Exhibit 10.4
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 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇").
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
▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇ 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, ▇▇▇▇▇▇▇▇ 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) ▇▇▇▇▇▇▇▇ 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
(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.
Notwithstanding the foregoing, ▇▇▇▇▇▇▇▇ 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) ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇ which are
entitled to disclose such information, and neither directly nor indirectly
through any fault of ▇▇▇▇▇▇▇▇; or (y) which must be disclosed pursuant to a
court order or
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otherwise as required by law provided, however, that ▇▇▇▇▇▇▇▇ 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) ▇▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇
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 ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇ violates any of the
restrictions contained in Paragraph 1(a), then the restrictive period shall not
run in favor of ▇▇▇▇▇▇▇▇ from the time of the commencement of any such violation
until such time as such violation shall be cured by ▇▇▇▇▇▇▇▇.
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 ▇▇▇▇▇▇▇▇'▇ 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 ▇▇▇▇▇▇▇▇, in which event ORC or the
Corporation shall continue to pay to ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇ shall be
terminated by the Corporation without Cause (as such term is defined in the
Employment Agreement) or by ▇▇▇▇▇▇▇▇ for Good Cause (as such term is defined in
the Employment Agreement), and (b) the Corporation does not pay ▇▇▇▇▇▇▇▇ the
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Base Compensation to 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 ▇▇▇▇▇▇▇▇, 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 Corporation or ORC unless it is in writing and is signed by ▇▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇▇:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
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with a copy, given in the manner prescribed above, to:
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Shulman, Rogers, Gandal, Pordy & ▇▇▇▇▇, P.A.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: 301-230-2891
(ii) If to ORC or Corporation:
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
Attention: President
with a copy, given in the manner prescribed
above, to:
▇▇▇▇▇ ▇▇▇▇▇▇, Esquire
Until July ▇, ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇▇-▇▇▇▇▇ LLP
Twelfth Floor Packard Building
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
After July ▇, ▇▇▇▇:
▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇▇-▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
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, ▇▇▇▇▇▇▇▇ 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/ ▇▇▇▇ ▇. Short
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Name: ▇▇▇▇ ▇. Short
Title: CEO and President
MACRO INTERNATIONAL INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman/CEO
▇▇▇▇▇▇▇▇:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (SEAL)
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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