Employment Agreement - Opinion Research Corp. and Michael R. Cooper
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of this 1st day
of November, 1996, by and between OPINION RESEARCH CORPORATION, a Delaware
Corporation (the "Company"), and MICHAEL R. COOPER (the "Executive").
W I T N E S S E T H:
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WHEREAS, the Company believes that it would benefit from the
application of the Executive's particular and unique skill, experience and
background to the management and operation of the Company, and wishes to employ
the Executive as Chief Executive Officer of the Company ("CEO"); and
WHEREAS, the parties desire by this Agreement to set forth the terms
and conditions of the employment relationship between the Company and the
Executive.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants in this Agreement, the Company and the Executive agree as follows:
1. Employment and Duties. The Company hereby employs the Executive
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as CEO on the terms and conditions provided in this Agreement and Executive
agrees to accept such employment subject to the terms and conditions of this
Agreement. The Executive shall perform the duties and responsibilities as are
customary for the officer of a corporation in such position, and shall perform
such other duties and responsibilities as are
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reasonably determined from time to time by the Board of Directors of the Company
(the "Board"). The Executive agrees to devote his best efforts and substantially
all of his time, attention, energy, and skill to performing the duties of CEO.
Provided that such activities shall not violate any provision of this Agreement
or materially interfere with his performance of his duties hereunder, nothing
herein shall prohibit the Executive (a) from participating in any other business
activities approved in advance by the non-management members of Board in
accordance with any terms and conditions of such approval, such approval not to
be unreasonably withheld or delayed, (b) from engaging in charitable, civic,
fraternal, or trade group activities, or (c) from investing his assets in other
entities or business ventures. The Executive shall be based at the Company's
offices in Skillman, New Jersey or such other place that shall constitute the
Company's headquarters, although he may perform such duties and
responsibilities, consistent with his obligations hereunder, from any other
location, and except for business travel incident to his employment under this
Agreement, the Company agrees the Executive shall not be required to relocate.
2. Term. The term of this Agreement shall be for five years (the
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"Initial Term"), commencing on the date hereof (the "Effective Date"), and
expiring on the day preceding the fifth anniversary of the Effective Date (the
"Termination Date"), unless extended by mutual agreement of the parties or
earlier terminated in accordance with the terms of this Agreement. This
Agreement shall continue in full force and effect for additional terms of 30
months each after the expiration of the Initial Term (the "Extended Term"),
unless either party shall give the other party before the commencement of any
such year at least 30 months prior written notice of such party's intention to
terminate this Agreement.
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3. Compensation. As compensation for performing the services
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required by this Agreement, and during the term of this Agreement, the Executive
shall be compensated as follows:
(a) Base Compensation. The Company shall pay to the Executive
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an annual salary ("Base Compensation") of $390,000, payable in equal
installments pursuant to the Company's customary payroll procedures in effect
for its executive personnel at the time of payment, but in no event less
frequently than monthly, subject to withholding for applicable federal, state,
and local taxes. The Executive shall be entitled to increases in Base
Compensation and bonuses with respect to each fiscal year during the term of
this Agreement, to be determined by the Compensation Committee of the Board
based on periodic reviews of the Executive's performance conducted on at least
an annual basis. The Executive's Base Compensation shall not be reduced during
the term of this Agreement.
(b) Incentive Compensation. In addition to Base Compensation,
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the Executive shall receive additional compensation ("Incentive Compensation).
The Incentive Compensation shall be pursuant to short-term and/or long-term
incentive compensation programs which shall be established by the Compensation
Committee of the Board. For purposes of this Agreement, the Executive's "Pro
Rata Share" of Incentive Compensation for any fiscal year of the Company shall
be a fraction whose numerator shall be equal to the number of months (or parts
of months) during which the Executive was actually employed by the Company
during any such fiscal year and whose denominator shall be the total number of
months in such fiscal year.
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4. Employee Benefits. During the term of this Agreement and subject
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to the limitations set forth in this Section 4, the Executive and his eligible
dependents shall have the right to participate in any retirement plans
(qualified and non-qualified), pension, insurance, health, disability or other
benefit plan or program that has been or is hereafter adopted by the Company (or
in which the Company participates), according to the terms of such plan or
program, on terms no less favorable than the most favorable terms granted to
senior executives of the Company.
5. Vacation and Leaves of Absence. The Executive shall be entitled
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to the normal and customary amount of paid vacation provided to senior executive
officers of the Company, but in no event less than 25 days during each 12 month
period, beginning on the Effective Date of this Agreement. Any vacation days
that are not taken in a given 12 month period shall not accrue or carry over
from year to year. Upon any termination of this Agreement for any reason
whatsoever, accrued and unused vacation for the year in which this Agreement
terminates will be paid to the Executive within 10 days of such termination
based on his annual rate of Base Compensation in effect on the date of such
termination. In addition, the Executive may be granted leaves of absence with
or without pay for such valid and legitimate reasons as the Board in its sole
and absolute discretion may determine, and is entitled to the same sick leave
and holidays provided to other senior executive officers of the Company.
6. Expenses.
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(a) Business Expenses. The Executive shall be promptly
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reimbursed against presentation of vouchers or receipts for all reasonable and
necessary expenses incurred
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by him in connection with the performance of business-related duties as well as
for membership fees in the country club of his choice.
(b) Automobile Expense. During the term of this Agreement, in
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order to facilitate the performance of the Executive's duties hereunder, and
otherwise for the convenience of the Company, the Company shall provide the
Executive with an automobile allowance of $1,500 per month.
7. Indemnification. The Company shall (and is hereby obligated to)
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indemnify (including advance payment of expenses) the Executive in each and
every situation where the Company is obligated to make such indemnification
pursuant to applicable law and the relevant portions of the Company's
Certificate of Incorporation and By-Laws. The Company shall indemnify the
Executive, including payment of attorneys' fees and expenses, in each and every
situation where, under applicable law, the Company is not obligated, but is
nevertheless permitted or empowered, to make such indemnification.
8. Termination and Termination Benefits.
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(a) Termination by the Company.
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(i) With Cause. The Company may terminate this
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Agreement prior to its expiration date only with "cause". In such event, the
Executive shall be paid his Base Compensation, and the benefits pursuant to
Section 4 hereof up to the effective date of such termination. For purposes of
this Section 8(a), "cause" shall mean (A) an act of dishonesty by Executive
constituting a felony and resulting or intended to result in gain to or personal
enrichment of Executive at Company's expense, (B) the willful engaging
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by Executive in misconduct which is injurious to the Company, and (C) the
deliberate and intentional refusal of Executive substantially to perform his
duties hereunder.
(ii) Disability. If due to illness, physical or mental
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disability, or other incapacity, the Executive shall fail, for a total of any
six consecutive months ("Disability"), to perform the principal duties required
by this Agreement, the Company may terminate this Agreement upon 30 days'
written notice to the Executive. In such event, the Executive shall be (A) paid
his Base Compensation until the expiration of this Agreement and his Pro Rata
Share of any Incentive Compensation payable to him for the year in which the
termination occurs, and (B) provided with employee benefits pursuant to Section
4, to the extent available, until the expiration of this Agreement. For purposes
of this subsection, "expiration of this Agreement" shall mean the later of (A)
the Termination Date or (B) the last day of any Extended Term in effect on the
date the Executive becomes disabled; provided, that any such Extended Term shall
terminate on the day preceding the anniversary of the Effective Date which
coincides with or follows the Executive's Disability.
(b) Termination by the Executive. The Executive may terminate
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this Agreement for "cause" upon 30 days' written notice to the Company (during
which period the Executive shall, if requested in writing by the Company,
continue to perform his duties as specified under this Agreement). For purposes
of this Agreement, if the Executive's employment is terminated by the Company
without cause (as defined in Section 8(a)(i) above), or if the Company shall
fail to renew the term of this Agreement after the Initial Term or any Extended
Term, it shall be deemed as though the Executive terminated this Agreement for
cause under this Section 8(b). In such event, the Executive shall be paid his
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Base Compensation up to the effective date of such termination and his full
share of any Incentive Compensation payable to him for the year in which the
termination occurs as well as the additional termination compensation set forth
in Section 8(c) below. For purposes of the Executive's termination of this
Agreement for cause under this Section 8(b), "cause" includes (W) the Company's
failure to make any of the payments or provide any of the benefits to the
Executive under this Agreement, (X) a material alteration in the scope of the
Executive's responsibilities and duties as CEO of the Company, (Y) the Company's
determination to relocate the Executive's primary workplace beyond a 100 mile
radius of Skillman, New Jersey, or (Z) the Company's material breach of any
provision of this Agreement or violation of any applicable criminal law not due
to the Executive's gross negligence or willful fault.
(c) Additional Termination Compensation. In the event of a
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termination of this Agreement pursuant to Section 8(b), the Company, in addition
to paying the Executive his Base Compensation and Incentive Compensation as
hereinabove provided, shall pay to the Executive a lump sum payment equal to
five times the Executive's annual Base Compensation (hereinafter "Termination
Compensation"). Payment of Termination Compensation shall be paid no later than
14 days following the effective date of the Executive's termination.
(d) Registration Rights. In the event of a termination of this
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Agreement pursuant to Section 8(b), the Executive shall be entitled to the
registration rights set forth in Exhibit "A" to this Agreement.
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(e) Death Benefit. Notwithstanding any other provision of this
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Agreement, this Agreement shall terminate on the date of the Executive's death.
In such event the Executive's estate shall be paid his Base Compensation for the
remainder of the month in which such termination occurs and his Pro Rata Share
of any Incentive Compensation payable to him for the year in which such
termination occurs.
(f) No Mitigation. The Executive shall not be required to
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mitigate the amount of any payments provided for by this Agreement by seeking
employment or otherwise, nor shall the amount of any payment or benefit provided
in this Agreement be reduced by any compensation or benefit earned by the
Executive after termination of his employment.
9. Miscellaneous.
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(a) Integration; Amendment. This Agreement (including the
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definitions contained in the Registration Statement) constitutes the entire
agreement between the parties hereto with respect to the matters set forth
herein and supersedes and renders of no force and effect all prior
understandings and agreements between the parties with respect to the matters
set forth herein, except that nothing contained in this Agreement shall affect
that certain Non-Competition Agreement entered into by the Executive on August
1, 1991. No amendments or additions to this Agreement shall be binding unless in
writing and signed by both parties.
(b) Severability. If any part of this Agreement is contrary to,
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prohibited by, or deemed invalid under applicable law or regulations, such
provision shall be inapplicable and deemed omitted to the extent so contrary,
prohibited, or invalid, but the
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remainder of this Agreement shall not be invalid and shall be given full force
and effect so far as possible.
(c) Waivers. The failure or delay of any party at any time to
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require performance by the other party of any provision of this Agreement, even
if known, shall not affect the right of such party to require performance of
that provision or to exercise any right, power, or remedy hereunder, and any
waiver by any party of any breach of any provision of this Agreement shall not
be construed as a waiver of any continuing or succeeding breach of such
provision, a waiver of the provision itself, or a waiver of any right, power, or
remedy under this Agreement. No notice to or demand on any party in any case
shall, of itself, entitle such party to the other or further notice or demand in
similar or other circumstances.
(d) Power and Authority. The Company represents and warrants
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to the Executive that it has the requisite corporate power, to enter into this
Agreement and perform the terms hereof; and that the execution, delivery and
performance of this Agreement by it has been duly authorized by all appropriate
corporate action; and this Agreement represents the valid and legally binding
obligation of the Company and is enforceable against it in accordance with its
terms.
(e) Burden and Benefit; Survival. This Agreement shall be
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binding upon and inure to the benefit of the parties hereto and their respective
heirs, executors, personal and legal representatives, successors and, assigns.
In addition to, and not in limitation of anything contained in this Agreement,
it is expressly understood and agreed that
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the Company's obligation to pay termination compensation set forth herein shall
survive any termination of this Agreement.
(f) Governing Law; Headings. Except as set forth in Section
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6, this Agreement and its construction, performance, and enforceability shall be
governed by, and construed in accordance with, the laws of the State of New
Jersey. Headings and titles herein are included solely for convenience and shall
not affect, or be used in connection with, the interpretation of this Agreement.
(g) Notices. All notices called for under this Agreement
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shall be in writing and shall be deemed given upon receipt if delivered
personally or by facsimile transmission and followed promptly by mail, or mailed
by registered or certified mail (return receipt requested), postage prepaid, to
the parties at the following addresses (or at such other address for a party as
shall be specified by like notice; provided that notices of a change of address
shall be effective only upon receipt thereof):
If to the Executive:
Michael R. Cooper, Ph.D.
44 Copper Vail Court
Princeton, New Jersey 08540
If to the Company:
Opinion Research Corporation
23 Orchard Road
Skillman, New Jersey 08558
Attention: Board of Directors
or to any other address or addressee as any party entitled to receive notice
under this Agreement shall designate, from time to time, to others in the manner
provided in this Section 9(g) for the service of Notices.
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Any notice delivered to the party hereto to whom it is addressed
shall be deemed to have been given and received on the day it was received;
provided, however, that if such day is not a business day then the notice shall
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be deemed to have been given and received on the business day next following
such day. Any notice sent by facsimile transmission shall be deemed to have been
given and received on the business day next following the day of transmission.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first above written.
OPINION RESEARCH CORPORATION
By: /s/ John F. Short
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John F. Short
Vice Chairman
/s/ Michael R. Cooper, Ph.D.
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Michael R. Cooper, Ph.D.
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Exhibit "A"
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Registration Rights
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(a) Definition of Registration Stock. "Registration Stock" shall
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mean the shares of Common Stock of the Company then owned by the Executive;
provided, however, that Registration Stock shall not include any such shares
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which are then freely transferable under the Securities Act.
(b) Piggyback Registration. If the Company shall seek to
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register under the Securities Act of 1933, as amended (the "Securities Act") or
qualify any of its Common Stock (except in connection with any stock option
plan, stock purchase plan, savings or similar plan or an acquisition, merger or
exchange of stock) and if the form of registration statement proposed to be used
may be used for the registration of the Registration Stock, then, on each such
occasion, the Company shall furnish the Executive with at least 30 days' prior
written notice thereof. At the written request of any of the Executive, given
within 20 days after the receipt of such notice, the Company will use its best
efforts to cause all of the Registration Stock for which registration shall have
been requested to be included in such registration statement. Notwithstanding
the foregoing, in the event any registration pursuant to this Section (b) is an
underwritten offering, the number of shares of Registration Stock to be included
in such underwriting shall be subject to the discretion of the managing
underwriter of such offering to the extent such managing underwriter is of the
opinion that such inclusion will adversely affect the marketing of the
securities to be sold by the Company therein. The Company may withdraw any
registration statement referred to in this Section (b) for any reason whatsoever
without thereby incurring any liability to the Executive.
(c) Demand Registration. If at any time after the Company is
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entitled to register its Common Stock under the Securities Act on Form S-3 or
any other form hereafter adopted by the Commission to take the place of Form S-
3, the Company shall be requested in writing by the Executive to effect the
registration under the Act of any of the Registration Stock, the Company shall
expeditiously use its best efforts to effect the registration on Form S-3 of all
shares of Registration Stock which the Company has been requested to register.
The Company shall not be required to effect a registration pursuant to a request
made under this Section (c) on any other form of registration statement other
than a Form S-3 (or any successor form) or if registration statements covering a
total of two Securities Act registrations shall already have been filed with and
made effective by the Commission pursuant to requests under this Section (c).
The underwriter, if any, for any registration pursuant to this Section (c) shall
be mutually acceptable to the Company and the Executive.
(d) Further Obligations of the Company. Whenever the Company is
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required to register any of the Registration Stock pursuant to any of the
provisions hereof, the Company shall also be obligated to do the following:
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(i) Prepare for filing with the Commission such
amendments and supplements to said registration statement and the prospectus
used in connection therewith as may be necessary to keep said registration
statement effective and to comply with the provisions of the Securities Act with
respect to the sale of securities covered by said registration statement for the
period necessary (but in no event more than nine months) to complete the
proposed public offering;
(ii) Furnish to the Executive such copies of
preliminary and final prospectus and such other documents as the Executive may
reasonably request to facilitate the public offering of his Registration Stock;
(iii) Use its best efforts to register or qualify
the Registration Stock covered by said registration statement under the
securities or Blue Sky laws of such jurisdictions as the Executive may
reasonably request; and
(iv) Furnish to the Executive a copy of all
documents filed and all correspondence to or from the Securities and Exchange
Commission in connection with any such offering .
(d) Expenses. All expenses in connection with the
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preparation and filing of any registration statement hereunder, any registration
or qualification under the securities or Blue Sky laws of states in which the
offering will be made under such registration statement, and any filing fee of
the National Association of Securities Dealers, Inc. relating to such offering,
shall be borne in full by the Company, except for (i) any underwriters' or
brokers' fees or commissions; (ii) expenses and fees required to be paid by a
selling shareholder rather than the Company in order to comply with applicable
Blue Sky or state securities laws; (iii) fees and expenses of the Executive's
counsel and other advisors.
(e) Indemnification.
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(i) The Company shall indemnify the Executive,
and, to the extent required in any agreement with any underwriter or broker-
dealer through whom the Registration Stock may be sold, any such underwriter or
broker-dealer and each person, if any, who controls any such underwriter or
broker-dealer (within the meaning of the Securities Act) against all losses,
claims, damages, liabilities, expenses or actions in respect thereof (under the
Act or common law or otherwise) caused by any untrue statement or alleged untrue
statement of a material fact contained in any registration statement under which
such Registration Stock was registered under the Act, any preliminary or final
prospectus contained therein, or any amendment or supplement thereto, or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading;
and will reimburse the Executive for any legal or other out-of-pocket expenses
reasonably incurred by him in connection with investigating or defending against
such loss, claim, damage, liability or action; except insofar as such losses,
claims, damages, liabilities or expenses are caused by any untrue statement or
omission contained in information furnished in writing to the Company by the
Executive for use therein.
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(ii) In connection with any such registration
statement, the Executive will furnish the Company in writing such information as
may reasonably be requested by the Company for use in any such registration
statement or prospectus and will indemnify the Company, its directors and
officers, and, to the extent required in any agreement with any underwriter or
broker-dealer, each such underwriter or broker-dealer and each person, if any,
who controls the Company or any underwriter or broker-dealer (within the meaning
of the Securities Act) against any losses, claims, damages, liabilities,
expenses and actions in respect thereof (under the Act or common law or
otherwise) caused by any untrue statement or alleged untrue statement of a
material fact contained in such registration statement or prospectus, or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading;
and will reimburse the Company for any legal or other out-of-pocket expenses
reasonably incurred by it in connection with investigating or defending against
such loss, claim, damage, liability or action; but only to the extent that such
untrue statement or omission was contained in information so furnished in
writing by the Executive for use therein, and only to the extent of proceeds
received by the Executive in the offering. The Company further agrees that, in
connection with any underwritten public offering, it also will enter into
customary contribution arrangements with the Executive and the underwriters or
broker-dealers through whom the Registration Stock may be sold, with respect to
situations in which indemnification is potentially unavailable.
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