EXHIBIT 10.C2
EXECUTIVE SEVERANCE AGREEMENT
This agreement is between Viad Corp, a Delaware corporation (the
"Corporation") and Robert H. Bohannon (the "Executive").
WITNESSETH:
WHEREAS, the Board of Directors (the "Board") of the Corporation has
authorized the Corporation to enter into an employment agreement with Executive;
and
WHEREAS, the Executive is a key executive of the Corporation and the
employment agreement provides that Corporation shall enter into an Executive
Severance Agreement with Executive comparable in form and substance to the
executive severance agreement between Corporation and Executive's predecessor;
and
WHEREAS, should the Corporation receive any proposal from a third person
concerning a possible business combination with, or acquisition of equity
securities of, the Corporation, the Board believes it imperative that the
Corporation and the Board be able to rely upon the Executive to continue in his
position, and that the Corporation be able to receive and rely upon his advice
when requested as to the best interests of the Corporation and its shareholders,
without concern that he might be distracted by the personal uncertainties and
risks created by such a proposal; and
WHEREAS, should the Corporation receive any such proposals, in addition to
the Executive's regular duties, he may be available to be called upon to assist
in the assessment of such proposals, to advise management and the Board as to
whether such proposals would be in the best interests of the Corporation and its
shareholders, and to take such other actions as the Board might determine to be
appropriate.
NOW, THEREFORE, to assure the Corporation that it will have the continued
dedication of the Executive and the availability of his advice and counsel
notwithstanding the possibility, threat or occurrence of a bid to take over
control of the Corporation, and to induce the Executive to remain in the employ
of the Corporation, and for other good and valuable consideration, the
Corporation and the Executive agree as follows:
1. Services During Certain Events. In the event a third person begins a
tender or exchange offer, circulates a proxy to shareholders, or takes other
steps seeking to effect a Change of Control (as hereafter defined), the
Executive agrees that he will not voluntarily leave the employ of the
Corporation, and will render the services contemplated in the recitals to this
Agreement, until the third person has abandoned or terminated his or its efforts
to effect a Change of Control or until six months after a Change of Control has
occurred.
2. Definition of Change of Control. For the purposes of this Agreement,
a "Change of Control" shall mean any of the following events:
(a) 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 (i) the then outstanding shares of Common
Stock of the Corporation (the "Outstanding Corporation Common Stock") or (ii)
the combined voting power of the then Outstanding Voting Securities of the
Corporation entitled to vote generally in the election of Directors (the
"Outstanding Corporation Voting Securities"); excluding, however, the following:
(a) any acquisition directly
from the Corporation or any entity controlled by the Corporation 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 Corporation or
any entity controlled by the Corporation, (ii) any acquisition by the
Corporation, or any entity controlled by the Corporation, (iii) any acquisition
by any employee benefit plan (or related trust) sponsored or maintained by the
Corporation or any entity controlled by the Corporation or (iv) any acquisition
pursuant to a transaction which complies with clauses (i), (ii) and (iii) of
subsection (c) of this Section 2; or
(b) A change in the composition of the Board such that the
individuals who, as of the effective date of the Plan, 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 2(b) that any individual who becomes a member of
the Board subsequent to the effective date of the Plan, whose election, or
nomination for election by the Corporation'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 such 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
(c) Consummation of a reorganization, merger or consolidation or
sale or other disposition of all or substantially all of the assets of the
Corporation (a "Corporate Transaction"), excluding, however, such a Corporate
Transaction pursuant to which (i) all or substantially all of the individuals
and entities who are the beneficial owners, respectively, of the Outstanding
Corporation Common Stock and Outstanding Corporation Voting Securities
immediately prior to such Corporate Transaction (the "Prior Shareholders")
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 or other entity resulting from
such Corporate Transaction (including, without limitation, a corporation or
other entity which as a result of such transaction owns the Corporation or all
or substantially all of the Corporation'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 Corporation
Common Stock and Outstanding Corporation Voting Securities, as the case may be,
(ii) no Person (other than the Corporation or any entity controlled by the
Corporation, any employee benefit plan (or related trust) of the Corporation or
entity controlled by the Corporation or such corporation or other entity
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 or other entity resulting from such Corporate Transaction or
the combined voting power of the Outstanding Voting Securities of such
Corporation or other entity entitled to vote generally in the election of
Directors except to the extent that such ownership existed prior to the
Corporate Transaction, and (iii) 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; and
further excluding any disposition of all or substantially all of the assets of
the Corporation pursuant to a spin-off, split-up or similar transaction (a
"Spin-off") if, immediately following the Spin-off, the Prior Shareholders
beneficially own, directly or indirectly, more than 80% of 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 of
both entities resulting from such transaction, in substantially the same
proportions as their ownership, immediately prior to such transaction, of the
Outstanding Corporation Common Stock and Outstanding Corporation
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Voting Securities; provided, that if another Corporate Transaction involving the
Corporation occurs in connection with or following a Spin-off, such Corporate
Transaction shall be analyzed separately for purposes of determining whether a
Change of Control has occurred;
(d) Approval by the stockholders of the Corporation of a complete
liquidation or dissolution of the Corporation.
3. Definitions.
(a) For purposes of this Agreement, "Cause," with respect to the
Executive, shall mean:
(i) The willful and continued failure of the Executive to
perform substantially the Executive's duties with the Corporation or one of its
affiliates (other than any such failure resulting from incapacity due to
physical or mental illness), after a written demand for substantial performance
is delivered to the Executive by the Board or the Chief Executive Officer of the
Corporation which specifically identifies the manner in which the Board or Chief
Executive Officer believes that the Executive has not substantially performed
the Executive's duties; or
(ii) The willful engaging by the Executive in illegal conduct
or gross misconduct which is materially and demonstrably injurious to the
Corporation.
For purposes of this Section 3(a), no act or failure to act, on the part of the
Executive, shall be considered "willful" unless it is done, or omitted to be
done, by the Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of the Corporation. Any
act, or failure to act, based upon authority given pursuant to a resolution duly
adopted by the Board or upon the instructions of the Chief Executive Officer or
a senior officer of the Corporation or based upon the advice of counsel for the
Corporation shall be conclusively presumed to be done, or omitted to be done, by
the Executive in good faith and in the best interests of the Corporation. The
cessation of employment of the Executive shall not be deemed to be 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
of the entire membership of the Board (excluding the Executive, if he is a
member of the Board) at a meeting of the Board called and held for such purpose
(after reasonable notice is provided to the Executive and the Executive is given
an opportunity, together with counsel, to be heard before the Board), finding
that, in the good faith opinion of the Board, the Executive is guilty of the
conduct described in subparagraph (i) or (ii) above, and specifying the
particulars thereof in detail.
(b) For purposes of this Agreement, "Good Reason," with respect to
the Executive, shall mean:
(i) The assignment to the Executive of any duties
inconsistent in any respect with the Executive's position (including status,
offices, titles and reporting requirements), authority, duties or
responsibilities immediately prior to the Change of Control, or any other action
by the Corporation or any of its subsidiaries which results in a diminution in
such position, authority, duties or responsibilities, excluding for this purpose
an isolated, insubstantial and inadvertent action not taken in bad faith and
which is remedied by the Corporation or the applicable subsidiary promptly after
receipt of notice thereof given by the Executive;
(ii) Any reduction of the Executive's bas e salary, annual
bonus, incentive opportunities, retirement benefits, welfare or fringe benefits
below the highest level enjoyed by the Executive during the 120-day period prior
to the Change of Control;
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(iii) The Corporation's or one of its subsidiaries requiring
the Executive to be based at any office or location other than that at which he
was based immediately prior to the Change of Control or the Corporation's or one
of its subsidiaries requiring the Executive to travel to a substantially greater
extent than required immediately prior to the Change of Control;
(iv) Any purported termination by the Corporation or one of
its subsidiaries of the Executive's employment otherwise than as expressly
permitted by this Agreement; or
(v) Any failure by the Corporation to comply with and
satisfy Section 5(d) of this Agreement.
For purposes of this Agreement, any good faith determination of "Good Reason"
made by the Executive shall be conclusive with respect to that Executive.
4. Termination After Change of Control. In the event the Executive's
employment with the Corporation is terminated (a) involuntarily without Cause,
at any time, (b) by the Executive for Good Reason at any time, or (c) by the
Executive for any reason at least six months after the Change of Control (other
than as a result of his death, disability or retirement at or after his normal
retirement date under the Corporation's retirement plans), but in each case
within eighteen months after a Change of Control:
(a) Lump Sum Cash Payment. On or before the Executive's last day
of employment with the Corporation, the Corporation will pay to the Executive as
compensation for services rendered to the Corporation a lump sum cash amount
(subject to any applicable payroll or other taxes required to be withheld) equal
to three times the sum of (i) his highest annual salary fixed during the period
he was an employee of the Corporation, plus (ii) the greater of (A) the largest
amount awarded to him in a year as a cash bonus (whether or not deferred and
regardless of deferral election) under the Corporation's Management Incentive
Plan during the preceding four years, or (B) the target bonus under the
Corporation's Management Incentive Plan for the fiscal year in which the Change
of Control occurs, plus (iii) the greater of (C) the largest amount awarded to
Executive in a year as cash bonus (whether or not deferred and regardless of
deferral election) under the Corporation's Performance Unit Incentive Plan
during the preceding four years, or (D) the aggregate value of shares when
earned during a performance period under any performance-related Restricted
Stock award during the preceding four years, or (E) the aggregate value at the
time of grant of the target shares awarded under the Corporation's
performance-related Restricted Stock programs for the fiscal year in which the
Change of Control occurs.
(b) Employee Plans. The Executive's participation in the life,
accident and health insurance plans of the Corporation, and in fringe benefits
provided the Executive prior to the Change of Control or his termination,
whichever is more favorable, shall be continued, or equivalent benefits
provided, by the Corporation at no direct cost to him for a period of three
years from the date his employment terminates (or until his normal retirement
date, whichever is sooner), except with respect to the Limited Executive Medical
Plan, which will be provided to the Executive and his spouse for their
lifetimes. The Executive's participation in any applicable retirement and/or
pension plans of the Corporation or any of its subsidiaries shall continue only
through the last day of his employment. Any terminating distributions and/or
vested rights under such plans shall be governed by the terms of the respective
plans.
(c) Special Retirement Benefits. The Executive shall receive
Special Retirement Benefits payable hereunder to the Executive or his
beneficiaries equal to the excess of the amount specified in subsection (d)(i)
over that in (d)(ii) below:
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(i) The total retirement benefits that would be paid to the
Executive or his beneficiaries, if either (x) the three years (or the period to
his normal retirement date, if less) following his termination, or (y) the
number of years necessary to accumulate twenty years of credited service,
whichever is greater, are added to his credited service under the Corporation's
pension plans (including any predecessor or successor or substitute plan or
plans of the Corporation), and his final average compensation as determined
under the Plans referred to in this subsection (d)(i) (the amount specified in
subsection (a) of this Section 4 not being considered "compensation" for the
purposes of calculating final average compensation under this subsection
(d)(i)), in each case utilizing actuarial assumptions no less favorable to the
Executive than those used in the Corporation's pension plans immediately prior
to the Change of Control.
(ii) The total retirement benefits actually payable to the
Executive or his beneficiaries under the Corporation's retirement plans
(including any successor plans of the Corporation).
All Special Retirement Benefits and other benefits provided for herein are
provided on an unfunded basis and are not intended to meet the qualification
requirements of Section 401 of the Internal Revenue Code. All special Retirement
Benefits and other benefits provided for herein shall be payable solely from the
general assets of the Corporation or its appropriate affiliate.
(d) Taxes. Anything in this Agreement to the contrary
notwithstanding, and except as set forth below, in the event it shall be
determined that any of an Executive's Payment(s) would be subject to the Excise
Tax, then the Executive shall be entitled to receive an additional payment (the
"Gross-Up Payment") in an amount such that, after payment by the Executive of
all taxes (and any interest and penalties imposed with respect thereto) and
Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of
the Gross-Up Payment equal to the Excise Tax imposed upon such Executive's
Payments. Notwithstanding the foregoing provisions of this Section 4(e), if it
shall be determined that the Executive is entitled to the Gross-Up Payment, but
that the Parachute Value of all Payments does not exceed 110% of the Executive's
Safe Harbor Amount, then no Gross-Up Payment shall be made to the Executive and
the amounts payable under this Plan shall be reduced so that the Parachute Value
of all of such Executive's Payments, in the aggregate, equals the Executive's
Safe Harbor Amount. The reduction of the amounts payable hereunder, if
applicable, shall be made by first reducing the Executive's Payments under
Section 4(a), unless an alternative method of reduction is elected by the
Executive, and in any event shall be made in such a manner as to maximize the
Value of all Payments actually made to the Executive. For purposes of reducing
the Payments to the Safe Harbor Amount, only amounts payable under this Plan
(and no other Payments) shall be reduced. If the reduction of the amounts
payable under this Plan would not result in a reduction of the Parachute Value
of all Payments to the Executive's Safe Harbor Amount, no amounts payable to
such Executive under this Plan shall be reduced pursuant to this Section 4(e)
and the Gross-Up Payment shall be made to the Executive. The Corporation's
obligation to make Gross-Up Payments under this Section 4 shall not be
conditioned upon the Executive's termination of employment.
Subject to the provisions of Section 7(e)ii, all determinations required to be
made under this Section 4, including whether and when a Gross-Up Payment to any
Executive is required, the amount of such Gross-Up Payment and the assumptions
to be utilized in arriving at such determination, shall be made by the
Corporation's auditor (the "Accounting Firm"). In the event that the Accounting
Firm is serving as accountant or auditor for the individual, entity or group
effecting the Change of Control, the Executive may appoint another nationally
recognized accounting firm to make the determinations required hereunder (which
accounting firm shall then be referred to as the Accounting Firm hereunder). The
Accounting Firm shall provide detailed
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supporting calculations both to the Corporation and the Executive within 15
business days of the receipt of notice from the Executive that there has been a
Payment or such earlier time as is requested by the Corporation. All fees and
expenses of the Accounting Firm shall be borne solely by the Corporation. Any
Gross-Up Payment, as determined pursuant to this Section 7, shall be paid by the
Corporation to the applicable Executive within five days of the receipt of the
Accounting Firm's determination. Any determination by the Accounting Firm shall
be binding upon the Corporation and the applicable Executive. As a result of the
uncertainty in the application of Section 4999 of the Code at the time of the
initial determination by the Accounting Firm hereunder it is possible that
Gross-Up Payments that will not have been made by the Corporation should have
been made (the "Underpayment"), consistent with the calculations required to be
made hereunder. In the event the Corporation exhausts its remedies pursuant to
Section 4(e) and the Executive thereafter is required to make a payment of any
Excise Tax, the Accounting Firm shall determine the amount of the Underpayment
that has occurred and any such Underpayment shall be promptly paid by the
Corporation to or for the benefit of the Executive.
(i) Notification Required. The Executive shall notify the
Corporation in writing of any claim by the Internal Revenue Service that, if
successful, would require the payment by the Corporation of the Gross-Up
Payment. Such notification shall be given as soon as practicable but no later
than 10 business days after the Executive is informed in writing of such claim.
The Executive shall apprise the Corporation of the nature of such claim and the
date on which such claim is requested to be paid. The Executive shall not pay
such claim prior to the expiration of the 30-day period following the date on
which the Executive gives such notice to the Corporation (or such shorter period
ending on the date that any payment of taxes with respect to such claim is due).
If the Corporation notifies the Executive in writing prior to the expiration of
such period that it desires to contest such claim, the Executive shall:
(A) Give the Corporation any information reasonably
requested by the Corporation relating to such claim,
(B) Take such action in connection with contesting such
claim as the Corporation shall reasonably request in writing from time to time,
including without limitation, accepting legal representation with respect to
such claim by an attorney reasonably selected by the Corporation,
(C) Cooperate with the Corporation in good faith in order to
effectively contest such claim, and
(D) Permit the Corporation to participate in any proceedings
relating to such claim, provided, however, that the Corporation shall bear and
pay directly all costs and expenses (including additional interest and
penalties) incurred in connection with such contest and shall indemnify and hold
the Executive harmless, on an after-tax basis, for any Excise Tax or income tax,
(including interest and penalties) imposed as a result of such representation
and payment of costs and expenses. Without limitation on the foregoing
provisions of this Section 4(e), the Corporation shall control all proceedings
taken in connection with such contest and, at its sole discretion, may pursue or
forgo any and all administrative appeals, proceedings, hearings and conferences
with the applicable taxing authority in respect of such claim and may, at its
sole discretion, either direct the Executive to pay the tax claimed and sue for
a refund, or contest the claim in any permissible manner, and the Executive
agrees to prosecute such contest to a determination before any administrative
tribunal, in a court of initial jurisdiction and in one or more appellate
courts, as the Corporation shall determine; provided, however, that if the
Corporation directs the Executive to pay such claim and sue for a refund, the
Corporation shall pay the amount of such payment to the Executive, and shall
indemnify and hold the Executive harmless, on an after-tax basis, from any
Excise Tax or income tax, (including interest or penalties) imposed with respect
to such advance or with respect to any imputed
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income in connection with such payment; and provided further that any extension
of the statute of limitations relating to payment of taxes for the taxable year
of the Executive with respect to which such contested amount is claimed to be
due is limited solely to such contested amount. Furthermore, the Corporation's
control of the contest shall be limited to issues with respect to which the
Gross-Up Payment would be payable hereunder and the Executive shall be entitled
to settle or contest, as the case may be, any other issue raised by the Internal
Revenue Service or any other taxing authority.
(ii) Repayment. If, after the receipt by the Executive of a
Gross-Up Payment or an amount paid by the Corporation pursuant to Section
4(e)(ii), the Executive becomes entitled to receive any refund with respect to
the Excise Tax to which such Gross-Up Payment relates or with respect to such
claim, the Executive shall (subject to the Corporation's complying with the
requirements of Section 4(e)(ii) promptly pay to the Corporation the amount of
such refund (together with any interest paid or credited thereon after taxes
applicable thereto). If, after the receipt by the Executive of an amount
advanced by the Corporation pursuant to Section 4(e)(ii), a determination is
made that the Executive shall not be entitled to any refund with respect to such
claim and the Corporation does not notify the Executive in writing of its intent
to contest such denial of refund prior to the expiration of 30 days after such
determination, then the Executive shall not be required to repay such amount to
the Corporation, but the amount of such payment shall offset, to the extent
thereof, the amount of Gross-Up Payment required to be paid.
(e) Withholding. Notwithstanding any other provision of this
Section 7, the Corporation may, in its sole discretion, withhold and pay over to
the Internal Revenue Service or any other applicable taxing authority, for the
benefit of each Executive, all or any portion of any Gross-Up Payment.
(f) Definitions. The following terms shall have the following
meanings for purposes of this Section 4.
"Excise Tax" shall mean the excise tax imposed by Section 4999
of the Code, together with any interest or penalties imposed with respect to
such excise tax.
"Parachute Value" of a Payment shall mean the present value as of the date of
the Change of Control for purposes of Section 280G of the Code of the portion of
such Payment that constitutes a "parachute payment" under Section 280G(b)(2), as
determined by the Accounting Firm for purposes of determining whether and to
what extent the Excise Tax will apply to such Payment.
A "Payment" shall mean any payment or distribution in the
nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to
or for the benefit of an Executive, whether paid or payable pursuant to this
Plan or otherwise.
The "Safe Harbor Amount" of an Executive means 2.99 times the
Executive's "base amount," within the meaning of Section 280G(b)(3) of the Code.
"Value" of a Payment shall mean the economic present value of
a Payment as of the date of the Change of Control for purposes of Section 280G
of the Code, as determined by the Accounting Firm using the discount rate
required by Section 280G(d)(4) of the Code.
5. General.
(a) Indemnification. If litigation shall be brought to enforce or
interpret any provision herein, the Corporation, to the extent permitted by
applicable law and the Corporation's Articles of Incorporation, hereby
indemnifies the Executive for his reasonable attorneys' fees and disbursements
incurred in such litigation regardless of the outcome thereof,
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and shall pay prejudgment interest on any money judgment obtained by the
Executive calculated at the Citibank prime interest rate in effect from time to
time from the date that payment(s) to him should have been made under this
Agreement until the date the payment(s) is made. Such attorneys' fees and
disbursements shall be paid promptly as incurred by the Executive.
(b) Payment Obligations Absolute. The Corporation's obligation to
pay the Executive the Compensation and benefits hereunder and to make the
arrangements provided herein shall be absolute and unconditional and shall not
be affected by any circumstances, including, without limitation, any set-off,
counterclaim, recoupment, defense or other right which the Corporation or any of
its subsidiaries. may have against him or anyone else. All amounts payable by
the Corporation or any one of its subsidiaries hereunder shall be paid without
notice or demand. Each and every payment made hereunder by the Corporation shall
be final and the Corporation will not seek to recover all or any part of such
payment from the Executive or from whosoever may be entitled thereto, for any
reason whatsoever. The Executive shall not be obligated to seek other employment
in mitigation of the amounts payable or arrangements made under any provision of
this Agreement, and the obtaining of any such other employment shall in no event
effect any reduction of the Corporation's obligations to make the payments and
arrangements required to be made under this Agreement.
(c) Continuing Obligations. The Executive shall retain in
confidence any confidential information known to him concerning the Corporation
and its subsidiaries and their respective businesses so long as such information
is not publicly disclosed.
(d) Successors.
(i) This Agreement is personal to the Executive and without
the prior written consent of the Corporation shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives.
(ii) This Agreement shall inure to the benefit of and be
binding upon the Corporation and its successors and assigns.
(iii) The Corporation will 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 Corporation to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Corporation would be required to perform it if no such
succession had taken place. As used in this Agreement, Corporation shall mean
the Corporation as hereinbefore defined and which assumes and agrees to perform
this Agreement by operation of law, or otherwise.
(e) Severability. Any provision in this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective only to the extent of such prohibition or unenforceability
without invalidating or affecting the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
(f) Other Agreements. In the event the Executive's employment with
the Corporation terminates and the Executive is entitled to receive termination,
separation or other like amounts from the Corporation pursuant to any contract
of employment, general prevailing separation pay policy, or other program of the
Corporation, all such amounts shall be applied to and set off against the
Corporation's obligation set forth in subsection (a) of Section 4 of this
Agreement, subsection (b) of this Section notwithstanding.
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(g) Controlling Law. This Agreement shall in all respects be
governed by, and construed in accordance with, the laws of the State of
Delaware.
(h) Termination. This Agreement shall terminate if the Board
determines that the Executive is no longer a key executive to be provided a
severance agreement and so notifies the Executive; except that such
determination shall not be made, and if made shall have no effect (i) during the
period of thirty-six months following any Change of Control in question or (ii)
during any period of time when the Corporation has knowledge that any third
person has taken steps reasonably calculated to effect a Change of Control
until, in the opinion of the Board, the third person has abandoned or terminated
his efforts to effect a Change of Control. Any decision by the Board that the
third person has abandoned or terminated his efforts to effect a Change of
Control shall be conclusive and binding on the Executive.
6. Governing Law. This Agreement shall be governed by and construed by
accordance with the laws of the State of Delaware, 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
______ day of _________________, 2004.
_____________________________________
Robert H. Bohannon
ATTESTED: Viad Corp
By: __________________________ By: _________________________________
Assistant Secretary Scott E. Sayre
Vice President - General Counsel
and Corporate Secretary
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