Archipelago Learning, Inc. 2009 Omnibus Incentive Plan RESTRICTED STOCK UNIT AWARD AGREEMENT
Exhibit 4.7
Archipelago Learning, Inc.
2009 Omnibus Incentive Plan
2009 Omnibus Incentive Plan
THIS RESTRICTED STOCK UNIT AWARD AGREEMENT (this “Agreement”) is made effective as of ,
2009 (the “Grant Date”) by and between Archipelago Learning, Inc., a Delaware corporation (with any
successor, the “Company”), and (the “Participant”).
R E C I T A L S:
WHEREAS, the Company has adopted the Archipelago Learning, Inc. 2009 Omnibus Incentive Plan
(the “Plan”), which Plan is incorporated herein by reference and made a part of this Agreement.
Capitalized terms not otherwise defined herein shall have the same meanings as in the Plan; and
WHEREAS, the Committee has determined that it would be in the best interests of the Company
and its stockholders to grant the restricted stock provided for herein to the Participant pursuant
to the Plan and the terms set forth herein.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set forth, the parties
agree as follows:
I. Restricted Stock Unit Award. Subject to the terms and conditions of the Plan and
this Agreement, the Company hereby grants to the Participant the number of Restricted Stock Units
(the “RSUs”) and the number of Dividend Equivalent Rights (the “Dividend Equivalents”) set forth on
Schedule I, which shall vest and become nonforfeitable in accordance with Section III
hereof. Each RSU and each Dividend Equivalent represents one hypothetical Share.
II. Settlement of RSUs. On the Vesting Date (as defined below) or as soon as
practicable thereafter, the Company shall deliver to Participant one or more certificate(s)
representing the number of Shares equal to the number of RSUs which vested on such Vesting Date.
Prior to settlement, Participant shall make arrangements with the Committee for the satisfaction of
any federal, State, local or foreign withholding obligations that may arise in connection with such
settlement in accordance with the terms of the Plan. The Company shall not be liable to the
Participant for damages relating to any delays in issuing the certificates to him, any loss of the
certificates, or any mistakes or errors in the issuance of the certificates or in the certificates
themselves.
III. Vesting.
(a) Vesting Schedule. Subject to the Participant’s continued employment or service,
as the case may be, the RSUs shall vest on the first date (the “Vesting Date”) on which any of the
RSUs may be sold or otherwise disposed of by the Participant without restrictions, whether imposed
by this agreement, any other agreement, applicable law or written Company
policy or rule (e.g. trading windows, blackout periods, etc.) or otherwise, after the date on
which the average closing trading price of a Share over any twenty (20) trading day period equals
or exceeds $ per Share within the ten (10) year period from the Grant Date.
(b) Forfeiture. If the Participant’s employment or service, as the case may be, is
terminated for any reason other than a termination by the Company without Cause, the RSUs and the
Dividend Equivalent Rights, to the extent not then vested, shall be forfeited by the Participant
without consideration. If the Participant’s employment or service, as the case may be, is
terminated by the Company without Cause, the RSUs and the Dividend Equivalent Rights, to the extent
not then vested, shall be forfeited by the Participant without consideration on the one (1) year
anniversary of the date of termination. The RSUs, to the extent not then vested, shall expire upon
the ten (10) year anniversary of the Grant Date.
IV. No Right to Continued Service. The granting of the RSUs evidenced hereby and this
Agreement shall impose no obligation on the Company or any Affiliate to continue the employment or
service of the Participant and shall not lessen or affect any right that the Company or any
Affiliate may have to terminate the employment or service of the Participant.
V. Securities Laws/Legend on Certificates. The issuance and delivery of Shares shall
comply with all applicable requirements of law, including (without limitation) the Securities Act
of 1933, as amended, the rules and regulations promulgated thereunder, state securities laws and
regulations, and the regulations of any stock exchange or other securities market on which the
Company’s securities may then be traded. If the Company deems it necessary to ensure that the
issuance of securities under the Plan is not required to be registered under any applicable
securities laws, the Participant shall deliver to the Company an agreement or certificate
containing such representations, warranties and covenants as the Company which satisfies such
requirements. The certificates representing the Shares shall be subject to such stop transfer
orders and other restrictions as the Committee may deem reasonably advisable, and the Committee may
cause a legend or legends to be put on any such certificates to make appropriate reference to such
restrictions.
VI. Transferability. The RSUs and Dividends Equivalents may not be assigned,
alienated, pledged, attached, sold or otherwise transferred or encumbered by the Participant other
than by will or by the laws of descent and distribution, and any such purported assignment,
alienation, pledge, attachment, sale, transfer or encumbrance shall be void and unenforceable
against the Company or any Affiliate; provided that the designation of a beneficiary shall not
constitute an assignment, alienation, pledge, attachment, sale, transfer or encumbrance. No such
permitted transfer of the RSUs and Dividends Equivalents to heirs or legatees of the Participant
shall be effective to bind the Company unless the Committee shall have been furnished with written
notice thereof and a copy of such evidence as the Committee may deem necessary to establish the
validity of the transfer and the acceptance by the transferee or transferees of the terms and
conditions hereof.
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VII. Dividend Equivalents. For each Dividend Equivalent the Participant shall have
the right to receive an amount equal to the per Share dividend (if any) paid by the Company during
the period between the Grant Date and the Dividend Equivalent’s expiration. Each Dividend
Equivalent relates to one RSU and expires at the same time that the related RSU vests or is
canceled or forfeited. When dividends are paid by the Company, the Participant will be credited
with an amount determined by multiplying the number of the Participant’s unexpired Dividend
Equivalents by the dividend per Share. Such amount is payable in cash on the Vesting Date
following the date the dividend is paid.
VIII. Adjustment of RSUs and Dividend Equialvents. Adjustments to the RSUs and
Dividends Equivalents shall be made in accordance with the terms of the Plan. Fractional shares
shall not be issued and any rights thereto shall be forfeited without consideration.
IX. Withholding. The Company shall have the power and the right to deduct or withhold
automatically from any amount deliverable under the Award or otherwise, or require the Participant
to remit to the Company, the minimum statutory amount to satisfy federal, state, and local taxes,
domestic or foreign, required by law or regulation to be withheld with respect to any taxable event
arising as a result of the Plan. With respect to required withholding, the Participant may elect
(subject to the Company’s automatic withholding right set out above), subject to the approval of
the Committee, to satisfy the withholding requirement, in whole or in part, by having the Company
withhold Shares and/or Dividend Equivalents having a Fair Market Value on the date the tax is to be
determined equal to the minimum statutory total tax that could be imposed on the transaction.
X. Notices. Any notification required by the terms of this Agreement shall be given in
writing and shall be deemed effective upon personal delivery or within three (3) days of deposit
with the United States Postal Service, by registered or certified mail, with postage and fees
prepaid. A notice shall be addressed to the Company, Attention: General Counsel, at its principal
executive office and to the Participant at the address that he or she most recently provided to the
Company.
XI. Entire Agreement. This Agreement and the Plan constitute the entire contract
between the parties hereto with regard to the subject matter hereof. They supersede any other
agreements, representations or understandings (whether oral or written and whether express or
implied) which relate to the subject matter hereof.
XII. Waiver. No waiver of any breach or condition of this Agreement shall be deemed
to be a waiver of any other or subsequent breach or condition whether of like or different nature.
XIII. Successors and Assigns. The provisions of this Agreement shall inure to the
benefit of, and be binding upon, the Company and its successors and assigns and upon the
Participant, the Participant’s assigns and the legal representatives, heirs and legatees of the
Participant’s estate, whether or not any such person shall have become a party to this Agreement
and agreed in writing to be joined herein and be bound by the terms hereof.
XIV. Choice of Law; Jurisdiction; Waiver of Jury Trial. This Agreement shall be
governed by the laws of the State of Delaware, excluding any conflicts or choice of law rule or
principle that might otherwise refer construction or interpretation of the Plan to the substantive
law of another jurisdiction.
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SUBJECT TO THE TERMS OF THIS AGREEMENT, THE PARTIES AGREE THAT ANY AND ALL ACTIONS ARISING
UNDER OR IN RESPECT OF THIS AGREEMENT SHALL BE LITIGATED IN THE FEDERAL OR STATE COURTS IN
DELAWARE. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH PARTY IRREVOCABLY SUBMITS TO THE
PERSONAL JURISDICTION OF SUCH COURTS FOR ITSELF, HIMSELF OR HERSELF AND IN RESPECT OF ITS, HIS OR
HER PROPERTY WITH RESPECT TO SUCH ACTION. EACH PARTY AGREES THAT VENUE WOULD BE PROPER IN ANY OF
SUCH COURTS, AND HEREBY WAIVES ANY OBJECTION THAT ANY SUCH COURT IS AN IMPROPER OR INCONVENIENT
FORUM FOR THE RESOLUTION OF ANY SUCH ACTION.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
XV. RSUs and Dividends Equivalents Subject to Plan. By entering into this Agreement
the Participant agrees and acknowledges that the Participant has received and read a copy of the
Plan. The RSUs and Dividends Equivalents are subject to the Plan. The terms and provisions of the
Plan as it may be amended from time to time are hereby incorporated herein by reference. In the
event of a conflict between any term or provision contained herein and a term or provision of the
Plan, the applicable terms and provisions of the Plan will govern and prevail. The Participant has
had the opportunity to retain counsel, and has read carefully, and understands, the provisions of
the Plan and this Agreement.
XVI. Severability. The provisions of this Agreement are severable and if any one or
more provisions are determined to be illegal or otherwise unenforceable, in whole or in part, the
remaining provisions shall nevertheless be binding and enforceable.
XVII. Signature in Counterparts. This Agreement may be signed in counterparts, each
of which shall be an original, with the same effect as if the signatures thereto and hereto were
upon the same instrument.
XVIII. Noncompetition; Nonsolicitation, Protection of Confidential Information.
(a) Applicability. This Section XVIII will survive the termination of this Agreement
and the Participant’s employment with the Company. As used in this Section XVIII, the “Company”
shall mean the Company and the Company’s Subsidiaries.
(b) Restricted Period. As used in this Section XVIII, the “Restricted Period” means
the period commencing on the Grant Date and ending six months following the date upon which
Employee’s employment with or service to the Company and its Subsidiaries ceases (the “Trigger
Date”).
(c) Noncompetition. During the Restricted Period, the Participant 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
(a) is in competition with any business of the Company or any business in which, to the
Participant’s knowledge, the Company had plans to engage or was considering engaging as of the
Trigger Date, or (b) inevitably will result in the disclosure or use of the Company’s Confidential
Information (defined below), in either case in any state in the United States where the Company
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does business as of the Trigger Date or where, to the Participant’s knowledge, the Company had
plans to engage or was considering engaging as of the Trigger Date.
(d) Nonsolicitation. As used in this Section XVIII, “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, (i) 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; (ii)
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; (iii) 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 (iv) 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 Participant 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
Participant is associated, as long as he does not directly or indirectly (A) induce such employee
to leave the Company, (B) contact such employee prior to his departure from the Company regarding
employment, or (C) in the case of hiring such employee, control such entity or have any input in
the decision to hire such employee.
(e) 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, 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, customers and prospects,
supplier lists, 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 Participant. 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 Participant 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 Participant acknowledges that in the course of employment with the Company, he has
received and may receive Confidential Information of the Company. The Participant 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 Participant
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.
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Upon the Company’s request at any time and for any reason, the Participant shall immediately
deliver to the Company all materials (including all soft and hard copies) in the Participant’s
possession which contain or relate to Confidential Information.
(f) 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 (for purposes of this Section XVIII, the “Developments”) made by the
Participant, either alone or in conjunction with others, at anytime or at any place during the
Participant’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 Participant, in which the Company intends to engage, shall be and hereby are the
exclusive property of the Company without any further compensation to the Participant. In
addition, without limiting the generality of the prior sentence, all Developments which are
copyrightable work by the Participant 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
Participant 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
Participant 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 Participant 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 Participant hereby irrevocably designates and
appoints the Company and its duly authorized officers and agents as such Participant’s agent and
attorney-in-fact (which designation and appointment shall be deemed coupled with an interest and
shall survive the Participant’s death or incapacity), to act for and in the Participant’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 Participant.
(g) Repayment of Proceeds. If Participant violates any provision of this XVIII, then
Participant shall be required to pay to the Company, within ten business days following the date on
which Participant commits such violation, an amount equal to the aggregate proceeds, if any,
Participant received upon the sale or other disposition of Participant’s Shares.
(h) Equitable Relief. The Participant acknowledges that (i) the provisions of this
Section XVIII are essential to the Company; (ii) that the Company would not enter into this
Agreement if it did not include this Section XVIII; and (iii) that damages sustained by the Company
as a result of a breach of this Section XVIII cannot be adequately remedied by monetary damages.
Furthermore, the Participant 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
XVIII.
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XIX. Section 409A of the Code.
(a) General. The Company intends that the Awards granted hereunder be structured,
interpreted, operated and administered to satisfy an exemption from Section 409A of the Code and
all regulations, guidance, compliance programs and other interpretative authority thereunder
(“Section 409A”). If any Awards are not exempted from Section 409A, then the Company
intends for such Awards to comply with Section 409A, such that there are no adverse tax
consequences, interest, or penalties under Section 409A as a result of the payments.
Notwithstanding the Company’s intention, in the event any Award is subject to Section 409A, the
Committee may, in its sole discretion and without a Participant’s prior consent, amend the Plan
and/or Awards, adopt policies and procedures, or take any other actions (including amendments,
policies, procedures and actions with retroactive effect) as are necessary or appropriate to
(a) exempt the Plan and/or any Award from the application of Section 409A, (b) preserve the
intended tax treatment of any such Award, or (c) comply with the requirements of Section 409A,
including without limitation any such regulations guidance, compliance programs and other
interpretative authority that may be issued after the date of the grant.
(b) Payments to Specified Employees. Notwithstanding any contrary provision in the
Plan or this Agreement, any payment(s) of nonqualified deferred compensation (within the meaning of
Section 409A) that are otherwise required to be made to a “specified employee” (as defined under
Section 409A) as a result of his or her separation from service (other than a payment that is not
subject to Section 409A) shall be delayed for the first six months following such separation from
service (or, if earlier, until the date of death of the specified employee) and shall instead be
paid on the day that immediately follows the end of such six-month period or within fifteen (15)
days thereafter (but no later than then end of the applicable taxable year). A Participant shall
be entitled to any dividends payable during the period that the delivery of any Shares is delayed
pursuant to the preceding sentence, and such dividends shall be paid at the same time such Shares
are delivered.
(c) Separation from Service. A termination of service shall not be deemed to have
occurred for purposes of any provision of the Plan or this Agreement providing for the payment of
any amounts or benefits that are considered nonqualified deferred compensation under Section 409A
upon or following a termination of service, unless such termination is also a “separation from
service” within the meaning of Section 409A and the payment thereof prior to a “separation from
service” would violate Section 409A. For purposes of any such provision of the Plan or this
Agreement relating to any such payments or benefits, references to a “termination,” “termination of
employment,” “termination of service,” or like terms shall mean “separation from service.”
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Restricted Stock Unit Award
Agreement as of the date first written above.
| Archipelago Learning, Inc. |
||||
| By: | ||||
| Name: | ||||
| Title | ||||
Agreed and acknowledged as
of the date first above written:
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Schedule I
[ ] Shares
[ ] Dividend Equivalents
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