Agreement Not to Compete - Opinion Research Corp. and ORC Consumer Inc.
AGREEMENT NOT TO COMPETE
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THIS AGREEMENT is made as of the day of August, 2000, among Opinion
Research Corporation, a Delaware Corporation ("ORC"), ORC Consumer, Inc., a
Delaware Corporation (the "Corporation"), and _____________ ("Employee"), to
become effective (the "Effective Date") upon the consummation of the sale of all
or substantially all of the assets and business of C/J Research, Inc. ("C/J
Research") to the Employer (the "Closing") and the consummation of the
Employment Agreement (as defined herein). If the Closing and the Employment
Agreement are not consummated on or prior to August 31, 2000, this Agreement
shall be void and of no further effect.
W I T N E S S E T H:
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WHEREAS, the Corporation is acquiring substantially all of the assets and
the business of C/J Research; and
WHEREAS, the Employee has been employed by C/J Research and, upon the
Closing, the Corporation and Employee will have entered into an Employment
Agreement effective of even date herewith (the "Employment Agreement"); and
WHEREAS, as a material and significant inducement to the Corporation to
enter into and consummate the Employment Agreement, Employee 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
to consummate the Employment Agreement, the execution of which is an express
condition precedent to the execution of this Agreement, the parties, each
intending to be legally bound, agree as follows:
1. Non-Competition, Non-Disclosure of Trade Secrets.
(a) Employee agrees that, except as set forth herein, during the
term of her employment with the Corporation and for a period of twelve (12)
months following the termination of her employment with the Corporation, he
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
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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
(iv) solicit or assist any individual or entity in the
solicitation of business from, or performance of work for, any Clients
or Prospective Clients of the Corporation or ORC.
(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
(i) whom the Corporation, ORC or C/J Research has contacted during the
preceding twelve months or (ii) for whom the Corporation, ORC or C/J
Research has prepared or is in the process of preparing a written
proposal or communication. The foregoing shall not include a general
solicitation conducted by the Corporation, ORC or C/J Research, and
(iii) "preceding twelve months" shall mean the twelve months
immediately preceding the date the allegedly proscribed act took
place.
(c) Employee shall not use for her personal 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, ORC or C/J Research, or (ii) any
confidential data on or relating to Clients or Prospective Clients of the
Corporation, ORC or C/J Research, 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, ORC or C/J Research. The obligations of
Employee 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 Employee which are entitled to
disclose such information, and neither directly nor indirectly through any
fault of Employee; (y) that was in the possession of Employee prior to the
commencement of her employment with C/J Research; or (z) which must be
disclosed pursuant to a court order or otherwise as required by law
provided, however, that Employee shall give prior written notice of such
anticipated disclosure to the Corporation and cooperate with the
Corporation in seeking to obtain a protective order.
(d) Employee, the Corporation and ORC acknowledge and agree
that (i) the covenants set forth herein are essential elements of the
execution of the
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Employment Agreement, that Employee 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 Employee
violates the terms hereof or fails to perform any of her 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 Employee under this Agreement, as well as to obtain damages
and an equitable accounting of all earnings, profits and other benefits
arising from such violation, 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 Employee violates any
of the restrictions contained in Paragraph 1(a), then the restrictive
period shall not run in favor of Employee from the time of the commencement
of any such violation until such time as such violation shall be cured by
Employee.
2. Miscellaneous.
(a) Indulgences, Etc. Neither the failure nor any delay on the
part of the Employee, 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 Employee, the Corporation or ORC
unless it is in writing and is signed by the Employee, 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 Employee:
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_________________________
_________________________
If to ORC or Corporation:
23 Orchard Road
Skillman, NJ 08558
Attention: John F. Short
Telephone: 908-281-5100
Fax: 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
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.
1. 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.
2. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois.
3. Binding Nature of Agreement. This Agreement shall be binding
upon and inure to the benefit of the Corporation, ORC, Employee 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:_______________________
Name:______________________
Title:_____________________
ORC CONSUMER, INC.
By:_______________________
Name:______________________
Title:_____________________
______________________________(SEAL)