the lack of quoted market prices at
September 30, 2008, Con-way's auction-rate security was valued with an income
approach that utilized a discounted cash flow model. The assumptions used in
preparing the discounted cash flow model included estimates with respect to
the amount and timing of future interest and principal payments, forward
projections of the interest rate benchmarks, the probability of full
repayment of the principal considering the AAA credit rating of the issue,
and the rate of return required by investors to purchase the security
considering the current liquidity risk associated with auction-rate
securities.
8. Employee Benefit Plans
In the periods presented, employees of Con-way and its subsidiaries in the
U.S. were covered under several retirement benefit plans, including defined
benefit pension plans, defined contribution retirement plans, and a
postretirement medical plan. Con-way's defined benefit pension plans include
"qualified" plans that are eligible for certain beneficial treatment under
the Internal Revenue Code ("IRC"), as well as "non-qualified" plans that do
not meet IRC criteria.
Defined Benefit Pension Plans
Con-way's qualified defined benefit pension plans (collectively, the
"Qualified Pension Plans") consist mostly of the primary defined benefit
pension plan ("Primary DB Plan"), which covers the non-contractual employees
and former employees of Con-way's continuing operations as well as former
employees of its discontinued operations. No new employees are eligible to
participant in the Primary DB Plan after December 31, 2006. Con-way's other
qualified defined benefit pension plans cover only the former employees of
discontinued operations.
Con-way also sponsors a primary non-qualified supplemental defined benefit
pension plan ("Supplemental DB Plan") and several other unfunded non-
qualified benefit plans (collectively, the "Non-Qualified Pension Plans").
The Supplemental DB Plan provides additional benefits for certain employees
who are affected by IRC limitations on compensation eligible for benefits
available under the qualified Primary DB Plan.
The following tables summarize the components of net periodic benefit expense
(income) for Con-way's defined benefit pension plans:
Qualified Pension Plans
------------------------------------------------
Three Months Ended Nine Months Ended
September 30, September 30,
----------------------- -----------------------
(Dollars in thousands) 2008 2007 2008 2007
----------- ----------- ----------- -----------
Service cost - benefits
earned during the period $ 18 $ 27 $ 72 $ 82
Interest cost on benefit
obligation 18,175 16,411 52,890 50,603
Expected return on plan
assets (24,229) (23,265) (72,722) (71,737)
Net amortization and
deferral (793) (775) (2,380) (2,389)
----------- ----------- ----------- -----------
Net periodic
benefit income $ (6,829) $ (7,602) $ (22,140) $ (23,441)
=========== =========== =========== ===========
Non-Qualified Pension Plans
------------------------------------------------
Three Months Ended Nine Months Ended
September 30, September 30,
----------------------- -----------------------
(Dollars in thousands) 2008 2007 2008 2007
----------- ----------- ----------- -----------
Interest cost on
benefit obligation $ 1,148 $ 1,006 $ 3,070 $ 3,316
Net amortization and deferral 670 476 1,311 1,571
----------- ----------- ----------- -----------
Net periodic benefit
expense $ 1,818 $ 1,482 $ 4,381 $ 4,887
=========== =========== =========== ===========
Under the Pension Protection Act of 2006, Con-way is required to make annual
contributions of approximately $9 million through 2017 to fund increases in
plan participants' eligible compensation. To satisfy this requirement, Con-
way expects to contribute to the Qualified Pension Plans in the fourth
quarter of 2008. Amounts of additional future contributions will depend, in
part, on asset returns and interest rates.
Defined Contribution Retirement Plans
Con-way's defined contribution retirement plans consist mostly of the primary
defined contribution retirement plan (the "Primary DC Plan"), which covers
non-contractual U.S. employees.
Con-way recognized expense of $23.1 million and $70.0 million in the third
quarter and first nine months of 2008, respectively, compared to $23.5
million and $67.6 million in the same respective periods of 2007 for its
contributions under the Primary DC Plan. At September 30, 2008 and December
31, 2007, Con-way had recognized accrued liabilities of $25.2 million and
$21.9 million, respectively, for its contributions related to the Primary DC
Plan.
Postretirement Medical Plan
The following table summarizes the components of net periodic benefit expense
for the postretirement medical plan:
Three Months Ended Nine Months Ended
September 30, September 30,
----------------------- -----------------------
(Dollars in thousands) 2008 2007 2008 2007
----------- ----------- ----------- -----------
Service cost - benefits earned
during the period $ 571 $ 690 $ 1,712 $ 2,100
Interest cost on benefit
obligation 1,692 1,733 5,078 5,271
Net amortization and deferral (12) 610 (36) 1,851
----------- ----------- ----------- -----------
Net periodic benefit expense $ 2,251 $ 3,033 $ 6,754 $ 9,222
=========== =========== =========== ===========
9. Comprehensive Income
Comprehensive income, which is a measure of all changes in equity except
those resulting from investments by owners and distributions to owners, was
as follows:
(Dollars in thousands) Three Months Ended Nine Months Ended
September 30, September 30,
----------------------- -----------------------
2008 2007 2008 2007
----------- ----------- ----------- -----------
Net income $ 40,484 $ 38,965 $ 115,011 $ 116,660
Other comprehensive
income (loss):
Foreign currency
translation adjustment (560) 112 1,134 (123)
----------- ----------- ----------- -----------
Comprehensive income $ 39,924 $ 39,077 $ 116,145 $ 116,537
=========== =========== =========== ===========
10. Share-Based Compensation
Under terms of the share-based compensation plans, Con-way grants various
types of share-based compensation awards to employees and directors. The
plans provide for various types of awards, including stock options, nonvested
stock (also known as restricted stock), and performance-share plan units.
Stock options are granted at prices equal to the market value of the common
stock on the date of grant and expire 10 years from the date of grant.
Generally, stock options are granted with three- or four-year graded-vesting
terms, under which one-third or one-fourth of the award, respectively, vests
each year. Stock options granted in and after December 2004 generally have
three-year graded-vesting terms, while stock options issued before that date
generally have four-year graded-vesting terms. Certain option awards provide
for accelerated vesting if there is a change in control (as defined in the
stock option plans). Effective September 26, 2006, Con-way established
vesting provisions for new option awards that generally provide for immediate
vesting of unvested shares upon qualifying retirement. Stock options issued
before that date generally provide for continued vesting subsequent to the
employee's retirement.
Shares of nonvested stock are valued at the market price of Con-way's common
stock at the date of award. Awards granted to directors are generally
granted with three-year graded-vesting terms, while awards granted to
employees generally vest three years from the award date.
Performance-share plan units ("PSPUs") are valued at the market price of Con-
way's common stock at the date of award and vest three years from the grant
date if certain performance criteria are achieved. The total number of
shares the award recipients may collectively receive depends upon the
achievement of certain performance criteria over a one- to three-year period
and can range from zero to 403,526 shares. The 2007 award is subject to
forfeiture if an award recipient leaves Con-way during the three-year period,
while the 2008 award allows for pro rata vesting if the award recipient
leaves Con-way as a result of death, disability or qualifying retirement.
Outstanding PSPUs have a weighted-average grant-date fair value of $44.35.
The amount of expense recorded each period is based on Con-way's current
estimate of the number of shares that will ultimately vest.
The following expense was recognized for share-based compensation:
(Dollars in Three Months Ended Three Months Ended
thousands) September 30, 2008 September 30, 2007
------------------------------ ------------------------------
Stock Nonvested Stock Nonvested
Options Stock and Total Options Stock and Total
PSPUs PSPUs
--------- ----------- -------- --------- ----------- --------
Salaries, wages
and other
employee
benefits $ 1,268 $ 1,469 $ 2,737 $ 1,599 $ 1,080 $ 2,679
Deferred income
tax benefit (485) (573) (1,058) (607) (421) (1,028)
--------- ----------- -------- --------- ----------- --------
Net share-based
compensation
expense $ 783 $ 896 $ 1,679 $ 992 $ 659 $ 1,651
========= =========== ======== ========= =========== ========
(Dollars in Nine Months Ended Nine Months Ended
thousands) September 30, 2008 September 30, 2007
------------------------------ ------------------------------
Stock Nonvested Stock Nonvested
Options Stock and Total Options Stock and Total
PSPUs PSPUs
--------- ----------- -------- --------- ----------- --------
Salaries, wages
and other
employee
benefits $ 4,183 $ 4,062 $ 8,245 $ 4,955 $ 3,074 $ 8,029
Deferred income
tax benefit (1,594) (1,584) (3,178) (1,890) (1,199) (3,089)
--------- ----------- -------- --------- ----------- --------
Net share-based
compensation
expense $ 2,589 $ 2,478 $ 5,067 $ 3,065 $ 1,875 $ 4,940
========= =========== ======== ========= =========== ========
11. Income Taxes
Con-way's effective tax rate was 36.5% and 38.5% in the third quarter and
first nine months of 2008, respectively, and was 37.1% in the same respective
periods of last year. Excluding the effect of various discrete tax
adjustments, Con-way's third-quarter and year-to-date effective tax rate in
2008 was 39.6% and 39.4%, respectively, and in 2007, was 37.3% and 37.5%,
respectively. The discrete tax adjustments in 2008 were due primarily to the
utilization of a portion of a capital-loss carryforward in the third quarter,
reflecting the pending sale of certain real estate. In 2007, the discrete
tax adjustments largely reflect the settlement of issues following completion
of an Internal Revenue Service ("IRS") audit and a 2007 first-quarter write-
off of a receivable. As more fully discussed in Note 5, "Sale of
Unconsolidated Joint Venture," a receivable due from GM could not be
collected, and accordingly, a $2.7 million loss was recognized in the first
quarter of 2007. As a sale-related receivable, the write-off was a capital
loss for tax purposes and was not deductible from ordinary income. Excluding
the discrete items, higher effective tax rates in 2008 reflect lower taxable
income from foreign subsidiaries, which limited Con-way's ability to utilize
foreign tax credits, and a decline in the amount of tax-exempt interest
income.
Income tax receivables of $23.8 million and $7.6 million were included in
other accounts receivable in Con-way's consolidated balance sheets at
September 30, 2008 and December 31, 2007, respectively.
Uncertain Tax Positions
In accordance with FASB Interpretation No. 48, "Accounting for Uncertainty in
Income Taxes - an interpretation of SFAS 109," uncertain tax positions that
Con-way has taken or expects to take on a tax return are recognized in the
financial statements only when it is more likely than not that the position
will be sustained upon examination by a taxing authority. If the position
meets the more-likely-than-not criteria, it is measured using a probability-
weighted approach as the largest amount of tax benefit that is greater than
50% likely of being realized upon settlement. Previously recognized tax
positions that no longer meet the more-likely-than-not recognition threshold
are derecognized in the first subsequent financial reporting period in which
the threshold is no longer met.
At December 31, 2007, Con-way reported gross tax-affected unrecognized tax
benefits of $15.2 million, including $5.4 million of accrued interest and
penalties related to the unrecognized tax benefits. At September 30, 2008,
Con-way's estimate of gross tax-affected unrecognized tax benefits increased
to $23.1 million (including $8.2 million of accrued interest and penalties),
due primarily to liabilities assumed with Con-way's acquisition of Chic
Logistics. At September 30, 2008, Con-way estimated that $10.4 million of
the unrecognized tax benefits, if recognized, would change the effective tax
rate. During the first nine months of 2008, Con-way recognized $1.3 million
in interest and penalties that were included in tax expense. Con-way does
not expect the total unrecognized tax benefits to vary significantly in the
next 12 months. Con-way classifies interest and penalties expense related to
income taxes as a component of income tax expense.
The following summarizes the changes in the unrecognized tax benefits during
the year, excluding interest and penalties:
(Dollars in thousands)
Balance at December 31, 2007 $ 9,793
Unrecognized tax benefits on acquisitions 5,893
Gross decreases - prior-period tax positions (58)
Gross increases - current-period tax positions 433
Settlements (1,106)
Lapse of statute of limitations (71)
------------
Balance at September 30, 2008 $ 14,884
============
In the normal course of business, Con-way is subject to examination by taxing
authorities throughout the world. The years subject to examination in the
relevant jurisdictions, include 2005 to 2007 for federal income taxes, 2003
to 2007 for state and local income taxes, and 1999 to 2007 for foreign income
taxes. Where no tax return has been filed, no statute of limitations
applies. Accordingly, if a tax jurisdiction reaches a conclusion that a
filing requirement does exist, then additional years may be reviewed by the
tax authority.
12. Sale-Leaseback Transaction
On June 30, 2008, Menlo Worldwide Logistics entered into agreements to sell
and lease back two warehouses located in Singapore. In connection with the
sale of the warehouses, Menlo Worldwide Logistics received $40.4 million.
The resulting $19.0 million gain is classified as a deferred credit in the
consolidated balance sheets and will be amortized over the ten-year term of
the leases. Each lease contains an option to renew for an additional five-
year term. As of September 30, 2008, future minimum payments associated with
these leases were as follows:
(Dollars in thousands)
Year ending December 31:
2008 $ 980
2009 3,928
2010 4,002
2011 4,098
2012 4,160
Thereafter (through 2018) 23,912
------------
Total minimum lease payments $ 41,080
============
13. Commitments and Contingencies
Spin-Off of CFC
On December 2, 1996, Con-way completed the 100% spin-off of Consolidated
Freightways Corporation ("CFC") to Con-way's shareholders. CFC was, at the
time of the spin-off, a party to certain multiemployer pension plans covering
some of its current and former employees. CFC's cessation of its U.S.
operations in connection with the filing of bankruptcy in 2002 was deemed to
have resulted in CFC's "complete withdrawal" (within the meaning of
applicable federal law) from these multiemployer plans, and these plans
subsequently assessed claims for such "withdrawal liabilities" against CFC,
demanding that CFC pay them for the approximately $400 million that they
determined to be CFC's share of unfunded vested benefits obligations under
those plans.
Con-way has received requests for information regarding the spin-off of CFC
from representatives of some of the pension funds, and Con-way responded to
those requests, providing the last of the requested documents in August 2004.
In July 2008, nearly four years after Con-way complied with its requests for
documents, one of the larger pension funds, Central States, Southeast and
Southwest Areas Pension Fund ("Central States") which assessed withdrawal
liabilities against CFC of approximately $319 million, advised Con-way that
while the pension fund's trustees had not been asked to assess withdrawal
liability against Con-way, the pension fund wished to meet with Con-way to
discuss the matter. To date, no other pension funds have contacted Con-way.
To resolve uncertainties created by Central States' recent contact, Con-way
filed an arbitration demand and a federal lawsuit on August 11, 2008 against
the pension fund. In the arbitration, Con-way asked the arbitrator to decide
and resolve in Con-way's favor all arbitrable disputes between the parties.
In the lawsuit, Con-way Inc. v. Central States, Southeast and Southwest Areas
Pension Fund (United States District for the Northern District of California
2008), Con-way asked the court to compel Central States to have all disputes
between the parties decided in the arbitration that Con-way filed, or,
alternatively, to declare that Con-way is not liable for any of CFC's unpaid
withdrawal liabilities, and to enjoin the pension fund from violating
applicable statutory and plan requirements.
On October 9, 2008, Con-way received a demand letter from Central States
notifying Con-way of the assertion of withdrawal liability against it in the
amount of $662 million (payable over a term of approximately 11 years.)
Central States contends that this withdrawal liability arose on the date Con-
way sold a former subsidiary to UPS in December 2004 (rather than the date
that CFC permanently ceased its obligation to contribute to the pension fund
in 2002), based on Central States' position that the 2004 sale resulted in a
complete withdrawal within the meaning of applicable federal law. As a
result, Central States contends that Con-way owes $662 million in withdrawal
liability. The higher alleged withdrawal liability calculation primarily
reflects the fact that Central States' overall level of underfunding
increased substantially from 2002 to 2004. Central States' demand also
states that it is without prejudice to a future claim or assertion that
Central States' proof of claim filed against CFC in the CFC bankruptcy was
effective notice of withdrawal liability to Con-way in 2003, therefore Con-
way is in default and the amount of such liability would be a total of
approximately $412 million (including $319 of withdrawal liability and
accrued interest thereon), less any previous recoveries made by Central
States in the CFC bankruptcy. Following receipt of this demand, Con-way
amended its lawsuit to assert additional claims against Central States and
additional defenses to its demand.
Con-way believes that the amount of Central States' claims against Con-way
for CFC's unpaid withdrawal liabilities is material, and a judgment or
arbitration award against Con-way for all or a significant part of these
claims could have a material adverse effect on Con-way's financial condition,
results of operations and cash flows. Con-way also believes that its actions
in connection with the CFC spin-off were proper and intends to vigorously
defend itself from these claims by Central States and any other claims that
may be brought against it in the future by other multiemployer pension funds
seeking to hold Con-way responsible for CFC's unpaid withdrawal liabilities.
However, there can be no assurance as to the outcome of any such litigation
given uncertainties inherent in such proceedings, including the possible
application of adverse judicial decisions rendered in unrelated matters not
involving Con-way.
As a result of the matters discussed above, Con-way can provide no assurance
that matters relating to the spin-off of CFC will not have a material adverse
effect on Con-way's financial condition, results of operations or cash flows.
Other
In February 2002, a lawsuit was filed against EWA in the District Court for
the Southern District of Ohio, alleging violations of the Worker Adjustment
and Retraining Notification Act (the "WARN Act") in connection with employee
layoffs and ultimate terminations due to the August 2001 grounding of EWA's
airline operations and the shutdown of the airline operations in December
2001. The court subsequently certified the lawsuit as a class action on
behalf of affected employees laid off between August 11 and August 15, 2001.
The WARN Act generally requires employers to give 60-days notice, or 60-days
pay and benefits in lieu of notice, of any shutdown of operations or mass
layoff at a site of employment. The estimated range for potential loss on
this matter is zero to approximately $9 million, plus accrued interest. Con-
way intends to continue to vigorously defend the lawsuit. The case is
scheduled for trial in January 2009.
Con-way is a defendant in various other lawsuits incidental to its
businesses. It is the opinion of management that the ultimate outcome of
these actions will not have a material effect on Con-way's financial
condition, results of operations or cash flows.
14.Subsequent Event
On November 3, 2008, Con-way Freight issued a press release announcing plans
to restructure its operating network to reduce service exceptions, improve
on-time delivery and bring faster transit times while deploying a lower-cost,
more efficient service center network better aligned to customer needs and
business volumes. This plan will not change Con-way Freight's service
coverage as the company is not exiting any markets, but will involve the
shutdown of approximately 40 service centers located throughout the network,
with shipment volumes from closing locations redistributed and balanced among
more than 100 nearby service centers. Tractor and trailer equipment will
also be redeployed among remaining service center locations. Approximately
75% of the affected employees are expected to have the opportunity to follow
work to new operating locations. The number of employees retained after the
network change is completed, as well as the net workforce reduction, will
depend on a several factors including how many employees elect to move with
the work to nearby operating locations, accept a transfer to another
location, or choose to accept a separation package and leave the company.
Con-way expects the reorganization to be complete in the fourth quarter of
2008 and estimates that Con-way Freight will recognize total restructuring
costs of about $20 million consisting of lease termination costs and asset
impairment charges of approximately $8 million, employee separation costs of
approximately $9 million and relocation costs of $3 million.
The majority of the employee separation and relocation costs are expected to
be paid out in the fourth quarter of 2008 with lease termination costs paid
out over the remaining lease terms. The costs and payments Con-way Freight
will incur in connection with the plan are subject to a number of assumptions
and uncertainties, and as a result the actual results may differ.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
Introduction
------------
Management's Discussion and Analysis of Financial Condition and Results of
Operations (referred to as "Management's Discussion and Analysis") is
intended to assist in a historical and prospective understanding of Con-way's
financial condition, results of operations, and cash flows, including a
discussion and analysis of the following:
* Overview of Business
* Results of Operations
* Liquidity and Capital Resources
* Critical Accounting Policies and Estimates
* New Accounting Standards
* Forward-Looking Statements
Overview of Business
--------------------
Con-way provides transportation, logistics and supply-chain management
services for a wide range of manufacturing, industrial and retail customers.
Con-way's business units operate in regional and transcontinental less-than-
truckload and full-truckload freight transportation, contract logistics and
supply-chain management, freight brokerage, and trailer manufacturing. For
financial reporting purposes, Con-way is divided into the following five
reporting segments:
* Freight. The Freight segment consists of the operating results of the
Con-way Freight business unit, which provides regional, inter-
regional, and transcontinental less-than-truckload freight services
throughout North America.
* Logistics. The Logistics segment consists of the operating results of
the Menlo Worldwide Logistics business unit (also referred to as Menlo
Logistics), which develops contract-logistics solutions, including the
management of complex distribution networks and supply-chain
engineering and consulting, and also provides freight brokerage
services. The Logistics segment includes the results of Chic
Logistics and Cougar Logistics for periods subsequent to their
acquisition.
* Truckload. The Truckload segment includes the operating results of
the Con-way Truckload business unit. Con-way Truckload provides
asset-based full-truckload freight services throughout North America,
including services into and out of Mexico. Following the acquisition
of CFI in August 2007, the operating results of CFI are reported with
the operating results of Con-way's former truckload operation in the
Truckload reporting segment.
* Vector. Prior to its sale, the Vector reporting segment consisted of
Con-way's proportionate share of the net income from Vector, a joint
venture with GM. GM purchased Con-way's membership interest in Vector
in December 2006.
* Other. The Other reporting segment consists of the operating results
of Road Systems, a trailer manufacturer, and certain corporate
activities for which the related income or expense has not been
allocated to other reporting segments.
Con-way's primary business-unit results generally depend on the number,
weight and distance of shipments transported, the prices received on those
shipments or services, and the mix of services provided to customers, as well
as the fixed and variable costs incurred by Con-way in providing the services
and the ability to manage those costs under changing circumstances. Con-
way's primary business units are affected by the timing and degree of
fluctuations in fuel prices and their ability to recover incremental fuel
costs through fuel-surcharge programs.
Con-way Freight transports shipments utilizing a network of freight service
centers combined with a fleet of company-operated line-haul and pickup-and-
delivery tractors and trailers. Con-way Truckload transports shipments using
a fleet of long-haul tractors and trailers. Menlo Logistics manages the
logistics functions of its customers and primarily utilizes third-party
transportation providers for the movement of customer shipments.
Results of Operations
---------------------
The overview below provides a high-level summary of Con-way's results from
continuing operations for the periods presented and is intended to provide
context for the remainder of the discussion on reporting segments. Refer to
"Reporting Segment Review" below for more complete and detailed discussion
and analysis.
Continuing Operations
(Dollars in thousands except Three Months Ended Nine Months Ended
per share amounts) September 30, September 30,
----------------------- -----------------------
2008 2007 2008 2007
----------- ----------- ----------- -----------
Revenues $1,370,169 $1,111,293 $3,911,435 $3,187,201
=========== =========== =========== ===========
Operating income $ 78,917 $ 67,682 $ 227,785 $ 194,423
Other expense 15,169 5,756 43,247 11,585
----------- ----------- ----------- -----------
Income from continuing
operations before
income tax provision 63,748 61,926 184,538 182,838
Income tax provision 23,264 22,961 71,136 67,787
----------- ----------- ----------- -----------
Income from continuing
operations 40,484 38,965 113,402 115,051
Preferred stock dividends 1,655 1,693 5,028 5,172
----------- ----------- ----------- -----------
Net income from continuing
operations available to
common shareholders $ 38,829 $ 37,272 $ 108,374 $ 109,879
=========== =========== =========== ===========
Diluted earnings per share $ 0.81 $ 0.78 $ 2.26 $ 2.28
Operating margin 5.8% 6.1% 5.8% 6.1%
Effective tax rate 36.5% 37.1% 38.5% 37.1%
Overview
Con-way's consolidated revenue for the third quarter of 2008 increased 23.3%
over the same period of 2007 and, in the first nine months of 2008, increased
22.7% from the same prior-year period due largely to acquisition-related
revenue increases from Truckload and Logistics, complemented by organic
growth. Excluding revenue from the companies acquired in the second half of
2007, Con-way's third-quarter and year-to-date revenue in 2008 increased
14.3% and 10.1%, respectively, due to increases at Freight and Logistics.
In the third quarter of 2008, consolidated operating income increased 16.6%
from the same period last year due primarily to increases at the Truckload
and Freight segments, partially offset by lower operating income from the
Logistics segment. In the first nine months of 2008, consolidated operating
income increased 17.2% due primarily to improved operating results from the
Truckload segment, partially offset by lower operating income from the
Freight and Logistics segments. Increased operating income for the Truckload
segment was due to the acquisition of CFI, while declines in operating income
from Logistics were due primarily to losses at its recently acquired
companies. Excluding results from the acquired companies, Con-way's third-
quarter and year-to-date operating income increased 9.5% and 3.9%,
respectively. As more fully discussed in Note 3, "Restructuring Activities,"
of Item 1, "Financial Statements," the first nine months of 2008 include $5.2
million of first-quarter business-transformation costs while the first nine
months of last year include $5.5 million of third-quarter business-
transformation costs.
Since the announcement of Con-way's re-branding initiative in April 2006,
Con-way recognized total expense of $21.1 million through the second quarter
of 2008, when the initiative was substantially completed. Re-branding
expenses consisted primarily of the costs to convert Con-way Freight's
tractors and trailers to the new Con-way graphic identity. See "Reporting
Segment Review - Freight" below for re-branding expenses incurred by the
Freight segment in the periods presented. Under separate initiatives, Con-
way incurred an immaterial amount of re-branding expenses related to the
companies acquired in the second half of 2007 and Con-way does not expect
future re-branding costs for these companies to be material.
In the third quarter and first nine months of 2008, non-operating expense
increased $9.4 million and $31.7 million, respectively, due primarily to
increases in interest expense and declines in investment income. In the
third quarter and first nine months of 2008, interest expense increased $5.0
million and $19.9 million, respectively, and investment income declined $3.8
million and $12.4 million, respectively. Variations in interest expense and
interest income were due primarily to acquisitions in the second half of
2007, which were financed with existing cash resources and proceeds from new
debt financing.
Con-way's effective tax rate was 36.5% and 38.5% in the third quarter and
first nine months of 2008, respectively, and was 37.1% in the same respective
periods of last year. Excluding the effect of various discrete tax
adjustments, Con-way's third-quarter and year-to-date effective tax rate in
2008 was 39.6% and 39.4%, respectively, and in 2007, was 37.3% and 37.5%,
respectively. The discrete tax adjustments in 2008 were due primarily to the
utilization of a portion of a capital-loss carryforward in the third quarter,
reflecting the pending sale of certain real estate. In 2007, the discrete
tax adjustments largely reflect the settlement of issues following completion
of an Internal Revenue Service ("IRS") audit and a 2007 first-quarter write-
off of a receivable. As more fully discussed in Note 5, "Sale of
Unconsolidated Joint Venture," a receivable due from GM could not be
collected, and accordingly, a $2.7 million loss was recognized in the first
quarter of 2007. As a sale-related receivable, the write-off was a capital
loss for tax purposes and was not deductible from ordinary income. Excluding
the discrete items, higher effective tax rates in 2008 reflect lower taxable
income from foreign subsidiaries, which limited Con-way's ability to utilize
foreign tax credits, and a decline in the amount of tax-exempt interest
income.
Con-way's net income from continuing operations available to common
shareholders in the third quarter of 2008 increased 4.2% due to increased
operating income and a lower effective tax rate that were partially offset by
higher non-operating expenses. In the first nine months of 2008, net income
from continuing operations available to common shareholders decreased 1.4%
reflecting higher non-operating expense and an increase in the effective tax
rate that more than offset higher operating income.
Reporting Segment Review
Freight
-------
The following table compares operating results, operating margins, and the
percentage change in selected operating statistics of the Freight reporting
segment:
(Dollars in thousands) Three Months Ended Nine Months Ended
September 30, September 30,
----------------------- -----------------------
2008 2007 2008 2007
----------- ----------- ----------- -----------
Summary of Segment Operating
Results
Revenues $ 808,326 $ 740,769 $2,375,654 $2,165,381
Operating Income 61,107 60,029 174,559 179,859
Operating Margin 7.6% 8.1% 7.3% 8.3%
2008 vs. 2007 2008 vs. 2007
------------- -------------
Selected Operating Statistics
Revenue per day +9.5% +10.8%
Weight per day +2.3 +2.4
Revenue per hundredweight
("yield") +7.0 +8.1
Shipments per day
("volume") -2.7 -0.4
Weight per shipment +5.1 +2.9
The Freight segment's revenue in the third quarter and first nine months of
2008 increased 9.1% and 9.7%, respectively, from the same periods in 2007 due
to higher revenue per day and to a 1-day increase in the number of working
days. Revenue per day for Freight increased 9.5% in the third quarter on a
2.3% increase in weight per day and a 7.0% increase in yield. The 2.3%
increase in weight per day was achieved through a 5.1% increase in weight per
shipment, partially offset by a 2.7% decline in shipments per day. In the
first nine months of 2008, revenue per day increased 10.8% on a 2.4% increase
in weight per day and an 8.1% increase in yield. The 2.4% increase in weight
per day in the first nine months of 2008 was achieved through a 2.9% increase
in weight per shipment, partially offset by a 0.4% decline in shipments per
day. Variations in weight per shipment are attributed in part to changes in
customers' shipping practices in response to overall transportation costs.
Customers are more likely to consolidate their products into larger shipments
when they become more cost conscious and/or transportation costs increase.
Yield increases in 2008 primarily reflect increases in fuel surcharges and
average length of haul. Commensurate with higher transportation costs,
shipments with longer lengths of haul generally have higher yields. Yields
in both periods also reflect general rate increases. Con-way Freight
implemented a general rate increase of 5.5% on January 28, 2008 compared to a
4.9% increase on March 19, 2007. These general rate increases were applied
to customers with pricing governed by Con-way Freight's standard tariff;
however, the effects of the increases were diminished in part by the
competitive pricing environment. Yields in the third quarter and first nine
months of 2008 were also adversely affected by an increase in average weight
per shipment.
Excluding fuel surcharge, yield in the third quarter of 2008 decreased 1.0%
compared to a 0.7% increase in the first nine months of 2008. Like other LTL
carriers, Con-way Freight assesses many of its customers with a fuel
surcharge. The fuel surcharge is intended to compensate Con-way Freight for
higher fuel costs and fuel-related increases in purchased transportation.
Fuel surcharges are only one part of the overall rate structure, and the
total price received from customers is governed by market forces, as more
fully discussed below in Item 3, "Quantitative and Qualitative Disclosures
About Market Risk - Fuel." In the third quarter, Freight's fuel-surcharge
revenue increased to 20.6% of revenue in 2008 from 13.6% in 2007, and in the
first nine months, increased to 19.4% of revenue in 2008 from 12.9% in 2007.
Freight's operating income in the third quarter of 2008 increased 1.8% over
the same period of 2007 and, in the first nine months, decreased 2.9% from
the same prior-year period. Operating income in the periods presented
benefited from revenue growth but was adversely affected by increased costs
for fuel and purchased transportation, higher expenses for salaries, wages
and other employee benefits, and increases in other operating expenses.
Comparative operating results were affected by business-transformation costs
and costs incurred under Con-way Freight's re-branding initiative. Operating
expenses in the first nine months of 2008 include $5.2 million of first-
quarter business-transformation costs while the first nine months of last
year include $5.5 million of third-quarter business-transformation costs. As
more fully discussed in Note 3, "Restructuring Activities," of Item 1,
"Financial Statements," Con-way Freight announced the reorganization in
August 2007 and it was completed at the end of the first quarter of 2008.
Under Freight's re-branding initiative, which was completed in the second
quarter of 2008, Freight incurred $4.9 million of costs in the first nine
months of 2008, compared to $3.2 million and $8.8 million in the third
quarter and first nine months of 2007, respectively. The re-branding costs
were for expenses related primarily to the conversion of tractors and
trailers to the new Con-way graphic identity.
In the third quarter and first nine months of 2008, expenses for fuel and
fuel-related taxes increased 42.1% and 43.3%, respectively, due primarily to
an increase in the cost of diesel fuel. During the same comparative periods,
purchased transportation expense increased 31.8% and 30.1%, respectively,
reflecting an increase in freight transported by third-party providers and
fuel-related rate increases.
In the third quarter and first nine months of 2008, expenses for salaries,
wages and other employee benefits increased 2.2% and 3.0%, respectively, from
the same periods in 2007. Base compensation in the third quarter and first
nine months of 2008 increased 5.0% and 4.7%, respectively, due primarily to
wage and salary rate increases, and increases in over-time pay. Employee
benefits expense was flat in the third quarter, but increased 3.1% in the
first nine months of 2008 compared to the same period in 2007 due primarily
to higher costs associated with workers' compensation claims, partially
offset by a decline in expenses for compensated absences. In both nine-month
periods presented, expenses for compensated absences include non-recurring
first-quarter adjustments for benefit plan changes associated with the
business-transformation and operational-restructuring initiatives. In the
third quarter of 2008, incentive compensation decreased $5.6 million or 45.4%
and, in the first nine months of 2008, decreased $14.6 million or 45.5% based
on variations in performance measures relative to incentive-plan targets.
Other operating expenses increased 3.6% and 8.7% in the third quarter and
first nine months of 2008, respectively, reflecting increases in cargo-loss
and damage expense, increased corporate allocations due to information-
technology projects, and higher expenses for sales and marketing activities,
including promotional items and the use of consultants.
Con-way Freight's revenue and operating income trends in the third quarter of
2008 reflected increasingly adverse economic conditions. Revenue in the
third quarter declined sequentially from July through September as declining
economic output contributed to successive monthly declines in freight demand,
which resulted in decreasing tonnage. Further, successive monthly declines
in fuel prices contributed to decreasing fuel-surcharge revenue and yields.
In current market conditions, the sequential monthly declines in fuel-
surcharge revenue have not been offset by equivalent increases in base
freight-rate revenue. Since its fuel-surcharge program has historically
enabled Con-way Freight to more than recover increases in fuel costs and
freight-related increases in purchased transportation, these declines in
fuel-surcharge revenue have had an adverse effect on operating income. The
trends described above have continued through October 2008 and, without
improvement in market conditions, can be expected to continue into the
remainder of the fourth quarter of 2008.
As more fully discussed in Note 14, "Subsequent Event," of Item 1, "Financial
Statements," on November 3, 2008, Con-way Freight announced plans to
restructure its operating network to reduce service exceptions, improve on-
time delivery and bring faster transit times while deploying a lower-cost,
more efficient service center network better aligned to customer needs and
business volumes.
Logistics
---------
The table below compares operating results and operating margins of the
Logistics reporting segment. The table summarizes the segment's revenue as
well as net revenue (revenue less purchased transportation expenses).
Carrier-management revenue is attributable to contracts for which Menlo
Logistics manages the transportation of freight but subcontracts to third
parties the actual transportation and delivery of products, which Menlo
Logistics refers to as purchased transportation. Menlo Logistics' management
places emphasis on net revenue as a meaningful measure of the relative
importance of its principal services since revenue earned on most carrier-
management services includes the third-party carriers' charges to Menlo
Logistics for transporting the shipments.
(Dollars in thousands) Three Months Ended Nine Months Ended
September 30, September 30,
----------------------- -----------------------
2008 2007 2008 2007
----------- ----------- ----------- -----------
Summary of Segment Operating
Results
Revenues $ 419,896 $ 312,572 $1,138,494 $956,962
Purchased Transportation (291,964) (203,015) (757,923) (637,371)
----------- ----------- ----------- -----------
Net Revenues 127,932 109,557 380,571 319,591
Operating Income 3,678 6,188 14,895 19,659
Operating Margin on Revenue 0.9% 2.0% 1.3% 2.1%
Operating Margin on Net
Revenue 2.9% 5.6% 3.9% 6.2%
Logistics' revenue in the third quarter and first nine months of 2008
increased 34.3% and 19.0%, respectively, reflecting organic growth and the
contribution from the acquisitions of Chic Logistics and Cougar Logistics in
the second half of 2007. Excluding revenue from the acquired companies,
Logistics' revenue in the third quarter increased 28.9% due to a 34.7%
increase in revenue from carrier-management services and a 13.6% increase in
revenue from warehouse-management services, while in the first nine months of
2008, Logistics' revenue increased 12.3% due to a 12.0% increase in revenue
from carrier-management services and a 13.7% increase in revenue from
warehouse-management services. Increased revenue from carrier-management
services includes revenue from the Defense Transportation Coordination
Initiative contract, as more fully discussed below.
Logistics' net revenue in the third quarter and first nine months of 2008
increased 16.8% and 19.1%, respectively, partially due to the acquisitions of
Chic Logistics and Cougar Logistics. Excluding net revenue from the acquired
companies, Logistics' net revenue increased 10.2% and 11.2% in the third
quarter and first nine months of 2008, respectively. Higher net revenue in
2008 reflects growth in warehouse-management services, which increases
revenue without an associated increase in purchased transportation.
Logistics' operating income in the third quarter and first nine months of
2008 decreased 40.6% and 24.2%, respectively, as higher net revenue was more
than offset by collective operating losses of $2.2 million in the third
quarter and $5.0 million in the first nine months of 2008 at Chic Logistics
and Cougar Logistics. Management expects revenue and operating results at
the acquired companies to improve in future periods. The remaining
discussion of operating results and percentage changes in expense categories
excludes the acquired companies.
Excluding operating losses from the acquired companies, Logistics' operating
income in the third quarter of 2008 declined 4.3%, but increased 1.6% in the
first nine months of 2008. Operating margins in 2008 were adversely affected
by pricing pressures as customers looked to reduce supply-chain costs in
response to the economic downturn. In the third quarter and first nine
months of 2008, purchased transportation expenses increased 38.9% and 12.9%,
respectively, due to increases in carrier-management volumes, fuel surcharges
and carrier rates. Other operating expenses; expenses for salaries, wages
and other employee benefits; costs for rents and leases; and purchased labor
expense increased due primarily to increased warehouse-management volumes
associated with new customers and growth with existing customers. Other
operating expenses increased 21.8% and 18.9% in the third quarter and first
nine months of 2008, respectively, due primarily to increases in the use of
professional services, cargo-loss and damage claims, facilities expenses and
corporate allocations (primarily related to information-technology projects).
In the first nine months of 2008, other operating expenses include two
separate customer-specific second-quarter issues that increased expenses for
cargo-loss claims and uncollectible accounts. Salaries, wages and other
employee benefits increased 0.3% and 5.1% in the third quarter and first nine
months of 2008, respectively, due to increases in base compensation and other
employee-related costs, partially offset by lower incentive compensation. In
the third quarter and first nine months of 2008, base compensation rose 5.5%
and 7.6%, respectively, due to increased headcount and wage and salary rate
increases. Other employee-related costs increased 19.4% and 21.6% in the
third quarter and first nine months of 2008, respectively, due primarily to
an increase in acquisition-related travel costs. In the third quarter of
2008, incentive compensation decreased $2.1 million or 80.2% and, in the
first nine months of 2008, decreased $2.5 million or 33.2% based on
variations in performance measures relative to incentive-plan targets. In the
third quarter and first nine months of 2008, expenses for rents and leases
increased 27.1% and 23.5%, respectively, and expenses for purchased labor
increased 9.3% and 9.0%, respectively.
In August 2007, the Department of Defense ("DOD") selected Menlo Worldwide
Logistics Government Services, LLC ("MWLGS"), a subsidiary of Menlo
Logistics, Inc., as the primary contractor for the Defense Transportation
Coordination Initiative ("DTCI"), a logistics program directed by the DOD to
streamline and improve domestic transportation and distribution operations.
Under the contract, MWLGS will be responsible for deploying and operating an
integrated logistics solution for shipment planning, shipment execution and
overall transportation management for DOD shipments moving into and among DOD
facilities in the contiguous United States. The contract, with a potential
seven-year life, has a three-year base period with an estimated $525 million
in transportation expenditures. Implementation of the initiative is being
rolled out at 67 DOD distribution centers over a 25-month period. The first
distribution center began operations on March 31, 2008 and there were 11
distribution centers operating as of September 30, 2008. The contract
contributed revenue of $21.1 million and $26.0 million in the third quarter
and first nine months of 2008, respectively. However, the contract did not
have a significant effect on Logistics' operating income.
Truckload
---------
The following table compares revenues and operating income of the Truckload
reporting segment:
(Dollars in thousands) Three Months Ended Nine Months Ended
September 30, September 30,
----------------------- -----------------------
2008 2007 2008 2007
----------- ----------- ----------- -----------
Summary of Segment Operating
Results
Revenues $ 140,932 $ 51,991 $ 394,264 $ 54,228
Operating Income 15,195 2,975 37,907 6
Increased revenue and operating income at the Truckload reporting segment was
due to the acquisition of CFI. For periods prior to the acquisition of CFI
in August 2007, the operating results of the Truckload segment consist only
of the pre-acquisition truckload business unit, which reported losses of $4.7
million and $7.7 million in the third quarter and first nine months of 2007,
respectively. Results include restructuring charges of $0.7 million in the
second quarter of 2008 and $1.5 million in the third quarter of 2007 related
to the integration of the Truckload business units. Con-way Truckload's
results are affected by the timing and degree of fluctuations in fuel prices,
as more fully discussed below in Item 3, "Quantitative and Qualitative
Disclosures About Market Risk - Fuel."
Vector
------
In December 2006, Con-way recognized the sale to GM of Con-way's membership
interest in Vector. The sale of Vector did not qualify as a discontinued
operation due to its classification as an equity-method investment, and
accordingly, Vector's income or losses are reported in net income from
continuing operations.
In 2007, segment results reported from Con-way's equity investment in Vector
included a $2.7 million first-quarter loss due to the write-off of a
business-case receivable from GM, as more fully discussed in Note 5, "Sale of
Unconsolidated Joint Venture," of Item 1, "Financial Statements."
Other
-----
The Other reporting segment consists of the operating results of Road
Systems, a trailer manufacturer, and certain corporate activities for which
the related income or expense has not been allocated to other reporting
segments. Results in the third quarter and first nine months of 2008 include
expenses related to a variable executive-compensation plan that promotes
synergistic inter-segment activities. The table below summarizes the
operating results for the Other reporting segment:
(Dollars in thousands) Three Months Ended Nine Months Ended
September 30, September 30,
----------------------- -----------------------
2008 2007 2008 2007
----------- ----------- ----------- -----------
Revenues
Road Systems $ 1,015 $ 5,961 $ 3,023 $ 10,630
Operating Income (Loss)
Road Systems $ (97) $ (171) $ 732 $ 618
Con-way re-insurance
activities 376 (354) 2,347 (1,601)
Con-way corporate
properties (183) (1,015) (490) (1,740)
Variable executive
compensation (964) -- (2,105) --
Other (195) 30 (60) 321
----------- ----------- ----------- -----------
$ (1,063) $ (1,510) $ 424 $ (2,402)
=========== =========== =========== ===========
Discontinued Operations
Net income available to common shareholders in the periods presented includes
the results of discontinued operations, which relate to the closure of Con-
way Forwarding, the sale of MWF, the shut-down of EWA and its terminated
Priority Mail contract with the USPS, and the spin-off of CFC, as more fully
discussed in Note 4, "Discontinued Operations," of Item 1, "Financial
Statements." Results of discontinued operations are presented below.
(Dollars in thousands except per share Nine Months Ended
amounts) September 30,
-------------------------------
2008 2007
--------------- --------------
Gain from Disposal, net of tax $ 1,609 $ 1,609
=============== ==============
Gain from Disposal - per diluted
share $ 0.04 $ 0.04
=============== ==============
Liquidity and Capital Resources
-------------------------------
Cash and cash equivalents rose to $225.7 million at September 30, 2008 from
$176.3 million at December 31, 2007, as $223.8 million provided by operating
activities exceeded $136.0 million used in investing activities and $37.2
million used in financing activities. In the first nine months of 2008, cash
provided by operating activities came primarily from net income before non-
cash items while cash used in investing and financing activities primarily
reflects capital expenditures and the repayment of debt, respectively.
Nine Months Ended
(Dollars in thousands) September 30,
--------------------------
2008 2007
------------ ------------
Operating Activities
Net income $ 115,011 $ 116,660
Discontinued operations (1,609) (1,609)
Non-cash adjustments (1) 210,306 145,601
------------ ------------
Net income before non-cash items 323,708 260,652
Changes in assets and liabilities (99,878) 67,153
------------ ------------
Net Cash Provided by Operating Activities 223,830 327,805
Net Cash Used in Investing Activities (135,978) (712,124)
Net Cash Provided by (Used in) Financing
Activities (37,243) 302,387
------------ ------------
Net Cash Provided by (Used in) Continuing
Operations 50,609 (81,932)
Net Cash Provided by (Used in) Discontinued
Operations (1,204) 3,342
------------ ------------
Increase (Decrease) in Cash and Cash Equivalents $ 49,405 $ (78,590)
============ ============
(1) "Non-cash adjustments" refer to depreciation, amortization,
accretion, deferred income taxes, provision for uncollectible
accounts, loss from equity-method investment,and other non-cash
income and expenses.
Operating Activities
Cash flow from operating activities in the first nine months of 2008 was
$223.8 million, a $104.0 million decrease from the first nine months of 2007,
as an increase in net income before non-cash items was offset by a net use of
cash due to changes in assets and liabilities. In the first nine months of
2008, changes in receivables, accrued income taxes, and accrued incentive
compensation reduced operating cash flow when compared to the prior year,
partially offset by an increase in operating cash flow associated with
accrued liabilities (excluding employee benefits and incentive compensation).
In the first nine months of 2008, receivables used $133.3 million, compared
to $28.3 million used in the same prior-year period, due to increased
receivables at the Freight and Logistics segments, reflecting increased
revenues and increases in the average collection period for outstanding
receivables.
Accrued incentive compensation used $0.9 million in the first nine months of
2008 compared to $18.1 million provided in the same prior-year period. In
the first nine months of 2008 and 2007, expense accruals for incentive
compensation were $30.5 million and $44.8 million, respectively, while
incentive compensation payments in those periods, which relate to the prior
year, were $31.4 million and $26.7 million, respectively.
In the first nine months of 2008, accrued income taxes used $15.1 million,
compared to $38.5 million provided in the same prior-year period due
primarily to tax refunds received in March 2007.
The increase in accrued liabilities provided $55.5 million in the first nine
months of 2008 compared to $32.8 million in the first nine months of 2007.
Increases in accrued liabilities (excluding employee benefits and incentive
compensation) primarily reflect increases in accrued interest on the 7.25%
Senior Notes issued in December 2007 and unearned revenue related to a
logistics contract.
Accounts payable provided $10.6 million of cash in the first nine months of
2008 after reflecting a $31.7 million decline in drafts payable. The decline
in drafts payable was due primarily to a change in banking services that
resulted in a change to the classification of drafts from accounts payable to
a reduction in cash and cash equivalents.
Investing Activities
Cash used in investing activities decreased to $136.0 million in the first
nine months of 2008 from $712.1 million used in the first nine months of 2007
due primarily to $739.5 million used to purchase CFI and $28.2 million used
to purchase Cougar Logistics in the third quarter of 2007.
The decrease in cash used in investing activities also reflects an increase
in capital expenditures, a decrease in cash provided from the conversion of
marketable securities and a decrease in proceeds received from the sale of
assets. Capital expenditures in the first nine months of 2008 increased
$103.5 million from the same prior-year period due primarily to increased
tractor and trailer expenditures at the Truckload segment. Cash provided by
changes in marketable securities decreased $67.0 million in the first nine
months of 2008, primarily due to the conversion in August 2007 of marketable
securities that partially funded the acquisition of CFI. The first nine
months of 2008 included $40.4 million of proceeds received from the sale of
two Logistics' warehouses, as more fully discussed in Note 12, "Sale-
Leaseback Transaction," of Item 1, "Financial Statements," compared to $51.9
million of proceeds received in the first nine months of 2007 from the sale
of Con-way's membership interest in Vector.
Financing Activities
Financing activities used cash of $37.2 million in the first nine months of
2008 compared to $302.4 million provided in the same period of 2007. In
August 2007, Con-way borrowed $425.0 million under a bridge-loan facility to
partially fund the acquisition of CFI. The proceeds received from the bridge
loan were partially offset by common stock repurchases of $89.9 million in
the first nine months of 2007, which were made under a repurchase program
authorized by Con-way's Board of Directors. The repurchase program concluded
on June 29, 2007 and no additional authorizations have been made under the
program. In both periods presented, financing activities also reflect
proceeds from the exercise of stock options, dividend payments and scheduled
debt repayments.
Con-way has a $400 million revolving credit facility that matures on
September 30, 2011. The revolving credit facility is available for cash
borrowings and for the issuance of letters of credit up to $400 million. At
September 30, 2008, no borrowings were outstanding under Con-way's revolving
credit facility; however, $204.3 million of letters of credit were
outstanding, with $195.7 million of available capacity for additional letters
of credit or cash borrowings. Con-way had other uncommitted, unsecured
credit facilities totaling $66.7 million at September 30, 2008, which are
available to support letters of credit, bank guarantees, and overdraft
facilities. A total of $20.1 million was outstanding under these facilities
at September 30, 2008.
See "- Forward-Looking Statements" below; Item 1A, "Risk Factors," and Note
7, "Debt and Other Financing Arrangements," of Item 8, "Financial Statements
and Supplementary Data," in Con-way's 2007 Annual Report on Form 10-K for
additional information concerning Con-way's $400 million credit facility and
its other debt instruments.
Contractual Cash Obligations
Con-way's contractual cash obligations as of December 31, 2007 are summarized
in Con-way's 2007 Annual Report on Form 10-K under Item 7, "Management's
Discussion and Analysis - Liquidity and Capital Resources - Contractual Cash
Obligations." In the first nine months of 2008, there have been no material
changes in Con-way's contractual obligations outside the ordinary course of
business, except for the sale-leaseback transaction discussed in Note 12,
"Sale-Leaseback Transaction," of Item 1, "Financial Statements."
Other
In 2008, Con-way anticipates net capital and software expenditures of
approximately $200 million ($261 million of expenditures net of $61 million
of proceeds received from the sale of properties and equipment). Con-way's
estimate for capital expenditures primarily includes acquisitions of
additional tractor and trailer equipment, land, and development of new and
existing facilities. Con-way's actual 2008 net capital expenditures may
differ from the estimated amount, depending on factors such as actual and
anticipated business volumes, availability and timing of delivery of
equipment, the availability of land in desired locations for new facilities,
the timing of obtaining permits, environmental studies and other approvals
necessary for the development of new and existing facilities, and the timing
of asset sales.
At September 30, 2008, Con-way's senior unsecured debt was rated as
investment grade by Standard and Poor's (BBB), Fitch Ratings (BBB), and
Moody's (Baa3). On October 27, 2008, Standard and Poor's put its ratings of
Con-way on review for possible downgrade due to the effect of the economic
downturn on the trucking sector.
Con-way believes that its working capital requirements and capital
expenditure plans in the foreseeable future will be adequately met with
various sources of liquidity and capital, including Con-way's cash and cash
equivalents, cash flow from operations, credit facilities and access to
capital markets.
Critical Accounting Policies and Estimates
------------------------------------------
The preparation of financial statements in accordance with accounting
principles generally accepted in the U.S. requires management to adopt
accounting policies and make significant judgments and estimates. In many
cases, there are alternative policies or estimation techniques that could be
used. Con-way maintains a process to evaluate the appropriateness of its
accounting policies and estimation techniques, including discussion with and
review by the Audit Committee of its Board of Directors and its independent
auditors. Accounting policies and estimates may require adjustment based on
changing facts and circumstances and actual results could differ from
estimates. Con-way believes that the accounting policies that require the
most judgment and are material to the financial statements are those related
to the following:
* Defined Benefit Pension Plans
* Self-Insurance Accruals
* Income Taxes
* Revenue Recognition
* Property, Plant and Equipment and Other Long-Lived Assets
* Acquisitions
* Disposition and Restructuring Activities
Information concerning Con-way's "Critical Accounting Policies and Estimates"
is included in Item 7, "Management's Discussion and Analysis," in Con-way's
2007 Annual Report on Form 10-K. There have been no significant changes to
the disclosures of critical accounting policies and estimates reported in
Con-way's 2007 Annual Report on Form 10-K, except as noted below.
As more fully discussed in Con-way's annual disclosures of critical
accounting policies and estimates, the amount recognized as pension expense
and the accrued pension liability for Con-way's defined-benefit pension plans
depend on a number of assumptions and factors, the most significant being the
discount rate used to measure the present value of pension obligations, and
the expected rate of return on plan assets for the funded qualified plans.
Con-way concludes on significant assumptions and recognizes the financial-
statement effect of any changes in assumptions at the end-of-year actuarial
plan measurement date. However, the recent global financial crisis has
significantly increased volatility in equity and credit markets and that
volatility can be expected to affect certain plan-related end-of-year
assumptions. When compared to the last actuarial plan measurement on
December 31, 2007, current market conditions would require Con-way to
increase the assumed discount rate, which would decrease the reported plan
obligation. Recent declines in equity and credit markets have significantly
reduced the fair value of plan assets, which decreases the actual return on
plan assets and decreases the expected plan-related income in 2009. If the
effect of an increase in the discount rate is more than offset by the effect
of a decline in the fair value of plan assets, Con-way would report
reductions to the plan's funded status and to equity and would also recognize
a decline in plan-related income in 2009.
New Accounting Standards
------------------------
Refer to Note 1, "Principal Accounting Policies," of Item 1, "Financial
Statements," for a discussion of recently issued accounting standards that
Con-way has not yet adopted.
Forward-Looking Statements
--------------------------
Certain statements included herein constitute "forward-looking statements"
within the meaning of Section 21E of the Securities Exchange Act of 1934, as
amended, and are subject to a number of risks and uncertainties, and should
not be relied upon as predictions of future events. All statements other
than statements of historical fact are forward-looking statements, including:
* any projections of earnings, revenues, weight, yield, volumes, income or
other financial or operating items;
* any statements of the plans, strategies, expectations or objectives of
Con-way's management for future operations or other future items;
* any statements concerning proposed new products or services;
* any statements regarding Con-way's estimated future contributions to
pension plans;
* any statements as to the adequacy of reserves;
* any statements regarding the outcome of any claims that may be brought
against Con-way by CFC's multi-employer pension plans;
* any statements regarding future economic conditions or performance;
* any statements regarding the outcome of legal and other claims and
proceedings against Con-way;
* any statements regarding strategic acquisitions; and
* any statements of estimates or belief and any statements or assumptions
underlying the foregoing.
Certain such forward-looking statements can be identified by the use of
forward-looking terminology such as "believes," "expects," "may," "will,"
"should," "seeks," "approximately," "intends," "plans," "estimates" or
"anticipates" or the negative of those terms or other variations of those
terms or comparable terminology or by discussions of strategy, plans or
intentions. Such forward-looking statements are necessarily dependent on
assumptions, data and methods that may be incorrect or imprecise and there
can be no assurance that they will be realized. In that regard, certain
important factors, among others and in addition to the matters discussed
elsewhere in this document and other reports and documents filed by Con-way
with the Securities and Exchange Commission, could cause actual results and
other matters to differ materially from those discussed in such forward-
looking statements. A detailed description of certain of these risk factors
is included in Item 1A, "Risk Factors," of Con-way's 2007 Annual Report on
Form 10-K.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Con-way is exposed to a variety of market risks, including the effects of
interest rates, fuel prices, and foreign currency exchange rates.
Con-way enters into derivative financial instruments only in circumstances
that warrant the hedge of an underlying asset, liability or future cash flow
against exposure to some form of interest rate, commodity or currency-related
risk. Additionally, the designated hedges should have high correlation to
the underlying exposure such that fluctuations in the value of the
derivatives offset reciprocal changes in the underlying exposure. Con-way
held no material derivative financial instruments at September 30, 2008.
Interest Rates
Con-way is subject to the effect of interest-rate fluctuations on the fair
value of its long-term debt and on the amount of interest income earned on
cash-equivalent investments and marketable securities, as more fully
discussed in Item 7A, "Quantitative and Qualitative Disclosures About Market
Risk," of Con-way's 2007 Annual Report on Form 10-K.
Fuel
Con-way is subject to risks associated with the availability and price of
fuel, which are subject to political, economic, and market factors that are
outside of Con-way's control.
Con-way would be adversely affected by an inability to obtain fuel in the
future. Although historically Con-way has been able to obtain fuel from
various sources and in the desired quantities, there can no assurance that
this will continue to be the case in the future.
Con-way may also be adversely affected by the timing and degree of
fluctuations in fuel prices. Currently, Con-way's business units have fuel-
surcharge revenue programs or cost-recovery mechanisms in place with a
majority of customers. Con-way's business units in the Freight and Truckload
segments maintain fuel-surcharge programs designed to offset or mitigate the
adverse effect of rising fuel prices. Menlo Logistics has cost-recovery
mechanisms incorporated into most of its customer contracts under which it
recognizes fuel-surcharge revenue designed to eliminate the adverse effect of
rising fuel prices on purchased transportation.
Although Con-way Freight's competitors in the less-than-truckload ("LTL")
market also impose fuel surcharges, there is no LTL industry-standard fuel-
surcharge formula. Con-way Freight's fuel-surcharge program, which is based
on a published national index, constitutes only part of Con-way Freight's
overall rate structure. Con-way Freight generally refers to "base freight
rates" as the collective pricing elements that exclude fuel surcharges.
Accordingly, changes to base freight rates reflect numerous factors such as
length of haul, freight class, and weight per shipment as well as customer-
negotiated adjustments to Con-way's fuel-surcharge mechanism. Ultimately,
the total amount that Con-way Freight can charge for its services is
determined by competitive pricing pressures and market factors.
Historically, its fuel-surcharge program has enabled Con-way Freight to more
than recover increases in fuel costs and fuel-related increases in purchased
transportation. As a result, Con-way Freight may be adversely affected if
fuel prices fall and the resulting decrease in fuel-surcharge revenue is not
offset by an equivalent increase in base freight-rate revenue. Although
lower fuel surcharges may improve Con-way Freight's ability to increase the
freight rates that it would otherwise charge, there can be no assurance in
this regard. Con-way Freight may also be adversely affected if fuel prices
increase or if fuel prices return to historically high levels. Customers
faced with fuel-related increases in transportation costs often seek to
negotiate lower rates through reductions in the base rates and/or limitations
on the fuel surcharges charged by Con-way Freight, which adversely affect
Con-way Freight's ability to offset higher fuel costs with higher revenue.
Con-way Truckload's fuel-surcharge program mitigates the effect of rising
fuel prices but does not always result in Con-way Truckload fully recovering
the increase in its cost of fuel. In part, this is due to fuel costs that
cannot be billed to customers, including costs such as those incurred in
connection with empty and out-of-route miles or when engines are being idled
during cold or warm weather. As with the LTL industry, there is no truckload
industry-standard fuel-surcharge formula.
Con-way would be adversely affected if, due to competitive and market
factors, its business units are unable to continue their current fuel-
surcharge programs and/or cost-recovery mechanisms. In addition, there can be
no assurance that the programs and/or mechanisms utilized by Con-way Freight
and Menlo Logistics, as currently maintained or as modified in the future,
will be sufficiently effective to offset increases in the price of fuel, or
that the programs maintained by Con-way Truckload will enable Con-way
Truckload to sufficiently minimize its exposure to fuel-related cost
increases.
Foreign Currency
The assets and liabilities of Con-way's foreign subsidiaries are denominated
in foreign currencies, which create exposure to changes in foreign-currency
exchange rates. Con-way does not currently use derivative financial
instruments to manage foreign currency risk.
ITEM 4. CONTROLS AND PROCEDURES
(a) Disclosure Controls and Procedures
Con-way's management, with the participation of Con-way's Chief Executive
Officer and Chief Financial Officer, has evaluated the effectiveness of Con-
way's disclosure controls and procedures (as such term is defined in Rules
13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) as of the end of the period covered by this report.
Based on such evaluation, Con-way's Chief Executive Officer and Chief
Financial Officer have concluded that Con-way's disclosure controls and
procedures are effective as of the end of such period.
(b) Internal Control Over Financial Reporting
Other than as described below, there have not been any changes in Con-way's
internal control over financial reporting (as such term is defined in Rules
13a-15(f) and 15d-15(f) under the Exchange Act) during the fiscal quarter to
which this report relates that have materially affected, or are reasonably
likely to materially affect, Con-way's internal control over financial
reporting.
Con-way acquired CFI on August 23, 2007, Cougar Logistics on September 5,
2007 and Chic Logistics on October 18, 2007. In connection with the
acquisition of Chic Logistics, Con-way has implemented changes to its
internal controls over financial reporting, including primarily the
replacement of certain key staff with better-qualified employees and the
establishment of additional authorization and segregation-of-duties controls
in the revenue, expenditures, treasury and book-close processes. Management
is continuing to evaluate and document the procedures and controls at these
acquired companies and, as a result, may make additional changes or identify
deficiencies. Con-way will include these acquired companies in Management's
Report on Internal Control Over Financial Reporting for the annual period
ended December 31, 2008.
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
Con-way, along with other companies engaged in the LTL trucking business, was
named as a defendant in a purported class-action lawsuit filed on July 30,
2007 in the United States District Court for the Southern District of
California. The named plaintiffs, Farm Water Technological Services Inc.
d/b/a Water Tech. and C.B.J.T. d/b/a Agricultural Supply, allege that the
defendants have conspired to fix fuel surcharges for LTL shipments in
violation of Federal antitrust laws and are seeking treble damages,
injunctive relief, attorneys' fees and costs. After this lawsuit was filed,
approximately 50 similar lawsuits were filed by other plaintiffs in various
federal district courts, naming as defendants Con-way or Con-way Freight (or
both), as well as other companies engaged in the LTL trucking business. In
December 2007, these cases were consolidated for litigation in the Federal
District Court for the Northern District of Georgia in Atlanta.
In 2003, prior to the sale of MWF to UPS, Con-way became aware of information
that Emery Transnational, a Philippines-based joint venture in which MWF,
Inc. may be deemed to be a controlling partner, may have made certain
payments in violation of the Foreign Corrupt Practices Act. Con-way promptly
notified the Department of Justice and the Securities and Exchange Commission
of this matter, and MWF, Inc. instituted policies and procedures in the
Philippines designed to prevent such payments from being made in the future.
Con-way was subsequently advised by the Department of Justice that it is not
pursuing an investigation of this matter. Con-way conducted an internal
investigation of approximately 40 other MWF, Inc. international locations and
has shared the results of the internal investigation with the SEC. The
internal investigation revealed that Menlo Worldwide Forwarding (Thailand)
Limited, a Thailand-based joint venture, also may have made certain payments
in violation of the Foreign Corrupt Practices Act. MWF, Inc. made certain
personnel changes and instituted policies and procedures in Thailand designed
to prevent such payments from being made in the future. In December 2004,
Con-way completed the sale of its air freight forwarding business (including
the stock of MWF, Inc., Emery Transnational and Menlo Worldwide Forwarding
(Thailand) Limited) to an affiliate of UPS. In connection with that sale,
Con-way agreed to indemnify UPS for certain losses resulting from violations
of the Foreign Corrupt Practices Act. On August 27, 2008, Con-way Inc.
settled this matter with the SEC by agreeing to cease and desist from
committing or causing any violations of the books and records and internal
controls provisions, specifically sections 13(b)(2)(A), 13(b)(2)(B) and
13(b)(5), of the Securities Exchange Act of 1934, and consenting to the
entry of a final judgment requiring Con-way to pay a $300,000 civil
penalty. The civil penalty was paid to the SEC in September 2008.
Certain legal proceedings of Con-way are also discussed in Note 4,
"Discontinued Operations," and Note 13, "Commitments and Contingencies," of
Item 1, "Financial Statements."
ITEM 1A. RISK FACTORS
A detailed description of risk factors is included in Item 1A, "Risk
Factors," of Con-way's 2007 Annual Report on Form 10-K. Except for the
discussion included herein under "Fuel" of Part 1, Item 3, "Market Risk,"
there have been no changes to Con-way's risk-factors disclosures.
ITEM 6. EXHIBITS
Exhibit No.
-----------
(2) Plan of acquisition, reorganization, arrangement, liquidation, or
succession:
2.1 Con-way Plan for reorganization of Con-way Freight, Inc. (Item
2.05 to Con-way's Report on Form 8-K filed on November 3, 2008).*
(10) Material Contracts
10.1 Summary of Certain Compensation Agreements (Item 5.02 to Con-
way's Report on Form 8-K filed on August 14, 2008).*#
10.2 Amended Executive Severance Agreements (Item 5.02 to Con-way's
Report on Form 8-K filed on September 25, 2008).*
(31) Certification of Officers pursuant to Section 302 of the Sarbanes-Oxley
Act of 2002
(32) Certification of Officers pursuant to Section 906 of the Sarbanes-Oxley
Act of 2002
* Previously filed with the Securities and Exchange Commission and
incorporated herein by reference.
# Designates a contract or compensation plan for Management and Directors.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Con-way Inc.
-------------
(Registrant)
November 7, 2008 /s/ Stephen L. Bruffett
-------------------------
Stephen L. Bruffett
Senior Vice President and
Chief Financial Officer