Separation Agreement and Release (Long-Tenured Executive Officer)
Exhibit 10.A
Separation Agreement and Release
(Long-Tenured Executive Officer)
(Long-Tenured Executive Officer)
This Separation Agreement and Release (“Agreement”) is intended to amicably and finally
resolve all issues and claims surrounding the employment of Xxxxxxx Xxxxx (“Employee”) with Viad
Corp (“Employer”) and is made and entered into by and between Employee and Employer.
I. Recitations
| • | Employee is an Executive Officer of Employer and has been employed by Employer for
more than twenty (20) years. |
| • | Employee, during her tenure, has developed specialized knowledge and expertise
concerning the human resources and executive compensation practices and procedures of
Employer. |
| • | Employer desires to provide Employee with separation benefits to assist in the
transition resulting from the reorganization of Employer and Employee’s termination of
employment, provided that Employee executes all transitional responsibilities as agreed upon
between Employee and Employer, as set forth in the second paragraph of Section F of this
Agreement ; and |
| • | Employee desires, in exchange for such separation benefits, to waive and release
any and all claims that Employee may have against Employer. |
II. Agreement
In consideration of the promises, agreements, covenants, and provisions contained in this
Agreement, the sufficiency of which is hereby acknowledged, the parties agree as follows:
A. Salary and Benefits
| • | Employee’s employment with Employer will end effective August 31, 2009 (the
“Separation Date”). |
| • | In consideration of the promises of Employee contained herein, Employer agrees to
pay Employee a lump sum severance benefit equal to seventy-eight (78) weeks separation pay
($426,000), less statutory deductions (based upon Employee’s annual base salary as of the
Separation Date), to be paid on the Separation Date. |
| • | Employee will be paid, by separate check, a lump sum payment, less statutory
deductions, for all earned but unused vacation (including any carryover vacation from 2008) as
of the Separation Date, in accordance with state statutory requirements. |
| • | Employer will make payment of the premiums for Employee’s Group Medical, Executive
Medical and Dental insurance coverages for eighteen (18) months effective on the first day of
the month following the Separation Date. This coverage will continue in effect from September
1, 2009 through February 28, 2011, unless Employee becomes eligible for coverage through
another employer or through a governmental program. Effective March 1, 2011, Employee may
elect to continue coverage similar to the Group Medical, Executive and Dental coverage under
the Viad health plan as in effect from time to time during the period, in accordance with the
health care continuation coverage provisions of the Consolidated Omnibus Budget Reconciliation
Act of 1985 (“COBRA”), with Employer to pay fifty percent (50%) of the cost of such coverage.
For purposes of determining eligibility for the Retiree Medical Plan of Employer, Employee
will be deemed to be age fifty-five (55) as of August 31, 2009. Upon Employee’s commencement
of pension benefits under the Viad Corp Retirement Income Plan, now known as the Moneygram
Pension Plan, she and her eligible dependents will be eligible for coverage under and in
accordance with the provisions of the Viad Corp Retiree Medical Plan. |
| • | Employee’s participation in the Viad Corp Performance Unit Plan (“PUP”) and
Performance Based Restricted Stock (“PBRS”) Plan will cease as of the Separation Date. Awards
shall be paid under the 2007-2009 and 2008-2010 PUP, pursuant to the corresponding Agreements.
Full ownership of the earned performance units will occur to the extent not previously earned
at the end of the performance period. Pursuant to the corresponding Performance Based
Restricted Stock Agreements, the remaining unvested PBRS shares will vest in accordance with
the corresponding Agreements whereby Employee shall receive 2,433 shares in January 2010, and
1,433 shares in January 2011. 11,300 PBRS shares granted in February 2009 shall be forfeited
as they will not be earned based on company performance. |
| • | Employee’s Restricted Stock awards from 2007 (2,300 shares), 2008 (3,100 shares)
and 2009 (8,100 shares) will vest in full pursuant to the corresponding Agreements. Total
shares vesting are 13,500 (2,300, 3,100 and 8,100). |
| • | Employee’s participation in Employer’s 401(k) Program (also known as the “TRIM”
plan), and Employer’s matching obligation under the Program, will cease as of the Separation
Date, and any distribution of the Program’s funds will be in accordance with the provisions of
the 401(k) Program. Employee will receive information explaining Employee’s options with
regard to Employee’s account in Employer’s 401(k) program from the plan administrator, T Xxxx
Price, approximately three (3) weeks after the end of the month following the Separation Date. |
| • | Employee’s participation in any other Employer-sponsored perquisite programs
including health club and lunch club will cease as of the Separation Date. All associated
expenses with regard to above-mentioned perquisites will be reimbursed to Employee or paid
directly to provider through the Separation Date. |
| • | Employee’s Life Insurance, Short-Term Disability, Long-Term Disability, and
Business Travel Accident insurance coverage will cease as of the Separation Date. |
| • | Employee’s participation in the Executive Physical Program will continue through
2010, with Employee’s company-paid physical to be completed no later than December 31, 2010. |
| • | Employee’s participation in Employer’s Tax and Financial Counseling Program will
cease as of December 31, 2009, and will include preparation of Employee’s 2009 personal income
tax return and 2010 projected income tax statement, to be completed by The AYCO Company. |
| • | Employee will be entitled to outplacement as provided for under the Right
Management Officer’s Outplacement Program, not to exceed the Employer’s 2009 negotiated fee of
$12,000. Employee may elect to utilize services of a different professional outplacement firm
of her choice; however, fees for all outplacement services may not exceed $12,000 in the
aggregate. Services for any outplacement program must be commenced within 90 days of the
Separation Date and all invoices for services will be sent directly to Employer. |
| • | In the event Employee dies prior to receipt of all cash payments and other
compensation to which employee is entitled hereunder, such consideration shall be paid to the
Employee’s estate, unless otherwise directed in writing by Employee. |
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B. Release of Claims by Employee
In consideration for the receipt of the separation pay and other benefits described in this
Agreement and for good and valuable consideration the receipt and sufficiency of which is hereby
acknowledged by Employee, Employee hereby waives, voluntarily releases and forever discharges
Employer, its parent companies, predecessors, successors, affiliates and subsidiaries, and their
respective shareholders, employees, officers, representatives, agents, and directors (collectively
“the Company”) from the following:
| • | All claims arising out of or relating to Employee’s employment with the Company or
Employee’s separation from that employment; |
| • | All claims arising out of or relating to any written or implied personnel policy
or practice of the Company or the statements, actions, or omissions of the Company; |
| • | All claims for any alleged unlawful discrimination, harassment, retaliation or
reprisal, or other alleged unlawful practices arising under any federal, state, or local
statute, ordinance, or regulation, including without limitation, claims under Title VII of the
Civil Rights Act of 1964, as amended; the Age Discrimination in Employment Act of 1967, as
amended; the Americans with Disabilities Act of 1990, as amended; 42 U.S.C. 12101, et. seq.;
the Family and Medical Leave Act of 1993; the Employee Retirement Income Security Act of 1974;
the Equal Pay Act of 1963; the Fair Labor Standards Act; the Worker Adjustment and Retraining
Notification Act; the Civil Rights Act of 1991; the Fair Credit Reporting Act; the Older
Workers Benefit Protection Act; and any other federal, state or local anti-discrimination
acts, state wage acts and non-interference or non-retaliation statutes; |
| • | All claims for alleged wrongful discharge; breach of contract; breach of implied
contract; failure to keep any promise; breach of a covenant of good faith and fair dealing;
breach of fiduciary duty; promissory estoppel; Employee’s activities, if any, as a
“whistleblower”; defamation; infliction of emotional distress; fraud; misrepresentation;
negligence; harassment; retaliation or reprisal; constructive discharge; assault; battery;
false imprisonment; invasion of privacy; interference with contractual or business
relationships; any other wrongful employment practices; and violation of any other principle
of common law; |
| • | All claims for compensation of any kind, including without limitation, commission
payments, bonus payments, vacation pay, and expense reimbursements; |
| • | All claims for back pay, front pay, reinstatement, other equitable relief,
compensatory damages, damages for alleged personal injury, liquidated damages, and punitive
damages; |
| • | All claims for attorneys’ fees, costs, and interest. |
Employee also waives any right to any form of recovery or compensation from any legal action
brought by Employee, or by any state or federal agency on Employee’s behalf in connection with
Employee’s employment with or termination of employment from Employer. Employer acknowledges and
understands, however, that Employee does not release any claims that the law does not allow to be
waived or any claims that may arise after the date on which Employee signs this Agreement.
Employee also agrees not to seek re-employment with Employer in the future.
C. Non-Disclosure
Employee agrees that Employee shall not disclose to any person or entity at any time or in any
manner, directly or indirectly, any information relating to the operations of Employer, Employer’s
affiliates, or Employer’s customers, clients or suppliers that has not already been disclosed to
the general public. The parties agree that this provision includes, but is not limited to, the
following information: compensation practices or arrangements; human resources practices; employee
or former employee names, lists or contact information; financial information; budgets; products
and services; strategic business or marketing plans; proprietary information and/or trade secrets;
operating procedures; customer lists and/or names; product and service prices; customer charges;
contracts; contract negotiations; employee relations matters; and any other proprietary information
related to the business of Employer or its affiliates. Employee understands that this listing is
not all-inclusive and is provided by way of example. Employee further understands that Employee
continues to be bound by the terms and obligations contained in any and all confidentiality
agreements signed by Employee during the course of Employee’s employment with Employer, which shall
survive and are enforceable following the Employee’s Separation Date according to the terms of such
agreements.
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D. Mutual Nondisparagement and Neutral Reference
Employee agrees not to express any derogatory or damaging statements about Employer or its
directors, officers, employees or agents, or the management of Employer, or Employer’s business
condition. Likewise, Employer agrees not to express any derogatory or disparaging statements about
Employee. In addition, Employer agrees to provide prospective employers of Employee with a neutral
reference, including only Employee’s name, job title, and dates of employment.
E. Confidentiality
Employee and Employer acknowledge that this agreement will be filed as a public document with the
Securities and Exchange Commission.
F. Future Cooperation
Employee hereby agrees, if requested by Employer, to fully cooperate in assisting Employer and its
counsel in any litigation, proceeding, claim or dispute which arose before, during, or after
Employee’s employment, and of which Employee has knowledge. If Employer makes a request of
Employee to participate in such, and travel is necessary, Employer shall pay reasonable travel
expenses consistent with Employer’s current travel policy in effect as of the Separation Date.
Employer shall at its cost provide representation of its choice for any preparation for or
representation of Employee, if Employer requests such services. If Employer requests assistance
from Employee that requires Employee to provide work product, review prior work or analysis or
spend time in preparation for testimony or litigation, Employer shall reimburse Employee for
Employee’s time at an hourly rate consistent with Employee’s regular base salary at the time of
Employee’s separation.
Employee further agrees to cooperate in assisting Employer with the transition of her
responsibilities to her successor by engaging in general discussions with, or responding to
questions of, Employer. If Employer requests Employee to participate in specific projects for
Employer, and if Employee is available and able to assist Employer with such projects, Employer
will compensate Employee for her time at an hourly rate consistent with Employee’s regular base
salary at the time of Employee’s separation.
G. Covenant Not to Solicit
Employee hereby consents and agrees that for a period ending one (1) year following the Separation
Date, Employee shall not solicit, induce or attempt to induce, directly or indirectly, any employee
of Employer or any of its affiliates to discontinue their employment with Employer or any of its
affiliates, or induce or attempt to participate in any way to induce any employee of Employer or
any of its affiliates to breach any agreement with Employer or any of its affiliates. Employee
further consents and agrees that for a period ending one (1) year following the Separation Date,
Employee shall not solicit, induce or attempt to induce, directly or indirectly, any supplier,
contractor, consultant or other representative of Employer or any of its affiliates to terminate
their or its relationship with Employer or any of its affiliates. Employee further consents and
agrees that for a period ending one (1) year following the Separation Date, Employee shall not
solicit, induce or attempt to induce, directly or indirectly, any customer or client of Employer or
its affiliates to discontinue their business relationship with Employer or any of its affiliates.
H. Covenant Not to Compete
Employee acknowledges that during the course of her employment in the business of Employer prior to
the Separation Date, Employee may have developed relationships with certain competing
organizations, as well as with contractors, subcontractors or customers of the Employer and
subsidiaries and affiliates, and that the Employee had access during the course of Employee’s
employment with Employer to information about the business of Employer which is confidential and/or
constitutes trade secrets. Employee hereby covenants and agrees that for a period ending one (1)
year following the Separation Date, Employee shall not engage directly or indirectly, either for
Employee or another, or as an employee,
partner, consultant, affiliate or controlling stockholder of any person or entity so engaged in
providing of products, services or events similar to those of Employer or any of its affiliates,
nor compete or aid another to compete in any way with Employer or with any parent, subsidiary or
affiliate of Employer which may be engaged in any such businesses similar to Employer.
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Nothing contained herein shall prevent Employee from purchasing or owning any stock listed on a
stock exchange or traded in the over-the-counter market provided such purchases shall not result in
Employee owning in the aggregate, directly or beneficially, 5% or more of the securities of any
corporation engaged in a business which is competitive to that of the Employer.
I. Injunctive Relief
Employee acknowledges that a breach of any of the provisions of Sections II. C-H of this Agreement
will irreparably and continually damage Employer, for which money damages may not be adequate.
Consequently, Employee agrees that in the event Employee breaches or threatens to breach any of
these covenants, Employer shall be entitled to preliminary and permanent injunction in order to
prevent the continuation of such harm, and money damages insofar as they can be determined.
Nothing in this Agreement shall be construed to prohibit Employer from pursuing any other remedy,
the parties having agreed that all remedies are cumulative.
J. Return of Equipment and Documents
Unless otherwise noted in this Agreement, Employee shall return all of Employer’s property and
information within Employee’s possession (“Property”). Such property includes, but is not limited
to, documents, correspondence, credit cards, copy machines, facsimile machines, pagers, entry
cards, keys, building passes, computer software, manuals, journals, diaries, files, lists, codes,
and methodologies particular to Employer and any and all copies thereof. Moreover, Employee is
strictly prohibited from making copies, or directing copies to Employee through e-mail or other
transmission, of any of Employer’s property covered by this paragraph. Further, Employee covenants
and agrees not to, or direct or solicit others to, destroy any Property.
K. Claims Involving Employer
Employee represents that Employee has not instituted, filed or caused others to file or institute
any charge, complaint or action against Company. Employee covenants that, to the full extent
permitted by law, Employee will not file or institute any charge, complaint or action against
Company with respect to any matters arising before or on the date Employee signs this Agreement.
Employee will not recommend or suggest to any potential claimants or employees of Employer or their
attorneys or agents that they initiate claims or lawsuits against the Company, nor will Employee
voluntarily aid, assist, or cooperate with any claimants or employees of Employer or their
attorneys or agents in any claims or lawsuits now pending or commenced in the future against the
Company; provided, however, that nothing in this paragraph will be construed to prevent Employee
from giving truthful testimony in response to direct questions asked pursuant to a lawful subpoena
during any future legal proceedings involving the Company.
L. Attorney’s Fees
Each party shall pay its own attorney’s fees and costs to enforce any term and provision of this
Agreement in any action before any agency, tribunal, court or forum whatsoever, in law or in
equity.
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M. Time to Consider Agreement
| • | Employee understands and acknowledges that Employee has forty-five (45) days from
the date Employee receives this Agreement to consider and sign it. Employee understands and
acknowledges that Employee may revoke this Agreement at any time during the seven (7) day
period immediately following the date Employee signs the Agreement, and unless timely revoked,
shall be deemed final and binding. This Agreement shall not become enforceable by either party
or effective until the expiration of such seven (7) day revocation period. Employee agrees to
provide any such revocation in writing to Employer at the following address postmarked on or
before midnight on the seventh (7th) day following execution of this Agreement: Xxxxx X. Xxxxx,
VP-General Counsel, 0000 X. Xxxxxxx Xxx., Xxxxx 000, Xxxxxxx, XX 00000-0000. The effective date
of the Agreement is the day after the revocation period expires (“Effective Date”). |
| • | Employee understands that Employee will not receive the benefits and privileges of
this Agreement until the Effective Date. This Agreement will be deemed withdrawn by Employer
and null and void unless Employee signs the Agreement on or before the expiration of the
applicable consideration period, as described in the prior paragraphs. |
N. Invalidity and Partial Invalidity; Severability
If any term or provision of this Agreement shall be determined by a court of competent jurisdiction
to be against public policy, invalid or unenforceable, the remainder of this Agreement or the
application of such term or provision other than those terms or provisions which are held invalid
or unenforceable, shall not be affected thereby, and each term and provision of this Agreement
shall be valid and enforced to the full extent permitted by law. If, moreover, any one or more of
the provisions contained in this Agreement shall for any reason be held to be excessively broad as
to time, duration, geographical scope, activity or subject, it shall be construed, by limiting and
reducing it, so as to be enforceable to the extent compatible with the applicable law as it shall
then appear.
O. Full Compensation
Employee agrees that the payments made and other consideration provided by Employer under this
Agreement constitute full and sufficient compensation for the covenants and agreements of Employee
herein, and for the release of all of Employee’s claims as set forth in the Agreement, including,
but not limited to, all claims for attorneys’ fees, costs, and disbursements, and all claims for
any type of legal or equitable relief.
P. No Admission of Wrongdoing
Employee understands and acknowledges that this Agreement does not constitute an admission that
Employer has violated any local ordinance, state or federal statute, or principle of common law, or
that Employer has engaged in any improper or unlawful conduct or wrongdoing against Employee.
Employee agrees that Employee will not characterize this Agreement or the payment of any money or
other consideration in accord with this Agreement as an admission that Employer has engaged in any
wrongdoing.
Q. Breach of Agreement; Revocation of Severance Paid
Employee agrees that a breach or other violation by employee of any of the provisions of this
Agreement shall be sufficient grounds for Employer to terminate this Agreement immediately,
discontinue all payments due hereunder, and demand and be entitled to repayment of all payments
made hereunder.
R. Arbitration
Except to the extent that claims by Employer or Employee are for injunctive relief, any dispute or
difference of opinion between Employee and Employer (including all employees, partners or
contractors of Employer) involving the formation of this Agreement, or the meaning, interpretation,
or application of any provision of this Agreement, or any other dispute between Employee and
Employer which relates to or arises out of the employment relationship between the parties, shall
be settled exclusively by binding
arbitration before one neutral arbitrator, and judgment on the award rendered by the arbitrator may
be entered and enforced in any court having jurisdiction thereof.
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S. Governing Law
This Agreement will be construed in accordance with, and any dispute or controversy arising from
any breach or asserted breach of this Agreement will be governed by, the laws of the State of
Arizona, except as may otherwise be interpreted, enforced and governed or preempted by Federal law.
T. Entire Agreement
This Agreement contains the entire agreement between the parties hereto, and supersedes all prior
agreements, written and verbal, except for Employee’s Employee Patent and Trade Secret Agreement,
use of Company-owned Computer Systems, Always Honest Agreements, Management Incentive Plan
Participation Agreement, Performance Unit Plan, Restricted Stock and Performance Based Restricted
Stock Agreements(s), which will remain in full force and effect, it being understood that this
Agreement is in addition to and not in substitution for the covenants and obligations contained in
such Agreements, and that language as it pertains to non-competition, will be applied consistently
throughout all prior agreements as described in Section II. H. of this Agreement.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
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III. Attestation
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT INCLUDES A RELEASE OF KNOWN AND UNKNOWN
CLAIMS.
EMPLOYEE HEREBY STATES THAT, BEING OF LAWFUL AGE AND LEGALLY COMPETENT TO EXECUTE THIS AGREEMENT,
EMPLOYEE HAS SIGNED THIS AGREEMENT AS A FREE AND VOLUNTARY ACT AND BEFORE DOING SO EMPLOYEE HAS
BECOME FULLY INFORMED OF ITS CONTENT BY READING THE SAME OR HAVING IT READ TO EMPLOYEE SO THAT
EMPLOYEE FULLY UNDERSTANDS ITS CONTENT AND EFFECT. OTHER THAN AS STATED HEREIN, THE PARTIES AGREE
THAT NO PROMISE OR INDUCEMENT HAS BEEN OFFERED FOR THIS AGREEMENT AND THAT THE PARTIES ARE LEGALLY
COMPETENT TO EXECUTE THE SAME.
EMPLOYEE FURTHER STATES THAT EMPLOYEE HAS BEEN ADVISED TO CONSULT AN ATTORNEY, THAT EMPLOYEE HAS
BEEN GIVEN SUFFICIENT OPPORTUNITY TO REVIEW THIS DOCUMENT WITH AN ATTORNEY BEFORE EXECUTING IT AND
THAT EMPLOYEE HAS DONE SO OR HAS VOLUNTARILY ELECTED NOT TO DO SO.
| EMPLOYEE | ||||
| /s/ Xxxxxxx Xxxxx | July 23, 2009 | |||
| Xxxxxxx Xxxxx | Date | |||
APPROVED BY VIAD CORP (EMPLOYER) |
||||
/s/ Xxxxx X. Xxxxx
Vice President-General Counsel & Secretary |
July 23, 2009
|
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I, Xxxxxxx Xxxxx, understand that I have forty-five (45) days to consider and
execute this Agreement. After careful consideration and/or the opportunity to consult with a
lawyer, at my choice, I have freely and voluntarily elected to execute the Agreement before
expiration of the forty-five (45) day period.
/s/ Xxxxxxx Xxxxx
|
July 23, 2009
|
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