exv10w38






Exhibit 10.38





EXECUTIVE AGREEMENT




     THIS EXECUTIVE AGREEMENT (the “Agreement”) is made as of this
23rd day
of January, 2002 by and between OPINION RESEARCH
CORPORATION, a Delaware Corporation (the “Company”), and
Gerard J. Miodus (the “Executive”).



W I T N E S S E T H:




     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 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.



          (a) The Company hereby employs the Executive 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 have responsibility for carrying out duties as determined
by the Chief Executive Officer of the Company or his authorized designee, as well as such other
executive duties and responsibilities, as shall from time to time be determined by the Chief
Executive Officer of the Company and the Company’s Board of Directors.




          (b) The Executive shall devote his/her full working time, energy, skill and best efforts to
the performance of his/her duties, hereunder, in a manner that will faithfully and diligently
further the business and interests of the Company, and shall not be
employed by, or participate or engage in or in any manner be a part of the management or
operation of any business enterprise other than the Company without the prior written consent of
the Chief Executive Officer of the Company. Notwithstanding the above, the Executive shall be
permitted to the extent such activities do not interfere or conflict with the performance of the
Executive’s duties and responsibilities hereunder, (i) to serve on civic,




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charitable or professional boards or committees (it being expressly understood and agreed that the
Executive’s continuing to serve on any such board and/or committees on which the Executive is
serving, or with which the Executive is otherwise associated (each of which has been disclosed to
the Company in writing prior to the execution of the Executive’s Agreement), as of the date of
this Agreement, shall be deemed not to interfere with the performance by the Executive of the
Executive’s duties and responsibilities under this Agreement) and (ii) with the prior written
consent of the Chief Executive Officer, to write academic, trade or mainstream papers or other
publishable books (it being expressly understood and agreed that no such writings can interfere
with the Executive’s obligations under the Employee Agreement containing the confidentiality and
non-solicitation agreement [“Employee Agreement”] he/she has also entered into with the Company).




          (c) The Executive represents and warrants to the Company that he/she is under no contractual
or other restriction or obligation which conflicts with, violates or is inconsistent with the
execution of this Agreement, the performance of the Executive’s duties hereunder, or the other
rights of the Company hereunder.




          (d) Without the Company’s prior written 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/her family has a financial interest or from which the Executive or a
member of his/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 Executive or a
member of his/her family owns less than one percent of the outstanding stock.




     2. Term. The initial term of this Agreement shall commence on the date hereof and
shall terminate on December 31, 2002 (the “Initial Term”), unless earlier terminated in
accordance with the terms of this Agreement. This Agreement shall continue in full force and
effect after the expiration of the Initial Term (the “Extended Term”), which Extended Term may be
terminated by the Company for any reason with at least 30 days prior written notice. Paragraph 8
shall apply to such termination.



     3. Compensation.



          (a)
Base Compensation. As compensation for performing the services required by
this Agreement, the Company shall pay to the Executive an annual




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salary,
determined by the CEO, (“Base Compensation”) 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 any Company board on which the Executive may be asked to serve. The Executive’s Base
Compensation shall not be reduced during the term of this Agreement. The Executive’s Base
Compensation shall be reviewed annually by the Company’s Chief Executive Officer no later than
March of each calendar year, it being understood that there shall be no obligation to increase the
Executive’s Base Compensation as a result of such review.




          (b) Incentive Compensation. In addition to Base Compensation, the Executive may
receive additional compensation (“Incentive Compensation”). The Incentive Compensation shall be
pursuant to short-term and/or long-term incentive compensation programs which shall be established
from time to time by the Company.




     4. Executive Benefits. During the term of this Agreement the Executive and his/her
eligible dependents shall have the right to participate in any retirement plans (qualified and
non-qualified), pension, insurance, health, disability 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 Executive shall be entitled to vacation days
during each calendar year as provided to other Executives of the Company in accordance with the
policies of the Company. 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 Executive within ten (10) days of such termination based on his/her Base Compensation
in effect on the date of such termination. In addition, the Executive shall be entitled to the
same sick leave and holidays provided to other Executives of the Company.



     6. Business Expenses. The Executive shall be promptly reimbursed against
presentation of vouchers or receipts for all reasonable and necessary expenses incurred by
him/her in connection with the performance of business-related duties.



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     7. Indemnification. The Company shall (and is hereby obligated to) indemnify
(including advance payment of expenses) the Executive in each and every situation where the
Company is obligated to make such indemnification pursuant to applicable law and the relevant
portions of the Company’s Certificate of Incorporation and By-Laws. Such indemnification shall in
each case include payment of reasonable attorneys fees and expenses, including where permitted by
applicable law, advancement of reasonable attorneys fees and expenses.



     8. Termination and Termination Benefits.



          (a) Termination by the Company For Cause. The Company may terminate this Agreement
prior to its expiration date without prior notice for “cause.” In such event, the Executive shall
be paid for his/her services hereunder only the Base Compensation up to the effective date of such
termination. For purposes of this Section 8(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/her duties hereunder, which refusal has not been cured within seven
(7) days after receipt of written notice from the Chief Executive Officer, (iv) the violation of
any reasonable express direction of the Chief Executive Officer of the Company, his authorized
designee, or the Company’s Board of Directors, 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/her work, which violation has not been cured within seven (7) days after receipt of written
notice from the Chief Executive Officer, (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/her obligations in this Agreement.




          (b) Termination by the Company Without Cause. The Company may terminate this
Agreement at any time (within the Initial Term or the Extended Term) and for any reason upon 30
days’ written notice to the Executive. In the event of such termination, except if termination is
pursuant to subparagraphs (a), (d), (e), or (g) of this




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Paragraph 8, the Executive shall be entitled, as his/her sole remedy and subject to the terms and
conditions of subparagraph (c) of this Paragraph 8, to continue to receive his/her Base
Compensation and medical and life insurance benefits, if permitted by the applicable Company
insurance plans, until 11 months after the effective date of such termination.




          (c) Compliance with Employee Agreement, Non-Competition Agreement and Execution of
Release. The Company’s obligation to pay the Executive’s Base Compensation and applicable
benefits under paragraph (b) of this Paragraph 8 is expressly conditioned upon the Executive’s
continued compliance with the terms and conditions of the Employee Agreement he/she has entered
with the Company, including without limitation, those obligations relating to the company’s
confidential information and intellectual property and the non-solicitation of company customers
and employees. The Company’s obligation under paragraph (b) of this Paragraph 8 is further
conditioned upon . the Executive’s execution and delivery to the company of a Release Agreement, as
drafted at the time of the Executive’s termination of employment, including, but not limited to:




          (I) An unconditional release of all rights to any claims, charges, complaints, grievances,
known or unknown to the Executive, against the Company, its affiliates or assigns, through the
date of the Executive’s termination from employment.




          (II) A representation and warranty that the Executive has not filed or assigned any
claims, charges, complaints, or grievances against the Company, its affiliates or assigns.




          (III) An agreement to maintain the confidentiality of the release.




          (d) Disability of Executive. If the Executive is permanently disabled (as defined
in the Company’s long-term disability insurance policy then in effect), then the Chief Executive
Officer of the Company shall have the right to terminate the Executive’s employment upon 30 days
prior written notice to the Executive at any time during the continuation of such disability. In
the event the Executive’s employment is terminated for disability in accordance with this
subparagraph (d) of this Paragraph 8, the Company shall not thereafter be obligated to make any
further payments hereunder other than (i) the accrued obligations through the date of such
termination and (ii) continued Base Compensation and medical and life insurance benefits, until
the earlier of (x) such time as




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payments to the Executive commence under the Company’s long-term disability insurance  policy
then in effect, or (y) until 11 months after the effective
date of each termination.




          (e) Termination by the Executive Without Cause. The Executive may terminate this
Agreement at any time and for any reason 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/her duties as specified under this Agreement.) In such event, the Executive shall be paid
only the Base Compensation for his/her services hereunder up to the effective date of such
notice.




          (f) Termination by the Executive With Cause. The Executive may terminate this
Agreement prior to its expiration date or any extension thereof without prior notice for
“cause”, in which event the Executive shall be compensated in the same manner as if the Company
had terminated the Executive without cause pursuant to Paragraph 8(b). For purposes of this
Paragraph 8(f), “cause” shall mean exclusively (i) a material reduction in the level of
responsibility or authority of the Executive, (ii) the Company’s substantial breach of its
obligations in this Agreement, or (iii) the relocation of the Executive’s principal place of
employment by the Company to a location more than fifty (50) miles from his/her then current
assignment. The Executive must provide notice to the Company that the Executive is intending to
terminate his/her employment within one hundred and twenty (120) days after the Executive has
actual knowledge of the occurrence of an event he/she believes constitutes cause. In the event
the Executive delivers to the Company a notice of termination for cause, the Executive agrees to
appear before a meeting with the Chief Executive Officer of the Company (after reasonable
notice) and specify the particulars.




          (g) Death Benefit. Notwithstanding any other provision of this Agreement, this
Agreement shall terminate on the date of the Executive’s death. In such event, the Executive’s
estate shall be paid his/her Base Compensation for the remainder of the month in which such
termination occurs.




     9. Prior Agreements, Conflicts of Interest. The Executive represents to the
Company that (a) 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



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Company in connection with the Executive’s employment by the Company misstated a material fact or
omitted material information necessary to make the information supplied not 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.




     10. Miscellaneous



          (a) Arbitration. All disputes, claims, or controversies arising out of or in
connection with this Agreement, the Executive’s employment or its termination, including but not
limited to those concerning workplace discrimination and all other statutory claims, shall
exclusively be submitted to and determined by final and binding arbitration before a single
arbitrator (“Arbitrator”) of the American Arbitration Association (“AAA”) in accordance with the
association’s then current rules for the resolution of employment disputes (“the Rules”). The
Arbitrator shall be selected in accordance with the Rules. The parties consent to the authority of
the arbitrator, if the arbitrator so determines, to award fees and expenses (including legal fees)
to the prevailing party in the arbitration. Notwithstanding the foregoing, the Company shall be
entitled to enforce the provisions of the Employee Agreement entered separately with Executive
hereof through proceedings brought in a court of competent jurisdiction.




          (b) Severability; Reasonableness of Agreement. If any term, provision or covenant of
this Agreement or part thereof, or the application thereof to any person, place or circumstance
shall be held to be invalid, unenforceable or void by a court or competent jurisdiction, the
remainder of this Agreement and such term, provision or covenant shall remain in full force and
effect and any such invalid, unenforceable or void term, provision or covenant shall be deemed,
without further action on the part of the parties hereto, modified, amended and limited, and the
court shall have the power to modify, amend and limit any such term, provision or covenant, to the
extent necessary to render the same and the remainder of the Agreement valid, enforceable and
lawful,




          (c) Assignment; Benefit. This Agreement shall not be assignable by the Executive,
other than the Executive’s rights to payments or benefits hereunder, which may be transferred
only by will or the laws of descent and distribution. Upon the Executive’s death, this Agreement
and all rights of the Executive hereunder shall inure to the benefit of and be enforceable by the
Executive’s beneficiary or beneficiaries, personal




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or legal representatives, or estate, to the extent any such person succeeds to the
Executive’s interests under this Agreement.




          (d) Notices. All notices hereunder shall be in writing and shall be
sufficiently given if hand-delivered, sent by documented overnight delivery service,
registered or certified mail, postage prepaid, return receipt requested or by telegram or
telefax (confirmed by U.S. mail), receipt acknowledged, addressed as set forth below or at
such other address for either party as may be specified in a notice given as provided
herein by such party to the other. Any such notice shall be deemed to have been given as of
the date received, in the case of personal delivery, or on the date shown on the receipt or
confirmation therefore, in all other cases. Any and all service or process and any other
notice in any such action, suit or proceeding shall be effective against any party if given
as provided in this Agreement; provided that nothing herein shall be deemed to affect the
right of any party to serve process in any other manner permitted by law.



     If to the Company:


Opinion Research Corporation

23 Orchard Road

Skillman, New Jersey 08558

Attention: Chief Executive Officer

Fax# (908) 281-5105




     If to the Executive:


Gerard J. Miodus

36 Rosewood Court

Belle Mead, NJ 08502




          (e) Entire Agreement and Modification. With the exception of the Employee Agreement
separately entered into between the parties, this Agreement constitutes the entire agreement
between the parties hereto with respect to the matters contemplated herein and supersedes all
prior agreements and understandings with respect thereto. No amendment, modification, or waiver
of this Agreement shall be effective unless in writing. Neither the failure nor any delay on the
part of any party to exercise any right, remedy, power or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege
preclude any other or further exercise of the same or of any other right, remedy, power, or
privilege with respect to such occurrence or with respect to any other occurrence.




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          (f) Governing Law. This Agreement is made pursuant to, and shall be construed and
enforced in accordance with, the laws of the State of New Jersey and the federal laws of the United
States of America, to the extent applicable, without giving effect to otherwise applicable
principles of conflicts of law. The parties hereto expressly consent to the Jurisdiction of any
state or federal court located in New Jersey, and to venue therein, and consent to the service of
process in any such action or proceeding by certified or registered mailing of the summons and
complaint therein directed to the Executive or the Company, as the case may be, at its address as
provided in subsection (d) of this Paragraph 10. Nothing herein shall affect the parties’
obligations to submit disputes to arbitration under Paragraph 10(a) of this Agreement.




          (g) Withholding. All payments hereunder shall be subject to any required withholding
of Federal, state and local taxes pursuant to any applicable law or regulation.




          (h) Headings; Counterparts. The headings of paragraphs in this Agreement are for
convenience only and shall not affect its interpretation. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original and all of which, when taken
together, shall be deemed to constitute the same Agreement.




          (i) Further Assurances. Each of the parties hereto shall execute such further
instruments and take such other actions as the other party shall reasonably request in order to
effectuate the purposes of this Agreement.




     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written.




	 	 	 	 	 	 	 	 	 
	     THE EXECUTIVE	 	 	 	OPINION RESEARCH CORPORATION
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ Gerard J. Miodus	 	 	 	By:
	 	/s/ John F. Short
	 

	 	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	John F. Short 

Chairman
and CEO







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