This Employment
Agreement (this “Agreement”) is entered into as of this
22nd day of May, 2007, by and between Study Island LLC, a Delaware
limited liability company (the “Company”), and James B.
Walburg (the “Executive”).
WHEREAS, the
Company desires to engage the services of the Executive and the
Executive desires to be employed by the Company;
WHEREAS, the
Company desires to be assured that the unique and expert services
of the Executive will be available to the Company, and that the
Executive is willing and able to render such services on the terms
and conditions hereinafter set forth;
WHEREAS, the
Company desires to be assured that the confidential information and
good will of the Company will be preserved for the exclusive
benefit of the Company.
NOW, THEREFORE,
in consideration of such employment and the mutual covenants and
promises herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Executive agree as
follows:
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EMPLOYMENT AND
RESPONSIBILITIES
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The Company
will employ the Executive in the position of Senior Vice President,
Chief Financial Officer, beginning on May 29, 2007 (the
“Start Date). The Executive shall report to the Chief
Executive Officer. The Executive will have such authority, and will
perform all of the duties, normally associated with this position
as well as other duties as may be reasonably assigned to him from
time to time by the Board of Managers of the Company (the
“Board”) or the Chief Executive Officer, in each case
consistent with his position as Senior Vice President, Chief
Financial Officer.
The Executive
will devote all of his business time, ability, attention and best
efforts to the performance of his duties hereunder in a manner
which will faithfully and diligently further the Company’s
business to the exclusion of all other business activities.
However, the Executive may devote reasonable periods of time to
engaging in charitable or community service activities, so long as
none of these activities interfere with his duties under this
Agreement. Executive agrees to perform his duties and
responsibilities within Company policies, standard work hours and
attendance and general work practices.
The
Executive’s employment hereunder initially shall be for a
term commencing on the Start Date and ending on the day preceding
the second anniversary of the Start Date, subject to earlier
termination in accordance with Section 6 below. The Agreement
shall be automatically extended from year to year thereafter unless
either party gives not less than sixty (60) days prior written
notice to the other that such party elects to have the Agreement
terminated effective at the end of the initial or then current
renewal term. The provision of the foregoing notice
shall
result in the
expiration of this Agreement at the end of the then current term
and shall not be deemed a termination of Executive’s
employment by the Company.
During the term
of employment under this Agreement, the Company agrees to pay to
the Executive, and he agrees to accept in full consideration for
all services performed by him, the following
compensation:
4.1 Base
Salary: The Company will
pay the Executive an annual base salary of Two hundred thousand
dollars ($200,000), before all customary payroll deductions. This
annual base salary will be paid in accordance with the usual
payroll practices of the Company. The Board may make such increases
in the base salary as the Board may, in its sole discretion, deem
appropriate.
4.2
Bonus: During the
Executive’s employment term, the Executive will participate
in the Company-wide bonus plan in which all employees of the
Company participate based on the bonus plan’s policies and
procedures then in effect. In addition, Executive will be eligible
to receive in respect of each fiscal year of the Company
(commencing with the fiscal year ending on December 31, 2007)
an annual bonus in an amount equal to up to 40% of his earned base
salary (pro rated for partial years) based on, among other things,
performance targets established by the Board of Managers by
reference to the operating plan approved from time to time by the
Board of Managers; provided that if the performance targets in any
fiscal year are exceeded, the maximum bonus the Executive shall be
eligible to receive shall equal up to 50% of his base
salary.
4.3
Incentive Equity: On the
Start Date, Executive will be granted incentive equity pursuant to
the long term incentive equity program of the Company’s
parent company, Study Island Holdings, LLC
(“Holdings”), on the terms and conditions set forth in
Exhibit A.
4.4
Withholding: The Company
may withhold from any compensation and benefits payable to the
Executive all applicable federal, state and local withholding
taxes.
4.5 Board
Participation. The
Executive will not be a member of the Board of Managers of Holdings
but will be permitted to attend and participate in meetings of the
Board of Managers of Holdings, with the exception of any closed
executive sessions.
5.1
Description of Benefits: During the term of employment under this
Agreement, the Executive will be entitled to participate in all
employee incentive, pension and welfare benefit plans and programs
made available generally to other senior executives of the Company,
as such plans or programs may be in effect from time to time
(including, without limitation, incentive equity, profit sharing,
savings and other pension and retirement plans or programs,
medical, dental, hospitalization, short-term and long-term
disability and life insurance plans, accidental death and
dismemberment protection, and any other pension or retirement plans
or programs and any other employee incentive compensation plans,
employee welfare benefit plans or programs that may be sponsored by
the Company from time to time and provided that
Executive meets
the eligibility requirements and other terms, conditions and
restrictions of the respective plans and programs, including any
plans that supplement the above-listed types of plans or programs,
whether funded or unfunded). Payment for such coverages will be the
sole responsibility of the Executive, unless the Company makes such
coverages available to similarly situated executives on a shared
cost basis. In addition, the Executive will be entitled to
4 weeks of paid vacation per year. During 2007, as part of the
Executive 4 weeks of paid vacation per year, the Company will
permit the Executive to take a week vacation the week of
July 20 – July 27 and will use reasonable efforts
to permit vacation on August 2 and 3. The Company will pay for all
reasonable expenses actually incurred by the Executive directly in
connection with the business affairs of the Company and the
performance of his duties hereunder, upon presentation of proper
receipts or other proof of expenditure and subject to such
reasonable guidelines or limitations provided by the Company from
time to time.
The
Executive’s employment under this Agreement may be terminated
as follows, but in the event of any such termination, the
provisions of Sections 7 and 8 will survive the termination of
the Executive’s employment.
6.1 By the
Company: The Company may
terminate the employment of the Executive, with or without Cause
(as defined in Section 7.5 hereof), at any time during the
term hereof by delivery of a Notice of Termination (as defined
below) to the Executive.
6.2 By the
Executive: The Executive
may terminate his employment at any time, for any reason, by
delivery of a Notice of Termination to the Company.
6.3 Death;
Disability: The
Executive’s employment will terminate automatically upon the
Executive’s death or total disability. The term “total
disability” will mean the Executive’s inability to
perform the duties set forth in Section 1 hereof for a period
of twelve (12) consecutive weeks, or a cumulative period of 90
business days in any 12-month period, as a result of physical or
mental illness or loss of legal capacity.
6.4
Notice: The term
“Notice of Termination” means at least thirty
(30) days’ prior written notice of termination of the
Executive’s employment (the “Advance Notice
Period”), during which period the Executive’s
employment and performance of services will continue; provided,
however, that (i) the Executive may, upon termination of his
employment for Good Reason, make such notice effective immediately,
(ii) the Company may, upon termination of his employment with
or without Cause, make such notice immediately and (iii) the
Company may, upon notice to the Executive and without reducing
compensation during any Advance Notice Period, excuse him from any
or all of his duties during any Advance Notice Period. The
effective date of termination of employment (the “Termination
Date”) will be the date on which such Advance Notice Period
expires (or the date of notice, if the Company exercises its rights
under clause (ii) hereof or if the Executive exercises his
rights under clause (i) hereof) or as otherwise provided in
Section 3 above.
In the event of
termination of the employment of the Executive, all compensation
and benefits set forth in this Agreement will terminate as of the
Termination Date except as specifically provided in this
Section 7:
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7.1
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Termination by the
Company:
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(a) If the
Company terminates the Executive’s employment without Cause
(other than as result of death or total disability), 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 his base salary during
the Severance Period (as defined in Section 7.7 below) payable
at the same time such payment would be made during
Executive’s regular employment with the Company,
(iii) provide 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, 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).
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7.2
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Termination by the
Executive:
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(a)
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If
the Executive terminates his employment with the Company with Good
Reason (as hereinafter defined), 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 his base salary during the Severance Period
payable at the same time such payment would have been made during
the Executive’s regular employment with the Company,
(iii) provide 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).
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(b)
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If
the Executive terminates his employment with the Company without
Good Reason, he will not be entitled to any 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).
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7.3
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Expiration of Term, Death or
Disability:
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(a) If the
Executive’s employment is terminated pursuant to
Section 3 hereof as a result of the expiration of the term of
this Agreement, he will not be entitled to receive any of the
payments or benefits provided for herein except the Company
(i) pay his base salary through the Termination Date,
(ii) pay his base salary during the Severance Period payable
at the same time such payment would have been made during the
Executive’s regular employment with the Company,
(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
Executive’s employment is terminated pursuant to
Section 6.3 as a result of his death or total disability, he
will not be entitled to any payments or benefits, except the
Company shall (i) pay his base salary through the Termination Date,
(ii) provide 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).
7.4 Payment
Schedule: All payments of
base salary under this Section 7 (including wages for services
performed prior to the Termination Date) shall be paid in
accordance with the Company’s normal payroll practices and
any bonus amounts due under this Section&nbs
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