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EXHIBIT 10.11
(March 2001 Form)
ARBITRON INC. 1999 STOCK INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT is entered into and effective as of APRIL __, 2001 (the
"Date of Grant"), by and between Ceridian Corporation (the "Company") and [NAME]
(the "Optionee").
A. The Company has adopted the Arbitron Inc. 1999 Stock Incentive
Plan (as may be amended or supplemented, the "Plan") authorizing the Board of
Directors of the Company, or a committee as provided for in the Plan (the Board
or such a committee to be referred to as the "Committee"), to grant stock
options to employees of the Company and its Subsidiaries (as defined in the
Plan).
B. The Company desires to give the Optionee an inducement to acquire a
proprietary interest in the Company and an added incentive to advance the
interests of the Company by granting to the Optionee an option to purchase
shares of common stock of the Company pursuant to the Plan.
Accordingly, the parties agree as follows:
1. Grant of Option.
The Company hereby grants to the Optionee the right, privilege and
option (the "Option") to purchase [SHARES] shares (the "Option Shares") of the
Company's common stock, $0.50 par value (the "Common Stock"), according to the
terms and subject to the conditions hereinafter set forth and as set forth in
the Plan. The Option granted hereunder shall not be an incentive stock option
within the meaning of Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code").
2. Option Exercise Price.
The per share price to be paid by Optionee in the event of an exercise
of the Option will be $______.
3. Duration of Option and Time of Exercise.
3.1 Initial Period of Exercisability. Except as provided in Sections
3.2 and 3.3 hereof, the Option shall become exercisable with respect to
one-third of the Option Shares on each of the first, second and third
anniversaries of the Date of Grant. The foregoing rights to exercise the Option
will be cumulative with respect to the Option Shares becoming exercisable on
each such date, but in no event will the Option be exercisable after, and the
Option will become void and expire as to all unexercised Option Shares at, 5:00
p.m. (New York City time) on the fifth anniversary of the Date of Grant (the
"Time of Option Termination").
3.2 Termination of Employment.
(a) Termination Due to Death, Disability or Retirement. In the
event the Optionee's employment with the Company and all Subsidiaries is
terminated by reason of death, Disability (as defined in the Plan) or
Retirement (as defined in the Plan), the Option will become immediately
exercisable in full and remain exercisable until the Time of Option
Termination.
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(b) Termination for Reasons Other Than Death, Disability or
Retirement. In the event that the Optionee's employment with the
Company and all Subsidiaries is terminated for any reason other than
death, Disability or Retirement, or the Optionee is in the employ of a
Subsidiary and the Subsidiary ceases to be a Subsidiary of the Company
(unless the Optionee continues in the employ of the Company or another
Subsidiary), all rights of the Optionee under the Plan and this
Agreement will immediately terminate without notice of any kind, and
the Option will no longer be exercisable; provided, however, that, if
such termination is due to any reason other than termination by the
Company or any Subsidiary for Cause (as defined in Section 9 of this
Agreement), the Option will remain exercisable to the extent
exercisable as of such termination for a period of three months after
such termination (but in no event after the Time of Option
Termination).
3.3 Change in Control.
(a) Impact of Change in Control. If a Change in Control
(as defined in Section 9 of this Agreement) of the Company occurs, and
the Option has been outstanding for at least two months, the Option will
become immediately exercisable in full and will remain exercisable until
the Time of Option Termination, regardless of whether the Optionee
remains in the employ of the Company or any Subsidiary. In addition, if
a Change in Control of the Company occurs, the Committee, in its sole
discretion and without the consent of the Optionee, may determine that
the Optionee will receive, with respect to some or all of the Option
Shares, as of the effective date of any such Change in Control of the
Company, cash in an amount equal to the excess of the Fair Market Value
(as defined in the Plan) of such Option Shares immediately prior to the
effective date of such Change in Control of the Company over the option
exercise price per share of the Option.
(b) Authority to Modify Change of Control Provisions. Prior to
a Change of Control, the Optionee will have no rights under this Section
3.3, and the Committee will have the authority, in its sole discretion,
to rescind, modify or amend this Section 3.3 without the consent of the
Optionee.
4. Manner of Option Exercise.
4.1 Notice. This Option may be exercised by the Optionee in whole or
in part from time to time, subject to the conditions contained in the Plan and
in this Agreement, by delivery, in person, by facsimile or electronic
transmission or through the mail, to the Company at its principal executive
office in New York, New York (Attention: Corporate Secretary), of a written
notice of exercise. Such notice must be in a form satisfactory to the Committee,
must identify the Option, must specify the number of Option Shares with respect
to which the Option is being exercised, and must be signed by the person or
persons so exercising the Option. Such notice must be accompanied by payment in
full of the total exercise price for the Option Shares to be purchased. In the
event that the Option is being exercised, as provided by the Plan and Section
3.2 of this Agreement, by any person or persons other than the Optionee, the
notice must be accompanied by appropriate proof of right of such person or
persons to exercise the Option. If the Optionee retains the Option Shares
purchased, as soon as practicable after the effective exercise of the Option,
the Optionee will be recorded on the stock transfer books of the Company as the
owner of the Option Shares purchased, and the Company will deliver to the
Optionee one or more duly issued stock certificates evidencing such ownership.
4.2 Payment. At the time of exercise of the Option, the Optionee
must pay the total exercise price of the Option Shares to be purchased entirely
in cash (including a check, bank draft or money order,
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payable to the order of the Company); provided, however, that the Committee, in
its sole discretion and upon terms and conditions established by the Committee,
may allow such payment to be made, in whole or in part, by tender of a full
recourse promissory note or a Broker Exercise Notice (as such terms are defined
in the Plan), or by a combination of such methods.
5. Rights and Restrictions of Optionee; Transferability.
5.1 Employment. Nothing in this Agreement will interfere with or
limit in any way the right of the Company or any Subsidiary to terminate the
employment of the Optionee at any time, nor confer upon the Optionee any right
to continue in the employ of the Company or any Subsidiary at any particular
position or rate of pay or for any particular period of time.
5.2 Rights as a Stockholder. The Optionee will have no rights as a
stockholder unless and until all conditions to the effective exercise of the
Option (including, without limitation, the conditions set forth in Sections 4
and 6 of this Agreement) have been satisfied and the Optionee has become the
holder of record of such shares. No adjustment will be made for dividends or
distributions with respect to the Option Shares as to which there is a record
date preceding the date the Optionee becomes the holder of record of such Option
Shares, except as may otherwise be provided in the Plan or determined by the
Committee in its sole discretion.
5.3 Restrictions on Transfer. Except pursuant to testamentary will
or the laws of descent and distribution or as otherwise expressly permitted by
the Plan, no right or interest of the Optionee in the Option prior to exercise
may be assigned or transferred, or subjected to any lien, during the lifetime of
the Optionee, either voluntarily or involuntarily, directly or indirectly, by
operation of law or otherwise. The Optionee will, however, subject to applicable
laws be entitled to designate a beneficiary to receive the Option upon such
Optionee's death in the manner provided by the Plan, and, in the event of the
Optionee's death, exercise of the Option (to the extent permitted pursuant to
Section 3.2(a) of this Agreement) may be made by the Optionee's designated
beneficiary.
5.4 Restrictions Regarding Employment.
(a) The Optionee agrees that he or she will not take any
Adverse Actions (as defined below) against the Company or any Subsidiary
at any time during the period that the Option is or may yet become
exercisable in whole or in part or at any time before one year following
the Optionee's termination of employment with the Company or any
Subsidiary, whichever is later (the "Restricted Period"). The Optionee
acknowledges that damages which may arise from a breach of this Section
5.4 may be impossible to ascertain or prove with certainty.
Notwithstanding anything in this Agreement or the Plan to the contrary,
in the event that the Company determines in its sole discretion that the
Optionee has taken Adverse Actions against the Company or any Subsidiary
at any time during the Restricted Period, in addition to other legal
remedies which may be available, (i) the Company will be entitled to an
immediate injunction from a court of competent jurisdiction to end such
Adverse Action, without further proof of damage, (ii) the Committee will
have the authority in its sole discretion to terminate immediately all
rights of the Optionee under the Plan and this Agreement without notice
of any kind, and (iii) the Committee will have the authority in its sole
discretion to rescind the exercise of all or any portion of the Option
to the extent that such exercise occurred within six months prior to the
date the Optionee first commences any such Adverse Actions and require
the Optionee to disgorge any profits (however defined by the Committee)
realized by the Optionee relating to such exercised portion of the
Option or any Option Shares issued or issuable upon such exercise. Such
disgorged profits paid to the Company must be
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made in cash (including check, bank draft or money order) or, with the
Committee's consent, shares of Common Stock with a Fair Market Value on
the date of payment equal to the amount of such payment. The Company
will be entitled to withhold and deduct from future wages of the
Optionee (or from other amounts that may be due and owing to the
Optionee from the Company or a Subsidiary) or make other arrangements
for the collection of all amounts necessary to satisfy such payment
obligation.
(b) For purposes of this Agreement, an "Adverse Action" will
mean any of the following: (i) engaging in any commercial activity in
competition with any part of the business of the Company or any
Subsidiary as conducted during the Restricted Period for which the
Optionee has or had access to trade secrets and/or confidential
information; (ii) diverting or attempting to divert from the Company or
any Subsidiary any business of any kind, including, without limitation,
interference with any business relationships with suppliers, customers,
licensees, licensors, clients or contractors; (iii) participate in the
ownership, operation or control of, be employed by, or connected in any
manner with any person or entity which solicits, offers or provides any
services or products similar to those which the Company or any
Subsidiary offers to its customers or prospective customers, (iv)
making, or causing or attempting to cause any other person or entity to
make, any statement, either written or oral, or convey any information
about the Company or any Subsidiary that is disparaging or that in any
way reflects negatively on the Company or any Subsidiary; or (v)
engaging in any other activity that is hostile, contrary or harmful to
the interests of the Company or any Subsidiary, including, without
limitation, influencing or advising any person who is employed by or in
the service of the Company or any Subsidiary to leave such employment or
service to compete with the Company or any Subsidiary or to enter into
the employment or service of any actual or prospective competitor of the
Company or any Subsidiary, influencing or advising any competitor of the
Company or any Subsidiary to employ to otherwise engage the services of
any person who is employed by or in the service of the Company or any
Subsidiary, or improperly disclosing or otherwise misusing any trade
secrets or confidential information regarding the Company or any
Subsidiary.
(c) Should any provision of this Section 5.4 of the Agreement
be held invalid or illegal, such illegality shall not invalidate the
whole of this Section 5.4 of the Agreement, but, rather, the Agreement
shall be construed as if it did not contain the illegal part or narrowed
to permit its enforcement, and the rights and obligations of the parties
shall be construed and enforced accordingly. In furtherance of and not
in limitation of the foregoing, the Optionee expressly agrees that
should the duration of or geographical extent of, or business activities
covered by, any provision of this Agreement be in excess of that which
is valid or enforceable under applicable law, then such provision shall
be construed to cover only that duration, extent or activities that may
validly or enforceably be covered. The Optionee acknowledges the
uncertainty of the law in this respect and expressly stipulates that
this Agreement shall be construed in a manner that renders its
provisions valid and enforceable to the maximum extent (not exceeding
its express terms) possible under applicable law. This Section 5.4 of
the Agreement does not replace and is in addition to any other
agreements the Optionee may have with the Company or any of its
Subsidiaries on the matters addressed herein.
6. Securities Law and Other Restrictions.
Notwithstanding any other provision of the Plan or this Agreement, the
Company will not be required to issue, and the Optionee may not sell, assign,
transfer or otherwise dispose of, any Option
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Shares, unless (a) there is in effect with respect to the Option Shares a
registration statement under the Securities Act of 1933, as amended, and any
applicable state or foreign securities laws or an exemption from such
registration, and (b) there has been obtained any other consent, approval or
permit from any other regulatory body which the Committee, in its sole
discretion, deems necessary or advisable. The Company may condition such
issuance, sale or transfer upon the receipt of any representations or agreements
from the parties involved, and the placement of any legends on certificates
representing Option Shares, as may be deemed necessary or advisable by the
Company in order to comply with such securities law or other restrictions.
7. Withholding Taxes.
The Company is entitled to (a) withhold and deduct from future wages of
the Optionee (or from other amounts that may be due and owing to the Optionee
from the Company), or make other arrangements for the collection of, all legally
required amounts necessary to satisfy any federal or provincial withholding tax
requirements attributable to the Option, or (b) require the Optionee promptly to
remit the amount of such withholding to the Company before acting on the
Optionee's notice of exercise of the Option. In the event that the Company is
unable to withhold such amounts, for whatever reason, the Optionee agrees to pay
to the Company an amount equal to the amount the Company would otherwise be
required to withhold under federal, state or local law.
8. Adjustments.
In the event of any reorganization, merger, consolidation,
recapitalization, liquidation, reclassification, stock dividend, stock split,
combination of shares, rights offering, divestiture or extraordinary dividend
(including a spin-off), or any other change in the corporate structure or shares
of the Company, the Committee (or, if the Company is not the surviving
corporation in any such transaction, the board of directors of the surviving
corporation), in order to prevent dilution or enlargement of the rights of the
Optionee, will make appropriate adjustment (which determination will be
conclusive) as to the number and kind of securities or other property (including
cash) subject to, and the exercise price of, the Option.
9. Certain Definitions. For purposes of this Agreement, the following
additional definitions will apply:
(a) "Benefit Plan" means any formal or informal plan, program
or other arrangement heretofore or hereafter adopted by the Company or
any Subsidiary for the direct or indirect provision of compensation to
the Optionee (including groups or classes of participants or
beneficiaries of which the Optionee 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 the Optionee.
(b) "Cause" will have the meaning set forth in any employment
or other agreement or policy applicable to the Optionee or, if no such
agreement or policy exists, will mean (i) dishonesty, fraud,
misrepresentation, theft, embezzlement or injury or attempted injury, in
each case related to the Company or any Subsidiary, (ii) any unlawful or
criminal activity of a serious nature, (iii) any breach of duty,
habitual neglect of duty or unreasonable job performance, or (iv) any
material breach of any employment, service, confidentiality or
noncompete agreement entered into with the Company or any Subsidiary.
(c) "Change of Control" will have the meaning set forth in the
Plan plus such other event or transaction as the Board shall determine
constitutes a Change of Control, or such other meaning as may be adopted
by the Committee from time to time in its sole discretion.
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10. Subject to Plan.
The Option and the Option Shares granted and issued pursuant to this
Agreement have been granted and issued under, and are subject to the terms of,
the Plan. The terms of the Plan are incorporated by reference in this Agreement
in their entirety, and the Optionee, by execution of this Agreement,
acknowledges having received a copy of the Plan. The provisions of this
Agreement will be interpreted as to be consistent with the Plan, and any
ambiguities in this Agreement will be interpreted by reference to the Plan. In
the event that any provision of this Agreement is inconsistent with the terms of
the Plan, the terms of the Plan will prevail.
11. Miscellaneous.
11.1 Binding Effect. This Agreement will be binding upon the heirs,
executors, administrators and successors of the parties to this Agreement.
11.2 Governing Law. This Agreement and all rights and obligations
under this Agreement will be construed in accordance with the Plan and governed
by the laws of the State of Delaware, without regard to conflicts or choice of
law rule or principle that might otherwise refer construction or interpretation
of this Agreement to the substantive laws of another jurisdiction.
11.3 Entire Agreement. This Agreement and the Plan set forth the
entire agreement and understanding of the parties to this Agreement with respect
to the grant and exercise of the Option and the administration of the Plan and
supersede all prior agreements, arrangements, plans and understandings relating
to the grant and exercise of the Option and the administration of the Plan.
11.4 Amendment and Waiver. Other than as provided in the Plan, this
Agreement may be amended, waived, modified or canceled only by a written
instrument executed by the parties to this Agreement or, in the case of a
waiver, by the party waiving compliance.
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The parties to this Agreement have executed this Agreement effective
the day and year first above written.
ARBITRON INC.
By
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Name
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Title
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By execution of this Agreement, OPTIONEE
the Optionee acknowledges having
received a copy of the Plan.
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Print Name:
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Address:
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Social Security Number:
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Arbitron Stock Option Identifier:
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