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Exhibit 10.4
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") made effective as of
this 22nd day of May 1997 between THE LEARNING COMPANY, INC., a Delaware
corporation (the "Corporation"), and R. Xxxxx Xxxxxx of Chestnut Hill,
Massachusetts (hereinafter, the "Executive").
WHEREAS, the Corporation desires to employ the Executive in
the position of Executive Vice President of Administration and Chief Financial
Officer; and the Executive so wishes to be so employed by the Corporation.
NOW, THEREFORE, in consideration of the foregoing and the
covenants and agreements hereinafter set forth and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
ARTICLE I
EMPLOYMENT
1.1 EMPLOYMENT AND POSITION. Effective as of the date hereof
and for the Term (as defined in section 3.1 herein), the Corporation hereby
employs the Executive in the capacity of Executive Vice President of
Administration and Chief Financial Officer of the Corporation, and the Executive
hereby accepts such employment, all on and pursuant to the terms and conditions
set forth herein.
1.2 DUTIES AND RESPONSIBILITIES. The Executive shall have all
such powers and duties as customarily associated with the office of Executive
Vice President of Administration and Chief Financial Officer and as may from
time to time be prescribed by the Board of Directors of the Corporation (the
"Board") or its Chairman.
1.3 FULL TIME AND ATTENTION. The Executive shall well and
faithful serve the Corporation and its subsidiaries and shall devote his full
working time and attention to the business and affairs of the Corporation and
its subsidiaries and the performance of his duties and responsibilities
hereunder; provided however, notwithstanding the foregoing, the Executive may
participate in other business ventures and activities from time to time which do
not interfere with his duties and responsibilities hereunder.
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1.4 PROHIBITED INTERESTS. Neither the Executive nor
any member of his immediate family shall purchase or hold an interest in any
company doing business with the Corporation (other than as a customer of the
Corporation) or competing with the Corporation other than a two percent (2%) or
lessor interest in publicly traded stock or such other interests to which the
Corporation has given its prior written consent.
ARTICLE II
REMUNERATION AND BENEFITS
2.1 (A) ANNUAL BASE SALARY. Effective as of the date hereof
and for each calendar year during the Term, the Corporation shall pay to the
Executive an annual base salary (the "Annual Base Salary") of not less than
$250,000. The Annual Base Salary shall be payable twice monthly on the 15th and
last days of each calendar month in each calendar year in equal installments or
in such other regular installments as the Corporation may pay its employees from
time to time. The Annual Base Salary may be increased from time to time and
shall not be decreased at any time during the Term.
2.2 BENEFITS. The Corporation shall provide to the Executive
benefits consistent with benefits provided under the existing benefit plans,
practices, programs and policies of the Corporation in effect from time to time
during the Term. In addition, the Corporation shall pay to the Executive a
monthly automobile allowance of $750 on an after tax basis (the "Automobile
Allowance").
2.3 VACATION. The Executive shall be entitled to paid vacation
in accordance with the Corporation's vacation policy, as the same may be in
effect from time to time; provided however, that the Executive shall be entitled
to at least four weeks paid vacation per year.
2.4 BONUS. In addition to the Annual Base Salary, the
Executive shall be eligible to receive a targeted annual cash bonus of $150,000
(the "Bonus"), payable in quarterly installments, based on performance
objectives approved by the Corporation's Compensation Committee (the
"Compensation Committee") or the Chairman of the Board for each Employment Year.
To the extent that the Bonus is based on annual performance objectives not
readily quantified at the end of each quarter, in the discretion of the
Compensation Committee or the Chairman of the Board, the Corporation may pay the
Bonus to the Executive in estimated quarterly installments. If, at the end of
the Employment Year, the estimated payments exceed the amount of Bonus actually
earned, the Executive shall reimburse such excess to the Corporation, unless the
Executive's employment with the Corporation is terminated in which case the
excess shall not be required to be repaid. The Bonus may be
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increased from time to time and shall not be decreased at any time during the
Term.
2.5 EXPENSES. During the Term the Corporation will reimburse
the Executive for all normal and customary expenses incurred by the Executive in
carrying our his duties under this Agreement, provided that the Executive
complies with the policies, practices and procedures of the Corporation for
submission of expense reports, receipts or other similar documentation of such
expenses.
ARTICLE III
TERM AND TERMINATION
3.1 TERM. Unless otherwise terminated in accordance with the
provisions hereof, this Agreement shall have a term of three years form the
effective date hereof, as the same as first set forth above, (the "Term"). On
the expiration of the Term and on each anniversary of the expiry of the Term
this Agreement shall automatically renew for an additional one year period (each
of which renewal periods shall form part of the Term) unless the Corporation
notifies the Executive in writing four months in advance of the expiration of
the Term, or any subsequent anniversary thereof, that the Corporation does not
wish to further extend this Agreement.
3.2 TERMINATION FOR JUST CAUSE.
(a) The Corporation may terminate the employment of
the Executive hereunder at any time for Just Cause, such termination to be
communicated by the Corporation to the Executive by written notice. For the
purposes hereof, "Just Cause" means a determination by the Board of Directors,
in the exercise of its reasonable judgment and after permitting the Executive a
reasonable opportunity to be heard, that any of the following has occurred:
(i) the willful and continued failure by
the Executive to perform his duties and responsibilities with the
Corporation under this Agreement (other than any such failure resulting
from his incapacity due to physical or mental illness or disability),
which is not cured within 30 days of receiving written notice from the
Corporation specifying in reasonable detail the duties and
responsibilities which the Corporation believes are not being
adequately performed;
(ii) the willful engaging by the
Executive in any act which is
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demonstratively and materially injurious to the Corporation unless such
act is cured (if susceptible of being cured) within 30 days of
receiving written notice of such act;
(iii) the conviction of the Executive of
a criminal offense involving fraud, dishonesty or other moral
turpitude;
(iv) any material breach by the Executive
of the terms of this agreement or any other written agreement between
the Executive and the Corporation relating to proprietary information,
confidentiality, non-competition or non-solicitation which is not cured
within 30 days of receiving written notice from the Corporation
specifying in reasonable detail such breach; or
(iv) the engaging by the Executive in any
intentional act of dishonesty resulting or intended to result, directly
or indirectly, in personal gain to the Executive at the Corporation's
expense, if not cured (if curable) within 30 days after receipt by the
Executive of written notice from the Corporation; and
(b) Upon the termination of the Executive's
employment for Just Cause, the Executive shall not be entitled to any severance,
termination or other compensation payment other than unpaid Annual Base Salary
earned by the Executive up to the date of termination and any unpaid Bonus
earned with respect to any period prior to the termination, together with any
amount to which the Executive may be entitled under the provisions of applicable
employment legislation in force at the date of termination of the Executive's
employment (less any deductions required by law).
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3.3 TERMINATION WITHOUT JUST CAUSE OR FOR GOOD REASON.
(a) The Corporation may terminate the employment of
the Executive hereunder at any time without Just Cause, such termination to be
communicated by the Corporation to the Executive by at least 30 days prior
written notice. In addition, the Executive may terminate his employment for Good
Reason, such termination to be communicated by the Executive to the Corporation
by at least 30 days prior written notice. For purposes of this Agreement, "Good
Reason" shall mean (i) a substantial diminution in or adverse alteration of the
Executive's duties, responsibilities or authority with the Corporation, (ii) any
purported termination of the Executive's employment which is not effected in
accordance with this Agreement (which purported termination shall not be
effective), (iii) the failure of the Corporation to obtain a satisfactory
agreement from any successor to assume and agree to perform this Agreement as
contemplated in section 4.10 herein and agree that the Executive retains the
same role in the merged company as he had prior to the merger under this
agreement. (iv) any material breach of this Agreement by the Corporation which
is not cured within 30 days of receiving written notice from the Executive
specifying in reasonable detail such breach, or (v) the receipt by the Executive
of written notice under section 3.1 herein that the Corporation does not wish to
further extend this Agreement. The Executive's right to terminate his employment
for Good Reason shall not be affected by his incapacity due to physical or
mental illness or disability. The Executive's continued employment shall not
constitute consent to, or a waiver of rights with respect to, any circumstance
constituting Good Reason hereunder. The Corporation agrees to hold in a
restricted trust the amounts payable under Section 3.2(b) on termination of the
Executive's employment in the same manner to which Xx. Xxxxx and Xx. X'Xxxxx'x
termination payments are held.
(b) Upon the termination of the Executive's
employment without Just Cause or for Good Reason, the Corporation shall have the
following obligations:
(i) if not theretofore paid, the
Corporation shall pay to or to the order of the Executive within 10
days after the date of termination of the Executive's employment
hereunder any unpaid Annual Base Salary and Bonus earned by or payable
to the Executive up to the to the date of termination (less any
deductions required by law);
(ii) the Corporation shall pay to or to
the order of the Executive, in equal bi-monthly installments in
accordance with its normal payroll practices over a three year period
(the "Continuation Period"), as compensation for the Executive's loss
of employment, an amount equal to three times the Annual Base
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Salary plus three times the amount of all bonuses paid to and accrued
by the Executive with respect to the twelve month period immediately
preceding such termination (less any deductions required by law);
(iii) during the Continuation Period all
of the Executive's then outstanding options for the purchase of capital
stock of the Corporation shall continue to vest and remain exerciseable
and shall continue to be exerciseable in accordance with the terms of
the applicable stock option agreements as if the employment of the
Executive were not terminated. Any restricted vesting stock options
(currently 70,000 options) held by the Executive at the time of
termination shall become unrestricted stock options and shall be
attributed a three year quarterly vesting schedule as if the options
had not been restricted exercises from the date of original grant of
such options. Such vesting that would have occurred from the date of
grant to the date of termination shall be re-instated. The last day of
the Continuation Period shall be deemed to be the date of termination
of the Executive's employment with respect to any such options, and the
Executive shall be entitled to exercise such options after the
Continuation Period for the applicable period after termination of
employment as may be specified in the applicable stock option
agreement;
(iv) the Corporation shall provide the
Executive with life, disability, accident and health insurance and
continuation of the Automobile Allowance benefits identical or
substantially similar to those which the Executive is receiving
immediately prior to the written notice of termination referenced in
section 3.3(a) herein (without giving effect to any reduction in such
benefits which constitutes Good Reason) during the Continuation Period.
(c) The terms and provisions of section 3.3(b)(iii)
herein shall be deemed to form a part of any and all agreements between the
Corporation and the Executive embodying the terms and provisions of options for
the purchase of capital stock of the Corporation granted to the Executive.
(d) (i) Subject to Section 3.3 (d)iv below in the
event that any of the payments provided for herein, together with any
other payments or benefits received or to be received by the Executive
in connection with the termination of employment of the Executive or
otherwise (the "Severance Payments"), will be subject to the tax (the
"Excise Tax") imposed by Section 4999 of the Internal Revenue Code of
1986, as amended (the "Code"), the Corporation shall immediately pay
to or to the order of the Executive an additional amount (the "Gross-
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up Payment") such that the net amount retained by the Executive, after
deduction of any Excise Tax on the Severance Payments and any federal,
state and local income tax and Excise Tax on the payment provided for
by this section 3.3(d), shall be equal to the Severance Payments,
placing the Executive in the same after-tax financial position in which
he would have been if he had not incurred any tax liability under
Section 4999 of the Code. For purposes of determining the amount of the
Gross-up Payment, the Executive shall be deemed to pay federal income
taxes 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 the Executive's residence on the date of
termination, net of the maximum reduction in federal income taxes which
could be obtained from deduction of such state and local taxes.
(ii) In the event that the Excise Tax is
subsequently deter mined to be less than the amount taken into account
hereunder at the time of termination of the Executive's employment, the
Executive shall repay to the Corporation at the time that the amount of
such reduction in Excise Tax is finally determined the portion of the
Gross-up Payment attributable to such reduction (plus the portion of
the Gross-up Payment attributable to the Excise Tax and federal, state
and local income tax imposed on the Gross-up Payment being repaid by
the Executive, if such repayment results in a reduction in Excise Tax
or in federal, state and local income tax deductions) plus interest on
the amount of such repayment at the rate provided in Section 1274(d) of
the Code.
(iii) In the event that the Excise Tax is
determined to exceed the amount taken into account hereunder at the
time of the termination of the Executive's employment (including by
reason of any payment the existence or amount of which cannot be
determined at the time the Gross-up Payment is made), the Corporation
shall make an additional Gross-up Payment in respect to such excess
(plus any interest payable with respect to such excess) at the time
that the amount of such excess is finally determined.
(iv) This Section 3.3 (d) will only apply
to Severance Payments if the event that causes the Severance Payment to
be subject to the Excise Tax occurs during the Term. For purposes of
clarity, if, on the date of termination, the Severance Payments would
not be subject to the Excise Tax, the Corporation will have no
obligation to make any Gross Up Payment if an event occurring after the
date of termination subjects any Severance Payment to Excise Tax.
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3.4 TERMINATION UPON DEATH OR DISABILITY OR BY EXECUTIVE FOR OTHER THAN GOOD
REASON.
(a) The Corporation may terminate the employment of
the Executive hereunder at any time forthwith upon the death or permanent
disability of the Executive, such termination to be communicated by written
notice given by the Corporation to the Executive or, in the event of the death
of the Executive, to his personal representative or his estate. The Executive
shall be considered to have become permanently disabled if in any 12 consecutive
months during the Term, because of ill health, physical or mental disability, or
for other causes beyond the control of the Executive, the Executive has been or
is reasonably likely to be continuously unable or unwilling or has failed to
perform his duties and responsibilities for 180 consecutive days, or if, during
any period of 12 consecutive months during the Term, the Executive has been
unable or unwilling or has failed to perform his duties and responsibilities
hereunder for a total of 240 days, consecutive or not.
(b) The Executive may, upon three months' prior
written notice to the Corporation, voluntarily terminate his employment
hereunder for other than Good Reason.
(c) On termination by the Executive of his employment
as a result of the Executive's death or as a result of the Executive having
become permanently disabled or upon the termination by the Executive of his
employment for other than Good Reason, , the Corporation shall pay to or to the
order of the Executive or his personal representative on behalf of the estate of
the Executive within 10 days after the date of termination of the Executive's
employment hereunder any unpaid Annual Base Salary earned by the Executive up to
the date of termination, together with any unpaid Bonus earned by the Executive
with respect to any year prior to the termination together with any amount to
which the Executive may be entitled under the provisions of the applicable
employment legislation in force at the date of termination of the Executive's
employment (less any deductions required by law).
(c) The several payments and other obligations of the
Corporation described in this section 3.4, together with the Corporation's
obligations and the Executive's rights under the provisions of the Corporation's
option agreements with the Executive, are the only severance, compensation or
termination payments or benefits that the Executive will receive in the event of
the voluntary termination of his employment as contemplated by this section 3.4.
3.5 RETURN OF PROPERTY. Upon the termination of the employment
of the Executive hereunder, regardless of the reason therefor, the Executive
will immediately deliver or cause to be delivered to the Corporation all books,
documents, effects, money, securities or
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other property (including manuals, computer disks and software products)
belonging to the Corporation, or for which the Corporation is liable to others,
which are in the possession, charge or custody of the Executive; provided,
however, that the Executive shall be entitled to retain, as his own personal
property, all personal computer equipment and cellular telephone (including both
hardware and, if and only to the extent permitted by applicable licenses, all
software written onto non-removable media therein) used by the Executive as of
the date of his termination hereunder.
ARTICLE IV
GENERAL
4.1 CONFIDENTIAL INFORMATION. The Executive shall hold in a
fiduciary capacity for the benefit of the Corporation all secret or confidential
information, knowledge or data relating to the Corporation and its subsidiaries
and their respective businesses which shall have been obtained by the Executive
during the Executive's employment by the Corporation and which shall not be or
become public knowledge (other than by acts of the Executive or representatives
of the Executive in violation of this Agreement). If the employment of the
Executive hereunder is terminated for any reason, the Executive shall not,
without the prior written consent of the Corporation or as may otherwise be
required by law or legal process, communicate or divulge any such information,
knowledge or data to any person other than the Corporation and those persons
designated by it
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4.2 NON-COMPETITION. During the Term and the Continuation
Period, the Executive shall not compete with any business then conducted by the
Company or any of its subsidiaries without the prior written consent of the
Board. For purposes of this Agreement, the term "compete" shall mean directly or
indirectly engaging or participating, or conducting as an owner, officer,
director, manager, employee or consultant of, or having a financial interest in,
or aiding or assisting anyone else in the conduct of, any business of the same
type and character as any business or the Corporation or any subsidiary thereof,
as conducted during the time the Executive rendered services hereunder, within
any geographical area in which the Corporation or its subsidiaries transacts its
business at the time of termination of the Executive's employment hereunder;
provided' however, that the Executive's ownership of not more than two percent
(2%) of the securities of any corporation or other entity which are traded on
any national securities exchange or market shall not constitute a violation of
this Section 4.2. The provisions of Section 4.2 will continue to apply as long
as the Corporation continues to make the payments under Section 3.3
4.3 NON-INTERFERENCE WITH PERSONNEL RELATIONS. During the Term
and the Continuation Period the Executive will not, directly or indirectly,
solicit, entice or persuade any employee of the Corporation or any of its
subsidiaries to leave the services of the Corporation for any reason. The
provisions of Section 4.3 will continue to apply as long as the Corporation
continues to make the payments under Section 3.3
4.4 EQUITABLE RELIEF. The Executive acknowledges that a breach
of the restrictions contained in Sections 4.1 to 4.3 hereof will cause
irreparable harm to the Corporation, the exact amount of which will be difficult
to ascertain, and that the remedies at law for any breach will be inadequate.
Accordingly, the Executive and the Corporation agree that if the Executive
breaches or attempts to breach any of the restrictions contained in Sections 4.1
through 4.3 hereof, then the Corporation shall be entitled to temporary or
permanent injunctive relief with respect to any breach or attempted breach (in
addition to any other remedies, at law or in equity' as may be available to the
Corporation), without posting bond or security.
4.5 LEGAL FEES. Except as set forth in section 4.15 herein,
the Corporation shall pay the Executive's counsel all reasonable, documented
legal and professional fees and expenses incurred by the Executive in seeking to
obtain or enforce any rights provided for under this Agreement or in connection
with any tax audit or proceeding to the extent attributable to the application
of Section 4999 of the Code to any payment or benefit provided hereunder upon
receipt by the Corporation of notification setting forth in reasonable detail
the rights to which the Executive believes he is entitled and the provisions of
the Agreement under
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which he believes such rights are afforded. The Corporation shall also pay the
Executive all reasonable, documented fees and expenses incurred by the Executive
relating to personal income tax compliance and income tax consulting relating to
this Agreement during the Term, including any such fees and expenses incurred
after the termination during the Continuation Period.
4.6 FULL SATISFACTION. The terms set out in this Agreement,
provided that such terms are satisfied by the Corporation, are in lieu of (and
not in addition to) and in full satisfaction of any and all claims or
entitlement which the Executive has or may have against the Corporation relating
to the Executive's employment by the Corporation as a result of the termination
of his employment by the Corporation in the circumstances contemplated in this
Agreement and compliance by the Corporation with these terms will effect a full
and complete release of the Corporation from any and all claims which the
Executive may then have for whatever reason or cause in connection with the
Executive's employment by the Corporation and termination of it, other than
those obligations specifically set out in the Agreement. In agreeing to the
terms set out in this Agreement the Executive specifically agrees to execute a
formal release document to that effect and will deliver upon request appropriate
resignations for all offices and positions with the Corporation and any
associated resignations from all offices and positions with the Corporation and
any associated or affiliated companies if, as, and when requested by the Board
of Directors upon the termination of employment within the circumstances
contemplated by this Agreement.
4.7 MITIGATION. The Executive shall have no duty to mitigate
the amount of any payment provided for in this Agreement by seeking other
employment or otherwise, nor shall the amount of any payment provided for in
this Agreement be reduced by any compensation earned by Executive as the result
of employment by another employer after the date of termination of the
Executive's employment with the Corporation, or otherwise.
4.8 NOTICES. Any notice required or permitted to be given
under this Agreement shall be in writing and shall be properly given if
delivered personally or mailed by prepaid registered mail addressed as follows:
(d) in the case of the corporation, to:
The Learning Company, Inc.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
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Attention: Chairman
(e) in the case of the Executive, to:
R. Xxxxx Xxxxxx
00 Xxxxxxxxx Xxxx
Xxxxxxxx Xxxx, Xxxxxxxxxxxxx 00000
or to such other address as the parties may from time to time specify by notice
given in accordance herewith. Any notice so given shall be conclusively deemed
to have been given or made on the day of delivery, if delivered, or, if mailed
by registered mail, upon the date shown on the postal return receipt as the date
upon which the envelope containing such notice was actually received by the
addressee.
4.9 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to the employment relationship
contemplated hereby and cancels and supersedes all prior understandings and
agreements between the parties with respect thereto and no agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not expressly set
forth in this Agreement.
4.10 SUCCESSORS AND ASSIGNS. Neither the Executive nor the
Corporation may assign its rights hereunder to another person without the
consent of the other; provided, however that the Corporation may assign its
rights hereunder to a successor corporation which acquires (whether directly or
indirectly, by purchase, arrangement, merger, consolidation, dissolution or
otherwise) all or substantially all of the business and/or assets of the
Corporation and expressly assumes and agrees to perform this Agreement in the
same manner and to the same extent that the Corporation would be required to
perform it if no such succession had taken place and provided that such
successor shall reasonably be able to perform all of its obligations under this
Agreement. As used in this Agreement, the term "Corporation" shall mean the
Corporation as defined herein and any successor to its business or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of law
or otherwise.
4.11 ENUREMENT. This Agreement shall enure to the benefit of
and be binding upon the Executive and his personal representatives and upon the
Corporation and its successors and permitted assigns.
4.12 FURTHER ASSURANCES. Each of the Corporation and the
Executive agrees to
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execute all such documents and to do all such acts and things as the other party
may reasonably request and as may be lawful and within its power to do or to
cause to be done in order to carry out and/or implement in full the provisions
and intent of this Agreement.
4.13 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts and
the federal laws of the United States of America applicable therein. Each of the
parties assents to the jurisdiction of the courts of the Commonwealth of
Massachusetts to hear any action, suit or proceeding arising in connection with
this Agreement.
4.14 WAIVER OF RIGHTS. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing signed by the party against whom the same is sought to be
enforced and no failure by any party to enforce any of its rights hereunder
shall, except as aforesaid, be deemed to be a waiver of such right. No waiver by
either party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.
4.15 MANDATORY ARBITRATION. Except as expressly stated below,
any dispute, controversy or claim arising out of or related to the Executive's
employment by the Corporation or its termination, including but not limited to
claims of unlawful discrimination or harassment (collectively, the "Arbitrable
Claims"), will be settled by binding arbitration in Boston or Cambridge,
Massachusetts in accordance with the then current rules of the American
Arbitration Association (the "AAA"), before an experienced employment arbitrator
licensed to practice law in the Commonwealth of Massachusetts and selected in
accordance with the Model Employment Arbitration Procedures of the AAA. The
Corporation and the Executive each knowingly waive the right to a jury trial in
a court of law with respect to the Arbitration Claims. For purposes of any
arbitration under this Section 4.15, the Corporation and the Executive hereby
incorporate by reference in, the Massachusetts Code of Civil Procedure, and
agree that each of the Corporation and the Executive shall pay the fees of its,
his own attorneys, the expenses of its, his own expert witnesses and any other
expenses connected with presenting its, his own claims. The fees of the
arbitrator will be paid half by the Executive and half by the Corporation,
provided that the Corporation will pay 100% of the arbitrator's fee that exceeds
$1000. The Arbitrator shall have the power to summarily adjudicate claims and/or
enter summary judgment in appropriate cases. Notwithstanding any of the
foregoing, any claim or counterclaim brought for infringement or
misappropriation of any patent, copyright, trade secret, trademark or other
proprietary right shall not be subject to arbitration, and neither the Executive
nor the Corporation waive any right to submit such
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claim, or any factual or legal issues relating to such claim, to a court of
competent jurisdiction.
IN WITNESS WHEREOF the parties hereto have executed this
Agreement.
/s/ R. Xxxxx Xxxxxx
----------------------------------------
R. XXXXX XXXXXX
THE LEARNING COMPANY, INC.
By/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Chairman and Chief Executive Officer
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