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EXHIBIT 10.11
RDA Corporation
Senior Bonus Plan
Purpose RDA Corporation, a Delaware corporation (the "Company"),
wishes to motivate, reward, and retain key senior executives
of the Company and its subsidiaries. To further these
objectives, the Company hereby sets forth this RDA
Corporation Senior Bonus Plan (the "Plan"), effective as of
August 15, 2000, to provide participants with incentives
("Individual Award Opportunities") to earn performance-based
bonus awards ("Awards"), in accordance with Section 162(m)
("Section 162(m)") of the Internal Revenue Code of 1986 (the
"Code"). (All references to "Section 162(m)" or any other
Code provision include successor provisions, related
regulations, and amendments.)
Participants During each Performance Period, the Committee may designate
some or all of the Executive Officers of the Company
(including those of any subsidiary, operating unit, or
division) as eligible for Individual Award Opportunities
under this Plan. "Participants" are persons the Committee
designates who have not been paid all amounts, if any, due
them under the Plan. Eligible Executive Officers are
Participants only with respect to Performance Periods for
which the Committee designates them for participation under
the Plan.
"Executive Officer" has the meaning set forth in Rule 3b-7
issued under the Securities Exchange Act of 1934, each as
amended from time to time, and anyone else the Committee
determines to treat as an Executive Officer for purposes of
this Plan.
Administrator The Plan's Administrator will be a committee (the
"Committee") of the Company's Board of Directors (the
"Board") designated by the Board to be responsible for
administering and interpreting the Plan. The Committee will
include two or more directors, each of whom qualifies as an
"outside director" within the meaning of Section 162(m), and
those outside directors will have exclusive authority under
this Plan to make Awards and establish and determine
satisfaction of Performance Goals. The Committee may satisfy
this requirement through (i) providing that persons who are
not "outside directors" cannot vote on an issue, (ii)
allowing those persons to abstain from voting, or (iii)
creating a subcommittee of qualifying outside directors to
take action with respect to this Plan. If a Committee member
intended to qualify as an outside director
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does not in fact so qualify, the mere fact of such
nonqualification will not invalidate the payment of any
Award or other action by the Committee under the Plan that
was otherwise valid under the Plan.
The Committee is responsible for the general operation and
administration of the Plan and for carrying out its
provisions and has full discretion in interpreting and
administering the provisions of the Plan. Subject to the
express provisions of the Plan, the Committee may exercise
such powers and authority of the Board as the Committee may
find necessary or appropriate to carry out its functions.
The Committee will exercise its powers under the Plan in a
manner that preserves the Company's Federal income tax
deduction for payments made under the Plan, in accordance
with the requirements of Section 162(m), to the maximum
practical extent.
General Subject to the terms of the Plan and after taking into
Responsibilities account the recommendations of the Company's Chief Executive
of the Committee Officer, for each Performance Period the Committee will:
determine any bonus pool award opportunities available,
designate the Executive Officers who will be
Participants in the Plan,
establish each Participant's Individual Award
Opportunity,
define Performance Goals and other Award terms and
conditions for each Participant,
determine and certify the Award amounts earned, based
on actual performance as compared to the Performance
Goals,
determine and make permitted Negative Discretion
Adjustments to Awards otherwise earned, and
decide whether, under what circumstances, and subject
to what terms, Awards will be paid on a deferred basis
(including automatic deferrals at the Committee's
election or elective deferrals at the election of
Participants).
Unless the Plan otherwise expressly provides, all
designations, determinations, interpretations, and other
decisions made under or with respect to the Plan and all
Awards made under the Plan are within the sole and absolute
discretion of the Committee and will be final, conclusive
and binding on all persons, including the
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Company, Participants, and Beneficiaries or other persons
having or claiming any rights under the Plan.
Participant The Committee will designate the Participants in the Plan
Designations for each Performance Period within the Applicable Period,
and with reference to the fiscal year for which the Company
would be entitled to a Federal tax deduction for payment of
Awards in respect of the Performance Period (the "Deduction
Year"). The Committee will make its designations primarily
by taking into account which Executive Officers:
are likely to be Executive Officers of the Company as
of the last day of the Deduction Year,
are reasonably expected to have individual compensation
for the Deduction Year that may be in excess of $1
million, not including compensation that is excluded
under Section 162(m) as payable under a "performance
based" plan other than this Plan, and
are reasonably expected to be "covered employees" for
the Deduction Year for purposes of Section 162(m).
The Committee may also take into consideration other factors
that it deems appropriate.
Individual Individual Award Opportunity means a Participant's
Award opportunity to earn an Award for a given Performance Period,
Opportunities based on the achievement of the Participant's Performance
Goals. The Committee will establish each Participant's
Individual Award Opportunity, within the Applicable Period,
for each Performance Period.
An Individual Award Opportunity may be expressed in dollars
or may be based on a formula that is consistent with the
provisions of the Plan. If Individual Award Opportunities
are expressed in terms of shares of any bonus pool, the
shares of such bonus pool designated for Individual Award
Opportunities may not exceed 100% of the pool for any
Performance Period.
Performance The Committee will, within the Applicable Period, set one or
Goals more Performance Goals for a Performance Period for each
Participant, and/or each group of Participants, and/or each
bonus pool (if any). Performance Goals will be based
exclusively on one or more of the following corporate-wide
or parent, subsidiary, division, or operating unit financial
measures:
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earnings before interest expense, taxes, depreciation
and amortization,
earnings per share,
total stockholder return,
total stockholder return as compared to total return on
a comparable basis, of a publicly available index like
the Standard & Poor's 500 Stock Index,
return on equity, on capital or on investment,
ratio of debt to stockholders' equity,
customer growth,
working capital,
pretax or after tax net income or earnings,
operating income,
gross revenue,
profit or operating margin,
stock price,
cash flow(s),
strategic business criteria, consisting of one or more
objectives based on meeting specified revenue, market
penetration, geographic business expansion goals, cost
targets, and goals relating to acquisitions or
divestitures,
head count,
or any combination of these measures (in each case
before or after such objective income and expense
allocations or adjustments as the Committee may specify
within the Applicable Period).
Each Performance Goal may be expressed in absolute and/or
relative terms, may be based on or use comparisons with
current internal targets, the past performance of the
Company (including the performance of one or more
subsidiaries, divisions and/or operating units) and/or the
past or current performance of other companies. In the case
of earnings-based measures, Performance Goals may use
comparisons relating to capital (including, but limited to,
the cost of capital), shareholders' equity and/or shares
outstanding, or to assets or net assets.
In all cases, Performance Goals are to be set in a manner
that will satisfy any applicable requirements under Treas.
Reg. Sec. 1.162-27(e)(2) (as amended from time to time).
Such requirements include requirements that achieving
Performance Goals be `substantially uncertain' at the time
that they are established, that Performance Goals be defined
in such a way that a third party with knowledge of the
relevant facts could determine whether and to what extent
the Goals have been met, and such a third party could
determine the maximum amount of the resulting Award payable
(subject to the Committee's right to make Negative
Discretion Adjustments).
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The measures used in setting Performance Goals under the
Plan for any given Performance Period will be determined in
accordance with generally accepted accounting principles
("GAAP") and in a manner consistent with the methods used in
the Company's audited financial statements, without regard
to (i) extraordinary items as determined by the Company's
independent public accountants in accordance with GAAP, (ii)
changes in accounting, unless, in each case, the Committee
decides otherwise within the Applicable Period, or (iii)
nonrecurring acquisition expenses and restructuring charges.
Payment Subject to the limitations set forth in this section, Awards
of Awards determined under the Plan for a Performance Period will be
paid to Participants in cash or, if the Company's equity
plans permit, in shares of Company stock or other equity
based awards. Awards will be paid as soon as practicable
following the end of the Performance Period to which the
Awards apply.
Certification No Award will be paid unless and until the Committee,
based on the Company's audited financial results for
such Performance Period (as prepared and reviewed by
the Company's independent public accountants), has
certified in the manner prescribed under applicable
regulations the extent to which the Performance Goals
for the Performance Period have been satisfied and has
made its decisions regarding the extent of any Negative
Discretion Adjustment of Awards.
Deferral The Committee may specify that a portion of the Award
for any given Performance Period will be paid on a
deferred basis, in accordance with any Award payment
rules the Committee may establish and announce for the
Performance Period.
Continued The Committee may require that Participants for a
Employment Performance Period must still be employed as of end of
the Performance Period and/or as of the later date that
the Awards for the Performance Period are announced to
be eligible for an Award for the Performance Period.
Any such requirement must be established and announced
within the Applicable Period, and may be subject to
such exceptions as the Committee may specify within the
Applicable Period.
Performance A Performance Period is a period for which Performance Goals
are
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Period set and during which performance is to be measured to
determine whether a Participant is entitled to payment of an
Award under the Plan. A Performance Period may coincide with
one or more complete or partial fiscal years of the Company.
Applicable The Applicable Period with respect to any Performance Period
Period means a period beginning on or before the first day of the
Performance Period and ending no later than the earlier of
(i) the 90th day of the Performance Period or (ii) the date
on which 25% of the Performance Period has been completed.
Any action required under the Plan to be taken within the
Applicable Period may be taken at a later date only if the
provisions of Section 162(m) or the regulations thereunder
are modified, or are interpreted by the Internal Revenue
Service, to permit such later date. In such event, the
definition of the Applicable Period under this Plan will be
deemed to be amended accordingly.
Forfeiture Within the Applicable Period and subject to the Committee
or Proration certification required for payment of Awards, the Committee
may adopt such forfeiture, proration, or other rules as it
deems appropriate, in its sole and absolute discretion,
regarding the impact on Awards of (i) a Participant's death,
Disability, voluntary termination of employment, termination
of employment by the Company and its subsidiaries other than
for Cause, or termination of employment by the Company and
its subsidiaries for Cause, or (ii) a Substantial Corporate
Change.
Employment "Termination of employment" means the time when the
Termination employer-employee or other service-providing
relationship between the Participant and the Company
and its subsidiaries ends for any reason. The
Committee, in its sole discretion, will determine all
questions of whether particular terminations or leaves
of absence are terminations of employment.
Disability "Disability" means `disability' as defined in any
employment agreement then in effect between the
Participant and the Company or, if not defined in that
agreement or if there is no such agreement, as defined
in the Company's long-term disability plan as in effect
from time to time, or if there is no plan or if not
defined therein, the Participant's physical or mental
incapacity and consequent inability for a period of 120
days in any twelve
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consecutive month period to perform his duties to the
Company.
Cause "Cause" means `cause' as defined in any employment
agreement then in effect between the Participant and
the Company or if not defined in such an agreement or,
if there is no such agreement, where the Participant:
commits any act of fraud, willful misconduct, or
dishonesty in connection with his employment or
that injures the Company or its direct or indirect
subsidiaries;
breaches any other material provision of any
agreement between the Participant and the Company
or a subsidiary of the Company relating to the
Participant's employment or breaches any fiduciary
duty to the Company or its direct or indirect
subsidiaries;
fails, refuses, or neglects to timely perform any
material duty or obligation relating to his
position;
commits a material violation of any law, rule,
regulation, or bylaw of any governmental authority
(state, Federal, or foreign), any securities
exchange or association or other regulatory or
self regulatory body or agency applicable to the
Company or its direct or indirect subsidiaries;
commits a material violation of any general policy
or directive of the Company or its direct or
indirect subsidiaries communicated in writing to
the Participant; or
is charged with a crime involving dishonesty,
fraud, or unethical business conduct, or a felony.
Substantial "Substantial Corporate Change" has the same meaning as
Corporate Change set forth in the Company's 2000 Employee Stock Purchase
Plan, as amended from time to time, provided that the
Committee may lower the percentages in the definition
from 100% or "all" to "50%."
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Limitation on Notwithstanding any other provision of this Plan, the
Awards maximum Award payable under the Plan to any individual
Participant in any single calendar year will be $3 million.
Negative The Committee's powers include the power to make Negative
Discretion Discretion Adjustments, which are adjustments that eliminate
Adjustments or reduce (but not increase) an Award otherwise payable to a
Participant for a Performance Period. No Negative
Discretion Adjustment may cause an Award to fail to qualify
as "performance based compensation" under Section 162(m).
Other A Participant in this Plan may not also participate in the
Plans Company's general bonus plans during any Performance Period
for which such participation would cause an Award under this
Plan to fail to qualify as "performance based" under Section
162(m).
Awards will not be treated as compensation for purposes of
any other compensation or benefit plan, program, or
arrangement of the Company or any subsidiary unless and
except to the extent that the Board or the Committee
determines in writing.
Neither the adoption of this Plan nor the submission of the
Plan to the Company's shareholders for approval will be
construed as limiting the power of the Board or the
Committee to adopt such other incentive arrangements as
either may otherwise deem appropriate.
Legal The Company will not make payments of Awards until all
Compliance applicable requirements imposed by Federal and state laws,
rules, and regulations, and by any applicable regulatory
agencies, have been fully met. No provision in the Plan or
action taken under it authorizes any action that Federal or
state laws otherwise prohibit.
The Plan is intended to conform with all provisions of
Section 162(m) and Treas. Reg. (S) 1.162-27 to the extent
necessary to allow the Company a Federal income tax
deduction for Awards as "qualified performance based
compensation."
Notwithstanding anything in the Plan to the contrary, the
Committee must administer the Plan, and Awards may be
granted and paid, only in a manner that conforms to such
laws, rules, and regulations. To the extent permitted by
applicable law, the Plan will be treated as amended to the
extent necessary to conform to such laws, rules, and
regulations.
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Tax Withholding The Company may make all appropriate provisions for the
withholding of Federal, state, and local taxes imposed with
respect to Awards, which provisions may vary with the time
and manner of payment.
Nontransfer Except as and to the extent the law requires, or as the Plan
of Rights expressly provides, a Participant's rights under the Plan
may not be assigned, pledged, or otherwise transferred in
any way, whether by operation of law or otherwise or through
any legal or equitable proceedings (including bankruptcy),
by the Participant to any person.
Beneficiary Each Participant may designate in a written form filed with
Designations the Committee (or another designated recipipient) the person
or persons (the "Beneficiary" or "Beneficiaries") to receive
the amounts (if any) payable under the Plan if the
Participant dies before the Award payment date for a
Performance Period. A Beneficiary designation filed under
this section will not be considered a prohibited transfer of
rights.
A Participant may change a Beneficiary designation at any
time without the Beneficiary's consent (unless otherwise
required by law) by filing a new written Beneficiary
designation with the Committee. A Beneficiary designation
will be effective only if the Company is in receipt of the
designation before the Participant's death.
If no effective Beneficiary designation is made, the
beneficiary of any amounts due will be the Participant's
estate.
Amendment or Subject to the limitations set forth in this section, the
Termination Board may amend,suspend, or terminate the Plan at any time,
of Plan without the consent of the Participants or their
Beneficiaries.
Without the Participant's written consent, no amendment or
termination may materially adversely affect the Award rights
(if any) of any already designated Participant for a given
Performance Period once the Committee has announced the
Participant designations and Performance Goals for such
Performance Period.
The Board or the Committee may make any amendments necessary
to comply with applicable regulatory requirements, including
Section 162(m) and regulations thereunder.
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The Board must submit any Plan amendment to the Company's
shareholders for their approval if and to the extent such
approval is required under Section 162(m).
Limitations on No member of the Committee and no other individual acting as
Liability a director, officer, other employee or agent of the Company
will be liable to any Participant, former Participant,
spouse, Beneficiary, or any other person for any claim,
loss, liability, or expense incurred in connection with the
Plan. No member of the Committee will be liable for any
action or determination (including, but limited to, any
decision not to act) made in good faith with respect to the
Plan or any Award under the Plan. If a Committee member
intended to qualify as an `outside director' under Section
162(m) does not in fact so qualify, the mere fact of such
nonqualification will not invalidate any award or other
action made by the Committee under the Plan that otherwise
was validly made under the Plan.
The Company will indemnify and hold harmless each member of
the Committee, director, officer, other employee, or agent
of the Company to whom it or another has delegated or does
delegate any duty or power relating to the administration or
interpretation of the Plan, against any cost or expense
(including attorneys' fees) or liability (including any sum
paid in settlement of a claim with the Board's approval)
arising out of any act or omission to act concerning this
Plan unless arising out of such person's own fraud or bad
faith.
No Employment Nothing contained in this Plan constitutes an employment
Contract contract between the Company and the Participants. The Plan
does not give any Participant any right to be retained in
the Company's employ, nor does it enlarge or diminish the
Company's right to end the Participant's employment or other
relationship with the Company.
Applicable Law The laws of the State of Delaware (other than its choice of
law provisions) govern this Plan and its interpretation.
Duration of The Plan will remain effective until terminated by the
the Plan Board, provided, however, that the continued effectiveness
of the Plan will be subject to the approval of the Company's
shareholders at such times and in such manner as Section
162(m) may require.
Disclosure and The Plan must be submitted to Company shareholders for their
Approval of approval. The specific terms of the Plan, including the
the Plan class of employees eligible to be Participants, the
Performance Goals, and the terms of payment of Awards, must
be disclosed to the
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shareholders to the extent Section 162(m) requires. The
shareholders must approve the Plan by a separate vote after
such disclosure. If the shareholders do not approve the
Plan, the Plan will be treated as void and of no effect.
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