EXHIBIT 10.01
INDEMNIFICATION AGREEMENT
This Agreement, made and entered into as of the day of ,
20 , ("Agreement"), by and between Ceridian Corporation, a Delaware corporation
("Company"), and ("Indemnitee"):
WHEREAS, highly competent persons may be reluctant to serve
publicly-held corporations as directors or in other capacities unless they are
provided with adequate protection through insurance or adequate indemnification
against risks of claims and actions against them arising out of their service to
and activities on behalf of such corporations; and
WHEREAS, the Board of Directors of the Company has determined that
difficulties in attracting and retaining such persons are detrimental to the
best interests of the Company's stockholders and that the Company should act to
assure such persons that there will be increased certainty of such protection in
the future; and
WHEREAS, it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify such persons to the fullest extent
permitted by applicable law so that they will serve or continue to serve the
Company free from undue concern that they will not be so indemnified; and
WHEREAS, Indemnitee is willing to serve, continue to serve and to
take on additional service for or on behalf of the Company on the condition that
Indemnitee be so indemnified;
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement the following terms shall have the meaning
given here:
1.01 "Board" shall mean the Board of Directors of the Company.
1.02 "Change of Control" shall mean the first of the following events to
occur:
(a) there is consummated a merger or consolidation to which the
Company or any direct or indirect subsidiary of the Company is
a party if the merger or consolidation would result in the
voting securities of the Company outstanding immediately prior
to such merger or consolidation continuing to represent
(either by remaining outstanding or by being converted into
voting securities of the surviving entity or any parent
thereof) less than 60% of the combined voting power of the
securities of the Company or
such surviving entity or any parent thereof outstanding
immediately after such merger or consolidation; or
(b) the direct or indirect beneficial ownership (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act" ) in the aggregate of securities
of the Company representing twenty percent (20%) or more of
the total combined voting power of the Company's then issued
and outstanding securities is acquired by any person or
entity, or group of associated persons or entities acting in
concert; provided, however, that for purposes hereof, the
following acquisitions shall not constitute a Change of
Control: (A) any acquisition by the Company or any of its
subsidiaries, (B) any acquisition directly from the Company or
any of its subsidiaries, (C ) any acquisition by any employee
benefit plan (or related trust or fiduciary) sponsored or
maintained by the Company or any corporation controlled by the
Company, (D) any acquisition by an underwriter temporarily
holding securities pursuant to an offering of such securities,
(E) any acquisition by a corporation owned, directly or
indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock
of the Company, (F) any acquisition in connection with which,
pursuant to Rule 13d-1 promulgated pursuant to the Exchange
Act, the individual, entity or group is permitted to, and
actually does, report its beneficial ownership on Schedule 13G
(or any successor Schedule); provided that, if any such
individual, entity or group subsequently becomes required to
or does report its beneficial ownership on Schedule 13D (or
any successor Schedule), then, for purposes of this paragraph,
such individual, entity or group shall be deemed to have first
acquired, on the first date on which such individual, entity
or group becomes required to or does so report on Schedule
13D, beneficial ownership of all of the voting securities of
the Company beneficially owned by it on such date, and (G) any
acquisition in connection with a merger or consolidation
which, pursuant to paragraph (1) above, does not constitute a
Change of Control; or
(c) there is consummated a transaction contemplated by an
agreement for the sale or disposition by the Company of all or
substantially all of the Company's assets, other than a sale
or disposition by the Company of all or substantially all of
the Company's assets to an entity, at least 60% of the
combined voting power of the voting securities of which are
owned by stockholders of the Company in substantially the same
proportions as their ownership of the Company immediately
prior to such sale; or
(d) the stockholders of the Company approve any plan or proposal
for the liquidation of the Company; or
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(e) a change in the composition of the Board such that the
"Continuity Directors" cease for any reason to constitute at
least a majority of the Board. For purposes of this clause,
"Continuity Directors" means (A) those members of the Board
who were directors on the date hereof and (B) those members of
the Board (other than a director whose initial assumption of
office was in connection with an actual or threatened election
contest, including but not limited to a consent solicitation,
relating to the election of directors of the Company) who were
elected or appointed by, or on the nomination or
recommendation of, at least a two-thirds (2/3) majority of the
then-existing directors who either were directors on the date
hereof or were previously so elected or appointed; or
(f) such other event or transaction as the Board shall determine
constitutes a Change of Control.
1.03 "Corporate Status" describes the status of a person who is or was a
director, officer, employee, agent or fiduciary of the Company or of any other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise which such person is or was serving at the express written request of
the Company, and includes the status of a person who served as a director of
Arbitron Inc. (previously known as Ceridian Corporation) prior to the
distribution to each of Arbitron Inc.'s shareholders all shares of the Company's
common stock on March 30, 2001 but only to the extent that such service relates
to such distribution or the New Ceridian Business (as defined in the
Distribution Agreement between Arbitron Inc. and the Company, dated as of
February 14, 2001).
1.04 "Disinterested Director" means a director of the Company who is not
and was not a party to the Proceeding in respect of which indemnification is
sought by Indemnitee.
1.05 "Effective Date" means , 20 .
1.06 "Enterprise" shall mean the Company and any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise of
which Indemnitee is or was serving at the express written request of the Company
as a director, officer, employee, agent or fiduciary.
1.07 "Expenses" shall include all reasonable attorneys' fees, retainers,
court costs, transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage,
delivery service fees, and all other disbursements, costs, expenses and
obligations paid or incurred in connection with prosecuting, defending,
preparing to prosecute or defend, investigating, or being or preparing to be a
witness in a Proceeding.
1.08 "Good Faith" shall mean Indemnitee having acted in good faith and in
a manner Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, and,
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with respect to any criminal Proceeding, having had no reasonable cause to
believe Indemnitee's conduct was unlawful.
1.09 "Independent Counsel" means a law firm, or a member of a law firm,
that is experienced in matters of corporation law and neither presently is, nor
in the past five years has been, retained to represent: (i) the Company or
Indemnitee in any matter material to either such party, or (ii) any other party
to the Proceeding giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term "Independent Counsel" shall not include
any person who, under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing either the Company
or Indemnitee in an action to determine Indemnitee's rights under this
Agreement.
1.10 "Proceeding" includes any action, suit, arbitration, alternate
dispute resolution mechanism. investigation, administrative hearing or any other
actual, threatened or completed proceeding whether civil, criminal,
administrative or investigative, other than one initiated by Indemnitee. For
purposes of the foregoing sentence, a "Proceeding" shall not be deemed to have
been initiated by Indemnitee where Indemnitee seeks to enforce Indemnitee's
rights under this Agreement pursuant to Article VIII of this Agreement.
ARTICLE II
TERM OF AGREEMENT
This Agreement shall continue until and terminate upon the later of: (i)
10 years after the date that Indemnitee shall have ceased to serve as a
director, officer, employee, agent or fiduciary of the Company or of any other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise which Indemnitee served at the express written request of the
Company; or (ii) the final termination of all pending Proceedings in respect of
which Indemnitee is granted rights of indemnification or advancement of expenses
hereunder and of any proceeding commenced by Indemnitee pursuant to Article VIII
of this Agreement relating thereto.
ARTICLE III
SERVICES BY INDEMNITEE, NOTICE OF PROCEEDINGS
3.01 Services. Indemnitee agrees to serve as a director. Indemnitee may at
any time and for any reason resign from such position (subject to any other
contractual obligation or any obligation imposed by operation of law).
3.02 Notice of Proceeding. Indemnitee agrees promptly to notify the
Company in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding
or matter which may be subject to indemnification or advancement of Expenses
covered hereunder.
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ARTICLE IV
INDEMNIFICATION
4.01 In General. If, by reason of Indemnitee's Corporate Status,
Indemnitee was or is, or is threatened to be made, a party to any proceeding by
reason of Indemnitee's Corporate Status, the Company shall indemnify Indemnitee
to the fullest extent permitted by applicable law in effect on the date hereof
and to such greater extent as applicable law may thereafter from time to time
permit. Such right of indemnification shall include, but not be limited to, the
rights set forth in Sections 4.02, 4.03, 4.04 and 4.05 hereof.
4.02 Proceedings Other Than Proceedings by or in the Right of the Company.
Indemnitee shall be entitled to the rights of indemnification provided in this
Section 4.02 if, by reason of Indemnitee's Corporate Status, Indemnitee was or
is, or is threatened to be made, a party to any Proceeding, other than a
Proceeding by or in the right of the Company. Indemnitee shall be indemnified
against Expenses, judgments, penalties, fines, ERISA excise taxes or penalties
and amounts paid in settlement (including all interest, assessments, and other
charges paid or payable in connection with or in respect of such Expenses),
actually and reasonably incurred by Indemnitee or on Indemnitee's behalf in
connection with such Proceeding or any claim, issue or matter therein, if
Indemnitee acted in Good Faith.
4.03 Proceedings by or in the Right of the Company. Indemnitee shall be
entitled to the rights of indemnification provided in this Section 4.03 if, by
reason of Indemnitee's Corporate Status, Indemnitee was or is, or is threatened
to be made, a party to any Proceeding brought by or in the right of the Company
to procure a judgment in its favor. Indemnitee shall be indemnified against
Expenses, judgments, penalties, fines, ERISA excise taxes or penalties, and
amounts paid in settlement (including all interest, assessments, and other
charges paid or payable in connection with or in respect of such Expenses),
actually and reasonably incurred by Indemnitee or on Indemnitee's behalf in
connection with such Proceeding or any claim issue or matter therein if
Indemnitee acted in Good Faith. Notwithstanding the foregoing, no such
indemnification shall be made in respect of any claim, issue or matter in such
Proceeding as to which Indemnitee shall have been adjudged to be liable to the
Company if applicable law prohibits such indemnification; provided, however,
that, if applicable law so permits, indemnification shall nevertheless be made
by the Company in such event if and only to the extent that the Court of
Chancery of the State of Delaware, or the court in which such Proceeding shall
have been brought or is pending, shall determine.
4.04 Indemnification of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provision of this Agreement, to the extent that
Indemnitee was or is, by reason of Indemnitee's Corporate Status, a party to and
is successful, on the merits or otherwise, in any Proceeding, Indemnitee shall
be indemnified to the maximum extent permitted by law, against all Expenses,
judgments, penalties, fines, ERISA excise taxes or penalties, and amounts paid
in settlement (including all interest, assessments, and other charges paid or
payable in connection with or in respect of such Expenses), actually and
reasonably incurred by Indemnitee or on Indemnitee's behalf in connection with
such Proceeding or any claim, issue or matter therein. If Indemnitee is not
wholly successful in such Proceeding but is successful, on the merits or
otherwise, as to one or more but less than all claims, issues or matters in such
Proceeding, the Company shall indemnify Indemnitee to the maximum extent
permitted by law, against all Expenses, judgments, penalties, fines, ERISA
excise taxes or penalties, and amounts
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paid in settlement (including all interest, assessments, and other charges paid
or payable in connection with or in respect of such Expenses), actually and
reasonably incurred by Indemnitee or on Indemnitee's behalf in connection with
each successfully resolved claim, issue or matter. For purposes of this Section
4.04 and without limitation, the termination of any claim, issue or matter in
such a Proceeding by dismissal, with or without prejudice, shall be deemed to be
a successful result as to such claim, issue or matter, so long as there has been
no finding (either adjudicated or pursuant to Article VI) that Indemnitee did
not act in Good Faith.
4.05 Indemnification for Expenses as a Witness. Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee is, by reason of
Indemnitee's Corporate Status, a witness in any Proceeding, Indemnitee shall be
indemnified against all Expenses actually and reasonably incurred by Indemnitee
or on Indemnitee's behalf in connection therewith.
ARTICLE V
ADVANCEMENT OF EXPENSES
Notwithstanding any provision to the contrary in Article VI, the Company
shall advance all reasonable Expenses which, by reason of Indemnitee's Corporate
Status, were incurred by or on behalf of Indemnitee in connection with any
Proceeding, within twenty days after the receipt by the Company of a statement
or statements from Indemnitee requesting such advance or advances, whether prior
to or after final disposition of such Proceeding. Such statement or statements
shall reasonably evidence the Expenses incurred by Indemnitee and shall include
or be preceded or accompanied by an undertaking by or on behalf of Indemnitee to
repay any Expenses if it shall ultimately be determined that Indemnitee is not
entitled to be indemnified against such Expenses. Any advance and undertakings
to repay pursuant to this Article V shall be unsecured and interest free.
ARTICLE VI
PROCEDURES FOR DETERMINATION OF
ENTITLEMENT TO INDEMNIFICATION
6.01 Initial request. To obtain indemnification under this Agreement,
Indemnitee shall submit to the Company a written request, including therein or
therewith such documentation and information as is reasonably available to
Indemnitee and is reasonably necessary to determine whether and to what extent
Indemnitee is entitled to indemnification. The Secretary of the Company shall
promptly advise the Board in writing that Indemnitee has requested
indemnification.
6.02 Method of Determination. A determination (if required by applicable
law) with respect to Indemnitee's entitlement to indemnification shall be made
as follows:
(a) if a Change in Control has occurred, unless Indemnitee shall
request in writing that such determination be made in
accordance with clause (b) of this Section 6.02, the
determination shall be made by Independent Counsel
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in a written opinion to the Board, a copy of which shall be
delivered to Indemnitee;
(b) if a Change of Control has not occurred, and subject to
Section 6.03, the determination shall be made by the Board by
a majority vote of a quorum consisting of Disinterested
Directors. In the event that a quorum of the Board consisting
of Disinterested Directors is not obtainable or, even if
obtainable, such quorum of Disinterested Directors so directs,
the determination shall be made by Independent Counsel in a
written opinion to the Board, a copy of which shall be
delivered to Indemnitee.
6.03 Selection, Payment, Discharge, of Independent Counsel. In the event
the determination of entitlement to indemnification is to be made by Independent
Counsel pursuant to Section 6.02 of this Agreement, the Independent Counsel
shall be selected, paid, and discharged in the following manner:
(a) If a Change of Control has not occurred, the Independent
Counsel shall be selected by the Board, and the Company shall
give written notice to Indemnitee advising Indemnitee of the
identity of the Independent Counsel so selected.
(b) If a Change of Control has occurred, the Independent Counsel
shall be selected by Indemnitee (unless Indemnitee shall
request that such selection be made by the Board, in which
event clause (a) of this section shall apply), and Indemnitee
shall give written notice to the Company advising it of the
identity of the Independent Counsel so selected.
(c) Following the initial selection described in clauses (a) and
(b) of this Section 6.03, Indemnitee or the Company, as the
case may be, may, within 7 days after such written notice of
selection has been given, deliver to the other party a written
objection to such selection. Such objection may be asserted
only on the ground that the Independent Counsel so selected
does not meet the requirements of Independent Counsel as
defined in Section 1.09 of this Agreement, and the objection
shall set forth with particularity the factual basis of such
assertion. Absent a proper and timely objection, the person so
selected shall act as Independent Counsel. If such written
objection is made, the Independent Counsel so selected may not
serve as Independent Counsel unless and until a court has
determined that such objection is without merit.
(d) Either the Company or Indemnitee may petition the Court of
Chancery of the State of Delaware or other court of competent
jurisdiction if the parties have been unable to agree on the
selection of Independent Counsel within 20 days after
submission by Indemnitee of a written request for
indemnification pursuant to Section 6.01 of this Agreement.
Such petition
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may request a determination whether an objection to the
party's selection is without merit and/or seek the appointment
as Independent Counsel of a person selected by the Court or by
such other person as the Court shall designate. A person so
appointed shall act as Independent Counsel under Section 6.02
of this Agreement.
(e) The Company shall pay any and all reasonable fees and expenses
of Independent Counsel incurred by such Independent Counsel in
connection with acting pursuant to this Agreement, and the
Company shall pay all reasonable fees and expenses incident to
the procedures of this Section 6.03, regardless of the manner
in which such Independent Counsel was selected or appointed.
(f) Upon the due commencement of any judicial proceeding or
arbitration pursuant to Section 8.01(c) of this Agreement,
Independent Counsel shall be discharged and relieved of any
further responsibility in such capacity (subject to the
applicable standards of professional conduct then prevailing).
6.04 Cooperation. Indemnitee shall cooperate with the person, persons or
entity making the determination with respect to Indemnitee's entitlement to
indemnification under this Agreement, including providing to such person,
persons or entity upon reasonable advance request any documentation or
information which is not privileged or otherwise protected from disclosure and
which is reasonably available to Indemnitee and reasonably necessary to such
determination. Any expenses, costs, disbursements and obligations (including
attorneys' fees) incurred by Indemnitee in so cooperating with the person,
persons or entity making such determination shall be borne by the company
(irrespective of the determination as to Indemnitee's entitlement to
indemnification) and the Company hereby indemnifies and agrees to hold
Indemnitee harmless therefrom.
6.05 Payment. If it is determined that Indemnitee is entitled to
indemnification, payment to Indemnitee shall be made within ten (10) days after
such determination.
ARTICLE VII
PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS
7.01 Burden of Proof. In making a determination with respect to
entitlement to indemnification hereunder, the person or persons or entity making
such determination shall presume that Indemnitee is entitled to indemnification
under this Agreement if Indemnitee has submitted a request for indemnification
in accordance with Section 6.01 of this Agreement, and the Company shall have
the burden of proof to overcome that presumption in connection with the making
by any person, persons or entity of any determination contrary to that
presumption.
7.02 Effect of Other Proceedings. The termination of any Proceeding or of
any claim, issue or matter therein, by judgment, order, settlement or
conviction, or upon a plea of
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nolo contendere or its equivalent, shall not (except as otherwise expressly
provided in this Agreement) of itself adversely affect the right of Indemnitee
to indemnification or create a presumption that Indemnitee did not act in Good
Faith.
7.03 Reliance as Safe Harbor. For purposes of any determination of Good
Faith, Indemnitee shall be deemed to have acted in Good Faith if Indemnitee's
action is based on the records or books of account of the Enterprise, including
financial statements, or on information supplied to Indemnitee by the officers
of the Enterprise in the course of their duties, or on the advice of legal
counsel for the Enterprise or on information or records given or reports made to
the Enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Enterprise. The provisions
of this Section 7.03 shall not be deemed to be exclusive or to limit in any way
the other circumstances in which the Indemnitee may be deemed to have met the
applicable standard of conduct set forth in this Agreement.
7.04 Actions of Others. The knowledge and/or actions, or failure to act,
of any director, officer, agent or employee of the Enterprise shall not be
imputed to Indemnitee for Purposes of determining the right to indemnification
under this Agreement.
ARTICLE VIII
REMEDIES OF INDEMNITEE
8.01 Application. This Article VIII shall apply in the event of a Dispute.
For purposes of this Article, "Dispute", shall mean any of the following events:
(a) a determination is made pursuant to Article VI of this
Agreement that Indemnitee is not entitled to indemnification
under this Agreement;
(b) advancement of Expenses is not timely made pursuant to Article
V of this Agreement;
(c) the determination of entitlement to be made pursuant to
Section 6.02 of this Agreement has not been made within 90
days after receipt by the Company of the request for
indemnification;
(d) payment of indemnification is not made pursuant to Section
4.05 of this Agreement within ten (10) days after receipt by
the Company of a written request therefor; or
(e) payment of indemnification is not made within ten (10) days
after a determination has been made that Indemnitee is
entitled to indemnification or such determination is deemed to
have been made pursuant to Article VI of this Agreement.
8.02 Adjudication. In the event of a Dispute, Indemnitee shall be entitled
to an adjudication in an appropriate court of the State of Delaware, or in any
other court of competent
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jurisdiction, of Indemnitee's entitlement to such indemnification or advancement
of Expenses. Alternatively, Indemnitee, at Indemnitee's option, may seek an
award in arbitration to be conducted by a single arbitrator pursuant to the
rules of the American Arbitration Association. Indemnitee shall commence such
proceeding seeking an adjudication or an award in arbitration within 180 days
following the date on which Indemnitee first has the right to commence such
proceeding pursuant to this Section 8.02. The Company shall not oppose
Indemnitee's right to seek any such adjudication or award in arbitration.
8.03 De Novo Review. In the event that a determination shall have been
made pursuant to Article VI of this Agreement that Indemnitee is not entitled to
indemnification, any judicial proceeding or arbitration commenced pursuant to
this Article VIII shall be conducted in all respects as a de novo trial, or
arbitration, on the merits and Indemnitee shall not be prejudiced by reason of
that adverse determination. In any such proceeding or arbitration, the Company
shall have the burden of proving that Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may be.
8.04 Company Bound. If a determination shall have been made or deemed to
have been made pursuant to Article VI of this Agreement that Indemnitee is
entitled to indemnification, the Company shall be bound by such determination in
any judicial proceeding or arbitration absent (i) a misstatement by Indemnitee
of a material fact or an omission of a material fact necessary to make
Indemnitee's statement not materially misleading, in connection with the request
for indemnification, or (ii) a prohibition of such indemnification under
applicable law.
8.05 Procedures Valid. The Company shall be precluded from asserting in
any judicial proceeding or arbitration commenced pursuant to this Article VIII
that the procedures and presumptions of this Agreement are not valid, binding
and enforceable and shall stipulate in any such court or before any such
arbitrator that the Company is bound by all the provisions of this Agreement.
8.06 Expenses of Adjudication. In the event that Indemnitee, pursuant to
this Article VIII, seeks a judicial adjudication of or an award in arbitration
to enforce Indemnitee's rights under, or to recover damages for breach of this
Agreement, Indemnitee shall be entitled to recover from the Company, and shall
be indemnified by the Company against, any and all expenses (of the types
described in the definition of Expenses in Section 1.07 of this Agreement)
actually and reasonably incurred by Indemnitee in such adjudication or
arbitration, but only if Indemnitee prevails therein. If it shall be determined
in such adjudication or arbitration that Indemnitee is entitled to receive part
but not all of the indemnification or advancement of expenses sought, the
expenses incurred by Indemnitee in connection with such adjudication or
arbitration shall be appropriately prorated.
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ARTICLE IX
NON-EXCLUSIVITY, INSURANCE, SUBROGATION
9.01 Non-Exclusivity. The rights of indemnification and to receive
advancement of Expenses as provided by this Agreement shall not be deemed
exclusive of any other rights to which Indemnitee may at any time be entitled
under applicable law, the Certificate of Incorporation, the By-Laws, any
agreement, a vote of stockholders or a resolution of directors, or otherwise. No
amendment, alteration, rescission or replacement of this Agreement or any
provision hereof shall be effective as to Indemnitee with respect to any action
taken or omitted by such Indemnitee in Indemnitee's Corporate Status prior to
such amendment, alteration, rescission or replacement.
9.02 Insurance. The Company may maintain an insurance policy or policies
against liability arising out of this Agreement or otherwise.
9.03 Subrogation. In the event of any payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of Indemnitee, who shall execute all papers required and take all
action necessary to secure such rights, including execution of such documents as
are necessary to enable the Company to bring suit to enforce such rights.
9.04 No Duplicative Payment. The Company shall not be liable under this
Agreement to make any payment of amounts otherwise indemnifiable hereunder if
and to the extent that Indemnitee has otherwise actually received such payment
under any insurance policy, contract, agreement or otherwise.
ARTICLE X
GENERAL PROVISIONS
10.01 Binding Effect, Etc. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the parties hereto and their respective
successors, assigns, including any direct or indirect successor by purchase,
merger, consolidation or otherwise to all or substantially all of the business
and/or assets of the Company, spouses, heirs, executors and personal and legal
representatives. This Agreement shall continue in effect regardless of whether
Indemnitee continues to serve as an officer or director of the Company or of any
other enterprise at the Company's request.
10.02 Severability. If any provision or provisions of this Agreement shall
be held to be invalid, illegal or unenforceable for any reason whatsoever:
(a) the validity, legality and enforceability of the remaining
provisions of this Agreement (including without limitation,
each portion of any Section of this Agreement containing any
such provision held to be invalid, illegal or unenforceable,
that is not itself invalid, illegal or unenforceable) shall
not in any way be affected or impaired thereby, and
(b) to the fullest extent possible, the provisions of this
Agreement (including, without limitation, each portion of any
Section of this Agreement
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containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or
unenforceable) shall be construed so as to give effect to the
intent manifested by the provision held invalid, illegal or
unenforceable.
10.03 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. 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 the other party has an adequate remedy at law.
10.04 Identical Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall for all purposes be deemed to be an
original but all of which together shall constitute one and the same Agreement.
Only one such counterpart signed by the party against whom enforceability is
sought needs to be produced to evidence the existence of this Agreement.
10.05 Headings. The headings of the paragraphs of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
10.06 Modification and Waiver. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by both of the
parties hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provisions thereof (whether or
not similar) nor shall such waiver constitute a continuing waiver.
10.07 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if (i)
delivered by hand and receipted for by the party to whom said notice or other
communication shall have been directed, or (ii) mailed by certified or
registered mail with postage prepaid, on the third business day after the date
on which it is so mailed:
If to Indemnitee, to: As shown with Indemnitee's Signature below.
If to the Company to: Ceridian Corporation
0000 Xxxx Xxx Xxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
Attn: Office of the General Counsel
or to such other address as may have been furnished to Indemnitee by the Company
or to the Company by Indemnitee, as the case may be.
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10.08 Governing Law. The parties agree that this Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
state of Delaware without application of the conflict of laws principles
thereof.
10.09 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 indemnification
agreements or understandings of the parties hereto, and any all such prior
agreements or understandings are hereby rescinded by mutual agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
ATTEST: CERIDIAN CORPORATION
By: By:
---------------------------- ---------------------------------------
Xxxxxxx X. Xxxxxx
Its: Senior Vice President, Human
Resources
[NAME]
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Address:
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Last Update: 05/13/03
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