Asset Purchase Agreement - ORC Consumer Inc., Opinion Research Corp., C/J Research Inc., Terence W. Cotter and Gary M. Cotter
ASSET PURCHASE AGREEMENT
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ASSET PURCHASE AGREEMENT, made this 31/st/ day of August 2000, by and among
ORC Consumer, Inc., a Delaware corporation ("Buyer"), Opinion Research
Corporation, a Delaware corporation ("ORC"), C/J Research, Inc., an Illinois
corporation ("Seller"), Terence W. Cotter ("Terence") and Gary M. Cotter
("Gary") (Terence and Gary are hereinafter collectively referred to as the
"Stockholders").
BACKGROUND
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Seller is engaged in the business of providing primary market research and
marketing services (such business as heretofore conducted by Seller and as
hereinafter conducted by Buyer is referred to as the "Business"). Stockholders
own all of the issued and outstanding capital stock of Seller and are active in
the control and operation of the Seller. ORC owns, directly or indirectly, all
of the issued and outstanding capital stock of Buyer. Buyer desires to become
engaged in the Business, to acquire certain of the assets of Seller, to assume
certain of the liabilities of Seller and to employ Stockholders for their
knowledge and expertise in the Business, and Seller desires to sell and assign
such assets and liabilities to Buyer and Stockholders are willing to provide
such expertise to Buyer, all on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the parties, intending to be legally bound, agree as follows:
1. Sale and Purchase of Assets. On the Closing Date (as hereinafter defined),
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Seller agrees to sell, transfer, assign and deliver to Buyer, and Buyer agrees
to purchase, assume and accept from Seller, free and clear of all liens and
encumbrances, all right, title and interest in and to all of the assets of
Seller of every nature and description, both tangible and intangible, except as
explicitly excluded in Paragraph 2 of this Agreement (the "Assets"), including
without limitation the following:
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(a) The leasehold interests described on Schedule 6(f) (the "Leases") and
all leasehold improvements relating thereto.
(b) All operating assets and properties of every nature, kind and
description owned by Seller including, without limitation:
(i) all computer, telecommunications and other, equipment, furniture,
fixtures, supplies and other tangible personal property;
(ii) all accounts and notes receivable or other rights to payment of
any nature relating to the Business;
(iii) all customer and supplier lists, price lists, files, books and
records, invoices, ledgers, sales orders and acknowledgments, customer files and
account histories (excluding those subject to confidentially agreements not
assigned to Buyer), sales literature and promotional materials, and any other
data relating to the operation of the Business;
(iv) all operating data including, without limitation, software
manuals and other technical papers; and
(v) all deposits and prepaid assets and expenses relating to the
Assets.
(c) All intangible assets and properties of every nature, kind and
description, including, without limitation:
(i) the exclusive right to the name "C/J Research, Inc. and any
variations thereof;
(ii) all trademarks, service marks, logos, trade or brand names,
fictitious names, copyrights and any applications therefor;
(iii) all patents, patent applications, trade secrets and processes,
know-how, software inventions, discoveries, ideas, concepts, designs,
improvements, technology, and all other technical data, and all written, printed
and other tangible materials embodying or containing any of the foregoing;
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(iv) all rights to operate the Business as a going concern, to hire
any past or present employees, and to do business with all present customers and
suppliers;
(v) all right and interest to and in any goodwill;
(vi) all telephone numbers and telephone advertising listings and
related agreements;
(vii) all licenses, permits and approvals that are transferable or
assignable; and
(viii) all of Seller's rights, powers, privileges and claims under all
contracts, leases, insurance policies and other agreements of Seller set forth
on Schedule 1(c)(viii) (the "Assumed Contracts") excluding those listed on
Schedule 2.
2. Excluded Assets. Notwithstanding anything to the contrary contained in
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this Agreement, the parties hereto agree that the term "Assets" does not include
those assets, contracts and rights of Seller identified on Schedule 2 attached
hereto (collectively, "Excluded Assets"); and Buyer is not purchasing, nor does
it have any interest in or right to purchase the Excluded Assets.
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3. Assumption of Certain Liabilities.
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(a) With the exception of those liabilities expressly assumed by Buyer in
accordance with the provisions of subparagraph 3(b) (the "Liabilities"), Buyer
does not assume and shall in no event be liable for any debts, liabilities or
obligations of Seller, whether fixed or contingent, known or unknown, liquidated
or unliquidated, secured or unsecured, or otherwise. Without limiting the
foregoing, Buyer does not assume (i) any liability for Taxes (as hereinafter
defined) payable for any periods prior to and including the Closing Date, (ii)
any long term or bank debt, (iii) except and to the extent reflected on the
Closing Balance Sheet (as hereinafter defined), any liability or obligation to
any employee, director, officer or Stockholders, including without limitation,
any liability in connection with any Employee Benefit Plan (as hereinafter
defined), (iv) any liability or obligation for brokerage commissions, finders'
fees or professional services of any kind incurred in connection with the
negotiation and execution of this Agreement and the consummation of the
transactions contemplated hereby, and (v) any liability or obligation arising as
a result of, or which existence constitutes, a breach of any of Seller's or
Stockholders' representations or warranties contained in this Agreement.
(b) Buyer hereby assumes only the following liabilities and obligations of
Seller:
(i) liabilities and obligations arising from and after the Closing
Date under the Assumed Contracts,
(ii) all liabilities and obligations specifically reflected on the
Closing Balance Sheet, and
(iii) all other liabilities listed on Schedule 3(b)(iii).
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4. Purchase Price; Adjustment; Allocation.
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(a) Purchase Price. In consideration of the Assets and the obligations
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under the Seller Agreement Not To Compete attached hereto as Exhibit "A", Buyer
hereby assumes the Liabilities and agrees to pay Seller the sum of $9,225,000,
subject to adjustment as described below, payable on the Closing Date as
follows:
(i) the sum of $8,325,000 in immediately available funds payable by
wire transfer to an account(s) designated by Seller on the Closing Date; and
(ii) the sum of $900,000 shall be deposited by Buyer with a federally insured
financial institution selected by Buyer and Seller (the "Escrow Agent") pursuant
to, and to be held, applied, invested, reinvested and disbursed in accordance
with, an escrow agreement substantially in the form of Exhibit "B" (the "Escrow
Agreement").
(b) Post-Closing Adjustment. It is the intention and agreement of the
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parties hereto that the Closing Book Value (as hereinafter defined) as of the
Closing Date be not less than $637,000. Seller shall prepare and deliver to
Buyer within 45 days after the Closing Date a Closing Balance Sheet prepared in
accordance with generally accepted accounting principles, consistently applied,
including, without limitation, Seller's historic method of recognizing revenue
on the "percentage of completion method", from which the computation of the
Closing Book Value shall be derived. Seller's determination of the Closing Book
Value shall be subject to verification by Buyer or its independent auditors
within (i) 90 days of the date of delivery of such information to Buyer, or (ii)
120 days from the Closing Date, whichever is later (the "Verification Period"),
during which period Buyer and its independent auditors shall have access to the
work papers and such other documents and information relating to the preparation
of the Closing Balance Sheet as it shall reasonably request. Within the
Verification Period, Buyer shall notify Seller of any dispute with respect to
the determination of the Closing Book Value, otherwise the Closing Book Value
shall be final and binding on the parties. Any such dispute
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which cannot be resolved after good faith negotiations within 30 days from the
date Seller is so notified shall be referred to PricewaterhouseCoopers LLP,
whose determination on such matters shall be final and binding on the parties
and whose fees and expenses shall be shared equally by Buyer and Seller. The
parties shall use their best efforts to cause such accounting firm to make its
determination within 30 days after the matters in dispute have been referred to
such accounting firm. If the Closing Book Value is determined to be less than
$637,000, any such deficiency shall be paid by Seller and/or Stockholders,
jointly and severally, to Buyer. If the Closing Book Value is determined to be
greater than $637,000, any excess (less the face value of any accounts
receivable not collected within 120 days after the Closing Date) shall be paid
by Buyer and/or ORC, jointly and severally, to Seller. Any payment to be made as
a result of this Paragraph 4(b) shall be made within 5 days after the Closing
Book Value is finally determined, otherwise interest shall accrue from the date
of such final determination on such unpaid amount at an annual rate of 3% in
excess of the "prime rate" then in effect as quoted in The Wall Street Journal.
The term "Closing Book Value" shall mean the book value of the Assets less the
book value of the Liabilities as of the close of business on the Closing Date,
computed in accordance with generally accepted accounting principles,
consistently applied.
(c) Allocation of Purchase Price. The parties agree that the purchase
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price shall be allocated as set forth on Exhibit "C". Such allocation shall be
binding on the parties and all income tax or other information returns,
including IRS Form 8594 ("Asset Acquisition Statement under Section 1060"),
shall be filed in a manner consistent with such allocation.
5. Other Agreements.
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(a) Concurrently with the execution of this Agreement, Buyer and Terence
shall enter into an employment agreement substantially in the form attached
hereto as Exhibit "D" (the "Terence Employment Agreement").
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(b) Concurrently with the execution of this Agreement, Buyer and Gary
shall enter into an employment agreement substantially in the form attached
hereto as Exhibit "E" (the "Gary Employment Agreement").
(c) Concurrently with the execution of this Agreement, Buyer and each of
the key executives identified on Schedule 5(c) hereto (the "Key Executives")
shall enter into an employment agreement substantially in the form attached
hereto as Exhibit "F" (the "Key Executive Employment Agreements").
(d) Concurrently with the execution of this Agreement, ORC, Buyer and
Terence shall enter into an agreement not to compete substantially in the form
attached hereto as Exhibit "G" (the "Terence Non-Compete Agreement").
(e) Concurrently with the execution of this Agreement, ORC, Buyer and Gary
shall enter into an agreement not to compete substantially in the form attached
hereto as Exhibit "H" (the "Gary Non-Compete Agreement").
(f) Concurrently with the execution of this Agreement, ORC, Buyer and each
of the Key Executives shall enter into an agreement not to compete substantially
in the form attached hereto as Exhibit "I" (the "Key Executive Non-Compete
Agreements").
6. Representations, Warranties and Agreements of Seller and Stockholders with
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Respect to Seller. As material inducement to Buyer to enter into this Agreement
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and to close hereunder, Seller and Stockholders hereby jointly and severally
make the following representations and warranties to Buyer:
(a) Corporate Status; Authority. Seller is a corporation duly organized,
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validly existing and in good standing under the laws of the State of Illinois
and is qualified as a foreign corporation in the State of Nevada, it being the
only jurisdiction in which such qualification is necessary based on its present
operations. Seller has the power and authority to own its properties and to
carry on its business as it is now being conducted. Seller has the full legal
right
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and power required to execute and deliver this Agreement and any and all
assignments, bills of sale, deeds, agreements, documents or instruments to be
executed and/or delivered in connection herewith (collectively the "Purchase
Documents") and to perform its obligations hereunder and thereunder.
(b) Ownership of Capital Stock of Corporation. Stockholders own
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beneficially and of record all outstanding shares of capital stock of Seller in
accordance with the percentages set forth on Schedule 6(b).
(c) Due Authorization; Validity of Agreement. The execution, delivery and
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performance of this Agreement and the Purchase Documents have been duly
authorized by Stockholders and directors of Seller and by all other necessary
action, corporate or otherwise. This Agreement and the Purchase Documents have
been duly executed and delivered and constitute, or will constitute when
executed and delivered by Seller and Stockholders, the valid and binding
obligation of Seller and Stockholders, enforceable against them in accordance
with their respective terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws from
time to time in effect affecting the enforcement of creditors' rights generally,
and except as enforcement of remedies may be limited by general equitable
principles.
(d) Subsidiaries and Joint Ventures. Seller has no subsidiaries and does
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not own any capital stock, security, partnership interest or other interest of
any kind in any corporation, partnership, joint venture, association or other
entity.
(e) Financial Statements. The Balance Sheets of Seller as of December 31,
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1999 (the "December Balance Sheet") and March 31, 2000 (the "Interim Balance
Sheet") and the related Statements of Income and Retained Earnings, and all
other Statements and related Schedules and Notes to the foregoing, if any,
copies of all of which constitute Schedule 6(e), were prepared in accordance
with generally accepted accounting principles, consistently applied throughout
the
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periods reported upon and with past periods, and fairly and accurately present
the financial position of Seller as of the dates of such Balance Sheets and
Statements, and the results of the operations of Seller for the periods reported
upon, except that the Interim Balance Sheet does not contain customary
adjustments and accruals for state taxes.
(f) Real Estate.
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(i) Seller does not have any obligation or duty relating to, or any
right, title or interest in, any real estate except those properties disclosed
on Schedule 6(f) which Seller leases or subleases, as tenant or subtenant (the
"Leased Properties" ). Disclosed on Schedule 6(f) are all title insurance
policies insuring Seller's interest in any of the Leased Properties, true and
correct copies of which are included in Schedule 6(f). All Leased Properties are
available to be used without restriction in the conduct and operation of the
business of Seller. The Leased Properties are in good operating condition and
repair, ordinary wear and tear excepted, and to the knowledge of Seller and
Stockholders, do not require any repairs other than normal routine maintenance
to maintain them in good condition and repair.
(ii) Seller has not received any notice from any insurance company
which has issued a policy with respect to any of the Leased Properties or from
any public official or board of fire underwriters (or other body exercising
similar functions) claiming any defects or deficiencies in, or suggesting or
requesting the performance of any repairs, alterations or other work to, any of
the Leased Properties, except for any notices as to which all defects and
suggested repairs, alterations or other work have been fully performed. Seller
has not received any notice from the applicable landlord that such landlord's
insurance premium for landlord's fire and extended coverage insurance for the
building of which Seller's Leased Property is a part has increased on account of
the operations and activities conducted by Seller at its Leased Property.
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(iii) There are no property management, employment, service, equipment,
supply, security, maintenance, construction, concession or other agreements with
respect to or affecting the Leased Properties that will burden Buyer after the
date hereof, except as disclosed on Schedule 6(f)(iii).
(iv) To the knowledge of Seller and Stockholders, all certificates of
occupancy and all other licenses, permits, authorizations, consents,
certificates and approvals required by all governmental authorities having
jurisdiction over the Leased Properties to the extent required to be obtained by
the tenant or subtenant under the leases for the Leased Properties and any
requisite certificates of the local board of fire underwriters (or other body
exercising similar functions) have been issued for the Leased Properties, have
been paid for (to the extent applicable), are unconditional, valid and in full
force and effect, and will not be invalidated, violated or otherwise adversely
affected by the execution or performance of this Agreement or the consummation
of any of the transactions contemplated herein. Seller and, to Seller's or
Stockholders' knowledge, any subtenant of Seller under any of the Leases
(defined herein), is (A) in compliance with the provisions of the Americans With
Disabilities Act and the regulations promulgated thereunder, as they may be
amended from time to time, and (B) in material compliance with all other laws
applicable to the use and occupancy by a tenant of the Leased Properties.
(v) To the knowledge of Seller and Stockholders, there are no
condemnation proceedings or any other proceeding in the nature of eminent domain
(a "Taking") pending against any of the Leased Properties, and to Seller's or
Stockholders' knowledge, no Taking has been threatened.
(vi) Each of the Leased Properties adjoins, or is part of a building
or development which adjoins, dedicated public roadways and has, or is part of a
building or development which has, access for motor vehicles to such roadways by
valid easements and, to
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Seller's or Stockholders' knowledge, there are no conditions existing which
could result in the termination or reduction of the current access to existing
roadways.
(vii) All essential utilities (including, but not limited to, water,
sanitary sewer, storm sewer, gas, electricity and telephone service) are
available to each of the Leased Properties.
(viii) (A) All leases or subleases and any and all amendments and
supplements thereto (collectively, the "Leases") of the Leased Properties,
whether oral or written, are disclosed on Schedule 6(f)(viii)(A), including for
each its date, the name of the landlord (and owner if different from the
landlord), the name of the lessee and any sublessee, the location and use of the
property, the monthly base rental payment, any scheduled or formula increases or
decreases in base rent, a description of any provisions for tax or expense pass-
throughs, the amount of any security deposit, the lease expiration date, all
options to renew, expansion rights, termination rights, unfunded tenant
improvement allowances and rights of first offer or refusal to purchase or lease
and whether there are any non-disturbance agreements from mortgagees or
paramount lessors; (B) Seller has delivered to Buyer true, correct and complete
copies of all Leases, and all such non-disturbance agreements; (C) Seller is the
holder of the lessee's or sublessee's interest, as applicable, in each Lease and
Seller has not assigned any Lease or any interest therein or subleased any
portion of the Leased Properties; (D) each Lease is in full force and effect;
(E) Seller is paying its rent currently and has not asserted any claim for set-
off against rent which has not been resolved; (F) Seller is not and, to Seller's
or Stockholders' knowledge, each landlord under any Lease is not in default
under any Lease, and no event has occurred which, with the giving of notice or
passage of time or both, would constitute a default by Seller or, to Seller's or
Stockholders' knowledge, any landlord under any Lease; and (G) neither the
execution or performance of this Agreement nor the consummation of any of the
transactions contemplated herein will result in a breach of or constitute a
default under any of the Leases.
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(g) Environmental Matters. To Seller's and Stockholders' knowledge, the
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Leased Properties and all activities and conditions at the Leased Properties are
in compliance with all laws, statutes, ordinances, regulations and orders
concerning discharges to the air, soil, surface water or groundwater and
concerning the storage, treatment or disposal of any waste or any substance
defined as "hazardous" or "dangerous" under applicable law, and no such
substance is present in or on the Leased Properties.
(h) Personal Property. Seller has good, valid and marketable title to all
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tangible personal property reflected on the Interim Balance Sheet, and to all
other personal property, tangible and intangible (including, but not limited to,
Intellectual Property, as defined below), owned by it, free and clear of all
liens, mortgages, pledges, security interests, restrictions, prior assignments,
encumbrances and claims of every kind or character. Seller is the owner, lessor,
or licensee of all the personal property now located in or upon the premises
occupied by it and of all personal property which it uses in the operation of
its business. All equipment, furniture and fixtures, and other tangible personal
property of Seller necessary for use in its business, is in good operating
condition and repair, ordinary wear and tear excepted, and to the knowledge of
Seller and Stockholders, does not require any repairs other than normal routine
maintenance, to maintain such property in good operating condition and repair.
(i) Intellectual Property. Except as set forth on Schedule 6(i), Seller
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is the sole and exclusive owner of the Intellectual Property disclosed on
Schedule 6(i), possesses all Intellectual Property rights and licenses required
for the conduct of the business and has the sole and exclusive right to use such
Intellectual Property. As used herein, "Intellectual Property" shall include
trademarks, trade and brand names, logos, service marks, copyrights, patents,
pending patent applications, shoprights, know-how, trade secrets, computer
programs and computer software and the like and other items commonly known as
intellectual property. The Intellectual Property listed on Schedule 6(i) is the
only Intellectual Property used by Seller in the operation
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of its business. No claim has been asserted against Seller involving any
conflict or claim of conflict of Seller's Intellectual Property with the
Intellectual Property of others or asserting any rights in Seller's Intellectual
Property and Seller and Stockholders have no knowledge of any basis for any such
claim or conflict. No service sold by Seller or any activity of Seller infringes
upon any intellectual property rights of any other party. No trademark owned by
Seller is involved in any opposition, invalidation or cancellation proceeding,
and to Seller's or Stockholders' knowledge, no such proceeding is threatened.
Within the past five years, Seller has not done business under, and has not been
known by, any name other than its current corporate name or a trade name
disclosed on Schedule 6(i).
(j) Software. The computer software used by Seller in connection with its
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business has been developed by Seller, or purchased or licensed from others for
Seller's use. To Seller's or Stockholders' knowledge, the use of such software
does not infringe upon the rights of any third parties, and there is no claim or
proceeding asserted or threatened in which any such infringement is alleged.
Seller has complied in all material respects with all of their software license
agreements. Seller will not be in breach of any software license agreement as a
result of entering into this Agreement or by consummating any of the
transactions contemplated hereunder provided, however, that the software license
agreements to be assigned to Buyer as a result of the transactions contemplated
herein may require consent before such assignments can be made valid and
binding.
(k) Year 2000 Warranty. Seller's information technology is year 2000
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compliant. For purposes of this subparagraph (k), "information technology" shall
include, but not be limited to, software, firmware, hardware and similar or
related items of automated and computerized systems, and "year 2000 compliant"
means the accurate processing of date/time data (including, but not limited to,
displaying, calculating, comparing and sequencing) from, into and between the
twentieth and twenty-first centuries, and the year 2000 and leap year
calculations.
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(l) Accounts Receivable. Each of the accounts receivable of Seller
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constitutes a valid claim in the full amount thereof against the debtor charged
therewith on the books of Seller and has been acquired in the ordinary course of
Seller's business. Each account receivable of Seller, all of which are set forth
on Schedule 6(l) (the "Accounts Receivable"), is fully collectible to the extent
of the face value thereof no later than 120 days after such account receivable
was generated. No account debtor has any valid set-off, deduction or defense
with respect thereto and no account debtor has asserted any such set-off,
deduction or defense.
(m) Insurance. Seller maintains insurance policies bearing the numbers,
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for the terms, with the companies, in the amounts, providing the general
coverage, and with the premiums set forth on Schedule 6(m). All of such policies
are in full force and effect and Seller is not in default of any provision
thereof and all premiums due (without regard to any grace period) with respect
to such policies have been paid. Seller has not received any notice from any
issuer of any such policies of its intention to cancel or refusal to renew any
policy issued by it.
(n) Contracts, Leases, Agreements and Other Commitments.
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(i) Seller is not a party to or bound by any written, oral or implied
contract, agreement, lease, power of attorney, guaranty, surety arrangement, or
other commitment including, but not limited, to any contract or agreement for
the purchase or sale of merchandise or for the rendition of services, pursuant
to which Seller is obligated to pay, or provide services valued at, or is
entitled to receive, amounts in excess of $50,000, except for the agreements
listed on Schedule 6(n) (the "Seller Agreements").
(ii) All of the Seller Agreements are in full force and effect and are
valid, binding and enforceable against the respective parties thereto in
accordance with their respective terms. Seller and, to the knowledge of Seller
and Stockholders, all other parties to all of the Seller Agreements have
performed all obligations required to be performed to date under the Seller
Agreements and neither Seller, nor to the knowledge of Seller and Stockholders,
any such
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other party, is in default or in arrears under the terms thereof, and no
condition exists or event has occurred which, with the giving of notice or lapse
of time or both, would constitute a default thereunder. The execution of this
Agreement and the consummation of the transactions herein contemplated do not
and will not, with or without the giving of notice, the lapse of time, or both,
result in an impairment or termination of, or result in a breach of any of the
terms and conditions of, or constitute a default under or conflict with any
Seller Agreement; provided, however, that the Seller Agreements set forth in
Schedule 6(n)-1 require the consent of third parties before such assignments can
be made valid and binding. None of the terms or provisions of any of the Seller
Agreements adversely affects the business, prospects, conditions, affairs or
operations of Seller, or any of its properties or assets. Neither Seller nor
Stockholders are aware of any intention by any party to terminate or amend any
Seller Agreement, or if Seller intends to request a renewal, of any intention to
refuse to renew the same upon expiration of its term.
(iii) Schedule 6(n) discloses (a) all outstanding written and oral
proposals, bids, offers or guaranties made by Seller, which, if accepted, would
or could impose any debts, obligations or liabilities upon Seller valued in
excess of $100,000, and (b) unexpired warranties relating to Seller's products
or services, detailing the products or services covered by each warranty.
(o) Labor Relations, Employees.
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(i) Set forth on Schedule 6(o)(i) is a list of all offer letters,
employment agreements, consulting agreements and non-competition agreements to
which Seller is a party or by which it is bound. Seller has delivered to Buyer
true, complete and correct copies of all such agreements and all of the
personnel policies, handbooks, procedures, and forms of employment applications
relating to the employees of Seller.
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(ii) Set forth on Schedule 6(o)(ii) is a list of all employment,
managerial, or advisory agreements protecting proprietary or confidential
processes to which Seller is a party or by which it is bound.
(iii) Set forth on Schedule 6(o)(iii) is a list of all employees of
Seller, broken-down by location, together with their rate of compensation,
title, union affiliation (if any), original date of hire, accrued severance pay,
vacation benefits, and sick leave benefits (if payable in cash upon termination
of employment) and any wage or salary increases, bonuses or increase in any
other direct or indirect compensation for each employee of Seller.
(iv) (A) Seller shall terminate as of the Closing Date all of its
employees;
(v) (B) Seller shall, in conjunction with Buyer, prepare and
sign at the Closing a joint notice to all employees of Sellers that have
accepted Buyer's offer of employment to the effect that the sale has closed and
their employment with Seller has terminated immediately prior to the Closing and
immediately following the Closing they are employed by Buyer on the terms set
forth in such offer; and
(vi) (C) Buyer will not be responsible for, and shall not
assume, any liabilities or obligations arising as a result of such termination.
(vii) Except as set forth on Schedule 6(o)(v):
(viii) (A) there is no union representing or purporting to
represent any of the employees of Seller nor has there been any such
representation at any time in the past, and Seller is not subject to any
collective bargaining agreements with any union representing or purporting to
represent the employees of Seller, nor has Seller been subject to any such
collective bargaining agreements at any time in the past;
(ix) (B) There have been no strikes, slowdowns, or other work
stoppages pending or, to the knowledge of Seller or Stockholders, threatened,
against Seller;
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(x) (C) Seller has complied in all material respects with all
laws relating to the employment of labor, including any provisions thereof
relating to wages, overtime, bonuses, severance pay, benefits, COBRA, WARN,
state and local equivalents to the WARN Act, FMLA, FLSA, state wage/hour laws,
hours, Federal and state Occupational Safety or Health regulations, workers'
compensation, collective bargaining, and the payment of social security,
unemployment compensation and similar taxes, and Seller is not liable for any
arrears of wages or any taxes or penalties for failure to comply with any of the
foregoing; and
(xi) (D) there are no charges, suits, actions, administrative
proceedings or investigations, and/or claims, pending, or to Seller's and to
Stockholders' knowledge, threatened against Seller, whether domestic or foreign,
before any court, governmental agency, department, board of instrumentality, or
before any arbitrator (collectively "Actions") concerning or in any way related
to the employees of Seller, including, without limitation, Actions involving
unfair labor practices, wrongful discharge and/or any other restriction on the
right of Seller to terminate its respective employees, employment
discrimination, occupational safety and health, and workers' compensation (other
than routine claims for benefits).
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(p) Employee Pensions and ERISA.
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(i) Neither Seller nor any entity which would be considered a single
employer with Seller under Section 4001(b)(1) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") or Section 414(b), (c), (m) or (o) of
the Internal Revenue Code of 1986, as amended (the "Code") (an "ERISA
Affiliate") maintains, sponsors, contributes to or has any liability under any
agreement, plan, practice or program, whether written or oral, providing for
bonus payments, child or dependent care benefits, death benefits, accidental
death and dismemberment benefits, deferred compensation benefits, disability or
other wage continuation benefits, educational assistance or tuition benefits,
health benefits, paid holiday benefits, incentive compensation payments, leave
of absence rights, medical expense payment or reimbursement benefits, profit
sharing, pension or other retirement benefits, stock option, stock appreciation
rights or stock purchase benefits, severance or termination pay or benefits
(including post-employment consulting arrangements) or vacation, except as set
forth on Schedule 6(p). The items set forth on Schedule 6(p) are individually
referred to as an "Employee Benefit Plan" and collectively referred to as
"Employee Benefit Plans". Schedule 6(p) includes, but is not limited to, each
plan maintained or contributed to by Seller or an ERISA Affiliate which is an
"employee benefit plan" as such term is defined in Section 3(3) of ERISA. Seller
has delivered to Buyer a true and complete copy of each Employee Benefit Plan,
including all texts, amendments, and other agreements (whether formal or
informal) adopted in connection therewith. No employee or former employee (or a
beneficiary thereof) of Seller or an ERISA Affiliate participates in or has any
rights to benefits, with respect to employment with Seller under any agreement,
plan, practice or program not listed on Schedule 6(p). No person who is not a
current or former employee (or a beneficiary thereof) of Seller participates in
or is entitled to any benefits under any plan listed on Schedule 6(p). None of
the welfare plan's (as that term is defined in Section 3(1) of ERISA) of Seller
are self insured.
<PAGE>
(ii) Each Employee Benefit Plan has been and is maintained in material
compliance with any applicable provision of the Code or ERISA, including,
without limitation, Section 4980B of the Code and Sections 601-608 of ERISA.
(iii) No actions, suits or claims with respect to Seller's Employee
Benefit Plans are pending (other than routine, noncontested claims for benefits)
or, to Seller's or Stockholders' knowledge, threatened, and neither Seller nor
Stockholders have any knowledge of any facts which would reasonably be expected
to give rise to or result in any such action, suit or claim.
(iv) No Employee Benefit Plan provides post-employment medical,
health, or life insurance benefits for present or future retirees or present or
future terminated employees, except for continuation coverage provided pursuant
to the requirements of Section 4980B of the Code or Sections 601-608 of ERISA or
a similar state law, or continued coverage under an insurance policy for a
period not to exceed 60 days following termination of employment.
(v) Seller and each ERISA Affiliate has timely complied with all of
the reporting, disclosure or other requirements of ERISA or the Code with
respect to each Employee Benefit Plan subject thereto.
(vi) With respect to the Employee Benefit Plans subject to Title I,
Part 4 of ERISA or Section 4975 of the Code, neither Seller nor, to
Stockholders' knowledge, any other person has (i) engaged in a non-exempt
"prohibited transaction" within the meaning of Section 4975 of the Code or
Section 406 of ERISA which would subject Seller to material liability for a tax
or penalty imposed by Section 4975 of the Code or Section 502 of ERISA, or (ii)
committed a breach of its fiduciary duties (as defined in Section 404 of ERISA)
which could subject the Seller to any material liability.
(vii) Neither Seller nor any ERISA Affiliate has made a commitment to
amend any Employee Benefit Plan and no such amendments have been made in the
last six months.
<PAGE>
(viii) Any contribution or payment required to be made by Seller to or
on behalf of any Employee Benefit Plan has been made on or prior to the Closing
Date.
(q) Suppliers and Customers. Schedule 6(q) is a complete and accurate list
-----------------------
of the names of all suppliers and customers of Seller which respectively
contributed more than 5% of all sales and services to, and orders and use of
services from, Seller reflected in the Statement of Income related to the
Interim Balance Sheet ("Suppliers and Customers"). The relationships of Seller
and Stockholders with their suppliers and customers are good commercial working
relationships and, except as set forth on Schedule 6(q), no Supplier or Customer
of Seller has canceled or otherwise terminated, or threatened to cancel or
otherwise terminate, its relationship with Seller, or has during the last twelve
months decreased materially, or threatened to decrease or limit materially, its
business with Seller. Seller and Stockholders have no knowledge or reason to
believe that the consummation of the transactions contemplated herein will
adversely affect the relationship of Buyer as the successor to Seller in the
conduct of the Business with any such Supplier or Customer.
(r) Liabilities. Seller has no material liabilities, liquidated or
------------
unliquidated, fixed or contingent, or otherwise, except as and to the extent
reflected on (i) the Closing Balance Sheet, or (ii) this Agreement or any
Schedule hereto.
(s) Litigation. Seller is not a party to and, to the knowledge of Seller
-----------
and Stockholders, is not threatened with any suit, action, arbitration,
administrative or other proceeding, either at law or in equity, or governmental
investigation by or before any court, governmental department, commission,
board, agency or instrumentality, domestic or foreign. Neither Seller nor
Stockholders have any knowledge of any basis for any suit, action, arbitration,
or administrative or other proceeding against Seller. There is no judgment,
decree, award or order outstanding against Seller, and Seller is not
contemplating the institution of any suit,
<PAGE>
action, arbitration, administrative or other proceeding. Neither Seller nor
Stockholders have any knowledge of any event that may result in a claim for
damages against Seller.
(t) Conflicting Interests. Except as set forth on Schedule 6(t), neither
----------------------
Stockholders, nor any director, officer or employee of Seller, nor any relative
or any Affiliate (defined hereinafter) of any of the foregoing (i) has any
pecuniary interest in any supplier or customer of Seller or in any other
business enterprise with which Seller conducts business or with which Seller is
in competition, (ii) is indebted to Seller for money borrowed, (iii) is a party
to any transaction or agreement with Seller (apart from such person's status as
an employee or stockholder as such), or (iv) has any business or other interest
in conflict with the interests of Seller.
(u) The term "Affiliate" as used in this Agreement shall have the meaning
given to such term under the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
(v) Compliance with Law and Regulations. Except as set forth in Schedule
-----------------------------------
6(u), Seller is in material compliance with all requirements of law, Federal,
state and local, and all requirements of all governmental bodies or agencies
having jurisdiction over it, the conduct of its business, the use of its
properties and assets, and all premises occupied by it, and, without limiting
the foregoing, Seller has paid all monies and obtained and now holds all
licenses, permits, certificates, and authorizations needed or required for the
conduct of its business and the use of its properties and the premises occupied
by it. To the knowledge of Seller and Stockholders, Seller has properly filed
all reports and other documents required to be filed with any Federal, state and
local government or subdivision or agency thereof. Neither Seller nor
Stockholders have received any notice from any Federal, state or municipal
authority or any insurance or inspection body that any of its properties,
facilities, equipment, or business procedures or practices, fails to comply with
any applicable law, ordinance, regulation, building
<PAGE>
or zoning law, or requirement of any public authority or body. All licenses,
permits, orders and approvals issued by any governmental body or agency
currently in effect and pertaining to the property, assets or business of Seller
are listed on Schedule 6(u) and, except as noted on Schedule 6(u), none of the
items so listed will lapse or expire as a result of the transactions
contemplated hereby.
(w) Agreement Not in Breach of Other Instruments Affecting Seller and
-----------------------------------------------------------------
Stockholders; Governmental Consent. Except as set forth in Schedule 6(v), the
-----------------------------------
execution and delivery of this Agreement, the consummation of the transactions
provided for herein, and the fulfillment of the terms hereof (i) will not result
in the imposition of any lien, security interest or encumbrance on any asset of
Seller or in the breach of any of the terms and provisions of, or result in a
termination or modification of or constitute a default under, or conflict with,
or cause any acceleration of any obligation of Seller or Stockholders under, or
permit any other party to modify or terminate, any agreement or other instrument
by which Seller or Stockholders are bound, any judgment, decree, order, or award
of any court, governmental body or arbitrator, any applicable law, rule or
regulation, or the bylaws or Articles of Incorporation of Seller, and (ii) do
not require the consent of any governmental authority or other person.
<PAGE>
(x) Tax Matters.
------------
(i) For purposes of this Agreement: "Tax" and "Taxes" shall mean any
Federal, state (including the District of Columbia), local, foreign (including
possessions or territories of the United States) or other tax (whether income,
excise, sales or use, ad valorem, franchise, real or personal property, license,
transfer, employment, social security or any other kind of tax or payment in
lieu of tax no matter how denominated including any amount payable by Seller
pursuant to a tax-sharing or other agreement relating to the sharing or payment
of tax), or any assessment, levy, impost, withholding, fee or other governmental
charge in the nature of a tax, and shall include all additions to tax, interest,
penalties and fines with respect thereto. "Return" and "Returns" shall mean all
reports, estimates, information statements and returns of any nature, including
amended versions of any of the foregoing, relating to or required to be filed in
connection with any Taxes pursuant to the statutes or regulations of any
federal, state, local or foreign government taxing authority.
(ii) Seller has filed all material Returns that are required to be
filed on or before the date hereof.
(iii) All material Taxes for which Seller is or will be liable and that
are due on or before the Closing Date (including without limitation Taxes shown
to be due on all Returns filed on or before the Closing Date) have been or will
be paid in full on or before the Closing Date and all material Taxes which are
required to be withheld or collected by Seller for operations before closing
have been duly withheld and collected and, to the extent required, have been
paid to the appropriate governmental authority or properly deposited as required
by applicable law. All unpaid Taxes that are or will be owing for operations
during the period ending on the Closing Date will be the responsibility of, and
paid by, Seller. There are no liens on any assets of Seller that arose in
connection with any failure (or alleged failure) to pay any
<PAGE>
Tax other than liens for Taxes not yet due and payable or for Taxes that Seller
or Stockholders are contesting in good faith through appropriate proceedings as
set forth on Schedule 6(w)(iii).
(iv) As of the date of this Agreement, Seller has received no notice
that any taxing authority has asserted or threatened to assert any deficiency or
assessment for any Taxes against Seller; and Stockholders know of no audit or
investigation by any taxing authority with respect to any Tax liability of
Seller.
(v) Seller has withheld or collected and paid or deposited all
material Taxes required to have been withheld or collected and paid or deposited
in connection with amounts paid or owing to any employee, independent
contractor, creditor, stockholder, member, partners or other third party.
(vi) Except as set forth on Schedule 6(w)(vi), Seller does not have
any income or gain that may be reportable for a period ending after the Closing
Date without the receipt of an equal amount of cash, which is attributable to a
transaction occurring in or a change in accounting method made for a period
ending on or prior to the Closing Date.
(y) No Material Adverse Change. Since December 31, 1999, there has not
--------------------------
been, and there is not threatened, any Material Adverse Effect in the financial
condition or business of Seller or any material physical damage or loss to any
of its properties or to the Leased Properties. "Material Adverse Effect" means
an effect which is materially adverse to the Assets (including the continued
conduct of the operation thereof in the manner currently conducted) or the
financial condition or results of operations of Seller, taken as a whole.
(z) Statements and Other Documents Not Misleading. Neither this Agreement,
----------------------------------------------
including all Schedules to this Agreement, nor the Purchase Documents delivered
by or on behalf of Seller or any Stockholder contains any untrue statement of
any material fact or omits to state any material fact required to be stated in
order to make such statement, document or other instrument not misleading.
<PAGE>
(aa) No Broker or Finder. Other than the engagement of Steve Sherrill, as
-------------------
broker to represent Seller in connection with this Agreement and the
transactions contemplated hereby, Seller has not incurred any obligation,
contingent or otherwise, to a broker, finder, agent or other intermediary for
introducing the parties in connection with, or otherwise procuring, this
Agreement or the transactions contemplated hereby. Seller shall be solely liable
and responsible for the fees, commissions, costs and expenses due to said broker
in connection with this Agreement and the transactions contemplated hereby.
7. Representations, Warranties, and Agreements of Buyer and ORC. As material
------------------------------------------------------------
inducement to Seller and Stockholders to enter into this Agreement and to close
hereunder, Buyer and ORC jointly and severally make the following
representations and warranties to Seller and Stockholders:
(a) Corporate Status and Authority. Each of Buyer and ORC is a corporation
------------------------------
duly organized, validly existing and in good standing under the laws of the
State of Delaware, and have the power and authority to own its properties, carry
on its business, and acquire the Assets and assume the Liabilities hereunder and
to carry on the Business of Seller. Buyer is qualified as a foreign corporation
in the State of Illinois. Buyer and ORC have the full legal right and power
required to execute and deliver this Agreement and the Purchase Documents and to
perform their respective obligations hereunder and thereunder.
(b) Due Authorization; Validity of Agreement. The execution, delivery and
----------------------------------------
performance of this Agreement has been duly authorized by the directors of Buyer
and ORC and by all other necessary action, corporate or otherwise. This
Agreement and the Purchase Documents have been duly executed and delivered and
constitute, or will constitute when executed and delivered by Buyer and ORC, the
valid and binding obligations of Buyer and ORC, whichever applicable,
enforceable in accordance with their respective terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium and other
<PAGE>
similar laws from time to time in effect affecting the enforcement of creditors'
rights generally, and except as enforcement of remedies may be limited by
general equitable principles. When tendered at the Closing, the Common Shares
shall be duly authorized, validly issued and non-assessable.
(c) Agreement Not in Breach of Other Instruments. The execution, delivery
---------------------------------------------
and performance of this Agreement, the consummation of the transaction provided
for herein, and the fulfillment of the terms hereof by Buyer, will (i) not
result in the breach of any of the terms and provisions of, or constitute a
default under, or conflict with, or cause any acceleration of any obligation of
Buyer or ORC under, any agreement, indenture or other instrument to which Buyer
or ORC, whichever applicable, is bound, any judgment, decree, or order, or award
of any court, governmental body, or arbitrator, or any applicable law, rule, or
regulation, or the bylaws or Certificate of Incorporation of Buyer or ORC,
whichever applicable, and (ii) does not require the consent of any governmental
authority or other person.
(d) Brokers, Finders, Etc. Neither Buyer nor ORC nor any subsidiary
----------------------
thereof has any liability to pay any fees or commissions to any broker, finder,
consultant or agent with respect to the transactions contemplated herein.
8. Survival of Representations and Warranties.
-------------------------------------------
(i) All representations and warranties made in this Agreement are
true and correct as of the date hereof, shall survive the consummation of the
transactions provided for in this Agreement, and shall expire on the second
anniversary of the Closing, except for the representations and warranties that
are set forth in subparagraphs 6(g), 6(p), 6(s) and 6(w), which shall expire
upon expiration of the applicable statute of limitations.
(ii) Notwithstanding the foregoing, if written notice for a claim on
indemnification has been given pursuant to Paragraph 9 or Paragraph 10 hereof on
or prior to the last day of the foregoing two year period, the obligation of the
indemnification pursuant to such
<PAGE>
Paragraph shall survive with respect to such claim until such claim is finally
resolved. Each warranty and representation contained herein is independent of
all other warranties and representations contained herein (whether or not
covering an identical or a related subject matter) and must be independently and
separately complied with and satisfied. Exceptions or qualifications to any
warranties or representations contained herein shall not be construed as
exceptions or qualifications to any other warranty and shall not be deemed to
have been waived, affected or impaired by any investigation made by or any
knowledge of any party to this Agreement.
9. The Indemnification of Buyer and ORC.
------------------------------------
(a) Basic Provision. Seller and Stockholders (in this Paragraph 9
---------------
sometimes referred to collectively as the "Indemnitor") hereby, jointly and
severally, indemnify, defend and agree to hold harmless Buyer, ORC, and each of
their respective directors, officers, stockholders, employees and agents (each
of whom shall be a third party beneficiary hereof) and their respective
successors and assigns (in this Paragraph 9 sometimes referred to collectively
as the "Indemnitee"), from, against and in respect of the amount of any and all
Deficiencies (as hereinafter defined).
(b) Definition of "Deficiencies". As used in this Paragraph 9,
----------------------------
"Deficiencies" means:
(i) any and all loss or damage resulting from any misrepresentation,
breach of warranty, or any non-fulfillment of any warranty, representation,
covenant or agreement on the part of Seller or Stockholders contained herein;
provided, however, that the remedy provided in subparagraph 11(e) of this
Agreement shall constitute Buyer's sole remedy with respect to a breach of the
representation contained in subparagraph 6(l) of this Agreement;
(ii) any and all loss or damage resulting from any misrepresentation
contained in any Purchase Document delivered to Buyer pursuant to this Agreement
or contained in any Schedule or Exhibit hereto;
<PAGE>
(iii) any and all loss or damage arising or resulting by reason of any
claim, debt, liability or obligation or any alleged claim, debt, liability or
obligation of Seller to any party, including, without limitation, any liability
for Taxes or relating to any Employee Benefit Plan, except for the assumed
Liabilities, whether or not the existence of such claim, debt, liability or
obligation or any alleged claim, debt, liability or obligation of Seller
constitutes a breach of any representation, warranty or covenant of Seller or
Stockholders contained in this Agreement; and
(iv) any and all actions, suits, proceedings, demands, assessments,
penalties, liabilities, judgments, reasonable attorneys' fees, costs, expenses
and interest incident to any of the foregoing.
(c) Notice; Right to Cure. In the event of any investigation, litigation,
----------------------
action or proceeding that might reasonably be expected to give rise to a claim
for indemnification to an Indemnitee under this Paragraph 9, such Indemnitee
shall give, or shall cause to be given by such Indemnitee, written notice to the
Indemnitor of the commencement of such investigation, litigation, action or
proceeding; provided, however, that the failure or delay of such Indemnitee to
-------- -------
give, or cause to be given, such notice shall not relieve such Indemnitor of its
obligation under this Paragraph 9, except to the extent that such Indemnitor
actually suffers damages solely as a result of such failure or delay. Neither
party shall be entitled to indemnification hereunder with respect to any claim
if the Indemnitor, within 45 days after receipt of notice from the Indemnitee,
cures or corrects the set of facts which form the basis of the claim.
(d) Procedures for Third Party Claims. In the event that any claim shall
---------------------------------
be asserted by any party against an Indemnitee which, if sustained, would result
in a Deficiency, Buyer or ORC, within a reasonable time after learning of such
claim, shall notify the Indemnitor of such claim in accordance with the
provisions of Paragraph 9(c) above, and shall extend to the Indemnitor a
reasonable opportunity to defend against such claim, at the Indemnitor's sole
<PAGE>
expense and through legal counsel acceptable to Buyer and ORC provided that the
Indemnitor proceeds in good faith, expeditiously and diligently. Buyer and ORC
shall, at their option and expense, have the right to participate in any defense
undertaken by the Indemnitor with legal counsel of their own selection. If the
Indemnitor, in the reasonable judgement of the Indemnitee, has failed to
prosecute such defense in good faith in an expeditious and diligent manner,
Buyer or ORC shall have the right to defend and/or settle such claim on behalf
of the Indemnitor at the Indemnitor's expense. No settlement or compromise of
any claim which may result in a Deficiency may be made by the Indemnitor without
the prior written consent of Buyer and ORC unless (i) prior to such settlement
or compromise the Indemnitor acknowledges in writing its obligation to pay in
full the amount of the settlement and all associated expense, (ii) Buyer and ORC
are furnished with security reasonably satisfactory to each of them that the
Indemnitor will in fact pay such amount and expenses, and (iii) Buyer and ORC
are furnished with a full release from the claimant in form and substance
reasonably satisfactory to each of them.
(e) Payment of Deficiencies. In the event that Buyer or ORC discovers any
-----------------------
Deficiency, Buyer or ORC, as applicable, shall give written notice to the
Indemnitor of the nature and amount of the Deficiency. If the Indemnitor, within
a period of 15 business days after the giving of such notice by the Indemnitee,
shall not give written notice to the Indemnitee announcing its intention to
contest such assertion of the Indemnitee (such notice by the Indemnitor being
hereinafter called the "Contest Notice"), such assertion of the Indemnitee shall
be deemed accepted and the amount of the Deficiency shall be deemed established.
The Indemnitor and the Indemnitee may agree in writing, at any time, as to the
existence and amount of a Deficiency, and, upon the execution of such agreement,
such Deficiency shall be deemed established. Any amounts required to be paid
with respect to an established Deficiency but not paid by the Indemnitor within
10 business days after such Deficiency is established (the
<PAGE>
"Deficiency Payment Date") shall bear interest from the Deficiency Payment Date
until the date paid at a rate of 10% per annum.
(f) Limitation. Neither Seller nor Stockholders shall be liable to another
----------
party under this Paragraph 9 for any Deficiencies unless and until the aggregate
amount of all Deficiencies exceeds $90,000, in which event, there shall be
liability for Deficiencies only to the extent that such Deficiencies exceed
$90,000. Notwithstanding anything contained herein to the contrary, the maximum
aggregate amount of Deficiencies against which the Indemnitee shall be entitled
to be indemnified under this Paragraph 9 with respect to all claims hereunder
shall be $6,000,000. For purposes of this subparagraph 9(f), the term
Deficiencies shall not include any adjustments made pursuant to Section 4(b) of
this Agreement.
(g) Recoveries. An Indemnitee shall be deemed to have suffered a
----------
Deficiency that is indemnifiable under this Paragraph 9 only to the extent that
such party has not received any recovery or benefit with respect thereto from
any other person or entity; and if an Indemnitee receives such recovery or
benefit after receipt of payment from the Indemnitor, then the amount of such
recovery or benefit (but not exceeding the amount paid by the Indemnitor), net
of reasonable expenses incurred in obtaining the recovery or benefit (i.e., tax
benefits and insurance recoveries), shall be paid to the Indemnitor.
(h) Cooperation. Buyer and ORC each agrees to take all reasonable steps to
-----------
mitigate their respective Deficiencies upon and after becoming aware of any
event which could reasonably be expected to give rise to any Deficiencies.
(i) Remedies. Except for remedies that cannot be waived as a matter of law
--------
and non-monetary equitable remedies (including, without limitation, injunctive
relief) sought within applicable time periods expressed herein, after the
Closing Date, subject to applicable limitations, the remedies, set forth in this
Paragraph 9, shall be the sole remedies for claims of Buyer and ORC for
liability of the Seller and Stockholders arising under this Agreement or any
<PAGE>
information delivered pursuant hereto. Notwithstanding the foregoing, nothing
herein shall preclude Buyer and ORC from asserting a claim for fraud, with
respect to which no limitations contained in Paragraphs 8 or 9 of this Agreement
shall be applicable.
10. The Indemnification of Seller and Stockholders.
----------------------------------------------
(a) Basic Provision. Buyer and ORC (in this Paragraph 10 sometimes
---------------
referred to collectively as the "Indemnitor") hereby jointly and severally
indemnify, defend and agree to hold harmless Seller and its directors, officers,
employees and agents (each of whom shall be a third party beneficiary hereof)
and Stockholders, their agents and their respective successors and assigns (in
this Paragraph 10 sometimes referred to collectively as the "Indemnitee"), from,
against and in respect of the amount of any and all Deficiencies (as hereinafter
defined).
(b) Definition of "Deficiencies". As used in this Paragraph 10,
---------------------------
"Deficiencies" means:
(i) any and all loss or damage resulting from any misrepresentation,
breach of warranty, or any non-fulfillment of any warranty, representation,
covenant or agreement on the part of Buyer or ORC contained herein;
(ii) any and all loss or damage resulting from any misrepresentation
contained in any Purchase Document delivered to Seller or Stockholders pursuant
to this Agreement or contained in any Schedule or Exhibit hereto;
(iii) any and all loss or damage resulting from Buyer's conduct of the
Business from and after the Closing Date;
(iv) any and all loss or damage resulting from the Liabilities from
and after the Closing Date; and
(v) any and all actions, suits, proceedings, demands, assessments,
penalties, liabilities, judgments, reasonable attorneys' fees, costs, expenses
and interest incident to any of the foregoing.
<PAGE>
(c) Notice; Right to Cure. In the event of any investigation, litigation,
---------------------
action or proceeding that might reasonably be expected to give rise to a claim
for indemnification to an Indemnitee under this Paragraph 10, such Indemnitee
shall give, or shall cause to be given by such Indemnitee, written notice to the
Indemnitor of the commencement of such investigation, litigation, action or
proceeding; provided, however, that the failure or delay of such Indemnitee to
-----------------
give, or cause to be given, such notice shall not relieve such Indemnitor of its
obligation under this Paragraph 10, except to the extent that such Indemnitor
actually suffers damages solely as a result of such failure or delay. Neither
party shall be entitled to indemnification hereunder with respect to any claim
if the Indemnitor, within 45 days after receipt of notice from the Indemnitee,
cures or corrects the set of facts which form the basis of the claim.
(d) Procedures for Third Party Claims. In the event that any claim shall
---------------------------------
be asserted by any party against an Indemnitee which, if sustained, would result
in a Deficiency, Seller or Stockholders, as applicable, within a reasonable time
after learning of such claim, shall notify the Indemnitor of such claim in
accordance with the provisions of Paragraph 10(c) above, and shall extend to the
Indemnitor a reasonable opportunity to defend against such claim, at the
Indemnitor's sole expense and through legal counsel acceptable to Seller and
Stockholders, as applicable, provided that the Indemnitor proceeds in good
faith, expeditiously and diligently. Seller and Stockholders, as applicable,
shall, at their option and expense, have the right to participate in any defense
undertaken by the Indemnitor with legal counsel of their own selection. If the
Indemnitor, in the reasonable judgement of Seller or Stockholders, as
applicable, has failed to prosecute such defense in good faith in an expeditious
and diligent manner, Seller or Stockholders shall have the right to defend
and/or settle such claim on behalf of the Indemnitor at the Indemnitor's
expense. No settlement or compromise of any claim which may result in a
Deficiency may be made by the Indemnitor without the prior written consent of
Seller or Stockholders, as applicable, unless (i) prior to such settlement or
compromise the
<PAGE>
Indemnitor acknowledges in writing its obligation to pay in full the amount of
the settlement and all associated expenses, (ii) Seller and Stockholders, as
applicable, are furnished with security reasonably satisfactory to each of them
that the Indemnitor will in fact pay such amount and expenses, and (iii) Seller
and Stockholders, as applicable, are furnished with a full release from the
claimant in form and substance reasonably satisfactory to each of them.
(e) Payment of Deficiencies. In the event that Seller or Stockholders
-----------------------
discover any Deficiency, the Seller or Stockholders, as applicable, shall give
written notice to the Indemnitor of the nature and amount of the Deficiency. If
the Indemnitor, within a period of 15 business days after the giving of such
notice by the Indemnitee, shall not give written notice to the Indemnitee
announcing its intention to contest such assertion of the Indemnitee (such
notice by the Indemnitor being hereinafter called the "Contest Notice"), such
assertion of the Indemnitee shall be deemed accepted and the amount of the
Deficiency shall be deemed established. The Indemnitor and the Indemnitee may
agree in writing, at any time, as to the existence and amount of a Deficiency,
and, upon the execution of such agreement, such Deficiency shall be deemed
established. Any amounts required to be paid with respect to an established
Deficiency but not paid by the Indemnitor within 10 business days after the
Deficiency Payment Date shall bear interest from the Deficiency Payment Date
until the date paid at a rate of 10% per annum.
(f) Recoveries. An Indemnitee shall be deemed to have suffered a
----------
Deficiency that is indemnifiable under this Paragraph 10 only to the extent that
such party has not received any recovery or benefit with respect thereto from
any other person or entity; and if an Indemnitee receives such recovery or
benefit after receipt of payment from the Indemnitor, then the amount of such
recovery or benefit (but not exceeding the amount paid by the Indemnitor), net
of reasonable expenses incurred in obtaining the recovery or benefit (i.e., tax
benefits and insurance recoveries), shall be paid to the Indemnitor.
<PAGE>
(g) Cooperation. Seller and Stockholders each agree to take all reasonable
-----------
steps to mitigate their respective Deficiencies upon and after becoming aware of
any event which could reasonably be expected to give rise to any Deficiencies.
(h) Remedies. Except for remedies that cannot be waived as a matter of law
--------
and except for non-monetary equitable remedies (including, without limitation,
injunctive relief) sought within applicable time periods expressed herein, after
the Closing Date, subject to applicable limitations, the remedies, set forth in
this Paragraph 10, shall be the sole remedies for claims of Seller and
Stockholders for liability of ORC and Buyer arising under this Agreement or any
information delivered pursuant hereto.
11. Closing.
--------
(a) Closing Date. The Closing of the transactions provided for in this
-------------
Agreement (herein sometimes called the "Closing") shall take place at the
offices of Buyer's counsel, Wolf, Block, Schorr and Solis-Cohen LLP, 1650 Arch
Street, 22nd Floor, Philadelphia, PA 19103, at 10:00 A.M. local time on August
31, 2000, or at such other place, date and time as shall be agreed to between
Buyer and Seller. The date and time of Closing is sometimes herein called the
"Closing Date.
(b) Deliveries by Seller at Closing. At Closing, Seller will deliver or
-------------------------------
cause to be delivered to Buyer the following:
(i) such instruments of sale, transfer and assignment as Buyer shall
reasonably request to evidence and confirm Seller's sale and transfer of the
Assets to Buyer;
(ii) a "good standing" certificate issued by each jurisdiction in
which Seller is incorporated and qualified to do business as a foreign
corporation and a certified copy of Seller's Articles of Incorporation and all
amendments thereto issued by the Secretary of State of its state of
incorporation, all of which shall be dated as of a date within 30 days prior to
the Closing Date;
<PAGE>
(iii) Articles of Amendment amending Seller's Articles of Incorporation
to change Seller's name to one which is not similar to its present corporate
name, which Articles of Amendment shall be in proper form and accompanied by the
proper check for filing with the Secretary of the State of Illinois;
(iv) termination statements and any other termination documents
terminating all liens, encumbrances and all claims, if any, in and to the
Assets;
(v) copies of the minutes of the meetings of the board of directors
and stockholders of Seller authorizing the execution and performance of this
Agreement, certified by Seller's President or Secretary;
(vi) the favorable opinion of Sachnoff & Weaver, Ltd., counsel to
Seller, as to the matters set forth on Exhibit "J" attached hereto;
(vii) the Seller Agreement Not To Compete in the form attached hereto
as Exhibit "A", duly executed by Seller;
(viii) the Escrow Agreement in the form attached hereto as Exhibit "B",
duly executed by Seller;
(ix) the Terence Employment Agreement and the Terence Non-Compete
Agreement in the form attached hereto as Exhibits "D" and "G", duly executed by
Terence;
(x) the Gary Employment Agreement and Gary Non-Compete Agreement in
the form attached hereto as Exhibits "E" and "H", duly executed by Gary;
(xi) the Key Executive Employment Agreements and Key Executive Non-
Compete Agreements with each of the Key Executives in the form attached hereto
as Exhibits "F" and "I";
(xii) instructions, in the form attached hereto as Exhibit "K", to the
escrow agent, Old Kent Bank, in connection with the Escrow Agreement, dated
April 28, 2000, by and
<PAGE>
among the Seller, Buyer and Old Kent Bank, to release the funds held in escrow
in accordance with such Escrow Agreement (the "Escrow Agent Instructions");
(xiii) incumbency certificates setting forth the names and respective
signatures of the officers of Seller who have executed documents in connection
with the Closing, certified by the Secretary of Seller to be true and accurate
as of the Closing Date, except that the signature of the Secretary of Seller
shall be certified as true and accurate by the President of Seller; and
(xiv) all such further documents, instruments and agreements which may
be reasonably requested by Buyer or its counsel, in order to more effectively
transfer title to the Assets to Buyer, or to effect and carry out any provision
of this Agreement.
(c) Deliveries by Buyer at Closing. At Closing, Buyer will deliver or
------------------------------
cause to be delivered to Seller the following:
(i) the sum of $8,325,000, payable by wire transfer to such
account(s) as Seller shall designate in writing;
(ii) copies of the minutes of the meetings of the boards of directors
and resolutions thereof of (A) Buyer and ORC, respectively, authorizing the
execution and performance of this Agreement and (B) Buyer authorizing the
execution and performance of the Terence Employment Agreement, the Terence Non-
Compete Agreement, the Gary Employment Agreement, the Gary Non-Compete
Agreement, the Key Executive Employment Agreements and the Key Executive Non-
Compete Agreements, each certified by their respective Presidents or
Secretaries;
(iii) the Escrow Agreement Instructions in the form attached hereto as
Exhibit "K";
(iv) the Escrow Agreement in the form attached hereto as Exhibit "B",
duly executed by Buyer and ORC;
<PAGE>
(v) the Employment Agreements and Non-Compete Agreements identified
in subparagraphs 11(b)(ix), (x) and (xi), duly executed by Buyer and ORC, as
applicable;
(vi) a certificate issued by or on behalf of the Secretary of State of
the State of Delaware and Illinois and certifying to the legal existence and
good standing of Buyer as of a date not earlier than 30 days prior to the
Closing Date;
(vii) a certificate issued by or on behalf of the Secretary of State of
the State of Delaware and certifying to the legal existence of ORC as of a date
not earlier than 30 days prior to the Closing Date;
(viii) incumbency certificates setting forth the names and respective
signatures of the officers of Buyer and ORC who have executed documents in
connection with the Closing, certified by the Secretary of Buyer and ORC to be
true and accurate as of the Closing Date, except that the signature of the
Secretary of Buyer or ORC shall be certified as true and accurate by the
President of Buyer and ORC, respectively;
(ix) an Assignment and Assumption Agreement, duly executed by an
officer of the Buyer, substantially in the form of Exhibit "L" attached hereto,
evidencing Buyer's assumption, pursuant to Paragraph 3(b) of the Assumed
Contracts and assumed liabilities (the "Assumption Agreement"); and
(x) an opinion of Wolf, Block, Schorr and Solis-Cohen LLP, counsel to
the Buyer, as to the matters set forth on Exhibit "M" attached hereto.
(xi) Post-Closing Covenants.
----------------------
(d) Employee Benefit Plans. Buyer agrees to assume and maintain, to the
----------------------
extent possible, all assignable Employee Benefit Plans of Seller in effect
immediately prior to the Closing and to maintain such Employee Benefit Plans for
the benefit of those employees of Seller who become employees of the Buyer (the
"Transferred Employees") until the first anniversary of the Closing Date;
provided, however, that Buyer shall be permitted to make such
<PAGE>
amendments or modifications to the Employee Benefit Plans as it deems necessary
or appropriate in order to maintain such Employee Benefit Plans in compliance
with all applicable provisions of the Code, ERISA, and any other applicable
federal, state or local laws, including, but not limited to any
nondiscrimination rules applicable to such Employee Benefit Plans; and provided,
further, that Buyer may amend, modify or terminate any or all such Employee
Benefit Plans if, in the case of an amendment or modification, such action by
Buyer does not materially reduce the benefits available to Transferred Employees
under the Employee Benefit Plans as in effect immediately prior to Closing and
if, in the case of a termination, benefits are provided under other plans or
arrangements (either already maintained or as may be newly established by the
Buyer) for the benefit of the Transferred Employees that are substantially
similar to or better than the benefits available to such Transferred Employees
under Seller's Employee Benefit Plans as in effect immediately prior to Closing
and provided further that each such other plan or arrangement established or
maintained by Buyer shall grant credit to each Transferred Employee for all
service with Seller on or prior to the Closing for vesting and eligibility
purposes. Alternatively, Buyer may, at Buyer's option, assume only the Seller's
tax qualified 401(k) retirement savings plan (referred to from time to time in
documents provided by Seller as the "C/J Research, Inc. Employee Profit Sharing
Plan," "C/J Research, Inc. Profit Sharing Plan" or the "C/J Research, Inc.
Salary Savings Plan") and such other (or none) of the Seller's Employee Benefit
Plans as Buyer deems appropriate, at its sole discretion; in which event Buyer
shall, during the period commencing as of the Closing and ending on the first
anniversary thereof, provide to the Transferred Employees, under Employee
Benefit Plans assumed by Buyer or otherwise (or through any combination of plans
or arrangements), benefits that are substantially similar to or better than the
benefits available to such Transferred Employees under Seller's Employee Benefit
Plans as in effect immediately prior to Closing. Seller shall retain full
responsibility for all Employee Benefit Plans not assumed by Buyer. With respect
to the
<PAGE>
Transferred Employees and their dependents, group health plans established or
maintained by Buyer shall (i) waive any waiting period, (ii) waive any exclusion
or limitations for preexisting conditions which were covered under any group
health plan maintained by Seller prior to Closing, and (iii) grant credit (for
purposes of annual deductibles, copayments and out of pocket expense limits) for
any covered claims incurred or payments made prior to the Closing during the
plan year in which the Closing occurs.
(e) Collection of Accounts Receivable. For a period of 120 days following
---------------------------------
the Closing, Buyer shall diligently pursue collection of the Accounts Receivable
in a manner consistent with the usual, ordinary procedures of Seller prior to
the Closing with respect to the collection of its accounts receivable, it being
acknowledged that such Accounts Receivable are the sole property of Buyer and
the proceeds of such Accounts Receivable shall be deposited into the accounts of
Buyer. During such 120 day period, Buyer shall apply payments from customers to
whom Accounts Receivable are attributable first to the payment of Accounts
Receivable designated by such customer and, to the extent not designated, to the
earliest dated activity that created the customer Account Receivable. On or
prior to the date 120 days after the Closing Date, Buyer shall prepare and
deliver to Seller a written report disclosing the amount of Accounts Receivable
collected as of the date 120 days after the Closing Date and listing the
Accounts Receivable that Buyer has not then collected as of such date. Buyer
shall have the option, exercisable at the time of the delivery of the foregoing
report, of requiring Seller to purchase any or all Accounts Receivable which
have not been collected within 120 days after the Closing Date and requiring
Seller to pay to Buyer an amount equal to the uncollected amount of such
Accounts Receivable to be purchased by Seller, which shall be paid by Seller to
Buyer within 14 days of receipt of such report. If Buyer elects to require
Seller to purchase any uncollected Accounts Receivable, Buyer shall assign to
Seller, free and clear of all liens, claims and encumbrances and effective as of
the date 120 days after the Closing Date, such uncollected
<PAGE>
Accounts Receivable inclusive of all rights to collect the same. If, at any time
following the effective date of the assignment to Seller of uncollected Accounts
Receivable, Buyer or any of its affiliates receives payment in respect of such
account, the amount received shall be promptly remitted to Seller.
(f) Further Assurances. Seller, Stockholders, Buyer and ORC agree to
------------------
execute and deliver all such other instruments and take all such other action as
any party may reasonably request from time to time, before or after Closing and
without payment of further consideration, in order to effect the transactions
provided for herein, including, without limitation, the execution and delivery
by Seller of such further instruments of conveyance and transfer as may be
necessary to convey and transfer more completely to Buyer the Assets being
purchased hereunder. The parties shall cooperate fully with each other and with
their respective counsel and accountants in connection with any steps required
to be taken as part of their respective obligations under this Agreement,
including, without limitation, the preparation of financial statements.
(g) Delivery of Property Received After Closing. From and after the
-------------------------------------------
Closing Date, (i) Buyer shall promptly transfer and deliver to Seller any cash,
checks (properly endorsed) or other property, including mail, which Buyer may
receive and which may belong to Seller, and (ii) Seller shall promptly transfer
and deliver to Buyer any cash, checks (properly endorsed) or other property,
including mail, which Seller may receive and which may belong to Buyer.
(h) Cooperation on Claims. Buyer and Seller shall cooperate in good faith
---------------------
with one another in connection with the defense or presentation by any of them
of any lawsuits or claims arising out of the conduct of Seller's business. Such
cooperation shall include (i) supplying such factual and technical information
as it shall possess as the other may reasonably require in connection with any
such defense, (ii) making available persons employed by it to testify as fact or
expert witnesses at trial and on deposition in connection with such suits, and
(iii) providing
<PAGE>
such information as may be required by it to respond to discovery proceedings in
any such lawsuits.
(i) Proration of Taxes. Buyer, ORC and Seller agree that for Tax bills
------------------
received after Closing and covering periods both before and after Closing, the
parties will cooperate, prorate and deliver all such bills, calculations and
payments, each of the other as may be required to fairly allocate the taxes and
payment thereof to the proper responsible party.
12. Miscellaneous.
--------------
(a) Guaranty. ORC hereby unconditionally guarantees to Seller and
--------
Stockholders the performance of all financial obligations of Buyer under this
Agreement.
(b) Indulgences, Etc. Neither the failure nor any delay on the part of
----------------
either party to exercise any right under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any right preclude
any other or further exercise of the same or of any other right nor shall any
waiver of any right with respect to any occurrence be construed as a waiver of
such right with respect to any other occurrence. No waiver shall be effective
unless it is in writing and is signed by the party asserted to have granted such
waiver.
(c) Controlling Law. This Agreement and all questions relating to its
----------------
validity, interpretation, performance and enforcement (including, without
limitation, provisions concerning limitations of actions), shall be governed by
and construed in accordance with the laws of the State of Illinois
(notwithstanding any conflict-of-law doctrines of either state or other
jurisdiction to the contrary), and without the aid of any canon, custom or rule
of law requiring construction against the draftsman.
(d) Notices. All notices, requests, demands and other communications
-------
required or permitted under this Agreement shall be in writing and shall be
deemed to have been duly given, made and received only when delivered
(personally, by courier service such as Federal Express, or by other messenger)
or four days following the day when deposited in the United States mails,
<PAGE>
registered or certified mail, postage prepaid, return receipt requested,
addressed as set forth below:
If to Seller or Stockholders:
Terence W. Cotter
3150 Salt Creek Lane
Arlington Heights, IL 60005-5087
and
Gary M. Cotter
3150 Salt Creek Lane
Arlington Heights, IL 60005-5087
with a copy, given in the manner prescribed above, to:
Stewart Dolin, Esquire
Sachnoff & Weaver, Ltd.
30 South Wacker Drive
29th Floor
Chicago, Illinois 60606-7484
If to Buyer or ORC:
Opinion Research Corporation
23 Orchard Road
Skillman, NJ 08542-0183
Attn: John F. Short
President and CEO
with a copy, given in the manner prescribed above, to:
David Gitlin, Esquire
Wolf, Block, Schorr and Solis-Cohen LLP
1650 Arch Street, 22nd Floor
Philadelphia, PA 19103-2097
Any party may alter the address to which communications or copies are to be
sent by giving notice of such change of address in conformity with the
provisions of this paragraph for the giving of notice.
<PAGE>
(a) Exhibits and Schedules. All Exhibits and Schedules attached hereto are
-----------------------
hereby incorporated by reference into, and made a part of, this Agreement.
(b) Binding Nature of Agreement. This Agreement shall be binding upon and
----------------------------
inure to the benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns.
(c) Provisions Separable. The provisions of this Agreement are independent of
---------------------
and separable from each other, and no provision shall be affected or rendered
invalid or unenforceable solely because any other or others of them may be
invalid or unenforceable in whole or in part.
(d) Entire Agreement. This Agreement, the Exhibits, Schedules and documents
-----------------
referred to herein contain the entire understanding among the parties hereto
with respect to the subject matter hereof, and supersedes all prior and
contemporaneous agreements and understandings, inducements or conditions,
express or implied, oral or written, except as herein contained. The express
terms hereof control and supersede any course of performance and/or usage of the
trade inconsistent with any of the terms hereof. This Agreement may not be
modified or amended other than by a signed agreement in writing.
(e) Counterparts. This Agreement may be executed in one or more counterparts,
------------
each of which when so executed shall be deemed an original of this Agreement and
all of which together shall constitute one and the same agreement. Delivery of
an executed counterpart of a signature page to this Agreement by telecopier
shall be as effective as delivery of a manually executed counterpart of this
Agreement, and delivery by telecopier of an executed counterpart of any
amendment or waiver of any provision of this Agreement to be executed and
delivered hereunder shall be as effective as delivery of a manually executed
counterpart thereof.
(f) Expenses. All expenses incurred by the parties hereto in connection with
--------
or related to this Agreement and the transactions contemplated hereby, including
without limitation,
<PAGE>
all expenses of counsel and accountants employed by the parties, shall be borne
solely and entirely by the party which has incurred such expense.
(g) Assignment. This Agreement may not be assigned by any party hereto without
----------
the prior written consent of the other parties hereto; provided, however, that
-------- -------
(i) Seller may assign its rights and obligations hereunder to Stockholders upon
the liquidation and dissolution of the Company, or in contemplation thereof,
without the prior written consent of Buyer or ORC, (ii) Buyer may assign its
rights and obligations hereunder to ORC or to any other entity controlling,
controlled by, or under common control with, ORC and (iii) Buyer may
collaterally assign its rights to a lender providing financing for the
consummation of the transactions contemplated herein.
(h) Paragraph Headings. The paragraph headings in this Agreement are for
-------------------
convenience only; they form no part of this Agreement and shall not affect its
interpretation.
(i) Arbitration. Except in the event of the need for equitable relief from a
------------
court of competent jurisdiction, and except for enforcement of a party's
remedies to the extent such enforcement must be pursuant to a court order under
applicable law, any dispute between the parties hereto or under any other
document, instrument or writing executed pursuant to this Agreement shall be
resolved, by arbitration before three arbitrators pursuant to the rules of the
American Arbitration Association. Any dispute for arbitration brought by Seller
or any Stockholder against Buyer or ORC shall be arbitrated in Philadelphia,
Pennsylvania. Any dispute for arbitration brought by Buyer or ORC against Seller
or any Stockholder shall be arbitrated in Chicago, Illinois. The arbitrators
shall be selected by a joint agreement of the parties; provided that if they do
not so agree within 20 days of the date of the request for arbitration, the
selection shall be made pursuant to the rules of the American Arbitration
Association. The award rendered by the arbitrators shall be conclusive and
binding upon the parties hereto and shall be accompanied by a written opinion of
the arbitrators giving the reason
<PAGE>
therefor. The non-prevailing party shall pay all of the expenses of each party
to the arbitration, including the expenses of the arbitrators and reasonable
attorneys' fees to the extent so determined by the arbitrators. Nothing in this
Agreement shall prevent the parties hereto from settling any dispute by mutual
agreement at any time.
(j) Consent to Jurisdiction, Service of Process, Appointment of Agent.
-----------------------------------------------------------------
(i) Any court action brought by Seller or any Stockholder against Buyer or
ORC shall be adjudicated solely by any Federal court sitting in the City of
Philadelphia, Pennsylvania. Any court action brought by Buyer against Seller or
any Stockholder shall be adjudicated solely by any Federal court sitting in the
City of Chicago, Illinois. Buyer, ORC, Seller and Stockholders hereby
irrevocably submit to the jurisdiction of such courts and waive, to the fullest
extent permitted by applicable law, any objection which it, they or any of them
may now have or hereafter have to the laying of the venue of any such suit,
action or proceeding brought in such courts and any claim that any such suit,
action or proceeding brought in such courts has been brought in an inconvenient
forum. Buyer, ORC, Seller and each of Stockholders agrees that, to the fullest
extent permitted by applicable law, a final judgment in any such suit, action,
or proceeding brought in such courts shall be conclusive and binding upon the
Buyer, ORC, or Seller or Stockholders, as the case may be, and may be enforced
in any courts of the jurisdiction of which the Buyer, ORC, or Seller or
Stockholders, as the case may be, are or may be subject by a suit upon such
judgment, provided that service or process is effected upon the Buyer, ORC,
Seller or Stockholders, as the case may be, in one of the manners specified in
subparagraph (ii) below or as otherwise permitted by applicable law.
(ii) Each of Seller, Stockholders, Buyer and ORC hereby consents to process
being served in any suit, action or proceeding of the nature referred to in
subparagraph (m) or (n)(i) above by the mailing of a copy thereof by registered
or certified first-class air mail, postage
<PAGE>
prepaid, return receipt requested, to such party at its or his address set forth
opposite their respective name on Schedule 12(n)(i).
(k) Gender, Etc. Words used herein, regardless of the number and gender
------------
specifically used, shall be deemed and construed to include any other number,
singular or plural, and any other gender, masculine, feminine or neuter, as the
context indicates is appropriate.
(l) Number of Days. In computing the number of days for purposes of this
---------------
Agreement, all days shall be counted, including Saturdays, Sundays and holidays;
provided, however, that if the final day of any time period falls on a Saturday,
Sunday or holiday on which federal banks are or may elect to be closed, then the
final day shall be deemed to be the next day which is not a Saturday, Sunday or
such holiday.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered on the date first above written.
ORC CONSUMER, INC.
By: /s/ Kevin P. Croke
----------------------------
Kevin P. Croke
Secretary
OPINION RESEARCH CORPORATION
By: /s/ Douglas L. Cox
----------------------------
Chief Financial Officer
C/J RESEARCH, INC.
By: /s/ Terence W. Cotter
----------------------------
Name: Terence W. Cotter
Title: President
STOCKHOLDERS
/s/ Terence W. Cotter
-------------------------------
Terence W. Cotter
/s/ Gary M. Cotter
-------------------------------
Gary M. Cotter