Exhibit 2.1(F)
EXHIBIT "F" EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into this
day of August, 2000, by and among ORC Consumer, Inc., a Delaware corporation
(the "Company"), Opinion Research Corporation, a Delaware corporation ("ORC")
and __________ (the "Employee"), to become effective (the "Effective Date") upon
the consummation of the sale of all or substantially all of the assets and
business of C/J Research, Inc. ("C/J Research") to the Employer (the "Closing").
If the Closing is not consummated on or prior to August 31, 2000, this Agreement
shall be void and of no further effect.
W I T N E S S E T H:
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WHEREAS, the Employer is acquiring substantially all of the assets and the
business of C/J Research; and
WHEREAS, the Employee has been employed by C/J Research and the Company
believes that it would benefit from the application of the Employee's particular
and unique skill, experience and background, and, effective and contingent upon
the Closing, the Company wishes to employ the Employee as an employee of the
Company; and
WHEREAS, the parties desire by this Agreement to set forth the terms and
conditions of the employment relationship between the Company, ORC and the
Employee.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
in this Agreement, the Company, ORC and the Employee agree as follows:
1. Employment and Duties.
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(a) The Company hereby employs the Employee as an employee on the terms
and conditions provided in this Agreement, and the Employee agrees to accept
such employment (b) subject to the terms and conditions of this Agreement. The
Employee shall serve as the Company's Senior Vice President - New Business
Development and have such duties and responsibilities of an executive nature
within the Company or ORC as shall from time to time be
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determined by the Board of Directors of the Company (the "Board") or the Chief
Executive Officer of ORC, as applicable, and are consistent with her title.
(c) The Employee agrees to devote her best efforts and substantially all
of her time, attention, energy and skill to performing her duties hereunder.
Provided that such activities shall not violate any provision of this Agreement
or the Agreement Not To Compete of even date herewith among the Employee, the
Company and ORC (the "Non-Compete Agreement") or materially interfere with the
performance of her duties hereunder, nothing herein shall prohibit the Employee
(i) from engaging in charitable, civic, fraternal, or trade group activities,
(ii) from writing academic, trade or mainstream papers or other publishable
books, or (iii) from investing her assets in other entities or business
ventures.
(d) Without the Company's or ORC's prior consent, the Employee shall not
obtain goods or services or otherwise deal on behalf of the Company or ORC with
any business or entity in which the Employee or a member of her family has a
financial interest or from which the Employee or a member of her immediate
family may derive a financial benefit as a result of such transaction, except
that this prohibition shall not apply to any public company in which the
Employee or a member of her family owns less than three percent of the
outstanding stock.
2. Term. The term of this Agreement shall commence on the Effective Date and
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shall terminate twelve (12) months from the Effective Date (the "Initial Term").
This Agreement shall automatically renew annually at the expiration of the
Initial Term unless the Company notifies the Employee of its intention not to
renew the term of this Agreement by giving written notice thereof at least 60
days prior to the expiration of the then current term. If the Company gives the
Employee written notice of its intention not to renew this Agreement, such
termination shall constitute a termination by the Company without Cause (as
defined herein).
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3. Compensation. As compensation for performing the services required by this
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Agreement, the Employee shall be compensated as follows:
(a) Base Compensation. The Company shall pay to the Employee an annual
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salary ("Annual Salary") of ____________________, payable in equal installments
pursuant to the Company's customary payroll procedures in effect for its
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
Employee's Annual Salary shall not be reduced during the term of this Agreement.
The Employee's compensation shall be reviewed annually by the Chief Executive
Officer of the Company or another designee of the Company's Board of Directors,
it being understood that there shall be no obligation to increase the Employee's
compensation as a result of such review. For the year 2000, Employee shall be
entitled to an Annual Salary increase of $________, effective within 30 days of
the date hereof.
(b) Commission Compensation. In addition to Annual Salary, the Employee
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shall receive commissions ("Commission Compensation") equal to __% of all
revenue (the "Commission Rate") earned by the Company or ORC from clients
originated by the Employee, payable quarterly. Neither the Employee's Commission
Rate nor the basis upon which Commission Compensation is paid, shall be reduced
or changed in a manner adverse to Employee during the term of this Agreement.
(c) Bonus Compensation. In addition to Annual Salary and Commission
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Compensation, during the term of this Agreement, the Employee may receive bonus
compensation to be determined by the Board or by the Chief Executive Officer of
ORC, as applicable, in its absolute discretion based on periodic reviews of the
Employee's performance on at least an annual basis. Employee shall be entitled
to a bonus for the year 2000 in the amount of $11,000, payable within 30 days of
the date hereof.
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4. Employee Benefits. During the term of this Agreement the Employee and her
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eligible dependents shall have the right to participate in any retirement plans
(qualified and non-qualified), pension plans, life, health and disability
insurance, cafeteria plans, stock option plans 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 Employee shall be entitled to 20
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vacation days during each calendar year. Any vacation days that are not taken in
a given calendar year 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
Employee within 10 days of such termination based on her Annual Salary in effect
on the date of such termination. In addition, the Employee may be granted leaves
of absence with or without pay for such reasons as the Board in its sole and
absolute discretion may determine, and shall be entitled to the same sick leave
and holidays provided to other employees of the Company.
6. Expenses. The Employee shall be promptly reimbursed against presentation of
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vouchers or receipts for all reasonable and necessary expenses incurred by him
in connection with the performance of business-related duties.
7. Termination.
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(a) Termination by the Company For Cause. The Company may terminate this
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Agreement prior to its expiration date for "Cause". In such event, the Employee
shall be paid for her services hereunder only her Annual Salary up to the
effective date of such termination. For purposes of this Section 7, Cause shall
mean (i) an act of dishonesty by the Employee constituting a felony or resulting
or intended to result in gain to, or personal enrichment of, the Employee at the
Company's expense, (ii) the engaging by the Employee in willful misconduct
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which is demonstrably injurious to the Company, (iii) the refusal of the
Employee substantially to perform her duties hereunder, (iv) the knowing
violation of any reasonable express direction of the Board or of any reasonable
rule, regulation, policy or plan established by the Company from time to time
which governs the Employee in the performance of her work, (v) the use by the
Employee of any illegal substance, or the use by the Employee of alcohol or any
controlled substance to an extent that it interferes with the performance of the
Employee's duties under this Agreement, and (vi) the substantial breach by the
Employee of her obligations in this Agreement or in the Non-Compete Agreement.
(b) Termination by the Employee for Good Reason. The Employee may
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terminate this Agreement prior to the expiration of the term of this Agreement
for "Good Reason." For purposes of this Agreement, "Good Reason" means (1) the
assignment to the Employee of any duties materially inconsistent with Paragraph
1(a) of this Agreement, or any other action by the Company that results in a
diminution of the Employee's position, duties, authority or responsibility, from
those existing on the date of this Agreement, other than an isolated,
insubstantial and inadvertent action that is not taken in bad faith and is
promptly remedied by the Company after receipt of notice thereof from the
Employee (and in any event, within 30 calendar days after receipt of such
written notice), (2) any requirement by the Company that the Employee's services
be rendered primarily at a location or locations other than the greater Chicago
metropolitan area and for other than a de minimis period if time; (3) the
failure of the Company to pay the Employee's Annual Salary and Commission
Compensation or other material breach by the Company that is not remedied by the
Company promptly after receipt of notice thereof from the Employee (and in any
event, within 30 calendar days after receipt of such written notice). A
termination of employment by the Employee for Good Reason shall be effectuated
by giving the Company written notice of the termination within 30 days after the
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Employee first has knowledge of the event constituting Good Reason, setting
forth in reasonable detail the specific conduct of the Company constituting Good
Reason.
(c) Termination by the Employee (Other than Good Reason). The Employee may
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terminate this Agreement (for other than Good Reason) upon 60 days' written
notice to the Company (during which period the Employee shall, if requested in
writing by the Company, continue to perform her duties as specified under this
Agreement). In such event, the Employee shall be paid only her Annual Salary and
accrued Commission Compensation for her services hereunder up to the effective
date of such termination.
(d) Disability. The Company may terminate this Agreement due to the
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Employee's illness, physical or mental disability, or other incapacity, in
accordance with the Company's disability practices and policies in effect from
time to time; provided, however, that no such termination may occur unless and
until the Employee has not performed such Employee's duties under this Agreement
due to such illness, disability or other incapacity for at least six months.
However, prior to such a termination of this Agreement, the Employee shall not
be entitled to her Annual Salary during any period during which the Employee is
receiving sick pay or short-term disability payments from the Company, or long-
term disability insurance payments under the Company's long term disability
insurance plan.
(e) Death. This Agreement shall terminate on the date of the Employee's
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death. In such event the Employee's estate shall be paid her Annual Salary and
accrued Commission Compensation for the remainder of the month in which such
termination occurs.
(f) If (1) the Company terminates the Employee's employment (other than
pursuant to Paragraph 7(a), 7(d) or 7(e), or (2) the Employee terminates her
employment pursuant to Paragraph 7(b), the Employee shall be entitled to the
continuation of her Annual Salary for a period of one year from the date of such
termination and to an amount equal to her Commission
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Compensation for the 12 months preceding such termination, payable in four
quarterly installments.
8. Prior Agreements, Conflicts of Interest. The Employee represents to the
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Company (a) that there are no restrictions, agreements or understandings, oral
or written, to which the Employee is a party or by which the Employee is bound
that prevent or make unlawful the Employee's execution or performance of this
Agreement; (b) none of the information supplied by the Employee to the Company
or any representative of the Company in connection with the Employee's
employment by the Company misstated a material fact or omitted information
necessary to make the information supplied not materially misleading; and (c)
the Employee does not have any business or other relationship that creates a
conflict between the interests of the Employee and the Company.
9. Company Property. All materials or data of any kind furnished to the
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Employee by the Company, or developed by the Employee on behalf of the Company,
or at the direction of the Company, or for the use of the Company, or otherwise
in connection with the Employee's employment hereunder, are and shall remain the
sole and confidential property of the Company, whichever applicable; if the
Company requests the return of such materials at any time during, at or after
the termination of the Employee's employment, the Employee shall immediately
deliver the same to the Company.
10. ORC as Surety. It is hereby agreed that ORC shall, and does hereby,
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guarantee the obligations of the Company to the Employee as surety. ORC's
guaranty is a guarantee of payment and performance and not a guarantee of
collection. ORC hereby waives all suretyship and other defenses to its
obligations under this guaranty, other than performance by the Company.
11. Miscellaneous.
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(a) Integration; Amendment. This Agreement, together with the Non-Compete
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Agreement, constitutes the entire agreement between the parties hereto with
respect to the employment matters set forth herein. No amendments or additions
to this Agreement shall be binding unless in writing and signed by all parties
hereto.
(b) Assignability. The Company may assign its rights and obligations under
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this Agreement to ORC, in which event ORC shall be the Employee's employer.
(c) Severability. If any part of this Agreement is contrary to, prohibited
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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.
(d) Waivers. The failure or delay of any party at any time to require
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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.
(e) Burden and Benefit. This Agreement shall be binding upon and inure to
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the benefit of the parties hereto and their respective successors and assigns.
(f) Governing Law; Headings. This Agreement and its construction,
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performance, and enforceability shall be governed by, and construed in
accordance with, the laws of the State of Illinois. Headings and titles herein
are included solely for convenience and shall not affect, or be used in
connection with, the interpretation of this Agreement.
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(g) Notices. All notices, requests, demands and other communications
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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 the Employee:
If to the Company or ORC:
00 Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxx X. Short
Telephone: 000-000-0000
Fax: 000-000-0000
With a copy to:
Xxxxx Xxxxxx, Esquire
Wolf, Block, Xxxxxx and Xxxxx-Xxxxx LLP
0000 Xxxx Xxxxxx - 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Telephone: 000-000-0000
Telecopier: 000-000-0000
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.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first above written.
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ORC CONSUMER, INC.
By:_________________________
Name:
Title:
OPINION RESEARCH CORPORATION
By:_________________________
Name:
Title:
____________________________
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