As filed with the Securities and Exchange Commission
on September 9, 1997
Registration No. 33-_________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
VIAD CORP
(Exact name of registrant as specified in its charter)
Delaware 36-1169950
(State or other jurisdiction of (IRS Employer Identification
incorporation or organization) Number)
1850 North Central Avenue, Phoenix, Arizona 85004
(Address of Principal Executive Office including Zip Code)
1997 VIAD CORP OMNIBUS INCENTIVE PLAN, AS AMENDED
(Full title of plan)
Peter J. Novak
Vice President-General Counsel
Viad Corp
1850 North Central Avenue, Phoenix, Arizona 85004
(602) 207-4000
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE OF AMOUNT MAXIMUM MAXIMUM
SECURITIES TO BE OFFERING AGGREGATE AMOUNT OF
TO BE REGISTERED PRICE PER OFFERING REGISTRATION
REGISTERED (2) SHARE (3) PRICE (3) FEE
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Common 3,000,000 $18 3/8 $55,125,000 $16,704.55
Stock (1) shares
$1.50 par
value
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(1) This Registration Statement also pertains to Rights to
purchase shares of Junior Participating Preferred Stock of
the Registrant (the "Rights"). One Right is included with
each share of common stock. Until the occurrence of certain
prescribed events, the Rights are not exercisable, are
evidenced by the certificates for the Common Stock and will
be transferred along with and only with such securities.
Thereafter, separate Rights certificates will be issued
representing one Right for each share of Common Stock held,
subject to adjustment pursuant to antidilution provisions.
(2) Includes an indeterminate number of shares of Common Stock
that may be issuable by reason of stock splits, stock
dividends or similar transactions in accordance with Rule
416 under the Securities Act of 1933.
(3) The amounts are based upon the average of the high and low
sale prices for the Common Stock as reported on the New York
Stock Exchange on September 3, 1997, and are used solely for
the purpose of calculating the registration fee pursuant to
Rule 457(c) under the Securities Act of 1933.
PART I
INFORMATION REQUIRED IN PROSPECTUS
The information called for in Part I of Form S-8 is not
being filed with or included in this Form S-8 (by incorporation
by reference or otherwise) in accordance with the rules and
regulations of the Securities and Exchange Commission (the
"SEC").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed by Viad Corp (the
"Company") with the SEC pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act") are incorporated in this
Registration Statement by reference and shall be deemed to be a
part hereof:
1. The Annual Report on Form 10-K filed by the Company for
the year ended December 31, 1996.
2. The Company's Quarterly Reports on Form 10-Q for the
quarters ended March 31 and June 30, 1997.
3. The description of the Company's Common Stock contained
in the Company's Registration Statement on Form 8-B filed with
the SEC pursuant to Section 12 of the Exchange Act on February
25, 1992.
4. The description of the Company's Rights contained in
the Company's Registration Statement on Form 8-A filed with the
SEC pursuant to Section 12 of the Exchange Act on February 24,
1992.
In addition, all documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the
date of this registration statement and prior to the filing of a
post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all such
securities then remaining unsold, shall be deemed to be
incorporated in this registration statement by reference and to
be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this registration
statement to the extent that a statement contained herein or in
any subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute
a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the securities offered pursuant to this
Registration Statement has been passed upon for the Company by
Peter J. Novak, Vice President-General Counsel of the Company.
Mr. Novak owns, and has options to purchase, shares of Common
Stock of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Restated Certificate of Incorporation (the "Certificate
of Incorporation") of the Company provides that each person who
is or was or had agreed to become a director or officer of the
Company, or each such person who is or was serving or who had
agreed to serve at the request of the Board of Directors of the
Company or an officer of the Company as an employee or agent of
the Company or as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise (including the heirs, executors, administrators or
estate of such person), will be indemnified by the Company, in
accordance with the Bylaws, to the full extent permitted from
time to time by Delaware law, as the same exists or may hereafter
be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Company to provide broader
indemnification rights than said law permitted the Company to
provide prior to such amendment) or any other applicable laws as
presently or hereafter in effect. In addition, the Company may
enter into one or more agreements with any person providing for
indemnification greater or different than that provided in the
Certificate of Incorporation.
The Bylaws of the Company (the "Bylaws") provide that each
person who was or is made a party or is threatened to be made a
party to or is involved in any action, suit, or proceeding,
whether civil, criminal, administrative or investigative (a
"Proceeding"), by reason of the fact that he or she or a person
of whom he or she is the legal representative is or was a
director, officer or employee of the Company or is or was serving
at the request of the Company as a director, officer, employee or
agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such Proceeding is
alleged action in an official capacity as a director, officer,
employee or agent or in any other capacity while serving as a
director, officer, employee or agent, will be indemnified and
held harmless by the Company to the fullest extent authorized by
Delaware law as the same exists or may in the future be amended
(but, in the case of any such amendment, only to the extent that
such amendment permits the Company to provide broader
indemnification rights than said law permitted the Company to
provide prior to such amendment), against all expense, liability
and loss (including attorneys, fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid in settlement)
reasonably incurred or suffered by such person in connection
therewith and such indemnification will continue as to a person
who has ceased to be a director, officer, employee or agent and
will inure to the benefit of his or her heirs, executors and
administrators; however, except as described in the following
paragraph with respect to Proceedings to enforce rights to
indemnification, the Company will indemnify any such person
seeking indemnification in connection with a Proceeding (or part
thereof) initiated by such person only if such Proceeding (or
part thereof) was authorized by the Board of Directors of the
Company.
Pursuant to the Bylaws, if a claim described in the
preceding paragraph is not paid in full by the Company within
thirty days after a written claim has been received by the
Company, the claimant may at any time thereafter bring suit
against the Company to recover the unpaid amount of the claim,
and, if successful in whole or in part, the claimant will be
entitled to be paid also the expense of prosecuting such claims.
The Bylaws provide that it will be a defense to any such action
(other than an action brought to enforce a claim for expenses
incurred in defending any Proceeding in advance of its final
disposition where the required undertaking, if any is required,
has been tendered to the Company) that the claimant has not met
the standards of conduct which make it permissible under the
General Corporation Law of the State of Delaware (the "Delaware
Law") for the Company to indemnify the claimant for the amount
claimed, but the burden of proving such defense will be on the
Company. The Certificate of Incorporation and the Bylaws provide
that any such determination will be made by independent legal
counsel selected by the claimant, approved by the Board of
Directors of the Company (the "Board") (which approval may not be
unreasonably withheld) and retained by the Board on behalf of the
Company. Neither the failure of the Company (including the
Board, independent legal counsel or stockholders) to have made a
determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set
forth in the Delaware Law, nor an actual determination by the
Company (including the Board, independent legal counsel or
stockholders) that the claimant has not met such applicable
standard of conduct, will be a defense to the action or create a
presumption that the claimant has not met the applicable standard
of conduct.
The Bylaws provide that the right to indemnification and the
payment of expenses incurred in defending a Proceeding in advance
of its final disposition conferred in the Bylaws will not be
exclusive of any other right which any person may have or may in
the future acquire under any statute, provision of the
Certificate of Incorporation, the Bylaws, agreement, vote of
stockholders or disinterested directors or otherwise. The Bylaws
permit the Company to maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of
the Company or another corporation, partnership, joint venture,
trust or other enterprise against any expense, liability or loss,
whether or not the Company would have the power to indemnify such
person against such expense, liability or loss under the Delaware
Law. The Company has obtained directors and officers liability
insurance providing coverage to its directors and officers. In
addition, the Bylaws authorize the Company, to the extent
authorized from time to time by the Board, to grant rights to
indemnification, and rights to be paid by the Company the
expenses incurred in defending any Proceeding in advance of its
final disposition, to any agent of the Company to the fullest
extent of the provisions of the Bylaws with respect to the
indemnification and advancement of expenses of directors,
officers and employees of the Company.
The Bylaws provide that the right to indemnification
conferred therein is a contract right and includes the right to
be paid by the Company the expenses incurred in defending any
such Proceeding in advance of its final disposition, except that
if Delaware law requires, the payment of such expenses incurred
by a director or officer in his or her capacity as a director or
officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including,
without limitation, service to an employee benefit plan) in
advance of the final disposition of a Proceeding will be made
only upon delivery to the Company of an undertaking by or on
behalf of such director or officer to repay all amounts so
advanced if it is ultimately determined that such director or
officer is not entitled to be indemnified under the Bylaws or
otherwise.
The Company has entered into indemnification agreements with
each of the Company's directors. The indemnification agreements,
among other things, require the Company to indemnify the officers
and directors to the fullest extent permitted by law, and to
advance to the directors all related expenses, subject to
reimbursement if it is subsequently determined that
indemnification is not permitted. The Company must also
indemnify and advance all expenses incurred by directors seeking
to enforce their rights under the indemnification agreements, and
cover directors under the Company's directors' liability
insurance. Although the form of indemnification agreement offers
substantially the same scope of coverage afforded by provisions
in the Certificate of Incorporation and the Bylaws, it provides
greater assurance to directors that indemnification will be
available, because, as a contract, it cannot be modified
unilaterally in the future by the Board or by the stockholders to
eliminate the rights it provides, an action that is possible with
respect to the relevant provisions of the Bylaws, at least as to
prospective elimination of such rights.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
Exhibit
Number Description
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4.1 Restated Certificate of Incorporation of the
Registrant filed as Exhibit 3.A to Registrant's
1996 Form 10-K.*
4.2 Bylaws, as amended through February 20, 1997, of
the Registrant filed as Exhibit 3.B to
Registrant's 1996 Form 10-K.*
4.3 1997 Viad Corp Omnibus Incentive Plan, As Amended.
4.4 Rights Agreement dated as of February 15, 1992
between the Registrant and the Rights Agent named
therein filed as Exhibit 4.3 to Registrant's Form
S-3 Registration Statement for The Dial Corp#
Employee Equity Trust.*
5 Opinion of the Registrant's General Counsel as to
the legality of securities offered under the 1997
Viad Corp Omnibus Incentive Plan, As Amended.
23.1 Consent of Independent Auditors, Deloitte & Touche
LLP.
23.2 Consent of Counsel (contained in the Opinion of
the Registrant's General Counsel, Exhibit 5
hereto).
24 Power of Attorney (included on signature page of
this Registration Statement).
________________________
* Incorporated herein by reference.
# Viad Corp was previously named The Dial Corp.
ITEM 9. UNDERTAKINGS.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
Registration Statement (or the most recent post-
effective amendment thereof) which, individually, or in
the aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the Registration Statement or any material
change to such information in the Registration
Statement;
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The Registrant hereby undertakes that, for the purpose
of determining any liability under the Securities Act of 1933,
each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Registrant pursuant to
the foregoing provisions, or otherwise, the Registrant has been
informed that in the opinion of the SEC such indemnification is
against public policy as expressed in the Act and is therefore
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of
any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final
adjudication of such issue.
EXPERTS.
The financial statements incorporated in this Registration
Statement on Form S-8 by reference from the Company's Annual
Report on Form 10-K for the year ended December 31,1996, have
been audited by Deloitte & Touche LLP, independent auditors, as
stated in their report (which expresses an unqualified opinion
and includes an explanatory paragraph relating to the Company's
change in the method of accounting for impairment of long-lived
assets in 1995) which is incorporated herein by reference, and
have been so incorporated in reliance upon the report of such
firm given upon their authority as experts in accounting and
auditing.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to
believe it meets all of the requirements for filing on Form S-8
and has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Phoenix, and State of Arizona, on the 21st day of August,
1997.
VIAD CORP
By: /s/ Robert H. Bohannon
Chairman of the Board, President
and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby authorizes
and appoints Richard C. Stephan, as his attorney-in-fact, with
full power of substitution and resubstitution, to sign and file
on his or her behalf individually and in each such capacity
stated below any and all amendments and post-effective amendments
to this Registration Statement, as fully as such person could do
in person, hereby verifying and confirming all that said
attorney-in-fact, or his substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
SIGNATURES TITLE DATE
- ---------- ----- ----
Principal Executive Officer
/s/ Robert H. Bohannon Director; Chairman of the 8/21/97
Board, President and Chief
Executive Officer
Principal Financial Officer
/s/ Ronald G. Nelson Vice President-Finance 8/21/97
and Treasurer
Principal Accounting Officer
/s/ Richard C. Stephan Vice President-Controller 8/21/97
Directors
/s/ Jess Hay August 21, 1997
/s/ Judith K. Hofer August 21, 1997
/s/ Jack F. Reichert August 21, 1997
/s/ Linda Johnson Rice August 21, 1997
/s/ Douglas L. Rock August 21, 1997
/s/ Timothy R. Wallace August 21, 1997
Exhibit 4.3
1997 VIAD CORP OMNIBUS INCENTIVE PLAN, AS AMENDED
SECTION 1. PURPOSE; DEFINITIONS.
The purpose of the Plan is to give the Company a significant
advantage in attracting, retaining and motivating officers,
employees and directors and to provide the Company and its
subsidiaries with the ability to provide incentives more directly
linked to the profitability of the Company's businesses and
increases in stockholder value. It is the current intent of the
Committee that the Plan shall replace the 1992 Stock Incentive
Plan for purposes of new Awards and that the Viad Corp Management
Incentive Plan, the Viad Corp Performance Unit Incentive Plan,
and the Viad Corp Performance-Based Stock Plan continue under the
auspices of Sections 7 and 8 hereof subject to the discretion of
the Committee under the terms and conditions of this Plan.
For purposes of the Plan, the following terms are defined as
set forth below:
(a) "AFFILIATE" means a corporation or other entity
controlled by the Company and designated by the Committee as
such.
(b) "AWARD" means an award of Stock Appreciation Rights,
Stock Options, Restricted Stock or Performance-Based Awards.
(c) "AWARD CYCLE" will mean a period of consecutive fiscal
years or portions thereof designated by the Committee over which
Awards of Restricted Stock or Performance-Based Awards are to be
earned.
(d) "BOARD" means the Board of Directors of the Company.
(e) "CAUSE" means (1) the conviction of a participant for
committing a felony under federal law or the law of the state in
which such action occurred, (2) dishonesty in the course of
fulfilling a participant's employment duties or (3) willful and
deliberate failure on the part of a participant to perform his
employment duties in any material respect, or such other events
as will be determined by the Committee. The Committee will have
the sole discretion to determine whether "Cause" exists, and its
determination will be final.
(f) "CHANGE IN CONTROL" and "CHANGE IN CONTROL PRICE" have
the meanings set forth in Sections 9(b) and (c), respectively.
(g) "CODE" means the Internal Revenue Code of 1986, as
amended from time to time, and any successor thereto.
(h) "COMMISSION" means the Securities and Exchange
Commission or any successor agency.
(i) "COMMITTEE" means the Committee referred to in
Section 2.
(j) "COMMON STOCK" means common stock, par value $1.50 per
share, of the Company.
(k) "COMPANY" means Viad Corp, a Delaware corporation.
(l) "COMPANY UNIT" means any subsidiary, group of
subsidiaries, line of business or division of the Company, as
designated by the Committee.
(m) "DISABILITY" means permanent and total disability as
determined under procedures established by the Committee for
purposes of the Plan.
(n) "EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended from time to time, and any successor thereto.
(o) "FAIR MARKET VALUE" means, as of any given date, the
mean between the highest and lowest reported sales prices of the
Stock on the New York Stock Exchange Composite Tape or, if not
listed on such exchange, on any other national exchange on which
the Stock is listed or on the Nasdaq Stock Market. If there is
no regular public trading market for such Stock, the Fair Market
Value of the Stock will be determined by the Committee in good
faith. In connection with the administration of specific
sections of the Plan, and in connection with the grant of
particular Awards, the Committee may adopt alternative defi-
nitions of "Fair Market Value" as appropriate.
(p) "INCENTIVE STOCK OPTION" means any Stock Option
intended to be and designated as an "incentive stock option"
within the meaning of Section 422 of the Code.
(q) "MIP" means the Company's Management Incentive Plan
providing annual cash bonus awards to participating employees
based upon predetermined goals and objectives.
(r) "NET INCOME" means the consolidated net income of the
Company determined in accordance with GAAP before extraordinary,
unusual and other non-recurring items.
(s) "NON-EMPLOYEE DIRECTOR" means a member of the Board who
qualifies as a "Non-Employee Director" as defined in Rule
16b-3(b)(3), as promulgated by the Commission under the Exchange
Act, or any successor definition adopted by the Commission.
(t) "NON-QUALIFIED STOCK OPTION" means any Stock Option
that is not an Incentive Stock Option.
(u) "PERFORMANCE GOALS" means the performance goals estab-
lished by the Committee in connection with the grant of
Restricted Stock or Performance-Based Awards. In the case of
Qualified Performance-Based Awards, such goals (1) will be based
on the attainment of specified levels of one or more of the fol-
lowing measures with respect to the Company or any Company Unit,
as applicable: sales or revenues, costs or expenses, net profit
after tax, gross profit, operating profit, base earnings, return
on actual or pro forma equity or net assets or capital, net
capital employed, earnings per share, earnings per share from
continuing operations, operating income, operating income margin,
net income, stockholder return including performance (total
stockholder return) relative to the S&P 500 or similar index or
performance (total stockholder return) relative to the proxy
comparator group, in both cases as determined pursuant to Rule
402(l) of Regulation S-K promulgated under the Exchange Act, cash
generation, unit volume and change in working capital and (2)
will be set by the Committee within the time period prescribed by
Section 162(m) of the Code and related regulations.
(v) "PERFORMANCE-BASED AWARD" means an Award made pursuant
to Section 8.
(w) "PERFORMANCE-BASED RESTRICTED STOCK AWARD" has the
meaning set forth in Section 7(c)(1) hereof.
(x) "PLAN" means the 1997 Viad Corp Omnibus Incentive Plan,
As Amended, as set forth herein and as hereafter amended from
time to time.
(y) "PREFERRED STOCK" means preferred stock, par value
$0.01, of the Company.
(z) "QUALIFIED PERFORMANCE-BASED AWARDS" means an Award of
Restricted Stock or a Performance-Based Award designated as such
by the Committee at the time of grant, based upon a determination
that (1) the recipient is or may be a "covered employee" within
the meaning of Section 162(m)(3) of the Code in the year in which
the Company would expect to be able to claim a tax deduction with
respect to such Restricted Stock or Performance-Based Award and
(2) the Committee wishes such Award to qualify for the exemption
from the limitation on deductibility imposed by Section 162(m) of
the Code that is set forth in Section 162(m)(4)(C).
(aa) "RESTRICTED STOCK" means an award granted under
Section 7.
(bb) "RETIREMENT" means retirement from active employment
under a pension plan of the Company, any subsidiary or Affiliate,
or under an employment contract with any of them, or termination
of employment at or after age 55 under circumstances which the
Committee, in its sole discretion, deems equivalent to
retirement.
(cc) "RULE 16b-3" means Rule 16b-3, as promulgated by the
Commission under Section 16(b) of the Exchange Act, as amended
from time to time.
(dd) "STOCK" means the Common Stock or Preferred Stock.
(ee) "STOCK APPRECIATION RIGHT" means a right granted under
Section 6.
(ff) "STOCK OPTION" means an option granted under Section 5.
(gg) "TERMINATION OF EMPLOYMENT" means the termination of
the participant's employment with the Company and any subsidiary
or Affiliate. A participant employed by a subsidiary or an
Affiliate will also be deemed to incur a Termination of
Employment if the subsidiary or Affiliate ceases to be such a
subsidiary or Affiliate, as the case may be, and the participant
does not immediately thereafter become an employee of the Company
or another subsidiary or Affiliate. Transfers among the Company
and its subsidiaries and Affiliates, as well as temporary
absences from employment because of illness, vacation or leave of
absence, will not be considered a Termination of Employment.
In addition, certain other terms used herein have
definitions given to them in the first place in which they are
used.
SECTION 2. ADMINISTRATION.
The Plan will be administered by the Human Resources
Committee of the Board pursuant to authority delegated by the
Board in accordance with the Company's By-Laws. If at any time
there is no such Human Resources Committee or such Human
Resources Committee shall fail to be composed of at least two
directors each of whom is a Non-Employee Director and is an
"outside director" under Section 162(m)(4) of the Code, the Plan
will be administered by a Committee selected by the Board and
composed of not less than two individuals, each of whom is such a
Non-Employee Director and such an "outside director."
The Committee will have plenary authority to grant Awards
pursuant to the terms of the Plan to officers, employees and
directors of the Company and its subsidiaries and Affiliates, but
the Committee may not grant MIP Awards larger than the limits
provided in Section 3.
Among other things, the Committee will have the authority,
subject to the terms of the Plan:
(a) to select the officers, employees and directors to whom
Awards may from time to time be granted;
(b) to determine whether and to what extent Incentive Stock
Options, Non-Qualified Stock Options, Stock Appreciation Rights,
Restricted Stock and Performance-Based Awards or any combination
thereof are to be granted hereunder;
(c) to determine the number of shares of Stock or the
amount of cash to be covered by each Award granted hereunder;
(d) to determine the terms and conditions of any Award
granted hereunder (including, but not limited to, the option
price (subject to Section 5(a)), any vesting condition,
restriction or limitation (which may be related to the
performance of the participant, the Company or any subsidiary,
Affiliate or Company Unit) and any rule concerning vesting
acceleration or waiver of forfeiture regarding any Award and any
shares of Stock relating thereto, based on such factors as the
Committee will determine) provided, however, that the Committee
will have no power to accelerate the vesting, or waive the
forfeiture, regarding any Award and any shares of Stock relating
thereto, except in connection with a "change of control" of the
Company, the sale of a subsidiary or majority-owned affiliate of
the Company (and then only with respect to participants employed
by each such subsidiary or affiliate), the death or disability of
a participant or termination of employment of a participant, and,
further provided, however, that the Committee will have no power
to accelerate the vesting, or waive the forfeiture, of any
Qualified Performance-Based Awards;
(e) to modify, amend or adjust the terms and conditions, at
any time or from time to time, of any Award, including but not
limited to Performance Goals; provided, however, that the
Committee may not adjust upwards the amount payable with respect
to any Qualified Performance-Based Award or waive or alter the
Performance Goals associated therewith and provided, further,
however, that the Committee may not reprice Stock Options except
for an amount of Stock Options representing not more than 10% of
then outstanding Stock Options;
(f) to determine to what extent and under what
circumstances Stock and other amounts payable with respect to an
Award will be deferred; and
(g) to determine under what circumstances a Stock Option
may be settled in cash or Stock under Section 5(j).
The Committee will have the authority to adopt, alter or re-
peal such administrative rules, guidelines and practices
governing the Plan as it from time to time deems advisable, to
interpret the terms and provisions of the Plan and any Award
issued under the Plan (and any agreement relating thereto) and to
otherwise supervise the administration of the Plan.
The Committee may act only by a majority of its members then
in office, except that the members thereof may (1) delegate to
designated officers or employees of the Company such of its
powers and authorities under the Plan as it deems appropriate
(provided that no such delegation may be made that would cause
Awards or other transactions under the Plan to fail to be exempt
from Section 16(b) of the Exchange Act or that would cause
Qualified Performance-Based Awards to cease to so qualify) and
(2) authorize any one or more members or any designated officer
or employee of the Company to execute and deliver documents on
behalf of the Committee.
Any determination made by the Committee or pursuant to del-
egated authority pursuant to the provisions of the Plan with
respect to any Award will be made in the sole discretion of the
Committee or such delegates at the time of the grant of the Award
or, unless in contravention of any express term of the Plan, at
any time thereafter. All decisions made by the Committee or any
appropriately delegated officer(s) or employee(s) pursuant to the
provision of the Plan will be final and binding on all persons,
including the Company and Plan participants.
Notwithstanding anything to the contrary in the Plan, the
Committee will have the authority to modify, amend or adjust the
terms and conditions of any Award as appropriate in the event of
or in connection with any reorganization, recapitalization, stock
split, stock dividend, combination or exchange of shares, merger,
consolidation or any change in the capital structure of the
Company.
SECTION 3. STOCK SUBJECT TO PLAN AND LIMITS ON AWARDS.
(a) Subject to adjustment as provided herein, the number of
shares of Common Stock of the Company available for grant under
the Plan in each calendar year (including partial calendar years)
during which the Plan is in effect shall be equal to two percent
(2.0%) of the total number of shares of Common Stock of the
Company outstanding as of the first day of each such year for
which the Plan is in effect; provided that any shares available
for grant in a particular calendar year (or partial calendar
year) which are not, in fact, granted in such year shall be added
to the shares available for grant in any subsequent calendar
year.
(b) Subject to adjustment as provided herein, the number of
shares of Stock covered by Awards granted to any one participant
will not exceed 750,000 shares for any consecutive three-year
period and the aggregate dollar amount for Awards denominated
solely in cash will not exceed $7.5 million for any such period.
(c) In addition, and subject to adjustment as provided
herein, no more than 7.5 million shares of Common Stock will be
cumulatively available for the grant of Incentive Stock Options
over the life of the Plan.
(d) Shares subject to an option or award under the Plan may
be authorized and unissued shares or may be "treasury shares."
In the event of any merger, reorganization, consolidation, re-
capitalization, spin-off, stock dividend, stock split, extraor-
dinary distribution with respect to the Stock or other change in
corporate structure affecting the Stock, such substitution or
adjustments will be made in the aggregate number and kind of
shares reserved for issuance under the Plan, in the aggregate
limit on grants to individuals, in the number, kind, and option
price of shares subject to outstanding Stock Options and Stock
Appreciation Rights, in the number and kind of shares subject to
other outstanding Awards granted under the Plan and/or such other
equitable substitutions or adjustments as may be determined to be
appropriate by the Committee or the Board, in its sole
discretion; provided, however, that the number of shares subject
to any Award will always be a whole number.
(e) Awards under the MIP may not exceed in the case of (i)
the Company's Chief Executive Officer, one and one-half percent
(1.5%) of net income as defined; (ii) a president of any of the
Company's operating companies, whether or not incorporated, six-tenths of
one percent (0.6%) of net income as defined; and (iii) all other executive
officers of the Company individually, one-half of one percent (0.5%) of
net income as defined.
SECTION 4. ELIGIBILITY.
Officers, employees and directors of the Company, its
subsidiaries and Affiliates who are responsible for or contribute
to the management, growth and profitability of the business of
the Company, its subsidiaries and Affiliates are eligible to be
granted Awards under the Plan.
SECTION 5. STOCK OPTIONS.
Stock Options may be granted alone or in addition to other
Awards granted under the Plan and may be of two types: Incentive
Stock Options and Non-Qualified Stock Options. Any Stock Option
granted under the Plan will be in such form as the Committee may
from time to time approve.
The Committee will have the authority to grant any optionee
Incentive Stock Options, Non-Qualified Stock Options or both
types of Stock Options (in each case with or without Stock
Appreciation Rights). Incentive Stock Options may be granted
only to employees of the Company and its subsidiaries (within the
meaning of Section 424(f) of the Code). To the extent that any
Stock Option is not designated as an Incentive Stock Option or
even if so designated does not qualify as an Incentive Stock
Option, it will be deemed to be a Non-Qualified Stock Option.
Stock Options will be evidenced by option agreements, the
terms and provisions of which may differ. An option agreement
will indicate on its face whether it is an agreement for an
Incentive Stock Option or a Non-Qualified Stock Option. The
grant of a Stock Option will occur on the date the Committee by
resolution selects an individual to be a participant in any grant
of a Stock Option, determines the number of shares of Stock to be
subject to such Stock Option to be granted to such individual and
specifies the terms and provisions of the Stock Option. The
Company will notify a participant of any grant of a Stock Option,
and a written option agreement or agreements will be duly
executed and delivered by the Company to the participant.
Anything in the Plan to the contrary notwithstanding, no
term of the Plan relating to Incentive Stock Options will be
interpreted, amended or altered nor will any discretion or au-
thority granted under the Plan be exercised so as to disqualify
the Plan under Section 422 of the Code or, without the consent of
the optionee affected, to disqualify any Incentive Stock Option
under such Section 422.
Stock Options granted under the Plan will be subject to the
following terms and conditions and will contain such additional
terms and conditions as the Committee will deem desirable:
(a) OPTION PRICE. The option price per share of Stock pur-
chasable under a Stock Option will be determined by the Committee
and set forth in the option agreement, and will not be less than
the Fair Market Value of the Stock subject to the Stock Option on
the date of grant.
(b) OPTION TERM. The term of each Stock Option will be
fixed by the Committee, but no Incentive Stock Option may be
exercisable more than 10 years after the date the Incentive Stock
Option is granted.
(c) EXERCISABILITY. Except as otherwise provided herein,
Stock Options will be exercisable at such time or times and
subject to such terms and conditions as will be determined by the
Committee. If the Committee provides that any Stock Option is
exercisable only in installments, the Committee may, subject to
the provisions of Section 2(d) hereof, at any time waive such
installment exercise provisions, in whole or in part, based on
such factors as the Committee may determine. In addition, the
Committee may, subject to the provisions of Section 2(d) hereof,
at any time accelerate the exercisability of any Stock Option.
(d) METHOD OF EXERCISE. Subject to the provisions of this
Section 5, Stock Options may be exercised, in whole or in part,
at any time during the option term by giving written notice of
exercise to the Company specifying the number of shares of Stock
subject to the Stock Option to be purchased.
Such notice must be accompanied by payment in full of the
purchase price by certified or bank check or such other
instrument as the Company may accept. An option agreement may
provide that, if approved by the Committee, payment in full or in
part or payment of tax liability, if any, relating to such
exercise may also be made in the form of unrestricted Stock al-
ready owned by the optionee of the same class as the Stock sub-
ject to the Stock Option and, in the case of the exercise of a
Non-Qualified Stock Option, Restricted Stock subject to an Award
hereunder which is of the same class as the Stock subject to the
Stock Option (in both cases based on the Fair Market Value of the
Stock on the date the Stock Option is exercised); provided,
however, that, in the case of an Incentive Stock Option, the
right to make a payment in the form of already owned shares of
Stock of the same class as the Stock subject to the Stock Option
may be authorized only at the time the Stock Option is granted.
In addition, an option agreement may provide that, in the
discretion of the Committee, payment for any shares subject to a
Stock Option or tax liability associated therewith may also be
made by instruction to the Committee to withhold a number of such
shares having a Fair Market Value on the date of exercise equal
to the aggregate exercise price of such Stock Option.
If payment of the option exercise price of a Non-Qualified
Stock Option is made in whole or in part in the form of
Restricted Stock, the number of shares of Stock to be received
upon such exercise equal to the number of shares of Restricted
Stock used for payment of the option exercise price will be
subject to the same forfeiture restrictions to which such
Restricted Stock was subject, unless otherwise determined by the
Committee.
No shares of Stock will be issued until full payment
therefor has been made. Subject to any forfeiture restrictions
that may apply if a Stock Option is exercised using Restricted
Stock, an optionee will have all of the rights of a stockholder
of the Company holding the class or series of Stock that is
subject to such Stock Option (including, if applicable, the right
to vote the shares and the right to receive dividends), when the
optionee has given written notice of exercise, has paid in full
for such shares and, if requested, has given the representation
described in Section 12(a).
(e) NONTRANSFERABILITY OF STOCK OPTIONS. (1) No Stock
Option will be transferable by the optionee other than (A) by
will or by the laws of descent and distribution or (B) in the
case of a Non-Qualified Stock Option, pursuant to a qualified
domestic relations order (as defined in the Code or Title I of
the Employee Retirement Income Security Act of 1974, as amended,
or the rules thereunder). All Stock Options will be exercisable,
during the optionee's lifetime, only by the optionee or by the
guardian or legal representative of the optionee, it being
understood that the terms "holder" and "optionee" include the
guardian and legal representative of the optionee named in the
option agreement and any person to whom a Stock Option is
transferred by will or the laws of descent and distribution or
pursuant to a qualified domestic relations order.
(2) Notwithstanding Section 5(e)(1) above, the
Committee may grant Stock Options that are transferable, or amend
outstanding Stock Options to make them transferable, by the
optionee (any such Stock Option so granted or amended a
"Transferable Option") to one or more members of the optionee's
immediate family, to partnerships of which the only partners are
members of the optionee's immediate family, or to trusts
established by the optionee for the benefit of one or more
members of the optionee's immediate family. For this purpose the
term "immediate family" means the optionee's spouse, children or
grandchildren. Consideration may not be paid for the transfer of
a Transferable Option. A transferee described in this Section
5(e)(2) shall be subject to all terms and conditions applicable
to the Transferable Option prior to its transfer. The option
agreement with respect to a Transferable Option shall set forth
its transfer restrictions, such option agreement shall be
approved by the Committee, and only Stock Options granted pursu-
ant to a stock option agreement expressly permitting transfer
pursuant to this Section 5(e)(2) shall be so transferable.
(f) TERMINATION BY DEATH. If an optionee's employment
terminates by reason of death, any Stock Option held by such
optionee may thereafter be exercised, to the extent then
exercisable, or on such accelerated basis as the Committee may
determine, for a period of one year (or such other period as the
Committee may specify in the option agreement) from the date of
such death or until the expiration of the stated term of such
Stock Option, whichever period is the shorter.
(g) TERMINATION BY REASON OF DISABILITY. If an optionee's
employment terminates by reason of Disability, any Stock Option
held by such optionee may thereafter be exercised by the
optionee, to the extent it was exercisable at the time of
termination, or on such accelerated basis as the Committee may
determine, for a period of three years (or such shorter period
as the Committee may specify in the option agreement) from the
date of such termination of employment or until the expiration of
the stated term of such Stock Option, whichever period is the
shorter; provided, however, that if the optionee dies within such
three-year period (or such shorter period), any unexercised Stock
Option held by such optionee will, notwithstanding the expiration
of such three-year (or such shorter) period, continue to be exer-
cisable to the extent to which it was exercisable at the time of
death for a period of 12 months from the date of such death or
until the expiration of the stated term of such Stock Option,
whichever period is the shorter. In the event of termination of
employment by reason of Disability, if an Incentive Stock Option
is exercised after the expiration of the exercise periods that
apply for purposes of Section 422 of the Code, such Stock Option
will thereafter be treated as a Non-Qualified Stock Option.
(h) TERMINATION BY REASON OF RETIREMENT. If an optionee's
employment terminates by reason of Retirement, any Stock Option
held by such optionee may thereafter be exercised by the
optionee, to the extent it was exercisable at the time of
termination, or on such accelerated basis as the Committee may
determine, for a period of five years (or such shorter period as
the Committee may specify in the option agreement) from the date
of such termination of employment or until the expiration of the
stated term of such Stock Option, whichever period is the
shorter; provided, however, that if the optionee dies within such
five-year period (or such shorter period), any unexercised Stock
Option held by such optionee will, notwithstanding such five-year
(or such shorter) period, continue to be exercisable to the
extent to which it was exercisable at the time of death for a pe-
riod of 12 months from the date of such death or until the
expiration of the stated term of such Stock Option, whichever
period is the shorter. In the event of termination of employment
by reason of Retirement, if an Incentive Stock Option is
exercised after the expiration of the exercise periods that apply
for purposes of Section 422 of the Code, such Stock Option will
thereafter be treated as a Non-Qualified Stock Option.
(i) OTHER TERMINATION. Unless otherwise determined by the
Committee, if an optionee incurs a Termination of Employment for
any reason other than death, Disability or Retirement or Cause,
any Stock Option held by such optionee will thereupon terminate,
except that such Stock Option, to the extent then exercisable, or
subject to the provisions of Section 2(d) hereof, on such
accelerated basis as the Committee may determine, may be
exercised for the lesser of three months from the date of such
Termination of Employment or the balance of such Stock Option's
term; provided, however, that if the optionee dies within such
three-month period, any unexercised Stock Option held by such
optionee will, notwithstanding the expiration of such three-month
period, continue to be exercisable to the extent to which it was
exercisable at the time of death for a period of 12 months from
the date of such death or until the expiration of the stated term
of such Stock Option, whichever period is the shorter. In the
event of Termination of Employment, if an Incentive Stock Option
is exercised after the expiration of the exercise periods that
apply for purposes of Section 422 of the Code, such Stock Option
will thereafter be treated as a Non-Qualified Stock Option.
(j) CASHING OUT OF STOCK OPTION. On receipt of written
notice of exercise, the Committee may elect to cash out all or
part of the shares of Stock for which a Stock Option is being
exercised by paying the optionee an amount, in cash or Stock,
equal to the excess of the Fair Market Value of the Stock over
the option price times the number of shares of Stock for which
the Option is being exercised on the effective date of such
cash-out.
(k) CHANGE IN CONTROL CASH-OUT. Subject to Section 12(h),
but notwithstanding any other provision of the Plan, during the
60-day period from and after a Change in Control (the "Exercise
Period"), unless the Committee determines otherwise at the time
of grant, an optionee will have the right, whether or not the
Stock Option is fully exercisable and in lieu of the payment of
the exercise price for the shares of Stock being purchased under
the Stock Option and by giving notice to the Company, to elect
(within the Exercise Period) to surrender all or part of the
Stock Option to the Company and to receive cash, within 30 days
of such notice, in an amount equal to the amount by which the
Change in Control Price per share of Stock on the date of such
election will exceed the exercise price per share of Stock under
the Stock Option (the "Spread") multiplied by the number of
shares of Stock granted under the Stock Option as to which the
right granted under this Section 5(k) will have been exercised.
SECTION 6. STOCK APPRECIATION RIGHTS.
(a) GRANT AND EXERCISE. Stock Appreciation Rights may be
granted in conjunction with all or part of any Stock Option
granted under the Plan. In the case of a Non-Qualified Stock
Option, such rights may be granted either at or after the time of
grant of such Stock Option. In the case of an Incentive Stock
Option, such rights may be granted only at the time of grant of
such Stock Option. A Stock Appreciation Right will terminate and
no longer be exercisable upon the termination or exercise of the
related Stock Option.
A Stock Appreciation Right may be exercised by an optionee
in accordance with Section 6(b) by surrendering the applicable
portion of the related Stock Option in accordance with procedures
established by the Committee. Upon such exercise and surrender,
the optionee will be entitled to receive an amount determined in
the manner prescribed in Section 6(b). Stock Options which have
been so surrendered will no longer be exercisable to the extent
the related Stock Appreciation Rights have been exercised.
(b) TERMS AND CONDITIONS. Stock Appreciation Rights will
be subject to such terms and conditions as will be determined by
the Committee, including the following:
(1) Stock Appreciation Rights will be exercisable only
at such time or times and to the extent that the Stock
Options to which they relate are exercisable in accordance
with the provisions of Section 5 and this Section 6;
(2) Upon the exercise of a Stock Appreciation Right,
an optionee will be entitled to receive an amount in cash,
shares of Stock or both equal in value to the excess of the
Fair Market Value of one share of Stock as of the date of
exercise over the option price per share specified in the
related Stock Option multiplied by the number of shares in
respect of which the Stock Appreciation Right has been exer-
cised, with the Committee having the right to determine the
form of payment;
(3) Stock Appreciation Rights will be transferable
only to permitted transferees of the underlying Stock Option
in accordance with Section 5(e).
SECTION 7. RESTRICTED STOCK.
(a) ADMINISTRATION. Shares of Restricted Stock may be
awarded either alone or in addition to other Awards granted under
the Plan. The Committee will determine the individuals to whom
and the time or times at which grants of Restricted Stock will be
awarded, the number of shares to be awarded to any participant,
the conditions for vesting, the time or times within which such
Awards may be subject to forfeiture and any other terms and con-
ditions of the Awards, in addition to those contained in Section
7(c).
(b) AWARDS AND CERTIFICATES. Shares of Restricted Stock
will be evidenced in such manner as the Committee may deem
appropriate, including book-entry registration or issuance of one
or more stock certificates. Except as otherwise set forth in a
Restricted Stock Agreement, any certificate issued in respect of
shares of Restricted Stock will be registered in the name of such
participant and will bear an appropriate legend referring to the
terms, conditions, and restrictions applicable to such Award,
substantially in the following form:
"The transferability of this certificate and the shares of
stock represented hereby are subject to the terms and con-
ditions (including forfeiture) of the 1997 Incentive Plan
and a Restricted Stock Agreement. Copies of such Plan and
Agreement are on file at the offices of Viad Corp, Viad
Tower, Phoenix, Arizona."
The Committee may require that the certificates evidencing such
shares be held in custody by the Company until the restrictions
thereon have lapsed and that, as a condition of any Award of
Restricted Stock, the participant has delivered a stock power,
endorsed in blank, relating to the Stock covered by such Award.
(c) TERMS AND CONDITIONS. Shares of Restricted Stock will
be subject to the following terms and conditions:
(1) The Committee may, prior to or at the time of
grant, designate an Award of Restricted Stock as a Qualified
Performance-Based Award, in which event it will condition
the grant or vesting, as applicable, of such Restricted
Stock upon the attainment of Performance Goals. If the Com-
mittee does not designate an Award of Restricted Stock as a
Qualified Performance-Based Award, it may also condition the
grant or vesting thereof upon the attainment of Performance
Goals or such other performance-based criteria as the
Committee shall establish (such an Award, a "Performance-Based
Restricted Stock Award"). Regardless of whether an
Award of Restricted Stock is a Qualified Performance-Based
Award or a Performance-Based Restricted Stock Award, the
Committee may also condition the grant or vesting upon the
continued service of the participant. The provisions of Re-
stricted Stock Awards (including the conditions for grant or
vesting and any applicable Performance Goals) need not be
the same with respect to each recipient. The Committee may
at any time, in its sole discretion, subject to the
provisions of Section 7(c)(10), accelerate or waive, in
whole or in part, any of the foregoing restrictions;
provided, however, that in the case of Restricted Stock that
is a Qualified Performance-Based Award, the applicable
Performance Goals have been satisfied.
(2) Subject to the provisions of the Plan and the
Restricted Stock Agreement referred to in Section 7(c)(8),
during the period set by the Committee, commencing with the
date of such Award for which such participant's continued
service is required (the "Restriction Period") and until the
later of (A) the expiration of the Restriction Period and
(B) the date the applicable Performance Goals (if any) are
satisfied, the participant will not be permitted to sell,
assign, transfer, pledge or otherwise encumber shares of
Restricted Stock.
(3) Except as provided in this paragraph (3) and
Sections 7(c)(1) and (2) and the Restricted Stock Agreement,
the participant will have, with respect to the shares of Re-
stricted Stock, all of the rights of a stockholder of the
Company holding the class or series of Stock that is the
subject of the Restricted Stock, including, if applicable,
the right to vote the shares and the right to receive any
dividends. If so determined by the Committee in the ap-
plicable Restricted Stock Agreement and subject to Section
12(f) of the Plan, (A) dividends consisting of cash, stock
or other property (other than Stock) on the class or series
of Stock that is the subject of the Restricted Stock shall
be automatically deferred and reinvested in additional
Restricted Stock (in the case of stock or other property,
based on the fair market value thereof, and the Fair Market
Value of the Stock, in each case as of the record date for
the dividend) held subject to the vesting of the underlying
Restricted Stock, or held subject to meeting any Performance
Goals applicable to the underlying Restricted Stock, and (B)
dividends payable in Stock shall be paid in the form of
Restricted Stock of the same class as the Stock with which
such dividend was paid and shall be held subject to the
vesting of the underlying Restricted Stock, or held subject
to meeting any Performance Goals applicable to the
underlying Restricted Stock.
(4) Except to the extent otherwise provided in the
applicable Restricted Stock Agreement, Section 7(c)(1),
7(c)(2), 7(c)(5) or 9(a)(2), upon a participant's Termi-
nation of Employment for any reason during the Restriction
Period or before any applicable Performance Goals are met,
all shares still subject to restriction will be forfeited by
the participant.
(5) Except to the extent otherwise provided in Section
9(a)(2) and Sections 7(c)(9) and (10), in the event that a
participant retires or such participant's employment is
involuntarily terminated (other than for Cause), the Commit-
tee will have the discretion to waive in whole or in part
any or all remaining restrictions (other than, in the case
of Restricted Stock which is a Qualified Performance-Based
Award, satisfaction of the applicable Performance Goals
unless the participant's employment is terminated by reason
of death or Disability) with respect to any or all of such
participant's shares of Restricted Stock.
(6) Except as otherwise provided herein or as required
by law, if and when any applicable Performance Goals are
satisfied and the Restriction Period expires without a prior
forfeiture of the Restricted Stock, unlegended certificates
for such shares will be delivered to the participant upon
surrender of legended certificates.
(7) Awards of Restricted Stock, the vesting of which
is not conditioned upon the attainment of Performance Goals
or other performance-based criteria, is limited to twenty
percent (20%) of the number of shares of Common Stock of the
Corporation available for grant under the Plan in each
calendar year.
(8) Each Award will be confirmed by, and be subject to
the terms of, a Restricted Stock Agreement.
(9) Performance-Based Restricted Stock will be subject
to a minimum one-year performance period and Restricted
Stock which is not performance-based will be subject to a
minimum three-year vesting period.
(10) There will be no vesting acceleration, or waiver
of forfeiture regarding any Award and any shares of Stock
relating thereto, except in connection with a "change of
control" of the Company, the sale of a subsidiary or
majority-owned affiliate of the Company (and then only with
respect to participants employed by each subsidiary or
affiliate), the death or disability of a participant, or
termination of employment of a participant.
SECTION 8. PERFORMANCE-BASED AWARDS.
(a) ADMINISTRATION. Performance-Based Awards may be award-
ed either alone or in addition to other Awards granted under the
Plan. Subject to the terms and conditions of the Plan, the
Committee shall determine the officers and employees to whom and
the time or times at which Performance-Based Awards will be
awarded, the number or amount of Performance-Based Awards to be
awarded to any participant, whether such Performance-Based Award
shall be denominated in a number of shares of Stock, an amount of
cash, or some combination thereof, the duration of the Award
Cycle and any other terms and conditions of the Award, in
addition to those contained in Section 8(b).
(b) TERMS AND CONDITIONS. Performance-Based Awards will be
subject to the following terms and conditions:
(1) The Committee may, prior to or at the time of the
grant, designate Performance-Based Awards as Qualified
Performance-Based Awards, in which event it will condition
the settlement thereof upon the attainment of Performance
Goals. If the Committee does not designate Performance-Based Awards as
Qualified Performance-Based Awards, it may also condition the
settlement thereof upon the attainment of Performance Goals or such
other performance-based criteria as the Committee shall establish.
Regardless of whether Performance-Based Awards are Qualified
Performance-Based Awards, the Committee may also condition the
settlement thereof upon the continued service of the participant. The
provisions of such Performance-Based Awards (including
without limitation any applicable Performance Goals) need
not be the same with respect to each recipient. Subject to
the provisions of the Plan and the Performance-Based Award
Agreement referred to in Section 8(b)(5), Performance-Based
Awards may not be sold, assigned, transferred, pledged or
otherwise encumbered during the Award Cycle.
(2) Unless otherwise provided by the Committee (A)
from time to time pursuant to the administration of
particular Award programs under this Section 8, such as the
Viad Corp Management Incentive Plan, the Viad Corp
Performance Unit Incentive Plan or the Viad Corp
Performance-Based Stock Plan or (B) in any agreement
relating to an Award, and except as provided in Section
8(b)(3), upon a participant's Termination of Employment for
any reason prior to the payment of an Award under this
Section 8, all rights to receive cash or Stock in settlement
of the Award shall be forfeited by the participant.
(3) In the event that a participant's employment is
terminated (other than for Cause), or in the event a par-
ticipant retires, the Committee shall have the discretion to
waive, in whole or in part, any or all remaining payment
limitations (other than, in the case of Awards that are
Qualified Performance-Based Awards, satisfaction of the
applicable Performance Goals unless the participant's
employment is terminated by reason of death or Disability)
with respect to any or all of such participant's Awards.
(4) At the expiration of the Award Cycle, the Com-
mittee will evaluate the Company's performance in light of
any Performance Goals for such Award, and will determine the
extent to which a Performance-Based Award granted to the
participant has been earned, and the Committee will then
cause to be delivered to the participant, as specified in
the grant of such Award: (A) a number of shares of Stock
equal to the number of shares determined by the Committee to
have been earned or (B) cash equal to the amount determined
by the Committee to have been earned or (C) a combination of
shares of Stock and cash if so specified in the Award.
(5) No Performance-Based Award may be assigned,
transferred, or otherwise encumbered except, in the event of
the death of a participant, by will or the laws of descent
and distribution.
(6) Each Award will be confirmed by, and be subject
to, the terms of a Performance-Based Award Agreement.
(7) Performance-Based Awards will be subject to a
minimum one-year performance period.
SECTION 9. CHANGE IN CONTROL PROVISIONS.
(a) IMPACT OF EVENT. Notwithstanding any other provision
of the Plan to the contrary, in the event of a Change in Control:
(1) Any Stock Options and Stock Appreciation Rights
outstanding as of the date such Change in Control is
determined to have occurred and not then exercisable and
vested will become fully exercisable and vested to the full
extent of the original grant;
(2) The restrictions and conditions to vesting
applicable to any Restricted Stock will lapse, and such Re-
stricted Stock will become free of all restrictions and
become fully vested and transferable to the full extent of
the original grant;
(3) Performance-Based Awards will be considered to be
earned and payable to the extent, if any, and in an amount,
if any, and otherwise, in accordance with the provisions of
the agreement relating to such Awards.
(b) DEFINITION OF CHANGE IN CONTROL. For purposes of the
Plan, a "Change in Control" will mean the happening of any of the
following events:
(1) An acquisition by any 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
twenty percent (20%) or more of either (A) the then outstanding
shares of common stock of the Company (the "Outstanding Company
Common Stock") or (B) the combined voting power of the then
outstanding voting securities of the Company entitled to vote
generally in the election of directors (the "Outstanding Company
Voting Securities"); excluding, however, the following: (i) any
acquisition directly from the Company, 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
Company, (ii) any acquisition by the Company, (iii) any
acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation
controlled by the Company or (iv) any acquisition by any
corporation pursuant to a transaction which complies with clauses
(A), (B) and (C) of subsection (3) of this Section 9(b); or
(2) A change in the composition of the Board such that
the individuals who, as of February 20, 1997, constitute the
Board (such Board will 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 9(b), that any individual who becomes a member of the
Board subsequent to February 20, 1997, whose election, or nomi-
nation for election by the Company's stockholders, 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) will be
considered as though such individual were a member of the Incum-
bent 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 will not be so
considered as a member of the Incumbent Board; or
(3) The approval by the stockholders of the Company of
a reorganization, merger or consolidation or sale or other
disposition of all or substantially all of the assets of the
Company ("Corporate Transaction") (or, if consummation of such
Corporate Transaction is subject, at the time of such approval by
stockholders, to the consent of any government or governmental
agency, the earlier of the obtaining of such consent or the
consummation of the Corporate Transaction); excluding, however,
such a Corporate Transaction pursuant to which (A) all or
substantially all of the individuals and entities who are the
beneficial owners, respectively, of the Outstanding Company
Common Stock and Outstanding Company Voting Securities
immediately prior to such Corporate Transaction will beneficially
own, directly or indirectly, more than sixty percent (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 resulting from such Corporate
Transaction (including, without limitation, a corporation which
as a result of such transaction owns the Company or all or
substantially all of the Company's 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 Company Common Stock
and Outstanding Company Voting Securities, as the case may be,
(B) no Person (other than the Company, any employee benefit plan
(or related trust) of the Company or such corporation resulting
from such Corporate Transaction) will beneficially own, directly
or indirectly, twenty percent (20%) or more of, respectively, the
outstanding shares of common stock of the corporation resulting
from such Corporate Transaction or the combined voting power of
the outstanding voting securities of such corporation entitled to
vote generally in the election of directors except to the extent
that such ownership existed prior to the Corporate Transaction
and (C) 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; or
(4) The approval by the stockholders of the Company of
a complete liquidation or dissolution of the Company.
(c) CHANGE IN CONTROL PRICE. For purposes of the Plan,
"Change in Control Price" means the higher of (1) the highest
reported sales price, regular way, of a share of Stock in any
transaction reported on the New York Stock Exchange Composite
Tape or other national exchange on which such shares are listed
or on The Nasdaq Stock Market during the 60-day period prior to
and including the date of a Change in Control or (2) if the
Change in Control is the result of a tender or exchange offer or
a Corporate Transaction, the highest price per share of Stock
paid in such tender or exchange offer or Corporate Transaction;
provided, however, that in the case of Incentive Stock Options
and Stock Appreciation Rights relating to Incentive Stock
Options, the Change in Control Price will be in all cases the
Fair Market Value of the Stock on the date such Incentive Stock
Option or Stock Appreciation Right is exercised. To the extent
that the consideration paid in any such transaction described
above consists all or in part of securities or other non-cash
consideration, the value of such securities or other non-cash
consideration will be determined in the sole discretion of the
Board.
SECTION 10. TERM, AMENDMENT AND TERMINATION.
The Plan will terminate May 31, 2007, but may be terminated
sooner at any time by the Board, provided that no Incentive Stock
Options shall be granted under the Plan after February 19, 2007.
Awards outstanding as of the date of any such termination will
not be affected or impaired by the termination of the Plan.
The Board may amend, alter, or discontinue the Plan, but no
amendment, alteration or discontinuation will be made which
would (a) impair the rights of an optionee under a Stock Option
or a recipient of a Stock Appreciation Right, Restricted Stock
Award or Performance-Based Award theretofore granted without the
optionee's or recipient's consent, except such an amendment which
is necessary to cause any Award or transaction under the Plan to
qualify, or to continue to qualify, for the exemption provided by
Rule 16b-3, or (b) disqualify any Award or transaction under the
Plan from the exemption provided by Rule 16b-3. In addition, no
such amendment may be made without the approval of the Company's
stockholders to the extent such approval is required by law or
agreement.
The Committee may amend the terms of any Stock Option or
other Award theretofore granted, prospectively or retroactively,
but no such amendment will (1) impair the rights of any holder
without the holder's consent except such an amendment which is
necessary to cause any Award or transaction under the Plan to
qualify, or to continue to qualify, for the exemption provided by
Rule 16b-3 or (2) amend any Qualified Performance-Based Award in
such a way as to cause it to cease to qualify for the exemption
set forth in Section 162(m)(4)(C). The Committee may also
substitute new Stock Options for previously granted Stock
Options, including previously granted Stock Options having higher
option prices; provided, however, that the Committee may take
such action only with respect to Stock Options representing not
more than 10% of then outstanding Stock Options.
Subject to the above provisions, the Board will have
authority to amend the Plan to take into account changes in law
and tax and accounting rules, as well as other developments and
to grant Awards which qualify for beneficial treatment under such
rules without stockholder approval.
SECTION 11. UNFUNDED STATUS OF PLAN.
It is presently intended that the Plan constitute an
"unfunded" plan for incentive and deferred compensation. The
Committee may authorize the creation of trusts or other arrange-
ments to meet the obligations created under the Plan to deliver
Stock or make payments; provided, however, that, unless the Com-
mittee otherwise determines, the existence of such trusts or
other arrangements is consistent with the "unfunded" status of
the Plan.
SECTION 12. GENERAL PROVISIONS.
(a) The Committee may require each person purchasing or
receiving shares pursuant to an Award to represent to and agree
with the Company in writing that such person is acquiring any
shares without a view to the distribution thereof. The
certificates for such shares may include any legend which the
Committee deems appropriate to reflect any restrictions on trans-
fer.
All certificates for shares of Stock or other securities
delivered under the Plan will be subject to such stock transfer
orders and other restrictions as the Committee may deem advisable
under the rules, regulations and other requirements of the
Commission, any stock exchange upon which the Stock is then
listed and any applicable federal or state securities law, and
the Committee may cause a legend or legends to be put on any such
certificates to make appropriate reference to such restrictions.
Notwithstanding any other provision of the Plan or
agreements made pursuant thereto, the Company shall not be re-
quired to issue or deliver any certificate or certificates for
shares of Stock under the Plan prior to fulfillment of all of the
following conditions:
(1) Listing or approval for listing upon notice of
issuance, of such shares on the New York Stock Exchange,
Inc., or such other securities exchange as may at the time
be the principal market for the Stock;
(2) Any registration or other qualification of such
shares of the Company under any state or federal law or
regulation, or the maintaining in effect of any such
registration or other qualification which the Committee
shall, in its absolute discretion upon the advice of
counsel, deem necessary or advisable; and
(3) Obtaining any other consent, approval, or permit
from any state or federal governmental agency which the
Committee shall, in its absolute discretion after receiving
the advice of counsel, determine to be necessary or
advisable.
(b) Nothing contained in the Plan will prevent the Company
or any subsidiary or Affiliate from adopting other or additional
compensation arrangements for its employees.
(c) The adoption of the Plan will not confer upon any
employee any right to continued employment nor will it interfere
in any way with the right of the Company or any subsidiary or
Affiliate to terminate the employment of any employee at any
time.
(d) No later than the date as of which an amount first
becomes includible in the gross income of the participant for
Federal income tax purposes with respect to any Award under the
Plan, the participant will pay to the Company, or make
arrangements satisfactory to the Company regarding the payment
of, any federal, state, local or foreign taxes of any kind
required by law to be withheld with respect to such amount. Un-
less otherwise determined by the Company, withholding obligations
may be settled with Stock, including Stock that is part of the
Award that gives rise to the withholding requirement. The
obligations of the Company under the Plan will be conditional on
such payment or arrangements, and the Company and its Affiliates
will, to the extent permitted by law, have the right to deduct
any such taxes from any payment otherwise due to the participant.
The Committee may establish such procedures as it deems
appropriate, including the making of irrevocable elections, for
the settlement of withholding obligations with Stock.
(e) At the time of grant, the Committee may provide in
connection with any grant made under the Plan that the shares of
Stock received as a result of such grant will be subject to a
right of first refusal pursuant to which the participant will be
required to offer to the Company any shares that the participant
wishes to sell at the then Fair Market Value of the Stock, sub-
ject to such other terms and conditions as the Committee may
specify at the time of grant.
(f) The reinvestment of dividends in additional Restricted
Stock at the time of any dividend payment will only be
permissible if sufficient shares of Stock are available under
Section 3 for such reinvestment (taking into account then
outstanding Stock Options and other Awards).
(g) The Committee will establish such procedures as it
deems appropriate for a participant to designate a beneficiary to
whom any amounts payable in the event of the participant's death
are to be paid or by whom any rights of the participant, after
the participant's death, may be exercised.
(h) Notwithstanding any other provision of the Plan or any
agreement relating to any Award hereunder, if any right granted
pursuant to this Plan would make a Change in Control transaction
ineligible for pooling-of-interests-accounting under APB No. 16
that, but for the nature of such grant, would otherwise be
eligible for such accounting treatment, the Committee will have
the ability, in its sole discretion, to substitute for the cash
payable pursuant to such grant Common Stock with a Fair Market
Value equal to the cash that would otherwise be payable
hereunder.
(i) The Plan and all Awards made and actions taken
thereunder will be governed by and construed in accordance with
the laws of the State of Delaware.
SECTION 13. EFFECTIVE DATE OF PLAN.
The Plan will be effective on the later of (a) the time it
is approved by the Board and (b) the time certain provisions of
the Plan are approved by stockholders for tax purposes.
SECTION 14. DIRECTOR STOCK OPTIONS.
(a) Each director of the Company who is not otherwise an
employee of the Company or any of its subsidiaries or Affiliates,
will (1) on the date of his or her first election as a director
of the Company (such initial grant being an "Initial Grant"), and
(2) annually on the third Thursday of August, during such
director's term (the "Annual Grant"), automatically be granted
Non-Qualified Stock Options to purchase Common Stock having an
exercise price per share of Common Stock equal to 100% of Fair
Market Value per share of Common Stock at the date of grant of
such Non-Qualified Stock Option. The number of shares subject to
each such Initial Grant, and each such Annual Grant, will be
equal to the annual retainer fee in effect at the date of grant
for non-employee directors of the Company divided by an amount
equal to one-third (1/3) of the Fair Market Value of the Common
Stock at the date of grant, rounded to the nearest 100 shares. A
non-employee director who is first elected as a director of the
Company during the course of a year (i.e., on a date other than
the date of the Annual Grant) will, in addition to the Initial
Grant, receive upon election a grant of Non-Qualified Stock
Options prorated to reflect the number of months served in the
initial year of service, with the number of shares of Common
Stock subject to such Stock Option being equal to (1) the number
of shares subject to the Initial Grant multiplied by (2) a frac-
tion the numerator of which will be the number of months from the
date of such election through the date of the next Annual Grant
and the denominator of which will be twelve (12).
(b) An automatic director Stock Option will be granted
hereunder only if as of each date of grant the director (1) is
not otherwise an employee of the Company or any of its sub-
sidiaries or Affiliates, (2) has not been an employee of the
Company or any of its subsidiaries or Affiliates for any part of
the preceding fiscal year, and (3) has served on the Board
continuously since the commencement of his term.
(c) Except as expressly provided in this Section 14, any
Stock Option granted hereunder will be subject to the terms and
conditions of the Plan as if the grant were made pursuant to
Section 5 hereof including, without limitation, the rights set
forth in Section 5(j) hereof.
EXHIBIT 5
September 8, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
RE: Viad Corp Registration Statement on Form S-8
1997 Viad Corp Omnibus Incentive Plan, As Amended
Gentlemen:
This opinion is delivered in connection with the
registration by Viad Corp, a Delaware corporation (the
"Company"), on Form S-8 (the "Registration Statement"), under the
Securities Act of 1933, as amended, for 3,000,000 shares of the
Company's Common Stock ("Common Stock"), together with the
associated preferred stock purchase rights ("Rights"), issuable
pursuant to 1997 Viad Corp Omnibus Incentive Plan, As Amended
(the "Plan").
In arriving at this opinion, I have examined such corporate
instruments, documents, statements and records of the Company and
others as I have deemed relevant and necessary or appropriate for
the purposes of this opinion.
I have assumed the genuineness of all signatures and the
authenticity of all documents submitted to me as originals, the
conformity to original documents of all the documents submitted
to me as certified or photostatic copies, and the authenticity of
the originals of such latter documents.
Based upon the foregoing, I am of the opinion that the
3,000,000 shares of Common Stock to be sold pursuant to the
Registration Statement, together with the associated Rights, when
issued and delivered by the Company in accordance with the terms
of the Plan, will be legally issued, fully paid and nonassessable
securities of the Company.
I hereby consent to the reference to my name in the
Registration Statement and further consent to the inclusion of
this opinion as Exhibit 5 to the Registration Statement. In
giving this consent, I do not hereby admit that I am in the
category of persons whose consent is required under Section 7 of
the Act or the rules and regulation of the Securities and
Exchange Commission.
Very truly yours,
/s/ Peter J. Novak
Vice President and
General Counsel
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement of Viad Corp on Form S-8 of our report
dated February 21, 1997 (which expresses an unqualified opinion
and includes an explanatory paragraph relating to the Company's
change in the method of accounting for impairment of long-lived
assets in 1995) appearing in the Annual Report on Form 10-K of
Viad Corp for the year ended December 31, 1996.
We also consent to the reference to us under the heading
"Experts" in such Registration Statement.
/s/ Deloitte & Touche
Phoenix, Arizona
September 8, 1997
