Exhibit 10.A
Viad Corp
Supplemental Pension Plan
(Amended and Restated as of January 1, 2005 for Code Section 409A)
Article 1. Purpose
The purpose of the Viad Corp Supplemental Pension Plan (the Plan) is to provide deferred
compensation to Eligible Employees (as defined in Article 3) on and after January 1, 1976. This
amended and restated Plan document (the Restatement) is effective for plan years beginning on
January 1, 2005 and thereafter. This Restatement is intended to meet the requirements of Section
409A of the Internal Revenue Code enacted as part of the American Jobs Creation Act on October 22,
2004 and the regulations and guidance promulgated thereto (Section 409A). The amendments adopted
herein shall be effective for the Plan year 2005 and thereafter and shall apply only to amounts
deferred within the meaning of Section 409A. Amounts deferred under the Plan that were earned and
vested prior to January 1, 2005 are Grandfathered Benefits as defined herein. As such, the terms
and conditions of this Plan as in effect on October 3, 2004, shall continue to apply to such
Grandfathered Benefits. Except as otherwise provided herein, any modification to the Plan that
would result in treatment as a material modification within the meaning of Section 409A and the
regulations thereunder with respect to Grandfathered Benefits shall be deemed ineffective without
invalidating the remaining provisions hereof upon any determination that such modification
constituted a material modification.
It is the intention of Viad Corp (the Company) that Eligible Employees are those employees
designated by the Company, or the Chief Executive Officer of the Company, pursuant to Article 3,
from a select group of management or highly-compensated employees of the Company, or any of its
subsidiaries or affiliates ( Subsidiaries) and that the Plan continue to be eligible for
exemptions under Parts 1, 2, 3 and 4 of Title I of ERISA and U.S. Department of Labor regulations.
It also is the intention of the Company that the Plan be unfunded, that any Eligible Employees
rights under the Plan are those of a general creditor only, and that there be no deferral elections
with respect to any benefits under the Plan by Eligible Employees. Subject to rights and benefits
expressly fixed by the terms hereof, the Company also intends that the Plan may be amended or
terminated and that benefits may be reduced or eliminated as the Board of Directors of the Company
determines from time to time and that individuals rights may be accordingly altered.
By adoption of this Plan document, the Company hereby amends and restates the Plan, effective as of January 1, 2005.
Article 2. Definitions
(a)
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Whenever used in this Plan, the following words and phrases shall have the respective
meanings stated below unless a different meaning is expressly provided or is plainly required
by the context. Capitalized terms not defined in this Article, but defined in the Viad Corp
Retirement Income Plan document (VCRIP) as in effect on December 31, 2000, shall have the
respective meanings ascribed to them in VCRIP. Capitalized terms applicable to a specific
Schedule of Benefits, and not defined in this Article or VCRIP, are defined in the applicable
Schedule of Benefits. Actuarial Equivalent means an amount calculated using (i) for the
interest rate, the rate prescribed by Section 417(e)(3)(A)(ii)(II) of the Code for the month
of November preceding the calendar year in which the benefit is distributed, and (ii) the
rates prescribed by the 1983 Group Annuity Mortality Table with a fixed blend of 50 percent
male mortality rates and 50 percent female mortality rates (commonly referred to as the 83
GATT Table) for the mortality basis provided that such actuarial assumptions are reasonable in
accordance with generally accepted actuarial methods.
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(b)
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Committee
means the Viad Corp Compensation Advisory Committee.
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(c)
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Covered Compensation
means the average (without indexing) of the Eligible Employees
taxable wage bases in effect for each calendar year during the 35-year period ending with the
calendar year in which the Eligible Employee attains or will attain Social Security retirement
age, as determined under Internal Revenue Code §415(b)(8). In determining an Eligible
Employees Covered Compensation for any calendar year, the taxable wage base for the current
and any subsequent calendar year is assumed to be the same as the taxable wage base in effect
as of the beginning of the calendar year for which the determination is being made. An
Eligible Employees Covered Compensation for a calendar year after the 35-year period is equal
to his or her Covered Compensation for the calendar year in which the Eligible Employee
attained Social Security retirement age. An Eligible Employees Covered
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Compensation for a calendar year before the 35-year period is the taxable wage base in
effect as of the beginning of the calendar year. Covered Compensation is automatically
adjusted at the beginning of each calendar year
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(d)
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Credited Service
means the period or periods of employment counted as Service (as defined
in VCRIP) that is not excluded from Credited Service under VCRIP or would not be excluded from
Credited Service if the Eligible Employee was an active Participant under VCRIP.
Notwithstanding the foregoing, Credited Service shall continue to be counted under this Plan
with respect to Service on and after January 1, 2001 under the same terms and conditions as
applied immediately before 2001, even though Credited Service under VCRIP does not include any
Service after December 31, 2000. In no event, however, shall more than thirty (30) years of
Credited Service be taken into account for any Eligible Employee under this Plan.
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Notwithstanding anything herein to the contrary, for Eligible Employees listed under
Schedule B, Credited Service shall be frozen as of June 30, 2004 and no further Credited
Service shall be recognized for any periods on or after July 1, 2004. Nothing herein shall
be construed to relieve MoneyGram International, Inc of any continuing obligations assumed
with respect to the Viad Corp Supplemental Pension Plan as specified in that certain
Employee Benefits Agreement by and among Viad Corp, MoneyGram International, Inc. and
Travelers Express Company, Inc.
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(e)
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Eligible Employee
means each employee of the Company or a Subsidiary designated pursuant to
Article 3 and the applicable Schedule of Benefits as eligible to participate in that Schedule
of Benefits. Except with respect to Schedule E, Eligible Employees covered by a particular
Schedule of Benefits shall be listed in the corresponding Exhibit carrying the same letter
designation.
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(f)
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Exhibit
means the listing of Eligible Employees covered by the Schedule of Benefits with
the same letter designation as further described in Article 3 and Article 9.
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(g)
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Final Average Earnings
means the earnings used to determine benefits under this Plan as
further described in Article 7.
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(h)
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Grandfathered Benefits
are amounts deferred under this Plan which are not subject to
Section 409A because an Eligible Employee had a legally binding right to be paid such amount
and the right to such amount was earned and vested prior to July 1, 2004 based on the previous
Plan amendment expressly providing for full vesting as of June 30, 2004 notwithstanding any
other provision of the Plan. Such Grandfathered Benefits shall be equal to the present value
as of June 30, 2004, of the amount to which an Eligible Employee would be entitled under the
Plan if the Eligible Employee voluntarily terminated services without cause on June 30, 2004,
and received a payment of the benefits with the maximum value available from the Plan on the
earliest possible date allowed under the Plan for receiving a payment of benefits following
the termination of services. Notwithstanding the foregoing, for any subsequent calendar year,
such amount may increase to equal the present value of the benefit the Eligible Employee
actually becomes entitled to, determined under the terms of the Plan as in effect on October
3, 2004 without regard to any further services rendered by the Eligible Employee after June
30, 2004, or any other events after June 30, 2004 affecting the amount of or entitlement to
benefits (other than the Eligible Employees survival). For purposes of determining the
present value of the Grandfathered Benefits the assumptions described in Article 2(a)
Actuarial Equivalent shall be applied.
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(i)
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Key Employee
means an Eligible Employee considered a key employee for purposes of Section
409A for that 12-month period commencing on April 1
st
of the year following the
12-month period ending on December 31
st
of the preceding year during which such
Eligible Employee met the requirements of Internal Revenue Code Section 416(i)(1)(A)(i), (ii)
or (iii) (disregarding Section 416(i)(5)) during the applicable 12-month period.
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(j)
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MIPs
means bonuses awarded under the Management Incentive Plan, or its predecessor or
successor plan, as well as bonuses awarded as a special recognition award, special achievement
award, spot award or, as determined by the Committee, pursuant to any other similar bonus
program.
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(k)
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Pension Plan
means the MoneyGram Pension Plan, formerly the VCRIP sponsored by the
Company, and renamed as the MoneyGram Pension Plan after sponsorship was transferred to
MoneyGram International, Inc. (MoneyGram) in connection with the Companys spin-off of
MoneyGram on June 30, 2004.
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(l)
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Pension Plans
means the Pension Plan and all qualified and nonqualified pension plans
sponsored by the Company or any of its Subsidiaries, other than this Plan, the Viad Corp
Capital Accumulation Plan, and the Viad Corp Employees Stock Ownership Plan. For Eligible
Employees whose Credited Service, determined under Schedule B, includes any period of
employment with the Armour & Company controlled group, Pension Plans also means the Armour and
Company Salaried Employees Pension Plan (as it existed when terminated effective December 31,
1983) and any benefit comparability payment payable to such an Eligible Employee shall be
treated as a monthly pension benefit payable from Pension Plans for purposes of Article 6.
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(m)
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Plan
means this Viad Corp Supplemental Pension Plan, as amended.
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(n)
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Primary Social Security Benefit
means the annual amount available to the Eligible Employee
at age 65 , as determined without regard to any increase in the wage base or benefit levels
after December 31, 1997 under the provisions of Title II of the Social Security Act in effect
on December 31, 1997, subject to any additional rules of VCRIP (and any predecessor plan) for
calculating this amount. Notwithstanding the foregoing, for purposes of Schedule B, the
Eligible Employees Primary Social Security Benefit shall be determined based on the wage base
and benefit levels as of the Eligible Employees termination of employment under the
provisions of Title II of the Social Security Act in effect on that date, rather than December
31, 1997, but still subject to any additional rules of VCRIP (and any predecessor plan) for
calculating this amount.
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(o)
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Schedule of Benefits
means each schedule attached hereto and made a part of this Plan
providing for benefits to Eligible Employees listed in the corresponding Exhibit carrying the
same letter designation.
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(p)
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Subsidiary
means any subsidiary or affiliate of the Company.
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(q)
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VCRIP
means the Viad Corp Retirement Income Plan, as amended.
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Article 3. Participation
An employee of the Company (or any of its Subsidiaries) may become eligible to participate in the
Plan (an Eligible Employee) when approved by the Board of Directors of the Company (or a
committee thereof), or by the Chief Executive Officer of the Company, as specifically designated in
each Schedule of Benefits. An employee of the Company, who is determined to be entitled to benefits
solely under Schedule E, shall be deemed to have been designated an Eligible Employee (under that
Schedule) by the Board of Directors of the Company. A list of Eligible Employees with respect to
each Schedule of Benefits, other than Schedule E, is correspondingly denominated and attached as an
Exhibit to the Plan and each such Exhibit shall be periodically updated.
Article 4. Funding
No fund shall be established to provide for the payment of benefits under the Plan. No trust, other
than one which will not cause the Plan to be funded under current Internal Revenue Service and
U.S. Department of Labor regulations and rulings, shall be created. Any rights of an Eligible
Employee or any other person claiming by or through him or her shall be those of a general creditor
of the Company only. The Company may create book reserves or take such other steps as it deems
appropriate to provide for its expected liabilities under the Plan.
Article 5. Categories of Benefit Payments to Eligible Employees
Benefits shall be payable by the Company in accordance with the terms and conditions of the Plan
and as described in each Schedule of Benefits to the Eligible Employees described in each such
Schedule of Benefits and its corresponding Exhibit.
Article 6. Retirement Benefits
Except, as otherwise expressly provided in Article 13, the Plan shall commence monthly payments to
an Eligible Employee at the time and in the form such Eligible Employee becomes eligible for
benefits under Article 8. Unless otherwise expressly stated in a Schedule of Benefits, such
monthly payments shall be equal to the amount by which the sum of the monthly pension benefits paid
or payable to the Eligible Employee from Pension Plans is less than the aggregate amount(s)
determined under the applicable Schedule(s) of Benefits. In making this determination, the
amount(s) from such Pension Plans shall be determined
prior to the election of any payment options (such as actuarially equivalent joint and survivor
elections). In addition, when an
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Eligible Employee is a participant in more than one Pension Plan
and benefits under any one of such Pension Plans are not available immediately on account of early
retirement eligibility provisions, then, for the purposes of the Plan, such benefits shall be taken
into account as though payable immediately on an actuarially equivalent basis, using the factors in
effect under such Pension Plans for adjusting payment forms. Similarly, for purposes of
determining monthly amounts payable from this Plan, if an Eligible Employee commenced or received a
distribution of benefits from one or more Pension Plans before benefits are payable under this
Plan, such distributed benefits shall be taken into account for purposes of this paragraph as
though they had not been previously distributed, adjusted on an actuarially equivalent basis, using
the factors in effect under such Pension Plans for adjusting payment forms when the benefits
commenced or were paid.
Article 7. Final Average Earnings
(a)
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General Rules.
Final Average Earnings means, except as further modified by subsection (b),
the five-year average of the Eligible Employees last 60 months of base salary and overtime
plus fifty percent (50%) of the MIPs earned and paid during that period. If the Eligible
Employees period of employment is less than 60 months, the number of actual months of the
Eligible Employees period of employment with the Company and its Subsidiaries shall be used
to determine Final Average Earnings. Notwithstanding the foregoing, if the Eligible Employee
received salary for less than 15 days in a calendar month, the salary and overtime for that
month shall not count and that month shall not count among the months to be averaged in
determining Final Average Earnings. For purposes of determining Final Average Earnings of a
Disabled Participant (as defined in VCRIP), the Eligible Employees base salary and overtime
plus fifty percent (50%) of the MIPs paid during the 12-month period preceding the date that
the individual became a Disabled Participant shall be deemed to continue during the period for
which the Disabled Participant continues to be credited with Service under VCRIP. Final
Average Earnings shall be determined under this Plan without regard to any limitations under
Internal Revenue Code §401(a)(17) on the amount of annual compensation that may be taken into
account under qualified plans.
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(b)
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Special Adjustments.
Notwithstanding the foregoing, the following additional rules shall
apply in determining Final Average Earnings under the Schedules specified:
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(1)
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For an Eligible Employee covered by both Schedule B and Schedule D, one hundred
percent (100%) of the MIPs awarded (whether paid or deferred) for the five (5) calendar
years in which the MIPs were the highest, rather than fifty percent (50%) of the MIPs
awarded for the last five (5) years or shorter period of employment, shall be used in
determining the Eligible Employees Final Average Earnings.
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(2)
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For an Eligible Employee covered by Schedule B, one hundred percent (100%) of
the MIPs awarded (whether paid or deferred) for the five (5) calendar years in which
the MIPs were the highest, rather than fifty percent (50%) of the MIPs awarded for the
last five (5) years or shorter period of employment, shall be used in determining the
Eligible Employees Final Average Earnings.
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(3)
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For an Eligible Employee covered by Schedule D, but not Schedule B, one hundred
percent (100%), rather than fifty percent (50%), of the MIPs awarded (whether paid or
deferred) for the last five (5) calendar years or shorter period of employment shall be
used in determining the Eligible Employees Final Average Earnings.
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(4)
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An Eligible Employees Final Average Earnings at December 31, 1997, used to
determine the Pre-1998 Benefit under Schedules B, D and F and also used in place of
Average Monthly Compensation at December 31, 1997 under Schedule C, is the five (5)
year average of the Eligible Employees base salary and overtime from 1993 through 1997
and:
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(A)
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For Schedules B and C, one hundred percent (100%) of the MIPs
awarded (whether paid or deferred) in the five calendar years through 1997 in
which the MIPs were the highest;
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(B)
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For Schedule D, one hundred percent (100%) of the MIP bonuses
awarded (whether paid or deferred) in the five calendar year period from 1993
through 1997; and
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(C)
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For Schedule F, one hundred percent (100%) of the MIPs earned and
paid in the five calendar year period from 1993 through 1997.
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If the Eligible Employees period of employment is less than 60 months as of December
31, 1997, the number of actual months of the Eligible Employees period of employment
from 1993 through 1997 with the Company and its Subsidiaries shall be used to
determine Final Average Earnings.
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(5)
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An Eligible Employees Final Average Earnings at December 31, 1988 used to
determine the Pre-1998 Benefit under Schedules D and F shall be determined using only
base salary, and no overtime or MIPs, through 1988.
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(6)
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For all Schedules, any deferrals included in Final Average Earnings shall only
be counted once in calculating such Final Average Earnings.
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Article 8. Time and Form of Payment
(a)
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Time of Payment
. Other than with respect to the Grandfathered Benefits described in paragraph
(c) below, the Plan
shall
commence payment to an Eligible Employee on the first day of
the month following the later of: (i) the date such Eligible Employee attains age fifty five
(55) (or upon the death of the employee, if earlier) or (ii) the date such Eligible Employee
incurs a separation from service with the Company (or any of its Subsidiaries), subject
however, to the following:
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(1)
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Six-Month Delay for Key Employees
. Where payment under this Section 8(a) is
made to any Key Employee on account of separation from service, such payment shall
commence no earlier than six (6) months following separation from service (or upon the
death of the employee, if earlier) if required to comply with section 409A of the Code.
Upon commencement of payment beginning the seventh month following the date of
separation from service, the Eligible Employee shall be paid the aggregate amount of
the first seven months of payments in a single sum without interest.
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(2)
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Change of Control Benefit
. Upon a Change of Control and with respect to only
each such Eligible Employee who, as of the Distribution Date (as defined in Article 18
below), was an active Employee of the Company (or any of its Subsidiaries) and who was
covered by Schedule B or Schedule B, the provisions of Article 13 shall apply.
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(3)
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Payment treated as made on the designated date
. In order to allow for Plan
administration, a payment shall be treated as made upon the date specified in
Paragraph 8(a) if the payment is made, consistent with applicable Treasury Regulations,
at such date or a later date within the same calendar year or, if later, by the
15
th
day of the third calendar month following the date specified in
Paragraph 8(a).
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(4)
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Payment Upon Income Inclusion
. If at any time a determination is made by the
Internal Revenue Service that the Plan or an arrangement under the Plan fails to meet
the requirements of Section 409A and the regulations promulgated thereunder, a Plan
benefit lump sum payment, up to, but not in excess of the amount required to be
included in income as a result of such failure, shall be made to each affected Eligible
Employee.
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(b)
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Form of Payment
. Other than with respect to the Grandfathered Benefits described in paragraph
(c) below, the Plan shall provide the following:
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(1)
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Annuities Only
. Except as provided in subsection (2) below, the forms of
payment available under this Plan are the following life annuity options (which shall
be actuarially equivalent applying the actuarial assumptions under the Pension Plan):
(i) an Eligible Employee who is not married on the date of his or her commencement of
payment shall receive his or her benefit payable in the form of a single life annuity
but may choose in the alternative, a ten year certain and life annuity; or (ii) an
Eligible Employee who is married on the date of his or her commencement of payment
shall receive his or her benefit payable in the form of a joint and 50% survivor
annuity with the Eligible Employees spouse as beneficiary and, if such Eligible
Employee is covered by Schedule B or B, such payment shall not be reduced to reflect
such form of payment, however, in the alternative, a married Eligible Employee may
choose (1) a joint and 100% survivor annuity or (2) a single life annuity, or (3) a
ten year certain and life annuity (if such Eligible Employee is covered by Schedule B
or B, then the reduction in such optional forms shall be based on an unreduced joint
and 50% survivor annuity).
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(2)
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Change of Control Benefit
. Upon a Change of Control and with respect to only
each such Eligible Employee who, as of the Distribution Date (as defined in Article 18
below) was an active Employee of the Company (or
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any of its Subsidiaries) and who was covered by Schedule B or Schedule B the
provisions of Article 13 shall apply.
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(c)
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Grandfathered Benefits
. Notwithstanding the foregoing, the Grandfathered Benefits of an
Eligible Employee shall be paid under the terms of the Plan as in effect on October 3, 2004.
Any determination of Grandfathered Benefits is solely for purposes of allocating the total
benefit payable under the Plan between Grandfathered and non-Grandfathered Benefits, where
necessary, as a result of the enactment of Section 409A. Such allocation shall not affect the
amount of the total benefit payable from the Plan to Eligible Employees.
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(d)
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Transition Relief
. Plan provisions in effect on October 3, 2004 basing the time and form of
payment on commencement under a qualified plan are permitted under Q&A 23 of Treasury Notice
2005-1 for periods ending on or before December 31, 2005. Such transition relief was extended
through December 31, 2006 pursuant to Proposed Treasury Regulations issued October 24, 2005
(I.R.B. 2005-43) and subsequently extended to December 31, 2007 by Notice 2006-79. The Plan
shall be interpreted and administered in accordance with this and all other applicable
transition relief guidance by the Internal Revenue Service.
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Article 9. Listing of Eligible Employees
A listing of Eligible Employees shall be maintained in the form of the Exhibits to the Plan.
Exhibit A shall contain those covered under Schedule A, and so on for B, B, C, D, and F.
Article 10. Survivors Benefit
(a)
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Eligibility.
If while covered by this program, for purposes other than a terminated vested
benefit, an Eligible Employee dies before benefits have commenced and if on the date of his or
her death such Eligible Employee:
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(1)
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Was covered by one or more Schedule of Benefits and has 5 or more years of
service; or
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(2)
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Was 55 years of age or older;
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then his or her Eligible Spouse (if any), as defined in the VCRIP, shall be entitled to a
survivors benefit.
(b) Amount.
This survivors benefit shall be calculated by assuming that the Eligible Employee:
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(1)
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Was 55 years of age (or his actual age if older) on the date of death;
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(2)
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Retired on the first day of the month following his or her death; and
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(3)
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Elected a Single Life Annuity.
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The Eligible Spouse will be entitled to receive 1/2 of this benefit which shall be further
reduced by 1/6 of 1% for each month the Eligible Spouse is more than 60 months younger than
the Eligible Employee.
The survivors benefit under this Article 10 shall be reduced by any spousal survivors
benefit payable from Pension Plans.
Article 11. Vesting
In addition to all the terms and conditions of the Plan, no Eligible Employee or beneficiary shall
be entitled to a benefit under the Plan unless such Eligible Employee has actually attained fully
vested status in VCRIP. Effective with the VCRIP amendment regarding the benefit freeze of VCRIP
for the year ending December 31, 2003 all VCRIP Participants as of December 31, 2003 were fully
vested. Notwithstanding any other provision hereof, any Eligible Employee hereunder who has
accumulated five years of service with the Company and its Subsidiaries taken as a whole, ignoring
breaks in service, shall be fully vested and entitled to benefits hereunder.
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Article 12. Non-Compete and Forfeiture Provisions
An Eligible Employees right to receive a benefit or future benefits under this Plan shall be
governed by the following provisions:
(a)
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The right shall be conditioned upon certification by the Eligible Employee prior to their
receipt of any future benefits under this Plan that the Eligible Employee has read and
understands the non-compete and forfeiture provisions set forth in this Article 12, and that
the Eligible Employee has no intent to engage in any activity or provide any services which
are contrary to the spirit and intent of these provisions. The Eligible Employees failure to
so certify shall not constitute a waiver on the part of the Company as to the enforceability
of these provisions under Article 12.
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(b)
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In order to better protect the goodwill of the Company and its Subsidiaries and to prevent
the disclosure of the Companys or its Subsidiaries trade secrets and confidential
information and thereby help insure the long-term success of the business, the Eligible
Employee, without prior written consent of the Company, will not engage in any activity or
provide any services, whether as a director, manager, supervisor, employee, adviser, agent,
consultant, owner of more than five (5) percent of any enterprise or otherwise, for a period
of two (2) years following the date of the Eligible Employees termination of employment with
the Company, or its Subsidiaries, in connection with the manufacture, development,
advertising, promotion, design, or sale or any other activity in furtherance of any business
enterprise, service or product which is the same as or similar to or competitive with or in
any way adverse to any services or products or other activities of the Company or its
Subsidiaries (including both existing services or products as well as services or products
known to the Eligible Employee, as a consequence of the Eligible Employees employment with
the Company or one of its Subsidiaries, to be in development):
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(1)
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With respect to which the Eligible Employees work has been directly concerned
at any time preceding termination of employment with the Company or any of its
Subsidiaries, or
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(2)
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With respect to which during that period of time the Eligible Employee, as a
consequence of the Eligible Employees job performance and duties, acquired knowledge
of the trade secrets or other confidential information of the Company or its
Subsidiaries.
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For purposes of this Article 12, it shall be conclusively presumed that the Eligible
Employee has knowledge of information he or she was directly exposed to through actual
receipt or review of memoranda or documents containing such information, or through actual
attendance at meetings at which such information was discussed or disclosed.
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(c)
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If, at any time during the two (2) year period after the Eligible Employees termination of
employment from the Company or any of its Subsidiaries, the Eligible Employee engages in any
conduct described in subsection (b) above, then the amount of any payments made to the
Eligible Employee from the Plan during that period (without regard to tax effects) shall be
paid by the Eligible Employee to the Company. The Eligible Employee consents to the deduction
from any amounts the Company or any of its Subsidiaries owes the Eligible Employee from time
to time to the extent of the amount the Eligible Employee owes the Company hereunder.
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Article 13. Change of Control
Upon a Change of Control, the provisions of this paragraph shall apply and override any contrary
provisions of this Plan or any Schedule. For purposes of the payment of Grandfathered Benefits
under this Article 13, Change of Control shall have the meaning specified in Section 3(a) of the
Trust Agreement for the Viad Corp Executives Deferred Compensation and Benefits Security Trust,
provided that effective as of June 30, 2004 (the Distribution Date as defined in Article 18
hereof) Change of Control shall be determined by reference to MoneyGram International, Inc. and
not Viad Corp.
Upon a Change of Control, all Plan benefits of each Eligible Employee who is an active Employee of
the Company (or any of its Subsidiaries) on the Distribution Date and who is covered by Schedule B
or Schedule B as of the date of the Change of Control shall be immediately determined, based on
the facts in existence as of the date of the Change of Control and without
regard to Article 12. The Plan benefits so determined shall be paid to each such Eligible Employee
in an Actuarial Equivalent single sum as soon as practicable following the Change of Control;
provided, however, that such immediate payment shall not be made if an acquiring entity has a
credit rating from Standard & Poors Corporation on its longer term unsecured debt obligations of
single A or better. For purposes of the payment of non-Grandfathered Benefits a Change of
Control, shall
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mean (with reference to MoneyGram International, Inc.) any of the events described
in Treasury Regulation sections 1.409A-3(i)(5)(v), (vi) or (vii) (collectively referred to in such
regulations as a change in control event).
The determination of Actuarial Equivalent shall be made in accordance with Article 2(a).
Article 14. Administration, Modification, and Termination of the Plan
The Board of Directors of the Company may terminate the Plan or any Schedule of Benefits at any
time. Any amounts vested under the Plan prior to any such termination shall continue to be subject
to the terms and conditions in effect under the Plan when the Plan is terminated. The Plan may be
amended at any time or from time to time by the Board of Directors of the Company; provided,
however, that no amendment shall have the effect of retroactively reducing benefits earned and
vested up to the date that the amendment is adopted. The Company shall have full power and
authority to interpret and administer the Plan, to promulgate rules of Plan administration, to
adopt a claims procedure, to conclusively settle any disputes as to rights or benefits arising from
the Plan, and to make such decisions or take such actions as the Company reasonably deems necessary
or advisable to aid in the proper administration and maintenance of the Plan.
Article 15. Tax Withholding
Any federal, state or local taxes, including FICA tax amounts, required by law to be withheld with
respect to benefits earned and vested under this Plan or any other compensation arrangement may be
withheld from the Eligible Employees benefit, salary, wages or other amounts paid by the Company
and reasonably available for withholding. Prior to making or authorizing any benefit payment under
this Plan, the Company may require such documents from any taxing authority, or may require
applicable tax-related documentation from any Eligible Employee or beneficiary, as the Company
shall reasonably consider necessary for its protection.
Article 16. Miscellaneous
The Plan, and any determination made by the Committee or the Company in connection therewith, shall
be binding upon each Eligible Employee, his or her beneficiary or beneficiaries, heirs, executors,
administrators, successors and assigns. Notwithstanding the foregoing sentence, no benefit under
the Plan may be sold, assigned, transferred, conveyed, hypothecated, encumbered, anticipated or
otherwise disposed of, and any attempt to do so shall be void. No such benefit payment shall be,
prior to actual receipt thereof by the Eligible Employee, or his or her beneficiary or
beneficiaries, as the case may be, in any manner subject to the debts, contracts, liabilities or
engagements of such Eligible Employee or beneficiary(ies). The Plan shall not constitute, nor be
deemed to constitute, a contract of employment between the Company, or any of its Subsidiaries, and
any Eligible Employee, nor shall any provision hereof restrict the right of the Company or any of
its Subsidiaries to discharge any Eligible Employee from his or her employment, with or without
cause. If any particular provision of this Plan shall be found to be illegal or unenforceable, such
provision shall not affect any other provision, but this Plan shall be construed in all respects as
if such invalid provision were omitted.
Article 17. Applicable Law
This Plan shall be construed in accordance with and governed by the laws of the State of Arizona to
the extent not superseded by the laws of the United States of America.
Article 18. Effect of MoneyGram Spin-Off
This Article 18 shall give effect to those provisions of that certain Employee Benefits Agreement
by and among Viad Corp (Viad or the Company), MoneyGram International, Inc. (MoneyGram) and
Travelers Express Company, Inc. (TECI) entered into pursuant to that certain Separation and
Distribution Agreement, whereby Viad, MoneyGram and TECI have agreed to enter into such Employee
Benefits Agreement in order to allocate assets, liabilities and responsibilities with respect to
certain
employee compensation and benefit plans and programs among them. Capitalized terms not defined in
this Article or the Plan shall have the meaning as defined in the Employee Benefits Agreement.
Effective as of the Distribution Date (June 30, 2004), all Viad Employees and beneficiaries thereof
shall be vested in their benefit under the Plan accrued through the Distribution Date
notwithstanding anything to the contrary in this Plan, including,
8
without limitation, any provision
regarding future amendments or modifications to the Plan terms subject to the condition that the
rights of an Eligible Employee are those of a general creditor only.
The undersigned, an authorized officer of the Company, has signed this document on this 27th day of
August, 2007.
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Viad Corp
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By:
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/s/ Suzanne Pearl
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Vice President -- Human Resources and Administration
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(title)
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9
Schedule A.
1. General Rules
Benefits payable under this Schedule of Benefits are entirely composed of Grandfathered Benefits
and are in lieu of, not in addition to, any other benefit provided for in this Plan. It is the
intent of the Company that:
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(a)
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Benefits shall be payable under this Schedule of Benefits only if it generates the
largest monthly benefits when compared to other benefits to which the Eligible Employee is
otherwise entitled under the Plan, and
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(b)
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Benefits payable under this Schedule of Benefits shall be the only benefits payable
to an Eligible Employee under the Plan.
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The provisions of this Schedule A shall not be construed to modify or limit the provisions of any
other Schedule of Benefits to the extent such other Schedule of Benefits deems certain facts to be
true for the purposes of the Plan.
Benefits may be payable under this Schedule of Benefits in respect of persons employed by the
Company who are selected by the Board of Directors for inclusion under this Schedule of Benefits.
The amount used under this Schedule of Benefits to determine the monthly benefit payable to any
Eligible Employee under Article 6 is the Schedule A Benefit.
2. Schedule A Benefit
For purposes of this Schedule A, the Schedule A Benefit is the monthly benefit of the designated
Eligible Employee as determined from the following table:
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Eligible Employee
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Monthly Benefit
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J. Grimm
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$5,718.09
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F. Nageotte
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$22,769.03
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The Schedule A Benefit is the net monthly benefit payable to the Eligible Employee under this Plan.
Notwithstanding any provision of Article 6 to the contrary, the Schedule A Benefit is not offset by
amounts payable to the Eligible Employee under any other Pension Plan.
3. No Reduction for Early Retirement
The Schedule A Benefit shall be payable on the later of the first day of the month following
termination of employment or the first day of the month following the month in which the
participant attains age 55. The benefit shall not be subject to any reduction resulting from the
Eligible Employees election to retire prior to his or her normal retirement date.
4. Unreduced Payment Form
If the Eligible Employee is married on the date of his or her retirement, the benefit shall be paid
in the form of a joint and 50% survivor annuity and shall not be reduced to reflect such form of
payment.
If the Eligible Employee elects any other optional form of payment under the VCRIP then the
reduction in such optional form of benefit shall be based on the unreduced joint and 50% survivor
annuity benefit.
Eligible Employees under this Schedule are listed on Exhibit A to this Plan.
10
Schedule B.
1. General Rules
Benefits may be payable under this Schedule of Benefits in respect of persons employed by the
Company or any of its Subsidiaries, who are selected by the Chief Executive Officer of the Company.
The annual amount under this Schedule of Benefits used to determine the monthly benefit
(one-twelfth of the annual amount) payable to an Eligible Employee under Article 6 is the sum of
the Eligible Employees Post-1997 Benefit and the Eligible Employees Pre-1998 Benefit. In
determining an Eligible Employees Post-1997 Benefit and Pre-1998 Benefit under this Schedule B,
Credited Service shall include, in addition to employment counted under Article 2(d), the Eligible
Employees period of employment, determined on an elapsed time basis, with the Armour & Company
controlled group before it merged with the Company. Benefits payable under this Schedule are
composed entirely of Grandfathered Benefits with respect to those Eligible Employees who separated
from service with the Company or any of its Subsidiaries on or before June 30, 2004 whose vested
Plan benefit is solely attributable to Service (as defined in VCRIP) prior to July 1, 2004.
Eligible Employees separating from service with the Company or any of its Subsidiaries after June
30, 2004 will have that portion of their vested accrued benefit consisting of Grandfathered
Benefits paid in accordance with the terms of the Plan as in effect on October 3, 2004.
2. Post-1997 Benefit
For purposes of this Schedule B, the Post-1997 Benefit is the sum of (a) and (b), multiplied by the
Eligible Employees Credited Service for periods after 1997, where:
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(a)
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Is 1.15 percent of the Eligible Employees Final Average Earnings up to Covered
Compensation.
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(b)
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Is 1.70 percent of the excess, if any, of the Eligible Employees Final Average
Earnings over Covered Compensation.
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An Eligible Employees Credited Service under this section 2 shall be limited to 30 years minus any
Credited Service taken into account for purposes of any calculation under section 3.
3. Pre-1998 Benefit
For purposes of this Schedule B, the Pre-1998 Benefit is (b) subtracted from (a), with the
resulting difference multiplied by (c), where:
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(a)
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Is 1.834 percent of the Eligible Employees Final Average Earnings at December 31,
1997, multiplied by the Eligible Employees Credited Service through December 31, 1997.
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(b)
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Is 1.667 percent of the Primary Social Security Benefit, multiplied by the Eligible
Employees Credited Service through December 31, 1997.
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(c)
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Is a fraction (not less than one) whose numerator is the Eligible Employees Final
Average Earnings at termination of employment and whose denominator is the Eligible
Employees Final Average Earnings at December 31, 1997.
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4. Reduction in Monthly Amount for Commencement Before Age 60
The monthly amount determined under this Schedule of Benefits shall be subject to no reduction if
the Eligible Employee commences benefits on or following his or her 60th birthday; and a reduction
of one-quarter (1/4) of one percent for each month benefit commencement precedes his or her 60th
birthday. In no event, however, may an Eligible Employee commence benefits prior to his or her
55
th
birthday.
5. Unreduced Payment Form
If the Eligible Employee is married on the date of his or her commencement of payment, the benefit
shall be paid in the form of a joint and 50% survivor annuity and shall not be reduced to reflect
such form of payment.
If the Eligible Employee elects any other optional form of payment permitted under the Plan, the
reduction in such optional form of benefits as applied under this Schedule of Benefits shall be
based on an unreduced joint and 50% survivor annuity benefit.
Eligible Employees under this Schedule B are listed on Exhibit B to the Plan.
11
Schedule B.
1. General Rules
Benefits may be payable under this Schedule of Benefits in respect of persons employed by the
Company who are selected by the Board of Directors of the Company. The annual amount under this
Schedule of Benefits used to determine the monthly benefit (one-twelfth of the annual amount)
payable to an Eligible Employee under Article 6 is the greater of the Basic Benefit or the Age 58
or Later Benefit. Eligible Employees under this Schedule separating from service with the Company
or any of its Subsidiaries after June 30, 2004 will have that portion of their vested accrued
benefit consisting of Grandfathered Benefits paid in accordance with the terms of the Plan as in
effect on October 3, 2004.
2. Basic Benefit
For purposes of this Schedule B, the Basic Benefit is the difference when (b) is subtracted from
(a), where:
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(a)
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Is 1.834 percent of the Eligible Employees Final Average Earnings, multiplied by the
Eligible Employees Credited Service.
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(b)
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Is 1.667 percent of the Primary Social Security Benefit, multiplied by the Eligible
Employees Credited Service.
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The Basic Benefit determined under this section shall be subject to no reduction if the Eligible
Employee commences benefits on or following his or her 60th birthday and a reduction of one-quarter
(1/4) of one percent for each month benefit commencement precedes his or her 60th birthday. In no
event, however, may an Eligible Employee commence benefits prior to his or her 55
th
birthday.
3. Age 58 or Later Benefit
If the Eligible Employee is actively employed by the Company at such time as the Eligible Employee
attains age 58 and continues to be actively employed upon the attainment of the ages shown in Table
A below, then, for purposes of this Schedule B, the Age 58 or Later Benefit is a monthly pension
based on the amount derived from Table A below, offset by the amounts derived from Table B below.
Table A
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Upon Attainment of the following Ages
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The following percentage of Final Average Earnings:
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58
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30%
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59
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40%
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60
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50%
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61
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52%
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62
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54%
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63
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56%
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64
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58%
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65
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60%
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The above percentages of Final Average Earnings shall be attained only upon the Eligible Employees
birthday without any interpolation for retirements between birthdays.
Table B
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Upon Retirement at the
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The following monthly
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following Ages:
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offset:
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58
59
60
61
62
63
64
65
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$2,706
$2,912
$3,130
$3,173
$3,216
$3,257
$3,295
$3,327
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And any and all special
retirement benefits paid
pursuant to any Change
of Control provisions
set forth in any
agreements by and
between the Eligible
Employee and Viad Corp
(including the Executive
Severance Agreement
Entered into on March
30, 2004) as such
provisions enhance
retirement benefits.
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12
4. Change of Control
In the event of a Change of Control, the Eligible Employee will receive a retirement benefit equal
to the greater of the retirement benefit calculated:
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(a)
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Pursuant to the Change of Control provisions set forth in any agreements by and
between Eligible Employee and Viad Corp (including the Executive Severance Agreement
entered into on March 30, 2004), or
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(b)
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By using this Schedule B as described above.
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5. Unreduced Payment Form
If the Eligible Employee is married on the date of his or her retirement, the benefit shall be paid
in the form of a joint and 50% survivor annuity and shall not be reduced to reflect such form of
payment.
If the Eligible Employee elects any other optional form of payment permitted under the Plan, then
the reduction in such optional form of benefits shall be based on unreduced joint and 50% survivor
annuity benefit.
Eligible Employees under this Schedule B are listed on Exhibit B to the Plan.
13
Schedule C.
1. General Rules
Benefits under this Schedule are entirely composed of Grandfathered Benefits and may be payable
under this Schedule of Benefits in respect of persons employed by the Company or any of its
Subsidiaries, who are selected by the Chief Executive Officer of the Company. The annual amount
under this Schedule of Benefit used to determine the monthly benefit (one-twelfth of the annual
amount) payable to an Eligible Employee under Article 6 shall be the Transferred Employee Benefit.
2. Transferred Employee Benefit
For purposes of this Schedule C, the Transferred Employee Benefit is a monthly pension based on the
rules of VCRIP for the Eligible Employee applicable at the time of his or her retirement, including
any reductions for early retirement. For purposes of determining the monthly pension attributable
to service prior to January 1, 2001, the benefit shall be deemed to have accrued under the Amended
and Restated Appendix Prior Plan: Greyhound Employees Retirement Income Plan of the Predecessor
Plan Document using one-twelfth of Final Average Earnings, as defined in Article 7, in place of
Average Monthly Compensation.
For purposes of determining an Eligible Employees monthly pension under this Schedule C based on
the Cash Accumulation Formula of VCRIP, Compensation shall be as defined under VCRIP with the
following modifications:
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(a)
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Compensation under this Schedule of Benefits shall be determined without regard to
the annual limit on compensation that may be taken into account under a qualified plan
pursuant to Internal Revenue Code §401(a)(17).
|
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(b)
|
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Compensation under this Schedule of Benefits shall include MIPs that would otherwise
be included but for the fact the bonus was deferred. Such MIPs shall be counted as
Compensation in the year awarded and deferred and shall not be counted again in the year
paid.
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3. Unreduced Payment Form
If the Eligible Employee is married on the date of his or her retirement, the benefit shall be paid
in the form of a joint and 50% survivor annuity and shall not be reduced to reflect such form of
payment.
If the Eligible Employee elects any other optional form of payment under the VCRIP, the reduction
in such optional form of benefits as applied under this Schedule of Benefits shall be based on an
unreduced joint and 50% survivor annuity benefit.
Eligible Employees under this Schedule C are listed on Exhibit C to the Plan.
14
Schedule D.
1. General Rules
Benefits may be payable under this Schedule of Benefits in respect of persons employed by the
Company or any of its Subsidiaries, who are selected by the Chief Executive Officer of the Company.
Benefits payable under this Schedule are composed entirely of Grandfathered Benefits with respect
to those Eligible Employees who separated from service with the Company or any of its Subsidiaries
on or before June 30, 2004 and whose vested Plan benefit is solely attributable to Service (as
defined in VCRIP) prior to July 1, 2004. Eligible Employees separating from service with the
Company or any of its Subsidiaries after June 30, 2004 will have that portion of their vested
accrued benefit consisting of Grandfathered Benefits paid in accordance with the terms of the Plan
as in effect on October 3, 2004. The following rules shall be used to determine the annual amount
used to compute the monthly benefit (one-twelfth of the annual amount) payable to an Eligible
Employee under Article 6:
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(a)
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If the Eligible Employee is covered only under this Schedule D, the monthly amount
determined under section 3 of this Schedule.
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(b)
|
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If the Eligible Employee is covered under Schedule B as well as this Schedule D, then
the monthly amount shall be determined under Schedule B; provided, however, that in
determining the Eligible Employees Final Average Earnings, the special adjustments
applicable to Eligible Employees covered by this Schedule D, as further specified in
Article 7(b), shall be made.
|
2. Employees Eligible for Coverage under Schedule D
For purposes of this Schedule D, Eligible Employees shall be defined to mean only those employees
selected by the Chief Executive Office of the Company:
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(a)
|
|
Who are eligible to receive awards under the Management Incentive Plan, or its
predecessor or successor plan, and
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(b)
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Who either:
|
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(1)
|
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Were age 55 or older on or before December 31, 1997, or
|
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(2)
|
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Received letters dated October 4, 2000 from the Companys Vice President -
Human Resources indicating that 100% of their MIPs would be used in determining Final
Average Earnings.
|
Coverage of an Eligible Employee under this Schedule D neither requires nor precludes the Eligible
Employees coverage under another Schedule of Benefits. However, coverage under this Schedule D
also does not provide duplication of benefits for an Eligible Employee who, in addition to being
covered under this Schedule D is covered under another Schedule of Benefits.
3. Eligible Employees Covered Only By Schedule D
The annual amount computed under this Schedule of Benefits for use in determining the monthly
benefit (one-twelfth of the annual amount) payable to an Eligible Employee under Article 6 is the
sum of the Eligible Employees Post-1997 Benefit and the Eligible Employees Pre-1998 Benefit.
|
(a)
|
|
For purposes of this Schedule D, the Post-1997 Benefit is the sum of (1) and (2),
multiplied by the Eligible Employees Credited Service for periods after 1997, where:
|
|
(1)
|
|
Is 1.15 percent of the Eligible Employees Final Average Earnings up to
Covered Compensation.
|
|
|
(2)
|
|
Is 1.70 percent of the excess, if any, of the Eligible Employees Final
Average Earnings over Covered Compensation.
|
An Eligible Employees Credited Service under this subsection (a) shall be limited to 30
years minus any Credited Service taken into account for purposes of any calculation under
subsection (b).
|
(b)
|
|
For purposes of this Schedule D, the Pre-1998 Benefit is the sum of (1), (2), and
(3), together multiplied by (4), where:
|
15
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(1)
|
|
Is 1.25 percent of Eligible Employees Final Average Earnings at December 31,
1997 up to Covered Compensation at December 31, 1997, multiplied by the Eligible
Employees Credited Service for the period from January 1, 1989 through December 31,
1997.
|
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(2)
|
|
Is 1.75 percent of the excess, if any, of the Eligible Employees Final
Average Earnings at December 31, 1997 over Covered Compensation at December 31, 1997,
multiplied by the Eligible Employees Credited Service for the period from January 1,
1989 through December 31, 1997.
|
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(3)
|
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Is the Eligible Employees accrued benefit as of December 31, 1988, if any,
determined in accordance with the terms of VCRIP as in effect immediately prior to
January 1, 1989, multiplied by a fraction (not less than one), the numerator of which
is the Eligible Employees Final Average Earnings at December 31, 1997, and the
denominator of which is the Eligible Employees Final Average Earnings at December 31,
1988.
|
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(4)
|
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Is a fraction (not less than one) whose numerator is the Eligible Employees
Final Average Earnings at termination of employment and whose denominator is the
Eligible Employees Final Average Earnings at December 31, 1997.
|
4. Reduction in Monthly Amount for Commencement Before Age 65
The monthly amount determined under this Schedule of Benefits shall be subject to a reduction of
one-third (1/3) of one percent for each of the first thirty-six (36) months that benefit
commencement precedes his or her 65
th
birthday and of five-twelfths (5/12) of one
percent for each additional month (over 36) that benefit commencement precedes his or her
65
th
birthday. In no event, however, may an Eligible Employee commence benefits prior to
his or her 55
th
birthday.
Eligible Employees under this Schedule D are listed on Exhibit D to the Plan.
16
Schedule E.
1. General Rules
Employees of the Company who participate in the VCRIP automatically become Eligible Employees under
this Schedule E if their benefits under the VCRIP are limited by Internal Revenue Code §401(a)(17)
or §415. The Company shall administratively identify the Eligible Employees under this Schedule E,
based on the effect of such Internal Revenue Code provisions on their VCRIP benefits. Designation
as an Eligible Employee under this Schedule E shall not require separate approval of the Board of
Directors or the Chief Executive Officer of the Company. Effective December 31, 2003, and forward,
this Schedule E shall be frozen as to participation and benefits consistent with the freeze of
VCRIP. Benefits payable under this Schedule are entirely composed of Grandfathered Benefits.
Coverage of an Eligible Employee under this Schedule E neither requires nor precludes the Eligible
Employees coverage under another Schedule of Benefits. However, coverage under this Schedule E
also does not provide duplication of benefits for an Eligible Employee who, in addition to being
covered under this Schedule E, is covered under another Schedule of Benefits. The Company may
determine and communicate an Eligible Employees aggregate benefit under this Plan by considering
this Schedule E together with any other Schedule of Benefits that happens to cover the Eligible
Employee. Subject to the foregoing, the amount of benefit attributable to this Schedule E and
payable to an Eligible Employee pursuant to Article 6 shall be the Restoration Benefit.
2. Restoration Benefit
For purposes of this Schedule E, the Restoration Benefit is a monthly pension based on the rules of
VCRIP applicable to the Eligible Employee at the time of his or her retirement, including any
reductions for early retirement, but using one-twelfth of Final Average Earnings, as defined in
Article 7, in place of Average Monthly Compensation and using one-twelfth of Final Average Earnings
determined as of December 31, 2000, for purposes of calculating the Grandfathered Benefit (as
defined in VCRIP effective January 1, 2001 unrelated to the term Grandfathered Benefit for purposes
of Section 409A). For purposes of this Schedule of Benefits, Compensation shall be determined
without regard to the annual limit on compensation that may be taken into account under a qualified
plan pursuant to Internal Revenue Code §401(a)(17) and shall include MIPs that would otherwise have
been included but for the fact that the bonus was deferred. Notwithstanding the foregoing, any MIPs
included in Compensation shall only be counted once. In addition, the monthly pension shall be
determined under this section without regard to the limitations set forth in Internal Revenue Code
§415 and applicable to qualified plans.
Notwithstanding any Plan provision to the contrary, if the Eligible Employees Restoration Benefit
is solely attributable to Service (as defined in VCRIP) after December 31, 2000, then the Eligible
Employees benefit under this Schedule shall be paid in the same payment form as the Eligible
Employee elected to receive his or her Cash Accumulation Benefit under VCRIP.
17
EXHIBIT 10.B
VIAD CORP
EXECUTIVE SEVERANCE PLAN (TIER I)
AMENDED AND RESTATED FOR CODE SECTION 409A
AS OF JANUARY 1, 2005
1.
PURPOSE:
To provide management continuity by inducing selected Executives to remain in the
employ of Viad Corp (the Corporation) or one of its subsidiaries pending a possible Change of
Control of the Corporation. This amended and restated Executive Severance Plan (Tier I) (the
Plan) document is effective for plan years beginning on January 1, 2005 and thereafter. This
Restatement is intended to meet the requirements of Section 409A of the Internal Revenue Code and
the regulations and guidance promulgated thereto (Section 409A). During the 2005, 2006 and 2007
Plan years, the Plan shall be operated in good faith compliance with Section 409A. No deferral
elections are permitted or required under the Plan.
2.
OBJECTIVES:
To ensure in the event of a possible Change of Control of the Corporation, in
addition to the Executives regular duties, that he may be available to be called upon to assist in
the objective assessment of such situations, to advise management and the Board of Directors (the
Board) of the Corporation as to whether such proposals would be in the best interests of the
Corporation, its, subsidiaries and its shareholders and to take such other actions as management or
the Board might determine reasonably appropriate and in the best interests of the Corporation and
its shareholders.
3.
PARTICIPATION:
Participation in this Plan will be limited to selected Executives (each
referred to herein as Executive) whose importance to the Corporation during such periods is
deemed to warrant good and valuable special consideration by the Chief Executive Officer of the
Corporation. Each such Executives participation shall be evidenced by a certificate
(Certificate) issued by the Corporation, each of which is incorporated herein by reference as if
set forth in its entirety. In the event an Executive shall become ineligible hereunder, his or
her Certificate shall be surrendered promptly to the Corporation.
4.
DEFINITION OF CHANGE OF CONTROL:
For purposes of this Plan, a Change of Control shall
mean any of the following events:
(a) An acquisition by an individual, entity or group (within the meaning of Section 13(d)(3)
or 14(d)(2) of the Exchange Act) (a Person) of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 20% or more of either: (1) the then outstanding
shares of Common Stock of the Corporation (the Outstanding Corporation Common Stock) or (2) the
combined voting power of the then Outstanding Voting Securities of the Corporation entitled to vote
generally in the election of Directors (the Outstanding Corporation Voting Securities);
excluding, however the following: (A) any acquisition directly from the Corporation or any entity
controlled by the Corporation other than an acquisition by virtue of the exercise of a conversion
privilege unless the security being so converted was itself acquired directly from the Corporation
or any entity controlled by the Corporation, (B) any acquisition by the Corporation, or any entity
controlled by the Corporation, (C) any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Corporation or any entity controlled by the Corporation or (D) any
acquisition pursuant to a transaction which complies with clauses (1), (2) and (3) of Section
4(c); or
(b) A change in the composition of the Board such that the individuals who, as of the
effective date of the Plan, constitute the Board (such Board shall be hereinafter referred to as
the Incumbent Board) cease for any reason to constitute at least a majority of the Board;
provided
,
however
, for purposes of this Section 4(b) that any individual, who becomes a member of
the Board subsequent to the effective date of the Plan, whose election, or nomination for election
by the Corporations shareholders, was approved by a vote of at least a majority of those
individuals who are members of the Board and who were also members of the Incumbent Board, (or
deemed to be such pursuant to this proviso) shall be considered as though such individual were a
member of the Incumbent Board; but
provided further
, that any such individual whose initial
assumption of office occurs as a result of either an actual or threatened election contest (as such
terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) or other actual
or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board
shall not be so considered as a member of the Incumbent Board, or
(c) Consummation of a reorganization, merger or consolidation or sale or other disposition of
all or substantially all of the assets of the Corporation (a Corporate Transaction) excluding,
however, such a Corporate Transaction pursuant to which (1) all or substantially all of the
individuals and entities who are the beneficial owners, respectively, of the Outstanding
Corporation Common Stock and Outstanding Corporation Voting Securities immediately prior to such
Corporate Transaction (the Prior Shareholders) beneficially own, directly or indirectly, more
than 60% of, respectively, the outstanding shares of Common Stock and the combined voting power of
the then Outstanding Voting Securities entitled to vote generally in the election of Directors, as the
case may be, of the Corporation or other entity resulting from such Corporate
Transaction (including, without limitation, a corporation or other entity which as a result of such
transaction owns the Corporation or all or substantially all of the Corporations assets either
directly or through one or more subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Corporate Transaction, of the Outstanding Corporation Common
Stock and Outstanding Corporation Voting Securities, as the case may be, (2) no Person (other than
the Corporation or any entity controlled by the Corporation, any employee benefit plan (or related
trust) of the Corporation or any entity controlled by the Corporation or such corporation or other
entity resulting from such Corporate Transaction) will beneficially own, directly or indirectly,
20% or more of, respectively, the outstanding shares of Common Stock of the Corporation or other
entity resulting from such Corporate Transaction or the combined voting power of the Outstanding
Voting Securities of such Corporation or other entity entitled to vote generally in the election of
Directors except to the extent that such ownership existed prior to the Corporate Transaction and
(3) individuals who were members of the Incumbent Board will constitute at least a majority of the
members of the Board of Directors of the Corporation resulting from such Corporate Transaction; and
further excluding any disposition of all or substantially all of the assets of the Corporation
pursuant to a spin-off, split-up or similar transaction (a Spin-off) if, immediately following
the Spin-off, the Prior Shareholders beneficially own, directly or indirectly, more than 80% of the
outstanding shares of Common Stock and the combined voting power of the then Outstanding Voting
Securities entitled to vote generally in the election of directors of both entities resulting from
such transaction, in substantially the same proportions as their ownership, immediately prior to
such transaction, of the Outstanding Corporation Common Stock and Outstanding Corporation Voting
Securities;
provided
, that if another Corporate Transaction involving the Corporation occurs in
connection with or following a Spin-off, such Corporate Transaction shall be analyzed separately
for purposes of determining whether a Change of Control has occurred;
(d) The approval by the stockholders of the Corporation of a complete liquidation or
dissolution of the Corporation.
5.
DEFINITIONS:
(a) For purposes of this Plan, Cause with respect to an Executive shall mean:
(i) The willful and continued failure of the Executive to perform substantially the
Executives duties with the Corporation or one of its affiliates (other than any such failure
resulting from incapacity due to physical or mental illness), after a written demand for
substantial performance improvement is delivered to the Executive by the Board or the Chief
Executive Officer of the Corporation which specifically identifies the manner in which the Board or
Chief Executive Officer believes that the Executive has not substantially performed the Executives
duties, or
(ii) The willful engaging by the Executive in illegal conduct or gross misconduct which is
materially and demonstrably injurious to the Corporation. For purposes of this Section 5(a), no
act or failure to act, on the part of the Executive, shall be considered willful unless it is
done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the
Executives action or omission was in the best interests of the Corporation. Any act, or failure
to act, based upon authority given pursuant to a resolution duly adopted by the Board or upon the
instructions of the Chief Executive Officer or a senior officer of the Corporation or based upon
the advice of counsel for the Corporation shall be conclusively presumed to be done, or omitted to
be done, by the Executive in good faith and in the best interests of the Corporation. The
cessation of employment of the Executive shall not be deemed to be 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 of the entire membership of the Board (excluding the
Executive, if he is a member of the Board) at a meeting of the Board called and held for such
purpose (after reasonable notice is provided to the Executive and the Executive is given an
opportunity, together with counsel, to be heard before the Board), finding that, in the good-faith
opinion of the Board, the Executive is guilty of the conduct described in subparagraph (i) or (ii)
above, and specifying the particulars thereof in detail.
(b) For purposes of this Plan, Good Reason with respect to an Executive shall mean one or
more of the following conditions arising without the Executives consent and as provided under the
safe harbor provisions for good reason under the regulations to Section 409A:
(i) The assignment to the Executive of any duties materially inconsistent in any respect with
the Executives position (including status, offices, titles and reporting requirements), authority,
duties or responsibilities immediately prior to the Change of Control, or any other action by the
Corporation or any of its subsidiaries which results in a material diminution in such position,
authority, duties or responsibilities, excluding for this purpose an isolated, insubstantial and
inadvertent action not taken in bad faith and which is remedied by the Corporation or the
applicable subsidiary promptly after receipt of notice thereof given by the Executive;
(ii) Any material reduction of the Executives base salary, annual bonus, incentive
opportunities, retirement benefits, welfare or fringe benefits below the highest level enjoyed by
the Executive during the 120-day period prior to the Change of Control;
(iii) The Corporations or one of its subsidiaries requiring the Executive to be based at any
office or location other than that at which he was based immediately prior to the Change of Control
constituting a material change in the Executives geographic location or the Corporations or one
of its subsidiaries requiring the Executive to travel to a substantially greater extent than
required immediately prior to the Change of Control;
(iv) Any purported termination by the Corporation or one of its subsidiaries of the
Executives employment otherwise than as expressly permitted by this Plan; or
(v) Any failure by the Corporation to comply with and satisfy Section 12(c) of this Plan.
For purposes of this Plan, any good-faith determination of Good Reason made by an Executive shall
be conclusive with respect to that Executive.
(c) For purposes of this Plan, Window Period means the 30-day period following the first
anniversary of the Change of Control.
(d) For purposes of this Plan, Specified Employee means an Executive considered a key
employee for purposes of Section 409A for that 12-month period commencing on April 1
st
of the year following the 12-month period ending on December 31
st
of the preceding year
during which such Executive met the requirements of Internal Revenue Code Section
416(i)(1)(A),(i),(ii) or (iii) (disregarding Section 416(i)(5)) during the applicable 12-month
period.
6.
ELIGIBILITY FOR BENEFITS:
Benefits as described in Section 7 shall be provided in the
event the Executives employment with the Corporation or any of its subsidiaries is terminated:
(a) Involuntarily by the Corporation or the applicable subsidiary without Cause (a Without
Cause Termination); or
(b) By the Executive for Good Reason (a Good Reason Termination) provided that the Executive
shall notify the Corporation of the existence of one or more of the Good Reason conditions within
ninety (90) days of such conditions initial occurrence and the Corporation shall have thirty (30)
days to remedy such condition or conditions. If the Corporation remedies such condition or
conditions it shall not be required to pay any amounts hereunder. If such condition is not timely
remedied the Executive shall separate from service within ten days after the expiration of the
thirty day remedy period. Provided that the Executives separation from service occurs within two
years of the initial existence of one or more of the Good Reason conditions, payment shall be made
by the Corporation in a lump sum within five (5) business days of the Executives separation from
service (subject to the six-month delay in payment requirement for Specified Employees as described
in Section 7(g) hereof); or
(c) By the Executives own election for any reason during the Window Period provided that if
such Window Period straddles two tax years of an Executive, the Executive shall not have discretion
to choose between such tax years and the Executives election shall be deemed to have been made on
the last day of the Window Period regardless of when during the Window Period such election is
actually made;
provided, in the case of a Without Cause Termination or a Good Reason Termination, that such
termination occurs within thirty-six months after a Change of Control; and provided, further, that
in no event shall a termination as a consequence of an Executives death or disability, or
Retirement (as defined in the next sentence) entitle the Executive to benefits under this Plan.
Retirement shall mean the Executives voluntary separation from service at or after attaining age
65. For purposes of payments under the Plan, the Executives termination of employment must
constitute a separation from service within the meaning of Section 409A.
7.
BENEFIT ENTITLEMENTS:
(a)
Lump Sum Payment:
Except as otherwise provided in Section 7(g) hereof, within five (5)
business days of the Executives separation from service with the Corporation or any of its
subsidiaries, the Corporation or the applicable subsidiary will pay to the Executive as
compensation for services rendered a lump sum cash amount (subject to any applicable payroll or
other taxes required to be withheld) equal to the sum of (i) Executives highest annual salary
fixed during the period Executive was an employee of the Corporation or any of its subsidiaries,
plus (ii) the greater of (x) the largest amount awarded to him or her in a year
as cash bonus (whether or not deferred and regardless of deferral election) under the Corporations
Management Incentive Plan
during the preceding four years or if the Executive has not been employed
for at least four full fiscal years, all of the completed full fiscal years during which the
Executive has been employed, or (y) the target bonus under the Corporations Management Incentive
Plan for the fiscal year in which the Change of Control occurs, plus (iii) the greater of (x) the
largest amount awarded to Executive in a year as cash bonus (whether or not deferred and regardless
of deferral election) under the Corporations Performance Unit Incentive Plan during the preceding
four years or if the Executive has not been employed for at least four full fiscal years, all of
the completed full fiscal years during which the Executive has been employed, or (y) the aggregate
value of shares when earned during a performance period under any performance-related Restricted
Stock award during the preceding four years or if the Executive has not been employed for at least
four full fiscal years, all of the completed full fiscal years during which the Executive has been
employed, or (z) the aggregate value at the time of grant of the target shares awarded under the
Corporations performance-related Restricted Stock programs for the fiscal year in which the Change
of Control occurs, multiplied by:
(i) Three times a fraction, the numerator of which is 36 minus the number of full months from
the date of the Change of Control through the last day of the Executives employment, and the
denominator of which is 36, in the case of a Without Cause Termination or a Good Reason
Termination, or
(ii) Two if the termination is voluntary during the Window Period.
(b)
Employee Plans:
The Executives participation in life, accident, health, automobile,
club membership, and financial counseling plans of the Corporation, or the applicable subsidiary,
if any, provided to the Executive immediately prior to the Change of Control or his or her
termination, shall be continued, or equivalent benefits provided, by the Corporation or the
applicable subsidiary at no direct cost or tax cost to the Executive in excess of the costs that
would be imposed on the Executive, if he or she remained an employee, for a period (the Severance
Period) of:
(i) Three years times a fraction, the numerator of which is 36 minus the number of full months
from the date of the Change of Control through the last day of the Executives employment, and the
denominator of which is 36, in the case of a Without Cause Termination or a Good Reason Termination
(or within the applicable limited time period of an exemption under Section 409A), or
(ii) Two years if the termination is voluntary during the Window Period, in each case from the
date of termination (or until his death, disability or Retirement date, whichever is sooner). The
Executives participation in any applicable qualified retirement plans, nonqualified retirement
plans, pension plans, deferred compensation plans, or bonus plans of the Corporation or any of its
subsidiaries, if any, shall continue only through the last day of employment. Any terminating
distributions and/or vested rights under such plans shall be governed by the terms of the
respective plans. For purposes of determining the eligibility of the Executive for any
post-retirement life and health benefits, the Executive shall be treated as having attained an
additional three years of age and service credit (in the case of a Without Cause Termination or a
Good Reason Termination) or two years of age and service credit (if the termination is voluntary
during the Window Period), in each case as of the last day of the Executives employment.
(iii) To the extent that the Employee Plans described in Section 7(b) are deemed to constitute
a reimbursement arrangement or the provision of in-kind benefits within the meaning of the
regulations under Section 409A, such reimbursement arrangement or in-kind benefits shall expire no
later than the end of the second calendar year following the year of the Executives termination
from employment.
(c)
Special Retirement Benefits:
If the Executive is, immediately prior to his termination of
employment, an active participant accruing benefits under the Viad Corp Supplemental Pension Plan
( the SERP), then the Executive or his or her beneficiaries shall be paid Special Retirement
Benefits in an actuarial equivalent lump sum on the date immediately preceding the completion of 2
1
/
2
months of the calendar year following the calendar year in which the Executives termination
of employment occurred (provided, in the case of a Good Reason Termination, that such termination
occurs within twenty-four months after the initial existence of a Good Reason condition or in the
case of a Without Cause Termination within thirty-six months of a Change of Control or in the case
of a voluntary termination, such termination occurs during the Window Period) equal to the excess
of (i) the retirement benefits that would be payable to the Executive or his beneficiaries under
the SERP if the Executives employment had continued during the Severance Period, all of his
accrued benefits under the SERP (including those attributable to the Severance Period) were fully
vested, and his final average compensation is equal to the Deemed Final Average Compensation, as
defined below, over (ii) the total benefit actually payable to the Executive or his beneficiaries
under the SERP. The Deemed Final Average Compensation means the Executives final average
compensation computed in accordance with the SERP, except that the amount specified in Section 7(a)
shall be considered as having been paid to the Executive as compensation in equal monthly
installments during the Severance Period. All Special Retirement Benefits shall be unfunded and
payable solely from the general assets of the Corporation or its appropriate subsidiary, and are not intended to
meet the qualification requirements of Section 401 of the Internal
Revenue Code. The amount of the
Special Retirement Benefits shall be determined using actuarial assumptions no less favorable to
the Executive than those used in the SERP immediately prior to the Change of Control.
(d)
Outplacement:
The Executive shall be provided with reasonable outplacement benefits in
accordance with those offered to Executives immediately prior to the Change of Control for a
limited period of time not to exceed two years.
(e)
Minimum Benefit Entitlement:
Notwithstanding anything to the contrary in this Section 7,
and except as provided in Section 8(a), in no event shall an Executives severance benefits under
the Plan be less than the benefits (if any) such Executive would have received in accordance with
the severance policy of the Corporation or applicable subsidiary in effect immediately prior to the
Change of Control.
(f)
Compliance with Section 409A:
The Plan is intended to satisfy, or otherwise be exempt
from, the requirements of Section 409A, including current and future guidance and regulations
interpreting such provisions. With respect to any payment pursuant to this Plan, the Executive
shall not have any discretion to designate the taxable year of payment. To the extent that any
provision of this Plan fails to satisfy those requirement or fails to be exempt from Section 409A,
the provision shall automatically be modified (notwithstanding anything to the contrary in this
Plan including Section 15) in a manner that, in the good-faith opinion of the Company, brings the
provision into compliance with those requirements while preserving as closely as possible the
original intent of the provision and this Plan.
(g)
Six-Month Delay for Specified Employees
. Where payment under this Plan is made toa
Specified Employee on account of separation from service, such payment shall commence no earlier
than six (6) months following separation from service if required to comply with section 409A of
the Code. On the first business day of the seventh month following the date of such Specified
Employees separation from service, the Specified Employee shall be paid the applicable amount
under Section 7 hereof in a single sum without interest.
8.
TAXES:
(a) Except as set forth below, in the event it shall be determined that any of an
Executives Payment(s) would be subject to the Excise Tax, then the Executive shall be entitled to
receive an additional payment (the Gross-Up Payment) in an amount such that, after payment by the
Executive of all taxes (and any interest and penalties imposed with respect thereto) and Excise Tax
imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to
the Excise Tax imposed upon such Executives Payments. Notwithstanding the foregoing provisions of
this Section 8(a), if it shall be determined that the Executive is entitled to the Gross-Up
Payment, but that the Parachute Value of all Payments does not exceed 110% of the Executives Safe
Harbor Amount, then no Gross-Up Payment shall be made to the Executive and the amounts payable
under this Plan shall be reduced so that the Parachute Value of all of such Executives Payments,
in the aggregate, equals the Executives Safe Harbor Amount. The reduction of the amounts payable
hereunder, if applicable, shall be made by first reducing the Executives Payments under Section
7(a), unless an alternative method of reduction is elected by the Executive, and in any event shall
be made in such a manner as to maximize the Value of all Payments actually made to the Executive.
For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under this
Plan (and no other Payments) shall be reduced. If the reduction of the amounts payable under this
Plan would not result in a reduction of the Parachute Value of all Payments to the Executives Safe
Harbor Amount, no amounts payable to such Executive under this Plan shall be reduced pursuant to
this Section 8(a) and the Gross-Up Payment shall be made to the Executive.
(b)
Determination By Accountant.
Subject to the provisions of Section 8(c)ii, all
determinations required to be made under this Section 8, including whether and when a Gross-Up
Payment to any Executive is required, the amount of such Gross-Up Payment and the assumptions to be
utilized in arriving at such determination, shall be made by the Corporations auditor or another
nationally recognized accounting firm appointed by the Corporation (the Accounting Firm). In the
event that the Accounting Firm is serving as accountant or auditor for the individual, entity or
group effecting the Change of Control, the Executive may appoint another nationally recognized
accounting firm to make the determinations required hereunder (which accounting firm shall then be
referred to as the Accounting Firm hereunder). The Accounting Firm shall provide detailed
supporting calculations both to the Corporation and the Executive within 15 business days of the
receipt of notice from the Executive that there has been a Payment or such earlier time as is
requested by the Corporation. All fees and expenses of the Accounting Firm shall be borne solely
by the Corporation. Any Gross-Up Payment, as determined pursuant to this Section 8, shall be paid
by the Corporation to the applicable Executive within five days of the receipt of the Accounting
Firms determination provided that the Executive shall not have any discretion over the tax year in
which any payment pursuant to this Section 8(b) is made. Any determination by the Accounting Firm
shall be binding upon the Corporation and the applicable Executive. As a result of the uncertainty
in the application of Section 4999 of the Code at the time of the initial determination by the
Accounting Firm hereunder it is possible that Gross-Up Payments that will not have been made by the
Corporation should have been made (the Underpayment), consistent with the calculations required
to be made hereunder. In the event the Corporation exhausts its remedies pursuant to Section 8(c) and the Executive thereafter is required to make a payment of any
Excise Tax, the Accounting Firm shall within 15 days of receipt of
notification from the
Corporation determine the amount of the Underpayment that has occurred and any such Underpayment
shall be promptly paid within five (5) days of the Accounting Firms determination by the
Corporation to or for the benefit of the Executive.
(c)
Notification Required.
The Executive shall notify the Corporation in writing of any claim
by the Internal Revenue Service that, if successful, would require the payment by the Corporation
of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than
10 business days after the Executive is informed in writing of such claim. The Executive shall
apprise the Corporation of the nature of such claim and the date on which such claim is requested
to be paid. The Executive shall not pay such claim prior to the expiration of the 30-day period
following the date on which the Executive gives such notice to the Corporation (or such shorter
period ending on the date that any payment of taxes with respect to such claim is due). If the
Corporation notifies the Executive in writing prior to the expiration of such period that it
desires to contest such claim, the Executive shall:
(i) Give the Corporation any information reasonably requested by the Corporation relating to
such claim,
(ii) Take such action in connection with contesting such claim as the Corporation shall
reasonably request in writing from time to time, including, without limitation, accepting legal
representation with respect to such claim by an attorney reasonably selected by the Corporation,
(iii) Cooperate with the Corporation in good faith in order to effectively contest such claim,
and
(iv) Permit the Corporation to participate in any proceedings relating to such claim;
provided, however, that the Corporation shall bear and pay directly all costs and expenses
(including additional interest and penalties) incurred in connection with such contest and shall
indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax,
(including interest and penalties) imposed as a result of such representation and payment of costs
and expenses. Without limitation on the foregoing provisions of this Section 8(c)ii, the
Corporation shall control all proceedings taken in connection with such contest and, at its sole
discretion, may pursue or forgo any and all administrative appeals, proceedings, hearings and
conferences with the applicable taxing authority in respect of such claim and may, at its sole
discretion, either direct the Executive to pay the tax claimed and sue for a refund, or contest the
claim in any permissible manner, and the Executive agrees to prosecute such contest to a
determination before any administrative tribunal, in a court of initial jurisdiction and in one or
more appellate courts, as the Corporation shall determine;
provided, however
, that if the
Corporation directs the Executive to pay such claim and sue for a refund, the Corporation shall pay
the amount of such payment to the Executive, and shall indemnify and hold the Executive harmless,
on an after-tax basis, from any Excise Tax or income tax, (including interest or penalties) imposed
with respect to such payment or with respect to any imputed income in connection with such payment;
and
provided, further
that any extension of the statute of limitations relating to payment of taxes
for the taxable year of the Executive with respect to which such contested amount is claimed to be
due is limited solely to such contested amount. Furthermore, the Corporations control of the
contest shall be limited to issues with respect to which the Gross-Up Payment would be payable
hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other
issue raised by the Internal Revenue Service or any other taxing authority.
(d)
Repayment.
If, after the receipt by the Executive of a Gross-Up Payment or an amount paid
by the Corporation pursuant to Section 8(c), the Executive becomes entitled to receive any refund
with respect to the Excise Tax to which such Gross-Up Payment relates or with respect to such
claim, the Executive shall (subject to the Corporations complying with the requirements of Section
8(c), if applicable,) promptly pay to the Corporation the amount of such refund (together with any
interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the
Executive of an amount paid by the Corporation pursuant to Section 8(c), a determination is made
that the Executive shall not be entitled to any refund with respect to such claim and the
Corporation does not notify the Executive in writing of its intent to contest such denial of refund
prior to the expiration of 30 days after such determination, then the Executive shall not be
required to repay such amount to the Corporation, but the amount of such payment shall offset, to
the extent thereof, the amount of Gross-Up Payment required to be paid.
(e)
Withholding.
Notwithstanding any other provision of this Section 8, the Corporation may,
in its sole discretion, withhold and pay over to the Internal Revenue Service or any other
applicable taxing authority, for the benefit of the Executive, all or any portion of any Gross-Up
Payment.
(f)
Definitions:
The following terms shall have the following meanings for purposes of this
Section 8.
Excise Tax shall mean the excise tax imposed by Section 4999 of the Code, together with any
interest or penalties imposed with respect to such excise tax.
Parachute Value of a Payment shall mean the present value as of the date of the change of
control for purposes of Section 280G of the Code of the portion of such Payment that constitutes a
parachute payment under Section 280G(b)(2), as
determined by the Accounting Firm for purposes of
determining whether and to what extent the Excise Tax will apply to such Payment.
A Payment shall mean any payment or distribution in the nature of compensation (within the
meaning of Section 280G(b)(2) of the Code) to or for the benefit of an Executive, whether paid or
payable pursuant to this Plan or otherwise.
The Safe Harbor Amount of an Executive means 2.99 times the Executives base amount,
within the meaning of Section 280G(b)(3) of the Code.
Value of a Payment shall mean the economic present value of a Payment as of the date of the
change of control for purposes of Section 280G of the Code, as determined by the Accounting Firm
using the discount rate required by Section 280G(d)(4) of the Code.
(g)
Section 409A.
Notwithstanding anything to the contrary in this Section 8, in order to
comply with Section 409As requirement of a fixed time and form of payment, any payment herein
shall be made no later than the end of the Executives taxable year next following the Executives
taxable year in which the related taxes are remitted to the taxing authority or, if no taxes are to
be remitted, the end of the Executives taxable year next following the year in which the
applicable audit or litigation is completed.
9.
INDEMNIFICATION:
If litigation is brought to enforce or interpret any provision contained
herein, the Corporation or applicable subsidiary, to the extent permitted by applicable law and the
Corporations or subsidiarys Articles of Incorporation, as the case may be, shall indemnify each
Executive who is a party thereto for his reasonable attorneys fees and disbursements incurred in
such litigation, regardless of the outcome thereof, and shall pay interest on any money judgment
obtained by the Executive calculated at the Citibank, N.A. prime interest rate in effect from time
to time from the date that payment(s) to him or her should have been made under this Plan until the
date the payment(s) is made. Such attorneys fees and disbursements shall be paid within ten (10)
business days of receipt of documentation of the attorneys fees and disbursements as submitted by
the Executive within thirty (30) days of the Executives receipt of the invoice for such attorneys
fees and disbursements. Consistent with Section 409A, the Executive must make reasonable good faith
efforts to collect any payment due pursuant to this Plan but in dispute, including giving notice to
the Corporation or the applicable subsidiary within 90 days of the latest date upon which the
disputed payment could have been timely made, and if such payment is not made, the taking of
further enforcement measures within 180 days after such date.
10.
PAYMENT OBLIGATIONS ABSOLUTE:
Except as expressly provided in Section 14 and 15, the
Corporations or subsidiarys obligation to pay the Executive the benefits hereunder and to make
the arrangements provided herein shall be absolute and unconditional and shall not be affected by
any circumstances, including, without limitation, any set-off, counter-claim, recoupment, defense
or other right which the Corporation or any of its subsidiaries may have against him or anyone
else. All amounts paid or payable by the Corporation or one of its subsidiaries hereunder shall be
paid without notice or demand unless expressly provided otherwise. Each and every payment made
hereunder by the Corporation or subsidiary shall be final and the Corporation or subsidiary will
not seek to recover all or any part of such payment(s) from the Executive or from whosoever may be
entitled thereto, for any reason whatsoever. No Executive shall be obligated to seek other
employment in mitigation of the amounts payable or arrangements made under any provision of this
Plan, and the obtaining of any such other employment shall in no event effect any reduction of the
Corporations or subsidiarys obligations to make the payments and arrangements required to be made
under this Plan. The Corporation or applicable subsidiary may at the discretion of the Chief
Executive Officer of the Corporation enter into an irrevocable, third-party guarantee or similar
agreement with a bank or other institution with respect to the benefits payable to an Executive
hereunder, which would provide for the unconditional payment of such benefits by such third party
upon presentment by an Executive of his Certificate (and on such other conditions deemed necessary
or desirable by the Corporation or such subsidiary) at some specified time after termination of
employment. Such third-party guarantor shall have no liability for improper payment if it follows
the instructions of the Corporation or such subsidiary as provided in such Certificate and other
documents required to be presented under the agreement, unless the Corporation or such subsidiary,
in a written notice, has previously advised such third-party guarantor of the determination by its
Board of Directors of ineligibility of the Executive in accordance with Section 15.
11.
CONTINUING OBLIGATIONS:
It shall be a condition to the entitlement of an Executive to any
benefits under this Plan that he or she agree to retain in confidence any confidential information
known to him or her concerning the Corporation and its subsidiaries and their respective businesses
as long as such information is not publicly disclosed, except as required by law.
12.
SUCCESSORS:
(a) The benefits provided under this Plan are personal to the Executives and without the prior
written consent of the Corporation shall not be assignable by any Executive otherwise than by will
or the laws of descent and distribution. This Plan shall inure to the benefit of and be
enforceable by the Executives legal representatives.
(b) This Plan shall inure to the benefit of and be binding upon the Corporation and its
successors and assigns.
(c) The Corporation will 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 Corporation to assume expressly and agree to perform this Plan in the same manner and to the
same extent that the Corporation would be required to perform it if no such succession had taken
place. As used in this Plan, Corporation shall mean the Corporation as hereinbefore defined and
any other person or entity which assumes or agrees to perform this Plan by operation of law, or
otherwise.
13.
SEVERABILITY:
Any provision in this Plan which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent of such prohibition
or unenforceability without invalidating or affecting the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.
14.
OTHER PLANS AND AGREEMENTS:
Notwithstanding any provision herein to the contrary, in the
event the Executives employment with the Corporation or applicable subsidiary terminates and the
Executive is entitled to receive termination, separation or other like amounts from the Corporation
or any of its subsidiaries pursuant to any contract of employment, generally prevailing separation
pay policy, or other program of the Corporation or applicable subsidiary, all such amounts shall be
applied to and set off against the Corporations or applicable subsidiarys obligation set forth in
Sections 7 and 8 of this Plan and provided that, consistent with the requirements of Section 409A
and in order to avoid any impermissible acceleration under this Plan, such amounts shall be paid in
accordance with the terms of the applicable contract, policy or program and the Executive shall not
have any discretion over the tax year in which any such set-off amount described in this Section 14
is made. Nothing in this Section 14 is intended to result in set-off of pension benefits,
supplemental executive retirement benefits, disability benefits, retiree benefits or any other plan
benefits not directly provided as termination or separation benefits.
15.
AMENDMENT AND TERMINATION:
This Plan may be amended or terminated by action of the Board.
This Plan shall terminate with respect to an Executive if the Chief Executive Officer of the
Corporation determines that the Executive is no longer a key executive to be provided a severance
agreement and so notifies the Executive by certified mail at least thirty (30) days before
participation in this Plan shall cease. Notwithstanding the foregoing, no such amendment,
termination or determination may be made, (and if made, shall have no effect during the period of
thirty-six months following any Change of Control or during any period of time when the
Corporation has knowledge that any third person has taken steps reasonably calculated to effect a
Change of Control, until such third person has abandoned or terminated his efforts to effect a
Change of Control as determined by the Board in good faith, but in its sole discretion.
16.
GOVERNING LAW:
This Plan shall be governed by and construed in accordance with the laws
of the State of Delaware, without reference to principles of conflict of laws. The captions of
this Plan are not part of the provisions hereof and shall have no force or effect.
17. By acceptance of participation in this Plan, an Executive agrees to give a minimum of four
(4) weeks notice to the Corporation in the event of his voluntary resignation.
VIAD CORP
EXECUTIVE SEVERANCE PLAN (TIER II)
AMENDED AND RESTATED FOR CODE SECTION 409A
AS OF JANUARY 1, 2005
1.
PURPOSE:
To provide management continuity by inducing selected Executives to remain in the
employ of Viad Corp (the Corporation) or one of its subsidiaries pending a possible Change of
Control of the Corporation. This amended and restated Executive Severance Plan (Tier II) (the
Plan) is effective for Plan years beginning on January 1, 2005 and thereafter. This Restatement
is intended to meet the requirements of Section 409A of the Internal Revenue Code and the
regulations and guidance promulgated thereto (Section 409A). During the 2005, 2006, and 2007 Plan
years, the Plan shall be operated in good faith compliance with Section 409A. No deferral elections
are permitted or required under this Plan.
2.
OBJECTIVES:
To ensure in the event of a possible Change of Control of the Corporation, in
addition to the Executives regular duties, that he may be available to be called upon to assist in
the objective assessment of such situations, to advise management and the Board of Directors (the
Board) of the Corporation as to whether such proposals would be in the best interests of the
Corporation its subsidiaries and its shareholders, and to take such other actions as management or
the Board might determine reasonably appropriate and in the best interests of the Corporation and
its shareholders.
3.
PARTICIPATION:
Participation in this Plan will be limited to selected Executives (each
referred to herein as Executive) whose importance to the Corporation during such periods is
deemed to warrant good and valuable special consideration by the Chief Executive Officer of the
Corporation. Each such Executives participation shall be evidenced by a certificate
(Certificate) issued by the Corporation, each of which is incorporated herein by reference as if
set forth in its entirety. In the event an Executive shall become ineligible hereunder, his or
her Certificate shall be surrendered promptly to the Corporation.
4.
DEFINITION OF CHANGE OF CONTROL:
For purposes of this Plan, a Change of Control shall
mean any of the following events:
(a) An acquisition by an individual, entity or group (within the meaning of Section 13(d)(3)
or 14(d)(2) of the Exchange Act) (a Person) of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 20% or more of either: (1) the then outstanding
shares of common stock of the Corporation (the Outstanding Corporation Common Stock) or (2) the
combined voting power of the then Outstanding Voting Securities of the Corporation entitled to vote
generally in the election of Directors (the Outstanding Corporation Voting Securities);
excluding, however, the following: (A) any acquisition directly from the Corporation or any
entity controlled by the Corporation other than an acquisition by virtue of the exercise of a
conversion privilege unless the security being so converted was itself acquired directly from the
Corporation or any entity controlled by the Corporation, (B) any acquisition by the Corporation or
any entity controlled by the Corporation, (C) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Corporation or any entity controlled by the
Corporation or (D) any acquisition pursuant to a transaction which complies with clauses (1), (2)
and (3) of Section 4(c); or
(b) A change in the composition of the Board such that the individuals who, as of the
effective date of the Plan, constitute the Board (such Board shall be hereinafter referred to as
the Incumbent Board) cease for any reason to constitute at least a majority of the Board;
provided, however,
for purposes of this section 4(b), that any individual who becomes a member of
the Board subsequent to the effective date of the Plan, whose election or nomination for election
by the Corporations shareholders was approved by a vote of at least a majority of those
individuals who are members of the Board and who were also members of the Incumbent Board (or
deemed to be such pursuant to this proviso) shall be considered as though such individual were a
member of the Incumbent Board; but
provided further
, that any such individual whose initial
assumption of office occurs as a result of either an actual or threatened election contest (as such
terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) or other actual
or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board
shall not be so considered as a member of the Incumbent Board, or
(c) Consummation of a reorganization, merger or consolidation or sale or other disposition of
all or substantially all of the assets of the Corporation (a Corporate Transaction) excluding,
however, such a Corporate Transaction pursuant to which (1) all or substantially all of the
individuals and entities who are the beneficial owners, respectively, of the Outstanding
Corporation Common Stock and Outstanding Corporation Voting Securities immediately prior to such
Corporate Transaction (the Prior Shareholders) beneficially own, directly or indirectly, more
than 60% of, respectively, the outstanding shares of Common Stock and the combined voting power of
the then Outstanding Voting Securities entitled to vote generally in the election of Directors, as
the case may be, of the Corporation or other entity resulting from such Corporate Transaction
(including, without limitation, a corporation or other entity which as a result of such transaction
owns the Corporation or all or substantially all of the Corporations
assets either directly or through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such Corporate Transaction, of the Outstanding
Corporation Common Stock and Outstanding Corporation Voting Securities, as the case may be, (2) no
Person (other than the Corporation or any entity controlled by the Corporation, any employee
benefit plan (or related trust) of the Corporation or any entity controlled by the Corporation or
such corporation or other entity resulting from such Corporate Transaction) will beneficially own,
directly or indirectly, 20% or more of, respectively, the outstanding shares of Common Stock of the
Corporation or other entity resulting from such Corporate Transaction or the combined voting power
of the Outstanding Voting Securities of such Corporation or other entity entitled to vote generally
in the election of Directors except to the extent that such ownership existed prior to the
Corporate Transaction and (3) individuals who were members of the Incumbent Board will constitute
at least a majority of the members of the Board of Directors of the Corporation resulting from such
Corporate Transaction; and further excluding any disposition of all or substantially all of the
assets of the Corporation pursuant to a spin-off, split-up or similar transaction (a Spin-off)
if, immediately following the Spin-off, the Prior Shareholders beneficially own, directly or
indirectly, more than 80% of the outstanding shares of Common Stock and the combined voting power
of the then Outstanding Voting Securities entitled to vote generally in the election of directors
of both entities resulting from such transaction, in substantially the same proportions as their
ownership, immediately prior to such transaction, of the Outstanding Corporation Common Stock and
Outstanding Corporation Voting Securities;
provided
, that if another Corporate Transaction
involving the Corporation occurs in connection with or following a Spin-off, such Corporate
Transaction shall be analyzed separately for purposes of determining whether a Change of Control
has occurred;
(d) The approval by the shareholders of the Corporation of a complete liquidation or
dissolution of the Corporation.
5.
DEFINITIONS:
(a) For purposes of this Plan, Cause with respect to an Executive shall mean:
(i) The willful and continued failure of the Executive to perform substantially the
Executives duties with the Corporation or one of its affiliates (other than any such failure
resulting from incapacity due to physical or mental illness), after a written demand for
substantial performance improvement is delivered to the Executive by the Board or the Chief
Executive Officer of the Corporation which specifically identifies the manner in which the Board or
Chief Executive Officer believes that the Executive has not substantially performed the Executives
duties, or
(ii) The willful engaging by the Executive in illegal conduct or gross misconduct which is
materially and demonstrably injurious to the Corporation. For purposes of this Section 5(a), no
act or failure to act, on the part of the Executive, shall be considered willful unless it is
done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the
Executives action or omission was in the best interests of the Corporation. Any act, or failure
to act, based upon authority given pursuant to a resolution duly adopted by the Board or upon the
instructions of the Chief Executive Officer or a senior officer of the Corporation or based upon
the advice of counsel for the Corporation shall be conclusively presumed to be done, or omitted to
be done, by the Executive in good faith and in the best interests of the Corporation. The
cessation of employment of the Executive shall not be deemed to be 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 of the entire membership of the Board (excluding the Executive
if he is a member of the Board) at a meeting of the Board called and held for such purpose (after
reasonable notice is provided to the Executive and the Executive is given an opportunity, together
with counsel, to be heard before the Board), finding that, in the good-faith opinion of the Board,
the Executive is guilty of the conduct described in subparagraph (i) or (ii) above, and specifying
the particulars thereof in detail.
(b) For purposes of the Plan, Good Reason with respect to an Executive shall mean one or
more of the following conditions arising without the Executives consent and as provided under the
safe harbor provisions for good reason under the regulations to Section 409A:
(i) The assignment to the Executive of any duties materially inconsistent in any respect with
the Executives position (including status, offices, titles and reporting requirements), authority,
duties or responsibilities immediately prior to the Change of Control, or any other action by the
Corporation or any of its subsidiaries which results in a material diminution in such position,
authority, duties or responsibilities, excluding for this purpose an isolated, insubstantial and
inadvertent action not taken in bad faith and which is remedied by the Corporation or the
applicable subsidiary promptly after receipt of notice thereof given by the Executive;
(ii) Any material reduction of the Executives base salary, annual bonus, incentive
opportunities, retirement benefits, welfare or fringe benefits below the highest level enjoyed by
the Executive during the 120-day period prior to the Change of Control;
(iii) The Corporations or one of its subsidiaries requiring the Executive to be based at any
office or location other than that at which he was based immediately prior to the Change of Control
constituting a material change in the Executives geographic location or the Corporations or one
of its subsidiaries requiring the Executive to travel to a substantially greater extent than
required immediately prior to the Change of Control;
(iv) Any purported termination by the Corporation or one of its subsidiaries of the
Executives employment otherwise than as expressly permitted by this Plan; or
(v) Any failure by the Corporation to comply with and satisfy Section 11(c) of this Plan.
(c) For purposes of this Plan, Specified Employee means an Executive considered a key
employee for purposes of Section 409A for that 12-month period commencing on April 1
st
of the year following the 12-month period ending on December 31
st
of the preceding year
during which such Executive met the requirements of Internal Revenue Code Section
416(i)(1)(A),(i),(ii) or (iii) (disregarding Section 416(i)(5)) during the applicable 12-month
period.
6.
ELIGIBILITY FOR BENEFITS:
Benefits as described in Section 7 shall be provided in the
event the Executives employment with the Corporation or any of its subsidiaries is terminated:
(a) Involuntarily by the Corporation or the applicable subsidiary without Cause (a Without
Cause Termination); or
(b) By the Executive for Good Reason (a Good Reason Termination)
provided that the Executive shall notify the Corporation of the existence of one or more of the
Good Reason conditions within ninety (90) days of such conditions initial occurrence and the
Corporation shall have thirty (30) days to remedy such condition or conditions. If the Corporation
remedies such condition or conditions it shall not be required to pay any amounts hereunder. If
such condition is not timely remedied the Executive shall separate from service within ten days
after the expiration of the thirty day remedy period. Provided that the Executives separation from
service occurs within one year of the initial existence of one or more of the Good Reason
conditions, payment shall be made by the Corporation in a lump sum within five business (5) days of
the Executives separation from service (subject to the six-month delay in payment requirement for
Specified Employees as described in Section 7(g) hereof, as applicable); Such termination pursuant
to (a) or (b) above shall occur within eighteen months after a Change of Control; and provided,
further, that in no event shall a termination as a consequence of an Executives death disability
voluntary separation from service or Retirement (as defined in the next sentence) entitle the
Executive to benefits under this Plan. Retirement shall mean the Executives voluntary
separation from service at or after attaining age 65. For purposes of payments under the Plan, the
Executives termination of employment must constitute a separation from service within the
meaning of Section 409A.
7.
BENEFIT ENTITLEMENTS:
(a)
Lump Sum Payment:
Except as otherwise provided in Section 7(g) hereof, within five (5)
business days of the Executives separation from service with the Corporation or any of its
subsidiaries, the Corporation or the applicable subsidiary will pay to the Executive as
compensation for services rendered a lump sum cash amount (subject to any applicable payroll or
other taxes required to be withheld) equal to two times the sum of (x) Executives highest annual
salary fixed during the period Executive was an employee of the Corporation or any of its
subsidiaries, plus (y) the target bonus under the Corporations Management Incentive Plan for the
fiscal year in which the Change of Control occurs.
(b)
Employee Plans:
The Executives participation in life, accident, health, automobile,
club membership, and financial counseling plans of the Corporation, or the applicable subsidiary,
if any, provided to the Executive immediately prior to the Change of Control or his or her
termination, shall be continued, or equivalent benefits provided, by the Corporation or the
applicable subsidiary at no direct cost or tax cost to the Executive in excess of the costs that
would be imposed on the Executive if he or she remained an employee for a period (the Severance
Period) of two years times a fraction, the numerator of which is 24 minus the number of full
months from the date of the Change of Control through the last day of the Executives employment,
and the denominator of which is 24. The Executives participation in any applicable qualified or
nonqualified retirement and/or pension plans and any deferred compensation or bonus plan of the
Corporation or any of its subsidiaries, if any, shall continue only through the last day of
employment. Any terminating distributions and/or vested rights under such plans shall be governed
by the terms of the respective plans. For purposes of determining the eligibility of the Executive
for any post-retirement life and health benefits, the
Executive shall be treated as having attained an additional two years of age and service credit, in
each case as of the last day of the Executives employment.
(c)
Special Retirement Benefits:
If the Executive is, immediately prior to his or her
termination of employment, an active participant accruing benefits under the Viad Corp Supplemental
Pension Plan (the SERP ), then the Executive or his or
her beneficiaries shall be paid Special
Retirement Benefits in an actuarial equivalent lump sum on the date immediately preceding the
completion of 2
1
/
2
months of the calendar year following the calendar year in which the
Executives termination of employment occurred (provided, in the case of a Good Reason Termination,
that such termination occurs within twelve (12) months after the initial existence of a Good Reason
condition or in the case of a Without Cause Termination within eighteen (18) months of a Change of
Control) equal to the excess of (i) the retirement benefits that would be payable to the Executive
or his beneficiaries under the SERP if the Executives employment had continued during the
Severance Period, all of his accrued benefits under the SERP (including those attributable to the
Severance Period) were fully vested, and his final average compensation is equal to the Deemed
Final Average Compensation, as defined below, over (ii) the total benefits actually payable to the
Executive or his beneficiaries under the SERP. The Deemed Final Average Compensation means the
Executives final average compensation computed in accordance with the SERP, except that the amount
specified in Section 7(a) shall be considered as having been paid to the Executive as
compensation in equal monthly installments during the Severance Period. All Special Retirement
Benefits shall be unfunded and payable solely from the general assets of the Corporation or its
appropriate subsidiary, and are not intended to meet the qualification requirements of Section 401
of the Internal Revenue Code. The amount of the Special Retirement Benefits shall be determined
using actuarial assumptions no less favorable to the Executive than those used in the SERP
immediately prior to the Change of Control.
(d)
Outplacement:
The Executive shall be provided with reasonable outplacement benefits in
accordance with those offered to Executives immediately prior to the Change of Control for a
limited period of time not to exceed two years.
(e)
Minimum Benefit Entitlement:
Notwithstanding anything to the contrary in this Section 7,
and except as provided in Section 8(a), in no event shall an Executives severance benefit under
this Plan be less than the benefits (if any) such Executive would have received in accordance with
the severance policy of the Corporation or applicable subsidiary in effect immediately prior to the
Change of Control.
(f)
Compliance with Section 409A:
The Plan is intended to satisfy, or otherwise be exempt
from, the requirements of Section 409A, including current and future guidance and regulations
interpreting such provisions. With respect to any payment pursuant to this Plan, the Executive
shall not have any discretion to designate the taxable year of payment. To the extent that any
provision of this Plan fails to satisfy those requirement or fails to be exempt from Section 409A,
the provision shall automatically be modified (notwithstanding anything to the contrary in this
Plan including Section 15) in a manner that, in the good-faith opinion of the Company, brings the
provision into compliance with those requirements while preserving as closely as possible the
original intent of the provision and this Plan.
(g)
Six-Month Delay for Specified Employees
. Where payment under this Plan is made to a
Specified Employee on account of separation from service, such payment shall commence no earlier
than six (6) months following separation from service if required to comply with section 409A of
the Code. On the first business day of the seventh month following the date of such Specified
Employees separation from service, the Specified Employee shall be paid the applicable amount
under Section 7 hereof in a single sum without interest.
8.
TAXES:
(a) Except as set forth below, in the event it shall be determined that any of an
Executives Payment(s) would be subject to the Excise Tax, then the Executive shall be entitled to
receive an additional payment (the Gross-Up Payment) in an amount such that, after payment by the
Executive of all taxes (and any interest and penalties imposed with respect thereto) and Excise Tax
imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to
the Excise Tax imposed upon such Executives Payments. Notwithstanding the foregoing provisions of
this Section 8(a), if it shall be determined that the Executive is entitled to the Gross-Up
Payment, but that the Parachute Value of all Payments does not exceed 110% of the Executives Safe
Harbor Amount, then no Gross-Up Payment shall be made to the Executive and the amounts payable
under this Plan shall be reduced so that the Parachute Value of all of such Executives Payments,
in the aggregate, equals the Executives Safe Harbor Amount. The reduction of the amounts payable
hereunder, if applicable, shall be made by first reducing the Executives Payments under Section
7(a), unless an alternative method of reduction is elected by the Executive, and in any event shall
be made in such a manner as to maximize the Value of all Payments actually made to the Executive.
For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under this
Plan (and no other Payments) shall be reduced. If the reduction of the amounts payable under this
Plan would not result in a reduction of the Parachute Value of all Payments to the Executives Safe
Harbor Amount, no amounts payable to such Executive under this Plan shall be reduced pursuant to
this Section 8(a) and the Gross-Up Payment shall be made to the Executive.
(b)
Determination By Accountant.
Subject to the provisions of Section 8(c)ii, all
determinations required to be made under this Section 8, including whether and when a Gross-Up
Payment to any Executive is required, the amount of such Gross-Up Payment and the assumptions to be
utilized in arriving at such determination, shall be made by the Corporations auditor or another
nationally recognized accounting firm appointed by the Corporation (the Accounting Firm). In the
event that the
Accounting Firm is serving as accountant or auditor for the individual, entity or
group effecting the Change of Control, the Executive may appoint another nationally recognized
accounting firm to make the determinations required hereunder (which accounting firm shall then be
referred to as the Accounting Firm hereunder). The Accounting Firm shall provide detailed
supporting calculations both to the Corporation and the Executive within 15 business days of the
receipt of notice from the Executive that there has been a Payment or such earlier time as is
requested by the Corporation. All fees and expenses of the Accounting Firm shall be borne solely
by the Corporation. Any Gross-Up Payment, as determined pursuant to this Section 8, shall be paid
by the Corporation to the applicable Executive within five days of the receipt of the Accounting
Firms determination provided that the Executive shall not have any discretion over the tax year in
which any payment pursuant to this Section 8(b) is made. Any determination by the Accounting Firm
shall be binding upon the Corporation and the applicable Executive. As a result of the uncertainty
in the application of Section 4999 of the Code at the time of the initial determination by the
Accounting Firm hereunder it is possible that Gross-Up Payments that will not have been made by the
Corporation should have been made (the Underpayment), consistent with the calculations required
to be made hereunder. In the event the Corporation exhausts its remedies pursuant to Section 8(c)
and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm
shall, within 15 days of receipt of notification from the Corporation, determine the amount of the
Underpayment that has occurred and any such Underpayment shall be promptly paid within five (5)
days of the Accounting Firms determination, by the Corporation to or for the benefit of the
Executive.
(c)
Notification Required.
The Executive shall notify the Corporation in writing of any claim
by the Internal Revenue Service that, if successful, would require the payment by the Corporation
of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than
10 business days after the Executive is informed in writing of such claim. The Executive shall
apprise the Corporation of the nature of such claim and the date on which such claim is requested
to be paid. The Executive shall not pay such claim prior to the expiration of the 30-day period
following the date on which the Executive gives such notice to the Corporation (or such shorter
period ending on the date that any payment of taxes with respect to such claim is due). If the
Corporation notifies the Executive in writing prior to the expiration of such period that it
desires to contest such claim, the Executive shall:
(i) Give the Corporation any information reasonably requested by the Corporation
relating to such claim,
(ii) Take such action in connection with contesting such claim as the Corporation
shall reasonably request in writing from time to time, including, without limitation,
accepting legal representation with respect to such claim by an attorney reasonably
selected by the Corporation,
(iii) Cooperate with the Corporation in good faith in order to effectively contest
such claim, and
(iv) Permit the Corporation to participate in any proceedings relating to such claim;
provided, however, that the Corporation shall bear and pay directly all costs and expenses
(including additional interest and penalties) incurred in connection with such contest and
shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax
or income tax, (including interest and penalties) imposed as a result of such
representation and payment of costs and expenses. Without limitation on the foregoing
provisions of this Section 8(c)ii, the Corporation shall control all proceedings taken in
connection with such contest and, at its sole discretion, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the applicable taxing
authority in respect of such claim and may, at its sole discretion, either direct the
Executive to pay the tax claimed and sue for a refund, or contest the claim in any
permissible manner, and the Executive agrees to prosecute such contest to a determination
before any administrative tribunal, in a court of initial jurisdiction and in one or more
appellate courts, as the Corporation shall determine;
provided, however
, that if the
Corporation directs the Executive to pay such claim and sue for a refund, the Corporation
shall pay the amount of such payment to the Executive, and shall indemnify and hold the
Executive harmless, on an after-tax basis, from any Excise Tax or income tax, (including
interest or penalties) imposed with respect to such payment or with respect to any imputed
income in connection with such payment; and
provided, further
that any extension of the
statute of limitations relating to payment of taxes for the taxable year of the Executive
with respect to which such contested amount is claimed to be due is limited solely to such
contested amount. Furthermore, the Corporations control of the contest shall be limited
to issues with respect to which a the Gross-Up Payment would be
payable hereunder and the Executive shall be entitled to settle or contest, as the case may
be, any other issue raised by the Internal Revenue Service or any other taxing authority.
(d)
Repayment.
If, after the receipt by the Executive of a Gross-Up Payment or an amount paid
by the Corporation pursuant to Section 8(c), the Executive becomes entitled to receive any refund
with respect to the Excise Tax to which such Gross-Up Payment relates or with respect to such
claim, the Executive shall (subject to the Corporations complying with the requirements of Section
8(c), if applicable,) promptly pay to the Corporation the amount of such refund (together with any
interest
paid or credited thereon after taxes applicable thereto). If, after the receipt by the
Executive of an amount paid by the Corporation pursuant to Section 8(c), a determination is made
that the Executive shall not be entitled to any refund with respect to such claim and the
Corporation does not notify the Executive in writing of its intent to contest such denial of refund
prior to the expiration of 30 days after such determination, then the Executive shall not be
required to repay such amount to the Corporation, but the amount of such payment shall offset, to
the extent thereof, the amount of Gross-Up Payment required to be paid.
(e)
Withholding.
Notwithstanding any other provision of this Section 8, the Corporation may,
in its sole discretion, withhold and pay over to the Internal Revenue Service or any other
applicable taxing authority, for the benefit of each Executive, all or any portion of any Gross-Up
Payment.
(f)
Definitions:
The following terms shall have the following meanings for purposes of this
Section 8.
Excise Tax shall mean the excise tax imposed by Section 4999 of the Code, together with any
interest or penalties imposed with respect to such excise tax.
Parachute Value of a Payment shall mean the present value as of the date of the change of
control for purposes of Section 280G of the Code of the portion of such Payment that constitutes a
parachute payment under Section 280G(b)(2), as determined by the Accounting Firm for purposes of
determining whether and to what extent the Excise Tax will apply to such Payment.
A Payment shall mean any payment or distribution in the nature of compensation (within the
meaning of Section 280G(b)(2) of the Code) to or for the benefit of an Executive, whether paid or
payable pursuant to this Plan or otherwise.
The Safe Harbor Amount of an Executive means 2.99 times the Executives base amount,
within the meaning of Section 280G(b)(3) of the Code.
Value of a Payment shall mean the economic present value of a Payment as of the date of the
change of control for purposes of Section 280G of the Code, as determined by the Accounting Firm
using the discount rate required by Section 280G(d)(4) of the Code.
(g)
Section 409A.
Notwithstanding anything to the contrary in this Section 8, in order to
comply with Section 409As requirement of a fixed time and form of payment, any payment herein
shall be made no later than the end of the Executives taxable year next following the Executives
taxable year in which the related taxes are remitted to the taxing authority or, if no taxes are to
be remitted, the end of the Executives taxable year next following the year in which the
applicable audit or litigation is completed.
9.
INDEMNIFICATION:
If litigation is brought to enforce or interpret any provision contained
herein, the Corporation or applicable subsidiary, to the extent permitted by applicable law and the
Corporations or subsidiarys Articles of Incorporation, as the case may be, shall indemnify each
Executive who is a party thereto for his reasonable attorneys fees and disbursements incurred in
such litigation, regardless of the outcome thereof, and shall pay interest on any money judgment
obtained by the Executive calculated at the Citibank, N.A. prime interest rate in effect from time
to time from the date that payment(s) to him should have been made under this Plan until the date
the payment(s) is made. Such attorneys fees and disbursements shall be paid within ten (10)
business days of receipt of documentation of the attorneys fees and disbursements as submitted by
the Executive within thirty (30) days of the Executives receipt of the invoice for such attorneys
fees and disbursements. Consistent with Section 409A, the Executive must make reasonable good faith
efforts to collect any payment due pursuant to this Plan but in dispute, including giving notice to
the Corporation or the applicable subsidiary within 90 days of the latest date upon which the
disputed payment could have been timely made, and if such payment is not made, the taking of
further enforcement measures within 180 days after such date.
10.
PAYMENT OBLIGATIONS ABSOLUTE:
Except as expressly provided in Section 14 and 15, the
Corporations or subsidiarys obligation to pay the Executive the benefits hereunder and to make
the arrangements provided herein shall be absolute and unconditional and shall not be affected by any circumstances, including,
without limitation, any set-off, counter-claim, recoupment, defense or other right which the
Corporation or any of its subsidiaries may have against him or anyone else. All amounts paid or
payable by the Corporation or one of its subsidiaries hereunder shall be paid without notice or
demand, unless expressly provided otherwise. Each and every payment made hereunder by the
Corporation or subsidiary shall be final and the Corporation or subsidiary will not seek to recover
all or any part of such payment(s) from the Executive or from whosoever may be entitled thereto,
for any reason whatsoever. No Executive shall be obligated to seek other employment in mitigation
of the amounts payable or arrangements made under any provision of this Plan, and the obtaining of
any such other employment shall in no event effect any reduction of the Corporations or
subsidiarys obligations to make the payments and arrangements required to be
made under this Plan.
The Corporation or applicable subsidiary may at the discretion of the Chief Executive Officer of
the Corporation enter into an irrevocable, third-party guarantee or similar agreement with a bank
or other institution with respect to the benefits payable to an Executive hereunder, which would
provide for the unconditional payment of such benefits by such third party upon presentment by an
Executive of his Certificate (and on such other conditions deemed necessary or desirable by the
Corporation or such subsidiary) at some specified time after termination of employment. Such
third-party guarantor shall have no liability for improper payment if it follows the instructions
of the Corporation or such subsidiary as provided in such Certificate and other documents required
to be presented under the agreement, unless the Corporation or such subsidiary, in a written
notice, has previously advised such third-party guarantor of the determination by its Board of
Directors of ineligibility of the Executive in accordance with Section 15.
11.
CONTINUING OBLIGATIONS:
It shall be a condition to the entitlement of an Executive to any
benefits under this Plan that he agree to retain in confidence any confidential information known
to him concerning the Corporation and its subsidiaries and their respective businesses as long as
such information is not publicly disclosed, except as required by law.
12.
SUCCESSORS:
(a) The benefits provided under this Plan are personal to the Executives and
without the prior written consent of the Corporation shall not be assignable by any Executive
otherwise than by will or the laws of descent and distribution. This Plan shall inure to the
benefit of and be enforceable by the Executives legal representatives.
(b) This Plan shall inure to the benefit of and be binding upon the Corporation and its
successors and assigns.
(c) The Corporation will 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 Corporation to assume expressly and agree to perform this Plan in the same manner and to the
same extent that the Corporation would be required to perform it if no such succession had taken
place. As used in this Plan, Corporation shall mean the Corporation as hereinbefore defined and
any other person or entity which assumes or agrees to perform this Plan by operation of law, or
otherwise.
13.
SEVERABILITY:
Any provision in this Plan which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent of such prohibition
or unenforceability without invalidating or affecting the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.
14.
OTHER PLANS AND AGREEMENTS:
Notwithstanding any provision herein to the contrary, in the
event the Executives employment with the Corporation or applicable subsidiary terminates and the
Executive is entitled to receive termination, separation or other like amounts from the Corporation
or any of its subsidiaries pursuant to any contract of employment, generally prevailing separation
pay policy, or other program of the Corporation or applicable subsidiary, all such amounts shall be
applied to and set off against the Corporations or applicable subsidiarys obligation set forth in
Section 7 of this Plan and provided that, consistent with the requirements of Section 409A and in
order to avoid any impermissible acceleration under this Plan, such amounts shall be paid in
accordance with the terms of the applicable contract, policy or program and the Executive shall not
have any discretion over the tax year in which any such set-off amount described in this Section 14
is made. Nothing in this Section 14 is intended to result in set-off of pension benefits,
supplemental executive retirement benefits, disability benefits, retiree benefits or any other plan
benefits not directly provided as termination or separation benefits.
15.
AMENDMENT AND TERMINATION:
This Plan may be amended or terminated by action of the Board.
This Plan shall terminate with respect to an Executive if the Chief Executive Officer of the
Corporation determines that the Executive is no longer a key executive to be provided a severance
agreement and so notifies the Executive by certified mail at least thirty (30) days before
participation in this Plan shall cease. Notwithstanding the foregoing, no such amendment,
termination or determination may be made, (and if made, shall have no effect) (i) during the period
of thirty-six months following any Change of Control or (ii) during any period of time when the
Corporation has knowledge that any third person has taken steps reasonably
calculated to effect a Change of Control, until such third person has abandoned or terminated his
efforts to effect a Change of Control as determined by the Board in good faith, but in its sole
discretion.
16.
GOVERNING LAW:
This Plan shall be governed by and construed in accordance with the laws
of the State of Delaware, without reference to principles of conflict of laws. The captions of
this Plan are not part of the provisions hereof and shall have no force or effect.
17.
ACCEPTANCE:
By acceptance of participation in this Plan, an Executive agrees to give a
minimum of four (4) weeks notice to the Corporation or any of its subsidiaries in the event of his
voluntary resignation.