Employment Agreement - LeapFrog Enterprises Inc. and Thomas J. Kalinske
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, dated as of April 1, 2002 ("AGREEMENT"), is made
between LEAPFROG ENTERPRISES, INC., a Delaware corporation (the "COMPANY"), and
THOMAS J. KALINSKE ("EXECUTIVE").
RECITALS:
WHEREAS, the Company deems the Executive's services during the term of
this Agreement to be material and significant to the Company's success and
desires to ensure that the skills and experience of Executive will remain
available to the Company; and
WHEREAS, the parties hereto desire to enter into this Agreement
providing for the employment of Executive by the Company on the terms and
conditions hereinafter set forth.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual promises and subject to
the terms and conditions set forth herein, the parties hereto agree as follows:
SECTION 1. EMPLOYMENT.
1.1 POSITION, DUTIES, RESPONSIBILITIES, AUTHORITY. The Company hereby
employs Executive as the Chairman of the Company for the Employment Term (as
defined below) and on the terms and conditions hereinafter set forth. In such
capacity, Executive shall have such duties and authority as are customary for,
and commensurate with such position, and such duties as the Board of Directors
may prescribe. Executive shall, to the best of Executive's ability, carry out
such responsibilities and duties as are commensurate with this position.
Executive's principal office for the performance of services under this
Agreement shall be in the San Francisco/Oakland Bay Area or at any location or
locations other than the aforesaid as Executive shall agree to and as the
Company's Board of Directors may designate from time to time.
1.2 EXCLUSIVE EMPLOYMENT. During the Employment Term, Executive shall
devote no less than eighty percent (80%) of his business time to his duties and
responsibilities set forth in this Section 1. Without limiting the generally of
the foregoing, Executive shall not, without the prior written approval of the
Company's Board of Directors, during the Employment Term, render services of a
business, professional or commercial nature to any other person, firm or
corporation, whether for compensation or otherwise, except that Executive may
continue devoting up to twenty percent (20%) of his business time to his duties
at Knowledge Universe and its affiliated companies, and may engage in civic,
philanthropic and community service activities so long as such activities do not
interfere with Executive's ability to comply with this Agreement and are not
otherwise in conflict with the policies or interest of the Company, and
Executive may serve on the Board of Directors of any or all of the companies on
which he held a seat prior to the date of this agreement and any other company
approved by the Board of Directors of the Company.
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SECTION 2. COMPENSATION AND OTHER BENEFITS.
In consideration of Executive's employment, and except as otherwise
provided herein, Executive shall receive from the Company the compensation and
benefits described in this Section 2, in full and complete satisfaction of all
of the Company's obligations to Executive arising from Executive's employment.
The compensation and employee benefits payable to Executive pursuant to this
Agreement may be changed only by the written agreement of the parties. Executive
authorizes the Company to deduct and withhold from all compensation to be paid
to him any and all sums required to be deducted or withheld by the Company
pursuant to the provisions of any federal, state, or local law, regulation,
ruling, or ordinance, including, but not limited to, income tax withholding and
payroll taxes.
2.1 BASE COMPENSATION AND BONUS. During the Employment Term, the
Company shall pay to Executive, and Executive shall be entitled to receive from
the Company, a base salary for the employment referred to in Section 1 hereof of
$265,000 per year ("SALARY"), and a bonus opportunity of up to $135,000 per year
("BONUS"), of which 50% shall be guaranteed and 50% shall be subject to
Executive meeting certain minimum operating results as established by the Board
of Directors or the compensation committee thereof during the first quarter of
each year of the Employment Term. Salary shall be payable in intervals of not
less than twice a month in accordance with the Company's payment policy for
executives in effect from time to time. The Bonus shall be payable within ten
(10) days from the time the amount of Bonus has been determined, but in any case
not later than February 15th of the following calendar year.
2.2 VACATION. Executive shall be entitled to four weeks paid vacation
in any fiscal year during the Employment Term in accordance with Company
vacation and leave policies and to one additional week of personal leave during
each fiscal year during the Employment Term. Vacation time shall be planned and
taken consistent with Executive's duties and obligations hereunder.
2.3 OTHER BENEFITS. During the Employment Term, Executive shall be
entitled to receive an automobile allowance of $600 per month and such other
specific and applicable employee benefits, such as group medical and dental for
Executive, Executive's spouse and dependent children, life and disability
insurance coverage, and sick leave all as granted to the Company's executive
employees in accordance with the Company's policies and guidelines, including
but not limited to contribution requirements for dependent coverage, as approved
by the Company's Board of Directors from time to time. In addition, conditioned
on Executive's medical condition being such that he will not be rated as a
health risk resulting in higher than normal premium costs for such policy or
policies and Executive's agreement to submit to all physical and medical
examinations required to obtain such policy or policies, the Company shall
obtain and maintain during the Employment Term one or more policies of term life
insurance providing an aggregate benefit in the amount of $2,000,000. Executive
shall have the right to designate the beneficiary or beneficiaries of the
benefit payable upon death pursuant to such policy or policies and may transfer
ownership of such policy or policies to any life insurance trust, family trust
or other trust. If the Company fails to maintain the full amount of such
coverage, upon the Executive's death while employed by the Company, the Company
shall pay to his beneficiaries any difference between $2,000,000 and the benefit
payable to Executive or his beneficiaries under such policy or policies.
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2.4 STOCK OPTIONS. The Company and Executive acknowledge that Executive
holds a non-qualified stock option to purchase 250,000 shares of Common Stock at
an exercise price of $12.50 per share. The vesting period shall be three (3)
years, with 1/36th of the total option vesting on April 1, 2002 and 1/36th of
the total option vesting monthly thereafter.
SECTION 3. EMPLOYMENT TERM AND TERMINATION.
3.1 TERM. Executive's term of employment under this Employment
Agreement shall commence as of the date hereof and shall terminate on March 31,
2005, unless terminated earlier pursuant to Sections 3.2, 3.3, 3.4 or 3.5 hereof
("EMPLOYMENT TERM").
3.2 TERMINATION BY DEATH. Executive's term of employment will terminate
upon the death of Executive; provided that the Company shall pay to the estate
of the Executive any unpaid Salary or Bonus to the extent earned at the date of
death, any amounts payable by the Company at the date of death under the life
insurance policies as provided in Section 2.3, and any amounts payable pursuant
to the Company's employee benefit plans in accordance with such plans.
3.3 TERMINATION UPON PERMANENT DISABILITY. Executive's term of
employment shall terminate upon the "PERMANENT DISABILITY" of Executive. As used
herein, the term "PERMANENT DISABILITY" shall mean a physical or mental
disability that renders Executive unable to perform his normal duties for the
Company for a period of 120 consecutive days as determined by a licensed
physician. The Company and Executive or his legal representative shall use their
best efforts to agree on the physician to determine permanent disability. If
they cannot agree within ten (10) days after the first party makes a written
proposal stating the name of a physician, then the other party shall select a
physician within ten (10) days and within ten (10) days thereafter the two
physicians shall select a third physician. All such physicians must be board
certified in the medical area giving rise to the alleged disability. The
determination of the third physician shall be final and binding. If one party
fails to select a physician within said ten (10) day period, the physician named
by the other party shall make the determination of permanent disability. Upon
termination of Executive for permanent disability, the Company shall pay to
Executive any unpaid Salary or Bonus to the extent earned at the date of
termination for permanent disability, any amounts payable by the Company at the
date of termination for permanent disability under the Company's disability
policies, and any amounts payable by the Company pursuant to the Company's other
employee benefit plans in accordance with such plans.
3.4 TERMINATION FOR CAUSE. The Company shall have the right to
terminate the employment of Executive for "CAUSE" by delivering to him a written
notice specifying such Cause. Executive shall be entitled to at least ten (10)
days' prior written notice of the Company's intention to terminate his
employment for any Cause specifying the grounds for such termination. If the
Company exercises such right, its obligation under this Agreement to make any
further payments to Executive, other than any unpaid Salary, Bonus and any
amounts payable pursuant to the Company's employee benefit plans in accordance
with such plans due in, or allocable to, the period prior to said termination,
shall thereupon cease and terminate. For purposes of this Agreement, a
termination shall be for "CAUSE" if the Executive shall: (i) commit an act of
fraud, embezzlement or misappropriation involving the Company; (ii) be convicted
by a
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court of competent jurisdiction of, or enter a plea of guilty of no contest to,
any felony involving moral turpitude or dishonesty; (iii) commit an act, or fail
to commit an act, involving the Company which amounts to, or with the passage of
time would amount to, willful misconduct, wanton misconduct, gross negligence or
a breach of this Agreement and which results or will result in significant harm
to the Company; or (iv) willfully fail to perform the responsibilities and
duties specified herein for a period of ten (10) days following receipt of
written notice from the Company which specifically describes past instances of
willful failure of performance; provided that in the case of (iv) above, during
the ten (10) day period following receipt of such notice, Executive shall be
given the opportunity to take reasonable steps to cure any such claimed past
failure of performance.
3.5 COMPENSATION AND BENEFITS UPON TERMINATION WITHOUT CAUSE. In the
event the Company terminates the Executive's employment for any reason other
than the death or permanent disability of Executive, or Cause, or Executive
resigns for Good Reason, and Section 3.6 hereof is not applicable to such
termination or resignation, the Company shall pay to Executive: (i) in a lump
sum within thirty (30) days of the effective date of termination, any Salary due
through the date of termination; (ii) in a lump sum within thirty (30) days of
the effective date of termination, the balance of Executive's Salary, which he
would have been entitled to receive through the end of the Severance Period
(defined below), (iii) in a lump sum within thirty (30) days of the effective
date of termination, all of Executive's guaranteed Bonus and a pro rata portion
of Executive's Bonus which is not guaranteed (annualizing results of operations
for the period prior to the date of termination), which he would have been
entitled to receive through the end of the Severance Period, and (iv)
continuation of benefits upon the same terms and conditions then in effect on
the date of termination under all medical, dental and life insurance plans
through the end of the Severance Period, provided that Executive at his own
expense shall be entitled to continue appropriate benefits under any applicable
COBRA program thereafter. In addition to the foregoing, all unvested stock
options held by Executive shall continue to vest through the end of the
Severance Period and shall be exercisable for that specific period following the
end of the Severance Period as provided under the applicable stock option
agreements in the case of termination of employment. As used in this Section
3.5, the Severance Period shall mean twelve (12) months after the effective date
of termination.
3.6 COMPENSATION PAYABLE IN THE EVENT OF A CHANGE OF CONTROL. If, in
connection with a Change of Control transaction as defined below, either the
employment of Executive is terminated by the Company for any reason other than
the death or permanent disability of Executive or Cause within ninety (90) days
prior to or within twelve (12) months after a Change of Control transaction or
Executive resigns for Good Reason within such period, the Company shall pay to
Executive, within five (5) business days following the consummation of a Change
of Control transaction, an amount equal to 1.5 times Executive's Salary and
Bonus paid for the immediately preceding fiscal year of the Company plus any
amounts required to be paid pursuant to Section 3.7. Executive also shall
receive benefits under applicable employee benefit plans as provided in Section
3.5(iv). In addition, notwithstanding anything to the contrary contained herein
or in any stock option or similar agreement to which Executive is a party, upon
the occurrence of a Change of Control, regardless of whether Executive's
employment is terminated, all unvested stock options shall immediately vest and
become exercisable in full (or, if applicable, all repurchase obligations of the
Company shall immediately lapse) and such options shall remain exercisable for
the period specified in the applicable option agreement. For
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purposes of this Agreement, a "Change of Control" of the Company shall mean (i)
any "person" (as such term is used in Section 13(d) of the Securities Exchange
Act of 1934, as amended, the "EXCHANGE ACT") other than an Affiliated Purchaser
becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act)
after the date of this Agreement of securities of the Company representing at
least a majority of the combined voting power of the Company's outstanding
securities ordinarily having the right to vote at elections of directors; (ii)
the Company is merged or consolidated with any person other than an Affiliated
Purchaser and as a result of such merger or consolidation the beneficial owners
of securities of the Company before such merger or consolidation hold
immediately after such merger or consolidation less than a majority of the
combined voting power of the outstanding securities of the surviving or
resulting company ordinarily having the right to vote at elections of directors,
or (iii) the Company sells or transfers all or substantially all of its assets
to a person other than an Affiliated Purchaser. For purposes of the foregoing,
an "Affiliated Purchaser" means (i) any person that is a beneficial owner of
securities of the Company on or before the date of this Agreement and/or any
affiliate thereof (including, without limitation, the members of Frogpond, LLC),
and/or (ii) any employee benefit plan, sponsored or maintained by the Company or
any affiliate, or any group of persons which includes such a plan.
3.7 GROSS-UP OF PAYMENTS.
(a) The provisions of Section 3.7 shall be applicable only
prior to the Company's consummation of an underwritten initial public offering
(an "IPO"). If any of the payments or benefits received or to be received by
Executive in connection with a Change of Control (all such payments and
benefits, excluding the Gross-Up Payment provided for in this Section 3.7, being
hereinafter referred to as the "TOTAL PAYMENTS") will be subject to the excise
tax ("EXCISE Tax") imposed under Section 4999 of the Internal Revenue Code of
1986, as amended (the "CODE"), the Company shall pay to Executive an additional
amount (the "GROSS-UP PAYMENT") such that the net amount retained by Executive,
after deduction of any Excise Tax on the Total Payments and any federal, state
and local income and employment taxes incurred by the Executive in connection
with payment of the Gross-Up Payment, shall be equal to the Total Payments less
any federal, state and local income and employment taxes incurred on the Total
Payments. The provisions of this Section 3.7 shall terminate and no longer be
applicable upon a closing of an IPO.
(b) For purposes of determining whether any of the payments
will be subject to the Excise Tax and the amount of such Excise Tax, (A) all of
the Total Payments shall be treated as "parachute payments" (within the meaning
of Section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("TAX
Counsel") reasonably acceptable to Executive and selected by the accounting firm
which was, immediately prior to the change in control, the Company's independent
auditor (the "AUDITOR"), such payments or benefits (in whole or in part) do not
constitute parachute payments, including by reason of Section 280G(b)(4)(A) of
the Code, (B) all "excess parachute payments" within the meaning of Section
280G(b)(1) of the Code shall be treated as subject to the Excise Tax unless, in
the opinion of Tax Counsel, such excess parachute payments (in whole or in part)
represent reasonable compensation for services actually rendered (within the
meaning of Section 280G(b)(4)(B) of the Code) in excess of the Base Amount
allocable to such reasonable compensation, or are otherwise not subject to the
Excise Tax, and (C) the value of any non-cash benefits or any deferred payment
or benefit shall be
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determined by the Auditor in accordance with the principles of Sections
280G(d)(3) and (4) of the Code. For purposes of determining the amount of the
Gross-Up Payment, Executive shall be deemed to pay federal income tax at the
highest marginal rate of federal income taxation in the calendar year in which
the Gross-Up Payment is to be made and state and local income taxes at the
highest marginal rate of taxation in the state and locality of Executive's
residence or Executive's place of business, whichever is higher, on the date of
termination of employment (or if there is not yet a termination date, then the
date on which the Gross-Up Payment is calculated for purposes of this Section
3.7), net of the maximum reduction in federal income taxes which could be
obtained from deduction of such state and local taxes. If the Company has
complied with the provisions of Section 280G(5)(A)(ii), then none of the
payments will be subject to the Excise Tax, and no Gross-Up Payment will be
made.
(c) In the event that the Excise Tax is finally determined to
be less than the amount taken into account hereunder in calculating the Gross-Up
Payment, Executive shall repay to the Company, within five (5) business days
following the time that the amount of such reduction in the Excise Tax is
finally determined, the portion of the Gross-Up Payment attributable to such
reduction (including that portion of the Gross-Up Payment attributable to the
Excise Tax and federal, state and local income and employment taxes imposed on
the Gross-Up Payment being repaid by Executive), to the extent that such
repayment results in a reduction in the Excise Tax and a dollar-for-dollar
reduction in Executive's taxable income and wages of purposes of federal, state
and local income and employment taxes, plus interest on the amount of such
repayment at 120% of the rate provided in section 1274(b)(2)(B) of the Code.
Notwithstanding the foregoing in the event any portion of the amount to be
repaid to the Company has been paid to any tax authority, repayment thereof
shall not be required until actual refund or credit of such portion has been
made to Executive, and interest payable to the Company shall not exceed the
interest received or credited to Executive by such tax authority. In the event
that the Excise Tax is determined to exceed the amount taken into account
hereunder in calculating the Gross-Up Payment (including by reason of any
payment the existence or amount of which cannot be determined at the time of the
Gross-Up Payment), the Company shall make an additional Gross-Up Payment in
respect of such excess (including any interest, penalties or additions payable
by Executive with respect to such excess and the Gross-Up Payment attributable
to the Excise Tax and federal, state, and local income and employment taxes
imposed on the Gross-Up Payment being made to Executive) within five (5)
business days following the time that the amount of such excess if finally
determined. Executive and the Company shall each reasonably cooperate with each
other in connection with any administrative or judicial proceedings concerning
the existence or amount of liability for Excise Tax with respect to the Total
Payments.
(d) The payments provided in this Section 3.7 hereof shall be
made not later than the thirtieth (30th) day following the date of termination
of employment (or if there is no such termination date, then the date on which
the Gross-Up Payment is calculated for purposes of this Section 3.7).
3.8 DEFINITION OF GOOD REASON. For purposes of Sections 3.5 and 3.6,
Executive's termination of employment with the Company shall be deemed for "Good
Reason" if any of the following events occur without Executive's express written
consent and Executive resigns within six months after such event occurring but
only if Executive provides the Company with written
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notice of his belief that any one of the following specific events has occurred
and during the thirty (30) day period following receipt of such notice, the
Company fails to cure any such event:
(a) The assignment to Executive by the Company of duties
inconsistent with, or a substantial alteration in the nature or status of,
Executive's responsibilities as provided in Section 1.1, other than the
assignment of more senior duties, or the failure to elect or re-elect Executive
as a director of the Company or the removal of him from any such positions;
(b) A reduction by the Company in Executive's cash
compensation pursuant to Section 2.1 or as such compensation may have been
increased during the Employment Term;
(c) Any failure by the Company to continue in effect without
substantial adverse change any compensation, incentive, welfare or benefit plan
or arrangement, in which Executive is participating at the time of a Change of
Control (or any other plans providing Executive with substantially similar
benefits) (hereinafter referred to as "BENEFIT PLANS"), or the taking of any
action by the Company which would adversely affect, either as to the past or
prospectively, Executive's participation in or materially reduce or deprive
Executive of his benefits that were provided under any such Benefit Plan at the
time of a Change of Control; unless an equitable substitute arrangement
(embodied in an ongoing substitute or alternative Benefit Plan) has been made
for the benefit of Executive with respect to the Benefit Plan in question;
(d) Relocation to any place more than 25 miles from the office
regularly occupied by Executive, except for required travel by Executive on the
Company's business to an extent substantially consistent with past practice;
(e) Any material breach by the Company of any provision of
this Agreement or the failure by the Company or by any successor or assign of
the Company (whether by operation of law or otherwise, including any surviving
company in a merger or similar transaction involving the Company), within ten
(10) business days after written request to the Company or any successor or
assign of the Company by Executive following a Change of Control to deliver to
Executive an agreement expressly reaffirming its obligations under or agreeing
to assume and comply with the obligations of the Company under this Agreement.
SECTION 4. BUSINESS EXPENSES.
The Company shall pay for or reimburse Executive for all reasonable
business expenses incurred by Executive in the performance of his duties
hereunder, upon submission to the Company in accordance with Company policy of a
written accounting of such expenses, which accounting shall include an itemized
list of all expenses incurred, the business purposes for which such expenses
were incurred, and such receipts as Executive reasonably has been able to
obtain.
SECTION 5. COVENANTS OF EXECUTIVE.
5.1 ACKNOWLEDGMENTS. Executive acknowledges the following:
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5.1.1 ACCESS TO CONFIDENTIAL INFORMATION. Executive's services
previously rendered to the Company and to be rendered hereunder have placed him
and shall continue to place him in a position of confidence and trust which
shall allow him access to "Confidential Information" (as hereinafter defined).
5.1.2 FAIR AND REASONABLE COVENANTS. The type and period of
restrictions imposed by the covenants in this Section 5 are fair and reasonable
and such restrictions will not prevent Executive from earning a livelihood.
5.2 COVENANT AS TO NONDISCLOSURE OR USE OF CONFIDENTIAL INFORMATION.
Executive agrees as follows:
5.2.1 Executive shall not at any time during or after
Executive's employment, disclose to anyone outside of the Company or use for any
purpose that is not expressly authorized by the Company Confidential
Information. Executive shall not deliver, reproduce or in any way allow any
Confidential Information to be delivered to or used by any third parties without
specific written consent of a duly authorized representative of the Company.
5.2.2 The Company's agreements with other persons or with the
U.S. government, or its agencies, may include agreements that impose obligations
or restrictions regarding inventions that occur in connection with work relating
to such an agreement, or regarding the confidential nature of work pursuant to
such an agreement. Executive agrees to be bound by all such lawful obligations
and restrictions, and to do whatever is necessary to satisfy the obligations of
the Company.
5.2.3 If this Agreement is terminated for any reason,
Executive will promptly surrender and deliver to the Company all Confidential
Information. Executive will not retain any description or other document that
contains or relates to any Confidential Information that Executive may produce,
obtain or otherwise learn about during employment with the Company.
5.3 ASSIGNMENT OF INVENTIONS. Executive assigns and transfers to the
Company Executive's entire right, title and interest in and to all inventions;
including, but not limited to, ideas, improvements, designs and discoveries
("INVENTIONS"), whether or not patentable and whether or not reduced to
practice, or conceived by Executive (whether made solely by Executive or jointly
with others) during Executive's employment with the Company which relate in any
manner to the actual or demonstrably anticipated business, work or research and
development of the Company or its subsidiaries, or result from or are suggested
by any task assigned to Executive or any work performance by Executive for or on
behalf of the Company or its subsidiaries. All Inventions are the sole property
of the Company; provided, however, that this Agreement does not require
assignment of an Invention which qualifies fully for protection under Section
2870 of the California Labor Code (Section 2870), which provides as follows:
5.3.1 Any provision in an employment agreement which provides
that an employee shall assign or offer to assign any of his or her rights in an
invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time and without using the
employer's equipment, suppliers, facilities or trade secrets information except
for those Inventions that either:
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(a) relate at the time of conception or reduction to
practice of the invention to the employer's business, or actual or demonstrably
anticipated research or development of the employer; or
(b) result from any work performed by the employee
for the employer
5.3.2 To the extent a provision in an employment agreement
purports to require an employee to assign an invention otherwise excluded from
being required to be assigned under Section 5.3.l, the provision is against the
public policy of this state and is unenforceable.
5.4 DISCLOSURE OF INVENTIONS; PATENTS, COPYRIGHTS AND MASK WORK RIGHTS.
Executive agrees that in connection with any Invention:
5.4.1 To keep and maintain adequate and current written
records of all Inventions made by Executive (in the form of notes, sketches,
drawings and other forms specified by the Company) while employed by the
Company. These records shall be available to the Company and shall be and remain
the sole property of the Company at all times. Executive will disclose such
Inventions promptly in writing to Executive's immediate supervisor at the
Company, with a copy to the Company Secretary, whether or not Executive believes
the Invention is protected by Section 2870. Such disclosure shall be received in
confidence by the Company. Within thirty (30) days after receipt of such
disclosure, the Company shall respond to Executive specifying that the Company
either (i) claims that the Invention is an assignable invention (as defined
below in Section 5.4.2), (ii) relinquishes any claim to the Invention or (iii)
requires further or more detailed disclosure to assess its rights to the
Invention under this Agreement. In the case of clause (iii) above, the Company
shall permit Executive time during normal business hours reasonably necessary to
prepare a more detailed disclosure; and the Company shall provide an additional
response as described in this Section 5.4.1 within thirty (30) days after
receipt by the Company of such further or more detailed disclosure.
5.4.2 Upon request, to promptly execute a written assignment
of title to the Company for any Invention required to be assigned by Section 5.3
("ASSIGNABLE INVENTION") and Executive will preserve any such assignable
invention as Confidential Information.
5.4.3 Upon request, to assist the Company or its nominee (at
its expense) during and at any time subsequent to Executive's employment in
every reasonable way to obtain for the Company's or its nominee's benefits.,
patents, copyrights, mask work rights and other statutory rights ("STATUTORY
RIGHTS") for such assignable inventions in any and all countries, which
inventions shall be and remain the sole and exclusive property of the Company or
its nominee whether or not patented, copyrighted or the subject of a mask work
right. Executive shall execute such papers and perform such lawful acts as the
Company deems necessary to exercise all rights, title and interest in such
Statutory Rights.
5.4.4 To execute and deliver to the Company or its nominee
upon request and at its expense all documents, including applications for and
assignments of Statutory Rights to be issued therefore, as the Company
determines are necessary or desirable to apply for and obtain Statutory Rights
on such assignable inventions in any and all countries and/or to protect the
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interest of the Company or its nominee in Statutory Rights and to vest title
thereto in the Company or its nominee.
5.5 RETURN OF BUSINESS RECORDS AND EQUIPMENT. Upon termination of
Executive's employment hereunder, Executive shall promptly return to the
Company: (i) all documents, records, procedures, books, notebooks, and any other
documentation in any form whatsoever, including but not limited to written,
audio, video or electronic, containing any Information pertaining to the Company
which includes Confidential Information, including any and all copies of such
documentation then in Executive's possession or control regardless of whether
such documentation was prepared or compiled by Executive, Company, other
employees of the Company, representatives, agents, or independent contractors,
and (ii) all equipment or tangible personal property entrusted to Executive by
the Company. Executive acknowledges that all such documentation, copies of such
documentation, equipment, and tangible personal property are and shall at all
times remain the sole and exclusive property of the Company.
5.6 ADDITIONAL COVENANTS PROTECTING THE INTERESTS OF THE COMPANY.
Executive agrees as follows:
5.6.1 That at all times during his employment hereunder, he
shall comply with the Company's employee manual and other policies and
procedures reasonably established by the Company from time to time concerning
matters such as management, supervision, recruiting, diversity, and sexual
harassment.
5.6.2 That during his employment hereunder, he shall not
directly or indirectly, individually or together or through any affiliate or
other person, firm, corporation or entity engage in any other business activity
which would materially interfere with the performance of his duties hereunder
including, but not limited to, engaging in any Competitive Business with that
conducted by Company. For purposes of this Section 5.6.2. "COMPETITIVE BUSINESS"
shall mean the toy/game and children's educational and entertainment products
business as conducted or contemplated to be conducted by the Company during the
Employment Term.
5.6.3 That for a period of one year following a termination of
employment other than following a Change of Control, he shall not, directly or
indirectly, individually, or together through any other person, firm,
corporation or entity, (i) approach, counsel, solicit or attempt to induce any
member of senior management of the Company (defined as an officer with a title
of vice president or higher) who is then in the employ of the Company, to leave
their employ, or employ or attempt to employ any such person, or (ii) aid or
counsel any other person, firm, corporation or entity to do any of the above.
5.6.4 That for a period of one year following a termination of
employment other than following a Change of Control, he shall not, directly or
indirectly, individually, or together through any other person, firm,
corporation or entity, (i) enter into a business relationship with any material
customer of the Company relating to the children's educational and entertainment
products business in which the Company is engaged at the time of termination of
employment or (ii) discourage any person or entity which is a customer of the
Company from continuing its business relationship with the Company.
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5.6.5 That Executive agrees that, for a period of three years
following his termination of employment under this Agreement, he shall, upon
Company's reasonable request and in good faith and with his best efforts,
subject to his reasonable availability, cooperate and assist Company in any
dispute, controversy, or litigation in which Company may be involved and with
respect to which Executive obtained knowledge while employed by the Company or
any of its affiliates, successors, or assigns, including, but not limited to,
his participation in any court or arbitration proceedings, giving of testimony,
signing of affidavits, or such other personal cooperation as counsel for the
Company shall request. Any such activities shall be scheduled, to the extent
reasonably possible, to accommodate Executive's business and personal
obligations at the time. The Company shall pay Executive's reasonable travel and
incidental out-of-pocket expenses incurred in connection with any such
cooperation, as well as the reasonable costs of an attorney Executive engages to
advise him in connection with the foregoing.
5.7 CERTAIN DEFINITION. The following definitions are applicable to
this Section 5:
5.7.1 CONFIDENTIAL INFORMATION. "CONFIDENTIAL INFORMATION"
shall mean information and compilation of information relevant to the business
of the Company provided to Executive during his employment with the Company
and/or an affiliate of the Company or to which Executive had access or which he
compiled while an employee of the Company mid/or an affiliate of the Company,
including, but not limited to, information regarding any trade secrets,
proprietary knowledge, operating procedures, finances, financial condition,
organization, employees, customers, clients, agents, other personnel, business
activities, budgets, strategic or financial plans, objectives, marketing plans,
prices and price lists, operating and training materials, data bases and
analyses, designs, formulae, test data and all other documents relating thereto
or strategies of the Company; provided, however, the term Confidential
Information as used herein shall not include information: (i) which has become
public, published or is otherwise in the public domain through no fault of
Executive prior to any disclosure thereof by Executive; (ii) which was known to
Executive prior to his employment or affiliation with the Company; (iii) which
is required to be disclosed by statute, regulation or court order, or (iv) which
is known generally to the toy/game and children's educational and entertainment
products industry.
5.7.2 THE COMPANY. As used throughout this Section 5, the term
"Company" shall be deemed to include and refer to any company or person
affiliated with the Company.
5.8 REMEDIES. In view of the position of confidence which Executive
will enjoy with the Company and the anticipated relationship with the clients,
customers, and employees of the Company and its affiliates pursuant to his
employment hereunder, and recognizing both the access to confidential financial
and other information which Executive will have pursuant to his employment,
Executive expressly acknowledges that the restrictive covenants set forth in
this Section 5 are reasonable and necessary in order to protect and maintain the
proprietary interests and other legitimate business interests of the Company and
its affiliates. Executive further acknowledges that (1) it would be difficult to
calculate damages to the Company and its affiliates from any breach of his
obligations under this Section 5, (ii) that injury to the Company and its
affiliates from any such breach would be irreparable and impossible to measure,
and (iii) that the remedy at law for any breach or threatened breach of this
Section 5 would therefore be an inadequate remedy and, accordingly, the Company
shall, in addition to all other available remedies (including without limitation
seeking such damages as it can show it and its affiliates
11.
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has sustained by reason of such breach and/or the exercise of all other rights
it has under this Agreement), be entitled to injunctive and other similar
equitable remedies.
SECTION 6. REPRESENTATIONS BY EXECUTIVE.
Executive represents and warrants that he is free to enter into and
perform each of the terms and conditions of this Agreement; and that his
execution and/or performance of all his obligations under this Agreement does
not and will not violate or breach any other agreement between Executive and any
other person or entity. Executive acknowledges that but for this representation
and warranty, the Company would not agree to enter into this Agreement.
SECTION 7. ASSIGNABILITY.
This Agreement is binding upon and inures to the benefit of the parties
and their respective heirs, executors, administrators, personal representatives,
successors and assigns. The Company may assign its rights or delegate its duties
under this Agreement at any time and from time to time, but such assignment
shall not relieve the Company of its obligations hereunder. However, the parties
acknowledge that the availability of Executive to perform services and the
covenants provided by Executive hereunder have been a material consideration for
the Company to enter into this Agreement. Accordingly, Executive may not assign
any of his rights or delegate any of his duties under this Agreement, either
voluntarily or by operation of law, without the prior written consent of the
Company, which may be given or withheld by the Company in its sole and absolute
discretion.
SECTION 8. NOTICES.
All notices, requests, demands or other communications hereunder shall
be deemed to have been duly given when delivered, addressed as follows (or at
such other address as the addressed party may have substituted by notice
pursuant to this Section 8):
<TABLE>
<S> <C>
If to Executive: Thomas J. Kalinske
-----------------------------------
-----------------------------------
If to the Company: Leapfrog Enterprises, Inc.
6401 Hollis Street, Suite 150
Emeryville, CA 94608
Attn:
------------------------------
</TABLE>
SECTION 9. MISCELLANEOUS.
9.1 ENTIRE AGREEMENT. This Agreement and the exhibits hereto and the
agreements referenced herein embody the entire representations, warranties,
covenants and agreements in relation to the subject matter hereof and supersede
any previous agreement between the Company and Executive. No other
representations, warranties, covenants, understandings or agreements in relation
hereto exist between the parties except as otherwise expressly provided herein.
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9.2 AMENDMENT. This Agreement may not be amended except by an
instrument in writing duly executed by the parties hereto.
9.3 APPLICABLE LAW; CHOICE OF FORUM. This Agreement has been made and
executed under, and will be construed and interpreted in accordance with, the
laws of the State of California.
9.4 ATTORNEYS' FEES. The Company agrees to reimburse Executive for
legal fees incurred in connection with the preparation and negotiation of this
Agreement up to a maximum of $12,500. In any action or proceeding to enforce or
interpret this Agreement, or arising out of this Agreement, the prevailing party
or parties are entitled to recover a reasonable allowance for fees and
disbursements of counsel and costs of arbitration or suit, to be determined by
the court in which the action or proceeding is brought.
9.5 PROVISIONS SEVERABLE. Every provision of this Agreement is intended
to be severable from every other provision of this Agreement. If any provision
of this Agreement is held to be void or unenforceable, in whole or in part, the
remaining provisions will remain in full force and effect, unless the remaining
provisions are so eviscerated by such holding that they do not reflect the
intent of the parties in entering into this Agreement. If any provision of this
Agreement is held to be unreasonable or excessive in scope or duration, that
provision will be enforced to the maximum extent permitted by law.
9.6 NON-WAIVER OF RIGHTS AND BREACHES. Any waiver by a party of any
breach of any provision of this Agreement will not be deemed to be a waiver of
any subsequent breach of that provision or of any breach of any other provision
of this Agreement. No failure or delay in exercising any right, power, or
privilege granted to a party under any provision of this Agreement will be
deemed a waiver of that or any other right, power or privilege. No single or
partial exercise of any right, power or privilege granted to a party under any
provision of this Agreement will preclude any other or further exercise of that
or any other right, power or privilege.
9.7 INTERPRETATION OF AGREEMENT. Each of the parties has been
represented by counsel in the negotiation and preparation of this Agreement. The
parties agree that this Agreement is to be construed as jointly drafted.
Accordingly, this Agreement will be construed according to the fair meaning of
its language, and the rule of construction that ambiguities are to be resolved
against the drafting party will not be employed in the interpretation of this
Agreement.
9.8 GENDER AND NUMBER. Concerning the words used in this Agreement, the
singular form shall include the plural form, the masculine gender shall include
the feminine or neuter gender, and vice versa, as the context requires, and the
word `person' shall include any natural person, partnership, corporation,
association, trust, estate or other legal entity.
9.9 HEADINGS. The headings of the Sections and Paragraphs of this
Agreement are inserted for ease of reference only, and will have no effect in
the construction or interpretation of this Agreement.
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9.10 COUNTERPARTS. This Agreement and any amendment or supplement to
this Agreement may be executed in two or more counterparts, each of which will
constitute an original but all of which will together constitute a single
instrument. Transmission by facsimile of an executed counterpart signature page
hereof by a party hereto shall constitute due execution and delivery of this
Agreement by such party.
9.11 NO MITIGATION; PAYMENT OBLIGATIONS ABSOLUTE. Executive shall not
be required to mitigate damages or the amount of any payment provided for under
this Agreement by seeking other employment or otherwise, nor shall the amount of
any payment provided for under this Agreement be reduced by any compensation
earned by Executive as a result of employment by another employer. The Company's
obligations to pay Executive the amounts provided hereunder shall be absolute
and unconditional and shall not be affected by any circumstances, including,
without limitation, any set-off, counterclaim, recoupment, defense or other
right the Company may have against Executive, any of which may be asserted
against Executive in a separate proceeding.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first above written.
EXECUTIVE:
/s/ Thomas J. Kalinske
-------------------------------------
THOMAS J. KALINSKE
COMPANY:
LEAPFROG ENTERPRISES, INC.
By: /s/ James P. Curley
----------------------------------
Name: James P. Curley
--------------------------------
Title: CFO
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14.