As filed with the Securities and Exchange Commission
on September 15, 1998
Registration No. ___________
- ------------------------------------------------------------------------
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 (I.R.S. Employer
incorporation or organization) Identification Number)
1850 North Central Avenue
Phoenix, Arizona 85077
(Address of Principal Executive Offices) (Zip Code)
VIAD CORP 1992 STOCK INCENTIVE PLAN
(Full title of plan)
---------------
Peter J. Novak, Esq.
Vice President-General Counsel
Viad Corp
1850 North Central Avenue
Phoenix, Arizona 85077
(Name and address of agent for service)
(602) 207-4000
(Telephone number, including area code,
of agent for service)
---------------
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------
Title of Amount Proposed Maximum Proposed Maximum
Securities to be Offering Price Aggregate Amount of
to be Registered Per Share Offering Price Registration
Registered (1) (2) (2) Fee
- ------------------------------------------------------------------------
Common 1,940,000 $23.46875 $45,529,375 $13,432.00
Stock
$1.50 par
value (1)(2)
- ------------------------------------------------------------------------
(1) Represents maximum aggregate number of shares of Common Stock
issuable under the Plan that are covered by this Registration
Statement pursuant to Rule 457(h). 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) 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 10, 1998, and are used solely for the purpose
of calculating the registration fee pursuant to Rule 457(c) under
the Securities Act of 1933.
In addition, pursuant to Rule 416(c) under the Securities Act of
1933, this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
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
"Corporation") 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 Corporation
for the year ended December 31, 1997.
(2) All other reports filed pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year
covered by the registrant document referred to in (1) above.
(3) The description of the Corporation's Common Stock
contained in the Corporation'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 Corporation's Rights contained
in the Corporation'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 Corporation 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 Corporation
by Peter J. Novak, Vice President-General Counsel of the
Corporation. Mr. Novak owns, and has options to purchase, shares
of Common Stock of the Corporation.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
The Restated Certificate of Incorporation (the "Certificate
of Incorporation") of the Corporation provides that each person
who is or was or had agreed to become a director or officer of
the Corporation, 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 Corporation or an officer of the Corporation as an employee
or agent of the Corporation 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 Corporation, 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
Corporation to provide broader indemnification rights than said
law permitted the Corporation to provide prior to such amendment)
or any other applicable laws as presently or hereafter in effect.
In addition, the Corporation 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 Corporation 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 Corporation or is or was serving at the request
of the Corporation 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 Corporation 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 Corporation to provide broader
indemnification rights than said law permitted the Corporation 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 Corporation 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
Corporation.
Pursuant to the Bylaws, if a claim described in the
preceding paragraph is not paid in full by the Corporation within
thirty days after a written claim has been received by the
Corporation, the claimant may at any time thereafter bring suit
against the Corporation 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 Corporation) 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 Corporation to indemnify the claimant for
the amount claimed, but the burden of proving such defense will
be on the Corporation. 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 Corporation (the "Board") (which
approval may not be unreasonably withheld) and retained by the
Board on behalf of the Corporation. Neither the failure of the
Corporation (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 Corporation (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 Corporation to maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of
the Corporation or another corporation, partnership, joint
venture, trust or other enterprise against any expense, liability
or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss
under the Delaware Law. The Corporation has obtained directors
and officers liability insurance providing coverage to its
directors and officers. In addition, the Bylaws authorize the
Corporation, to the extent authorized from time to time by the
Board, to grant rights to indemnification, and rights to be paid
by the Corporation the expenses incurred in defending any
Proceeding in advance of its final disposition, to any agent of
the Corporation 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 Corporation.
The Bylaws provide that the right to indemnification
conferred therein is a contract right and includes the right to
be paid by the Corporation 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 Corporation 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 Corporation has entered into indemnification agreements
with each of the Corporation's directors. The indemnification
agreements, among other things, require the Corporation 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
Corporation must also indemnify and advance all expenses incurred
by directors seeking to enforce their rights under the
indemnification agreements, and cover directors under the
Corporation'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
- ------- -----------
4.1 - Restated Certificate of Incorporation of the
Registrant filed as Exhibit 3.A to Registrant's
1996 Form 10-K.*
4.2 - Bylaws of the Registrant, as amended through
February 20, 1997, filed as Exhibit 3.B to
Registrant's 1996 Form 10-K.*
4.3 - Viad Corp 1992 Stock Incentive Plan.
4.4 - Rights Agreement dated as of February 15, 1992
between the Registrant and the Rights Agent named
therein filed as Exhibit 4.4 to Registrant's Form
S-8 Registration Statement for The Dial Corp (now
named Viad Corp) 1992 Stock Incentive Plan.*
5 - Opinion of the Registrant's General Counsel as to
the legality of securities offered under Viad Corp
1992 Stock Incentive Plan.
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.
Item 9. Undertakings.
------------
(a) The Corporation 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.
(h) 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 Corporation's Annual
Report on Form 10-K for the year ended December 31, 1997, have
been audited by Deloitte & Touche LLP, independent auditors, as
stated in their report (which report expresses an unqualified
opinion and includes an explanatory paragraph referring to the
Corporation'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 Hot Springs,
and State of Virginia, on the 20th day of August, 1998.
VIAD CORP
By: /s/ Robert H. Bohannon
Chairman, President and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby authorizes and
appoints Robert H. Bohannon and Richard C. Stephan, and each of them
as his or her 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, 8/20/98
President and Chief
Executive Officer
Principal Financial Officer
/s/ Ronald G. Nelson Vice President-Finance 8/25/98
and Treasurer
Principal Accounting Officer
/s/ Richard C. Stephan Vice President-Controller 8/25/98
Directors Date
/s/ Jess Hay 8/20/98
/s/ Judith K. Hofer 8/20/98
/s/ Jack F. Reichert 8/20/98
/s/ Linda Johnson Rice 8/20/98
/s/ Douglas L. Rock 8/20/98
/s/ John C. Tolleson 8/20/98
/s/ Timothy R. Wallace 8/20/98
Exhibit 4.3
VIAD CORP
1992 STOCK INCENTIVE PLAN
As Amended August 15, 1996
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.
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 a Stock Appreciation Right, Stock Option or
Restricted Stock.
c. "Board" means the Board of Directors of the Company.
d. "Cause" has the meaning set forth in Section 5(i).
e. "Change in Control" and "Change in Control Price" have the
meanings set forth in Sections 8(b) and (c), respectively.
f. "Code" means the Internal Revenue Code of 1986, as amended
from time to time, and any successor thereto.
g. "Commission" means the Securities and Exchange Commission or
any successor agency.
h. "Committee" means the Committee referred to in Section 2.
i. "Common Stock" means common stock, par value $1.50 per
share, of the Company.
j. "Company" means Viad Corp, a Delaware corporation.
k. "Disability" means permanent and total disability as
determined under the Company's existing policies, which may
be amended by the Committee.
l. "Disinterested Person" shall mean a member of the Board who
qualifies as a disinterested person as defined in Rule 16b-3(c)(2), as
promulgated by the Commission under the Exchange
Act, or any successor definition adopted by the Commission.
m. "Distribution" means the distribution of shares of Common
Stock of GFC Financial Corporation to the holders of Common
Stock.
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, except as provided in Section
5(j) and 6(b)(ii)(2), 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 NASDAQ. If there is no regular
public trading market for such Stock, the Fair Market Value
of the Stock shall be determined by the Committee in good
faith.
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. "Non-Qualified Stock Option" means any Stock Option that is
not an Incentive Stock Option.
r. "Plan" means Viad Corp 1992 Stock Incentive Plan, as set
forth herein and as hereinafter amended from time to time.
s. "Preferred Stock" means preferred stock, par value $.01, of
the Company.
t. "Restricted Stock" means an award granted under Section 7.
u. "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.
v. "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.
w. "Stock" means the Common Stock or Preferred Stock.
x. "Stock Appreciation Right" means a right granted under
Section 6.
y. "Stock Option" means an option granted under Section 5.
z. "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 shall 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.
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 shall be administered by the Human Resources Committee
of the Board or such other committee of the Board, composed of
not less than two Disinterested Persons, each of whom shall be
appointed by and serve at the pleasure of the Board. If at any
time no Committee shall be in office, the functions of the
Committee specified in the Plan shall be exercised by the Board.
The Committee shall 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.
Among other things, the Committee shall 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; provided that
Awards to nonemployee directors may be made only in
accordance with Section 13 hereof;
(b) to determine whether and to what extent Incentive Stock
Options, Non-Qualified Stock Options, Stock Appreciation
Rights and Restricted Stock or any combination thereof are
to be granted hereunder;
(c) to determine the number of shares of Stock 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 restriction or
limitation and any vesting acceleration or forfeiture waiver
regarding any Award and the shares of Stock relating
thereto, based on such factors as the Committee shall
determine);
(e) to adjust the terms and conditions, at any time or from time
to time, of any Award, including with respect to performance
goals and measurements applicable to performance-based
Awards pursuant to the terms of the Plan;
(f) to determine to what extent and under what circumstances
Stock and other amounts payable with respect to an Award
shall 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 shall have the authority to adopt, alter and repeal
such administrative rules, guidelines and practices governing the
Plan as it shall from time to time deem 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 (i) delegate to an
officer of the Company the authority to make decisions pursuant
to paragraphs (c), (f), (g), (h) and (i) of Section 5 (provided
that no such delegation may be made that would cause Awards or
other transactions under the Plan to cease to be exempt from
Section 16(b) of the Exchange Act) and (ii) authorize any one or
more of their number or any officer of the Company to execute and
deliver documents on behalf of the Committee.
Any determination made by the Committee or pursuant to delegated
authority pursuant to the provisions of the Plan with respect to
any Award shall be made in the sole discretion of the Committee
or such delegate 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 pursuant to the provisions of the
Plan shall be final and binding on all persons, including the
Company and Plan participants.
SECTION 3. STOCK SUBJECT TO PLAN.
Subject to adjustment as provided herein, the total 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 and one-half
percent (2.5%) 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
not be added to the shares available for grant in any subsequent
calendar year. In addition to the limitation set forth above
with respect to the number of shares available for grant in any
single calendar-year, no more than 10,000,000 shares of Common
Stock shall be cumulatively available for the grant of incentive
options over the life of the Plan. Shares subject to an option
or award under the Plan may be authorized and unissued shares or
may be "treasury shares".
The total number of shares of Preferred Stock reserved and
available for distribution pursuant to Awards under the plan
shall be 1,000,000.
Subject to Section 7(b)(iv), if any shares of Restricted Stock
are forfeited for which the participant did not receive any
benefits of ownership, or if any Stock Option (and related Stock
Appreciation Right, if any) terminates without being exercised,
or if any Stock Appreciation Right is exercised for cash, shares
subject to such Awards shall again be available for distribution
in connection with Awards under the Plan.
In the event of any merger, reorganization, consolidation,
recapitalization, stock dividend, stock split, extraordinary
distribution with respect to the Stock or other change in
corporate structure affecting the Stock, such substitution or
adjustments shall be made in the aggregate number of shares
reserved for issuance under the Plan, in the number and option
price of shares subject to outstanding Stock Options and Stock
Appreciation Rights, and in the number of shares subject to other
outstanding Stock Options and Stock Appreciation Rights, and in
the number of shares subject to other outstanding Awards granted
under the Plan 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 shall
always be a whole number. Such adjusted option price shall also
be used to determine the amount payable by the Company upon the
exercise of any Stock Appreciation Right associated with any
Stock Option.
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. Except as expressly authorized by
Section 13 of the Plan, however, no grant shall be made to a
director who is not an officer or a salaried employee.
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 shall be in such form as the Committee may
from time to time approve.
The Committee shall 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 shall constitute a Non-Qualified Stock Option.
Stock Options shall be evidenced by option agreements, the terms
and provisions of which may differ. An option agreement shall
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 shall 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 shall
notify the participant of any grant of a Stock Option, and a
written option agreement or agreements shall 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 shall be
interpreted, amended or altered nor shall any discretion or
authority 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 shall be subject to the
following terms and conditions and shall contain such additional
terms and conditions as the Committee shall deem desirable:
(a) Option Price. The option price per share of Stock
purchasable under a Stock Option shall be determined by the
Committee and set forth in the option agreement, and shall
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 shall be fixed
by the Committee, but no Stock Option shall be exercisable
more than 10 years after the date the Stock Option is
granted.
(c) Exercisability. Except as otherwise provided herein, Stock
Options shall be exercisable at such time or times and
subject to such terms and conditions as shall be determined
by the Committee. If the Committee provides that any Stock
Options is exercisable only in installments, the Committee
may 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 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 shall be accompanied by payment in full of the
purchase price by certified or bank check or such other
instrument as the Company may accept. If approved by the
Committee, payment in full or in part may also be made in
the form of unrestricted Stock already owned by the optionee
of the same class as the Stock subject 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 (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.
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 payments of the option exercise
price shall be subject to the same forfeiture restrictions
to which such Restricted Stock was subject, unless otherwise
determined by the Committee.
No shares of Stock shall 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 shall 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 11(a).
(e) Nontransferability of Stock Options. (i) No Stock Option
shall be transferable by the optionee other than (1) by will
or by the laws of descent and distribution or (2) 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 shall 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.
(ii) Notwithstanding Section 5(e)(i) 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) (ii) 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 pursuant to a stock option agreement
expressly permitting transfer pursuant to this Section 5 (e)
(ii) 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 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 shall, notwithstanding the
expiration of such three-year (or such shorter) 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 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 such Retirement, 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 (or such shorter) period any unexercised Stock
Option held by such optionee shall, notwithstanding the
expiration of 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 period of 12 months
from the date of such death or until the expiration of the
stated term of Such 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 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, any Stock Option held by such optionee shall
thereupon terminate, except that such Stock Option, to the
extent then exercisable, or 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 if such
Termination of Employment of the optionee is involuntary and
without Cause; provided, however, that if the optionee dies
within such three-month period, any unexercised Stock Option
held by such optionee shall, 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. Unless otherwise determined by the Committee, for
the purposes of the Plan "Cause" shall mean (1) the
conviction of the optionee 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 the
optionee's employment duties or (3) willful and deliberate
failure on the part of the optionee to perform his
employment duties in any material respect.
(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 portion 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.
Cash outs relating to Options held by optionees who are
actually or potentially subject to Section 16(b) of the
Exchange Act shall comply with the "window period"
provisions of Rule 16b-3, to the extent applicable, and, in
the case of cash outs of Non-Qualified Stock Options held by
such optionees, the Committee may determine Fair Market
Value under the pricing rule set forth in Section
6(b)(ii)(2).
(k) 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 shall
determine otherwise at the time of grant, an optionee shall
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 shall 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) shall
have been exercised; provided, however, that if the Change
in Control is within six months of the date of grant of a
particular Stock Option held by an optionee who is an
officer or director of the Company and is subject to Section
16(b) of the Exchange Act no such election shall be made by
such optionee with respect to such Stock Option prior to six
months from the date of grant. Notwithstanding any other
provision hereof, if the end of such 60-day period from and
after a Change in Control is within six months of the date
of grant of a Stock Option held by an optionee who is an
officer or director of the Company and is subject to Section
16(b) of the Exchange Act, such Stock Option shall be
canceled in exchange for a cash payment to the optionee,
effected on the day which is six months and one day after
the date of grant of such Option, equal to the Spread
multiplied by the number of shares of Stock granted under
the Stock Option.
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 shall 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 shall be entitled to
receive an amount determined in the manner prescribed in
Section 6(b). Stock Options which have been so surrendered
shall no longer be exercisable to the extent the related
Stock Appreciation Rights have been exercised.
(b) Terms and Conditions. Stock Appreciation Rights shall be
subject to such terms and conditions as shall be determined
by the Committee, including the following:
(i) Stock Appreciation Rights shall 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; provided, however, that a Stock
Appreciation Right shall not be exercisable during
the first six months of its term by an optionee who
is actually or potentially subject to Section 16(b)
of the Exchange Act, except that this limitation
shall not apply in the event of death or Disability
of the optionee prior to the expiration of the six-month period.
(ii) Upon the exercise of a Stock Appreciation Right, an
optionee shall 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 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 shall have been exercised, with the Committee
having the right to determine the form of payment.
In the case of Stock Appreciation Rights relating to
Stock Options held by optionees who are actually or
potentially subject to Section 16(b) of the Exchange
Act, the Committee:
(1) may require that such Stock Appreciation Rights
be exercised only in accordance with the
applicable "window period" provisions of Rule
16b-3; and
(2) in the case of Stock Appreciation Rights
relating to Non-Qualified Stock Options, may
provide that the amount to be paid upon
exercise of such Stock Appreciation Rights
during a Rule 16b-3 "window period" shall be
based on the highest mean sales price of the
Stock on the New York Stock Exchange on any day
during such "window period."
(iii) Stock Appreciation Rights shall 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 shall determine the officers and
employees 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 time or times within which
such Awards may be subject to forfeiture and any other terms
and conditions of the Awards, in addition to those contained
in Section 7(c).
The Committee may condition the grant of Restricted Stock
upon the attainment of specified performance goals of the
participant or of the Company or subsidiary, division or
department of the Company for or within which the
participant is primarily employed or upon such other factors
or criteria as the Committee shall determine. The
provisions of Restricted Stock Awards need not be the same
with respect to each recipient.
(b) Awards and Certificates. Shares of Restricted Stock shall
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 shall be registered
in the name of such participant and shall 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 conditions (including forfeiture) of
the 1992 Stock Incentive Plan and a Restricted Stock
Agreement. Copies of such Plan and Agreement are on
file at the offices of Viad Corp, 1850 N. Central
Avenue, Phoenix, Arizona."
The Committee may require that the certificates evidencing
such shares be held in custody by the Company until the
restrictions thereon shall have lapsed and that, as a
condition of any Award of Restricted Stock, the participant
shall have delivered a stock power, endorsed in blank,
relating to the Stock covered by such Award.
(c) Terms and Conditions. Shares of Restricted Stock shall be
subject to the following terms and conditions:
(i) Subject to the provisions of the Plan (including
Section 5(d) and the Restricted Stock Agreement
referred to the Section 7(c)(vi), during a period
set by the Committee, commencing with the date of
such Award (the "Restriction Period"), the
participant shall not be permitted to sell, assign,
transfer, pledge or otherwise encumber shares of
Restricted Stock. Within these limits, the
Committee may provide for the lapse of such
restrictions in installments and may accelerate or
waive such restrictions, in whole or in part, based
on service, performance of the participant or of the
Company or the subsidiary, division or department
for which the participant is employed or such other
factors or criteria as the Committee may determine.
(ii) Except as provided in this paragraph (ii) and
Section 7(c)(i) and the Restricted Stock Agreement,
the participant shall have, with respect to the
shares of Restricted 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 cash dividends. If so determined by the
Committee in the applicable Restricted Stock
Agreement and subject to Section 11(f) of the Plan,
(1) cash dividends 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, and (2) 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.
(iii) Except to the extent otherwise provided in the
applicable Restricted Stock Agreement and Sections
7(c)(i), 7(c)(iv) and 8(a)(ii), upon a participant's
Termination of Employment for any reason during the
Restriction Period, all shares still subject to
restriction shall be forfeited by the participant.
(iv) Except to the extent otherwise provided in Section
8(a)(ii), in the event that a participant's
employment is involuntarily terminated (other than
for Cause), the Committee shall have the discretion
to waive in whole or in part any or all remaining
restrictions with respect to any or all of such
participant's shares of Restricted Stock.
(v) If and when the Restriction Period expires without a
prior forfeiture of the Restricted Stock subject to
such Restriction Period, unlegended certificates for
such shares shall be delivered to the participant.
(vi) Each Award shall be confirmed by, and be subject to
the terms of, a Restricted Stock Agreement.
SECTION 8. 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:
(i) 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 shall become fully exercisable and vested
to the full extent of the original grant.
(ii) The restrictions applicable to any Restricted Stock
shall lapse, and such Restricted Stock shall become
free of all restrictions and become fully vested and
transferable to the full extent of the original
grant.
(b) Definition of Change in Control. For purposes of the Plan,
a "Change in Control" shall mean the happening of any of the
following events:
(i) 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 20% or more
of either (1) the then outstanding shares of common
stock of the Company (the "Outstanding Company
Common Stock") or (2) 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:
(1) 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, (2) any acquisition by the Company, (3) any
acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any
corporation controlled by the Company or (4) any
acquisition by any corporation pursuant to a
transaction which complies with clauses (1), (2) and
(3) of subsection (iii) of this Section 8(b); or
(ii) A change in the composition of the Board such that
the individuals who, as of February 28, 1992,
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 8(b), that any individual
who becomes a member of the Board subsequent to
February 28, 1992, whose election, or nomination for
election by the Company's 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 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
(iii) The approval by the shareholders 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");
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 Company
Common Stock and Outstanding Company Voting
Securities immediately prior to such Corporate
Transaction will 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 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, (2) 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, 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 (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; or
(iv) The approval by the shareholders 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 (i) 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 NASDAQ during the 60-day period
prior to and including the date of a Change in Control or
(ii) 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 (x) in the
case of a Stock Option which (A) is held by an optionee who
is an officer or director of the Company and is subject to
Section 16(b) of the Exchange Act and (B) was granted within
240 days of the Change in Control, then the Change in
Control Price for such Stock Option shall be the Fair Market
Value of the Stock on the date such Stock Option is
exercised or deemed exercised and (y) in the case of
Incentive Stock Options and Stock Appreciation Rights
relating to Incentive Stock Options, the Change in Control
Price shall 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 shall be determined in the sole
discretion of the Board.
SECTION 9. TERM, AMENDMENT AND TERMINATION.
The Plan will terminate on December 31, 2002. Under the Plan,
Awards outstanding as of December 31, 2002 shall 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 shall be made which
would (i) impair the rights of an optionee under a Stock Option
or a recipient of a Stock Appreciation Right or Restricted Stock
Award theretofore granted without the optionee's or recipient's
consent, except such an amendment made to cause the Plan to
qualify for the exemption provided by Rule 16b-3, or (ii)
disqualify the Plan from the exemption provided by Rule 16b-3.
In addition, no such amendment shall 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 shall impair the rights of any holder without the
holder's consent except such an amendment made to cause the Plan
or Award to qualify for the exemption provided by Rule 16b-3.
The Committee may also substitute new Stock Options for
previously granted Stock Options, including previously granted
Stock Options having higher option prices.
Subject to the above provisions, the Board shall have the
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 10. UNFUNDED STATUS OF PLAN.
It is presently intended that the Plan constitute an "unfunded"
plan for incentive and for deferred compensation. The Committee
may authorize the creation of trusts or other arrangements to
meet the obligations created under the Plan to deliver Stock or
make payments; provided, however, that, unless the Committee
otherwise determines, the existence of such trusts or other
arrangements is consistent with the "unfunded" status of the
Plan.
SECTION 11. 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 the 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 transfer.
All certificates for shares of Stock or other securities
delivered under the Plan shall 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.
(b) Nothing contained in the Plan shall prevent the Company or
any subsidiary or Affiliate from adopting other or
additional compensation arrangements for its employees.
(c) The adoption of the Plan shall not confer upon any employee
any rights to continued employment nor shall 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 shall 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. Unless 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 shall be conditional on such payment or
arrangements, and the Company and its Affiliates shall, 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 shall be
subject to a right of first refusal pursuant to which the
participant shall be required to offer to the Company any
shares that the participant wishes to sell at the then Fair
Market Value of the Stock, subject 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 shall 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 shall 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.
(h) The Plan and all Awards made and actions taken thereunder
shall be governed by and construed in accordance with the
laws of the State of Delaware.
SECTION 12. EFFECTIVE DATE OF PLAN.
The Plan shall be effective on the date specified by the Board at
the time it is approved by the Board.
SECTION 13. 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, shall, (1) on the later of (a) August
15, 1996 and (b) the date of his or her first
election as a director of the Company (such initial
grant being an "Initial Grant"), and (2) on August
15, 1996 and thereafter 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 the 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, shall be equal to the annual retainer
fee in effect at the date of grant for nonemployee
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 fraction the numerator of which
shall be the number of months from the date of such
election through the date of the next Annual Grant
and the denominator of which shall be twelve (12)."
(b) An automatic director Stock Option shall be granted
hereunder only if as of each date of grant the
director (i) is not otherwise an employee of the
Company or any of its subsidiaries or Affiliates,
(ii) has not been an employee of the Company or any
of its subsidiaries or Affiliates for any part of
the preceding fiscal year, and (iii) has served on
the Board continuously since the commencement of his
term.
(c) Except as expressly provided in this Section 13, 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 10, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
RE: Viad Corp Registration Statement on Form S-8
Viad Corp 1992 Stock Incentive Plan
Gentlemen:
This opinion is delivered in connection with the
registration by Viad Corp, a Delaware corporation
(the"Corporation"), on Form S-8 (the "Registration Statement"),
under the Securities Act of 1933, as amended, for 1,940,000
shares of the Corporation's Common Stock ("Common Stock"),
together with the associated preferred stock purchase rights
("Rights"), issuable pursuant to Viad Corp 1992 Stock Incentive
Plan (the "Plan").
In arriving at this opinion, I have examined such corporate
instruments, documents, statements and records of the Corporation
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
1,940,000 shares of Common Stock to be sold pursuant to the
Registration Statement, together with the associated Rights, when
issued and delivered by the Corporation in accordance with the
terms of the Plan, will be legally issued, fully paid and
nonassessable securities of the Corporation.
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 regulations of the Securities and
Exchange Commission.
Very truly yours,
/s/ Peter J. Novak
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 20, 1998 (which expresses an unqualified opinion
and includes an explanatory paragraph relating to the Company's
change in its 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, 1997.
We also consent to the reference to us under the heading
"Experts" in such Registration Statement.
/s/ Deloitte & Touche LLP
Deloitte & Touche LLP
Phoenix, Arizona
September 11, 1998
