AMENDED AND RESTATED EMPLOYMENT AGREEMENT Dated as of June 1, 2004
Exhibit 10.15
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
Dated as of June 1, 2004
AGREEMENT by and between Viad Corp, a Delaware corporation (the “Company”), and Xxxxxx X. Xxxxxxxx (the “Executive”), dated as of June 1, 2004.
WHEREAS, the Company and Executive desire to enter into this Amended and Restated Employment Agreement in connection with the Spin-Off, which Agreement amends, restates and supersedes the Employment Agreement between the Company and Executive dated as of the 1st day of April 1998;
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
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Spin-Off, and ending three years thereafter; provided, however, that the Employment Period shall be automatically extended by one year on the first anniversary of the spin-off and on each subsequent anniversary of such date (each such anniversary thereof being hereinafter referred to as a “Renewal Date”) unless (A) the Agreement has been terminated pursuant to Section 4 hereof or (B) notice of termination has been given in accordance with Section 1(b) hereof..
(b) The automatic extension of the Employment Period provided for in Section 1(a) above can be terminated by the Board or Executive upon 60 days’ prior written notice to the other. If timely notice is given, the Agreement shall terminate upon expiration of the then current Employment Period.
(b) During the Employment Period, and excluding any periods of vacation and sick leave to which the Executive is entitled, the Executive shall devote reasonable attention and time during normal business hours to the business and affairs of the Company and, to the extent necessary to discharge the responsibilities assigned to the Executive under this Agreement, use the Executive’s reasonable best efforts to carry out such responsibilities faithfully and efficiently. It shall not be considered a violation of the foregoing for the Executive to (A) serve on corporate,
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civic or charitable boards or committees, (B) deliver lectures, fulfill speaking engagements or teach at educational institutions and (C) manage personal investments, so long as such activities do not significantly interfere with the performance of the Executive’s responsibilities as an employee of the Company in accordance with this Agreement.
(c) The Executive’s services shall be performed primarily at Viad Tower, Phoenix, Arizona, or such other location designated by the Board, as long as such location is not more than 25 miles from Executive’s residence on the date hereof.
3. Compensation. (a) Base Salary. During the Employment Period, the Executive shall receive an annual base salary (“Annual Base Salary”) of $600,000.00, payable twice each month on a pro rata basis. During the Employment Period, the Annual Base Salary shall be reviewed for possible increase at least annually. Annual increases shall be no less than the lesser of 5% or the increase in the Consumer Price Index (“CPI”) for prior annual period. Any increase in the Annual Base Salary shall not limit or reduce any other obligation of the Company under this Agreement.
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Executive’s legal representative, has determined that the Executive’s incapacity is total and permanent. A termination of the Executive’s employment by the Company for Disability shall be communicated to the Executive by written notice, and shall be effective on the 30th day after receipt of such notice by the Executive (the “Disability Effective Date”), unless the Executive returns to full-time performance of the Executive’s duties before the Disability Effective Date.
Cause defined: For purposes of the Agreement, the Company shall have “Cause” to terminate the Executive’s employment upon (A) the willful and continued failure by the Executive to substantially perform his duties (other than any such failure resulting from the Executive’s incapacity due to physical or mental illness) after demand for substantial performance is delivered by the Company specifically identifying the manner in which the Company believes the Executive has not substantially performed his duties, or (B) the willful engaging by the Executive in misconduct which is materially injurious to the Company, monetarily or otherwise. No act, or failure to act, on the Executive’s part shall be considered “willful” unless done, or omitted to be
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done, by him not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for Cause unless and until there shall have been delivered to the Executive a copy of a resolution, duly adopted by the affirmative vote of not less than three-quarters (3/4) of the entire membership of the Board, excluding Executive, at a meeting of the Board called and held for such purposes (after reasonable notice to the Executive and an opportunity for him, together with his counsel, to be heard before the Board), finding that in the good faith opinion of the Board, the Executive was guilty of conduct set forth above in clause (A) or (B).
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Stock options and Stock Awards shall be subject to the terms and conditions of the corresponding agreements.
The amounts to be paid and the benefits to be provided as described above are:
(i) Severance pay equal to three times the sum of (1) 150% of the then current Annual Base Salary and (2) the average of the last three Annual Bonus or MIP awards paid to Executive, such payment to be made in a lump sum;
(ii) Stock Awards shall be subject to the terms and conditions of the corresponding agreements;
(iii) All stock options awarded to Executive shall vest as of the day of Early Termination;
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(iv) Lifetime Limited Executive Medical benefits for Executive and his family (dependent children to receive benefits until age 19, or until age 25 if documented full-time students);
(v) Executive shall be entitled to a credit for an additional three years of age from the date of Early Termination for purposes of determining Executive’s retirement benefits in accordance with the Company’s pension plans; and
(vi) A lump sum payment for all unused and accrued vacation.
(c) Upon Early Termination for Cause. The Executive shall be paid:
(i) 150% of Annual Base Salary.
(ii) Accrued MIP prorated to date of Early Termination.
(iii) Stock Awards shall terminate without any further payments or further vesting.
(iv) A lump sum payment for all unused and accrued vacation.
(v) Executive’s participation in all health and welfare plans described in Section 3(d) will cease upon Early Termination and Executive will be eligible for benefits under Cobra.
(d) Upon Early Termination by Executive. The Executive shall be paid:
(i) 150% of Annual Base Salary and shall be credited with one additional year of age for purposes of determining Executive’s
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retirement benefits in accordance with the Company’s pension plans.
(ii) Prorated MIP to date of Early Termination.
(iii) Stock Awards outstanding and unvested as of the date of Early Termination shall lapse and no additional vesting of such Stock Awards shall occur.
(iv) Executive shall be entitled to exercise only stock options which have vested prior to Early Termination by Executive.
(e) Upon Ordinary Retirement. The Executive shall be paid or receive benefits as follows:
(i) Salary and accrued MIP prorated to the date of Retirement.
(ii) Stock options and Stock Awards shall be subject to the terms and conditions of the corresponding agreements, provided, however, that all Stock Awards shall vest 100% at time of Retirement if Executive retires at age 65 or older.
(iii) All other accrued benefits as of the date of Retirement shall be paid to the Executive in accordance with their respective plans.
(iv Lifetime Limited Executive Medical benefits for Executive and his family (dependent children to receive benefits until age 19, or until age 25 if documented full-time students).
(v) Other benefits as may be determined by the Board.
(vi) Executive shall be provided with suitable office space and equipment for so long as Executive has a reasonable need for
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office facilities, and with an administrative assistant for five years. Executive shall also be entitled to use of a leased automobile for a period of five years following Retirement, such automobile to be comparable to the automobile currently leased for Executive.
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action by way of mitigation of the amounts payable to the Executive under any of the provisions of this Agreement.
(b) During the Noncompetition Period (as defined below), the Executive shall not, without the prior written consent of the Board, engage in or become associated with a Competitive Activity. For purposes of this paragraph (b) of Section 8: (I) the “Noncompetition Period” means three (3) years from the date of Early Termination or Ordinary Retirement; (ii) a “Competitive Activity” means any business or other endeavor that engages in businesses similar to those conducted by the Company; and (iii) the Executive shall be considered to have become “associated with a Competitive Activity” if he becomes directly or indirectly involved as an owner, employee, officer, director, independent contractor, agent, partner, advisor, or in any other capacity calling for the rendition of the Executive’s personal
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services, with any individual, partnership, corporation or other organization that is engaged in a Competitive Activity. Notwithstanding the foregoing, the Executive may make and retain investments during the Employment Period in not more than five percent of the equity of any entity engaged in a Competitive Activity, if such equity is listed on a national securities exchange or regularly traded in an over-the-counter market.
(c) Executive’s service as Chairman of the Board of MoneyGram International, Inc. following the Spin-Off will not be considered a violation of this Agreement.
(b) This Agreement shall inure to the benefit of and be binding upon the Company and its successors and assigns.
(c) The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would have been required to perform it if no such succession had taken place. As used in this Agreement, “Company” shall mean both the Company as
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defined above and any such successor that assumes and agrees to perform this Agreement, by operation of law or otherwise.
10. Miscellaneous. (a) This Agreement shall be governed by, and construed in accordance with, the laws of the State of Arizona, without reference to principles of conflict of laws. The captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement may not be amended or modified except by a written agreement executed by the parties hereto or their respective successors and legal representatives.
(b) All notices and other communications under this Agreement shall be in writing and shall be given by hand delivery to the other party or by registered or certified mail, return receipt requested, postage prepaid, addressed as follows:
If to the Executive:
If to the Company:
Viad Corp
or to such other address as either party furnishes to the other in writing in accordance with this paragraph (b) of Section 10. Notices and communications shall be effective when actually received by the addressee.
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(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement. If any provision of this Agreement shall be held invalid or unenforceable in part, the remaining portion of such provision, together with all other provisions of this Agreement, shall remain valid and enforceable and continue in full force and effect to the fullest extent consistent with law.
(d) Notwithstanding any other provision of this Agreement, the Company may withhold from amounts payable under this Agreement all federal, state, local and foreign taxes that are required to be withheld by applicable laws or regulations.
(e) The Executive’s or the Company’s failure to insist upon strict compliance with any provision of, or to assert any right under, this Agreement shall not be deemed to be a waiver of such provision or right or of any other provision of or right under this Agreement.
(f) The Executive and the Company acknowledge that this Agreement supersedes any other agreement between them concerning the subject matter hereof.
(g) This Agreement may be executed in several counterparts, each of which shall be deemed an original, and said counterparts shall constitute but one and the same instrument.
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Company has caused this Agreement to be executed in its name on its behalf, all as of the day and year first above written.
s/b Xxxxxx X. Xxxxxxxx | ||||
Xxxxxx X. Xxxxxxxx | ||||
VIAD CORP | ||||
By | s/b Xxxxx X. Xxxxx | |||
Xxxxx X. Xxxxx | ||||
Vice President & General Counsel |
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