EXHIBIT 10.9
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of this 20th day of
May, 1999, by and between Macro International Inc., a Delaware Corporation (the
"Company") and Xxxxxxx X. Xxxxxxxx (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 in the
management and operation of the Company, and wishes to employ the Executive as a
senior executive officer 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 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.
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(a) The Company hereby employs the Executive as a senior executive
officer on the terms and conditions provided in this Agreement and the Executive
agrees to accept such employment subject to the terms and conditions of this
Agreement. The Executive shall serve as the Company's President and shall serve
as a member of the Board of Directors of the Company (the "Board"). The
Executive shall have responsibility for the day-to-day decisions on the
management and operation of the business and the management of the employees and
the facilities of the Company, execute the policy and direction of the Company,
as well as such other executive duties and responsibilities, as shall from time
to time be determined by the Board. Notwithstanding the foregoing, it is agreed
that all decisions concerning any additions, deletions or modifications to the
Company's employee benefit plans or programs shall be made only with the
approval of the Board.
(b) The Executive agrees to devote his best efforts and substantially
all of his time, attention, energy and skill to performing his duties hereunder.
Provided that such activities shall not violate any provision of this Agreement
or the Agreement Not To Compete of even date herewith (the "Non-Compete
Agreement") or materially interfere with the performance of his duties
hereunder, nothing herein shall prohibit the Executive (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 his assets in other entities or business ventures.
(c) Without the Company's prior consent, the Executive shall not
obtain goods or services or otherwise deal on behalf of the Company with any
business or entity in which the Executive or a member of his family has a
financial interest or from which the Executive or a member of his 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
Executive or a member of his family owns less than three percent of the
outstanding stock.
2. Term. This Agreement shall be effective upon, and the term of this
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Agreement shall commence upon, the consummation of closing of the Stock Purchase
Agreement (as hereinafter defined), and shall terminate on the third (3rd)
anniversary of the date of said closing (the "Initial Term"), unless earlier
terminated in accordance with the terms of this Agreement. For purposes of this
Agreement, the "Stock Purchase Agreement" shall mean the proposed Stock Purchase
Agreement between Opinion Research Corporation, as the buyer, and all or
substantially all of the stockholders of the Company, as the sellers, which is
being circulated for signature contemporaneously with the execution of this
Agreement. 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. This Agreement may
be extended for an additional term (the "Extended Term") by mutual agreement of
the parties.
3. Compensation.
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(a) As compensation for performing the services required by this
Agreement, the Company shall pay to the Executive an annual salary ("Base
Compensation") of Two Hundred Ten Thousand Dollars ($210,000), 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 not be entitled to additional compensation
for serving on the Board. The Executive's Base Compensation shall not be
reduced during the Term of this Agreement. The Executive's compensation shall
be reviewed annually by the Chief Executive Officer of Opinion Research
Corporation, the Company's sole shareholder, no later than December 1 of each
year, it being understood that there shall be no obligation to increase
Executive's compensation as a result of such review.
(b) In addition to Base Compensation, the Executive may receive
additional compensation ("Incentive Compensation"). The Incentive Compensation
for the first year of the Initial Term shall be pursuant to the Macro
International Inc. Management Incentive Plan, adopted effective May 1, 1998.
The Incentive Compensation for any subsequent year shall be pursuant to such
short-term and/or long term incentive compensation programs established from
time to time by the Board.
4. Executive Benefits. During the term of this Agreement the Executive
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and his 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, or other benefit plan or program that has
been or is hereafter adopted by the Company (or in which the Company
participates) for officers, according to the terms of such plan or program.
5. Vacation and Leaves of Absence. The Executive shall be entitled to 20
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vacation days during each calendar year. Vacation days will accrue, and unused
vacation days may be
carried over to subsequent years, in accordance with the Company's vacation
policy in effect on the date of this Agreement. Upon any termination of this
Agreement for any reason whatsoever, accrued and unused vacation for prior years
and for the year in which this Agreement terminates will be paid to the
Executive within 10 days of such termination based on his 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 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 senior executive officers of the
Company.
6. Expenses. The Executive shall be promptly reimbursed against
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presentation of vouchers or receipts for all reasonable and necessary expenses
incurred by him in connection with the performance of business-related duties.
7. Termination and Termination Benefits.
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(a) Termination by the Company for Cause. The Company may
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terminate this Agreement prior to its expiration date for "Cause." In such
event, the Executive shall be paid for his services hereunder only his Base
Compensation up to the effective date of such termination. For purposes of this
Section 7(a), Cause shall mean (i) an act of dishonesty by the Executive
constituting a felony or resulting or intended to result in gain to, or personal
enrichment of, the Executive at the Company's expense, (ii) the engaging by the
Executive in misconduct which is demonstrably injurious to the Company, (iii)
the refusal of the Executive substantially to perform his duties hereunder, (iv)
the 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 Executive in the performance of his work, (v) the use
by the Executive of any illegal substance, or the use by the Executive of
alcohol or any controlled substance to an extent that it interferes with the
performance of the Executive's duties under this Agreement, and (vi) the
substantial breach by the Executive of his obligations in this
Agreement or in the Non-Compete Agreement; provided, however, that, with respect
to Sections 7(a)(iii), (iv) and (vi), such refusals, violations, and/or breaches
remain uncured for a period of 15 days after written notice thereof is received
by the Executive.
(b) Termination by the Executive. The Executive may terminate this
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Agreement 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). In such event, the Executive shall be
paid only his Base Compensation for his services hereunder up to the effective
date of such termination. In addition, the Executive may terminate the Agreement
for "Good Cause". For purposes of this Section 7(b), Good Cause shall mean (i) a
significant reduction in the level of, or a material adverse change in, the
authority, duties and responsibilities of the Executive as a senior executive
officer of the Company, or (ii) the failure of the Company to pay to the
Executive his Base Compensation or Incentive Compensation (except in the event
of a dispute as to the calculation of such Incentive Compensation), provided
that such failure shall remain uncured for a period of 15 days after written
notice thereof is received by the Company. In the event this Agreement is
terminated for Good Cause by the Executive, the Company shall be deemed in
breach of this Agreement and the Executive, in addition to the Executive's
rights under the Agreement Not To Compete, shall be entitled to such damages
with respect thereto as to which he may be entitled at law or in equity with
respect thereto.
(c) Disability. The Company may terminate this Agreement due to the
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Executive'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 Executive has not performed his 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 Executive shall not be
entitled to his
Base Compensation during any period during which the Executive 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.
(d) Death. This Agreement shall terminate on the date of the
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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.
8. Prior Agreements, Conflicts of Interest. The Executive represents
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to the Company (a) that there are no restrictions, agreements or understandings,
oral or written, to which the Executive is a party or by which the Executive is
bound that prevent or make unlawful the Executive's execution or performance of
this Agreement; (b) none of the information supplied by the Executive to the
Company or any representative of the Company in connection with the Executive's
employment by the Company misstated a material fact or omitted information
necessary to make the information supplied not materially misleading; and (c)
the Executive does not have any business or other relationship that creates a
conflict between the interests of the Executive and the Company.
9. Company Property. All materials or data of any kind furnished to the
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Executive by the Company, or developed by the Executive 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 Executive's employment hereunder, are and shall
remain the sole and confidential property of the Company. If the Company
requests the return of such materials at any time during, at or after the
termination of the Executive's employment, the Executive shall immediately
deliver the same to the Company.
10. Miscellaneous.
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(a) Integration; Amendment. This Agreement, together with the
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Non-Compete 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) 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) Burden and Benefit. This Agreement shall be binding upon and
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inure to the benefit of the parties hereto and their respective successors and,
assigns.
(e) 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 Delaware. Headings and titles herein
are included solely for convenience and shall not affect, or be used in
connection with, the interpretation of this Agreement.
(f) 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 Executive:
Xxxxxxx X. Xxxxxxxx
0000 Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
With a copy to:
Xxxxxxxxxxx X. Xxxxxxx, Esq.
Shulman, Rogers, Gandal, Pordy & Xxxxx, P.A.
00000 Xxxxxxxxx Xxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
Telephone: 000-000-0000
Telecopier: 301-230-2891
If to the Company:
- Macro International Inc.
00000 Xxxxxxxxxx Xxxxx
Xxxxx #000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: President
Telephone: 000-000-0000
Telecopier: 000-000-0000
and to
Opinion Research Corporation
00 Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: President
Telephone: 000-000-0000
Telecopier: 000-000-0000
With a copy to:
Xxxxx Xxxxxx, Esquire
Until July 4, 1999:
Wolf, Block, Xxxxxx and Xxxxx-Xxxxx LLP
Twelfth Floor Packard Building
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Telephone: 000-000-0000
Telecopier: 000-000-0000
After July 0, 0000:
Xxxx, Xxxxx, Xxxxxx and Xxxxx-Xxxxx LLP
0000 Xxxx Xxxxxx
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.
MACRO INTERNATIONAL INC.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Chairman/CEO
EXECUTIVE:
/s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------(SEAL)
Xxxxxxx X. Xxxxxxxx
