Agreement Not to Compete - Opinion Research Corp., Macro International inc. and Frank J. Quirk
AGREEMENT NOT TO COMPETE
THIS AGREEMENT is made as of the 20th day of April, 1999, among Opinion
Research Corporation, a Delaware Corporation ("ORC"), Macro International Inc.,
a Delaware Corporation (the "Corporation") and Frank J. Quirk ("Quirk").
W I T N E S S E T H:
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WHEREAS, a proposed Stock Purchase Agreement between ORC, as the buyer, and
Quirk and all or substantially all of the stockholders of the Corporation, as
the sellers, providing for the sale of all or substantially all of the issued
and outstanding shares of the outstanding capital stock of the Corporation to
ORC is being circulated for signature contemporaneously with execution of this
Agreement (the "Stock Purchase Agreement"); and
WHEREAS, the Corporation and Quirk have entered into an Employment
Agreement of even date herewith which, in general, is to be effective upon
consummation of closing under the Stock Purchase Agreement (the "Employment
Agreement" and, collectively with the Stock Purchase Agreement, the "Acquisition
Agreements"); and
WHEREAS, the Corporation wishes to employ Quirk for his knowledge and
expertise in the operation and management of the Corporation; 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, Quirk 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) Quirk agrees that, except for the benefit of the Corporation or
ORC, for the periods set below, 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
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(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
(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; or
(v) engage in (as a principal, agent, consultant, partner,
director, officer, employee, stockholder, investor or in any other capacity),
alone or in association with any person or entity, or be financially interested
in, any business which is competitive with the Corporation or ORC.
Nothwithstanding the foregoing, Quirk shall be entitled to hold shares of a
publicly-traded company so long as such shares do not represent more than 3% of
the outstanding capital stock of such company.
(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) Quirk shall not use for his personal benefit, or disclose,
communicate or divulge to, or use 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 Quirk 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 Quirk which are entitled to
disclose such information, and neither directly nor indirectly through
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any fault of Quirk; or (y) which must be disclosed pursuant to a court order or
otherwise as required by law provided, however, that Quirk 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) Quirk, 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 Quirk 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 Quirk
violates the terms hereof or fails to perform any of his 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 Quirk 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 set forth in Paragraph 2 or scope of any
restriction set forth in 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 Quirk violates any of the
restrictions contained in Paragraph 1(a), then the restrictive period shall not
run in favor of Quirk from the time of the commencement of any such violation
until such time as such violation shall be cured by Quirk.
2. Term and Termination.
(a) This Agreement shall be effective upon, and the term of this
Agreement shall commerce upon, the consummation of closing of the Stock Purchase
Agreement and, subject to Paragraphs 2(b) and 2(c) below, shall expire at the
later of:
(i) one year after the date Quirk's employment with the
Corporation terminates; or
(ii) four years after the date hereof.
In the event the Stock Purchase Agreement is terminated pursuant to its terms
and conditions prior to the consummation of closing thereunder, this Agreement
shall thereupon be of no further force or effect.
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(b) At any time during the term set forth in Paragraph 2(a), but subject
to Paragraph 2(c) below, ORC or the Corporation may extend the term of this
Agreement for an additional one year beyond the term set forth in Paragraph 2(a)
by written notice thereof to Quirk, in which event ORC or the Corporation shall
continue to pay to Quirk in periodic installments the amount of his Base
Compensation in effect on the last day of the term set forth in Paragraph 2(a)
(as "Base Compensation" is defined in the Employment Agreement) during such one
year period.
(c) The obligations of Quirk contained in Paragraph 1(a) shall terminate
if, prior to the expiration of the Initial Term (as such term is defined in the
Employment Agreement), (a) the employment of Quirk shall be terminated by the
Corporation without Cause (as such term is defined in the Employment Agreement)
or by Quirk for Good Cause (as such term is defined in the Employment
Agreement), and (b) the Corporation does not pay Quirk the Base Compensation to
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which he is then entitled under the Employment Agreement for the remainder of
the Initial Term.
3. Miscellaneous.
(a) Indulgences, Etc. Neither the failure nor any delay on the part
of Quirk, the Corporation or ORC to exercise any right, remedy, power or
privilege under this Agreement (a "Right") shall operate as 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 Quirk, the
Corporation or ORC unless it is in writing and is signed by Quirk, 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:
(i) If to Quirk:
Frank J. Quirk
2110 Forest Hill Road
Alexandria, Virginia 22307
Telephone: 703-329-1620
Telephone: 703-329-1618
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with a copy, given in the manner prescribed above, to:
Christopher C. Roberts, Esq.
Shulman, Rogers, Gandal, Pordy & Ecker, P.A.
11921 Rockville Pike, 3rd Floor
Rockville, Maryland, 20852-2743
Telephone: 301-230-5208
Telecopier: 301-230-2891
(ii) If to ORC or Corporation:
23 Orchard Road
Skillman, NJ 08558
Telephone: 908-281-5100
Telecopier: 908-281-5103
Attention: President
with a copy, given in the manner prescribed
above, to:
David Gitlin, Esquire
Until July 4, 1999
Wolf, Block, Schorr and Solis-Cohen LLP
Twelfth Floor Packard Building
111 South 15th Street
Philadelphia, PA 19102
Telephone: 215-977-2284
Telecopier: 215-977-2740
After July 4, 1999:
Wolf, Block, Schorr and Solis-Cohen LLP
1650 Arch Street
Philadelphia, PA 19103
Telephone: 215-977-2284
Telecopier: 214-977-2740
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.
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(d) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware.
(e) Binding Nature of Agreement. This Agreement shall be binding
upon and inure to the benefit of the Corporation, ORC, Quirk and their
respective successors, assigns, heirs and legal representatives.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
OPINION RESEARCH CORPORATION
By: /s/ John F. Short
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Name: John F. Short
Title: CEO and President
MACRO INTERNATIONAL INC.
By: /s/ Michael T. Errecart
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Name: Michael T. Errecart
Title: President
QUIRK:
/s/ Frank J. Quirk
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Frank J. Quirk
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