Exhibit 4.17
CHANGE IN CONTROL BONUS AGREEMENT
Effective March 31, 2003
THIS CHANGE IN CONTROL BONUS AGREEMENT is entered into as of March 31,
2003 by and between Radica Games Limited ("Radica"), Radica Enterprises Ltd
("Radica USA") and Xxxxxxx Xxxxx ("Employee").
WHEREAS, Employee has substantial executive management experience;
WHEREAS, Radica and Radica USA would like to secure the continued
services of Employee and to ensure his continued dedication to his duties in the
event of the occurrence of a Change in Control;
WHEREAS, Radica and Radica USA would like to enhance the value of
Radica and Radica USA by motivating superior performance by means of an
incentive that is directly related to value received by Radica in a sale;
SECTION 1 CHANGE IN CONTROL
1.1. In the case of the following events (each a "Change in Control"), and
subject to the other terms of this Agreement, Employee will be eligible to
receive the Bonus described in Section 2:
(a) the consummation of a merger, consolidation, statutory share
exchange, short form merger or similar form of corporate transaction involving
Radica or any member of the Radica Group including by way of acquisition of
shares (a "Business Combination"), unless immediately following such Business
Combination: (A) more than 50% of the total voting power of (x) the corporation
resulting from such Business Combination (the "Surviving Corporation"), or (y)
if applicable, the ultimate parent corporation that directly or indirectly has
beneficial ownership of at least 95% of the voting securities eligible to elect
directors of the Surviving Corporation (the "Parent Corporation"), is
represented by Radica Voting Securities that were outstanding immediately prior
to such Business Combination (or, if applicable, is represented by shares into
which such Radica Voting Securities were converted pursuant to such Business
Combination), and such voting power among the holders thereof is in
substantially the same proportion as the voting power of such Radica Voting
Securities among the holders thereof immediately prior to the Business
Combination, (B) no person (other than any employee benefit plan (or related
trust) sponsored or maintained by the Surviving Corporation or the Parent
Corporation or an existing Radica shareholder, with greater than 50% beneficial
ownership of the Radica Voting Securities prior to the Business Combination,
whose percentage beneficial ownership compared to the other Radica shareholders
in existence immediately prior to the Business Combination does not change on
consummation of the Business Transaction), is or becomes the beneficial owner,
directly or indirectly, of 50% or more of the total voting power of the
outstanding
voting securities eligible to elect directors of the Parent Corporation (or, if
there is no Parent Corporation, the Surviving Corporation) and (C) at least a
majority of the members of the board of directors of the Parent Corporation (or,
if there is no Parent Corporation, the Surviving Corporation) following the
consummation of the Business Combination were Incumbent Directors at the time of
the Board's approval of the execution of the initial agreement providing for
such Business Combination (any Business Combination which satisfies all of the
criteria specified in (A), (B) and (C) above shall be deemed to be a
"Non-Qualifying Transaction"); or
(b) the consummation of a sale of all or substantially all of Radica's
assets (a "Sale") in one or a series of related transactions. For purposes of
this Agreement, a sale of assets representing 50% or more of the book value,
revenues or net income of Radica shall be deemed to be a sale of "substantially"
all of the assets of Radica.
SECTION 2 BONUS AND PAYMENT
2.1. Bonus Amount. In case of a Change in Control that occurs on or before
March 31, 2004, or a Change in Control that occurs as a result of a definitive
agreement that is signed on or before March 31, 2004, the amount of the Bonus
will be calculated as set forth below; provided that for any Transaction Price
between a Transaction Price listed below (above $129,500,000) and the next
higher price, the amount of the Bonus will be calculated by interpolating
between the relevant Bonus and the next higher Bonus amount:
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Transaction Price Bonus
(aggregate consideration received
by Radica)
------------------------------------- -----------------------------------
Less than $129,500,000 $0
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$129,500,000 $300,000
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$148,000,000 $355,000
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$166,500,000 $410,000
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$185,000,000 or above $465,000
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In each case the Bonus amount is subject to the adjustments described in Section
2.3 and the conditions described in Section 3.
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2.2. Payment. Provided that the conditions specified in Section 3 are
satisfied and subject to Section 4, on the 180th day following a Change in
Control (the "Payment Date"), Radica will pay to Employee an amount in cash
equal to the Bonus, as calculated in Section 2.1. Notwithstanding the foregoing,
in the case of a Change in Control described in Section 1.1(b), if this
Agreement is not assumed by the buyer Radica will pay the Bonus to Employee
within 10 days following such Change in Control.
2.3. Special Payment Provisions. In the case of a Business Combination or
Sale, if the terms of the definitive agreement that results in the Change in
Control involve any provisions:
(a) pursuant to which a part of the Transaction Price will be paid to
Radica or the Radica shareholders in one or more installments after the
Business Combination or Sale or any other deferral of the payment of the
Sale Price, then payment of the Bonus will be pro-rated so that:
(i) a portion of the Bonus, based on the portion of the Transaction
Price paid to Radica or the Radica shareholders at the Transaction Date,
will be paid to the Employee in accordance with Section 2.2 above and
(ii) an additional portion of the Bonus will be paid to Employee
promptly after any additional portion of the Transaction Price is paid to
Radica or the Radica shareholders.
(b) that would require the buyer to pay or cause to be paid to Radica
an amount which would result in an increased Transaction Price (after the
Transaction Date), such as pursuant to an earn-out provision or otherwise,
then at the time such additional amount is paid to Radica, the Transaction
Price will be recalculated to include such additional amount and Radica
will pay to Employee the resulting Bonus, less any portion of the Bonus
already paid.
SECTION 3 CONDITIONS TO RECEIVE BONUS
3.1. Employee will not be entitled to receive a Bonus and will forfeit all
rights with respect to the Bonus if for any reason Employee is not an employee
of any member of the Radica Group on both the date of the Change in Control and
the Payment Date.
3.2. Notwithstanding the foregoing:
(a) if Employee is terminated by Radica or Radica USA without Cause or
he terminates his employment for Good Reason after a definitive agreement
for a Change in Control is signed but before such transaction is
consummated, or
(b) if Employee is terminated by Radica or Radica USA without Cause or
he terminates his employment for Good Reason after a Change in Control has
occurred but prior to the Payment Date,
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Employee will be entitled to receive the Bonus that would have become due and
payable had he remained an employee through the date of the Change in Control
and the Payment Date.
SECTION 4 TERM, EXPIRATION AND AMENDMENT
4.1. This Agreement is effective as of March 31, 2003 and will expire as
follows: If a Change in Control has not occurred prior to March 31, 2004, all
Bonuses will be forfeited and will be of no further force or effect; provided
however that if a definitive agreement has been executed prior to March 31, 2004
that would result in a Change in Control upon consummation, then this Agreement
will expire on the earlier of (i) December 31, 2004 or (ii) the termination of
such definitive agreement. If a Change in Control occurs after the expiration of
this Agreement, Employee will not be entitled to any Bonus.
4.2. This Agreement may be amended or terminated only with the written
consent of all parties hereto.
SECTION 5 MISCELLANEOUS
5.1. This agreement is not in any way intended to create any guaranteed
period of continued employment; Employee's employment shall at all times
continue to be governed by the terms of his Employment Agreement. Participation
in the Plan will not constitute or imply any employment rights.
5.2. No Bonus will be assignable or transferable other than by will or by
the laws of descent and distribution, nor will such Bonus be subject to
alienation, assignment, garnishment, execution or levy of any kind.
Notwithstanding the foregoing, this Agreement and any rights or obligations
hereunder may be assigned by Radica and Radica USA to any acquirer of all or
substantially all of the assets of Radica.
5.3. Radica will have the right to withhold from any payment made under
this Agreement any Federal, State or local taxes required by law to be withheld
with respect to the payment of the Bonus.
5.4. Any Bonus under this Agreement will constitute a special incentive
payment to Employee and will not be taken into account in computing the amount
of salary or compensation of Employee for the purpose of determining any
benefits under any pension, retirement, profit sharing, bonus, life insurance,
severance or other compensation or benefit plan of the Radica Group or under any
agreement with the Employee, unless such plan or agreement specifically provides
otherwise.
5.5. All rights and obligations under this Agreement will be construed and
interpreted in accordance with the laws of the State of Nevada, applicable to
agreements made and wholly to be performed in the State of Nevada.
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5.6. If any contest or dispute shall arise under this Agreement, Radica or
Radica USA shall reimburse Employee, within 10 days following the resolution of
such contest or dispute, for all reasonable legal fees and expenses, if any,
incurred by Employee in connection with such contest or dispute (regardless of
the result thereof); provided, however, Employee shall be required to repay any
such amounts to Radica or 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.
SECTION 6 DEFINITIONS
6.1. Bonus has the meaning set forth in Section 2.1.
6.2. Business Combination has the meaning set forth in Section 1.1(a).
6.3. Cause has the meaning set forth in Section 1(a) of the Employment
Agreement.
6.4. Employee means Xxxxxxx Xxxxx.
6.5. Employment Agreement means the Amended and Restated Employment
Agreement dated as of September 2000 between Radica, Radica USA and Employee.
6.6. Good Reason has the meaning set forth in Section 1(e) of the
Employment Agreement.
6.7. Incumbent Directors means individuals who, on January 1, 2003,
constitute the Board of Directors of Radica, provided that any person becoming a
director subsequent to January 1, 2003, whose election or nomination for
election was approved by a vote of at least two-thirds of the Incumbent
Directors then on the Board (either by a specific vote or by approval of the
proxy statement of Radica in which such person is named as a nominee for
director, without written objection to such nomination).
6.8. Radica means Radica Games Limited.
6.9. Radica Group means Radica, Radica USA and any other corporation or
other entity which at the relevant times is more than fifty percent (50%) owned,
directly or indirectly, by Radica.
6.10. Radica Voting Securities means securities of Radica representing 50%
or more of the combined voting power of Radica's then outstanding securities
eligible to vote for the election of the Board of Directors.
6.11. Radica USA means Radica Enterprises Ltd.
6.12. Sale has the meaning set forth in Section 1.1(b).
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6.13. Transaction Date means the date on which a Sale or Business
Combination is consummated.
6.14. Transaction Price means the total amount of consideration received by
the shareholders of Radica or, in the event of a Change in Control described in
1.1(b), the aggregate consideration received by Radica (allocable to
shareholders on an after-tax basis assuming a dividend of such proceeds as
determined by the Compensation Committee). For purposes of this Section, any
notes or deferred payment received in connection with the Sale or Business
Combination (that are not contingent on the future performance of Radica or
other factor) shall be treated as cash consideration and valued at its
face-value or principal amount. The fair market value of any non-cash
consideration will be determined in good faith by the Compensation Committee of
the Board; provided that the fair market value of any security for which there
is an established public market will be equal to the average of the closing
market prices for such security over the ten trading days prior to the
Transaction Date and provided further that in their evaluation of any such
non-cash consideration for which there is not an established public market, the
Compensation Committee will seek and rely upon the advice of a an outside
valuation consultant or investment banking firm.
The parties acknowledge that the provisions described above in this Section 6.14
reflect their intention to calculate the Transaction Price. In the event any
definitive agreement for the sale of Radica approaches this issue in a manner
not addressed in this Agreement, the parties will negotiate in good faith to
make any adjustments to the methodology for calculating the Transaction Price as
may be necessary and appropriate to fairly implement the intention of the
parties as reflected in this Agreement.
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In WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
RADICA ENTERPRISES LTD.
By: /s/ Xxx X. Xxxxxxxx
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RADICA GAMES LIMITED
By: /s/ Xxx X. Xxxxxxxx
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XXXXXXX XXXXX
/s/ Xxxxxxx X. Xxxxx
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