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▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ INCORPORATED
AMENDED AND RESTATED
NONCOMPETITION AND EMPLOYMENT AGREEMENT
(▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇)
This Amended and Restated Noncompetition and Employment Agreement (this
"Agreement") is entered into as of February 15, 2000, by and between
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Incorporated, a Delaware corporation (successor in interest to
▇▇▇▇▇▇▇▇.▇▇▇ Incorporated)(the "Company"), and ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇ ("Executive").
A. Executive is an officer, director and shareholder of Student
Success, Inc., a Wisconsin corporation ("SSI").
B. SSI, CollegeLink Corporation ("Merger Sub), and the Company have
agreed to merge SSI with and into Merger Sub pursuant to an Agreement and Plan
of Merger dated as of October 20, 1999, as amended by a First Amendment to
Agreement and Plan of Merger dated as of the date hereof (as amended, the
"Merger Agreement").
C. As a condition precedent to the closing of the Merger, Executive,
the Company and Merger Sub entered into a Noncompetition and Employment
Agreement on October 20, 1999 (the "Original Agreement").
D. Executive and the Company desire to amend certain provisions the
Original Agreement as set forth herein;
The Company and Executive hereby agree as follows:
1. Employment. The Company is employing Executive, and Executive
accepts employment upon the terms and conditions set forth in this Agreement.
(As used throughout this Agreement, "Company" shall mean and include any and all
of its present and future subsidiaries and any and all subsidiaries of a
subsidiary). Executive warrants that he is free to enter into and perform this
Agreement and is not subject to any employment, confidentiality, non-competition
or other agreement which would restrict his performance under this Agreement.
2. Duties. During the term of this Agreement, Executive's services
shall be exclusive to the Company, and he shall devote his entire business time,
attention and energies to the business of the Company and the duties to which
the Board of Directors of the Company shall assign him from time to time,
including the transition of the operations and employees of SSI to the Merger
Sub. Executive agrees to perform his services faithfully and to the best of his
ability and to carry out the policies and directives of the Company.
Notwithstanding the foregoing, the Executive may participate in community boards
and committees and in activities generally
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considered to be in the public interest, so long as such participation
and activities do not materially interfere with his duties hereunder.
3. Title. During his employment hereunder, the Executive shall have the
position of Chief Executive Officer, or such other executive position as the
Board of Directors of the Company may determine.
4. Term. The term of this Agreement shall commence on the date of the
closing of the Merger (the "Closing Date") and shall extend until the first
anniversary thereof, unless terminated sooner in accordance with Section 6 of
this Agreement.
5. Compensation & Benefits.
(a) Salary. For all Executive's services and covenants under
this Agreement, the Company shall pay Executive an initial annual salary of
$125,000 payable in accordance with the Company's payroll policy in effect from
time to time.
(b) Stock Options. The Company will grant Executive incentive
stock options to purchase a total of 200,000 shares of the Company's common
stock at an exercise price of $4.00 per share, such options to be substantially
in the form of Exhibit A attached hereto.
(c) Benefits. Executive shall be entitled to all medical
insurance, vacation, sick leave, holidays and other fringe benefits in
accordance with Company policies made available from time to time to other
executives of the Company.
(d) Moving Expenses. In the event that the Company requires
Executive to relocate, the Company shall reimburse Executive for (i) all
reasonable and customary expenses incurred by Executive in connection with any
such relocation, (ii) temporary living expenses of (A) $3,000 per month for the
first four months that Executive is employed by the Company while maintaining a
primary residence outside of New England and (B) $5,000 per month for the fifth
and sixth months that Executive is employed by the Company while maintaining a
primary residence outside of New England, and (iii) any commission due to a real
estate broker in connection with the sale of the primary residence owned by
Executive on October 20, 1999. Executive shall submit to the Company a
reasonably detailed expense report as a condition to payment of any such
reimbursable expenses.
(e) Performance Bonus. The Company shall pay Executive a bonus
of $62,500 if at least 500,000 students attend the Company's "Making High School
Count" program during the 2000-2001 academic year. The Company shall pay
Executive a bonus of $62,500 if at least 1,000,000 students attend the Company's
"Making College Count" program during the 2000-2001 academic year. Any such
bonus shall be paid to Executive within 30 days after satisfaction of the
applicable condition precedent. In the event that Executive's employment is
terminated by the Company without cause (as defined in Section 6(a)) or by
Executive for Good
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Reason (as defined in Section 6(e)) before satisfaction of the applicable
condition precedent for a bonus hereunder, Executive shall nonetheless be
entitled to such bonus if: (i) the applicable condition precedent is at least
75% satisfied at the time of termination and (ii) the applicable condition is
ultimately achieved thereafter.
6. Termination of Employment. Notwithstanding any other provision of
this Agreement, the Executive's employment may be terminated:
(a) For Cause. By the Company for cause (as hereinafter
defined). For purposes of this Agreement cause shall mean: (i) failure or
refusal by the Executive (other than by reason of any disability, illness or
other incapacity) to perform his assigned duties for the Company, which failure
or breach continues for more than 10 days after written notice thereof is given
to the Executive; (ii) commission by the Executive of an act of dishonesty or
moral turpitude; or (iii) commission by the Executive of an act of fraud upon
the Company or an act materially evidencing bad faith toward the Company. In the
event of termination for cause, the Company will pay to the Executive accrued
but unpaid annual salary through the date of termination.
(b) For Disability. By the Company, upon 20 days' notice to
the Executive if he should be prevented by illness, accident or other disability
from discharging any of his material duties hereunder for thirty (30)
consecutive days or one or more periods totaling thirty (30) days, provided that
compliance with this paragraph shall be subject to the "Americans with
Disabilities Act" and the "Family and Medical Leave Act", or such other laws as
may be applicable to this Agreement. In the event of such termination of
Executive's employment, the Company's obligation to pay further compensation
hereunder shall cease forthwith, except that the Executive shall be entitled to
receive his accrued but unpaid annual salary for the period up to the last day
of the month in which such termination of employment occurred.
(c) Without Cause. By the Company, without cause, provided,
however, that if the Executive's employment is terminated pursuant to this
Section, the Executive shall continue to receive his annual salary as provided
in Section 5(a) until the first anniversary of the date of termination and
continued coverage in all group health and medical plans.
(d) By Resignation. By the Executive upon providing thirty
(30) days written notice to the Company, provided, however, that, in the event
of termination by resignation, the Company will pay to Executive accrued but
unpaid annual salary through the date of termination.
(e) For Good Reason. By the Executive for "Good Reason", which
shall consist solely of the following: (i) any demotion of Executive from the
highest office achieved by Executive at the Company, (ii) any failure of the
Company to entrust Executive with executive duties and responsibilities; or
(iii) a material breach by the Company of any provision of this Agreement which
continues for more than 30 days following written notice by the Executive to the
Company specifying such breach. In the event of termination under this Section,
the
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Executive shall have no further obligations to the Company except his
obligations under Sections 7, 8, 9 and 10, and the Executive shall be entitled
to the severance benefit set forth in Section 6(c) above.
(f) By Death. In the event of the Executive's death during the
term of his employment, the Company's obligation to pay further compensation
hereunder shall cease forthwith, except that the Executive's legal
representative shall be entitled to receive his annual salary for the period up
to the last day of the month in which such death shall have occurred.
(g) By Mutual Agreement. By the mutual, written agreement of
the Company and the Executive.
(h) Release. The Company's obligation to make the severance
payments specified in Sections 6(c) or 6(e) are subject to the condition
precedent that the Executive execute and deliver to the Company a general
release, reasonably satisfactory in form to the Company's legal counsel, of all
claims that he may have against the Company or its officers, directory, agents,
employees, attorneys, accountants, or stockholders arising out of, or relating
to, this Agreement or his employment with the Company.
7. All Business to be Property of the Company; Assignment of
Intellectual Property.
(a) Company Property. Executive agrees that any and all
presently existing business of the Company and all business developed by him or
any other executive of the Company, including, without limitation, all
contracts, fees, commissions, compensation, records, customer or client lists,
agreements and any other incident of any business developed, earned or carried
on by Executive for the Company is and shall be the exclusive property of the
Company, and (where applicable) shall be payable directly to the Company.
(b) Assignment of Rights. Executive hereby grants to the
Company (without any separate remuneration or compensation other than that
received by him from time to time in the course of his employment) his entire
right, title and interest throughout the world in and to, all research,
information, procedures, developments, inventions and improvements whether
patentable or non-patentable, patents and applications therefor, trademarks and
applications therefor, copyrights and applications therefor, programs, trade
secrets, plans, methods, and all other data and know-how (herein sometimes
"Intellectual Property") made, conceived, developed and/or acquired by him
solely or jointly with others during the period of his employment with SSI or
the Company, whether or not made, conceived, developed or acquired during
regular business hours or on the premises of, or using properties of, SSI or the
Company or in the regular scope of Executive's employment by SSI or the Company.
Set forth on Schedule A attached to this Agreement are descriptions of
inventions and copyrightable materials that the Executive has developed and
reduced to practice prior to commencement of his employment with SSI and that
are, accordingly, exempted from the provisions of this Section 7(b).
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8. Confidentiality. Except as necessary in performance of services for
the Company, Executive shall not, either during the period of his employment
with the Company or thereafter, use for his own benefit or disclose to or use
for the benefit of any person outside the Company, any information concerning
any Intellectual Property, or other confidential or proprietary information of
the Company, including, without limitation, any of the materials listed in
Section 7(a) or 7(b), whether Executive has such information in his memory or
embodied in writing or other tangible form. All originals and copies of any of
the foregoing, however and whenever produced, shall be the sole property of the
Company, not to be removed from the premises or custody of the Company without
first obtaining authorization of the Company, which authorization may be revoked
by the Company at any time. Upon the termination of Executive's employment in
any manner or for any reason, Executive shall promptly surrender to the Company
all copies of any of the foregoing, together with any documents, materials,
data, information and equipment belonging to or relating to the Company's
business and in his possession, custody or control, and Executive shall not
thereafter retain or deliver to any other person any of the foregoing or any
summary or memorandum thereof.
9. Non-Competition Covenant. The Executive recognizes that the Company
provides its services and products throughout the world and would be
substantially injured by Executive competing with the Company as described below
in any part of the world and, therefore, Executive agrees and warrants that he
will not, unless acting with the Company's express prior written consent,
directly or indirectly, while an Executive of the Company and for a period of
two (2) years following termination of such employment, engage, anywhere in the
world and in any capacity, in any business or activity that competes with, or
involves preparation to compete with, that of the Company as it is at the time
of termination.
Executive and the Company are of the belief that the period of time and
the area herein specified are reasonable in view of the nature of the business
in which the Company is engaged and proposes to engage, the state of its
business development and Executive's knowledge of this business. However, if
such period or such area should be adjudged unreasonable in any judicial
proceeding, then the period of time shall be reduced by such number of months or
such area shall be reduced by elimination of such portion of such area, or both,
as are deemed unreasonable, so that this covenant may be enforced in such area
and during such period of time as is adjudged to be reasonable.
Executive acknowledges that his agreement to this non-competition
obligation is a material inducement to the Company to effect the Merger and that
Executive is to receive substantial value by reason of the Merger.
10. Non-Solicitation Agreement. Executive agrees and covenants that he
will not, unless acting with the Company's express written consent, directly or
indirectly, during the term of this Agreement or for a period of two (2) years
thereafter (a) solicit, entice away or interfere with the Company's contractual
relationships with any customer, client, officer or Executive of the Company nor
(b) hire or assist another in the hiring of, or retain as a consultant or assist
another
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in such retention, any such employee or any person who has been such an employee
within the six (6) month period before such hiring or retention; provided,
however, it shall not be deemed to be a violation of this covenant or the one
contained in Section 9 hereof if, after termination of Executive's employment
with the Company, Executive shall solicit sponsors for, or seek to do business
with, existing customers or sponsors of the Company for or on behalf of a
business which is not in competition with the Company.
11. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been given upon the earlier of actual
receive or three days after having been mailed by first class mail, postage
prepaid, or twenty-four hours after having been sent by Federal Express or
similar overnight delivery services, as follows: (a) if to Executive, at Student
Success, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, or to
such other person(s) or address(es) as Executive shall have furnished to the
Company in writing; and (b) if to the Company, at ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chairman.
12. Assignability. In the event that the Company shall be merged with,
or consolidated into, any other corporation, or in the event that it shall sell
and transfer substantially all of its assets to another corporation or entity,
the terms of this Agreement shall inure to the benefit of, and be assumed by,
the corporation resulting from such merger or consolidation, or to which the
Company's assets shall be sold and transferred. This Agreement shall not be
assignable by Executive.
13. Entire Agreement. This Agreement contains the entire agreement
between the Company and Executive with respect to the subject matter hereof and
supersedes in all respects all prior agreements of any kind concerning the
subject matter hereof, including without limitation the Original Agreement.
14. Equitable Relief. Executive recognizes and agrees that the
Company's remedy at law for any breach of the provisions of Sections 7, 8, 9 or
10 hereof may be inadequate, and he agrees that for breach of such provisions,
the Company shall, in addition to such other remedies as may be available to it
at law or in equity or as provided in this Agreement, be entitled to injunctive
relief and to enforce its rights by an action for specific performance. Should
Executive engage in any activities prohibited by, and material to, this
Agreement, he agrees to pay over to the Company all compensation, remuneration
or monies or property of any sort received in connection with such activities;
such payment shall not impair the right of the Company to pursue any rights,
remedies, obligations or liabilities of Executive which such parties may have
under this Agreement or applicable law.
15. Amendments. This Agreement may not be amended, nor shall any
change, waiver, modification, consent or discharge be effected except by written
instrument executed by the Company and Executive.
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16. Severability. If any part of any term or provision of this
Agreement shall be held or deemed to be invalid, inoperative or unenforceable to
any extent by a court of competent jurisdiction, such circumstances shall in no
way affect any other term or provision of this Agreement, the application of
such term or provisions in any other circumstances, or the validity or
enforceability of this Agreement.
17. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of The Commonwealth of Delaware.
18. Confidentiality of this Agreement. The Executive shall not, either
during the period of his employment with the Company or at any time thereafter,
disclose to any person within or outside of the Company either the existence of
this Agreement or any of the terms and conditions contained within this
Agreement without first obtaining authorization of the Company, which
authorization may be withheld by the Company at any time and for any reason.
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IN WITNESS WHEREOF, the parties hereto have executed or caused to be
executed this Amended and Restated Noncompetition and Employment Agreement as an
instrument under seal as of the date first above written.
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman
EXECUTIVE
/s/ ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
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