Second
Amendment to Employment Agreement
This SECOND
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 Timothy McEwen (the “ Executive ”)
as of December 31, 2008 for purposes of amending that certain
employment agreement by and between the Company and the Executive
dated January 28, 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
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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,
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