**Exhibit 10.13.1**

 

AGREEMENT

 

**ThisAgreement** is made as of this 7th day ofAugust, 2006, by and between Traffic.com, Inc. (the “Company”) and ChristopherM. Rothey (the “Executive”).

 

WHEREAS,Executive is currently an at-will employee of the Company, with the title ofChief Operating Officer;

 

WHEREAS, it isthe desire of the Company and in its best interest to provide Executive withcertain assurances concerning his future with the Company, in the event certaincircumstances arise; and

 

WHEREAS, onMay 23rd, 2006 the Compensation Committee of the Company’s Board ofDirectors approved the principal terms embodied in this Agreement and theexecution of an agreement with the Executive on the terms contained herein.

 

NOW,THEREFORE, in consideration of the premises and the mutual covenants hereincontained and other good and valuable consideration, the receipt andsufficiency of which are hereby acknowledged, the Company and Executive herebyagree as follows:

 

# 1.             Change inControl. For purposes of this Agreement, the term “Change inControl” shall mean the consummation of (a) a merger, consolidation or sale ofthe Company, as a result of which the Company’s security holders (measured asof the date immediately prior to such merger, consolidation or sale) own or controlless than fifty percent (50%) of the total combined voting power of theresulting entity of such merger, consolidation or sale; (b) the sale, transferor other disposition of a majority of the Company’s non-liquid assets to anunaffiliated third party.

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# 2.             Cause. Forpurposes of this Agreement, the term “Cause” shall mean: (a) the Executive’swillful refusal or failure to perform a material and substantial part of his orher professional duties, which refusal or failure is not cured within fifteen(15) days following receipt from the Company of written notice thereof;(b) the Executive’s commission of a felony, or of any material act offraud, or criminal conduct involving or relating in any material way to theCompany, (c) the Executive’s willful violation of any materialgovernmental law, rule or regulation or any judicial ruling, order or decreeapplicable to the business of the Company, in each case having a materialadverse effect on the Company, or any act of willful malfeasance or personaldishonesty materially injurious to the Company, or (d) the Executive’sintentional and material breach of any confidentiality, non-competition,non-solicitation or similar agreement with the Company.

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# 3.             Good Reason. Forpurposes of this Agreement, the term “Good Reason” shall mean (a) the removalof Executive’s title; (b) the diminution of Executive’s salary, targeted bonus,benefits and/or perquisites; (c) any material change in Executive’s duties;and/or (d) the change in Executive’s principal place of employment to afacility more than fifty (50) miles from the Executive’s then current principalplace of employment. For purposes of determining whether Good Reason existswith respect to this Section 3, the relevant date for comparing any changeshall be the date immediately prior to the execution of any agreement, letterof intent or other similar document concerning a Change in Control.

 

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# 4.             PriorAgreements. To the extent any provision in this Agreement could beread as inconsistent with any pre-existing agreement in any way, the provisionsof this Agreement shall control over that certain pre-existing agreementincluding the agreement relating to the employment of Executive by the Company,dated March 9, 2000 (the “Employment Agreement”) and/or any existing stockoption agreement between the Company and the Executive**.**Other than for any such inconsistency,such pre-existing agreements shall remain in full force and effect.

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# 5.             TriggeringEvents.

 

### A.            In the event that a Change inControl occurs, regardless of other vesting provisions set forth in theinstruments detailing such awards, all outstanding unvested stock options,restricted stock, SARs or other awards made under any of the Company’sincentive plans (collectively, “Unvested Awards”) held by Executive as of thedate of the Change in Control shall be deemed to become immediately vested uponthe Change in Control.

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### B.            In the event that either (a) theCompany or its successor terminates Executive’s employment, other than forCause, or (b) Executive terminates his employment for Good Reason, andwithin two (2) months following either such termination, (c) a Change inControl occurs, upon the occurrence of such Change in Control, the followingshall take place:

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#### (i)            AllUnvested Awards held by Executive as of the date of termination, shall bedeemed to have become vested, irrespective of any lapse which would otherwisehave been deemed to have occurred upon the date of termination, and shallthereafter, in the case of options, SARs or similar awards, be exercisable uponsuch terms as shall conform to the treatment of other options, etc. inconnection with the Change in Control; and

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#### (ii)           TheCompany or its successor shall pay to Executive a lump sum of cash equal to thegreater of (x) six (6) months of Executive’s base salary calculated as of thedate of termination, or (y) six (6) months of Executive’s base salarycalculated as of any date within the one (1) month prior to Executive’stermination date.

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### C.            In the event that (a) a Changein Control occurs, and, within twelve (12) months following the date of theChange in Control, either (b) the Company or its successor terminates Executive’semployment, other than for Cause, or (c) Executive terminates his employmentfor Good Reason, upon such a termination, the Company or its successor shallpay to Executive a lump sum of cash equal to the greater of (x) six (6) monthsof Executives’ base salary calculated as of the date of termination, or (y) six(6) months of Executives’ base salary calculated as of the date of the Changein Control.

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To the extentthat any payments hereunder are subject to the timing rules of Section409A(a)(2)(B)(i) of the Internal Revenue Code of 1986, as amended (because theyare made to “specified employees” in connection with a “separation from service”as defined therein), then such payments shall be made only within the timingrules of such statute, by delaying, to the extent thus required, such paymentsuntil six months after the date of separation.

 

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# 6.             Miscellaneous.

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## 6.1.          Assignment. This Agreement shall inure tothe benefit of and be binding upon the Company’s successors and assigns.

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## 6.2.          Severability/Reformation. In the event that anyprovision of this Agreement is determined to be legally invalid, the affectedprovision shall be stricken from the Agreement and the remaining terms of theAgreement shall be enforced so as to give effect to the intention of theparties to the maximum extent practicable, and this Agreement shall be construedand reformed to the maximum extent permitted by law.

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## 6.3.          Waiver; Amendment. Any waiver by the Executive ofa breach of any provision of this Agreement shall not operate or be construedas a waiver of any subsequent breach of such provision or any other provisionhereof. In addition, any amendment to or modification of this Agreement or anywaiver of any provision hereof must be in writing and signed by the Executiveand the Company.

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## 6.4.          Notices. All notices, requests andother communications provided for by this Agreement shall be in writing andshall be effective when delivered in person or four business days after beingdeposited in the mail of the United States, postage prepaid, registered orcertified, and addressed (a) in the case of Executive, to the address set forthunderneath his signature to this Agreement or (b) in the case of the Company,to the attention of the Board of Directors, 851 Duportail Road, Wayne, PA 19087and/or to such other address as either party may specify by notice to theother.

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## 6.5.          Entire Agreement. This Agreement, the EmploymentAgreement, the stock options agreements referenced in Section 4 and thatcertain Indemnity Agreement dated May 8, 2006 by and between the Company andthe Executive constitute the entire agreement between the Company and Executivewith respect to the terms and conditions of Executive’s employment with theCompany and supersede and cancel all prior communications, agreements andunderstanding, written or oral, between Executive and the Company with respectto the terms and conditions of Executive’s employment with the Company.

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## 6.6.          Counterparts. This Agreement may be executedin counterparts, each of which shall be original and all of which together,shall constitute one and the same instrument.

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## 6.7.          Governing Law. This Agreement, the employmentrelationship contemplated herein and any claim arising under this Agreement orfrom such relationship, whether or not arising under this Agreement, shall begoverned by and construed in accordance with the internal laws of theCommonwealth of Pennsylvania without giving effect to any choice or conflict oflaws provisions or rule thereof, and this Agreement shall be deemed to beperformable in the Commonwealth of Pennsylvania.

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## 6.8.          Resolutions of Disputes. Any claim arising out of orrelating to any relationship between Executive and the Company or anytermination thereof, whether or not arising out of or relating to thisAgreement, shall be resolved by binding confidential arbitration, to be held inChester or Philadelphia County, Pennsylvania in accordance with the CommercialArbitration Rules of the American Arbitration Association then in effect. Thearbitration award 

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## shall be final and binding on the parties andenforceable by either party in a court of competent jurisdiction in theCommonwealth of Pennsylvania. Exclusive jurisdiction over entry of judgmentupon arbitration award rendered shall be any court appropriate subject matterjurisdiction in the Commonwealth of Pennsylvania and the parties by thisAgreement expressly subject themselves to the personal jurisdiction of saidcourt for the entry of any such judgment, for the resolution of any dispute,action, or suit arising in connection with the entry of such judgment or toenforce the award as stated in the previous sentence. The prevailing party inany such arbitration will be entitled to receive from the other party itsattorneys’ fees and other costs and expenses incurred by such party in connectionwith the arbitration in addition to any award or damage recovery.

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## IN WITNESS WHEREOF, this Agreement has beenexecuted by the Company, by its duly authorized representative, and byExecutive, as of the date first above written.

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|   | TRAFFIC.COM, INC.                |
|--------|----------------------------------|
|   |                             |
|   |                             |
|   | By:                              | /s/ Andrew P. Maunder |   |
|   | Its                              | Chief Financial Officer |   |
|   |                             |
|   |                             |
|   | EXECUTIVE: CHRISTOPHER M. ROTHEY |
|   |                             |
|   |                             |
|   | /s/ Christopher M. Rothey        |   |
|   | Address:                         |   |   |
|   |                             |   |   |
|        |                                  |  |  |  |  |  |

 

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