EMPLOYMENT AGREEMENT
Exhibit 10.19
Study Island, LLC
This
Employment Agreement (this “Agreement”) is entered into as
of this 15th day of
September, 2008, by and between Study Island LLC, a Delaware limited liability company (the
“Company”), and Xxx Xxxxxx (the “Executive”).
WHEREAS, the Company desires to engage the services of the Executive and the Executive desires to
be employed by the Company;
WHEREAS, the Company desires to be assured that the unique and expert services of the Executive
will be available to the Company, and that the Executive is willing and able to render such
services on the terms and conditions hereinafter set forth;
WHEREAS, the Company desires to be assured that the confidential information and good will of the
Company will be preserved for the exclusive benefit of the Company.
NOW, THEREFORE, in consideration of such employment and the mutual covenants and promises herein
contained, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Company and the Executive agree as follows:
1 AT-WILL EMPLOYMENT
The Executive’s employment with the Company shall commence as of September 29, 2008 (the “Start
Date”). Such employment shall be “at-will” employment. Subject to the terms of this Agreement, the
Company may terminate the Executive’s employment and this Agreement for any reason at any time,
with or without prior notice and with or without Cause (as defined herein), but subject to certain
terms set forth in Section 7 below. Similarly, subject to the terms of this Agreement, the
Executive may terminate his employment at any time.
2 EMPLOYMENT AND RESPONSIBILITIES
The Company will employ the Executive in the position of Senior Vice President, Chief Technology
Officer. This position will be located in Dallas, Texas. The Executive shall report to the Chief
Executive Officer. The Executive will have such authority, and will perform all of the duties,
normally associated with this position as well as other duties as may be reasonably assigned to him
from time to time by the Board of Managers (the “Board”) of Study Island Holdings, LLC (“Holdings”)
or the Chief Executive Officer, in each case consistent with his position as Senior Vice President,
Chief Technology Officer.
3 ATTENTION AND EFFORT
The Executive will devote all of his business time, ability, attention and best efforts to the
performance of his duties hereunder in a manner which will faithfully and diligently further the
Company’s business to the exclusion of all other business activities. However, the Executive may
devote reasonable periods of time to engaging in charitable or community service activities, so
long as none of these activities interfere with his duties under this Agreement. The Executive
agrees to
perform his duties and responsibilities within Company policies, standard work hours and attendance
and general work practices.
4 TERM
The Executive’s employment hereunder initially shall be for a term commencing on the Start Date and
ending on the day preceding the second anniversary of the Start Date, subject to earlier
termination in accordance with Section 7 below. The Agreement shall be automatically extended from
year to year thereafter unless either party gives not less than sixty (60) days prior written
notice to the other that such party elects to have the Agreement terminated effective at the end of
the initial or then current renewal term. The provision of the foregoing notice shall result in the
expiration of this Agreement at the end of the then current term and shall not be deemed a
termination of the Executive’s employment by the Company.
5 COMPENSATION
During the term of employment under this Agreement, the Company agrees to pay to the Executive, and
he agrees to accept in full consideration for all services performed by him, the following
compensation:
5.1 Base Salary: The Company will pay the Executive an annual base salary of Three hundred and
twenty thousand dollars ($320,000), before all customary payroll deductions. This annual base
salary will be paid in accordance with the usual payroll practices of the Company. The Board may
make such increases in the base salary as the Board may, in its sole discretion, deem appropriate.
The Executive’s annual base salary, as in effect from time to time, is hereinafter referred to as
the “Base Salary.”
5.2 Signing Bonus: In consideration for the Executive entering into this Agreement, the Company
shall pay the Executive a signing bonus (the “Signing Bonus”) of One hundred and fifty thousand
dollars ($150,000), of which Seventy five thousand dollars ($75,000) shall be payable with the
first payroll period following the Executive’s Start Date, and the remaining Seventy five thousand
dollars ($75,000) shall be payable in the first payroll period in January 2009, provided that the
Executive is employed by the Company at such time. If the Executive’s employment is terminated for
any reason prior to September 29, 2009, the Executive shall within five (5) days of such
termination pay back to the Company the full Signing Bonus (or Seventy five thousand dollars
($75,000) if terminated on or prior to December 31, 2008). If the Executive’s employment is
terminated for any reason on or after September 29, 2009, but on or before September 29, 2010, the
Executive shall within five (5) days of such termination pay back to the Company Seventy five
thousand dollars ($75,000). If the Executive’s employment is terminated for any reason after
September 29, 2010, the Executive is not obligated to pay back to the Company any portion of the
Signing Bonus.
5.3 Annual Bonus:
During the Executive’s employment term, the Executive will participate in the Company-wide bonus
plan in which all employees of the Company participate based on the bonus plan’s policies and
procedures then in effect. In addition, the Executive will be eligible to receive in respect of
each fiscal year of the Company (commencing with the fiscal year ending on December 31, 2009 an
annual bonus in an amount equal to up to 40% of his earned Base Salary (pro rated for partial
years) based on, among other things, performance targets established by the Board by reference to
the operating plan approved from time to time by the Board; provided that if the Company’s
performance in any fiscal year exceeds 110% of the performance targets, the Executive shall be
eligible to receive an annual bonus in an amount equal to up to 50% of his Base Salary.
Notwithstanding the above, for 2008, the Executive will be eligible to receive up to Fifty five
thousand dollars ($55,000) upon achieving certain objectives between the Start Date and December
31, 2008, as established by the Board. The bonus payments, if any, shall be paid by the Company no
later than the 15th day of the third calendar month of the fiscal year following the fiscal year to
which such annual bonus relates.
5.4 Incentive Equity: On the Start Date, the Executive will be granted incentive equity pursuant to
the long term incentive equity program of Holdings, on the terms and conditions set forth in
Exhibits A and B.
5.5 Board Participation. The Executive will not be a member of the Board of Managers of Holdings
but will be permitted to attend and participate in meetings of the Board of Managers of Holdings,
with the exception of any closed executive sessions.
6 BENEFITS
6.1 Description of Benefits: During the term of employment under this Agreement, the Executive will
be entitled to participate in all employee incentive, pension and welfare benefit plans and
programs made available generally to other senior executives of the Company, as such plans or
programs may be in effect from time to time (including, without limitation, incentive equity,
profit sharing, savings and other pension and retirement plans or programs, medical, dental,
hospitalization, short-term and long-term disability and life insurance plans, accidental death and
dismemberment protection, and any other pension or retirement plans or programs and any other
employee incentive compensation plans, employee welfare benefit plans or programs that may be
sponsored by the Company from time to time and provided that the Executive meets the eligibility
requirements and other terms, conditions and restrictions of the respective plans and programs,
including any plans that supplement the above-listed types of plans or programs, whether funded or
unfunded). Payment for such coverages will be the sole responsibility of the Executive, unless the
Company makes such coverages available to similarly situated executives on a shared cost basis. In
addition, the Executive will be entitled to four (4) weeks of paid vacation per year, subject to
the Company’s standard vacation policy. The Company will pay for all reasonable expenses actually
incurred by the Executive directly in connection with the business affairs of the Company and the
performance of his duties hereunder, upon presentation of proper receipts or other proof of
expenditure and subject to such reasonable guidelines or limitations provided by the Company from
time to time.
6.2 Relocation Expenses: The Executive shall relocate from Cincinnati, Ohio to Dallas, Texas no
later than June 2009. The Company will reimburse the Executive for the following relocation
expenses: (i) the Executive’s temporary housing costs in Dallas for up to ten (10) months (not to
exceed Two thousand and two hundred dollars ($2,200) per month), (ii) the cost of two (2) trips for
the Executive and his family to search for a permanent residence in Dallas, which includes airfare,
a car rental and meal expenses, (iii) the realtor fee for the sale of the Executive’s residence in
Cincinnati, up to 6%, (iv) other closing costs associated with the sale of the Executive’s
residence in Cincinnati, including attorney fees, title fees, escrow fees, and other similar
expenses, (v) costs associated with transporting the Executive’s household and personal property
from Cincinnati to Dallas upon the Executive submitting three (3) bids from moving companies, and
(vi) costs associated with the trip for the Executive and his family when moving to Dallas. The
Executive shall submit all relocation expenses to the Company Controller on the Company’s expense
report forms,
along with documentation and receipts for approval. The Company will reimburse the Executive all
approved relocation expenses on a “tax gross-up” basis. All reimbursements shall be made as soon as
reasonably practicable and in all events on or before the last day of the second full calendar
month following the date on which the Executive presents such relocation expenses for
reimbursement; provided, however, that in no event shall a reimbursement be made later than on the
last day of the calendar year following the calendar year in which the Executive incurred the
relocation expenses.
7 TERMINATION
The Executive’s employment under this Agreement may be terminated as follows, but in the event of
any such termination, the provisions of Sections 8 and 9 will survive the termination of the
Executive’s employment.
7.1 By the Company: The Company may terminate the employment of the Executive, with or without
Cause (as defined in Section 8.5 hereof), at any time during the term hereof by delivery of a
Notice of Termination (as defined below) to the Executive.
7.2 By the Executive: The Executive may terminate his employment at any time, for any reason, by
delivery of a Notice of Termination to the Company.
7.3 Death; Disability: The Executive’s employment will terminate automatically upon the Executive’s
death or total disability. The term “total disability” will mean the Executive’s inability to
perform the duties set forth in Section 1 hereof for a period of twelve (12) consecutive weeks, or
a cumulative period of ninety (90) business days in any twelve (12) month period, as a result of
physical or mental illness or loss of legal capacity.
7.4 Notice: The term “Notice of Termination” means at least thirty (30) days’ prior written notice
of termination of the Executive’s employment (the “Advance Notice Period”), during which period the
Executive’s employment and performance of services will continue; provided, however, that (i) the
Executive may, upon termination of his employment for Good Reason, make such notice effective
immediately, (ii) the Company may, upon termination of his employment with or without Cause, make
such notice immediately, and (iii) the Company may, upon notice to the Executive and without
reducing compensation during any Advance Notice Period, excuse him from any or all of his duties
during any Advance Notice Period. The effective date of termination of employment (the “Termination
Date”) will be the date on which such Advance Notice Period expires (or the date of notice, if the
Company exercises its rights under clause (ii) hereof or if the Executive exercises his rights
under clause (i) hereof) or as otherwise provided in Section 4 above.
8 TERMINATION PAYMENTS
In the event of termination of the employment of the Executive, all compensation and benefits set
forth in this Agreement will terminate as of the Termination Date except as specifically provided
in this Section 8:
8.1 Termination by the Company:
(a) If the Company terminates the Executive’s employment without Cause (other than as result of
death or total disability), he will not be entitled to receive any of the payments or benefits
provided for herein except the Company shall (i) pay his Base Salary through the Termination Date,
(ii) pay his Base Salary during the Severance Period (as defined in Section 8.7 below) payable at
the same time such payment would be made during the Executive’s regular employment with the
Company, (iii) provide the Executive with all benefits that are accrued but unpaid as of the
Termination Date, and (iv) provide the Executive with all benefits expressly available upon
termination of employment in accordance with the plans and programs of the Company applicable to
the Executive on the Termination Date (but without duplication of any benefits or payments
otherwise provided for hereunder).
(b) If the Company terminates the Executive’s employment for Cause, he will not be entitled to
receive any of the payments or benefits provided for herein except the Company shall (i) pay his
Base Salary through the Termination Date, (ii) provide the Executive with all benefits that are
accrued but unpaid as of the Termination Date, and (iii) provide the Executive with all benefits
expressly available upon termination of employment in accordance with the plans and programs of the
Company applicable to the Executive on the Termination Date (but without duplication of any
benefits or payments otherwise provided for hereunder).
8.2 Termination by the Executive:
(a) If the Executive terminates his employment with the Company with Good Reason (as hereinafter
defined), he will not be entitled to receive any of the payments or benefits provided for herein
except the Company shall (i) pay his Base Salary through the Termination Date, (ii) pay his Base
Salary during the Severance Period payable at the same time such payment would have been made
during the Executive’s regular employment with the Company, (iii) provide the Executive with all
benefits that are accrued but unpaid as of the Termination Date and (iv) provide the Executive with
all benefits expressly available upon termination of employment in accordance with the plans and
programs of the Company applicable to the Executive on the Termination Date (but without
duplication of any benefits or payments otherwise provided for hereunder).
(b) If the Executive terminates his employment with the Company without Good Reason, he will not be
entitled to any payments or benefits provided for herein except the Company shall (i) pay his Base
Salary through the Termination Date, (ii) provide the Executive with all benefits that are accrued
but unpaid as of the Termination Date, and (iii) provide the Executive with all benefits expressly
available upon termination of employment in accordance with the plans and programs of the Company
applicable to the Executive on the Termination Date (but without duplication of any benefits or
payments otherwise provided for hereunder).
8.3 Expiration of Term, Death or Disability:
(a) If the Executive’s employment is terminated pursuant to Section 4 hereof as a result of the
expiration of the term of this Agreement, he will not be entitled to receive any of the payments or
benefits provided for herein except the Company shall (i) pay his Base Salary through the
Termination Date, (ii) pay his Base Salary during the Severance Period payable at the same time
such payment would have been made during the Executive’s regular employment with the Company, (iii)
provide the Executive with all benefits that are accrued but unpaid as of the Termination Date and
(iv) provide the Executive with all benefits expressly available upon termination of employment in
accordance with the plans and programs of the Company applicable to the Executive on the
Termination Date (but without duplication of any benefits or payments otherwise provided for
hereunder).
(b) If the Executive’s employment is terminated pursuant to Section 7.3 as a result of his death or
total disability, he will not be entitled to any payments or benefits, except the Company shall (i)
pay his Base Salary through the Termination Date, (ii) provide the Executive with all benefits that
are accrued but unpaid as of the Termination Date and (iii) provide the Executive with all benefits
expressly available upon termination of employment in accordance with the plans and programs of the
Company applicable to the Executive on the Termination Date (but without duplication of any
benefits or payments otherwise provided for hereunder).
8.4 Payment Schedule: All payments of Base Salary under this Section 8 (including wages for
services performed prior to the Termination Date) shall be paid in accordance with the Company’s
normal payroll practices and any bonus amounts due under this Section 8 shall be paid promptly
following the Company’s receipt of its audited financial statements for the year during which the
Termination Date occurs. Notwithstanding anything in this Section 8, if all or any portion of the
severance payment and/or benefits due under Sections 8.1, 8.2 or 8.3 are determined to be
“non-qualified deferred compensation” subject to Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”) and the treasury regulations and other guidance promulgated or issued
thereunder (“Section 409A”) and the Company determines that the Executive is a “specified employee”
(as defined in Section 409A(a)(2)(B)(i) of the Code), then such severance payment and/or benefits
shall commence no earlier than the first day of the seventh month following the Executive’s
termination of employment. Any payment or benefit delayed by reason of the prior sentence shall be
paid in a single lump sum on the first day immediately following the end of such required delay
period in order to catch up to the original payment schedule. Each such installment shall be
treated as a separate payment under Section 409A of Code.
8.5 Cause: Wherever reference is made in this Agreement to termination being with or without Cause,
“Cause” shall mean (i) the Executive refuses or fails to perform any of his duties and
responsibilities as determined from time to time by the Board or the Chief Executive Officer,
including, without limitation (a) the Executive’s persistent neglect of duty or chronic unapproved
absenteeism (other than for a temporary or permanent disability) which remains uncured to the
reasonable satisfaction of the Board or the Chief Executive Officer following thirty (30) days”
written notice from the Company of such alleged fault and (b) the Executive’s refusal to comply
with any lawful directive or policy of the Board or the Chief Executive Officer which refusal is
not cured by the Executive within thirty (30) days of such written notice from the Company;
provided, however, that the Company shall not be required to give the Executive a cure period with
respect to this clause (i) on more than one occasion; (as used in this Section 8.5, “Company” shall
mean Holdings, the Company and each of the Company’s subsidiaries), (ii) the Executive acts
(including a failure to act) in a manner which constitutes willful misconduct, gross negligence, or
insubordination, (iii) the Company determines that, in the reasonable judgment of the Board or the
Chief Executive Officer, (x) the Executive has committed an act of fraud, personal dishonesty or
misappropriation relating to the Company or Holdings, has violated any material provision of any
written policy of the Company or Holdings or (y) the Executive has committed any other act causing
material harm to the
Company’s or Holding’s standing or reputation, or any act of dishonesty, embezzlement, unauthorized
use or disclosure of Confidential Information or other intellectual property or trade secrets,
common law fraud or other fraud with respect thereto, (iv) a material breach by the Executive of
this Agreement, any other written agreement with the Company, any fiduciary duty to the Company,
(v) the Executive’s arrest, indictment for or conviction (or the entry of a plea of a nolo
contendere or equivalent plea) in a court of competent jurisdiction of a felony or any misdemeanor
involving material dishonesty or moral turpitude, or (vi) the Executive’s habitual or repeated
misuse of, or habitual or repeated performance of the Executive’s duties under the influence of,
alcohol or controlled substances.
8.6 Good Reason: Whenever reference is made in the Agreement to termination being with or without
Good Reason, “Good Reason” shall mean the occurrence of any of the following events without the
Executive’s express written consent: (i) any material breach by the Company of any material
provision of this Agreement, (ii) a material reduction in or the failure to pay the Executive’s
Base Salary, (iii) a material reduction or diminution of the Executive’s duties, responsibilities
or authorities which are caused by an act of the Company, (iv) non-renewal by the Company of this
Agreement pursuant to Section 4 hereof, or (iv) a request by the Company for the Executive to
perform an illegal or unethical act. The Company shall have thirty (30) days after receipt of
notice from the Executive setting forth the specific conduct that constitutes Good Reason, to cure
such conduct that would result in Good Reason. The Executive may not resign his employment for Good
Reason unless the Executive has provided the Company with at least thirty (30) days prior written
notice of his intent to resign for Good Reason (which notice must be provided within sixty (60)
days following (i) the occurrence of the event(s) purported to constitute Good Reason, or (ii) if
the Executive did not know of the occurrence of any of such events, the date on which the Executive
had actual knowledge of the occurrence of any of such events) and has set forth in reasonable
detail the specific conduct that constitutes Good Reason and the specific provisions of this
Agreement on which the Executive relies.
8.7 Severance Period: Whenever reference is made in this Agreement to the Severance Period,
“Severance Period” shall mean the period commencing on the Termination Date and ending on the nine
(9)-month anniversary of the Termination Date.
8.8 Payments Contingent on Release: The Company’s obligation to make any payments of salary or
bonus under this Section 8 (other than wages for services performed prior to the Termination Date)
shall be contingent upon the Executive executing a general release concerning the Executive’s
employment in form and substance reasonably acceptable to the Company and the Executive. No such
contingency shall apply to any obligation to provide benefits under this Section 8.
9 NONCOMPETITION, NONSOLICITATION, PROTECTION OF CONFIDENTIAL
INFORMATION
9.1 Applicability: This Section 9 will survive the termination of this Agreement and the
Executive’s employment with the Company. As used in this Section 9, “Company” shall mean Holdings,
the Company and all of the Company’s subsidiaries.
9.2 Restricted Period: As used in this Agreement, the “Restricted Period” means the period
commencing on the Start Date and ending twelve (12) months following the Termination Date (the
“Trigger Date”).
9.3 Noncompetition: During the Restricted Period, the Executive will not engage in any business in
any manner, directly or indirectly, individually or as a consultant to, or as an employee, officer,
director, stockholder, partner or other owner or participant of, any entity that (i) is in
competition with any business of the Company or any business in which, to the Executive’s
knowledge, the Company had plans to engage or was considering engaging as of the Trigger Date,
except the Executive may own up to five percent (5%) of any class of issued and outstanding
securities of a competitive corporation whose shares are regularly traded on a national securities
exchange or on the over-the-counter market, or (ii) inevitably will result in the disclosure or use
of the Company’s Confidential Information, as defined in Section 9.5 below, in either case in any
state in the United States where the Company does business as of the Trigger Date or where, to the
Executive’s knowledge, the Company had plans to engage or was considering engaging as of the
Trigger Date.
9.4 Nonsolicitation: As used in this Agreement, “Solicitation” means, directly or indirectly,
individually or as a consultant to, or as an employee, officer, director, stockholder, partner or
other owner or participant of, any entity, (a) the solicitation of, inducement of, or attempt to
induce, any employee, agent or consultant (including freelance writers and content providers) of
the Company to leave the employ of, or stop providing services to, the Company; (b) the offering or
aiding another to offer employment to, or interfering or attempting to interfere with the Company’s
relationship with, any employees or consultants (including freelance writers and content providers)
of the Company; (c) the solicitation of, or assistance to any entity or person in solicitation of,
any customers or suppliers (including freelance writers and content providers) of the Company to
discontinue doing business with the Company; or (d) interfering with any relationship between the
Company and any of its customers or suppliers (including freelance writers and content providers).
During the Restricted Period, the Executive will not engage in or attempt to engage in any
Solicitation, provided that Solicitation will not be considered to have occurred by the general
advertising for or hiring of any employee by entities with which the Executive is associated, as
long as he does not directly or indirectly (i) induce such employee to leave the Company, (ii)
contact such employee prior to his departure from the Company regarding employment, or (iii) in the
case of hiring such employee, control such entity or have any input in the decision to hire such
employee.
9.5 Protection of the Company’s Confidential Information: As used in this Agreement, “Confidential
Information” means all information that relates to the business, technology, manner of operation,
suppliers, panelists, customers, finances, employees, plans, proposals or practices of the Company
or of any third parties doing business with the Company, and includes, without limitation, the
identities of and other information regarding the Company’s suppliers, panelists, customers and
prospects, supplier lists, panelist list employee information, business plans and proposals,
software programs, marketing plans and proposals, technical plans and proposals, research and
development, budgets and projections, nonpublic financial information, and all other information
the Company designates as “confidential” or intends to keep as confidential or proprietary.
Excluded from the definition of Confidential Information is information that is or becomes
generally known to the public, other than through the breach of this Agreement by the Executive.
For this purpose, information known or available generally within the trade or industry of the
Company shall be deemed to be generally known to the public. The Executive understands and agrees
that Confidential Information will be considered the trade secrets of the Company and will be
entitled to all protections given by law to trade secrets and that the provisions of this Agreement
apply to every form in which Confidential Information exists, including, without limitation,
written or printed information, films, tapes, computer disks or data, or any other form of memory
device, media or method by which information is stored or maintained. The Executive acknowledges
that in the course of employment with the Company, he has received and may receive Confidential
Information of the Company. The
Executive further acknowledges that Confidential Information is a valuable, unique and special
asset belonging to the Company. For these reasons, and except as otherwise directed by the Company,
the Executive agrees, during his employment, and at all times after the termination of his
employment with the Company, that he will not disclose or disseminate to anyone outside the
Company, nor use for any purpose other than as required by his work for the Company, nor assist
anyone else in any such disclosure or use of, any Confidential Information. Upon the Company’s
request at any time and for any reason, the Executive shall immediately deliver to the Company all
materials (including all soft and hard copies) in the Executive’s possession which contain or
relate to Confidential Information.
9.6 Ownership of Intellectual Property: All inventions, modifications, discoveries, designs,
developments, improvements, processes, software programs, works of authorship, documentation,
formulae, data, techniques, know-how, trade secrets or intellectual property rights or any interest
therein (collectively, the “Developments”) made by the Executive, either alone or in conjunction
with others, at anytime or at any place during the Executive’s employment with the Company, whether
or not reduced to writing or practice during such period of employment, which relate to the
business in which the Company is engaged or, to the knowledge of the Executive, in which the
Company intends to engage, shall be and hereby are the exclusive property of the Company without
any farther compensation to the Executive. In addition, without limiting the generality of the
prior sentence, all Developments which are copyrightable work by the Executive are intended to be
“work made for hire” as defined in Section 101 of the Copyright Act of 1976, and shall be and
hereby are the property of the Company.
The Executive shall promptly disclose any Developments to the Company. If any Development is not
the property of the Company by operation of law, other provisions of this Agreement or otherwise,
the Executive will, and hereby does, assign to the Company all right, title and interest in such
Development, without further consideration, and will assist the Company and its nominees in every
way, at the Company’s expense, to secure, maintain and defend the Company’s rights in such
Development. The Executive shall sign all instruments necessary for the filing and prosecution of
any applications for, or extension or renewals of, letters patent (or other intellectual property
registrations or filings) of the United States or any foreign country which the Company desires to
file and relates to any Development. The Executive hereby irrevocably designates and appoints the
Company and its duly authorized officers and agents as such the Executive’s agent and
attorney-in-fact (which designation and appointment shall be deemed coupled with an interest and
shall survive the Executive’s death or incapacity), to act for and in the Executive’s behalf to
execute and file any such applications, extensions or renewals and to do all other lawfully
permitted acts to further the prosecution and issuance of such letters patent, other intellectual
property registrations or filings, or such other similar documents with the same legal force and
effect as if executed by the Executive.
9.7 Equitable Relief: The Executive acknowledges that (a) the provisions of this Section 9 are
essential to the Company; (b) that the Company would not enter into this Agreement if it did not
include this Section 9; and (c) that damages sustained by the Company as a result of a breach of
this Section 9 cannot be adequately remedied by monetary damages. Furthermore, the Executive agrees
that the Company, notwithstanding any other provision of this Agreement, and in addition to any
other remedy it may have under this Agreement, or at law, will be entitled to injunctive and other
equitable relief to prevent or curtail any breach of this Section 9.
10 FORM OF NOTICE
All notices given hereunder shall be given in writing, shall specifically refer to this Agreement
and shall be personally delivered or sent by telecopy or other electronic facsimile transmission or
by registered or certified mail, return receipt requested, at the address set forth below or at
such other address as may hereafter be designated by notice given in compliance with the terms
hereof:
If to the Executive:
Xxx Xxxxxx
0000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile:
Xxx Xxxxxx
0000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile:
If to the Company:
c/o Study Island, LLC
0000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxx XxXxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
c/o Study Island, LLC
0000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxx XxXxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy: Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxx Xxxxxx 00xx Xxxxx
Attention: Xxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (0000) 000-0000
000 Xxxxxxx Xxxxxx 00xx Xxxxx
Attention: Xxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (0000) 000-0000
If notice is mailed, such notice shall be effective upon mailing, or if notice is personally
delivered or sent by telecopy or other electronic facsimile transmission, it shall be effective
upon receipt.
11 ASSIGNMENT
This Agreement and all rights under this Agreement shall be binding upon and inure to the benefit
of and be enforceable by the parties hereto and their respective personal or legal representatives,
executors, administrators, heirs, distributees, devisees, legatees, successors and assigns. Nothing
in this Agreement shall be construed to confer any right, benefit or remedy upon any person that is
neither a party hereto nor a personal or legal representative, executor, administrator, heir,
distributee, devisee, legatee, successor or assign of a party hereto. This Agreement is personal in
nature, and none of the parties to this Agreement shall, without the written consent of the others,
assign or transfer this Agreement or any one or more of its rights or obligations under this
Agreement to any other person or entity, except that the Company may assign its rights and delegate
its obligations under this Agreement to any entity that acquires all or substantially all of its
business, whether by sale of assets, merger or like transaction. If the Executive should die while
any amounts are still payable, or any benefits are still required to be provided, to the Executive
hereunder, all such amounts or benefits, unless otherwise provided herein, shall be paid or
provided in accordance with the terms of this Agreement to the Executive’s devisee, legatee or
other designee or, if there be no such person, to the Executive’s estate.
12 COMPLIANCE WITH SECTION 409A OF THE CODE
The parties acknowledge and agree that the interpretation of Section 409A of the Code and its
application to the terms of this Agreement is uncertain and may be subject to change as additional
guidance and interpretations become available. Anything to the contrary herein notwithstanding, all
benefits or payments provided by the Company to the Executive that would be deemed to constitute
“nonqualified deferred compensation” within the meaning of Section 409A of the Code are intended to
comply with Section 409A of the Code. If, however, any such benefit or payment is deemed to not
comply with Section 409A of the Code, the Company and the Executive agree to renegotiate in good
faith any such benefit or payment (including, without limitation, as to the timing of any severance
payments payable hereof), if possible, so that either (i) Section 409A of the Code will not apply
or (ii) compliance with Section 409A of the Code will be achieved. The Company shall consult with
the Executive in good faith regarding the implementation of the provisions of this Section 12;
provided that neither the Company nor any of its employees or representatives shall have
any liability to the Executive with respect to thereto.
13 WAIVERS
No delay or failure by any party hereto in exercising, protecting or enforcing any of its rights,
titles, interests or remedies under this Agreement, and no course of dealing or performance with
respect thereto, will constitute a waiver thereof. The express waiver by a party hereto of any
right, title, interest or remedy in a particular instance or circumstance will not constitute a
waiver thereof in any other instance or circumstance. All rights and remedies shall be cumulative
and not exclusive of any other rights or remedies.
14 AMENDMENTS IN WRITING
No amendment, modification, waiver, termination or discharge of any provision of this Agreement,
nor consent to any departure therefrom by either party, will in any event be effective unless the
same is in writing, specifically identifying this Agreement and the provision intended to be
amended, modified, waived, terminated or discharged and signed by the Company and the Executive.
Each amendment, modification, waiver, termination or discharge will be effective only in the
specific instance and for the specific purpose for which given. No provision of this Agreement will
be varied, contradicted or explained by any oral agreement, course of dealing or performance or any
other matter not set forth in an agreement in writing and signed by the Company and the Executive.
15 APPLICABLE LAW
This Agreement will in all respects, including all matters of construction, validity and
performance, be governed by, and construed and enforced in accordance with, the laws of the State
of Delaware, without regard to any rules governing conflicts of laws.
16 SEVERABILITY
If any provision of this Agreement is held invalid, illegal or unenforceable under applicable law,
for any reason, including, without limitation, the duration of such provision, its geographical
scope or the extent of the activities prohibited or required by it, then, to the full extent
permitted by law (a) all other provisions will remain in full force and effect and will be
liberally construed in order to carry out the intent of the parties hereto as nearly as may be
possible, (b) such invalidity, illegality or unenforceability will not affect the validity,
legality or enforceability of any other provision hereof, and (c) any court or arbitrator having
jurisdiction thereover shall (and will have the power to) reform such provision to the extent
necessary for such provision to be enforceable under applicable law.
17 COUNTERPARTS
This Agreement, and any amendment or modification entered into pursuant to Section 14 hereof, may
be executed in any number of counterparts (including facsimile counterparts), each of which
counterparts, when so executed and delivered, shall be deemed to be an original and all of which
counterparts, taken together, will constitute one and the same instrument.
18 SET OFF
The Company’s obligation to pay the Executive the amounts provided and to make the arrangements
provided hereunder shall be subject to set-off, counterclaim or recoupment of amounts owed by the
Executive to the Company or its affiliates.
19 NO CONFLICTING AGREEMENTS
The Executive represents and warrants to the Company that the Executive is not a party to or
bound by any confidentiality, noncompetition, nonsolicitation, employment, consulting or other
agreement or restriction which could conflict with, or be violated by, the performance of the
Executive’s duties to the Company or obligations under this Agreement.
20 KEY PERSON LIFE INSURANCE
The Executive acknowledges that the Company may wish to purchase insurance on the life of the
Executive, the proceeds of which would be payable to the Company, at the Company’s expense. The
Executive hereby consents to such insurance and agrees to submit to any medical examination and
release of medical records required to obtain such insurance.
21 WITHHOLDING TAXES
The Company may withhold from any amounts payable under this Agreement such Federal, state and
local taxes as may be required to be withheld pursuant to any applicable law or regulation.
22 ENTIRE AGREEMENT
This Agreement on and as of the date hereof, constitutes the entire agreement between the Company
and the Executive relating to employment of the Executive with the Company, and supersedes and
cancels any and all previous or contemporaneous contracts, arrangements or understandings, whether
oral or written between the Company and the Executive relating to his employment with or
termination from the Company.
The next page is the signature page.
IN WITNESS WHEREOF, the parties have executed and entered into this Agreement on the date set forth
above.
EXECUTIVE:
By:
|
/s/ Xxx Xxxxxx | |||
Name:
|
Xxx Xxxxxx | |||
Title:
|
Senior Vice President, CTO |
STUDY ISLAND, LLC
By:
|
/s/ Xxx XxXxxx | |||
Name:
|
Xxx XxXxxx | |||
Title:
|
CEO |
Exhibit A
Terms of Incentive Equity
The Executive will be eligible to participate in the Study Island Holdings, LLC 2007 Equity
Compensation Plan. Upon acceptance of this Agreement, the Board will allocate a total of 902,754
incentive shares to the Executive: 451,377 of Class B Participation Shares and 451,377 of Class C
Performance Shares. Under the plan, the Class C Performance Shares would vest as of the grant date
and the value of such shares would be subject to performance hurdles. Further, under the plan, the
Class B Participation Shares would vest as follows: 20% on the first anniversary of the grant date,
20% on the second anniversary of the grant date, 20% on the third anniversary of the grant date,
20% on the fourth anniversary of the grant date, and 20% on the fifth anniversary of the grant
date. For Class B Participation Shares, the Executive will be “fully vested” after five (5) years,
meaning he will be entitled to the value of 100% of the Participation Shares. However, the Class B
Participation Shares cease to vest once a participant is no longer employed by the Company. Class B
Participation Shares and Class C Performance Shares are subject to cancellation under certain
circumstances. (See Long Term Incentive Plan PowerPoint and copy of the Plan Agreement for further
details.)
