EXHIBIT 10.5
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Agreement") made this 21st day of January,
1998, by between RDA CONSULTANTS LIMITED ("RDA"), and Xxxxxx X. Xxxxxxxx
("Employee").
RECITALS
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R-1. RDA is engaged in the computer software development and consulting
services business; and
R-2. Employee has been employed by RDA as a member of the executive
management team and the parties desire to enter into this Agreement to
memorialize the terms of Employee's continued employment with RDA now as Vice
President of Sales and Marketing.
NOW THEREFORE, in consideration of the premises, the mutual covenants
herein contained and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties covenant and agree as
follows:
1. DUTIES OF EMPLOYEE. Employee shall devote full time, energy, skill
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and best efforts to the business of RDA as directed by its president, including
management duties of the corporation. Employee's duties shall include, but not
be limited to, management activities pertaining to the corporation and its
branches.
2. COMPENSATION. RDA will pay Employee at the rate of $160,000 per year,
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payable bi-weekly. Employee will be eligible for incentive bonuses of up to
$5,000 per quarter based on the satisfaction of quarterly objectives as
established by RDA. Employee will receive commission payments of $12,500 per
quarter for RDA attaining its margin (revenue minus direct cost) goals. These
commissions will be decreased by 1% or $125 for every 1% of RDA's margin goal
that is not attained in a given month, up to a maximum of 10%. These
commissions will also be increased by 1.5% or $187.50 for every 1% of RDA's
margin goal that is attained in excess of plan in a given month, to a maximum of
10%. Employee will receive an incentive bonus of $10,000 for successful
attainment of RDA's corporate head count figure for consultants by December 31,
1998. Employee will receive an incentive bonus of $10,000 for successful
attainment of RDA's annual margin goal for 1998. Margin and headcount goals
will be in accordance with RDA's financial plan for 1998.
3. CONFIDENTIALITY. During the term of this Agreement, and at any and all
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times thereafter, Employee shall hold in confidence, and not disclose to any
third party, except to authorized persons in the course of his work for RDA, and
will not use for the benefit of himself or any other individual or entity,
without the consent of RDA, any information of a confidential nature of which
Employee becomes aware in the course of his work for RDA, or which he obtained
in connection with his 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. Employee shall hold and use articles representing or
disclosing such confidential information only in the manner as authorized by RDA
and shall not make unauthorized copies thereof. Upon termination of employment,
and at any other time upon request, Employee shall 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
Employee's possession, it being agreed that all such records, memoranda, notes,
files, and documents are property of RDA no matter where located. Employee
agrees not to make or retain any copy or extract thereof. Employee agrees to
comply with and be bound by the terms of any confidentiality agreement to which
RDA is bound concerning confidential information of its clients.
4. WORK PRODUCT. Employee acknowledges and agrees that any and all
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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) which Employee 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, and whether at the
request or upon the suggestion of RDA or otherwise, which 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"), shall be the sole and
exclusive property of RDA. Employee shall make full disclosure to RDA of all
such Intellectual Work Product, and shall do everything necessary or desirable
to vest absolute title thereto in RDA. Employee shall 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 shall be the sole and absolute owner thereof in all
countries in which it may desire to have copyright or patent protection.
Employee shall not be entitled to any additional or special compensation or
reimbursement regarding any and all such Intellectual Work Product.
Employee acknowledges and agrees that all such Intellectual Work Product
that is copyrightable shall be considered to be a work made for hire under
United States copyright law and that such Intellectual Work Product shall, 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, Employee hereby assigns
to RDA the ownership of copyright in such Intellectual Work Product, without the
necessity of any further consideration, and RDA shall be entitled to obtain and
hold in its own name all copyrights with respect thereto.
To the extent that Employee 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) Employee hereby irrevocably assigns and transfers to RDA all of his 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)
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under patent, copyright, trade secret and trademark law, in perpetuity or for
the longest period otherwise permitted by law. Employee acknowledges and agrees
that RDA may contract with clients to provide that Intellectual Work Product
shall be a work for hire belonging to the client and may additionally assign all
ownership rights to client. Employee hereby irrevocably consents to such
contracts and assignments.
5. TERMINATION. This Agreement may be terminated by either party hereto
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for any reason whatsoever upon ten (10) days written notice to the other. Upon
such termination, Employee shall receive two weeks pay unless he is discharged
for cause.
RDA may terminate this Agreement and discharge Employee at any time for
cause which shall include insubordination, gross negligence, any violation of
any express direction or any reasonable rule or regulation established by RDA
from time to time regarding the conduct of its business, or any violation by
Employee of the terms and conditions of this Agreement, criminal conduct
(whether or not related to Employee's employment), incompetence, intoxication,
drug addiction, in which event RDA shall have no further obligations or
liabilities hereunder after the date of such discharge. The provisions of
Sections 3, 4, 6, 7, and all other provisions hereof relating to
confidentiality, work product and non-competition shall expressly survive
termination.
6. COVENANT NOT TO COMPETE. During the term of this Agreement and for a
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period of two (2) years from the date of termination, regardless of the reason
for termination, Employee agrees that he 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. Employee agrees that should this Agreement be
terminated, Employee shall not communicate with Clients so as to in any way
indicate that Employee's relationship with RDA has terminated or that Employee
is conducting business at any address other than that of RDA. Moreover, during
the two (2) year period following termination, Employee agrees that he shall
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 Employee's employment
or who terminated his employment for any reason during the six (6) months
preceding the termination of Employee's employment with RDA.
As used in this Agreement, the term "Clients" or "clients" shall mean and
include, but not necessarily be 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 prior to or during the
term of Employee's 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 Employee's
association with RDA or within the two year period immediately prior to the
first day of Employee's association with RDA, and (4) any individual or
organization which 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 prior to the
commencement of tenure of Employee at RDA.
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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.
7. REMEDIES. Employee agrees that in the event of any breach or
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threatened breach by Employee of the provisions of this Agreement, including,
but not limited to, those provisions dealing with work product, confidentiality
and non-competition, RDA will suffer immediate and irreparable injury, and RDA,
without notice to Employee, may apply to any Court of competent jurisdiction for
the entry of an immediate Order for an injunction restraining the breach of any
said provision of the Agreement by Employee, 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 Employee. The provisions of this Agreement
pertaining to work product, confidentiality and non-competition shall 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.
8. AUTHORITY TO BIND RDA. The Employee may make disbursements, make
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purchases or incur liabilities on behalf of RDA only as permitted under written
company policy.
9. CONFLICTING AGREEMENTS. The Employee hereby represents and warrants to
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RDA that execution of this Agreement and the performance of his obligations
hereunder will not breach or be in conflict with any other agreement to which he
may be a party or may be bound and is not subject to any covenants that would
affect his duties and obligations hereunder. The Employee shall not use for the
benefit of RDA any proprietary information of a third party without such third
party's consent.
10. OUTSIDE ACTIVITIES. Employee agrees that as this is a full time and
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best efforts agreement, he shall not, without prior written consent of RDA,
provide services for compensation to any person or entity, as an employee,
consultant or otherwise, during the term of this Agreement.
11. SEVERABILITY; JUDICIAL MODIFICATION. To the extent that any other
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provision of this Agreement shall be determined to be unenforceable such
provision shall be severed from this Agreement and the remaining provisions
shall 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.
12. APPLICABLE LAW; NO WAIVER; MISCELLANEOUS. This Agreement shall be
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construed in accordance with the laws of the State of Maryland. This Agreement
shall be binding upon the parties hereto and their respective heirs, personal
representatives, successors and assigns. This is the final agreement between
the parties replacing all other prior understandings and agreements, whether
oral or written, all of which are merged herein. Any amendment hereto must be
in writing and signed by the parties. The failure of RDA to exercise any of its
rights hereunder upon breach of Employee shall not constitute a waiver upon the
continuation or recurrence of any such breach. This Agreement may be assigned
by RDA but may not be assigned by Employee.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first above written.
ATTEST: RDA CONSULTANTS LIMITED
/s/ [Illegible] /s/ R. Xxxxxx Xxxxx
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R. Xxxxxx Xxxxx
Title: President
WITNESS:
/s/ [Illegible] /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
Employee
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