Employment Agreement - Opinion Research Corp. and John F. Short
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 JOHN F. SHORT (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 Financial Officer of the Company ("CFO"); 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 CFO 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 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 CFO. Provided that such activities
shall not violate any provision of this Agreement or materially interfere with
his performance
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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.
2. Term. The term of this Agreement shall be for three years (the
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"Initial Term"), commencing on the date hereof (the "Effective Date"), and
expiring on the day preceding the third 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 18
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 18 months prior written notice of such party's intention to
terminate this Agreement.
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 $265,000, 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,
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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 Initial 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.
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.
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 20 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
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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 by him in connection with the performance of
business-related duties as well as membership fees in a 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 $1,000 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,
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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 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
four 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;
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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 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 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 CFO 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
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the Executive his Base Compensation and Incentive Compensation as hereinabove
provided, shall pay to the Executive a lump sum payment equal to three times the
Executive's 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) 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.
(e) 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 November
26, 1991.
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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 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.
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(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 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 6,
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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 shall
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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:
John F. Short
10 Governors Lane
Princeton, NJ 08540
If to the Company:
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Opinion Research Corporation
23 Orchard Road
Skillman, New Jersey 08558
Attention: Chairman
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.
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/ Michael R. Cooper
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Michael R. Cooper
Chairman and CEO
/s/ John F. Short
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John F. Short
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