EXHIBIT 10.2
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of this 20th day of
April, 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
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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,
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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.
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7. Termination and Termination Benefits.
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(a) Termination by the Company for Cause. The Company may terminate
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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
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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.
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(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 to
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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 Non-
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Compete Agreement, constitutes the entire agreement between the parties hereto
with respect to
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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 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.
(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
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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
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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
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