Agreement Not to Compete - Opinion Research Corp., ORC Consumer Inc. and Terence W. Cotter
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 Terence W. Cotter ("Executive").
W I T N E S S E T H:
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WHEREAS, the Corporation, ORC, C/J Research, Inc. ("C/J Research"), Gary M.
Cotter and Executive 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 C/J Research by Corporation (the "Asset
Purchase Agreement"); and
WHEREAS, the Corporation and Executive have entered into an Employment
Agreement of even date herewith (the "Employment Agreement" and, collectively
with the Asset Purchase Agreement, the "Acquisition Agreements"); and
WHEREAS, the Corporation wishes to employ Executive for his knowledge and
expertise; 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, Executive 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) Executive agrees that, except as set forth herein, for a period of
forty-two months from the date hereof, 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 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
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(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 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 anytime during the period in which the Executive is
employed by 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 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) Executive shall not use for his 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 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 Executive 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 Executive and neither
directly nor indirectly through any fault of Executive; or (y) which must be
disclosed pursuant to a court order or otherwise as required by law provided,
however, that Executive 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 the Executive.
(d) Executive, 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 Executive 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 Executive
violates the terms hereof or fails to perform any of his obligations hereunder;
and (iii)
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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 Executive 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 Executive violates any of the restrictions
contained in Paragraph 1(a), then the restrictive period shall not run in favor
of Executive from the time of the commencement of any such violation until such
time as such violation shall be cured by Executive.
2. Miscellaneous.
(a) Indulgences, Etc. Neither the failure nor any delay on
the part of the Executive, 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 Executive, the Corporation or ORC unless it is in writing and is
signed by the Executive, 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 Executive:
Terence W. Cotter
3150 Salt Creek Lane
Arlington Heights, IL 60005
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
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, Executive 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 P. Croke
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Name: Kevin P. Croke
Title: Secretary
/s/ Terence W. Cotter (SEAL)
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Terence W. Cotter