First Amendment to Employment Agreement
Exhibit 10.16
First Amendment to Employment Agreement
This FIRST AMENDMENT TO EMPLOYMENT AGREEMENT (this “Amendment”) is made and entered into by
and between Study Island, LLC, a Delaware limited liability company (the “Company”) and Xxxxx X.
Xxxxxxx (the “Executive”) as of December 31, 2008 for purposes of amending that certain employment
agreement by and between the Company and the Executive dated May 22, 2007 (the “Employment
Agreement”). Terms used in this Amendment with initial capital letters that are not otherwise
defined herein shall have the meanings ascribed to such terms in the Employment Agreement.
W I T N E S S E T H
WHEREAS, the Company and the Executive desire to amend the Employment Agreement to bring the
provisions into compliance with Section 409A of the Internal Revenue Code of 1986, as amended;
NOW, THEREFORE, in consideration of the mutual covenants and conditions hereafter set forth
and for other good and valuable consideration, the Company and the Executive agree as follows:
1. Section 4.2 of the Employment Agreement is hereby amended by adding the following sentence
to the end of said section:
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.
2. Section 7.1 of the Employment Agreement is hereby amended by deleting said section in its
entirety and replacing it with the following:
7.1 Termination by the Company:
(a) If the Company terminates the Executive’s employment without Cause (other than
as result of death or total disability), and such termination constitutes a
“separation from service” under Section 409A of the Internal Revenue Code of 1986,
as amended (“Section 409A”), 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 him an amount equal to his base salary during
the Severance Period (as defined in Section 7.7 below) payable in equal
installments, in accordance with the Company’s normal payroll practices, beginning
with the first payroll date following the 45th day after the Termination
Date, (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).
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(b) If the Company terminates the Executive’s employment for Cause, and such
termination constitutes a “separation from service” under Section 409A, 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).
3. Section 7.2 of the Employment Agreement is hereby amended by deleting said section in its
entirety and replacing it with the following:
7.2 Termination by the Executive:
(a) If the Executive terminates his employment with the Company with Good Reason (as
hereinafter defined), and such termination constitutes a “separation from service”
under Section 409A, 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 him an amount equal to his base salary during the Severance
Period payable in equal installments, in accordance with the Company’s normal payroll
practices, beginning with the first payroll date following the 45th day
after the Termination Date, (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,
and such termination constitutes a “separation from service” under Section 409A, 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).
4. Section 7.3 of the Employment Agreement is hereby amended by deleting said section in its
entirety and replacing it with the following:
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7.3 Expiration of Term, Death or Disability:
(a) If the Executive’s employment is terminated pursuant to Section 3 hereof as a
result of the expiration of the term of this Agreement, and such termination
constitutes a “separation from service” under Section 409A, 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) pay him an amount equal to his base salary
during the Severance Period payable in equal installments, in accordance with the
Company’s normal payroll practices, beginning with the first payroll date following
the 45th day after the Termination Date, (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 6.3 hereof as a
result of his death or total disability, and such termination constitutes a
“separation from service” under Section 409A, 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).
5. Section 7.4 of the Employment Agreement is hereby amended by deleting said section in its
entirety and replacing it with the following:
7.4 Payment Schedule: All payments of base salary under this Section 7 (excluding
wages for services performed prior to the Termination Date) shall be paid in
accordance with the Company’s normal payroll practices, beginning with the first
payroll date following the 45th day after the Termination Date. Payment of wages for
services performed prior to the Termination Date shall be paid in accordance with
the Company’s normal payroll practices without regard to the 45 day delay. Any bonus
amounts due under this Section 7 shall be paid promptly following the Company’s
receipt of its audited financial statements for the year during which the
Termination Date occurs, but in no event later than the 15th day of the third
calendar month of the fiscal year following the fiscal year in which the Termination
Date occurred, and in no event earlier than the 45th day following the Termination
Date. Each payment made in accordance with this Section 7 shall be treated as a
separate payment for purposes of Section 409A, to the extent Section 409A applies to
such payments.
6. Section 7.6 of the Employment Agreement is hereby amended by deleting said section in its
entirety and replacing it with the following:
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7.6 Good Reason: Whenever reference is made in this 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, or (iv) a request by the Company for the
Executive to perform an illegal or unethical act. The Company shall have 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 30 days prior written notice of his intent to
resign for Good Reason (which notice must be provided within 60 days following (x)
the occurrence of the event(s) purported to constitute Good Reason, or (y) 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.
7. Section 7.8 of the Employment Agreement is hereby amended by deleting said section in its
entirety and replacing it with the following:
7.8 Payments Contingent on Release: The Company’s obligation to make any payments of
base salary or bonus under this Section 7 (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, within 45 days following the
Termination Date. No such contingency shall apply to any obligation to provide
benefits under this Section 7.
8. Except as expressly amended by this Amendment, the Employment Agreement shall continue in
full force and effect in accordance with the provisions thereof.
The next page is the signature page.
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IN WITNESS WHEREOF, the parties have executed and entered into this Amendment on the date set
forth above.
| EXECUTIVE: |
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| /s/ Xxxxx X. Xxxxxxx | ||||
| Xxxxx X. Xxxxxxx | ||||
| STUDY ISLAND, LLC |
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| By: | /s/ Xxxxxxx XxXxxx | |||
| Name: | Xxxxxxx XxXxxx | |||
| Title: | CEO | |||
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