EXHIBIT 10.34
PURCHASE AGREEMENT
This PURCHASE AGREEMENT (the "Agreement") is made this 21st day of
October, 2004 by and among Opinion Research Corporation, a Delaware corporation
(the "Company"), LLR Equity Partners, L.P., a Delaware limited partnership ("LLR
Partners") and LLR Equity Partners Parallel, L.P., a Delaware limited
partnership ("LLR Parallel" and, together with LLR Partners, the "Sellers").
BACKGROUND
WHEREAS, pursuant to a Purchase Agreement dated September 1, 2000 (the
"LLR Purchase Agreement"), the Sellers purchased from the Company, and the
Company issued and sold to the Sellers, the following securities: (a) 1,176,458
shares (the "Initial Common Shares") of the Common Stock, $.01 par value per
share, of the Company (the "Common Stock"), (b) ten shares (the "Series B
Preferred Shares") of the Series B Preferred Stock, par value $.01 per share, of
the Company (the "Series B Preferred Stock"); (c) warrants to purchase 740,500
shares of the Common Stock at a price of $12.00 per share (the "Warrants"); and
(d) anti dilution warrants to purchase shares of the Common Stock at a price of
$.01 per share (the "Anti-Dilution Warrants");
WHEREAS, the LLR Purchase Agreement grants to the Sellers, at any time on
or after September 1, 2005 or earlier upon certain events, the right to exchange
the Initial Common Shares for shares of the Series C Preferred Stock, par value
$.01 per share, of the Company (the "Series C Preferred Stock") on a two-for-one
basis (the "Exchange Rights");
WHEREAS, pursuant to the LLR Purchase Agreement, the Company filed with
the Secretary of State of the State of Delaware a Certificate of Designation for
the Series B Preferred Stock (the "Series B Designation") and a Certificate of
Designation for the Series C Preferred Stock (the "Series C Designation")
setting forth the preferences, rights and restrictions applicable to the Series
B Preferred Stock and Series C Preferred Stock, respectively;
WHEREAS, each of the LLR Purchase Agreement, the certificates representing
the Warrants (the "Warrant Certificates"), the certificates representing the
Anti-Dilution Warrants (the "Anti-Dilution Warrant Certificates"), the Series B
Designation, the Series C Designation, and the other Transaction Agreements (as
such term is defined in the LLR Purchase Agreement) grant various rights to the
Sellers, including, but not limited to, preemptive, registration and
anti-dilution rights, all of which rights are referred to collectively in this
Agreement as the "LLR Rights";
WHEREAS, since September 1, 2000, the Sellers have purchased an additional
39,600 shares of the Common Stock in the open market (the "Additional Common
Shares," and together with the Initial Common Shares, the "Common Shares");
WHEREAS, the Company wishes to purchase from the Sellers, on the terms and
subject to the conditions set forth in this Agreement, (a) the Common Shares,
except for that number of Common Shares having a value of $2,000,000 determined
as set forth herein, which shares shall
be retained by the Sellers; (b) the Series B Preferred Shares; (c) the Warrants;
(d) the Anti-Dilution Warrants; (e) the Exchange Rights; and (f) the LLR Rights
(except to the extent set forth in Section 1.3 hereof) (all of which are
collectively referred to herein as the "LLR Interests");
WHEREAS, the Sellers wish to sell to the Company the LLR Interests on the
terms and subject to the conditions set forth in this Agreement;
WHEREAS, the Company anticipates that it will effect a firm-commitment
underwritten public offering of shares of the Common Stock with aggregate
proceeds of at least $20 million (the "Public Offering") or will otherwise
consummate a sale of its equity securities (other than in connection with the
exercise of any warrants, options or other subscription or purchase rights or
pursuant to the exercise of any conversion or exchange rights outstanding as of
the date hereof) with aggregate proceeds of at least $18 million (an "Offering")
and that it will use a portion of the proceeds of the Public Offering or an
Offering to pay the purchase price for the LLR Interests.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained in this Agreement, and intending to be legally bound
hereby, the parties agree as follows:
ARTICLE I
SALE AND PURCHASE OF SHARES AND WARRANTS; CLOSING
1.1 Sale and Purchase of LLR Interests.
(a) Upon the terms and subject to the conditions of this Agreement,
on the Closing Date (as hereinafter defined), the Sellers shall sell and deliver
to the Company and the Company shall purchase and take from the Sellers, the
following: (i) the Common Shares less the Retained Shares (as defined below);
(ii) the Series B Preferred Shares; (iii) the Warrants; (iv) the Anti-Dilution
Warrants; (v) the Exchange Rights; and (vi) the LLR Rights (except to the extent
set forth in Section 1.3 hereof). "Retained Shares" means a number of shares of
Common Stock equal to the quotient of $2,000,000 divided by (i) the offering
price per share of the Common Stock sold in the Public Offering, if the Closing
is in connection with a Public Offering, or (ii) the Average Closing Price of
the Common Stock if the Closing is in connection with an Offering. The "Average
Closing Price" of the Common Stock shall mean as follows: (a) if traded through
the NASDAQ National Market, the average of the closing prices of the Common
Stock over the 20 trading day period ending the trading day immediately prior to
the Closing Date; (b) if not traded through the NASDAQ National Market, but
traded on a securities exchange, the average of the closing prices of the Common
Stock over the 20 day trading period ending the trading day immediately prior to
the Closing Date; and (c) if neither (a) nor (b) is the case, but Common Stock
is traded over-the-counter, the value shall be deemed to be the average of the
closing bid or sale prices (whichever is applicable) over the 20 trading day
period ending the trading day immediately prior to the Closing Date. The Sellers
shall retain the Retained Shares out of their Common Shares.
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(b) The aggregate purchase price for the LLR Interests shall consist
of $18,000,000 in cash (the "Purchase Price").
1.2 Closing.
(a) The closing of the purchase and sale of the LLR Interests (the
"Closing") pursuant to this Agreement shall take place on the third business day
following the closing of the Public Offering or the consummation of an Offering
at the offices of Wolf, Block, Xxxxxx and Xxxxx-Xxxxx LLP, 0000 Xxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx, commencing at 10:00 a.m., local time, or at such
other date, time or place as may be agreed to by the Company and the Sellers
(the "Closing Date").
(b) At the Closing, (i) the Sellers shall deliver to the Company (a)
stock certificates representing the Common Shares, duly endorsed for transfer or
accompanied with duly executed stock transfer powers, (b) stock certificates
representing the Series B Preferred Shares, duly endorsed for transfer or
accompanied with duly executed stock transfer powers, (c) the Warrants, duly
endorsed for transfer or accompanied with duly executed stock transfer powers,
(d) the Anti-Dilution Warrants, duly endorsed for transfer or accompanied with
duly executed stock transfer powers, and (e) a xxxx of sale in form of Exhibit A
attached hereto; and (ii) the Company shall issue and deliver to the Sellers,
proportionately based on the number of shares of Common Shares owned by them
immediately prior to the Closing, stock certificates representing the Retained
Shares. Notwithstanding anything to the contrary provided herein, if any of the
Warrants, the Anti-Dilution Warrants, or the certificates representing the
Common Shares or the Series B Preferred Shares shall be lost, stolen or
destroyed, the Sellers shall deliver to the Company an affidavit of that fact
and an undertaking of indemnity by the Sellers claiming such Warrants,
Anti-Dilution Warrants, or certificates representing the Common Shares or the
Series B Preferred Shares to be lost, stolen or destroyed.
(c) At the Closing, the Company will deliver to the Sellers the
Purchase Price, by wire transfer of immediately available funds in U.S. dollars,
to a bank in the United States specified by the Sellers for the account of the
Sellers.
(d) If the Closing does not occur on or prior to January 31, 2005,
this Agreement shall terminate and the parties hereto shall have no obligations
with respect to this Agreement.
1.3 Transaction Agreements. Notwithstanding anything herein to the
contrary, the Sellers shall be entitled to the rights and subject to the
obligations set forth in Sections 2.4, 2.5, 2.7, and 2.13 of that certain
Registration Rights Agreement, dated as of September 1, 2000, by and among the
Company and the Sellers (the "Registration Rights Agreement"), so long as the
S-3 Registration (as that term is defined in Section 6.2 below) shall be in
effect. In addition, the parties shall continue to be indefinitely entitled to
the rights set forth in Section 2.8 of the Registration Rights Agreement (the
"Indemnification Rights") and the provisions of Section 3 (Miscellaneous) of the
Registration Rights Agreement applicable to the enforceability of the
Indemnification Rights. Other than as set forth above, the obligations of the
Sellers pursuant to the Transaction Agreements shall terminate and be of no
further force or effect as of the Closing.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
The Sellers jointly and severally represent and warrant to the Company as
follows:
2.1 Organization and Good Standing. LLR Partners is a limited partnership
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite power and authority, and all necessary
licenses and permits, to own and lease its properties and assets and to conduct
its business as now conducted. LLR Parallel is a limited partnership duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite power and authority, and all necessary licenses
and permits, to own and lease its properties and assets and to conduct its
business as now conducted.
2.2 Authorization. Each of the Sellers has all requisite power and
authority to execute and deliver this Agreement and to carry out the
transactions contemplated hereby. The execution, delivery and performance by the
Sellers of this Agreement have been duly authorized by all requisite partnership
action, and this Agreement has been duly executed and delivered by the Sellers
and constitutes the valid and binding obligation of the Sellers, enforceable
against the Sellers in accordance with its terms, except as such enforcement may
be limited by bankruptcy, insolvency, moratorium, reorganization and other
similar laws relating to or affecting the enforcement of creditors' rights
generally, and except that the availability of specific performance, injunctive
relief or other equitable remedies is subject to the discretion of the court
before which any such proceeding may be brought.
2.3 Title; Liens and Encumbrances. The Sellers are the lawful owners, both
beneficially and of record, of the Common Shares, the Series B Shares, the
Warrants and the Anti-Dilution Warrants, free and clear of all liens,
encumbrances and restrictions of every kind, and such securities represent all
of the securities of the Company owned by the Sellers. Specifically, (a) LLR
Partners owns 1,107,665 shares of the Common Stock, nine shares of the Series B
Preferred Stock, and Warrants to purchase up to 672,274 shares of Common Stock,
and (b) LLR Parallel owns 108,393 shares of the Common Stock, one share of the
Series B Preferred Stock, and Warrants to purchase up to 68,226 shares of the
Common Stock.
2.4 Broker or Finder. No Person acting on behalf of the Sellers or under
the authority of any of the foregoing is or will be entitled to any brokers' or
finders' fee or any other commission or similar fee, directly or indirectly,
from any of such parties in connection with any of the transactions contemplated
by this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Sellers as follows:
3.1 Organization and Good Standing; No Conflict. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has all requisite power and authority, and all
necessary licenses and permits, to own and lease its properties and assets and
to conduct its business as now conducted. Except as set forth below in this
Section 3.1, the execution and delivery of this Agreement by the Company and the
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consummation by Company of the transactions contemplated hereby do not and will
not violate or result in a breach of any provision of, or constitute a default
(or an event which, with notice or lapse of time or both, would constitute a
default) under, or result in the termination of, or accelerate the performance
required by, or result in a right of termination or acceleration under, or
result in the creation of any lien, security interest, charge or encumbrance
upon any of the property or assets of the Company under, any of the terms,
conditions or provisions of (i) the charter or bylaws of the Company, (ii) any
statute, law, ordinance, rule, regulation, judgment, decree, order, injunction,
writ, permit or license of any court or governmental authority applicable to the
Company or any of its property or assets, or (iii) any material note, bond,
mortgage, indenture, deed of trust, license, franchise, permit, concession,
contract, lease or other instrument, obligation or agreement of any kind to
which the Company is now a party or by which the Company or any of its property
or assets may be bound or affected. The provisions of two Loan Agreements (the
"Loan Agreements") between the Company and Allied Capital Corporation provide
that the Company shall not redeem or repurchase any of its capital stock without
the prior approval of Allied Capital Corporation. The Company anticipates that
it will repay all of the debt outstanding pursuant to the Loan Agreements
simultaneous with or prior to the Closing under this Agreement.
3.2 Authorization. The Company has all requisite power and authority to
execute and deliver this Agreement and to carry out the transactions
contemplated hereby. The execution, delivery and performance by the Company of
this Agreement have been duly authorized by all requisite corporate action, and
this Agreement has been duly executed and delivered by the Company and
constitutes the valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, moratorium, reorganization and other similar
laws relating to or affecting the enforcement of creditors' rights generally,
and except that the availability of specific performance, injunctive relief or
other equitable remedies is subject to the discretion of the court before which
any such proceeding may be brought.
3.3 Broker or Finder. Except in connection with the Public Offering, no
Person acting on behalf of the Company or under the authority of the Company is
or will be entitled to any brokers' or finders' fee or any other commission or
similar fee, directly or indirectly, from any of such parties in connection with
any of the transactions contemplated by this Agreement.
3.4 Series B Preferred Stock and Series C Preferred Stock Ownership. No
shares of Series B Preferred Stock, other than the Series B Preferred Shares,
are issued or outstanding. No shares of Series C Preferred Stock are issued or
outstanding.
3.5 Exempt Transactions. All necessary corporate action will be properly
taken by the Company to cause the sale of the LLR Interests, to the extent of
any pecuniary interest therein of Xxxx X. Xxxx, to be an exempt transaction for
purposes of Section 16 of the Securities Exchange Act of 1934, as amended.
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ARTICLE IV
CONDITIONS PRECEDENT TO THE COMPANY'S OBLIGATIONS
The Company's obligation to purchase and make payment for the LLR
Interests on the Closing Date is subject to the satisfaction of each of the
following conditions (subject to any waiver of any such condition by the
Company):
4.1 Representations and Warranties. On the Closing Date, the
representations and warranties of the Sellers contained in Article II hereof
shall be true and correct in all material respects with the same effect as
though made on and as of the Closing Date.
4.2 Performance. All the covenants, agreements and conditions contained in
this Agreement to be performed or complied with by the Sellers on or prior to
the Closing Date shall have been performed or complied with in all material
respects.
4.3 No Proceeding or Litigation. No suit, action or other proceeding by
any federal, state, local or foreign governmental authority seeking to restrain,
prevent or change the transactions contemplated hereby shall have been
instituted and be pending.
4.4 Resignation of Directors. The Company shall have received the
resignations of each of Xxxx X. Xxxx and Xxxx X. Xxxxx from their positions as
members of the Company's Board of Directors.
4.5 Public Offering. The Company shall have consummated the Public
Offering or an Offering and received the net proceeds thereof, and, to the
extent the aggregate proceeds of the Public Offering are less than $44 million
or the aggregate proceeds of an Offering are less than $40 million, the consent
of Allied Capital Corporation ("Allied") to the Company's purchase of the LLR
Interests shall have been obtained in accordance with those certain Loan
Agreements dated May 4, 2004 among the Company, certain of its affiliates and
Allied. In the event the consent of Allied is required as set forth in the
immediately preceding sentence, the Company shall use commercially reasonable
efforts to obtain such consent. Nothing in this Agreement shall be construed to
obligate the Company to consummate either the Public Offering or an Offering.
ARTICLE V
CONDITIONS PRECEDENT TO THE SELLERS' OBLIGATIONS
The Sellers' obligation to sell the LLR Interests on the Closing Date is
subject to the satisfaction of each of the following conditions (subject to any
waiver of such condition by the Sellers):
5.1 Representations and Warranties. On the Closing Date, the
representations and warranties of the Company contained in Article III hereof
shall be true and correct in all material respects with the same effect as
though made on and as of the Closing Date.
5.2 Performance. All the covenants, agreements and conditions contained in
this Agreement to be performed or complied with by the Company on or prior to
the Closing Date shall have been performed or complied with in all material
respects.
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5.3 No Proceeding or Litigation. No suit, action or other proceeding by
any Governmental Authority seeking to restrain, prevent or change the
transactions contemplated hereby shall have been instituted and be pending.
ARTICLE VI
COVENANTS OF THE SELLERS AND THE COMPANY
6.1 Payment of Sellers' Legal Fees. The Company shall pay legal fees
actually incurred by Sellers in connection with the preparation of this
Agreement and the Closing of the transactions contemplated hereby, whether or
not the Closing occurs, provided that the Company's liability for such fees
shall not exceed $35,000 in the aggregate and that the Sellers shall provide to
the Company invoices with respect to such legal fees, which invoices shall
include billing details to the extent the disclosure of such billing details
would not waive the attorney-client privilege between the Sellers and their
counsel.
6.2 Effectiveness of Registration Statement. The Company shall maintain
the effectiveness of the registration statement on Form S-3 filed by the Company
with the Securities and Exchange Commission on November 27, 2000 (SEC File No.
333-50732) (the "S-3 Registration") for a period of three months following the
Closing Date.
6.3 Exercise of Anti-Dilution Warrants. For so long as this Agreement is
effective, each Seller hereby agrees that it shall not exercise any of the
Anti-Dilution Warrants.
6.4 Waiver of Transfer Restrictions. In connection with the transactions
contemplated by this Agreement, the Company hereby agrees to waive compliance by
the Sellers with the restrictions imposed by the LLR Purchase Agreement on the
transferability of the Common Shares (less the Retained Shares), the Series B
Preferred Shares, the Warrants and the Anti-Dilution Warrants.
6.5 Acceleration of Vesting of Certain Options to Purchase Common Stock.
Prior to the date hereof, (i) Xxxx X. Xxxx, a director of the Company and an
affiliate of the Sellers, received options to purchase an aggregate of 20,000
shares of Common Stock (the "Xxxx Options") and purchased 1,688 shares of Common
Stock from the Company under the Opinion Research Corporation Stock Purchase
Plan for Non-Employee Directors and Designated Employees and Consultants
(together with the Xxxx Options, the "Xxxx Securities"); and (ii) Xxxx X. Xxxxx,
a director of the Company, received options to purchase an aggregate of 20,000
shares of Common Stock (the "Gavin Options" and, together with the Xxxx
Securities, the "Excluded Securities"). The Company hereby acknowledges and
agrees that the Excluded Securities are not among the LLR Interests to be sold
by the Sellers and purchased by the Company pursuant to this Agreement. The
Company hereby further agrees that effective upon the resignation of Xxxx X.
Xxxx and Xxxx X. Xxxxx from the Company's board of directors, the Xxxx Options
and the Gavin Options shall become fully vested and immediately exercisable.
6.6 Public Offering and Offerings. The Company hereby acknowledges and
agrees that it shall not consummate a Public Offering or an Offering on or prior
to January 31, 2005 without consummating the transactions contemplated hereby
within the time periods set forth in Article I of this Agreement.
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ARTICLE VII
SURVIVAL OF COVENANTS, AGREEMENTS,
REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
7.1 Survival. All covenants, agreements, representations and warranties
made herein shall survive the Closing notwithstanding any due diligence or
investigation conducted on behalf of any party and shall not merge in the
performance of any obligation by any party hereto.
7.2 Indemnification. To the maximum extent permitted by law, the Company
shall indemnify and hold harmless the Sellers and their respective partners,
agents, representatives, employees, director designees and affiliates solely
from and against any and all loss, liability, cost and expense (including,
without limitation, reasonable attorneys' fees, expenses and disbursements,
which shall be reimbursed as incurred) incurred by such indemnified persons,
directly or indirectly, in connection with claims by third parties (including
derivative claims on behalf of the Company) under federal or state securities
laws or under the Delaware General Corporation Law in connection with the Public
Offering (to the extent it relates to the transactions contemplated hereby), any
Offering (to the extent it relates to the transactions contemplated hereby) or
the transactions contemplated by this Agreement; provided, however, that in no
event shall the Sellers be entitled to indemnification hereunder if and to the
extent that: (i) such indemnification is barred by final order of a court of
competent jurisdiction or determined by final order of a court of competent
jurisdiction to be unlawful; or (ii) the claims for which indemnification is
sought arise from or are related to events or circumstances that (A) constitute
a breach by the Sellers of their agreements, representations or warranties in
this Agreement; or (B) are determined by final order of a court of competent
jurisdiction to constitute fraud or willful misconduct perpetrated against the
Company by the Sellers, provided that for purposes of this Section 7.2(ii)(B),
the execution of this Agreement and performance of the obligations under this
Agreement by Sellers shall not, without more, be deemed to constitute a fraud or
willful misconduct perpetrated against the Company by Sellers. The foregoing
indemnification obligation shall be in addition to and not in lieu of any
indemnification obligation that the Company has to Xxxx X. Xxxx and Xxxx X.
Xxxxx as a result of being or having been members of the Board of Directors of
the Company.
ARTICLE VIII
MISCELLANEOUS
8.1 Specific Enforcement. The parties hereto acknowledge and agree that
each would be irreparably damaged if any of the provisions of this Agreement are
not performed by the other in accordance with their specific terms or are
otherwise breached. It is accordingly agreed that each party shall be entitled
to seek an injunction or injunctions to prevent breaches of this Agreement by
the other and to enforce this Agreement and the terms and provisions thereof
specifically against the other, in addition to any other remedy to which such
aggrieved party may be entitled at law or in equity.
8.2 Severability. If any term or provision of this Agreement is held by a
court of competent jurisdiction or other authority to be invalid, void,
unenforceable or against its regulatory policy, the remainder of the terms,
provisions, covenants and restrictions of this
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Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated.
8.3 Binding Agreement. This Agreement shall be binding upon and shall
inure to the benefit of the parties and their respective successors and assigns.
8.4 Amendments. This Agreement may not be modified, amended, altered or
supplemented except by a written agreement signed by the Company and the
Sellers, which shall be authorized by all necessary corporate or partnership
action, as applicable, of each party. Any party may waive any condition to its
obligations hereunder.
8.5 Notices. Every notice or other communication required or contemplated
by this Agreement to be given by a party shall be delivered either by (a)
personal delivery, (b) courier mail, or (c) facsimile addressed to the party for
whom intended at the following address:
To the Company:
Opinion Research Corporation
000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxx X. Short, Chairman, President and CEO
Facsimile No.: (000) 000-0000
With a copy (which shall not constitute notice) to:
Wolf, Block, Xxxxxx and Xxxxx-Xxxxx LLP
0000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention:. Xxxxx Xxxxxx, Esq.
Facsimile No.: (215) - 405-3884
To the Sellers:
LLR Equity Partners, L.P.
LLR Equity Partners Parallel, L.P.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxx xx Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxx
Facsimile No.: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxx Xxxxxxxx LLP
3000 Two Xxxxx Square
00xx & Xxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
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or at such other address as the intended recipient previously shall have
designated by written notice to the other parties. Notice by courier mail shall
be effective on the date it is officially recorded as delivered to the intended
recipient by return receipt or equivalent. All notices and other communications
required or contemplated by this Agreement delivered in person or sent by
facsimile shall be deemed to have been delivered to and received by the
addressee and shall be effective on the date of personal delivery or at the time
of confirmation, respectively. Notice not given in writing shall be effective
only if acknowledged in writing by a duly authorized representative of the party
to whom it was given.
8.6 Integration. This Agreement (including any Exhibits and Schedules
hereto) and other documents delivered pursuant hereto constitute the entire
understanding of the parties with respect to the subjects hereof and thereof.
There are no restrictions, agreements, promises, warranties, covenants or
undertakings other than those expressly set forth herein or therein with respect
to any matter.
8.7 Waivers. No failure or delay on the part of either party in the
exercise of any power, right or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any other right,
power or privilege. All rights and remedies existing under this Agreement are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
8.8 Governing Law. This Agreement shall be exclusively governed by,
construed in accordance with, and interpreted according to the substantive law
of the State of Delaware without giving effect to the principles of conflict of
laws.
8.9 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument. A facsimile transmission
of an original signature shall be deemed to be an original signature.
8.10 Cooperation. The parties hereto shall each perform such acts, execute
and deliver such instruments and documents and do all such other things as may
be reasonably necessary to accomplish the transactions contemplated in this
Agreement.
8.11 Section Headings and Captions. Section headings and captions used in
this Agreement are provided for convenience only and shall not affect this
Agreement's meaning or interpretation.
8.12 Delivery by Facsimile. This Agreement, the agreements and instruments
referred to herein, and each other agreement or instrument entered into in
connection herewith or therewith or contemplated hereby or thereby, and any
amendments hereto or thereto, to the extent signed and delivered by means of a
facsimile machine, shall be treated in all manner and respects as an original
agreement or instrument and shall be considered to have the same binding legal
effect as if it were the original signed version thereof delivered in person. At
the request of any party hereto or to any such agreement or instrument, each
other party hereto or thereto shall reexecute original forms thereof and deliver
them to all other parties. No party hereto or to any such agreement or
instrument shall raise the use of a facsimile machine to deliver a signature or
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the fact that any signature or agreement or instrument was transmitted or
communicated through the use of a facsimile machine as a defense to the
formation or enforceability of a contract and each such party forever waives any
such defense.
8.13 Interpretation of Agreement. The parties hereto acknowledge and agree
that this Agreement has been negotiated at arm's-length and among parties
equally sophisticated and knowledgeable in the matters dealt with in this
Agreement. Accordingly, any rule of law or legal decision that would require
interpretation of any ambiguities in this Agreement against the party that has
drafted it is not applicable and is waived. The provisions of this Agreement
shall be interpreted in a reasonable manner to effect the intent of the parties
as set forth in this Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, each of the parties hereto has duly executed this
Agreement on the date first set forth above.
OPINION RESEARCH CORPORATION
By: /s/ Xxxxxxx X. Xxx
----------------------------------
Name: Xxxxxxx X. Xxx
Title: Executive Vice President
and Chief Financial Officer
LLR EQUITY PARTNERS, L.P.
By: LLR CAPITAL, L.P.
Its General Partner
By: LLR CAPITAL, L.L.C.
Its General Partner
By: /s/ Xxxxxx Xxxx
-------------------------
Name: Xxxxxx Xxxx
Title: Partner
LLR EQUITY PARTNERS PARALLEL, L.P.
By: LLR CAPITAL, L.P.
Its General Partner
By: LLR CAPITAL, L.L.C.
Its General Partner
By: /s/ Xxxxxx Xxxx
--------------------------
Name: Xxxxxx Xxxx
Title: Partner
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