Agreement Not to Compete - Opinion Research Corp., ORC Consumer Inc. and C/J Research Inc.
AGREEMENT NOT TO COMPETE
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THIS AGREEMENT is made as of the 31/st/ day of August, 2000, among Opinion
Research Corporation, a Delaware Corporation ("ORC"), ORC Consumer, Inc., a
Delaware Corporation (the "Corporation") and C/J Research, Inc. ("Seller").
W I T N E S S E T H:
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WHEREAS, the Corporation, ORC, Seller, Terence W. Cotter and Gary M. Cotter
have entered into an Asset Purchase Agreement of even date herewith providing
for the purchase of certain of the assets and the assumption of certain of the
liabilities of Seller by Corporation (the "Asset Purchase Agreement"); and
WHEREAS, the Corporation has entered into Employment Agreements of even
date herewith with Terence W. Cotter, Gary M. Cotter and certain other key
executives (the "Employment Agreements" and, collectively with the Asset
Purchase Agreement, the "Acquisition Agreements"); and
WHEREAS, as a material and significant inducement to the Corporation and
ORC to enter into and consummate the transactions set forth in the Acquisition
Agreements, Seller has agreed not to compete with the Corporation or ORC or use
or divulge certain information with respect to the business of the Corporation
or ORC pursuant to the following terms and conditions:
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, and as a condition to the obligations of the Corporation
and ORC to consummate the transactions contemplated in the Acquisition
Agreements, the parties, each intending to be legally bound, agree as follows:
1. Non-Competition, Non-Disclosure of Trade Secrets.
(a) Seller agrees that, except as set forth herein, for a period of five
years from the date hereof, Seller shall not, directly or indirectly:
(i) solicit, induce or encourage any employee of the Corporation or
ORC, to terminate his or her relationship with the Corporation or ORC; or
(ii) employ or establish a business relationship with, or encourage or
assist any individual or entity to employ or establish a business relationship
with, any individual who was employed by the Corporation or ORC during the
preceding twelve month period; or
(iii) solicit, induce or encourage any Clients (as hereinafter defined)
or Prospective Clients (as hereinafter defined) to terminate or reduce in scope
their relationship with the Corporation or ORC; or
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(iv) solicit or assist any individual or entity in the solicitation of
any Clients or Prospective Clients of the Corporation or ORC for the purpose of
providing any products and/or services that are the same or substantially
similar to the products and services provided by the Corporation or ORC as of
the date hereof or at any time during such five year period.
(b) For purposes of this Paragraph 1,
(i) "Clients" shall mean those clients for whom the Corporation or
ORC performed services during the preceding twelve months, and
(ii) "Prospective Clients" shall mean persons or entities whose
business was solicited by the Corporation or ORC during the preceding twelve
months, and
(iii) "preceding twelve" months shall mean the twelve months
immediately preceding the date the allegedly proscribed act took place.
(c) Seller shall not use for its benefit, or disclose, communicate or
divulge to, or use for the direct or indirect benefit of any person, firm,
association or company (other than ORC, the Corporation or their subsidiaries,
(i) any information regarding the business methods, business policies, business
strategies, marketing plans, survey procedures, statistical techniques, research
or development projects or results, trade secrets or confidential data or
processes of, or developed by, the Corporation or ORC, or (ii) any confidential
data on or relating to Clients or Prospective Clients of the Corporation or ORC,
or (iii) budgets, forecasts, pricing information or unpublished financial
information or other confidential information or data relating to or dealing
with the business operations or activities of the Corporation or ORC. The
obligations of Seller under this Agreement Not to Compete shall not relate to
information or data: (x) that is now or hereafter becomes known to the public
through sources independent of Seller, and neither directly nor indirectly
through any fault of Seller; or (y) which must be disclosed pursuant to a court
order or otherwise as required by law provided, however, that Seller shall give
prior written notice of such anticipated disclosure to the Corporation and
reasonably cooperate with the Corporation in seeking to obtain a protective
order, at no cost to Seller.
(d) Seller, the Corporation and ORC acknowledge and agree that (i) the
covenants set forth herein are essential elements of the transactions
contemplated by the Acquisition Agreements, that Seller is receiving adequate
consideration thereunder, and that such covenants are reasonable and necessary
in order to protect the legitimate interests of the Corporation and ORC; (ii)
the Corporation and ORC will not have any adequate remedy at law if Seller
violates the terms hereof or fails to perform any of its obligations hereunder;
and (iii) the Corporation and ORC shall have the right, in addition to any other
rights either may have under applicable law, to obtain from any court of
competent jurisdiction preliminary and permanent injunctive relief to restrain
any breach or threatened breach of, or otherwise to specifically enforce any
such covenant or any other obligations of Seller under this Agreement, as well
as to obtain damages and an equitable accounting of all earnings, profits and
other benefits arising from such violation,
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which rights shall be cumulative and in addition to any other rights or remedies
to which ORC or the Corporation may be entitled.
(e) If the period of time or scope of any restriction set forth on
Paragraph 1 (a) should be adjudged unreasonable in any proceeding, then the
period of time shall be reduced by such number of months or the territory shall
be reduced by the elimination of such unreasonable portion thereof, or both, so
that such restrictions may be enforceable for such time and in the manner
adjudged to be reasonable. If Seller violates any of the restrictions contained
in Paragraph 1 (a), then the restrictive period shall not run in favor of Seller
from the time of the commencement of any such violation until such time as such
violation shall be cured by Seller.
2. Miscellaneous
(a) Indulgences, Etc. Neither the failure nor any delay on
the part of the Seller, the Corporation or ORC to exercise any right, remedy,
power or privilege under this Agreement (a "Right") 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
against the Seller, the Corporation or ORC unless it is in writing and is signed
by the Seller, the Corporation or ORC, as the case may be.
(b) 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 by facsimile transmission and followed promptly by mail) or four
days following the day when deposited in the United States mails, registered or
certified mail, postage prepaid, return receipt requested, addressed as set
forth below:
If to Seller:
Cotter Research, Inc.
3150 Salt Creek Lane
Arlington Heights, IL 60005-5087
Attention: Gary M. Cotter
Telephone: 847-253-1100
Telecopier: 847-253-1587
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with a copy, given in the manner prescribed
above, to:
Stewart Dolin, Esquire
Sachnoff & Weaver, Ltd.
30 South Wacker Drive, Suite 2900
Chicago, IL 60606
Telephone: 312-207-1000
Telecopier: 312-207-6400
If to ORC or Corporation:
23 Orchard Road
Skillman, NJ 08558
Attention: John F. Short
Telephone: 908-281-5100
Telecopier: 908-281-5105
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
Telephone: 215-977-2284
Telecopier: 215-977-2740
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.
(c) Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(d) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Illinois.
(e) Binding Nature of Agreement. This Agreement shall be binding upon
and inure to the benefit of the Corporation, ORC, Seller and their respective
successors, assigns, heirs and legal representatives.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
OPINION RESEARCH CORPORATION
By: /s/ Douglas L. Cox
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Name: Douglas L. Cox
Title: Chief Financial Officer
ORC CONSUMER, INC.
By: /s/ Kevin Croke
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Name: Kevin Croke
Title: Secretary
C/J RESEARCH, INC.
By: /s/ Terence W. Cotter
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Name: Terence Cotter
Title: President