EXHIBIT 10.C2
VIAD CORP
1997 OMNIBUS INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
AS AMENDED AUGUST 13, 2004
(NQ)
Viad Corp (Corporation), a Delaware corporation, grants to _________
(Grantee) the option (Option) to purchase from the Corporation, pursuant to the
Viad Corp 1997 Omnibus Incentive Plan (Plan), at the price of $_________ per
share (Option Price) _________Shares of its Common Stock, par value $1.50 each
(Common Stock) through the exercise of this Option in accordance with the terms
and conditions hereinafter set forth.
1. OPTION PERIOD AND TERMINATION OF EMPLOYMENT OF GRANTEE. The period
during which this Option may be exercised (Option Period) is the period
beginning on the date hereof and ending seven (7) years from such date, subject
to Section 2 below, and during this period this Option may be exercised only by
the Grantee personally and while a director or an employee of the Corporation or
a subsidiary or division thereof (Affiliate), except that:
(a) If the Grantee ceases to be a director or an employee of the
Corporation or any Affiliate of the Corporation for any reason, excluding death,
disability, retirement and termination of employment for Cause (as defined in
the Plan), the option rights hereunder (as they exist on the day the Grantee
ceases to be a director or employee) may be exercised only within a period of
three (3) months thereafter, subject to the notice requirements and forfeiture
provisions set forth below, or prior to the expiration of the Option Period,
whichever shall occur sooner. If Grantee is an employee and is terminated for
Cause, all the option rights hereunder shall expire immediately upon the giving
to such Grantee of notice of such termination.
(b) If the Grantee ceases to be a director or an employee of the
Corporation or any Affiliate of the Corporation due to death, or dies within the
three month or three year periods referred to in Sections (a) or (c) of this
Section 1, the option rights hereunder (as they exist immediately prior to the
Grantee's death) may be exercised by the Grantee's personal representative only
during a period of twelve (12) months thereafter in the case of death and only
during a period of three (3) years thereafter in the case of disability,
provided, if the Grantee dies within such three-year period, any unexercised
option held by the Grantee will, notwithstanding the expiration of such
three-year period, continue to be exercisable to the extent to which it was
exercisable at the time of death for a period of twelve (12) months from the
date of such death, subject in each case to the notice requirements set forth
below, or prior in each case to the expiration of the Option Period, whichever
shall occur sooner.
(c) If the Grantee ceases to be a director or an employee of the
Corporation or any Affiliate of the Corporation by reason of disability, the
option rights hereunder (as they exist on the day the Grantee ceases to be such
director or employee) may be exercised only within a period of three (3) years
thereafter, subject to Section 2(c) below and further subject to the notice
requirements set forth below, or prior to the expiration of the Option Period,
whichever shall occur sooner.
(d) If the Grantee ceases to be a director or an employee of the
Corporation or any Affiliate of the Corporation by reason of retirement, the
option rights hereunder (as they exist on the day the Grantee ceases to be such
director or employee) may be exercised only within a period of five (5) years
thereafter, subject to Section 2(c) below and further subject to the notice
requirements and non-compete and forfeiture provisions set forth below, or prior
to the expiration of the Option Period, whichever shall occur sooner.
2. METHOD OF EXERCISE OF THIS OPTION. This Option may be exercised in the
manner hereinafter prescribed, in whole or in part, at any time or from time to
time, during the Option Period as follows.
(a) 20% of the Shares hereby optioned at any time after one year from the
date hereof,
(b) 20% of the Shares hereby optioned at any time two years from the date
hereof,
(c) 20% of the Shares hereby optioned at any time three years from the
date hereof,
(d) 20% of the Shares hereby optioned at any time four years from the date
hereof, and
(e) the balance of the Shares hereby optioned at any time after five years
from the date hereof, provided that 100 Shares, or the total number of Shares
remaining unpurchased hereunder, if less than 100 Shares, is the
(USA NQ 1)
minimum number which may be purchased hereunder at any one time. This Option
shall not be exercisable prior to the expiration of one year from the date of
grant, except as otherwise specified in the Plan. All purchases hereunder must
be completed within the time periods prescribed herein for the exercise thereof.
(f) Notwithstanding Sections (a), (b), (c), (d) and (e) of this Section 2
if the Grantee ceases to be a director or an employee of the Corporation by
reason of death, disability or retirement, this Option (to the extent valid and
outstanding as of the date such Grantee ceases to be a director or an employee)
if not then exercisable shall become fully exercisable to the full extent of the
original grant; provided, however, that if such date such Grantee ceases to be a
director or an employee is within six months of the date of grant of a
particular Stock Option held by a Grantee who is an officer or director of the
Corporation and is subject to Section 16(b) of the Exchange Act this Option
shall not become fully exercisable until six months and one day after such date
of grant.
On or before the expiration of the Option Period specified herein,
written notice of the exercise of this Option with respect to all or a part of
the Common Stock hereby optioned may be mailed or delivered to the Corporation
by the Grantee in substantially the form attached hereto or in such other form
as the Corporation may require, properly completed and among other things
stating the number of Shares of Common Stock with respect to which the Option is
being exercised, and specifying the method of payment for such Common Stock. The
notice must be mailed or delivered prior to the expiration of this Option.
Before any stock certificates shall be issued, the entire purchase
price of the Common Stock purchased shall be paid to the Corporation.
Certificates, registered in the name of the purchaser for the Common Stock
purchased, will be issued to the purchaser as soon as practicable thereafter.
Failure to pay the purchase price for any Common Stock within the time specified
in said notice shall result in forfeiture of the Grantee's right to purchase the
Common Stock at a later date and the number of Shares of Common Stock which may
thereafter be purchased hereunder shall be reduced accordingly.
The purchase price may be paid either entirely in cash or in whole
or in part with unrestricted Common Stock already owned by the Grantee. If the
Grantee elects to pay the purchase price entirely in cash, he will be notified
of the purchase price by the Corporation. If the Grantee elects to pay the
purchase price either substantially all with Common Stock or partly with Common
Stock and the balance in cash, he will be notified by the Corporation of the
fair market value of the Common Stock on the exercise date and the amount of
Common Stock or cash payable. Within five business days after the exercise date,
the Grantee shall deliver to the Corporation either cash or Common Stock
certificates, in negotiable form, at least equal in value to the purchase price,
or that portion thereof to be paid for with Common Stock, together with cash
sufficient to pay the full purchase price. Only full Shares of Common Stock
shall be utilized for payment purposes.
To the extent permissible under applicable tax, securities, and
other laws, the Corporation will permit Grantee to satisfy a tax withholding
requirement by surrendering Shares, including Shares to which Grantee is
entitled as a result of the exercise of this Option, in such manner as the
Corporation shall choose in its discretion to satisfy such requirement.
3. FORFEITURE AND REPAYMENT PROVISIONS. Unless a Change of Control (as
defined in the Plan) shall have occurred after the date hereof:
(a) CERTIFICATION. The right to exercise this Option shall be conditional
upon certification by the Grantee at time of exercise that the Grantee has read
and understands the forfeiture and repayment provisions set forth in this
Section 3, that the Grantee has not engaged in any misconduct or acts contrary
to the Corporation as described below, and that Grantee has no intent to leave
employment with the Corporation or any of its Affiliates for the purpose of
engaging in any activity or providing any services which are contrary to the
spirit and intent of Section 3(b).
(b) NON-COMPETE. Unless a Change of Control (as defined in the Plan) shall
have occurred after the date hereof:
(i) In order to better protect the goodwill of the Corporation
and its Affiliates and to prevent the disclosure of the Corporation's or its
Affiliates' trade secrets and confidential information and thereby help insure
the long-term success of the business, the Grantee, without prior written
consent of the Corporation, will not engage in any activity or provide any
services, whether as a director, manager, supervisor, employee, adviser, agent,
consultant, owner of more than five (5) percent of any enterprise or otherwise,
for a period of two (2) years following the date of the Grantee's termination of
employment with the Corporation or any of its Affiliates, in connection with the
manufacture, development, advertising, promotion, design, or sale of any service
or product which is the same
(USA NQ 2)
as or similar to or competitive with any services or products of the Corporation
or its Affiliates (including both existing services or products as well as
services or products known to the Grantee, as a consequence of the Grantee's
employment with the Corporation or one of its Affiliates, to be in development):
(1) with respect to which the Grantee's work has been
directly concerned at any time during the two (2) years preceding termination of
employment with the Corporation or one of its Affiliates, or
(2) with respect to which during that period of time the
Grantee, as a consequence of the Grantee's job performance and duties, acquired
knowledge of trade secrets or other confidential information of the Corporation
or its Affiliates.
(ii) For purposes of the provisions of Section 3(b), it shall
be conclusively presumed that the Grantee has knowledge of information he or she
was directly exposed to through actual receipt or review of memos or documents
containing such information, or through actual attendance at meetings at which
such information was discussed or disclosed.
(iii) The Corporation is authorized to suspend or terminate
this Option and any other outstanding stock option or stock appreciation right
held by the Grantee prior to or after termination of employment if the Grantee
engages in any conduct agreed to be avoided pursuant to the provisions of
Section 3(b) at any time within the two (2) years following the date of the
Grantee's termination of employment with the Corporation or any of its
Affiliates.
(iv) If, at any time within two (2) years after the date of
the Grantee's termination of employment with the Corporation or any of its
Affiliates, Grantee engages in any conduct agreed to be avoided pursuant to the
provisions of Section 3(b), then any gain (without regard to tax effects)
realized by Grantee from the exercise of this Option, in whole or in part, shall
be paid by Grantee to the Corporation. Grantee consents to the deduction from
any amounts the Corporation or any of its Affiliates owes to Grantee to the
extent of the amounts Grantee owes the Corporation hereunder.
(c) MISCONDUCT. Unless a Change of Control shall have occurred after the
date hereof:
(i) The Corporation is authorized to suspend or terminate this
Option and any other outstanding stock option or stock appreciation right held
by the Grantee prior to or after termination of employment if the Corporation
reasonably determines that during the Grantee's employment with the Corporation
or any of its Affiliates:
(1) Grantee knowingly participated in misconduct that
causes a misstatement of the financial statements of Viad or any of its
Affiliates or misconduct which represents a material violation of any code of
ethics of the Corporation applicable to the Grantee or of the Always Honest
compliance program or similar program of the Corporation; or
(2) Grantee was aware of and failed to report, as
required by any code of ethics of the Corporation applicable to the Grantee or
by the Always Honest compliance program or similar program of the Corporation,
misconduct that causes a misstatement of the financial statements of Viad or any
of its Affiliates or misconduct which represents a material knowing violation of
any code of ethics of the Corporation applicable to the Grantee or of the Always
Honest compliance program or similar program of the Corporation.
(ii) If, at any time after the Grantee exercises this Option
in whole or in part, the Corporation reasonably determines that the provisions
of Section 3(c) applies to the Grantee, then any gain (without regard to tax
effects) realized by the Grantee from such exercise shall be paid by Grantee to
the Corporation. The Grantee consents to the deduction from any amounts the
Corporation or any of its Affiliates owes to the Grantee to the extent of the
amounts the Grantee owes the Corporation under this Section 3.
(d) ACTS CONTRARY TO CORPORATION. Unless a Change of Control shall have
occurred after the date hereof:
(i) The Corporation is authorized to suspend or terminate this
Option and any other outstanding stock option or stock appreciation right held
by the Grantee prior to or after termination of employment if the Corporation
reasonably determines that Grantee has acted significantly contrary to the best
interests of the Corporation, including, but not limited to, any direct or
indirect intentional disparagement of the Corporation.
(USA NQ 3)
(ii) If, at any time within two (2) years after the Grantee
exercises this Option in whole or in part, the Corporation reasonably determines
that Grantee has acted significantly contrary to the best interests of the
Corporation, including, but not limited to, any direct or indirect intentional
disparagement of the Corporation, then any gain (without regard to tax effects)
realized by the Grantee from such exercise shall be paid by Grantee to the
Corporation. The Grantee consents to the deduction from any amounts the
Corporation or any of its Affiliates owes to the Grantee to the extent of the
amounts the Grantee owes the Corporation under this Section 3.
(e) The Corporation's reasonable determination required under
Sections 3(c)(i) and (ii) and 3(d)(i) and (ii) shall be made by the Human
Resources Committee of the Corporation's Board of Directors, in the case of
executive officers of the Corporation, and by the Chief Executive Officer and
Corporate Compliance Officer of the Corporation, in the case of all other
officers and employees.
4. NON-TRANSFERABILITY OF THIS OPTION. This Option may not be assigned,
encumbered or transferred, in whole or in part, except by the Grantee's will or
in accordance with the applicable laws of descent and distribution or as
otherwise provided or permitted under the Plan, except that a Grantee holding a
Non-Qualified Stock Option may designate as the transferee of any such Option
any member of such Grantee's "Immediate Family"(as defined in Rule 16a, as
promulgated by the Commission under the Exchange Act) or to a trust whose
beneficiaries are members of such Grantee's Immediate Family, without payment of
consideration, to have the power to exercise such Option, and be subject to all
the conditions of such Option prior to such designation, such power to exercise
to become effective only in the event that such optionee shall die prior to
exercising such Option.
5. ADJUSTMENTS FOR CHANGES IN CAPITALIZATION OF CORPORATION. The Common
Stock covered by this Option is, at the option of the Corporation, either
authorized but unissued or reacquired Common Stock. In the event of any merger,
reorganization, consolidation, recapitalization, stock dividend, stock split,
extraordinary distribution with respect to the Common Stock or other change in
corporate structure affecting the Common Stock during the Option Period, the
number of Shares of Common Stock which may thereafter be purchased pursuant to
this Option and the purchase price per share, shall be appropriately adjusted,
or other appropriate substitutions shall be made, and the determination of the
Board of Directors of the Corporation, or the Human Resources Committee of the
Board of Directors, as the case may be, as to any such adjustments shall be
final, conclusive and binding upon the Grantee.
6. EFFECT OF CHANGE IN CONTROL. (a) In the event of a Change in Control
(as defined in the Plan), this Option (to the extent outstanding as of the date
such Change in Control is determined to have occurred) if not then exercisable
and vested shall become fully exercisable and vested to the full extent of the
original grant.
(b) Notwithstanding any other provision of the Plan, during the 60-day
period from and after a Change in Control (the "Exercise Period"), the Grantee
shall have the right, whether or not this Option is fully exercisable and in
lieu of the payment of the exercise price for the Shares of Common Stock being
purchased under the Option and by giving notice to the Corporation, to elect
(within the Exercise Period) to surrender all or part of the Option to the
Corporation and to receive cash, within 30 days of such notice, in an amount
equal to the amount by which the Change in Control Price (as defined in the
Plan) per share of Common Stock on the date of such election shall exceed the
exercise price per share of Common Stock under the Option (the "Spread")
multiplied by the number of Shares of Common Stock granted under the Option as
to which the right granted hereunder shall have been exercised; provided,
however, that if the Change in Control is within six months of the date of grant
of a particular Option held by a Grantee who is an officer or director of the
Corporation and is subject to Section 16(b) of the Securities Exchange Act of
1934 no such election shall be made by such Grantee with respect to such 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 an Option held by a Grantee who is an
officer or director of the Corporation and is subject to Section 16(b), such
Option shall be canceled in exchange for a cash payment to the Grantee, 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 Common Stock
granted under the Option.
7. PLAN AND PLAN INTERPRETATIONS AS CONTROLLING. This Option and the terms
and conditions herein set forth are subject in all respects to the terms and
conditions of the Plan, which are controlling. The Plan provides that the Board
may amend the Plan, and that the Committee may interpret it and establish
regulations for the administration thereof; provided that no such amendment or
regulation shall impair the rights of any Grantee under an Option without the
Grantee's consent, except an amendment for purposes of compliance with the
federal securities laws. The Grantee, by acceptance of this Option, agrees to be
bound by said Plan and such Board and Committee actions.
(USA NQ 4)
8. TERMINATION OF THE PLAN; NO RIGHT TO FUTURE GRANTS. By entering into
this Option Agreement, the Grantee acknowledges: (a) that the Plan is
discretionary in nature and may be suspended or terminated by the Corporation at
any time; (b) that each grant of an Option is a one-time benefit which does not
create any contractual or other right to receive future grants of Options, or
benefits in lieu of Options; (c) that all determinations with respect to any
such future grants, including, but not limited to, the times when the Option
shall be granted, the number of Shares subject to each Option, the Option price,
and the time or times when each Option shall be exercisable, will be at the sole
discretion of the Corporation; (d) that the Grantee's participation in the Plan
shall not create a right to further employment with the Grantee's employer and
shall not interfere with the ability of the Grantee's employer to terminate the
Grantee's employment relationship at any time with or without cause; (e) that
the Grantee's participation in the Plan is voluntary; (f) that the value of the
Options is an extraordinary item of compensation which is outside the scope of
the Grantee's employment contract, if any; (g) that the Option is not part of
normal and expected compensation for purposes of calculating any severance,
resignation, bonuses, pension or retirement benefits or similar payments; (h)
that the right to purchase Common Stock ceases upon termination of employment
for any reason except as may otherwise be explicitly provided in the Plan or
this Option Agreement; (i) that the future value of the Shares is unknown and
cannot be predicted with certainty; (j) that if the underlying Shares do not
increase in value, the Option will have no value; and (k) the foregoing terms
and conditions apply in full with respect to any prior Option grants to Grantee.
9. GOVERNING LAW. This agreement is governed by and is to be construed and
enforced in accordance with the laws of Arizona.
This Option may not be exercised whenever such exercise or the
issuance of any of the optioned Shares would be contrary to law or the
regulations of any governmental authority having jurisdiction.
IN WITNESS WHEREOF, VIAD CORP has caused this Option to be duly executed in its
name.
Dated: ____________, 2004
VIAD CORP
_______________________________
By: ROBERT H. BOHANNON
ATTEST: Chairman, President and
Chief Executive Officer
___________________________________
Secretary or Assistant Secretary
THIS NON-QUALIFIED STOCK AGREEMENT SHALL BE EFFECTIVE ONLY UPON EXECUTION BY THE
GRANTEE AND DELIVERY TO AND RECEIPT BY THE CORPORATION.
ACCEPTED AND AGREED:
_________________________________
Grantee
(USA NQ 5)