INDEMNIFICATION AGREEMENT
Exhibit 10.1
This Indemnification Agreement (“Agreement”) is made
as of
the
day
of ,
by and between Viad Corp (the “Corporation”), a
Delaware corporation,
and ,
a Director of the Corporation (the “Director”).
Recitals
A. The Director has been elected to serve as a director of
the Corporation and the Corporation desires the Director to
continue in such capacity.
B. In addition to the indemnification to which the Director
is entitled under the Restated Certificate of Incorporation of
the Corporation (the “Articles”), the Corporation at
its sole expense maintains insurance protecting its officers and
directors against certain losses arising out of actual or
threatened actions, suits or proceedings to which such persons
may be made or threatened to be made parties
(“D & O Insurance”). However, the coverage
of the Corporation’s D & O Insurance has
decreased in recent years and the Corporation and the Director
cannot be sure that insurance coverage will continue to be
available in the future or, if available, that it will not be
unreasonably expensive to purchase and maintain.
C. The Articles and the Delaware General Corporation Law
specifically provide that they are not exclusive, and thereby
contemplate that contracts may be entered into between the
Corporation and the members of its Board of Directors with
respect to indemnification of such directors.
Agreement
In order to induce the Director to continue to serve in the
Director’s capacity as a director and in consideration of
the Director’s valuable services for the Corporation, the
Corporation and the Director agree as follows:
1. Continued Service. Director
will continue to serve at the will of the Corporation, or in
accordance with separate contract to the extent that such a
contract is in effect at the time in question, as a director of
the Corporation so long as the Director is duly elected and
qualified in accordance with the Articles and the Bylaws of the
Corporation (“Bylaws”) or until the Director resigns
in accordance with applicable law.
2. Indemnity of Director. The
Corporation shall hold harmless and indemnify Director to the
full extent authorized or permitted by the provisions of the
Delaware General Corporation Law or by any amendment thereof or
other statutory provisions authorizing or permitting such
indemnification which is adopted after the date hereof.
3. Maintenance of Insurance and Self
Insurance.
(a) Subject only to the provisions of Section 3(b)
hereof, so long as Director shall continue to serve as a
director of the Corporation (or shall continue at the request of
the Corporation to serve as a director of another corporation,
partnership, joint venture, trust or other enterprise) and
thereafter so long as Director shall be subject to any possible
claim or threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative by reason of the fact that Director was a director
of the Corporation or served in any of said other capacities,
the Corporation will purchase and maintain in effect for the
benefit of Director one or more valid, binding and enforceable
policies of D & O Insurance providing, in all
respects, coverage at least comparable to that presently
provided.
(b) The Corporation shall not be required to maintain said
policies of D & O Insurance in effect if said
insurance is not reasonably available or if, in the reasonable
business judgment of the then directors of the Corporation,
either (i) the premium cost for such insurance is
substantially disproportionate to the amount of coverage or
(ii) the coverage provided by such insurance is so limited
by exclusions that there is insufficient benefit from such
insurance.
(c) In the event the Corporation does not purchase and
maintain in effect said policies of D & O Insurance
pursuant to the provisions of Section 3(b) hereof, the
Corporation shall hold harmless and indemnify Director to the
full extent of the coverage which would otherwise have been
provided for the benefit of Director pursuant to such
D & O Insurance.
4. Additional Indemnity. Subject
only to the exclusions set forth in Section 5 hereof, and
without limiting any right which Director may have now or in the
future pursuant to the Delaware General Corporation Law, the
Articles, the Bylaws, any other
agreement, any resolution, any policy of insurance or otherwise,
the Corporation hereby further agrees to hold harmless and
indemnify Director:
Against any and all expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by Director in connection with any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative,
whether by third parties or by or in the right of the
Corporation to which Director at any time becomes a party, or is
threatened to be made a party, by reason of the fact that
Director is or was a director of the Corporation, or is or was
serving or at any time serves at the request of the Corporation
as a director of another corporation, partnership, joint
venture, trust or other enterprise.
5. Limitations on Additional
Indemnity. No indemnity pursuant to
Section 4 hereof shall be paid by the Corporation:
(a) for which and to the extent that payment is actually
made to Director under a valid and collectible insurance policy;
(b) for which and to the extent that Director is
indemnified or receives a recovery otherwise than pursuant to
Section 4;
(c) on account of any suit in which judgment is rendered
against Director for an accounting of profits made from the
purchase or sale by Director of securities of the Corporation
pursuant to the provisions of Section 16(b) of the
Securities Exchange Act of 1934 and amendments thereto or
similar provisions of any federal, state or local statutory law;
(d) with respect to acts or omissions which are not in good
faith or which constitute intentional misconduct or a knowing
violation of law;
(e) with respect to authorization by Director of the
unlawful payment of a dividend or other distribution on the
Corporation’s capital stock or the unlawful purchase of its
capital stock;
(f) with respect to any transaction from which Director
derived an improper personal benefit; or
(g) if a final decision by a Court having jurisdiction in
the matter shall determine that such indemnification is not
lawful.
6. Notification and Defense of
Claim. Promptly after receipt by Director of
notice of the commencement of any action, suit or proceeding,
Director will, if a claim in respect thereof is to be made
against the Corporation under this Agreement, notify the
Corporation of the commencement thereof; but the omission so to
notify the Corporation will not relieve it from any liability
which it may have to Director otherwise than under this
Agreement or from any liability which is not directly related to
the failure of Director promptly to so notify the Corporation.
With respect to any such action, suit or proceeding as to which
Director notifies the Corporation of the commencement thereof:
(a) The Corporation will be entitled to participate therein
at its own expense; and,
(b) Except as otherwise provided below, to the extent that
it may wish, the Corporation jointly with any other indemnifying
party similarly notified will be entitled to assume the defense
thereof, with counsel satisfactory to Director. After notice
from the Corporation to Director of its election so to assume
the defense thereof, the Corporation will not be liable to
Director under this Agreement for any legal or other expenses
subsequently incurred by Director in connection with the defense
thereof other than reasonable costs of investigation or as
otherwise provided below. Director shall have the right to
employ the Director’s counsel in such action, suit or
proceeding, but the fees and expenses of such counsel incurred
after notice from the Corporation of its assumption of the
defense thereof shall be at the expense of Director unless
(i) the employment of counsel by Director has been
authorized by the Corporation (ii) Director shall have
reasonably concluded that there may be a conflict of interest
between the Corporation and Director in the conduct of the
defense of such action or (iii) the Corporation shall not
in fact have employed counsel to assume the defense of such
action, in each of which cases the fees and expenses of counsel
shall be at the expense of the Corporation. The Corporation
shall not be entitled to continue the defense of any action,
suit or proceeding properly brought by or on behalf of the
Corporation or as to which Director shall have made the
conclusion provided for in (ii) above.
(c) The Corporation shall not be required to indemnify
Director under this Agreement for any amounts paid in settlement
of any action or claim effected without its written consent. The
Corporation shall not settle any action or claim in any manner
which would impose any penalty or limitation on Director without
Director’s written consent. Neither the Corporation nor
Director will unreasonably withhold its consent to any proposed
settlement.
7. Advance Payments.
(a) Director shall be entitled to receive advance payments
in the amount of all costs, charges, and expenses, including
attorney and other fees and expenses, actually and reasonably
incurred or reasonably to be incurred by Director in defense of
any action, suit or proceeding as described in Section 4
hereof.
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(b) Director agrees that the Director will reimburse the
Corporation for all costs, charges and reasonable expenses paid
or advanced by the Corporation in defending any civil, criminal,
administrative or investigative action, suit or proceeding
against Director in the event and only to the extent that it
ultimately shall be determined that Director is not entitled to
be indemnified by the Corporation for such costs, charges and
expenses under the provisions of this Agreement.
8. Indemnification Request.
1. Advancement.
(a) Director shall in order to request advanced payments
according to Section 7 hereof, submit to the Board of
Directors a sworn statement of request for advancement of
expenses in the form of Exhibit 1 attached hereto and made
a part hereof (“the Advancement Request”), stating
that (i) the Director has incurred or will incur actual
expenses in defending an action, suit, or proceeding as
described in Section 4 hereof and (ii) the Director
undertakes to repay such amount if it shall ultimately be
determined that the Director is not entitled to be indemnified
by the Corporation under this Agreement.
(b) Upon receipt of the Advancement Request the Chairman of
the Board, the President or any Vice President shall authorize
immediate payment of the expenses stated in the Advancement
Request within 10 calendar days, whereupon such payments shall
immediately be made by the Corporation. No security shall be
required in connection with any Advancement Request and it shall
be accepted without reference to Director’s ability to make
repayment.
2. Indemnification.
(a) Director, in order to request indemnification pursuant
to Section 4 hereof, shall submit to the Board of Directors
a sworn statement of request for indemnification in the form of
Exhibit 2 attached hereto and made a part hereof (the
“Indemnification Request”) stating that Director is
entitled to indemnification under this Agreement. Such
Indemnification Request shall contain a summary of the action,
suit or proceeding and an itemized list of all payments made or
to be made with respect to which indemnification is requested.
(b) The Board of Directors shall be deemed to have
determined that Director is entitled to such indemnification
unless, within 30 days after submission of the
Indemnification Request, the Board of Directors shall have
notified Director in writing that it has determined, by a
majority vote of directors who were not parties to such action,
suit or proceeding based upon clear and convincing evidence,
that Director is not entitled to indemnification under this
Agreement. The evidence shall be disclosed to Director in such
notice which shall be sworn to by all directors who participated
in the determination and voted to deny indemnification.
(c) In the event that (i) a majority vote according to
Section 8.2(b) cannot be obtained or that (ii) there
is a change in control of the Corporation (other than a change
in control which has been approved by members of the Board of
Directors who were directors prior to such change in control),
the following procedure shall take place:
(aa) Director shall choose subject to Corporation approval
(which approval shall not be unreasonably withheld) counsel who
has not performed any services for the Corporation or Director
within the last five years and who is in good standing
(“Independent Legal Counsel”).
(bb) Independent Legal Counsel shall then determine within
(i) thirty (30) days after submission of the
Indemnification Request, or (ii) the Director’s
acceptance to act as an Independent Legal Counsel, or (iii) such
reasonable time as is required under the circumstances,
whichever comes later, whether Director is entitled to
indemnification under this Agreement. Indemnification may only
be denied according to Section 5 hereof and only based upon
clear and convincing evidence. In the case of a denial,
Independent Legal Counsel shall submit to the Board of Directors
and to Director within 10 days after the decision a written
opinion disclosing the grounds and the evidence upon which such
decision was based. The decision of Independent Legal Counsel
shall be final.
(d) The termination of any action, suit or proceeding by
judgement, order, settlement or conviction, or upon a plea of no
contest or its equivalent, shall not, of itself, create a
presumption that Director’s conduct was such that indemnity
is not available pursuant to Section 5.
9. Continuation of Indemnity. All
agreements and obligations of the Corporation contained herein
shall continue during the period Director is a director of the
Corporation (including service at the request of the Corporation
as a director of another corporation, partnership, joint
venture, trust or other enterprise) and shall continue
thereafter so long as Director shall be subject to any possible
claim or threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that Director was a
director of the Corporation or serving in any other capacity
referred to herein.
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10. Enforcement.
(a) The Corporation expressly confirms and agrees that it
has entered into this Agreement and assumes the obligations
imposed on the Corporation hereby in order to induce Director to
serve or continue to serve as a director of the Corporation, and
acknowledges that Director is relying upon this Agreement in
continuing in such capacity.
(b) In the event Director is required to bring any action
to enforce rights or to collect moneys due under this Agreement
and is successful in such action, the Corporation shall
reimburse Director for all of Director’s reasonable fees
and expenses in bringing and pursuing such action.
11. Severability. If any provision
of this Agreement or the application of any provision hereof to
any person or circumstance is held invalid, unenforceable or
otherwise illegal, the remainder of this Agreement and the
application of such provision to other persons or circumstances
shall not be affected, and the provision so held to be invalid,
unenforceable or otherwise illegal shall be reformed to the
extent (and only to the extent) necessary to make it
enforceable, valid and legal.
12. Governing Law; Binding Effect; Amendment and
Termination.
(a) This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Delaware.
(b) This Agreement shall be binding upon Director and upon
the Corporation, its successors and assigns, and shall inure to
the benefit of Director, the Director’s heirs, personal
representatives and assigns and to the benefit of the
Corporation, its successors and assigns.
(c) No amendment, modification, termination or cancellation
of this Agreement shall be effective unless in writing signed by
both parties hereto.
13. Stockholder Ratification or
Agreement. This Agreement is made subject to
ratification by (or prior approval of the form and execution of
this Agreement having been granted by) the stockholders of this
Corporation, provided, however, that Director’s rights
hereunder shall be effective pending ratification as herein
provided.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on and as of the day and year first above written.
| By |
Xxxx X. Xxxxxxx, Chairman, President and
Chief Executive Officer
[DIRECTOR NAME]
Exhibit 1
Advancement Request
|
State of
|
) | |
| ) | ||
|
County of
|
) |
I,
,
being first duly sworn, do depose and say as follows:
1. This Advancement Request is submitted pursuant to the
Indemnification Agreement,
dated ,
(“Indemnification Agreement”), between Viad Corp (the
“Corporation”), a Delaware corporation, and the
undersigned.
2. I am requesting advancement of certain costs, charges
and expenses which I have incurred or will incur in defending a
civil, criminal, administrative or investigative action, suit,
proceeding or claim as described below.
3. I hereby undertake to repay amounts advanced by the
Corporation if it shall ultimately be determined that I am not
entitled to be indemnified by the Corporation under the
aforesaid Indemnification Agreement.
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4. The costs, charges and expenses for which advance is
requested have been or will be incurred as follows (summarize
proceeding and itemize expenses):
| Director | ||||||
Subscribed and sworn to before me, a Notary Public in and for
said County and State,
this
day
of , .
(Seal)
My commission expires
the
day
of , .
Exhibit 2
Indemnification Request
|
State of
|
) | |
| ) | ||
|
County of
|
) |
I,
,
being first duly sworn, do depose and say as follows:
1. This Indemnification Request is submitted pursuant to
the Indemnification Agreement,
dated ,
(“Indemnification Agreement”), between Viad Corp (the
“Corporation”), a Delaware corporation, and the
undersigned.
2. I am requesting indemnification against charges, costs,
expenses (including attorneys’ fees and expenses),
judgments, fines and amounts paid in settlement, all of which
(collectively, “Liabilities”) have been incurred by me
in connection with any action, suit, proceeding or claim to
which I was a party.
3. With respect to all matters related to such action,
suit, proceeding or claim, I am entitled to be indemnified
pursuant to the aforesaid Indemnification Agreement.
4. Without limiting any other rights which I have or may
have, I am requesting indemnification against Liabilities which
have arisen as follows (describe proceedings and itemize
Liabilities):
| Director | ||||||
Subscribed and sworn to before me, a Notary Public in and for
said County and State,
this day
of , .
(Seal)
My commission expires
the day
of , .
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