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EXHIBIT 10.15
ARBITRON INC.
EXECUTIVE EMPLOYMENT AGREEMENT
PARTIES
ARBITRON INC. (A DELAWARE CORPORATION)
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
AND
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
("EXECUTIVE")
DATE: APRIL 1, 2001
RECITALS
A. Arbitron wishes to obtain the services of Executive for the duration
of this Agreement, and Executive wishes to provide his services for
such period.
B. Arbitron desires reasonable protection of Arbitron's Confidential
Information (as defined below).
C. Arbitron desires assurance that Executive will not compete with
Arbitron, engage in recruitment of Arbitron's employees or make
disparaging statements about Arbitron after termination of
employment, and Executive is willing to refrain from such
competition, recruitment and disparagement.
D. Executive desires to be assured of a minimum Base Salary (as defined
below) from Arbitron for Executive's services for the term of this
Agreement (unless terminated earlier pursuant to the terms of this
Agreement).
E. It is expressly recognized by the parties that Executive's acceptance
of, and continuance in, Executive's position with Arbitron and
agreement to be bound by the terms of this Agreement represents a
substantial commitment to Arbitron in terms of Executive's personal
and professional career and a foregoing of present and future career
options by Executive, for all of which Arbitron receives substantial
value.
F. 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
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frustrate the purpose of Executive's commitment to Arbitron and
forebearance of career options.
G. The parties recognize that in light of the above-described commitment
and forebearance of career options, it is essential that, for the
benefit of Arbitron 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.
H. 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 "ARBITRON" shall mean ARBITRON INC. and, except as otherwise provided
in Section 8.02 of Article VIII,
(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
Arbitron which is not generally available to or used by others, or
the utility or value of which is not generally known or recognized as
standard practice, whether or not the underlying details are in the
public domain, including:
(a) information or material relating to Arbitron and its
business as conducted or anticipated to be conducted;
business plans; operations; past, current or anticipated
software, products or services; customers or prospective
customers; or research,
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engineering, development, manufacturing, purchasing,
accounting, or marketing activities;
(b) information or material relating to Arbitron'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 Arbitron's software, products or
services;
(c) information on or material relating to Arbitron which when
received is marked as "proprietary," "private," or
"confidential;"
(d) trade secrets of Arbitron;
(e) software of Arbitron in various stages of development,
including computer programs in source code and binary code
form, software designs, specifications, programming aids
(including "library subroutines" and productivity tools),
programming languages, interfaces, visual displays,
technical documentation, user manuals, data files and
databases of Arbitron; and
(f) any similar information of the type described above which
Arbitron obtained from another party and which Arbitron
treats as or designates as being proprietary, private or
confidential, whether or not owned or developed by Arbitron.
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
duties under this Agreement because of illness or incapacity for a
continuous period of six months.
1.06 "PARENT CORPORATION" shall mean ARBITRON INC. and, except as
otherwise provided in Section 8.02 of Article VIII, any successor in
interest by way of consolidation, operation of law, merger or
otherwise. "Parent Corporation" shall not include any Subsidiary.
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.
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ARTICLE II
EMPLOYMENT, DUTIES AND TERM
2.01 EMPLOYMENT. Upon the terms and conditions set forth in this
Agreement, Arbitron hereby employs Executive, and Executive accepts
such employment.
2.02 DUTIES. Executive shall devote hisfull-time and best efforts to
Arbitron and to fulfilling the duties of hisposition as President and
Chief Executive Officer, and member of the Arbitron Board of
Directors.. Executive shall comply with Arbitron'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 and VII, this
Agreement and Executive's employment shall continue until the later
of: (a) April 1, 2004; and (b) two years after a Change of Control
which occurs prior to April 1, 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, Arbitron shall pay Executive a minimum
Base Salary at the annual rate of $435,000.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 Arbitron. Except as otherwise provided in Article
VII, Arbitron 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.
3.03 VACATION. The Executive shall be entitled to six weeks of annual
vacation for each year of active employment with Arbitron.
3.04 BUSINESS EXPENSES. Arbitron shall, consistent with its policies in
effect from time to time, bear all ordinary and necessary business
expenses incurred by Executive in performing his duties as an
employee of Arbitron, provided that Executive accounts promptly for
such expenses to Arbitron in the manner prescribed from time to time
by Arbitron.
3.05 SUPPLEMENTAL RETIREMENT BENEFIT.
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(a) ENTITLEMENT.
(1) TERMINATION OF EMPLOYMENT. Subject to Sections 3.05(a)(2),
3.05(a)(3) and 3.05(a)(4), Executive shall be entitled to a
supplemental retirement benefit pursuant to this Section
3.05 following his termination of employment with Arbitron
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
3.05 if (A) Executive's employment with Arbitron 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 Article VI of this Agreement. If,
after Executive or his surviving spouse, as the case may be,
has received a benefit pursuant to this Section 3.05,
Arbitron determines that Executive is not entitled to the
benefit, Executive or his surviving spouse, as the case may
be, shall promptly repay to Arbitron the benefit payment
previously received pursuant to this Section 3.05 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 Arbitron 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 3.05(d), no benefit
shall be paid pursuant to this Section 3.05 to Executive or
any other person if Executive's employment with Arbitron
terminates because of Executive's death or if Executive dies
after his termination of employment with Arbitron but before
his supplemental retirement benefit pursuant to this Section
3.05 is paid to Executive.
(4) OTHER CONDITIONS. As a condition to receiving any benefit
pursuant to this Section 3.05, Executive or his surviving
spouse, as the case may be, agrees to provide to Arbitron on
a timely basis any such information as Arbitron 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 3.05 or the amount or timing of the
benefit payment or to resolve any other issue or assist
Arbitron in making any determination regarding the benefit.
(b) COMMENCEMENT AND FORM. The benefit pursuant to this Section 3.05
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.
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(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 3.05 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 3.05
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;
over
(C) the Offset Amount.
(3) ACTUARIAL EQUIVALENCE. For the purpose of this Section
3.05(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
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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 3.05(a)(2) and 3.05(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 3.05(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 3.05 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
3.05(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
3.05, the benefit that would have been paid to Executive had
he lived shall, subject to Sections 3.05(a)(2) and
3.05(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 3.05 and the
right to receive a future benefit pursuant to this Section 3.05 may
not be anticipated, alienated, sold, transferred, assigned, pledged,
encumbered or subjected to any charge or legal process.
(f) RABBI TRUST. Arbitron may, but is not required to, provide for
payment of the benefit pursuant to this Section 3.05 through a trust.
The trust must (1) be a grantor trust with respect to which Arbitron
is treated as the grantor, (2) not cause benefits under this Section
3.05 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 Arbitron's insolvency, be
used to satisfy the claims of Arbitron's general creditors. If
Arbitron 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 3.05 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
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this Section 3.05, that right is no greater than the right of any
unsecured general creditor of Arbitron.
(h) DETERMINATIONS. Arbitron shall make all determinations as to
entitlement, amount and timing of any benefit payment pursuant to
this Section 3.05. Arbitron shall have discretionary power and
authority to interpret, construe, apply, enforce and otherwise
administer the terms of this Section 3.05 and any reasonable
determination made by Arbitron in good faith shall be binding and
conclusive on Executive and his surviving spouse. Any determination
by Arbitron denying a claim by Executive or his surviving spouse
shall be stated in writing and shall set forth the specific reason
for the denial. Arbitron 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 3.05(h) before pursuing the claim in any other proceeding.
(i) SPECIAL DEFINITIONS. The definitions set forth in this Section
3.05(i) apply in construing this Section 3.05 unless the context
otherwise indicates. Other terms used in this Section 3.05 have the
meanings ascribed to them in Article I of this Agreement. In
addition, the general provisions of Article VIII of this Agreement
apply to this Section 3.05 unless the context otherwise indicates.
(1) "ARBITRON" means, for purposes of Sections 3.05(a)(4),
3.05(f), 3.05(g) and 3.05(h), Arbitron Inc. 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 Arbitron.
(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
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 Arbitron, 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
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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 3.05(i)(5), the offset plans are the
Retirement Plan, the Arbitron Inc. 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 Arbitron Inc. Retirement Plan as
from time to time amended.
(7) "YEARS OF SERVICE" means (A) each calendar year from and
including 1994 through and including 2000 and (B) each
calendar year after 2000 and before 2010 during any part of
which Executive is an employee of Arbitron (as classified by
Arbitron 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 Arbitron after 2009.
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. Arbitron 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 Arbitron assets;
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(d) intentional violations of law involving moral turpitude;
(e) failure to follow Arbitron's conduct and ethics policies;
and/or
(f) the continued failure by Executive to attempt in good faith
to perform his 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 Arbitron 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 annual Base
Salary through the 75 day notice period;
(b) if the notice of termination is given by Arbitron, (1)
Executive shall be paid at the usual rate of hisannual Base
Salary through the 75 day notice period, however, Arbitron
shall have the option of making termination of the Agreement
and Executive's employment effective immediately upon notice
in which case 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' Base Salary
payable, at the sole discretion of Arbitron, 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 Arbitron 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 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, for a period of two years following
termination pursuant to this Section 4.03(b), the Executive
would be entitled to receive from Arbitron 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
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the day immediately prior to his termination. Executive
shall be required to pay no more for the above mentioned
benefits than he paid as an active employee, or if provided
by Arbitron at no cost to employee on the day immediately
prior to Executive's termination, they shall continue to be
made available to Executive on this ▇▇▇▇▇.▇▇ addition,
Arbitron shall provide or make arrangements for reasonable
outplacement services for Executive based on his level
within Arbitron.
(c) In the event that termination occurs pursuant to Section
4.03(b), in order to receive the payments specified therein,
Arbitron shall require the Executive to execute a release,
similar to that attached as Exhibit A, of all claims against
Arbitron.
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, Arbitron 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
Arbitron 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
Arbitron'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 duties occurs.
(c) In the event of termination by reason of Executive's death
or disability, Arbitron 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.
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4.05 RETIREMENT.
(a) Executive may terminate this Agreement and Executive's
employment as a result of Executive's decision to retire
from Arbitron. Executive shall provide Arbitron 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 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 Arbitron and
Executive is at least 55 years of age with five or more
years of service to Arbitron, then Executive (and anyone
entitled to claim under or through Executive) shall, until
age 65, be entitled to receive from Arbitron 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
retirement. Executive shall be required to pay no more for
the above mentioned benefits than he paid as an active
employee, or if provided by Arbitron 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 Arbitron.
ARTICLE V
CONFIDENTIALITY, DISCLOSURE AND ASSIGNMENT
5.01 CONFIDENTIALITY. Executive will not, during the 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 Arbitron. If Executive leaves
the employ of Arbitron, Executive will not, without Arbitron'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
Arbitron, Executive will engage in no activity or employment which
may conflict with the interest of Arbitron, and will comply with
Arbitron's policies and guidelines pertaining to business conduct and
ethics.
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5.03 DISCLOSURE. Executive will disclose promptly in writing to Arbitron
all inventions, discoveries, software, writings and other works of
authorship which are conceived, made, discovered, or written jointly
or singly on Arbitron 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 Arbitron in the normal course
of business, and all such inventions, improvements, discoveries,
software, writings and other works of authorship shall belong solely
to Arbitron.
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 Arbitron, at the request and the expense of Arbitron,
and Executive will do all acts and sign all instruments of assignment
and other papers Arbitron 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
Arbitron, Arbitron shall pay Executive at a rate mutually agreeable
to Executive and Arbitron, plus reasonable traveling or other
expenses.
5.05 EXECUTIVE'S DECLARATION. Executive has no inventions, data bases,
improvements, discoveries, software, writings or other works of
authorship useful to Arbitron 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.
5.06 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
6.01 GENERAL. The parties hereto recognize and agree that (a) Executive is
a senior executive of Arbitron and is a key executive of Arbitron,
(b) Executive has received, and will in the future receive,
substantial amounts of Confidential Information, (c) Arbitron'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 Arbitron's continued economic well-being and
protection of Arbitron'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.
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6.02 NON-COMPETITION.
(a) Unless the obligation is waived or limited by Arbitron in
accordance with subsection (b) of this Section 6.02,
Executive agrees that for a period of 18 months 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 Arbitron's business
as conducted as of the date of such termination of
employment or with any part of Arbitron'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), "Arbitron's
business" shall include business conducted by Arbitron or
its affiliates and any partnership or joint venture in which
Arbitron or its affiliates is a partner or joint venturer;
provided that, "affiliate" as used in this sentence shall
not include any corporation in which Arbitron has ownership
of less than fifteen percent (15%) of the voting stock.
(b) At its sole option Arbitron 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
Arbitron. 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.
Arbitron's failure to respond or object to such notice shall
not in any way constitute acquiescence or waiver of
Arbitron's rights under this Article VI.
(d) In the event Executive has provided notice to Arbitron
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
non-competition obligation pursuant to this Section 6.02,
Arbitron 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
Arbitron's obligation to make such payments any other
payments made by Arbitron to Executive pursuant to Article
IV of this Agreement. In the event that Arbitron 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 Arbitron with respect to the portion of the Non-Compete
Period which has been waived.
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(e) In the event Executive fails to provide notice to Arbitron
pursuant to subsection (c) of this Section 6.02 and/or in
anyway violates its non-competition obligation pursuant to
Section 6.02, Arbitron 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. For a period of three years following termination of
employment for any reason, Executive will not initiate or actively
participate in any other employer's recruitment or hiring of Arbitron
employees. 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 Arbitron,
its officers, directors, agents, employees, products or services
which Executive knows, or has reason to believe, are false or
misleading.
6.05 SURVIVAL. The obligations of this Article VI shall survive the
expiration or termination of this Agreement and Executive's
employment.
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
Arbitron 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
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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
(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
Arbitron for any reason other than (A)
fraud, (B) misrepresentation, (C) theft or
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embezzlement of Arbitron assets, (D)
intentional violations of law involving
moral turpitude, or (E) failure to follow
Arbitron's conduct and ethics policies; or
(2) Termination of employment with Arbitron 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.
(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 Arbitron 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) Arbitron requiring Executive to be based
anywhere other than within 50miles 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 Arbitron 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
Arbitron that would materially adversely
affect Executive's participation or
materially reduce Executive's benefits
under any of such plans, programs or
arrangements;
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(5) The failure by Arbitron 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 Arbitron that would materially
adversely affect the working conditions in
or under which Executive performs his
employment duties; or
(6) Any material breach of this Agreement by
Arbitron.
(g) "OTHER AGREEMENTS" means any agreement, contract or
understanding heretofore or hereafter entered into between
Executive and Arbitron 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 Arbitron
for Good Reason. Such termination shall be accomplished by, and
effective upon, Executive giving written notice to Arbitron 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, Arbitron 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 Arbitron bonus plans for
the year in which the termination occurs at the higher of
the target award applicable to the year in which the
termination occurs or the average of the actual bonuses paid
for the last three fiscal years, 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 made 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, Arbitron 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)
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the amount to which Executive is, in fact, entitled under
such defined benefit pension plan or plans.
(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 3.05:
(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 3.05(i)(9)); and
(2) the benefit shall not be reduced for commencement
before age 60 pursuant to Section 3.05(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 3.05 due to the adjustments pursuant to
Section 7.03(c) nor any other compensation to be provided to
Executive by Arbitron 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 Arbitron 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
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required and the amount such Gross-Up Payment and the
assumptions to be utilized in arriving at such
determination, shall be made by Arbitron's external auditors
(the "Accounting Firm"), which shall provide detailed
supporting calculations both to Arbitron 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 Arbitron. 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 Arbitron.
Any Gross-Up Payment, as determined pursuant to this Section
7.04, shall be paid by Arbitron to Executive within five
days of the receipt of the Accounting Firm's determination.
Any determination by the Accounting Firm shall be binding
upon Arbitron 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 Arbitron will not
have been made ("Underpayment"), consistent with the
calculations required to be made hereunder. In the event
that Arbitron 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
Arbitron to or for the benefit of Executive.
(d) Executive shall notify Arbitron in writing of any claim by
the Internal Revenue Service or any other taxing authority
that, if successful, would require the payment by Arbitron
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
Arbitron 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 Arbitron
(or such shorter period ending on the date that any payment
of taxes with respect to such claim is due). If Arbitron
notifies Executive in writing prior to the expiration of
such period that it desires to contest such claim, Executive
shall:
(i) give Arbitron any information
reasonably requested by Arbitron
relating to such claim;
(ii) take such action in connection
with contesting such claim as
Arbitron shall reasonably request
in writing from time to time,
including accepting legal
representation with respect
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to such claim by an attorney
reasonably selected by Arbitron;
(iii) cooperate with Arbitron in good
faith in order to effectively
contest such claim; and
(iv) permit Arbitron to participate in
any proceedings relating to such
claim;
provided, however, that Arbitron 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), Arbitron 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 ▇▇▇ 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 Arbitron shall determine; provided further, however, that
if Arbitron directs Executive to pay such claim and ▇▇▇ for
a refund, Arbitron 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, Arbitron'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
Arbitron pursuant to Section 7.04(d), Executive becomes
entitled to receive any refund with respect to such claim,
Executive shall (subject to Arbitron's complying with the
requirements of Section 7.04(d)) promptly pay to Arbitron
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
Arbitron 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 Arbitron does not notify Executive
in writing of its intent to contest such denial of refund
prior to the expiration of thirty days after
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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 Arbitron 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 rights under this Article VII of this
Agreement, or to recover damages for breach thereof, Executive shall
be entitled to recover from Arbitron 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 Arbitron
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 hecontinued to be an active employee of
Arbitron. 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 paid as an active employee,
or if provided by Arbitron 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
GENERAL PROVISIONS
8.01 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
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any such action or proceeding the claim or defense that such party
has an adequate remedy at law.
8.02 SUCCESSORS AND ASSIGNS. 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
Arbitron, and any such successor or assign shall absolutely and
unconditionally assume all of Arbitron's obligations hereunder.
8.03 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) ARBITRON INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: VP & Chief Legal Officer
(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.
8.04 CAPTIONS. The various headings or captions in this Agreement are for
convenience only and shall not affect the meaning or interpretation
of this Agreement.
8.05 GOVERNING LAW. The validity, construction and performance of this
Agreement shall be governed by the laws of the State of New York and
any and every legal proceeding arising out of or in connection with
this Agreement shall be brought exclusively in the appropriate courts
of the State of New York, 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 New York, and there
is a critical need for uniformity in the interpretation and
enforcement of the employment agreements between Arbitron and its
senior executives.
8.06 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
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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.
8.07 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.
8.08 MODIFICATION. Any changes or amendments to this Agreement must be in
writing and signed by both parties.
8.09 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
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 ARBITRON INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chair, Compensation and Human
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Resources Committee
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Address:
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