Exhibit 4.22
DATE 7 APRIL 2003
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RADICA UK LIMITED
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RADICA GAMES LIMITED
EMPLOYMENT AGREEMENT
Macfarlanes
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CGS/558093/2135167.8
23 March 2004
Draft 1
CONTENTS
CLAUSE PAGE
2 Definitions 1
3 Employment 6
4 Term of Employment 7
5 Expense Reimbursement 8
6 Compensation 9
7 Stock Options 9
8 Confidentiality and Restrictions 12
9 Notice to New Employers 15
10 Termination 16
11 Benefit and Binding Effect 17
12 Guarantee 18
13 Counterparts 18
14 Governing law 18
15 Entire Agreement 19
16 Validity of Provisions 19
17 Modifications or Discharge 19
18 Notices 19
19 Number and Gender 20
EMPLOYMENT AGREEMENT
DATE 7 April 2003
PARTIES
1 RADICA UK LIMITED, registered in England and Wales under number
2535134, whose registered office is at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ("Radica UK")
2 ▇▇▇▇▇ ▇▇▇▇▇▇ who resides at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇ ("the Executive")
3 RADICA GAMES LIMITED, a Bermudan company registered under company
number 023696 having a registered address at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇.
RECITALS
A Radica UK is engaged in the sale of electronic and mechanical gifts and
games designed and manufactured by the Radica Group.
B The Executive has substantial executive management experience in
similar businesses.
C Radica UK desires to secure the services of the Executive, and the
Executive 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:
BOARD: the Board of Directors of Radica;
CAUSE:
(i) breach by the Executive of a fiduciary obligation to any member
of Radica Group;
(ii) commission by the Executive of any act or omission to perform
any act (excluding an omission attributable to the Executive's
Total Disability) which results in serious adverse consequences
to any member of Radica Group;
(iii) breach of any of the Executive's agreements set forth in this
Agreement including, but not limited to, continual failure to
perform substantially his duties with Radica Group, excessive
absenteeism or dishonesty;
(iv) any attempt by the Executive 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 the
Executive of his employment duties hereunder to other executives
of Radica Group in accordance with its usual business practice);
(v) the Executive being charged or indicted for, or making a written
confession of, a felony or any crime involving moral turpitude
under the laws of the United Kingdom or the United States or any
of its states other than an offence under those countries'
respective Road Traffic Acts for which a non-custodial penalty
is imposed;
(vi) death of the Executive;
(vii) the Executive becomes mentally ill or incompetent to manage his
business affairs; or
(viii) the filing of any petition or other proceeding seeking to find
the Executive bankrupt or insolvent;
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CHANGE IN CONTROL: shall be deemed to have occurred if, at any time
after the commencement of the Executive's employment hereunder:
(i) individuals who, on the date of this Agreement, constitute the
Board (the "Incumbent Directors") cease for any reason to
constitute at least a majority of the Board, provided that any
person becoming a director subsequent to the date of this
Agreement, 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) shall be an Incumbent Director; provided,
however, that no individual initially elected or nominated as a
director of Radica as a result of an actual or threatened
election contest with respect to directors or as a result of any
other actual or threatened solicitation of proxies or consents
by or on behalf of any person other than the Board shall be
deemed to be an Incumbent Director;
(ii) any "person" (as such term is defined in Section 3(a)(9) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")
and as used in Sections 13(d)(3) and 14(d)(2) of the Exchange
Act) becomes a "beneficial owner" (as defined in Rule 13(d)(3)
under the Exchange Act), directly or indirectly, of 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 (the "Radica Voting Securities") or any
person who beneficially owns 50% of the Radica Voting Securities
increases their beneficial ownership by more than 5%; provided,
however, that the event described in this paragraph (ii) shall
not be deemed to be a Change in Control by virtue of any of the
following acquisitions: (A) by Radica or any member of the
Radica Group, (B) by any employee benefit plan (or related
trust) sponsored or maintained by Radica or any member of the
Radica Group, (C) by any underwriter temporarily holding
securities pursuant to an offering of such securities, (D)
pursuant to a Non-Qualifying Transaction (as defined in
paragraph (iii)), or (E) pursuant to any acquisition by the
Executive or any group of persons including the Executive (or
any entity controlled by the Executive or any group of persons
including the Executive);
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(iii) the consummation of a merger, consolidation, statutory share
exchange or similar form of corporate transaction involving
Radica or any member of the Radica Group that requires the
approval of Radica's stockholders, whether for such transaction
or the issuance of securities in the transaction (a "Business
Combination"), unless immediately following such Business
Combination: (A) more than 50% of the total voting power of (x)
the company resulting from such Business Combination (the
"Surviving Company"), or (y) if applicable, the ultimate parent
company that directly or indirectly has beneficial ownership of
at least 95% of the voting securities eligible to elect
directors of the Surviving Company (the "Parent Company"), 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 Company or the Parent Company 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 Company (or, if there is no Parent Company, the
Surviving Company and (C) at least majority of the members of
the board of directors of the Parent Company, if there is no
Parent Company the Surviving Company) 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
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(iv) the stockholders of Radica approve a plan of complete
liquidation or dissolution of Radica or the consummation of a
sale of all or substantially all of Radica's assets.
Notwithstanding the foregoing, a Change in Control of Radica
shall not be deemed to occur solely because any person acquires
beneficial ownership of more than 50% of the Radica Voting
Securities as a result of the acquisition of Radica Voting
Securities by Radica which reduces the number of Radica Voting
Securities outstanding; provided, that if after such acquisition
by Radica such person becomes the beneficial owner of additional
Radica Voting Securities that increases the percentage of
outstanding Radica Voting Securities beneficially owned by such
person, a Change in Control of Radica shall then occur."
COMPETITIVE ENTERPRISE: means any business enterprise that
either (A) engages in, designs, develops, manufactures, markets
or sells products in any of the following lines of business as
defined by NPD Group, Inc: (i) electronic handheld and tabletop
games, (ii) youth electronics, or (iii) video game accessories,
or (B) holds a 5% or greater equity, voting or profit
participation interest in any enterprise that engages in such a
competitive activity;
EXECUTIVE: ▇▇▇▇▇ ▇▇▇▇▇▇;
GOOD REASON: shall mean the occurrence within twelve months
after a Change in Control of any of the following events without
the Executive's express written consent: (i) the assignment to
the Executive of duties inconsistent with his position and
status as an executive of Radica UK, or a substantial alteration
in the nature, status or prestige of the Executive's
responsibilities with Radica UK from those in effect immediately
prior to such Change in Control; or (ii) a reduction in the
Executive'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) the person to whom the Executive reports,
directly or indirectly, is no longer ▇▇▇ ▇▇▇▇▇; or (iv) any
other material adverse change in the terms or conditions,
including location and travel, of the Executive's employment
hereunder following the occurrence of such Change in Control;
1994 PLAN: the 1994 stock option plan adopted by Radica, as
amended from time to time;
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RADICA: Radica Games Limited;
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,
Austria, Belgium, Czech Republic, Greece, Holland, Italy,
Portugal, Scandinavia, Spain, Switzerland and any other country
in which Radica or any company within the Radica Group is
resident or otherwise carries on business at the Termination
Date;
SPECIAL CHANGE IN CONTROL:
(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 company resulting from such Business
Combination (the "Surviving Company"), or (y) if
applicable, the ultimate parent company that directly or
indirectly has beneficial ownership of at least 95% of the
voting securities eligible to elect directors of the
Surviving Company (the "Parent Company"), 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 Company or the Parent Company 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
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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 Company (or, if there is no Parent
Company, the Surviving Company) and (C) at least a majority
of the members of the board of directors of the Parent
Company (or, if there is no Parent Company, the Surviving
Company) 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;
TERMINATION: according to the context, the termination of this
Agreement or the cessation of rendering employment services by
the Executive;
TOTAL DISABILITY: the Executive becoming 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
2.1 Commencing 7 April 2003, Radica UK Limited hereby employs the
Executive and the Executive hereby accepts employment by Radica
UK Limited to serve as its Managing Director. In such capacity,
the Executive has responsibility for sales and distribution of
Radica's products in Europe and Radica's European Operations generally.
The Executive shall perform services of an executive nature consistent
with his office with and employment by Radica UK as may
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from time to time be assigned or delegated to him by the Board of
Directors of Radica.
2.2 The Executive 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. There are no
normal hours of work applicable to the Executive but he shall work such
hours as may be necessary for the proper performance of his duties. The
Executive shall not be entitled to receive any additional remuneration
for work outside normal office hours. The Executive agrees, for the
purposes of Regulation 5 of The Working Time Regulations 1998 (the
"Regulations"), that Regulation 4 of the Regulations does not apply to
him. Radica UK and the Executive agree that the Executive's consent,
for the purposes of this Clause 2.2, shall continue indefinitely
provided that the Executive may withdraw such consent at any time by
giving Radica UK three months' notice of his wish to do so.
2.3 The Executive shall perform his duties under this Agreement principally
in the United Kingdom and Europe from offices located in the United
Kingdom. It is contemplated that the Executive will also frequently
travel to the offices of Radica Group in Texas, California and Hong
Kong. Air travel and other travel arrangements will comply with current
Radica Group policies respecting class of travel, etc.
2.4 Radica Group will provide the Executive, 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 pay to the Executive a car allowance of (pound)10,000
per annum to be paid in equal monthly instalments in arrears (subject
to deduction of applicable tax and national insurance), with each such
instalment paid at the same time as instalments of salary in accordance
with Clause 5.1.
2.6 The Executive shall have five (5) weeks paid vacation during each year
of this Agreement taken at such times as mutually convenient to the
Executive and Radica Group. This vacation is in addition to paid UK
bank holidays that are allowed under Radica UK policy.
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3 TERM OF EMPLOYMENT
3.1 This Agreement and the Executive's employment hereunder shall commence
as of 7 April 2003 and shall continue thereafter unless and until
terminated by Radica UK upon twelve (12) months' notice in writing or
by the Executive upon six (6) months' notice in writing such notice
expiring at any time.
3.2 Notwithstanding Clause 3.1 above, this Agreement may be terminated
without notice by Radica UK for Cause, by Radica UK without Cause, by
Radica UK in the event of Total Disability of the Executive, or by the
Executive following a Change in Control if after such Change in
Control, the Executive has Good Reason for such Termination.
3.3 On termination of this Agreement pursuant to Clause 3.1 above, or by
Radica UK for Cause, all benefits and compensation shall cease as of
the date of such Termination.
3.4 On termination of this Agreement by Radica UK without Cause, or in the
event of Total Disability or by the Executive for Good Reason in the
event of a Change in Control, (i) Radica UK will continue to pay the
Executive his annual salary for twelve months from the date of such
Termination, (ii) Radica UK or Radica Group will continue to provide
medical and dental benefits to the Executive for twelve months from the
date of Termination on the same basis and at the same Executive cost at
the date of Termination, (iii) Radica UK will continue to pay the
Executive his car allowance for twelve months after the date of
Termination, and (iv) the Executive's stock options will be treated as
set forth in Clause 6 hereof.
4 EXPENSE REIMBURSEMENT
4.1 The Executive will be entitled to reimbursement by Radica UK for
reasonable and proper business expenses paid by him on behalf of Radica
UK in the course of his employment hereunder on presentation to Radica
UK of appropriate vouchers (accompanied by receipts or paid bills)
setting forth information sufficient to establish:
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4.1.1 the amount, date, and place of each such expense;
4.1.2 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
4.1.3 the names, occupations, addresses, and other information sufficient to
establish the business relationship to Radica Group of any person who
was entertained by the Executive.
5 COMPENSATION
5.1 Radica UK agrees to pay the Executive, and the Executive agrees to
accept from Radica UK, for the services to be rendered by him hereunder
a salary at the rate of(pound)125,000 per year payable in equal monthly
instalments in arrears. The Executive shall receive annual salary
reviews by the Board on or around April in each year commencing 2004,
provided that his salary may be reduced but not below(pound)125,000 per
year. After a Change in Control, the Executive's salary shall not be
reduced below the level immediately prior to the Change in Control.
5.2 The Executive shall be considered for annual bonuses pursuant to the
Radica Games Bonus Policy for officers of Radica Group. The 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.
5.3 In the event of a Special Change in Control that occurs on or before 31
March 2004 or as a result of the signing on or before 31 March 2004 of
a definitive agreement that will result in a Special Change in Control
the Executive will be entitled to a special bonus of(pound)125,000
("the Special Bonus") to be paid by Radica UK within 7 days after the
Special Change in Control takes effect provided that the Executive
complies continuously and in all respects with his obligations under
Clause 7 below and regardless of whether or not the Executive's
employment is terminated.
5.3.1 In the event of a Special Change in Control which occurs as a result
of the signing of a definitive agreement on or after 1 April 2004, the
Executive shall be
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entitled to payment of the Special Bonus upon termination by the
Company without Cause;
5.3.2 If the Executive breaches any of his obligations under Clause 7 below
such part of the Special Bonus up to the full amount as Radica UK may
in its sole discretion determine shall become payable as a debt on
demand to Radica UK.
5.4 A contracting out certificate is not in force in respect of the
Executive for the purposes of the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇. If Radica
Group institutes a retirement, bonus or other benefit plan which
applies generally to executive officers of Radica Group of similar
status to the Executive, the Executive shall be entitled to participate
therein, but not to the extent such benefits would be duplicative of
the benefits herein.
5.5 All payments by Radica UK shall be subject to required withholdings
including taxes.
6 STOCK OPTIONS
6.1 The Executive is to be granted 60,000 stock options under the 1994 Plan
(the "Stock Options") at an exercise price the same as the market price
of Radica stock at the date of this Agreement.
6.2 Subject to the provisions of this Clause 6;
6.2.1 The Stock Options shall vest and become exercisable 33.3% per year for
each year the Executive is employed by Radica Group following the date
of grant, with the vesting dates occurring on the first three
anniversaries of the date of grant of the Stock Options.
6.3 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.
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6.4 (i) as of the date of Termination in the event of Termination pursuant
to Clause 3.1 or Termination by Radica UK for Cause or by the Executive
without the consent of Radica UK or (ii) twelve (12) months after the
date of Termination in the event of Termination by Radica UK without
Cause or by the Executive for Good Reason in the event of a Change in
Control (unless Clause 6.6 of this Agreement applies in which case this
Clause 6.4 shall not apply to the Executive's Stock Options) or the
Total Disability of the Executive (each of such applicable dates being
called a "Determination Date") the Executive shall forfeit the Stock
Options (measured by percentages of the stock subject to the Stock
Options), and they shall expire, as follows:
6.4.1 if the Determination Date is within the first year after the date the
Stock Option is granted (the "Grant Date") then the Executive shall
forfeit 100% of the Stock Options;
6.4.2 if the Determination Date is after the end of the first year and within
the second year after the Grant Date, the Executive shall forfeit 66.6%
of the Stock Options;
6.4.3 if the Determination Date is after the end of the second year and
within the third year after the Grant Date, the Executive shall forfeit
33.3% of the Stock Options.
6.5 In any event the Stock Options shall expire to the extent not
previously exercised on the tenth anniversary of the Grant Date.
Otherwise, the Executive 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 forfeiture.
6.6 Upon the occurrence of a Change in Control under the 1994 Plan, all of
the Executive's then outstanding stock options in Radica shall vest and
become immediately exercisable. If the Executive is terminated by
Radica UK without Cause after a definitive agreement for a transaction
described in Sections 9 (a) (i) or (ii) of the 1994 Plan has been
approved by the shareholders of Radica, but before such transaction is
consummated, the Executive's stock options shall vest on the date of
such termination without Cause.
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6.7 The Executive 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 U.S. state and federal securities
laws.
6.8 Upon Termination, the Executive 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 1994 Plan or any other stock
option plan adopted by Radica and the rights of the Executive shall be
determined by the provisions of this Clause 6 and the rules of the 1994
Plan.
6.9 In the event of any conflict between the rules of the 1994 Plan and the
terms of this Clause 6, the terms of this Clause 6 shall take
precedence.
7 CONFIDENTIALITY AND RESTRICTIONS
7.1 The Executive 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 the Executive or to the public at
the date of this Agreement; and (ii) information which hereafter
becomes known to the public through no fault of the Executive.
Accordingly, except as permitted or required in the performance of his
duties for Radica Group, the Executive agrees during the term of his
employment 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.
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7.2 The Executive 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 UK or Radica Group whether by virtue of this Clause 7.2 or
otherwise. The Executive 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 the
Executive or coming into his possession during the employment period
concerning any Proprietary Information used or developed by Radica
Group, or by the Executive, shall be the sole exclusive property of
Radica Group. The Executive shall have no right, title or interest
therein notwithstanding that he may have purchased the medium on which
such Proprietary Information is recorded.
7.3 Upon Termination, the Executive 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 UK Limited, the
Executive shall promptly deliver all Confidential Information and
Proprietary information, and all copies thereof, to Radica with no cost
or charge to Radica. Upon request by Radica, the Executive shall
promptly execute and deliver any documents necessary or convenient to
evidence ownership of the Confidential Information and Proprietary
Information by a company in Radica Group, or the transfer and
assignment of the Confidential Information and Proprietary Information
to a company in Radica Group without cost or charge. The provisions of
this Clause 7 shall survive any Termination of this Agreement.
7.4 Except as indicted in 7.4.2, the Executive shall not without the
previous written consent of the Board during the course of his
employment:
7.4.1 directly or indirectly engage or be interested in any business other
than that of Radica UK or any company in the Radica Group; or
7.4.2 hold any directorship of any company, except the non-
executive directorship of DNA International, provided always that
there are no current or future conflicts of interest (as defined in the
Radica Games Limited Code of Conduct) between the Executive's
employment and the business of DNA International and provided
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that the Executive's involvement in the business of DNA International
is subject to the prior consent of the Executive's supervisor, is
limited to official board meetings only and does not interfere with the
Executive's proper performance of his duties for Radica UK;
save that he may be interested as a holder or beneficial owner solely
for investment purposes of less than five per cent. of any securities
of any company whose securities are listed or quoted on any recognised
investment exchange in the United Kingdom or in the United States of
America.
7.5 The Executive acknowledges that during the course of his employment he
will be privy to Confidential and Proprietary Information and that he
will make, maintain and develop personal knowledge of, influence over
and valuable contacts with customers, suppliers, staff and third
parties. The Executive therefore covenants with Radica UK that:
7.5.1 he will not in the Restricted Territories for the period of one year
following Termination directly or indirectly in competition with Radica
UK or Radica Group engage in business with or be in any way interested
in or connected with any Competitive Enterprise which engages in or
carries on within any part of the Restricted Territories any business
which competes with any business carried on by Radica UK or Radica
Group as at Termination in which the Executive was involved on behalf
of Radica UK or Radica Group at any time within the twelve months
immediately preceding Termination;
7.5.2 he will not in the Restricted Territories for the period of one year
following Termination directly or indirectly:-
7.5.2.1 interfere with or, in competition with Radica UK or
Radica Group in relation to any Competitive Enterprise
which competes with any business carried on by Radica
UK or Radica Group at Termination in which the Executive
was involved on behalf of Radica UK or Radica Group at
any time within the twelve months immediately preceding
Termination, offer or agree to provide, or provide goods
or services of any description to, or solicit or endeavour
to entice away from Radica UK or Radica Group the
custom of any person, firm or body corporate which,
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at any time during the period of twelve months immediately
preceding Termination, has been a Customer, or in the habit
of dealing with, Radica UK or Radica Group or which, at any
time during that period, was to his knowledge negotiating
with Radica UK or Radica Group in relation to the provision
of goods or services by Radica UK or Radica Group;
7.5.2.2 interfere or seek to interfere with contractual or other
trade relations between Radica UK 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;
7.5.2.3 solicit the services of or endeavour to entice away from
Radica UK or Radica Group any director, senior or
managerial the Executive or consultant of Radica UK 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.
7.6 The Executive agrees that the restrictions contained in Clause 7.4 and
7.5 shall apply in relation to all Customers and suppliers with whom he
personally has had dealings on behalf of Radica UK notwithstanding that
such Customers and suppliers may have been introduced to Radica UK or
Radica Group by the Executive before or during his employment with
Radica UK. He further agrees that if any of the restrictions in Clause
7.4 and 7.5 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.
7.7 For purposes of the Agreement, a "Customer" means any
customer or prospective customer of Radica, Radica UK or their
affiliates to whom the Executive provided services, or for whom the
Executive transacted business, or whose identity became known to the
Executive in connection with his relationship with or employment by
Radica UK or Radica Group, and "solicit" means any direct or
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indirect communication of any kind, regardless of who initiates it,
that in any way directly or indirectly invites, advises, encourages or
requests any person to take or refrain from taking any action.
7.8 The restrictions contained in each sub-clause of Clause 7.4 and 7.5
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.
8 NOTICE TO NEW EMPLOYERS
8.1 Before the Executive either applies for or accepts employment with any
other person or entity for the period of one year immediately following
Termination, the Executive will provide the prospective employer with
written notice of the provisions of Clause 7 of this Agreement
9 TERMINATION
9.1 Upon Termination the Executive shall immediately resign without claim
for compensation for loss of office (but without prejudice to any claim
he may have against Radica UK arising out of any breach of this
Agreement by Radica UK) from such offices held by him in Radica UK and
any company in the Radica Group and from any other offices he may hold
as nominee or representative of Radica UK and any company in the Radica
Group, and Radica UK is irrevocably authorised by the Executive 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.
9.2 If either party gives notice to terminate this Agreement, the Executive
agrees:
9.2.1 that for a period not exceeding twelve months the Board may
in its absolute discretion require the Executive not to perform
any of his duties and may require him not to have any contact with
clients or customers of Radica UK or Radica Group nor any contact
(other than purely social contact) with such the Executives of Radica
UK or Radica Group as the Board shall determine and/or may exclude
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him from any premises Radica UK or Radica Group (without providing
any reason for doing so); and
9.2.2 that such action on the part of Radica UK shall not constitute a breach
of this Agreement nor shall the Executive have any claim against Radica
UK in respect of any such action;
Provided always that throughout such period the Executive's salary and
other benefits shall not cease to be paid or provided (unless and until
his employment is terminated).
9.3 Radica UK may elect to terminate the contract immediately and make a
payment of salary in lieu of any applicable period of notice. For the
avoidance of doubt, the right of Radica UK to make a payment in lieu of
notice does not give rise to any right of the Executive to receive such
payment.
10 BENEFIT AND BINDING EFFECT
This Agreement shall inure to the benefit of and be binding upon Radica
UK 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 UK or any
corporation with or into which it may be consolidated or merged. Radica
UK may assign its rights and obligations to another present or future
member of Radica Group. The rights and obligations of the Executive
hereunder may not be delegated or assigned, except that the Executive
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.
11 GUARANTEE
11.1 The obligations of Radica UK to the Executive under the terms of this
Agreement will be guaranteed by Radica for as long as Radica is the
parent company of Radica UK.
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11.2 In the event of the sale of Radica UK or the transfer of its business
outside the Radica Group the obligations of Radica UK under the
Agreement will be guaranteed by Radica for a period of one year
following the sale or transfer.
12 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.
13 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.
14 REIMBURSEMENT OF EXPENSES
If any dispute shall arise under this Agreement involving termination
of the Executive's employment with Radica UK after a Change in Control
or involving the failure or refusal of Radica UK to perform fully in
accordance with the terms hereof, Radica UK shall reimburse the
Executive on a current basis, for all reasonable legal fees and
expenses, if any, incurred by the Executive in connection with such
contest or dispute (regardless of the result thereof), regardless of
whether or not the Executive's claim is upheld by a court of competent
jurisdiction; provided, however that the Executive shall be required to
repay any such amounts to Radica UK to the extent that a court issues a
final and non-appealable order setting forth the determination that the
position taken by the Executive was frivolous or advanced by the
Executive in bad faith.
15 ENTIRE AGREEMENT
15.1 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,
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understandings, warranties or representations, oral, written, express
or implied, are hereby superseded and merged herein.
15.2 This Agreement replaces all previous contracts of service or other
employment arrangements between the Executive and Radica UK or any
member of the Radica Group, which shall have no further effect as from
the date of this Agreement.
16 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.
17 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.
18 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 the Executive to either
Radica UK or Radica Games 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 Games Limited
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇ ▇▇▇▇
Telefax: (▇▇▇) ▇▇▇ ▇▇▇▇
To: The Executive:
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
19 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.
IN WITNESS whereof, the parties have executed this Agreement as of the day and
year first above written.
SIGNED by )/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
for and on behalf of RADICA UK )
LIMITED )
SIGNED by ▇▇▇▇▇ ▇▇▇▇▇▇ )/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
SIGNED by )/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
for and on behalf of RADICA )
GAMES LIMITED )
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