as well as any Attach Rate requirements for sales of certain
Products are set out in Exhibit A.
Promethean shall update Exhibit A by January 31st of each calendar year of the
Term (or as soon as practicable thereafter) to reflect applicable quarterly
targets and the then-current Annual Target. Promethean shall also have the
unilateral right to revise Exhibit A at any time upon the occurrence of any
significant shift in overall market demand or any other event that Promethean
reasonably believes will significantly increase the potential market for the
sale of Products. Promethean will evaluate all updates and modifications to
Exhibit A in good faith.
5.3 Underperformance.
(a) With respect to each of the calendar years of the Term, and in addition to
any other rights available to Promethean under this Agreement, to the extent the
Business Partner fails to meet any or all of the requirements in Exhibit A, then
Promethean may (i) establish and implement a Performance Improvement Plan
("PIP"); (ii) require that if the Business Partner desires to continue doing
business with Promethean, it must be at a different partner level which might
include a reduction in discount levels; (iii) remove a region from Business
Partner's Territory; or (iv) terminate the Agreement.
(b) If, in Promethean's sole discretion, a PIP is required, Promethean will
issue a proposed PIP to the Business Partner. Business Partner shall have ten
(10) business days after receiving the proposed PIP to provide comments to
Promethean. It shall be in the sole discretion of Promethean whether to amend
the proposed PIP based on those comments. Promethean shall issue the final
version of the PIP to the Business Partner within ten (10) business days of
receiving any comments from the Business Partner and both parties will execute
the final PIP.
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Business Partner
DD
Promethean
LW Revised 2/2011
CONFIDENTIAL
Page 3
EDUCATION BUSINESS PARTNER AGREEMENT
(c) The PIP shall, as reasonably determined by Promethean, provide specific,
measurable goals that must be achieved by the Business Partner over a period of
between thirty (30) to ninety (90) days as determined by Promethean. Should the
Business Partner fail to achieve the PIP to the satisfaction of Promethean, then
Promethean shall have the right, in its discretion, upon seven (7) days prior
written notice, to either: (i) revise and extend the time period for the PIP;
(ii) remove a region from the Business Partner's Territory set forth on Schedule
2.1; (iii) re-assign such region to another business partner; (iv) require that
the Business Partner do business with Promethean at a different partner level;
and/or (v) terminate this Agreement, without any compensation to Business
Partner. Promethean's determinations regarding achievement of measurable goals
pursuant to this Section 5 will be based, in part, on the reports the Business
Partner is required to prepare and provide to Promethean in accordance with
Section 7.1 of this Agreement. Accordingly, the Business Partner acknowledges
and agrees that its failure to comply in all material respects with the
requirements of Section