Exhibit 10.15
AMENDMENT AND RESTATEMENT
OF
EMPLOYMENT AGREEMENT
THIS AMENDMENT AND RESTATEMENT is made and entered into as of September
29, 2000 in order to amend and restate in its entirety the following Employment
Agreement between the parties named below. The amendments made by this Amendment
and Restatement shall be effective as of August 23, 1999 (being the date of the
Compensation and Organization Committee meeting that approved these amendments)
but the other provisions of the Agreement shall be dated as of the original date
of the Agreement or as of the date of any prior amendments, as the case may be.
This Amendment and Restatement is intended to embody all previously agreed
amendments and to supercede all prior versions of the Agreement.
DATE 24 June 1999
PARTIES
1 RADICA GAMES LIMITED, a Bermuda company, having a registered address at
Xxxxxxxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxxxxx XX00, Xxxxxxx
2 XXXX XXXXXXX who resides at 00 Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxxxx XX0
0XX
RECITALS
A Radica is engaged through its subsidiaries in designing and manufacturing
electronic and mechanical gifts and games for worldwide sale, and ODM
manufacturing for others.
B Employee is currently Sales Director of Leda Media Products ("LMP") and
has substantial executive management experience.
C Radica desires to secure the services of Employee, and Employee is
willing to provide such services, each upon the terms and subject to the
conditions set forth in this Agreement.
AGREEMENT
1 DEFINITIONS
For the purposes of this Agreement, the parties hereby adopt the
following definitions:
CAUSE:
(i) breach by Employee of a fiduciary obligation to any member of
Radica Group;
(ii) commission by Employee of any act or omission to perform any act
(excluding the omission to perform any act attributable to
Employee's Total Disability) which results in serious adverse
consequences to any member of Radica Group;
(iii) breach of any of Employee's agreements set forth in this Agreement
including, but not limited to, continual failure to perform
substantially his duties with Radica Group, excessive absenteeism
and dishonesty;
(iv) any attempt by Employee to assign or delegate this Agreement or
any of the rights, duties, responsibilities, privileges or
obligations hereunder without the prior written consent of Radica
(except in respect of any delegation by Employee of his employment
duties hereunder to other employees of Radica Group in accordance
with its usual business practice);
(v) Employee's being charged or indictment for, or written confession
of, a felony or any crime involving moral turpitude under the laws
of the United Kingdom or Bermuda or the United States or any state
of Hong Kong other than an offence under the Road Traffic Acts for
which non-custodial penalty is imposed;
(vi) death of Employee;
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(vii) declaration by a court that Employee is insane or incompetent to
manage his business affairs; or
(viii) the filing of any petition or other proceeding seeking to find
Employee bankrupt or insolvent;
EMPLOYEE: Xxxx Xxxxxxx;
1994 PLAN: the 1994 stock option plan adopted by Radica, as amended from
time to time;
RADICA: Radica Games Limited, a Bermuda company;
RADICA GROUP: Radica and any other corporation or other entity which at
the relevant time is more than fifty percent (50%) owned, directly or
indirectly, by Radica;
RESTRICTED TERRITORIES: the United Kingdom, the Channel Islands, the Isle
of Man, the Republic of Ireland. France, Germany, China, Austria,
Belgium, Czech Republic, Greece, Holland, Italy, Portugal, Scandinavia,
Spain, Switzerland and any other country in which Radica or Radica Group
is resident or otherwise carries on business at the Termination Date;
TERMINATION: according to the context, the termination of this Agreement
or the cessation of rendering employment services by Employee;
TOTAL DISABILITY: Employee shall become disabled to an extent which
renders him unable to perform the essential functions of his job, with or
without reasonable accommodation, for a cumulative period of twelve (12)
weeks in any twelve (12) month period.
CHANGE IN CONTROL: shall be deemed to have occurred if, at any time after
the commencement of employment hereunder: (i) any person or group of
persons (as defined in Section 13(d) and 14(d) of the Securities Exchange
Act of 1934, as amended (the "1934 Act")) together with its affiliates,
excluding employee benefit plans of Radica, is or becomes, directly or
indirectly, the "beneficial owner" (as defined in rule 13d-3 promulgated
under the 0000 Xxx) of securities of Radica
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representing 50% or more of the combined voting power of Radica's then
outstanding securities; or (ii) as a result of a proxy contest, merger,
consolidation, sale of assets, tender offer or exchange offer or as a
result of any combination of the foregoing, Directors who were members of
the Board of Directors of Radica two years prior to such time and new
Directors whose election or nomination for election by Radica's
shareholders was approved by a vote of at least two-thirds of the
Directors still in office who were Directors two years prior to such
time, cease to constitute at least two-thirds of the members of the Board
of Directors of Radica; or (iii) the shareholders of Radica approve a
merger or consolidation of Radica with any other corporation or entity
regardless of which entity is the survivor, other than a merger or
consolidation which would result in the voting securities of Radica
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or being converted into voting securities of the
surviving entity) at least 50% of the combined voting power of the voting
securities of Radica or such surviving entity outstanding immediately
after such merger or consolidation; or (iv) the shareholders of Radica
approve a plan of complete liquidation or winding-up of Radica or an
agreement for the sale or disposition by Radica of all or substantially
all of Radica's assets.
GOOD REASON: shall mean the occurrence after a Change in Control of any
of the following events without the Employee's express written consent:
(i) the assignment to the Employee of duties inconsistent with his
position and status as an executive of the Radica Group, or a substantial
alteration in the nature, status or prestige of the Employee's
responsibilities with the Radica Group from those in effect immediately
prior to such Change in Control; or (ii) a reduction in the Employee's
base salary or bonus at the rate most recently approved by the Board
prior to the occurrence of such Change in Control; or (iii) any other
material adverse change in the terms or conditions, including location
and travel, of the Employee's employment hereunder following the
occurrence of such Change in Control.
2 EMPLOYMENT
2.1 Commencing 1 July 1999, Radica hereby employs Employee and Employee
hereby accepts employment by Radica to serve as Managing Director LMP. In
such capacity, Employee has responsibility for sales and distribution of
Radica's products
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in Europe. Employee shall perform services of an executive nature
consistent with his offices with Radica Group as may from time to time be
assigned or delegated to him by the Board of Directors of Radica
("Board").
2.2 Employee will, unless prevented by sickness, injury or other incapacity
or otherwise agreed by the Board, devote his full business time and
attention to his duties under this Agreement.
2.3 Employee shall perform his duties under this Agreement principally in the
United Kingdom and Europe. It is contemplated that Employee will
frequently travel to carry out his duties under this Agreement, including
travel to the offices of Radica subsidiaries in Dallas, Texas, Hong Kong
and California. Air travel and other travel arrangements will comply with
current Radica Group policies respecting class of travel, etc.
2.4 Radica Group will provide Employee, including his spouse and children
with medical and dental benefits, as provided to other officers of
similar seniority of Radica Group.
2.5 Radica Group will provide Employee with an automobile consistent with the
current practices of LMP. Radica Group will replace the automobile with
another motor vehicle suitable for the Employee's role and status of such
value and at such intervals as the Board of Radica Group may in its
reasonable discretion decide in accordance with the current custom and
practice within LMP.
2.6 Employee shall have five (5) weeks paid vacation during each year of this
Agreement taken at such times as mutually convenient to Employee and
Radica Group. This vacation is in addition to paid holidays that are
allowed under Radica policy.
3 TERM OF EMPLOYMENT
3.1 This Agreement and Employee's employment hereunder shall commence as of 1
July 1999 and continue for a minimum of two (2) years from this date.
Thereafter
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the Agreement may be terminated by either party upon six (6) months'
notice to the other party.
3.2 Notwithstanding Clause 3.1 above, this Agreement may be sooner terminated
by Radica for Cause.
3.3 On termination of this Agreement pursuant to Clause 3.1 above, or by
Radica for Cause, all benefits and compensation shall cease as of the
date of such Termination. On Termination of this Agreement by Employee
for Good Reason in the event of a Termination/Change in Control, all
benefits and compensation shall continue for twelve (12) months after
such a Termination.
4 BUSINESS EXPENSE REIMBURSEMENT
Employee will be entitled to reimbursement by Radica Group for the proper
business expenses paid by him on behalf of Radica Group in the course of
his employment hereunder on presentation to Radica Group of appropriate
vouchers (accompanied by receipts or paid bills) setting forth
information sufficient to establish:
4.1 the amount, date, and place of each such expense;
4.2 the business reason for each such expense and the nature of the business
benefit derived or expected to be derived as a result thereof; and
4.3 the names, occupations, addresses, and other information sufficient to
establish the business relationship to Radica Group of any person who was
entertained by Employee.
5 COMPENSATION
5.1 Radica agrees to pay Employee, and Employee agrees to accept from Radica,
during the first year after 1 July 1999, for the services to be rendered
by him hereunder a minimum salary at the rate of (pound)106,000 per year
payable monthly in arrears. Employee shall receive annual salary reviews
by the Board to take effect from 1 July
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in each year commencing 2000, provided that such salary shall not be
reduced below (pound)106,000 per year.
5.2 Employee shall be considered for annual bonuses pursuant to the Radica
Games Bonus Policy for officers of Radica Group. Such Radica Games Bonus
Policy describes potential amounts of bonus which may be earned in
respect of each fiscal year, but with no mandatory amount for any
particular employee. However, in the case of Employee in both fiscal
years 1999 and 2000, Employee shall be entitled to a guaranteed minimum
bonus of (pound)50,000 in each year under such plan under the conditions
that Employee has not terminated his employment before the plan payment
dates, been terminated for cause by Radica prior to such date, and that
LMP shall have been profitable in its normal trading activities in such
Radica fiscal year as the bonus payment pertains.
5.3 If Radica Group institutes a retirement, bonus or other benefit plan
which applies generally to executive officers of Radica Group of similar
status as Employee, Employee shall be entitled to participate therein,
but not to the extent such benefits would be duplicative of the benefits
herein.
5.4 All payments by Radica Group shall be subject to required withholdings
including taxes.
6 STOCK OPTIONS
6.1 As of the date of this agreement, Radica hereby grants to Employee an
option to purchase 50,000 shares of the common stock of Radica at the
current market price as of the date of this Agreement subject to the
terms and conditions of this Clause 6 and the 1999 Plan (the "Initial
Stock Option").
6.2 Additionally, at or promptly after the end of each of Radica's Annual
General Meetings held in 2000, 2001 and 2002 , Radica shall grant to
Employee an option (up to three such options in total) to purchase
twenty-five thousand (25,000) shares (up to 75,000 shares in the
aggregate) of the common stock of Radica at the then applicable market
price, subject to the terms and conditions of this Clause 6 and the 1999
Plan Provided, however, that each such grant shall be subject to the
conditions that (i) Employee continues to be employed in good standing by
Radica Group
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through the relevant date of grant and (ii) sufficient shares are
available under the 1999 Plan to cover Employee and other similarly
situated executives (i.e. adequate shares must be available for this
special programme in the option pool under the 1999 Plan). If such
quantity of shares is not available, the grant dates will roll forward by
one year per year until such shares are available. Such stock options
under this Clause 6.2 and the Initial Stock Option are herein called the
"Stock Options".
6.3 The Stock Options shall vest and become exercisable 20% per year for each
year Employee is employed by Radica Group following the date of grant,
commencing at the first anniversary of the date of grant.
6.4 The number of shares subject to the Stock Options will be adjusted for
stock splits and reverse splits Provided that such number of shares shall
not be adjusted if Radica should otherwise change or modify its
capitalisation, including but not limited to the issuance by Radica of
new securities (including options or convertible securities), ESOPs or
other employee stock plans. It is the intent of the parties that the
stock subject to the Stock Options shall be subject to dilution, except
for stock splits and reverse splits.
6.5 Any other provision hereof to the contrary notwithstanding (i) as of the
date of Termination in the event of Termination pursuant to Clause 3.1 or
Termination by Radica for Cause or by Employee without consent of Radica,
or (ii) twelve (12) months after the date of Termination in the event of
Termination by Radica without Cause or by Employee for Good Reason in the
event of a Termination/Change in Control or the Total Disability of
Employee (each of such applicable dates being called a "Determination
Date") Employee shall forfeit the Stock Options (measured by percentages
of the stock subject to the Stock Options) and they shall expire as
follows:
6.5.1 if the Determination Date is within the first year after the date the
Stock Option is granted (the "Grant Date") then Employee shall forfeit
100% of the stock subject to the Stock Option;
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6.5.2 if the Determination Date is after the end of said first year and within
the second year after the Grant Date, then Employee shall forfeit 80% of
the stock subject to the Stock Option;
6.5.3 if the Determination Date is after the end of said second year and within
the third year after the Grant Date, then Employee shall forfeit 60% of
the stock subject to the Stock Option;
6.5.4 if the Determination Date is after the end of said third year and within
the fourth year after the Grant Date, then Employee shall forfeit 40% of
the stock subject to the Stock Option; or
6.5.5 if the Determination Date is after the end of said fourth year and within
the fifth year after the Grant Date, then Employee shall forfeit 20% of
the stock subject to the Stock Option.
6.6 In any event each Stock Option shall expire to the extent not previously
exercised on the tenth anniversary of the Grant Date. Otherwise, Employee
may at any time within ninety (90) days following the Determination Date,
exercise his right to purchase stock subject to the Stock Options, but
subject to the foregoing provisions respecting vesting and forfeitures.
6.7 Employee shall have no right to sell, alienate, mortgage, pledge, gift or
otherwise transfer the Stock Options or any rights thereto, except by
will or by the laws of descent and distribution, and except as
specifically contemplated in the 1994 Plan. In any event, any transfer
must comply with applicable state and federal securities laws.
6.8 Upon Termination, Employee shall have no claim against Radica for loss
arising out of ineligibility to exercise any Stock Options granted to him
or otherwise in relation to the 1999 Plan or any other stock option plan
adopted by Radica and the rights of Employee shall be determined solely
by the rules of such plan(s) (as the case may be) in force at
Termination.
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7 CONFIDENTIALITY AND RESTRICTIONS FOLLOWING TERMINATION
7.1 Employee understands and agrees that he has been exposed to (or had
access to), and may be further exposed to (or have access to),
confidential information, knowhow, knowledge, data, techniques, computer
software and hardware, and trade secrets of Radica Group, including,
without limitation, customer or supplier requirements, notes, drawings,
writings, designs, plans, specifications, records, charts, methods,
procedures, systems, price lists, financial data, records, and customer
or supplier lists (collectively "Confidential Information").
Notwithstanding the above, the following shall not be considered
"Confidential Information" within the meaning of this sub-Clause: (i)
information known to Employee or to the public at the date of this
Agreement; and (ii) information which hereafter becomes known to the
public through no fault of Employee. Accordingly, except as permitted or
required in the performance of his duties for Radica Group, Employee
agrees not to disclose, divulge, make public, utilise, communicate or
use, whether for his own benefit or for the benefit of others, either
directly or indirectly, any Confidential Information relating to Radica
Group's business unless specifically authorised in writing by Radica to
do so.
7.2 Employee acknowledges that during the course of his employment he will be
privy to Confidential Information and that he will make, maintain and
develop personal knowledge of, influence over and valuable contacts with
customers, suppliers, staff and third parties. Employee therefore
covenants with Radica that:
7.2.1 he will not in the Restricted Territories for the period of one year
following Termination directly or indirectly in competition with Radica
or Radica Group engage in business with or be in any way interested in or
connected with any concern, undertaking, firm or body corporate which
engages in or carries on within any part of the Restricted Territories
any business which competes with any business carried on by Radica or
Radica Group as at Termination in which Employee was involved on behalf
of Radica or Radica Group at any time within the twelve months
immediately preceding Termination and in particular (but without
limitation) the business of the manufacture and distribution of
peripherals and accessories to the video games and PC games market;
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7.2.2 he will not in the Restricted Territories for the period of one year
following Termination directly or indirectly:-
7.2.2.1 interfere with or, in competition with Radica or Radica Group
in relation to any business which competes with any business
carried on by Radica or Radica Group at Termination in which
Employee was involved on behalf of Radica or Radica Group at
any time within the twelve months immediately preceding
Termination, offer or agree to provide goods or services of
any description to, or solicit or endeavour to entice away
from Radica or Radica Group the custom of any person, firm or
body corporate which, at any time during the period of twelve
months immediately preceding Termination, has been a customer
or client of, or in the habit of dealing with, Radica or
Radica Group or which, at any time during that period, was to
his knowledge negotiating with Radica or Radica Group in
relation to the provision of goods or services by Radica or
Radica Group;
7.2.2.2 interfere or seek to interfere with contractual or other
trade relations between Radica or Radica Group and any of its
or their respective suppliers in existence or under
negotiation at any time during the period of twelve months
immediately preceding Termination;
7.2.2.3 solicit the services of or endeavour to entice away from
Radica or Radica Group any director, senior or managerial
employee or consultant of Radica or Radica Group known
personally to the Executive (whether or not such person would
commit any breach of his contract of employment or engagement
by reason of leaving the service of such company) or
knowingly employ, assist in or procure the employment by any
other person, firm or body corporate of any such person.
7.3 The Executive agrees that the restrictions contained in Clause 7.2 shall
apply in relation to all customers and suppliers with whom he personally
has had dealings on behalf of Radica notwithstanding that such customers
and suppliers may have been introduced to Radica or Radica Group by
Employee before or during his
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employment with Radica. He further agrees that if any of the restrictions
in Clause 7.2 is held to be void or ineffective for any reason, but would
be held to be valid and effective if part of its wording were deleted,
that restriction shall apply with such deletions as may be necessary to
make it valid and effective.
7.4 The restrictions contained in each sub-clause of Clause 7.2 shall be
construed as separate and individual restrictions and shall each be
capable of being severed without prejudice to the other restrictions or
to the remaining provisions.
7.5 Employee waives irrevocably all Moral Rights (as defined in Chapter IV of
Part I of the Copyright, Designs and Patents Act 1988) in any works
produced during his employment in which copyright is vested in Radica or
Radica Group whether by virtue of this Clause 7.5 or otherwise. Employee
shall promptly communicate and disclose to Radica Group all information,
inventions, improvements, discoveries, knowhow, methods, techniques,
processes, observations and data ("Proprietary Information") obtained,
developed, invented or otherwise discovered by him in the course of this
employment. All written materials, records, computer programs or data and
documents made by Employee or coming into his possession during the
employment period concerning any Proprietary Information used or
developed by Radica Group, or by Employee, shall be the sole exclusive
property of Radica Group. Employee shall have no right, title or interest
therein notwithstanding that he may have purchased the medium on which
such Proprietary Information is recorded.
7.6 Upon Termination, Employee shall not take with him any of the
Confidential Information or Proprietary Information. Upon Termination, or
at any time upon the request of Radica, Employee shall promptly deliver
all Confidential Information and Proprietary information, and all copies
thereof, to Radica Group with no cost or charge to Radica Group. Upon
request by Radica, Employee shall promptly execute and deliver any
documents necessary or convenient to evidence ownership of the
Confidential Information and Proprietary Information by Radica Group, or
the transfer and assignment of the Confidential Information and
Proprietary Information to Radica Group without cost or charge. The
provisions of this Clause 7 shall survive any Termination of this
Agreement.
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8 TERMINATION
8.1 Upon Termination Employee shall immediately resign without claim for
compensation for loss of office (but without prejudice to any claim he
may have against Radica arising out of any breach of this Agreement by
Radica) from such offices held by him in Radica and any company in the
Radica Group and from any other offices he may hold as nominee or
representative of Radica and any company in the Radica Group and Radica
is irrevocably authorised by Employee to appoint some person in his name
and on his behalf to sign any documents and do any things necessary or
requisite to give effect to such resignations.
8.2 If either party gives notice to terminate this Agreement, Employee
agrees:
8.2.1 that for a period not exceeding three months the Board may in its
absolute discretion require Employee not to perform any of his duties and
may require him not to have any contact with clients or customers of
Radica or Radica Group nor any contact (other than purely social contact)
with such employees of Radica or Radica Group as the Board shall
determine and/or may exclude him from any premises Radica or Radica Group
(without providing any reason for doing so); and
8.2.2 that such action on the part of Radica shall not constitute a breach of
this Agreement nor shall Employee have any claim against Radica in
respect of any such action;
Provided always that throughout such period Employee's salary and other
benefits shall not cease to be paid or provided (unless and until his
employment is terminated).
9 BENEFIT AND BINDING EFFECT
This Agreement shall inure to the benefit of and be binding upon Radica
and its successors and assigns, including but not limited to any
corporation, person or other entity which may acquire all or
substantially all of the assets and business of Radica or any corporation
with or into which it may be consolidated or merged. Radica may assign
its rights and obligations to another present or future member of Radica
Group. The rights and obligations of Employee hereunder may not be
delegated or
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assigned, except that Employee may, without the prior consent of any
member of Radica Group, assign to his spouse, or to a family member,
proceeds of payments resulting from his death or a disability which, in
either case, occurs after a termination of this Agreement.
10 COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be
deemed an original but all of which shall constitute one and the same
instrument.
11 GOVERNING LAW
This agreement shall be governed by and construed in accordance with the
law of England and Wales. The parties submit to the non-exclusive
jurisdiction of the English Courts as regards to any claim, dispute or
matter out of or relating to this Agreement.
12 ENTIRE AGREEMENT
12.1 This Agreement sets forth and is an integration of all of the promises,
agreements, conditions and understandings among the parties hereto with
respect to all matters contained or referred to herein, and all prior
promises, agreements, conditions, understandings, warranties or
representations, oral, written, express or implied, are hereby superseded
and merged herein.
12.2 This Agreement replaces all previous contracts of service or other
employment arrangements between Employee and Leda Media Products Limited,
which shall have no further effect as from the date of this Agreement.
13 VALIDITY OF PROVISIONS
Should any provision(s) of this Agreement be void or unenforceable in
whole or in part, the remainder of this Agreement shall not in any way be
affected thereby, and such provision(s) shall be modified or amended so
as to provide for the accomplishment of the provision(s) and intentions
of this Agreement to the maximum extent possible.
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14 MODIFICATIONS OR DISCHARGE
This Agreement shall not be deemed waived, changed, modified, discharged
or terminated in whole or in part, except as expressly provided for
herein or by written instrument signed by all parties hereto.
15 NOTICES
Any notice which either party may wish to give to the other parties
hereunder shall be deemed to have been given when actually received by
the party to whom it is addressed. Notices by Employee to either Radica
or Radica USA shall be sent to both of them. Notices hereunder may be
sent by courier, mail, telefax, telegram or telex, to the following
addresses, or to such other addresses as the parties may from time to
time furnish to each other by like notice:
To. Radica Games Limited
000 Xxxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxxxxx
Xxxxxxxxxx 00000
XXX
Attention: Xxxxxxx X Xxxxx
Telephone: (000) 000 0000
Telefax: (000) 000 0000
To: Employee:
Xx. Xxxx Xxxxxxx
c/o Radica UK Ltd.
Xxxxxxxxxxx Xxxxx
00 Xxxxxxx Xxxxxx
Xxxxxxxx
Xxxxx XX00 0XX
Telephone: (00) 00000 000000
Telefax: (00) 00000 000000
16 NUMBER AND GENDER
In this Agreement, the masculine shall include the feminine and neuter
and vice versa, and the singular shall include the plural and vice versa,
as the context may reasonably require or permit.
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IN WITNESS whereof, the parties have executed this Agreement as of the day and
year first above written.
SIGNED by ) Signed on behalf of Radica Games Limited
for and on behalf of RADICA GAMES ) by Xxxxxxx X Xxxxx
LIMITED )
SIGNED by XXXX XXXXXXX ) Signed by Xxxx Xxxxxxx
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