Ex-10.1






Exhibit 10.1




AMENDMENT TO EMPLOYMENT AGREEMENT



The Employment Agreement by and between Blackboard Inc. and Michael Chasen, which took effect
November 14, 2005 (“Agreement”) is hereby amended pursuant to this Amendment to Employment
Agreement (“Amendment”). This Amendment will take effect on October 21, 2008.



The parties, for good and valuable consideration, the sufficiency of which is hereby acknowledged,
hereby agree as follows:



1. Section 5(c), “Termination of Employment,” “Resignation by You,” is hereby amended and restated
as follows:





     (c) Resignation by You. You have the right to resign your employment with
Blackboard at any time, with or without Good Reason, provided that you may resign with Good
Reason only if (i) you provide notice of such reason for resignation to Blackboard within 90
days of the initial existence of the condition giving rise to the Good Reason and stating
that such reason will be grounds for resignation with Good Reason, and (ii) if Blackboard
fails to cure such reason within thirty (30) days following receipt of such notice.
Furthermore, any such resignation shall occur within one (1) year of the occurrence of a
Good Reason event.




          (i) For purposes of this Agreement, “Good Reason” shall mean (A) a material failure by
Blackboard to perform its obligations under this Agreement; (B) your material relocation
outside of your current residential area without your consent; or (C) a material diminution
of your compensation, duties, or responsibilities at any time or for any reason other than
for Cause during the Term of this Agreement;




          (ii) During the Term, you agree to provide Blackboard ninety (90) days’ prior written
notice of your resignation, with or without Good Reason. Blackboard may in its sole
discretion place you on paid administrative leave as of any date prior to the end of such
ninety (90) day notice period and request that you no longer be present on Blackboard
premises. During any period of paid administrative leave, you will not be authorized to act
as a representative, or make any statements on behalf of, Blackboard; or


2. Section 6, “Severance Payments,” is hereby amended and restated as follows:




     6. Severance Payments.




     (a) If during the Term of this Agreement, Blackboard terminates your employment without
Cause (as defined in Section 5(b)) or you resign for Good Reason and comply with the
obligations set forth in Section 5(c), then Blackboard will pay you $999,999 (“Severance
Payment”). The Severance Payment shall be less applicable taxes and withholdings. The
Severance Payment shall be made as set forth below; provided that if any payments would
otherwise be due on or after March 15 of the calendar year next succeeding the year in which
termination occurs, then all payments that would otherwise be due after March 15 shall be
paid to you on or before March 15 of such next succeeding year. To receive the Severance
Payment you must sign a release of any and all claims in the form provided by Blackboard.
The Severance Payment shall be made in one lump sum, at the later of (i) the first pay
period following your Termination Date or (ii) ten (10) days after you deliver the signed
release to Blackboard.



 









 






     (b) Section 409A. Subject to this Section 6(b), any payments or benefits under Section
6 shall begin only upon the date of a “separation from service” as defined below which
occurs on or after the date of termination under Section 5. The following rules shall apply
with respect to distribution of the payments and benefits, if any, to be provided to you
under this Section 6:




          (i) It is intended that each installment of the payments and benefits provided under
Section 6 shall be treated as a separate “payment” for purposes of Section 409A of the U.S.
Internal Revenue Code of 1986, as amended, and the guidance issued thereunder (“Section
409A”). Neither Blackboard nor you shall have the right to accelerate or defer the delivery
of any such payments or benefits except to the extent specifically permitted or required by
Section 409A;




          (ii) If, as of the date of your “separation from service” from Blackboard, you are not
a “specified employee” (each within the meaning of Section 409A), then each installment of
the payments and benefits shall be made on the dates and terms set forth in Section 6; and




          (iii) If, as of the date of your “separation from service” from Blackboard, you are a
“specified employee” (each, for purposes of this Agreement, within the meaning of Section
409A), then:




               (A) Each installment of the payments and benefits due under Section 6 that, in
accordance with the dates and terms set forth herein, will in all circumstances, regardless
of when the separation from service occurs, be paid within the Short-Term Deferral Period
(as hereinafter defined) shall be treated as a short-term deferral within the meaning of
Treasury Regulation Section 1.409A-1(b)(4) to the maximum extent permissible under Section
409A. For purposes of this Agreement, the “Short-Term Deferral Period” means the period
ending on the later of the 15th day of the third month following the end of your tax year in
which the separation from service occurs and the 15th day of the third month following the
end of the Blackboard’s tax year in which the separation from service occurs; and




               (B) Each installment of the payments and benefits due under Section 6 that is not
described within Section 6(b)(iii)(A) and that would, absent this subsection, be paid within
the six-month period following your “separation from service” from Blackboard shall not be
paid until the date that is six months and one day after such separation from service (or,
if earlier, your death), with any such installments that are required to be delayed being
accumulated during the six-month period and paid in a lump sum on the date that is six
months and one day following your separation from service and any subsequent installments,
if any, being paid in accordance with the dates and terms set forth herein; provided,
however, that the preceding provisions of this sentence shall not apply to any installment
of payments and benefits if and to the maximum extent that that such installment is deemed
to be paid under a separation pay plan that does not provide for a deferral of compensation
by reason of the application of Treasury Regulation 1.409A-1(b)(9)(iii) (relating to
separation pay upon an involuntary separation from service) or Treasury Regulation
1.409A-1(b)(9)(iv) (relating to reimbursements and certain other separation payments). Any
installments that qualify for the exception under Treasury Regulation Section
1.409A-1(b)(9)(iii) must be paid no later than the last day of the second taxable year
following the taxable year in which the separation from service occurs.



 









 






          (iv) The determination of whether and when a separation from service has occurred shall
be made in a manner consistent with, and based on the presumptions set forth in, Treasury
Regulation Section 1.409A-1(h).




          (v) All reimbursements and in-kind benefits provided under the Agreement shall be made
or provided in accordance with the requirements of Section 409A to the extent that such
reimbursements or in-kind benefits are subject to Section 409A.


3. Section 12(a) “Miscellaneous Provisions,” “Notices” is hereby amended and restated as follows:





     (a) Notices. Unless otherwise provided herein, any notice or other
communication required to be given under the terms of this Agreement must be in writing and
must be personally delivered (i.e., left with an individual 18 years of age or older) or
sent by overnight delivery. Documents sent by overnight delivery will be presumed received
on the next business day following the day sent.



	 	 	 
	If notice is to be sent to Blackboard, it will be
sent to:

	 	If notice is to be
sent to you, it will be sent to the address that Blackboard has on file for you at the time the notice is to be sent.
	 
	 	 
	Matthew Small, Esq.
	 	 
	Blackboard Inc.
	 	 
	650 Massachusetts Ave., NW, 6th Floor
	 	 
	Washington DC 20001-3796
	 	 
	 
	 	 
	With a copy to:
	 	 
	 
	 	 
	Douglas B. Mishkin, Esq.
	 	 
	Patton Boggs, LLP
	 	 
	2550 M Street, NW
	 	 
	Washington, DC 20037
	 	 





4. The following paragraphs d and e are added to Section 12, “Miscellaneous Provisions:”





     (d) Effect of Termination. Notwithstanding any termination or expiration of
this Agreement, the rights and obligations under this Agreement, which by their nature
should survive, will remain in effect after the termination or expiration of this Agreement.




     (e) Section 409A. This Agreement is intended to comply with the provisions of
Section 409A and the Agreement shall, to the extent practicable, be construed in accordance
therewith. Terms defined in the Agreement shall have the meanings given such terms under
Section 409A if and to the extent required in order to comply with Section 409A.
Notwithstanding the foregoing, to the extent that the Agreement or any payment or benefit
hereunder shall be deemed not to comply with Section 409A, then neither Blackboard, the
Board of Directors nor its or their designees or agents shall be liable to you or any other
person for any actions, decisions or determinations made in good faith.


5. Except as expressly provided herein, the terms and conditions of the Agreement remain
unmodified. All capitalized terms not defined herein shall have the meaning set forth in the
Agreement. This Amendment shall be governed by the same provisions as set forth in Section 12(c)
of the Agreement. If any part of this Amendment is held by a court of competent jurisdiction to be
void or unenforceable, the


 









 






remaining provisions shall continue with full force and effect. The headings in this Amendment are
for convenience only and shall not effect the interpretation of this Amendment.




 









 







This Amendment has been agreed to and executed by the following parties on the dates set forth
opposite their names:




	 	 	 	 	 	 	 	 	 
	/s/ Michael Chasen	 	 	 	October 21, 2008	 	 
	 	 	 	 	 	 	 
	Michael Chasen	 	 	 	Date	 	 
	 
	 	 	 	 	 	 	 	 
	Blackboard Inc.

	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ Matthew H. Small
	 	 	 	October 21, 2008	 	 
	 	 	 	 	 	 	 	 	 
	Matthew H. Small	 	 	 	Date	 	 
	Chief Business Officer