AMENDED AND RESTATED EMPLOYMENT AGREEMENT Effective as of April 1, 2006
Exhibit 10.C
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Effective as of April 1, 2006
AGREEMENT by and between Viad Corp, a Delaware corporation (the “Company”), and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ (the “Executive”), dated as of June 1, 2004.
WHEREAS, Executive currently serves as Chairman of the Board, President and Chief Executive
Officer of the Company, and will step down as President and Chief Executive Officer on March 31,
2006; and
WHEREAS, the Board has determined that it is in the best interests of the Company and its
shareholders to continue to employ the Executive in his role as Chairman of the Board of the
Company, and the Executive has agreed to continue to serve in that capacity; and
WHEREAS, the Board has determined that it is in the best interests of the Company and its
shareholders that Executive be named Chairman Emeritus of this Company upon his retirement at the
end of the Employment Period (defined below), and thereafter be retained as a consultant to the
Company; and
WHEREAS, the Company and Executive desire to enter into this Amended and Restated Employment
Agreement in connection with the Executive’s change in responsibilities, which Agreement amends,
restates and supersedes the Employment Agreement between the Company and Executive dated as of June
1, 2004;
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Employment Period. The Company shall employ the Executive, and the Executive shall
serve the Company as Chairman of the Board, on the terms and conditions set forth in this
Agreement, for the period beginning April 1, 2006, and ending
March 31, 2008 (“Employment Period”).
2. Position and Duties. (a) Employment Period. During the Employment
Period, the Executive shall serve as Chairman of the Board of the Company and preside at all
meetings of the Board and shareholders, and shall have such other powers and perform such other
duties as the Board may determine,
including, but not limited to, the powers and duties described on Schedule A of this Agreement.
During the Employment Period, and excluding any periods of vacation and sick leave to which the
Executive is entitled, the Executive shall devote reasonable attention and time during normal
business hours to the business and affairs of the Company and, to the extent necessary to discharge
the responsibilities assigned to the Executive under this Agreement, use the Executive’s reasonable
best efforts to carry out such responsibilities faithfully and efficiently. It shall not be
considered a violation of the foregoing for the Executive to (A) serve on corporate, civic or
charitable boards or committees, (B) deliver lectures, fulfill speaking engagements or teach at
educational institutions and (C) manage personal investments, so long as such activities do not
significantly interfere with the performance of the
Executive’s responsibilities as an employee of
the Company in accordance with this Agreement.
(b) Following Employment Period. If Executive is employed by the Company at
expiration of the Employment Period, Executive shall be named Chairman Emeritus of the Company and
shall be retained as a consultant to the Company for a term of five years, upon terms and
conditions generally described in Schedule B of this Agreement.
(c) Location. The Executive’s services shall be performed primarily at Viad Tower,
Phoenix, Arizona, or such other location designated by the Board, as long as such location is not
more than 25 miles from Executive’s residence on the date hereof.
3. Compensation. (a) Base Salary. During the Employment Period, the
Executive shall receive an annual base salary (“Annual Base
Salary”) of $650,000.00, payable twice
each month on a pro rata basis. During the Employment Period, the Annual Base Salary shall be
reviewed for possible increase at least annually. Annual increases shall be no less than the
lesser of 5% or the increase in the Consumer Price Index (“CPI”) for prior annual period. Any
increase in the Annual Base Salary shall not limit or reduce any other obligation of the Company
under this Agreement.
(b) Annual Bonus. In addition to the Annual Base Salary, the Executive shall be
awarded, for each calendar year or portion thereof, ending during the Employment Period, an annual
bonus (the “Annual Bonus”) as determined by the Board. Each Annual Bonus or Management Incentive
Plan (“MIP”), as it is sometimes called, shall be paid in a single cash lump sum no later than 90
days after the end of the calendar year for which the Annual Bonus is awarded.
(c) Incentives. During the Employment Period, the Executive shall be eligible to
participate in the long-term incentive plans and programs of the Company on the same basis as other
senior executives of the Company, including, but not limited to, any program providing awards of
Performance-Driven Restricted Stock, Performance-Based Restricted Stock and Restricted Stock
(collectively, “Stock Awards”).
(d) Other Benefits. During the Employment Period: (i) the Executive shall be
entitled to participate in all savings and retirement plans, practices, policies and programs of
the Company; and (ii) the Executive and/or the Executive’s family, as the case may be, shall be
eligible for participation in, and shall receive all benefits under, all welfare benefit plans,
practices, policies and programs provided by the Company (including, without limitation, medical,
limited medical, prescription, vision, dental, disability, salary continuance, employee life
insurance, group life insurance, accidental death and travel accident insurance plans and
programs), in each case to the same extent as other senior executives of the Company, but to no
lesser extent than that which he and his family participated prior to the Spin-Off.
(e) Expenses. During the Employment Period, the Executive shall be entitled to
receive prompt reimbursement for all reasonable expenses incurred by the Executive in carrying out
the Executive’s duties under this
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Agreement, provided that the Executive complies with the
policies, practices and procedures of the Company for submission of expense reports, receipts, or
similar documentation of such expenses.
(f) Fringe Benefits. During the Employment Period, the Executive shall be entitled to
fringe benefits, such as tax and financial planning services, payment of lunch and country club
dues, use of
an automobile and payment of related expenses, an annual physical, home security system, and mobile
and cellular phones.
(g) Vacation. During the Employment Period, the Executive shall be entitled to paid
vacation of five weeks per year, with any unused vacation to be accrued and available in subsequent
years.
(h) Calculation of Certain Awards and Benefits. Determination of Executive’s (i)
Annual Bonus, (ii) incentive award grants where the value of such grant is based on annual salary,
and (iii) benefits (including but not limited to the Supplemental Executive Retirement Plan and
Long-Term and Short-Term Disability Plans) under all health and welfare benefit plans for which a
benefit obligation is based on annual salary, shall in each case be calculated using 150% of Annual
Base Salary.
4. Early Termination of Employment. (a) Death or Disability. The Executive’s
employment shall terminate automatically upon the Executive’s death during the Employment Period.
The Company shall be entitled to terminate the Executive’s employment because of the Executive’s
Disability during the Employment Period. “Disability” means that (i) the Executive has been
unable, for a period of 180 consecutive business days, to perform the Executive’s duties under this
Agreement, as a result of physical or mental illness or injury, and (ii) a physician selected by
the Company or its insurers, and acceptable to the Executive or the Executive’s legal
representative, has determined that the Executive’s incapacity is total and permanent. A
termination of the Executive’s employment by the Company for Disability shall be communicated to
the Executive by written notice, and shall be effective on the 30th day after receipt of such
notice by the Executive (the “Disability Effective Date”), unless the Executive returns to
full-time performance of the Executive’s duties before the Disability Effective Date.
(b) Early Termination by the Company. The Company may terminate the Executive’s
employment during the Employment Period at any time, without a stated reason, by a vote of a
majority of the Board, excluding Executive. The Board shall also determine the date of Early
Termination.
(c) Early Termination for Cause. The Company may terminate the Executive’s
employment for cause as defined below in accordance with the following procedure:
Cause defined: For purposes of the Agreement, the Company shall have “Cause” to terminate
the Executive’s employment upon (A) the willful and continued failure by the Executive to
substantially perform his duties (other
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than any such failure resulting from the Executive’s
incapacity due to physical or mental illness) after demand for substantial performance is
delivered by the Company specifically identifying the manner in which the Company believes
the Executive has not substantially performed his duties, or (B) the willful engaging by
the Executive in misconduct which is materially injurious to the Company, monetarily or
otherwise. No act, or failure to act, on the Executive’s part shall be considered “willful”
unless done, or omitted to be done, by him not in good faith and without reasonable belief
that his action or omission was in the best interest of the Company. Notwithstanding the
foregoing, the Executive shall not be deemed to have been terminated for Cause unless and
until there shall have been delivered to the Executive a copy of a resolution, duly adopted
by the affirmative vote of not less than three-quarters (3/4) of the entire membership of
the Board, excluding Executive, at a meeting of the Board called and held for such purposes
(after reasonable notice to the Executive and an opportunity for him, together with his
counsel, to be heard before the Board), finding that in the good faith opinion of the Board,
the Executive was guilty of conduct set forth above in clause (A) or (B).
(d) Early Termination by Executive. The Executive may terminate employment
voluntarily by ordinary retirement at any time after giving the Company at least 180 days’ advance
written notice.
5. Obligations of the Company. (a) Death or Disability. If the Executive’s
employment is terminated by reason of the Executive’s death during the Employment Period, the
Company shall pay the pro rata benefits or obligations to the Executive or the Executive’s estate
or legal representative, as applicable, in a lump sum in cash within 90 days after the Date of
Death or Disability Termination. If the
Executive’s employment is terminated by reason of Disability during the Employment Period, the
Company shall pay benefits and obligations to the Executive, as provided in the Long-Term
Disability Plan of the Company.
Stock options and Stock Awards shall be subject to the terms and conditions of the
corresponding agreements.
(b) Early Termination by the Board. If, during the Employment Period, the Company
terminates the Executive’s employment, other than for Death or Disability or Cause, the Company
shall pay the amounts and provide the benefits described below to the Executive and shall, at its
sole expense as incurred, provide the Executive with outplacement services, the scope and provider
of which shall be selected by the Executive in the Executive’s sole discretion. The payments and
benefits provided pursuant to this paragraph (b) of Section 5 are intended as liquidated damages
for a termination of the Executive’s employment by the Company (other than termination for Cause)
and shall be the sole and exclusive remedy therefor.
The amounts to be paid and the benefits to be provided as described above are:
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(i) Severance pay equal to three times the sum of (1) 150% of the then current
Annual Base Salary and (2) the average of the last three Annual Bonus or MIP
awards paid to Executive, such payment to be made in a lump sum;
(ii) Stock Awards shall be subject to the terms and conditions of the
corresponding agreements;
(iii) All stock options awarded to Executive shall vest as of the day of Early
Termination;
(iv) Lifetime Limited Executive Medical benefits for Executive and his family
(dependent children to receive benefits until age 19, or until age 25 if
documented full-time students);
(v) Executive shall be entitled to a credit for an additional three years of age
from the date of Early Termination for purposes of determining Executive’s
retirement benefits in accordance with the Company’s pension plans; and
(vi) A lump sum payment for all unused and accrued vacation.
(c) Upon Early Termination for Cause. The Executive shall be paid:
(i) 150% of Annual Base Salary.
(ii) Accrued MIP prorated to date of Early Termination.
(iii) Stock Awards shall terminate without any further payments or further
vesting.
(iv) A lump sum payment for all unused and accrued vacation.
(v) Executive’s participation in all health and welfare plans described in
Section 3(d) will cease upon Early Termination and Executive will be eligible
for benefits under Cobra.
(d) Upon Ordinary Retirement. The Executive shall be paid or receive benefits as
follows:
(i) Salary and accrued MIP prorated to the date of Retirement.
(ii) Stock options and Stock Awards shall be subject to the terms and conditions
of the corresponding agreements, provided, however, that all Stock Awards shall
vest 100% at time of Retirement if Executive retires at age 65 or older.
(iii) All other accrued benefits as of the date of Retirement shall be paid to
the Executive in accordance with their respective plans.
(iv) Lifetime Limited Executive Medical benefits for Executive and his family
(dependent children to receive benefits until age 19, or until age 25 if
documented full-time students).
(v) Other benefits as may be determined by the Board.
(vi) Executive shall be provided with suitable office space and equipment for so
long as Executive
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has a reasonable need for office facilities, and with an
administrative assistant for five years. Executive shall also be entitled to
use of a leased automobile for a period of five years following Retirement, such
automobile to be comparable to the automobile currently leased for Executive.
6. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or limit the
Executive’s continuing or future participation in any plan, program, policy or practice provided by
the Company or any of its affiliated companies for which the Executive may qualify, nor, subject to
paragraph (f) of Section 10, shall anything in this Agreement limit or otherwise affect such rights
as the Executive may have under any contract
or agreement with the Company or any of its affiliated companies. Vested benefits and other
amounts that the Executive is otherwise entitled to receive under any plan, policy, practice or
program of, or any contract or agreement with, the Company or any of its affiliated companies on or
after the Date of Termination shall be payable in accordance with such plan, policy, practice,
program, contract or agreement. Specifically, in the event of a “Change of Control,” as defined in
the Executive Severance Agreement applicable to the Executive, the terms of the Executive Severance
Agreement shall control to the extent they provide an additional or enhanced benefit.
7. Full Settlement. The Company’s obligation to make the payments provided for in,
and otherwise to perform its obligations under, this Agreement shall not be affected by any
set-off, counterclaim, recoupment, defense or other claim, right or action that the Company may
have against the Executive or others. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable to the Executive
under any of the provisions of this Agreement.
8. Confidential Information; Noncompetition. (a) The Executive shall hold in a
fiduciary capacity for the benefit of the Company all secret or confidential information, knowledge
or data relating to
the Company or any of its affiliated companies and their respective businesses that the Executive
obtains during the Executive’s employment by the Company or any of its affiliated companies and
that is not public knowledge (other than as a result of the Executive’s violation of this paragraph
(a) of Section 8) (“Confidential Information”). The Executive shall not communicate, divulge or
disseminate Confidential Information at any time during or after the Executive’s employment with
the Company, except with the prior written consent of the Company or as otherwise required by law
or legal process.
(b) During the Noncompetition Period (as defined below), the Executive shall not, without the
prior written consent of the Board, engage in or become associated with a Competitive Activity.
For purposes of this paragraph (b) of Section 8: (I) the “Noncompetition Period” means three (3)
years from the date of Early Termination or Ordinary Retirement; (ii) a “Competitive Activity”
means any business or other endeavor
that engages in businesses similar to those
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conducted by the Company; and (iii) the Executive
shall be considered to have become “associated with a Competitive Activity” if he becomes directly
or indirectly involved as an owner, employee, officer, director, independent contractor, agent,
partner, advisor, or in any other capacity calling for the rendition of the Executive’s personal
services, with any individual, partnership, corporation or other organization that is engaged in a
Competitive Activity. Notwithstanding the foregoing, the Executive may make and retain investments
during the Employment Period in not more than five percent of the equity of any entity engaged in a
Competitive Activity, if such equity is listed on a national securities exchange or regularly
traded in an over-the-counter market.
(c) Executive’s service as Chairman of the Board of MoneyGram International, Inc. will not be
considered a violation of this Agreement.
9. Successors. (a) This Agreement is personal to the Executive and, without the
prior written consent of the Company, shall not be assignable by the Executive otherwise than by
will or the laws of descent and distribution. This Agreement shall inure to the benefit of and be
enforceable by the
Executive’s legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon the Company and its
successors and assigns.
(c) The Company shall require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or assets of the
Company expressly to assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would have been required to perform it if no such succession had taken
place. As used in this Agreement, “Company” shall mean both the Company as defined above and any
such successor that assumes and agrees to perform this Agreement, by operation of law or otherwise.
10. Miscellaneous. (a) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Arizona, without reference to principles of conflict of
laws. The captions of this
Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement
may not be amended or modified except by a written agreement executed by the parties hereto or
their respective successors and legal representatives.
(b) All notices and other communications under this Agreement shall be in writing and shall be
given by hand delivery to the other party or by registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to the Executive:
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If to the Company:
or to such other address as either party furnishes to the other in writing in accordance with this
paragraph (b) of Section 10. Notices and communications shall be effective when actually received
by the addressee.
(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement. If any provision of this
Agreement shall be held invalid or unenforceable in part, the remaining portion of such provision,
together with all other provisions of this Agreement, shall remain valid and enforceable and
continue in full force and effect to the fullest extent consistent with law.
(d) Notwithstanding any other provision of this Agreement, the Company may withhold from
amounts payable under this Agreement all federal, state, local and foreign taxes that are required
to be withheld by applicable laws or regulations.
(e) The Executive’s or the Company’s failure to insist upon strict compliance with any
provision of, or to assert any right under, this Agreement shall not be deemed to be a waiver of
such provision or right or of any other provision of or right under this Agreement.
(f) The Executive and the Company acknowledge that this Agreement supersedes any other
agreement between them concerning the subject matter hereof.
(g) This Agreement may be executed in several counterparts, each of which shall be deemed an
original, and said counterparts shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive’s hand and, pursuant to the
authorization of its Board of Directors, the Company has caused this Agreement to be executed in
its name on its behalf, all as of the day and year first above written.
| /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||||||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||||||
| VIAD CORP | ||||||
| By | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
|
|||||
| Vice President & General Counsel | ||||||
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Schedule A
POWERS AND DUTIES
| A. | Work with members of the Board to establish agendas for Board meetings, arrange for all such meetings, and preside at each such meeting. | |
| B. | In concert with the senior executives and directors of the Company, coordinate efforts to develop current and long-range strategies, objectives, policies and procedures aimed at assuring the Company’s long-term financial and operational success, thereby enhancing shareholder value. | |
| C. | Mentor and assist the Company’s Chief Executive Officer in broadening the CEO’s knowledge and skill base as he moves beyond operating responsibilities into the wider and more challenging role as Chief Executive Officer of a public company. | |
| D. | Assist the CEO, the Chief Financial Officer and the Stockholder Relations department of the Company in preparing and presenting the Company’s profile and recent operating history to its investor and creditor constituencies. | |
| E. | Work with the CEO in evaluating and pursuing merger and/or acquisition possibilities. | |
| F. | Conduct special and annual meetings of the Company’s shareholders. | |
| G. | Perform such other duties as reasonably may be assigned to him from time to time by the Board of Directors. |
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Schedule B
CONSULTANT AGREEMENT – TERMS AND CONDITIONS
Duties of Consultant will include (a) continuing as an advisor to the Company’s CEO, and (b)
performing such other services as the Board of Directors reasonably and from time to time may
prescribe.
During the five-year term as Consultant to the Company:
| (i) | Within the limitations set forth below in clause iii, Consultant will devote such time as reasonably may be needed to faithfully execute his related responsibilities; | ||
| (ii) | For services as Consultant to the Company, Consultant shall be paid in quarterly installments an annual consulting fee of: |
| • | $300,000 in 2008 | ||
| • | $200,000 in 2009 | ||
| • | $125,000 in 2010 | ||
| • | $125,000 in 2011 | ||
| • | $125,000 in 2012 |
| (iii) | Although Consultant may voluntarily devote more time to the Company’s affairs than contractually required, Consultant shall not be obligated to devote to the Company’s affairs more than the equivalent of: |
| • | Seven days per month in 2008. | ||
| • | Five days per month in 2009. | ||
| • | Three days per month in each of the three years ending December 31, 2010, 2011, and 2012. |
Agreement to contain such other terms and conditions as are contained in standard form consulting
agreements of the Company.
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