[FORM OF EXECUTIVE EMPLOYMENT AGREEMENT FOR XXXXXX XXXXXX]
CERIDIAN CORPORATION
EXECUTIVE EMPLOYMENT AGREEMENT
PARTIES
CERIDIAN CORPORATION
0000 XXXX XXX XXXXXXXX XXXX
XXXXXXXXXXX, XXXXXXXXX 00000-0000
AND
XXXXXX X. XXXXXX
("EXECUTIVE")
DATE: [_____________, 2001]
RECITALS
A. Ceridian wishes to obtain the services of Executive for the duration of
this Agreement, and Executive wishes to provide his or her services for
such period.
B. Prior the date of this Agreement, Executive was an executive officer of
Arbitron Inc., a Delaware corporation f/k/a Ceridian Corporation and
the former parent corporation of Ceridian ("Arbitron").
C. Ceridian desires reasonable protection of Ceridian's Confidential
Information (as defined below).
D. Ceridian desires assurance that Executive will not compete with
Ceridian, engage in recruitment of Ceridian's employees or make
disparaging statements about Ceridian after termination of employment,
and Executive is willing to refrain from such competition, recruitment
and disparagement.
E. Executive desires to be assured of a minimum Base Salary (as defined
below) from Ceridian for Executive's services for the term of this
Agreement (unless terminated earlier pursuant to the terms of this
Agreement).
F. It is expressly recognized by the parties that Executive's acceptance
of, and continuance in, Executive's position with Ceridian and
agreement to be bound by the terms of this Agreement represents a
substantial commitment to Ceridian in terms of Executive's
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personal and professional career and a foregoing of present and
future career options by Executive, for all of which Ceridian
receives substantial value.
G. The parties recognize that a Change of Control (as defined below) may
result in material alteration or diminishment of Executive's position
and responsibilities and substantially frustrate the purpose of
Executive's commitment to Ceridian and forebearance of career options.
H. The parties recognize that in light of the above-described commitment
and forebearance of career options, it is essential that, for the
benefit of Ceridian and its stockholders, provision be made for a
Change of Control Termination (as defined below) in order to enable
Executive to accept and effectively continue in Executive's position in
the face of inherently disruptive circumstances arising from the
possibility of a Change of Control of the Parent Corporation (as
defined below), although no such change is now contemplated or
foreseen.
I. The parties wish to replace any and all prior agreements and
undertakings with respect to Executive's employment and Change of
Control occurrences and compensation.
NOW, THEREFORE, in consideration of Executive's acceptance of and continuance in
Executive's employment for the term of this Agreement and the parties' agreement
to be bound by the terms contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.01 "BASE SALARY" shall mean regular cash compensation paid on a periodic
basis exclusive of benefits, bonuses or incentive payments.
1.02 "BOARD" shall mean the Board of Directors of Parent Corporation.
1.03 "CERIDIAN" shall mean Ceridian Corporation, a Delaware corporation
f/k/a New Ceridian Corporation, and, except as otherwise provided in
Article VIII and Section 9.02 of Article IX,
(a) any Subsidiary (as that term is defined in Section 1.07); and
(b) any successor in interest by way of consolidation, operation
of law, merger or otherwise.
1.04 "CONFIDENTIAL INFORMATION" shall mean information or material of
Ceridian which is not generally available to or used by others, or the
utility or value of which is not generally
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known or recognized as standard practice, whether or not the
underlying details are in the public domain, including:
(a) information or material relating to Ceridian and its business
as conducted or anticipated to be conducted; business plans;
operations; past, current or anticipated services, products or
software; customers or prospective customers; relations with
business partners or prospective business partners; or
research, engineering, development, manufacturing, purchasing,
accounting, or marketing activities;
(b) information or material relating to Ceridian's inventions,
improvements, discoveries, "know-how," technological
developments, or unpublished writings or other works of
authorship, or to the materials, apparatus, processes,
formulae, plans or methods used in the development,
manufacture or marketing of Ceridian's services, products or
software;
(c) information on or material relating to Ceridian which when
received is marked as "proprietary," "private," or
"confidential;"
(d) trade secrets of Ceridian;
(e) software of Ceridian in various stages of development,
software designs, web-based solutions, specifications,
programming aids, programming languages, interfaces, visual
displays, technical documentation, user manuals, data files
and databases of Ceridian; and
(f) any similar information of the type described above which
Ceridian obtained from another party and which Ceridian treats
as or designates as being proprietary, private or
confidential, whether or not owned or developed by Ceridian.
Notwithstanding the foregoing, "Confidential Information" does not
include any information which is properly published or in the public
domain; provided, however, that information which is published by or
with the aid of Executive outside the scope of employment or contrary
to the requirements of this Agreement will not be considered to have
been properly published, and therefore will not be in the public domain
for purposes of this Agreement.
1.05 "DISABILITY" shall mean the inability of Executive to perform his or
her duties under this Agreement because of illness or incapacity for a
continuous period of six months.
1.06 "PARENT CORPORATION" shall mean Ceridian Corporation and, except as
otherwise provided in Article VIII and Section 9.02 of Article IX, any
successor in interest by way of consolidation, operation of law, merger
or otherwise. "Parent Corporation" shall not include any Subsidiary.
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1.07 "SUBSIDIARY" shall mean: (a) any corporation at least a majority of
whose securities having ordinary voting power for the election of
directors (other than securities having such power only by reason of
the occurrence of a contingency) is at the time owned by Parent
Corporation and/or one or more Subsidiaries; and (b) any division or
business unit (or portion thereof) of Parent Corporation or a
corporation described in clause (a) of this Section 1.07.
ARTICLE II
EMPLOYMENT, DUTIES AND TERM
2.01 EMPLOYMENT. Upon the terms and conditions set forth in this Agreement,
Ceridian hereby employs Executive, and Executive accepts such
employment.
2.02 DUTIES. Executive shall devote his or her full-time and best efforts to
Ceridian and to fulfilling the duties of his or her position which
shall include such duties as may from time to time be assigned him or
her by Ceridian, provided that such duties are reasonably consistent
with Executive's education, experience and background. Executive shall
comply with Ceridian's policies and procedures to the extent they are
not inconsistent with this Agreement in which case the provisions of
this Agreement prevail.
2.03 TERM. Subject to the provisions of Articles IV, VII, and VIII, this
Agreement and Executive's employment shall continue until the later of:
(a) [___________, 2004], and (b) two years after a Change of Control
which occurs prior to [____________, 2004] ("Initial Term"). Upon
expiration of the Initial Term and subject to the provisions of
Articles IV, VII and VIII, this Agreement and Executive's employment
shall be automatically extended for successive three year periods.
ARTICLE III
COMPENSATION AND EXPENSES
3.01 BASE SALARY. For all services rendered under this Agreement during the
term of this Agreement, Ceridian shall pay Executive a minimum Base
Salary at the annual rate currently being paid or, if Executive is not
currently in Ceridian's employ, at the annual rate specified in the
written offer of employment. If Executive's salary is increased from
time to time during the term of this Agreement, the increased amount
shall be the Base Salary for the remainder of the term.
3.02 BONUS AND INCENTIVE. Bonus or incentive compensation shall be at the
sole discretion of Ceridian. Except as otherwise provided in Article
VII, Ceridian shall have the right, in accordance with their terms, to
alter, amend or eliminate any bonus or incentive plans, or Executive's
participation therein, without compensation to Executive.
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3.03 BUSINESS EXPENSES. Ceridian shall, consistent with its policies in
effect from time to time, bear all ordinary and necessary business
expenses incurred by Executive in performing his or her duties as an
employee of Ceridian, provided that Executive accounts promptly for
such expenses to Ceridian in the manner prescribed from time to time by
Ceridian.
3.04 SUPPLEMENTAL RETIREMENT BENEFIT.
(a) ENTITLEMENT.
(1) TERMINATION OF EMPLOYMENT. Subject to Sections
3.04(a)(2), 3.04(a)(3) and 3.04(a)(4), Executive
shall be entitled to a supplemental retirement
benefit pursuant to this Section 3.04 following his
termination of employment with Ceridian at any time
for any reason.
(2) FORFEITURE. Executive or his surviving spouse, as the
case may be, shall not be entitled to receive or
retain a supplemental retirement benefit pursuant to
this Section 3.04 if (A) Executive's employment with
Ceridian terminates or is terminated for any reason
prior to his attainment of age 62 and (B) Executive
breached or breaches any of his obligations arising
under Articles V or VI of this Agreement. If, after
Executive or his surviving spouse, as the case may
be, has received a benefit pursuant to this Section
3.04, Ceridian determines that Executive is not
entitled to the benefit, Executive or his surviving
spouse, as the case may be, shall promptly repay to
Ceridian the benefit payment previously received
pursuant to this Section 3.04 together with interest
on such payment for the period beginning on the date
on which it was paid to Executive or his surviving
spouse, as the case may be, and ending on the date on
which it is repaid to Ceridian at the prime rate of
interest (or such comparable index as may be adopted)
established from time to time by the Bank of America
National Trust and Savings Association, New York, New
York, or its successor in interest, as in effect from
time to time during the period in question.
(3) DEATH. Except as provided in Section 3.04(d), no
benefit shall be paid pursuant to this Section 3.04
to Executive or any other person if Executive's
employment with Ceridian terminates because of
Executive's death or if Executive dies after his
termination of employment with Ceridian but before
his supplemental retirement benefit pursuant to this
Section 3.04 is paid to Executive.
(4) OTHER CONDITIONS. As a condition to receiving any
benefit pursuant to this Section 3.04, Executive or
his surviving spouse, as the case may be, agrees to
provide to Ceridian on a timely basis any such
information as
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Ceridian may reasonably request to determine the
entitlement of Executive or his surviving spouse,
as the case may be, to a benefit pursuant to this
Section 3.04 or the amount or timing of the
benefit payment or to resolve any other issue or
assist Ceridian in making any determination
regarding the benefit.
(b) COMMENCEMENT AND FORM. The benefit pursuant to this Section
3.04 shall be paid on or as soon as administratively
practicable after the Determination Date in the form of a lump
sum cash payment.
(c) AMOUNT.
(1) DETERMINATION DATE ON OR AFTER AGE 60. If the
Determination Date is on or after the date on which
Executive attains age 60, the amount of Executive's
benefit pursuant to this Section 3.04 shall be a lump
sum amount that is actuarially equivalent to a
monthly benefit, paid in the Normal Form and
commencing as of the Determination Date, equal to
one-twelfth of the excess of:
(A) the sum of
(i) the product of Executive's Final
Average Pay multiplied by his Years
of Service through the calendar year
during which he attains age 62 (or,
if earlier, through the date on
which he terminates employment)
multiplied by .025 plus
(ii) the product of Executive's Final
Average Pay multiplied by his Years
of Service, if any, following the
calendar year during which he
attains age 62 multiplied by .0167;
over
(B) the Offset Amount.
(2) DETERMINATION DATE BEFORE AGE 60. If the
Determination Date is before the date on which
Executive attains age 60, the amount of Executive's
benefit pursuant to this Section 3.04 shall be a lump
sum amount that is actuarially equivalent to a
monthly benefit, paid in the Normal Form and
commencing as of the Determination Date, equal to
one-twelfth of the excess of:
(A) the product of Executive's Final Average Pay
multiplied by his Years of Service
multiplied by .025, reduced by one-fourth of
one percent for each month by which the
Determination Date precedes the first day of
the month coinciding with or next following
the date on which Executive attains age 60;
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over
(B) the Offset Amount.
(3) ACTUARIAL EQUIVALENCE. For the purpose of this
Section 3.04(c), actuarial equivalence for a given
Determination Date shall be based on the annual
interest rate on 30-year Treasury securities for the
month of November of the calendar year immediately
preceding the calendar year that includes the
Determination Date, as determined in accordance with
published guidance from the Internal Revenue Service
pursuant to Section 417(e)(3) of the Code (as defined
in Section 7.1(e)) and mortality rates per the
"applicable mortality table" published in Revenue
Ruling 95-6 or other applicable guidance from the
Internal Revenue Service pursuant to Section
417(e)(3) of the Code in effect as of the
Determination Date.
(d) DEATH BENEFITS.
(1) DEATH BEFORE DETERMINATION DATE. If Executive dies
before the Determination Date, his surviving spouse,
if any, shall, subject to Sections 3.04(a)(2) and
3.04(a)(4), be entitled to a surviving spouse
benefit. The benefit shall be paid to Executive's
surviving spouse on or as soon as administratively
practicable after the Determination Date in the form
of a lump sum cash payment. The amount of the
surviving spouse benefit pursuant to this Section
3.04(d)(1) shall be equal to fifty percent (50%) of
the amount of the supplemental retirement benefit
that would have been paid to Executive pursuant to
this Section 3.04 had he terminated employment on the
date of his death (or, if earlier, on the actual date
on which he terminated employment) and lived until he
received his supplemental retirement benefit. If
Executive's surviving spouse dies after becoming
entitled to a surviving spouse benefit pursuant to
this Section 3.04(d)(1) but before the benefit is
paid to the surviving spouse, the benefit shall be
paid to the surviving spouse's estate at the same
time the benefit would have been paid to the
surviving spouse had she lived.
(2) DEATH ON OR AFTER DETERMINATION DATE. If Executive
dies on or after the Determination Date but before
payment of his supplemental retirement benefit
pursuant to this Section 3.04, the benefit that would
have been paid to Executive had he lived shall,
subject to Sections 3.04(a)(2) and 3.04(a)(4), be
paid to Executive's estate at the same time the
benefit would have been paid to Executive had he
lived.
(e) NONASSIGNABILITY. The benefit pursuant to this Section 3.04
and the right to receive a future benefit pursuant to this
Section 3.04 may not be anticipated, alienated, sold,
transferred, assigned, pledged, encumbered or subjected to any
charge or legal process.
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(f) RABBI TRUST. Ceridian may, but is not required to, provide for
payment of the benefit pursuant to this Section 3.04 through a
trust. The trust must (1) be a grantor trust with respect to
which Ceridian is treated as the grantor, (2) not cause
benefits under this Section 3.04 to be funded for federal
income tax purposes or for purposes of the Employee Retirement
Income Security Act of 1974, as amended, and (3) provide that
trust assets will, upon Ceridian's insolvency, be used to
satisfy the claims of Ceridian's general creditors. If
Ceridian elects to provide benefits through such a trust,
neither Executive nor his surviving spouse shall have any
interest in the assets of the trust.
(g) NATURE OF INTEREST. Nothing contained in this Section 3.04 is
to be construed as providing for assets to be held for the
benefit of Executive or his surviving spouse. If Executive or
his surviving spouse acquires a right to receive benefit
payments pursuant to this Section 3.04, that right is no
greater than the right of any unsecured general creditor of
Ceridian.
(h) DETERMINATIONS. Ceridian shall make all determinations as to
entitlement, amount and timing of any benefit payment pursuant
to this Section 3.04. Ceridian shall have discretionary power
and authority to interpret, construe, apply, enforce and
otherwise administer the terms of this Section 3.04 and any
reasonable determination made by Ceridian in good faith shall
be binding and conclusive on Executive and his surviving
spouse. Any determination by Ceridian denying a claim by
Executive or his surviving spouse shall be stated in writing
and shall set forth the specific reason for the denial.
Ceridian shall afford a reasonable opportunity to the claimant
for a full and fair review of the determination denying the
claim. A claimant must exhaust the procedure described in this
Section 3.04(h) before pursuing the claim in any other
proceeding.
(i) SPECIAL DEFINITIONS. The definitions set forth in this Section
3.04(i) apply in construing this Section 3.04 unless the
context otherwise indicates. Other terms used in this Section
3.04 have the meanings ascribed to them in Article I of this
Agreement. In addition, the general provisions of Article IX
of this Agreement apply to this Section 3.04 unless the
context otherwise indicates.
(1) "CERIDIAN" means, for purposes of Sections
3.04(a)(4), 3.04(f), and 3.04(h), Ceridian
Corporation and any successor in interest by way of
consolidation, operation of law, merger or otherwise,
but not any Subsidiary.
(2) "DETERMINATION DATE means the first day of the fourth
calendar month following Executive's termination of
employment with Ceridian.
(3) "FINAL AVERAGE PAY" means Executive's "final average
pay" as defined in the Retirement Plan but determined
by disregarding any part of the definition of final
average pay in the Retirement Plan that is included
for the purpose of complying with Section 401(a)(17)
of the Code (within the
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meaning of Section 7.01(e)). If the Retirement
Plan is terminated effective as of a date that is
before the date on which Executive terminates
employment with Ceridian, the previous sentence
shall be applied after the effective date of the
termination of the Retirement Plan based on the
definition of final average pay in effect under
the Retirement Plan on the effective date of the
termination of the Retirement Plan as if the
Retirement Plan had continued in effect.
(4) "NORMAL FORM" means monthly payments to Executive for
his life with the last payment made for the month
during which Executive dies and with no death
benefits payable to any person.
(5) "OFFSET AMOUNT" means the annual benefit to which
Executive would be entitled under the "offset plans"
if his benefit under the offset plans commenced as of
the Determination Date and was paid in the Normal
Form, based on the terms of the offset plans in
effect and applicable to Executive on the
Determination Date or, if earlier, as of the
effective date of the termination of an offset plan.
If the Determination Date is before the earliest date
on which Executive's benefit could commence under an
offset plan, the Offset Amount with respect to that
offset plan shall be determined by calculating the
Offset Amount as of the earliest date on which
Executive's benefit could commence under the offset
plan and then reducing that benefit by one fourth of
one percent for each month by which the offset date
precedes the earliest date on which Executive's
benefit could commence under the offset plan. The
Offset Amount shall be determined without regard to
the actual timing of commencement and form of
Executive's benefit pursuant to the offset plans. For
the purpose of this Section 3.04(i)(5), the offset
plans are the Retirement Plan, the Ceridian
Corporation Benefit Equalization Plan and any defined
benefit pension plan maintained by any previous
employer of Executive which was or is operated by
such previous employer as a qualified plan pursuant
to Section 401(a) of the Code (within the meaning of
Section 7.01(e)), or any successor to any such plans.
(6) "RETIREMENT PLAN" means the Ceridian Corporation
Retirement Plan as from time to time amended.
(7) "YEARS OF SERVICE" means (A) each calendar year from
and including 1993 through and including 2000 and (B)
each calendar year after 2000 and before 2012 during
any part of which Executive is an employee of
Ceridian (as classified by Ceridian at the time
without regard to any subsequent retroactive
reclassification). Executive shall not be credited
with any Years of Service for any period of
employment with Ceridian after 2011.
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ARTICLE IV
EARLY TERMINATION
4.01 EARLY TERMINATION. This Article shall not apply to a Change of Control
Termination which is governed solely by the provisions of Article VII,
and does not alter the respective continuing obligations of the parties
pursuant to Articles V, VI, and IX.
4.02 TERMINATION FOR CAUSE. Ceridian may terminate this Agreement and
Executive's employment immediately for cause. For the purpose hereof
"cause" means:
(a) fraud;
(b) misrepresentation;
(c) theft or embezzlement of Ceridian assets;
(d) intentional violations of law involving moral turpitude;
(e) failure to follow Ceridian's conduct and ethics policies;
and/or
(f) the continued failure by Executive to attempt in good faith to
perform his or her duties as reasonably assigned to Executive
pursuant to Section 2.02 of Article II of this Agreement for a
period of 60 days after a written demand for such performance
which specifically identifies the manner in which it is
alleged Executive has not attempted in good faith to perform
such duties.
In the event of termination for cause pursuant to this Section 4.02,
Executive shall be paid at the usual rate of Executive's annual Base
Salary through the date of termination specified in any written notice
of termination.
4.03 TERMINATION WITHOUT CAUSE. Either Executive or Ceridian may terminate
this Agreement and Executive's employment without cause on at least 75
days' written notice. In the event of termination of this Agreement and
of Executive's employment pursuant to this Section 4.03, compensation
shall be paid as follows:
(a) if the notice of termination is given by Executive, Executive
shall be paid at the usual rate of his or her annual Base
Salary through the 75 day notice period;
(b) if the notice of termination is given by Ceridian, (1)
Executive shall be paid at the usual rate of his or her annual
Base Salary through the 75 day notice period, however,
Ceridian shall have the option of making termination of the
Agreement and Executive's employment effective immediately
upon notice in which case
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Executive shall be paid a lump sum representing the value
of 75 days worth of salary; and (2) Executive shall
receive, starting within 15 days after the end of the 75
day notice period, two years' annual Base Salary payable,
at the sole discretion of Ceridian, in either the form of a
lump sum payment or on a regular payroll period basis. In
addition, Executive shall receive the bonus, if any, to
which Executive would otherwise have become entitled under
all applicable Ceridian annual bonus plans in effect at the
time of termination of this Agreement had Executive
remained continuously employed for the full fiscal year in
which termination occurred and continued to perform his or
her duties in the same manner as they were performed
immediately prior to termination, multiplied by a fraction,
the numerator of which shall be the number of whole months
Executive was employed in the year in which termination
occurred and the denominator of which is 12. This bonus
amount shall be paid within 15 days after the date such
bonus would have been paid had Executive remained employed
for the full fiscal year. In addition, Ceridian shall
provide or make arrangements for reasonable outplacement
services for Executive based on his or her level within
Ceridian.
(c) In the event that termination occurs pursuant to Section
4.03(b), in addition to the payments specified therein,
Ceridian shall pay to Executive an amount equal to one year's
Base Salary payable, at the sole discretion of Ceridian, in
either the form of a lump sum payment or on a regular payroll
period basis, provided Executive executes a release, similar
to that attached as Exhibit A, of all claims against Ceridian.
4.04 TERMINATION IN THE EVENT OF DEATH OR DISABILITY. This Agreement shall
terminate in the event of death or disability of Executive.
(a) In the event of Executive's death, Ceridian shall pay an
amount equal to 12 months of Base Salary at the rate in effect
at the time of Executive's death plus the amount Executive
would have received in annual incentive plan bonus for the
year in which the death occurs had "target" goals been
achieved. Such amount shall be paid (1) to the beneficiary or
beneficiaries designated in writing to Ceridian by Executive,
(2) in the absence of such designation to the surviving
spouse, or (3) if there is no surviving spouse, or such
surviving spouse disclaims all or any part, then the full
amount, or such disclaimed portion, shall be paid to the
executor, administrator or other personal representative of
Executive's estate. The amount shall be paid as a lump sum as
soon as practicable following Ceridian's receipt of notice of
Executive's death. All such payments shall be in addition to
any payments due pursuant to Section 4.04(c) below.
(b) In the event of Executive's disability, Base Salary shall be
terminated as of the end of the month in which the last day of
the six-month period of Executive's inability to perform his
or her duties occurs.
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(c) In the event of termination by reason of Executive's death or
disability, Ceridian shall pay to Executive any amount equal
to (1) the amount Executive would have received in annual
incentive plan bonus for the year in which termination occurs
had "target" goals been achieved, multiplied by (2) a
fraction, the numerator of which shall be the number of whole
months Executive was employed in the year in which the death
or disability occurred and the denominator of which is 12. The
amount payable pursuant to this Section 4.04(c) shall be paid
within 15 days after the date such bonus would have been paid
had Executive remained employed for the full fiscal year.
4.05 RETIREMENT.
(a) Executive may terminate this Agreement and Executive's
employment as a result of Executive's decision to retire from
Ceridian. Executive shall provide Ceridian with at least 75
days' written notice of the date upon which Executive intends
to retire. Executive shall be paid at the usual rate of his or
her annual Base Salary through the date of retirement
stipulated in the written notice.
(b) In the event that Executive terminates this Agreement as a
result of Executive's decision to retire from Ceridian and
Executive is at least 55 years of age with five or more years
of service to Ceridian, then Executive (and anyone entitled to
claim under or through Executive) shall, until age 65, be
entitled to receive from Ceridian the same or equivalent
health, dental, accidental death and dismemberment, short and
long-term disability, life insurance coverages, and all other
insurance policies and health and welfare benefits programs,
policies or arrangements, at the same levels and coverages as
Executive was receiving on the day immediately prior to his or
her retirement. Executive shall be required to pay no more for
the above mentioned benefits than he/she paid as an active
employee, or if provided by Ceridian at no cost to employees
on the day immediately prior to Executive's retirement, they
shall continue to be made available to Executive on this
basis.
4.06 ENTIRE TERMINATION PAYMENT. The compensation provided for in this
Article IV for early termination of this Agreement and termination
pursuant to this Article IV shall constitute Executive's sole remedy
for such termination. Executive shall not be entitled to any other
termination or severance payment which may be payable to Executive
under any other agreement between Executive and Ceridian.
ARTICLE V
CONFIDENTIALITY, DISCLOSURE AND ASSIGNMENT
5.01 CONFIDENTIALITY. Executive acknowledges that Ceridian has taken
reasonable measures to preserve the secrecy of its Confidential
Information. Executive will not, during the
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term or after the termination or expiration of this Agreement or
his/her employment, publish, disclose, or utilize in any manner any
Confidential Information obtained while employed by Ceridian. If
Executive leaves the employ of Ceridian, Executive will not, without
Ceridian's prior written consent, retain or take away any drawing,
writing or other record in any form containing any Confidential
Information.
5.02 BUSINESS CONDUCT AND ETHICS. During the term of employment with
Ceridian, Executive will engage in no activity or employment which may
conflict with the interest of Ceridian, and will comply with Ceridian's
policies and guidelines pertaining to business conduct and ethics.
5.03 DISCLOSURE. Executive will disclose promptly in writing to Ceridian all
inventions, discoveries, software, writings and other works of
authorship which are conceived, made, discovered, or written jointly or
singly on Ceridian time or on Executive's own time, providing the
invention, improvement, discovery, software, writing or other work of
authorship is capable of being used by Ceridian in the normal course of
business, and all such inventions, improvements, discoveries, software,
writings and other works of authorship shall belong solely to Ceridian.
5.04 INSTRUMENTS OF ASSIGNMENT. Executive will sign and execute all
instruments of assignment and other papers to evidence vestiture of
Executive's entire right, title and interest in such inventions,
improvements, discoveries, software, writings or other works of
authorship in Ceridian, at the request and the expense of Ceridian, and
Executive will do all acts and sign all instruments of assignment and
other papers Ceridian may reasonably request relating to applications
for patents, patents, copyrights, and the enforcement and protection
thereof. If Executive is needed, at any time, to give testimony,
evidence, or opinions in any litigation or proceeding involving any
patents or copyrights or applications for patents or copyrights, both
domestic and foreign, relating to inventions, improvements,
discoveries, software, writings or other works of authorship conceived,
developed or reduced to practice by Executive, Executive agrees to do
so, and if Executive leaves the employ of Ceridian, Ceridian shall pay
Executive at a rate mutually agreeable to Executive and Ceridian, plus
reasonable traveling or other expenses.
5.05 INVENTIONS DEVELOPED ON EXECUTIVE'S OWN TIME. The two immediately
preceding sections entitled "Disclosure" and "Instruments of
Assignment" do not apply to inventions in which a Ceridian claim of any
rights will create a violation of Chapter 181 Minnesota Statutes,
Section 181.78, reproduced below and constituting the written
notification of its Subdivision 3.
181.78 Agreements; terms relating to inventions
Subdivision 1.
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Any provision in an employment agreement which provides that an
employee shall assign or offer to assign any of the employee's rights
in an invention to the employer shall not apply to an invention for
which no equipment, supplies, facility or trade secret information of
the employer was used and which was developed entirely on the
employee's own time, and (1) which does not relate (a) directly to the
business of the employer or (b) to the employer's actual or
demonstrably anticipated research or development, or (2) which does not
result from any work performed by the employee for the employer. Any
provision which purports to apply to such an invention is to that
extent against the public policy of this state and is to that extent
void and unenforceable.
Subdivision 2.
No employer shall require a provision made void and unenforceable by
subdivision 1 as a condition of employment or continuing employment.
Subdivision 3.
IF AN EMPLOYMENT AGREEMENT ENTERED INTO AFTER AUGUST 1, 1977, CONTAINS
A PROVISION REQUIRING THE EMPLOYEE TO ASSIGN OR OFFER TO ASSIGN ANY OF
THE EMPLOYEE'S RIGHTS IN ANY INVENTION TO AN EMPLOYER, THE EMPLOYER
MUST ALSO, AT THE TIME THE AGREEMENT IS MADE, PROVIDE A WRITTEN
NOTIFICATION TO THE EMPLOYEE THAT THE AGREEMENT DOES NOT APPLY TO AN
INVENTION FOR WHICH NO EQUIPMENT, SUPPLIES, FACILITY OR TRADE SECRET
INFORMATION OF THE EMPLOYER WAS USED AND WHICH WAS DEVELOPED ENTIRELY
ON THE EMPLOYEE'S OWN TIME, AND (1) WHICH DOES NOT RELATE (a) DIRECTLY
TO THE BUSINESS OF THE EMPLOYER OR (b) TO THE EMPLOYER'S ACTUAL OR
DEMONSTRABLY ANTICIPATED RESEARCH OR DEVELOPMENT, OR (2) WHICH DOES NOT
RESULT FROM ANY WORK PERFORMED BY THE EMPLOYEE FOR THE EMPLOYER.
5.06 EXECUTIVE'S DECLARATION. Executive has no inventions, data bases,
improvements, discoveries, software, writings or other works of
authorship useful to Ceridian in the normal course of business, which
were conceived, made or written prior to the date of this Agreement and
which are excluded from this Agreement.
5.07 SURVIVAL. The obligations of this Article V shall survive the
expiration or termination of this Agreement and Executive's employment.
ARTICLE VI
NON-COMPETITION, NON-RECRUITMENT, AND NON-DISPARAGEMENT
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6.01 GENERAL. The parties hereto recognize and agree that (a) Executive is a
senior executive of Ceridian and is a key executive of Ceridian, (b)
Executive has received, and will in the future receive, substantial
amounts of Confidential Information, (c) Ceridian's business is
conducted on a worldwide basis, and (d) provision for non-competition,
non-recruitment and non-disparagement obligations by Executive is
critical to Ceridian's continued economic well-being and protection of
Ceridian's Confidential Information. In light of these considerations,
this Article VI sets forth the terms and conditions of Executive's
obligations of non-competition, non-recruitment and non-disparagement
subsequent to the termination of this Agreement and/or Executive's
employment for any reason.
6.02 NON-COMPETITION.
(a) During the term of this Agreement, Executive will devote full
time and energy to furthering Ceridian's business and will not
pursue any other business activity without Ceridian's written
consent. Unless the obligation is waived or limited by
Ceridian in accordance with subsection (b) of this Section
6.02, Executive agrees that during his employment with
Ceridian and for a period of three years following termination
of employment for any reason ("Non-Compete Period"), Executive
will not directly or indirectly, alone or as a partner,
officer, director, shareholder or employee of any other firm
or entity, engage in any commercial activity in competition
with any part of Ceridian's business as conducted as of the
date of such termination of employment or with any part of
Ceridian's contemplated business with respect to which
Executive has Confidential Information. For purposes of this
subsection (a), "shareholder" shall not include beneficial
ownership of less than five percent (5%) of the combined
voting power of all issued and outstanding voting securities
of a publicly held corporation whose stock is traded on a
major stock exchange. Also for purposes of this subsection
(a), "Ceridian's business" shall include business conducted by
Ceridian or its affiliates and any partnership or joint
venture in which Ceridian or its affiliates is a partner or
joint venturer; provided that, "affiliate" as used in this
sentence shall not include any corporation in which Ceridian
has ownership of less than fifteen percent (15%) of the voting
stock.
(b) At its sole option Ceridian may, by written notice to
Executive at any time within the Non-Compete Period, waive or
limit the time and/or geographic area in which Executive
cannot engage in competitive activity.
(c) During the Non-Compete Period, prior to accepting employment
with or agreeing to provide consulting services to, any firm
or entity which offers competitive products or services,
Executive shall give 30 days prior written notice to Ceridian.
Such written notice shall describe the firm and the employment
or consulting services to be rendered to the firm or entity,
and shall include a copy of the written offer of employment or
engagement of consulting services. Ceridian's failure to
respond or object to such notice shall not in any way
constitute acquiescence or waiver of Ceridian's rights under
this Article VI.
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(d) In the event Executive has provided notice to Ceridian
pursuant to subsection (c) of this Section 6.02 and has not
accepted employment with or agreed to provide consulting
services to, any firm or entity directly as a result of his or
her non-competition obligation pursuant to this Section 6.02,
Ceridian shall pay Executive an amount equal to the usual rate
of Executive's Base Salary in effect at the time of
termination on a regular payroll period basis until the end of
the Non-Compete Period. There shall be credited against
Ceridian's obligation to make such payments any other payments
made by Ceridian to Executive pursuant to Article IV of this
Agreement. In the event that Ceridian elects, pursuant to
subsection (b) of this Section 6.02, to waive all or any
portion of the non-competition obligation set forth in
subsection (a) hereof, no payment shall be required by
Ceridian with respect to the portion of the Non-Compete Period
which has been waived.
(e) In the event Executive fails to provide notice to Ceridian
pursuant to subsection (c) of this Section 6.02 and/or in
anyway violates its non-competition obligation pursuant to
Section 6.02, Ceridian may enforce all of its rights and
remedies provided to it under this Agreement, in law and in
equity, and Executive shall be deemed to have expressly waived
any rights he or she may have had to payments under subsection
(d) of this Section 6.02.
6.03 NON-RECRUITMENT. During the term of employment and for a period of
three years following termination of employment for any reason,
Executive will not directly or indirectly hire any of Ceridian's
employees, or solicit any of Ceridian's employees for the purpose of
hiring them or inducing them to leave their employment with Ceridian,
nor will Executive own, manage, operate, join, control, consult with,
participate in the ownership, management, operation or control of, be
employed by, or be connected in any manner with any person or entity
which engages in the conduct proscribed in this Section 6.03. This
provision shall not preclude Executive from responding to a request
(other than by Executive's employer) for a reference with respect to an
individual's employment qualifications.
6.04 NON-DISPARAGEMENT. Executive will not, during the term or after the
termination or expiration of this Agreement or Executive's employment,
make disparaging statements, in any form, about Ceridian, its officers,
directors, agents, employees, products or services which Executive
knows, or has reason to believe, are false or misleading.
6.05 SURVIVAL AND ENFORCEABILITY. The obligations of this Article VI shall
survive the expiration or termination of this Agreement and Executive's
employment. Should any provision of this Article VI be held invalid or
illegal, such illegality shall not invalidate the whole of this Article
VI or the Agreement, but, rather, Article VI shall be construed as if
it did not contain the illegal part or narrowed to permit its
enforcement, and the rights and obligations of the parties shall be
construed and enforced accordingly. In furtherance of and not in
limitation of the foregoing, Executive expressly agrees that should the
duration of or geographical extent of, or business activities covered
by, any provision of this Article
16
VI be in excess of that which is valid or enforceable under
applicable law, then such provision shall be construed to cover only
that duration, extent or activities that may validly or enforceably
be covered. Executive acknowledges the uncertainty of the law in
this respect and expressly stipulates that this Article VI shall be
construed in a manner that renders its provisions valid and
enforceable to the maximum extent (not exceeding its express terms)
possible under applicable law. This Article VI does not replace and
is in addition to any other agreements Executive may have with
Ceridian on the matters addressed herein.
ARTICLE VII
CHANGE OF CONTROL
7.01 DEFINITIONS. For purposes of this Article VII, the following
definitions shall be applied:
(a) "BENEFIT PLAN" means any formal or informal plan, program or
other arrangement heretofore or hereafter adopted by Ceridian
for the direct or indirect provision of compensation to
Executive (including groups or classes of participants or
beneficiaries of which Executive is a member), whether or not
such compensation is deferred, is in the form of cash or other
property or rights, or is in the form of a benefit to or for
Executive.
(b) "CHANGE OF CONTROL" shall mean any of the following events:
(1) a merger or consolidation to which Parent
Corporation is a party if the individuals
and entities who were stockholders of Parent
Corporation immediately prior to the
effective date of such merger or
consolidation have beneficial ownership (as
defined in Rule 13d-3 under the Securities
Exchange Act of 1934) of less than fifty
percent (50%) of the total combined voting
power for election of directors of the
surviving corporation immediately following
the effective date of such merger or
consolidation; or
(2) the direct or indirect beneficial ownership
(as defined in Rule 13d-3 under the
Securities Exchange Act of 1934) in the
aggregate of securities of Parent
Corporation representing twenty-five percent
(25%) or more of the total combined voting
power of Parent Corporation's then issued
and outstanding securities by any person or
entity, or group of associated persons or
entities acting in concert; provided,
however, that for purposes of hereof, the
following acquisitions shall not constitute
a Change of Control: (A) any acquisition by
Parent Corporation, or (B) any acquisition
by any employee benefit plan (or related
trust) sponsored or maintained by Parent
Corporation or any corporation controlled by
Parent Corporation; or
17
(3) the sale of the properties and assets of
Parent Corporation, substantially as an
entirety, to any person or entity which is
not a wholly-owned subsidiary of Parent
Corporation; or
(4) the stockholders of Parent Corporation
approve any plan or proposal for the
liquidation of Parent Corporation; or
(5) a change in the composition of the Board at
any time during any consecutive 24 month
period such that the "Continuity Directors"
cease for any reason to constitute at least
a seventy percent (70%) majority of the
Board. For purposes of this clause,
"Continuity Directors" means those members
of the Board who either (A) were directors
at the beginning of such consecutive 24
month period, or (B) were elected by, or on
the nomination or recommendation of, at
least a two-thirds (2/3) majority of the
then-existing Board; or
(6) such other event or transaction as the Board
shall determine constitutes a Change of
Control.
(c) "CHANGE OF CONTROL COMPENSATION" means any payment or benefit
(including any transfer of property) in the nature of
compensation, to or for the benefit of Executive under this
Agreement or any Other Agreement or Benefit Plan, which is
considered to be contingent on a Change of Control for
purposes of Section 280G of the Code.
(d) "CHANGE OF CONTROL TERMINATION" means, with respect to
Executive, either of the following events occurring within two
years after a Change of Control:
(1) Termination of Executive's employment by
Ceridian for any reason other than (A)
fraud, (B) misrepresentation, (C) theft or
embezzlement of Ceridian assets, (D)
intentional violations of law involving
moral turpitude, or (E) failure to follow
Ceridian's conduct and ethics policies; or
(2) Termination of employment with Ceridian by
Executive pursuant to Section 7.02 of this
Article VII.
A Change of Control Termination by Executive shall not,
however, include termination by reason of death or Disability.
(e) "CODE" means the Internal Revenue Code of 1986, as amended.
Any reference to a section of the Code shall include the
corresponding section of such Code as from time to time
amended.
18
(f) "GOOD REASON" means a good faith determination by Executive,
in Executive's sole and absolute judgment, that any one or
more of the following events has occurred, without Executive's
express written consent, after a Change of Control:
(1) A change in Executive's reporting
responsibilities, titles or offices as in
effect immediately prior to the Change of
Control, or any removal of Executive from,
or any failure to re-elect Executive to, any
of such positions, which has the effect of
materially diminishing Executive's
responsibility or authority;
(2) A reduction by Ceridian in Executive's Base
Salary as in effect immediately prior to the
Change of Control or as the same may be
increased from time to time thereafter;
(3) Ceridian requiring Executive to be based
anywhere other than within 25 miles of
Executive's job location at the time of the
Change of Control;
(4) Without replacement by plans, programs, or
arrangements which, taken as a whole,
provide benefits to Executive at least
reasonably comparable to those discontinued
or adversely affected, (A) the failure by
Ceridian to continue in effect, within its
maximum stated term, any pension, bonus,
incentive, stock ownership, purchase,
option, life insurance, health, accident,
disability, or any other employee
compensation or benefit plan, program or
arrangement, in which Executive is
participating immediately prior to a Change
of Control; or (B) the taking of any action
by Ceridian that would materially adversely
affect Executive's participation or
materially reduce Executive's benefits under
any of such plans, programs or arrangements;
(5) The failure by Ceridian to provide office
space, furniture, and secretarial support at
least comparable to that provided Executive
immediately prior to the Change of Control
or the taking of any similar action by
Ceridian that would materially adversely
affect the working conditions in or under
which Executive performs his or her
employment duties;
(6) If Executive's primary employment duties are
with a Subsidiary, the sale, merger,
contribution, transfer or any other
transaction in conjunction with which Parent
Corporation's ownership interest in such
Subsidiary decreases below the level
specified in Section 1.07 of Article I
unless (A) this Agreement is assigned to the
purchaser/transferee with the provisions of
Article VII in full force and effect and
operative as if a Change of Control has
occurred
19
with respect to the purchaser/transferee
as Parent Corporation immediately after
the purchase/transfer becomes effective,
and (B) such purchaser/transferee has a
creditworthiness reasonably equivalent to
Parent Corporation's; or
(7) Any material breach of this Agreement by
Ceridian.
(g) "OTHER AGREEMENTS" means any agreement, contract or
understanding heretofore or hereafter entered into between
Executive and Ceridian for the direct or indirect provision of
compensation to Executive.
7.02 CHANGE OF CONTROL TERMINATION RIGHT. For a period of two years
following a Change of Control that occurred during the term of this
Agreement, Executive shall have the right, at any time and within
Executive's sole discretion, to terminate employment with Ceridian for
Good Reason. Such termination shall be accomplished by, and effective
upon, Executive giving written notice to Ceridian of Executive's
decision to terminate. Except as otherwise expressly provided in this
Agreement, upon the exercise of said right, all obligations and duties
of Executive under this Agreement shall be of no further force and
effect.
7.03 CHANGE OF CONTROL TERMINATION PAYMENT.
(a) In the event of a Change of Control Termination that occurred
during the term of this Agreement, then, and without further
action by the Board, Compensation Committee or otherwise,
Ceridian shall, within five days of such termination, make a
lump sum payment to Executive in an amount equal to three
times the sum of (i) 12 months of Base Salary at the rate in
effect at the time of Executive's termination, (ii) the bonus,
if any, that Executive would have received under all
applicable Ceridian bonus plans for the year in which the
termination occurs had "superior" goals been achieved, and
(iii) the annual perquisite cash adder Executive would have
received in the year in which the termination occurs.
(b) In addition to the payments pursuant to Section 7.03(a)
hereof, in the event of a Change of Control Termination that
occurred during the term of this Agreement, then, and without
further action by the Board, Compensation Committee or
otherwise, Ceridian shall provide to Executive a pension
supplement equivalent to the difference, if any, between: (i)
the monthly benefits to which Executive would have been
entitled under the defined benefit pension plan or plans in
which Executive participates immediately prior to the Change
of Control Termination which includes an additional three
years of age and service; and (ii) the amount to which
Executive is, in fact, entitled under such defined benefit
pension plan or plans. Executive's supplemental retirement
benefit pursuant to Section 3.04 shall not be considered a
defined benefit pension plan in which Executive participates
immediately prior to the Change of Control Termination for the
purpose of this Section 7.03(b).
20
(c) In addition to the payments pursuant to Section 7.03(a) and
Section 7.03(b), in the event of a Change of Control
Termination that occurred during the term of this Agreement,
then, and without further action by the Board, Compensation
Committee or otherwise, in determining Executive's
supplemental retirement benefit pursuant to Section 3.04:
(1) An additional three years of age and an additional
three Years of Service shall be added to Executive's
actual age and Years of Service (the additional Years
of Service shall not be limited by the final sentence
of Section 3.04 (i)(7)); and
(2) the benefit shall not be reduced for commencement
before age 60 pursuant to Section 3.04(c)(2), if
applicable.
(d) Neither the payments made pursuant to Section 7.03(a), the
pension supplement provided pursuant to Section 7.03(b) or the
additional supplemental retirement benefits provided pursuant
to Section 3.04 due to the adjustments pursuant to Section
7.03(c) nor any other compensation to be provided to Executive
by Ceridian pursuant to this Agreement or any Other Agreement
or Benefit Plan which may be considered Change of Control
Compensation shall be subject to any limitation on Change of
Control Compensation which may otherwise be expressed in any
such agreement or Benefit Plan.
7.04 TAX REIMBURSEMENT.
(a) Anything in this Agreement to the contrary notwithstanding, in
the event it shall be determined that any payments or
distributions by Ceridian to or for the benefit of Executive
(whether paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise, but
determined without regard to any payments required under this
Section 7.04) (collectively, the "Payments") would be subject
to the excise tax imposed by Section 4999 of the Code or any
interest or penalties are incurred by Executive with respect
to such excise tax (such excise tax, together with any such
interest and penalties, are hereinafter collectively referred
to as the "Excise Tax"), then Executive shall be entitled to
receive an additional payment (a "Gross-Up Payment") in an
amount such that, after payment by Executive of all taxes (and
any interest or penalties imposed with respect to such taxes),
including any income taxes and Excise Tax imposed upon the
Gross-Up Payment, Executive retains an amount of the Gross-Up
Payment equal to the Excise Tax imposed upon the Payments.
(b) Subject to the provisions of Section 7.04(d), all
determinations required to be made under this Section 7.04,
including whether and when a Gross-Up Payment is required and
the amount such Gross-Up Payment and the assumptions to be
21
utilized in arriving at such determination, shall be made by
Ceridian's external auditors (the "Accounting Firm"), which
shall provide detailed supporting calculations both to
Ceridian and Executive within 15 business days of the receipt
of notice from Executive that there has been a Payment, or
such earlier time as is requested by Ceridian. In the event
that the Accounting Firm is serving as accountant or auditor
for the individual, entity or group effecting the Change of
Control, Executive shall 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). All fees and expenses of the
Accounting Firm shall be borne solely by Ceridian. Any
Gross-Up Payment, as determined pursuant to this Section 7.04,
shall be paid by Ceridian to Executive within five days of the
receipt of the Accounting Firm's determination. Any
determination by the Accounting Firm shall be binding upon
Ceridian and Executive.
(c) As a result of 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 which should have been made by Ceridian will not have
been made ("Underpayment"), consistent with the calculations
required to be made hereunder. In the event that Ceridian
exhausts its remedies pursuant to Section 7.04(d) and
Executive thereafter is required to make a payment of any
additional Excise Tax, the Accounting Firm shall determine the
amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by Ceridian to or for the
benefit of Executive.
(d) Executive shall notify Ceridian in writing of any claim by the
Internal Revenue Service or any other taxing authority that,
if successful, would require the payment by Ceridian of any
Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than ten business days after
Executive knows of such claim and shall apprise Ceridian of
the nature of such claim and the date on which such claim is
requested to be paid. Executive shall not pay such claim prior
to the expiration of the thirty-day period following the date
on which it gives such notice to Ceridian (or such shorter
period ending on the date that any payment of taxes with
respect to such claim is due). If Ceridian notifies Executive
in writing prior to the expiration of such period that it
desires to contest such claim, Executive shall:
(i) give Ceridian any information
reasonably requested by Ceridian
relating to such claim;
(ii) take such action in connection with
contesting such claim as Ceridian
shall reasonably request in writing
from time to time, including
accepting legal representation with
respect to such claim by an attorney
reasonably selected by Ceridian;
22
(iii) cooperate with Ceridian in good
faith in order to effectively
contest such claim; and
(iv) permit Ceridian to participate in
any proceedings relating to such
claim;
provided, however, that Ceridian 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 Executive harmless, on an after-tax basis,
for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such
representation and payment of costs and expenses. Without
limitation on the foregoing provisions of this Section
7.04(d), Ceridian shall control all proceedings taken in
connection with such contest and, at its sole option, may
pursue or forego any and all administrative appeals,
proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole
option, either direct Executive to pay the tax claimed and xxx
for a refund or contest the claim in any permissible manner,
and 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 Ceridian shall determine; provided further, however, that
if Ceridian directs Executive to pay such claim and xxx for a
refund, Ceridian shall advance the amount of such payment to
Executive on an interest-free basis and shall indemnify and
hold Executive harmless, on an after-tax basis, from any
Excise Tax or income tax (including interest or penalties with
respect thereto) imposed with respect to such advance or with
respect to any imputed income with respect to such advance;
and provided further that any extension of the statute of
limitations relating to payment of taxes for the taxable year
of Executive with respect to which such contested amount is
claimed to be due is limited solely to such contested amount.
Furthermore, Ceridian's control of the contest shall be
limited to issues with respect to which a Gross-Up Payment
would be payable hereunder and 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.
(e) If, after the receipt by Executive of an amount advanced by
Ceridian pursuant to Section 7.04(d), Executive becomes
entitled to receive any refund with respect to such claim,
Executive shall (subject to Ceridian's complying with the
requirements of Section 7.04(d)) promptly pay to Ceridian the
amount of such refund (together with any interest paid or
credited thereon after taxes applicable thereto). If, after
the receipt by Executive of an amount advanced by Ceridian
pursuant to Section 7.04(d), a determination is made that
Executive shall not be entitled to any refund with respect to
such claim and Ceridian does not notify Executive in writing
of its intent to contest such denial of refund prior to the
23
expiration of thirty days after such determination, then such
advance shall be forgiven and shall not be required to be
repaid and the amount of such advance shall offset, to the
extent thereof, the amount of Gross-Up Payment required to be
paid.
7.05 INTEREST. In the event Ceridian does not make timely payment in full of
the Change of Control Termination payment described in Section 7.03,
Executive shall be entitled to receive interest on any unpaid amount at
the lower of: (a) the prime rate of interest (or such comparable index
as may be adopted) established from time to time by the Bank of America
National Trust and Savings Association, New York, New York or its
successor in interest; or (b) the maximum rate permitted under Section
280G(d)(4) of the Internal Revenue Code.
7.06 ATTORNEYS' FEES. In the event Executive incurs any legal expense to
enforce or defend his or her rights under this Article VII of this
Agreement, or to recover damages for breach thereof, Executive shall be
entitled to recover from Ceridian any expenses for attorneys' fees and
disbursements incurred.
7.07 BENEFITS CONTINUATION. In the event of a Change of Control Termination,
Executive (and anyone entitled to claim under or through Executive)
shall, until age 65, be entitled to receive from Ceridian the same or
equivalent health, dental, accidental death and dismemberment, short
and long-term disability, life insurance coverages, and all other
insurance policies and health and welfare benefits programs, policies
or arrangements, at the same levels and coverages as Executive was
receiving on the day immediately prior to the Change of Control at a
cost not to exceed the amount Executive would continue to pay had
he/she continued to be an active employee of Ceridian. To the extent
that election of continuation of any of such coverages, programs,
policies, or arrangements is made available to employees terminating at
age 55 with 15 or more years of service, Executive shall be required to
pay no more for continuation than is required of such employees on the
day immediately prior to the Change of Control. If no such continuation
program is available, Executive shall be required to pay no more than
he/she paid as an active employee, or if provided by Ceridian at no
cost to employees on the day immediately prior to the Change of
Control, they shall continue to be made available to Executive on this
basis.
ARTICLE VIII
CHANGE OF SUBSIDIARY STATUS
In the event that, prior to a Change of Control: (a) a Subsidiary is sold,
merged, contributed, or in any other manner transferred, or if for any reason
Parent Corporation's ownership interest in any such Subsidiary falls below the
level specified in Section 1.07, (b) Executive's primary employment duties are
with the Subsidiary at the time of the occurrence of such event, and (c)
24
Executive does not, in conjunction therewith, transfer employment directly to
Parent Corporation or another Subsidiary, then:
(1) If Executive gives his or her written consent to the
assignment of this Agreement to such Subsidiary, or to the
purchaser or new majority interest holder of such Subsidiary,
(and such assignment is accepted) this Agreement shall remain
in full force and effect between Executive and the assignee,
except that the provisions of Article VII of this Agreement
shall become null and void;
(2) If such assignment is not accepted by the Subsidiary or
purchaser, then this Agreement shall be deemed to have been
terminated by Ceridian without cause pursuant to Section 4.03
of Article IV; and
(3) In all other cases, this Agreement shall be deemed terminated
for cause pursuant to Section 4.02 of Article IV.
ARTICLE IX
GENERAL PROVISIONS
9.01 NO ADEQUATE REMEDY. The parties declare that it is impossible to
measure in money the damages which will accrue to either party by
reason of a failure to perform any of the obligations under this
Agreement and therefore injunctive relief is appropriate. Therefore, if
either party shall institute any action or proceeding to enforce the
provisions hereof, such party against whom such action or proceeding is
brought hereby waives the claim or defense that such party has an
adequate remedy at law, and such party shall not urge in any such
action or proceeding the claim or defense that such party has an
adequate remedy at law.
9.02 SUCCESSORS AND ASSIGNS. Except as otherwise provided in Article VIII,
this Agreement shall be binding upon and inure to the benefit of the
successors and assigns of Parent Corporation and each Subsidiary,
whether by way of merger, consolidation, operation of law, assignment,
purchase or other acquisition of substantially all of the assets or
business of Ceridian, and any such successor or assign shall absolutely
and unconditionally assume all of Ceridian's obligations hereunder.
9.03 NOTICES. All notices, requests and demands given to or made pursuant
hereto shall, except as otherwise specified herein, be in writing and
be delivered or mailed to any such party at its address:
(a) Ceridian Corporation
0000 Xxxx Xxx Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Office of General Counsel
25
(b) In the case of Executive shall be:
At the address listed on the last page of this Agreement.
Either party may, by notice hereunder, designate a changed
address. Any notice, if mailed properly addressed, postage
prepaid, registered or certified mail, shall be deemed
dispatched on the registered date or that stamped on the
certified mail receipt, and shall be deemed received within
the second business day thereafter or when it is actually
received, whichever is sooner.
9.04 CAPTIONS. The various headings or captions in this Agreement are for
convenience only and shall not affect the meaning or interpretation of
this Agreement.
9.05 GOVERNING LAW. The validity, construction and performance of this
Agreement shall be governed by the laws of the State of Minnesota and
any and every legal proceeding arising out of or in connection with
this Agreement shall be brought in the appropriate courts of the State
of Minnesota, each of the parties hereby consenting to the exclusive
jurisdiction of said courts for this purpose. The parties hereto
expressly recognize and agree that the implementation of this Governing
Law provision is essential in light of the fact that Parent
Corporation's corporate headquarters and its principal executive
offices are located within the State of Minnesota, and there is a
critical need for uniformity in the interpretation and enforcement of
the employment agreements between Ceridian and its senior executives.
9.06 CONSTRUCTION. Wherever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity
without invalidating the remainder of such provision or the remaining
provisions of this Agreement.
9.07 WAIVERS. No failure on the part of either party to exercise, and no
delay in exercising, any right or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right
or remedy hereunder preclude any other or further exercise thereof or
the exercise of any other right or remedy granted hereby or by any
related document or by law.
9.08 MODIFICATION. Any changes or amendments to this Agreement must be in
writing and signed by both parties.
9.09 ARBITRON EMPLOYMENT AGREEMENT AND RELEASE OF LIABILITY. Without
limiting Section 9.10 hereof, this Agreement shall supercede and
terminate any employment agreement or understanding between Executive
and Arbitron. In addition, in consideration for agreeing to transfer
Executive's employment to Ceridian, Executive agrees to executes the
release,
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in the form attached as Exhibit B, relating to claims against
Arbitron that may exit or have existed on or prior to [____________],
2000.
9.10 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding between the parties hereto in reference to all the
matters herein agreed upon. This Agreement replaces in full all prior
employment agreements or understandings of the parties hereto, and any
and all such prior agreements or understandings are hereby rescinded by
mutual agreement.
IN WITNESS WHEREOF, The parties hereto have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
EXECUTIVE CERIDIAN CORPORATION
By:
------------------------------ ------------------------------
Xxxxxx X. Xxxxxx
Title:
------------------------------
Address:
------------------------------
------------------------------
------------------------------
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EXHIBIT A
RELEASE
I, Xxxxxx X. Xxxxxx, in consideration of the payments of $_________
subject to appropriate withholding, which includes compensation to which I
would not be otherwise entitled, do hereby fully and completely release and
waive any and all claims, complaints, causes of action or demands of whatever
kind which I have or may have against Ceridian Corporation, its predecessors,
successors, subsidiaries and affiliates and all past and present members the
Board of Directors, officers, employees and agents of those persons and
companies ("Ceridian") arising out of any actions, conduct, decisions,
behavior or events occurring up to the date of my execution of this Release.
I understand and accept that this Release specifically covers but is
not limited to any and all claims, complaints, causes of action or demands
which I have or may have against the above-referenced released parties
relating in any way to the terms, conditions and circumstances of my
employment up to the date of my signature below, any form of employment
discrimination prohibited under any state's human rights act, Title VII of
the Federal Civil Rights Act of 1964 and the Federal Age Discrimination in
Employment Act. I further understand that this Release extends to but is not
limited to all claims which I may have based on statutory or common law
claims for negligence or other breach of duty, wrongful discharge, breach of
contract, breach of any express or implied promise, misrepresentation, fraud,
retaliation, breach of public policy, infliction of emotional distress,
defamation, promissory estoppel, failure to pay wages or any other theory,
whether legal or equitable.
Nothing contained herein, however, shall be construed to prohibit me
from filing a charge with the Equal Employment Opportunity Commission, but my
release includes a release of my right to file a court action or to seek
individual remedies or damages in any Equal Employment Opportunity
Commission-filed court action, and my release of these rights shall apply
with full force and effect to any proceedings arising from or relating to
such a charge.
I also understand that if I unsuccessfully dispute the
enforceability of this release, I agree to pay Ceridian's attorneys' fees. I
agree to return the payment I receive before any attempt is made to dispute
the enforceability of this release. I agree that my only remedy for any
dispute I have about the enforceability of this Release shall be to submit
that dispute to final and binding arbitration in accordance with the rules of
the American Arbitration Association. Ceridian and I agree that I must send
written notice of any claim to Ceridian by certified mail, return receipt
requested. Written notice to Ceridian shall be sent to its Secretary at 0000
Xxxx Xxx Xxxxxxxx Xxxx, Xxxxxxxxxxx, XX 00000-0000.
I understand that I may rescind this Release if I do so in writing,
delivered by certified mail, return receipt requested, to Office of the
General Counsel, Ceridian Corporation, 0000 Xxxx Xxx Xxxxxxxx Xxxx,
Xxxxxxxxxxx, XX 00000-0000, within fifteen (15) calendar days of the date of
my signature below. Upon the expiration of fifteen (15) calendar days from
the date indicated below, if I have not rescinded this Release, then Ceridian
Corporation shall promptly deliver to
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me the above-referenced payment, subject to appropriate withholding, this
Release being contingent upon payment of that sum.
If sent by mail, the rescission must be:
- Postmarked within the 15 calendar-day period;
- Properly addressed to Ceridian; and
- Sent by certified mail, return receipt requested.
By my signature below, I acknowledge that I fully understand and
accept the terms of this Release, and I represent and agree that my signature
is freely, voluntarily and knowingly given. I have had 21 days in which to
consider this agreement. By my signature below, I further acknowledge that I
have been provided a full opportunity to review and reflect on the terms of
this Release and to seek the advice of legal counsel of my choice, which
advice I have been encouraged to obtain.
If I do not execute this Release within 30 days after I receive it,
the offer Ceridian has made for a payment herein is null and void.
Date:
------------------------------ ------------------------------
Xxxxxx X. Xxxxxx
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EXHIBIT B
ARBITRON RELEASE
I, Xxxxxx X. Xxxxxx, in consideration of the transfer of my
employment from Arbitron Inc., a Delaware corporation f/k/a Ceridian
Corporation, to Ceridian Corporation, a Delaware corporation f/k/a New
Ceridian Corporation and a former wholly owned subsidiary of Arbitron Inc.
("Ceridian"), do hereby fully and completely release and waive any and all
claims, complaints, causes of action or demands of whatever kind which I have
or may have against Arbitron Inc., its predecessors, successors, subsidiaries
and affiliates, but specifically excluding Ceridian, and all past and present
members the Board of Directors, officers, employees and agents of those
persons and companies ("Arbitron") arising out of any actions, conduct,
decisions, behavior or events occurring up to the date of this Release or
arising out of the transactions contemplated under the that certain
Distribution Agreement, dated [________, 2001], between Arbitron and Ceridian
("Distribution Agreement"), and that certain Personnel Agreement, dated
[____________, 2001], between Arbitron and Ceridian ("Personnel Agreement").
I acknowledge that I have previously received copies of the Distribution
Agreement and Personnel Agreement.
I understand and accept that this Release specifically covers but is
not limited to any and all claims, complaints, causes of action or demands
which I have or may have against the above-referenced released parties
relating in any way to the terms, conditions and circumstances of my
employment up to the date of my signature below, any form of employment
discrimination prohibited under any state's human rights act, Title VII of
the Federal Civil Rights Act of 1964 and the Federal Age Discrimination in
Employment Act. I further understand that this Release extends to but is not
limited to all claims which I may have based on statutory or common law
claims for negligence or other breach of duty, wrongful discharge, breach of
contract, breach of any express or implied promise, misrepresentation, fraud,
retaliation, breach of public policy, infliction of emotional distress,
defamation, promissory estoppel, failure to pay wages or any other theory,
whether legal or equitable.
Nothing contained herein, however, shall be construed to prohibit me
from filing a charge with the Equal Employment Opportunity Commission, but my
release includes a release of my right to file a court action or to seek
individual remedies or damages in any Equal Employment Opportunity
Commission-filed court action, and my release of these rights shall apply
with full force and effect to any proceedings arising from or relating to
such a charge.
Furthermore, nothing contained herein, shall be construed to release
and waive any and all claims, complaints, causes of action or demands of
whatever kind which I have or may have against Ceridian, its successors,
subsidiaries and affiliates, and all past and present members the Board of
Directors, officers, employees and agents of Ceridian and its successors,
subsidiaries and affiliates arising out of any actions, conduct, decisions,
behavior or events occurring up to the date of this Release or arising out of
the transactions contemplated by the Distribution Agreement and Personnel
Agreement.
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I also understand that if I unsuccessfully dispute the
enforceability of this Release, I agree to pay Arbitron's attorneys' fees. I
agree to return the payment I receive before any attempt is made to dispute
the enforceability of this release. I agree that my only remedy for any
dispute I have about the enforceability of this Release shall be to submit
that dispute to final and binding arbitration in accordance with the rules of
the American Arbitration Association. Arbitron and I agree that I must send
written notice of any claim to Arbitron by certified mail, return receipt
requested. Written notice to Arbitron shall be sent to its General Counsel at
000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000-0000.
I understand that I may rescind this Release if I do so in writing,
delivered by certified mail, return receipt requested, to Office of the
General Counsel, Arbitron Inc., 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX
00000-0000, within fifteen (15) calendar days of the date of my signature
below.
If sent by mail, the rescission must be:
- Postmarked within the 15 calendar-day period;
- Properly addressed to Arbitron; and
- Sent by certified mail, return receipt requested.
By my signature below, I acknowledge that I fully understand and
accept the terms of this Release, and I represent and agree that my signature
is freely, voluntarily and knowingly given. I have had 21 days in which to
consider this agreement. By my signature below, I further acknowledge that I
have been provided a full opportunity to review and reflect on the terms of
this Release and to seek the advice of legal counsel of my choice, which
advice I have been encouraged to obtain.
Date: [ ], 2001
----------- -----------------------------
Xxxxxx X. Xxxxxx
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