Exhibit 10.13.1


 


AGREEMENT


 


This
Agreement is made as of this 7th day of
August, 2006, by and between Traffic.com, Inc. (the “Company”) and Christopher
M. Rothey (the “Executive”).


 


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


 


WHEREAS, it is
the desire of the Company and in its best interest to provide Executive with
certain assurances concerning his future with the Company, in the event certain
circumstances arise; and


 


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


 


NOW,
THEREFORE, in consideration of the premises and the mutual covenants herein
contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and Executive hereby
agree as follows:


 


1.             Change in
Control. For purposes of this Agreement, the term “Change in
Control” shall mean the consummation of (a) a merger, consolidation or sale of
the Company, as a result of which the Company’s security holders (measured as
of the date immediately prior to such merger, consolidation or sale) own or control
less than fifty percent (50%) of the total combined voting power of the
resulting entity of such merger, consolidation or sale; (b) the sale, transfer
or other disposition of a majority of the Company’s non-liquid assets to an
unaffiliated third party.


 


2.             Cause. For
purposes of this Agreement, the term “Cause” shall mean: (a) the Executive’s
willful refusal or failure to perform a material and substantial part of his or
her 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 of
fraud, or criminal conduct involving or relating in any material way to the
Company, (c) the Executive’s willful violation of any material
governmental law, rule or regulation or any judicial ruling, order or decree
applicable to the business of the Company, in each case having a material
adverse effect on the Company, or any act of willful malfeasance or personal
dishonesty materially injurious to the Company, or (d) the Executive’s
intentional and material breach of any confidentiality, non-competition,
non-solicitation or similar agreement with the Company.


 


3.             Good Reason. For
purposes of this Agreement, the term “Good Reason” shall mean (a) the removal
of 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 a
facility more than fifty (50) miles from the Executive’s then current principal
place of employment. For purposes of determining whether Good Reason exists
with respect to this Section 3, the relevant date for comparing any change
shall be the date immediately prior to the execution of any agreement, letter
of intent or other similar document concerning a Change in Control.


 

















 


4.             Prior
Agreements. To the extent any provision in this Agreement could be
read as inconsistent with any pre-existing agreement in any way, the provisions
of this Agreement shall control over that certain pre-existing agreement
including the agreement relating to the employment of Executive by the Company,
dated March 9, 2000 (the “Employment Agreement”) and/or any existing stock
option agreement between the Company and the Executive. Other than for any such inconsistency,
such pre-existing agreements shall remain in full force and effect.


 


5.             Triggering
Events.


 


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


 


B.            In the event that either (a) the
Company or its successor terminates Executive’s employment, other than for
Cause, or (b) Executive terminates his employment for Good Reason, and
within two (2) months following either such termination, (c) a Change in
Control occurs, upon the occurrence of such Change in Control, the following
shall take place:


 


(i)            All
Unvested Awards held by Executive as of the date of termination, shall be
deemed to have become vested, irrespective of any lapse which would otherwise
have been deemed to have occurred upon the date of termination, and shall
thereafter, in the case of options, SARs or similar awards, be exercisable upon
such terms as shall conform to the treatment of other options, etc. in
connection with the Change in Control; and


 


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


 


C.            In the event that (a) a Change
in Control occurs, and, within twelve (12) months following the date of the
Change in Control, either (b) the Company or its successor terminates Executive’s
employment, other than for Cause, or (c) Executive terminates his employment
for Good Reason, upon such a termination, the Company or its successor shall
pay to Executive a lump sum of cash equal to the greater of (x) six (6) months
of 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 Change
in Control.


 


To the extent
that any payments hereunder are subject to the timing rules of Section
409A(a)(2)(B)(i) of the Internal Revenue Code of 1986, as amended (because they
are made to “specified employees” in connection with a “separation from service”
as defined therein), then such payments shall be made only within the timing
rules of such statute, by delaying, to the extent thus required, such payments
until six months after the date of separation.


 


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6.             Miscellaneous.


 


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


 


6.2.          Severability/Reformation. In the event that any
provision of this Agreement is determined to be legally invalid, the affected
provision shall be stricken from the Agreement and the remaining terms of the
Agreement shall be enforced so as to give effect to the intention of the
parties to the maximum extent practicable, and this Agreement shall be construed
and reformed to the maximum extent permitted by law.


 


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


 


6.4.          Notices. All notices, requests and
other communications provided for by this Agreement shall be in writing and
shall be effective when delivered in person or four business days after being
deposited in the mail of the United States, postage prepaid, registered or
certified, and addressed (a) in the case of Executive, to the address set forth
underneath 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 19087
and/or to such other address as either party may specify by notice to the
other.


 


6.5.          Entire Agreement. This Agreement, the Employment
Agreement, the stock options agreements referenced in Section 4 and that
certain Indemnity Agreement dated May 8, 2006 by and between the Company and
the Executive constitute the entire agreement between the Company and Executive
with respect to the terms and conditions of Executive’s employment with the
Company and supersede and cancel all prior communications, agreements and
understanding, written or oral, between Executive and the Company with respect
to the terms and conditions of Executive’s employment with the Company.


 


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


 


6.7.          Governing Law. This Agreement, the employment
relationship contemplated herein and any claim arising under this Agreement or
from such relationship, whether or not arising under this Agreement, shall be
governed by and construed in accordance with the internal laws of the
Commonwealth of Pennsylvania without giving effect to any choice or conflict of
laws provisions or rule thereof, and this Agreement shall be deemed to be
performable in the Commonwealth of Pennsylvania.


 


6.8.          Resolutions of Disputes. Any claim arising out of or
relating to any relationship between Executive and the Company or any
termination thereof, whether or not arising out of or relating to this
Agreement, shall be resolved by binding confidential arbitration, to be held in
Chester or Philadelphia County, Pennsylvania in accordance with the Commercial
Arbitration Rules of the American Arbitration Association then in effect. The
arbitration award 


 


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shall be final and binding on the parties and
enforceable by either party in a court of competent jurisdiction in the
Commonwealth of Pennsylvania. Exclusive jurisdiction over entry of judgment
upon arbitration award rendered shall be any court appropriate subject matter
jurisdiction in the Commonwealth of Pennsylvania and the parties by this
Agreement expressly subject themselves to the personal jurisdiction of said
court 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 to
enforce the award as stated in the previous sentence. The prevailing party in
any such arbitration will be entitled to receive from the other party its
attorneys’ fees and other costs and expenses incurred by such party in connection
with the arbitration in addition to any award or damage recovery.


 


IN WITNESS WHEREOF, this Agreement has been
executed by the Company, by its duly authorized representative, and by
Executive, as of the date first above written.


 


 


	
   

  	
  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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