Exhibit 10.4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), is made and entered into this
31st day of January, 2001, by and between Xxxxx X. Xxxxxx (hereinafter referred
to as "Employee"), an individual residing at 0000 Xxxxxxxxx Xxxxx, Xxxx Xxxx,
Xxxx, and PLATO Learning, Inc., a Delaware Corporation (hereinafter referred to
as "Company").
WITNESSETH
WHEREAS, pursuant to that certain Agreement and Plan of Merger (as may be
amended, restated, supplemented or otherwise modified from time to time, the
"Merger Agreement"), dated as of the date hereof, among the Company, WILC
Acquisition Corporation, a Delaware corporation and wholly-owned subsidiary of
the Company ("WILC"), and Wasatch Interactive Learning Corporation, a Washington
corporation ("Wasatch"), pursuant to which the parties thereto have agreed to
merge (the "Merger") WILC with and into Wasatch, with Wasatch as the surviving
entity. Unless otherwise defined herein, each capitalized term used herein shall
have the meaning assigned thereto in the Merger Agreement;
WHEREAS, Wasatch and Employee entered into an Employment Agreement dated as
of January 17, 2000, as amended by that certain Amendment dated as of November
8, 2000 (the "Prior Agreement");
WHEREAS, Wasatch, as a wholly-owned subsidiary of the Company following the
Merger, and the Employee wish to restate the Prior Agreement as provided herein.
This Agreement shall become effective and shall supersede in its entirety the
Prior Agreement upon the consummation of the Merger;
WHEREAS, the execution and delivery of this Agreement by Employee and the
Company is a condition precedent to the obligations of the parties to the Merger
Agreement;
WHEREAS, the Company is in the business of developing and marketing
computer-based, interactive, self-paced instructional systems used in a wide
variety of settings;
WHEREAS, the Company desires to retain the services of Employee and
Employee desires to be employed by the Company;
WHEREAS, the Company is acquiring Wasatch pursuant to the Merger in
accordance with the terms and conditions of the Merger Agreement;
WHEREAS, by virtue of the Employee's being a shareholder of and employed by
Wasatch and continued employment by the Company, the Employee is familiar with
confidential and proprietary information and will obtain and become familiar
with certain additional confidential and proprietary information relating to the
Company and its subsidiaries (including Wasatch) and its business and assets;
WHEREAS, the Company desires by this Agreement to protect the goodwill and
all proprietary rights and information of the Company and its subsidiaries
(including Wasatch).
NOW THEREFORE, in consideration of the mutual promises and covenants herein
set forth, and for other valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1.00 - EMPLOYMENT
1.01 EMPLOYMENT. The Company shall hereby employ the Employee as Vice
President of Development of Wasatch upon the terms and conditions hereinafter
set forth and the Employee accepts such offer and agrees to abide by the terms
and conditions hereof, and the terms and conditions of the Company's and its
affiliated corporations' Articles of Incorporation, Bylaws and employee policy
manuals, if any.
1.02 POSITION AND DUTIES
A. SERVICE WITH THE COMPANY. The Employee shall perform all duties for
Wasatch which the Vice President of Development of a business similar to
Wasatch's business typically performs, including the supervision of all
operations and activities, as well as all other duties assigned to her from time
to time by the President of Wasatch for the period and upon the terms and
conditions set forth in this Agreement. The Employee's duties as Vice President
of Development of Wasatch shall include the development of strategic plans for
Wasatch's technology and business opportunities with a view toward growing
Wasatch's revenues and otherwise enhancing Wasatch's business. The Employee
shall not be deemed to be responsible for any principal business unit, division
or function of the Company. Unless otherwise provided herein, the Employee shall
not be responsible for performing any policy-making decisions or functions of
the Company or Wasatch.
B. PERFORMANCE OF DUTIES. The Employee shall serve the Company and Wasatch
faithfully and to the best of her ability and shall devote her best efforts,
attention and energies to the business and affairs of the Company and Wasatch
during the Term (as hereafter defined). The Employee hereby confirms that she is
under no contractual commitments inconsistent with the obligations set forth in
this Agreement and that, during the Term, she will not render or perform
services, or enter into any contract to do so, for any other Person (as
hereafter defined) which are inconsistent with the provisions of this Agreement.
For purposes hereof, the term "Person" shall mean an individual, partnership,
limited partnership, corporation, limited liability company, association, joint
stock company, trust, joint venture or unincorporated organization or the United
States of America or any other nation, any state or other political subdivision
thereof, or any entity exercising Employee, legislative, judicial, regulatory or
administrative functions of government.
ARTICLE 2.00 - TERM
2.01 The term of the Employee's employment hereunder shall be for an
initial term commencing on the date of the consummation of the Merger and ending
on October 31, 2002, unless otherwise terminated in accordance with the terms
hereof (the "Initial Term"). The Initial
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Term shall be comprised of two periods: the first such period shall commence on
the date of the consummation of the Merger and end on October 31, 2001 ("Period
1"); and the second such period shall commence on November 1, 2001 and end on
October 31, 2002 ("Period 2"). The Initial Term may be extended upon mutual
agreement of the parties hereto (the "Additional Term"; together with the
Initial Term, the "Term"), in each case subject to earlier termination as
hereafter specified.
2.02 This Agreement shall not be effective until the Effective Time (as
defined in the Merger Agreement). In the event the Merger Agreement is
terminated for any reason, this Agreement shall be null and void without
limitation.
ARTICLE 3.00 - COMPENSATION
3.01 SALARY. During the Term of this Agreement, and subject to the
provisions contained herein, Company shall pay Employee for all services to be
rendered by Employee an annual salary in the amount of $150,000 (the "Base
Salary"). The Base Salary shall be payable in equal installments every two (2)
weeks, or at such other intervals consistent with Company practices as in effect
from time to time for all salaried employees. The Base Salary for any partial
month during the term hereof shall be paid on a pro rata basis based upon the
actual number of business days worked during such partial month.
3.02 BONUS. At the end of each of Period 1 and Period 2, the Employee
(assuming she is still employed hereunder) shall be eligible for bonuses as set
forth herein.
A. BONUS CALULATION. At the end of each of Period 1 and Period 2:
(i) Wasatch and the Company shall jointly prepare calculations of
the following:
(a) the total revenue derived by Wasatch for such period
(for each such period, the "Wasatch Revenue"); and
(b) the operating profit derived as a result of Wasatch'
operations for such period (for each such period, the "Wasatch
Profit"); and
(ii) The Company shall prepare a calculation of the total revenue
derived by the Company (determined on an unconsolidated basis) from
Wasatch products and services for such period (for each such period,
the "Company Revenue").
(iii) The appropriate designation of revenue deemed to be Wasatch
Revenue and Company Revenue shall be mutually agreeable to the Company
and the President of Wasatch based upon past practices of each of the
Company and Wasatch and as heretofore agreed upon by the parties
hereto.
B. BONUS PAYMENT.
(i) In the event that the Wasatch Revenue, Wasatch Profit and
Company Revenue standards set forth below are met at the end of Period
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1 (collectively the "Period 1 Bonus Targets"), the Company as promptly
as practicable shall pay the Employee an amount equal to the
corresponding bonus amount and grant to the Employee options to
purchase the corresponding number of shares of common stock, $0.01 par
value, of the Company ("Common Stock") in accordance with the Stock
Option Agreement (the "Stock Option Agreement") between the Company
and the Employee attached as Exhibit A hereto (collectively, the
"Period 1 Bonus Payment").
Period 1 Bonus Targets
Wasatch Revenue for Period 1 Cash Options for
Bonus Common Stock
Equal to or greater than $6,000,000 $27,000 10,500 shares
Equal to or greater than $5,500,000 but less than $6,000,000 $24,000 10,500 shares
Equal to or greater than $5,000,000 but less than $5,500,000 $21,000 10,500 shares
Equal to or greater than $4,500,000 but less than $5,000,000 $18,000 9,000 shares
Less than $4,500,000 $0 0 shares
Wasatch Profit for Period 1
Equal to or greater than $1,200,000 $27,000 10,500 shares
Equal to or greater than $1,100,000 but less than $1,200,000 $24,000 10,500 shares
Equal to or greater than $1,000,000 but less than $1,100,000 $21,000 10,500 shares
Equal to or greater than $900,000 but less than $1,000,000 $18,000 9,000 shares
Less than $900,000 $0 0 shares
Company Criteria for Period 1
Equal to or greater than $2,500,000 $27,000 9,000 shares
Equal to or greater than $2,250,000 but less than $2,500,000 $24,000 9,000 shares
Equal to or greater than $2,000,000 but less than $2,250,000 $18,000 9,000 shares
Equal to or greater than $1,800,000 but less than $2,000,000 $15,000 7,500 shares
Less than $1,800,000 $0 0 shares
(ii) In the event that the Wasatch Revenue, Wasatch Profit and
Company Revenue standards set forth below are met at the end of Period
2 (collectively the "Period 2 Bonus Targets"), the Company as promptly
as practicable shall pay the Employee an amount equal to the
corresponding bonus amount and grant to the Employee options to
purchase the corresponding number of shares of Common Stock in
accordance with the Stock Option Agreement or any such subsequent
stock option agreement (collectively, the "Period 2 Bonus Payment").
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Period 2 Bonus Targets
Wasatch Revenue for Period 2 Cash Options for
Bonus Common Stock
Equal to or greater than $6,000,000 $27,000 10,500 shares
Equal to or greater than $5,500,000 or less than $6,000,000 $24,000 10,500 shares
Equal to or greater than $5,000,000 or less than $5,500,000 $21,000 10,500 shares
Equal to or greater than $4,500,000 or less than $5,000,000 $18,000 9,000 shares
Less than $4,500,000 $0 0 shares
Wasatch Profit for Period 2
Equal to or greater than $1,200,000 $27,000 10,500 shares
Equal to or greater than $1,100,000 or less than $1,200,000 $24,000 10,500 shares
Equal to or greater than $1,000,000 or less than $1,100,000 $21,000 10,500 shares
Equal to or greater than $900,000 or less than $1,000,000 $18,000 9,000 shares
Less than $900,000 $0 0 shares
Company Criteria for Period 2
Equal to or greater than $2,500,000 $27,000 9,000 shares
Equal to or greater than $2,250,000 or less than $2,500,000 $24,000 9,000 shares
Equal to or greater than $2,000,000 or less than $2,250,000 $18,000 9,000 shares
Equal to or greater than $1,800,000 or less than $2,000,000 $15,000 7,500 shares
Less than $1,800,000 $0 0 shares
(iii) Except as set forth in Article IV, the Employee shall not
be entitled to any bonus payments pursuant to this Article III for any
period during which her employment hereunder terminates for any
reason.
(iv) In the event that the Effective Time shall be later than
April 1, 2001, and such delay shall materially affect the Employee's
ability to meet the Period 1 Bonus Targets, the Period 1 Bonus Targets
shall be adjusted by mutual agreement of the Company and the Employee.
3.03 OPTIONS. Any options to be granted to the Employee pursuant to this
Article 3 shall be approved by the Company's Board of Directors and shall be
issued pursuant to the Stock Option Agreement under the PLATO Learning Inc. 2000
Stock Incentive Plan, a copy of which is attached as Exhibit B hereto or any
such subsequent plan.
3.04 BENEFITS. During the Term, the Employee shall be entitled to benefits
that are at least equivalent to the benefits provided currently to the Employee
by Wasatch.
3.05 MERGER. If the Merger Agreement is terminated for any reason, the
Employee shall not be entitled to any compensation hereunder without limitation.
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ARTICLE 4.0 COMPENSATION UPON THE TERMINATION OF THE EMPLOYEE'S EMPLOYMENT
4.01 If prior to the end of Period 1 the Employee's services hereunder are
terminated:
A. by the Company for any reason other than pursuant to Section
6.01, or by the Employee for Good Reason (as hereafter defined), the
Employee shall be entitled to her Base Salary for each of Period 1 (or
any pro rata portion thereof) and Period 2 and any Period 1 Bonus
Payment, subject to the terms herein; or
B. by the Employee for any reason other than for Good Reason or
by the Company pursuant to Section 6.01, the Employee shall not be
entitled to her Base Salary for either Period 1 (or any pro rata
portion thereof) or Period 2, or any other compensation, subject to
the terms herein.
4.02 If after the end of Period 1 but prior to the end of Period 2 the
Employee's services hereunder are terminated:
A. by the Company for any reason other than pursuant to Section
6.01, or by the Employee for Good Reason, the Employee shall be
entitled to her Base Salary for the one-year period following the date
of any such termination and if such termination occurs after July 31,
2002, she shall also be entitled to her pro rata share of any Period 2
Bonus Payment; or
B. by the Employee for any reason other than for Good Reason, or
by the Company pursuant to Section 6.01, the Employee shall not be
entitled to any other compensation, subject to the terms herein.
Any such termination of the Employee's services hereunder must be preceded by
sixty (60) days written notice to the non-terminating party in accordance with
the terms herein.
4.03 A termination shall be deemed to be for "Good Reason" if (i) it
follows a material reduction of the Employee's duties and responsibilities or a
permanent change in the Employee's duties and responsibilities, in any case,
which are materially inconsistent with the duties and responsibilities of the
Employee then in effect, (ii) the Employee is required to relocate the office
from which she performs her responsibilities to an office that is located more
than 60 miles outside of the City of Salt Lake City, (iii) it follows a material
breach of this Agreement (which shall include, without limitation, a reduction
in the Employee's annual base salary) by the Company which is not curable, or if
curable, is not cured within 30 days of written notice by the Employee
(provided, that any such notice also must include a statement that failure to
cure any such breach may result in a termination by the Employee of her
employment for Good Reason) or (iv) the Board of Directors of the Company
otherwise determines that such termination is for "Good Reason" under the
circumstances then prevailing.
4.04 If the Employee's services are terminated for any reason, the Employee
also shall be entitled to (a) any benefits mandated under the Consolidated
Omnibus Budget Reconciliation Act of 1985 ("COBRA") or required under the terms
of any death, insurance or retirement plan, program or agreement provided by the
Company and to which the Employee is a party or in
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which the Employee is a participant, including, but not limited to, any
short-term or long-term disability plan or program, if applicable, and (b) any
reimbursement owed to her by the Company in accordance with Section 3.04 for
expenses incurred through the date of termination.
ARTICLE 5.00 - COVENANTS
5.01 COVENANT NOT TO COMPETE.
A. The Employee acknowledges that the Company and its
subsidiaries are engaged in highly competitive businesses and have a
compelling business interest in preventing unauthorized use or
disclosure of Confidential Information, that the Company and its
subsidiaries have highly valuable and long-term customer relationships
which they have a legitimate interest in protecting, and that the
Employee has had and may continue to have access to those customers
and has had and will have access to Confidential Information.
Accordingly, the Employee agrees that, during the Non-Compete Period
(as defined below), she shall not engage or participate as an owner,
principal, partner, officer or director in any business which is
competitive with the business of the Company and its subsidiaries as
conducted (or contemplated to be conducted) on the date of termination
of her employment, including, without limitation, such business that
is conducted in any geographic area in which the Company's and its
subsidiaries, business is conducted (or contemplated to be conducted);
provided, however, that ownership by the Employee, as a passive
investment, of less than five percent (5%) of the outstanding shares
of capital stock of any corporation listed on a national securities
exchange or publicly traded in the over-the-counter market shall not
constitute a breach of this Section 5.01.
B. "Non-Compete Period" means the period commencing on the date
of the consummation of the Merger and shall be in full force and
effect at all times the Employee is employed by the Company without
limitation and shall end in accordance with the terms hereof.
(i) If at any time the Employee's services hereunder are
terminated by the Employee for Good Reason, the Non-Compete
Period shall end on the date of such termination.
(ii) If the Employee's services hereunder are terminated by
the Company for any reason prior to the end of Period 1, the
Non-Compete Period shall end at the end of Period 2.
(iii) If the Employee's services hereunder are terminated by
the Employee for any reason other than for Good Reason prior to
the end of Period 1, the Non-Compete Period shall end twelve (12)
months after such date of termination.
(iv) If the Employee's services hereunder are terminated by
the Company for any reason after the end of Period 1 but prior to
the end of Period 2,
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the Non-Compete Period shall end at twelve (12) months after such
date of termination.
(v) If the Employee's services hereunder are terminated by
the Employee for any reason other than for Good Reason after the
end of Period 1 but prior to the end of Period 2, the Non-Compete
Period shall end on the date of such termination.
C. The Employee further agrees that during the Non-Compete Period, she
will not, directly or indirectly, assist or encourage any other Person in
carrying out, directly or indirectly, any activity that would be prohibited
by the above provisions of this Section 5.01 if such activity were carried
out by the Employee, either directly or indirectly, and in particular the
Employee agrees that she will not, directly or indirectly, induce or assist
any employee or former employee of the Company or any of its subsidiaries
(including Wasatch) to carry out, directly or indirectly, any such
activity.
5.02 COVENANT FOR PROTECTION OF PROPRIETARY INFORMATION.
A. The Employee recognizes and acknowledges that: (a) in the course of
the Employee's employment by Wasatch she has obtained Confidential
Information (as hereafter defined) and that in the course of her employment
hereunder she will acquire additional Confidential Information; (b) the
Confidential Information is the property of the Company and its
subsidiaries; (c) the use, misappropriation or disclosure of the
Confidential Information would constitute a breach of trust and could cause
irreparable injury to the Company; and (d) it is essential to the
protection of the Company's goodwill and to the maintenance of the
Company's competitive position that the Confidential Information be kept
secret and that the Employee not disclose the Confidential Information to
others or use the Confidential Information to the Employee's own advantage
or the advantage of others or in any way to disadvantage the Company.
"Confidential Information" means information, whether or not reduced to
writing, and whether in paper, electronic, digital, analog or other format,
relating to the past, present or planned business of the Company and its
subsidiaries (including Wasatch), which has not been made generally known
to the public or the industry by the Company or its subsidiaries (including
Wasatch), including, without limitation, trade secrets, know-how,
inventions, new product and product development information, research
results, marketing and sales programs, customer and supplier information,
financial data, employee records, cost information, pricing information,
sales and marketing strategies, business systems, computer systems,
software, software systems and techniques, the identity of customers, all
information received under an obligation of confidentiality to customers,
and all information generated for customers
B. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. The Employee agrees to
hold and safeguard the Confidential Information in trust for the Company,
its successors and assigns and agrees that she shall not, without the prior
written consent of the Board, use for the Employee's own benefit or
purposes or misappropriate or disclose or make available to any Person for
use outside the Company's organization at any time, either during her
employment with the Company or subsequent to the termination of her
employment with the Company, for any reason, including, without limitation,
termination by the Company for cause or without cause, any of the
Confidential Information or any copy, notes or item embodying
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Confidential Information, whether or not developed by the Employee, except
(a) as required in the performance of the Employee employment duties and as
authorized by the Company and (b) to the extent that such information (i)
is or becomes generally available to the public or the industry other than
as a result of a disclosure by the Employee in violation of this Agreement,
or (ii) is required to be disclosed pursuant to a court order or other
legal process (provided the Employee gives the Company notice of such
obligation when the Employee receives notice of such obligation and prior
to any disclosure pursuant to such obligation affords the Company the
opportunity and cooperates with the Company in any efforts by the Company
to limit the scope of such obligation and/or to obtain confidential
treatment of any material disclosed pursuant to such obligation). The
Employee agrees that her obligations with respect to Confidential
Information shall continue even after termination of her employment with
the Company.
C. ACKNOWLEDGMENT. Employee acknowledges and agrees that the
restrictions set forth in this Article 5 are reasonable in scope and
essential to the preservation of the Company's business --------- and
proprietary properties and that enforcement of these restrictions will not
cause Employee any hardship, and because of Employee's background and
experience, will not in any manner preclude Employee, in the event of a
termination of this Agreement, from becoming gainfully employed in such a
manner and to such an extent as will provide a standard of living for
herself and the members of her family of at least the sort and fashion to
which she and they have become accustomed.
D. SEPARATE AGREEMENT. The covenants of Employee contained in this
Article 5 shall each be construed independently of any other provision in
this Agreement, and the existence of any claim or cause of action of
Employee against Company whether predicated on this Agreement or otherwise,
shall not constitute a defense to the enforcement by Company of such
covenants. This covenant may be enforced by specific performance or any
available legal or equitable remedy, including, but not limited to,
temporary restraining orders or preliminary and permanent injunctions, and
the Company and its affiliated corporations shall be entitled to recover
from Employee all court costs and reasonable attorney's fees incurred in
enforcing this covenant. The remedies hereunder shall not be exclusive of
each other, but shall be cumulative.
5.03 AGREEMENT NOT TO SOLICIT BUSINESS RELATIONS. The Employee agrees
that, during the Term and Non-Compete Period, she will not, directly or
indirectly, on her own behalf or in the service or on behalf of others,
solicit, divert or appropriate, or attempt to solicit, divert or
appropriate any supplier, licensor, licensee or other business relation of
the Company or any of its subsidiaries (including Wasatch) (including,
without limitation, other Persons with whom the Company or any of its
subsidiaries (including Wasatch) has contractual or other arrangements to
provide services for the Company or any of its subsidiaries (including
Wasatch) who has been a supplier, licensor, licensee or other business
relation within the two (2) years prior to such termination of employment
or any prospective supplier, licensor, licensee or other business relation
with whom the Company or any of its subsidiaries (including Wasatch) or any
of their agents or representatives has had contact within the two (2) years
prior to such termination of employment for the purpose of inducing such
party to cease or to not begin doing business with the Company or any of
its subsidiaries (including Wasatch) or to do business
competitive with that conducted by the Company or any of its subsidiaries
(including Wasatch) with any other Person.
5.04 AGREEMENT NOT TO SOLICIT EMPLOYEES. The Employee agrees that, during
the Non-Compete Period, she will not, either directly or indirectly, on her own
or in the service or on behalf of others solicit, divert or hire, or attempt to
solicit, divert or hire any Person employed by the Company or any of its
subsidiaries (including Wasatch).
ARTICLE 6.0 - TERMINATION.
6.01 GROUNDS FOR TERMINATION. The employment of the Employee shall
terminate prior to the expiration of the Term set forth in Article 2 in the
event that at any time during the Term: ---------
(a) the Employee shall die, or
(b) the Board of Directors of the Company shall determine, in good
faith, that any of the following events or conditions has occurred or
exists:
(i) The Employee suffers a Disability (as hereinafter defined).
For purposes of this Agreement, the Employee will be deemed to have a
"Disability" if the Employee is adjudged mentally incompetent by a
court of competent jurisdiction.
(ii) Cause exists. "Cause" shall mean any of the following: (A)
embezzlement, fraud, misappropriation or dishonesty by the Employee
against or with respect to the Company or any of its subsidiaries
(including Wasatch) or the conviction of any felony or other offense
involving dishonesty, disloyalty, fraud or moral turpitude (or a plea
of nolo contendere with respect to any such offense or felony); (B)
the Employee's engaging in gross negligence or willful misconduct in
the performance of the Employee employment duties; or (C) the breach
by the Employee of any provision of this Agreement, in any material
respect, which breach or failure is not cured by the Employee after
reasonable prior written notice (provided, that any such notice also
must include a statement that failure to cure any such breach or
failure may result in the termination by the Company of the Employee's
employment for Cause) or is not capable of being cured; or
(c) written agreement of the Company and the Employee.
Notwithstanding any termination of employment pursuant to this Article 6, the
Employee, in consideration of her employment hereunder to the date of such
termination, shall remain bound following any such termination by the provisions
of this Agreement which specifically relate to periods, activities or
obligations upon or subsequent to the termination of the Employee's employment.
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ARTICLE 7.00 - GENERAL MATTERS
7.01 CONFLICT. The Employee represents and warrants to Company that she has
not executed any written agreement with any other Person that would prohibit the
Employee from entering into this Agreement. Further, the Employee represents and
warrants to Company that the execution of this Agreement by the Employee and her
services rendered to Company pursuant to this Agreement will not conflict with
any obligations or duties which the Employee may have to prior employers or
pursuant to any other agreement.
7.02 NON-DISCLOSURE OF AGREEMENT. The Employee and the Company agree that,
during the term of this Agreement and after the termination of this Agreement,
neither shall disclose the terms and provisions of this Agreement to any Person
other than their professional advisors, and in the case of the Company, other
than to its affiliates, except in connection with a dispute hereunder, or as
required in connection with a proceeding before a court, arbitrator,
administrative agency or other governmental or judicial entity or as otherwise
required by law.
7.03 ASSIGNMENT. This Agreement shall not be assignable, in whole or in
part, by either party without the written consent of the other party, except
that the Company may, without the consent of the Employee, assign its rights and
delegate its obligations under this Agreement to any Person (a) with or into
which the Company merges or consolidates, (b) to which the Company sells or
transfers all or substantially all of its assets or (c) of which fifty percent
(50%) or more of the equity investment and the voting control is owned, directly
or indirectly, by, or is under common ownership with, the Company. After any
such assignment by the Company, the Company shall be discharged from all further
liability hereunder and such assignee shall thereafter be deemed to be the
Company for the purposes of all provisions of this Agreement including this
Section 7.03.
7.04 INJUNCTIVE RELIEF. Each party agrees that it would be difficult to
compensate the other party fully for damages for any violation of the provisions
of this Agreement, including without limitation, the provisions of Articles 3
and 5. Accordingly, each party specifically agrees that the other party shall be
entitled to temporary and permanent injunctive relief to enforce the provisions
of this Agreement, without the posting of any bond. This provision with respect
to injunctive relief shall not, however, diminish the right of either party to
claim and recover damages in addition to injunctive relief.
7.05 GOVERNING LAW. THE VALIDITY, INTERPRETATION AND EFFECT OF THIS
AGREEMENT SHALL BE GOVERNED EXCLUSIVELY BY THE LAWS OF THE STATE OF UTAH,
EXCLUDING THE "CONFLICT OF LAWS" RULES THEREOF.
7.06 PRIOR AGREEMENTS. This Agreement, at the Effective Time, shall contain
the entire agreement of the parties relating to the subject matter hereof and
shall at such time supersede all prior agreements, including the Prior
Agreement, and understandings with respect to such subject matter, and the
parties hereto have made no agreement, representations or warranties relating to
the subject matter of this Agreement which are not set forth herein.
7.07 AMENDMENTS. No amendment or modification of this Agreement shall be
deemed effective unless made in writing signed by the parties hereto.
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7.08 NO WAIVER. No term or condition of this Agreement shall be deemed to
have been waived nor shall there be any estoppel to enforce any provisions of
this Agreement, except by a statement in writing signed by the party against
whom enforcement of the waiver or estoppel is sought. Any written waiver shall
not be deemed a continuing waiver unless specifically stated, shall operate only
as to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future or as to any act other than that
specifically waived.
7.09 SEVERABILITY. To the extent any provision of this Agreement shall be
invalid or unenforceable, it shall be considered deleted herefrom and the
remainder of such provision and of this Agreement shall be unaffected and shall
continue in full force and effect. In furtherance and not in limitation of the
foregoing, should the duration or geographical extent of, or business activities
covered by any provision of this Agreement be in excess of that which is valid
and enforceable under applicable law, then such provision shall be construed to
cover only that duration, extent or activities which may validly and enforceably
be covered. The parties acknowledge the uncertainty of the law in this respect
and expressly stipulate that this Agreement shall be given the construction
which renders its provisions valid and enforceable to the maximum extent (not
exceeding its express terms) possible under applicable law.
7.10 NOTICE. A. All notices or other communications required or permitted
by this Agreement shall be in writing and shall be deemed to have been duly
received (i) if given by telecopier, when transmitted and the appropriate
telephonic confirmation received if transmitted on a business day and during
normal business hours of the recipient, and otherwise on the next business day
following transmission, and (ii) if given by certified or registered mail,
return receipt requested, postage prepaid, upon actual delivery or refusal of
delivery as evidenced by the return receipt, and (iii) if given by courier or
other means, when received or personally delivered (or when delivery is refused,
if applicable), and, in any such case, addressed as follows:
(1) if to the Employee to,
Xxxxx Xxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxx Xxxx, Xxxx 00000
(2) if to the Company,
PLATO Learning, Inc.
00000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: President
B. Either party may from time to time change its address for the
purpose of notices to that party by a similar notice specifying a new
address, but no such change shall be deemed to have been given until it is
actually received by the party sought to be charged with its contents.
-12-
7.11 Employee Acknowledgment. The Employee hereby acknowledges that (a) the
Company has advised her to consult with an attorney prior to the execution of
this Agreement, (b) she has read this Agreement, (c) she fully understands the
terms of this Agreement, (d) she has executed this Agreement voluntarily and
without coercion, whether express or implied, and (e) this Agreement shall not
be effective until the Effective Time of the Merger.
[signature page follows]
-13-
The parties hereby execute this Employment Agreement on the day and year first
written above.
PLATO LEARNING, INC.
By: Xxxx Xxxxxx
---------------------------
Title: President and CEO
------------------------
EMPLOYEE:
s/ Xxxxx X. Xxxxxx
------------------
Xxxxx X. Xxxxxx
