EMPLOYMENT AGREEMENT
EXHIBIT
10.15
THIS
AGREEMENT, is entered into as of February 2, 1998, between SkillSoft
Corporation, a Delaware corporation (the "Company"), and Xxxxxx XxXxxxxx
("Employee").
Company
desires to obtain the services of Employee, on its own behalf and on behalf of
all existing and future Affiliated Companies (defined to mean any corporation or
other business entity or entities that directly or indirectly controls, is
controlled by, or is under common control with the Company), and Employee
desires to secure employment from the Company upon the following terms and
conditions.
ACCORDINGLY,
THE PARTIES AGREE AS FOLLOWS:
1.
Position, Period of Employment.
(a)
Period of Employment. The Company hereby employs Employee to render services to
the Company in the position and with the duties and responsibilities described
in Section 1(b) for the period (the "Period of Employment") commencing on the
date of this Agreement and ending upon the date this Agreement is terminated in
accordance with Section 3 below. Except as provided in Section 3 below, the
Company shall pay Employee the compensation to which he is entitled under
Section 2(a) through the end of the Period of Employment, and thereafter
Company's obligations hereunder to pay or otherwise provide compensation and
benefits to Employee shall end.
(b)
Position. Employee hereby accepts employment with the Company as Chief Financial
Officer, Vice President - Finance. Employee shall devote his best efforts and
his full time and attention to the performance of the services customarily
incident to such office and to such other services as may be reasonably
requested by the Board of Directors of the Company (the "Board"). During the
Period of Employment, Employee will not accept any other employment of any
nature, excluding personal business carried on outside regular business hours
that does not materially interfere with the services required by this Agreement.
The Company shall retain full direction and control of the means and methods by
which Employee performs the above services and, subject to the terms of this
Section 1(b), of the place(s) at which such services are to be rendered. During
the term of this agreement, employee's principal location shall be in New
Hampshire.
(c)
Non-Compete/Conflict of Interest. Employee, during the Period of Employment (as
defined below), will not engage, directly or indirectly as an employee,
director, consultant, shareholder, partner or independent contractor or in any
other capacity, in any other business activity (whether or not pursued for
pecuniary advantage) that is competitive with, or that might place him in a
competing position to that of the Company or any other corporation or entity
that directly or indirectly is controlled by the Company (an "Affiliated
Company"); provided, however, that Employee may make passive personal
investments (not exceeding ownership of more than one (1) percent of the equity
interest in any company) in publicly-held companies that may compete with the
Company or any Affiliated Company.
(f)
Expense. The Company shall reimburse Employee for reasonable travel and other
business expenses incurred by Employee in the performance of his duties
hereunder in accordance with the Company's general policies, as they may be
amended from time to time during the course of this Agreement.
duties
pursuant to Section 1 hereof (other than as a result of disability as provided
for in Section 3(b)) and shall not have cured such failure following thirty (30)
days notice from a majority of the members of the Board; (iv) Employee is
convicted of a crime relating to his employment by the Company or that has a
material adverse effect on the Company or, in the reasonable opinion of the
Board, Employee's ability to perform services hereunder; or (v) because
Employee, in the reasonable opinion of the Board, breaches any material term of
this Agreement, provided the breach continues for a period of five (5) days
after Employee receives written notice of that breach from the Board. Employee
hereby agrees that the Company may terminate his employment with the Company
under this Section 3(c) without regard (1) to any general or specific policies
(whether written or oral) of the Company relating to the employment or
termination of its employees, or (2) to any statements made to Employee, whether
made orally or contained in any document (other than this Agreement), pertaining
to Employee's relationship with the Company.
(d)
By Employee For Good Reason. Employee may terminate, without liability, the
Period of Employment for Good Reason (as defined below) upon twenty (20) days'
advance written notice to the Company. The Company shall pay Employee the
compensation to which he is entitled pursuant to Section 2(a) through the end of
the notice period plus the Severance Benefits (as defined in Section 3(f) below)
and thereafter all obligations of the Company hereunder shall terminate. Good
Reason shall exist if (i) there is an assignment to the Employee of any duties
materially inconsistent with or which constitute a material change in the
Employee's position, duties, responsibilities, or status with the Company, or a
material change in the Employee's reporting responsibilities, title, or offices;
or removal of the Employee from any of such positions, except in connection with
the termination of the Period of Employment for Cause, or due to disability,
early or normal retirement as defined by the Company's pension plan, death, or
termination of the Period of Employment by the Employee other than for Good
Reason (provided that removal and/or failure to re-elect Employee to the Board
in accordance with Section 1(c) shall not be deemed Good Reason for purposes of
this Section 3 (d)); (ii) there is a reduction by the Company in the Employee's
annual salary then in effect other than a reduction similar in percentage to a
reduction generally applicable to similarly situated employees of the Company;
or (iii) the Company acts in any way that would adversely affect the Employee's
participation in or materially reduce the Employee's benefit under any benefit
plan of the Company in which the Employee is participating or deprive the
Employee of any material fringe benefit enjoyed by the Employee except those
changes generally affecting similarly situated employees of the
Company.
give the
Company not less than two (2) months' notice of such termination. If the
Employee terminates his employment pursuant to this Section 3(e), the Company
shall have the option, in its sole discretion, to terminate Employee immediately
without the running of the notice period. If the Employee terminates his
employment pursuant to this Section 3(e), the Company shall pay Employee the
compensation to which he is entitled pursuant to Section 2(a) through the end of
the notice period or through the day upon which any early termination is elected
by the Company pursuant to the foregoing sentence, and thereafter all
obligations of the Company shall terminate. In the event the Company elects to
terminate the Period of Employment pursuant to this Section 3(e), the Company
shall give Employee not less than three months notice of such termination.
Employee hereby agrees that the Company may dismiss him under this Section 3(e)
without regard (i) to any general or specific policies (whether written or oral)
of the Company relating to the employment or termination of its employees, or
(ii) to any statements made to Employee, whether made orally or contained in any
document, pertaining to Employee's relationship with the Company.
(1)
Employee shall only be entitled to Severance Benefits hereunder in the event
that the Period of Employment shall be terminated (i) by Employee in accordance
with Section 3(d) and subject to the terms of said Section 3(d) or (ii) by the
Company in accordance with Section 3(e) and subject to the terms of said Section
3(e). Upon full payment of and upon providing of such Severance Benefits,
Employee shall be deemed to have released the Company and each of its officers,
directors and agents from any and all claims, liabilities or causes of action in
favor of the Employee arising in connection with his prior employment by the
Company.
(2)
For purposes of this Agreement, "Severance Benefits" shall mean a continuation
by the Company for a period of six (6) months of: (i) Employee's salary payable
in accordance with the Company's payroll procedures pursuant to Section 2(a)
following termination; (ii) those benefits to which Employee is entitled
pursuant to Section 2(f) hereof, including but not limited to medical benefits
substantially similar to those provided Employee prior to termination of
employment; and (iii) the vesting and right to exercise any stock options held
by Employee at the time of termination. As a condition precedent to the
continued vesting and exercisability of Employee's stock options during said six
(6) month period, Employee agrees to perform, on request from the Company, up to
ten (10) hours of consulting service per month during said six (6) month period.
Subject to Employee fulfilling his consulting obligations to the Company as
provided in this Section 3(f)(2) during the Severance Period (as defined-below),
Employee shall be deemed to continue as employee of the Company during the
Severance Period for the purpose of such stock options, and such stock options
shall thereafter terminate in
accordance
with their terms following expiration of the Severance Period. No additional
compensation shall be payable by the Company for such consulting services beyond
the Severance Benefits. The period in which Employee shall be entitled to
Severance Benefits shall hereinafter be referred to as the "Severance Period."
Notwithstanding any other provision herein, if Employee accepts employment at
any entity or engages in any business activity that is or may be competitive
with the Company (or any affiliate thereof) prior to the end of such six (6)
month period, Employee shall then immediately inform the Company of such
employment and immediately cease to be eligible for any continuing Severance
Benefits, including any continued salary payments, medical benefits and option
or share vesting.
(1)
Employee hereby acknowledges and agrees that all personal property, including,
without limitation, all books, manuals, records, reports, notes, contracts,
lists, blueprints, and other documents, or materials, or copies thereof, and
equipment furnished to or prepared by Employee in the course of or incident to
his employment, belong to the Company and shall be promptly returned to the
Company upon termination of the Period of Employment. Following termination, the
Employee will not retain any written or other tangible material containing any
proprietary information of the Company.
(2)
Upon termination of the Period of Employment, the Employee shall be deemed to
have resigned from all offices and directorships then held with the Company or
any Affiliated Company.
Company.
Subject to the foregoing, this Agreement shall be binding upon and shall inure
to the benefit of the parties and their respective heirs, legal representatives,
successors, and permitted assigns, and shall not benefit any person or entity
other than those enumerated above.
Notice
of change of address shall be effective only when done in
accordance
with this
Section.
competition
by Employee anywhere throughout the world, these covenants shall be governed by
and construed according to that law (from among those jurisdictions arguably
applicable to this Agreement and those in which a breach of this Agreement is
alleged to have occurred or to be threatened) which best gives them
effect.
10.
Governing Law. Subject to Section 9 hereof, the validity, interpretation,
enforceability, and performance of this Agreement shall be governed by and
construed in accordance with the law of the State of New Hampshire.
The
parties have duly executed this Agreement as of the date first written
above.
COMPANY: EMPLOYEE:
SkillSoft
Corporation
By: /s/
Xxxxxxx X.
Xxxxx /s/
Xxxxxx XxXxxxxx
------------------------------------ ----------------------------
Title:
President & Chief Executive Officer
------------------------------------
December
23, 2008
Xxxxxx
XxXxxxxx
SkillSoft
Corporation
000
Xxxxxxxxxxxx Xxxxxxxxx
Xxxxxx,
XX 00000
Dear
Xxx:
To ensure
compliance with Section 409A of the Internal Revenue Code of 1986, as amended,
SkillSoft Public Limited Company, incorporated in the Republic of Ireland (the
“Company”), and you hereby agree to amend the employment agreement dated as of
February 2, 1998 by and between SkillSoft Corporation and you (the “Employment
Agreement”) as follows:
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1.
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Section
2(c) is amended by inserting at the end the
following:
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“The
Company will pay any bonus due to the Employee between January 1 and June 30 of
the year following the year in which the services were rendered, unless the
bonus program specifically provides for a different payment schedule that
complies with Section 409A.”
|
2.
|
Section
2(f) is amended by inserting at the end the
following:
|
“To
receive reimbursement or have expenses paid, the Employee must submit all
required substantiation no later than the 30th day following the later of the
date the Employee incurred the expense or the date such documentation related to
the expense was first available to the Employee. The Company will
reimburse the Employee for expenses that fit its policy no later than the end of
the month following the month in which it receives such
substantiation.”
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3.
|
Section
3(f)(2) is amended by inserting at the end the
following:
|
“Payment
of any Severance Benefits shall be made as provided in Section
13. Employee’s continuation in any benefit plan is subject to that
plan’s terms.”
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4.
|
Section
13 is added to read as follows:
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“Tax
Considerations. Any payments due under this Agreement shall be
reduced by any amounts that the Company is required to withhold under applicable
law. The Employee acknowledges that this Agreement is intended to
comply, to the extent applicable, with the provisions of Section 409A of the
Internal Revenue Code of 1986, as amended (“Section 409A”) and shall, to the
extent practicable, be construed in accordance with such
section. Terms defined in this Agreement have the meanings given such
terms under Section 409A if and to the extent required to comply with Section
409A. If and to the extent any portion of any payment, compensation
or other benefit provided to the Employee in connection with the Employee’s
separation from service (as defined in Section 409A) is determined to
constitute “nonqualified deferred compensation” within the meaning of Section
409A and the Employee is a “specified employee” as defined in Section
409A(a)(2)(B)(i), as determined by the Company in accordance with its procedures
and Treasury Regulation 1.409A-1(i)(6)(i), by which determination the Employee
hereby agrees to be bound, such portion of the payment, compensation or other
benefit shall not be paid before the earlier of (i) the day that is six months
plus one day after the date of separation from service or (ii) ten (10) days
after the Employee’s date of death (either, the “New Payment
Date”).
The
aggregate of any payments that would otherwise have been paid to the Employee
during the period between the date of separation from service and the New
Payment Date shall be paid to the Employee in a lump sum on such New Payment
Date, and any remaining payments will be paid on their original
schedule. For purposes of this Agreement, each amount to be paid or
benefit to be provided will be construed as a separate identified payment for
purposes of Section 409A, and any payments that are due within the “short term
deferral period” as defined in Section 409A will not be treated as deferred
compensation unless applicable law requires otherwise. Neither the
Company nor the Employee has the right to accelerate or defer the delivery of
any such payments or benefits except to the extent Section 409A specifically
permits or requires such acceleration or deferral. Notwithstanding
the foregoing, to the extent that this Agreement or any payment or benefit
hereunder is determined not to comply with Section 409A, then neither the
Company, its Board, nor any of its designees, agents, or employees will be
liable to the Employee or any other person for any actions, decisions, or
determinations made under the Agreement or for any resulting adverse tax
consequences.”
Except as
modified by this letter or by other intervening amendments, all other terms and
conditions of the Agreement shall remain in full force and
effect. This letter may be executed in counterparts, each of which
shall be deemed to be an original, and all of which shall constitute one and the
same document.
| SKILLSOFT PUBLIC LIMITED COMPANY | |||
|
|
By:
|
/s/ Xxxxxxx X. Xxxxx | |
| Xxxxxxx X. Xxxxx | |||
| President and Chief Executive Officer and Director | |||
| (Principal Executive Officer) | |||
| SKILLSOFT CORPORATION (FORMERLY SMARTFORCE) | |||
|
|
By:
|
/s/ Xxxxxxx X. Xxxxx | |
| Xxxxxxx X. Xxxxx | |||
| President and Chief Executive Officer and Director | |||
| (Principal Executive Officer) | |||
| Acknowledged and agreed: | ||
|
By:
|
/s/ Xxxxxx X. XxXxxxxx | |
| Xxxxxx X. XxXxxxxx | ||
| Date | December 23, 2008 | |
