AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit 10.36
AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment to Employment Agreement (the “Amendment”), dated as of the 7th day of
August, 2009, is made by and between Cambium-Voyager Holdings, Inc. (the “Corporation”),
Voyager Learning Company (“Voyager”) and Xxx Xxxxxxxx (the “Executive”).
WITNESSETH THAT:
WHEREAS, Voyager and the Executive are parties to an Employment Agreement, originally dated as
of May 7, 2007, and as amended and restated as of April 9, 2009 (as amended, the “Employment
Agreement”); and
WHEREAS, Voyager has entered into that certain Agreement and Plan of Mergers, by and among
Voyager, the Corporation, Vowel Acquisition Corp., VSS-Consonant Holdings II Corp., Consonant
Acquisition Corp., and certain other entities signatory thereto (the “Merger Agreement”);
and
WHEREAS, in connection with the Mergers (as defined in the Merger Agreement), Voyager shall
become a wholly owned subsidiary of the Corporation; and
WHEREAS, subject to and contingent upon the consummation of the Mergers, the Corporation and
the Executive mutually desire the Executive to serve as the Chief Executive Officer of the
Corporation, pursuant to the terms of the Employment Agreement, as amended hereby; and
WHEREAS, as provided in the Merger Agreement, certain amounts shall be deposited into the
Voyager Learning Company Executive and Deferred Benefit Trust (the “Rabbi Trust”) for the
benefit of the Executive, all of which amounts shall be paid from the Rabbi Trust to the Executive
solely to the extent provided for hereunder; and
WHEREAS, subject to and contingent upon the consummation of the Mergers, in order to
facilitate the foregoing, the Corporation, Voyager and the Executive desire to amend the Employment
Agreement in certain respects on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the foregoing premises and for other good and valuable
consideration the receipt of which is hereby acknowledged, the Corporation, Voyager and the
Executive hereby agree as follows:
1. Sections 2 through and including Section 9 of this Amendment are subject to
and contingent upon the consummation of the Mergers, and such sections shall become effective only
as of the Effective Time (as defined in the Merger Agreement). If the Merger Agreement is
terminated for any reason, then this Amendment shall be void ab initio.
2. At the Effective Time, Voyager hereby transfers and assigns the Employment Agreement, as
amended hereby, and all liabilities and obligations thereunder (excluding the payment obligations
referenced in Section 4 and Section 8 below which shall be retained by the Rabbi Trust and Voyager
as provided in such sections), to the Corporation, the Corporation hereby acknowledges and accepts
such transfer and assignment, and the Executive hereby consents to such transfer and assignment.
All references to the “Company” set forth in the Employment Agreement shall mean the Corporation.
Capitalized terms used in this Amendment but not defined herein shall have the meanings set forth
in the Employment Agreement.
3. During the Executive’s employment with Corporation from and after the Effective Time,
pursuant to the Employment Agreement as amended hereby, the Executive shall serve the Corporation
as
its Chief Executive Officer, and shall report directly to the Board of Directors of the
Corporation (the “Board”) and, if any, to the non-executive chairman of the Board. At the
Effective Time, the Executive shall be elected to serve as a member of the Board. Following the
Effective Time and so long as the Executive
remains employed by the Corporation as Chief Executive Officer, the Executive shall be nominated by
the Corporation for election to the Board in accordance with the Corporation’s governance policies
and applicable law; provided, that, Executive’s continuing service as a member of
the Board shall remain subject to election by the Corporation’s stockholders in accordance with the
Corporation’s governance policies and applicable law. In the event the Executive’s employment with
the Corporation shall terminate for any reason whatsoever (including without limitation, at the End
Date, as defined below), the Executive agrees that he shall immediately resign his position as a
member of the Board, and each other position that he then holds with the Corporation or any of its
affiliates. If the Executive shall fail to so resign, then such failure shall constitute Cause, and
the Board shall thereupon have the right to remove the Executive from all such positions without
further action, deed or notice.
4. Notwithstanding Sections 2(b) and 2(c) of the Employment Agreement, with respect to
calendar year 2010 and subsequent years during which the Executive remains employed and eligible
for a bonus, his bonus range shall be 0% to a maximum of 140% of Base Salary, with a target level
of 70% of Base Salary, and all determinations relating to the Executive’s annual bonus
opportunities and payments within such range shall be made by the Compensation Committee of the
Board (the “Committee”) in its sole and absolute discretion, including with respect to any
applicable performance goals, the Board-approved budget for such year, and the Executive’s
achievement of other goals set by the Committee for such year (“Post 2009 Annual Bonus”).
The Executive and the Corporation acknowledge that the Executive’s regular annual bonus in respect
of calendar year 2009 shall be paid by the trustee of the Rabbi Trust from the Rabbi Trust and only
secondarily from Voyager if the Rabbi Trust cannot or does not pay in full (subject to the terms of
the Rabbi Trust). Such payment shall be made at the same time bonuses are paid to other senior
executives, but no later than March 14, 2010. In addition, if both the Effective Time occurs and
the Executive remains continuously employed with the Corporation through the date which is six
months immediately following the Effective Time (the “2009 Bonus Date”), then the Executive
shall be paid from the Rabbi Trust, and only secondarily from Voyager if the Rabbi Trust cannot or
does not pay in full (subject to the terms of the Rabbi Trust), a bonus equal to the excess of
$751,906 over the amount of the regular annual bonus already paid to Executive in respect of
calendar year 2009, if any, as provided in the preceding provisions of this paragraph, which excess
amount shall be paid on the 2009 Bonus Date (the “2009 Bonus”); provided,
however, if the Corporation terminates the Executive without Cause or in the event he
resigns for Good Reason, in either case, before the 2009 Bonus Date, then, the Executive shall be
entitled to payment of the 2009 Bonus upon the Release Effective Date. Notwithstanding the
foregoing to the contrary, the 2009 Bonus shall be forfeited in the event the Executive’s
employment is terminated by the Corporation for Cause, or in the event the Executive resigns from
his employment prior to the 2009 Bonus Date other than for Good Reason (unless, following the fifth
month after the Effective Time, he has complied with the requirements under Section 6 of this
Amendment, except that he must remain continuously employed through such 2009 Bonus Date). The
trustee of the Rabbi Trust shall be provided specific directions to pay, or not pay, the Executive,
the 2009 Bonus in accordance with this paragraph.
5. (a) At the Effective Time, the Executive shall be granted an option to purchase 750,000
shares of Corporation common stock pursuant to the Corporation’s 2009 Equity Incentive Plan. The
terms and conditions of such stock options shall be determined by the Committee in its sole and
absolute discretion; provided, however, that such terms and conditions shall be no
less favorable to the Executive than those set forth on Annex A hereto; and,
provided, further, however, that such options shall vest ratably over four
years beginning on the date of grant, such that the number of vested option shall equal the total
number of options initially granted multiplied by a fraction, the numerator of which is the number
of days employed by the Corporation since the date of grant, and the denominator of which is 1,460.
(b) With respect to the Executive’s stock appreciation right, granted as of April 24, 2007,
relating to 300,000 shares of Voyager common stock (i) rights with respect to 200,000 shares shall
be retained by the Executive and adjusted and converted in accordance with the terms of the Merger
Agreement and (ii) rights with respect to 100,000 shares shall automatically terminate at Effective
Time.
6. As provided under Section 10 of the Employment Agreement, the Executive’s employment with
the Corporation is and shall remain at-will and, accordingly, the Executive may resign, and the
Corporation may terminate the Executive, from his employment at any time and for any or no reason.
The Executive’s rights, benefits and entitlements upon any such termination shall be as set forth
in this Amendment. Notwithstanding the foregoing, the Corporation hereby agrees that in the event
the Executive desires to resign from employment with the Corporation, if and only if (i) the
Executive remains employed with the Corporation, in good standing, as Chief Executive Officer for a
period of at least five (5) months following the Effective Time, (ii) at any time following such
five (5) month period the Executive provides seven (7) months advance notice of such resignation
(the “Notice Period”), and (iii) during the Notice Period, the Executive (X) assists the
Board in any replacement search for his successor and in transitioning his duties to his designated
successor and (Y) continues to perform his duties on behalf of the Corporation in accordance with
the Employment Agreement through the last day of the Notice Period (the “End Date”), the
Executive shall be entitled to receive from the Corporation (A) salary and employee benefits
(including his Post-2009 Annual Bonus with respect to any calendar year that ends during the Notice
Period) subject to and in accordance with the Employment Agreement and (B) the Pro Rata Bonus (as
defined below). The “Pro Rata Bonus” shall be a bonus in respect of the calendar year in
which the End Date occurs. The amount of the Pro Rata Bonus shall equal the amount of Post 2009
Annual Bonus that the Executive would have earned assuming that he remained employed with the
Corporation for the entire calendar year, and based upon the Corporation’s actual performance as
compared to any applicable performance goals pre-established by the Committee, multiplied by a
fraction, the numerator of which is the number of days the Executive worked during such calendar
year, and the denominator of which is equal to 365. Such Pro Rata Bonus shall be paid in accordance
with the Corporation’s bonus plan, and upon the later of (x) the Release Effective Date (as defined
below), and (y) at or about the same time annual bonuses are paid to other executives of the
Corporation, but in no event later than March 15 of the calendar year following the year in which
the End Date occurs. If the foregoing payments and benefits become payable as provided above and
are so paid or provided, no additional payments and benefits shall be owed or paid under Section 7
of this Amendment, or under any severance plan, policy or arrangement of the Corporation.
7. As of the Effective Time, and except as provided in Section 8(b) below, Sections 4 and 5 of
the Employment Agreement (entitled, respectively, “Severance and Change in Control Protection” and
“Regular Severance Benefits”) are hereby terminated, deleted in their entirety, and replaced by the
following provisions; provided, however, that the terms and conditions in Section 6
of the Employment Agreement (entitled, “Conditions to Receiving Severance Benefits”) shall remain
in full force and effect and shall apply with respect to the payments discussed immediately below:
The Executive’s Entitlement to Severance Payments.
If the Executive’s employment terminates either by the Corporation without Cause or by the
Executive’s resignation for Good Reason, in either case, following the Effective Time and on or
prior to December 31, 2010, then the Executive shall be entitled to his Base Salary through, and at
the rate in effect on, the date of termination, plus an amount equal to the greater of (x) 100% of
the Executive’s then-current annualized rate of Base Salary, or (y) the Executive’s Post 2009
Annual Bonus applicable in respect of 2010, at the target level determined in accordance with
Section 4 above, and calculated as if the Executive was employed for all of 2010 (and assuming that
all applicable performance goals were attained at such target level). Such amount shall be paid
upon the later of (x) the Release
Effective Date and (y) at or about the same time annual bonuses in respect of the calendar year in
which the Executive’s termination occurs are paid to other executives of the Corporation but not
later than March 15 after such calendar year.
If the Executive’s employment terminates either by the Corporation without Cause, or by the
Executive’s resignation for Good Reason, in either case on or after January 1, 2011, then the
Executive shall be entitled to the following:
(A) his Base Salary through, and at the rate in effect on, the date of termination, paid in
accordance with the Corporation’s regular payroll schedule; and
(B) an amount equal to 100% of the Post 2009 Annual Bonus for the year in which such termination
occurs, calculated as if the Executive was employed for the entire year in which such termination
occurred (but subject to the Committee’s determination of Executive’s achievement of applicable
performance goals for such year), multiplied by a fraction, the numerator of which is equal to the
number days the Executive worked in the year of termination, and the denominator of which is equal
to 365. Such amount shall be paid upon the later of (x) the Release Effective Date, and (y) at or
about the same time annual bonuses in respect of such year of termination are paid to other
executives of the Corporation (but no later than March 15 of the year immediately following the
year in which such termination occurs); and
(C) payments that in the aggregate equal 100% of the then-current annual Base Salary (the
“Aggregate Amount”), paid as follows: (i) a portion of the Aggregate Amount equal to the maximum
amount that will qualify under the limitation set forth under Treasury Regulation
1.409A-1(b)(9)(iii)(A), shall be paid in equal installments ratably in the form of salary
continuation payments in accordance with the Corporation’s regular payroll schedule for a period of
one year commencing with the first regularly scheduled payroll date immediately following the
Release Effective Date; and (ii) a portion of the Aggregate Amount equal to the excess of the
Aggregate Amount over the sum of the payments described in clause (i), shall be paid in a lump sum
on the 5th business day immediately following the Release Effective Date (but no later than March
15 of the year immediately following the year in which such termination occurs).
In addition, if the Executive’s employment terminates either by the Corporation without Cause or on
account of Executive’s resignation for Good Reason, then the Executive will be entitled, subject to
his continued payment of any required premiums, to continued participation for eighteen months in
all medical, dental and vision plans which cover him (including eligible dependents) upon the same
terms and conditions (except for the requirements of his continued employment) in effect for active
employees of the Corporation. If Executive obtains other employment that offers substantially
similar or improved benefits as to any particular medical, dental or vision plan, such continuation
of coverage by the Corporation for such similar or improved benefit under such plan under this
paragraph will cease. The continuation of health benefits under this subparagraph shall reduce and
count against Executive’s right under the Consolidated Omnibus Budget Reconciliation Act of 1985,
as amended (“COBRA”). To the extent that such post-employment coverage cannot be provided to
Executive (including his eligible dependents) under any such plan at the same cost as in effect for
active employees of the Corporation (either because the plan does not permit the foregoing coverage
for
terminated employees on such terms or such post-employment coverage would have material adverse tax
consequences to the Executive) but that coverage under COBRA is available, then the Executive will
be required to pay the applicable premium for such coverage under COBRA but shall be reimbursed by
the Corporation each month for the amount of any monthly premium cost paid by the Executive in
excess of the cost of the coverage applicable to active employees.
In the event (i) the Executive is terminated by the Corporation for Cause at anytime during his
employment, or (ii) the Executive resigns other than for Good Reason (unless, following the fifth
month after the Effective Time, he has complied with the requirements of Section 6 of this
Amendment), then the Executive shall: (a) only be entitled to his Base Salary through the date of
termination; (b) not be entitled to any further payments under his Employment Agreement or this
Amendment; and (c) all outstanding vested and unvested stock options and equity compensation awards shall immediately and automatically
terminate and be forfeited.
8. (a) Retention Bonus. In addition to the other payments provided for in the
Employment Agreement and this Amendment, as provided for under the Rabbi Trust, if both the
Effective Time occurs and the Executive remains continuously employed with the Corporation through
the first anniversary of the Effective Time, then the Executive shall be paid, from the Rabbi Trust
and only secondarily from Voyager if the Rabbi Trust cannot or does not pay in full (subject to the
terms of the Rabbi Trust), a special payment equal to $268,538 which shall be paid on such first
anniversary (the “Retention Bonus”); provided, however, if the Corporation
terminates the Executive without Cause or in the event he resigns for Good Reason, in either case,
before such anniversary, then, in addition to any other rights under this Amendment, the Executive
shall be entitled to payment of the Retention Bonus upon the Release Effective Date.
Notwithstanding the foregoing to the contrary, the Retention Bonus shall be forfeited in the event
the Executive’s employment is terminated by the Corporation for Cause, or in the event the
Executive resigns from his employment other than for Good Reason (unless, following the fifth month
after the Effective Time, he has complied with the requirements of Section 6 of this Amendment,
except that he must remain continuously employed through such first anniversary).
(b) Change of Control Bonus. In addition to the other payments provided for in the
Employment Agreement and this Amendment, as provided for under Section 4(a) of the Agreement and as
amended hereby, if both the Effective Time occurs and the Executive remains continuously employed
with the Corporation through the date which is six months immediately following the Effective Time
(the “Six Month Date”), then the Executive shall be paid, from the Rabbi Trust and only
secondarily from Voyager if the Rabbi Trust cannot or does not pay in full (subject to the terms of
the Rabbi Trust), a special payment equal to $805,612 which shall be paid on the Six Month Date
(the “Change of Control Bonus”); provided, however, if the Corporation
terminates the Executive without Cause or in the event he resigns for Good Reason, in either case,
before Six Month Date, then, in addition to any other rights under this Amendment, the Executive
shall be entitled to payment of the Change of Control Bonus upon the Release Effective Date.
Notwithstanding the foregoing to the contrary, the Change of Control Bonus shall be forfeited in
the event the Executive’s employment is terminated by the Corporation for Cause, or in the event
the Executive resigns from his employment other than for Good Reason (unless, following the fifth
month after the Effective Time, he has complied with the requirements of Section 6 of this
Amendment, except that he must remain continuously employed through such Six Month Date). The
Executive’s right to receive a tax gross-up payment as provided under Section 7 of the Employment
Agreement, as amended hereby, shall not apply to, or in respect of, the Change of Control Bonus.
(c) Directions to Trustee. With respect to the payments discussed in Section 8(a) and
8(b) above, the trustee of the Rabbi Trust shall be provided specific directions to pay, or not
pay, the Executive, such payments in accordance with this paragraph.
9. Notwithstanding anything in this Amendment or in the Employment Agreement to the contrary,
any payments (other than regularly scheduled Base Salary or other amounts earned but not yet paid,
including without limitation expense reimbursements and accrued but unused vacation pay in
accordance with the Employer’s normal practices) due to the Executive following a termination of
Executive’s employment (except in the case of Executive’s death or Disability), the Corporation’s
obligation to make any such payment shall be conditioned upon the Executive executing and
delivering to the Corporation a general release, in form annexed to the Employment Agreement as
Exhibit B, and such release becoming fully effective and irrevocable under applicable law;
provided, however, if Executive shall fail to deliver such release within 30 days
of termination, then he shall no longer be entitled to such payments. The date on which such
release becomes fully effective and irrevocable under applicable law shall be referred to as the
“Release Effective Date”. This Section 9 shall be subject to the provisions of Section 12
of the Employment Agreement which remain in effect for all other purposes of this Amendment and the
Employment Agreement.
10. Effective immediately following the Effective Time, other than with respect to any
transactions contemplated by the Merger Agreement, Section 7 of the Employment Agreement is hereby
amended and restated in its entirety and replaced with the following, with the intention that this
provision shall replace and supersede the tax gross-up payment for golden parachute excise taxes
under the Multi-Year Stock Option Grant dated February 4, 2004:
If any payments or benefits, whether pursuant to the terms of this Amendment, the Employment
Agreement or any other plan, arrangement or agreement of the Corporation or any person affiliated
with the Corporation (collectively, the “Payments”), received or to be received by the Executive
will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code
(or any similar tax that may hereafter be imposed), then the Corporation shall pay to the Executive
an additional amount (the “Gross-Up Payment”). The Gross-Up Payment shall be an amount which, when
combined with the net amount of the Payments retained by the Executive (after giving effect to the
application of the Excise Tax and all other applicable taxes on the Payments) will result in the
net amount received by the Executive equaling the net amount of the Payments the Executive would
have received absent application of the Excise Tax. The process for calculation of the Excise Tax,
determining the amount of any Gross-Up Payment and other procedures relating to this Section 10 are
as follows:
(a) Subject to paragraph (c) below, all determinations required to be made under this
provision, including whether a Gross-Up Payment is required and the amount of such Gross-Up
Payment, shall be made by the Auditor selected in accordance with paragraph (b) below. The Auditor
shall provide detailed supporting calculations both to the Corporation and the Executive within
thirty (30) business days after the event giving rise to the application of Section 4999 of the
Internal Revenue Code or such earlier time as requested by the Corporation. If the Auditor
determines that no Excise Tax is payable to the Executive, it shall furnish the Executive with a
written report indicating that he has substantial authority not to report any Excise Tax on his
federal income tax return. Any determination by the Auditor shall be binding upon the Corporation
and the Executive. Any Gross-Up Payment, as determined pursuant to this provision shall be paid by
the Corporation to the Executive (or to the appropriate taxing authority on Executive’s behalf)
when the applicable tax is due. As a result of the uncertainty in the application of Section 4999
of the Code at the time of the initial determination by the Auditor hereunder, it is possible that
Gross-Up Payments which will not have been made by the Corporation should have been made
(“Underpayment”), consistent with the calculations required to be made hereunder. In the event that
the Corporation exhausts its remedies pursuant to paragraph (c) below and the Executive thereafter
is required to make a payment or additional payment of any Excise Tax, the Auditor shall determine
the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid
by the Corporation to or for the benefit of the Executive, but in no event later than thirty (30)
days after a demand for payment by
the Internal Revenue Service to the Executive. In no event shall the Gross-Up Payment or the
Underpayment be made later than the end of the Executive’s taxable year next following the
Executive’s taxable year in which the related taxes are remitted to the taxing authority.
(b) The Auditor shall be the Corporation’s then current public accounting firm. The
Corporation shall be responsible for paying any applicable Auditor’s fee.
(c) The Executive shall notify the Corporation in writing of any claim by the Internal Revenue
Service that, if successful, would require the payment by the Corporation of the Gross-Up Payment.
Such notification shall be given as soon as practicable but no later than fifteen (15) business
days after the Executive knows of such claim and shall apprise the Corporation of the nature of
such claim and the date on which such claim is requested to be paid. The Executive shall not pay
such claim prior to the expiration of the period ending on the day prior to the day that any
payment of taxes with respect to such claim is due or the thirty day period following the date on
which the Executive gives such notice to the Corporation, whichever period is shorter. If the
Corporation notifies the Executive in writing prior to the expiration of such period that it
desires to contest such claim, the Executive shall (i) give the Corporation any information
reasonably requested by the Corporation relating to such claim, (ii) take such action in connection
with contesting such claim as the Corporation shall reasonably request in writing from time to
time, including, without limitation, accepting legal representation with respect to such claim by
an attorney reasonably selected by the Corporation, (iii) cooperate with the Corporation in good
faith in order effectively to contest such claim, and (iv) permit the Corporation to participate in
any proceedings relating to such claim; provided, however, that the Corporation shall bear and pay directly all costs
and expenses (including attorneys fees and any additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax
basis, for any Excise Tax or other related tax, including interest and penalties with respect
thereto, imposed as a result of such representation and payment of costs and expenses or reimburse
the Executive on an after tax basis for tax preparation expenses associated with the preparing;
refiling; extensions; or other actions taken by the Executive’s tax preparer to comply with these
instructions or the Corporation’s subsequent instructions. Any payment or reimbursement of costs
and expenses shall be paid within 10 business days after they are incurred, but in any event no
later than the end of the Executive’s taxable year following the Executive’s taxable year in which
the taxes that are the subject of the contest are remitted to the taxing authority, or where as a
result of such contest no taxes are remitted, the end of the Executive’s taxable year following the
Executive’s taxable year in which the audit is completed or there is a final and nonappealable
settlement or other resolution of the litigation. Any Excise Taxes or income taxes imposed as a
result of such representation and payment of costs and expenses shall be reimbursed to the
Executive within 10 business days after they are incurred but in any event no later than the end of
the Executive’s taxable year next following the Executive’s taxable year in which the Executive
remits the related taxes. Without limitation on the foregoing provisions of this paragraph (c), the
Corporation shall control all proceedings taken in connection with such contest and, at its sole
option, may pursue or forego any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect to such claim and may, at its sole option, either
direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any
permissible manner, and the Executive agrees to prosecute such contest to a determination before
any administrative tribunal, in a court of initial jurisdiction and in one or more appellate
courts, as the Corporation shall determine; provided, however, that if the Corporation directs the
Executive to pay such claim and xxx for a refund, the Corporation shall immediately distribute the
amount of such payment to the Executive and shall indemnify and hold the Executive harmless, on an
after-tax basis, from any Excise Tax and other related tax, including interest or penalties with
respect thereto, imposed with respect to such distribution or with respect to any imputed income
with respect to such
distribution; and further provided that any extension of the statute of limitations relating to
payment of taxes for the taxable year of the Executive with respect to which such contested amount
is claimed to be due is limited solely to such contested amount. Any Excise Taxes or income taxes
imposed as a result of such distribution shall be reimbursed to the Executive within 10 business
days after they are incurred but in any event no later than the end of the Executive’s taxable year
next following the Executive’s taxable year in which the Executive remits the related taxes.
Furthermore, the Corporation’s control of the contest shall be limited to issues with respect to
which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle
or contest, as the case may be, an other issue raised by the Internal Revenue Service or any other
authority.
(d) If, after the receipt by the Executive of a Gross-Up Payment for any reason, including but
not limited to a distribution by the Corporation pursuant to paragraph (c) above, the Executive
becomes entitled to receive any refund with respect to any such payment, the Executive shall
(subject to the Corporation’s complying with its obligations under paragraph (c)), promptly pay to
the Corporation the amount of such refund (together with any interest paid or credited thereon
after taxes applicable thereto).
11. Section 9 of the Employment Agreement is clarified such that any set off described in
clause (ii) of the last sentence thereof shall only be made against amounts that are not subject to
Section 409A of the Internal Revenue Code unless such set off would not result in accelerated or
additional taxes under said Section 409A.
12. The parties hereto shall, simultaneously with the execution of this Amendment, execute the
Amendment to Employee Invention, Assignment, Confidentiality and Restrictive Covenant Agreement, by
and between Voyager (formerly known as ProQuest Company) and the Executive, dated as of April 2,
2003, in the form set forth as Annex B hereto.
13. Except as expressly modified herein, the Employment Agreement shall otherwise remain in
full force and effect, and is hereby ratified by the Corporation and Voyager.
14. This Amendment may be executed in counterparts, each of which shall constitute an
original, but both of which together shall constitute one and same instrument.
15. This Amendment shall be governed by, and construed and interpreted in accordance with, the
laws of the State of New York, without giving effect to its principles of conflicts of laws.
IN WITNESS WHEREOF, the parties have signed this Amendment to Employment Agreement as of the
day and year set forth above.
| VOYAGER LEARNING COMPANY |
||||
| By: | /s/ Xxxx X. Xxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxx | |||
| Title: | Senior Vice President, General Counsel and Secretary | |||
| CAMBIUM-VOYAGER HOLDINGS, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | President | |||
| /s/ Xxx Xxxxxxxx | ||||
| XXX XXXXXXXX | ||||
ANNEX A
AMENDMENT TO XXX XXXXXXXX EMPLOYMENT AGREEMENT
TERMS AND CONDITIONS OF OPTION GRANTS AS REFERENCED IN SECTION 5 OF THE
AMENDMENT
AMENDMENT
ANNEX B
AMENDMENT TO EMPLOYEE INVENTION, ASSIGNMENT, CONFIDENTIALITY AND
RESTRICTIVE COVENANT AGREEMENT
RESTRICTIVE COVENANT AGREEMENT
This Amendment to Employee Invention, Assignment, Confidentiality and Restrictive Covenant
Agreement (the “Amendment”), dated as of the 7th day of August, 2009, is made by and
between Cambium-Voyager Holdings, Inc. (the “Corporation”), Voyager Learning Company,
formerly known as ProQuest Company (“Voyager”) and Xxx Xxxxxxxx (the “Executive”).
WITNESSETH THAT:
WHEREAS, Voyager and the Executive are parties to that certain Employee Invention, Assignment,
Confidentiality and Restrictive Covenant Agreement dated as of April 2, 2003 (the “Inventions
Agreement”); and
WHEREAS, Voyager has entered into that certain Agreement and Plan of Mergers, by and among
Voyager, the Corporation, Vowel Acquisition Corp., VSS-Consonant Holdings II Corp., Consonant
Acquisition Corp., and certain other entities signatories thereto (the “Merger Agreement”);
and
WHEREAS, in connection with the Mergers (as defined in the Merger Agreement), Voyager shall
become a wholly owned subsidiary of the Corporation; and
WHEREAS, subject to and contingent upon the consummation of the Mergers, the Corporation,
Voyager and the Executive desire to amend the Inventions Agreement on the terms and conditions set
forth in this Amendment.
NOW THEREFORE, in consideration of the foregoing premises and for other good and valuable
consideration the receipt of which is hereby acknowledged, the Corporation, Voyager and the
Executive hereby agree as follows:
1. Sections 2 through and including Section 5 of this Amendment are subject to
and contingent upon the consummation of the Mergers, and such sections shall become effective only
as of the Effective Time (as defined in the Merger Agreement). If the Merger Agreement is
terminated in accordance with its terms, then this Amendment shall be void ab initio.
2. Voyager hereby transfers and assigns the Inventions Agreement, as amended hereby, and all
rights thereunder, to the Corporation, the Corporation hereby acknowledges and accepts such
transfer and assignment, and the Executive hereby consents to such transfer and assignment. All
references to the “ProQuest” set forth in the Inventions Agreement shall mean, collectively, the
Corporation and Voyager.
3. The Executive hereby confirms and agrees that no items have been, or are now required to
be, listed on Exhibit A to the Inventions Agreement.
4. Section 4 of the Inventions Agreement is hereby amended to provide that each and every
reference to a “twelve (12) month” period set forth in Section 4 of the Inventions Agreement,
including such references in Sections 4.1, 4.2, 4.3 and 4.6, shall be replaced with a reference to
a “twenty-four (24) month” period.
5. Section 5.7 of the Inventions Agreement is hereby amended to provide that the reference to
“Michigan” shall be replaced with a reference to “New York.”
6. Except as expressly modified herein, the Inventions Agreement shall otherwise remain in
full force and effect, and is hereby ratified by the Executive.
7. This Amendment may be executed in counterparts, each of which shall constitute an original,
but both of which together shall constitute one and same instrument.
8. This Amendment shall be governed by, and construed and interpreted in accordance with, the
laws of the State of Michigan, without giving effect to its principles of conflicts of laws.
IN WITNESS WHEREOF, the parties have signed this Amendment to Employee Invention, Assignment,
Confidentiality and Restrictive Covenant Agreement as of the day and year set forth above.
| VOYAGER LEARNING COMPANY |
||||
| By: | /s/ Xxxx X. Xxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxx | |||
| Title: | Senior Vice President, General Counsel and Secretary | |||
| CAMBIUM-VOYAGER HOLDINGS, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | President | |||
| /s/ Xxx Xxxxxxxx | ||||
| XXX XXXXXXXX | ||||
