Exhibit 10.11
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of the 16th day of May, 1997,
provided the employment hereunder shall commence July 1, 1997, by and among
Radica Enterprises Ltd., a Nevada corporation, having an office at 0000 Xxxxxxx
Xxxx, Xxxxx 000, Xxxx, Xxxxxx 00000, Radica Games Limited, a Bermuda company,
having an office at Suite R, 6/F, 2-12 Au Xxx Xxx Street, Fo Tan, Hong Kong, and
Xxxxxxx Xxxxx, who resides at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx
00000.
WHEREAS, Radica is engaged through its subsidiaries in designing and
manufacturing electronic and mechanical gifts and games for worldwide sale, and
OEM manufacturing for others;
WHEREAS, Radica USA is engaged in marketing and distributing products
manufactured by Radica;
WHEREAS, Employee has substantial executive management experience
including marketing experience in the United States;
WHEREAS, Radica USA and Radica desire 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.
NOW, THEREFORE, in consideration of the premises, the parties agree as
follows:
1. DEFINITIONS. For the purposes of this Agreement, the parties hereby
adopt the following definitions:
(a) "Cause" means:
(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 or Radica USA (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 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 his business affairs; or
(viii) the filing of any petition or other proceeding seeking to
find Employee bankrupt or insolvent.
(b) A "Change in Control" shall be deemed to have occurred if, at or
before July 1, 1998: (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 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.
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(c) "Dollars" and "US$" means United States dollars.
(d) "Employee" means Xxxxxxx Xxxxx.
(e) "Good Reason" shall mean the occurrence within twelve (12) months
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 opportunity as in effect immediately 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.
(f) "1994 Plan" means the 1994 stock option plan adopted by Radica, as
amended from time to time.
(g) "Radica" means Radica Games Limited, a Bermuda company.
(h) "Radica Group" means Radica, Radica USA and any other corporation
or other entity which at the relevant time is more than fifty percent (50%)
owned, directly or indirectly, by Radica.
(i) "Radica USA" means Radica Enterprises Ltd., a Nevada corporation.
(j) "Termination" means, according to the context, the termination of
this Agreement or the cessation of rendering employment services by Employee.
(k) "Total Disability" means 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.
2. EMPLOYMENT.
(a) Commencing July 1, 1997, Radica hereby employs Employee and
Employee hereby accepts employment by Radica to serve as the President and Chief
Operating Officer of Radica. Employee shall also be employed as the President,
or in another senior executive position, of Radica USA. During his period of
employment, employee also agrees to serve as a member of the board of directors
of Radica, Radica USA and of such other members of Radica Group as may be
determined by the Board of
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Directors of Radica ("Board"). Employee shall perform services of an executive
nature consistent with his offices with Radica and Radica USA and as a director
of Radica as may from time to time be assigned or delegated to him by the Board.
It is envisioned that these duties will include inter alia management of the
business of Radica USA.
(b) Employee will devote his full business time and attention to his
duties under this Agreement.
(c) Employee shall perform his duties under this Agreement principally
in or around Los Angeles. It is contemplated Employee will frequently travel to
carry out his duties under this Agreement, including travel to the offices of
Radica USA in Nevada and Texas. Air travel and other travel arrangements will
comply with current Radica Group policies respecting class of travel, etc.
(d) Radica Group will provide to Employee, his spouse and children
medical benefits which are provided to other officers of Radica Group.
(e) Employee shall have four (4) weeks paid vacation during each year
of this Agreement taken at such times as mutually convenient to Employee and
Radica Group.
3. TERM OF EMPLOYMENT.
(a) This Agreement and Employee's employment hereunder shall
commence as of July 1, 1997 and continue until the second anniversary of such
date, and shall be renewed annually at each July 1 anniversary date (commencing
July 1, 1998) for an additional one year period so that the term hereof at each
renewal date shall be a two year period, unless a party to this Agreement gives
notice at least ninety (90) days prior to such renewal date that this Agreement
shall not be renewed, in which case this Agreement shall terminate at the end of
the ensuing year.
(b) Notwithstanding Paragraph (a) above, this Agreement may be
sooner terminated by Radica or Radica USA for Cause, by Employee without consent
of Radica or Radica USA, by Radica or Radica USA without Cause, or by Radica or
Radica USA in the event of the Total Disability of Employee. This Agreement may
also be sooner terminated by Employee following any Change in Control which
occurs prior to July 1, 1998 and if within twelve (12) months following such
Change in Control Employee has Good Reason for such Termination; such
Termination by Employee is herein called a "Termination/Change in Control".
(c) On termination of this Agreement pursuant to Paragraph (a)
above, or by Radica or Radica USA for Cause, or by Employee without consent of
Radica or Radica USA, all benefits and compensation shall cease as of the date
of such
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Termination. On termination of this Agreement by Radica or Radica USA without
Cause or in event of Total Disability of Employee, all benefits and compensation
shall continue for twelve (12) months after such a Termination. On termination
of this Agreement in the event of a Termination/Change in Control, all benefits
and compensation shall continue for twenty-four (24) months after such a
Termination.
4. BUSINESS EXPENSE REIMBURSEMENT. Employee will be entitled to
reimbursement by Radica Group for the reasonable 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:
(i) the amount, date, and place of each such expense;
(ii) 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
(iii) 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. Radica USA agrees to pay Employee, and Employee agrees
to accept from Radica USA, during the first year after July 1, 1997, for the
services to be rendered by him hereunder a minimum salary at the rate of
US$185,000 per annum payable in arrears in monthly installments. Employee shall
receive annual salary reviews by the Board provided that such salary shall not
be reduced below US$185,000 per year. Employee shall also be entitled to a
signing bonus of U.S.$15,000.
If Radica Group institutes a retirement, bonus or other benefit plan
which applies generally to U.S. executive officers of Radica Group, Employee
shall be entitled to participate therein, but not to the extent such benefits
would be duplicative of the benefits herein.
6. STOCK OPTIONS.
(a) (i) As of the date of this Agreement, Radica hereby grants to
Employee an option to purchase three hundred thousand (300,000) shares of the
common stock of Radica at $3.625 per share (representing the current market
price as of a recent date), subject to the terms and conditions of this Section
6 and the 1994 Plan (the "Initial Stock Option").
(ii) Additionally, with reasonable promptness after the end of
each of Radica's 1998, 1999 and 2000 fiscal years (i.e., fiscal years ending
October 31 in such
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years), Radica shall grant to Employee an option (up to three such options in
total) to purchase sixty thousand (60,000) shares (up to 180,000 shares in the
aggregate) of the common stock of Radica at the then applicable market price,
subject to the terms and conditions of this Section 6 and the 1994 Plan;
provided, however, that each such grant shall be subject to the condition that
Radica achieves consolidated income from continuing operations before income
taxes of at least U.S.$9.0 million in fiscal year 1998, U.S.$11.0 million in
fiscal year 1999, and U.S.$14.0 million in fiscal year 2000, respectively. The
determination of the amount of consolidated income from continuing operations
before income taxes shall be based on Radica's consolidated statement of
operations included in its annual report on Form 20-F for such year as filed
with the Securities and Exchange Commission. For comparability purposes, it is
noted that the amount of consolidated income from continuing operations before
income taxes for the fiscal year ended October 31, 1996 was $3.086 million. If
such requirement is not met in such fiscal year (or if Employee's employment
hereunder has previously Terminated), the stock option associated with such
fiscal year will not be granted. Such stock options are herein called the
"Subsequent Stock Options". The Initial Stock Option and the Subsequent Stock
Options are herein collectively called the "Stock Options". It is expected that
the Subsequent Stock Options will be granted approximately in December of each
applicable year after the end of the related fiscal year.
(iii) The Stock Options shall vest and become exercisable 20%
per year following the date of grant, commencing at the first anniversary of the
date of grant.
(b) 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 capitalization,
including but not limited to the issuance by Radica of new securities (including
options or convertible securities), ESOP's 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.
(c) Any other provision hereof to the contrary notwithstanding, (i) as
of the date of Termination in the event of Termination pursuant to Section 3(a)
or Termination by Radica or Radica USA for Cause or by Employee without consent
of Radica or Radica USA, or (ii) twelve (12) months after the date of
Termination in the event of Termination by Radica or Radica USA without Cause or
the Total Disability of Employee, or (iii) twenty-four (24) months after the
date of Termination in the event of a Termination/Change in Control
("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:
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(A) 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;
(B) 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;
(C) 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;
(D) 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
(E) 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.
(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 his right to purchase stock subject to the Stock Options, but
subject to the foregoing provisions respecting vesting and forfeitures.
(e) 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 pursuant to
applicable state and federal securities laws and except as specifically
contemplated herein.
7. NON-COMPETE; CONFIDENTIALITY.
(a) During the term of employment of Employee, and for a period of
one year ("Prohibition Period") after any Termination (other than in the event
of a Termination/Change in Control) of such relationship or employment for any
other reason (either by Employee or Radica or Radica USA), with or without
cause, voluntarily or involuntarily, Employee agrees that he will not engage in,
be employed by or become affiliated with, in the United States of America or
anywhere else in the world, directly or indirectly, any person or entity which
offers, develops, performs or is engaged in services, products or systems which
are competitive with the business of Radica Group or any other products,
services or systems hereafter developed, produced or offered by Radica Group
("Companies' Business"). During the Prohibition Period, Employee shall not,
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directly or indirectly, become an owner or member, to the extent of an ownership
interest of five percent (5%) or more, of a joint venture, partnership,
corporation or other entity, or a consultant, employee, agent, officer or
director of a corporation, joint venture, partnership or other entity, which is
competitive with, directly or indirectly, the Companies' Business.
(b) [RESERVED.]
(c) 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 or related to the Companies'
Business, 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"). Accordingly, except
as permitted or required in the performance of his duties for Radica Group,
Employee agrees not to disclose, divulge, make public, utilize, communicate or
use, whether for his own benefit or for the benefit of others, either directly
or indirectly, any Confidential Information relating to the Companies's Business
unless specifically authorized in writing by Radica or Radica USA to do so.
(d) 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.
(e) 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 or Radica USA, 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 or Radica USA, 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 Section 7 shall survive any Termination
of this Agreement.
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8. BENEFIT AND BINDING EFFECT. This Agreement shall inure to the
benefit of and be binding upon Radica and Radica USA, their 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 Radica USA or any corporation with or into which they may be consolidated or
merged. Radica and Radica USA may assign their rights and obligations to another
present or future member of Radica Group. The rights and obligations of Employee
hereunder may not be delegated or assigned.
9. 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.
10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEVADA WITHOUT REFERENCE TO THE CHOICE
OF LAW PRINCIPLES THEREOF.
11. ENTIRE AGREEMENT. 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. 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.
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.
14. 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:
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To: Radica Enterprises Ltd.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxx, Xxxxxx 00000
X.X.X.
Attention: Xxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telefax: (000) 000-0000
To: Radica Games Limited
Suite R, 6/F
2-12 Au Xxx Xxx Street
Fo Tan
Hong Kong
Attention: Xxxxx X.X. Xxxxxx
Telephone: (000) 0000 0000
Telefax: (000) 0000 0000
To: Employee:
Xx. Xxxxxxx Xxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
15. NUMBER; 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.
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 Xxxxx
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