Exhibit 10.12
CONSULTING AGREEMENT
I. PARTIES
The parties to this Consulting Agreement (this "Agreement") are Radica
China Limited (Radica), a British Virgin Islands corporation, and Millens X.
Xxxx, an employee of Xxx Xxxx & Associates, Inc., with offices at 00 Xxxxx
Xxxxxx, Xxxx Xxxxxxxxxx, Xxxxxxxxxxxxx 00000, XXX ("The Consultant").
II. RECITALS
This Agreement is made with reference to the fact that Radica wishes to
engage Consultant to perform certain services for Radica and/or for its
affiliates around the world ("Affiliates"), and the Consultant wishes to perform
such services pursuant to each and all of the terms of this Agreement.
III. AGREEMENT
Subject to the terms and conditions set forth in this Agreement, Radica
hereby retains the Consultant as an independent contractor in a consulting
capacity, and the Consultant agrees to perform consulting services for Radica as
described in this Agreement. The relationship between Radica and the Consultant
created by this Agreement is hereinafter referred to as "the Consultancy."
IV. THE CONSULTANCY
Term
Unless terminated sooner pursuant to Paragraph VI of this Agreement or extended
by mutual agreement in writing, the term of the Consultancy shall be exactly one
(1) year commencing on November 1, 1997.
Duties
During the Consultancy, the Consultant shall advise, consult with and assist
Radica and/or any Affiliates designated by Radica at such times, places and
during such periods of time as Radica shall reasonably request. The Consultant's
duties for Radica and/or its Affiliates shall be limited to the specific project
and related matters as follows:
1. Providing assistance in identifying, contacting, meeting and
developing with inventors and other product concept sources in the toy and game
industry for the specific purpose of developing handheld, boxed, single or multi
player, electronic games for the Radica line. Administering normal inventor
relations records and controls required to protect Radica's legal interests;
2. Providing advice and assistance in obtaining and arranging for
licenses to manufacture and/or distribute Radica developed games or games
developed as noted under item 1 above;
3. Providing advice as to selection of product concepts for development
from both internal and external services;
4. Providing advice regarding methods and procedures relating to the
selection, development, engineering, testing and marketing of the company's
products;
5. Providing such other advice, counsel and assistance as Radica may
from time to time reasonably request.
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6. However, it is expressly understood that Consultant is also a
Director of Radica and has certain duties and responsibilities related to that
office which are not changed by this Agreement.
In performing his duties as described above, the Consultant shall
consistently and at all times diligently and conscientiously use his best
efforts to further the interests of Radica and its Affiliates.
V. CONSIDERATION
In consideration of the complete and faithful performance of his duties
pursuant to this Agreement, Radica agrees to provide to the Consultant
consideration solely as follows:
A. A monthly payment for the first three months of this Agreement in an amount
of $10,000.00 per month and for the remaining nine months of the Agreement in
the amount of three thousand, three hundred thirty-four US dollars (US$3,334.00)
to be paid on the first (1st) business day of each month. The Effective Date is
the first (1st) business day of the first month. Immediately upon any
termination of the Consultancy, Radica shall have no further duty, obligation or
responsibility to make any further payment or to provide any other consideration
to the Consultant.
B. The monthly payments to the Consultant described in Paragraph V(A) above are
the entirety of the consideration, pay, fees, benefits or other things of value
of any kind to be provided by Radica to the Consultant for his services pursuant
to this Agreement, and the Consultant is solely responsible for supplying, at
his own cost and expense, any and all equipment, tools, supplies,
instrumentalities, places of work, employees, facilities and other things and/or
services which may need or require to perform each and all of his duties
pursuant to this Agreement.
VI. TERMINATION
The Consultancy, this Agreement (with the exception of the Consultant's
obligations pursuant to Paragraphs VIII, X, XII, XIII, IV, XV and each of them,
each of which obligations survive any termination of the Consultancy) and
Radica's obligation to provide the consideration described in Paragraph V(A) of
this Agreement shall each automatically, immediately and forever terminate upon
the occurrence of any one (1) or more of the following:
The passage of a period of one (1) year from the Effective Date;
Radica's and the Consultant's entry into and execution of a written agreement to
such termination;
The death of the Consultant;
The Consultant ceases to be a Director of Radica;
Any breach by the Consultant of any provision of this Agreement;
Any failure by the Consultant to observe and to fully and faithfully perform
each and all of his duties, responsibilities and obligations pursuant to this
Agreement; or
The inability, for any reason whatsoever, of the Consultant to perform fully his
duties, responsibilities and obligations pursuant to this Agreement for any
period of sixty (60) consecutive calendar days.
VII. THE CONSULTANT'S EXPENSE
In performing his duties pursuant to this Agreement, the Consultant, except as
otherwise provided in this Agreement, is fully liable and responsible for paying
any and all costs and expenses
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incurred by him and/or his employees, agents and/or servants in the performance
of the Consultant's duties pursuant to this Agreement.
Notwithstanding the foregoing, Radica recognizes that the Consultant,
in performing his duties pursuant to this Agreement, may be obligated to expend
monies for travel, lodging, entertainment, telephone conferencing, and similar
business reasons. Radica agrees that upon (1) the express, written approval of
Radica's President or Chief Financial Officer, of business-related expenses and
the maximum amounts of any and all such expenses; and (2) the Consultant's
presentation to Radica of an expense voucher with receipts showing the amounts
of such expenses, Radica will reimburse the Consultant for such business-related
expenses as long as they are in conformance with Radica's Travel and Expense
Reporting Policy as attached hereto.
VIII. EMPLOYEES OF THE CONSULTANT
Each and all of the Consultant's duties to Radica pursuant to this
Agreement are personal, can be performed only through his unique knowledge and
experience, and, therefore, shall be performed solely by him. However, to the
extent, if any, that the Consultant may require support or staff to provide
assistance to him in fulfilling his duties, the Consultant shall hire and
employ, at his own cost and expense, any and all such persons. Any and all
persons so employed by the Consultant shall be under the sole direction and
control of the Consultant, and the Consultant shall be and at all times remain
solely responsible for the selection; hiring; firing; disciplining; supervising;
compensating; assigning; directing; setting of wages, hours and working
conditions; and adjusting the grievances of each and all of his employees,
agents and/or servants. The Consultant shall determine the methods, means and
manners of the performance of the work of each of his employees, agents and/or
servants, if any. Radica shall not have any authority with respect to the
employment relationship between the Consultant and his employees, agents and/or
servants.
Radica shall not have any duty, responsibility or obligation of any
kind to the Consultant or to the Consultant's employees, agents and/or servants
for any fines, costs, or expenses incurred by the Consultant or any employee,
agent and/or servant of the Consultant for any violation of any statute, rule,
ordinance, regulation or other law. Radica shall not have any duty,
responsibility or obligation for or in respect to any wages; benefits; taxes;
expenses; workers' compensation insurance; other insurance for the benefit or
protection of the Consultant and/or any of his employees, agents and/or
servants; or any other aspect of the employment relationship between the
Consultant and his employees, agents and/or servants if hired or used for this
specific project. The Consultant expressly agrees that he alone has and assumes
the full and entire responsibility for the deduction and payment of any and all
state, federal and other income taxes; disability insurance premiums;
unemployment insurance taxes; old age, pension or other social security
benefits; and any and all other payments, deductions and/or contributions for
each and all of his employees, agents and/or servants if hired or used for this
specific project, and the Consultant further agrees to the best of his knowledge
to comply fully with each and every statute, rule, ordinance, regulation and
other law now or hereafter prescribed by any legally constituted authority with
respect to the Consultant's employment of any of his employees, agents and/or
servants for this specific project.
In the event of any conflict between any of the terms or provisions of
this Paragraph VIII and any of the terms or provisions of Paragraph VII of this
Agreement, the terms and provisions of this Paragraph VIII shall control for any
and all purposes.
COMPLIANCE WITH LAWS
The Consultant to the best of his knowledge shall in all ways and at all times
during the Consultancy be and remain in full and complete compliance with and
refrain from violating or causing Radica and/or its Affiliates to violate any
statute, rule, ordinance, regulation or other law now or hereafter prescribed by
any legally constituted authority, and he will at all times follow any and all
guidelines or instructions regarding compliance with such laws that are provided
to him by Radica and/or its Affiliates. However,
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neither Radica nor any of its Affiliates shall ever be responsible for issuing
any such guidelines or instructions. The Consultant shall, at his own expense,
comply with any of all statutes, rules, ordinances, regulations and other laws
now or hereafter prescribed by any legally constituted authority applicable to
the Consultant with respect to the performance of his duties, responsibilities
and obligations pursuant to this Agreement, including, without limitation, the
obtaining of any and licenses required of the Consultant in order for the
Consultant to provide the services required of him pursuant to this Agreement.
In the event of any conflict between any of the terms or provisions of this
Paragraph IX and any of the terms or provisions of Paragraph VII of this
Agreement, the terms and provisions of this Paragraph IX shall control for any
and all purposes.
X. INDEMNIFICATION
A. By Consultant
The Consultant expressly agrees to indemnify and otherwise hold
harmless Radica and each of its Affiliates and each and all of their respective
parent, subsidiary or sibling corporations; and each and all of their respective
officers, directors, shareholders, employees, representatives, agents,
successors, assigns, licensors, licensees and other affiliated persons, firms,
corporations, associations, partnerships, joint ventures and/or entities from
and against any and all lawsuits, legal actions, claims, demands, obligations,
costs, and/or liabilities whatsoever, including all attorneys' fees, arising
from, without limitation, any of the following: (1) any violation by the
Consultant, Radica and/or any of Radica's Affiliates of any statute, rule,
ordinance, regulation or other law now or hereafter prescribed by any legally
constituted authority if the violation was attributable, in whole or in part, to
the Consultant's acts or omissions; (2) any act, omission or other conduct of
the Consultant, whether or not in the performance of his duties,
responsibilities and obligations pursuant to this Agreement; (3) any and all
taxes and/or other payments for which the Consultant may be liable or which may
be due to any and all governmental taxing authorities and/or entities with
respect to or on account of any and all of the consideration afforded to the
Consultant pursuant to Paragraph V of this Agreement; (4) any personal injury or
property damage arising from any act, omission or other conduct of the
Consultant, whether or not in the performance of his duties, responsibilities
and obligations pursuant to this Agreement; (5) any verbal and/or written
statements or representations not previously approved in writing by Radica's
President made by the Consultant to any person, firm, corporation, partnership,
joint venture or other entity; and/or (6) any violation by the Consultant of any
provision of this Agreement.
For any and all purposes of this Agreement, any act, omission or other
conduct and/or any violation of any statute, rule, ordinance, regulation or
other law now or hereafter prescribed by and legally constituted authority by
any employee, agent and/or servant of the Consultant is and shall be
conclusively presumed for any and all purposes to be the act, omission,
violation and/or other conduct of the Consultant.
B. By Radica
Radica expressly agrees to indemnify Consultant for any actions or
disclosures by Radica, its employees, directors, etc., to any third parties of
any ideas or inventions created by outside inventing sources and presented to
Radica by Consultant for or in connection with this project unless expressly
agreed to in writing by the Consultant and the outside inventing source.
Further, Radica agrees that any such unauthorized disclosure could cause
Consultant and inventing source irreparable harm, loss of future income, harmful
legal action, possible cancellation or delay of work on this project, and cause
Consultant not to be able to comply with its indemnification of Radica as agreed
to above under X(A).
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THE CONSULTANT IS AN INDEPENDENT CONTRACTOR
Radica and the Consultant each specifically understands, agrees, and
acknowledges that the Consultant is for any and all purposes whatsoever an
independent contractor who is not subject to the direct control of Radica or any
of its Affiliates. The Consultant is solely responsible for successfully
performing each and all of his duties pursuant to this Agreement, and neither
Radica nor any of its Affiliates shall have any right to, and shall not, control
the manner or prescribe the method of accomplishing the services to be performed
by the Consultant. The Consultant is not authorized for any purpose or in any
manner to bind Radica or any of its Affiliates and/or to make any
representations or agreements on behalf of Radica or any of its Affiliates.
Radica and the Consultant expressly agree that (1) neither the Consultant nor
any employee, agent, servant, contractor or representative of the Consultant is
an employee, agent, servant, contractor or representative of Radica or any of
its Affiliates, and (2) the Consultant is not a joint venturer or partner for
any purpose whatsoever of or with Radica or any of its Affiliates. No provision
of this Agreement shall ever be construed by any person whomsoever for any
purpose whatsoever to (1) make the Consultant and/or employee, agent, servant,
contractor representative of the Consultant an employee, agent, servant,
contractor or representative of Radica or any of its Affiliates and/or (2) make
the Consultant a joint venturer or partner for any purpose whatsoever of or with
Radica or any of its Affiliates.
DISCLOSURE OF CONFIDENTIAL INFORMATION
The Consultant recognizes, acknowledges and agrees that, due to and during the
Consultancy, he will have access to and obtain knowledge of certain inventions,
proprietary information and/or trade secrets ("Confidential Information")
relating to the businesses of Radica or any of its Affiliates and not generally
known to the public or to the competitors of Radica or any of its Affiliates.
The Consultant recognizes, acknowledges and agrees that such Confidential
Information constitutes a valuable, special and unique asset of Radica and/or
its Affiliates, access to and knowledge of which is essential to the performance
of the Consultant's duties. The Consultant specifically agrees that, except as
directed by Radica's President, he will not any time during the Consultancy or
after any termination of the Consultancy use or disclose any Confidential
Information to any person whomsoever for or allow any Confidential Information
to be disclosed to any person whomsoever for any purpose other than for the
benefit of Radica and/or its Affiliates.
In turn, Radica recognizes that they will have access to inventors' confidential
knowledge, inventions, etc.
The Consultant agrees that the remedy at law for any breach or threatened breach
of any term, provision or convenant of this Paragraph XII would be entirely
insufficient and inadequate to protect the legitimate interests of Radica and/or
its Affiliates, and therefore any and all provisions under Paragraph XIII of
this Agreement to the contrary notwithstanding, Radica or any of its Affiliates
shall each be entitled to immediate injunctive relief for any such breach or
threatened breach in addition to any and all other relief, damages and/or other
remedies available at law or in equity to Radica or any of its Affiliates.
ARBITRATION
The Consultant and Radica each desires to resolve any and all disputes which may
ever arise between them, or between the Consultant and any of Radica's
Affiliates, solely through binding arbitration in order to avoid any possibility
of their having to incur the expense, loss of time, vagaries and uncertainties
of litigation.
Except as otherwise expressly provided in this Agreement, any controversy,
dispute and/or claim ("Claim") which Radica may have against the Consultant or
which the Consultant may have against Radica or any of its Affiliates and/or any
of their respective officers, directors, shareholders, employees,
representatives, agents, successors, assigns, licensors, licensees and other
affiliated persons, firms,
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corporations, associations, partnerships, joint ventures and/or entities in
their capacity as such or otherwise, including, without limitation, any Claim
arising out of, concerning or relating to this Agreement; the Consultancy; the
meaning, application and/or interpretation of this Agreement; the formation of
this Agreement; any breach or claimed breach of this Agreement and/or any
termination of this Agreement, shall be settled solely by arbitration in
accordance with the Arbitration Rules (the "Rules") of the International Chamber
of Commerce. In the event of any conflict between the Rules and the provisions
of this Agreement, this Agreement shall control for any and all purposes.
Each party to any arbitration will pay the cost, including the attorneys fees of
presenting his or its case, and the Consultant and Radica shall each pay
one-half (1/2) of the fees of the arbitrator(s), the costs of any record or
transcript of the arbitration proceedings, any and all administrative fees, and
all other fees and costs of the arbitration. Radica shall pay the Consultant's
airfare and related expenses incident to his attendance at the arbitration
hearing.
Judgement upon the award rendered by the arbitrator(s) may be entered in any
court having jurisdiction thereof.
Any arbitration proceeding shall be held in United States unless Radica and the
Consultant specifically agree in writing to another location for such
proceeding.
NOTICES
All notices, requests, demands and/or other communications pursuant to or
pertaining to this Agreement shall be given in writing and shall be deemed given
upon hand delivery or within forty-eight (48) hours of being deposited in the
mail; first class, registered or certified mail; postage prepaid; and addressed
as follows:
If to Radica China Limited:
Radica China Limited
Suite R, 6/F
0-00 Xx Xxx Xxx Xxxxxx
Xx Xxx, Xxxx Xxxx
If to the Consultant:
Millens X. Xxxx
00 Xxxxx Xxxx
Xxxx Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
X.X.X.
Radica and/or the Consultant may change the address at which such notices,
requests, demands and other communications shall be given to it or him by
written notice to the other in the same manner as specified above in this
Paragraph XIV.
GENERAL
Waiver
No waiver of any breach of any warranty, representation, agreement, promise,
covenant, paragraph, term and/or provision of this Agreement shall be deemed to
be a waiver of any proceeding or succeeding breach of the same or any other
warranty, representation, agreement, promise, covenant, paragraph, term and/or
provision of this Agreement. No extension of the time for the performance of any
duty, responsibility, obligation or other act required or permitted by this
Agreement shall be deemed to be an extension of the
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time for the performance of any other duty, responsibility, obligation or other
act required or permitted by this Agreement.
Sole and Entire Agreement
This Agreement is the sole, complete and entire contract, agreement and
understanding between the Consultant and Radica concerning the Consultancy; the
terms and conditions of the Consultancy; the duration of the Consultancy; the
termination of the Consultancy; the consideration to be paid by Radica to the
Consultant pursuant to this Agreement; and the entire relationship between the
Consultant and Radica for any and all purposes whatsoever; and this Agreement
supersedes any and all prior contracts, agreements, relationships,
understandings, and/or negotiations, whether oral or written, concerning any of
the foregoing.
Amendments
This Agreement becomes effective on the Effective Date subject to the execution
and delivery of this Agreement by both Radica and the Consultant on or before
the Effective Date, and no amendment, modification, waiver or consent relating
in any manner to this Agreement will be effective unless and until it is
embodied in a written document signed by the party to be charged with such
amendment, modification, waiver or consent.
Severability
To the extent that any provision of this Agreement shall be found to be illegal
or unenforceable for any reason, each such provision shall be deemed modified or
deleted in such a manner as to make this Agreement, as so modified, legal and
enforceable under applicable laws. The remainder of this Agreement shall
continue in full force and effect.
Applicable Law
This Agreement shall be construed, interpreted and applied solely pursuant to
the internal laws of British Virgin Islands without regard or consideration for
any conflicts of laws principles.
Construction
The language of this Agreement shall, in any and all cases, for any and all
purposes, and in any and all circumstances be construed as a whole, according to
its fair meaning, not strictly for or against the Consultant or Radica, and with
no regard whatsoever to the identity or status of any person or persons who
drafted all or any part of this Agreement.
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Execution in Counterparts
This Agreement may be executed in counterparts, each of which shall be an
original, and such counterparts together shall constitute one and the same
instrument.
RADICA CHINA LIMITED
DATED: November 1, 1997 By: /s/ Xxxxxx X. Xxxxxx
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Title: President
MILLENS X. XXXX
DATED: November 1, 1997 By:/s/ Millens X. Xxxx
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("The Consultant")
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