Exhibit 4.6(a)
AMENDMENT NO. 2
TO EMPLOYMENT AGREEMENT
AGREEMENT, dated as of February 1, 2005, by and between Radica Enterprises,
Ltd., a Nevada corporation ("Radica USA"), and Xxxxxx Xxxxx ("Employee").
WHEREAS, Radica USA and Employee entered into an employment agreement, dated as
of December 15, 2001 (the "Employment Agreement"), with respect to the
employment by Radica USA of Employee;
WHEREAS, Radica USA and Employee entered into Amendment No. 1, dated as of March
31, 2003 ("Amendment No. 1"), to the above-mentioned Employment Agreement; and
WHEREAS, the parties desire to further amend the Employment Agreement
(hereinafter, references to the Employment Agreement shall include the changes
made to such Agreement by Amendment No. 1) with respect to Employee's continued
employment after the date of this Amendment No. 2.
NOW, THEREFORE, it is hereby agreed as follows:
1. Section 1(a) of the Employment Agreement is hereby amended in its
entirety to read as follows:
(a) "Cause" means:
(i) material breach by Employee of a fiduciary obligation to any
member of Radica Group;
(ii) intentional 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 material adverse consequences
to any member of Radica Group;
(iii) material breach of any of Employee's agreements set forth in
this Agreement including, but not limited to, continual failure to perform
substantially her duties with Radica Group after notification of same,
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 USA (except in
respect of any delegation by Employee of her employment duties hereunder to
other employees of Radica Group in accordance with its usual business
practice);
(v) Employee's arrest or indictment for, or written confession of,
a felony or any crime involving moral turpitude under the laws of the
United States or any state or of Hong Kong;
(vi) death of Employee;
(vii) declaration by a court that Employee is insane or
incompetent to manage her business affairs; or
(viii) the filing of any petition or other proceeding seeking to
find Employee bankrupt or insolvent.
2. Section 1(f) of the Employment Agreement is hereby amended in its
entirety to read as follows:
(f) "1994 Plan" means the 1994 stock option plan adopted by Radica, as
amended from time to time, and "Omnibus Plan" means the 2004 omnibus
equity incentive plan adopted by Radica, as amended from time to time.
Any reference in this Employment Agreement to either the 1994 Plan or
the Omnibus Plan shall include both of such plans and shall give
effect to the plan or plans that are applicable to the stock options
or other incentives granted by Radica to Employee.
3. Section 3(c) of the Employment Agreement is hereby amended in its
entirety to read as follows:
On termination of this Agreement pursuant to Paragraph (a) above, or
by Radica USA for Cause, or by Employee without consent of Radica USA,
all benefits and compensation shall cease as of the date of such
Termination. On termination of this Agreement by Radica USA without
Cause or by Employee for Good Reason in the event of a
Termination/Change in Control or in the event of Total Disability of
Employee, (i) Radica USA will continue to pay Employee her annual
salary for twelve months from the date of Termination, (ii) Radica
Group will continue to provide medical and dental benefits to Employee
for twelve months from the date of Termination on the same basis and
at the same Employee cost as at the date of Termination and (iii)
Employee's stock options, restricted stock, and restricted stock units
will be treated as set forth in Section 6 hereof.
4. The lead-in paragraph to Section 6(c) of the Employment Agreement is
hereby amended in its entirety to read as follows (but the subparagraphs in
capital letters that immediately follow that lead-in paragraph shall not be
amended hereby):
As of the date of Termination in the event of Termination pursuant to
Section 3(a) or Termination by Radica USA for Cause or by Employee
without consent of Radica USA, or (ii) twelve (12) months after the
date of Termination in the event of Termination by Radica USA without
Cause or by Employee for Good Reason
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in the event of a Termination/Change in Control (unless Section 6(f)
of this Agreement applies, in which case this Section 6(c) shall not
apply to Employee's Stock Options, restricted stock and restricted
stock units) 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:
5. Sections 6(d), (e) and (f) of the Employment Agreement are hereby
amended in their entirety to read as follows:
(d) 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 her right to purchase stock subject
to the Stock Options, but subject to the foregoing provisions
respecting vesting and forfeitures. Restricted Stock, and restricted
stock units, if not forfeited, shall be deliverable to Employee upon
its applicable vesting date, free of the previously existing
restrictions, but subject to applicable state and federal securities
laws.
(e) Employee shall have no right to sell, alienate, mortgage, pledge,
gift or otherwise transfer the Stock Options, the Restricted Stock or
any restricted stock units or any rights thereto, except by will or by
the laws of descent and distribution, and except pursuant to
applicable state and federal securities laws and except as
specifically contemplated herein.
(f) Upon the occurrence of a Change in Control under the Omnibus Plan,
all of Employee's then outstanding stock options, restricted stock,
and restricted stock units in Radica shall vest and become immediately
exercisable. If Employee is terminated by Radica or Radica USA without
Cause after a definitive agreement for a transaction that would
constitute a Change in Control as described in the Omnibus Plan has
been approved by the shareholders of Radica, but before such
transaction is consummated, Employee's stock options, restricted
stock, and restricted stock units in Radica shall vest on the date of
such termination without Cause. Income realized by Employee as a
result of the acceleration of vesting of equity compensation or
otherwise resulting from a Termination/Change in Control is
specifically paid in consideration of post-employment restrictions of
Section 7 hereunder.
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6. Section 13 of the Employment Agreement is hereby amended in its
entirety to read as follows:
13. 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. Each party agrees to make any
modifications to this Agreement, including changing the timing of
payments hereunder, as may be reasonably necessary to comply with
Section 409A of the Internal Revenue Code.
7. Section 16 of the Employment Agreement is hereby amended in its
entirety to read as follows:
REIMBURSEMENT OF EXPENSES. After a Change in Control or a Termination
for Cause later determined to be a Termination Without Cause, if any
dispute shall arise under this Agreement involving termination of
Employee's employment with Radica USA or involving the failure or
refusal of Radica USA to perform fully in accordance with the terms
hereof, Radica USA shall reimburse Employee, on a current basis, for
all reasonable legal fees and expenses, if any, incurred by Employee
in connection with such contest or dispute (regardless of the result
thereof), regardless of whether Employee's claim is upheld by a court
of competent jurisdiction; provided, however, Employee shall be
required to repay any such amounts to Radica USA to the extent that a
court issues a final and non-appealable order setting forth the
determination that the position taken by Employee was frivolous or
advanced by Employee in bad faith.
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IN WITNESS WHEREOF, the parties have executed this Amendment No. 2 as of the
date and year first above written.
RADICA ENTERPRISES, LTD.
By /s/ Xxx X. Xxxxxxxx
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Name: Xxx X. Xxxxxxxx
Title: Chairman--Radica Games Limited
/s/ XXXXXX XXXXX
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XXXXXX XXXXX
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