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EXHIBIT 10.1
EXECUTION COPY
|__| Employee's Copy
|__| Employer's Copy
RDA Corporation
Employment Agreement
To R. Donald Awalt:
This Agreement establishes the terms of your continued employment as Chief
Executive Officer of RDA Corporation, a Delaware corporation ("RDA").
Employment You and RDA agree to your continued employment as Chief Executive
and Duties OFficer of RDA on the terms contained below. You will report
directly to RDA's Board of Directors (the "Board"). You agree to
perform whatever duties the Board may assign you from time to
time that are consistent with services customarily performed by
the chief executive officer of a similar company.
During your employment, you agree to devote your full business
time and best efforts, attention, and energies to performing
those duties (except as the Board otherwise agrees from time to
time). RDA acknowledges that you may serve as a director or
comparable non-employee position for other companies and agrees
that such service does not violate this Agreement, so long as you
do not violate the No Competition provision. You may manage your
personal investments, as long as the management takes only
reasonable amounts of time.
Term of Your employment under this Agreement begins as of August 21, 2000
Employment (the "Effective Date") and will end at 6 p.m. Eastern Time on
October 1, 2003, unless earlier ended or later extended.
Your employment under this Agreement will automatically extend to
October 1, 2004 unless one party gives notice of non-extension to
the other no later than September 30, 2001. The term will extend
beyond October 1, 2004 in one-year increments unless one party
gives notice of non-extension to the other no later than two
years before the then current extension would end. The initial
employment period plus any extensions under this Agreement
constitute the "Term."
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Place of Your principal place of employment will be RDA's corporate
Employment offices in Timonium, Maryland, or such other location at which
you agree to work, and in office space you consider appropriate.
Compensation RDA will provide you compensation and incentives as follows:
Salary RDA will pay you an annual salary (the "Salary") from the
Effective Date at the rate of no less than $300,000 in
accordance with its regular payroll practices. The Board
will consider you for Salary increases at least annually, on
or around January 1, and may increase but not decrease your
Salary.
Performance You will have the opportunity to receive a performance bonus
Bonus with respect to each fiscal year ending during the term of
this Agreement, based on objective criteria to which you
agree before the fiscal year begins. The bonus may be up to
150% of your Salary (although the Compensation Committee can
authorize higher payments).
Employee While RDA employs you, RDA will provide you with the same
Benefits benefits, as RDA makes generally available from time to time
to RDA's senior executives, as those benefits are amended or
terminated from time to time. Your benefits will be at or
above the level of any other executive in the Company,
assuming you satisfy underwriting criteria for such
benefits. Your participation in RDA's benefit plans will be
subject to the terms of the applicable plan documents and
RDA's generally applied policies, and RDA in its sole
discretion may from time to time adopt, modify, interpret,
or discontinue such plans or policies.
Expenses RDA will reimburse you for reasonable travel, entertainment, and
other out-of-pocket expenses you incur in performing your duties
under this Agreement, upon submission and approval of written
statements and bills that comply with RDA's then regular
procedures.
Termination Subject to the provisions of this section, you and RDA agree that
it may terminate your employment, or you may resign, except that,
if you voluntarily resign, you must provide RDA with 90 days'
prior written notice (unless RDA has previously waived such
notice in writing or authorized a shorter notice period).
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By RDA RDA may terminate your employment for Cause, with written
For Cause notice stating the acts, omissions, refusals, or failures
that RDA believes constitute Cause, if you:
(i) are convicted of, or plead guilty or no contest to, any
misdemeanor (other than for minor infractions)
involving fraud, breach of trust, or misappropriation,
or any felony; or
(ii) commit an act of gross negligence or otherwise act with
willful disregard for RDA's best interests, and the
result of your actions is materially adverse to RDA.
When providing you with a written notice of termination for
Cause under Clause (ii), the Board will provide you with at
least 30 days in which to correct the specified act,
omission, refusal, or failure. If not corrected within that
period, your employment will terminate for Cause at the end
of that period. Your termination for Cause under Clause (i)
will be effective immediately upon the Board's mailing or
transmission of such notice.
By RDA RDA may terminate your employment under this Agreement
Without Cause before the end of the Term, without Cause, upon 90 days'
prior written notice.
By RDA If you become "disabled," RDA may terminate your employment.
For Disability You are "disabled" if you are unable, despite whatever
reasonable accommodations the law requires, to render
services to RDA for more than 180 days in a calendar year
because of physical or mental disability, incapacity, or
illness.
Death If you die during the term, the term will end as of the date
of your death.
By You for You may resign for Good Reason because of any of the
Good Reason following conditions:
RDA materially breaches this Agreement (and your
actions or omissions did not primarily cause or
materially contribute to the breach) and fails to
correct such breach within 30 days (10 days for failure
to pay Salary) after receiving your written demand that
it remedy the breach;
the Board assigns you duties inconsistent with, or
substantially diminishes, your status or
responsibilities as a chief executive officer or
attempts to reduce your compensation below the level
described in this Agreement
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or relocates your principal place of employment without
your consent by more than 20 miles (and your consent to
one relocation does not waive any future objections to
a later relocation);
you have attained age 60;
you cease to be a member the Board (other than by your
voluntary resignation or your choice not to stand for
re-election or re-appointment); or
RDA fails to obtain a satisfactory written agreement
from any successor to assume and agree to perform this
Agreement, which successor you reasonably conclude is
capable of performing its obligations under this
Agreement.
RDA agrees that your continuing to work during the initial
90 days after a Good Reason occurs does not mean that you
are waiving your rights to resign for Good Reason.
Thereafter, you waive your rights with respect to that
specific occurrence of Good Reason.
Payments on Except to the extent the law requires otherwise or as provided in
Termination this Payments on Termination section or in any option agreement,
neither you nor your beneficiary or estate will have any rights
or claims under this Agreement or otherwise to receive severance
or any other cash compensation (other than Salary, bonuses, and
vacation already accrued but not paid and reimbursement of unpaid
expenses) after your termination or resignation.
By RDA If RDA terminates your employment without Cause, or you
Without Cause terminate your employment for Good Reason, RDA will pay you
or By You for severance consisting of Salary, as then in effect, and your
Good Reason maximum bonus potential (for the year of termination,
multiplied by the full and fractional years remaining in the
Term) for the remaining Term. RDA will pay you half within
10 days after your employment ends and the remainder ratably
over the period to which the severance equates. In
addition, RDA will accelerate any options you then hold such
that all options will become immediately exercisable as a
result of your termination or resignation (and will expire
in accordance with the options' terms, normally within 90
days after such date). RDA will also pay the premiums on
your split dollar policy for the period during which you are
receiving severance, as well as pay the premiums for the
continuation of your health and dental coverage under
Section 4980B of the Code (referred to as COBRA coverage).
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By RDA If RDA terminates your employment because you are
Because of disabled, you agree that your severance consists of the
Disability payments during your period of disability before your
employment termination.
You are not required to mitigate amounts payable under these
provisions by seeking other employment or otherwise. RDA may
not offset or otherwise reduce its obligations to you under
this Agreement because of any compensation you earn after your
RDA employment ends.
Confidentiality During the term of this Agreement, and at any and all times
thereafter, you must hold in confidence, and not disclose to
any third party, except to authorized persons in the course of
your work for RDA, and not use for your benefit of yourself or
that of any other individual or entity, without RDA's consent,
any information of a confidential nature of which you become
aware in the course of your work for RDA, or that you obtained
in connection with your relationship with RDA, pertaining to
the business or operations of RDA, or its clients.
Confidential information of this type includes, but is not
limited to, any and all processes, equipment, devices,
techniques, methods, designs, programs, trade secrets and the
like (whether patentable or not), or data, know-how, written
instructions, or other writings, client lists, pricing lists,
sales techniques, or financial products, and all improvements
or additions thereto of any nature whatsoever, no matter
whether any of the same is the information of RDA or the
information of its clients. You must hold and use articles
representing or disclosing such confidential information only
in the manner as authorized by RDA and may not make
unauthorized copies thereof. Upon termination of employment,
and at any other time upon request, you must return all
records, memoranda, notes, files, and documents of and
pertaining to RDA or its clients, including, but not limited
to, client lists or concerning any articles, products, used or
developed, investigated or considered by RDA, then in your
possession, it being agreed that all such records, memoranda,
notes, files, and documents are property of RDA no matter
where located. You agree not to make or retain any copy or
extract thereof. You agree to comply with and be bound by the
terms of any confidentiality agreement to which RDA is bound
concerning confidential information of its clients.
Work Product You acknowledge and agree that any and all writings,
documents, inventions, discoveries, computer programs (whether
source or object code), algorithms, "know-how," hardware,
ideas, improvements, plans, memoranda, tests, research,
designs, drawings, specifications, models, data documentation,
diagrams, flow charts, processes, procedures and/or techniques
(whether reduced to written form or otherwise) that you may
make, conceive, discover or develop, either solely or jointly
with any other person or persons, at any time during the term
of this Agreement, whether during working hours, or at RDA
facilities or at any other time or location,
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and whether at the request or upon the suggestion of RDA or
otherwise, that relate to or are in any way useful in
connection with any business now or hereafter carried on or
contemplated by RDA, including developments or expansions of
its present fields of operations (collectively, "Intellectual
Work Product"), will be the sole and exclusive property of
RDA. You must make full disclosure to RDA of all such
Intellectual Work Product, and must do everything necessary or
desirable to vest absolute title thereto in RDA. You must
prepare all specifications or other documentation regarding
such Intellectual Work Product and otherwise aid and assist
RDA so that RDA can prepare and present applications for
copyright or Letters Patent therefor and can secure such
copyright or Letters Patent wherever possible, as well as
reissues, renewals, and extensions thereof, and can obtain the
record title to such copyright or patents so that RDA will be
the sole and absolute owner thereof in all countries in which
it may desire to have copyright or patent protection. You
agree that you will not be entitled to any additional or
special compensation or reimbursement regarding any and all
such Intellectual Work Product.
You acknowledge and agree that all such Intellectual Work
Product that is copyrightable will be considered to be a work
made for hire under United States copyright law and that such
Intellectual Work Product will, upon its creation, be owned
exclusively by RDA. To the extent that any such Intellectual
Work Product, (including such work product as is unrelated to
or is not necessarily useful in connection with any business
of RDA) under applicable law, may not be considered to be a
work made for hire, you hereby assign to RDA the ownership of
copyright in such Intellectual Work Product, without the
necessity of any further consideration, and RDA will be
entitled to obtain and hold in its own name all copyrights
with respect thereto.
To the extent that you may be entitled to claim any ownership
interest in any of such Intellectual Work Product (including
such work product as is unrelated to or is not necessarily
useful in connection with any business of RDA), you hereby
irrevocably assign and transfer to RDA all of your right,
title, and interest in and to such Intellectual Work Product,
(including such work product as is unrelated to or is not
necessarily useful in connection with any business of RDA)
under patent, copyright, trade secret and trademark law, in
perpetuity or for the longest period otherwise permitted by
law. You acknowledge and agree that RDA may contract with
clients to provide that Intellectual Work Product will be a
work for hire belonging to the client and may additionally
assign all ownership rights to client. You hereby irrevocably
consent to such contracts and assignments.
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Covenant Not During the term of this Agreement and for a period of two (2)
to Compete years from the date of termination, regardless of the reason
for termination, you agree that you will not directly or
indirectly solicit or service or accept employment with or
otherwise establish a business relationship with any Clients,
as defined herein, in any manner, either personally or through
others. You agree that should this Agreement be terminated,
you will not communicate with Clients so as to in any way
indicate that your relationship with RDA has terminated or
that you are conducting business at any address other than
that of RDA. Moreover, during the two (2) year period
following termination, you agree that you will not, without
the prior written consent of RDA, directly or indirectly
induce or attempt to influence any employee of RDA to
terminate his employment, or employ, establish any business
relationship with, do any business with or cause or encourage
anyone else to associate with, or do any business with any
employee who was employed by RDA at the time of the
termination of your employment or who terminated his
employment for any reason during the six (6) months preceding
the termination of your employment with RDA.
As used in this Agreement, the term "Clients" or "clients"
means and includes, but is not necessarily limited to, (1)
those individuals and organizations (organizations include,
but are not necessarily limited to, proprietorships,
partnerships, joint ventures, corporations, societies,
associations and labor organizations) who or which have
purchased a product or service from RDA within the two year
period immediately before or during the term of your
association with RDA, (2) any stockholder, principal or
partner of any such client excluding, however, non-controlling
stockholders of any publicly listed corporation, (3) any
organization, a trustee, officer, director or stockholder of
which (other than a non-controlling stockholder of any
publicly listed corporation) was a client during the term of
your association with RDA or within the two year period
immediately before the first day of your association with RDA,
and (4) any individual or organization that has approached RDA
or been approached by RDA concerning the purchase of products
or services within the six month period immediately preceding
the termination date of this Agreement but not before the
commencement of your tenure at RDA.
As used herein, "solicit" or "service" includes communication
with an individual or an organization, by any means
whatsoever, directly or indirectly regarding products and
services of a type available from RDA whether or not to induce
the individual or organization to immediately purchase such
products or services.
Remedies You agree that in the event of any breach or threatened breach
by you of the provisions of this Agreement, including, but not
limited to, those provisions dealing with work product,
confidentiality and non-
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competition, RDA will suffer immediate and irreparable injury,
and RDA, without notice to you, may apply to any Court of
competent jurisdiction for the entry of an immediate Order for
an injunction restraining your breach of any such provision of
the Agreement, without the necessity of posting a bond, and
may institute and prosecute proceedings at law and equity for
the specific performance of this Agreement and/or to obtain
any other relief as may be appropriate, with all expenses of
such legal action, including reasonable attorney's fees, being
borne by you. The provisions of this Agreement pertaining to
work product, confidentiality and non-competition will apply
and remain in full force and effect regardless of the cause
and/or manner of or reason for termination or cessation of
this Agreement, and regardless of any other controversies that
may arise between the parties with reference thereto or
otherwise.
Assignment If you give your prior written consent, RDA may assign or
otherwise transfer this Agreement and any and all of its
rights, duties, obligations, or interests under it to
any of the affiliates or subsidiaries of RDA or
to any business entity that at any time by merger,
consolidation, or otherwise acquires all or substantially
all of RDA's stock or assets or to which RDA transfers
all or substantially all of its assets.
Upon such assignment or transfer, any such business entity
will be treated as substituted for RDA for all purposes.
Without RDA's prior written consent, you may not assign or
delegate this Agreement or any or all rights, duties,
obligations, or interests under it, except that your economic
benefits may be paid to your heirs or beneficiaries after your
death.
Indemnification; If you are made a party or witness to any threatened, pending,
Insurance or completed action, suit, or proceeding, whether civil,
criminal, administrative or investigative (other than RDA's
nonderivative action against you), because you are or were
performing services for RDA, then RDA must indemnify you as
set forth in RDA's Charter as of the Effective Date (or as
protection improves under the Charter in the future) against
all expenses (including attorneys' fees), judgments, fines,
and amounts paid in settlement to the fullest extent the
applicable state's laws now or in the future permit, and this
covenant adds to any protection you may have under RDA's by-
laws. RDA represents to you that it has in place and will
maintain appropriate levels of errors and omissions and
directors' and officers' insurance. This Indemnification;
Insurance section will remain in effect even after your
employment or this Agreement ends.
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Amendment; Neither you nor RDA may modify, amend, or waive the terms of
Waiver this Agreement other than by a written instrument signed by
you and a duly authorized officer of RDA (with the Board's
approval). Either party's waiver of the other party's
compliance with any provision of this Agreement is not a
waiver of any other provision of this Agreement or of any
subsequent breach by such party of a provision of this
Agreement.
Severability; To the extent that any other provision of this Agreement is
Judicial determined to be unenforceable, such provision will be severed
Modification from this Agreement and the remaining provisions will remain
fully enforceable as if such unenforceable provision had not
been included herein. The parties agree that if a Court
determines any of the provisions hereof related to non-
competition are unenforceable the Court may modify this
Agreement or any of its terms so as to permit the enforcement
thereof as modified.
Conflicting You hereby represent and warrant to RDA that execution of this
Agreements Agreement and the performance of his obligations hereunder
will not breach or be in conflict with any other agreement to
which you may be a party or may be bound and you are not
subject to any covenants that would affect your duties and
obligations hereunder. You agree not to use for the benefit of
RDA any proprietary information of a third party without such
third party's consent.
Withholding RDA will reduce its compensatory payments to you for
withholding and FICA taxes and any other withholdings and
contributions required by law.
Expiration Expiration of this Agreement, whether because of notice of
non-renewal or otherwise, does not entitle you to Severance,
except as otherwise provided under Payments on Termination for
terminations that occur before the conclusion of the Term.
Governing Law The laws of the State of Maryland (other than its conflict of
laws provisions) govern this Agreement.
Notices Notices must be given in writing by personal delivery, by
certified mail, return receipt requested, by telecopy, or by
overnight delivery. You should send or deliver your notices to
the offices of RDA. RDA will send or deliver any notice given
to you at your address as reflected on RDA's personnel
records. You and RDA may change the address for notice by like
notice to the other. You and RDA agree that notice is received
on the date it is personally delivered, the date it is
received by certified mail, the
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date of guaranteed delivery by the overnight service, or the
date the fax machine confirms effective transmission.
RDA CORPORATION
By: /s/ Stephen F. Kupres
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Stephen F. Kupres
Chief Financial Officer, Senior Vice President of
Finance and Assistant Treasurer
I accept and agree:
/s/ R. Donald Awalt
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R. Donald Awalt
August 21, 2000
Dated:--------------------
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Exhibit A
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Dispute Resolution
Mediation If either party has a dispute or claim relating to this Agreement
or their relationship and except as set forth in Alternatives,
the parties must first seek to mediate the same before an
impartial mediator the parties mutually designate, at the
Company's expense (other than their respective attorneys' fees).
Subject to the mediator's schedule, the mediation must occur
within 45 days of either party's written demand. However, in an
appropriate circumstance, a party may seek emergency equitable
relief from a court of competent jurisdiction notwithstanding
this obligation to mediate.
Binding If the mediation reaches no solution or the parties agree to
Arbitration forego mediation, the parties will promptly submit their disputes
to binding arbitration before one or more arbitrators
(collectively or singly, the "Arbitrator") the parties agree to
select (or whom, absent agreement, a court of competent
jurisdiction selects). The arbitration must follow applicable law
related to arbitration proceedings and, where appropriate, the
Commercial Arbitration Rules of the American Arbitration
Association.
Arbitration All statutes of limitations and substantive laws applicable to a
Principles court proceeding will apply to this proceeding. The Arbitrator
will have the power to grant relief in equity as well as at law,
to issue subpoenas duces tecum, to question witnesses, to
consider affidavits (provided there is a fair opportunity to
rebut the affidavits), to require briefs and written summaries of
the material evidence, and to relax the rules of evidence and
procedure, provided that the Arbitrator must not admit evidence
it does not consider reliable. The Arbitrator will not have the
authority to add to, detract from, or modify any provision of
this Agreement. The parties agree (and the Arbitrator must agree)
that all proceedings and decisions of the Arbitrator will be
maintained in confidence, to the extent legally permissible, and
not be made public by any party or the Arbitrator without the
prior written consent of all parties to the arbitration, except
as the law may otherwise require.
Discovery; The parties have selected arbitration to expedite the resolution
Evidence; of disputes and to reduce the costs and burdens associated with
Presumptions litigation. The parties agree that the Arbitrator should take
these concerns into account when determining whether to authorize
discovery and, if so, the scope of permissible discovery and
other hearing and pre-hearing procedures. The Arbitrator may
permit reasonable discovery rights in preparation for the
arbitration, provided that it should accelerate the scheduling of
and responses to such discovery so as not to unreasonably delay
the arbitration. Exhibits must be marked and left with the
Arbitrator until it has rendered a decision. Either party may
elect, at its expense, to record
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the proceedings by audiotape or stenographic recorder (but not
by video). The Arbitrator may conclude that the applicable law
of any foreign jurisdiction would be identical to that of
Maryland on the pertinent issue(s), absent a party's providing
the Arbitrator with relevant authorities (and copying the
opposing party) at least five business days before the
arbitration hearing.
Nature of Award The Arbitrator must render its award, to the extent feasible,
within 30 days after the close of the hearing. The award must
set forth the material findings of fact and legal conclusions
supporting the award. The parties agree that it will be final,
binding, and enforceable by any court of competent
jurisdiction. Where necessary or appropriate to effectuate
relief, the Arbitrator may issue equitable orders as part of or
ancillary to the award. The Arbitrator must equitably allocate
the costs and fees of the proceeding and may consider in doing
so the relative fault of the parties.
Appeal The parties may appeal the award based on the grounds allowed
by statute, as well as upon the ground that the award
misapplies the law to the facts, provided that such appeal is
filed within the applicable time limits law allows. If the
award is appealed, the court may consider the ruling, evidence
submitted during the arbitration, briefs, and arguments but
must not try the case de novo. The parties will bear the costs
and fees associated with the appeal in accordance with the
arbitration award or, in the event of a successful appeal, in
accordance with the court's final judgment.
Alternatives This Dispute Resolution provision does not preclude a party
from seeking equitable relief from a court (i) to prevent
imminent or irreparable injury or (ii) pending arbitration, to
preserve the last peaceable status quo, nor does it preclude
the parties from agreeing to a less expensive and faster means
of dispute resolution.
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