First
Amendment to Employment Agreement
This FIRST
AMENDMENT TO EMPLOYMENT AGREEMENT (this “ Amendment
”) is made and entered into by and between Study Island, LLC,
a Delaware limited liability company (the “ Company
”) and James B. Walburg (the “ Executive
”) as of December 31, 2008 for purposes of amending that
certain employment agreement by and between the Company and the
Executive dated May 22, 2007 (the “ Employment
Agreement ”). Terms used in this Amendment with initial
capital letters that are not otherwise defined herein shall have
the meanings ascribed to such terms in the Employment
Agreement.
WHEREAS, the
Company and the Executive desire to amend the Employment Agreement
to bring the provisions into compliance with Section 409A of
the Internal Revenue Code of 1986, as amended;
NOW, THEREFORE, in
consideration of the mutual covenants and conditions hereafter set
forth and for other good and valuable consideration, the Company
and the Executive agree as follows:
1. Section 4.2
of the Employment Agreement is hereby amended by adding the
following sentence to the end of said section:
The bonus
payments, if any, shall be paid by the Company no later than the
15th day of the third calendar month of the fiscal year following
the fiscal year to which such annual bonus relates.
2. Section 7.1
of the Employment Agreement is hereby amended by deleting said
section in its entirety and replacing it with the
following:
7.1
Termination by the Company:
(a) If the
Company terminates the Executive’s employment without Cause
(other than as result of death or total disability), and such
termination constitutes a “separation from service”
under Section 409A of the Internal Revenue Code of 1986, as
amended (“Section 409A”), he will not be entitled
to receive any of the payments or benefits provided for herein
except the Company shall (i) pay his base salary through the
Termination Date, (ii) pay him an amount equal to his base
salary during the Severance Period (as defined in Section 7.7
below) payable in equal installments, in accordance with the
Company’s normal payroll practices, beginning with the first
payroll date following the 45 th day after the Termination Date,
(iii) provide the Executive with all benefits that are accrued
but unpaid as of the Termination Date, and (iv) provide the
Executive with all benefits expressly available upon termination of
employment in accordance with the plans and programs of the Company
applicable to the Executive on the Termination Date (but without
duplication of any benefits or payments otherwise provided for
hereunder).
(b) If the
Company terminates the Executive’s employment for Cause, and
such termination constitutes a “separation from
service” under Section 409A, he will not be entitled to
receive any of the payments or benefits provided for herein except
the Company shall (i) pay his base salary through the
Termination Date, (ii) provide the Executive with all benefits
that are accrued but unpaid as of the Termination Date, and
(iii) provide the Executive with all benefits expressly
available upon termination of employment in accordance with the
plans and programs of the Company applicable to the Executive on
the Termination Date (but without duplication of any benefits or
payments otherwise provided for hereunder).
3. Section 7.2
of the Employment Agreement is hereby amended by deleting said
section in its entirety and replacing it with the
following:
7.2
Termination by the Executive:
(a) If the
Executive terminates his employment with the Company with Good
Reason (as hereinafter defined), and such termination constitutes a
“separation from service” under Section 409A, he
will not be entitled to receive any of the payments or benefits
provided for herein except the Company shall (i) pay his base
salary through the Termination Date, (ii) pay him an amount
equal to his base salary during the Severance Period payable in
equal installments, in accordance with the Company’s normal
payroll practices, beginning with the first payroll date following
the 45 th
day after the Termination Date,
(iii) provide the Executive with all benefits that are accrued
but unpaid as of the Termination Date, and (iv) provide the
Executive with all benefits expressly available upon termination of
employment in accordance with the plans and programs of the Company
applicable to the Executive on the Termination Date (but
w
|
