Employment Agreement, 10/23/2003, between Timothy Bender and LeapFrog.



 Exhibit 10.15 
  
 EMPLOYMENT AGREEMENT 
  

THIS EMPLOYMENT AGREEMENT, effective as of November 1, 2003 (“Agreement”), is made between LeapFrog Enterprises, Inc., a Delaware
corporation (the “Company”), and Timothy Bender (“Executive”) and amends, restates and supersedes the Employment Agreement dated November 17, 1997. 
  
 RECITALS: 
  
 WHEREAS, Executive has been a key executive of the Company, and the Company deems the continuation of 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; 
  
 WHEREAS, the Compensation Committee of the Company’s Board of Directors approved the general terms of this Agreement on
July 22, 2003, and, subsequent to such approval, the Company and Executive have agreed to changes as set forth this Agreement; and 
  
 WHEREAS, the parties hereto desire to enter into this Agreement, which will supersede any and all prior and contemporaneous agreements and understandings
pursuant to Section 9.1 below, providing for the continued 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 President of the Global Consumer Group, reporting to the President and Chief Executive Officer of LeapFrog Enterprises, Inc., 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 other 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 his full 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 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. 
  
 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 full time employment referred to in Section 1 hereof of $260,000 per year (“Salary”), or such higher amount as
approved by the Company’s Board of Directors or any committee thereof. Executive shall be eligible to receive an annual bonus (“Bonus”), of $90,000, or such higher amount as approved by the Company’s Board of Directors or any
committee thereof, based upon performance standards as established in writing by the President and Chief Executive Officer of LeapFrog and the Board of Directors, with consultation with Executive, provided Executive is employed as of December 31 of
the year of the Bonus. 
  
 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 $650 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 
  

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 providing an aggregate benefit in the amount of $1,000,000, over and above the basic life insurance benefit provided to
all employees (this insurance will be purchased after the completion of a medical examination on behalf of the applicable insurance company). 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. After a policy is in effect, 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 $1,000,000 and the benefit payable to Executive or his beneficiaries under such policy or policies 
  
 2.4 Stock Options. Executive’s prior stock option agreements
shall remain in full force and effect. 
  
 SECTION 3. EMPLOYMENT TERM AND
TERMINATION. 
  
 3.1 Term. Executive’s term of
employment under this Amended and Restated 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 
  

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 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 court of competent jurisdiction of, or enter a plea of guilty or 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 
  

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 Control transaction, an amount equal to 1.5 times Executive’s Salary and Bonus paid for the immediately preceding
fiscal year of the Company. 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 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 [RESERVED] 
  
 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 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 including any reduction of such cash compensation as such may
be increased by the Company; 
  

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 (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: 
  
 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. 
  

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 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: 
  
 (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. 1, the provision is against the public policy of this state and is unenforceable. 
  

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 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 arid/or to protect the 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 
  

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 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, hire any member of senior management of the Company (defined as
an officer with a title of vice president or higher) or solicit for hire any employee of the Company; provided, however, that general solicitations not targeted to Company employees shall not be deemed to violate this covenant. 
  
 5.6.4 That during his employment hereunder, he will not, directly or
indirectly, solicit or take away or attempt to solicit or take away, the business of any of the material customers of or suppliers to the Company. 
  
 5.6.5 That Executive agrees that, for a period of one year 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: 
  
 5.7.2 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

  

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 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. 
  
 5.7.3 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 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. 
  

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 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 is the addressed party may have substituted by notice pursuant to this Section 8): 
  

			
	 If to Executive:
	 	 Tim Bender

	 	 	 148 Canyon Lakes Way

	 	 	 San Ramon, CA 94583

		
	 If to the Company:
	 	 LeapFrog Enterprises, Inc.

	 	 	 6401 Hollis Street, Suite 100

	 	 	 Emeryville, CA 94608

	 	 	 Attn: Vice President, Human Resources


  
 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 (including any prior draft or version of this
Agreement), whether written or oral, between the Company and Executive. No other representations, warranties, covenants, understandings or agreements in relation hereto exist between the panics except as otherwise expressly provided herein.

  
 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 
  

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 full force and effect, unless the remaining provisions are so eviscerated by such holding that they do not reflect the
intent of the panics 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 chat 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 am inserted for ease of reference only, and will have no effect in the construction or interpretation of this Agreement. 

 
 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. 
  

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 IN WITNESS WHEREOF, the parties hereto have caused this Employment Agreement to be dully executed and
delivered as of the date first above written. 
  

	
	 EXECUTIVE:

	
	 /s/ Timothy Bender


	 TIMOTHY BENDER

	
	 COMPANY:

	
	 LEAPFROG ENTERPRISES, INC.

	
	 /s/ Michael Wood


	 MICHAEL WOOD

	 PRESIDENT & CEO



  

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