exv10w1








    Exhibit 10.1



 




    INDEMNIFICATION
    AGREEMENT



 



    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.




    

    2








 






    (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.




    

    3








 






    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.



 



    VIAD CORP



 


			
	 	    By 
	
    






    Paul B. Dykstra, 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.




    

    4








 






    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          ,          .




    

    5